Delhi High Court

Mohd. Rahis Khan vs State on 15 September, 2009

Author: Pradeep Nandrajog

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


%                   Date of Decision: 15th September, 2009


+                        CRL.A. 642/2001

      MOHD. RAHIS KHAN                        ..... Appellant
              Through:         Mr. Bhupesh Narula, Advocate

                               versus

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

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR

1.    Whether the Reporters of local papers 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. (Oral)

1. In a judgment which is not clearly worded, one is

not too sure whether the learned Trial Judge has convicted the

appellant for the reasons noted in para 16 and para 19 of the

impugned decision or for the reasons noted only in para 19 of

the impugned decision.

2. Thus, we shall be dealing with the reasons noted by

the learned Trial Judge in both the paragraphs.

3. Four accused, Mohd.Rahis Khan, the appellant;

Mukesh Bharti @Nanhe; Gopal @Baba and Smt.Shobha were

sent to trial for having murdered Sunil Kumar Rastogi the

husband of accused Shobha.

4. Mukesh Bharti, Gopal and Smt.Shobha have been

acquitted vide judgment and order dated 13.8.2001. The

appellant has been convicted.

5. In para 16 of the impugned decision the learned

Trial Judge has held that the appellant, after he was arrested,

pointed out the place where the offence was committed to

Inspector Satya Pal PW-29 as also pointed out the spot where

the police had recovered a brick with which the deceased was

murdered. He led them to a naala where he threw clothes

worn by him when the crime was committed which had got

stained with blood.

6. The way the judgment is written, it is not clear

whether the Judge has held that the brick which was recovered

by the police at the pointing out of the appellant is evidence of

conduct admissible under Section 8 of the Evidence Act or is

proved to be the weapon of offence. We note that the learned

Trial Judge has referred to a judgment pertaining to Section 27

of the Evidence Act and the only recovery at the instance of

the appellant is of the brick in question.

7. Under both circumstances, we fail to understand as

to what is the incriminating nature of the evidence. The brick

in question has not been found to be stained with blood, much

less human blood. How does that brick get linked to the crime

is a mystery. Probably, the learned Trial Judge has been

influenced by the fact that a blunt hard object was the weapon

of offence.

8. We may only note that the brick was recovered from

an open place and after three days of the offence. We hold

that the recovery of the brick, which is an ordinary brick, in the

absence of the same being found to be stained with blood and

the recovery being from an open place accessible to all is no

incriminating evidence against the appellant.

9. Similarly, we fail to understand as to how the

pointing out of a place from where nothing is recovered would

be incriminating evidence of conduct. The place where the

appellant ostensibly took the investigating officer i.e. the naala

and pointed out a spot, stating that he threw his clothes there,

and no clothes being recovered, is again no incriminating

evidence. The place where the deceased was murdered was in

the knowledge of the police on 6.1.1998 i.e. 3 days prior to the

date when the appellant was arrested. Thus pointing out said

place by the appellant is irrelevant.

10. This takes care of what has been noted by the

learned Trial Judge in para 16 of the decision.

11. Pertaining to the findings returned in para 19 of the

decision we find that the learned Trial Judge has held that the

evidence establishes that the deceased was last seen in the

company of the appellant when both of them visited the

residence of the father of the deceased at Janta Garden

Patparganj and remained there till around 9:00 PM on

5.1.1998. The dead body of the deceased was found at 8:00

AM the next day i.e. on 6.1.1998. Thus, on the last seen

evidence, the appellant has been convicted as also for the

reason that the brick was recovered at the instance of the

appellant.

12. Pertaining to the brick, the learned Trial Judge has

referred to the same in para 16 of the decision as well. We

have dealt with this issue in the preceding paras and have held

the same to be inconsequential.

13. Thus, the only issue which needs to be considered is

whether the deceased was in the company of the appellant till

around 9:00 PM on 5.1.1998 and what is the effect thereof?

14. From the testimony of PW-3, PW-4, PW-6 who are

the brothers of the deceased and the testimony of PW-5 who is

the father of the deceased, it stands established that the

deceased was in the company of the appellant at the residence

of Ram Kumar Rastogi PW-5 being E-19/B, Janta Garden,

Pandav Nagar, Delhi. Learned counsel for the appellant did not

seriously dispute the said fact.

15. The post-mortem report Ex.PW-8/A of the deceased

shows semi-digested food in the stomach. The probable time

of death of the deceased, as per the post-mortem report, is

around 11:00 PM on 5.1.1998.

16. Thus, the time gap between the deceased seen in

the company of the appellant and his dying is about two hours.

Indeed, the time is fairly proximate.

17. The place where the dead body was found is Valmiki

Mohalla at a distance of about 2 km from Janta Garden,

Patparganj.

18. The dead body of the deceased was noticed/found

near a naala. In the house of the deceased i.e. 227, Valmiki

Mohalla, blood of the deceased was lifted. It is apparent that

the deceased was killed in his house. Proximity of the distance

is failing.

19. There is no eye-witness to prove that the appellant

came to the house of the deceased. We note that as per PW-5,

his son told him that he would be returning to his house with

the appellant and that the co-accused Nanhe and Baba as also

one Sunil Kumar would be having food with him.

20. But, there is no evidence that the appellant went to

the house of the deceased.

21. Last seen evidence assumes significance when

there is proximity of time and place of last seen keeping in

view the attendant circumstances, which rule out the

possibility of a third person accessing the deceased.

22. In our decision dated 10.8.2009, disposing of four

appeals, lead appeal being Crl.Appeal No.362/2001 'Arvind vs.

State', we had extensively discussed the law of last seen and in

respect to the relationship of the place where the dead body

was recovered and the place of last seen, had noted two

decisions of the Supreme Court to highlight the circumstance

relatable to the place where the crime was committed. In

paragraphs 46 to 51 and paragraphs 83 to 90, we had noted as

under:-

"46. The next authority cited is 1993 SCC (Cri) 520 Anant Bhujangrao Kulkarni vs. State of Maharashtra. The said decision has been relied upon by Mr.Sumeet Verma, learned counsel for the appellants. Learned counsel drew our attention to para 12 of the decision and urged that the only circumstance which was established at the end of the trial, as noted by the Supreme Court, was of the deceased being last seen alive in the company of the appellant at 6:00 PM on 13.10.1975 and the dead body being found the next morning i.e. on 14.10.1975. It was held that said evidence was insufficient to hold that the appellant was guilty.

47. A perusal of the decision shows that the prosecution was predicating its case on two incriminating circumstances; being, the deceased being last seen alive with the accused at 5:30 PM on 13.10.1975 and the dead body being noted in the early hours of the morning of 14.10.1975 and the fact that the dead body of the deceased was found in a ladni adjacent to a ladni occupied by the accused.

48. Pertaining to the ladni in which the dead body was found and the ladni in which the accused resided,

it was noted by the Supreme Court that there was a huge complex called Wada, consisting of various ladnis, one of which was the residence of the accused. The fact that the dead body of the deceased was found in the other ladni adjacent to the ladni occupied by the accused was specifically noted in para 7 of the decision.

49. It is apparent that what has weighed with the Supreme Court is the circumstance relatable to the place where the dead body was found. The place was not linked, being in the possession of the accused and there was no evidence that the accused was seen at the place where the deceased was found dead. Meaning thereby, anybody could have accessed the ladni where the deceased was killed; it being evident that somebody had accessed the ladni by the very factum of the deceased being killed in the ladni.

50. We may note that in said case, as noted in para 3 of the decision, the accused explained having parted company with the deceased after 6:00 PM and having heard the deceased shouting „melo - melo‟ from near the ladni opposite his house i.e. ladni in which the dead body of the deceased was ultimately found.

51. The principle applied by the Supreme Court is evident. The place where the dead body of the deceased was noted and the time lag between the time of last seen and dead body noted did not rule out that a third person could not possibly be involved.

xxx

83. The 11th decision referred to is reported as 2006 (3) SCALE 452 Ramreddy Rajeshkhanna Reddy & Anr. vs. State of Andhra Pradesh.

84. The last-seen evidence pertains to the accused and the deceased being last seen together at 10.30 in the night of 14.6.1998. The evidence was that the accused had come to the house of the deceased and requested him to accompany him to repair his jeep i.e. the jeep of the accused. The deceased did not return home. The dead body was noted at 5.30 AM the following day. The place where the dead body was found was a public street abutting the house of PW-4.

85. Reversing a finding of conviction affirmed by the High Court, the Supreme Court held that applying the last-seen theory in the facts and circumstances of the said case it could not be said that the evidence unerringly pointed only towards the guilt of the accused and ruled out his innocence. In para 28 of the decision, the Supreme Court observed as under:-

"28. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and 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. Even in such a case courts should look for some corroboration."

86. The submission of learned counsel for the appellants is that instant decision, for the first time, categorically holds that pertaining to last-seen evidence being the solitary evidence, the court should look for some corroboration.

87. It is true, that with reference to the last-seen theory, the concluding sentence of para 28 of the decision does record that even in such cases (last- seen theory) court should look for some corroboration. But, it has to be noted that the preceding decisions hereinbefore referred to by us which have sustained conviction on the last-seen theory, have not been noted in the said decision.

88. The last sentence of para 28 in Ramreddy‟s case (supra) has to be understood with reference to the circumstances of last-seen evidence led in the said case as also the observations of the court in para 14 pertaining to a taint in the testimony of PW-2.

89. Eschewing reference to the taint found in the testimony of PW-1, with reference to the applicability of the last-seen theory, suffice would it be to state that the circumstance of two people being last seen; the reason of their departure and the place where the deceased is found dead assumes importance. Indeed,

in Ramreddy‟s case (supra) the same assumed importance, in that, the likely possibility of a third person intervening could not be ruled out.

90. As against a case of a husband and wife leaving together and expected to either reach their destination together or return back together, two friends on a common mission would not be expected to return back together. As in Ramreddy‟s case (supra), where two friends leave to repair a vehicle there is every possibility that after some time they parted company and somebody else accessed the deceased and killed him, in a case of husband and wife same is inapplicable. As in Ramreddy‟s case, where the place the deceased is found killed is a public street, it assumes importance to consider where any person on the public street could have done so. The timings in Ramreddy‟s case are of importance. The deceased and the accused left the house of the deceased at around 10.30 in the night. The place where the deceased died was a public street."

23. In the instant case there is a time lag of two hours

when the deceased left the house of his father in the company

of the appellant and the time of his death. As per the father,

the deceased was to take food in his house. Indeed, the

deceased had taken his dinner evidenced by semi-digested

food found in his stomach. We don‟t know whether the

deceased ate food in his house or elsewhere. We note that the

witness of the prosecution to prove that the deceased had food

with the appellant i.e. PW-10 has turned hostile.

24. The proximity of place of last seen vis-à-vis the

place of murder having snapped in the instant case, we are of

the opinion that in the facts of this case, it would be unsafe to