Ibrahim vs State
2009 Latest Caselaw 596 Del

*                   IN THE HIGH COURT OF DELHI


                           Judgment reserved on : February 10, 2009
%                          Judgment delivered on : February 19, 2009


+                            CRL.A. 105/2008

       IBRAHIM                                ..... Appellant

                        Through:   Mr. K.B.Andley, Sr. Adv. with
                                   Mr. K.K.Tyagi, Adv.
                                   Mr. Iftekhar Ahmed, Adv.

                             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. Criminal law was set into motion when pursuant to a

wireless information DD No.32B, Ex.PW-1/A, was recorded by

Const. Randhir Singh PW-1, at 11.40 AM on 02.03.2002 at PS

Sultan Puri to the effect that a husband and wife are quarreling in

a house bearing Municipal No.F-2/322, Sultan Puri, Delhi.

2. ASI Puran Chand PW-22, was handed over a copy of

the DD Entry. Accompanied by Const Jagdish PW-16, he reached

the spot where both met Aakash PW-2, who told them that a lady

named Baby (hereinafter referred to as the "Deceased") who was

living as a tenant in a room on the first floor of the property was

being beaten by a man named Ibrahim and that he had locked

Ibrahim inside the room by bolting the door from outside.

3. ASI Puran Chand PW-22, and Const. Jagdish PW-16,

along with Aakash PW-2, reached the first floor of the property

and what happened thereafter is recorded in the endorsement

(tehrir) Ex.PW-22/C made by ASI Puran Chand PW-22, which reads

as under:-

"Respected Duty Officer PS Sultan Puri Delhi it is humbly submitted that after receiving a copy of DD No.32B I ASI accompanied with Const. Jagdish No.2743/NW reached the spot where a crowd was gathered. Aakash who was present at the spot told me that one Ibrahim is beating his aunt in the room of the tenant in the first floor of the property and that he had locked Ibrahim in the said room by bolting the door from outside. When I ASI along with Aakash reached the first floor and opened the door I saw that a lady named Baby who was soaked in blood was lying dead on the ground and the goods present in the room were lying in a scattered condition. Aakash had told me that the name of the lady was Baby. A boy named Ibrahim whose hands were smeared with blood was found

standing near the lady. I ASI conducted the personal search of Ibrahim whereupon a small jewellery pouch was found in the right pocket of his pant. The jewellery pouch was opened and one pair of gold earrings, three pairs of silver anklets, one pair of toe ring and one pair of silver coin on which Om was inscribed were found in the said pouch. At that time Jagdish who had just arrived at the spot identified the jewellery articles found in the pouch as belonging to him. The said jewellery articles were kept back in the pouch and pouch was kept in a cloth pulanda. The said pulanda was sealed and seized as an evidence by the police. Thereafter the statement of Aakash was recorded and on basis of said statement and circumstances found at the spot Ibrahim is found guilty of committing offences punishable under Section 394 and 392 of Indian Penal Code. The said endorsement is being handed over to Const. Jagdish No.2743/N for registration of FIR. The FIR be registered and case be entrusted to SHO for further investigation. The photographer and crime team be sent to the spot for investigation. Arrival at the spot: 02.03.2002 at around 11.30 AM Place of occurrence: Room inside the first floor of F2/322 Time of departure of Endorsement: 02.03.2002 at 1.30 PM". (Translated Version)

4. The endorsement aforenoted on basis whereof the FIR

was registered was preceded by ASI Puran Chand PW-22,

recording the statement Ex.PW-2/A of Aakash, the gist whereof is

that Aakash along with his brother Anurag and a friend were

present on the ground floor of his house on the date of the

incident. That at around 11.30 AM he went to the first floor where

Jagdish with his family was residing as a tenant and found that

the door of the room of the tenant was locked from inside and

very loud voices were coming from inside. He peeped inside the

room from the keyhole of the door and saw that Ibrahim, whom

he had seen earlier on one occasion and was known to him, had

thrown their tenant Baby on the floor; was sitting on her body

holding her neck, and that the abdomen of Baby was soaked in

blood. He bolted the door of the room from outside and came

downstairs. That on coming downstairs he told everything to his

brother Anurag who raised an alarm at which lot of people

gathered around their house and somebody from the crowd also

informed the police.

5. The statement Ex.PW-2/A on which the endorsement

Ex.PW-22/C was made by ASI Puran Chand was forwarded at 1.30

P.M. through Const. Jagdish PW-16, to the police station for

registration of a FIR. HC Surender Singh PW-6, recorded DD

No.16A, Ex.PW-6/A, to the effect that he has received

endorsement Ex.PW-22/C from Const. Jagdish at 1.50 P.M. on

02.03.2002. Thereafter PW-6, registered the FIR Ex.PW-6/B, being

No.200/2002 under Sections 394/302 IPC. On registration of the

FIR, PW-6 recorded another DD No.17A, Ex.PW-6/C, to the effect

that he had completed registration of the FIR at 2.40 PM on

02.03.2002. The said FIR was handed over to Manohar Singh, PW-

21, who at the relevant time was posted as SHO of Police Station

Sultan Puri, for further investigation. On receipt of the information

about the happening of the incident, Manohar Singh PW-21,

accompanied with Const.Sahib Singh PW-14, also reached the

spot.

6. As recorded in the tehrir Ex.PW-22/C the appellant

Ibrahim was apprehended at the spot, as the needle of suspicion

strongly pointed towards him. In fact, if the tehrir is correct, the

appellant was caught red-handed. As recorded in the tehrir the

personal search of the appellant resulted in the recoveries as

recorded in the tehrir. Further, disclosure statement Ex.PW-14/B

of the appellant resulted in the recovery of a knife and a clutch

wire from the room at the time of the arrest.

7. Investigating at the spot and as recorded in the tehrir

the pouch containing the jewellery recovered from the pocket of

the appellant was seized vide seizure Ex.PW-22/A. Cotton soaked

with blood was seized vide seizure Ex.PW-21/D. Sample control

earth was seized vide seizure memo Ex.PW-21/E. Blood stained

earth was seized vide memo Ex.PW-21/F. A stereo and a speaker

were seized vide Ex.PW-21/G.

8. Const. Chunni Lal (Photographer) PW-3 and Const.

R.N.Rawat (Finger Print Expert) PW-8, from the crime team were

summoned. 9 photographs, Ex.PW-3/1 to Ex.PW-3/8 (one

photograph could not be developed), negatives whereof are

Ex.PW-3/P1 to Ex.PW-3/P9 were taken. PW-8 lifted one chance

print from the iron box found at the spot and opined vide his

report, Ex.PW-8/A, that the chance print found on the iron box is

identical with the right middle finger impression mark SI on the

finger impression slip of the appellant.

9. Since the deceased was found dead at the spot, her

body was sent to the mortuary where Dr.Komal Singh PW-13,

conducted the post-mortem on 04.03.2002 and gave his report,

Ex.PW-13/A, which recorded that six external injuries were found

on the person of the deceased; that the cause of death was

asphyxia produced by constricting force over the neck

subsequent to the severe pressure induced by a ligature (clutch

wire) which was sufficient to cause death in the ordinary course

of nature. He handed over the blood stained clothes of the

deceased and a blood sample of the deceased on a gauze to the

police. On the same date i.e. 04.03.2002 the knife and clutch

wire recovered at the spot were sent to him for opinion regarding

the weapon used in commission of the offence. Vide report

Ex.PW-13/B it was opined that the said clutch wire could have

been used to strangulate the deceased as the strangulation mark

found over neck stimulate the clutch wire mark. It was further

opined that the injuries nos.(3) and (4) found on the person of the

deceased are possible to have been inflicted with the said knife.

10. The seized material was sent to the Forensic Science

Laboratory for forensic examination. Vide FSL reports Ex.PW-

20/A-1, Ex.PW-20/A-2 and Ex.PW-20/A-3 human blood of 'B' group

was found on the blood sample cotton and clothes of the

deceased. The report further stated that the knife and clutch wire

recovered from the spot were stained with human blood but the

blood group could not be determined.

11. Needless to state, the appellant was sent for trial. The

charges were framed against the appellant for having committed

offences punishable under Section 394/302 IPC.

12. At the trial, apart from examining the police officers

associated with the registration of the FIR and the investigation,

as also the doctor who conducted the post-mortem of the

deceased; Aakash was examined as PW-2. Anurag, brother of

Aakash was examined as PW-4. Dharmender, friend of Aakash

was examined as PW-5. Surender Kumar, a resident in the

neighborhood of the deceased was examined as PW-7. Jagdish

Parsad, husband of the deceased was examined as PW-9.

Shakuntla, an acquaintance of the deceased was examined as

PW-12.

13. Aakash PW-2, did not support the case of the

prosecution and turned hostile. He resiled from his earlier

statement recorded by the police. He deposed that on the date of

the incident he had gone upstairs to make a request for lowering

the volume of the music but did not see anything there. That he

had given no statement to the police but the police had obtained

his signatures on a blank piece of paper on the date of the

incident. That Jagdish, husband of the deceased was not present

at the spot when the police officers reached the spot.

14. Anurag PW-4, brother of Aakash, also did not support

the case of the prosecution and turned hostile. He deposed that

on the date of the incident his brother Aakash had gone upstairs

and had returned downstairs in a perplexed condition due to

which he and one Dharmender who was also present in their

house raised an alarm. He denied that on returning from the first

floor Aakash had told him that the appellant was beating the

deceased or that he had locked the appellant inside the room by

bolting the door from outside.

15. Dharmender PW-5, friend of Aakash, also did not

support the case of the prosecution and turned hostile. He

deposed that on the date of the incident he was present in the

house of Aakash but had left the house when he heard loud

voices coming from the first floor of the house. He also denied

that on returning from the first floor Aakash had told him that the

appellant was beating the deceased or that the deceased was

lying on the floor or that she was bleeding.

16. Surender Kumar PW-7, who was a resident in the

neighbourhood of the deceased deposed that the initial

information that a husband and wife are quarreling in the house

bearing Municipal No.F-2/322, Sultan Puri, Delhi based whereon

DD No.32B Ex.PW-1/A was recorded by the police was given by

him. He further deposed that he had not come out of his house to

inquire about the matter as he was suffering from cancer.

17. Jagdish Parsad PW-9, husband of the deceased

deposed that the jewellery pouch containing the jewellery articles

of the deceased was recovered by the police from the pocket of

the pant of the appellant in his presence. That the police had

recovered clutch wire and knife from the spot at the instance of

the appellant in his presence.

18. Shakuntala PW-12, an acquaintance of the deceased

deposed that she had identified the dead body of the deceased

on the date of the incident. She further deposed that Jagdish,

husband of the deceased was present at the spot during the

conduct of investigation by the police officials.

19. In his statement recorded under Section 313 CrPC the

appellant denied everything. He stated that the police officials

have falsely implicated him in connivance with Jagdish Parsad,

husband of the deceased who is the real culprit. He further stated

that at around 1.00 P.M. on 02.03.2002 he had gone to the spot

on his own where the police arrested him and falsely implicated

him. When questioned about the presence of his fingerprints on

the iron box lying on the spot he replied that the police had asked

him to lift the said iron box because of which his fingerprints got

imprinted on the box.

20. On behalf of the appellant, one Rabia who was the

sister of the deceased and one Sadiq Hussain who was the son of

the deceased from her first marriage were examined as DW-1

and DW-2 respectively. They both deposed that the relations

between the deceased and her husband Jagdish Parsad were

strained and that Jagdish Parsad used to harass the deceased.

21. Holding that the prosecution has been able to

establish the chain of circumstances which unerringly connect

the appellant to the crime of murder of the deceased with a view

to commit robbery, vide judgment dated 15.12.2007 and order

dated 18.12.2007 the learned Trial Judge has convicted the

appellant of committing offences punishable under Sections

394/302 IPC and has sentenced him to undergo imprisonment for

life.

22. At the hearing of the appeal, Sh.K.B.Andley learned

senior counsel for the appellant submitted as under:-

A That the case of prosecution against the appellant has

fallen like a house of cards, inasmuch as Aakash PW-2, who was

the key witness of the prosecution did not support the case of the

prosecution at the trial.

B The second submission advanced was that as per the

prosecution the appellant was found sitting on the blood soaked

body of the deceased and that the hands of the appellant were

smeared with blood. Counsel urged that if this was so, the clothes

of the appellant must have also been stained with blood. But,

strangely enough, the police officers conducting the investigation

neither seized the blood stained clothes of the appellant nor took

the imprints of the hands of the appellant on a piece of paper.

Counsel urged that the failure on part of the police to collect the

best evidence available to nail the appellant is fatal to the case of

the prosecution. Going a step further, the counsel reversed the

said argument by contending that the fact that best available

evidence has not been collected by the prosecution raises a big

question mark on the availability of the said evidence. According

to the counsel, the fact that neither the blood stained clothes of

the appellant were seized nor the imprints of the hands of the

appellant were taken, establishes that neither the clothes of the

appellant were blood stained nor were his hands smeared with

blood which in turn evidences that the appellant was not present

at the spot at the time of the arrival of the police officers.

C Third submission urged was, with reference to the

reports of the Forensic Science Laboratory Ex.PW-20/A-1, Ex.PW-

20/A-2 and Ex.PW-20/A-3 which record that human blood was

detected on the knife and the clutch wire recovered from the spot

but blood group could not be determined. Learned counsel urged

that the prosecution had placed much emphasis on the presence

of human blood on knife and clutch wire allegedly recovered from

the spot at the instance of the appellant to connect appellant

with the commission of the offence. Counsel urged that mere

presence of human blood on said items, without there being

determination of the blood group, is not sufficient to link the

appellant with the use of said items.

D The fourth submission urged was, with reference to

DD No.32B, Ex.PW-1/A, that a wireless information has been

received to the effect that a husband and wife are quarreling in a

house bearing Municipal No.F-2/322, Sultan Puri, Delhi. Learned

counsel urged that the said fact when linked with the testimonies

of defence witnesses that the relations between the deceased

and her husband were strained and that the husband of the

deceased used to harass her, strongly points to the fact that the

husband could be a suspect and that the police officers have

falsely implicated the appellant to shield the husband of the

deceased. Learned counsel urged that the accused has been

prejudiced on account of the police not conducting a fair

investigation.

E The fifth submission urged was that there is a material

contradiction between the testimonies of the husband of the

deceased and police officers conducting the investigation

regarding the place from where the knife was recovered,

inasmuch as the husband of the deceased PW-9, deposed that

the knife was recovered from a place which was between the wall

and the box, while the police officers namely ASI Puran Chand

PW-22, SI Manohar Singh PW-21 and Const. Sahib Singh PW-14,

deposed that the knife was lying on top of a box.

F The last submission urged was that the arrest memo

Ex.PW-21/H showed that the appellant was arrested at 6.00 PM

on 2.3.2002. Learned counsel urged that if the appellant was

arrested at 6.00 PM, where was the question of the appellant

being inside the room at 11.50 AM when the police came to the

spot and where was the question of the police recovering the

jewellery pouch containing the jewellery of the deceased from the

pocket of the appellant at around 12.00 noon.

23. Before dealing with the contentions urged and as

noted above, the salient features of the case of the prosecution

and the evidence brought on record may be briefly noted.

24. The appellant was found present at the spot near the

body of the deceased when the police officials had reached there.

The appellant confessed to his crime and got recovered one knife

and a clutch wire in the presence of Jagdish Parsad PW-9. A

jewellery pouch containing the jewellery articles of the deceased

was recovered by the police from the pocket of the pant of the

appellant. The doctor who conducted the post-mortem of the

deceased opined that it is possible that the knife and clutch wire

recovered at the instance of the appellant were used to murder

the deceased. The knife and clutch wire recovered at the

instance of the appellant were found to be stained with human

blood. The chance print lifted from a box lying at the spot

matched with the fingerprints of the appellant. ASI Puran Chand

PW-22 and Const. Jagdish PW-16 were cross-examined at length

but nothing has been brought to discredit their testimonies that

the appellant was found present at the spot when they had

reached there. Nothing has been brought out in the cross-

examination of Jagdish Parsad PW-9, save and except the

discrepancy vis-a-vis the place of recovery of the knife. (With

which we shall be dealing shortly herein after). Nothing has been

shown to us to discredit the testimony of Shakuntla PW-12,

whose testimony brings out that the Jagdish Parsad PW-9, arrived

at the spot when the police had started conducting the

investigation.

25. As regards the first submission advanced by the

learned counsel for the appellant, it would be apposite to refer to

the following observations of the Supreme Court in the decision

reported as Sheikh Zakir v State of Bihar AIR 1983 SC 911:-

"It is not quite strange that some witnesses do turn hostile but that by itself would not prevent a Court from finding an accused guilty if there is otherwise acceptable evidence in support of the prosecution. In the instant case, both the Trial Court and the High Court have believed evidence of the prosecutrix and the evidence of the other prosecution witnesses who had been examined at the trial."

26. In the decision reported as Bhola Ram Khushwaha v

State of M.P. AIR 2001 SC 229 the Supreme Court has held that

the fact of an independent witness turning hostile is not in itself a

ground to acquit the accused.

27. In view of the dictum laid down by the Supreme Court

in the afore-noted two decisions, we have no hesitation in holding

that merely because Aakash PW-2, had turned hostile and did not

support the case of the prosecution does not entitle the appellant

to be acquitted when there is overwhelming material on the

record establishing the guilt of the appellant.

28. There is yet another aspect of the matter. Though

Aakash has totally denied everything, his brother Anurag PW-4

has categorically deposed that when Aakash came down he was

in a perplexed condition. Why would Aakash be perplexed if he

had seen nothing. Obviously, Aakash had seen something which

had perplexed him. The same had to be his seeing Baby being

attacked by the appellant. In any case whether Aakash deposed

in favour of the prosecution or not is irrelevant for the reason the

police could not have connived anything for the reason the

information about the crime was received by the police at 11.40

AM. The tehrir Ex.PW-22/C was dispatched at 1.30 PM. In less

than two hours, it is inconceivable that the police hatched a

conspiracy to fabricate the evidence against the appellant. It has

to be noted that for all practical purposes the investigation was

wrapped up by 1.30 PM and was documented in the tehrir Ex.PW-

22/C.

29. With regard to the second submission advanced we

note the decision of the Supreme Court reported as Dhanaj Singh

@ Shera & Ors v State of Punjab AIR 2004 SC 1920 wherein also

the defence of the appellant-accused was predicated upon the

defective investigation. While dismissing the appeal preferred by

the accused, the Supreme Court observed as under:-

"The investigation was also stated to be defective since the gun was not sent for forensic test. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. AIR 1995 SC 2472).

13. In Paras Yadav and Ors. v. State of Bihar AIR 1999 SC 644 it was held that if the lapse or omission is committed by the investigating agency or because of negligence there had been defective investigation the prosecution evidence is required to be examined de hors such omissions carefully to find out whether the said evidence is reliable or not and to what extent, such lapse affected the object of finding out the truth. The contaminated conduct of officials alone should not stand on the way of evaluating the evidence by the courts in finding out the truth, if the materials on record are otherwise credible and truthful; otherwise the designed mischief at the instance of biased or interested investigator would be perpetuated and justice would be denied to the complainant party, and in the process to the community at large.

14. As was observed in Ram Bihari Yadav v. State of Bihar and Ors. AIR 1998 SC 1850 if primacy is given to

such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice. The view was again re- iterated in Amar Singh v. Balwinder Singh and Ors. AIR 2003 SC 1164. As noted in Amar Singh's case (supra) it would have been certainly better if the firearms were sent to the forensic test laboratory for comparison. But the report of the ballistic expert would merely be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eye-witnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the IO cannot affect credibility of the prosecution version."

30. That the police was slack in not seizing the clothes of

the appellant does not mean that the incriminating evidence of

clinching nature has to be ignored.

31. With regard to the third submission pertaining to non-

determination of group of blood found on the knife and clutch

wire recovered at the instance of the appellant suffice would it be

to state that it is not an uncommon occurrence that on account of

blood getting putrefied no opinion can be formed about the group

of the blood. That the clutch wire was recovered from the room

where the deceased was murdered and so also the knife and that

too just after the crime was committed are enough circumstances

to conclude that the same were the weapon of offence.

32. The fourth contention predicated on the contents of

the DD entry Ex.PW-1/A that a husband and wife were quarrelling

and hence there is evidence that it was Jagdish PW-9, the

husband of the deceased who was quarrelling with her and thus

he could be the murderer, is nothing but an imagination of

learned counsel for the appellant. As noted above the police

officers and Jagdish have deposed that Jagdish reached the house

after the police had entered and had apprehended the appellant.

Where was the occasion for Jagdish to be the offender or the

suspect?

33. The submission that there was material contradiction

in the deposition of Jagdish vis-à-vis the police officers pertaining

to the place where the knife was recovered, begs the question as

to what is a material contradiction. Suffice would it be to state

that there are bound to be some discrepancies in the narration of

facts by different witnesses when they speak on details. Trivial

discrepancies cannot obliterate an otherwise acceptable

statement. Parrot like statements are viewed with suspicion by

the courts. Discrepancy has to be distinguished from

contradiction. Whereas contradiction in the statement of the

witness is fatal to the case, minor discrepancies or variations in

the testimony are immaterial. (See the decision of the Supreme

Court reported as State of Himachal Pradesh v Lekh Raj & Anr

1999 (9) Supreme Today 155).

34. The last submission predicated upon the time of arrest

of the appellant recorded in the arrest memo Ex.PW-1/H can be

dealt with reference to the defence projected by the appellant in

his statement under Section 313 CrPC, and DD No.17A Ex.PW-

6/C.

35. That the appellant was present at the spot at 1.00 PM

has been admitted by him. The appellant has explained his

finger prints on the box inside the room by stating that the police

had asked him to lift the box. Thus, the appellant has admitted

of being inside the room. It is apparent that the appellant admits

of being with the police at least by 1.00 PM. Ex.PW-22/C, the

tehrir forwarded to the police station by 1.30 PM records that the

appellant has been apprehended at the spot. It is obvious that

the formal arrest has been made at 6.00 PM. We should not be

understood that we are according our approval to what the police

has done for the reason the time of arrest has to be dutifully

recorded, the very moment an accused is apprehended and

arrested. But, in the facts and circumstances of the instant case

it makes no difference. The argument of learned counsel that the

fact of the appellant being arrested at 6.00 PM shows that

everything was cooked up before, to be accepted would mean

that the police had thought of falsely implicating an accused by

1.00 PM and had recorded that the accused was in their custody,

when the accused was actually not in the custody of police; a

highly foolish and dangerous act because if the accused was not

apprehended the same day how would the police justify his not

being produced before the Magistrate the next day. It is obvious

that a sloppy mistake has been committed by the police.

36. In view of above discussion, we find no merits in the

instant appeal. The same is accordingly dismissed.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

February 19, 2009 mm