Afsar vs State
2010 Latest Caselaw 150 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of Decision: 13th January, 2010

+                     CRL.APPEAL NO.288/2004

       AFSAR                                    ......Appellant
           Through:          Mr.Sumeet Verma, Advocate

                                     Versus

       STATE                                     ......Respondent

           Through:          Ms.Richa Kapoor, Advocate

                      CRL.APPEAL NO.698/2004

       JAVED @ KALA @ MITHUN            ......Appellant
            Through: Mr.Sumeet Verma, Advocate

                                     Versus

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

                      CRL.APPEAL NO.371/2004

       ZAKIR @ NASRUDDIN                 ......Appellant
            Through: Mr.Bhupesh Narula, Advocate

                                     Versus

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

                      CRL.APPEAL NO.738/2004

       MOHD. SHAMSHAD                  ......Appellant
          Through: Mr.Bhupesh Narula, Advocate

                                     Versus

       STATE                                     ......Respondent
           Through:          Ms.Richa Kapoor, 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.(Oral)

1. With reference to the evidence on record, the

learned Trial Judge has concluded against the appellants as

under:-

"74. It is on record that none of the witnesses had seen any of the accused causing injury. In these circumstances, the case against the accused to be inferred on the basis of circumstances appearing on the file. These circumstances are as under:-

(i) PW-5 HC Veer Pal, PW-9, Ct.Ram Chander and Ct.Rajbir are in patrolling;

(ii) At about 8.30 PM, they heard the noise "Bachao Bachao" and rushed to the spot;

(iii) The three constables rushed to the spot and saw the victim lying on the ground and four accused snatching his belongings with accused Javed armed with a knife. On reaching the spot they saw the victim Sh.Ved Prakash Chakravarthy bleeding profusely;

(iv) The three constables chased the assailants and accused Afsar is caught on the spot and brief-case of the deceased is recovered from him;

(v) The victim Sh.Ved Prakash Chakravarthy was removed to the hospital where he expired shortly afterward;

(vi) On the disclosure statement of the accused remaining three accused i.e. Shamshad, Javed and Zakir were apprehended;

(vii) Thereafter, at the instance of these accused, the belongings of the deceased as well as the knife was recovered from them on the same day;

(viii) The belongings of the deceased recovered from the accused are identified by his family members.

75. These circumstances point out to one and only one fact that the death of the deceased Ved Prakash Chakravarthy was caused by the accused persons when they attacked him in order to rob him. The accused were armed with a deadly weapon Ex.P-9 which has subsequently been recovered from accused Javed.

76. In view of the above discussion I am satisfied that the prosecution have been successful in proving charges against all the four accused under Section 302/394/34 IPC beyond reasonable doubt for causing the murder of Sh.Ved Prakash Chakravarthy and robbing him while being armed with a deadly weapon. I am also satisfied that the prosecution has also been successful in proving the charges against the accused Javed of committing robbery on Sh.Ved Prakash Chakravarthy while being armed with a deadly weapon and causing him grievous hurt which ultimately led to his death, beyond reasonable doubt."

2. Vide impugned judgment and order dated 23.2.2004

the appellants have been convicted for the offence punishable

under Section 302/394/34 IPC, for which offence they have been

sentenced to undergo imprisonment for life and pay fine in sum

of Rs.500/- each. Appellant Javed has also been convicted for

the offence punishable under Section 392 read with Section 397

IPC, for which offence he has been sentenced to undergo

imprisonment for 10 years and pay a fine in sum of Rs.500/-

each.

3. Learned counsel for the appellants urged that the

testimony of the 3 police officers; HC Veer Pal PW-5, Const.Ram

Chander PW-9 and Const.Rajbir Singh PW-15 does not inspire

any confidence of the said 3 police officers having seen the

faces of appellants Javed, Zakir and Mohd. Shamshad. Learned

counsel highlights this submission, with reference to the site

plan to scale, Ex.PW-17/A, which site plan pen profiles the scene

of the crime.

4. We shall be highlighting the arguments pertaining to

the site plan and the testimony of 3 witnesses while discussing

the same soon hereinafter.

5. Attacking the recoveries of the properties of the

deceased from appellant Mohd.Shamshad and Zakir, learned

counsel refers to the testimony of Umesh Chakraborty PW-2, the

son of the deceased, as per whom, on 20.3.1999 he was

summoned to the police station and at the malkhana he

identified the belongings of his father. With reference to the

testimony of SI Vivek Pathak PW-25, the initial investigating

officer, and the testimony of Insp.Jai Singh Saini PW-26, who

took over the investigation in the morning of 20.3.1999, learned

counsel point out that the recoveries from appellant Afsar,

Shamshad and Zakir deposed to by said officers is with a

statement that immediately after effecting recoveries, the

exhibits recovered were sealed and deposited in the malkhana;

it is urged that the testimony of PW-2 conclusively establishes

that either the seals were broken and the exhibits were shown

to him and resealed or nothing was sealed at the spot as

claimed. Counsel concludes by urging that the purity of the

seizure being affected, no credence can be given to the same,

for the reason planting cannot be ruled out.

5. With reference to the finding returned that the

various exhibits recovered were proved to be the belongings of

the deceased, it is urged that for the reason the purity of the

recoveries has been tainted, the said incriminating evidence has

to be discarded and additionally that the pearl ring Ex.P-1,

purportedly got recovered by appellant Mohd.Zakir has not even

been identified either in Court or at a TIP by PW-2, the son of

the deceased and the only family member of the deceased to

be examined.

6. Pertaining to appellant Javed, it is urged that if his

identification by Veer Pal, Ram Chander and Rajbir is

disbelieved, the recovery of the dagger Ex.P-9 at his instance, is

the only solitary evidence against him and considering the fact

that only human blood could be detected on the dagger, group

whereof could not be ascertained, the said incriminating

evidence falls short of the requisite evidence to convict

appellant Javed of the offence.

7. It is apparent that the recoveries would assume

importance, if testimony of PW-5, PW-9 and PW-15 regarding

identification of the appellants is found to be wanting. For if,

the testimony of the said 3 police officers is accepted by us,

they having claimed to have witnessed the appellants assault

the deceased with an intention to commit robbery, said

evidence would be sufficient to sustain the conviction of the

appellants.

8. We would thus proceed, at the first instance, to

analyze the testimony of HC Veer Pal PW-5, Const.Ram Chander

PW-9 and Const.Rajbir PW-15, with reference to the site plan to

scale Ex.PW-17/A.

9. The 3 police officers have deposed that they were on

patrolling duty on 19.3.1999 and at around 8:30 PM had

reached Mahabat Khan Road behind Gandhi Peace Foundation

Building when they heard noise of bachao-bachao from the

service lane. They proceeded towards the service lane and saw

a person lying on the ground. 4 persons were robbing him of his

belongings. One of them snatched the brief-case from the hand

of the victim. One of the 4 assailants was having a knife. One

assailant put the brief-case under his armpit. All of them i.e. the

three police officers rushed towards the place where the crime

was being committed. The 4 assailants ran in the opposite

direction and at the intersection of Mahabat Khan Road service

lane and Deen Dayal Upadhyay Marg, 3 assailants ran towards

the right and the fourth who was carrying the brief-case ran

towards the left. The said fourth assailant crossed over Deen

Dayal Upadhyay Marg and ran on the open space between

Kamla Devi Bhawan and jhuggis. Veer Pal and Ram Chander

continued the chase and Rajbir stayed back to remove the

injured to the hospital. Veer Pal and Ram Chander apprehended

the fourth assailant who had the brief-case with him at a spot

outside the office of the Bar Council of India. Said fourth person

was identified by them as Afsar.

10. According to the said 2 police officers i.e. Veer Pal

and Ram Chander, they took possession of the brief-case from

Afsar.

11. The site plan Ex.PW-17/A marks the spot B as the

spot wherefrom the 3 police officers commenced their chase

when they heard sound of „bachao bachao‟ from the spot

marked „A‟ on the site plan. We may note that from the said

spot „A‟, human blood has been lifted. The distance between

spot B and spot A is about 28 meters i.e. approximately 90 feet.

Spot B is on Mahabat Khan Road. It is at an angle of about 30

degrees from the corner of the service lane and Mahabat Khan

Road. Opposite to spot B, along the boundary wall of Gandhi

Peace Foundation, which abuts the northern side of Mahabat

Khan Road, exists an electric pole. No electricity pole has been

shown on the service lane connecting Mahabat Khan Road with

Deen Dayal Upadhyay Marg i.e. there is no electricity pole near

spot A.

12. As per the testimony of PW-5, PW-9 and PW-15 when

they ran towards the spot where the crime was being

committed, the 4 assailants fled and separated at the junction

of the service lane with Deen Dayal Upadhyay Marg which we

find is at a distance of about 30 meters from spot A. At the

junction, 3 accused ran towards the right and the fourth ran

towards the left. Veer Pal and Ram Chander claim to have come

within 8 to 10 paces distance of the assailants before the

assailants fled in the opposite directions i.e. at the junction of

the service lane of Mahabat Khan Road and Deen Dayal

Upadhyay Marg.

13. Learned counsel for the State urges that the 2 police

officers having closed on to the accused and having reached

within a distance of 8 to 10 paces, the identification in Court by

the said 2 police officers pertaining to Mohd.Shamshad, Javed

and Zakir needs to be accepted.

14. Per contra, learned counsel for the appellants urge

that from the testimony of the 3 police officers, it is apparent

that they saw all the accused from the rear i.e. could not have

had a glimpse of their faces when two out of them closed on to

the accused, for the reason, the accused started running from

spot A towards the northern direction on the service lane of

Mahabat Khan Road. The 3 police officers, who were at spot B

on Mahabat Khan Road started the chase from the southern

direction and ran towards the northern direction. Thus, the

question of any of the police officers seeing the face of the

accused when they were in the service lane does not arise.

15. It assumes importance that there is no street light on

the service lane of Mahabat Khan Road and the fact that the

time when the offence was committed was 8:30 PM and the

date is 19.3.1999 is also of importance for the reason by 19th

March, at 8:30 PM, it is completely dark in the city of Delhi save

and except such areas which are illuminated by lighting.

16. We concur with the submissions urged by learned

counsel for the appellants that under the circumstances it is

difficult to believe that the 3 police officers could have identified

Shamshad, Javed and Zakir, the persons who fled in the

opposite direction at the junction of service lane of Mahabat

Khan Road with Deen Dayal Upadhyay Marg when they were

chased. The closest the 2 police officers i.e. Veer Pal and Ram

Chander came to the said 3 accused is 8 to 10 paces, but at

that point of time the accused had their back towards them.

The 2 police officers chased the fourth accused i.e. Afsar as

deposed to by them and gave up the chase qua Javed, Zakir and

Shamshad.

17. We thus hold that the dock identification by the 3

police officers pertaining to appellant Shamshad, Javed and

Zakir does not inspire any confidence. In this connection we

may note that in the contemporaneous statements of the 3

police officers recorded by the investigating officer, none of

them has given any description of Javed, Zakir and Shamshad.

18. Pertaining to appellant Afsar, we note that as per the

3 police officers he was apprehended by Veer Pal and Ram

Chander at the point marked „D‟ on the site plan, which point is

on the road in front of the office of the Bar Council of India.

19. We have perused the cross examination of HC Veer

Pal and Ct.Ram Chander with reference to the claim of the two

of having caught appellant Afsar at the spot as claimed by

them. Nothing has been brought out to discredit said testimony

of the said 2 police officers.

20. We thus conclude by holding that whereas

apprehension of Afsar at the spot has been successfully brought

home by the prosecution, that Shamshad, Javed and Zakir were

the other 3 assailants who fled from the spot has not been

brought home beyond reasonable doubt through the testimony

of the 3 police officers.

21. This takes us to the recovery effected from the

appellants.

22. Information of the crime being committed was

conveyed by somebody to the police control room, wherefrom it

was transmitted to the local police station over the wireless,

where DD No.39, Ex.PW-12/A was recorded at 8:40 PM, that a

thief has left a bag outside Manak Bhawan Foundation Office.

Another information vide DD No.41 at 8:45 PM, being Ex.PW-

12/B, was noted at the police station that somebody had been

stabbed at Deen Dayal Upadhyay Marg.

23. ASI R.K.Tiwari left the police station with a copy of

DD No.39 and SI Vivek Pathak accompanied by Const.Arvind left

the police station with a copy of DD No.41.

24. SI Vivek Pathak and Const.Arvind reached Deen

Dayal Upadhyay Marg where HC Veer Pal and Const.Ram

Chander handed over custody of the appellant Afsar to him as

also the brief-case recovered from Afsar. In respect of the brief-

case, SI Vivek Pathak drew up the seizure memo Ex.PW-5/C,

recording therein that he had seized the brief-case which

contain a passbook issued by Saraswati Kunj Cooperative Group

Housing Society in the name of Ved Prakash Chakraborty i.e. the

deceased as also a steel tiffin box and Rs.332/- in cash.

25. As deposed to by SI Vivek Pathak, he immediately

sealed the contents of the bag. As deposed to by SI Vivek

Pathak, he left the spot for LNJP hospital where Const.K.A.Babu

handed over to him the belongings of the deceased Ved Prakash

Chakraborty, who we note was then unconscious and injured;

being cash in sum of Rs.4,213/-, a purse, keys, railway pass and

a pen which he seized as recorded in the memo Ex.PW-14/A.

26. Inspector Jai Singh Saini PW-26 took over the

investigation at around 8:00 AM on 20.03.1999. He did so for

the reason the injured V.P. Chakraborty died at the hospital at

around 3:00 AM in the intervening night of 19-20.03.1999. As

per him, appellants Shamshad, Javed and Zakir were

apprehended by him since their names and whereabouts were

disclosed in the disclosure statement made by appellant Afsar.

27. He apprehended the three on 20.03.1999. As

recorded in the seizure memo Ex. PW-21/E a silver ring Ex.P-1

with a pearl was got recovered by Zakir. As recorded in the

seizure memo Ex.PW-21/F, a purse, a passbook issued by Bank

of India in the name of the deceased, a visiting card of the

deceased, Rs.430/-, key and three revenue tickets were got

recovered by Shamshad. A blood stained dagger was got

recovered by Javed as recorded in the seizure memo Ex. PW-

21/H, who pursuant to his disclosure statement led him to a

place near Gandhi Peace Foundation and from the pavement

pointed out the spot wherefrom the dagger was recovered.

28. The blood control earth, the blood stained clothes

of the deceased, the blood sample of the deceased as also the

dagger were sent for serological examination and as per the

report of the serologist human blood could be detected on the

dagger and group thereof could not be detected.

29. As noted hereinabove, purity of the seizures of the

exhibits recorded in various seizure memos have been

attacked by learned counsel for the appellants, who have

referred to the testimony of Umesh Chakraborty PW-2 as also

that of Inspector Jai Singh Saini PW-26.

30. It may be recorded that no test identification

proceedings were conducted in respect of the various exhibits

seized by the police during investigation, and for the first time,

some of the exhibits were identified by Umesh Chakraborty

PW-2, the son of the deceased, when he deposed in Court in

the month of August, 1999.

31. Umesh Chakraborty has, inter alia, deposed as

under :-

"On 20.03.1999, I received a message from Inspector Pathak from JPN Hospital that my father Shri Ved Prakash had died there. I went JPN Hospital and from there I went to P.S. I.P.Estate. I was taken to the malkhana of the police station. I identified the belongings of my father which consisted of one brief- case, some papers, golden chain, golden ring, one pen, purse of brown colour and Rs. 4213/- in cash. I had taken into possession those articles on 03.03.1999 as per the order of the court."

32. Inspector Jai Singh Saini PW-26, on being cross-

examined, admitted that son of the deceased identified the

belongings of the deceased at the police station, but stated that

he did so on 07.6.1999.

33. The malkhana in-charge, ASI Surender Singh PW-24,

proved exhibits PW-24/A and PW-24/B, being the entries in the

malkhana register at serial number 1043 and 1149, as per which

the first entry pertained to the receipt of four parcels handed

over to him on 20.03.1999 and the second pertained to when the

parcels were handed over to Ct.Jaiveer on 01.06.1999 for onward

transmission to the FSL Malviya Nagar.

34. It is thus apparent that there is a problem with the

purity of the seizures affected as per afore-noted seizure memos.

It is apparent that either the exhibits which were ostensibly

seized were never sealed at the spot as claimed by the

investigating officers or that the seals were tampered with. PW-2

and PW-26 have admitted that various exhibits were shown in

the police station to PW-2 by the investigating officer. The 2 have

differed on the date, but that would not matter, for the reason

admittedly, the exhibits were shown to PW-2 in the police station

and we do not find any record maintained that the seals were

broken after taking back delivery of the parcels from malkhana

in-charge and thereafter the same were re-sealed. The

possibility of the exhibits being tampered or planted cannot be

ruled out.

35. Under the circumstances, appellant Shamshad and

Zakir have to be given the benefit of doubt with respect to the

recoveries affected at their instance.

36. As noted above, a blood stained dagger was

recovered pursuant to the disclosure statement of appellant

Javed. As held in the decisions reported as Narsinbhai Haribhai

Prajapati vs. Chhatrasinh & Ors. AIR 1977 SC 1753, Surjit Singh

Vs. State of Punjab AIR 1994 SC 110, Deva Singh Vs. State of

Rajasthan 1999 CriLJ 265 and Prabhoo Vs. State of U.P. AIR 1963

SC 1113, recoveries of ordinary articles such as blood stained

clothes and blood stained knives, are insufficient evidence and

unless there is some further link evidence, conviction cannot be

sustained on the sole incriminating circumstance of a recovery of

a blood stained knife pursuant to the disclosure statement of an

accused. In the instant case it has additionally to be noted that

the knife in question was detected only with blood of human

origin, group whereof could not be determined i.e. the blood on

the knife has not been linked as that of the deceased.

37. Thus, we find that the learned Trial Judge has glossed

over vital evidence as also the testimony of PW-2 and PW-26 with

respect to the recoveries affected at the instance of Shamshad

and Zakir. We also note that the learned Trial Judge ignored the

law pertaining to recoveries of ordinary articles such as knives.

Thus, appellants Shamshad, Javed and Zakir would be entitled to

an acquittal.

38. As regards appellant Afsar, notwithstanding the fact

that recoveries affected from him at the time of his apprehension

have become tainted, the fact that he was spotted by PW-5, PW-

9 and PW-15 as a part of group of four who were assaulting the

deceased and was a part of the group of four who were chased

by the said police officer and was the person who parted

company with three friends and ran towards the left at Deen

Dayal Upadhyay Marg and was continued to be chased by HC

Veer Pal and Constable Ram Chander who never lost sight of him

till he was apprehended outside the office of the Bar Council of

India, is good enough evidence wherefrom the involvement of

Afsar in the crime and the commission of the offence stands

proved against him beyond reasonable doubt. It stands proved

that Afsar along with his three associates intercepted the

deceased with an intention to rob him and in the process one of

the three associates stabbed the deceased.

39. To summarize Crl.Appeal No.288/2004 is dismissed.

Crl.Appeal No.698/2004, Crl.Appeal No.371/2004 and Crl.Appeal

No.738/2004 filed by Javed, Zakir and Shamshad are allowed.

Three are acquitted of the charges framed against them.

40. Appellant Zakir and Mohd. Shamshad are on bail. The

bail bond and surety bonds furnished by them are discharged.

41. Copy of this order be sent to the Superintendent

Central Jail, Tihar for necessary action pertaining to Afsar and

Javed.

42. Before concluding, we may note that Afsar and Javed

jumped interim bail and have not been apprehended. Since

Javed has been acquitted by us, no further action needs to be

taken against him pertaining to the instant case and we

discharge the bail bond and the surety bonds furnished by him.

As regards Afsar, he would have to suffer the remaining

sentence, for which the police would ensure that effective steps

are taken to apprehend Afsar and he be sent to prison.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE JANUARY 13, 2010 MM / dk