Mohd. Intizar vs State Of Delhi
2010 Latest Caselaw 1528 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Date of Decision: 18th March, 2010

+      CRIMINAL APPEAL NO. 283/1997

       MOHD. INTIZAR                              ..... APPELLANT
                    Through:        Mr.K.B.Andley, Sr. Advocate
                                    with Mr. M.L.Yadav, Advocate
                      Versus

       STATE OF DELHI                          ..... RESPONDENT

Through: Mr.Sunil Sharma, Advocate

CORAM:

HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE AJIT BHARIHOKE

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

AJIT BHARIHOKE, J (ORAL)

1. This appeal is directed against the impugned judgment dated 8th

July, 1997 in Sessions Case No.116/1996, FIR No.456/1995, Police

Station Gokalpuri, convicting the appellant Mohd. Intizar for the

offences punishable under Section302/201 IPC as also the consequent

order on sentence dated 9th July, 1997 vide which the appellant has

been sentenced to undergo rigorous imprisonment for life and to pay a

fine of Rs. 2000/-, in default of payment of which to undergo R.I. for a

further period of one month for the offence punishable under section

302 IPC, and for the offence punishable under section 201 IPC, to

undergo rigorous imprisonment for 5 years and also to pay fine of

Rs.1000/-, in default of payment of which to undergo further R.I. for 15

days, with both sentences to run concurrently.

2. Briefly stated, case of the prosecution is that on 31st August,

1995 at about 07:00 pm, Mashkoor Ahmed went to Police Post Shri

Ram Colony, P.S. Gokalpuri and lodged a complaint that his wife

Shahana was missing since 29th August, 1995 regarding which he had

not lodged any missing report with the police as he had been searching

for his wife on his own. About half an hour before his visit to the police

post, he had noticed loose earth in a portion of his courtyard, so he got

suspicious and dug that portion with the help of a „phawra' (spade). On

digging the earth, he noticed a human body. On digging further, knees

of the dead body were exposed, which appeared to be of his wife, so

he stopped digging and rushed to the police post to report the matter.

His aforesaid statement was recorded as DD No. 20 dated 31st August,

1995 (Ex.PW1/A) at the police post. Copy of the DD report was

entrusted to SI B.L. Phulwari (PW14), who went to the spot and got that

and recovered the dead body of a lady which was identified by the

complainant as the body of his wife Shahana. SI B.L. Phulwari

appended his endorsement Ex.PW11/A on the copy of the DD report

and sent it to the police station for the registration of the case and

formal FIR Ex.PW6/A was recorded on 31st August, 1995 at 09:50 p.m.

The Investigating Officer prepared the rough site plan of the spot from

where the dead body was recovered. Later on during investigation, a

scaled site plan was also prepared. The dead body was sent for post-

mortem examination vide request Ex.PW14/B and as per the post-

mortem examination, cause of death was opined as incised cut throat

wound of neck.

3. During investigation, it was revealed that the complainant had

developed intimate sexual relations with the appellant since long. The

deceased came to know about their relationship. Few days prior to the

occurrence, she also caught them indulging in sodomy. Thus, she

protested and impressed upon her husband to tell the appellant to

leave their house. This is projected as motive of the crime.

4. It is further the case of the prosecution that on 29th August, 1995,

the complainant claimed that he left his house for work in the morning

and when he returned back, he found his wife missing. On 31st

August, 1995 at about 06-06.30 am, he noticed the appellant pressing

loose earth at the spot from where the body was dug out and asked as

to what he was doing. The appellant explained that water had flooded

the ground as a result of which earth in that portion had become loose.

At 11:00/11:30 am, he again noticed the appellant repeating that

exercise. Thereafter, he went in search of his wife and returned at

03:00/3.30 pm and found that the appellant was not there, so he got

suspicious. Meanwhile, his brother-in-law Anis (PW4) and his sister

came to find out about the deceased and at around 6:00 pm, they

started digging that place, which ultimately resulted in the recovery of

the dead body.

5. It is further the case of the prosecution that on 3rd September,

1995, the appellant was arrested. On interrogation, he made a

disclosure statement Ex.PW1/C wherein he disclosed that he had

buried the dead body of the deceased in the compound of the house of

the complainant. He also disclosed that he had concealed his blood-

stained clothes, which he was wearing at the time of murder, as also

the knife used for committing the crime in the house of the

complainant. Pursuant to said disclosure statement, he led the police

party to the house of the complainant and pointed out the place where

he buried the dead body and also got recovered the knife and blood-

stained clothes hidden under a heap of cow dung cakes .

6. It is further the case of the prosecution that the knife Ex.P-5 and

the shirt Ex.P-6 of the appellant were sent to CFSL along with other

exhibits and as per CFSL report, human blood was found on the knife

Ex.P-5 as also the shirt of the appellant but the blood group could not

be ascertained.

7. On completion of the investigation, challan against the appellant

was filed. He was charged for the offences punishable under Section

302/201 IPC. The appellant pleaded innocence and claimed to be tried.

8. On perusal of the impugned judgment, it transpires that the

learned Trial Court has convicted the appellant on the strength of the

following circumstances taken to be proved:

(i) That the deceased was last seen alive in the company of the

appellant.

(ii) That the appellant had a very strong motive to commit the

murder of the deceased.

(iii) That the appellant made a false representation to the

complainant regarding whereabouts of the deceased.

(iv) That the appellant was seen by the complainant trying to

press the loose earth at the spot in the courtyard of house of

the complainant from where the dead body of the deceased

was recovered.

(v) That the appellant absconded w.e.f. 31st August, 1995 after

the complainant got suspicious that he may have buried the

dead body in the courtyard.

(vi) That the medical evidence of the Autopsy Surgeon to the

effect that the fatal injury that was found on the neck of the

deceased could have been caused by the knife purportedly

recovered at the instance of the appellant.

9. Since the case is based upon the circumstantial evidence, it

would be useful to have a look on the law relating to the circumstantial

evidence. In the matter of Padala Veera Reddy v. State of A.P.,

1989 Supp (2) SCC 706, it was laid down by the Supreme Court that

when a case rests upon circumstantial evidence, such evidence

must satisfy the following tests:

"10.(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

10. The above enunciated principle of law was reiterated in the

matter of State of U.P. v. Ashok Kumar Srivastava, (1992) 2

SCC 86, where the Supreme Court, inter alia, observed thus:

"9. This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully

established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt."

11. In the light of the above enunciated principles of appreciation of

circumstantial evidence, we now proceed to analyse the evidence on

record.

12. As regards motive, learned counsel for the appellant has

submitted that it is not disputed that there was a gay relationship

between the appellant and the complainant and the deceased was

opposed to the complainant maintaining such relationship with the

appellant and she in fact, had told the complainant to ask the appellant

to leave their house for good. Learned counsel submitted that this has

been taken as a motive on the part of the appellant to kill the deceased

whereas this circumstance can equally be construed as the motive on

the part of the complainant Mashkoor Ahmed because opposition of the

deceased to the gay relationship between the complainant and the

appellant would equally have deprived the complainant of sexual

satisfaction which he had been deriving from his long drawn

relationship with the appellant. From this, learned counsel has urged

us to infer that complainant is an interested witness and as such is not

a reliable witness.

13. Learned counsel for the State has refuted this argument. He

submitted that the opposition of the deceased to the physical

relationship between the complainant and the appellant was a cause of

annoyance to the appellant; as such the Trial Court has rightly

concluded that the appellant had a motive to get rid of the deceased in

order to protect his gay relationship with the complainant.

14. No doubt, in view of the above referred undisputed factual

matrix, the inference drawn by the learned Trial Judge that the

appellant had a motive to kill the deceased as she was a hindrance in

the continuation of his gay relationship with the complainant cannot be

faulted, but it cannot be ignored that on the same logic, the

complainant also had a motive to get rid of the deceased. As such, too

much reliance cannot be placed upon the evidence of motive. Learned

counsel for the State has tried to convince us that the motive on the

part of the appellant was of higher degree than the motive on the part

of the complainant by drawing our attention to the testimony of PW1

Mashkoor Ahmed that while he and the appellant were staying

together in Saudi Arabia, the appellant seduced him to indulge in

sexual relationship with him and sodomize him. We are hardly

convinced with this contention of learned counsel for the State. In a

criminal trial based upon circumstantial evidence, motive is one

circumstance in a chain of circumstances which may lead the Trial

Judge to an inference that the accused may have committed the

offence because he had a reason to do so. But the motive itself cannot

be the sole basis of holding the accused guilty. Further, it is not

always that existence of the motive would lead a person to commit the

crime. In a criminal trial, while dealing with the issue as to which of

the two persons having the motive might have committed the crime,

the Trial Court is not expected to compare the gravity of the motive on

the part of the said two persons in a weighing scale to fix the guilt. In

the instant case, since both the complainant and the appellant were

consensual partners in gay relationship, they both had a motive.

Therefore, a possibility cannot be ruled out that the complainant might

have killed his wife and buried her body in the compound, more so,

because of the fact that the dead body was found buried in the

courtyard of the complainant.

15. Another circumstance which weighed with the learned Trial Judge

is the evidence of last seen. Last seen evidence in this case is

provided by PW1 Mashkoor Ahmed who stated that on 29th August,

1995, he gave Rs. 45/- to the appellant to pay for the fare for going to

his house at Deoband, District Saharanpur and left for work leaving

behind his wife as well as the appellant and his two children. When he

came back from work, he found his wife missing. The witness also

stated that he asked his daughter Hina, about the whereabouts of his

wife and she responded that when she left for the school in the

morning at around 07:30 a.m, his wife was at home. From this, learned

Prosecutor has urged us to infer that the appellant was last available in

the house of the complainant alongwith the wife of the complainant, as

such, he alone had an opportunity to kill the deceased because she

was not seen by anyone thereafter. On the other hand, learned

counsel for the appellant has submitted that this version of the

complainant is not reliable because the complainant himself is a

suspect, as such an interested witness.

16. On careful consideration of the evidence, we find that as per the

complainant, when he asked his daughter Hina about the whereabouts

of his wife, she responded that when she left for the school at 07:30

a.m., the deceased was there in the house. If this version is true that

Hina was the last person who saw the appellant and the deceased in

the house, therefore, Ms. "Hina", who was a school going girl was the

best witness to corroborate the version of the complainant and to

establish the last seen circumstance. The prosecution has neither cited

nor produced daughter of the complainant, "Hina" to prove that the

appellant was the person last seen in the house with the deceased.

Since the prosecution has withheld the best witness to establish the

last seen circumstance, we are inclined to draw an adverse

presumption that had said girl Hina been produced in the court, she

would not have supported the version of the complainant Mushkoor

Ahmed. Thus, we do not find it safe to rely upon the last seen

evidence provided by PW1 Mushkoor Ahmed who, in view of the above

discussion, falls within the category of a suspect as well as an

interested witness.

17. Another incriminating circumstance which weighed with the

learned Trial Judge is that the prosecution, from the testimony of PW1

Mashkoor Ahmed, has been able to establish that in the evening of 29th

August, 1995, when the complainant asked the appellant about his

wife, he gave a misleading statement that the deceased had left the

house wearing a burka immediately, soon after the appellant had gone

for work. Learned counsel for the appellant has submitted that the

learned Trial Judge has erred in relying upon the aforesaid

uncorroborated version of PW1 Mashkoor Ahmed ignoring the fact that

he himself had a motive to kill the deceased and as such, he fell within

the category of an interested witness. Learned counsel for the State,

on the other hand, submitted that there is no reason to suspect the

credibility of above referred version of PW1 Mashkoor Ahmed as he had

withstood the rigours of the cross-examination and his testimony could

not be shaken.

18. On careful consideration of the record, we find that the above

referred finding regarding conduct of the appellant is based upon the

uncorroborated testimony of PW1 Mashkoor Ahmed. In view of our

discussion above, Mashkoor Ahmed also had a motive to get rid of the

deceased, as such he can safely be termed as an interested witness.

Thus, we do not find it safe to rely upon his testimony. Result is that

the prosecution has not even been able to establish this circumstance.

19. Learned counsel for the appellant further submitted that the next

incriminating circumstance taken against the appellant that he

absconded from the house of the complainant on 31st August 1995 is

not firmly established. He contended that as per the case of

prosecution, the wife of the complainant was murdered on 29th August

1995 and even thereafter the appellant continued to live with the

complainant. In view of the aforesaid, there was no justification to

conclude that the appellant had absconded after the occurrence.

Learned counsel for the State has refuted this argument by submitting

that till 31st August 1995 there was no reason for the appellant to

abscond as by that time nobody was aware that the dead body of the

deceased has been buried in the courtyard of the house of the

complainant. It is only on 31st August 1995 when the complainant

noticed the appellant trying to press loose earth above the site of

burial initially at 6:00/6:30 am and thereafter again around 11:30 am,

the appellant got afraid and thinking that the complainant had become

suspicious, he absconded from the house of the complainant.

20. We are not convinced with the argument of learned counsel for

the State. The evidence of the PW1 Mashkoor Ahmed regarding the

conduct of the appellant and his absconding on 31st August, 1995 is

not worthy of credence, firstly because of the reason that PW1

Mashkoor Ahmed, the sole witness, is an interested witness who also

had a motive to kill the deceased. Secondly, perusal of DD No.20

(Ex.PW1/A), which formed basis for registration of the case, reveals

that in the evening of 31st August 1995 while reporting the matter to

the police the complainant did not express his suspicion against the

appellant nor did he say anything about the suspicious conduct of the

appellant to the police. Thus, we do not find it safe to rely upon the

sole testimony of PW1 pertaining to absconding of the appellant.

21. Coming to the recovery of incriminating articles. Case of the

prosecution is that on 03rd September 1995, the appellant, on

interrogation, made a disclosure statement detailing the manner in

which he committed the crime and pursuant to said disclosure

statement, he got recovered the knife Ex.P-5 and the blood-stained

shirt Ex.P-6. Ex.PW1/C and Ex.PW1/E are the relevant disclosure

statement and seizure memo claimed to have been prepared by the

Investigating Officer. On perusal of these documents, we find that the

recording of disclosure statement as well as recovery is witnessed by

PW1 Mashkoor Ahmed (complainant) and Constable Inderjeet.

Prosecution has not examined Constable Inderjeet to prove either the

disclosure statement of the appellant or the recovery at his instance.

Though PW1 Mashkoor Ahmed has supported the prosecution story in

his testimony, we do not deem it safe to rely upon his testimony

because of the fact that he also had a motive to kill the deceased, as

such he can be termed as an interested witness having an interest to

depose falsely with a view to shift the blame on the appellant. Thus,

we are left with uncorroborated testimony of the Investigating Officer

PW14 SI B.L. Phulwari. At this juncture, it is pertinent to note that the

investigation in this case has been done in a most inept manner. The

Investigating Officer appears to have proceeded on the assumption

that the allegations in the complaint were true and he did not even try

to explore the possibility of the complainant having been involved in

the murder despite of the fact that as per the facts narrated in the

complaint Ex.PW1/A, the motive on the part of the complainant was

obvious. The Investigating Officer, for the reasons known to him, has

not cared to investigate the case to rule out the complicity of the

complainant in the crime. This circumstance casts a doubt on his

fairness. Under these circumstances, we do not find it safe to rely

upon the testimony of PW14 SI B.L. Phulwari regarding the disclosure

statement of the appellant followed by the recovery at his instance.

Otherwise also, even if for the sake of argument, it is assumed that the

knife Ex.P-5 and shirt Ex.P-6 were recovered at the instance of the

appellant, then also the prosecution has failed to connect the said two

articles with the murder of the deceased. Perusal of CFSL Report

Ex.PW14/E reveals that though on analysis, human blood was found on

the knife Ex.P-5 and the shirt Ex.P-6, the blood group of the human

blood found on those exhibits could not be matched with the blood

group of the deceased as the samples did not give any reaction for

blood group. Thus, in our view, even this circumstance has not been

firmly established.

22. The result of above discussion is that the prosecution has failed

to firmly establish the incriminating circumstances forming a chain so

complete so as to lead to an irrefutable inference of guilt of the

appellant. As discussed above, the complainant also had a motive to

kill his wife, thus a possibility cannot be ruled out that the complainant,

prompted by the said motive, got rid of his wife and in order to escape

the blame, he lodged a report against the appellant vide DD No.20

(Ex.PW1/A), which angle has not been investigated. Thus, in our view,

appellant is entitled to benefit of doubt.

23. Thus, we find ourselves unable to sustain the impugned judgment

of conviction and consequent order on sentence. We accordingly set

aside the conviction of the appellant under Section 302 IPC and acquit

him of the charge, extending the benefit of doubt to him.

24. The appellant is on bail. His bail-cum-surety stands

discharged.

25. The appeal is disposed of accordingly.

A.K. SIKRI, J.

AJIT BHARIHOKE, J.

MARCH 18, 2010 akb/pst