Delhi High Court

Mantori @ Noor Mohd. vs State on 6 August, 2009

Author: Pradeep Nandrajog

*                   IN THE HIGH COURT OF DELHI

%                     Judgment reserved on: 03.08.2009
                      Judgment delivered on:06.08.2009

+                      CRL. APPEAL 11/2001

      MANTORI @ NOOR MOHD.                ...Appellant
               Through : Mr. K.B.Andley, Sr. Adv. with
                         Mr. M.Shamikh, Advocate

                                   versus

      STATE (GOVT. OF NCT OF DELHI) ...Respondent
               Through : Mr.Pawan Sharma, Advocate

                       CRL. APPEAL 103/2001

      BABU KHAN                      ...Appellant
              Through : Mr. Riaz Mohd., Advocate

                                   versus

      STATE (GOVT. OF NCT OF DELHI) ...Respondent
               Through : Mr.Pawan Sharma, Advocate

                       CRL. APPEAL 24/2001

      LACHHO @ BIJLI                 ...Appellant
              Through : Ms. Ritu Gauba, Advocate

                                   versus

      STATE (GOVT. OF NCT OF DELHI) ...Respondent
               Through : Mr.Pawan Sharma, Advocate

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR


1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?                  Yes

3. Whether judgment should be reported in Digest?           Yes

Crl.Appeal Nos.11, 103 & 24/2001                         Page 1 of 26
 : PRADEEP NANDRAJOG, J.

1. Vide impugned judgment and order dated

2.12.2000, appellants Babu Ram and Mantori have been

convicted for the offence of murdering Rekha. All appellants

have been convicted for the offence of conspiracy to murder

Rekha. Vide order of sentence dated 5.12.2000, the

appellants have been convicted to undergo sentence for life

and to pay a fine in sum of Rs.500/- each.

2. The case of the prosecution, which as per the

impugned judgment, stands established in the light of the

evidence led, has been very finely summarized in para 43 of

the impugned decision and we can do no better other than to

reproduce the findings pertaining to the incriminating

circumstances noted by the learned Trial Judge. The same are

as under:-

"43. In my considered view, the prosecution has successfully brought home beyond pale of all doubts, the following facts:-

(a) the deceased Rekha, a eunuch was disciple of A-1 Lachho, another eunuch;

(b) the deceased was living in the area of Pahar Ganj with other eunuches, in particular PW5 Meena and PW6 Anita. She was living a life in style, would enjoy good clothes, sport a scooter fitted with stereo, thus indicating she had a very good income. She had adopted a child of about 3/3.5 years. The evidence indicates A-1 had cause of grudge against the deceased;

(c) on 1.10.89, A-1 Lachho brought four persons, including A-2 Mantori @ Noor Mohammod and A-3 Babu Khan to Dargah Nazaria Peer near Mehrauli and at her request Kale Baba Khan, the then Khitmadgar of the Dargah allowed the said four persons including A-2 to A-3 to stay as guests in the Dargah;

(d) on 3.10.89 A-1 Lachho came to the house of the deceased in the morning, took lunch with her and asked her (the deceased) to take her (A-1) to Qutub, Dargah Nazaria Peer, Chhatarpur Mandir, etc. on her scooter. At this request, the deceased took A-1 Lachho on her scooter towards Qutab, also taking along her adopted child;

(e) at about 3/3.30 p.m. A-1 Lachho came to Dargah Nazaria Peer with the adopted child of the deceased and talked in secrecy with A-2 and A-3 besides two others staying there as guests at her instance, whereupon, the said four persons went towards Qutab Dargah which was to take them on a route leading into the jungle.

(f) After about half an hour, at 4.00 p.m. or so on 3.10.89, A-1 came out of Dargah Nazaria Peer leaving a message with PW4 to the effect that if Rekha (the deceased) was to come there, she was to be told that A-1 Lachho had gone to Qutab Dargah. Instead of going towards the Qutab, A-1 Lachho was seen proceeding in opposite direction i.e., towards Katwaria Sarai;

(g) Just as A-1 Lachhco had set out towards the Katwaria Sarai, the four persons mentioned above, which would include A-2 and A-3, were seen coming running in a nervous state and badly perspiring, and immediately on arrival of the said persons A-1 snatched the child from the arms of PW4 and ran with the said four persons towards Katwaria Sarai;

(h) A-1 Lachho returned the adopted child of the deceased Rekha at her residence to PW6 Anita at about 5/5.30 p.m. on 3.10.89 with the message that Rekha had stayed back for the night at Mehrauli;

(i) On 4.10.89 at about 8.45 a.m. PW2 Sukhbir during his patrolling in the jungle as Chowkidar

stumbled upon the scooter Ex.PX of the deceased and her dead body lying at some distance with a cut injury in the neck. After information was lodged with the police, during inspection of the scene of crime, besides the personal effects of the deceased, a dagger blood stained Ex.P11 and angocha Ex.P10A were also found lying in close vicinity of the scene of crime, with angocha being positively identified as in use of A-2 Mantori ;

(j) upon arrest on the basis of disclosure made during interrogation by A-2 Mantori and A-3 Babu Khan their respective clothes including shirt Ex.P12 and tehmad Ex.P13 of A-2, and shirt Ex.P14 and tehmad Ex.P15 of A-3 Babu Khan, were recovered from the bushes very close to the scene of crime on 7.10.89 and 18.10.89. All these clothes had blood stains which have been found by the CFSL to be of Group "A" (human origin, the same as blood Group of the deceased).

(k) the post mortem examination of the dead body of Rekha brought out that she died on account of shock as a result of sharp incised big wound present in the neck of the size of 20x10 cms and depth of 15 cms which had cut the internal carotid, other vessels, along with muscles and facia, which was possibly caused with dagger Ex. P11 and which injury had been sustained sometime between 1345 hours to 1745 hours on 3.10.89, which would be proximate to the time when the four guests staying at Dargah at the instance of A-1, including A-2 and A-3, had proceeded into the jungle after talking with her so as to return after half an hour in nervous state."

3. Noting the aforesaid incriminating circumstances

and the evidence wherefrom the same has been held to be

established, the learned Trial Judge has noted a few decisions

pertaining to the principles of law applicable to circumstantial

evidence and the law of conspiracy as also the last seen

evidence theory. The conclusions have been drawn by the

learned Trial Judge in para 48 and 49 of the decision which

read as under:-

"48. Applying the above said principles of law to the facts established by the prosecution in this case, it is found the guilt of the A-1 to A-3 has been brought home beyond all manner of doubts. The evidence indicates A-1 had cause of grudge against the deceased. A-1 had brought A-2 and A-3, along with two others, to Delhi and got them accommodated as guests in Dargah Nazaria Peer sometime in the evening of 1.10.89. A-1 went to the house of the deceased in the morning of 3.10.89 and sweet talked her into accompanying her on the pretext of visiting Qutab, Dargah Nazaria Peer, Chatarpur Mandir etc. on her scooter. On this journey, which proved to be fatal for the deceased, her adopted child of 3/3.5 years was also accompanying her. Sometime around 3/3.30 p.m. on 3.10.89 A-1 came to Dargah Nazaria Peer only with the adopted child of the deceased. This only gives rise to one possibility that she had somehow got separated from the deceased on some pretext or the other in order to arrange, as the circumstances would show, that the deceased to be fatally attacked in the jungles near the Dargah. When A-1 came to Dargah Nazaria Peer at aforesaid time, she was seen talking in secrecy with A-1 and A- 3 and two others (absconding) who were staying as guests in the Dargah at her instance whereafter the said four persons went in the direction leading into the jungle where the murder actually took place. Just after half an hour or so of the four said persons having left, they were seen running out in perspiration and in nervous state when A-1 left the scene with them, also carrying along the adopted child of the deceased. These circumstances definitely indicate knowledge about and involvement in the death of Rekha, the eunuch, in the jungle. The adopted child of the deceased was returned by A-1 to PW6 Anita at the house of the deceased sometime around 5/5.30 p.m. with the message that Rekha had stayed back for overnight at Mehrauli. Earlier, A-1 had told PW4 that if Rekha was to come to Dargah, she was to be told that A-1 had gone to Qutab Dargah. Both these assertions by A-1 were false in that A-1 was seen proceeding in an opposite

direction indicating she never intended to go towards Qutab and there was no occasion for A-1 to have told PW6 that Rekha was staying overnight at Mehrauli, since she had already died in the jungles and could not have given that kind of indication if she was yet to meet A-1 at Dargah Nazaria Peer. The false statements given to PW4 and PW6 one after the other conjointly indicate guilty knowledge. The evidence has brought out that the shirts and tehmads of A-2 and A-3 respectively with blood stains were recovered at their instance from near the scene of crime. Besides this, angocha Ex.P10A of A-2 had been recovered from near the dead body. These circumstances along with the conduct of A-2 and A-3 in coming out of the jungle around the same time as the murder took place shows they had played an active role in the commission of the crime. Since they were all along moving and hobnobbing with A-1, under her instructions, it is sufficiently clear that they with A-1, and two said others, were party to a criminal conspiracy to commit the murder of Rekha, the eunuch.

49. The above facts and circumstances collectively indicate that it can reasonably be inferred that A-1 intended to cause the death of Rekha, the eunuch and had arranged A-2 and A-3 with two others to came at Dargah Nazaria Peer, and had also made Rekha the eunuch to take the fatful journey in the direction of Qutab on 3.10.89 so that she could be way-laid by her said 6 conspirators and done to death in the jungle. The conduct of co-conspirators in going into the jungle immediately after talking to A-1 in secrecy when she arrived at Dargah Nazaria Peer at about 3/3.30 p.m. just before the death took place; and then rushing out of the jungle in a nervous state badly perspiring, and fleeing away from the scene is relevant even as against A-1 by virtue of section 10 Evidence Act. On the basis of same principle, the conduct of A-1 in giving false messages to PW4 and PW6 as mentioned above, and her conduct in arranging the availability of the deceased in the area where the murder took place are relevant also as against A-2 and A-3, who were her co- conspirators. The circumstances proved are consistent only the hypothesis of the guilt of A-1 to A-3 and they are not explainable on any other

hypothesis including that of innocence of any of these three accused persons. The circumstances proved show a complete chain that in all human probability, the murder had been committed by A-2 and A-3 with two others (absconders), in furtherance of common object to achieve that end, pursuant to the criminal conspiracy in which each of them was a party. These are the only rational deductions possible, as against mere fantastic possibilities of freak inferences to the contrary, based on probative force of facts and circumstances (State of UP Vs Hari Mohan 2000 VII A8 (SC) 389 relied upon). The case is distinguishable on facts from Saju Vs. State of Kerala 2000 III AD(Cr.) SC 433."

4. At the hearing of the appeals, learned counsel for

the appellants urged that Rekha being murdered in a forest

area near Idgah Mehraulli on 3.10.1989 is not disputed by

them. Learned counsel urged that what the appellants dispute

is that they were responsible for the murder of Rekha. Thus,

learned counsel submitted that such evidence which proves

the commission of the crime in the forest area and the victim

being Rekha, need not be looked into. Counsel agreed that

only such evidence be considered which has been held to be

inculpatory of the appellants.

5. Learned counsel urged that testimony of Sukhbir

PW-2, Sayeed Munir PW-4, Meena PW-5 and Anita PW-6

besides that of the investigating officer namely Insp.Bheem

Singh PW-17 and Insp.Satish Sharma PW-16 needs to be

considered.

6. It all commenced when on 4.10.1989 Sukhbir PW-2

employed as a chowkidar by DDA reported for duty at 8:00 AM

and proceeded to the forest area near Idgah Mehraulli. (It

appears that the duty of PW-2 was to keep a watch for

unauthorized encroachment in land belonging to DDA in

Mehraulli, where, huge illegal encroachments used to take

place and as of today have assumed alarming proportions).

He saw an abandoned two-wheeler scooter and the dead body

of a woman with pieces of cloth of a saree scattered around

the body. He went to PS Mehraulli and reported the said fact

which was entered in the daily diary vide DD No.3A Ex.PW-2/A.

7. Insp.Bheem Singh PW-17, posted as the SHO of the

police station proceeded to the spot in the company of Sukhbir

and took along with him Const.Mahender Singh PW-13 and

Const.Kuldeep Singh PW-14. The three police officers reached

the spot along with Sukhbir. Indeed, they found a dead body

which was not of a woman but an eunuch. Insp.Bheem Singh

immediately made an endorsement Ex.PW-17/A beneath the

copy DD No.3A and sent Const.Kuldeep Singh PW-14 to the

police station for registration of an FIR for the offence of

murder as the neck of the person killed had been slit and it

was apparent that the deceased had been murdered. The FIR

was immediately registered. Crime team, a photographer and

a dog squad was summoned. The crime team could detect

nothing worthy of lifting from the spot. The dog squad got no

clues as the sniffer dogs simply sniffed around the dead body

and a few meters here and there. HC Dharamvir Singh PW-3 a

photographer took 11 photographs of the place of occurrence

being Ex.PW-3/1 to Ex.PW-3/11.

8. Insp.Bheem Singh collected torn pieces of saree,

collectively exhibited as Ex.P-1. A cup Ex.P-2. A pair of two

chappals Ex.P-3 and Ex.P-4. Two empty bottles Ex.P-5 and

Ex.P-6. A nose pin Ex.P-7. Pieces of broken bangles Ex.P-8. A

hair pin Ex.P-9. A wrist watch Ex.P-10 and a gamcha Ex.P-10A

from near the dead body and recorded the said fact in the

seizure memo Ex.PW-2/B. He lifted blood stained soil and soil

sample from the spot as recorded in the memo Ex.PW-2/C. A

dagger Ex.P-11 was lifted a few meters away from the dead

body and was seized vide seizure memo Ex.PW-2/F. Its sketch

Ex.PW-2/E was drawn. A two-wheeler scooter lying nearby

bearing registration No.DDM-7512 was seized as recorded in

the seizure memo Ex.PW-2/D. The recovery memos were

prepared by the investigating officer and were signed by

Sukhbir PW-2.

9. News had spread in the area of a dead body

recovered in the jungle. As usually happens in India, an

inquisitive crowd proceeded to the jungle and in the crowd was

Sayeed Munir and one Kaley Baba Khan who immediately

recognized the dead body being that of Rekha.

10. The dead body was seized and sent to the mortuary

at AIIMS where Dr.R.K.Sharma conducted post-mortem on

5.10.1989. The post-mortem commenced at 11:45 AM and the

post-mortem report Ex.PW-9/A was drawn up by

Dr.R.K.Sharma after the post-mortem in which he opined that

the time of death was about 42 to 46 hours prior to the post-

mortem. He noted a sharp incised cut in the neck cutting

through the blood vessels, internal carotid and the neck

muscles. He also noted multiple contusions on the left and the

right thigh as also the lumber region. He opined that the

cause of death was immediate and the result of injury No.1.

He noted that the body was of an eunuch. Penis was absent.

Small vagina and atrophic cliotoris was seen. It was

subsequently opined by Dr.R.K.Sharma that the injuries could

possibly be inflicted with the dagger Ex.P-11.

11. The investigating officer recorded the statements of

Sayeed Munir and Kale Baba as per which both of them stated

that they were khidmatgars/sewadars at the dargah Nazaria

Pir, Mehraulli, and that appellant Lachho was a visitor at the

dargah. Deceased Rekha, a disciple of Lachho used to visit the

dargah for offering prayers. On 1.10.1989 at around 8:30/9:00

PM in the night, Lachho came with four persons at the dargah.

Said persons had stayed at the dargah at the asking of Lachho

who gave Rs.100/- to Kale Baba for their expenses. The said

persons stayed at the dargah on 2.10.1989. Whereas Kale

Baba further informed that he left the dargah in the afternoon

on 3.10.1989 and learnt on 4.10.1989 about a dead body

being found in the forest area, Sayeed Munir gave further

information that on 3.10.1989 Lachho had come to the dargah

with a small child in the late afternoon and had spoken with

the said three persons in a hushed manner by taking them to a

corner. After the talk, the four persons went towards Kutub

Dargah and half an hour thereafter, Lachho and the small child

left. Before leaving, Lachho told Sayeed Munir to tell Rekha

that she i.e. Lachho had gone to Kutub Dargah. He

accompanied Lachho to some distance and since Lachho was

limping he carried the child in his arms. Lachho did not

proceed in the direction towards Kutub Dargah but started

walking towards Katwaria Sarai. They had hardly moved a

little distance, when the four persons who had stayed at the

Dargah and had left a few hours earlier came running in a

nervous state. The moment Lachho saw them, she snatched

the child from his arms and all of them ran towards Katwaria

Sarai. He was perplexed by their conduct but left it at that.

Next day he heard about a dead body being found and

curiosity took him to the jungle. He saw the dead body and

realized that Rekha had been murdered. Both, Kale Khan and

Sayeed Munir stated that if the four persons who had stayed at

the Dargah at the request of appellant Lachho were brought

before them they could recognize them. The investigating

officer contacted Meena PW-5 and Anita PW-6 and recorded

their statements as per which Meena informed that she was

the disciple of Rekha who was, in the past, a disciple of

Lachho. Rekha was a popular eunuch and had a lavish life

style. Lachho was envious of Rekha. In the morning of

3.10.1989 Lachho took Rekha and a child treated as a son by

Rekha to an Idgah in Mehraulli. In the evening at around

5/5:30 PM Lachho left the child back telling Meena and Anita

that Rekha would come the next day as she had decided to

spend the night at the Dargah in Mehraulli.

12. Obviously, Lachho was the person whose identity

was made known to the investigating officer and as per the

information given by Kale Khan and Sayeed Munir she was a

suspect. Only she could give the identity of the others named

as the ones who had stayed at her request in the Dargah

where Sayeed Munir and Kale Khan were working as

khidmatgars. Lachho was apprehended and so were

appellants Babu Khan and Mantori. The involvement, by name

of co-accused Raju @ Yakub (proclaimed offender) was made

known to the police as per the disclosure statement of Lachho.

The fourth person could not be identified.

13. As per the prosecution, appellant Mantori and Babu

Khan confessed to the crime and got recovered their shirt and

tehmad; being Ex.P-12 and Ex.P-13 belonging to Mantori and

Ex.P-14 and Ex.P-15 belonging to Babu Khan, from near the

bushes close to the place of the incident after the two were

arrested. The shirt and the tehmad Ex.P-12 and Ex.P-13

respectively of Mantori were recovered on 7.10.1989. The

shirt and the tehmad Ex.P-14 and Ex.P-15 of Babu Khan were

recovered on 18.10.1989. The report Ex.PX-A of the serologist

is that human blood of group „AB‟ i.e. the blood group of the

deceased was detected on the said two shirts and the

tehmads.

14. As per the learned Trial Judge, the recovery of the

two shirts and the two tehmads is pursuant to the disclosure

statement of Mantori and Babu Khan followed by the two

leading the police to the spot wherefrom the same were

recovered and the fact that the shirts and the tehmads were

stained with human blood of the same group as of the

deceased was a piece of incriminating evidence against

appellant Mantori and appellant Babu Khan.

15. In our opinion the recovery of the shirt and the

tehmad at the instance of appellant Mantori as also the

recovery of another shirt and a tehmad at the instance of

appellant Babu Khan inspires no confidence and unfortunately,

the learned Trial Judge has glossed over the circumstances

and the manner under which the same have been recovered.

16. What has been overlooked by the learned Trial

Judge is that the two recovery memos i.e. the recovery memo

Ex.PW-16/A dated 7.10.1989 pertaining to the recovery of the

shirt and the tehmad at the instance of appellant Mantori

shows that the shirt and the tehmad were recovered from

within the bushes in the jungle at a distance of about 500

meters from the place where the dead body of Rekha was

recovered on 3.10.1989. Similarly, the recovery memo Ex.PW-

8/C dated 18.10.1989 pertaining to the recovery of the shirt

and the tehmad at the instance of appellant Babu Khan shows

that the shirt and the tehmad were recovered from within the

bushes in the jungle at a distance of about 200 yards from the

place where the dead body of Rekha was recovered on

3.10.1989. The learned Trial Judge has glossed over the

admission made by Insp.Bheem Singh PW-17, who during

cross examination, admitted that a dog squad was brought at

the spot on 4.10.1989 and that the sniffer dog could pick up no

clues. We agree with the contention urged by learned counsel

for the appellants that under the circumstances i.e. the

recoveries being from a place accessible to the public and the

sniffer dogs being unable to pick up any leads on 4.10.1989,

the recoveries do not inspire any confidence. Surely, the

sniffer dogs would have detected the presence of blood

stained clothes lying in the vicinity of 200 yards to 500 meters

from where the dead body of Rekha was found, if they were

there. Further, the site plan Ex.PW-17/B shows that the place

where the dead body of the deceased was found is adjoining

two kachha rastas which lead to the Dargah in Mehraulli i.e. is

a place accessible to the public at large. Recoveries of

common objects from a place accessible to the public at large

have always been treated with a pinch of salt by Courts.

17. That takes us to the crux of the matter. The

testimony of the persons whose statements were recorded by

the investigating officer during investigation.

18. We find that in the list of witnesses filed along with

the charge sheet, the name of Kale Baba has been entered at

serial No.6. Along with the charge sheet his statement under

Section 161 Cr.P.C. has been filed. But, Kale Baba has not

been examined as a witness. A reason is forthcoming. It is in

the testimony of Sayeed Munir PW-4, that Kale Baba left the

Dargah.

19. This takes care of the submission made by Ms.Ritu

Gauba learned counsel for appellant Lachho that the

prosecution has withheld a vital witness for reasons best

known to the prosecution and therefore an adverse inference

should be drawn against the prosecution and benefit should be

given to her client. No doubt, where a crucial witness is

withheld by the prosecution, and evidence led is shaky, benefit

has to be given to the accused as held in the decisions

reported as AIR 1981 SC 911 Dudh Nath Pandey Vs. State of

U.P. and 2000 SCC (Cri.) 703 Rangbahadur Singh Vs. State of

U.P. But, if a witness is not traceable and the prosecution has

not deliberately withheld the production of a witness, no such

adverse inference can be drawn.

20. Since, the prosecution has not deliberately withheld

Kale Baba as its witness, we hold that nothing adverse can be

drawn against the prosecution on said point.

21. Sayeed Munir PW-4 deposed as under:-

"I had come to Dargah, Nazaria Peer, Mehrauli, three four months before the incident in question. One Kaley Babe Khan was a Sevadar in the same Dargah. Accused Lachho present in the court and deceased Rekha used to come to that Dargah in my presence. They used to meet me and Kaley Baba Khan during their visits. On 1.10.1989, at about 5.30 PM, all the accused persons present in the court, came to the Dargha. Accused-Lacho told Kaley Babe Khan that the other accused persons present in the court were her guests and that they would stay in the Dargah for some days. Accused Lachho gave Rs.100/- to Kaley Babe Khan for their expenses. Accused-Lachho went away, while the three accused persons stayed behind. On 2.10.1989, the three accused persons, namely, Raju @Yakub, Mantoori and Babu Khan were present in the Dargah. On 3.10.1989, accused Lachho came to the Dargah with a small child at about 3/3.30 PM. She talked to the other three

accused persons for about half an hour by taking them to one corner. There was another person, who had stayed along with the three accused persons in the Dargah. I do not know his name but I can identify in case he is brought before me. While Lachho came inside the Dargah and sat with me, the remaining four persons went away towards the side of Qutab Dargah. After about half an hour, she left the Dargah. Before leaving, she told me to convey to deceased-Rekha that she had gone to Qutub Dargah. I accompanied Lachho to some distance. Since accused-Lachho was limping. I carried the child. Accused-Lachho did not go towards the side of Qutub Dargah but started going towards Katwaria Sarai. She had hardly left, when all other accused persons came running in a nervous state, badly perspiring. The moment, accused Lachhoo saw those persons, she snatched the child from me and all of them started running towards Katwaria Sarai. Thereafter, I returned to the Dargah. On 4.10.1989, I came to know from Kaley Babe Khan, that a murder had taken place in a jungle in between our Dargah and Shahi Idgah, Mehrauli. Myself and Kaley Babe Khan went to the spot. At the spot, we noticed a cup, which belonged to our Dargah and a piece of cloth, i.e. Angocha which I had seen around the neck of Mantoori about two days. I also noticed some empty bottles of liquor and torn pieces of sarees. I can identify the cup and that Angocha.

(At this state, a sealed parcel is opened and cup is taken out). Ex.P-2 is the same cup.

(At this stage, another sealed parcel is opened and angocha is taken out). Ex.P10A is the same angocha, which was recovered from the spot, and I identify the same vide memo Ex.PW-4/A, which bears my signatures at point „A‟."

22. Meena PW-5 deposed as under:-

"I knew Rekha, the deceased, for the last about 10 to 12 years from the date of the incident, as she was my Guru. Accused Lachoo present in Court was the Guru of deceased-Rekha. I know accused-Lachoo for the last about 10 to 12 years. Deceased-Rekha and accused-Lachoo used to operate in the same area for

the purposes of seeking „Inaam‟ on the birth of a son or daughter. Deceased Rekha was born as eunuch and so is accused-Lachoo. I am also eunuch by birth. Anita is my disciple. About 5-6 years before the death of Rekha, we all used to live together, i.e. myself, Anita and Rekha. Deceased-Rekha was very popular in the area and had established lot of goodwill. As such, people used to like her and used to give good „Inaam‟/Bakshish to her. Accused- Lachhoo was residing separately. Deceased-Rekha used to live well and in-style. She used to travel in a two-wheeler scooter, fitted with stereo, which was owned by her. She was fond of music, good clothes etc. Her life style evoked jealousy in accused- Lachhoo. About three years ago, in the days of Navratras, on the third instant, accused-Lachhoo came to the place where we were living, at about 9 AM. She asked deceased-Rekha to take her to Qutub, Dargah Peer, Chattarpur Mandir etc., on her scooter. Accused Lachhoo also had lunch with us. Thereafter, deceased-Rekha along with a small child whom she had adopted, took accused-Lachhoo towards Qutub side on her two wheeler. At about 4 PM I also went out of my house to buy vegetables etc. When I returned home, I saw that the small child whom Rekha had taken along with her, wac back home. I asked Anita whether Rekha had returned home or not, she told me that Rekha had not returned bu the child was left at home by accused- Lachhoo. She also tole me that Lachhoo informed her that Rekha was to stay in Mehrauli for the night and would return the next day. Next day, a eunuch came to our house and told us that the dead body of Rekha was found lying in a jungle, near Dargah, Nazaria Peer, Mehrauli. I went to the spot along with that eunuch where I identified the dead body of Rekha. The police carried out the inquest proceedings in my presence. I put my thumb impression at point A and B on the inquest proceedings. Ex.PW-5/A is the inquest proceedings. Thereafter I returned home.

On 6th instant, the police came to our house at about 2:30 PM. The police made inquiries from us about accused Lachhoo. On our telling that she was known to us, they took me to Shahganj Chowk, Masjid Wali Gali, where accused-Lachhoo lived. On reaching

there, we came to know that she had left the house with an old man for Ajmeri Gate. We looked for her in Ajmeri Gate, but on not finding her there, we came towards Darya Ganj and from there to ISBT. At ISBT, near a three wheeler scooter stand, I was able to spot accused-Lachhoo along with one old man and another person. On my pointing out, the police apprehended all the three persons. Accused- Lachhoo tried to draw public attention by clapping in eunuch style, but the crowd was dispersed by the police. Accused-Babu Khan and accused-Mantoori present in the Court were the persons, who were found with accused Lachoo and were apprehended by the police. All the three were brought to the Police Station Mehrauli where, personal seach of Mantoori and Lachhoo was taken, vide memo, Ex.PW- 5/B and Ex.PW-5/. Both the memos Ex.PW-5/B and C bear my thumb impression at point A. Another eunuch Daya was already in the police station before the accused persons were brought there. On interrogation, accused Lachhoo made a disclosure statement Ex.PW-1/A, which also bears my thumb impressions at point A. In her disclosure statement, accused-Lachhoo stated that she had engaged accused-Raju @ Yakub present in the Court, for Rs.10,000/- to commit murder of Rekha. (Accused- Raju @Yakub has been identified by the witness for the first time in the Court). The dead body of the deceased was handed over to me and her father Wachan Singh, vide memo Ex.PW-5/D. It bears my thumb impressions at point A."

23. Anita PW-6 deposed as under:-

"For the last about 5 -6 years, I am living at the abovementioned address with Meena and deceased- Rekha. I know accused-Lachhoo, present in the Court as she was Guru of Rekha. We used to operate in the area of Pahar Ganj for getting Bakshish etc. on the birth of a son or a daughter. About three years ago on 3rd October, deceased-Rekha had left the house along with her adopted son and accused-Lachhoo on her two wheeler scooter, towards Mehrauli side, as was asked by accused-Lachhoo. They left the house at about 12 Noon or 1 PM after taking lunch. Meena had also left the house at about 4 PM and I was, therefore, alone in the house. At about 5/5:30 PM, accused Lachoo came

and left the child in the house. I inquired from her about Rekha whom I used to address as Mummy. Accused-Lachhoo told me that she would stay in Mehrauli for the night and would return the next day. On the next morning, eunuch named-Daya came and informed us that Rekha had been murdered and her dead body was found in a jungle, near Darga Peer, Mehrauli. As such, Meena went with Daya to the place where the dead body was lying."

24. It is apparent that the testimony of Anita and

Meena establishes that appellant Lachho took along with her

deceased Rekha and her adopted child in the morning of

3.10.1989. She came back in the evening at around 5/5:30

and returned the adopted child of Rekha and told Anita and

Meena that Rekha would return the next day as she had

decided to stay overnight at the Dargah in Mehraulli. The

post-mortem report Ex.PW-9/A of the deceased establishes

that the deceased died somewhere between 12:00 noon to

4:00 PM. Thus, it is apparent that Lachho had something up

her sleeve. Rekha had never desired to stay back at the

Dargah in Mehraulli and Lachho had clearly told a lie to Anita

and Meena. Her conduct is suspicious. Evidence pertaining to

her suspicious conduct is admissible and relevant under

Section 8 of the Evidence Act.

25. The testimony of Sayeed Munir PW-4 establishes, as

held by the learned Trial Judge, that Lachho had spoken

suspiciously and with secrecy with appellants Mantori and

Babu Khan on 3.10.1989 and by this time the adopted son of

Rekha was in the company of Lachho. The time was around

3/3:30 PM. Lachho stayed back after the talk and appellants

Mantori and Babu Khan along with two other person left

towards Qutub Dargah i.e. in the direction where Rekha‟s dead

body was found. After about half an hour i.e. around 4:00 PM

Lachho left the Mehraulli Dargah informing Sayeed Munir to

tell Rekha that she and her son were going to Qutub Dargah.

But, Lachho proceeded in the opposite direction towards

Katwaria Sarai. Since she was limping and had a child in her

lap, to help Lachho, Sayeed Munir took the child in his lap and

accompanied her. A short distance was covered when Mantori,

Babu Khan and the other two persons came running. They

were sweating and were perplexed. Certainly, the conduct of

the appellants is suspicious as they were seen running from a

direction where Rekha had been murdered and were

perplexed. The time corresponds to the time of Rekha being

killed as evidenced by the opinion of the doctor who conducted

the post-mortem of the deceased. Their further conduct as

also the conduct of Lachho of snatching Rekha‟s son from the

arms of Sayeed Munir and running away is also indicative of

their guilty mind.

26. Why did Mantori and Babu Khan get perplexed? It

appears on seeing Sayeed Munir with Lachho. The timings of

the event are important. Lachho spoke to Mantori and Babu

Khan and two other persons at around 3/3:30 PM. The talk

was secretive. Lachho stayed back at Mehraulli Dargah.

Mantori, Babu Khan and two other persons left. After about

half an hour, Lachho and Rekha‟s son left and around same

time Mantoi, Babu Khan and the other two persons came

running back. On seeing Sayeed Munir, all five namely

Lachho, Mantori, Babu Khan and two other persons ran away.

27. The motive of Lachho to kill Rekha has emerged

through the testimony of PW-5 and PW-6 and has rightly been

held to be established by the learned Trial Judge.

28. There is another incriminating evidence against

appellant Mantori, which unfortunately has apparently been

somewhat diluted due to the learned Trial Judge not being

vigilant. The same pertains to the testimony of Sayeed Munir

qua the Angocha Ex.PW-10/A recovered from the spot where

dead body of Rekha was discovered on 4.10.1989. As per

Sayeed Munir the said Angocha Ex.P-10 was seen by him

around the neck of Mantori on 2.10.1989. We note that in his

statement under Section 161 Cr.P.C., Sayeed Munir has so

informed the investigating officer. We further note that

pertaining to said Angocha and his deposition in Court by way

of examination-in-chief, Sayeed Munir was given a suggestion

that he did not tell said fact to the police when his statement

under Section 161 Cr.P.C. was recorded. He responded that he

did not remember whether he had said so. Surprisingly

enough, Sayeed Munir was confronted with his statement

Ex.PW-4/DA recorded on 4.10.1989 under Section 161 Cr.P.C.,

where said fact has been mentioned. We are extremely

surprised at the stupidity of said part of the cross examination.

We need to note the same, which is as under:-

"I do not remember if I had stated before the police that the Angocha recovered at the spot was seen by me around the neck of accused Mantori two days prior to the incident. (Confronted with statement Ex.PW- 4/DA where it is not recorded that he had not seen the Angocha around the neck of accused Mantori two days prior to the incident)."

29. We note that in his statement Ex.PW-4/DA,

Sayeed Munir has clearly stated that the Angocha Ex.Pw-

10/A was seen by him around the neck of Mantori two days

prior. The statement has been recorded on 4.10.1989. Two

days prior would be 2.10.1989.

30. How has the learned Trial Judge diluted said very

incriminating evidence which proves Mantori‟s presence

near the deceased? By not putting said incriminating

circumstance to Mantori. Unfortunately, whereas the

evidence pertaining to all articles seized from the place of

occurrence i.e. Ex.P-1 to Ex.P-10 and Ex.P-11 have been put

to Mantori and the other accused, the incriminating

evidence of the Angocha Ex.P-10A being recovered from

near the dead body of Rekha has not been put to her.

31. Ignoring said evidence, in view of the testimony

of PW-4, there is sufficient evidence wherefrom the

involvement of Mantori in the crime stands established and

thus the dilution in the evidence of Ex.P-10A being a

circumstance against Mantori makes no difference.

32. But, we would like to note a decision of not too

distance a past of the Supreme Court on the issue as to

what should be the approach at a criminal trial where an

incriminating circumstance is not put to an accused. The

decision is reported as 1976 (4) SCC 355 Ishwar Singh Vs.

State of U.P. In para 4 it was noted and observed as under:-

"4. It appears that though Ishwar Singh was convicted under Section 302 simpliciter, the charge on this count framed against Ishwar Singh and Harpal Singh was for an offence punishable under Section 302 read with Section 149. The relevant charge reads:

Fourthly: That you, along with the aforesaid other accused, the same day, at the same time and place, were members of an unlawful assembly, in prosecution of the common object of which, some of the members did commit murder by intentionally causing the death of Chauhal Singh and you are thereby, under Section 149, I.P.C, guilty of causing the said offence punishable under Section 302 of the Indian Penal Code and within the cognizance of the Court of Session.

In his examination under Section 342 of the Criminal Procedure Code also Ishwar Singh was asked no question to enable him to answer the allegation that he struck Chauhal Singh on the chest with a ballam. The question asked was:

Q. 4. The prosecution evidence is that on the aforesaid day, time and place, in furtherance of the common object of the aforesaid unlawful assembly, you along with the other accused persons committed the murder of Chauhal Singh and caused injuries to Mahabir Singh, Ghanshiam, Satyapal, Jaipal, Pritam and Dharam Pal Have you anything to say about this?

To this the answer was "It is wrong".

Was this an illegality vitiating the trial or was it a curable irregularity having regard to the facts and circumstances of the case? The F.I.R. mentions that Ishwar Singh "gave a thrust with the ballam" to Chauhal Singh which killed him. The eyewitnesses repeat this story. Also, no grievance appears to have been made in the High Court that Ishwar Singh was prejudiced in his defence by being convicted of an offence with which he was not charged. The point was raised for the first time here before us. Considering all the relevant circumstances, we do not think it could be said that the accused was prejudiced in his trial."

33. We note that in view of the statement made by

Sayeed Munir PW-4 in his examination in chief that the

Angocha PW-10/A recovered from the spot was seen by him

around the neck of Mantori two days prior to 4.10.1989,

Sayeed Munir was cross examined by counsel for Mantori

with reference to his said statement in examination in chief.

The cross examination is as noted in para 28 above. Thus,

full opportunity was availed by Mantori to cross examine

Sayeed Munir on the Angocha Ex.PW-10/A. From a perusal

of the impugned decision it is apparent that no grievance

appears to have been made before the learned Trial Judge

of Mantori being prejudiced in her defence.