Sayeed Ahmed vs State
2010 Latest Caselaw 530 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Judgment Reserved On: 28th January, 2010
                          Judgment Delivered On: 1st February, 2010

+                    CRL.APPEAL NO.208/2004

       SAYYED AHMAD                            ......Appellant
                Through:          Mr.Mahmood Hasan, Advocate

                                     Versus

       STATE                                     ......Respondent
                     Through:     Mr.M.N.Dudeja, A.P.P.

       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. Holding that the prosecution has successfully

proved that the writing Ex.PW-1/A purportedly in the

handwriting of the deceased Sohna Devi was written by the

appellant as per the report Ex.PW-17/H of the handwriting

expert Ms.Deepa Verma PW-19 and that PW-4, PW-9 and PW-

10 had proved that the appellant had wanted to secret away 4

gunny bags which as per the seizure memo Ex.PW-7/A

contained the body parts of deceased Sohna Devi, the learned

Trial Judge has convicted the appellant of the offence of having

murdered Sohna Devi. Further incriminating evidence held

established against the appellant is that after he was

apprehended he got recovered a saw after making a disclosure

statement which saw was opined by the doctor who conducted

the post-mortem of the deceased to be the possible weapon

used to cut the body of the deceased as per the report Ex.PW-

11/B of Dr.Gaurav Aggarwal PW-11 who conducted the post-

mortem of the body of Sohna Devi.

2. With reference to the testimony of Munni PW-1,

learned counsel for the appellant conceded that the same

establishes that Sohna Devi was found missing on the fourth

day of May 2001 and a writing Ex.PW-1/A was recovered from

her jhuggi. The said writing purports to be written by Sohna

Devi and is addressed to one Asmat Bhaiya. It is written that

Sohna was very unhappy and was going away. At the bottom

of the writing the name „Sona‟ has been written. With

reference to the seizure Ex.PW-7/A learned counsel for the

appellant further conceded that it stands established that the

dead body of Sohna Devi was recovered by the police from 4

gunny bags lying next to a drain and abutting the wall of the

jhuggi of the appellant. Learned counsel further conceded that

the post-mortem report Ex.PW-11/A of Sohna Devi establishes

that she was murdered and body cut into pieces with a saw

and that the saw got recovered by the police from the

appellant was opined vide report Ex.PW-11/B as the possible

saw with which the body was cut.

3. What was urged at the hearing of the appeal was

that the testimony of PW-4, PW-9 and PW-10 was insufficient

to prove that the appellant had committed the crime. Learned

counsel highlighted that no motive for the crime has been

established.

4. It is true that motive plays an important role in

every crime, but in relation to proof thereof, the law is at

somewhat variance. Though desirable to be proved, but

absence of proof of motive for a crime is not treated as fatal, if

otherwise, the prosecution has led credible evidence

wherefrom the guilt of the accused can be inferred. It need

hardly be re-emphasized that the Evidence Act 1872 requires a

fact to be treated as proved not upon 100% proof of a fact but

to be treated as proved when after considering the matters

before it, the Court either believes it to exist or considers its

existence so probable that a prudent man ought under the

circumstances of the particular case to act upon the

supposition that it exists.

5. The testimony of Baleshwar PW-4, Samay Singh

PW-9 and Ram Pal PW-10 may be noted. It reads as under:-

"PW-4:-

Accused present in Court was residing near my jhuggi. On 5.5.2001, at about 11:00 I was present with 5 - 6 persons near the park of SDN hospital. I was called by the accused Sayyed and asked me that there are five gunny bags and either I should sink these or decompose and Rs.500/- would be paid to me. I asked the accused that I will not go in the nallah if he paid Rs.5,000/- to me instead of Rs.500/-. Sumer Singh was asked to enter in the nallah but he also refused. However Ram Pal agreed to enter into the nallah and accepted a sum of Rs.400/- (Rupees four hundred only). I do not know what was kept in the kattas.

xxxx by def. cl. for both accused persons.

It is wrong to say that I had given the time to the police as 10:00 AM - confronted with Ex.PW-4/DA where it is so recorded. I did not lodge any report with the police.

PW-9:-

I am working in SDN Hospital as Safai Karamchari. On 7.5.2001 at about 11:00 Am Sayyed - accused now present in Court told to me that I have to dig 4-5 gunny bags of sand on which I refused. I called one sewer man namely Ram Pal, who is my friend and they both settled the matter orally and Ram Pal left for work.

Sayyed came to me for payment of Rs.300/- Ram Pal had taken Rs.100/- from Sayyed and I asked Sayyed that he should pay the amount to Ram Pal but Sayyed gave the amount to me as Ram Pal had asked me to take the

money whenever Sayyed gives it to me and then I should pay the same to him. I then paid the amount to Ram Pal.

xxxxx by ld.Def. Cl.

I had given my statement to the police. I am illiterate. I cannot say whether I had given the date of abovesaid incident as 5th or 7th. It is wrong to say that accused had offered Rs.500/- to me. It confronted with Ex.PW-9/DA where it is so recorded. It is wrong to say that I am deposing falsely.

PW-10:-

I am safai karamchari with SDN Hospital. It was fifth month of 2000, then said it was 7.5.2001 that day at about 11:00 AM Sayyed met Samay Singh. Sayyed is accused now present in Court. Sayyed asked Samay Singh that five gunny bags be put in the earth. He replied that he is on emergency duty and he cannot do so. He introduced me to the accused. I asked Sayyed what was in the gunny bags and he informed me that these are containing MALBA and bricks. Instead of putting the same under the earth, I brought the bag out of the nallhi and placed the same on the patri. I demanded the money and told him that I have placed the bags under the earth. This was a false statement. Accused gave me Rs.100/-. Rest of the money was paid to Samay Singh by wife of Sayyed. I do not know what money was paid to Samay Singh and on the next day, Samay Singh gave me Rs.300 to me.

xxxxx by Ld.Def.Cl. for the accused.

Today is 21st day of month. It is correct that I know the dates. I had put sariya inside the gunny bags and there appeared to be brick (voltd.) and the next day when it was opened it was found containing portions of dead body and bricks as well. I did not see the dead body. I had told the police that some money was paid to me and some was paid to Samay Singh for dumping the dead body. I did not open the gunny bags. I stated to the police that Rs.100/- were given to me and remaining

Rs.300/- were given to Samay Singh by wife of Sayyed - confronted with Ex.PW-10/DA where it is recorded. It is wrong to say that I am deposing falsely."

6. A cumulative reading of the testimony of the three

witnesses establishes that Baleshwar PW-4 was contacted by

the appellant with a request to secrete 5 gunny bags in a

nallah and upon his refusal to do so he contacted Samay Singh

PW-9 to do the needful, who in turn contacted Ram Pal PW-10.

PW-10 took out the bags from the nallah and belying the trust

of the appellant, did not secrete the bags, he left them at the

patri from where they were recovered by the police.

7. Now, why should the appellant try to secrete the

body parts of deceased Sohna Devi?

8. The said fact is within the personnel knowledge of

the appellant and he having rendered no explanation, a

reasonable presumption can be drawn that the appellant

wanted to secrete the dead body of Sohna Devi to hide his

guilt. For, people secrete things to hide something else.

9. Just as recoveries of dead bodies lying secreted

pursuant to the disclosure statements of the accused, as held

in the decisions reported as AIR 1947 PC 67 Pulukuri Kottaya &

Ors. Vs. Emperor, 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 have been held to be highly incriminating

evidence, logic demands that actions of an accused to secrete

a dead body must be treated as equally highly incriminating

evidence.

10. The fact that a saw opined to be the possible

weapon of offence was got recovered by the appellant on

which as per the report Ex.PW-17/J of the serologist blood was

detected but the sample being too small could not be further

tested for the origin or the group thereof, is further

incriminating evidence albeit of a very weak nature.

11. We are constrained to ignore the fact that the

writing Ex.PW-1/A has been opined vide report Ex.PW-17/H to

be in the hand of the appellant for the reason the alleged

specimen writings of the appellant were obtained by Insp.Shiv

Dayal PW-17 when the appellant was in his custody without

following the provisions of the Identification of Prisoners Act

1920. As held in the decisions reported as 1994 (5) SCC 152

Sukhvinder Singh & Ors. Vs. State of Punjab, AIR 1980 SC 791

State of U.P. vs. Rambabu Mishra AIR 2003 SC 4377 State of

Haryana vs. Jagbir Singh & Ors. anything personal to an

accused for purposes of comparison with a suspected sample

if obtained from the accused without the permission of the

competent Court and without the accused being identified as

required by the provisions of the Identification of Prisoners Act

1920 has to be ignored and such a report has to be excluded

while considering the incriminating evidence.

12. From the twin circumstance of the possible weapon

of offence being recovered pursuant to the disclosure

statement of the appellant and at his instance, which we note

is weak evidence, coupled with the conduct of the appellant,

which we note is highly incriminating evidence, to secrete the

body of the deceased Sohna Devi, we hold that the learned

Trial Judge has correctly returned the verdict of guilt.

13. The appeal is dismissed.

14. Since the appellant is still in jail we direct that a

copy of the decision be sent to the Superintendent, Central

Jail, Tihar to be made available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE February 01, 2010 dk