Nasir vs State
2011 Latest Caselaw 3495 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                              Judgment delivered on 25.07.2011

+      CRL.A. 865/2009


RASHID                                                    ...    Appellant


                                         - versus -

STATE                                                     ...    Respondent

Advocates who appeared in this case:

For the Appellant         : Mr P. N. Bhan
For the Respondent        : Ms Richa Kapur

                                              AND

+      CRL.A. 814/2009


NASIR                                                     ...    Appellant


                                         - versus -

STATE                                                     ...    Respondent
Advocates who appeared in this case:
For the Appellant         : Mr R. M. Tufail with Mr Anwar A. Khan, Mr Farooq
                            Chaudhary and Mr Vishal Sehijpal
For the Respondent        : Ms Richa Kapur

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE VEENA BIRBAL

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

1. These appeals are directed against the common judgment passed by

the learned Additional Sessions Judge, Delhi in Sessions Case

No. 67/2009 on 25.09.2009. The case arose out of FIR No. 368/2005

registered under Sections 302/120B/34 IPC and Sections 25 and 27 of the

Arms Act, 1959 at police station Bhajanpura on 03.09.2005. By virtue of

the impugned judgment, the appellants Nasir and Rashid in these two

appeals were found guilty of committing the offence punishable under

Section 302/120B IPC and the appellant Rashid was additionally convicted

for the offence punishable under Section 302/120B/34 IPC read with

Sections 25 and 27 of the Arms Act, 1959. The appellants were also

aggrieved by the order on sentence passed by the learned Additional

Sessions Judge, Delhi on 30.09.2009, whereby the appellant Nasir was

sentenced to a term of imprisonment for life and to also pay a fine of

` 5,000/- and in default thereof, to further undergo simple imprisonment

for six months in respect of the offence punishable under Sections

302/120B IPC. The appellant Rashid was similarly sentenced to a term of

imprisonment for life and was also directed to pay a fine of ` 5,000/- in

default of which, he was to undergo simple imprisonment for six months

in respect of the offence punishable under Section 302/120B/34 IPC. The

appellant Rashid was further sentenced to undergo rigorous imprisonment

for three years and also to pay a fine of ` 3,000/- and in default of such

payment, he was to further undergo simple imprisonment for three months

for the offence punishable under Sections 25 and 27 of the Arms Act,

1959. The benefit of Section 428 Cr. P.C was given to the appellants.

2. The prosecution's case is that on 02.09.2005 an information had

been received by DD No. 25-A through lady constable Babita that a man

was lying dead in main Gali No. 1, Noor-E-Elahi Colony. On receipt of

the said information, Sub-Inspector Beghraj, Head Constable Jagbir Singh

and Constable Bhim Singh reached the spot. Inspector Ombir Singh with

driver Kiran Pal and Constable Digamber are also stated to have arrived at

the spot. There they found a red motorcycle of the make Hero Honda

Splendor bearing registration No. DL-7SL-7186 in front of house No. 95.

They also found blood at the spot and a chappal of the left foot lying there.

They noticed an empty cartridge lying at some distance. On their arrival at

the spot, the police party learnt that the injured had been taken to GTB

hospital by a PCR van. Head Constable Jagbir Singh was directed to

guard the spot and Inspector Ombir Singh along with other police officials

reached at GTB hospital in a government vehicle and obtained the MLC

bearing No. B-3262/05 of an unknown person wherein it was stated that

the patient was brought dead with an alleged history of a gunshot wound.

3. The prosecution's case further is that at GTB hospital, one

Smt. Hasiba met the police party and she identified the deceased as her

husband. Her statement was allegedly recorded wherein she stated that

shortly after 10 pm on 02.09.2005, her husband had received a call on his

mobile and on receiving the said call, he immediately left the house on his

motorcycle bearing No. DL-7SL-7186. When her husband (Mazhar

Hussain) did not return, she made enquiries from her brother-in-law Azhar

Hussain, who apparently told her that near Gali No. 1, Noor-E-Elahi

Colony, one rider of a red motorcycle has been shot. Thereafter, she along

with her brother-in-law (Azhar Hussain) reached the spot and saw the said

motorcycle bearing No. DL-7SL-7186 and a chappal of the left foot

belonging to her husband lying there. She also came to learn that her

husband had already been taken to GTB Hospital and on reaching there

she came to know that her husband Mazhar Hussain had died due to

receiving gunshot injuries.

4. In view of the statement given by Smt. Hasiba, investigation into the

murder of Mazhar Hussain was set in motion. The Crime Team was called

and the photographs were also taken of the spot. The empty cartridge, the

chappal of the left foot, blood as well as controlled earth lying at the spot,

were seized vide separate seizure memos.

5. For quite some time, the Investigating Officer had no inkling about

the case, despite several steps taken by him during the course of the

investigation. Suddenly, on 21.10.2005, an extra-judicial confession was

alleged to have been made by the appellant Nasir to Azhar Hussain, who is

the brother of the deceased Mazhar Hussain. The said Azhar Hussain, on

21.10.2005 itself, allegedly told the police that the appellant Nasir had

made an extra-judicial confession, when he was returning after offering

namaz, that having been fed up, he had got Mazhar Hussain murdered by

paying a supari (contract killing) of ` 1 lac. On the basis of the purported

extra-judicial confession made by the appellant Nasir to Azhar Hussain

(brother of the deceased Mazhar Hussain), the appellant Nasir was arrested

and interrogated. He is alleged to have made a disclosure statement in

which the name of the appellant Rashid cropped up. Thereafter, the

appellant Rashid was arrested on 22.10.2005 and he apparently made a

disclosure statement, wherein he is alleged to have stated that he had

thrown the country-made katta (pistol) in a nallah (drain) near Brahmpuri

puliya (bridge) and that he could get the same recovered. It is in his

disclosure statement that the name of one Javed also cropped up.

6. It is the case of the prosecution that the appellant Rashid got

recovered a sum of ` 25,000/- from a box kept in his house bearing No. 62,

Gali No.3, Jaffarabad, New Seelam Pur. It is further the case of the

prosecution that at the instance of the appellant Rashid, a country-made

katta of .315 bore with one used cartridge inside it and another live

cartridge were recovered from his house. The sketches of the katta as well

as the used cartridge and the live cartridge were prepared. It is alleged that

the katta was recovered from the house of Rashid on the basis of a

disclosure made by him in his supplementary disclosure statement Exhibit

PW6/G wherein he had stated that he could get the katta recovered.

7. The exhibits, which included the cotton swabs, blood controlled

earth, the katta, the empty cartridge and the live cartridge, were sent to the

Forensic Science Laboratory, Rohini for the opinion of the experts.

Statements of various witnesses were recorded and after completion of the

investigation, the challan under Section 302/120B IPC read with Sections

25 and 27 of the Arms Act was filed in the court of the learned

Metropolitan Magistrate, who, in turn, committed the case to the Court of

Sessions. Three separate charges were framed by the learned Additional

Sessions Judge, Karkardooma Courts, Delhi on 26.03.2007. Insofar as the

first charge is concerned, the appellant Rashid was charged as follows:-

―That on 23.10.05 from your house bearing House No. 62, Gali No. 3, Jafrabad, New Seelampur, Delhi you got recovered one countrymade pistol with one empty cartridge which you had used the same while committing the offence punishable under Section 302/34 IPC and thereby committed offence punishable under Sections 27/25/54/59 of Arms Act and within my cognizance.

The second charge was also against the appellant Rashid and was as

under:-

―That on 02.09.2005 you alongwith your co accused Javed (not arrested) in furtherance of your common intentions committed murder of Mazhar Hussain by firing a shot at him and thereby committed an offence punishable under Section 302/34 IPC and within cognizance of this court.‖

The third charge was against both the appellants Nasir and Rashid and was

as follows:-

―That before 02.09.2005 you both alongwith your associate Javed (not arrested) agreed to do an illegal act, wit, to murder Mazhar Hussain and that you -- accused Rashid with your associate Javed (not arrested) did the said act in pursuance of the said agreement after taking payment of Rs one lac with your associate Javed (not arrested) murdered him and thereby committed an offence punishable under Section 120 B read with Section 302 IPC and within my cognizance.‖

Both the accused pleaded not guilty and consequently, the matter went to

trial, which culminated in the impugned judgment and order on sentence.

The prosecution had examined 24 witnesses and the defence also

examined one witness. The statement of the appellants had also been

recorded under Section 313 Cr. P.C.

8. Mr P. N. Bhan, the learned counsel appearing on behalf of the

appellant Rashid submitted that the entire case against Rashid as also Nasir

is built upon the so-called extra-judicial confession made by Naisr before

Azhar Hussain. He submitted that Azhar Hussain is the brother of the

deceased Mazhar Hussain. The appellant Nasir is the son-in-law of the

deceased Mazhar Hussain and is the maternal uncle (mama) of the

appellant Rashid. He submitted that Javed is a fictitious character which,

according to him, is the figment of imagination of the prosecution. The

learned counsel submitted, as mentioned above, that the investigation into

the murder of Mazhar Hussain had reached a dead end and the

Investigating Officer had no idea whatsoever as to who was behind the

said murder. Then, suddenly, on 21.10.2005, after about 50 days, the

police allegedly made a breakthrough in the sense that PW2 Azhar

Hussain reported to them that the appellant Nasir had made an extra-

judicial confession to him that he had got his father-in-law killed by

paying a sum of ` 1 lac. The learned counsel submitted that this assertion

on the part of the prosecution has fallen to the ground because PW2 Azhar

Hussain denied that the appellant Nasir had made an extra-judicial

confession before him on 21.10.2005. As a result, PW2 Azhar Hussain

was declared as hostile and upon cross-examination by the learned

Additional Public Prosecutor, he denied the suggestion that he had stated

to the police on 21.10.2005 that when he was coming after offering namaz,

Nasir, son of Nisar Khan, resident of B-8, New Seelampur, Near Jama

Masjid Delhi had informed him that after having become fed up, he had

got Mazhar Hussain murdered by paying a supari of ` 1 lac. He also

denied the suggestion that he had been won over by the accused persons

and that he was deposing falsely in order to save them.

9. In view of the fact that PW2 Azhar Hussain has not supported the

prosecution case of extra-judicial confession, it was argued by Mr Bhan

that the entire edifice of the case against the appellants Rashid as well as

Nasir had been built upon the so-called extra-judicial confession and now

that the foundation itself had been knocked aside, the case against the

appellants could not stand. The learned counsel, upon going through the

deposition of PW1 Hasiba, who was the wife of the deceased Mazhar

Hussain, pointed out that she had deposed that her husband had received a

phone call and then soon thereafter he left the house on his motorcycle and

shortly thereafter came the news that he had been shot dead. The learned

counsel submitted that no inquiries have been made by the police with

regard to who made the phone call. The call details of the mobile phone of

the deceased Mazhar Hussain have also not been produced in evidence by

the prosecution.

10. The learned counsel also submitted that there are serious

contradictions between the testimonies of PW6 Inspector V. S. Punia and

PW23 Ombir Singh, who was the Investigating Officer in this case. As

per PW6 Inspector V. S. Punia, the cash amount of ` 25,000/- was

allegedly recovered at the instance of the appellant Rashid from the first

floor of his house, whereas according to PW3 Inspector Ombir Singh, the

currency notes were recovered from the ground floor of the house. Again,

PW6 Inspector V. S. Punia stated that the katta and the live cartridge as

well as the empty cartridge inside the katta were recovered from the

ground floor of the house of the appellant Rashid. PW23 Inspector Ombir,

on the other hand stated that the desi katta and the live cartridge as well as

the used cartridge inside the katta were recovered from the first floor of

the said house.

11. It was further pointed out by Mr Bhan that the place of occurrence is

also not free from doubt. He submitted that, first of all, there is no place of

incident mentioned in the charges framed against the appellants.

Secondly, some witnesses stated that the place of occurrence was at Noor-

E-Elahi chowk, whereas PW7 Sub-Inspector Rakesh Kumar (who was in-

charge of the Crime Team) gave the place of occurrence as house No. 62,

Gali No. 3, Jaffarabad, New Seelampur, which happens to be the house of

the appellant Rashid. PW11 Sub-Inspector Mukesh Kumar Jain gave the

place of occurrence as Noor-E-Elahi near D-94, Bhajanpura, whereas

PW12 Head Constable Jagbir Singh gave the place of occurrence as the

main Gali No. 1, Noor-E-Elahi, Bhajanpura, Delhi. Mr Bhan submitted

that it is not to suggest that Mazhar Hussain had not been murdered near

about Noor-E-Elahi chowk but, these differences in the accounts with

regard to the place of occurrence in the testimonies of the several

prosecution witnesses only go to show that the witnesses are not credible.

12. Mr Bhan also submitted that at the time of post mortem examination

by PW18 Dr S. Lal, it was noted that the body of Mazhar Hussain had two

firearm injuries, one was in the front of the chest in the midline over the

sternum with tattooing and blackening and the other was on the left

temporal area. Both the bullets were recovered from the body and the

opinion of the doctor was that both injuries were sufficient to cause death.

According to Mr Bhan, the said doctor (PW18 Dr S. Lal) had not remarked

anywhere with regard to any deformity in either of the two bullets

recovered by him from the body of Mazhar Hussain. However, PW20

Puneet Puri, who is the ballistic expert, has stated that he had received one

bullet which was intact (EB-1) and one deformed bullet (EB-2). Thus,

according to Mr Bhan, this creates a great deal of suspicion as to whether

the bullets recovered from the body of Mazhar Hussain were the same

bullets which were sent to the ballistic expert for his opinion. In any

event, Mr Bhan submitted that PW20 Puneet Puri could not give any

opinion with regard to the bullets EB-1 and EB-2 having been fired from

the alleged weapon (katta Exhibit P-2). He submitted that in the only

opinion of PW20 Puneet Puri is that the empty cartridge allegedly found

from the spot and the empty cartridge allegedly found inside the katta

were fired from the very katta which had been allegedly recovered at the

instance of the appellant Rashid.

13. It was also submitted by Mr Bhan that no finger prints were taken

from the alleged weapon of offence and that there were serious doubts

with regard to the recovery of the empty cartridge from the alleged place

of occurrence and the recovery of the empty cartridge as well as the live

cartridge allegedly at the instance of the appellant Rashid. He also

submitted that Javed was a fictitious person, who had been created by the

prosecution. There were no details of Javed provided by the prosecution -

no address, no parentage and no connection with to anybody. Thus,

according to Mr Bhan, the entire case of the prosecution was not supported

by any evidence and, therefore, the appellant Rashid as also Nasir were

entitled to be acquitted.

14. Mr R. M. Tufail, the learned counsel appearing on behalf of the

appellant Nasir, adopted the arguments of Mr Bhan and submitted that the

whole case is full of doubts. He submitted that, in any event, even as per

the prosecution, it was a case of circumstantial evidence. That being the

position, the existence of motive would be a very important factor. But,

no motive has been established by the prosecution and the so-called story

of magic (jaadu-tona) being practiced by Mazhar Hussain on his son-in-

law Nasir is too far-fetched and without any basis whatsoever. The

prosecution has not brought out any evidence to suggest any acrimony

between the appellant Nasir and his father-in-law Mazhar Hussain. Thus,

according to Mr Tufail, in the clear absence of motive, the trial court ought

not to have convicted the appellants and, therefore, the appeals ought to be

allowed.

15. Ms Richa Kapur, the learned counsel appearing on behalf of the

State, submitted that although the appellant Nasir had made an extra-

judicial confession before PW2 Azhar Hussain, the latter has resiled from

his statement made to the police on 21.10.2005. She submitted, however,

that even if the extra-judicial confession is kept aside, there is enough

circumstantial evidence which points towards the guilt of the appellants.

She submitted that the recovery of the empty cartridge (Exhibit P-4) (EC-

1) is clearly established and the same was seized as per seizure memo

Exhibit PW12/A much before the arrest of the appellant Rashid and the

recovery of the katta. The empty cartridge finds mention in the ruqqa as

well as can be seen in the photographs Exhibit PW4/F and Exhibit PW4/G.

It also finds mention in the brief facts (Exhibit PW23/D) dated 03.09.2005

prepared during the inquest proceedings. She submitted that another

important circumstance was the recovery of the katta at the instance of the

appellant Rashid. She submitted that although no place has been

specifically mentioned by the appellant Rashid in his alleged second

disclosure statement, but he had stated that he could get the same

recovered and the fact that he did point out is in itself admissible. She also

submitted that the empty cartridge in the katta matched with the empty

cartridge found at the spot and in the opinion of the ballistic expert Puneet

Puri, both the cartridges had been fired from the katta Exhibit P-2, as per

the report of the ballistic expert Exhibit PW20/A. She submitted that the

recoveries in themselves were sufficient to establish the prosecution case

and placed reliance on the decision of the Supreme Court in the case of

Rameshbhai Mohanbhai Koli v. State of Gujarat : JT 2010 (11) SC 605.

She further submitted that the existence of a motive is not at all essential

when there are other circumstances which unerringly point out towards the

guilt of the accused. She also submitted that the call records of the

appellant Nasir's mobile phone (9810254326) and the appellant Rashid's

mobile phone (9810234935) had been produced in evidence as Exhibit

PW22/A-1 to A-21 and Exhibit PW22/B-1 to B-8 respectively and the

same had been proved by PW22 R. K. Singh, who was working with

Bharti Airtel. According to her, this shows that there were phone

conversations between the appellants Nasir and Rashid on 01.09.2005 and

02.09.2005. According to her, this is an important aspect to show that

there was a conspiracy between the appellants.

16. We have gone through the evidence on record and have considered

the arguments advanced by the counsel for the parties. We agree with the

submission made by the learned counsel for the appellants that the entire

edifice of the prosecution case has been built upon the foundation of the

extra-judicial confession which was allegedly made by the appellant Nasir

to PW2 Azhar Hussain. We also find that PW2 Azhar Hussain has denied

this fact before Court during his deposition and it is for this reason that he

was declared to be hostile. On cross-examination by the learned

Additional Public Prosecutor, PW2 Azhar Hussain has clearly denied the

suggestion that such a confession was made by the appellant Nasir to him

on 21.10.2005 and that he had made a statement to this effect before the

police on 21.10.2005.

17. The next important aspect of the case is that prosecution has not

been able to establish any motive on the part of the appellants to have

Mazhar Hussain murdered. Nothing has been brought on record to suggest

any animosity or enmity between the appellant Nasir and his father-in-law

Mazhar Husain. We agree with the submission made by the learned

counsel for the appellants that the suggestion that Nasir was fed up with

his father-in-law employing magic (jaadu tona) against him is too

farfetched and is purely in the realm of imagination. No concrete evidence

has been brought out by the prosecution to even suggest that there was a

motive for the appellant Nasir to have his father-in-law Mazhar Hussain

killed. Obviously, when Nasir did not have a motive, there was no

question of him having taken out a supari for Rs 1 lakh for having his

father-in-law Mazhar Hussain killed. Consequently, the appellant Rashid

also did not have any motive to kill Mazhar Hussain.

18. Another interesting aspect of this case is the existence or, shall we

say, non-existence of the third accused Javed. Usually, while recording

disclosure statements, all the details are given by the persons whose

statements are recorded by the police. But, in this case, we find that only

the name of Javed has cropped up. There is no description of him. His

address has not been given. His parentage has also not been disclosed.

Where he came from is unknown. What he did is unknown. In these

circumstances, we cannot but agree with the submission made by the

learned counsel for the appellants that Javed is a fictitious character and

does not exist in reality.

19. We have also seen that the bullets recovered from the dead body of

Mazhar Hussain did not match the alleged weapon of offence, namely, the

katta (Exhibit P-2). Thus, there is no link between the bullet and the

weapon of offence.

20. This leaves us with the alleged recovery of the empty shell from the

scene of crime. There is a discrepancy as to where the empty shell was

actually recovered from. According to PW-12 [Head Constable Jagbir

Singh], the same was recovered near Baba Polyclinic, whereas, according

to PW-17 [Sub-Inspector Beghraj], the empty cartridge was lying at a

distance of 4 feet from the motorcycle and, if one were to see the site plan,

Baba Polyclinic is at a great distance from the motorcycle. Secondly,

there is doubt with regard to the recoveries at the instance of the appellant

Rashid. We have already indicated while recording the submissions of the

learned counsel for the appellant that there are contradictions between

PW-6 [Inspector V.S. Punia] and PW-23 [Inspector Ombir Singh] with

regard to the place of recovery of the cash of Rs 25,000/- and the katta and

live cartridge as well as the fired cartridge from the house of the appellant

Rashid.

21. We also find it difficult to believe that the appellant Rashid would

have kept the katta with a fired cartridge inside it for over 50 days in his

house, particularly when he was in close contact with the victim's family

and would, in all the circumstances, have been aware of the progress of the

investigation. We may reiterate that Rashid is the nephew of Nasir who, in

turn, was the son-in-law of deceased Mazhar Hussain. Both Rashid and

Nasir must have been in contact with the family members of the deceased

Mazhar Hussain and, therefore, it would be highly unnatural on the part of

Rashid to have retained a murder weapon in his house with the empty fired

shell in it.

22. With regard to the call records pertaining to the appellants Nasir and

Rashid, there is nothing unusual or abnormal about the calls and phone

conversations between the two, whether it be on 01.09.2005 or 02.09.2005

or on any other date because they are closely related. Nasir is the maternal

uncle of Rashid and it is natural for them to be speaking to each other even

on a day-to-day basis. From such conversations alone, it cannot be

inferred that they were entering into a conspiracy to kill Mazhar Hussain.

23. Consequently, we find that in this case, the prosecution has not been

able to prove or establish any motive. They have also not been able to

prove or establish any conspiracy between the appellants. The third

accused Javed has remained a fictional character and has not surfaced.

There is no evidence of any money having exchanged hands and the mere

alleged recovery of Rs 25,000/- from the house of Rashid is of no

consequence. The bullets found from the body of the deceased Mazhar

Hussain have not matched with the empty cartridges or the alleged weapon

of offence [katta (Exhibit P-2)]. The recoveries of the empty cartridges

and the katta are also not free from doubt.

24. For all these reasons, we are of the clear view that the prosecution

has not been able to bring home its case against the appellants. The

impugned judgment and / or order on sentence are set aside and the

appellants are acquitted of all charges.

25. The appellants be set at liberty forthwith. The appeals are allowed.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J JULY 25, 2011 SR/dutt