Aslam vs State
2009 Latest Caselaw 341 Del

*                      IN THE HIGH COURT OF DELHI


                           Judgment reserved on : January 27, 2009
%                          Judgment delivered on : February 02, 2009


+                                  CRL.A.915/2004

       ASLAM                                           ..... Appellant
                       Through:    Mr.Rajesh Mahajan, Advocate.

                                   versus

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


CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH

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.


: PRADEEP NANDRAJOG, J.

1. This is a case of false implication. The police has

contrived to fabricate evidence and unfortunately had

succeeded in pulling wool over the eyes of the learned Trial

Judge, who has chosen to proceed on the assumption that the

police officers always tell the truth and that they never

manipulate witnesses. Lulled into a slumber, the learned Trial

Judge has ignored material contradictions and variations in the

deposition of the witnesses of the prosecution. The learned

Trial Judge has failed to note the inherent improbability of the

nature of evidence sought to be brought on record through the

testimonies of Ram Avtar PW-17, as also Bhola PW-11, who, on

being declared hostile were cross-examined at length by the

learned Public Prosecutor.

2. As per the charge-sheet filed by the prosecution,

the case of the prosecution was that deceased Shamima was

offering herself for sex in lieu of monetary consideration and

that Ram Avtar PW-17 was acting as a pimp. That on 29th

January 2001 the appellant had a desire to have sexual

intercourse with a prostitute and went to Ram Avtar for a

prostitute to be supplied to him and that Ram Avtar contacted

the deceased Shamima who was in touch with Ram Avtar so

that he could find customers for her. That accordingly, the

deceased went along with the appellant, to have sexual

intercourse, at the tenanted house of the appellant i.e. A-326

Buddha Market, Mandawali, Zedi Market, Delhi. That it was

agreed by the deceased that she would get Rs.200/- after

satisfying the desire of the appellant and after she did so, she

demanded Rs.300/-, which sum was refused to be paid by the

appellant. The deceased threatened the appellant that she

would implicate him in an offence of rape. At that, the

appellant strangulated her and threw her body in the house of

Nasir PW-3, being house No.B-149 Chand Masjid, Mandawali,

Delhi. He did so by the mid-night of 30.1.2001 and went to the

house of Rajaram PW-2 and used Rajaram‟s phone to ring up

the police at 100 and disclosing himself to be Shankar,

informed the police that a quarrel had taken place at Chand

Masjid. The police reached Chand Masjid and found that no

quarrel had taken place but noted the door of a house half

open and the inquisitive police officials entered through the

door and saw a dead body of a female inside the room, which

happened to be a toilet. The news spread in the locality and

the body was identified as that of Shamima, resident of House

No.B-235, Gali No.3, Near Memdi Masjid, Mandawali, New

Delhi. Rajaram PW-2, had also received information of a dead

body being found and police arriving at the spot on hearing

that a fight had taken place at Chand Masjid. He knew the

appellant, who was from the same village in Bihar i.e. the

native village of Rajaram and told the police that the appellant

had rung up the police from his house wrongly disclosing his

name to be Shanker as the informant. Obviously, the

suspicion fell on the appellant who was apprehended by the

police on 1.2.2001. According to the charge-sheet, the

appellant made a disclosure statement Ex.PW-3/B and

confessed to the crime after disclosing how he had

promiscuous sex with the victim and the circumstances under

which he was compelled to kill her. He disclosed that when

the deceased resisted him as he was strangulating her, a glass

bangle worn by the deceased broke and an ear top fell in the

room where the incident took place. He offered to have the

same got recovered and led the police to his house where-

from an ear top of the deceased and pieces of broken bangle

were recovered on 1.2.2001. It was the case of the

prosecution that thereafter, on 4.2.2001, the appellant got

recovered a chunni used by him to strangulate the deceased

from a suitcase in his house.

3. Needless to state, police swung into action when at

3.40 AM on 30.1.2001 a telephonic message was received at

the PCR from a person who disclosed his name as Shanker,

informing that a quarrel is going on at Chand Masjid,

Mandawali.

4. The PCR flashed a message to the police station

concerned. ASI Brij Pal Singh PW-20, accompanied by SI DK

Tejwan PW-22, reached Chand Masjid, Mandawali but did not

notice any quarrel. But, noting the door of a house half open

and inquisitively entering through the door, stumbled upon the

dead body of a woman lying inside the toilet. The house

happened to be that of Nasir PW-3. Its number is B-149,

Chand Masjid, Mandawali.

5. The news spread in the locality. People gathered.

On the dead body being found in the house of Nasir, Shazad Ali

PW-5, who was the Pradhan of the area was called. Shazad Ali

stated that possibly the deceased was Shamima, sister of

Munni. Munni is actually Anwari Begum PW-1, who was

summoned and reached the spot at around 4.00 AM and

identified that the dead body was that of her sister Shamima.

Her statement Ex.PW-1/A was recorded by Inspector GS

Randhawa PW-26, the SHO of the police station, who had

reached in the meanwhile. He made an endorsement thereon

and forwarded the same for registration of the FIR through

Inspector BP Sharma PW-23. The FIR was recorded at the

police station by HC Kusum Pal PW-19 at 8.50 AM.

6. The dead body of Shamima was sent to Lal Bahadur

Shastri Govt. Hospital where Dr.L.C.Gupta PW-13, conducted

post-mortem on 31.1.2001 and gave his report Ex.PW-13/A.

He recorded therein that there were ligature marks and

abrasions on the mid one-third neck. Nail scratch abrasions

were noted by him on the right side of the mid one-third neck.

He opined that the deceased died due to asphyxia resulting

from strangulation by means of ligature material which is

sufficient to cause death in the ordinary course of nature.

7. Being relevant to note, in relation to the testimony

of the husband of the deceased Kammuddin PW-8,

Dr.L.C.Gupta PW-13 noted on the MLC that the deceased was

poorly nourished and was severely anaemic.

8. In his statement recorded under Section 161 Cr.P.C.

Rajaram PW-2, disclosed to the police that the appellant had

come to his house and rung up the police to give the

information which resulted in the police reaching the spot and

had wrongly disclosed his name to be Shanker. The police set

about to apprehend the appellant, who as per the police,

voluntarily surrendered at the police station on 1.2.2001 and

made a confessional statement Ex.PW-3/B before the SHO

Inspector GS Randhawa which was recorded by SI DK Tejwan

PW-22.

9. In the meanwhile, after the post-mortem of the

deceased was conducted and her body was handed over to her

husband Kamuddin PW-8, he took the dead body to the house

for burial and bathed the body and removed a chain and one

ear top from the dead body. A glass bangle worn by the

deceased got broken and pieces thereof were collected by

him. The police seized vide seizure memo Ex.PW-5/2 only the

chain and the pieces of the broken bangle.

10. Since Ex.PW-3/B, the disclosure statement of the

appellant, disclosed that after committing sexual intercourse

with the deceased and on the issue of money a fight erupting

and he having strangulated her; in the process a glass bangle

of the deceased getting broken as also an ear top falling in the

room where the act was committed, he accompanied the

police to the room in question. At the spot, vide seizure memo

Ex.PW-5/1, an ear top as also broken pieces of glass bangle

were recovered, ostensibly at the pointing out of the appellant.

11. Three days later, on 4.2.2001, the appellant again

took the police to his room and from a suitcase therein got

recovered a chunni which was seized vide seizure memo

Ex.PW-6/1. The chunni is stated to be the weapon of offence.

12. Bhola PW-11, was a person contacted by the police.

He is a vagabond lad aged 12 years when he deposed in the

Court on 19.9.2002. He ostensibly told the police as recorded

in his statement under Section 161 Cr.P.C. that on 29.1.2001

he had gone to the room of the appellant as he knew the

appellant and that the appellant opened the door when he

knocked. He saw a woman lying on the cot crying „bachao‟.

He ostensibly told the police that the appellant told him to run

away and thereafter he closed the door. He claimed to have

peeped from the gap between the door and the floor and saw

that Aslam sat on top of the woman and strangulated her to

death. After that, Aslam opened the door and on seeing him

standing, gave him Rs.2/- and asked him to bring a deck. That

he ran away thereafter.

13. That the deceased was supplied to the appellant,

was as per the statement of Ram Avtar PW-17, a photographer

by profession; statement being recorded under Section 161

Cr.P.C. He ostensibly told the police that the deceased had told

him that her husband was not looking after her and she

needed money for sustenance and offered herself for sex. He

used to find customers for her and that on 29.1.2001 he

supplied her to the appellant for the sexual gratification of the

appellant.

14. Armed with the afore-noted witnesses and hoping

that the witnesses would support the case of the prosecution

and pinning its case on the recovery of one ear top of the

deceased and broken pieces of a bangle of the deceased from

the room of the appellant and hoping that her husband would

corroborate them that indeed the said ear top was that of his

wife and that the broken bangle pieces were a part of the

bangles worn by his wife, the prosecution proceeded to file the

charge-sheet, indicting the appellant with the offence of

murdering Shamima.

15. The most incriminating evidence against the

appellant which was sought to be brought on record was the

alleged recovery of the ear top and the broken pieces of glass

bangle recovered from his room.

16. While deposing as the witness of the prosecution,

Kamuddin, husband of the deceased who was examined as

PW-8 deposed as follows:-

"After post-mortem of the dead body the dead body of my wife was handed over to me on 31.1.2001, vide memo Ex.PW-1/B which bears my signatures at point B. I took the dead body at my house and bathed the dead body. At that time I had removed a chain from her neck which was of white metal and a bangle from the left hand. The bangle broke into three pieces while I was removing the same from her hand. I had also removed one top from her left ear. I handed over the same to the IO of the case who had taken the same into possession after sealing the same into a parcel with the seal GSR vide memo Ex.PW-5/2 which bears my signature at point B."

17. With reference to the recovery of an ear top from

the room of the appellant, he went on to depose that after the

appellant made a disclosure statement before the police, he

accompanied the police party to the residence of the appellant

and that :

"Near the drum an ear top was lying. Aslam picked up that top and handed over the same to the police. I had identified that top as the top of my wife which she used

to wear in her ears. Near the folding bed, 3 - 4 pieces of broken bangles were lying. Those were also of white colour, and was the same pieces of bangle which my wife used to wear in her hands. The pieces of broken bangles which were recovered from the room of the accused at my instance and the pieces of bangles which were broken which I had produced to the police, in the above said manner were the same. The police had seized the above said recovered top and pieces of bangle in a parcel with the seal of GSR and taken into possession vide memo Ex.PW-5/1. My statement was recorded and I was discharged."

18. Surprisingly enough, Ex.PW-5/2, the seizure memo

omits the seizure of the ear top. It only records seizure and

sealing of a chain and three pieces of glass bangle.

19. Deposing as PW-26 Inspector GS Randhawa, with

respect to the testimony of the chain and the pieces of broken

bangle handed over by Kamuddin to him deposed as under:-

"Thereafter we went to the house of Kamuddin the husband of the deceased. Kamuddin had produced a chain Ex.P-2 and broken bangle Ex.P-3 which he had removed from the dead body of his wife deceased Shamima. I seized the above said chain and broken pieces in the parcel and sealed the same with my seal GSR and taken into possession vide memo Ex.PW-5/2. Seal after use was handed over to PW Zaidi. Kamuddin had told me that there was one top in the ear of his deceased wife and while they were bathing the dead body, the said top fell down in a nali and could not be traced out. I recorded his statement in this regard under Section 161 Cr.P.C. I had also recorded statements of other witnesses. Thereafter we returned to the PS and deposited the case property with the malkhana mohrar."

20. It is relevant to note that as per PW-26, one ear top

of the deceased, as told to him by Kamuddin, had fallen down

the drain and could not be traced. As per Kamuddin he had

noticed only one ear top on the left ear of his wife which he

handed over to the police. It is relevant to note that in the

seizure memo Ex.PW-5/2 there is no mention of the ear top

being seized. It is apparent that one ear top came in the

possession of SHO GS Randhawa, which obviously was planted

at the spot. It is relevant to note that the house of the

deceased was searched on 1.2.2001. Kamuddin had handed

over the ear top, the chain of the deceased and the broken

pieces of bangle of the deceased to the police on 31.1.2001.

21. What was intended to be proved from Bhola PW-11

can be ascertained from the questions put to him by the

learned APP. We intend to note the deposition of Bhola in its

entirety.

22. After asking preliminary questions to ascertain

whether Bhola understood what was being queried from him

and recording a satisfaction that Bhola, aged 12 years, when

he deposed could understand the questions, his testimony was

recorded which reads as under:-

"I know Aslam who is present in the Court today as he used to come to get his clothes ironed from my neighbour but I do not know the name of the neighbour. He used to do masonry job of constructing lenter of the roofs. He used to reside in a jhuggi at a distance from my house. The jhuggi belonged to him. I know how to drive a bicycle. I owned my own bicycle. I did not take Aslam‟s

cycle for driving. I used to address Aslam as uncle. I did not see anything happening in my presence about 1½ years back in the winter season. I did not see any dead body. I did not hear any cries. In the evening I take tuitions. I do not know anything about this case. At this stage on the request of the APP witness is allowed to put leading questions. It is incorrect that accused Aslam was a tenant in the house in front of my house and that he used to visit us for watching pictures on TV. I do not know if accused had subsequently taken on rent H.No.A-126. It is incorrect that I used to visit Aslam in his house and I used to drive his bicycle. It is incorrect that on 29.1.2001 at about 7 pm I had gone to Aslam and that I had knocked the main gate for taking keys of his bicycle. It is incorrect that Aslam had opened the door of the house and I saw a woman lying on the cot inside the house and I heard the cries „bachao‟. It is incorrect that Aslam asked me to run away and closed the door. It is incorrect that from below I saw accused Aslam sitting on the woman and that I also saw that Aslam had strangulated the woman from the neck. It is further incorrect that the legs of the woman were struggling for some time and there after they became silent and the woman died. It is incorrect that when Aslam opened the door I was standing there. It is incorrect that Aslam gave me Rs.2/- and asked me to bring deck. It is further incorrect that after some time I brought the deck which Aslam took from me and put it inside and there after he closed the door. I know Nasir who is living near Jama Masjid. It is incorrect that on the morning of 30.1.2001 I saw the dead body of the same woman whom Aslam had killed in his room lying in the latrine of Nasir. Police did not meet me in my house. I was never summoned in the PS. I have never visited the PS. I did not make any statement before the police. Statement mark X is read over to the witness which he denied having made before the police. It is incorrect that I have been threatened by the accused and that I have deposed falsely at the instance of my father. I know that if a witness give a wrong statement, the Court punishes him."

23. It is apparent that the manner in which the police

wanted Bhola to prove having witnessed the crime is

preposterous. No sane person who is in the process of

strangulating a person would open a door on hearing a knock

and allowing the visitor to have a look inside. Besides, if Bhola

had indeed heard the woman crying „bachao‟ he would have

summoned help for her by calling people from the

neighbourhood.

24. It is interesting to note that the suggestion given by

the learned APP to Bhola is that; is it correct whether he saw a

woman lying on the cot inside the house. Of course, Bhola has

denied the same. But, was it possible for a person to peep

through the narrow gap between the floor and the door and

see a struggle going on, on a cot inside the room? The answer

is obviously a „no‟. Try and peep through the narrow gap

between the door and the floor. Not more than 6 to 8 inches

of the opposite wall can be seen.

25. Rajaram PW-2 and his son Rajesh Kumar PW-10

deposed, as directed by the police, that on the intervening

night of 29th and 30th January 2001 at around 2.30 am the

accused came to their house and made a telephonic call to the

police. Rajaram PW-2, additionally stated that the appellant

disclosed his name as Shanker to the police and that when the

police came, he told the police that Aslam was the person who

had called, because he knew Aslam as both were residents of

Bihar.

26. The photographer Ram Avtar PW-17 did not support

the case of the prosecution and on being declared hostile was

given suggestions pertaining to his alleged statement recorded

by the police under Section 161 Cr.P.C. to the effect that he

had told the police that Shamima was a prostitute and that he

had supplied Shamima to the appellant for satisfying his lust

and she was to receive Rs.200/- from the appellant.

27. Needless to state Ram Avtar PW-17 deposed that

he never acted as a pimp and that he earned his livelihood by

running the business of a photographer from a shop and that

he had no concern with the deceased.

28. It is not out of place to record that as per the police

Shamima was murdered at the premises, by the appellant

which he had taken on rent being A-326 Buddha Market,

Mandawali, Zedi Market, Delhi. The dead body was found at B-

149 Chand Masjid, Mandawali, Delhi and there is no evidence

on record as to how was the body transported from one place

to another.

29. PW-6 Mohd. Sadiq Khan deposed of having

witnessed the recovery of a chunni from inside a suitcase lying

in the house of the appellant.

30. In view of the post-mortem report that there were

ligature marks on the neck of the deceased and that the death

was due to strangulation; holding that the chunni recovered

from the suitcase inside the house of the appellant could have

been used as the object to strangulate the deceased and that

the recovery of broken pieces of glass bangle and the ear top

of the deceased from the house of the appellant was sufficient

incriminating evidence to nail the appellant; believing Rajaram

that the appellant was the one to rung up police and wrongly

gave his name as Shanker; believing Nasir‟s statement

regarding the appellant having enmity with him which was the

reason for dumping the body of the deceased at his house, the

learned Trial Judge has returned a finding of guilt. The

appellant has been convicted of the offence punishable under

Section 302 IPC and for destroying the evidence i.e. the

offence punishable under Section 201 IPC, we need not pen

down much.

31. The learned Trial Judge failed to appreciate that

there is no evidence of how was the dead body transported

from the house of the appellant i.e. A-326 Buddha Market,

Mandawali, Zedi Market, Delhi to the place where it was

recovered i.e. House No.B-149 Chand Masjid, Mandawali,

Delhi.

32. Further, the ear top and the broken glass bangles

being planted in the house of the appellant stands established

from the fact that Kamuddin handed over only one ear top of

his wife to the police as also a chain and broken pieces of

bangle but in the seizure memo Ex.PW-5/2 the police

deliberately omitted to record the seizure of the ear top. This

ear top handed over by Kamuddin to the police has been

planted in the house of the appellant. It is not out of place to

re-note that SHO G.S. Randhawa PW-26 in his deposition

stated that Kamuddin had told him that when he was bathing

his wife the other ear top fell inside the drain and could not be

retrieved; where Kamuddin has categorically deposed that

before the burial when he was bathing the dead body of his

wife he saw only one ear top on the left ear which he removed

and handed over to the police. He has also deposed of

handing over broken pieces of bangle; which had to be of

glass; the ones which were recovered from the house of the

appellant were obviously planted.

33. The learned Trial Judge forgot why the appellant

would have gone to the house of a person known to him and

rung up the police and disclosed to the police a wrong name.

Would any person do that?

34. Well not, unless he is mad.

35. A person would have given a wrong name over the

telephone to a person whom he called, obviously to hide his

identity. What would be the motive of the appellant to ring up

the police, give a wrong name and furnish wrong information

of a quarrel going on at Chand Masjid?

36. Obviously to mislead the police to reach the spot

with the hope that the dead body would be recovered from the

house of Nasir; the intention would obviously be to falsely

implicate Nasir.

37. But to give effect to this intention the appellant

would certainly not go to the house of a person known to him

and give false information and that too under an assumed

name. Would he not know that Rajaram would question him

as to why was he disclosing his name as Shanker.

38. The learned Trial Judge has forgotten to note that

Nasir PW-3 has categorically deposed that there was enmity

between him and the appellant and probably for said reason

the accused had dumped the dead body in his house.

39. Could Nasir be not the culprit. Could Nasir not have

contrived with his versions to ring up the police and then go

about falsely deposing that it was the appellant who rung up

the police styling himself as Shanker? These are questions

which arise and should have been considered by the learned

Trial Judge.

40. These questions assume significance because there

is no evidence of the appellant transporting the dead body

from his house to the house of Nasir.

41. The colony in question is a re-settlement colony. It

is densely populated. People move around in such colonies 24

hours a day. It is not out of place to note that as per Rajaram

PW-2 that Saraswati Puja was going on in his house and hymns

were being sung late night on the day the incident occurred.

42. It is difficult to believe that nobody saw the dead

body being transported.

43. The learned Trial Judge failed to note that as per

the MLC of the deceased she was found severely anaemic and

under-nourished. Obviously, her husband was not caring for

her. Had she been a prostitute, she would have earned

enough to keep the body physically fit, at least not in the

condition in which it was. It is difficult to accept that the

deceased was a prostitute.

44. The false implication of the appellant is writ large.

The planting of the ear top of the deceased and pieces of

broken bangle in the house of the appellant is writ large.

45. The appeal is allowed. Impugned judgment dated

11.10.2004 and order dated 14.10.2004 sentencing the

appellant to undergo imprisonment for life for the offence

punishable under Section 302 IPC and to undergo rigorous

imprisonment for a period of 7 years for the offence

punishable under Section 201 IPC as also the fine imposed

upon the appellant is set aside.

46. The appellant is directed to be set free unless

required in some other case.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

FEBRUARY 02, 2009 Dharmender