Abdul Hakim @ Abdul Salim vs State
2011 Latest Caselaw 1908 Del

           THE HIGH COURT OF DELHI AT NEW DELHI
%                                    Judgment delivered on: 01.04.2011

+            CRL.A. 286/1997

ASLAM @ PAPPU                                       ...        Appellant

                                      versus
STATE                                               ...      Respondent

Advocates who appeared in this case:

For the Appellant        : Mr Mohd. Kausar Perwez
For the Respondent/State : Ms Sanjay Lao

                                       AND

+            CRL.A. 377/1997

ABDUL HAKIM @ ABDUL SALIM ...                                  Appellant

                                      versus
STATE                                               ...      Respondent
Advocates who appeared in this case:
For the Appellant        : Mr Ajay Verma with Mr Anirudh Wadhwa and Ms Swati Gupta
For the Respondent/State : Ms Sanjay Lao

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE MANMOHAN SINGH

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

2. To be referred to the Reporter or not? YES

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

BADAR DURREZ AHMED, J (ORAL)

1. These appeals are directed against the judgment passed by

the learned Additional Sessions Judge in Sessions case No. 128/96

arising out of FIR No. 93/92 registered under Sections 302/394/397/34

IPC at police station Mansarover Park on 14.05.1992. By virtue of the

impugned judgment, the appellants Aslam @ Pappu and Abdul Hakim

@ Abdul Salim have been convicted for the offences under Sections

392/34 IPC and 302/34 IPC. By virtue of order of sentence dated

17.5.1997, both the appellants were sentenced under Section 302/34

IPC to undergo rigorous imprisonment for life each and to pay a fine of

` 2000/- each and in default of payment of the fine, to further undergo

rigorous imprisonment for one month. Both the appellants were further

sentenced under Section 392/34 IPC to undergo rigorous imprisonment

for seven years each and to pay a fine of ` 2000/- each and in default

whereof to further undergo rigorous imprisonment for one month. The

sentences were directed to run concurrently.

2. We may point out at this stage itself that charges were

framed against the present appellants as also one Abdul Salam @

Salam son of Pir Baksh. He was, however, acquitted by the trial court.

It is the prosecution case that that there was another person by the name

of Ashraf who was also involved in the alleged commission of crime

but from the formal charge, it appears that Ashraf was declared to be a

proclaimed offender.

3. As per the charge dated 05.04.1995, it is alleged that the

appellants, on 14.05.1992 at around 10:45 am, opposite shop No.

1/277, G.T. Road, Shahdara, falling in the area of police station

Mansrover Park, along with co-accused Ashraf, in furtherance of their

common intention, committed robbery of `60,000/- allegedly contained

in a bag carried by Ram Chand and thus it is alleged that the appellants

had committed an offence under Section 392/34 IPC. The further

charge was that on the said date and place, at about 10:45 am, the

appellants along with the co-accused Ashraf, in furtherance of their

common intention, intentionally and knowingly, caused the death of

Ram Chand and thus committed the offence under Section 302/34 IPC.

4. The prosecution case is that Ram Chand was working as a

manager with Rajdhani Petrol Pump. It was usual for him to go to the

bank to deposit the money in the mornings. On 14.05.1992, Ram

Chand, as usual, left Rajdhani Petrol Pump on his scooter bearing

No.DDE-3290. On that date PW1 Kulwinder Singh, who is the son-in-

law of Ram Chand, had some work with Ram Chand and, therefore,

had gone to Rajdhani Petrol Pump, Seelampur to meet him. He was

told that Ram Chand had gone to Bank of India, G.T. Road to deposit

some money. Thereupon, PW1 Kulwinder Singh is said to have taken a

short-cut on his own scooter and arrived at the said Bank of India ahead

of Ram Chand. Since Ram Chand had not yet arrived at the bank, PW1

Kulwinder Singh is said to have gone inside the bank and waited for

him. It is further the case of the prosecution that after some time there

was a commotion outside the bank and PW1 Kulwinder Singh saw that

his father-in-law Ram Chand was surrounded by three boys and that

one of the boys threw some yellow powder on the eyes of Ram Chand

and another boy took out a dagger and stabbed Ram Chand and the

third snatched the bag which Ram Chand was carrying and all of them

disappeared from the scene in a gali towards Ram Nagar railway line. It

is also the case of the prosecution that PW1 saw the incident and that

he could identify the assailants. As per the prosecution, PW2 Laxmi

Narain, who was a passerby, also saw the incident on that day and he

could identify the assailants. We may point out that PW 3 and PW 4

were also cited as eye witnesses but they turned completely hostile and

the trial court disregarded their testimonies in toto.

5. The present appellants were allegedly arrested on 06.05.1993

in connection with another set of FIRs being FIR Nos. 124/93 and

126/93 of the same police station which were for the offences under the

Arms Act and Section 5 of the Terrorist and Disruptive Activities

(Prevention) Act. It is apparent that after their arrest in those FIRs, the

appellants made some disclosure statements which also related to the

present case. Recovery of a rexine bag at the instance of the appellant

Aslam @ Pappu is said to have been made pursuant to his disclosure

statement. Insofar as the other appellant, that is, Abdul Hakim @ Abdul

Salim is concerned, no recovery whatsoever has been made from him

or at his instance.

6. The trial court, believing the testimonies of PW1 and a part

of the testimony of PW2 and considering the recovery of the rexine

bag, allegedly at the instance of Aslam @ Pappu, to be established,

convicted the appellants while at the same time Abdul Salam, who was

a co-accused, was acquitted.

7. The learned counsel appearing on behalf of the appellants

submitted that the trial court fell into error. First of all, it was submitted

that the identity of the assailants was not free from doubt. The learned

counsel submitted that no test identification parade was conducted and

it is for the first time in Court itself, when PW1, on 17.05.1995, is said

to have identified the appellants. PW2 is said to have identified the

appellants only on 15.07.1996. It was submitted by the learned counsel

that it would be very difficult, if at all possible, for anyone to identify

the assailants whom he saw in a fleeting moment after a time gap of

three years and four years, respectively. It was further submitted that

there were several contradictions in the testimonies of both PW1 and

PW2 which would make it extremely unsafe for the Court to base a

conviction on their testimonies. Apart from this, it was submitted that

there was no recovery, whatsoever, made from Abdul Hakim @ Abdul

Salim and even the recovery allegedly made at the instance of Aslam @

Pappu was not established because the so-called rexine bag was not

produced in the Court and was not identified by any of the witnesses in

Court.

8. The learned counsel for the State submitted that the

testimonies of PW1 and PW2 clearly established the identity of the

appellants and that, in particular, PW1 has narrated the incident exactly

in the manner in which it took place. He also happened to be the son-

in-law of Ram Chand and that it would not be difficult for him to

remember the faces of the assailants of his father-in-law. The learned

counsel for the State also submitted that the recovery of the rexine bag

was duly accounted for in the recovery memo as well as in the

malkhana register and that the non-production of the said bag in Court

would not be very material. He submitted that the bag could not be

produced before the Court because it was deposited with the Court

Nazir, who had auctioned the same in the meanwhile!

9. It is apparent from the above that the entire case rests upon

the factum of identification of the assailants of Ram Chand. If there is

clear convincing evidence that the assailants have been correctly

identified, then it will be very difficult for the appellants to avoid a

conviction. However, if the evidence on this aspect of the matter is

shaky, the benefit would have to go to the appellants.

10. PW1 Kulwinder Singh, who is the son-in-law of the

deceased Ram Chand, first of all, stated that when he reached the petrol

pump at Seelampur, he was informed that Ram Chand had gone to the

bank, namely, UCO Bank, G. T. Road, Delhi. It is an admitted position

that the incident took place near Bank of India, G.T. Road, Delhi.

Therefore, this part of the testimony of PW1 Kulwinder Singh does not

match with the actual incident. However, the learned trial court

disregarded this discrepancy as a mere slip of tongue.

11. PW1 Kulwinder Singh further stated that when he was inside

the bank and was waiting for his father-in-law, after about 5 to 7

minutes, he heard noises of a quarrel outside but he was not allowed to

go out of the bank gate as the same had been locked on account of the

quarrel. He stated that he saw through the glass window that the

deceased Ram Chand had been caught hold by "three persons". One of

them was stabbing the deceased with a knife type article. He further

stated that two of the above persons are present in Court and he pointed

towards Abdul Hakim and Aslam. He then pointed towards Abdul

Hakim and stated that he had stabbed his father-in-law with a knife

type article. He further stated that the other two persons had caught

hold of the deceased Ram Chand and that Abdul Salim, who was also

an accused, was not present at the spot at that time. He further stated

that he did not know the amount of cash or the contents of the bag

which the deceased had with him at the time he was attacked.

12. Since PW1 Kulwinder Singh was partly resiling from his

earlier statement, the learned APP had sought to cross-examine him.

During his cross-examination, he categorically stated that he did not tell

the police that he was waiting for the deceased in front of the bank. He

also stated that he did not tell the police about the description of the

two boys who had assaulted his father-in-law and that the bag

contained ` 60,000/-. He also stated that he did not tell the police that

he tried to rescue the deceased from the above persons and that the

black boy stabbed the deceased in his left chest with a dagger resulting

in bleeding injuries. He further stated that he told the police that the

two boys snatched the cash bag of the deceased and ran in the gali

towards Ram Nagar railway line. Further down in his cross-

examination by the learned APP, he stated that Abdul Salam was the

person who had thrown the yellow powder upon the deceased. Abdul

Salim was standing at the eastern corner of the bank and it was Aslam

who had snatched the bag from the deceased. He further stated that he

did not identify Ashraf who had stabbed the deceased.

13. We may also point out at this juncture that the bag, which is

said to have been recovered at the instance of Aslam @ Pappu and

which had been marked as Exhibit P-1 was sought to be produced

before the court on that date itself but had not been produced.

Strangely enough, in the testimony of PW1, it was noted that the

Exhibit P-1 was the above bag but later on the following observation

was made:-

"at this stage it is noted that the above bag has not been brought in case property. Exhibit P-1 given to the said bag is thus deleted".

14. Further cross-examination of PW1 was deferred and on the

next day, the learned APP stated that the bag in question had not been

brought from Malkhana of police station Anand Vihar in case FIR No.

126/93 of police station Anand Vihar. When PW1 was further cross

examined by the learned APP on another date, he stated that he could

identify the bag, if shown to him. He stated that the words "Rajdhani

Service Station" were inscribed, as per his memory, on the said bag.

He further stated that in his examination-in-chief and previous

statement he could not recollect the entire facts due to lapse of time.

He also admitted that details regarding the facts of the incident had

been forgotten by him to some extent when he was examined in court

on the last date.

15. In his cross-examination by the defence counsel, he stated

that after parking the scooter his father-in-law Ram Chand had not

entered the bank nor had he seen him entering the bank but he had

heard a noise opposite the bank. He saw that a crowd had collected at

the spot. When he reached the spot he found that the miscreants had

gone from the spot after the incident.

16. We find that this witness in his cross-examination stated that

on the fateful day, he left his house at about 8 am on his two wheeler

scooter, the number of which he did not remember. This has to be

contrasted with the fact that he remembered the number of his father-

in-law‟s scooter! From a complete reading of the testimony of PW1,

we get the impression that he has a selective memory in respect of

certain things and he has forgotten the rest. In fact, in his very first

statement, he had stated that he did not remember the date, month or

year in which his father-in-law Ram Chand had died. He stated that he

died about three years ago. But, the very next statement made by him

was that it was on 14.05.1992 at about 10:30 or 11 am, he had gone to

meet the deceased at the petrol pump at Seelampur where he was

working as a manager. It is somewhat surprising that at one point this

witness stated that he did not know the date, month and year in which

his father-in-law passed away and in the same breath in the very next

sentence he mentions the date of 14.05.2992 as also the time. We have

also examined the photographs (Exhibit PW6/9 - PW6/16) of the place

of occurrence, from which it is apparent that the place where the

incident took place is adjacent to the Bank of India inside which PW1

Kulwinder Singh is said to have been at the time of the occurrence.

From the photographs it is apparent that there were glass panes facing

the road. One of the glass panes also had the logo of the Bank of India.

There was also a notice board hanging on the iron grill which was

outside the glass panes. Thereafter, there was an open space and then a

wall of about three feet height and an iron gate of the same height. On

the left portion, there were some electricity poles, which would have

also obstructed the view. Ram Chand was attacked in the shop adjacent

to the Bank of India and, therefore, we feel that it would be highly

improbable for a person standing inside the bank to have been able to

see with clarity through all these visual obstructions. Not only this,

PW1 cannot be believed when he said that he even read as to what was

written on the bag from that distance. Therefore, we cannot say with

any degree of certainty that PW1 could have seen the assailants in the

flurry of activity that took place and to have remembered their faces for

over three years, when he allegedly identified them in Court.

17. Insofar as PW2 Laxmi Narain is concerned, we find that he

has not even named the bank and he has stated the place of occurrence

to be a bank near Lal Kuan. He stated in his earlier part of his

testimony that Aslam and Abdul Hakim, who are present in Court, were

quarrelling with an old man. However, this witness has not stated

anything about anyone throwing yellow powder or anybody snatching a

bag from that man. In the earlier part of his statement he stated that he

saw this incident of quarrelling at a distance of about 7-8 paces.

However, subsequently, in cross-examination, this witness has denied

everything and he voluntarily stated that he did not see the incident

himself. Consequently, PW2, in our opinion, cannot be regarded as an

eye witness. It is unfortunate that the trial court only took note of the

earlier part of PW2‟s testimony and completely disregarded his latter

statement in cross-examination to the effect that he did not see the

incident himself. Thus, we are left with the alleged recovery of the bag

which bore the words „rajdhani service station‟ which were said to be

in Hindi. However, since that bag has not been produced or identified

by PW1, the prosecution cannot place any reliance on it.

18. Thus, looking to the totality of the circumstances, we find

that the prosecution has not been able to establish any recovery from

either of the appellants. No test identification parade was conducted

for identifying any of the appellants. The appellants were arrested after

one year and that too in connection with some other case. The

disclosure statements allegedly made by them cannot be looked into by

this Court as it did not lead to discovery of any fact. The appellants

were said to have been identified in Court by PW1 and PW2 for the

first time after a gap of three years and four years respectively. It is

also clear that PW2 resiled from his earlier statement and ultimately

stated in cross-examination that he did not see the incident himself.

Insofar as PW1 Kulwinder Singh is concerned, we find that he suffers

from selective recall and, therefore, his testimony cannot be treated as

being of a stellar quality or of such a quality on which, alone, a

conviction could be based. The prosecution needed to establish its case

by providing some corroboration which it has failed to do. In these

circumstances, we find that the case against the appellants is not

beyond reasonable doubt and, therefore, the benefit must go to the

appellants.

19. Consequently, the impugned judgment and order on sentence

are set aside. The appellants, if in custody, are liable to be released

forthwith unless they are in custody in connection with some other

case. The appeals stand disposed of. A copy of this judgment / order

be sent to the Superintendent of the concerned jail for compliance.

BADAR DURREZ AHMED, J

MANMOHAN SINGH, J APRIL 01, 2011 HK/SR