Jameel @ Kalwa @ Naseem vs State
2009 Latest Caselaw 3448 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Judgment reserved on : August 21, 2009
                                   Judgment delivered on : August 31, 2009


+        CRL. APPEAL NO.413/09


         JAMEEL @ KALWA @ NASEEM                     ..... Appellant
                                Through:Mr.Vimal Puggal, Advocate

                                   versus

         STATE                                          ..... Respondent
                                         Through:Mr.M.N.Dudeja, APP.

         CORAM:
         HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
         HON'BLE MR. JUSTICE AJIT BHARIHOKE


         1.       Whether Reporters of local papers may be       NO
                  allowed to see the judgment?

         2.       To be referred to the Reporter or not ?        NO

         3.       Whether the judgment should be reported        NO
                  in Digest ?


AJIT BHARIHOKE, J.

1. Briefly stated the facts giving rise to this appeal are that on 10 th

March 1996 at about 11.45 AM, complainant Ashok Kumar and

his brother Subhash were robbed of Rs.34,800/- and some

valuables, by four armed robbers at Pushta, Basti Moolchand. In

the process Subhash was shot in his head and expired. One of

the robbers fired at the arm pit of the complainant with a `katta'

and another robber who was subsequently identified as Jameel is

stated to have stabbed the driver of the car PW Ajmer Singh with

a knife. Thereafter, those robbers escaped in the Maruti car of

the complainant bearing No.DL-4C-B-4489. FIR pertaining to the

incident was registered at the Police Station Darya Ganj on the

complaint of PW-1 Ashok Kumar.

2. The car was recovered abandoned on the next day. Accused

Jaipal @ Kabootar was arrested on the basis of a secret

information on 15th March 1996. On interrogation, he made a

disclosure statement about his involvement in the crime and

named Pappu @ Wahab and Gayur as his accomplices. Pursuant

to the disclosure statement, accused Jaipal @ Kabootar led the

police party to Bhajanpura and got his co-accused Pappu @

Wahab and Gayur arrested.

3. Accused Pappu @ Wahab and Gayur also made disclosures.

Pappu @ Wahab in his disclosure statement named accused

Furkan as one of their accomplices. Accused Furkan was later on

arrested. On interrogation, he also made a disclosure statement

wherein he disclosed the names of Nafeez, appellant Jameel and

Meharban besides others as co-conspirators. It was at that

stage, the name of appellant Jameel surfaced as one of the co-

accused in the crime. Accused Furkan, however, in his disclosure

statement did not disclose the parentage of his co-accused

Jameel. He only stated that he was resident of Meerut without

giving the complete address.

4. Accused Jameel, Nafeez and Meharban could not be traced and

arrested as such they were declared proclaimed offenders. After

the completion of the investigation, initial charge sheet was filed

against accused Furkan, Jaipal @ Kabootar, Pappu @ Wahab and

Gayur. In that charge sheet, the appellant, Meharban and Nafeez

were shown in the column No.2 of the charge sheet as

proclaimed offenders. Aforesaid case came to an end by

judgment dated 5th November 2004 resulting in conviction of

Furkan and Pappu @ Wahab and acquittal of Jaipal @ Kabootar

and Gayur.

5. It is stated that on 4th November 2004 at about 4.40 PM on the

basis of a secret information, ASI U.R.Khan of Special Staff Kamla

Market arrested the appellant Jameel with a `katta' loaded with

one cartridge and a case under Section 27 Arms Act was

registered against him being FIR No.497/2004 Police Station

Kamla Market. Further investigation of said case was taken over

by ASI Mansab Ali. Appellant Jameel is stated to have made a

disclosure statement during his interrogation disclosing about his

involvement in one case of murder and four different cases of

robbery including the case in hand. Said information was thus

forwarded to Police Station Darya Ganj vide DD No.5B dated 4 th

November 2004.

6. Inspector Raghubir Prasad, Additional SHO, Police Station Darya

Ganj is stated to have taken over investigation of this case. On

16th November 2004, he formally arrested the appellant Jameel in

the instant case. He applied for holding Test Identification Parade

(for short `TIP') to fix the identity of the appellant as one of the

culprits. TIP was conducted on 23rd November 2004 at Tihar Jail

and in the TIP complainant Ashok PW-1 and Ajmer Singh PW-2

are stated to have identified the appellant Jameel.

7. The learned Additional Sessions Judge, on consideration of

evidence, has found the appellant guilty of offences punishable

under Sections 302, 307 and 394 IPC read with 34 IPC and also

for the offence punishable under Section 392 IPC read with 34

IPC and Section 397 IPC and sentenced him accordingly. Feeling

aggrieved by the impugned judgment of conviction and order on

sentence, appellant Jameel has preferred the instant appeal.

8. Learned counsel for the appellant has submitted that the

impugned judgment of conviction is not sustainable under law

because the learned trial Judge has accepted the testimony of

PW-1 Ashok Kumar complainant and PW-2 Ajmer Singh against

the appellant without testing it in the backdrop of the factual

matrix of the case. He has submitted that there are

circumstances which lead to the inference that the investigation

resulting in supplementary charge sheet against the appellant is

tainted since very inception. Therefore, learned trial court ought

to have considered the possibility of the appellant having been

shown to the witnesses before the TIP or his photographs having

been shown to the witnesses during the period intervening his

arrest in the Arms Act case of Police Station Kamla Market on 4 th

November 2004 and 23rd November 2004 when the TIP was

conducted and extended the benefit of doubt to the appellant.

9. On the other hand, learned counsel for the State has submitted

that the learned trial court has rightly relied upon the testimony

of PW-1 Ashok Kumar complainant and PW-2 Ajmer Singh driver

who were victims of the crime and who have identified the

appellant not only during the trial but also in the TIP conducted

on 23rd November 2004 to fix the identity of the appellant as one

of the robbers. He has submitted that contention of the

appellant that he or his photographs were shown to the

witnesses before the TIP is not acceptable because if that had

been the case, the appellant definitely would have taken this

plea before the concerned who conducted the TIP.

10. It is an admitted case of the prosecution that in the initial charge

sheet, Pappu @ Wahab, Furkan @ Javed, Jaipal @ Kabootar and

Gayur were sent for trial showing the appellant Jameel, Nafeez

and Meharban as proclaimed offenders.

11. As per the prosecution version, the role assigned to the appellant

Jameel is that he stabbed PW-2 Ajmer Singh with a knife. Perusal

of the statement of the complainant recorded in rukka Ex.PW-

2/C, which formed the basis of the registration of the case, show

that in the said statement the complainant had not named the

appellant Jameel and he described him as a person of normal

height aged about 25-30 years. His name surfaced as a co-

conspirator after the arrest of co-accused Furkan who made a

disclosure statement about his involvement. However, co-

accused Furkan in the disclosure statement exhibited as PW-5/A

during the trial of Furkan and others, while disclosing the name

of the appellant Jameel as a co-accused did not give the name of

his father or his complete address. It was only mentioned that he

was a resident of Meerut.

12. It is further the case of the prosecution that on the basis of secret

information, the appellant was arrested with a katta loaded with

one live cartridge at G.B.Road and a case FIR No.497/2004 under

Section 27 Arms Act was registered at P.S. Kamla Market.

During investigation, appellant is stated to have made a

disclosure statement about his involvement in five cases, one

murder case and four pertaining to robbery including the case at

hand. That information given by the appellant was conveyed to

Police Station Darya Ganj vide DD No.58-B dated 5th November

2004 stating that the accused would be produced in the Court for

remand on the same day.

13. Given the aforesaid factual matrix, the dishonesty on the part of

the investigating agency is writ large. It is highly improbable that

the appellant, who as per the prosecution was absconding for the

last 8 ½ years, would on his arrest in an Arms Act case relating to

a different police station would suddenly confess his involvement

in the robbery-cum-murder case as if, he was suffering from the

pangs of conscious. Further, perusal of DD No.58-B(Ex.PW-43/A)

reveals that in the DD report it is mentioned that "the accused

Jameel who has been arrested in case FIR No.497/2004 under

Section 27 Arms Act, Police Station Kamla Market has made a

disclosure about his involvement in respect of case FIR

No.108/1996 under Sections 302,307,392,394,397/34 IPC,

concerned Investigating Officer may be informed that the

accused would be produced in the Court of Shri S.K.Gautam, MM,

Tis Hazari Courts on the same day". It is beyond comprehension

as to how the Special Staff, Kamla Market came to know the FIR

number of the case regarding which the appellant Jameel had

made a purported disclosure. There is no explanation

forthcoming on record. This circumstance raise a strong

suspicion that the arrest of the appellant Jameel in Arms Act case

was stage managed as a prelude to involve him in this case by

creating a story of a disclosure statement having been made by

him about his involvement in the instant case. Aforesaid doubt

against the correctness of prosecution case is further

compounded by the fact that the statement under Section 161

Cr.P.C. of ASI U.R.Khan, the arresting officer in the Arms Act case

of Police Station Kamla Market as per the version of Inspector

Raghubir Prasad (PW-43), the I.O. of this case admittedly bears

the date 4th November 2004, whereas the information about the

disclosure made by the appellant reached Police Station Darya

Ganj vide DD No.58-B(Ex.PW-43/A) dated 5th November 2004.

This circumstance also leads to an inference that even before the

recording of DD Entry No.58-B at the police station, Inspector

Raghubir Prasad Investigating Officer was working in tandem

with ASI U.R.Khan with a view to fix appellant Jameel in this case

on 4th November 2004 when he was shown to have been arrested

in an Arms Act case relating to Special Staff Police Station Kamla

Market.

14. Perusal of Ex.PW-43/A, DD No.58-B dated 5th November 2004

reveals that the information about purported disclosure made by

the appellant Jameel regarding his involvement in the case at

hand reached the Police Station Darya Ganj at 1.10 PM. It was

made clear in the DD report that the Investigating Officer may be

informed that the accused in the Arms Act case would be

produced in the Court of Shri S.K.Gautam, MM, Tis Hazari Courts,

Delhi on 5th November 2004 only. It is strange that despite of

that, the Investigating Officer Inspector Raghubir Prasad did not

approach the Court to seek permission to formally arrest the

appellant Jameel. Instead of moving an application for

conducting TIP of the appellant at the earliest, the Investigating

Officer opted to wait till 16th November 2004 when he moved

application for holding the TIP to fix the identity of the accused.

Considering the fact that the investigation of this case is tainted

because of aforementioned reasons, a possibility cannot be ruled

out that the Investigating Officer might have arranged for the

witnesses PW-1 Ashok Kumar and PW-2 Ajmer Singh to see the

photographs of the appellant before the TIP during the period

w.e.f. 4th November 2004 to 16th November 2004. We, therefore,

do not find it safe to rely upon the testimony of aforesaid

witnesses regarding identification of the appellant as one of the

robbers who stabbed PW-2 Ajmer Singh in the process of

robbery, as the TIP was held around 8 ½ years after the

occurrence.

15. Another circumstance going against the prosecution is that the

case under Section 27 Arm Act of Police Station Kamla Market,

which formed the foundation of this case, has admittedly resulted

in acquittal. Not only this, ASI U.R.Khan, the arresting officer of

the aforesaid case under Arms Act was also associated with the

initial investigation of the case in hand which resulted in filing of

the initial charge sheet against other four accused persons.

Therefore, there is a strong possibility that ASI U.R. Khan and the

Investigating Officer Raghubir Prasad might have joined hands to

falsely involve the appellant in this case.

16. In view of the aforesaid, we find that the investigation of this

case since very inception is tainted and a possibility of the

Investigating Officer having shown the photographs of the

appellant to the witnesses before the TIP or before their

examination in Court cannot be ruled out. Thus, we do not deem

it safe to sustain the impugned judgment of conviction.

17. The appeal is accordingly allowed. The impugned judgment of

conviction and order on sentence against the appellant Jameel

are, therefore, set aside. The appellant Jameel @ Kalwa @

Naseem is reported to be in custody. He be released forthwith, if

not wanted in any other case.

AJIT BHARIHOKE, J.

August 31, 2009                                 SANJAY KISHAN KAUL, J.
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