Babuddin vs State
2009 Latest Caselaw 2737 Del

*            HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment reserved on : 16.07.2009
                               Judgment delivered on: 21.07.2009

+                          Crl. Appeal No.225/2001


BABUDDIN                                     ..... Appellant
                    Through : Mr.Sumeet Verma, Amicus Curiae.

                                    VERSUS

STATE                                          .....Respondent
                    Through : Mr.Pawan Sharma and
                              Ms.Richa Kapoor, APPs.

                      Crl. Appeal No.833/2001


IQBAL                                        ..... Appellant
                    Through : Mr.Sumeet Verma, Amicus Curiae.

                                    VERSUS

STATE                                          .....Respondent
                    Through : Mr.Pawan Sharma and
                              Ms.Richa Kapoor, APPs.

                      Crl. Appeal No.849/2001


YASIN @KALLU                                 ..... Appellant
                    Through : Mr.Sumeet Verma, Amicus Curiae.

                                    VERSUS

STATE                                          .....Respondent
                    Through : Mr.Pawan Sharma and
                              Ms.Richa Kapoor, APPs.

                      Crl. Appeal No.512/2001

ISMAIL @CHHUTKA                       ..... Appellant
             Through : Mr.Sumeet Verma, Amicus Curiae.


Crl.A.No.225, 833, 849 & 512/2001                      Page 1 of 20
                                     VERSUS

STATE                                          .....Respondent
                    Through : Mr.Pawan Sharma and
                              Ms.Richa Kapoor, APPs.
CORAM :-
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?            Yes

     (3) Whether the judgment should be reported
         in the Digest ?                       Yes

PRADEEP NANDRAJOG, J.

1. With reference to the testimony of Daleep PW-11;

holding that the same establishes that the deceased Pradeep

was seen in the company of the appellants at 10:30 PM at

Bhatiara Chowk on 4.9.1998 and since the body of the

deceased was found the next morning on 5.9.1998 at around

10:00 AM at DDA Park near Buland Masjid, Shastri Park, the

learned Trial Judge has held that since the appellants have not

explained when and how they parted company with the

deceased, a conclusion could be drawn from said evidence

that the appellants had murdered the deceased. It has further

been held that evidence establishes that upon being

apprehended, appellants Yasin and Ismail made disclosure

statements giving information to the investigating officer that

they could get recovered shirts worn by Iqbal and Yasin which

they were wearing when they murdered the deceased and

thereafter got the same recovered on which blood was

detected. The same has been held to be further incriminating

evidence. Qua appellants Iqbal and Babuddin, it has been held

that evidence establishes that pursuant to their disclosure

statements in which they stated that they had hidden the

knives with which the deceased was murdered and they could

get the same recovered and pursuant thereto they got

recovered the knife Ex.P-2 and the knife Ex.P-1; the former by

Iqbal and the latter by Babuddin. On one knife blood was

detected. The same has been held to be further incriminating

evidence.

2. A dead body of a male was seen at Shastri Park

near Buland Masjid by an unknown informant somewhere

around 10:00 AM on 5.9.1998. He conveyed the said

information to the police control room wherefrom it was

conveyed to the duty officer of the concerned police station

i.e. PS Seelampur and was recorded vide entry DD No.19-B

Ex.PW-2/C, at 10:10 AM as recorded in the DD Entry. ASI

Harbeer PW-14 accompanied by Const.Vijender Singh PW-4

reached the spot. It appears that the police control room had

relayed the information of a dead body lying as aforenoted to

the duty officer PS Welcome and from said police station SI

Vinod PW-8 and Const.Brij Pal PW-6 reached the place where

the dead body was lying. Since the place where the dead

body was lying fell within the jurisdiction of PS Seelampur,

proceedings at the spot were conducted by ASI Harbeer PW-

14. The other police officers assisted him.

3. A photographer was summoned. Const.Ashok

Kumar PW-3, a photographer, reached the spot and took the

photographs Ex.PW-3/A1 to Ex.PW-3/A6. ASI Harbeer Singh

PW-14 lifted blood stained soil and grass from the spot as also

from a spot at a distance of about 70 feet from where the body

was lying as recorded in the seizure memos Ex.PW-9/A and

Ex.PW-9/E. A pair of shoes from near the dead body were

seized as recorded in the seizure memo Ex.PW-9/D. Since

news of a dead body being found had spread in the colony,

two persons Gopal PW-9 and Daleep PW-15 (we may note that

two witnesses, both related to the deceased have been

examined by the prosecution being Daleep PW-11 and Daleep

PW-15) who happened to be the maternal uncle and the cousin

brother respectively of the deceased reached the spot and

identified the dead body as that of Pradeep.

4. The dead body was taken into possession and SI

Vinod accompanied by Const.Brij Pal deposited the body at the

mortuary of G.T.B.Hospital where Dr.A.K.Tyagi PW-5 conducted

the post-mortem on 6.9.1998. As noted on the post-mortem

report Ex.PW-5/B the post-mortem commenced at 10:30 AM

and was completed at 11:40 AM. Under the caption "General

Observations", Dr.A.K.Tyagi wrote on the post-mortem report

as under:-

"Body of an average built young adult male of age about 22 years in advanced stage of decomposition. Both feet tied with shoe laces, body distanded with gases. Eyes buldging out. Maggots crawling (illegible) and entering through the open wounds, degloving and peeling of cuticle present at places. Scalp hairs peeling of at places with gentle pull only....."

5. 12 external injuries, being incised and stab wounds

were noted. It was opined that the cause of death was

haemorrhagic shock and that injuries No.3 to 8 and 11 were

sufficient to cause death in the ordinary course. With

reference to the injuries he opined that they were suggestive

of two weapons being used. He noted that the stomach

contains about 250 CC of semi-digested food. It would be

useful to note at this stage itself, that in the post-mortem

report, Dr.A.K.Tyagi has not opined the likely time of death,

but in his deposition in Court as PW-5 he deposed, with

reference to the post-mortem report, that according to him the

likely time of death was 2½ days prior to the day of the post-

mortem.

6. The next day of the discovery of the dead body of

the deceased, which as noted above, was discovered at

around 10:00 AM on 5.9.1998, i.e. on 6.9.1998, Daleep PW-11

informed the investigating officer, as recorded in his statement

Ex.PW-11/DA, that at around 10:30 PM on 4.9.1998 he had

seen the deceased in the company of the appellants at

Bhatiara Chowk. This led the investigating officer to

apprehend the appellants. As claimed by Insp.Tejpal PW-17,

who took over further investigation on 6.9.1998 itself, the

appellants were apprehended apparently on being informed,

as usually claimed by the police, on the information of a secret

informer from Shastri Park at 7:30 AM on 7.9.1998. The usual

story which we see in every case thereafter unfolded.

Insp.Tejpal PW-17 interrogated the appellants at the spot itself

and recorded their disclosure statements. Needless to state,

as in each and every case, the appellants made confessions.

The disclosure cum confessional statement of Iqbal is Ex.PW-

12/E, that of Babuddin is Ex.PW-12/F, that of Yasin is Ex.PW-

12/G, and that of Ismail is Ex.PW-12/H.

7. The confessional parts being inadmissible, we

eschew reference to the same. The relevant part of the

confessional statements is the statement of Iqbal as well as

Babuddin in which they have apparently stated that the two

knives used to murder the deceased have been hidden by

them in bushes in a jungle adjoining the place where the dead

body of the deceased was recovered and that they could

recover the same and the statement of Yasin and Ismail as per

which the shirt being worn by Iqbal and Yasin got stained with

the blood of the deceased when the crime was committed and

that the two of them i.e. Yasin and Ismail had hid the shirts at

a place where dirty water had accumulated in a field near

Buland Masjid and that they could recover the same. Pursuant

to the said disclosure statements, appellants Iqbal and

Babuddin jointly and simultaneously led the police to a jungle

near Buland Masjid and from the bushes produced two knives

which were seized vide memo Ex.PW-11/A. Appellant Yasin

and Ismail jointly and simultaneously led the police to a field

near Buland Masjid and from a place having stagnant dirty

water, produced/recovered two shirts which were seized vide

memo Ex.PW-12/K.

8. We may note that as per the report Ex.PW-17/C and

Ex.PW-17/D of the serologist, blood was detected on the two

shirts which were recovered at the instance of appellants Yasin

and Ismail and blood was detected on one of the two knives

which were got recovered by Iqbal and Babuddin. The two

shirts, on reaction, gave no result qua the origin of the specie

i.e. it could not be gathered whether it was human blood. The

knife on which the blood was detected, on further reaction,

tested positive for human blood and even its group was

detected i.e. group „AB‟. The same was the blood group of the

deceased. The blood stained grass and the soil recovered

from the two spots i.e. where the dead body was recovered

and at a distance of about 70 feet therefrom, on testing,

resulted in blood being detected from the soil and the grass

where the body was recovered, but specie of the blood or its

group could not be detected. From the other soil sample, on

reaction, no traces of blood could be detected.

9. As noted in para 1 above, the learned Trial Judge

has very heavily relied upon the testimony of Daleep PW-11 to

hold that the deceased were last seen alive in the company of

the appellants at around 10:30 PM on 4.9.1998 and that the

dead body of the deceased was noted at around 10:00 AM on

5.9.1998 and since the appellants have not rendered any

satisfactory explanation as to when and how they parted

company with the deceased, a presumption of guilt could be

drawn against them. Further, in view of the report of the

serologist that blood was detected on the two shirts which

were got recovered by appellants Yasin and Ismail and that the

blood of the same group as that of the deceased was detected

on one out of the two knives got recovered by appellants Iqbal

and Babuddin, the learned Trial Judge has reinforced his

conclusion of guilt.

10. It is apparent that the first and foremost point

which requires to be considered is whether the testimony of

Daleep PW-11 is creditworthy and inspires confidence. If yes,

whether from the fact that Daleep PW-11 saw the deceased in

the company of the appellants at Bhatiara Chowk at 10:30 in

the night and the place of death of the deceased was a field

near Buland Masjid, the dead body being found at 10:00 AM

the next day, can an inference adverse to the appellants be

drawn.

11. As per the testimony of Daleep PW-11, a fact

admitted by him during cross examination, he was residing in

the same house in which the deceased along with his mother

and sister Arti and brother Sonu were residing. Daleep has

stated in his examination-in-chief that the deceased was his

cousin. He claims in his examination-in-chief that after he saw

the deceased with the appellants at Bhatiara Chowk at 10:30

PM he spoke to the deceased and asked him if he would come

with him to their house to which the deceased replied that he

would come after sometime. Daleep claims that he went

home and next morning went to work and returned back the

next day. It is apparent that Daleep is buying time to explain

the delay in his telling the police that he saw his cousin

brother with the appellants at 10:30 PM on 4.9.1998.

12. Daleep has admitted that his statement was

recorded by the police on 6.9.1998. Daleep is conscious of the

fact that the dead body of his cousin was noted and

information was passed on to the police at 10:10 AM on

5.9.1998. Daleep is conscious of the fact that it would be an

unnatural conduct for him to be present in the house on

5.9.1998 and not inform the police that he saw his cousin in

the company of the appellants the previous night. This is the

reason why he claims to have left for work early in the

morning of 5.9.1998 and returned on 6.9.1998.

13. The deceased has obviously not returned home in

the night of 4.9.1998. It is strange that the mother of the

deceased would not bother if her son i.e. the deceased would

remain outside the house the entire night and would not come

back. The natural reaction of a mother would be to be

concerned if her son does not return by midnight and with

each passing hour, the anxiety would grow. The mother is

bound to express her concern to the other family members

and such of them who had seen her son outside the house

would certainly tell said fact to the mother. Daleep is

conscious of the fact that he has to say something about said

issue. He has done so. When cross examined whether he had

told the mother of the deceased that he had seen the

deceased at Bhatiara Chowk, he replied: I had stated to the

mother of deceased Pradeep in the evening on 5.9.1998 that

deceased Pradeep met me at Bhatiara Chowk. This is in direct

conflict with his categorical statement in the examination-in-

chief that "I learnt this when I returned home on the next day".

14. It is apparent that Daleep is vacillating. To justify

his going to the police and getting his statement recorded on

6.9.1998, he claims to have left the house in the morning of

5.9.1998 and returning back the next day i.e. 6.9.1998. To

explain the normal human conduct discussed by us in para 13

above, he claims to have told the mother of the deceased on

the evening of 5.9.1998 itself that he had seen the deceased

with the appellants. Both statements are mutually

contradictory and are irreconcilable.

15. We may note that the mother of the deceased has

not been examined as a witness and therefore we cannot

discuss the issue with reference to the testimony of the

mother of the deceased.

16. Under the circumstances, a reasonable doubt is

bound to arise in a judicial mind of Daleep PW-11 being a

truthful witness. His creditworthiness has been shaken. We

have no other evidence of the appellants being last seen in the

company of the deceased for the reason the other witness

namely Sharafat PW-1 has so badly contradicted himself that

even the learned Trial Judge has been compelled to ignore his

testimony. Indeed, during argument of the appeals, learned

counsel for the State conceded that the testimony of Sharafat

has to be ignored. We note the reason why the learned Trial

Judge has ignored the testimony of Sharafat is because at one

stage he claims that the deceased was a daily wager with him

and that on 4.9.1998, at around 8:30/9:00 PM, appellant Iqbal

came to him and enquired about the deceased and later on

went on to state that the only reason he knew the deceased

was because his mother i.e. the mother of the deceased used

to sell wares on a handcart near his house.

17. We also have a problem on the probable time as

also the day when the deceased died.

18. As noted above, during cross examination

Dr.A.K.Tyagi PW-5 stated that as per his opinion the likely time

of death of the deceased was 2½ days prior to the time of

post-mortem of the deceased. Unfortunately, the reason for

his opinion was not disclosed or stated by PW-5.

19. Modi‟s Medical Jurisprudence and Toxicology: 23rd

Edition at page No.436 onwards discusses the evidence of

putrefaction of a dead body. At page 437, the learned author

records that flies are attracted to a dead body and lay eggs,

especially in the wounds, and that the eggs hatch into

maggots within eight to twenty four hours during hot season.

These maggots turn into pupae in the next four or five days.

Thus, if maggots are detected on a dead body it is apparent

that the body is of a person who died at least a day prior. If

the maggots have turned into pupae it is apparent that the

dead body is four to five days old. The learned author,

accordingly, opines that when maggots are detected on a

body, specimens of maggots should be taken for culture and

preserved in formalin to check the stage of development.

Unfortunately, PW-5 has been negligent in not preserving the

maggots. Had he done so, upon being tested, the stage of

development of the maggot could have thrown more light on

the point of the likely time of the death of the deceased.

20. At page 438, the learned author records that as the

body decomposes, after 48 hours of the death, the

distinctiveness acquired by the body is of hair becoming loose

and capable of being easily pulled out. The nails also become

loose and hence easily detachable and this process continues

till the next 24 hours, after which the next stage of

decomposition which happens after 3 days sets in, i.e. the

loosening of the bones and the teeth becoming loose in their

sockets and falling off.

21. The third stage of decomposition of the body has

not been detected by PW-5 for the obvious reason, had it been

so he would have recorded said fact on the post-mortem

report. The second stage of decomposition which commences

after 48 hours of the death and continues to so exist over the

next 24 hours i.e. hair becoming loose and capable of being

easily pulled out and nails becoming loose and easily

detachable has been categorically recorded by the doctor.

The opinion of the doctor that the likely time of death was 2½

days prior to the time of post-mortem is explainable on the

Medical Jurisprudence. The mean average of 48 hours and 72

hours is 48 + 72 = 120 ÷ 2 = 60 hours i.e. exactly 2½ days.

22. Now, the post-mortem was conducted between

10:30 AM to 11:40 AM on 6.9.1998. With reference to the

post-mortem report and the Medical Jurisprudence, the body

had reached the second stage of decomposition and the likely

time of death was anywhere between 2 to 3 days prior to the

time of post-mortem, and if this be so, the likely inference

would be that the deceased had died between 10:00 AM to

10:00 PM on 3.9.1998. On this analysis, it would be difficult to

believe Daleep PW-11 that he saw the deceased at 10:30 PM

on 4.9.1998.

23. We have probablized the evidence by giving it a

360˚ looks from all side because we feel that in a case of the

kind it would be advisable to center on a point with reference

to more than one referral point, for the reason logic tells us,

that commencing the journey from more than two referral

points, if it takes the pilgrim to the same spot, it lends

credibility to the path of the journey and reassures the pilgrim

that he has reached the correct spot.

24. Assuming that Daleep had indeed seen the

appellants in the company of the deceased as claimed by him

at 10:30 PM on 4.9.1998; that the dead body was noted at

around 10:10 AM on 5.9.1998 is not in dispute: whether from

said two facts, a conclusion can be drawn that the appellants

had committed the crime, is the point for further

consideration.

25. Unfortunately, we have on record no evidence of

the distance between Bhataria Chowk where Daleep claims to

have last seen the deceased in the company of the appellants

and the place where the dead body was found.

26. The conviction of an accused on the evidence of

being last seen in the company of the deceased is on the

theory called the last-seen theory. The theory has been

explained in various decisions of the Supreme Court which

have been noted in the decision reported as 2007 (3) SCALE

740 State of Goa Vs. Sanjay Thakran & Anr. A passage (para

31) of an earlier decision in the decision reported as 2002 (8)

SCC 45 Bodh Raj Vs. State of J & K has been quoted with

approval, which reads: The last-seen theory comes into play

where the time-gap between the point of time when the

accused and the deceased were seen last alive and when the

deceased is found dead is so small that possibility of any

person other than the accused being the author of the crime

becomes impossible. It would be difficult in some cases to

positively establish that the deceased was last seen the

accused when there is a long gap and possibility of other

persons coming in between exists. In the absence of any other

positive evidence to conclude that the accused and the

deceased were last seen together, it would be hazardous to

come to a conclusion of guilt in those cases..."

27. To put it differently, where the circumstances of

being last seen in the company of the deceased are such,

which render it necessary for the accused to explain and

establish when, where and how they left the company of the

deceased, in the absence of any such explanation, any logical

mind would un-hesitatingly reach the conclusion that the

accused are guilty, only then on the theory of last seen an

inference of guilt can be drawn.

28. Friends sit around and loiter around. In their youth

they do so even late in the night. Parting company, each goes

to his house. Anything may happen to anyone of them on the

way. Interestingly, in Sanjay Thakran‟s case (supra) a

somewhat similar situation had arisen. The accused, a

married couple as also the deceased, also a married couple,

were known to each other. Accused No.1 and deceased No.1

were seen walking towards a beach and 2¼ hours thereafter

the dead body of deceased No.1 was found at the beach.

Accused No.2 and deceased No.2 were seen walking on the

road and thereafter nobody saw deceased No.2 till her dead

body was found with a gap of 8½ hours of her being last seen

alive with accused No.2. We may note that accused No.1 was

the husband of accused No.2. Deceased No.1 was the

husband of deceased No.2.

29. Though not so expressly said in so many words,

while upholding the acquittal of the accused, it is apparent

that what has weighed with the Lordships of the Supreme

Court is the fact if two friends go to a beach there is no

presumption that both of them would stay together at the

beach. There is every possibility of a third party being the

assailant. Similarly, where two friends are seen walking on a

street, there is every possibility of the two parting company,

and somebody else being the assailant. In this context the

issue of time gap becomes relevant. The issue of the place

where the two were last seen alive becomes relevant.

30. On the facts and circumstances of the instant case,

we hold that even otherwise, the circumstance of the

deceased being last seen in the company of the appellants,

being the only incriminating evidence, is insufficient evidence

wherefrom the only conclusion possible is that of the guilt of

the accused.

31. Our reason for saying that the only incriminating

evidence against the appellants, if at all, is the evidence of last

seen, for the reason we find the evidence pertaining to the

recoveries of the knives and the blood stained shirts at the

instance of the appellants, most unconvincing and unreliable.

Firstly for the reason the two shirts which have been shown as

recovered at the instance of appellants Ismail and Yasin have

not been detected with the presence of human blood thereon.

As per the report of the serologist the same have been found

to be stained with blood. We note that the blood has not been

connected to a particular specie. Further, save and except the

confessional statement of Yasin and Ismail that one shirt

belonged to Iqbal and the other to Yasin, which statements are

inadmissible in evidence, we have no evidence that the said

two shirts were worn by Yasin and Iqbal. Lastly, the place

wherefrom the shirts have been recovered is an open field

accessible to one and all. Similarly, qua the two knives which

have been shown to have been recovered at the instance of

appellants Iqbal and Babuddin, one out of the two knives did

not have any blood being detected thereon. No doubt, human

blood of the same group as that of the deceased was detected

on the other knife, but we note that the place of recovery of

the two knives is a jungle adjoining Buland Masjid, Shastri

Park. We note that the recovery memo does not mention that

the knives were lying concealed or hidden in a manner that

save and except a person having special knowledge about

their presence, none could detect the same. The recovery

memo Ex.PW-11/A simply records that after leading the

investigating officer to a jungle adjoining Buland Masjid, from

the bushes, Iqbal and Babuddin took out two knives. Lastly,

there is considerable confusion as to wherefrom the two knives

were recovered. As per Daleep PW-11, a witness to the

recovery memo Ex.PW-11/A the two knives were got recovered

by Iqbal and Babuddin from mud (the witness has used the

expression in vernacular "keechad") ahead of a mazar, but the

recovery memo records otherwise; it records that the two

knives were recovered from within the bushes in a jungle.

Thus, we are constrained to hold that the evidence pertaining

to the alleged recoveries is not only highly tainted but is even

otherwise worthy of no credit.

32. Last but not the least, though lack of proof of

motive may not be a ground to acquit an accused even in a

case of circumstantial evidence and where the circumstances

proved on record satisfy the panchsheel of the law pertaining

to circumstantial evidence a Court would be justified in

returning a finding of guilt. But in a case where last seen

evidence alone is sought to be projected as vital to a

conviction, it assumes significance whether the accused had a

motive to do what they did i.e. murder the deceased. In a

case of the kind at hand with which we are dealing, absence of

proof of motive becomes relevant. We note that the

prosecution has not even attempted to prove any motive. If

we go by the testimony of Daleep PW-11, the appellants and

the deceased were friends. Why should the appellants kill

their friend? The prosecution has not even attempted to

search for the answer.

33. That takes us to our destination. It is a happy

journey for the appellants for the reason the destination of our

journey is the acquittal of the appellants.

34. The appeals are allowed. The impugned judgment

and order dated 29.1.2001 convicting the appellants as also

the order of sentence dated 29.1.2001 are set aside. The

appellants are acquitted of the charges framed against them.

35. The appellants are on bail. Their bail bonds and

surety bonds are discharged.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE July 21, 2009 mm