Dinesh vs State (N.C.T.) Of Delhi
2009 Latest Caselaw 4567 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                            Judgment reserved on: November 03, 2009
                            Judgment delivered on : November 10, 2009


+      CRIMINAL APPEAL NO.416/2009

       FURKAN @ YUSUF                                         ..... Appellant
                                    Through:       Mr.R.N. Mittal, Sr. Advocate
                                                   with Mr.D.K. Singh, Advocate.
                     Versus

       THE STATE (NCT OF DELHI)                              ..... Respondent

                                    Through:       Mr. Pawan Sharma, APP

                                         WITH

+      CRIMINAL APPEAL NO.497/2009

       MASOOD AHMED                                          ..... Appellant
                                    Through:       Mr. Anupam S. Sharma,
                                                   Advocate.

                     Versus

       STATE OF DELHI                                        ..... Respondent
                                    Through:       Mr. Pawan Sharma, APP

                                         WITH

+      CRIMINAL APPEAL NO.653/2009

       DINESH                                                ..... Appellant
                                    Through:       Ms.Charu Verma, Amicus.

                     Versus


       STATE (N.C.T.) OF DELHI                               ..... Respondent
                          Through:                 Mr. Pawan Sharma, APP


                                          AND



Crl.A.No.416/2009, 497/2009, 653/2009 & 660/2009                       Page 1 of 17
 +      CRIMINAL APPEAL NO.660/2009

       SHAHID                                                ..... Appellant
                                    Through:       Ms.Purnima Sethi, Amicus.

                     Versus

       STATE (N.C.T.) OF DELHI                               ..... Respondent
                          Through:                 Mr. Pawan Sharma, APP

       CORAM:
       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.     Whether Reporters of local papers may be
       allowed to see the judgment?

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be reported
       in Digest ?


AJIT BHARIHOKE, J.

1. Above appeals are directed against the common judgment of

conviction dated 20.04.2009 in Sessions Case No.225/08, FIR No.51/02,

Police Station Adarsh Nagar vide which appellant Furkan has been

convicted for offences punishable under Section 302 read with Section

34 IPC and section 27 of the Arms Act, whereas other three appellants

have been convicted for the offence punishable under Section 302 read

Section 34 IPC, and the consequent order on sentence dated

28.04.2009.

2. Briefly put, case of the prosecution is that on the intervening

night of 14th and 15th February, 2002, one Harsha S/o Ramo informed

Police Station Adarsh Nagar on telephone that his son Sanjay @ Lade

has been murdered by Dinesh, Shahid, Masood Ahmed and Yusuf. The

information was recorded as DD No.22A and copy of DD report was

entrusted to SI Naresh Kumar Bhatia for necessary action. SI, Naresh

Kumar Bhatia along with Constable Ravinder left for the spot of

occurrence. There he found the dead body of Sanjay lying on the bank

of Nala with some portion of the body within the water. There were

injuries on the throat as well as other parts of the dead body and blood

was lying at the spot. He met the complainant Harsha-PW7 and

recorded his statement.

3. That Harsha in his statement Ex.PW7/A disclosed that on the

intervening night of 14th and 15th February, 2002 at about 12:15 a.m.,

he was informed by Chowkidar Prem Bahadur that the appellants

Dinesh, Shahid, Masood Ahmed and Furkan @ Yusuf were quarrelling

with his son Sanjay @ Lade (deceased) and Yusuf was having a knife in

his hand. Chowkidar also told the complainant that when he tried to

save Sanjay, the appellants threatened him and asked him to go away

and that the appellants were taking his son towards the 'khatta'

(garbage dumb). On this information, the complainant immediately

rushed towards the 'khatta' and searched for his son. When he could

not find his son there, he proceeded towards 'Shah Alam Bandh' and

on reaching near the 'Bandh', he saw that the appellants had already

grounded his son Sanjay @ Lade. Appellants Dinesh and Shahid were

holding him from his arms and hair and appellant Masood Ahmed was

holding his legs while appellant Furkan @ Yusuf was stabbing him with

a knife on his face and neck and while beating him, appellants were

also dragging the deceased towards the Nala. PW7 Harsha further

stated that before he could reach at the spot, the appellants managed

to drag his son into the Nala and when he raised alarm, all the

appellants ran away. On reaching the spot, the complainant found his

son Sanjay already dead. SI Naresh Kumar Bhatia sent the aforesaid

statement of the complainant along with his endorsement to the Police

Station for registration of the case and on the basis of the said

statement, FIR under Section 302 IPC read with Section 34 IPC was

registered and the investigation was taken over by the SHO, Inspector

O.P. Meena.

4. That Inspector, O.P. Meena reached at the spot. On inspection of

the dead body, he found injuries on the throat and other parts of the

body and some blood was lying near the spot. Crime team also

reached at the spot for inspecting the scene of crime and prepared its

report Ex.PW6/A. The police photographer took photographs of scene

of crime from various angles. Site plan Ex.PW7/V was prepared with

the assistance of PW7 Harsha. The Investigating Officer lifted the

blood stained earth and the control earth from the spot of occurrence

and seized both the samples after converting them into separate

sealed packets. Inquest was conducted and the dead body was sent

for post mortem examination. The Investigating Officer also collected

the post mortem report Ex.PW4/A.

5. During investigation, all the four appellants were arrested. On

interrogation, they made disclosure statements. Pursuant to said

disclosures, blood stained pants of Furkan, Dinesh and Masood Ahmed

were recovered at the instance of respective appellants. Shahid also

made a disclosure wherein he stated that he had burnt the pant which

he was wearing at the time of occurrence. On 16.02.2002, Furkan was

again interrogated. He made a disclosure statement and pursuant to

that, he got the weapon of offence i.e. knife Ex.P-1 recovered from the

mud inside the 'Nala' near the spot of occurrence. The knife was taken

into possession after preparing its sketch and converted into a sealed

pulanda.

6. All the incriminating articles seized during investigation were sent

to CFSL for serological examination and the report was collected. On

completion of investigation, charge sheet against the appellants was

filed.

7. Appellant Furkan was charged for offences punishable under

Section 302 read with Section 34 IPC and 27 Arms Act, whereas the

other three appellants were charged under Section 302 IPC read with

Section 34 IPC.

8. In order to bring home the guilt of the appellants, prosecution

examined 15 witnesses including PW7 Harsha, who has given an eye

witness account of the occurrence.

9. The defence of the appellants is that they are innocent and they

have been falsely implicated. Accused Masood Ahmed took the plea

that the deceased had purchased one old fridge from Masood Ahmed

for Rs.3500/- on 22.04.2004. The fridge developed some complaint, so

the deceased brought it for repairs. However, later on Sanjay @ Lade

wanted to get the fridge sold and it was resold for Rs.2200/-. After a

few days, PW7 Harsha visited the shop of appellant Masood Ahmed and

complained that he had pushed the deceased Sanjay into bad habits

like gambling and left the shop after extending threat to Masood

Ahmed.

10. On conclusion of trial, the learned trial Judge relied upon the eye

witness account of PW7 Harsha coupled with the recovery of

incriminating articles i.e. the weapon of offence knife Ex.P-1 at the

instance of Furkan @ Yusuf and the blood stained pants of appellants

Furkan, Dinesh and Masood Ahmed at their instance and found the

appellants guilty of offences punishable under Sections 302/34 IPC and

convicted them on the aforesaid account. Appellant Furkan was also

convicted under Section 27 of the Arms Act.

11. Learned Shri R.N. Mittal, Sr. Advocate for the appellant Furkan @

Yusuf, Shri Anupam S. Sharma, advocate for the appellant Masood

Ahmed, Ms.Charu Verma, amicus curiae for the appellant Dinesh and

Ms.Purnima Sethi, amicus curiae for the appellant Shahid have

assailed the impugned judgment on the following grounds:

(i) That the investigation of the case is unfair since the very

beginning and that the FIR in this case was ante timed and

recorded at a highly belated stage after due deliberations

to falsely implicate the appellants on suspicion.

(ii) That the prosecution case is mainly based upon the eye

witness account of Harsha PW7, which is not reliable

because of the various infirmities.

(iii) That the evidence of recovery of the incriminating articles

i.e. blood stained pants at the instance of Furkan @ Yusuf,

Dinesh, Masood Ahmed and Shahid and the knife Ex.P-1 at

the instance of accused Furkan @ Yusuf is doubtful.

12. It is the case of prosecution that the police machinery was set

into motion by DD No.22A recorded on the receipt of the telephonic

information given by PW7 Harsha S/o Ramo that his son Sanjay @ Lade

has been killed by the appellants Dinesh, Shahid, Masood Ahmed and

Yusuf @ Furkan on the roadside of 'Shah Alam Bandh'. Though DD

No.22A has not been proved by the prosecution, yet it can be seen in

favour of the defence. If we go by the DD report, the information was

conveyed by PW7 Harsha on telephone, whereas Harsha in his cross-

examination is categoric that he did not inform the police on the

telephone about the murder of his son by the appellants. Instead, at

one stage, in his cross-examination he stated that nearby jhuggi

persons had telephoned the police and on a later stage, he claimed to

have no knowledge as to who informed the police about the

occurrence. Thus, it remains unexplained on record as to how and in

what manner the police came to know about the incident which

prompted Inspector Naresh Kumar Bhatia to visit the spot of

occurrence. Coming to the question of the FIR being ante timed,

Constable Kishori Lal- PW9 is stated to have delivered the copies of the

FIR (special report) to the senior police officer and the area magistrate.

Ex.PW14/DA is DD No.2A dated 15.02.2002, Police Station Adarsh

Nagar, which records the arrival of Constable Kishori Lal at the Police

Station. Constable Kishori Lal-PW9 in his cross-examination has stated

that he started from the Police Station to deliver the copy of the FIR at

4:35 a.m. and delivered it at the residence of Metropolitan Magistrate,

Sarita Vihar after about one hour. This implies that the copy of FIR was

delivered at the residence of concerned Metropolitan Magistrate

somewhere around 5:30 a.m. This version of PW9 Constable Kishori Lal

is belied by the endorsement of the second link magistrate on the copy

of FIR Ex.PW1/A to the effect that it was received by him at 3:15 p.m.

This circumstance, surely, creates a doubt about the timing of

recording of the FIR as also the time of recording of DD No.2A dated

15.02.2002 about the arrival of Constable Kishori Lal-PW9 after the

delivery of the FIR at the residence of Metropolitan Magistrate.

Learned counsels for the appellants have further pointed that

admittedly as per prosecution, the incident took place at about 12:15

a.m. in the night. DD report pertaining to information about the

occurrence was recorded at the Police Station at 1:05 a.m. The

statement of PW7 Harsha, according to the prosecution, was recorded

by PW13 SI Naresh Kumar Bhatia at 12:15 a.m., Rukka was sent to the

Police Station at 3:30 a.m. and the FIR was recorded at 3:50 a.m. The

Investigating Officer, O.P. Meena-PW14 has stated in his cross-

examination on behalf of the accused Masood Ahmed that Ravinder

Kumar returned back to the spot of occurrence with the copy of FIR at

4:30 a.m. Admittedly, the crime team also reached at the spot of

occurrence at 4:30 a.m. and remained there till 5:30 a.m., and during

said period PW7 Harsha was also present at the spot. Inspector, O.P.

Meena in his cross-examination stated that he had briefed the crime

team about all the facts of the case. It is also the case of the

prosecution that crime team prepared its report Ex.PW6/A. Perusal of

crime team report Ex.PW6/A shows that it is prepared on a printed

performa having various columns for specific inputs. It transpires from

the report Ex.PW6/A that in the column of FIR Number of the case,

crime team has mentioned DD No.22A dated 15.02.2002 under Section

302 IPC. Non-mentioning of FIR Number in the aforesaid column

particularly when, as per the case of prosecution, before the departure

of the crime team, the copy of FIR had reached the spot of occurrence

raises a strong doubt that by the time the crime team report Ex.PW6/A

was prepared, formal FIR was not registered at the Police Station. It is

also noted that in the column of date and time of offence, though the

date is mentioned as 15.02.2002, but the time is mentioned as

unknown. This circumstance compounds the doubts further and not

only this when in DD No.22A, it was clearly mentioned that Sanjay @

Lada has been killed by the appellants in the details of the case

mentioned in Ex.PW6/A, the name and identity of the deceased initially

recorded unknown, but after deleting the word unknown, it was written

as Sanjay @ Lada. In view of above evidence, learned counsels

appearing on behalf of the appellants have urged us to infer that in this

case, manipulation has been done by the police regarding the contents

of the FIR and the time of the FIR. Learned counsel for the State, on

the other hand, has stated that perusal of the FIR Ex.PW1/A shows that

it is mentioned in the body of FIR that copy of the FIR was being

forwarded to the Investigating Officer and crime team and

photographer were also referred to the spot of occurrence. From this,

he has urged us to infer that this circumstance itself rules out the

possibility of ante timing of the FIR.

13. On careful consideration of the submissions made on behalf of

the respective parties, we are not convinced with the submission of

learned counsel for the State. Recording of the FIR was in the hands of

the officials of the Police Station. A possibility cannot be ruled out that

without recording the FIR, the crime team might have been asked to

reach at the spot and the FIR as well as DD No.22A were recorded at a

later stage. This doubt is further compounded by the fact that though

case of the prosecution is that DD No.22A was recorded on the

information given by Harsha-PW7, this fact is not supported by PW7

who was categorical in his testimony that he did not inform the police

about the occurrence.

14. It was further submitted on behalf of the appellants that perusal

of the arrest memos of the respective appellants Ex.PW7/F, Ex.PW7/G,

Ex.PW7/H and Ex.PW7/I would show that in all the arrest memos, the

time of arrest has been changed by overwriting, which indicates that

some manipulation has been done by the police during investigation.

Learned counsel for the State in order to refute this argument has

urged us to peruse the case diaries and from the case diaries, he has

pointed out that in the carbon copies available in the case diary, there

is no interpolation or overwriting about the time of arrest in the arrest

memos. From this he has urged us to infer that this overwriting has

been done deliberately in the court record by someone to help the

appellants. Indeed, on perusal of the carbon copies of the arrest

memos available in the case diary, we find in those arrest memos there

is no overwriting about the time of arrest, but we notice that the

carbon impression regarding the time mentioned in the memos is

different than the carbon impression of the particulars filled in other

columns of the arrest memos. This circumstance leads to an inference

that the column for time of arrest was left unfilled when the arrest

memos Ex.PW7/F to Ex.PW7/I were prepared and the time was later on

mentioned by making use of another carbon paper. Even otherwise, if

we ignore this factor, then also a possibility cannot be ruled that the

overwriting was done by the Investigating Officer subsequently at the

time of preparation of charge sheet and filing said documents in the

court along with the charge sheet. Thus, in our considered view, the

fairness of the investigation definitely is suspect and a possibility

cannot be ruled out that the FIR in this case has been ante timed and

prepared after due deliberations.

15. It was next submitted on behalf of the appellants that the case of

the prosecution rests mainly on the testimony of Harsha-PW7, the

father of the deceased. It was submitted on behalf of the appellants

that the presence of PW7 Harsha at the time of occurrence is highly

doubtful and a possibility cannot be ruled out that he has been

subsequently introduced as a witness to implicate the appellants

merely on the basis of suspicion. In support of this contention, it was

submitted that as per version of PW7 Harsha, he was told by Chowkidar

Prem Bahadur on the night intervening 14-15.02.2002 at about 12:15

a.m. that the appellants, one of whom was having a knife in his hand,

were quarreling with his son Sanjay @ Lade (deceased) and taking him

towards 'kuda khatta'. This prompted the complainant Harsha to

proceed towards 'khatta' and when he did not find his son there, he

went towards 'Shah Alam Bandh', where he witnessed the incident of

stabbing of his son by the appellants. In the cross-examination,

Harsha-PW7 has stated that it took him about 25 minutes to reach

there. If the version of PW7 Harsha is to be believed, then by

implication, it means that the appellants waited for about half an hour,

since the quarrel ensued to stab the deceased Sanjay @ Lade as if they

were waiting for PW7 to reach at the spot and witness the occurrence,

which is highly improbable. Further PW7 Harsha in his cross-

examination has admitted that there was no electricity at the 'kuda

khatta' or near the spot of occurrence. Therefore, it is also highly

improbable that the witness could have seen the appellants stabbing

the deceased. On perusal of the complaint statement of PW7 Harsha

Ex.PW7/A, it transpires that when the complainant reached near the

spot he saw that his son was lying on the ground and he was held by

appellants Shahid, Dinesh and Masood Ahmed from his hair, arms and

legs respectively and appellant Yusuf @ Furkan was stabbing him on

his face and neck while the deceased was being dragged towards the

Nala. One wonders as to how the appellants could have managed to

drag the deceased on the ground towards Nala and simultaneously

managed to keep on stabbing him with the knife. It is further pointed

out that PW7 Harsha also stated in his cross-examination that he did

not hold or touch his son to find out whether or not he was dead or

alive, which conduct on the part of the father is highly unnatural. PW7

tried to explain his aforesaid conduct by stating in his cross-

examination that he did not touch his son, as he was already dead and

he concluded this as most portion of his neck was cut and one eye had

been removed from the socket and this he saw by burning two

matchsticks. Above explanation of PW7 for such unnatural conduct is

not acceptable. It is inconceivable that a father on seeing his son in

injured condition would not try to feel his pulse or heartbeat to ensure

if he was alive in order to take him for treatment to save his life.

16. Further, according to PW7 Harsha, his son Ramesh also reached

at the spot at about 6:00 a.m. Ramesh was examined as PW3. He

stated in his examination-in-chief that he identified the dead body of

his younger brother Sanjay in the mortuary of Jagjeewan Ram Hospital.

In the cross-examination, he stated that he did not come to know about

the manner in which his brother was killed till the time he identified the

dead body. As per the testimony of PW14, Inspector O.P. Meena, the

dead body was sent to mortuary at around 9:30 a.m. in the morning.

This implies that PW3 Ramesh would have identified the dead body

sometimes after 9:30 a.m. and till then he was not aware as to how his

brother was killed. If Ramesh had reached at the spot at 6:00 a.m. in

the morning, under the natural course of circumstances, PW7 Harsha

was expected to tell him about the manner in which the appellants

killed the deceased. The fact that PW3 Ramesh was not aware about

the manner in which his brother Sanjay @ Lade was killed, raises a

strong doubt that PW7 is not an eye witness to the occurrence.

17. In view of the aforesaid infirmities, learned counsels for the

appellants have urged us to conclude that PW7 Harsha is not a reliable

witness and his presence at the spot at the time of occurrence is highly

doubtful. On the other hand, learned counsel for the State has

submitted that above said infirmities pointed out on behalf of the

appellants are inconsequential and those cannot be made a reason to

discredit the ocular testimony of PW7 Harsha. He has submitted that

there is nothing on the record to suggest as to why PW7 Harsha would

falsely implicate the appellants and let the real culprit who committed

the murder of his son go scot free.

18. We have carefully considered the submissions made on behalf of

the parties. In our considered view, the above referred infirmities

pointed out in the testimony of PW7 Harsha makes his presence at the

time of occurrence highly doubtful and we are of the considered view

that it is not safe to rely upon the testimony of PW7 Harsha,

particularly when the fairness of the investigation is also under cloud.

19. The third submission on behalf of the appellants is that once the

testimony of Harsha is not found reliable and there is a doubt against

the fairness of the investigation, no reliance can be placed upon the

evidence pertaining to the recovery of incriminating articles at the

instance of the appellants. They have also pointed out that as per the

case of the prosecution, the deceased was stabbed while he was lying

on the ground and was being dragged. Therefore, the injury being on

the face and neck, the maximum blood of the deceased obviously

would have fallen on his sweater and the shirt. It is submitted on

behalf of the appellants that perusal of the serological report

Ex.PW12/A shows that on serological examination though human blood

was found on the clothes of the deceased, but blood group `O' could

not be detected on his shirt, sweater and pair of shoes, whereas the

pants recovered at the instance of appellants Dinesh, Masood Ahmed

and Shahid which they were allegedly wearing at the time of incident

and the knife Ex.P-1 which was recovered two days later from the Nala

did test positive for human blood group 'O'. From the above

evidence, the appellants have urged us to infer that some tampering

with the pants and knife has been done to link those articles with the

crime. We find force in the submission because it is highly improbable

that the sweater and shirt of the deceased, which obviously would have

been drenched with the blood of the deceased, did not give positive

test for blood group 'O' for some reason, whereas the incriminating

articles seized from the appellants, which purportedly had some blood

stains, confirmed to have tested positive for human blood group 'O'.

As per the case of prosecution, the knife Ex.P-1 which is said to be the

weapon of offence was recovered two days after the incident from mud

within the Nala. It is highly improbable that even after remaining in the

mud and water in the Nala, the knife Ex.P-1 could have retained

sufficient amount of blood stains so as to facilitate a proper serological

examination. Otherwise also, in view of the discussion above, even the

fairness of the investigation in this case is suspect. Therefore, the

prosecution cannot take much advantage from the evidence pertaining

to recovery of incriminating articles at the instance of the appellants.

20. The result of above discussion is that the presence of so-called

eye witness PW7 Harsha at the time of occurrence is doubtful. Even

the fairness of investigation in this case is highly suspect. Thus, we do

not find it safe to rely upon the prosecution evidence to uphold the

conviction of the appellants. They are entitled to benefit of doubt.

21. The appeals are allowed accordingly. We set aside the impugned

judgment of conviction of appellants as also the consequent order on

sentence and acquit all the appellants of charge under Section 302

read with Section 34 IPC and also acquit the appellant Furkan under

Section 27 of the Arms Act extending them benefit of doubt.

22. The appellants are in custody. They be released forthwith if they

are not wanted in any other case.

23. Appeals are disposed of accordingly.

AJIT BHARIHOKE, J.

NOVEMBER 10, 2009                                  SANJAY KISHAN KAUL, J.
pst