Rehman vs State
2009 Latest Caselaw 658 Del

*                       IN THE HIGH COURT OF DELHI

                                   Judgment reserved on : February 04, 2009
%                                  Judgment delivered on : February 26, 2009

+                                    CRL.A.569/2006

         REHMAN                                            ..... Appellant
                        Through:     Mr. Dhananjay Puri, Advocate

                                           versus

         STATE                                           ..... Respondent
                        Through:     Ms.Richa Kapoor, Advocate

                                      CRL.A. 497/2007

         ABDUL @ ABDULLA                                  ..... Appellant
                  Through:           Ms. Anu Narula, Advocate

                                           versus

         STATE                                            ..... Respondent
                        Through:     Ms. Richa Kapoor, 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?

3. Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J.

1. On 29.4.2003 at 2:05 PM vide DD No.7A, Ex.PW-1/1,

the Duty Officer PS Malviya Nagar recorded the receipt of

information that a murder had taken place at H-12/10, Malviya

Nagar. SI Ashok Kumar PW-16, accompanied by Const.Ravinder

PW-8, reached the place of occurrence and learnt that the

injured Mrs.Harbans Kaur had been removed to AIIMS Hospital.

SI Ashok Kumar proceeded to the aforesaid hospital.

2. At the hospital, SI Ashok Kumar learnt that the

injured Ms.Harbans Kaur was brought dead to the hospital. He

collected the MLC, Ex.PW-10/A, prepared by Dr.Sachinda. SI

Ashok Kumar did not meet any eye witnesses at the hospital.

3. Thereafter, SI Ashok Kumar returned to the place of

occurrence. He met Gurcharan Singh PW-3, the husband of the

deceased and Manjit Singh PW-6, nephew of the deceased, at

the place of occurrence. SI Ashok Kumar recorded the

statement, Ex.PW-3/A, of Gurcharan Singh and made an

endorsement Ex.PW-16/A thereon and forwarded the same

through Const. Ravinder PW-8 to the police station where SI

Dharam Pal, the Duty Officer at the police station recorded FIR

No.346/03, Ex.PW-11/A, under Section 302 IPC at 4:25 PM.

4. At the spot SI Ashok Kumar prepared a rough site

plan, Ex.PW-16/C, of the place of occurrence. He summoned

Const. Giri Raj (Photographer) who took photographs, Ex.PW-5/1

to Ex.PW-5/7, of the place of occurrence; the negatives whereof

are Ex.PW-5/A collectively. From the place of occurrence one

blood stained handkerchief Ex.C-1, was lifted vide seizure memo

Ex.PW-3/C. A cloth piece Ex.D-1, was also lifted from the spot

vide seizure memo Ex.PW-3/D. A chhura (knife) Ex.P-7 was

seized vide seizure memo, Ex.PW-3/E. The sketch Ex.PW-16/D of

the chhura was prepared. A wax polish Ex.F-1 was seized from

the place of occurrence vide seizure memo Ex.PW-3/F. The

cigarette buds lifted from the place of occurrence were seized

vide seizure memo Ex.PW-3/G. A pant and a handkerchief lifted

from the place of occurrence were seized vide seizure memo

Ex.PW-3/H. One plash of iron, one small piece of cloth, six pieces

of stones, wax polish, one white plastic pipe, two circular stones

used for grinding and one wiper were collectively seized vide

seizure memo Ex.PW-3/J.

5. The statement Ex.PW-3/A, made by Gurcharan Singh

to the police reads as under:-

"Statement of Shri Gurcharan Singh S/o late Sardar Chamba Singh, R/o H-12/10 Malviya Nagar New Delhi Aged 77 years Ph: 26683215

I reside at the abovementioned address along with my wife Smt. Harwansh Kaur aged 72 years and my brother-in-law's son Rinku alias Manjit aged about 18 years. I am engaged in the transport business. Stone grinding work was being done in the veranda of our house by three persons who were engaged by Rinku from a construction site near our house at a contract of Rs 1,200/-. Of the three persons two used to work regularly and the third who was the contractor used to come at regular intervals to collect the money. Today i.e on 29.4.2003 at about 11:30 a.m I and Rinku had left the house for some work. My wife was left behind at home and the three workers were doing their working when we left. When I and Rinku returned back to our house at about 1:30 P.M, the construction

workers were not working in the veranda and the door to the house was locked from outside. As soon as I entered the house I found my wife lying in our drawing room in an unconscious state. Injury marks were visible on her forehead and face, a handkerchief was tied tightly around her neck and a long dagger was lying nearby. We removed the handkerchief from her neck and immediately informed the police at 100 number. That the police van took her to AIIMS hospital where the doctor declared her dead. At home contents of our almirah and bed were lying scattered around the house. That only after checking will I be able to state what all is missing from the house. That one of the workers was aged about 21-22 years, with a short height, strong built and had a fair complexion, while the second one was aged about 26-27 years, height 5'7'', strong built and had a dark complexion. The third one who was the contractor was aged about 28- 29 years, with a dark complexion and his height was 5'7. I can identify the accused persons if brought before me. Let the needful be done."

6. On the same day he made a supplementary

statement to SI Ashok Kumar as per which he informed that 12

gold bangles, one Rani Haar, matar mala, gold rings, jhumka etc.

were reported missing from the house. SI Ashok Kumar also

recorded the statement Ex.PW-9/DA of Manjit Singh @ Rinku

PW6, the nephew of the deceased, on the same day who stated

that he had engaged three workers to come to his uncle's house

for floor grinding work from a construction site near the house.

That one of them was the contractor named Asir and that the

other two were Abdulla and Israel. That on 29.4.2003 he left the

house along with his uncle at about 11:30 am leaving his aunt

Smt. Harbans Kaur alone at the house when the contractor and

the other two labourers were doing the floor grinding work at the

house. That when they returned home at about 1:30 pm they

found the three missing and Ms.Harbans Kaur lying on the floor

of the house with a handkerchief tied around her neck.

7. SI Ashok Kumar also met Rakesh Bhardwaj PW-7 and

recorded his statement Ex. PW7/DA who stated that while he

was going towards the market he noted two persons walking

briskly in a nervous condition. That one of them a 35-38 year old

man was carrying a bag in his hand while the other man was 20-

21 years old. That while during purchase he was talking to a

friend of his he noted a crowd gathering in front of House No.

12/10 Malviya Nagar. He went to the house and saw the dead

body of a lady lying in the drawing room.

8. Since Ms.Manjit Kaur was brought dead to the hospital

her body was sent to the mortuary where Dr.Sunil Kumar

Sharma PW-4, conducted the post-mortem of Harbans Kaur on

1.5.2003 and prepared the post-mortem report Ex.PW-14/A. He

recorded therein the following ante-mortem injuries on the

person of the deceased:-

"1. Faint ligature mark over the middle part of neck and encircle whole neck measuring 38 cm in length, 1 cm wide, on deep dissection of the neck there was extrasation of blood in sub-cutaneous and muscle.

2. One cresentic abrasion over the right forehead size 1.5 cm x 2.4 cm.

3. Two cresentic abrasion over nose size .5 x .2 cm.

4. Multiple cresentic abrasion over left chin.

5. Multiple mucosal abrasions over lower lip.

6. Contuse lower lip margin size 2 cm x .5 cm.

7. Two cresentic abrasion over left side of neck.

8. Fracture ribs second to six."

9. On 7.5.2003 SI Ashok Kumar, during investigation,

met Nazim PW-15, an auto rickshaw driver. He recorded his

statement under Section 161 Cr.P.C. as per which he informed

that on 28.4.2003 at about 5:30 p.m on the asking of a person

he had taken a floor grinding machine from H-12/10 Malviya

Nagar to E-324 Greater Kailash-II. Relevant would it be to note

that he categorically told SI Ashok Kumar that he does not

recollect the features of the said person at whose asking he had

transported the floor grinding machine.

10. On 8.5.2003, Gurcharan Singh, husband of the

deceased handed over four pages to the police containing the

design of the jewellery stolen from his house on the date of

incident along with receipts evidencing purchase thereof which

were seized vide seizure memo Ex.PW-3/B.

11. Acting on the information given by Nazim, SI Ashok

Kumar maintained surveillance at House No.E-324, G.K.-II on

8.5.2003, 9.5.2003 and 10.5.2003. On 10.5.2003 appellant

Rehman was apprehended by him.

12. On interrogation, appellant Rehman made a

disclosure statement Ex.PW-16/K, he revealed that on 3.4.2003

accused Asir @ Asirudin came to E-324 G.K II where Rehman was

working as a construction labourer and took a floor grinding

machine for construction work to H-12/10 Malviya Nagar. That he

himself joined the floor grinding work at H-12/10 Malviya Nagar

for a few days. That on 26.4.2003, three days prior to the

incident, Mohd. Asir, Kasim and Abdul @ Abdulla who were all

working at H. No.12/10 Malviya Nagar came to E-324 G.K IInd

Floor and told him that the old lady who resides at house no.

12/10 Malviya Nagar had gone to a function wearing about half a

kilo of jewellery. They made a plan to rob the house with the

help of two other persons namely Shamim and Rafiq who were

acquaintances of accused Asir. That on 28.4.2003 Mohd. [email protected]

Israeli returned the grinding machine to the accused Rehman

and told him that in the evening Mohd. Asir along with other

accused persons would come and do the further planning. That

at about 8 pm Mohd Asir, Shamim, Kasim and Rafiq along with

accused Abdul came to house No. E 324 G.K.II. As per their plan

accused Abdul and [email protected] Israeli reached H12/10 Malviya

Nagar at about 9 am with a small grinding machine and he

reached B 153, Savitri Nagar, Malviya Nagar at the residence of

Mohd. Asir where he met Shamim, Rafiq and Asirudin. All these

persons reached the spot at 10:30 am. Rafiq, Shamim and

Rehman kept sitting in a park outside the house and Mohd. Asir

went inside the house. At about 11:30pm Gurcharan Singh

(husband of the deceased) alongwith Rinku (nephew of the

deceased) left the house in his vehicle for Gurdwara leaving

behind Smt. Harvansh Kaur alone. Mohd. Asir gave a signal to

the accused Rehman and all of them entered the said house.

Accused Abdulla, who was already there, asked for a glass of

water from Smt. Harvansh Kaur. As soon as she brought the

glass of water both the accused persons along with other

accomplices attacked her. Shamim showed a knife to Smt.

Harvansh Kaur and threatened her not to make a noise. Mohd.

Asir took out a handkerchief and strangulated her with it. Rafiq

kept her mouth gagged with his hand and Mohd. Asir

strangulated her to death. Asir then asked Shamim to keep a

watch at the front door and asked him to keep a watch at the

back door. That during this period accused Abdulla kept carrying

on the work of floor grinding to avoid suspicion while Asir, Rafiq

and Kasim ransacked the house. Thereafter he left for Savitri

Nagar along with accused Shamim through the back door of the

house, the other accused persons later joined them at Savitri

Nagar.

13. Pursuant to the said disclosure statement accused

Rehman got recovered one red box containing a velvet purse

from a room in House No.E-324, G.K.-II, New Delhi. He disclosed

that he had stolen the aforementioned red box from House No.

12/10 Malviya Nagar along with the other accused persons after

killing the Smt. Harbans Kaur (deceased) and that each accused

took his share in the stolen cash and jewellery after the incident.

The recovered articles were seized vide recovery memo Ex.PW-

7/A.

14. Accused Rehman further led the police to House

No.153-B Savitri Nagar where three of his other accomplices

Mohd. Asiruddin @ Asir, Shamim and Israel @ Kasim were stated

to be residing. None of the said three persons were present at

the premises when the police reached there. Five xeroxed

pages, one paper bearing the signature of Mohd. Asir, one paper

pertaining to letter pad of Asiruddin, one paper pertaining to Raj

Bima Nigam and the photograph of Asiruddin @Asir with his wife

were seized vide seizure memo Ex.PW-2/A.

15. On 13.5.2003 SI Ashok Kumar along with his staff and

accused Rehman left for police station Gooalpokhar Distt.

Uttardinazpur, West Bengal in search of the other accused

persons. ASI Madav Chakroverti from the local police station

joined in the search operation.

16. Appellant Abdulla @Abdul was apprehended on

15.5.2003 from his house at village Jhalpari PS Gooalpokhar

Distt.Uttardinazpur, West Bengal. On interrogation he made a

disclosure statement Ex.PW-16/P. In pursuance of the disclosure

statement he got recovered one gold ring from a room in his

house which was taken into possession vide pointing out-cum-

seizure memo Ex.PW-9/B.

17. Thereafter he led the police party to the house of co-

accused Asiruddin @Asir at village Kelabadi Distt. Uttardinazpur

West Bengal. Asiruddin was not present in the house when the

police party reached his house. However, two gold kadas, one

matar-mala, two ear rings, one jhumka and one nose pin were

recovered from said house vide seizure memo Ex.PW-9/A.

18. The other accused persons namely Mohd.Asir, Kasim,

Shamim and Rafiq could not be traced. They were declared

proclaimed offenders. On 20.7.2003 a charge-sheet under

Section 302/395/397/412/34 IPC was filed against appellants

Rehman and Abdul.

19. After the charge-sheet was filed an application for

conducting the test identification of the jewellery recovered from

appellant Abdul and from the house of Asir was filed on

29.7.2003. Manjit Singh, nephew of the deceased who had

accompanied his uncle Gurcharan Singh the husband of the

deceased had accompanied him for TIP proceedings and

chanced to see the accused persons when they were being

taken out of court room no.29. He made another statement to

the police under Section 161 Cr.P.C. informing that the two

persons he had seen today were the ones seen by him working

in the house of his uncle on the day of the incident. Relevant

would it be to note that he specifically stated that Abdul was the

man who used to come to the house regularly with Israel and

Asir and that the other accused namely Rehman used to come

sometimes for the grinding work.

20. Gurcharan Singh PW-3, husband of the deceased

deposed that the appellants were working in his house on

29.4.2003 when he left his house along with his nephew Rinku to

go to the Gurudwara and that when he returned to the house he

found that the appellants were missing; his wife was lying

listless. He identified the appellants in Court as the ones who

were working in his house.

21. Manjit Singh PW-6 deposed that the accused persons

were working in his uncle's house under the contractor engaged

by him. He stated that on 29.4.2003, he along with his uncle

Gurcharan Singh left their house for the Gurdwara at about

11:30 am leaving behind his aunt Mrs.Harbans Kaur alone at

home when the grinding work was being carried on. He stated

that when they returned home they found Ms.Harbans Kaur lying

dead in the house and the entire house had been ransacked. He

deposed that none of the persons who were doing the floor

grinding work were present in the house when they returned.

22. Rakesh Bharadwaj PW-7 deposed to the facts

recorded in his statement under Section 161 Cr.P.C. He identified

both the accused persons present in court as having seen by him

leaving the house of the deceased.

23. Relevant would it be to note that the seizure memo

Ex.PW-7/A pertaining to the recoveries effected from House

No.E-324 GK-II New Delhi pursuant to the disclosure statement of

appellant Rehman bears the signatures of PW-7 as an attesting

witness. But, in his testimony he denied that a red colour box

was got recovered by accused Rehman in his presence. He

accepted his signatures on recovery memo, Ex.PW-7/A, but

denied any knowledge of the contents thereof. He also denied

any knowledge of the contents of recovery memo, Ex PW-2/A,

pertaining to the Xeroxed pages recovered from House No.153-B

Savitri Nagar but admitted his signatures on the said recovery

memo.

24. Prem Chand PW-2, owner of house no. 153-B Savitri

Nagar, the other witness to the recovery memo Ex.PW-2/A did

not support the case of the prosecution pertaining to the

recoveries effected as per Ex.PW-2/A for the reason he deposed

that on said day accused Rehman was not brought by the police

to his house.

25. Nazim PW-15 deposed that on 28.4.2003 accused

Rehman had got removed in his TSR a floor grinding machine

from House No.H-12/10 Malviya Nagar to House No.E-324

Greater Kailash Part-II, New Delhi.

26. ASI Madhav Chakroverti PW-9, deposed that

appellant Abdul was apprehended after he was traced in village

Jharwali and that his disclosure statement was recorded in his

presence and that thereafter Abdul led the police to his house

and got recovered a ring which was concealed in a room meant

to store grain.

27. The various police officers associated with the

investigation deposed in favour of the prosecution. Needless to

state SI Ashok Kumar PW-16 deposed to the investigation

conducted by him and as noted above.

28. Holding that in view of the deposition of Rakesh

Bhardwaj PW-7 and Prem Chand PW-2 the stated recoveries

pursuant to the disclosure statement of appellant Rehman from

house No.E-324 Greater Kailash Part-II, New Delhi and House

No.153-B Savitri Nagar were not proved, learned Trial Judge has

held that the alleged incriminating evidence sought to be

produced pertaining to the recoveries against appellant Rehman

was not proved. Ignoring the same, holding that the deposition

of Gurcharan Singh PW-3, Manjit Singh @Rinku PW-6, Nazim PW-

15 and Rakesh Bhardwaj PW-7 inspired confidence and since PW-

3, PW-6 and PW-7 deposed about the presence of Rehman in the

house where the offence took place the same was sufficient to

convict Rehman inasmuch as, according to the learned Trial

Judge, Rehman was present in the house for the completion of

the floor grinding work when PW-3 and PW-6 left the house and

were seen absconding when the two returned and when he was

in the process of absconding, he was seen in a nervous condition

by PW-7. Finding corroboration from the deposition of Nazim

PW-15 of Rehman working in the house of the deceased, it has

been held that cumulatively read, the deposition of all the

witnesses established the guilt of Rehman.

29. Pertaining to accused Abdul, with reference to the

deposition of PW-3, PW-6 and PW-7, similar findings as noted

above pertaining to Rehman have been returned against Abdul.

Additionally, the recovery of a gold ring belonging to the

deceased pursuant to the disclosure statement of Rehman and

at his instance has been held to be incriminating evidence

against appellant Rehman.

30. It is unfortunate that pertaining to appellant Rehman,

the learned Trial Judge has ignored vital evidence in the form of

improvements made by Manjit Singh PW-6 in his deposition in

Court vis-à-vis his statements recorded by the police under

Section 161 Cr.P.C. The learned Trial Judge has also over looked

the apparent contradictions in the deposition of Rakesh

Bhardwaj PW-7 when he identified appellant Rehman as one of

the two persons he saw leaving the house where the deceased

was killed. The learned Trial Judge has not considered a

probability emerging from the deposition of Nazim PW-15

pertaining to Rehman having left the work a day prior i.e. on

28.4.2003. As noted hereinabove in his statement Ex.PW-9/DA

made to the police on 29.4.2003 Manjit Singh PW-6 had

categorically stated that on 29.4.2003 only three persons

namely the contractor Asir and two workers Abdulla and Israel

had come to the house and when he along with his uncle left the

house at 11.30 AM only said three persons were in the house

who were found missing when he and his uncle returned to the

house. It is apparent that Manjit has made a material

improvement by omitting the name of Israel as the second

labourer working in the house and substituting the name of

Rehman in his place. In this connection it is important to note

that probably for the reason neither Asir nor Israel could be

apprehended by the police, much after he had made his first

statement to the police on 29.4.2003, Manjit's supplementary

statement was recorded on 29.7.2003 wherein he introduced the

name of accused Rehman, but even in the said statement stated

that Rehman used to sometimes come for the grinding work and

that normally Abdul and Israel used to do the grinding work.

31. The improvement by Manjit is on a material point in

issue and cannot be simply brushed aside. In this connection the

deposition of Nazim PW-15 assumes significance because he has

deposed that a day prior i.e. on 28.4.2003 he had transported

the grinding machine from 12/10 Malviya Nagar to E-324 Greater

Kailash-II New Delhi and that Rehman had accompanied him.

Even as per the charge-sheet the grinding machine belonged to

Rehman. This probablizes the fact that the little involvement of

Rehman in the work of floor grinding came to an end on

28.4.2003 and he was not present in the house on 29.4.2003. It

corroborates the first statement made by Manjit to the police

that Abdul and Israel along with the contractor Asir had come to

the house to complete the work on 29.4.2003.

32. Even Rakesh Bhardwaj PW-7 has been inconsistent

vis-à-vis his identification of Rehman. In his statement made to

the police under Section 161 Cr.P.C. on 29.4.2003 itself he

stated that one out of the two persons who were seen by him

leaving the house in a perplexed mind, was carrying a bag and

his age was between 30-35 years. While deposing in Court he

stated that Rehman was the person who was carrying the bag. It

is not out of place to note that Rehman was aged 25 years when

evidence was recorded by the learned Trial Judge.

33. It is apparent that PW-6 and PW-7 have made

material improvements while deposing in Court and the intention

is to nail the appellant Rehman.

34. We note that the prosecution has failed to prove any

recovery at the instance of the appellant Rehman.

35. Pertaining to appellant Abdulla @Abdul it is pertinent

to note that in his statement made to the police on 29.4.2003

itself, Manjit PW-6 had disclosed that Abdulla along with Israel

had reported for work along with the contractor Asir. This lends

assurance to the deposition of PW-6 when he deposed in Court

and hence is good and credible evidence apart from Gurcharan

Singh PW-3 identifying him as one out of the two workers who

had reported to carry on the grinding work in his house on

29.4.2003. Further, the recovery of a ring of the deceased and

the fact that Abdul @Abdulla was found missing from his

residence at Delhi and was traced in his village is also relevant

of his conduct i.e. absconding from Delhi immediately after the

offence was committed.

36. It is settled law that merely because a witness is

found to be partially lying would not discredit the entire

testimony of the witness. Why do witnesses conspire to involve

some people falsely is a question which is difficult to answer and

especially when no motive is attributed to the witness to falsely

implicate an accused. A probable answer would be that when

faced with a brutal crime, a human mind is too willing to spin

stories out of mere suspicions. Gurcharan Singh and Manjit were

naturally aggrieved by the brutal manner in which Mrs.Harbans

Kaur was murdered. Their anger would naturally be directed

against anyone who was associated in the work. The fire of their

anger engulfed Rehman, pertaining to whom, the evidence

suggests that he left the site on 28.4.2003 itself and did not

come back to work on 29.4.2003. The first and the immediate

statement made by Manjit to the police points towards the non-

involvement of Rehman and the involvement of Israel along with

the involvement of Abdul and Asir. What if Israel and Asir were

also apprehended? What would Manjit have said then? It is

obvious that he would have identified Israel as the second

worker. What has happened is obvious. Manjit had only two

accused before him during the trial as the others were

proclaimed offenders. Forgetting what he had told the police

immediately after the incident, Manjit has falsely inculpated

Rehman. It would not be out of place that even in his statement

Ex.PW-3/A Gurcharan Singh has spoken about two workers and

the contractor working in the house when he and Manjit @Rinku

left the house.

37. Crl.Appeal No.569/2006 filed by appellant Rehman is

allowed. He is acquitted of the charges framed against him.

38. Crl.Appeal No.497/2007 filed by appellant Abdul

@Abdulla is dismissed.

39. Copy of this order be sent to Superintendent, Central

Jail, Tihar for compliance in Crl.Appeal No.569/2006. If not

required in any other case, Rehman is directed to be set free

forthwith.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

February 26, 2009 dk