Mohd.Naseem vs State
2010 Latest Caselaw 346 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                      Judgment Reserved On: 18th January, 2010
                      Judgment Delivered On: 21st January, 2010


+                   CRL.APPEAL NO.896/2002

       MOHD. NASEEM                            ......Appellant
               Through:        Mr.Mukesh Jain, 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.

1. Believing that Meena (the deceased) made three

dying declarations, the first to her daughter Shameena PW-2,

the second to the doctor on duty at the hospital where she was

brought in an injured condition and the third to ASI Ateeq

Ahmed, in which she disclosed that the appellant who was her

step son had shot her, as also the testimony of Salma Bano PW-

4, who claimed to be an eye witness, the learned Trial Judge has

returned a finding of guilt against the appellant.

2. As per the prosecution the deceased was the second

wife of Mohd.Raees and the appellant was her step son. One

Mohd.Anees and Mohd.Raees (both proclaimed offenders), had

caught Meena and on Mohd.Raees exhorting, the appellant fired

with a pistol and all accused fled. Since Mohd.Anees and

Mohd.Raees were declared proclaimed offenders, the instant

trial relates only to the appellant.

3. The date of the incident is 26.9.1999. The time is

6:30 PM. The place of the occurrence is in dispute. As per the

prosecution Meena was shot on the street at Faatak Baan Wala,

Chitli Kabar. Learned counsel for the appellant points out that

as per the testimony of Mohd.Nafees PW-5 the place of the

crime could not be Faatak Baan Wala but 8 to 10 shops away.

4. It may be noted at the outset that the relevance of

this controversy would be whether at all Salma Bano PW-4 was

present with the deceased when the deceased was shot.

5. The police got information of the crime when DD

No.20-A was recorded at the local police station at 7:08 PM on

26.9.1999 when Meena was brought in an injured condition to

LNJP Hospital. ASI Ateeq Ahmed PW-10 accompanied by

Const.Manoj went to LNJP Hospital where Meena was found

admitted in the casualty. Her MLC Ex.PW-3/A records that

Nafees (PW-5) had brought her to the hospital. The time of

arrival noted is 7:00 PM.

6. The MLC is in the handwriting of Dr.Allimuddin the

Additional Chief Medical Officer of the hospital. It also records

the name of Dr.Prem Kumar PW-3 who was the then Chief

Medical Officer of LNJP Hospital. It stands recorded in the MLC

that the history of the injury has been told by the patient herself

that her step son Naseem i.e. the appellant had shot her about

10 minutes ago in Chitli Qaber area. It is recorded in the MLC

that the patient was conscious and oriented. The pulse

recorded is 76 beats per minute. BP recorded is 110/80 mm Hg.

There is an endorsement on the MLC by some doctor, noting the

time 10:00 PM and certifying the patient is fit for statement.

7. As per ASI Ateeq Ahmed when he reached the

hospital he found Salma Bano PW-4 whose statement Ex.PW-4/A

was recorded by him and after making an endorsement Ex.PW-

4/B he forwarded the same for FIR to be registered. As recorded

in the endorsement Ex.PW-4/B the tehrir was dispatched from

the hospital at 8:40 PM. Thereafter, in the casualty he recorded

the statement Ex.PW-10/C of Meena.

8. In the statements of Salma Bano and Meena, both

have disclosed that the husband of Meena i.e. Mohd.Raees and

one Mohd.Anees caught Meena and appellant shot at her with a

pistol and thereafter all fled. As per Meena the motive for the

crime was a dispute between she and her husband pertaining to

property and hence the desire of her husband and her step son

to kill her.

9. It is apparent that the case of the prosecution would

hinge upon the testimony of ASI Ateeq Ahmed, Salma Bano,

Mohd.Nafees, Shameena and the doctor who prepared the MLC

of Meena. But, before noting their testimony, it may be noted

that it is not in dispute; a fact conceded by learned counsel for

the appellant and the State that there is evidence of a property

dispute between the deceased and her husband. This dispute

has been sought to be used to their advantage by both sides.

Whereas, appellant claims that due to past enmity, the crime

being committed by an unknown assailant, he has been falsely

implicated; the prosecution urges to the contrary by stating that

the foundation of the crime was the motive of Mohd.Raees to kill

the deceased with whom he was having a property dispute and

appellant being the son of Mohd.Raees from his first wife, would

be beneficiary thereof.

10. Three other important facts may be noted. The first

is that Mohd.Nafees PW-5, the person whose name is recorded

in the MLC Ex.PW-3/A, as the one who brought Meena to LNJP

Hospital, while deposing as PW-5 has categorically deposed that

a crowd gathered in the market attracted his attention and

when he reached the crowd he saw a woman lying in an injured

condition and he took the said woman in a rickshaw to the

hospital and got her admitted there. He deposed that he was in

his shop at that time which was 7 to 8 shops away from Faatak

Baan Wala. That the crowd had gathered towards the other

side of his shop, not the side towards Faatak Baan Wala but the

other and the exact place where the crowd had gathered was 3

to 4 shops away from his shop.

11. It may be highlighted by us that neither the

prosecution nor the defence has got highlighted through the

testimony of Nafees as to where was the exact spot wherefrom

he picked up Meena from the street.

12. The second important fact to be noted is that neither

the rough site plan prepared by ASI Ateeq Ahmed nor the site

plan to scale lists the spot wherefrom Salma Bano PW-4

witnessed the incident.

13. The third is that the weapon of offence was not

recovered.

14. We note the testimony of Salma Bano, Shameena,

ASI Ateeq Ahmed and Dr.Prem.

15. Shameena PW-2, deposed that on 26.10.1999 (the

date appears to be a typographic error and should read

26.9.1999) she was going with her friend Jeba to Chitli Qaber

Bazaar and saw her mother Meena in a rickshaw with her foster

sister Salma Bano. Salma Bano was weeping and her mother

Meena was in the lap of Salma Bano. On inquiry, her mother

told her that she was shot. She hired another rickshaw and

followed her mother and Salma Bano to the hospital where her

mother told her that Mohd.Raees and Anees had caught her and

the appellant had fired at her.

16. Dr.Prem PW-3, deposed that on 26.9.1999 he was

working as a CMO in the casualty of LNJP Hospital.

Dr.Allimuddin was the Additional CMO. Both were present in the

casualty at 7:00 PM. Meena wife of Mohd.Raees was admitted

in the casualty. Under his i.e. Dr.Prem's supervision,

Dr.Allimuddin prepared the MLC Ex.PW-3/A of Meena after

Meena was examined by him i.e. Dr.Prem and Dr.Allimuddin.

He deposed that the history recorded in the MLC was as

disclosed by the patient herself. On being cross examined he

stated that he did not remember whether any police officer

approached him about the patient.

17. Suffice would it be to note that Dr.Prem PW-3 was

not cross examined with reference to the contents of MLC

Ex.PW-3/A. He has not been cross examined with reference to

his testimony that the history recorded in the MLC was as

disclosed by the patient herself. It has not been put to him that

Meena was not conscious and that her pulse and BP as also the

factum of her consciousness was incorrectly recorded in the

MLC Ex.PW-3/A.

18. Salma Bano PW-4 deposed that on 26.9.1999 she

went to meet her foster sister Meena who lived in Vijay Mohalla.

Meena requested her to accompany her to Chitli Qaber where

she had to meet her husband Mohd.Raees. Proceeding on foot

they reached Baan Wala Faatak, Chitli Qaber at 6:30 PM. All of

a sudden Mohd.Raees and Anees who were present at the spot

caught Meena and Mohd.Raees exhorted 'Naseem Maar Goli Aaj

Saare Mukadame Ki Jad Khatam Kar Dein'. Thereupon the

appellant fired with a country made pistol on the chest of

Meena. All accused ran away. She started shouting and

weeping. Somebody removed Meena to the hospital. She

followed Meena in a separate rickshaw. Her statement Ex.PW-

4/A was recorded by a police officer in the hospital.

19. We have noted hereinabove the testimony of

Mohd.Nafees PW-5 in para 10 above.

20. ASI Ateeq Ahmed PW-10, deposed that on receipt of

DD No.20A he left the police station at about 7:08 PM in the

company of Const.Manoj. At LNJP Hospital he met Salma Bano

whose statement Ex.PW-4/A was recorded by him and that after

making the endorsement Ex.PW-10/B thereon he sent the same

for FIR to be registered. He recorded the statement Ex.PW-10/C

of Salma Bano. Returning to the spot he prepared the rough

site plan Ex.PW-10/D and that thereafter he entrusted the

investigation to Insp.Suresh Dabas on 28.9.1999 since Meena

expired on said date and the offence of murder was added in

the FIR which hithertofore was recorded for the offence of

attempt to murder.

21. What needs to be considered by us is whether

Shameena PW-2 has deposed truthfully. Whether Salma Bano

was present with the deceased? Whether Dr.Prem is the

recipient of dying declaration from the deceased? Whether ASI

Ateeq Ahmed is also the recipient of the dying declaration of the

deceased? What is the effect of the rough site plan Ex.PW-10/D

and the site plan to scale, not recording the spot wherefrom

blood of the deceased was lifted as also the effect of the two

plans not showing where deceased and Salma Bano were

positioned when the deceased was shot.

22. Before commencing further journey towards our

destination i.e. what is the truth, it may be noted that as per the

post-mortem report of the deceased, she was shot with a

firearm in the chest and the internal damage caused by the

projectile resulted in her death.

23. The MLC Ex.PW-3/A of Meena (the deceased) shows

that she was brought to the hospital by Mohd.Nafees who is

none else other than PW-5. As per Mohd.Nafees he removed

the injured lady to the hospital and none accompanied the two

in the rickshaw. Even Salma Bano PW-4 states that she

followed the rickshaw in which Meena was removed to the

hospital by hiring another rickshaw. Thus, it is apparent that

Shameena PW-2 is not speaking the truth for the reason she

could not have seen her mother in an injured condition on the

lap of Meena in a cycle rickshaw and her mother could have told

her nothing in the manner deposed by Shameena. Thus, the

learned Trial Judge ought not to have relied upon the testimony

of Shameena who has volunteered something to the police

which she had not even seen or heard.

24. From the contents of the MLC Ex.PW-3/A of Meena

and the deposition of Dr.Prem PW-3, it is apparent that the

history recorded in the MLC pertaining to the injury on Meena

was told by Meena herself when Dr.Prem and Dr.Alimuddin

examined Meena. That Meena was conscious when she was

admitted to the hospital has been stated as a matter of fact by

Dr.Prem who has not even been examined on said aspect.

Besides, the MLC corroborates the consciousness of Meena.

This corroboration is to be found where it is recorded in the MLC

that the heart beat of Meena was 76 beats per minute and her

BP was 110/80 mm Hg. The pulse and the BP are that of a

normal person. This further strengthens the fact that Meena

was conscious and oriented when brought to the hospital.

25. The teherir Ex.PW-4/B prepared by ASI Ateeq Ahmed

shows that the same was dispatched from the hospital at 8:40

PM and ASI Ateeq Ahmed has not been questioned on said

issue. The statement Ex.PW-4/A of Salma Bano precedes the

teherir. Both Salma Bano and ASI Ateeq Ahmed have said that

the statement Ex.PW-4/A was recorded at the LNJP Hospital.

Nothing has been shown to us which discredits said fact. It is

thus apparent that Salma Bano had met ASI Ateeq Ahmed at the

hospital when he reached there.

26. No suggestion has been given to Salma Bano that

she reached the hospital after receiving information of Meena

being shot. Salma Bano has deposed that she started crying

and became nervous when Meena was shot and that someone

from the crowd removed Meena to the hospital and in a

separate rickshaw she followed Meena to the hospital. It is no

doubt true that Mohd.Nafees PW-5 has not stated that he saw

Salma Bano at the spot when he removed Meena to the

hospital, but, from said fact alone it cannot be said that Salma

Bano is deposing falsely.

27. How a person reacts in a given situation and what

catches the eye of a person in a given situation may vary from

person to person. In a crowded market place a shot is fired

through a firearm and a pedestrian on the street falls down. the

noise of the shot attracts the attention of persons in the street

who instinctively turn towards the spot wherefrom the sound of

the firearm was heard. The first glimpse of some catches the

sight of somebody running. The eyes of these persons would

tend to follow the movement of the person fleeing and when

questioned about the features of the said person and the

clothes worn by him, these persons would give good description

of the person whom they saw fleeing. Simultaneously, the eye

of some persons catches the sight of a person falling. These

onlookers tend to look on to the said person and when

questioned would give a good description of what happened to

the person who was shot. Yet again, some persons react to the

aid of the victim by attempting to flag down a motor vehicle or a

rickshaw and thus these persons would be least expected to

depose about who was running away and in what manner the

victim fell. Further, each one of them would not notice the

presence of the other. It may be kept in mind that single shots

are fired in the flash of the moment and the assailants flee in

the wink of the eye. It just depends upon the eye of the viewer

as to what segment of the event is noticed.

28. Salma Bano's residential address informs this Court

that she comes from a humble socio-economic background.

That she is an illiterate person is to be found in the fact that

after she deposed in Court she affixed the right thumb

impression on her testimony and did not append her signatures

thereto. Her instinctive reactions on seeing a crime being

committed and her narratives thereof in a Court of Law where

the atmosphere is fairly intimidating to a witness have to be

tested with reference to her being a poor, illiterate lady of

humble origin.

29. Her claims of crying for help when her foster sister

was shot, is not unnatural. Women tend to become hysterical

when faced with adverse situations. Thus, Mohd.Nafees

removing Meena to the hospital and Salma Bano following in a

separate rickshaw is an event which is possible and thus the

testimony of Salma Bano cannot be thrown in the dustbin on a

hypothesis as projected by learned counsel for the appellant.

30. We see no reason why Salma Bano would be telling a

lie. It is no doubt true that her foster sister i.e. the deceased

was having a property dispute with Mohd.Raees, but it is against

human nature to let go a person who murders one's near and

dear one just to wreck vengeance on somebody whom one may

not like.

31. That the investigation officer failed to pick up blood

sample of the deceased from the street and even failed to lift

blood stained concrete from the street is no doubt a lapse of the

investigating officer. But, where there is unimpeachable

evidence of good quality wherefrom the guilt of an accused can

be inferred, said lapses have to be ignored unless it is shown

that a serious prejudice has been caused to the defence.

32. We are conscious of the fact that the exact spot

where the crime was committed being determined would be a

relevant fact while ascertaining the credibility of the testimony

of Salma Bano and in this area of consideration it has to be kept

in mind that as per Mohd.Nafees, his shop where he was sitting,

when he heard noise of the crowd outside the street was 7 to 8

shops away from Faatak Baan Wala i.e. the place where Salma

Bano claims her foster sister being shot. Further, Mohd.Nafees

states that the crowd had gathered 3 - 2 shops away from his

shop towards the other side and not towards Faatak Baan Wala.

33. What was urged by learned counsel for the appellant

was that the crowd would expectedly be near where the injured

was lying and this means that the injured was lying not at

Faatak Baan Wala but about 10 to 11 shops away and this

means that there is a serious infirmity in the testimony of Salma

Bano.

34. As noted by us in para 11 above, neither the

prosecution nor the defence has got highlighted when

Mohd.Nafees was deposing in Court as to where was the situs of

the exact spot wherefrom he picked up Meena from the street.

35. The inference required to be drawn as impressed

upon us by learned counsel for the appellant presupposes a

fact: that the crowd would gather just adjacent to the spot

where the injured falls after being shot. It ignores that in a

public street, where two persons catch hold of the victim and

the third fires through a firearm, the instant reaction of the

crowd on the street is to duck for cover lest due to further firing

they may get injured. Now, what did the crowd know that only

one shot would be fired? Obviously none knew what further

action would be chartered by the accused. In this context it

does not render doubtful the testimony of Salma Bano that her

foster sister was shot when they reached Faatak Baan Wala. It is

possible that the crowd retracted from the spot where the

injured fell and hence Mohd.Nafees saw the crowd 3 - 4 shops

away from his shop towards the side not towards Faatak Baan

Wala.

36. Another thing is possible. Witnesses and in

particular those who are illiterate tend to be laconic while

stating a fact and disclose the same in broad terms and not with

technical niceties. Walking on a street, when one is near a

landmark spot on the street, and if something happens, one

tends to remember the spot with reference to the landmark and

while disclosing the spot, a person with lower levels of literacy

may not appropriately state that the spot was near the

landmark and would state that the spot was at the landmark

itself.

37. The controversy which was sought to be projected as

assuming gigantic proportions, on a closer look, appears to be

an attempt to make a mountain out of a mole hill.

38. It is settled law that while appreciating the evidence

led by the prosecution it has to be first ascertained whether the

prosecution has proved its case by looking at the broad

probabilities of the case and thereafter to see and identify the

embellishments and then determine whether the

embellishments have dented the broad probabilities proved by

the prosecution. There can hardly ever be a case where minor

discrepancies or errors do not creep in, for the reason every

human being has human failings and limitations and God has

yet to create a perfect human being. On the contrary, where a

fool proof case without any embellishment or variations is

brought before a Court, that itself becomes a ground to suspect

the credibility of the case brought before the Court by labeling

the witnesses as parrots and hence not speaking through their

own tongue but being made to speak the words through remote

control.

39. As noted above, the teherir was dispatched from the

hospital at 8:40 PM on the statement of Salma Bano. The

statement Ex.PW-10/C of the deceased has been recorded by

ASI Ateeq Ahmed thereafter. We find an endorsement on the

MLC Ex.PW-3/A of the deceased recording the time as 10:00 PM

when the patient has been certified 'fit for statement'. Though

ASI Ateeq Ahmed has not deposed of having obtained any

certification from the doctor before he recorded the statement

of Salma Bano and even Dr.Prem PW-3 has thrown no light

thereon, it appears that the said certification was obtained

before Meena's statement was recorded by ASI Ateeq Ahmed.

40. Even ignoring the said statement Ex.PW-10/C and the

testimony of ASI Ateeq Ahmed, the testimony of Dr.Prem PW-3

and the MLC Ex.PW-3/A of the deceased conclusively proves the

first dying declaration made by Meena to Dr.Prem and

Dr.Alimuddin. The said dying declaration coupled with the

testimony of Salma Bano whom we hold to be a truthful eye-

witness is sufficient to sustain the impugned judgment.

41. The appeal is dismissed.

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

of our decision be sent to the Superintendent, Central Jail, Tihar

for being made available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE JANUARY 21, 2010 mm / dk