Dost Mohd. & Anr. vs State
2010 Latest Caselaw 518 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on: 18th January, 2010
                    Judgment Delivered on: 1st February, 2010

+                   CRL.APPEAL No.385/2008

Dost Mohd. & Anr.                              ......Appellants
          Through:       Mr.K.B.Andley, Sr. Advocate with
                         Mr.M.Shamikh, Advocate

                              Versus
STATE                                        ......Respondent
              Through:   Mr.M.N.Dudeja, Advocate

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     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.

1. Of the 7 accused who were sent for trial 5, namely,

Tilak Ram, Hasan Ahmad, Mohd.Khalid, Shah Nazar and

Mohd.Furkan have been acquitted. Appellants Dost Mohd. and

Mohd.Gufran have been convicted.

2. The 7 accused were charged with the offence of

entering into a conspiracy to murder Hassan Ali, his wife Rafat

Jahan and their minor son Shehzad and in furtherance of the

conspiracy to have kidnapped/abducted the said 3 persons in

the month of June 2000 and murdered the 3 at village

Daulatpur under jurisdiction of P.S. Kakroli, U.P.

3. Against the co-accused who have been acquitted, the

learned Trial Judge has held that the testimony of Mohd.Nabi

PW-5 and that of Sarfaraz PW-6 who claimed that they saw

accused Mohd.Khalid, Mohd.Furkan and the appellants in the

company of the deceased in the second week of June 2000 did

not inspire confidence for the reason the prosecution had

admitted that deceased Rafat Jahan had made a complaint

against Mohd.Khalid and Mohd.Furkan pertaining to the death

of her son Ahsan who was murdered in the village and that

pursuant to the said complaint Hassan Ali father of

Mohd.Furkan had been charged as an accused. The learned

Trial Judge has accordingly opined that it would be difficult to

believe that Rafat Jahan, her husband and her son would be

seen in the company of Mohd.Khalid and Mohd.Furkan.

4. Recoveries of ordinary articles such as a wrist watch

stated to be belonging to deceased Hassan Ali and pieces of

gold jewellery of low value stated to be belonging to Rafat

Jahan pursuant to disclosure statements of the co-accused

were held to be not inspiring confidence. There being no other

incriminating evidence against said 5 co-accused, they have

been acquitted.

5. The incriminating evidence against the appellants

found established by the learned Trial Judge is that Ashraf Ali,

father of Dost Mohd. and Mohd.Gufran had vide sale deed

Ex.PW-4/DC purchased agricultural lands from Rafat Jahan for

a consideration of Rs.3,57,000/- out of which only

Rs.1,00,000/- was paid. The motive for Dost Mohd. and

Mohd.Gufran was to kill Rafat Jahan so that no further money

need be paid to her and it was also decided by the two that

should Shehbaz and Hassan Ali, the minor son and the

husband of Rafat Jahan claim the remaining money, even they

were to be liquidated. Thus, a motive for the crime has been

held established. The further incriminating evidence held

established is that the appellants made disclosure statement

Ex.PW-32/F (Mohd.Gufran) after he was apprehended and

interrogated and Ex.PW-32/E (Dost Mohd.) in which two

statements both disclosed that with a view not to pay further

sum of Rs.2,57,000/- to Rafat Jahan it was decided that she,

her husband and her minor son would be killed and knowing

that Hassan Ali would be visiting the village to participate in

the elections, some of the accused would bring Hassan Ali, his

wife Rafat Jahan and their minor son to the village and kill all.

In furtherance of the conspiracy, the three were brought to the

village. Co-accused Khalid shot Hassan Ali whose wife and

minor son were strangulated and the three dead bodies were

concealed beneath the soil by digging three ditches in the

sugarcane fields. Further, the two jointly led the Police to

sugarcane fields in village Daulatpur, P.S. Kakroli, District

Muzaffar Nagar and both simultaneously pointed out a spot in

the field as recorded in the pointing out memo Ex.PW-16/A

pertaining to Dost Mohd. and Ex.PW-16/B pertaining to Mohd.

Gufran and stated that the dead bodies were buried there;

upon digging of which spot blood stained soil, hair attached

with soil, pieces of red coloured bangles, some pieces of bones

were recovered on 16.12.2000 as per seizure memo Ex.PW-

21/A. As per the learned Trial Judge the disclosure statements

made by the two appellants resulted in the recovery of afore-

noted articles and as per the confessional statements the said

place was where the three dead bodies were buried. Further

incriminating evidence against appellant Dost Mohd. is that

pursuant to his second disclosure statement Ex.PW-35/A

wherein he disclosed that after burying the three dead bodies

at the same spot he and his co-accused decided to remove the

three dead bodies and bury them at different places, he took

out one dead body i.e. that of Hassan Ali and buried it at

another spot which spot he could identify. On 20.12.2000 he

led the police to said spot and vide pointing out memo Ex.PW-

48/A he pointed out the spot wherefrom, as recorded in the

memo Ex.PW-48/B, a skeleton was recovered. The said

skeleton was sent for DNA analysis to be compared with the

DNA of the mother of Hassan Ali, namely, Mst.Rashidan PW-28

with reference to her blood sample and that as per report

Ex.PW-43/A, Dr.G.V.Rao a scientist at CDFD Hyderabad opined

that with reference to the DNA of Mst.Rashidan it could safely

be said that the skeleton belonged to her progeny i.e. of a

person born to Mst.Rashidan.

6. We may note that though not specifically used as

incriminating evidence against the appellants, at the hearing

of the appeal, learned counsel for the State pointed out that as

per the disclosure statements of the appellants they had

stated that Hassan Ali was shot dead with a firearm. As

deposed to by Dr.S.K.Verma PW-22 who conducted the post-

mortem on the skeleton remains and the remnants of

adipocerous formation in the thoracic, scalp and extermeteis,

a bullet was recovered from the right thoracic area. It was

urged that the further incriminating evidence is the knowledge

of the appellants that Hassan Ali was shot with a firearm. Said

knowledge is to be found in the disclosure statements of the

appellants and confirmed with reference to the subsequent

event i.e. of the doctor who conducted the post-mortem

recovering a bullet from the chest cavity of deceased Hassan

Ali.

7. During arguments in the appeal learned counsel for

the appellants and the State conceded that no useful purpose

would be served in reading the testimony of all the witnesses,

we note the arguments advanced for the reason relatable to

the arguments we intend to note the testimony of only such

witnesses as would be relevant.

8. The first and the foremost argument advanced was

that indisputably the sale deed Ex.PW-4/DC executed by Rafat

Jahan in favour of the father of the appellants recorded that

complete sale consideration in sum of Rs.3,57,000/- had been

received by Rafat Jahan. Thus where was the question of there

being any motive for the crime? It was urged that the

testimony of Jaigam Ali, brother of Hassan Ali that

Rs.2,57,000/- was yet to be received by Rafat Jahan could not

be given precedence over what has been recorded in the sale

deed. It was urged that the learned Trial Judge has erred in

holding that the testimony of Jaigam Ali established a motive.

Second contention urged was that the recoveries effected on

16.12.2000 as recorded in the seizure memo Ex.PW-21/A were

meaningless inasmuch as it was not established that the blood

staining the soil, the hair attached with the soil or the broken

bones recovered from the soil or pieces of bangle were linked

or belonged to any of the three deceased and hence there was

no incriminating evidence against the appellants pertaining to

the seizure memo Ex.PW-21/A. It was also urged that it was

not believable that two accused would jointly lead the police to

a spot and simultaneously point out the same. Lastly,

pertaining to the recovery of a skeleton pursuant to the

second disclosure statement of appellant Dost Mohd. and the

report Ex.PW-43/A of Dr.G.V.Rao, it was urged that a DNA

analysis based on a sample of a single parent was not

conclusive of the dead body being that of the progeny of the

alleged parents. It was urged that the DNA sample of the

biological father and the biological mother together constitute

proof of the fact that the person in question is their offspring if

the DNA samples matched.

9. As per the prosecution, deceased Hassan Ali was the

second husband of Rafat Jahan. A son Shehbaz was born to

them. The family was residing as a tenant in house No.55-C,

Old Seema Puri, Delhi. Somewhere in the second week of June

2000 they left the tenanted house informing Tej Ram PW-1,

their landlord, that they were going to the village as Hassan Ali

had to cast a vote in the ensuing elections. They said that

they would be returning after a day, but never returned. That

Hassan Ali, his wife and his son went missing was first noted

when Jaigam Ali PW-4, brother of Hassan Ali came to Seema

Puri to meet his brother on 11.8.2000 and was informed by the

landlady that Hassan Ali along with his family had gone to the

village and had not returned. Abdul Mazid, father of Jaigam Ali

and Hassan Ali lodged a complaint of his son and his family

missing on 26.8.2000 but no action was taken till on the

directions of a learned Magistrate the FIR Ex.PW-2/A was

registered on 4.5.2001. It was only thereafter that the Police

swung into action. The accused were apprehended.

Appellants made the disclosure statements pursuant whereto

recoveries were effected.

10. Tej Ram PW-1 deposed that Hassan Ali was a tenant

in his house C-55, Seema Puri, Delhi and in June 2000 left for a

day to visit his village to cast a vote but never returned.

Jaigam Ali PW-4 deposed that he came to Seema Puri on

11.8.2000 to see his brother Hassan Ali when the landlady told

him that his brother had gone to the village and had not

returned. He told his father Abdul Mazid the said fact who

lodged a report on 26.8.2000 at P.S. Seema Puri. ASI Rakesh

Kumar PW-2 deposed that on 4.5.2001 he registered the FIR

Ex.PW-2/A pertaining to Hassan Ali and his wife and son being

missing.

11. Jaigam Ali PW-4 as also Mst.Rashidan PW-28 proved

that as recorded in the form Ex.PW-4/D and the memo Ex.PW-

4/C blood sample of Rashidan was taken possession of by the

Investigating Officer at Irvin Hospital where the doctor had

taken the blood sample of Mst.Rashidan.

12. The disclosure statements of the appellants have

been proved by SI Bhopal Singh PW-48 who claimed to have

interrogated the appellants. SI Anil Kumar PW-32 as also the

Investigating Officer Inspector Ram Pal PW-44 have

corroborated the recording of the first disclosure statement by

Dost Mohd. and the disclosure statements made by

Mohd.Gufran and as recorded by SI Bhopal Singh PW-48. SI

Dinesh Kumar PW-35 has corroborated the recording of the

second disclosure statement made by appellant Dost Mohd.

and as written down by SI Bhopal Singh PW-48.

13. Recoveries effected on 16.12.2001 have been proved

through the testimony of PW-7, PW-11, PW-12, PW-13, PW-16

and PW-21. Recovery of the skeleton effected on 20.12.2001

has been proved through the testimony of PW-7, PW-12, PW-

15 and PW-21.

14. Both recoveries afore-noted on 16.12.2001 and

20.12.2001 have additionally been proved through the

testimony of PW-9 who video-graphed the digging operations

in the fields on both dates and prepared the video cassette

Ex.PW-9/A.

15. That a bullet was recovered from the chest region of

the skeleton exhumed on 20.12.2001 has been proved by

Dr.S.K.Verma PW-22 who conducted the post-mortem on the

skeleton remains.

16. We may note at the outset that the recovery of the

skeleton as recorded in the seizure memo Ex.PW-48/B on

20.12.2001 was not challenged during arguments in the

appeal.

17. As noted hereinabove, the appellants have been

convicted holding that a motive for the crime stood

established. It has also been held that the recoveries effected

as entered in the seizure memo Ex.PW-21/A as also the

recovery of the skeleton as per seizure memo Ex.PW-48/B

were pursuant to the disclosure statements made by the

appellants and the said recoveries proved the knowledge of

the appellant of the place where the dead bodies were

concealed and thus the two circumstances were sufficient

wherefrom the guilt of the appellants could be inferred.

18. The plea that motive has not been proved has been

dealt with by the learned Trial Judge with reference to the

testimony of PW-4 and we find no infirmity in the reasoning of

the learned Trial Judge. The principle of civil law that no

evidence can be led to contradict or vary the terms of a

written contract are not applicable at a criminal trial relating to

the offence of murder. The purity of commercial transactions

is not the focus at a criminal trial. Indians in general and in

the rural areas in particular are known to be callous and casual

in their official dealings and thus it may happen that in good

faith, a person may receive less money on the assurance that

the balance would be paid later on but executes a document

acknowledging receipt of full payment. The issue can be

looked at from another angle. That Rafat Jahan was claiming

(assuming she was wrong), that full sale consideration had not

been paid to her could also be the motive to silence her for the

reason she had sworn affidavits to be submitted to authorities

that full sale consideration had not been received by her.

19. Pertaining to the recoveries effected on 16.12.2000

pursuant to the disclosure statements Ex.PW-32/E and Ex.PW-

32/F made by the appellants on the same date and upon the

appellants leading the police to the same spot and

simultaneously pointing out the same as recorded in the two

pointing out memos Ex.PW-16/A and Ex.PW-16/B, suffice would

it be to state that as held in the decision reported as AIR 2005

SC 3820 State NCT of Delhi Vs. Navjot Sandhu, there is nothing

in law which does not recognize joint pointing out by two co-

accused. Thus, the recoveries effected from the spot pointed

out as per the said two pointing out memos and as recorded in

the seizure memo Ex.PW-21/A cannot be doubted on said point

alone. But, we note that the blood stained soil, hair attached

with soil, some pieces of bones or the pieces of red coloured

bangles have not been connected to the crime by independent

evidence. The part of the disclosure statements made by the

appellant that they had buried three dead bodies at the said

spot is not admissible under Section 27 of the Evidence Act for

the reason what becomes admissible under Section 27

pertaining to a statement made to the police by an accused is

the knowledge of the accused to a fact which was not in the

knowledge of the police and the said fact is found to be correct

with reference to the subsequent event of a recovery being

made. Thus, in the absence of any DNA analysis of the blood

stained soil, the hair or the bones recovered on 16.12.2000, it

cannot be said that 3 dead bodies were buried at the said spot.

20. Pertaining to the recovery of a skeleton on 20.12.2000

as per seizure memo Ex.PW-48/B, the prosecution has

successfully proved that pursuant to the second disclosure

statement Ex.PW-35/A made by Dost Mohd. he led the police

to a spot and pointed out the same as recorded in the pointing

out memo Ex.PW-48/A and after digging the said spot,

concealed in the womb of the earth was recovered a skeleton

with remnants of adipocerous formation in the thoracic region.

Thus, an object i.e. the skeleton of a dead body has been

recovered by the police and the fact discovered is the mental

knowledge of Dost Mohd. that a dead body was lying

concealed at the spot. The report Ex.PW-43/A by Dr.G.V.Rao

establishes that with reference to the blood sample of

Mst.Rashidan taken possession of at Irwin Hospital as per

memo Ex.PW-4/C the skeleton was of the biological offspring of

Mst.Rashidan.

21. The issue whether a DNA analysis with reference to

the DNA of a single parent is conclusive or not on the issue of

identification, it may be noted that maternity identification and

paternity identification are different. When compared with the

DNA of a female, the maternity of a child can be determined

and when compared with the DNA of a male, the paternity of a

child can be determined. As noted in para 20.6.1 (page 1142)

in the book Forensic Science in Criminal Investigation and

Trials by B.R.Sharma (4th Edition) a maternity identification of

an offspring can conclusively be determined with reference to

the DNA fingerprints obtained from the DNA fragments of a

female. We note that the process of DNA analysis adopted by

Dr.G.V.Rao has not been challenged either at the trial or in

appeal.

22. Thus, it stands established that the skeleton remnants

recovered on 20.12.2001 were those of Hassan Ali the son of

Mst.Rashidan.

23. In the celebrated decision reported as AIR 1947 PC 67

Pulukuri Kottaya & Ors. Vs. Emperor (para 10) Section 27 of

the Evidence Act is wholly applicable when a person in police

custody produces from some place of concealment some

object, such as a dead body. In the decision reported as 1989

Cri LJ (NOC) 200 (Gauhati) Chakidhar Paharia Vs. State of

Assam, 1986 Cri LJ 220 Parimal Banerjee Vs. State and AIR

1963 SC 1074 Ram Lochan Ahir Vs. State of West Bengal the

recovery of a dead body lying concealed is a highly

incriminating evidence where it is found that the person was

murdered. Such a recovery incriminates the person at whose

instance the dead body was recovered.

24. It assumes importance that Dost Mohd. had disclosed

to the police that Hassan Ali was shot. Thus, the fact that PW-

22 noted a fire shot injury and recovered a bullet from the

thoracic cavity of the skeleton i.e. the dead body of Hassan Ali

is also incriminating against Dost Mohd.

25. Since the dead body of Hassan Ali was not recovered

pursuant to the disclosure statement of Mohd.Gufran, the fact

that he told the police that Hassan Ali was shot may not be a

very incriminating evidence against him as he may have

gained said knowledge from Dost Mohd.

26. Thus, we conclude by holding that the prosecution has

successfully established that appellant Dost Mohd. is guilty of

the crime of murdering Hassan Ali. We give the benefit of

doubt to appellant Mohd.Gufran.

27. The appeal is dismissed qua appellant Dost Mohd.

whose conviction and sentence is sustained.

28. The appeal is allowed qua appellant Mohd.Gufran who

is acquitted of the charge framed against him. The sentence

imposed upon him is set aside.

29. Since the appellants are in jail we direct that appellant

Mohd.Gufran shall be set free if not required in any other case.

30. Two Copies of this order would be sent to the

Superintendent Central Jail Tihar to be made available to the

appellants.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE FEBRUARY 01, 2010 rk/mm