Mohammad Ahmad & Ors. vs State
2010 Latest Caselaw 257 Del

R-33&34

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Decision :19th January, 2010


+                             Crl. A. No. 732/2004

        MOHAMMAD AHMAD & ORS.      ..... Appellants
                    Through: Mr.S.K.Duggal, Advocate
               versus
        STATE                      ..... Respondent
                    Through: Ms.Richa Kapoor, APP


                              Crl. A. No. 801/2004

        ANSAR                                  ..... Appellant
                            Through:      Mr.Zafar Sadique, Advocate
                       versus
        STATE                                  ..... Respondent
                               Through:   Ms.Richa Kapoor, APP


         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 Reporter or not?                             Yes
     3. Whether the judgment should be reported in the Digest?Yes

PRADEEP NANDRAJOG, J. (Oral)

1. Four persons were charge-sheeted pertaining to the

offence of having murdered Mohan Lal. One of them; namely

Duleh Hassan absconded after he was granted interim bail and

hence was declared a Proclaimed Offender. His trial was

segregated. Trial continued against the other three accused;

namely Ansar, Mohd.Ahmed and Shakeel Ahmed.

2. The charge framed against the three is as under:-

"That on 01.01.1991 at about 7.30 P.M., at H.No.F-240, New Seemapuri in furtherance of your common intention, you all committed murder of Mohal Lal causing his death and thereby committed an offence punishable under Section 302/34 IPC and within my cognizance."

3. It may be noted at the outset that no charge for

the offence of conspiracy i.e. Section 120B IPC relating to the

murder of Mohal Lal was framed against any accused.

4. Case of the prosecution was that accused Shakeel

Ahmed owed Rs.80,000/- to Mohan Lal and having no intention

to return the said money, entered into a conspiracy with the

other three co-accused who murdered Mohan Lal. As per the

prosecution, giving effect to the conspiracy, at 7.30 P.M. on

01.01.1991, when it was dark, Ansar drove the white colour

Maruti Van bearing Registration No.DNC-2696 belonging to

Sibte Hasnain PW-15 to the house of Mohan Lal and parked the

same on the street outside the house. Mohd. Ahmed, who was

armed with a pistol, and Duleh Hassan who was armed with a

knife, went inside the house of Mohan Lal and Mohd.Ahmed

fired a shot at Mohan Lal. Duleh Hassan threw the knife at the

spot. The two ran out and sat in the van. Ansar drove away the

van. At the same time, Rajni PW-1, the wife of the deceased

was standing on the roof of the house and saw Ansar driving

the van to outside her house. She saw Mohd. Ahmed and

Duleh Hassan entering the ground floor of her house and

running away. Nuruddin PW-2 was at the place where the

crime took place i.e. the house of Mohan Lal, from a portion

whereof Mohan Lal was carrying business, using the same as a

shop, he saw Mohd.Ahmed and Duleh Hassan commit the

crime.

5. Vide impugned judgment and order dated

23.08.2004 the learned trial judge has convicted Ansar,

Mohd.Ahmed and Shakeel Ahmed of the offence they were

charged of. The three have been sentenced to undergo

imprisonment for life.

6. In returning the finding of guilt against the Shakeel

Ahmed, the learned trial Judge has held that two pieces of

incriminating evidence have surfaced against him. The first is

the proof of the fact that he owed Rs.80,000/- to the deceased;

and hence had a motive. The second is that after Ansar was

arrested on 06.01.1991, he made a confessional statement

disclosing the conspiracy and the fact that Mohd.Ahmed and

Duleh Hassan were still in the house of Shakeel Ahmed and

that when the Investigating Officer went to the house of

Shakeel Ahmed, he arrested Mohd.Ahmed and Duleh Hassan

along with Shakeel Ahmed from the house of Shakeel Ahmed.

In other words, the presence of co-accused Mohd.Ahmed and

Duleh Hassan from the house of Shakeel Ahmed has been

used as incriminating evidence against Shakeel Ahmed.

7. Incriminating evidence held established against

Ansar is his being identified in court as the driver of the white

Maruti Van in which the assailants came to the house of the

deceased; the dock identification being by Rajini PW-1, the

wife of the deceased.

8. Incriminating evidence held established against

Mohd.Ahmed is his being identified as the one who fired upon

the deceased by Nuruddin PW-2 and he being the person who

were seen by Rajni entering the house accompanied by Duleh

Hassan. The second incriminating evidence against him is that

pursuant to his disclosure statement Ex.PW-1/A, he led the

police to a vacant plot of land in Pappu Colony and pointed out

a spot which he dug and hidden beneath the earth, got

recovered a pistol Ex.P-1 and a fired cartridge Ex.P-2, which

were seized by the Investigating Officer as per seizure memo

Ex.PW-1/C; the sketch of the pistol and the fired cartridge

being Ex.PW-1/B; the pistol and the fired cartridge recovered

were proved to be complimentary i.e. the cartridge was proved

to be fired from the pistol in question. A bullet recovered from

the dead body of the deceased was opined to be fired from the

pistol Ex.P-1. The report of the Ballistic Expert being Ex.PW-

17/F.

9. It is not being disputed in appeals by learned

counsel for the appellants that Mohan Lal was residing and

was also having a shop at premises No. F-240, New Seemapuri

and that he was murdered when he was sitting in his shop.

Thus we need not note the evidence of the police officers and

the relatable seizure memos pertaining to blood sample, blood

stained concrete, control earth concrete and other exhibits

lifted by the investigation team which reached soon after the

crime was committed at 7.30 P.M. on 01.01.1991 at the spot.

We also need not note the evidence led pertaining to the crime

being committed at the spot as also evidence pertaining to the

various exhibits which were seized and deposited in the

Malkhana from time to time. We would be noting such

evidence as would impinged on what has been found to be

incriminating against the three accused.

10. Inspector B.S.Palta PW-17, then working as SHO PS

Seemapuri, the Police Station within the territorial jurisdiction

whereof the crime was committed, received an information at

about 8.15 P.M. on 01.01.1991 that a person has been shot at

New Seemapuri and had been removed to GTB Hospital. He

reached the spot left behind a Constable to preserve the same

and reached the hospital where he met ASI V.P.Singh who had

already obtained a copy of DD No.13A Ex.PW-17/A, as per

which information of the crime was registered at the Police

Station. Inspector B.S.Palta collected the MLC Ex.PW-14/A of

Mohan Lal, as per which the patient had been brought dead

and was having a gun shot injury.

11. The dead body was seized and sent to the mortuary

of LNJP Hospital where Dr.L.T.Ramani PW-5 conducted the post

mortem on 02.01.1991 and retrieved a bullet from the dead

body, which bullet along with blood sample of the deceased

were handed over to Constable Sunil Kumar, who in turn,

handed over the same to the Investigation Officer as recorded

in the Memo Ex.PW-7/A.

12. The Investigation Officer recorded the statement of

Rajni and Nuruddin under Section 161 Cr.P.C. on the next day

of the crime. It would be necessary for us to note that Rajni

told the Investigation Officer that from the roof of her house

she saw two persons came in a white coloured Maruti Van

bearing registration No.DNC-2696 entering her house. She

could recognize them if they were brought before her. In the

statement she gave the features of the said two persons.

Being relevant qua appellant Ansar, we may note that in her

said statement she has nowhere stated that she saw the face

of the driver or the fact that there was a third person driving

the white Maruti Van in which two persons came to her house.

She disclosed said fact in her supplementary statement

recorded after Ansar was arrested.

13. Nuruddin stated in his statement to the

Investigation Officer that two persons, whom he could

recognize if brought before him, entered the shop which was

in the house of the deceased. One of them was armed with

knife and the other with pistol. The man with the pistol fired a

shot at Mohan Lal and both the accused ran away. Thus, the

only clue which the police had was that the assailants had

come in a white Maruti Van bearing registration No.DNC 2696;

i.e. the number disclosed in the statement of Rajni.

14. It is obvious that the said Van had to be traced. On

06.01.1991, information was received that the said Van had

been spoted. In the meanwhile, on inquiry the Investigation

Officer learnt that the Van in question was owned by Sibte

Hasnain PW-15.

15. The Van was spoted on 06.01.1991 outside

Kamdhenu Restaurant, Dilshad Garden. The Investigation

Officer, who took along with him Nuruddin, found the Van still

parked outside the Restaurant. Ansar was arrested. The

vehicle was seized vide memo Ex.PW-2/E. Ansar made a

confessional statement Ex.PW-10/B informing about the

conspiracy and the fact that Mohd.Ahmed and Duleh Hassan

were in the house of Shakeel Ahmed. He took them to Pappu

Colony, Shahibabad. From the house of Shakeel Ahmed, he

i.e. Shakeel Ahmed as also Mohd.Ahmed and Duleh Hassan

were arrested the same day i.e. on 06.01.1991.

16. We may note that the aforesaid facts of

apprehension of Ansar and the three other co-accused as also

the disclosure-cum-confessional statement of Ansar have been

proved through the testimony of Nuruddin PW-2 and Inspector

B.S.Palta PW-17.

17. Mohd.Ahmed, on being interrogated by Inspector

B.S.Palta made a disclosure statement Ex.PW-1/A informing

that the pistol used by him in committing the crime can be got

recovered by him. He lead the Investigation Officer who was

accompanied by Rajini to a vacant plot in Pappu Colony and

dug out from a spot, which he pointed out, and retrieved the

pistol Ex.P-1 and used cartridge Ex.P-2 which was seized as per

memo Ex.PW-1/C. Sketch thereto Ex.PW-1/B was drawn by the

IO at the spot itself.

18. We note that the disclosure statement and the

recoveries pertaining thereto have been proved through the

testimony of Rajni PW-1 and the Investigation Officer PW-17.

19. The bullet recovered from the dead body of the

deceased as also the pistol Ex.P-1 and the used cartridge Ex.P-

2 were sent to the Ballistic Expert whose report is Ex.PW-17/F,

with reference to test fire bullet and cartridge, opined with the

cartridge Ex.P-2, has been fired from the pistol Ex.P-1 and that

the bullet recovered from the dead body of the deceased has

also been fired from the pistol Ex.P-1.

20. Sibte Hasnain PW-15 deposed in court that he was

the owner of the Maruti Van bearing No.DNC-2696 and that

Ansar was his driver and that on 31.12.1990 at the request of

Ansar he had allowed him to take the Van because Ansar told

him that he had to attend a marriage and had to take

'Baraaties' to the venue.

21. Rajni PW-1 deposed that on the day when the crime

was committed she was at the roof of her house. At 7.30 P.M.

a white Maruti Van came and parked near the office of DDA

which was opposite her house. Accused Duleh Hassan and

Mohd.Ahmed got out from the Van. Ansar kept sitting behind

steering wheel of the van. Duleh Hassan and Mohd.Ahmed

went inside her house. She heard a shot being fired. She ran

to the ground floor and saw the said two accused running

towards the Van and speeding away towards the Van. She

deposed about the recoveries affected in her presence when

Mohd.Ansar led the police to Pappu Colony. She deposed that

the pistol Ex.P-1 and the cartridge Ex.P-2 were the one which

were recovered pursuant to accused Mohd.Ahmed taking the

police to the spot at Pappu Colony.

22. We may note that Rajini was cross-examined on the

issue whether there was any light outside her house. She

stated that lights were coming from the various houses on to

the street where the Maruti Van was parked. We may note

that Rajini has not been cross-examined with reference to her

statements recorded by the Investigation Officer.

23. Nuruddin PW-2 deposed that he was in the shop of

the deceased on 01.01.1991 at 7.00 P.M. when Mohd.Ahmed

and Duleh Hassan came to the shop. One of them fired at the

deceased and thereafter both the assailants fled.

24. It is urged by learned counsel for the Ansar that the

only person who has identified Ansar is Rajni PW-1, as per

whom Ansar kept sitting in the white Maruti Van behind the

wheel. Counsel urges that Ansar not being subjected to any

TIP, dock identification for the first time when Rajini deposed in

court has to be taken with a pinch of salt. Learned counsel

further points out that in Rajni's statement recorded by the

Investigation Officer, on the day when the crime was

committed, she nowhere states that she saw any driver on the

driver's seat in the Van. Counsel points out that only after the

accused were arrested a supplementary statement of Rajini

was recorded, as per which she claimed to have seen the face

of the third person sitting in the Van.

25. Pertaining to appellant Ansar, we note that the only

incriminating evidence against him is that he has been

identified in court by Rajini as the driver of the Van in which

the two assailants were brought to her house.

26. Whereas, Rajini claims that the place where the Van

was parked was well lit, we find that Nuruddin on being cross-

examined admitted that there was complete darkness outside.

27. We note that the rough site plan Ex.PW-17/C and

the site plan to scale Ex.PW-16/A do not know the existence of

any street light near the spot where the Van was parked.

28. In our decision dated 11th January, 2010 deciding

Crl.Appeal No.989/2002 titled Furkan Vs. State, on the issue of

dock identification for the first time by an eye witness we had

discussed the law, which was noted as under:-

"15. It is settled law that substantive evidence in a criminal trial is the evidence in Court and pertaining to identification of an accused, the substantive evidence is the evidence of identification in Court. Under Section 9 of the

Evidence Act, facts which establish the identity of the accused are relevant under Section 9 of the Evidence Act.

16. Test Identification pertains to the domain of investigation. There is no provision in the law which obliges the investigating agency to hold Test Identification Proceedings or confers any right upon the accused to claim a Test Identification. Test Identification Proceedings do not constitute substantive evidence and are essentially governed by Section 162 of the Code of Criminal Procedure.

17. The genesis of Test Identification of accused during investigation has its route in human psychology. As opined by Professor Borchard in his Article „Convicting the Innocent‟ referred to in para 9 of the decision reported as 1988 SC 345 Hari Nath & Anr. Vs. State of UP, the emotional balance of the victim or eye-witness is so disturbed by his extra-ordinary experience that his powers of perception become distorted and his identification is frequently most untrustworthy. Into the identification enter other motives not necessarily stimulated originally by the accused personally the desire to require a crime, to exact vengeance upon the person believed guilty, to find a scapegoat, to support, consciously or unconsciously, an identification already made by another. Thus, doubts are resolved against the accused.

17. In Halsbury‟s laws of England there exists a passage being para 363, Vol. II, 6th Edition which is worth recalling. It reads as under:-

"It is undesirable that witnesses should be asked to identify a defendant for the first time in the dock at his trial; and as a general practice it is preferable that he should have been placed previously on a parade with other persons, so that potential witness can be asked to pick him out."

            18.    We      need     not    catalogue      the      various
            decisions         relating     to    Test     Identification

Proceedings for the reason we find that the law has been very succinctly penned in para 11 of the decision in Hari Nath‟s case (supra), which reads as under:-

"It is, no doubt, true that absence of corroboration by test identification may not assume any materiality if either the witness had known the accused earlier or where the reasons for gaining an enduring impress of the identity on the mind and memory of the witness are, otherwise, brought out."

29. The fact that Rajini never told the Investigation

Officer at the first stage that she had seen the third person

driving the Van; the fact that Rajini for the first time spoke

about the person driving the Van after Ansar was arrested; the

fact that the site plan do not show street light outside the

house of the deceased or near the place where the Van was

stationed; the fact that Nurruddin has admitted that there was

complete darkness outside; the fact that Ansar was not

subjected to any TIP, leads us to give benefit of doubt to Ansar

as being the person driving the Van, whom Rajini saw, as

claimed by her.

30. We may note that notwithstanding the fact that

Rajni has not been confronted with her statements recorded

by the Investigating Officer but noting that the Investigating

Officer has referred to the said fact, to reassure our judicial

conscious we have noted the facts disclosed by Rajni in her

statements recorded under Section 161 Cr.P.C.

31. Thus, Ansar would be entitled to an acquittal on

being given the benefit of doubt.

32. Pertaining to appellant Mohd.Ahmed, we have on

record his being identified in Court by Rajni and Nuruddin. It is

true that after he was arrested, Mohd.Ahmed was not

subjected to any TIP and that the two witnesses have

identified him in Court for the first time. But, from the

testimony of Nuruddin, it is apparent that he had sufficient

opportunity to see the face of Mohd.Ahmed. The testimony of

Rajni does not bring out that even she had a sufficient

opportunity to see Mohd.Ahmed. But the fact that Nuruddin

got sufficient opportunity to see the face of Mohd.Ahmed, we

are satisfied with the dock identification of Mohd.Ahmed by

Nuruddin, who has been subjected to extensive cross-

examination but has withstood the same.

33. Thus, against accused Mohd.Ahmed we have a

direct eye witness account. We have further highly

incriminating evidence against him in the form of the recovery

of the pistol Ex.P-1 from him which has been linked to the

bullet recovered from the dead body of the deceased. The

linkage being through the ballistic report Ex.PW-17/F.

34. The twin evidence is sufficient to sustain the

conviction of accused Mohd.Ahmed.

35. Against accused Shakeel Ahmed we note that there

is no evidence of his participating in the commission of the

crime.

36. Only evidence against him is that he owed

Rs.80,000/- to the deceased, a fact proved through the

testimony of Suresh Kumar PW-11 as also through a document

Ex.PW-1/D which is an acknowledgment on a stamp paper by

Shakeel Ahmed that he owed Rs.80,000/- to the deceased.

37. Before proceeding further in the matter, we express

our displeasure at no charge being framed for the offence of

conspiracy against the accused persons. It is apparent that

the learned trial Judge has acted most negligently.

38. A perusal of the charge sheet shows that Shakeel

Ahmed was listed as the architect of the conspiracy. Except

for financing the crime, no role in the commission of the crime

has been alleged against Shakeel Ahmed. Needless to state

on the day when the crime was committed Shakeel Ahmed

never came to the spot. He did not facilitate the commission

of the crime either actively or as the one who facilitated the

commission of the crime. We wonder as to how Shakeel

Ahmed could at all be charged, much less convicted, for the

offence punishable under Section 302/34 IPC.

39. Be that as it may, the only incriminating evidence

against Shakeel Ahmed is his having a motive, proved through

the fact that he owed some money to the deceased. The other

evidence is that Mohd.Ahmed and Duleh Hassan were arrested

from his house. But, this arrest is 6 days after the crime was

committed.

40. In our opinion, the said two pieces of evidence fall

short of proof of Shakeel Ahmed being involved in any

conspiracy to murder the deceased.

41. The net result is that Crl.A.No.801/2004 filed by

Ansar is allowed. Crl.A.No.732/2004 stands allowed vis-à-vis

appellant No.2 Shakeel Ahmed. The said appeal is dismissed

vis-à-vis appellant No.1 Mohd.Ahmed.

42. Appellant Ansar and appellant Shakeel Ahmed are

acquitted of the charge framed against them.

43. The conviction of appellant Mohd.Ahmed is

sustained.

44. All the accused are in jail.

45. Copy of this order be sent to the Superintendent

Central Jail Tihar with a direction that if not required in custody

in any other case, appellant Ansar and appellant Shakeel

Ahmad be forthwith released from jail.

46. Copy of this order be supplied by the

Superintendent Central Jail Tihar to appellant Mohd.Ahmed.

47. Registry would send 3 sets of the present decision

to the Superintendent Central Jail, Tihar.

PRADEEP NANDRAJOG, J

SURESH KAIT, J JANUARY 19, 2010 'nks/mm'