Delhi High Court
Mohd.Sarfaraj vs State on 23 March, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 23rd March, 2010
+ CRL.A. 199/2010
MOHD SARFARAJ ..... Appellant
Through: Mr.J.S.Kushwaha, Advocate
versus
STATE ..... Respondent
Through:Mr.M.N.Dudeja, 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?
3. Whether the judgment should be reported in the Digest?Yes
PRADEEP NANDRAJOG, J. (Oral)
1. While admitting the appeal on 24.2.2010, consent
of learned counsel for the parties was noted that printing of
the paper book be dispensed with and appeal be listed for final
hearing today in the category of "After Notice Miscellaneous
Matters".
2. Trial court record has been received and arguments
have been heard.
3. Vide impugned judgment and order dated
22.12.2009, appellant Mohd.Sarfaraj has been held guilty of
murdering Mst.Rehana, wife of Salim, at around 8:40 AM on
7.8.2005 at the second floor of house bearing municipal
number C-1/75, Second Floor, Raju Park, Delhi.
4. That the appellant was a tenant in a room on the
second floor of house number C-1/75, Raju Park, Delhi and that
the deceased along with her husband and daughter were also
residing as a tenant in another room on the second floor of the
same building are facts which have not been disputed before
us by learned counsel for the appellant. Indeed, the appellant
has admitted said facts, evidenced by his answers to questions
No.1 to 4 put to him when he was examined under Section 313
Cr.P.C.
5. Learned counsel for the appellant also concedes
before us that the fact that the deceased was injured and died
inside the room on the second floor under the tenancy of the
appellant is not disputed by him.
6. In other words, the deceased was injured and
murdered inside the room tenancy rights whereof were with
the appellant is an admitted fact.
7. In response to question No.34, when examined
under Section 313 Cr.P.C., the appellant had to say as under:-
"Q34. What else you have to say?
Ans: On the day of incident I along with other
tenants had gone to Devli for verification of
tenants where a police camp was organized in
front of the bus stand. Whenever I got out I
usually lock my room and accordingly on that day
I locked my room and went away for tenant
verification. There is also another key of my lock
which is always lying with brother of the deceased
named Murtza. When I was standing in the line of
the persons for tenant verification I came to know
at that place about the murder of Smt. Rehana by
someone, so when I was along with other tenants
coming to my rented room, I was picked up by
two policemen in the middle of the way and I was
told by them that I had murdered Smt. Rehana. I
told the policemen that I was with other tenants
for tenant verification at the camp in Devli but
police persons did not hear me and took me to
police post. I have been falsely implicated in the
case. I am innocent."
8. It is apparent that the appellant has tried to give a
reason as to how Mst.Rehana came to be injured in his room
and died soon after she received the injury inside the room,
tenancy rights whereof were with the appellant. The
statement of the appellant that another key of the room under
his tenancy was with the brother of the deceased i.e. Murtza,
evidences the fact of appellant seeking to give a justification
for Mst.Rehana being injured in his room.
9. Murtza has appeared as PW-10.
10. No suggestion has been given to Murtza when he
was cross-examined, that a duplicate key of the lock put on
the tenanted room by the appellant was given by the appellant
to Murtza.
11. It is apparent that this part of the defence of the
appellant is completely false.
12. The appellant claims to have gone for police
verification in respect of tenants. The appellant claims that he
had locked his room when he went for tenant verification. He
claims that when he was standing in the queue for tenancy
verification he learnt that Mst.Rehana was murdered. He was
in the process of returning to his room when he was picked up
by the police and was told that he was the accused.
13. Mst.Rehana, PW-1, wife of Munna (lest there be a
confusion, it may be noted that deceased is also named
Rehana and so is PW-1, but they are wives of two different
persons. PW-1 is the wife of Munna. Deceased Rehana was the
wife of Salim) deposed that on 7.8.2005 at about 8:30AM cries
of Nazmeen daughter of deceased Rehana were heard by her
when she was in her residence on the ground floor of the same
building. She went up and saw Rehana breathing her last,
lying on the floor in a pool of blood. She saw Mohd.Sarfaraj in
the room where Rehana was lying. She came down and raised
a cry. Ladies in the neighbourhood collected. She became
nervous.
14. The learned APP, with the permission of the court,
put a leading question to Mst.Rehana, being that, whether she
saw anything in the hands of the appellant. She replied that
she was so nervous that she could notice nothing. Rehana PW-
1 was declared hostile and was cross-examined by the learned
APP by putting suggestion to her that she saw a blood stained
wood cutter in the hands of appellant. She denied, but
volunteered that Nazmeen has said that fact to the police.
15. Relevant would it be to note that Rehana PW-1 has
not been cross-examined by the appellant.
16. It is apparent that since Rehana did not support the
case of the prosecution with reference to her statement
recorded by the police where she claims to have witnessed the
accused with a blood stained Dao (wood cutter) in his hands
and his clothes smeared in blood; in ignorance of the fact that
Rehana has supported the case of the prosecution to prove the
presence of the appellant at the scene of the crime, unmindful
of the consequences thereof, the appellant has chosen not to
cross-examine Rehana PW-1. The uncorroborated testimony of
Rehana PW-1, to the extent noted herein above, establishes
that the appellant was seen by Rehana in the same room in
which the deceased Rehana was lying injured. This falsifies
the defence of the appellant that he had gone for police
verification.
17. Nazmeen aged 13 years who would be 12 years
when the crime took place has deposed as PW-2 and has
proved the manner in which her mother was brutally assaulted
by the appellant.
18. The only blemish in the testimony of Nazmeen is of
deposing that the appellant threw the weapon of offence i.e.
chopper(Dao) Ex.P-1 in the drain wherefrom it was lifted by the
prosecution. It is apparent that Km.Nazmeen has fantasized
the fact of recovery of the weapon of offence viz-a- viz what
she saw in the hands of the accused when the accused
launched the brutal attack on her mother. Keeping in view
the tender age of Nazmeen such blemish has to be ignored
and has to be explained as a small fantasy by a young child.
19. Ct.Narender PW-6 has deposed that he was
stationed at the police post on 7.8.2005 when the appellant
came in a perplexed condition and confessed to the guilt. He
deposed that clothes of the accused i.e. the appellant were
stained with blood which were taken into possession by the IO.
He has also deposed that SI Balram Singh and ASI Har Sahay
Dagar from police station reached the police post after
information was given and that the statement Ex.PW-3/H of
the accused i.e. the appellant was recorded, pursuant thereto
the Dao was recovered from the drain.
20. Suffice would it be to record that Ct.Narender has
been subjected to a very brief cross-examination. His
credibility has not been shaken as a result of the cross-
examination.
21. It is thus established that the clothes which the
appellant was wearing soon after the crime were taken into
possession. Relevant would it be to note that as per the report
of the Serologist EX.PW-17/H and Ex.PW-17/I, human blood of
the same group as that of the deceased was detected on the
pant and the shirt which the appellant was wearing and was
seized when the appellant reached the police post where PW-6
was stationed.
22. We concur with the view taken by the learned Trial
Judge that the prosecution has successfully established that
the deceased was grievously injured by the appellant.
23. Whether the act of the appellant constitutes the
offence of murder or something else?
24. Post-mortem report Ex.PW-16/A of the deceased,
proved through the testimony of Dr.Arvind PW-16, establishes
the brutal assault on the deceased. Using a sharp edged
weapon, injuries have been caused on the neck, shoulder and
arms of the deceased. The injuries on the neck have been
targeted to ensure that the trachea i.e. the wind pipe of the
victim is cut. The post mortem report Ex.PW-16/A and the
testimony of the doctor establish that the intention of the
appellant was to murder the deceased.
25. The motive which is surfaced is the evil eye which
the appellant was having on the deceased who probably was
repelling the overtures of the appellant.
26. We find no merit in the appeal which is dismissed.
27. Since the appellant is in jail, we direct that a copy
of the instant decision be sent to the Superintendent, Central
Jail, Tihar.
PRADEEP NANDRAJOG, J.
SURESH KAIT, J.
MARCH 23, 2010
'sv'
