Mehmood Ali vs State
2010 Latest Caselaw 1187 Del

R-97
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Decision: 3rd March, 2010

+                        CRL. APPEAL NO.326/2007

        MEHMOOD ALI                                ..... Appellant
               Through:             Ms.Sharddha Bhargava, Advocate

                                    Versus

        STATE                                       ..... Respondent
                         Through:   Mr.M.N.Dudeja, 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. Since none appears for the appellant, we appoint

Ms.Sharddha Bhargava, who is present in Court, as the Amicus

Curiae to argue the appeal. We fix the fee of learned counsel

in sum of Rs.7,500/-, to be paid by the Delhi High Court Legal

Service Committee.

2. Vide impugned judgment and order dated

19.2.2007, appellant Mehmood Ali has been convicted for the

offence of murder and robbery as also for the offence

punishable under Section 27 of the Arms Act.

3. Co-accused Mohd.Munir has been convicted for the

illegal possession of stolen articles i.e. the offence punishable

under Section 411 IPC.

4. For the offence of murder, the appellant has been

sentenced to undergo imprisonment for life and for the offence

punishable under Section 394 IPC he has been sentenced to

undergo RI for 3 years. For the offence punishable under

Section 27 of the Arms Act he has been sentenced to undergo

simple imprisonment for 15 days.

5. Co-accsued Mohd.Munir has been sentenced to

undergo imprisonment for the period already undergone till

the order on sentence was pronounced i.e. 20.2.2007.

6. In convicting the appellant, the learned Trial Judge

has held that the prosecution has successfully established

through the testimony of Sh.N.K.Sharma PW-3 that a chance

print lifted from the place of the crime matched with that of

the appellant. Second piece of incriminating evidence held

established against the appellant is of 3 gold bangles being

got recovered by the appellant after he was arrested and he

made the disclosure statement which, 3 bangles have been

held to be proved as those belonging to the deceased through

the testimony of Surender Chugh PW-2, the son-in-law of the

deceased. Lastly, a knife got recovered by the appellant,

which has been opined to be the possible weapon of offence

by Dr.Mukta Rani PW-13 who conducted the post-mortem of

the deceased.

7. Having gone through the Trial Court record, we find

that after information of the crime was received at the local

police station various police officers included Insp.Amrit Kumar

PW-19 reached House No.602, Double Storey, New Rajender

Nagar at around 9:00 PM on 5.2.2004 and found deceased

Chander Bhan Batra lying dead in his bedroom with knife

injuries. Crime team was summoned which managed to lift

some chance prints. The same was circulated to all police

stations and as per the prosecution it got detected that one

chance print was that of the appellant who was an accused in

FIR No.443/2003, PS Lajpat Nagar for an offence under Section

380/411/34 IPC.

8. The appellant was arrested by PS Kalyan Puri in a

third FIR being FIR No.98/2004 dated 21.2.2004, and he made

a disclosure statement Ex.PW-15/A on 22.2.2004 confessing

his involvement in the murder of the deceased and robbery.

He named Mohd.Munir and Mehraj as his accomplices.

Thereafter, the investigating officer in the instant case who

was given aforesaid information formally apprehended the

appellant and after obtaining police custody got recovered a

knife from bushes near Shanti Van as per memo Ex.PW-19/K2.

The appellant was interrogated by him prior thereto on

27.2.2004 and on 29.2.2004. He said that he can get 3 gold

bangles recovered from a graveyard. On 29.2.2004 he led the

investigating officer to a graveyard behind Nizammudin

Dargah and from the bushes got recovered 3 gold bangles

which were seized vide memo Ex.PW-19/M.

9. Co-accused Mohd.Munir was apprehended on

27.2.2004. He made a confessional-cum-disclosure statement

Ex.PW-19/H1. He volunteered to get recovered 2 silver glasses

and led the investigating officer to a park near flyover behind

Hazrat Nizammudin and got recovered two silver glasses as

recorded in the memo Ex.PW-19/L.

10. With respect to the incriminating evidence of

chance finger prints lifted from the place of the crime, we note

that Sh.N.K.Sharma PW-3, a finger print expert, has deposed

that he prepared the report Ex.PW-3/A with reference to the

chance finger prints which were sent to him for analysis with a

dozier provided by the SHO of PS Rajender Nagar.

11. HC Om Prakash PW-14 has deposed that he picked

up the chance prints from an iron almirah in the house.

Insp.Amrit Kumar PW-19 has deposed that he obtained the

dozier of criminals from different areas and received the

information on 11.2.2004 that a chance print lifted from the

scene of the crime matched those of an accused in FIR

No.443/2003. He also stated that he obtained the finger prints

of accused Mehmood Ali.

12. The report Ex.PW-3/A shows that the learned expert

has tallied the chance print marked 'Q-1' by him with the

dozier sent to him pertaining to FIR No.443/2003.

13. But the question arises, as to who established that

the finger print on the dozier sent was that of the appellant?

14. Nobody has so spoken.

15. It is apparent that the learned Trial Judge has

believed and has proceeded on the presumption that the

finger print on the dozier pertaining to FIR No.443/2003 was

that of the appellant.

16. We note that the finger print expert has not given

any opinion with respect to the so-called sample finger prints

claimed to have been obtained from the appellant by

Insp.Amrit Kumar PW-19.

17. That apart, as held in the decisions reported as AIR

1980 SC 791 State of U.P. Vs. Ram Babu Mishra, 1994 (5) SCC

152 Sukhvinder Singh & Ors. Vs. State of Punjab and AIR 2003

SC 4377 State of Haryana Vs. Jagbir Singh & Ors., for being

admissible in evidence, chance finger prints have to be

compared with the sample finger prints after obtaining

permission from the Court of competent jurisdiction and after a

proper identification of the prisoner as per the requirement of

Section 5 of the Identification of Prisoners Act 1920. This has

not been done.

18. Thus, the incriminating evidence of the chance

finger print lifted from the scene of the crime being that of the

appellant is not established.

19. Pertaining to the recovery of the 3 gold bangles at

the instance of the appellant and pursuant to his disclosure

statement and on his pointing out, we note that as per the

record of the learned Trial Judge, which contains the record of

the proceedings conducted before the learned Magistrate after

the appellant was apprehended an application was filed on

7.5.2004 praying that 3 gold bangles and 2 silver glasses got

recovered by the appellant and co-accused Mohd.Munir be put

up for test identification. Learned Magistrate directed that TIP

would be conducted on 15.5.2004 on which date Surender

Chugh PW-2, the son-in-law of the deceased, gave telephonic

information that he cannot come. Proceedings were deferred

till 22.5.2004. The witness did not come. It was deferred for

24.5.2004.

20. Thereafter, the record is silent.

21. At the trial, neither the investigating officer nor any

other police officer has deposed to any Test Identification

Proceedings being conducted. No Magistrate has been

examined to prove any Test Identification Proceedings

recorded by him. Thus, it is apparent that the 3 gold bangles

and the 2 silver glasses which were allegedly got recovered

from the appellant and Mohd.Munir respectively, were not

subjected to any Test Identification Proceedings.

22. Surender Chugh PW-2 the son-in-law of the

deceased appeared as a witness on 30.11.2004 and for the

first time identified 3 gold bangles and 2 silver glasses as that

of his father-in-law. He stated that his father-in-law had given

him money requiring him to get prepared 6 gold bangles and 2

silver glasses and that he had gone to a goldsmith who

prepared 6 bangles of 10 gms weight each and 2 silver glasses

which he gave to his father-in-law.

23. On being cross-examined, Surender Chugh stated

that he had no cash memo or a receipt to prove that he got

fabricated any gold bangles or purchased silver glasses and

that there were no identification marks on the bangles or the

silver glasses.

24. In view of the phantom like testimony of PW-2 and

the fact that the gold bangles did not have any identification

marks, as admitted by the witness, coupled with the witness

not going before the Magistrate to participate in the Test

Identification Proceedings, we feel it is most unsafe to hold

that the 3 gold bangles belonged to the deceased.

25. At this stage we note that Mohd.Munir was

acquitted on account of the Trial Court holding that his being a

possible recipient of stolen property knowing that the two

silver glasses were stolen cannot be ruled out.

26. It is apparent that the learned Trial Judge ignored

the aforesaid features, pertaining to the testimony of PW-2,

that he did not participate at the TIP; he had no proof of

getting fabricated the gold bangles; and lastly the bangles had

no distinctive mark on them.

27. Thus, we are left with the sole incriminating

evidence of the knife got recovered by the appellant, proved

to be the possible weapon of offence, as the only incriminating

evidence left.

28. Suffice would it be to state that unlike a firearm, a

knife can only be opined to be the possible weapon of offence

and not the only weapon of offence.

29. As held in the decisions reported as JT 2008 (1) SC

191 Mani Vs. State of Tamilnadu, 1999 Crl.LJ 265 Deva Singh

Vs. State of Rajasthan, AIR 1994 SC 110 Surjit Singh & Anr. Vs.

State of Punjab, AIR 1977 SC 1753 Narsinhbhai Haribhai

Prajapati etc. Vs. Chhatrasinh & Ors. and AIR 1963 SC 1113

Prabhu Vs. State of UP, recovery of such kind of ordinary

articles is treated as a very weak piece of evidence.

30. The appeal is allowed. Appellant Mehmood Ali is

acquitted of all charges framed against him.

31. Since Mehmood Ali is in jail we direct that the

present decision be sent to the Superintendent Central Jail

Tihar who is directed release Mehmood Ali unless Mehmood Ali

is required in custody in any other case.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE March 03, 2010 mm