Moinuddin vs State
2010 Latest Caselaw 2512 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision : 11th May, 2010

+                            CRL.A. 479/2010

         MOINUDDIN                                  ..... Appellant
                 Through:           Mr.J.P.Pandey, 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 Reporter or not?
     3. Whether the judgment should be reported in the Digest?

PRADEEP NANDRAJOG, J. (Oral)

1. During course of arguments in the appeal today and

while reading the impugned judgment we find that the learned

Trial Judge has not crystallized the incriminating circumstances

held established by him against the accused.

2. The discussion in the impugned decision is penned

in a most unsatisfactory manner and only after putting in some

labour, it could be gathered that the learned Trial Judge has

returned the verdict of guilt on the finding that the appellant

got infatuated with the wife of the deceased, proved through

the letter Ex.PW-8/B held proved to be written by the accused

to Rubina, the wife of the deceased through the testimony of

Rubina and the report of a handwriting expert.

3. The second incriminating circumstance emerging, is

through the testimony of Rubina that in the morning of

16.9.2006 she saw her husband and the accused together

outside Hazi Guest House; the place where she and her

husband were staying and this was the deceased last seen

alive.

4. The third piece of incriminating evidence which

appears to have emerged is through the testimony of PW-1,

pertaining to the conduct and the mental condition of the

accused when he left Gahlot Guest House, the place where the

accused was held proved to be staying till the evening of

16.9.2006.

5. The fourth piece of incriminating evidence which

seems to be emerging is through the testimony of PW-11 who

has stated that he sold a knife, stated to be the weapon of

offence to the accused with link evidence surfacing pertaining

to the recovery of the said knife pursuant to the disclosure

statement of the accused which was opined to be the possible

weapon of offence and on which human blood was detected.

6. One of the strongest incriminating evidence against

the accused, in light of proof of motive, would be the evidence

of last seen.

7. This in turn would require proof that Rubina and her

husband were indeed staying, as claimed by Rubina at Hazi

Guest House till 16.9.2006 for only then can Rubina justify her

claim of seeing the appellant in the company of her husband in

the morning of 16.9.2006 outside Hazi Guest House.

8. The impugned judgment and the relatable

testimony of the witnesses show that there is an entry

evidencing the deceased accompanied by his wife checking in

Hazi Guest house on 11.9.2006 and making a departure on

12.9.2006. A cryptic finding has been returned by the learned

Trial Judge, that as claimed by the witness i.e. Anwar PW-3, the

date 12.9.2006 appears to be a mistake. No reasons have

been given by the Judge as to why he has concurred that the

same is a mistake.

9. We clarify that the Judge's reasons to accept the

reason of PW-3 that it is a mistake, have not been stated.

10. It is apparent that the register in question which

was exhibited and additionally an entry therein which was

exhibited needed to be before the learned Trial Judge when

arguments were advanced. Similarly, in the teeth of denial by

the accused that he checked into Gahlot Guest House, the

register in question and the relevant entry had to be before

the learned Trial Judge when arguments were advanced.

11. The Trial Court record which has been sent to this

Court does not contain either the visitors register exhibited as

Ex.P-1 during the testimony of Madan Lal PW-1. We note that

when Madan Lal PW-1 was examined on 5.7.2007, as stands

recorded in his testimony, the MHC(M) produced the register

which was exhibited as Ex.P-1 and an entry at serial No.10 at

page No.54 was exhibited as Ex.PW-1/B.

12. We are pained to note that neither the said register

nor the relevant extract thereof which was got exhibited as

PW-1/B have been taken on judicial record. The photocopies

have also not been taken on the judicial record.

13. Similarly, when Anwar PW-3 deposed on 9.7.2007 to

prove that the register Ex.PW-3/P-1, produced by the MHC(M)

was seized from him by the investigating officer and that an

entry marked in red i.e. Ex.PW-3/P-2 at page 161 of the

register was entered by the husband of Rubina i.e. the

deceased when he checked in the guest house on 11.9.2006,

neither the register nor the relevant extracts thereof have

been taken on record. Even photocopies have not been taken

on record.

14. This is not the way to record evidence and note the

memorandum thereof, much less deal with the same.

15. It is elementary knowledge, and we expect that a

judicial officer of the rank of an Additional Session Judge

knows, that where an extract from a register is exhibited, the

same has to be photocopied and taken on the judicial record

with a clear order recorded to said effect that the original has

been seen and returned and photocopy taken on record under

signatures of the presiding officer of the Court, or the register

as a whole is to be taken on record.

16. The reason is obvious, at the final stage of

arguments, the said document may require to be looked into.

17. Indeed, in the instant case, there is a serious

controversy whether at all Rubina and her husband continued

to stay at Hazi Guest House beyond 12.9.2006.

18. The controversy had to be resolved with reference

to the entry in the register, which we presume would show the

room rent and the amount paid at the time of checking out.

This would be an important consideration to determine

whether Rubina and her husband stayed at the Guest House

till 16.9.2006, having checked in on 11.9.2006, or they

checked out on 12.9.2006.

19. For the reason neither the two registers nor the

relevant extracts thereof have been taken on the judicial file, it

is apparent that when the learned Trial Judge heard final

arguments, he proceeded to consider the submissions without

having before him the relatable evidence. This has vitiated

the impugned decision and hence without expressing any

further opinion on the controversy on the arguments

advanced, we dispose of the appeal setting aside the

impugned judgment and order dated 30.1.2010 by which the

accused has been convicted for the offence punishable under

Section 302 IPC as also the offence punishable under Section

201 IPC. As a consequence the order of conviction dated

3.2.2010 is also set aside.

20. The matter is remanded back to the learned Trial

Judge with a direction that the relevant registers or the

exhibited extracts thereof would be first taken on the judicial

record after summoning the same from the MHC(M).

Thereafter, copies thereof would be supplied to learned

counsel for the accused and the State.

21. Arguments would be reheard and dealing with the

submissions urged, reasoned decision would be taken.

22. It is hoped and expected that as required by law,

after discussing the evidence and the submissions, the learned

Trial Judge would clearly indicate what has been found as

incriminating evidence against the accused and in what

manner the same completes the chain of circumstantial

evidence wherefrom the guilt of the accused can be inferred

and innocence ruled out if the learned Trial Judge returns a

verdict of guilt and vice-versa if the finding is of not guilty,

reasons would be stated with clarity.

23. Since the accused is in jail for about 4 years, we

direct that the matter would be listed before the learned

Additional Sessions Judge concerned on 17.5.2010, for which

date, learned counsel for the accused has undertaken to

appear and learned counsel for the State undertakes to inform

her counterpart in the District Courts.

24. The learned Trial Judge is directed to hear

arguments expeditiously and complete hearing of the

arguments latest by 28.5.2010 and thereafter pronounce

decision as expeditiously as possible and preferably before the

ensuing summer vacations.

25. The Registry is directed to ensure that the Trial

Court record is returned to the Court concerned latest by

12.5.2010.

26. Dasti under signatures of the Court Master to

learned counsel for the parties.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE May 11, 2010 mm