Shokeen & Anr. vs State
2010 Latest Caselaw 2565 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment Reserved on: 05th May, 2010
                             Judgment Pronounced on: 13th May, 2010

+                            CRL.APPEAL No.346/2008

       SHOKEEN & ANR.                             ..... Appellants
                Through:          Mr.K.B.Andley, Sr. Advocate with
                                  Mr.M.L.Yadav, 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?

3.     Whether the judgment should be reported in the
       Digest?

PRADEEP NANDRAJOG, J.

1. The above captioned appeal has been filed by the

appellants Shokeen and Noor Mohd. @ Hafiz challenging their

conviction for the offences punishable under Sections

302/392/411 IPC vide impugned judgment and order dated

1.4.2008. Vide the same judgment, co-accused Sanjay,

Furkan, Abdul Majid and Anwar have been convicted for the

offence punishable under Section 411 IPC and co-accused

Atta-Ur-Rehman has been acquitted of the charges framed

against him.

2. Probably for the reason Sanjay, Furkan, Abdul Majid

and Anwar were convicted for the offence punishable under

Section 411 IPC and for which offence they have been

sentenced to undergo rigorous imprisonment for a period of

three years and by the time sentence was pronounced they

had already undergone the sentence in excess of what was

imposed upon them, they have not preferred any Appeal

challenging their conviction. Thus, only Shokeen and Noor

Mohd. are before us.

3. Briefly stated the case sought to be established by

the prosecution is that one Paras Jain used to carry out Hawala

operations in and around Delhi. He used to collect money

from persons and deliver the same as per the understanding

and obviously used to receive some commission. Many

persons used to assist him or were associated with him of

which his nephew Praveen Jain was one such person and

accused Atta-Ur-Rehman was another. Sometime in the year

2004 accused Atta-Ur-Rehman got swayed by the greed for

money and decided to rob the money collected by Praveen Jain

to be given to Paras Jain as a part of the Hawala transactions.

Accused Furkan, Abdul Majid, Anwar, Sanjay, Shokeen and

Noor Mohd. @ Hafiz joined him and together they entered into

a conspiracy to rob the money collected by Praveen Jain from

his house. As per their plan appellant Shokeen and Noor

Mohd. were to enter the house of Praveen Jain with the excuse

that they were to hand over Hawala money to him. Accused

Anwar was to enter the house after a while pretending to be a

rickshaw puller who brought Shokeen and Noor Mohd. to the

place and demand his fare, while the others would remain

outside the house in a car. The accused inside would commit

the robbery and if need be to murder Praveen Jain to fulfil the

object of their entry i.e. robbery and to give effect to their

plan, on 14.8.2004 appellants Shokeen and Noor Mohd. @

Hafiz visited the house of Praveen Jain at Flat No.96A, DDA

Flats, Jhilmil Colony, Delhi, but did not meet him as he was not

there. They met Santok Chand Parakh PW-1 the father of

Praveen Jain and Pawan Jain PW-2 the elder brother of Praveen

Jain. They waited for Praveen Jain for sometime but when

Praveen Jain did not arrive, they made a telephone call to

someone whom they informed about the absence of Praveen

Jain. After sometime a call was received at the house of

Praveen Jain which was answered by Pawan Jain and the caller

told him that he wanted to speak to one of the two persons

present at the house. On the receiver being handed over to

Noor Mohd. he i.e. Noor Mohd. spoke with the caller for a while

and thereafter handed over the receiver to Pawan Jain. The

caller disclosed his name as Haji Kamal and gave the number

20070874 and asked Pawan Jain to tell Praveen Jain to call

back at said number. Pawan Jain noted said number in his

diary. On the directions of the caller, Shokeen and Noor Mohd.

left the house. On 16.8.2004 at around 11:00 AM Shokeen and

Noor Mohd. again visited the house of Praveen Jain and this

time they met Praveen Jain. Santok Chand Parakh the father

of Praveen Jain was also present at the house. During this time

Mukesh Kumar Bhagat @ Guddu PW-8 also visited Praveen Jain

and handed over to him Rs.2.25 lacs in cash and assisted

Praveen in counting the cash in a room of the house. As per

their plan, co-accused Anwar entered the house of Praveen

Jain pretending to be a rickshaw puller and demanded his fare

from Shokeen and Noor Mohd. which they paid. At around

12:15 PM Santok Chand Parakh left his house. When Santok

Chand Parakh PW-1 returned to his house at around 1:30 PM

he found Praveen lying on a double bed with his mouth gagged

and his hands, legs and mouth tied with pieces of cloth and

with blood smeared on his face and on the bed-sheet.

4. How the prosecution claimed a break-through

would be now noted by us with reference to the various

documents/memos prepared from time to time.

5. Information pertaining to Praveen Jain being

murdered was conveyed by Santok Chand Parakh to the Police

Control Room from where it was transmitted to PS Vivek Vihar

where DD No.16-A, Ex.PW-29/A was recorded. SI Randhir

Singh PW-27 was entrusted with the investigation of the said

DD and along with Ct.Vinod and Ct.Ombir Singh he reached

Flat No.96-A, DDA Flats, Jhilmil Colony, Delhi. Inspector Kishan

Lal PW-34 also reached the spot as he was also conveyed the

information of Praveen Jain being murdered in his flat. He

carried out the relevant investigation. At the first instance he

promptly recorded the statement Ex.PW-1/B of Santok Chand

Parakh wherein Santok Chand Parakh stated that two men who

had visited their house on 14.08.2004 had come to the flat and

one Guddu who used to frequently come to their flat had come

to the flat in the morning. He left the flat at around 11:45 AM

and when he returned to the flat he found his son murdered.

Inspector Kishan Lal PW-34 made an endorsement beneath the

said statement and sent the same for FIR to be registered at

around 4:25 PM and completed the investigation at the spot by

lifting the various blood stained exhibits and summoning the

crime team which could lift no chance prints and hence the

photographer took the photographs of the dead body. A pistol

with some cartridges was recovered as entered in the memo

Ex.PW-1/A, which we note has not assumed any incriminating

character for the reason the post-mortem of the deceased, as

per post-mortem report Ex.PW-12/A, shows that death was due

to asphyxia consequent upon pressure over nose and mouth.

Certain injuries on the face were also noted.

6. Since in his statement, Santok Chand Parakh did

not name the two persons in whose company he last left

Praveen Jain nor could give their description, no break-through

could be achieved until the next day i.e. 17.08.2004, when

Pawan Jain PW-2, the brother of Praveen Jain returned to the

flat and got recorded his statement before Insp.Kishan Lal PW-

34 informing that his father told him that the two men who

came on 14.08.2004 to meet Praveen Jain also visited Praveen

Jain on 16.08.2004 and were the persons last seen with

Praveen Jain before his death. Pawan informed in his

statement that on 14.08.2004 the two men who had come to

the flat made him speak to one Haji Kamal on a telephone who

gave him a number 20070874 and requested him to tell

Praveen Jain to call back at said number. Pawan further

informed that he had noted the said number in a diary Ex.P-1,

which he handed over to Inspector Kishan Lal who seized the

same vide seizure memo Ex.PW-2/A.

7. The said telephone number gave further leads.

Inspector Kishan Lal found that said number was that of a

Garuda Mobile Service provided by MTNL and contacting the

relevant office of the service provider learnt that the

subscriber of the number was one Rajesh Kumar PW-4. He

contacted Rajesh Kumar who informed him that he had given

the phone to his employee Naresh Kumar PW-6, who informed

Inspector Kishan Lal that he had lost the instrument and for

which he had lodged a complaint Ex.PW-32/A at PS Kashmere

Gate.

8. It is apparent that Inspector Kishan Lal reached

another dead end with the only leads which could possibly

emerge being through the call details pertaining to said

number. He obtained the call details on floppies Ex.PW-34/F-1

to Ex.PW-34/F-3 from the office of MTNL, Nehru Place. He took

out the hard copy Ex.PW-34/G of the said call details. Inspector

Kishan Lal noticed that most of the calls made to or from the

said number on 14.08.2004 were from landline numbers

installed in the area of Kithore and Kila Parikshit Garh in the

State of Uttar Pradesh. Since SI Atul Tyagi PW-30 had his

roots in the area of Kithore, he was joined in the investigation.

On perusing the call details, SI Atul Tyagi noted a number as

that of his informer. He summoned the said informer who

revealed that the number i.e. the No.20070874 was being

used by accused Abdul Majid and accused Furkan, both

residents of village Radhna in the State of Uttar Pradesh but

currently residing in a house in Shalimar Bagh in Delhi. The

said secret informer led SI Atul Tyagi and Inspector Kishan Lal

to a house in Shalimar Bagh, Delhi but it turned out that Abdul

Majid and Furkan had already vacated the said house two days

prior. He then took SI Atul Tyagi and Inspector Kishan Lal to

village Radhna, where on 23.08.2004 accused Furkan, Abdul

Majid and Anwar were arrested and at that time the

instrument pertaining to the No.20070874 was recovered from

the house, which happened to be that of accused Abdul Majid.

Two cell phones operated on Nos.33332630 and 31219519

were recovered from the possession of accused Furkan. It was

then noted that the call details Ex.PW-34/G pertaining to the

number 20070874 had many calls inter se the said number

and the telephone No.33332630.

9. Accused Abdul Majid, Furkan and Anwar made

disclosure statements Ex.PW-30/H, Ex.PW-30/G and Ex.PW-

20/E confessing to the conspiracy and the crime and informed

that four other persons namely Atta-Ur-Rehman, Shokeen,

Noor Mohd. @ Hafiz and Sanjay were their partners and that

they had shared the booty of the crime i.e. Hawala money

looted from the deceased Praveen Jain. Said accused were

then apprehended and their disclosure statements recorded as

per which they admitted to the crime and save and except

Atta-Ur-Rehman the others volunteered to get the booty

recovered as in their share.

10. No money was got recovered by Atta-Ur-Rehman.

Abdul Majid got recovered Rs.12,000/- in cash, accused Furkan

got recovered Rs.16,000/- in cash, accused Noor Mohd. got

recovered Rs.32,000/- in cash, accused Shokeen got recovered

Rs.20,000/- in cash and accused Sanjay got recovered

Rs.20,000/- in cash. Accused Anwar informed that he had

deposited Rs.35,000/- in the bank in an account maintained in

the name of his wife, which fact was found to be true.

11. As per the prosecution Santok Chand Parakh and

Pawan Jain had identified Shokeen and Noor Mohd. as the two

persons who had visited the flat of the deceased on 14.8.2004

and Santok Chand Parakh additionally identified the said two

as the one who visited the flat on 16.8.2004. Thus, qua

appellants Shokeen and Noor Mohd. the evidence would be of

last seen in the company of the deceased and additionally the

money got recovered by them. Qua accused Abdul Majid the

evidence would be the recovery of the Garuda Mobile phone

having subscriber No.20070874 as also the mobile

No.33332630 with proof of inter se calls exchanged between

said numbers from 15.8.2004 onwards as also proof of a

telephone call made from the landline number in the flat of the

deceased and a return call to the said landline number on

14.8.2004. Further evidence incriminating against Abdul Majid

would be the recovery of cash at his instance. Against Furkan

and Sanjay incriminating evidence would be the cash got

recovered by them. Incriminating evidence qua Anwar would

be proof of Rs.35,000/- deposited with the bank in the account

of his wife. Needless to state it had to be proved that the said

money was the fruit of the crime.

12. It is apparent that the fate of the seven accused

was hinging upon two distinct sets of evidence.

13. Regretfully, the prosecution did not comply with the

mandate of Section 65-B of the Evidence Act inasmuch as the

call record details Ex.PW-34/F1 to Ex.PW-34/F3 as also the

hard copy thereof Ex.PW-34/G were simply tendered when

Inspector Kishan Lal deposed as PW-34 and additionally for the

reason the floppies of the call record details nor the hard copy

was supplied to the accused. Thus, the learned Trial Judge,

and in our opinion correctly returned the finding that said

evidence was inadmissible as it was not properly proved. The

result was that the inter linkage of calls inter se the various

telephones as surfaced during investigation could not be

proved. The only evidence of certain handsets pertaining to

some numbers, without link evidence of the call details was

rendered denuded of its lethal punch and hence the failure of

proof of charge of conspiracy.

14. The proof of conspiracy having failed, it is apparent

that only those who went to the house to rob the deceased

and in the process murdered him could be held liable for their

acts. Of course, it had to be considered whether there was

proof that the looted money was distributed as claimed by the

prosecution and whether it was received by the accused who

got various amounts recovered from their person or from the

bank account of the wife had knowledge that they were the

recipients of stolen property.

15. The latter need not be discussed by us for the

reason, as noted above, the accused who have been convicted

for the offence punishable under Section 411 IPC have not

preferred any appeals.

16. We are concerned only with the fate of appellant

Shokeen and appellant Noor Mohd.

17. In sustaining their conviction for the offence of

committing robbery and murdering the deceased and retaining

part of the looted property i.e. the offences punishable under

Section 392/302/411 IPC the learned Trial Judge has relied

upon the deduction made with reference to the testimony of

Santok Chand Parakh PW-1 and Pawan Jain PW-2, the father

and the brother respectively of the deceased. With reference

to their testimony, the learned Trial Judge has held that it

stands established that the appellants were the ones who were

last seen in the company of the deceased at around 12:15 PM

on 16.8.2004 and had fled before 1:30 PM when Santok Chand

Parakh returned. Learned Trial Judge has found corroboration

to the proof of the fact that the appellants had visited the flat

of the deceased as claimed by Santok Chand Parakh through

the truncated testimony of Mukesh Kumar Bhagat @ Guddu

PW-8. The recoveries of Rs.32,000/- and Rs.20,000/- in cash

by the appellants have been held to be proved with further

finding that this was a part of the booty which was shared

amongst the accused.

18. Santok Chand Parakh PW-1 deposed that at about

11:00 AM 2 persons visited his house on 14.8.2004 to meet his

son Praveen who used to deal in Hawala transactions. The

said 2 persons could not meet Praveen since he was not at the

house. His elder son Pawan was present at the house and

Pawan requested the said 2 persons to hand over to him the

money they wanted to hand over to Praveen. The said 2

persons did not agree and left saying that they would come

back on 16.8.2004. On 16.8.2004 at about 11:00 AM the same

2 persons again visited his house and enquired about Praveen.

Since Praveen had gone out somewhere, the 2 persons waited

for sometime till Praveen returned. When Praveen returned,

one Guddu who was also assisting Praveen in the Hawala

transactions, also visited Praveen. Soon after, one more

person, claiming to be a rickshaw puller entered the house

demanding the rickshaw fare from the said two persons. One

of the two paid the fare. Thereafter at about 12:15 PM after

informing Praveen, he i.e. Santok Chand Parakh left the house

for some work. When he returned to his house at about 1:30

PM he found the door of the house open and on entry he found

the dead body of his son Praveen lying on a double bed with

its mouth, hand, legs tied with pieces of cloth and an attachi

case belonging to his brother-in-law Prakash was missing. He

informed the police at the PCR No.100. Santok Chand Parakh

stated that he could not identify the persons who had come to

his house on 16.8.2004.

19. Pawan PW-2 deposed that on 14.8.2004 when he

returned to his house at about 12:30 PM after making

purchases he found 2 persons sitting in his house in the

company of his father. He enquired from the said 2 persons

the purpose of their visit, at which the said persons informed

him that they wanted to hand over some money to his younger

brother Praveen. After waiting for some time for Praveen, the

said 2 persons made a telephone call from the landline

installed in his i.e. Pawan's house. They informed somebody

over the telephone that Praveen was not in the house. After

sometime a call was received on the telephone which was

attended to by him, and the caller requested him i.e. Pawan to

hand over the receiver to one of the two visitors. The caller

disclosed his name as Haji Kamal. One of the two persons who

looked like a Muslim spoke to the caller on the telephone and

after a while handed over the receiver to him i.e. Pawan. The

caller gave him a number i.e. 20070847 and told him to ask

Praveen to call back on the said number. Thereafter the two

visitors left. On the same day he informed his brother Praveen

about the visit of the two men and gave him the telephone

number. In the evening on returning home, Praveen told him

that he had spoken on the number given by him and that the

two visitors would again visit them day after tomorrow. On

16.8.2004 he was in Dehradun and on receiving information

about the death of his brother he returned to Delhi at about

9:00 PM. His father told him that the two men who had visited

their house on 14.8.2004 had again visited them on 16.8.2004

and murdered Praveen. He identified the appellants Shokeen

and Noor Mohd. as the two persons who had visited their

house on 14.8.2004.

20. It may be noted here that the examination-in-chief

of Pawan PW-2 took place on 11.5.2006. When the counsel for

accused Noor Mohd. and Anwar cross-examined Pawan PW-2

on the same day, with regard to the identity of the appellants,

Pawan PW-2 stuck to the version stated by him in his

examination-in-chief to the effect that Shokeen and Noor

Mohd. were the men who visited their house on 14.8.2004.

The cross-examination of Pawan was deferred and on the next

date which happened to be after more than one year i.e.

4.7.2007 Pawan resiled from what he stated during

examination-in-chief and initial cross-examination by stating

that Noor Mohd. and Shokeen did not visit their house on

14.8.2004 and claimed that his earlier version was at the

instance of the police.

21. Mukesh Kumar Bhagat @ Guddu PW-8 deposed that

he was working for Paras Jain who was a resident of Bihar and

used to collect money for Paras Jain and hand over the same

to Praveen Jain who was also working for Paras Jain. On

16.8.2004 at about 11:00 AM he visited Praveen Jain at his

house and at that time two men were sitting with Praveen Jain.

He handed over Rs.2 lacs to Rs.2.25 lacs to Praveen Jain.

Thereafter he left. He claimed that he could not identify the

two persons whom he had seen in the house of Praveen Jain on

16.8.2004.

22. Suffice would it be to state that Mukesh Kumar

Bhagat only supports the prosecution that two persons had

visited house of Praveen Jain at around 11:00 AM on

16.8.2004. Santok Chand Parakh could only support the case

of the prosecution that two men were with his son in their

house when he left at 12:15 PM and by the time he returned at

1:30 PM his son had been murdered and the said two persons

were missing along with the attachi case of his brother-in-law.

Some life qua the identity of the said two persons surfaces

through the testimony of Pawan who initially identified the

appellants as the two persons who had come to their house on

14.8.2004, but after more than a year, retracted from his

testimony in examination-in-chief. Ignoring the retraction of

Pawan and applying the principle of linear equation it may be

concluded that the appellants were the person who had visited

the house on 16.8.2004. The theory of the linear equation

would be: A and B are stated by X to have visited his house on

date M as also on the date N but without X identifying with

certainty who A and B are. Y identifies the two persons A and

B as the ones who visited the house on the date M. Thus, it

can be deduced that A and B had visited the house on date N.

23. Well, from the point of view of a theorem such a

deduction is plain and logical, but in our opinion this approach

is impermissible in law for the reason, the reason of the law

may not always be logic but experience.

24. To sustain a conviction on percipient evidence the

Court must have the quality of the percipient evidence of such

sterling nature that except for the credibility of the witness, no

other task has to be performed by the Court. It is for this

reason percipient evidence is treated as better evidence than

circumstantial evidence for the reason in percipient evidence

also called direct evidence the only possible source of taint is

to the credibility of the witness and once the credibility is

established, the Court is required to do no more inferential job,

for what the witness states has to be accepted. It is only in a

circumstantial evidence that a two stage process is to be

adopted. Firstly, to test the credit of the witness who deposes

a fact and secondly to draw an inference from the said fact. It

is apparent that in this process there would be two possible

sources of taint: firstly to the credibility of the witness and

secondly to the inference which the Court may draw.

25. Taking a cue from the aforesaid principle of law, it

may be difficult to apply the kind of deductive logic, to which

we have referred to in para 22 above. The reason is, not only

the one stated by us in para 23 above but additionally that

ordinarily law does not permit a deduction to be made from

something which itself is the result of deduction, save and

except in an exceptional case where the second deduction is

the logical corollary of the first.

26. Where does the rule of experience of life in a

situation of the instant kind take us to?

27. A doubt qua the claim of Santok Chand Parakh,

being that, the two persons who had come to his house on

14.8.2004 revisited the house on 16.8.2004, in the absence of

his being unable to identify the appellants as the said two

persons. It is possible that Santok Chand Parakh may be in

error in his claim as made.

28. So slender is the thread with which the prosecution

wants its fabric to be stitched that it would be unsafe to stitch

the fabric with the slender thread for the reason the fabric may

either come unstitched or imperfectly stitched.

29. The Rule of Prudence has always been invoked by

the Courts to look for some corroboration where the evidence

of the prosecution is found vacillating at some place and

especially where the offence attracts the capital sentence. It

is trite law that graver is the offence, stricter should be the

standard of proof and higher in quality and probity the

incriminating evidence led by the prosecution.

30. We are of the opinion that the appellants are

entitled to the benefit of doubt and hence we allow the appeal

and set aside the impugned judgment and order dated

1.4.2008. The appellants are acquitted of the charge framed

against them.

31. Copy of this order is directed to be sent to the

Superintendent Central Jail Tihar with a direction to set free

the appellants if not required in custody in some other case.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE MAY 13, 2010 dk / mm