Mehboob @ Mehmood vs State
2009 Latest Caselaw 3299 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on: 12th August, 2009
                     Judgment Delivered on: 21st August, 2009

+                             CRL.A.363/2001

       MEHBOOB @ MEHMOOD                                 ..... Appellant
                   Through:                  Mr. Rajesh Mahajan, Adv.

                                     versus

       STATE                                            ..... Respondent
                              Through:       Mr. Pawan Sharma, APP.


                              CRL.A.171/2001

       SHAHABUDDIN                                        ..... Appellant
                              Through:       Mr. Rajesh Mahajan, Adv.

                                     versus

       STATE                                            ..... Respondent
                              Through:       Mr. Pawan Sharma, APP.


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

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

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

    3. Whether the judgment should be reported in the
       Digest?                                   Yes


INDERMEET KAUR, J.

1. Appellant Mehboob has been convicted for

having committed murder of Dev Raj @ Dabbu as also for

having caused the disappearance of the evidence of the

crime i.e. of concealing the dead body of Dev Raj @

Dabbu with the intention to screen himself from

punishment. The co-appellant, Shahabuddin, father of

Mehboob has been convicted for the offence punishable

under Section 201 IPC i.e. for concealing the dead body of

Dev Raj with the intention to screen his son from

punishment. Appellant Mehboob has been sentenced to

undergo life imprisonment as also a fine of Rs.5000/-in

default of payment of fine, SI for two years for the offence

under Section 302 IPC; for the offence under section 201

IPC he has been sentenced to undergo RI for two years

and a fine of Rs.1000/- in default of payment of fine SI for

two months. The co-appellant Shahabuddin has been

sentenced to undergo RI for two years and a fine of

Rs.5000/-, in default of payment of fine SI for two months.

2. On 14.7.1995, at 9.30 AM, D.D.No.5A was

recorded in Police Station Rohini about a murder having

taken place at shop number G-20/139, Sector-7, Rohini.

The DD was marked to SI Gian Singh PW-17, who along

with Const.Sadhu Ram and Const.Arvind Kumar PW-15

reached the spot, where they met Mohd.Anwar PW-16, the

owner of a barber shop being run by him under the name

and style `Prince Hair Dressers'.

3. Mohd.Anwar PW-16, made a statement Ex.PW-

16/A which formed the basis of the rukka. In his

statement PW-16 disclosed that he is a resident of house

No.G-20, 139, C-20. Sector - Rohini; and that he was

running a barber shop where he had employed two

barbers; namely, Mehboob and Fareed. That Fareed had

left for his village on 10.5.1995and Mehboob was alone in

the shop and used to sleep there. On the intervening

night of 13th and 14th July 1995, at about 10.30 PM he left

the shop for his house, leaving Mehboob in the shop.

Next morning i.e. on 14.7.1995, at about 9.15 PM, when

he reached his shop, he saw that one of the two shutters

of the shop was half open and on entering the shop he

saw a dead body lying on the floor without its head and

minus the male organ. He identified the dead body as

that of his employee Mehboob.

4. The rukka Ex.PW-17/A was endorsed on this

statement of PW-16 and sent through Const.Sadhu Ram

on the basis of which the formal FIR Ex.PW-13/A was

recorded by lady H.C. Sharda PW-13.

5. Shahabuddin the father of Mehboob was called

at the spot and he identified the dead body as that of his

son Mehboob. Investigation was thereafter handed over

to Inspector Ram Chander PW-12 who also reached the

spot. A pair of chappals and a black thread lying near the

dead body alongwith the blood stained dari and the gadda

were seized from the spot. The dead body was wearing a

light green coloured pant and from its pocket, a blue

coloured rexene purse was taken out which contained

three passport size photographs of Mehboob, besides

rupees four. The same were also seized and sealed.

Photographer and the crime team were summoned.

Sh.Sagar PW-23, took photographs of the blood smeared

dead body which was without a head and the penis.

6. During investigation the investigating officer

met Tilak Raj PW-6 who ran an eatery (dhaba), near the

shop of Mohd.Anwar. He informed that Mehboob used to

take food in his dhaba and that Dev Raj his uncle's son

were last seen together by him at 11.00 PM on 13.7.1995

when both of them had left his dhaba to view a picture at

the shop of Mehboob which was also the place where

Mehboob used to sleep at night.

7. On 15.7.1995, i.e. on the following day the post

mortem was conducted by Dr.Ashok Jaiswal PW-7 who had

noted two external injuries on the body :-

"(i) There was dismemberment of head and neck from the rest of the body at the label of C-7 - vertebra exposing soft tissues and vesscles at root of neck, both revealing angular cuts in more than one direction with no staining of skin margins which was smoothly cut with few angular cuts at places. No blood or clot seen in the structure found divided. Both oesophagus and Trachea were found to be acutely divided. The body of cervical 7 and thoracic one vertebra showed multiple superficial linear cuts. The spinal cord was found to be acutely cut at C-7 level. Tissue around were devoid of any blood clot.

(ii) Penis was found to be missing from its root exposing oval to circular area at its based 1- 1/2 x 1" Margins clean cuts devoid of blood staining. Both testicles were exposed. No blood clot was seen around them. Apart of right spermatic cord of length 2.5cm. seeing handing out with a regular ends. The scrotal sac was missing in front and the part remaining irregular margins devoid of blood. No other external mark of injury of violence seen on the body."

8. The opinion on the cause of death was kept

pending as the report of viscera was yet awaited; the doctor

had opined that injuries no.1 and 2 were post mortem in

nature and caused by a sharp object. Time since death was

opined about 36 hours i.e. relating back to 1.00 to 2.00 PM on

the intervening night of 13-14.7.1995. The dead body was

thereafter handed over to Shahabuddin co-appellant vide

receipt Ex.PW-17/B believing it to be the dead body of his son

Mehboob.

9. On 15.5.1995 SI Kuldeep Singh PW-18 who had

been entrusted with the investigation of this case by PW-12

visited Mithapur, District Meerut in connection with the present

case as co-appellant Shahbuddin has misled them into

believing that this murder could have been committed by one

Ram Pal Singh; enquiry, however, did not reveal any role of

Rampal Singh.

10. On 17.7.1995 PW-18 visited the premises i.e. B-

3/91, Sector-6, Rohini where he met Tilak Raj PW-6 who was in

search of his cousin Dev Raj @ Dabbu who was reported

missing since 13.7.1995. Dev Raj @ Dabbu used to work in

the dhaba of PW-6. They proceeded to the place of

Shahabuddin who on inquiry stated that he was fed up with

the whole matter and would like to disclose the real truth; at

this stage Shahabuddin disclosed that his son Mehboob was

alive and the dead body which had been recovered from the

barber shop was not of Mehboob but of Dev Raj @ Dabbu. PW-

18 recorded the disclosure statement of Shahabuddin Ex. PW-

6/E and arrested him vide memo Ex.PW-18/A. Shahabuddin

disclosed that his son could be apprehended from the Delhi

Railway Station; from Nizamuddin Railway Station at platform

no.1 appellant Mehboob was apprehended and interrogated.

His disclosure statement Ex.PW-18/B was recorded. He

disclosed therein that he had hidden the head and penis of

deceased Dev Raj @ Dabbu in the bushes in Sector-6, Rohini

and he could get the same recovered as also the Ustra which

had been used by him in the commission of the crime. He

further disclosed that the clothes worn by him as also the pant

of Dev Raj @ Dabbu which he had concealed in his sister's

house could also be recovered by him.

11. On the same day i.e. on 17.7.1995 appellant

Mehboob led the police party comprising of PW-18, H.C. Raj

Kumar, Const.Katar Singh and Tilak Raj, PW-6, to Sector-6,

Rohini where they were also joined by Daya Ram PW-4 and

Tilak Ram PW-5. From the bushes near Shiva Road at Sector-6

Rohini Mehboob got a white-coloured plastic bag recovered,

containing a male head and a penis; a cloth was tied around

the neck of the head and the penis was wrapped in an

underwear and a baniyan. On seeing the head PW-4 and PW-

5 who were cousin brothers of Dev Raj @ Dabbu identified the

same to be that of their missing cousin Dev Raj @ Dabbu. The

said articles were taken into possession vide memo Ex.PW-4/D.

12. On 18.7.1995 investigation of this case was handed

over to Inspector S.S. Ramela PW-20. On 19.7.1995 PW-20,

PW-18, Moti Ram PW-3 were led by the appellant Mehboob to

Brahampur Mohalla Khhattonwali in Meerut where he pointed

out the house of his sister and from inside the house he got a

blood-stained pant and shirt recovered which were kept below

a diwan in the room of the house; the grey coloured pant

contained an Ustra without a blade which was taken into

possession vide memo Ex.PW-3/B; the sketch of the Ustra

Ex.PW-3/A was prepared; the blood stained shirt and the pant

were also taken into possession.

13. On 20.7.1995 PW-20 visited the office of the ADM

Meerut and under his order Ex.PW-19/A the Tehsildar Manish

Kumar Sharma PW-10 joined by Raja Ram Verma PW-2 and SI

Layak Singh Yadav PW-21 member of the U.P.Police, reached

the grave yard of Village Meethapur, Meerut. At the instance

of accused Shahabuddin a grave was dug and from there a

dead body was taken out by Mangal Singh PW-22; the body

was wrapped in a white cloth and the same was seized vide

memo Ex. PW-4/C. The dead body was identified at that time

by PW-4 and PW-5 as that of their deceased brother Dev Raj @

Dabbu.

14. On 21.7.1995 the dead body along with the severed

head and the severed male penis were again taken to the

doctor PW-7 for his opinion who did not think it fit to conduct a

second post mortem on the said dead body; he opined that the

head and the penis belong to the same dead body as the level

of the cut of the dismembered parts i.e. the head and the

penis matched and corresponded in manner and level; the

cause of death was again kept pending as the report of the

viscera was yet awaited. This second report is Ex.PW-7/B.

15. On 24.8.1995 PW-7 examined the weapon of

offence i.e. a razor with a metallic blade and plastic handle

sent to him by ASI Gian Singh PW-17; on examination it was

opined that dismemberment of head and the external

genetilia of the deceased; both post mortem injuries could

have been caused by this sharp weapon. This report is Ex.PW-

7/C.

16. The trial Judge vide its impugned judgment had

convicted Mehboob for the murder of Dev Raj @ Dabbu; he

had also been convicted along with his father Shahabuddin for

having caused disappearance of the evidence of the offence

by concealing the dead body of Dev Raj @ Dabbu and of

having given the impression that the dead body was that of

Mehboob.

17. On behalf of the appellant Mehboob, it has been

argued that the testimony of PW-6 cannot be relied upon as

there are material improvements made by him in Court qua his

first version recorded under Section 161 Cr.P.C. Ex.PW-6/A,

thus belying the last-seen theory. It was urged that the razor

(ustra) had been tampered with inasmuch as the recovery

memo Ex.PW-3/B records that there is no blade in the razor

but the razor sent to the doctor who conducted the post-

mortem had a blade inserted inside the razor. Attention has

also been drawn to the post mortem report Ex.PW-7/A which

had opined that injury no.1 and 2 are post mortem in nature; it

is argued that the opinion on the cause of death was yet

awaited and in the absence of which it cannot conclusively be

said that the death of Dev Raj was homicidal. It was urged

that while examining appellant Mehboob under Section 313

Cr.P.C., the evidence pertaining to last seen with the deceased

was not put to Mehboob and hence the same has to be

excluded while considering the incriminating evidence against

Mehboob. It has lastly been argued that at best the offence

under Section 201 of the IPC is made out for the appellant

having disguised the dead body of Dev Raj @ Dabbu to make it

look as if it was his own; he cannot however be connected with

the murder of Dev Raj @ Dabbu. There is no serious

challenge to the conviction of co-accused Shahabuddin.

18. We have perused the record; appreciated the

evidence and taken note of the arguments advanced by the

learned defence counsel. We are of the unhesitating opinion

that the judgment of the trial Court call for no interference.

19. Tilak Raj PW-6 has deposed on the circumstance of

having last seen the accused Mehboob in the company of Dev

Raj @ Dabbu. He has on oath deposed that he is running a

dhaba and deceased Dev Raj @ Dabbu used to work with him;

he was his cousin. Accused Mehboob used to come to his

hotel for eating food; Mehboob was working in the shop of

Anwar, a barber and he used to sleep in the shop at night. On

the 13th day about three years ago (in the year 1995) at 11.00

PM Mehboob had come to his hotel for taking food and

thereafter he had taken Dev Raj @ Dabbu to his shop to see a

picture; Dev Raj @ Dabbu did not return back at night. Dev

Raj @ Dabbu while going with Mehboob had not taken food

and stated that he would take his meal on returning after

seeing the picture. On the following morning he went to the

shop of Mehboob where he saw a dead body lying, which he

identified as that of Mehboob as it was wearing the same

clothes as Mehboob was wearing when he had come to his

shop on the previous day for eating food. A pair of chappals

belonging to his cousin Dev Raj @ Dabbu were also found lying

there. PW-6 has further deposed that his cousin Dev Raj @

Dabbu was reported missing from 13th night and he was not

traceable right up to 17.7.1995 despite his best efforts; on

17.7.1995 he met some police official who told him that

Mehboob was alive and he could be arrested from the

Nizamuddin Railway Station.

20. PW-6 was subjected to a lengthy cross-examination

and he was confronted with his version Ex.PW-6/A which he

had given to the police i.e. his statement recorded under

Section 161 Cr.P.C. In his cross-examination, it has come on

record that in Ex.PW-6/A there was no mention that Mehboob

had visited his hotel at 11.00 PM on the night of 13-14.7.1995

and after taking food he had taken Dev Raj @ Dabbu to his

shop to see a picture and that Dev Raj @ Dabbu did not return

at night from the shop of Mehboob.

21. From this version, it is clear that this part of the

testimony of PW-6 on oath in Court is an improvement qua his

first version before Investigating Officer and has to be ignored.

PW-6 has categorically on oath stated that Dev Raj @ Dabbu

while going with Mehboob had not taken his food and had

stated that he would take his meal after seeing the picture.

This part of his statement has not been the subject matter of

any cross-examination, and thus must be deemed to be

accepted. Placing reliance upon this version, it has been

established that Dev Raj @ Dabbu had gone with Mehboob on

13.7.1995 without taking his food and had stated that he

would take his meal on his return after seeing the picture;

thereby proving that both Dev Raj @ Dabbu and Mehboob had

left together on the night of 13.7.1995. 22. In a

judgment reported in Bal Kishan Vs. State & Anr. 1977 Crl. J.

410, it has been held by this Court that if there is a failure to

cross-examine a witness in respect of a material assertion, it is

to be presumed that that assertion stands admitted.

23. Version of SI Kuldeep Singh PW-18 is also relevant

in this context. He has deposed that on 17.7.1995 he had

joined investigation and had gone to B-3/91, Sector-6, Rohini

where he met Tilak Raj; he further deposed that he had

recorded the statements of Tilak Raj and Const.Kattar Singh;

thus apart from the statement Ex.PW-6/A recorded on

14.7.1995 there was yet another statement recorded by the

Investigating Officer of PW-6 Tilak Raj which was on 17.7.1995

and which had not been confronted to PW-6; be that as it

may; even while ignoring this submission of the learned

counsel for the State; the unconfronted deposition of PW-6 on

oath is by itself sufficient to establish that accused Mehboob

and the deceased Dev Raj were last seen by PW-6 on the

intervening night of 13-14.7.1995 when Mehboob had had his

dinner but Dev Raj was yet to have it; they had left together

for seeing a movie.

24. Sunder PW-8 has also on oath testified that

Mehboob was working in the barber shop of Anwar; Dev Raj @

Dabbu used to work in the hotel of Tilak Raj and Dev Raj

sometimes used to see picture at the shop of Anwar.

25. Mohd. Anwar PW-16 was the owner of the barber

shop where Mehboob used to work. He had deposed that both

his employees Mehboob and Fareed used to sleep in the shop

after the day's work; Fareed had gone to his village on

10.5.1995. On 13.7.1995 at about 10.00-10.30 PM he had left

the shop after leaving Mehboob there. On the next morning

i.e. on 14.7.1995 at about 9.00-9.15 PM he noted that one of

the two shutters of his shop was half open; on opening the

shop he saw a dead body lying on the ground covered with a

cloth; on removing the cloth he saw that the dead body was

headless and its male organ had also been severed. The

police was informed. The dead body was wearing a chhalla

and the purse in the pant pocket contained three passport size

photographs of Mehboob; the dead body was also wearing the

same clothes which Mehboob was wearing on 13.7.1995. On

this basis PW-16 had identified this dead body as that of

Mehboob.

26. This version of PW-16 had led the investigation into

motion. Investigating Agency believing that the dead body

recovered from the barber shop was that of Mebhoob, the

same was handed over to his father Shahabuddin who had

also reached the spot. The post mortem Ex.PW-7/A had opined

that the external injury no.1 and 2 i.e. the severance of the

head and severance of the male organ were both post mortem

injuries but the cause of death had been kept pending.

27. On 17.7.1995 Shahabuddin had made a disclosure

statement in the presence of PW-18 SI Kuldeep Singh. Tilak

Raj PW-6 was also present. Shahabuddin had disclosed that

his son Mehboob was alive but in conspiracy with him he had

identified the dead body as that of his son Mehboob which was

actually of Dev Raj @ Dabbu. On pointing out of Shahabuddin

accused Mehboob had thereafter been arrested.

28. On the same day i.e. 17.7.1995, PW-6 along with

police party, joined by PW-4 and PW-5, both cousins of Dev

Raj @ Dabbu, led by Mehboob reached Sector-7, Ambedkar

Park, from where near the bushes he retrieved a white bag

containing a head and a penis. On seeing the head, PW-4 and

PW-5, recognized this head as that of their cousin Dev Raj @

Dabbu. This recovery memo Ex.PW-4/B had been attested by

PW-4 and PW-5 and both the said witnesses besides the police

officials, PW-17 and PW-18, have corroborated one another on

oath in Court in this regard.

29. The disclosure statement of Shahabuddin Ex.PW-

6/C had further led to the retrieval of the dead body of Dev

Raj @ Dabbu which he had buried in the jungles of Meethapur;

on 20.7.1995 police party headed by PW-20 had reached the

graveyard of village Meethapur, Meerut where in the presence

of PW-20, PW-10, PW-21, PW-4 and PW-5 the dead body was

retrieved from the graveyard by PW-22; vide memo Ex.PW-4/C.

Ex.PW-4/C has been attested by PW-4, PW-5, cousins of the

deceased Dev Raj as also by PW-21, a member of the

U.P.Police, PW-10, the Tehsildar and all have corroborated one

another in their testimony on oath in Court. This dead body

was without a head and minus the male organ; dead body was

identified by PW-4 and PW-5 as that of their deceased cousin

Dev Raj @ Dabbu.

30. On 21.7.1995 PW-7 had vide his report Ex.PW-7/B

opined that this head and penis belong to the same dead body

which had been the subject matter of his post mortem.

31. Indeed, the seizure memo Ex.PW-3/B and the

sketch Ex.PW-3/A of the razor (ustra) shows the same without

any blade and the testimony of the doctor who conducted the

post-mortem clearly shows that the razor sent to him for

opinion had a blade inside. It is apparent that the overzealous

investigating officer has tampered with evidence and hence

we do not rely upon said recovery.

32. The version of the prosecution, however, does not

suffer if evidence pertaining to the razor is discarded, as

admittedly, the injuries which had been caused by virtue of

this weapon i.e. the severance of the head and the penis were

both post mortem injuries and were not the cause of death of

the deceased.

33. The defence counsel has pointed out that the

prosecution has failed to prove that the death was homicidal

as the doctor had not given any conclusive opinion on the

cause of death. It is not the defence that Dev Raj @ Dabbu

had died a natural death or committed suicide; he had

obviously been killed by some person; the question to be

determined by this Court is as to who this person was. In this

context, relevant it would be to state that apart from the

aforenoted evidence proved, the blood stained gadda and dari

which had been seized from the spot on which the dead body

was lying also detected blood group `B' which was the blood

group of the deceased and is evident from the CFSL report

Ex.PW-20/D; this piece of evidence establishes that Dev Raj @

Dabbu had been killed on this gadda and dari which was the

bedding of Mehboob lying in the shop where he used to sleep.

34. On the question of motive, it can to some extent be

gathered from the version of PW-18. On 15.7.1995, PW-18 had

gone to Meerut to make enquiry about Ram Pal Singh as the

investigation had been misled by Shahabuddin that Ram Pal

could be the culprit; this enquiry had revealed that in the year

1995 Kuldeep son of Ram Pal had been murdered by Mehboob

and Mehboob was facing trial in Meerut in this connection.

This could be probablized as the reason why Shahabuddin had

misdirected the investigation towards Ram Pal. The dead body

was also disguised by Mehboob to look like his own body; it

was wearing the apparel of Mehboob; and the wallet in its pant

pocket had his photographs; clearly with an intention to

mislead that he i.e. Mehboob had died; he had wanted to feign

his death; possibly to escape the legal consequences of the

murder case pending against him. The submission that motive

to a large extent is established, thus, carries force.

35. It is no doubt true that while examining Mehboob

under Section 313 Cr.P.C., the incriminating evidence

pertaining to Mehboob being last seen in the company of the

deceased has not been put to Mehboob, but the question

arises whether on said account the said evidence of last seen

has to be ignored. We note that PW-6 who claims to have last

seen the deceased and Mehboob leave his dhaba at 11:00 PM

was cross examined and his testimony on said point has not

even been challenged. The impugned decision shows that this

point was not even urged before the learned Trial Judge. In

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

State of UP it was held that where no prejudice is shown in the

defence and the point is urged for the first time in appeal

pertaining to a relevant circumstance not put to the accused,

the same would be an irregularity and the incriminating

circumstance can be considered while evaluating the

evidence.

36. Let us now examine the cumulative effect of the

evidence gathered and proved by the prosecution.

37. Prosecution has been able to establish that on the

intervening night of 13-14.7.1995 accused Mehboob and the

deceased were last seen in the company of one another and

they had gone to the barber shop of Mehboob to see a picture

where Mehboob used to sleep. On the following day a

headless dead body minus its male organ was found lying; the

same was identified as that of Mehboob as it was wearing the

apparel as that worn by Mehboob on the previous night; later

on it was revealed that the dead body was of Dev Raj @ Dabbu

and not of Mehboob. Mehboob had with a malafide intent put

his own clothes on the dead body of Dev Raj @ Dabbu giving

the impression that it was his dead body; thereafter Mehboob

had disappeared from the scene. He was arrested only on

17.7.1995 at the pointing out of his father after he i.e.

Shahabuddin had blurted out the truth and revealed that his

son Mehboob was still alive. On the same day at the instance

of Mehboob a male head and a penis had been recovered.

This head had been identified by the relations of Dev Raj @

Dabbu as that of their cousin brother. Three days thereafter

i.e. on 20.7.1995 Shahabuddin had got the headless dead

body of Dev Raj @ Dabbu retrieved from the graveyard at

Meethapur, Meerut where he had buried it. The post mortem

doctor had opined that the head and the penis which had been

sent to him along with the headless dead body for the second

time matched with one another and this head and penis

belong to the same body thereby establishing that Dev Raj @

Dabbu had been killed at the `Prince Hair Dresser'; where the

dead body has been found. There is no evidence of any third

party entering this shop in this intervening period from 11.00

PM up to 9.15 AM i.e. the following morning when Mohd. Anwar

saw a dead body lying in his shop; there is no explanation from

Mehboob as to how and in what manner Dev Raj had died;

post mortem report had also opined the time of death to be

between 1.00-2.00 AM in the intervening night of 13-

14.7.1995; Mehboob was also missing; motive can also be

gauged.

38. All these factors cumulatively establish that Dev Raj

@ Dabbu was murdered by none else than the appellant

Mehboob; the fingers of guilt clearly point towards him. The

conspiracy of the father and son i.e. Shahabuddin and

Mehboob to destroy the evidence of the death of Dev Raj by

giving an impression that the person who had died was

Mehboob has also been well established.

39. The judgment of trial Court suffers from no

infirmity; both the appeals are without any merit; they are

dismissed. Accused are on bail. Their surety bonds and bail

bonds are cancelled. They are directed to surrender

themselves and serve the remaining sentence.

(INDERMEET KAUR) JUDGE

(PRADEEP NANDRAJOG) JUDGE August 21, 2009 nandan