Mohd.Usman vs The State
2011 Latest Caselaw 2984 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment Reserved on: May 23, 2011
                   Judgment Delivered on: June 03,2011

+                  CRL.APPEAL NO.97/1999

       MOHD. USMAN                             ......Appellant
               Through:       Mr.Sunil Ahuja, Advocate.

                               Versus
       THE SATE                          ......Respondents
                   Through:   Mr.Pawan Sharma, Standing counsel,
                              with
                              Mr. Harsh Prabhakar and Mr.
                              Kushagra Arora,Advocates.
       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?

SURESH KAIT, J.

1. In the instant case, the appellant was charged for committing murder of Nisar Ahmed by use of a razor on the intervening night of 23/24.07.1996 at about 11:45PM at DDA Forest near Mulla Colony, Gharoli, Delhi.

2. The Trial Judge found him guilty for the offence punishable under Section 302 IPC and has convicted him thereunder. Vide order dated 06.02.1999, the appellant has been awarded sentence to undergo life imprisonment and pay a fine of ì5,000/- and in default to suffer further rigorous imprisonment for 3 months.

3. Being aggrieved and while challenging the aforesaid judgment and order passed by the Trial Judge, the appellant has filed the instant appeal.

4. On 24.07.1996, Police Control Room received an information about spotting of a dead body, which was transmitted to the Police Station, and registered vide DD No. 4A that a dead body of a male near Mulla Colony in DDA land. This DD was handed over to SHO of the concerned Police Station for investigation. Alongwith S.I. Khushal Singh and other staff he went to spot and found a dead body of a young man of about 28 years, lying on the ground with injuries on the neck, left eye, left arm and left hand. The dead body was bleeding from nose, ears and the wounds. Lot of blood was lying on the ground besides razor with a broken handle. A pair of Hawai chappal was also lying there. The dead body was identified as of Nisar Ahmed by the relatives of deceased.

5. Statement of Mohd. Salaam, S/o Mohd. Munna, R/o C-470, Mulla Colony, Gharoli Extension Delhi, was recorded, who stated that his father-in-law Abdul Gafoor and his family was residing in the same residence. Yesterday i.e. on 23.07.1996 at about 10:30PM, a distant relative of Abdul Gafoor, Usmaan S/o Abdul Salaam, R/o Mohalla Bukhara, Bijnor, U.P. i.e. the appellant came to the residence and took Nisar Ahmed s/o Abdul Gafoor on the pretext that they are going for strolling to Khoda Colony. Nisar Ahmed went with Usmaan for strolling. They waited for Nisar Ahmed but neither Nisar Ahmed nor Usmaan returned during that night. Next day in the morning at about 9:30am, he alongwith Abdul Gafoor and his elder son Abdul Gafaar went to Mulla Colony for searching. When, they just came out from Mulla Colony, he saw lots of people were gathered there in DDA

Forest, behind Mulla Colony. He alongwith Abdul Gafoor and Abdul Gafaar reached near the crowd and saw the dead body of Nisar Ahmed was lying there. There were injuries on neck, left eye and wounds, blood was profusing from there. Blood stained broken handle of „Ustra‟ and a blade was lying there. Two Hawai slippers of blue colour with two strips were also lying there.

6. He further stated that around seven years back, Nisar Ahmed murdered Abdul Salaam, father of Usmaan at Bijnor. In this connection, the police had arrested and sent him to Jail, who thereafter, after remaining in jail for a year was released on bail. Nowadays, he was staying in Mulla Colony. He suspected him that his real brother-in-law (saala) Nisar Ahmed was murdered by Usmaan with the revenge of the murder of his father. This statement was proved as Ex. PW-1/7A.

7. On the basis of this statement, IO prepared a rukka Ex. PW1/A and sent it through Constable Vijay Pal at 11:00AM and the rukka was registered vide DD No. 8A at 11:20AM. Accordingly, FIR no. 319/1996 Ex. PW-1/B was registered. Thereafter, police came into motion and did all rituals i.e. site plan, recoveries, calling of the photographers, crime team etc.

8. The prosecution has examined 16 witnesses. The statement of the accused was recorded under Section 313 Cr.P.C. No defence witness was examined.

9. PW-9 Ct.Rakesh Kumar deposed that on 26.07.1996 he was posted at P.S.Kotwali, Bijnor, U.P., on that date he was in charge and dealing with the records of the Police Station. The Delhi Police/IO of this case had come to his police station and enquired regarding the antecedents and previous records of deceased, Nisar Ahmed. On seeing the records, he had furnished information to Delhi Police that Abdul Salam PW-7

was murdered by Nisar Ahmed son of Abdul Gafoor, along with other accused. In this regard, the case under Crime No. 166/1988, under Sections 307/324/34 IPC was registered which was later on converted into 302 IPC due to the death of Abdul Salam. Nisar Ahmed was sentenced to life imprisonment by the Court of ADJ-II, Bijnor, U.P. on 16.12.1989.

10. PW-10 Ct.Ram Prasad deposed that he joined the investigation of this case and took the dead body to Sabzi Mandi Mortuary. Till the dead body remained in his custody, nobody tempered with the same. After the post-mortem, the doctor handed over to him a sealed pulanda along with sample seal which he deposited in malkhana through MHCM.

11. Now, we will discuss the relevant deposition on which the trial Judge has relied upon to reach the conclusion and the appellant was convicted under Section 302 IPC.

12. PW1 Dr. Ashok Jaiswal, who conducted autopsy of the body of the deceased Nisar Ahmed. Doctor found external and internal injuries and suffice would it be to state that the injuries do make out a case for muder.

13. PW-2 Babu deposed that the incident was of 23.07.1996. After about 10 days, the exact date he did not remember. He had gone with his brother Abdul Gaffar and told the police that the accused of this was Usmaan residing at Khureji Khas, which they confirmed. Thereafter, alongwith police staff went to Khureji near the Masjid where the accused was found sleeping on pavement. On their pointing out, he was apprehended and arrested and his personal search was conducted, which bears his signature at Sl. No. 2, which is Ex. PW2/A. He further deposed that pant, which the accused present in the court was wearing, was blood stained and the same was taken out, seized

and sealed vide memo Ex. PW2/B. The pant brought from Malkhana in a pulanda had been opened. Pant is Ex. P-3, which is the same. On the next day, on the disclosure of accused Mohd. Usmaan, accused led them to jungle of Gharoli near the boundaries of DESU i.e. Mulla Colony. He got recovered one shirt, which was blood stained and was sealed in a pulanda and was seized vide memo Ex. PW2/C at Sl. No. 1. He identified the shirt Ex. P-4. Accused did not lead the police party to any other place. Memo Ex. PW2/D bears his signature at point A.

14. In cross-examination he said that he could not tell the day when they came to know about the whereabouts of accused Usmaan. They had informed the police at about 8/8:30PM on that date regarding the whereabouts of accused. Accused was arrested at about 11:00PM. He went in a police vehicle. They stayed at spot for about 20-25minutes. He did not remember whether document was prepared at place where the accused was apprehended. No document was prepared by IO in Police Station even in his presence. He did not remember whether he signed any document on that day at the Police Station or at the place of apprehension of the accused. The next day at about 9AM, police brought accused at their house. No document was prepared at their house. Accused was not interrogated by the police at their house. They reached the jungle within 8-10 minutes. They, two brothers and some public persons accompanied the police to the jungle.

15. PW-4 H.C. Shahid Khan deposed that on 04.08.1996 he joined the investigation of this case alongwith Inspector S.P. Rana and went to Khureji Khas near the Masjid. Babu and Abdul Gaffaar were also with them and they pointed out accused Mohd. Usmaan, who was apprehended on his pointing out, who

was sleeping on „takhat‟. He was wearing a pant, which was blood stained. The same was taken into possession and sealed with the seal of SP and was seized vide memo Ex. PW2/B. He has identified the Pant Ex.P-3 which was taken out from the sealed pullanda. Further he deposed that the accused made a disclosure statement Ex.PW-2/E and thereafter pointed out the place where he had murdered Nisar Ahmed vide memo Ex.PW- 2/D. He got recovered a shirt while pointed out DDA vacant plot near Mullah Colony and from the bushes near the boundary of DESU, he got recovered the shirt Ex.P-4 which was blood stained and the same was sealed with the seal of SP and was seized. Personal search of the accused was Taken on 04.08.1996 vide memo Ex.PW-2/A. Seizure memo of the shirt is Ex.PW-2/C.

16. In the cross-examination he stated that it was intervening night of 3rd and 4th when he joined in raiding party, Babu and Gaffar were already present in the raiding party. The spot from where the accused was arrested was 7 Km away from the PS. No public witness was available at the place from where the accused was arrested. The area falls within the jurisdiction of P.S. Preet Vihar. SHO did not make any entry in the DD register at P.S. Preet Vihar before apprehending the accused or after the arrest. SHO procured a pant of the accused and after the seizure of the pant of the accused, the pant procured by the SHO was given to the accused. He could not tell as to who had brought the said pant and after how much time he brought the pant. However the pant was procured by the SHO from the place from where the accused was apprehended was adjacent to the main road near Masjid. There was a street-light. Accused was interrogated at the spot. No public witness was called to join. The spot from where the alleged shirt was recovered was

at the distance of 8 Km. from the place where the accused was arrested. Shirt was recovered at about 12:00 noon. No short notice of the alleged disclosure statement of the accused was made. The disclosure statement was recorded in exact words which were disclosed by the accused. Further he stated volunteered:"Jo Police ke matlab ka nahi tha wo IO ne apni bhasha me likha" Again said he means the first four line of Ex.PW-2/A, rest was recorded in the language of the accused. He denied to the suggestion that no disclosure was made by the accused. He further denied that accused was not arrested in his presence or that no pant and shirt were seized in his presence.

17. PW-7 Mohd.Salam has deposed that he was working as Beldar. His family along with his father-in-law were also residing in the same house. On 23.07.1996 at about 10.30 PM, accused, who was a relative of his father-in-law, namely, Abdul Gafoor, came to their house and took dinner at their house and thereafter, took Nisar Ahmed with him on the plea of stroll. Nisar Ahmed did not return in the night as he was also residing with them. Next morning, his father-in-law and his elder son went out in search of Nisar Ahmed. They traced the dead body of Nisar Ahmed in DDA Jungle, in the Mullah Colony, where a crowd was there. There were injury marks on his neck, left eye etc. and was bleeding. One „Ustra‟ (blood stained) which was broken, was also found nearby and a pair of chappal of the deceased was also found there. Nisar Ahmed, the deceased had killed earlier the father of accused Mohd.Usman and that is why to take the revenge, he murdered Nisar Ahmed. In the said murder case, deceased Nisar Ahmed was in jail and had come out of jail before this incident. The police recorded his statement Ex.PW- 7/A which bears his thumb impression at point A. He identified

the broken Ustra Ex.P-2 and Ustra Blade Ex.P-1. He also identified the pair of chappal Ex.P-3 along with the Ustra and Blade, as the same were found near the dead body of Nisar Ahmed. Pair of chappal belonged to Nisar Ahmed, deceased which PW-8 identified as Nisar Ahmed was using the said Chappal and PW-8 had seen him wearing. He had gone to the spot with others, where the dead body was found.

18. In his cross-examination, he stated that it is correct that he had not signed the seizure memo. He had also not identified the above case property in any TIP proceedings. It is correct that except the colour of the Chappal, there was no other specific mark of identification on it. It is correct that Abdul Gaffar has left India as he was employed at Saudia Arabia. He will come to India after about 1 year or he may extend his service visa for another 2 years. He was not in a position to call him from Saudia Arabia. He has denied the suggestion that he had not seen Chappal or Ustra and that he has falsely identified this property in the Court. He knew Mohd.Usman since childhood. He did not know as to when Nisar Ahmed was admitted to bail in the murder case. He did not know when he was convicted in the murder case. Mohd.Usman was residing with Babu PW-2 in Mullah Colony. Babu was the real brother of Nisar Ahmed. The house of Babu was at a distance of about 300 meters from their house. On the day of incident, accused had come to their house at about 8.00 PM. At that time, he and his children were present. Usman left their house at about 8/9.00 PM. After that day, he saw the accused for the first time when he was produced in the court form Tihar Jail to depose against him in this case. He had not gone to P.S. Kalyanpuri to lodge any report regarding deceased Nisar Ahmed. He did not know who

had gone to P.S. First time, his father-in-law, Gaffar Ahmed found the dead body at about 7.00 AM. Thereafter, his father-in- law went to P.S. to lodge the report and he returned with the police at about 9/10 AM. Thereafter, the police recorded the statement of the witness. On sealing the dead body, he got perplexed and returned to his house. The dead body was lying at a distance of about 300 meters from their house. He had not visited the spot of the dead body again. They were having good relations with Usman prior to 23.07.1996, but they were not on a visiting terms with Mohd. Usman. He did not know whether Abdul Gaffar and Babu were on visiting terms or not. He had not signed or put his thumb mark on any document on that date or thereafter. He denied the suggestions that the Mohd. Usman had not visited their house on 23.07.1996 nor took Nisar Ahmed with him. He denied the suggestion of deposing falsely being the relative of the deceased.

19. PW-13 HC Rishi Pal was posted as Malkhana Moharrar at P.S.Kalyanpuri. He deposed that Inspector S.P.Rana deposited 5 sealed pullandas in intact conditions which were entered at Sl.No. 2939 in Register No.19. On 25.07.1996 Inspector S.P.Rana deposited 3 parcels which were brought by Ct.Ram Prasad after post-mortem. Same were entered at Sl.No.2940 in the Register. On 04.08.1996 Inspector S.P.Rana deposited vide sealed parcel which were duly sealed as per entry No.2955. On 21.08.1996 vide RC No. 80/21 through Ct.Anil Kumar, the case property of this case was sent to FSL, Malviya Nagar in intact condition, who handed over copy of the receipt after depositing the case property. In cross-examination he stated that parcels deposited on 24.07.1996 by Inspector S.P.Rana remained with

him till 21.08.1996 and no parcel was taken out of the malkhana. He made the entries correctly in Register No.19.

20. PW-14 Inspector S.P.Rana deposed that on 24.07.1996, receipt of DD No.4A Ex.PW-14/A regarding the information of dead body he along with staff went to DDA vacant land near Mulla Colony and found a dead body lying there having injuries on the neck, hand and near the eyebrow. Mohd.Salam complainant met him there and his statement Ex.PW-7/A was correctly recorded. He prepared rukka Ex.Pw-11/A and sent the same through Ct.Vijay Pal to P.S. who got this case registered and brought back the FIR. Copy of FIR is Ex.PW-11/B. The ustra, Ex.P-1 and the handle of the ustra, pair of hawai chapel which was lying near the dead body were seized vide memo Ex.PW- 14/C. The earth and blood sample were lifted in a separate pullanda after sealing the same with the seal of SP and seized vide Ex.PW-14/D. The photographs of the scene of occurrence were taken which is Ex.PY-1 to PY-8. He prepared the site plan Ex.PW-14/E. The dead body was sent for post-mortem through Ct.Ram Prasad and Rajender Singh. He handed over the ustra(razor) pullanda for the opinion of the doctor at the time of post-mortem. The application for post-mortem is Ex.Pw-14/F (2 pages). Death report is Ex.Pw-14/G. Brief facts are Ex.PW-14/H. after the post-mortem the body of the deceased was handed over to Shahabuddin vide memo Ex.PW-8/A. Ct.Ram Prasad handed him over the clothes of the deceased and the blood sample and the sample seal which were duly sealed in pullandas after collecting the same from the post-mortem doctor which were seized by him vide memo Ex.PW-14/J. Thereafter the accused was arrested and his personal search was taken vide memo Ex.PW-2/A. Accused made a disclosure statement Ex.PW-

2/E and in pursuance of the same, got recovered his shirt Ex.P-4 which he was wearing at the time of crime. The shirt was sealed in pullanda vide memo Ex.PW-2/C. The said shirt of the accused is Ex.P-4. Pant of the accused which he was wearing was also seized vide memo Ex.PW-2/F. The case property was deposited in the malkhana and later on was sent to FSL, Malviya Nagar. Report of the same was received later on. Post-mortem report is Ex.PW-1/A. The FSL report is Ex.PW-14/K and L. The draftsman was requisitioned and he prepared the scaled site plain Ex.Pw- 14/M.

21. In the cross-examination he states that he received DD No.4A at about 8:00 AM. He reached Mulla Colony at 8:15 or 8:30 AM there was a huge crowd near the dead body. PW-7 Mohd. Salam was already present there he joined Abdul Gafur and Abdul Gaffar in the investigation at the spot. All the three were the relatives of the deceased. He tried to join independent witnesses but none agreed. He stayed at the spot till about 1:30 or 2:00 PM. All the three witnesses remained with him till then. The „ustra‟ was lying at the distance of about 3 paces away near the dead body. The blood was lying only near the dead body. Dead body was sent for post-mortem at about 2:30 or 3 PM. He received copy of FIR at about 12:15 noon. The accused was arrested on the intervening night of 4/5.08.1996. Gaffar and Babu came to the PS and informed him about the accused. They reached the PS at about 9:30 PM. He did not ask any other witness to join the investigation. The place of apprehension of accused was 6-7 Km away from the PS. Accused was apprehended from a populated area. None from the public assembled there. They stayed there for about one hour. The pant of the accused was seized at the spot and no other wearing

apparel was given to the accused to wear, at the spot. However, one cloth was provided to the accused at the PS. He did not remember as to who had brought the said cloth. He denied to the suggestion that no disclosure was made by the accused nor any pant or shirt was recovered at his instance or on his pointing.

22. Statement of accused was recorded under Section 313 Cr.P.C. Incriminating evidence was put to the accused. Accordingly, he replied as under:-

"Q. It is further in evidence against you that on the intervening night of 23/24-8-96, you visited the house of PW7 and took deceased Nisar Ahmed with you for strall, what have you to say? Ans. It is incorrect.

Q. It is further in evidence against you that on 5.8.96, you lead the police party to your house at Mohalla Bukhara Bijnore and got recovered a blood stained shirt and the same was seized vide memo Ex.Pw-2/C, what have you to say ?

Ans. It is incorrect.

23. As per the aforesaid question put to accused that on 05.08.1996, he led the police party to his house at Mohalla Bukhara, Bijnor and got recovered the blood stained shirt. Whereas, throughout the story of the prosecution is that the blood stained shirt was got recovered by the accused from the bushes near the DESU. PW-4 HC Shahid Khan deposed in examination-in-chief that he got recovered blood stained shirt while pointing out DDA vacant plot near the Mulla Colony and from the bushes near the boundary of DESU. PW-2 Babu also states that on the disclosure of Mohd. Usman, led the police party to the jungles of Gharoli, near the boundary of DESU Mulla Colony. He got recovered one shirt which was blood stained. Therefore, we note that the incriminating evidence regarding

the recovery of shirt was not put to the accused while recording statement under Section 313 Cr.P.C. Therefore, the appellant had no opportunity to answer on the seizure of shirt in question.

24. On the results of FSL, regarding pant and shirt, as per the case of prosecution the shirt was recovered on 05.08.1996 whereas the pant was recovered on 04.08.1996. As per the prosecution story, after committing murder, the accused left Delhi, went to his cousin brother at Bombay. He stayed there for 5-6 days. During his stay at Bombay, he had washed his pant. In spite, the group of blood i.e. „AB‟, as was of the deceased, has been determined. It creates strong doubt.

25. We note that none of the witness has identified that the pant and shirt recovered are the same, the accused was wearing on the day of committing murder. Here, we note that the appellant has given the answere in negative, as put to him u/s 313 Cr.P.C. as under:-

Q. It is further in evidence against you that at the time of your arrest a blood stained pant was seized from your possession and the same was seized vide memo Ex.PW-2/B, what have you to say ? Ans. It is incorrect.

In his defence, he replied as under:-

Q. Have you anything else to say?

Ans. I am innocent. My father was murdered by the deceased and since the case ended in conviction, I was not having any ill-will towards the deceased. After the death of Nisar Ahmed I was falsely implicated in this case due to suspicion and enemity to revenge the conviction of the deceased in the said case."

26. The trial Court has relied upon the motive of taking the revenge of the murder of his father by the deceased, found to be proved beyond doubt. The other judicial incriminating circumstances of the deceased having been seen last in the

company of the accused coupled with the recovery of the dead body from the place of occurrence and the weapon of offence carrying the blood of the group of the deceased and further corroborated by the recovery of the shirt having blood stains belonging to the group of the deceased as far off distant from the place of occurrence and at the instance of the accused manifestly and conclusively show that these facts are inconsistent with the innocence of the accused and incapable of any other hypothesis than that of the guilt of accused, and that the act must have been done by the accused and accused alone.

27. As the evidence of last seen is concerned, Mohd.Salam PW- 7 is the main witness, On perusal of the deposition of PW-7 Mohd.Salam, the accused came to their house and took dinner at their house, thereafter, took Nisar Ahmed, the deceased with him on the plea of a stroll. Only, this witness has deposed about the taking of dinner at their house. No other witness talked about the taking of dinner at the house of PW-7 Mohd.Salam. As per his deposition, the accused came at their residence at about 10.30 PM. We have perused the statement of Mohd.Salam which was recorded on 24.07.1996, the same is Ex.PW-7/A. On the said statement, the I.O. had sent a rukka. Accordingly, the FIR was got registered. In the said statement, he does not talk about the dinner being taken at their residence as was deposed in the Court.

28. On perusal of the post-mortem report Ex.PW-1/A. It reveals as under:-

M.L.C.

       4-Abdomen & Pelvis
       contents
       „e‟--stomach -contents
                   -Mucosa              pale

                      -Abnormal     smell Nil
                     -Small        NAD
                     -Large        NAD

       „g‟--Urinary Bladder   half filled

       „h‟--Rectum                  half filled

29. As per the aforesaid noting in the post-mortem report, the deceased, in fact either had not taken any food and if he had, he might have had very early, since the food found almost digested. Accordingly, the post-mortem report has ruled out the story of taking food at around 10 „o‟ clock in the night at the residence of PW-7 Mohd.Salam, as we note the time of death is coming around 11‟O‟ Clock in the night. The food could not be digested fully within a short span, if he had dinner with accused at about 10„o‟Clock in the night.

30. Mr. Sunil Ahuja, learned counsel appearing on behalf of the appellant has referred a case on last seen titled as Jaswant Gir Vs. State of Punjab (2005) 12 SCC 438 and a case of State of Goa Vs. Sanjay Thakran and Anr. (2007) II AD (Cr.) (SC) 145, wherein the Supreme Court has observed as under:-

"............In the absence of any other links in the chain of circumstantial evidence, it is not possible to convict the appellant solely on the basis of the last seen evidence, even if the version of PW 14 in this regard is believed......."

He has also relied upon a case wherein the issue of enmity was emerged in a case of Sudama Pandey and Ors. Vs. State of Bihar 2002 (1) CC Cases (SC) 47. Para 11 of the same reads as under :-

"..........In this case, all the witnesses examined on the side of the prosecution had strong enmity towards the appellant, two persons were previously murdered and both of them were related to the appellants. PW 5 and PW 8 examined on the side of the prosecution were the accused in these criminal cases.........."

31. The learned counsel has submitted that in the present case also PW 7 Mohd. Salam is a close relative of the deceased. The deceased had murdered father of the appellant, therefore, they had inimical relations, therefore, this witness cannot be relied upon. This witness being the informant of the crime and the FIR was lodged on the statement of the said witness, therefore, the evidence of this witness be discarded.

32. He further submits admittedly, in the instant case, the recoveries of the weapon of offence and shirt, are from the open space and was accessible place for all. The learned counsel for appellant has relied upon the case of Saleem Akhtar @ Mota Vs. State of Uttar Pradesh 2003 (2) JCC 678 and a case of Akhilesh Hajam Vs. State of Bihar 1995(2) CC Cases 122 (SC). Relevant para 11 of the said Judgment is reproduced herein under:-

As regards the seizure of blood stained iron angle on the basis of disclosure statement said to have been made by the appellant the same is also not free from doubt. According to the prosecution the appellant made the disclosure statement that he had kept the iron angle in the room concealed beneath the fuel wood which was used as weapon of offence but according to the statement of PW6 the witness of disclosure and seizure of the alleged iron angle the same was not found concealed beneath the fuel wood in the room but the iron angle was found in the verandah which is

an open and accessible place. Such a seizure from an open and accessible place can hardly be said to be a recovery on the basis of disclosure statement. It is therefore difficult to accept that the seizure of iron angle was on the basis of the disclosure statement made by the appellant. Even if the iron angle would have been recovered from a concealed place them also on the basis of this circumstance of recovery alone in the absence of any report of Serologist as to the presence of human blood on the same the conviction of the appellant could not be founded. Thus, in our considered opinion, the circumstantial evidence discussed above does not conclusively lead to the only irresistible conclusion that the appellant was the perpetrator of the crime and none else. The prosecution case does not travel beyond the realm of doubt, the benefit of which has to be given to the appellant.

45. He submits that the prosecution case does not travel beyond the realm of doubt, the benefit of which has to be given to the appellant.

46. Further, he strongly relied upon a case of this Court titled as Ashok Kumar Vs. State 1988 RCR (I) 325 Delhi. He has referred para 31 of this Judgment. In the aforesaid case, the accused was alleged to have taken possession of the Pyjama. The Prosecution case was that after the commission of the crime, the pant of the accused became blood stained. He discarded the said pant and wore the pyjama hanging on the peg. This was in between 6PM to 6.30PM on 23.08.1980, he was wearing the same pyjama, the prosecution wanted this Court to believe that for two days and two nights, the accused continued to wear this very pyjama, which is just not possible to believe.

47. In the aforesaid case, at the time of his apprehension and search, not a single pant was found on his person. It is not

believable that a person who travelled from Ghaziabad to Delhi to attend a criminal case would not be having a pant on his person particularly when he had no opportunity to spend his amount during this interval at Delhi.

48. Learned counsel for the petitioner submits that the instant case is a similar of the aforementioned case of Ashok Kumar Mishra (Supra). In the present case, the alleged murder was committed on the intervening night of 23/24-07-1996, thereafter, he left Delhi and reached Bombay, stayed with his cousin for 506 days at Bombay. During stay at Bombay he had washed his pant once He came back to Delhi and was arrested on 04.08.1996. As alleged on the recovery shown by the police that he was wearing the same blood stained pant continuously for almost twelve days. Therefore, the appellant is also entitled for the same benefit as was given in the said case of Ashok Kumar Mishra (supra).

49. On the other hand learned counsel for the respondent has relied on the case of Mahesh Chander Vs. State 2010 (3) JCC 2204 delivered by the same bench on 07.04.2010, wherein para 103 of the decision in Criminal Appeal No. 362/2001 decided on 10.08.2009 Arvind @ Chotu Vs. State. In the case of Mahesh Chandra (supra) no evidence was brought out to show that PW 3 was inimical towards the appellant and therefore did not deposed truthfully. However, in the instant case, it is emerged from the deposition of PW7 Mohd. Salam that they had inimical terms with the appellant and therefore the aforesaid case is also not relevant in the facts and circumstances of the instant case.

50. Even otherwise, our Bench has delivered a judgment on 22.02.2010 in a case of Bhupinder Kumar Vs. State in a criminal

appeal No. 390/2006, wherein we relied on AIR 1963 SC 1113 Prabhu Vs. State of Uttar Pradesh, wherein it was observed:-

"that the evidence of the last seen would be very shaky". "The recovery of ordinary object is treated as very weak evidence"As the motive of the murder is concerned that emerged from the statement of PW-7 that the accused has taken revenge of the murder of his father being committed by the deceased.

51. We are unable to digest that deceased, being the murderer of the father of the appellant, would go along with the appellant for strolling. It is also unbelievable that the relatives of the deceased with whom he was staying would allow the deceased to go for strolling with the appellant whose father was murdered by him.

52. As the third incriminating evidence relied upon i.e. last

seen. As we have discussed in the foregoing paragraphs, if the

aforesaid two incriminating evidence do not stand on its leg

then the third would have no meaning.

53. The forth incriminating evidence is recovery of blood stained pant and shirt of the appellant which he was wearing at the time of committing offence. On the recovery of the said pant and shirt, PW-2 Babu states that the accused at the time of arrest was wearing blood stained pant, the same was seized vide memo Ex.Pw-2/B. As per him, the accused was arrested on 04.08.1996 and on 5.08.1996 the accused got recovered one blood stained shirt which was seized vide memo Ex.PW-2/C. Whereas, in cross-examination, he could not tell the day when they had come to know about the whereabouts of accused Usman. He states that they informed the police at about 8/8:30

PM on that day. The accused was arrested at about 11:00PM. He did not remember whether he signed any document on that day at the police station or place of apprehension of the accused. Next day i.e. 05.08.1996 at about 9:00 AM police brought the accused at their house. No document was prepared at their house. Therefore, this witness is going round and round. On the other hand, PW-4 HC Shahid Khan states that shirt was recovered from the DDA vacant plot near Mullah Colony from the bushes near the boundary DESU. Personal search of the accused was taken place on 04.08.1996 vide memo Ex.PW-2/A and the seizure memo of shirt is Ex.PW-2/C.

54. In his cross-examination he states that it was intervening night of 3rd and 4th of August, 1996. When he joined the raiding party, Babu and Gaffar were already present in the raiding party, no public witness was available at the place from where the accused was arrested. The area falls within the jurisdiction of PS Preet Vihar. SHO did not make any entry in the DD register at the PS Preet Vihar, before apprehending the accused or after the arrest. SHO procured a pant of accused. However, the pant was procured by the SHO from the place where the accused was apprehended was adjacent to the main road near masjid. Again he said service road. There was street light. Spot from where the alleged shirt was recovered was at the distance of 8 Km. from where the accused was arrested. Shirt was recovered at about 12:00 noon.

55. PW-7 this witness is a witness of last seen. In his cross- examination he deposed that on the day of incident, accused came to their house at about 8:00 PM. Usman left their house at about 8:00 PM. After that he saw the accused for the first time when he was produced in the Court from Tihar Jail to depose

against him in this case. He had not gone to PS Kalyanpuri to lodge any report regarding deceased Nisar Ahmed. He did not know who had gone to PS Kalyanpuri. First time his brother-in- law Gaffar Ahmed found dead body at about 7:00 AM. Thereafter his father-in-law went to PS to lodge the report and he returned to PS at about 9/10 PM. He further states that they were having good relations with Usman prior to 23.07.1996 but they were not on a visiting terms with Mh.Usman. He could not tell whether Abdul Gaffar and Babu were on visiting terms or not with the accused. He had not signed or put his thumb impression on any document on that day or thereafter.

56. In regard to recovery of blood stained shirt which was recovered pursuance to the disclosure statement which is exhibited as Ex.PW-2/E. The learned counsel has raised the strong objection that the said disclosure statement was not of the accused. Thumb impression of the accused was taken on blank papers, thereafter, the police prepared papers and adjusted that thumb impression on the disclosure.

57. At this stage we directed vide order dated 04.05.2011 to counsel for the respondents/State to bring the case diary of the instant case. Accordingly, case diary was produced and handed over in Court to us on 19.05.2011.

58. The criminal Court holding an enquiry holding an enquiry for trial of a case is therefore empowered of sub-section (2) of Section 172 of Cr.P.C. to send for the police diary of the case and the Criminal Court can use such diary, not as evidence in the case, but to aid it in such enquiry or trial. But all reasons of Sub Section (3) of Section 172 cannot apply merely because the case diary is referred to the criminal Court, neither the accused or his agents are entitled to call for such diary nor are they

entitled to see it. If, however, the case diary is used by the police officer who has made it to refresh his memory or if the Criminal Court uses it for the purpose of contradicting as the police officer in the enquiry or trial, the provisions of Section 161 or 145 as the case may be, of the Indian Evidence Act would apply and the accused would be entitled to see the particular entry in the case diary which has been referred to for either of these purposes and so much of the diary as in the opinion of the Court is necessary to fully understanding of the opportunity so used. It is thus said that the bar against the production and use of case diary in an enquiry or trial in an offence and even this bar is a limited bar because in an enquiry or trial the bar does not apply if the case diary is used by the police officer for refreshing his memory or criminal court use it for the purpose of contradicting such police officer as was observed in a case of Khatri and Ors. Vs. State of Bihar 1981(3)SCR 145 in Mukund Lal Vs. Union of India and Anr. AIR 1989 SCC 144, wherein it was observed that court is empowered to call for relevant case diary and the Court can use the entries for the purpose of contradicting police officer as provided in Sub-section (3) of section 172 Cr. P.C.

59. On perusal it reveals that the thumb impression of the accused was taken approximately 3-4 inch down, and the police had taken the thumb impression of the accused on two statements. One is part of judicial file and another is lying in the case diary. Though, this document is not admissible in law of evidence but if any recovery is affected pursuance to this disclosure then the recovery part is admissible. The investigating authority has recovered one blood stained shirt of the accused which he was wearing at the time of committing the

murder of the deceased as alleged. We have perused the case diary of dated 4.8.1996 which reveals that the accused has confessed that he took the deceased on the pretext of strolling and reached to wine shop at Khoda Colony from there they purchased 3 of liquor. As per him he offered more in quantity to deceased whereas, he took in a less quantity and this session was continued upto 11/11.15 P.M. On a perusal of the post mortem report which was conducted on next day reveals that there is no indication of any alcoholic smell. It is clear from the disclosre statement that it was recorded on 4.8.1996. Thereafter, as per the case diary, the supplementary statement of Babu PW-2 under Section 161, HC Shahid Khan PW-4 and Abdul Gaffar was recorded.

60. The case diary of 15.9.1996 reveals that during investigations the I.O. had arrested the accused on the identification of the real brother of deceased Abdul Gaffar. The accused was arrested on 4.8.1996 and blood stained shirt and Pant were taken into police custody. Whereas, as per the prosecution story and evidence led that the bood-stained pant was recovered on 04.08.1996, on the day the accused was apprehended and pursuance to his disclosure, the blood stained shirt was recovered on 05.08.1996. This fact, creates great doubt on the recovery of Pant and shirt and further the determination of the blood-group of the deceased. As per the case diary the accused was arrested in front of the Masjid Khureji, Delhi. PW-4 HC Shahid Khan stated in his cross examination that the SHO procured the pant from the place from where the accused was apprehended, adjacent to the main road near Masjid again the said service road. The shirt was recovered at about 12.00 noon no short notice of the alleged

disclosure statement of the accused was made. The disclosure statement was recorded in exact words which were disclosed by the accused. Further, he volunteered "jo police ke matlab ka nahin tha who I.O. ne apni bhasha me likha" Thereafter, the thumb impression of the accused was taken on the disclosure statements it does not conspire the confidence that the said disclosure was of a accused it seems to be his thumb impression was taken on the blank papers and thereafter written as per their choice.

61. The learned counsel for the appellant submits that the recoveries were tempered, inspire no confidence. Reasons are obvious that PW-13 HC Rishipal, Malkhana Moharram states in his cross-examination that parcels deposited on 24.07.1996 by Inspector S.P.Rana PW-14 remained with him till 21.08.1996 and no parcel was taken from Malkhana. Further, he states that it is correct that SHO had taken the pullanda containing ustra for opinion of the doctor on 25.07.1996. It is correct that there is no entry in the register for taking out the ustra from the malkhana on 25.07.1996. It is correct that on 25.07.1996 two parcels were deposited by Inspector S.P.Rana PW-14 again. It is correct that there is no entry regarding taking out of ustra from the malkhana or re-depositing it in the malkhana in register No.19. It is also correct that entries are maintained only in register No.19, regarding the deposit of the property or taking out the property from malkhana. It is correct that on 04.08.1996 only one pullanda was deposited in malkhana. There is no other entry of the deposit of the case property in this case. It is correct that as per register No.19 the pullanda deposited on 04.08.1996 was not sent to CFSL. Vol. it was sent to FSL in the same RC No. vide which all the properties were

sent once, i.e. there is no separate endorsement against Sl.No.2955. It is correct that at the portion mark A of the register the details of the case property sent to FSL are not maintained.

62. On arrest, Inspector S.P.Rana states in cross-examination that accused was arrested on intervening night of 4/5.08.1996. Whereas, PW-4 HC Shahid Khan has stated in the cross- examination that it was intervening night of 3rd and 4th when he joined in raiding party, PW-2 Babu and Gafar were already present in the raiding party. The spot from where, the accused was arrested was 7 Km. away from the Police Station. Regarding the place of arrest, PW-2 Babu has deposed in his examination-in-chief, the accused was arrested while sleeping on pavement. Whereas, PW-4 HC Shahid Khan has stated in examination-in-chief that the accused was apprehended, on the pointing out of Babu PW-2 and Mohd.Gaffar who was sleeping on „takht‟ (wooden plank). Further he states that the pant of the accused was seized at the spot and no other wearing apparel was given to the accused to wear, at the spot. However, one cloth was provided to the accused at the PS. He did not remember as to who had brought the said cloth.

63. As regards the time the accused visited the house of deceased on 23.07.1996 at about 10:30 PM as was deposed by PW-7 Mohd. Salam in his examination-in-chief, whereas in cross-examination he states that on the day of incident, accused came to their house at about 8:00 PM and accused Usman left their house at about 8/9:00 PM.

64. Putting the curtain down, keeping the above discussionin view that in the present case, the evidence led is full of contradictions and doubts. It seems after going through record,

the seizures of pant and shirt of the appellant also creates doubt. It is also not a case of two views possible. Therefore, we are of a considered opinion that the prosecution has failed to establish the case against the appellant. Accordingly, we discharge the appellant from the charges against him and set aside the judgment and order of the trial Judge and acquit the appellant. His personal bond and surety bonds are discharged accordingly.

65. The appeal is allowed.

SURESH KAIT, J

PRADEEP NANDRAJOG, J

JUNE 2, 2011 „nk‟