Delhi High Court

Mohd.Shahid Alam vs State on 19 January, 2010

Author: Pradeep Nandrajog

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment Reserved on: January 14, 2010
                        Judgment Pronounced on: January 19, 2010

+                     CRL.APPEAL NO.713/2008

       MOHD.SHAHID ALAM                      ......Appellant
          Through: Mr.A.J.Bhambani and Ms.Nisha
                    Bhambani, Advocates.

                                 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. The appellant has been convicted for the offence of

having murdered Abdul Wahid also known as Bade Miyan, as

also for the offence of robbery. For the former offence he has

been sentenced to undergo imprisonment for life and for the

latter he has been sentenced to undergo imprisonment for five

years and pay a fine in sum of Rs.5,000/-, in default of

payment of fine to undergo simple imprisonment for one

month.

2. The learned Trial Judge has summarized the

incriminating evidence against the appellant as under:-

"I am, thus, of the opinion that from the aforesaid evidence discussed above, the prosecution has established beyond doubt that on the intervening night of the incident i.e. 12/13.5.2003 accused Mohd.Shahid Alam @ Salim had committed murder of one Abdul Wahid @ Bade Miyan by inflicting injuries by a weight of 5 Kg denomination on his head which were found to be sufficient in ordinary course to cause death. The accused has, thus, committed an offence punishable under Section 302 IPC and is convicted accordingly.

PW-10 Mohammad Nasir, the son of the deceased had deposed that on the night preceding the incident, he had a discussion with his father at the shop about making the payments and he testified that he specifically told him that Asif son of Allah-Wallah had come asking for money on which his father had told him that he had brought money with him. He had also told him that he would make the payment the next day in the morning. He testified that his father had told him that his father had brought Rs.10,000/- with him. He further testified that he also told his father that there were some other money of the retail business lying there in the shop and the said money could be used to make payment. Thus, it is seen that there was a cash of Rs.10,000/- plus the retail sale cash lying in the said dairy when the witness left the shop at 9.30 PM when his father and the accused had remained in the shop. The said cash was found missing in the morning when this incident took place. The accused was also found missing from the time of incident. Subsequently, when the accused was arrested on 10.7.2003, he had got recovered the keys

of the said tijori lying in the dairy of the deceased. Hence, it can be said that it was the accused who had committed the theft of the said amount lying in the tijori at the dairy and had caused the death of Bade Miyan while so committing the theft. The accused has, thus, also committed an offence of robbery punishable under Section 392 IPC."

3. It is thus apparent that the fate of the appellant has

to be decided with reference to the testimony of Mohd.Nasir

PW-10, the son of the deceased and the finding returned that

the key of the Tijori (locker) in the shop of the deceased was

recovered from the appellant. To put it in legal terms, the

incriminating evidence against the appellant is of his being last

seen in the company of the deceased at the shop in the night

where the dead body of the deceased was detected the next

day morning and the fact that the deceased and the appellant

used to sleep in the shop as also the evidence of recovery of

the key of the Tijori in the shop from the appellant. We may

note that though not used as an incriminating circumstance

against the appellant of absconding, evidence shows that the

appellant was apprehended on 10.7.2003 i.e. after about 2

months of the crime.

4. Mohd.Nasir PW-10 deposed that he and his father

Abdul Wahid were running Taj Dairy at Farashkhana and the

appellant was employed by them as a servant. Appellant used

to supply milk to houses and used to clean utensils in the

shop. After business hours, the appellant and his father used

to sleep in the shop in the night. On 12.5.2003 in the morning

Asif son of Allawallah, the man who used to supply milk to

them came and requested for payment for the milk supplied.

When his father came to the dairy in the evening he conveyed

said fact to his father who told him that he had brought

Rs.10,000/- and would make payment the next day morning.

He told his father that cash was lying in the shop in respect of

the sales effected during the day and said money would also

be used for making payment to the milk man. He left the shop

at about 9:30 PM and his father and the appellant remained in

the shop. Next day morning at 6:30 AM he learnt about a

quarrel between his father and someone at the shop. He

reached there at about 7:30 AM and learnt that his father had

been murdered. That after about one and a half month he

received message that the police had some clue about the

whereabouts of the appellant and that he should meet the

police. He met the police and at Haus Qazi saw the appellant

and pointed him out. He was apprehended and brought to the

police station where a key was recovered from his possession.

The same was of the Tijori of the shop. He deposed that the

key recovered from the appellant was Ex.P-8.

5. Noting the fact that learned counsel for the

appellant has not disputed that in the early hours of the

morning of 13.5.2003, on receipt of information about the

crime the police reached the shop No.1327, Farashkhana

wherefrom PW-10 and his father were operating Taj Dairy and

recovered the dead body of the deceased with fresh blood

oozing out evidencing fresh injuries, meaning thereby, the

deceased was murdered just before dawn, thus, we are not

noting the testimony of all such persons who have deposed to

blood sample and blood stained quilt, pillow and sheet etc.

recovered from the spot except to note that as per the report

of the serologist human blood of the same group as that of the

deceased was detected thereon. The place where the crime

was committed is thus not in dispute, being the shop where, as

per the claim of PW-10, the appellant and his father slept in

the night of 12th May, 2003.

6. Having perused the cross examination of

Mohd.Nasir PW-10, it has to be noted that the appellant has

not challenged the testimony of Mohd.Nasir when he deposed

that the appellant was employed as a servant by Mohd.Nasir

and his father at Taj Dairy and that his father and Mohd.Nasir

used to sleep in the said premises after business hours and

that on 12th May, 2003 when he left the dairy at 9:30 PM his

father and the appellant were seen by him in the dairy.

7. When examined under Section 313 Cr.P.C. the

appellant stated: „I used to work with Nasir. I was employed

by him who was running a dairy. The deceased also used to

sit in the same dairy. I had worked for about three months

with Nasir. I used to take milk from the dairy and supply to the

houses of customers and bring back the money and hand over

to Nasir. The payment received from one of the customers

was not entered by Nasir in his notebook maintained by him.

Nasir accused me of having kept the money and he beat me

and threw me out of the job. On my asking for payment of my

salary, he stated that he would give me the same later on. I

went to Punjab to earn money. There I worked in an oil mill.

When I returned after two months I went to Nasir dairy and

asked for my salary dues. At that time, Nasir took me to the

police station and falsely implicated me in this case. I used to

sleep at the dairy of the said Nasir. Sometimes Nasir and

sometimes his father used to sleep there.'

8. It stares us in our eyes that while cross examining

Mohd.Nasir no such defence was put up. Not even a

suggestion has been given to Mohd.Nasir that the appellant

was working as an employee in the dairy for only 3 months

and his services were terminated and that he returned after 2

months to claim his dues and was falsely implicated.

9. From the testimony of Mohd.Nasir, who has not

been challenged on the fact of the appellant being in

employment and seen by him at the dairy at 9:30 PM on

12.5.2003 and the fact that he deposed that as per practice,

his father and the appellant used to sleep in the dairy after

business hours, the inevitable conclusion is that the

prosecution has successfully established that the appellant

and the deceased were in the company of each other at 9:30

PM in the dairy and the two slept in the dairy. This was the

place where the deceased was murdered and body recovered

at around 6:30 AM in the morning of 13.5.2003.

10. On the issue of the recovery of the key of the Tijori,

as per the testimony of Mohd.Nasir the same was recovered

from him when he was arrested. But, according to the

investigating officer the same was recovered pursuant to the

disclosure statement Ex.PW-10/A of the appellant and upon

appellant leading them to property No.1761-64, Lal Kuan

wherefrom he picked up a shirt from the pocket of which a

bunch of 3 keys Ex.P-8 were recovered.

11. There is some discrepancy in respect of the

recovery of the bunch of keys Ex.P-8. There is a further

problem. The disclosure statement of the appellant wherein it

is stated by him that one out of the 3 keys is that of the Tijori

is inadmissible in evidence. The prosecution had to lead

evidence to link the key with the Tijori. No witness of the

prosecution has said that the key was operated on the Tijori

and that the Tijori could be locked and unlocked with the key.

Further problem is that while deposing in Court, Mohd.Nasir

PW-10 has not stated that one out of the 3 keys i.e. Ex.P-8 was

the key of the locker. He has simply deposed that when

brought to the police station after he was arrested the

appellant produced the key of the Tijori. Identification during

investigation relates to Section 162 Cr.P.C. and is not

evidence. Evidence is what is spoken in Court and pertaining

to identification would relate to Section 9 of the Evidence Act.

12. It is apparent that the learned public prosecutor

has been extremely negligent while leading evidence. Even

the investigating officer has been callous in not checking

whether the key in question was that of the lock of the Tijori, a

fact which he could easily have proved by deposing that he

operated the lock of the Tijori with the key. To some extent

one may say that even the learned Trial Judge has acted

casually for the reason the Tijori Ex.P-9 seized from the place

of the crime as recorded in the seizure memo Ex.PW-10/D was

exhibited in Court and when the bunch of keys Ex.P-8 was

exhibited, the learned Judge could have checked whether one

out of the three keys pertained to the lock of the Tijori and if

yes or no, the fact could be recorded in the order sheet.

13. Pertaining to the charge of robbery, there is a

further problem. Mohd.Nasir has only deposed that his father

told him that he had brought the money to pay to the milk

man. Mohd.Nasir has not said that he saw his father put the

money inside the Tijori. As per Mohd.Nasir his father told him

of having money with him at 5:00 PM. There is a possibility

that whatever money was with the deceased was either spent

or given to somebody. In any case, there is no positive

evidence that Rs.10,000/- was put inside the Tijori by the

deceased.

14. Thus, in respect of robbery, noting that if the

appellant is found to be the assailant, the only motive could be

robbery, but since we cannot return presumptive finding at a

criminal trial which findings are based on strong suspicion, we

hold that there is insufficient evidence to sustain the

conviction for the offence of robbery.

15. A vital link evidence of the recovery of the key of

the Tijori Ex.P-9 having been dented, we are left with the

evidence of the appellant and the deceased being last seen in

the company of each other at 9:30 PM on 12.5.2003 and the

dead body being detected the next morning at around 6:30 AM

and the evidence of the appellant absconding till he was

arrested on 10.7.2003.

16. Whether the evidence of the accused being last

seen in the company of the deceased and there being

sufficient proximity of the time and place where the two were

last seen as also proximity of time of last seen alive and the

death of the deceased without any further evidence is

sufficient wherefrom, in a case of circumstantial evidence, the

guilt of the accused can be inferred was a matter of debate in

various decisions which were noted by a Co-ordinate Division

Bench of this Court of which Bench, one of us; namely,

Pradeep Nandrajog, J. was a Member of. The opinion of the Co-

ordinate Division Bench dated 10th August, 2009 disposed of a

batch of 4 appeals, lead appeal being Crl.A.No.362/2001

Arvind @ Chotu Vs. State.

17. With reference to the decisions reported as AIR

1955 SC 801 Deonandan Mishra Vs. The State of Bihar, 1993

SCC (Cri) 520 Anant Bhujangrao Kulkarni Vs. State of

Maharashtra, (2000) 8 SCC 382 State of West Bengal Vs. Mir

Mohammad Omar & Ors. (2002) 6 SCC 715 Mohibur Rahman &

Anr. Vs. State of Assam, (2002) 8 SCC 45 Bodhraj @ Bodha &

Ors. Vs. State of Jammu & Kashmir, (2003) 7 SCC 37 Babu S/o

Raveendran Vs. Babu S/o Bahuleyan & Anr., 2003 (8) SCC 93

Amit @ Ammu Vs. State of Maharashtra, (2005) 3 SCC 114

State of U.P. Vs. Satish, AIR 2006 SC 1708 Deepak

Chandrakant Pail Vs. State of Maharashtra, AIR 2006 SC 1712

State of U.P. Vs. Desh Raj, 2006 (3) SCALE 452 RAmreddy

Rajeshkhanna Reddy & Anr. Vs. State of Andhra Pradesh, 2006

(12) SCALE Vikramjit Singh @ Vicky Vs. State of Punjab, 2007

(3) SCALE 740 State of Goa Vs. Sanjay Thakran & Anr., 2008

(9) SCALE 319 Venkatesan Vs. State of Tamil Nadu and 2009

(3) SCALE 327 Vithal Eknath Adlinge Vs. State of Maharashtra.

it was opined that the presumption of a fact is an inference as

to the existence of one fact from the existence of some other

facts, unless the truth of such inference is disproved.

Presumption of fact is a rule of law of evidence and that a fact

otherwise doubtful may be inferred from certain other proved

facts. It was opined that when inferring the existence of a fact

from some other set of proved facts, the Court exercises a

process of reasoning and reaches a logical conclusion as the

most probable position. It was noted that the legislative

foundation to the said rule of inference could be located in

Section 114 of the Evidence Act which empowers the Court to

presume the existence of any fact which is likely to have

happened. In this process, the Court shall have regard to the

common course of natural events, human conduct etc. in

relation to the facts of the case. Another legal principle on

which inferences can be founded is to be located in Section

106 of the Evidence Act which embodies the legal principle

that where a fact is especially within the knowledge of any

person, the burden of proving the fact is upon him.

18. In para 103 of the opinion of the Division Bench, the

legal position relating to last seen evidence was summarized

as under:-

" We may summarize the legal position as under:-

(i) Last-seen is a specie of circumstantial evidence and the principles of law applicable to circumstantial evidence are fully applicable while deciding the guilt or otherwise of an accused where the last-seen theory has to be applied.

(ii) It is not necessary that in each and every case corroboration by further evidence is required.

(iii) The single circumstance of last-seen, if of a kind, where a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain, how and in what circumstances the deceased suffered death, it would be permissible to sustain a conviction on the solitary circumstance of last-seen.

(iv) Proximity of time between the deceased being last seen in the company of the accused and the death of the deceased is important and if the time gap is so small that the possibility of a third person being the offender is reasonably ruled out, on the solitary circumstance of last-seen, a conviction can be sustained.

(v) Proximity of place i.e. the place where the deceased and the accused were last seen alive with the place where the dead body of the deceased was found is an important circumstance and even where the proximity of time of the deceased being last seen

with the accused and the dead body being found is broken, depending upon the attendant circumstances, it would be permissible to sustain a conviction on said evidence.

(vi) Circumstances relating to the time and the place have to be kept in mind and play a very important role in evaluation of the weightage to be given to the circumstance of proximity of time and proximity of place while applying the last-seen theory.

(vii) The relationship of the accused and the deceased, the place where they were last seen together and the time when they were last seen together are also important circumstances to be kept in mind while applying the last seen theory. For example, the relationship is that of husband and wife and the place of the crime is the matrimonial house and the time the husband and wife were last seen was the early hours of the night would require said three factors to be kept in mind while applying the last-seen theory.

The above circumstances are illustrative and not exhaustive. At the foundation of the last-seen theory, principles of probability and cause and connection, wherefrom a reasonable and a logical mind would unhesitatingly point the finger of guilt at the accused, whenever attracted, would make applicable the theory of last-seen evidence and standing alone would be sufficient to sustain a conviction."

19. In the instant case there is no evidence that

somebody broke into the shop where the deceased and the

appellant slept in the night. The fact that the appellant and

the deceased used to sleep in the shop and when the shutter

was down at 9:30 PM both of them were in the shop requires

an inference to be drawn that the appellant and the deceased

slept in the shop. Thus, unless the appellant explains as to

under what circumstances the deceased died the homicidal

death, he must own the guilt for the reason up to the time

when the crime was detected the next day morning at around

6-6:30 AM none could have intervened to cause injuries upon

the deceased. The fact that the appellant absconded in the