Delhi High Court
Mohd. Rashid vs State on 4 May, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI
% Judgment reserved on : 27.04.2009
Judgment delivered on: 04.05.2009
+ CRL.A. 485/2001
MOHD. RASHID ...Appellant
Through: Mr. Rajesh Mahajan, Advocate
versus
STATE ...Respondent
Through: Mr. Pawan Sharma, Advocate
+ CRL.A. 803/2001
SANJAY KUMAR @ MANGAL ...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. Vide impugned judgment and order dated
31.10.2000, the appellants Mohd. Rashid and Sanjay @ Mangal
have been convicted for the offence of having murdered Ashok
Singh (hereinafter referred to as the deceased), for which
offence they have been sentenced to undergo imprisonment
for life and pay a fine in sum of Rs.4,000/-; in default of
payment of fine to undergo rigorous imprisonment for 1 year.
Both of them have also been convicted for the offence
punishable under Section 201 IPC i.e. destroying evidence for
which offence they have been directed to undergo rigorous
imprisonment for 5 years and to pay a fine in sum of
Rs.2,000/-; in default of payment of fine to undergo rigorous
imprisonment for 3 months. Both sentences have been
directed to run concurrently.
2. Case of the prosecution is that on 29.1.1996
appellant Sanjay @ Mangal was last seen in the company of
the deceased at around 7:30 PM in the office of Delhi Nainital
Goods Carrier near Apasara Delhi-UP border, by Manohar Lal
PW-6 and Vinod Kumar PW-7 and the two i.e. Sanjay and the
deceased left in a TSR bearing No.DL-1RA-1592 belonging to
the deceased of which deceased was the driver. Mohd. Rashid
and Iqrar Ahmed joined the company of the two i.e. Sanjay and
the deceased. Mohd. Rashid, Sanjay, as also the deceased,
consumed ganja and liquor. Sanjay removed his belt and with
the help of Mohd. Rashid strangulated the deceased who died
due to asphyxia. Getting scared, Iqrar Ahmed fled. Mohd.
Rashid and Sanjay threw the dead body of the deceased in a
drain at Jagat Puri adjoining Parwana Road and took along with
them the TSR of the deceased. Mahender Kumar PW-8 saw
Sanjay and Mohd. Rashid at around 5:30/6:00 AM on 30.1.1996
at Dadri-Noida Highway as the two flagged him while he was
driving a Maruti van and requested him to lend a spanner;
telling him that they required the spanner to change the wheel
of their TSR which had got punctured; the TSR being the one
belonging to the deceased.
3. Needless to state the case of the prosecution
hinged upon the veracity and the credibility of the testimony
of Iqrar Ahmed PW-2, Manohar Lal PW-6, Vinod Kumar PW-7
and Mahender Kumar PW-8. Of course, the manner in which
the investigating officer Inspector S.N.Khan PW-28, who took
over the investigation on 26.3.1996, claimed to have achieved
the break through and his testimony pertaining to the
investigation, also heavily impacts the case of the prosecution.
4. Before discussing the relevant evidence and the
attendant circumstances in which the evidence has to be
analyzed, we note that the impugned decision is one of the
poorest we have come across. The decision spanning 50
pages guides nothing and gives no reason. Till page 43, in a
parrot like manner the learned Trial Judge has simply noted
the case of the prosecution and the testimony of 29 witnesses
who were examined at the trial. Without any discussion or an
analysis of their evidence and completely ignoring the fact
that the circumstances of a case are as important as the
testimony of the witnesses as also the fact that what is stated
by a particular witness needs to be considered with reference
to the circumstance of a case, the learned Trial Judge has
concluded the decision in para 38 against the accused at page
43 and 44 of the impugned decision. There is no reasoning
preceding the conclusions arrived at. It is a strange decision
we have seen, where after noting the evidence, straight away
conclusions have been arrived at and thereafter in a summary
manner, in a single paragraph being paragraph No.39, the
contentions urged by the defence counsel and their reply by
the learned APP have been noted. Not only that. It neither
being the case of the prosecution that past enmity of the
accused was the motive for the crime, nor there being any
evidence to prove past enmity being the motive, the learned
Trial Judge has held that the evidence established that the
motive for the crime was past enmity. We simply do not
understand as to how the learned Trial Judge has held so. It
shows a complete non application of mind by the learned Trial
Judge. From the case of the prosecution as noted above, it is
apparent that the motive was to rob the deceased of his TSR.
We hasten to add that for unexplainable reasons the charge
sheet did not allege the offence of robbery against the
appellants.
5. We note para 38 of the impugned decision, which
as noted above, has been penned immediately by the learned
Trial Judge after noting the deposition of the 29 witnesses
examined by the prosecution. It reads as under:-
"38. There is no evidence on behalf of the accused
persons in defence. The motive on the part of the
accused persons is revealed to be previous enmity
and the evidence of the last scene is established
sufficiently beyond reasonable doubts by PW-7 Vinod
Kumar and PW-6 Manohar Lal. The both accused
persons were found by PW-8 Mahender Kumar Sharma
with the TSR of deceased immediately after the
incident at the same night and both the accused
persons have been identified by PW-8 Mahender
Kumar Sharma, PW-7 Vinod Kumar. Accused Sanjay
has refused to join TIP besides that accused Sanjay
was arrested on the identification by Vinod Kumar PW-
7 who got prepared his portrait immediately after the
incident. The belt used in committing the crime was
recovered at the instance of the accused Sanjay and
both the accused have made their disclosure
statement about the involvements in the crime of this
case and they have pointed out the place of
commission of crime and the place where the dead
body was thorwn by them and the place where the
three wheeler was abandoned by them vide pointing
out memos and disclosure statements. The PW-7 is a
natural witness who has identified the accused Sanjay
and his testimony cannot be disbelieved. Similar is
the position of testimony of PW-6 Manohar Lal. The
testimony of PW-8 Mahender Kumar Sharma cannot be
disbelieved only on the ground that he is only chance
witness because he had no motive against the
accused persons to implicate them falsely in this case
and also he was in his ordinary course of his business
when going to Surajpur with the spare parts of the
truck. On behalf of the accused persons in his cross
examination nothing could be extracted so that his
testimony could not be discarded as not genuine."
6. The involvement of the police with the instant case
was when between 9:00 AM - 10:00 AM on 30.1.1996
Const.Ashok Kumar PW-14 and HC Rahat Singh PW-25, both
posted at PS Suraj Pur spotted TSR No.DL-1RA-1592 near Rubi
Chemical Factory at Noida - Dadri Road with the left rear
wheel missing. The abandoned scooter was removed by them
to PS Suraj Pur. The same day i.e. on 30.1.1996, at around
4:22 PM, DD No.13A was recorded at PS Anand Vihar that a
wireless message has been received through the police control
room that a dead body was spotted at a drain at Parvana
Road, Jagat Puri. A copy of the DD entry was handed over to
ASI Ganga Ram who accompanied by Const.Harinder left for
the spot. Inspector Mohan Singh PW-20 then posted as the
SHO PS Anand Vihar was on patrol duty along with
Const.Lokender and Const.Suresh Kumar. Over his wireless
set even he was conveyed the information about a dead body
being spotted at a drain at Parvana Road, Jagat Puri and
accordingly he took the gypsy in which he and the two
constables were travelling to the place disclosed to them
where the dead body was spotted.
7. At the place where the dead body was found,
Inspector Mohan Singh prepared a statement of fact Ex.PW-
29/C and handed over the same to Const.Harinder who took
the same to the police station at 6:15 PM (as recorded on
Ex.PW-29/C). At the police station HC Krishan Kumar PW-29
registered the FIR Ex.PW-29/A under Section 302 IPC.
8. At the spot, Inspector Mohan Singh summoned the
crime team and a photographer. The crime team could not lift
any clue of substance and hence left. Const.Surender Singh
PW-17 took 6 photographs Ex.PX-1 to Ex.PX-6; negatives
whereof are Ex.PX-7 to Ex.PX-12. The dead body was sent for
post-mortem to the Civil Hospital Subzi Mandi through
Const.Satinder PW-13.
9. Though during trial Budh Ram PW-17 did not speak
about visiting the police station on 31.1.1996 to inform that his
relative Ashok (the deceased) was missing, but as claimed by
Inspector Mohan Singh PW-20, Budh Ram had visited the
police station since the deceased Ashok had not returned
home. Since an unidentified dead body had been found the
previous day, it appears that the said fact was disclosed to
Budh Ram. This is not a hunch of this Court, but the logical
inference which can be drawn from the fact that the next day
i.e. 1.2.1996 Budh Ram along with Asha PW-1, the wife of the
deceased, Manohar Lal PW-6, the brother of the deceased and
Suresh PW-11, the brother-in-law of the deceased identified
the dead body recovered by the police on 30.1.1996 as that of
Ashok Singh.
10. At the mortuary, Dr.Ashok Jaiswal PW-21 conducted
the post-mortem on 1.2.1996 and penned his report Ex.PW-
21/A recording therein the following 10 injuries on the person
of the deceased:-
"1. Lacerated wound on upper lid of left eye 1" x
1/3" x 1/4" with bruising around.
2. Haematoma on left frontal eminence 1½" x 1".
3. Bruise on dorsom of nose ½" x ¼", abrasion on
tip of nose ¼" x ¼" with fractured nasal bones.
4. Abrasion on left malaregion ¼" x ¼" and 3/4" x
¼".
5. Abrasion on left temporal region ½" x ¼".
6. Lacerated wound on chin 3/4" x 1/4".
7. Linear scratches on back of left hand 1cm, 1.5cm
and .5cm.
8. Crescentric abrasions on back of right index
finger and middle finger 3 mm each.
9. Bruise on right ear upper part 1 x ½".
10. There was a ligature constriction mark present in
front of neck almost horizontally and circling middle
part of neck over and just below thyroid prominence
brownish in colour with abraded and bruise margins
with a width varying 1.5 cm x 2 cm, running
horizontally place 5 cm below angle of mandible on
left side margins abraded and bruise with a width of 1
cm x 1.2 cm to posterior hairline. On right side it was
dark brown in colour parchment like with a width
varying from 1.5 cm x 2 cm placed 4.8 cm below angle
of mandible to posterior hairline."
11. He opined that the cause of death was asphyxia
consequent to ligature constriction of the neck. The probable
time of death was opined to be 2½ days prior to the date when
post-mortem was conducted. After the post-mortem, along
with the report he handed over the clothes of the deceased
and a blood sample to HC Ruda Khan PW-12 who took
possession of the same as recorded in the memo Ex.PW-12/A.
12. There is no evidence on record as to how Inspector
Mohan Singh PW-20 came to know that the deceased had left
his house in his TSR No.DL-1RA-1592, but he did learn said fact
from some source, for the reason he flashed a wireless
message to all the police stations in Delhi requiring his police
station to be informed if the TSR was spotted by any police
personnel in Delhi. At this stage we may note that probably
the said information was given to him by either the wife or the
brother or the brother-in-law or the friend of the deceased i.e.
either one of PW-1, PW-6, PW-10 and PW-11. But, we do not
find on record or even any reference in the testimony of
anyone of said witness or the investigation officer that the
statement of anyone of them was recorded in which said fact
was told by either one of them to the investigating officer.
13. Since information had been flashed to all police
stations to report, if cited, the whereabouts of TSR No.DL-1RA-
1592, and since the said TSR had been spotted and removed
to PS Suraj Pur on 30.1.1996 by Const.Ashok Kumar and HC
Rahat Singh, said information was transmitted to Inspector
Mohan Singh who deputed ASI Surender Singh PW-5 and HC
Devender Pal PW-15 to take possession of the TSR and
accordingly the two took possession of the TSR (Ex.P-8) as
recorded in the memo Ex.PW-5/A and deposited the same in
the Malkhana of PS Anand Vihar.
14. It remained a blind murder. Inspector Mohan Singh
PW-20, the investigating officer could make no headway.
15. Inspector S.N.Khan PW-28 in the District Crime Cell
was handed over with the investigation on 26.3.1996. On the
same day he recorded the statement Ex.PW-1/DA under
Section 161 of Smt. Asha PW-1, the wife of the deceased and
the statement Ex.PW-7/DA of Vinod Kumar PW-7, the employee
of the brother of the deceased. Whereas, Smt. Asha stated
that her husband was the owner of the TSR in question and on
29.1.1996 had left from the house with the TSR at 6:30 PM
informing her that he was going to meet his brother Manohar
Singh; Vinod Kumar stated that on 29.1.1996 at around 7:30
PM the deceased had come to the office of Delhi Nainital
Transport Co. where his brother was employed and that he
was accompanied by another boy aged about 24-25 years.
16. On 29.3.1996 Inspector S.N.Khan recorded the
statement of Manohar Lal PW-6, the brother of the deceased,
and the proprietor of Delhi Nainital Transport Co. who also
stated that at around 7:30 PM on 29.1.1996, his brother i.e.
the deceased had met him in his office and that he had seen a
boy in the TSR along with his brother. On the same day i.e.
29.3.1996 Inspector S.N.Khan recorded the statement of
Mahender Kumar PW-8 to the effect that he had come to the
police station to give some relevant information as he had
seen a poster published by the police at Pehlwan Dhaba,
Noida. He informed that at around 5:30/6:00 AM on 30.1.1996
when he was driving on the Dadri - Noida Highway in his
Maruti van and had reached near Ruchi Chemical Industries he
saw two boys waving and he stopped his van. The two boys
requested him to lend a spanner telling him that they needed
the same to change the wheel of their TSR as the same had
got punctured. He drove off telling them that the spanner
used in a Maruti van is unfit to be used in a TSR and that he
saw the TSR No.DL-1RA-1592 which was parked on the other
side of the road. That the poster which he had seen was that
of one of the two boys he had seen in the wee hours of
30.1.1996.
17. The appellants were apprehended on 30.3.1996.
Inspector S.N.Khan interrogated them and recorded their
statements, which we note are nothing but confessional
statements and hence completely inadmissible in evidence,
save and except the disclosure of Sanjay, pursuant whereto he
led Inspector S.N.Khan to a spot and pointed out a place
wherefrom a belt was recovered. In his statement Ex.PW-7/A
Sanjay disclosed that the belt used to strangulate the
deceased was kept by him in the house of his in-laws and that
he could get the same recovered. Thereafter, he led Inspector
S.N.Khan to the house of his in-laws in Gali No.9, Bihari Colony
and from a room adjoining the kitchen pointed out towards a
hanger on which was placed a leather belt which was seized
vide seizure memo Ex.PW-7/C.
18. On 3.4.1996, Inspector S.N.Khan recorded the
statement of Iqrar Ahmed PW-2, as per which on 29.1.1996 he
i.e. Iqrar Ahmed was a good friend of Mohd. Rashid and both of
them used to consume Ganja. That at 6:00 PM on 29.1.1996
Rashid met him and enquired whether he i.e. Iqrar Ahmed had
taken Ganja to which he replied that he had not taken Ganja.
At the instance of Rashid both boarded a bus from Jafrabad for
Kodi Colony and on reaching there Rashid called Sanjay @
Mangal. The two i.e. Rashid and Sanjay left leaving him at a
tea stall and returned after sometime having consumed Ganja.
The three came out of the colony and saw Ashok Singh, a
scooter driver, standing at the corner of the street. Rashid and
Sanjay had a talk with Ashok. They had some talk. Sanjay told
that he would drive the scooter as Ashok was drunk. Whilst
Sanjay drove the scooter the three i.e. Rashid, Ashok and he
i.e. Iqrar Ahmed sat in the rear seat and reached Apsara
Border. Rashid purchased two pouches of liquor. Sanjay and
Rashid consumed the liquor and Ashok consumed Ganja. They
sat there for about 2 hours. Even he i.e. Iqrar Ahmed smoked
Ganja. Thereafter all left the spot with Sanjay driving the
scooter and after crossing a railway bridge nearby, Sanjay
stopped the scooter and he i.e. Sanjay and Rashid brought out
Ashok from the vehicle who was completely intoxicated.
Sanjay handed over his belt to Rashid who used the same to
form a noose around the neck of Ashok. Thereafter both
Sanjay and Rashid strangulated Ashok. He i.e. Iqrar Ahmed
cried due to fear. Sanjay and Rashid threatened to kill him if
he discloses anything to anybody and that due to fear he sat
down silently. Thereafter Sanjay and Rashid put the body of
Ashok in the TSR and even he sat in the TSR which was driven
by Sanjay towards Vivek Vihar and on the way next to a nala
opposite Jagat Puri the two dumped the body in a pit as their
attempt to throw the same in the nala failed. He was once
again threatened to keep his mouth shut. That he was
volunteering the information as he no longer feared because
he had learnt that the accused were arrested.
19. On 10.4.1996, Iqrar Ahmed was produced before
the learned Metropolitan Magistrate Sh.Alok Aggarwal PW-23
and his statement Ex.PW-2/A under Section 164 Cr.P.C. was
recorded, in which Iqrar Ahmed stated as under:-
"I reside at 241, Block 22, Welcome, Delhi and drive a
scooter (TSR). I was introduced to Mohd. Rashid
through one of my friend Sajid. He also drive a
scooter. I develop friendship with Mohd. Rashid. On
29.1.1996 at about 6:00 PM Rashid met me and asked
me whether I had Ganja with me or not. We both
sometimes used to smoke Ganja together. I told him
that I do not have Ganja with me. At his instance,
both of us boarded a bus from Jafrabad for Kodhi
Colony. On reaching there one Mangal @ Sanjay
Kumar called out Rashid. Both of them, making me to
sit at a tea stall, came back within 5-10 minutes after
taking Ganja. Then all the three of us started coming
out of Kodhi Colony, one Ashok was standing at a
corner of the gali. He was also a scooter driver.
Rashid and Mangal after having some talks with each
other, called out Ashok. He came to us taking his
vehicle (TSR No.DL-IR-1592). After exchanging
greetings with each other, Mangal told Ashok that he
would drive the vehicle as Ashok was under the
influence of liquor. Now said, Rashid had said that he
would drive the vehicle. Then Rashid drove the
vehicle and all the three of us sat on the rear seat.
Rashid took the vehicle to Apsara Border. From there
Rashid took two pouches of liquor and Mangal and
Rashid consumed liquor. The offered "Ganja" and got
the same smoke to Ashok. We remained sitting there
for two/two and a half hours there. I also smoke
Ganja there. Thereafter Mangal drove the vehicle and
he took the same to railway bridge. After crossing
the bridge, Mangal stopped the vehicle at some
distance. Mangal and Rashid brought Ashok out of
the vehicle. Ashok was under the state of complete
intoxication. Mangal handed over his belt to Rashid
and Rashid put a noose of the belt around the neck of
Ashok and then both of them pulled the same. Ashok
fell down after the noose of the belt was pulled for
about 5-7 minutes. When I cried out, both of them
threatened me that in case I uttered anything, I would
be killed, as they were very much infuriated so I sat
down silently out of fear. Both of them made Ashok
to sit down in a side in the TSR and Rashid sat down
while holding him. I had sat down on the other side of
Rashid till then Ashok had died. Mangal brought the
vehicle towards Vivek Vihar. Then he, passing
opposite Karkardooma Court stopped the vehicle near
the nala opposite Jagat Puri. Then Rashid and Mangal
dragged out the dead body of Ashok from the vehicle
and standing by the side of a wall, threw the dead
body in a pit by the side of the wall. They had tried to
throw the dead body in the nala but the same could
not fall in the nala. Mangal again threatened me and
they dropped me at Welcome by that very vehicle
and then both of them left by the same vehicle.
Two/three days thereafter Rashid met me and he
again threatened me that in case I disclose anything
to anyone, I will be done to death. Due to fear I did
not disclose anything to anyone. Then I came to
know that Rashid and Mangal have been arrested, so I
went to Inspector Noor Khan and disclosed everything
to him. I still apprehend danger from Rashid and
Mangal."
20. On 8.4.1996, the appellants were taken for test
identification proceedings which were supervised by Sh.Alok
Aggarwal PW-23 the learned Metropolitan Magistrate.
Whereas Sanjay refused to join the TIP, Rashid was duly
identified by Mahender Kumar PW-8.
21. Needless to state the appellants were sent to trial
with the charge of having murdered Ashok Kumar and
destroying evidence. As noted above, for the reasons
recorded in para 38 of the impugned decision, with reference
to the testimony of PW-6 and PW-7 i.e. the deceased being last
seen as claimed by them in the company of Sanjay as also
with reference to the testimony of PW-8 who claimed to have
seen both appellants near the TSR in the morning of
30.1.1996, further noting that whereas Sanjay refused to join
TIP and Rashid was identified by Mahender Kumar at the TIP,
the learned Trial Judge has convicted the appellants.
22. It is apparent that while considering the contentions
of learned counsel for the parties, in appeal, the testimony of
PW-6, PW-7 and PW-8 as also the testimony of Inspector
Mohan Singh PW-20 and the testimony of Inspector S.N.Khan
PW-28 would be crucial and hence we would be noting the
testimony of said witnesses in a little detail. We eschew
reference to the testimony of other witnesses of the
prosecution for the reason all are formal witnesses. We would
also be, briefly noting the testimony of Iqrar Ahmed PW-2 who
turned hostile and would be considering his statement
recorded before the learned Metropolitan Magistrate under
Section 164 Cr.P.C., contents whereof have been noted in para
19 above.
23. Manohar Lal PW-6 deposed that he was a
transporter by profession carrying on business under the name
and style „Delhi-Nainital Good Carrier‟ having office near
Telephone Exchange at Delhi - UP Border. That he was sitting
in his office on 29.1.1996 and at about 7:30 PM his brother
Ashok came to his office to meet him after parking his TSR
No.DL-1RA-1592 outside as he had to discuss a domestic
problem pertaining to an operation of their father who was
residing in Punjab. That Ashok stayed with him for about 15
minutes during which period they held discussions and when
he came out of the office along with Ashok he saw a boy sitting
in the TSR. (The boy was pointed out to be Sanjay in doc
identification). He enquired from Sanjay about the destination
who told him that he was to go towards Welcome. He
enquired so as he had noted that his brother Ashok has
consumed alcohol. He requested Sanjay to take care of Ashok
who was intoxicated and that Sanjay assured him that he
would take Ashok to his house safely. Thereafter both left the
place in the TSR together and he boarded a bus for Punjab at
10:30 PM. He reached Punjab the next morning on 30.1.1996
and on 31.1.1996 received a telephone call from his employee
Satyawan informing that his brother Ashok had been
murdered. He immediately returned to Delhi by bus and went
to the mortuary on 1.2.1996 where he identified the dead body
of his brother in the presence of wife of his brother, pertaining
whereto, statement Ex.PW-6/A bearing his signatures at point
„A‟ was recorded. After the post-mortem he received the dead
body as recorded in the memo Ex.PW-6/B which bore his
signatures at point „B‟ and took the dead body to Punjab for
cremation. That on 29.3.1996 the police met him at around
5:30 PM in his office and recorded his statement. On 7.4.1996
he was informed to reach Tihar Jail on 8.4.1996 in order to
identify the culprits. He reached Tihar Jail and was informed
that the accused had refused to take part in the TIP and hence
he returned.
24. Manohar Lal was cross examined and in cross
examination stated that he never went to the police station for
any purpose regarding the case and that the first time the
police contacted him regarding the case was on 29.3.1996
when the police came to his office at Delhi - UP Border. With
reference to his testimony in examination in chief of having
seen Sanjay as claimed by him on 29.1.1996 he answered:
'during the visit of my brother in my office no other person was
there except Vinod sitting outside the verandah....... I went
with my brother from the office up to the three wheeler. My
brother himself started three wheeler and driver away himself.
When my brother came to three wheeler to take away three
wheeler at that very time a boy came and sat down in the
three wheeler. Before 29.3.1996 I did not tell this thing that a
boy was sitting in the three wheeler when my brother went
from my office after visiting me.' (Aforenoted is a verbatim
reproduction of the relevant extracts from the cross
examination and hence the grammatical errors have been
noted as occurring in the original text)
25. Vinod Kumar PW-7 deposed that on 29.1.1996 he
was present in the office of Delhi - Nainital Transport Co.
owned by Manohar Lal and at around 7:30 PM in the company
of Sanjay, Ashok Singh the younger brother of Manohar Lal,
came to the office in his TSR to meet Manohar Lal. Whereas
Sanjay sat with him, Ashok Singh had discussions with his
brother for about 15 minutes and thereafter both left in the
TSR with Ashok driving the same and Sanjay on the passenger
seat. That on 30.1.1996 wife of Ashok Singh came to their
office and enquired about Ashok Singh informing him that
Ashok Singh had left the house in the TSR the previous day but
had not returned home. He informed the wife of Ashok Singh
the facts which he had deposed to in Court. That on 31.1.1996
some police personnel came from PS Anand Vihar asking him
to summon Manohar Lal from Punjab, informing him that
Ashok Singh had been murdered. Satyawan a co-employee
contacted Manohar Lal who returned to Delhi the next day.
That on 2.2.1996 a police inspector from PS Anand Vihar came
to the office and he accompanied the police officer to the
headquarter of Delhi Police to help prepare a portrait of the
person who had accompanied Ashok Kumar to their office on
29.1.1996. The portrait was prepared and thereafter he
returned to the office. That on 26.3.1996 Inspector Khan
visited their office at around 5:00 PM and recorded his
statement. That the accused were apprehended in his
presence and Sanjay‟s disclosure statement Ex.PW-7/A which
bore his signatures at point „A‟ was recorded in his presence
and that thereafter Sanjay led the police to the house of his in-
laws i.e. House No.4/2376, Gali No.9, Bihari Colony and from a
room adjoining the kitchen produced a belt Ex.P-1 which was
seized by Inspector Khan as recorded in the memo Ex.PW-7/C
which bore his signatures at point A.
26. Mahender Kumar PW-8 deposed that on 30.1.1996
at about 5:30 AM while he was going to Surajpur via Dadri in
his Maruti van and had reached near Ruchi Chemicals he was
signaled to stop by the accused and he saw TSR No.DL-1RA-
1592 parked on the opposite side of the road. When he
stopped the van one of them asked him to supply a pana
(spanner) for repairing a punctured wheel of the TSR. He told
him that a pana used in a van is useless for a TSR and
thereafter he left for Surajpur. That on 22 or 23.3.1996 while
on the way to Surajpur he stopped at Pahlwan Dhaba for tea
and saw the poster with photograph of one of the accused
present in Court and recollected the same. He went to PS
Anand Vihar and was informed that the case had been
transferred to the District Crime Cell where he contacted Mr.
Khan who recorded his statement and that he was called to
Tihar Jail on 8.4.1996 where he identified accused Mohd.
Rashid before a learned Metropolitan Magistrate.
27. On being cross examined he stated that his
statement was recorded by Inspector Khan on 29.3.1996.
Being relevant for consideration of the submissions made in
appeal we note that on being specifically questioned as to
whose photograph he had seen in the poster as claimed by
him, he replied: 'I do not remember whose face was shown in
said poster out of two accused present in Court today.‟ It is
also relevant to note that during cross examination Mahender
Sharma admitted that he was in transport business. He
further admitted that he had not noted down the registration
number of the TSR when he saw the same in the morning of
30.1.1996, but volunteered that he had remembered the
number. It would be interesting to note that the counsel for
the accused questioned the witness as to how he had come to
the Court to which he replied that he had reached the Court on
his two wheeler scooter and to the question where he had
parked the same, he responded that he had parked the same
in the scooter stand. When questioned whether he could give
the number of the scooter parked next to his scooter at the
parking lot, the witness replied that he did not remember the
number.
28. Inspector Mohan Singh PW-20 deposed that on
30.1.1996 he was posted as SHO PS Anand Vihar and at 4:30
PM received a wireless message that a dead body was found
near Jagat Puri, Parwana Road, Ganda Nala, and he reached
the spot where ASI Ganga Ram, Const.Harinder, Const.Kanwar
Pal and Const.Satinder were present. He summoned the crime
team and a photographer. From various angles the body was
photographed. He sent the body after seizing the same for
post-mortem through Const.Satinder and Const.Kanwar Pal.
He noted the label of Weeksons Tailor on the shirt of the
deceased and located the whereabouts of Weeksons Tailor and
interrogated one Vinod a tailor in the shop but got no clues
regarding the identity of the deceased. He went to PS Gandhi
Nagar where he met Budh Ram who had come to the police
station to enquire about his missing relatives named Ashok.
He produced the photograph of the dead body recovered and
Budh Ram identified it to be the body of Ashok. He met Budh
Ram, Asha, wife of the deceased and Manohar Lal the brother
of the deceased at the mortuary of Subzi Mandi on 1.2.1996
where they identified the dead body and after the post-
mortem the body was handed over to the relatives. That on
1.2.1996 he flashed a wireless message regarding the missing
TSR number DL-1RA-1592 and on 2.1.1996 (appears to be a
typographic error and should read 2.2.1996), with the help of
Vinod PW-7 got prepared a portrait of the suspect in the crime.
That on 3.2.1996 he learnt that the TSR had been traced by
the police of PS Surajpur and he sent ASI Surender Singh and
HC Devender Prasad who took possession of the TSR as
recorded in the memo Ex.PW-5/A.
29. During cross examination he admitted that the
investigation remained with him till 20.2.1996. He further
stated during cross examination: „The person who identified
the dead body are Manohar, Suresh, Budh Lal and one more
person i.e. Smt.Asha the wife of the deceased. I have
examined all the above said persons on 1.2.1996. On
1.2.1996 the accused persons did not raise any suspicion on
any person and also do not made any allegation on a
particular person.' (Since it is a verbatim reproduction from the
testimony, we have noted the same as recorded, and hence,
the grammatical and syntax errors. It is apparent that the
reference to „accused persons‟ is a typing error and the same
should read „said persons'. Otherwise the sentence would
suffer from absurdity). During further cross examination he
admitted that he never recorded the statement of Vinod PW-7
till the investigation remained with him. We quote from his
cross examination: 'I did not recorded the statement of
Manohar Lal and Vinod PW-7 during the period of 1.2.1996 to
20.2.1996.'
30. As noted by us hereinabove, most unfortunately,
the learned Trial Judge has just not bothered to discuss the
testimony of the witnesses of the prosecution and has arrived
at conclusions in para 38 of the decision, without any appraisal
of the creditworthiness of the testimony of the prosecution
witnesses. Certain very critical and relevant questions which
arise were neither posed, much less answered.
31. The circumstances found incriminating by the
learned Trial Judge may be summarized as under:-
(i). Previous enmity with the deceased was the motive
for the crime.
(ii). Testimony of PW-6 and PW-7 established that the
deceased was last seen in the company of Sanjay, soon before
his dead body was found wherefrom an inference of guilt could
be drawn.
(iii). Within a short span of the deceased being last seen
alive, the accused were seen by PW-8 with the TSR of the
deceased.
(iv). Portrait of accused Sanjay was drawn before he was
arrested at the instance of Vinod Kumar PW-7.
(v). The belt used in commission of the crime was
recovered at the instance of Sanjay.
(vi). The disclosure statements of the accused were
corroborated by their acts of identifying the place where the
crime was committed; the place where the dead body was
thrown and the place where the TSR of the deceased was
recovered.
(vii). Whereas Mohd. Rashid was identified by Mahender
Kumar Sharma at the TIP conducted on 8.4.1996 and said fact
was incriminating against him; Sanjay refused to join in the TIP
and said conduct was incriminating against him.
32. We are surprised at the finding of motive i.e. past
enmity held to be proved by the learned Trial Judge. Not a
single witness of the prosecution had deposed that the
accused had any enmity with the deceased. Indeed, the
learned Trial Judge appears to have parroted whatever the
learned Additional Public Prosecutor argued. The learned Trial
Judge has not just applied his mind to the fact that neither the
charge sheet alleged enmity as the motive and no witness
deposed that the deceased and the accused had past enmity.
Thus, the first circumstance held incriminating by the learned
Trial Judge is no more than a ghost created by the learned Trial
Judge himself.
33. Did PW-6 and PW-7 actually see Sanjay with the
deceased as claimed by them at 7:30 PM on 29.1.1996 in the
office of PW-6? Did Vinod Kumar PW-7 assist in preparation of
a portrait of Sanjay as claimed by him i.e. Vinod Kumar and
Inspector Mohan Singh PW-20?
34. These two questions are at the core of the issue. It
may be stated at the forefront that no portrait of accused
Sanjay allegedly prepared with the help of Vinod Kumar PW-7
has been proved at the trial. The person who allegedly
prepared the portrait has also not been examined. What we
have on record are the bald statements of Vinod Kumar PW-7
and Inspector Mohan Singh PW-20 that on 2.2.1996, with the
help of Vinod Kumar a portrait of the accused was prepared. If
this be so, obviously Sanjay was a suspect known to the police
i.e. Inspector Mohan Singh at least on 2.2.1996. That Vinod
Kumar was the person whose help was taken to prepare the
portrait leads to the inference that Vinod had disclosed to
Inspector Mohan Singh that he had seen the deceased in the
company of Sanjay the previous evening. If this be so, the
statement of Vinod recorded by Inspector Mohan Singh had to
be proved. None has been proved. Inspector Mohan Singh
has not deposed that he recorded any statement made by
Vinod till he remained the Investigating Officer. As noted in
para 29 above Inspector Mohan Singh has admitted during
cross examination that he never recorded the statements of
Manohar Lal and Vinod PW-7. As noted in para 29 above,
Inspector Mohan Singh deposed that the dead body of the
deceased was identified by Manohar, Suresh, Budh Lal and
Asha at the mortuary on 1.2.1996 and that said persons never
raised any suspicion on any person. The absence of any
statement recorded by Inspector Mohan Singh coupled with
the fact that no portrait prepared at the instance of Vinod
Kumar has been proved and the so-called author of the
portrait has not been examined by the prosecution gives rise
to a strong suspicion that no portrait was ever prepared and
that Vinod never disclosed to Inspector Mohan Singh that he
had last seen the deceased in the company of Sanjay at 7:30
PM on 29.1.1996 in the office of Manohar Lal PW-6.
35. Even Manohar Lal the brother of the deceased
appears to have been brought in as a planted witness
evidenced by the fact that he had met Inspector Mohan Singh
at the mortuary on 1.2.1996 when he identified the dead body
of his brother and his statement pertaining to his pointing out
the dead body of his brother was recorded by Inspector Mohan
Singh on 1.2.1996. Had he i.e. Manohar Lal actually seen his
brother with Sanjay at 7:30 PM on 29.1.1996, he would have
certainly told said fact to Inspector Mohan Singh. That he did
not do so requires a reasonable inference to be drawn that he
never saw the deceased in the company of Sanjay as claimed
by him for the first time before Inspector S.N.Khan PW-28 on
29.3.1996.
36. With the belief that it stood proved that
immediately after the incident the police prepared a sketch of
the accused with the help of Vinod, a belief which has no
foundation for the reason the bald statements of Vinod and
Inspector Mohan Singh are rested on quick sand, the learned
Trial Judge has gullibly believed that PW-6 and PW-7 are
truthful witnesses to prove that the deceased was last seen
with accused Sanjay. Thus, the finding returned by the
learned Trial Judge that the evidence establishes that the
deceased was last seen in the company of Sanjay by PW-6 and
PW-7 is faulty inasmuch as the aforenoted features have been
ignored by the learned Trial Judge. Not only that. On being
cross examined Manohar Lal stated that after he went up to
the three wheeler from his office with his brother and his
brother started the three wheeler to drive the same himself, at
that time a boy came and sat in the three wheeler. The said
statement in cross examination completely demolishes his
testimony in examination-in-chief that when he came out of
the office along with his brother he saw a boy sitting in the
TSR; the boy being Sanjay from whom he enquired their
destination as his brother Ashok had consumed alcohol and he
requested Sanjay to take care of Ashok and Sanjay assured
him that he would take Ashok to his house safely. It is
apparent that Manohar Lal falsely deposed during examination
in chief about his dialog with Sanjay, probably for the reason,
he was instructed to say so to form a foundation to justify
Manohar Lal being able to identify Sanjay. We need not note
various judicial decisions where Courts have cast a doubt on
the identification of an accused by a witness who has but a
fleeting glance of the accused and that too in a chance
meeting during night or twilight time. We further note that
Manohar Lal has admitted during cross examination that
before 29.3.1996 he did not tell anybody about a boy sitting in
the three wheeler when his brother visited him. Was it not a
relevant fact, relevant even to a layman, to tell the police that
the brother was seen in the company of another person soon
before the offence of murder was committed! We feel it is.
The absence of Manohar Lal ever speaking on said line prior to
29.3.1996 is a relevant circumstance and cannot be ignored.
37. We hold that the testimony of PW-6 and PW-7 of
having last seen the deceased in the company of Sanjay at
7:30 PM on 29.1.1996 does not inspire any confidence and
hence the second circumstance found incriminating by the
learned Trial Judge is faulty.
38. The third circumstance found incriminating by the
learned Trial Judge is that the accused were seen by Mahender
Kumar PW-8 with the TSR of the deceased at around 5:30/6:00
AM on 30.1.1996. The learned Judge has held so by simple
believing and gullibly accepting whatever was spoken to by
PW-8.
39. As noted above PW-8 surfaced for the first time on
29.3.1996. He claims to have surfaced as he saw a poster of
an accused at Pehlwan Dhaba and he remembered the face of
the person whom he had seen in the wee hours of the morning
on 30.1.1996. Now, as noted above, we have no evidence of
any portrait of any accused being prepared and much less
posters being printed on the basis of any such portrait. The
very introduction of PW-8 in the course of investigation is
highly suspicious. PW-8 admitted being a transporter. The
brother of the deceased admitted being a transporter. Thus,
there is every possibility that PW-8 volunteered to be a witness
at the asking of PW-6. That apart, the testimony of PW-8
inspires no confidence for the reason in Court he could not
remember the face of the person seen in the poster by him.
He claimed to have remembered with reference to his memory
the number of the TSR. He admitted that he never noted the
number of the TSR which he saw on 30.1.1996. His testimony
shows that, if at all, he had a very brief conversation with the
two boys in the morning of 30.1.1996; the conversation being
the boys asking him for a spanner to remove the wheel of a
TSR and he informing them that the spanner of a van is of no
use on a TSR and thereafter he moving away from the place.
Unless one is a wizard with numbers or has an elephantine
memory it is against human conduct for a person who chances
upon to see a particular vehicle, remembering the number
thereof after nearly two months. We note that PW-8 made his
statement as recorded by Inspector S.N.Khan on 29.3.1996
which is exactly 58 days after 30.1.1996. That PW-8 is not a
wizard with numbers nor possesses an elephantine memory is
established by the fact that he was cross examined whether
he remembered the number of the two wheeler scooter parked
next to his scooter in the parking lot when he came to the
Court and he replied that he did not. Obviously, PW-8 has not
revealed a distinctive and a peculiar trait of a person, gifted by
God, to remember numbers. It is not insignificant to note that
the registration number of the TSR is not a simple two or three
digit number. The number is also not such which has a
characteristic of easy remembrance for example a number
„007‟, „1234‟, „4321‟ or „2222‟, „3333‟ or „1222‟, „2111‟ etc.
The number is fairly complex and non-sequential: „DL-1RA-
1592‟. Further, in the Northern part of this country, in which
zone the city of Delhi is situate, the sun does not rise by
5:30/6:00 AM on 30.1.1996. Even the dawn does not break by
said time. It is dark at said time. It is just not possible for PW-
8 to have noted the number of the TSR, which according to
him was parked on the opposite side of the road; the obvious
reason being that it was dark. In any case, no lasting
impression of an impregnable nature could have been
imprinted in the memory of PW-8 to have remembered the
number by heart, with reference to his memory, to so disclose
the same after 58 days.
40. The learned Trial Judge has acted with material
irregularity and has completely abdicated his judicial duty by
just not analyzing the testimony of PW-8 with reference to the
circumstances of the case. It is settled law that a
circumstance of a case is as important a facet as is the
testimony of eye witnesses and cannot be ignored. More often
than not, the veracity of an eye witness account can be tested
only with reference to the circumstances surrounding the
place, the time and the manner in which the eye witness
claims to be present and with reference to his presence,
deposes facts seen by him.
41. The fourth circumstance found incriminating by the
learned Trial Judge of Vinod getting prepared the portrait of
the accused Sanjay immediately after the incident is also,
accordingly held to be, a finding without any substantive
evidence. The bald statements of Vinod Kumar and Inspector
Mohan Singh inspire no confidence.
42. The sixth circumstance found incriminating by the
learned Trial Judge is that pursuant to their disclosure
statements the accused took the police to the place where the
crime was committed as also the place where the dead body
was thrown and the place where the TSR of the deceased was
recovered.
43. It is settled law that all statements made to the
police by an accused are inadmissible in evidence save and
except such statements which are made admissible by Section
27 of the Evidence Act. The sine qua non for the applicability
of Section 27 of the Evidence Act is that the police must
discover a fact for the first time, hitherto fore not in the
knowledge of the police, after the accused has told a fact to
the police. In the instant case the place where the dead body
was found was already in the knowledge of the police as early
as on 30.1.1996 and the knowledge of the place where the
scooter was found was with the police of PS Anand Vihar on
3.2.1996 when ASI Surender Singh PW-5 and HC Davinder Pal
PW-15 took possession of the TSR from their counterparts at
PS Surajpur UP as recorded in the memo Ex.PW-5/A. Thus,
said statements of the accused pertaining to the place where
the dead body was recovered and the place where the scooter
was recovered are inadmissible in evidence and have no
evidentiary value. We are surprised at the finding returned by
the learned Trial Judge that the accused pointed out the place
where the deceased was murdered. The police can show any
spot as the place of murder if the same is alleged by the police
not to be the one where the dead body was recovered. Unless
there is something to show that a crime was committed at a
particular spot, which normally would be in the form of seizure
of some relevant object establishing the commission of a crime
at a particular spot, mere statements of an accused and
leading the police to any spot and the two being held to be
incriminating evidence would be nothing but a travesty of
justice.
44. Thus, the sixth circumstance found incriminating by
the learned Trial Judge is completely illegal, being contrary to
the known and recognized principles of law.
45. That leaves only one circumstance to be discussed
namely circumstance five listed by the learned Trial Judge i.e.
the recovery of the belt used in the commission of the crime at
the instance of Sanjay.
46. Unlike a firearm, a belt would at best be a possible
weapon of offence where death is attributed to strangulation in
a manner ligature marks are left on the neck, as is in the
instant case. Thus, nothing much turns on the recovery of the
belt Ex.P-1. Assuming something turns thereon, this and the
fact that accused Sanjay refused to join in the TIP and accused
Mohd.Rashid was identified by Mahender Kumar Sharma at the
TIP conducted on 8.4.1996 are the only piece of evidence
which are left as incriminating evidence, and by no stretch of
imagination are sufficient to form a complete chain of
circumstances wherefrom the only inference which is possible,
is the guilt of the accused.
47. Though, the learned Trial Judge has ignored the
testimony of Iqrar Ahmed PW-2 as he turned hostile because
he deposed that Inspector S.N.Khan threatened him with dire
consequences unless he stated false facts, which he did, and
as recorded in his statement Ex.PW-2/A before the learned
Metropolitan Magistrate, but it would not be out of place to
note the utter inconsistency with the case projected at the trial
if one takes into account the statement Ex.PW-2/A. If the facts
stated therein are taken to be the touchstone of truth, it is
apparent that after Rashid and Iqrar Ahmed met Sanjay at Kodi
Colony and thereafter Ashok joined them, they never parted
company with each other and made merry at Apsara Border by
consuming liquor and Ganja and thereafter proceeding
towards Vivek Vihar and on the way, the appellants throttling
Ashok and thereafter dumping his body. Where was the
occasion for PW-6 and PW-7 to have seen the deceased in the
company of Sanjay at 7:30 PM, as claimed by them.
48. It is evident that Inspector S.N.Khan has went about
introducing planted witnesses to break the deadlock. It is not
out of place to note that the previous investigating officer
achieved no breakthrough and as admitted by Inspector
S.N.Khan, the investigation of the case was entrusted to him
on 26.3.1996. Surprisingly enough, on the very first day of
investigation being entrusted to him, Inspector S.N.Khan
managed a breakthrough. Being in the special crime team, it
was obviously a matter of prestige for Inspector S.N.Khan. His
reputation was at stake. He had a motive to introduce planted
witnesses so that he could claim credit for cracking a blind
murder. As noted above, he did so by introducing a story that
when he got the file he saw a portrait of a suspect, a fact not
proved by the evidence on record. He brought in PW-8 as a
planted witness with reference to a non-existent portrait and a
non-existent poster. He introduced PW-6 and PW-7 as
witnesses and made them speak having last seen the
deceased in the company of accused Sanjay. For obvious
reasons and as noted above, the introduction of the said
witnesses with reference to their testimony is highly
suspicious. He picked up Iqrar Ahmed PW-2, who is a near
vagabond himself and hence susceptible to police pressures
and compelled PW-2 to falsely testify before a Metropolitan
Magistrate, ignoring that what he i.e. Inspector S.N.Khan
wanted to be spoken by PW-6 and PW-7 would just not fit into
the theory of the crime sought to be projected through the
motivated and false statement procured by him through the
mouth of PW-2.
49. Individually, and cumulatively, the inescapable
conclusion is that if not a clean acquittal on merits, at least
with the aid of the benefit of doubt, the appellants are entitled
to be acquitted from the charge framed against them.
50. The appeals are allowed. Impugned judgment and
order dated 31.10.2000 and the order of sentence dated
6.11.2000 is also set aside. The appellants are acquitted of
the charge framed against them.
51. The appellants are on bail. Their bail bonds and
surety bonds are discharged.
(PRADEEP NANDRAJOG)
JUDGE
(ARUNA SURESH)
JUDGE
May 04, 2009
mm
