Delhi High Court

Mohd. Badal vs State on 22 March, 2011

Author: Badar Durrez Ahmed

           THE HIGH COURT OF DELHI AT NEW DELHI
%                                    Judgment delivered on: 22.03.2011

+            CRL.A. 202/1997

MOHD. BADAL                                       ...     Appellant

                                       versus
STATE                                             ...   Respondent

Advocates who appeared in this case:

For the Appellants       : Mr Sumeet Verma
For the Respondent/State : Ms Richa Kapur

                                       AND

+            CRL.A. 278/1997

MOHD. AKHTAR                                      ...     Appellant

                                       versus
STATE                                             ...   Respondent
Advocates who appeared in this case:
For the Appellants       : Mr Sumer Kumar Sethi
For the Respondent/State : Ms Richa Kapur

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 being decided by a common judgment

inasmuch as they arise out of the common judgment and order on

sentence dated 31.03.1997 delivered in Sessions Case No. 30/1990

arising out of FIR No. 77/1989 registered under Section 302/201/34

IPC at Police Station Saraswati Vihar.

2. Initially there were five accused, namely, Mohd. Akhtar,

Mohd. Badal, Mohd. Rumal, Mohd. Sabir and Mohd. Zuber. Charges

were framed against all the five accused under Section 302/34 IPC and

Section 406/34 IPC. Additionally, Mohd. Zuber was also charged with

the offence under Section 411 IPC. Initially the charges were framed

on 02.03.1990. However, subsequently, at the time of recording the

statement under Section 313 Cr. P.C, the learned Additional Sessions

Judge noted that the charge framed gave the wrong place of occurrence

and consequently charges were re-framed on 08.10.1996.

Consequently, the accused desired that some of the witnesses, namely,

PWs 1, 2, 11, 13, 15 and 16 be recalled for further cross-examination.

This request was allowed and the said witnesses were recalled for

further cross-examination. Thereafter, the statements under Section

313 Cr. P.C were recorded and the impugned judgment and order on

sentence was delivered / passed.

3. By virtue of the impugned judgment, Mohd. Sabir and

Mohd. Zuber have been acquitted of all charges. Mohd. Akhtar, Mohd.

Badal, Mohd. Rumal were convicted under Section 302/34 IPC and in

place of the offence as charged under Section 406/34 IPC, the said

three accused were convicted under Section 379/34 IPC. Insofar as the

offence under Section 302/34 is concerned, the three convicts were

imposed a sentence of life imprisonment along with a fine of ` 1,000/-

each and in default, they were to serve a sentence of six months

rigorous imprisonment each. Insofar as the offence under Section

379/34 IPC is concerned, each of the three convicts was required to

undergo rigorous imprisonment for one year.

4. The three convicts, that is, Mohd. Akhtar, Mohd. Badal and

Mohd. Rumal, filed separate appeals being Crl. A. Nos. 278/1997,

202/1997 and 256/1997, respectively. Insofar as Mohd. Rumal is

concerned, his appeal (Crl. A. 256/1997) was disposed of by another

Bench of this Court on 19.04.2010 inasmuch as the appellant was not

present and nobody was appearing on his behalf. The Court noted that

the appellant was perhaps not interested in pursuing the appeal

inasmuch as he had been prematurely released after having spent over

fourteen years in custody upon the recommendation of the Lieutenant

Governor. In those circumstances Mohd. Rumal‟s appeal was disposed

of on 19.04.1010. We are, therefore, left with the present appeals

which have been filed by the convicts Mohd. Akhtar and Mohd. Badal.

5. The prosecution case, as noted by the learned Additional

Sessions Judge, is as under:-

"(i) Deceased Raj Kumar was running a video-library at his house No. 505/292, Sri Nagar, Delhi, and he used to lend T.V. and Video on hire.

(ii) On 20. 2.1989 at about 9.30 p.m. accused Akhtar, Badal, Rumal and Sabir went to the house of Raj Kumar to hire T.V, Video and cassettes of two films, namely, Wardi and Surya.

(ii) Raj Kumar left with the equipment and cassettes in a rickshaw and installed the same in a room on the second floor of house No. A-519, J. J. Colony, Shakurpur.

(iv) The room had been taken on rent a month earlier by the accused from PW 13 Angoori Devi.

(v) The accused invited Meer Singh (PW 11) and Pappu (PW16), husband and son of the landlady, to see the films in their room.

(vi) After installation of TV and video in the room of the accused, Raj Kumar came to his house for dinner and after dinner he returned again to the room of the accused.

(vii) Meer Singh and Pappu watched TV till 2.30. a.m and then they retired to sleep leaving the deceased and the four accused in their room.

(viii) On Waking up next morning, Meer Singh and Pappu found that the tenanted room was empty and four accused had disappeared.

(ix) When Raj Kumar did not return home, his brother Subhash and Ramesh (PW1) searched for him and when they could not trace him, they lodged missing report at 7.15 p.m on 21.2.89 at P.S. Saraswati Vihar.

(x) On 22.2.89 at 7. 36 a.m. an information was received at P.S. Saraswati Vihar that a gunny bag was lying near DDA Office at Road No. 43, Britannia Chowk. This information was entered at DD No. 2-A and assigned to ASI Sultan Singh.

(xi) ASI Sultan Singh reached the spot and found a gunny bag lying in the naala (drain). The gunny bag was checked and the dead body of Raj Kumar was found in it. The body was identified by brother of the deceased.

(xii) The postmortem was conducted by Dr. L.K. Baruah (PW 5) at 4.30 p.m. on 22.2.89 and then it revealed that the death had occurred due to strangulation 36-40 hours earlier.

(xiii) On 4.4.89 accused Akhtar, Badal, Rumal and Sabir were nabbed in their jhuggi at Jamuna Pushta and the stolen video machine and cassettes were recovered from them.

(xiv) The four accused were interrogated and they led to C-43, Nathu Colony, Shahdara where accused Zuber was living as tenant. The stolen T.V. was produced by Zuber."

6. The learned counsel appearing on behalf of the appellants

submitted that the aforesaid prosecution version is sought to be

established on the basis of the testimonies of PW11- Meer Singh and

PW16 - Pappu, who are said to be witnesses who last saw the deceased

Raj Kumar alive in the company of the appellants at about 2:30 am in

the early hours of 21.02.1989. The learned counsel for the appellants

further submitted that the prosecution story also seeks confirmation

from the alleged recoveries made at the instance of the appellants. It is

alleged by the prosecution that a VCR, which belonged to the deceased

Raj Kumar, was recovered from the appellant Akhtar and that two

video cassettes of the Hindi films „Vardi‟ and „Surya‟, which belonged

to the deceased Raj Kumar, were recovered at the instance of Mohd.

Rumal. Insofar as the appellant Mohd. Badal is concerned, it is alleged

that the TV of Crown make was recovered from the residence of the co-

accused Mohd. Zuber at the instance of the appellant Mohd. Badal.

The prosecution also sought corroboration from the testimonies of PWs

1 and 2, who are the brother and brother-in-law of the deceased Raj

Kumar insofar as the hiring of the TV, VCR and video cassettes and the

deceased Raj Kumar leaving with three of the accused persons, are

concerned. The prosecution has also relied on the fact that the

appellants had refused to undergo the Test Identification Parade in

which they were to be identified by PWs 1 and 2.

7. According to the learned counsel appearing on behalf of the

appellants the prosecution has not, at all, been able to establish the fact

that PW11 and PW16 last saw the deceased Raj Kumar in the company

of the appellants. They also contended that the recoveries are not free

from doubt. Insofar as the appellant Mohd. Badal is concerned, the

recovery stands disproved in view of the fact that the trial court itself

did not accept the recovery of the TV set from the residence of Mohd.

Zuber. Therefore, the allegation that Mohd. Badal led the police party

to Zuber‟s residence, who produced the TV, also does not get

established. Insofar as the appellant Mohd. Akhtar is concerned, the

learned counsel for the said appellant submitted that the recovery of the

VCR, which was allegedly at the instance of the said appellant, is not

free from doubt. As such, the learned counsel for the appellants

contended that the circumstances of last seen evidence and the

recoveries were themselves on very shaky grounds and, therefore, there

is no way that the appellants could have been convicted for the offences

for which they were convicted by the learned Additional Sessions

Judge.

8. The learned counsel for the State supported the trial court

decision on all fours. She submitted that PWs 1 and 2 had clearly

stated in their depositions that they had seen the three persons which

included the appellants, who had come to the residence of the deceased

Raj Kumar for the purposes of hiring the TV set, VCR and the two

video cassettes and that they had seen Raj Kumar leaving with them in

a rickshaw for the purposes of installing the same at their residence.

According to the said witnesses, this was around 9:30 pm on

20.02.1989. The learned counsel for the State also submitted that the

trial court has correctly accepted the testimonies of PW11 and PW16 as

the last seen evidence. She further submitted that the recoveries also

stood established both from the appellant Mohd. Akhtar as well as the

appellant Mohd. Badal and that the trial court arrived at the correct

conclusion, on the basis of the last seen evidence as well as on the basis

of the recoveries, that the appellants were guilty of the offence under

Section 302/34 as well as the offence under Section 379/34 IPC. She

contended that no interference is called for and that the decision of the

learned Additional Sessions Judge, both on conviction as well as on

sentence, ought to be confirmed by this Court.

9. It is clear from the above resume that the case against the

appellants rests entirely on the last seen evidence and the recoveries. If

one of these elements is missing and does not stand established, then

the case against the appellants cannot be said to have been proved

beyond reasonable doubt. Let us first take the case of Mohd. Badal.

Insofar as he is concerned, it is stated that he led the police party to the

residence of Mohd. Zuber and it is at the instance of Zuber that the TV

set is said to have been recovered. We find from the impugned

judgment itself that the learned Additional Sessions Judge has

disbelieved the prosecution version insofar as the recovery of the TV

set from Mohd. Zuber is concerned. When this is the case, we fail to

see as to how the learned Additional Sessions Judge could have foisted

the recovery of the TV set on the appellant Mohd. Badal. The

consequence of this discussion is that the alleged recovery of the TV

set at the instance of the appellant Mohd. Badal has not, at all, been

established and, therefore, insofar as the appellant Mohd. Badal is

concerned, there is no recovery at his instance. In the context of

recoveries, we may also point out that it is PW16 Pappu, who is said to

have accompanied the police party at the time of alleged recoveries.

Initially, PW16 Pappu tended to support the prosecution version.

However, after his recall, in his cross-examination he resiled from his

statement with regard to the recoveries and he was also cross-examined

by the learned Additional Public Prosecutor as he had resiled from his

earlier statement. In his cross-examination he categorically stated that

he was taken to the police station and his signatures were taken on

some papers and he was made a witness by the police. He further

stated that he did not go anywhere in the police van and that no article

was recovered by the police in his presence. He further stated that

police did not recover any VCR or TV or cassette in his presence.

Ultimately, he stated that he did not know anything about the case. As

pointed out above, he was cross-examined by the Additional Public

Prosecutor and he stated that he knew that one should make a true

statement in Court and that the statement being made on that day was

true while the statement made by him earlier was made under the

influence of the police. He denied the suggestion that he had been won

over by the accused. It is noteworthy that this witness had come to

depose from jail as he was implicated in some other murder case.

10. PW23 ASI Mahinder Singh is supposed to be a recovery

witness. According to him, in his examination-in-chief, the accused

Zuber produced a TV of Sonyo make and a VCR from his house. The

seizure memo of the TV was marked as Exhibit PW16/G and the

seizure memo in respect of the VCR was Exhibit PW16/F. Since this

statement was not in accord with the seizure memo, the Additional

Public Prosecutor had sought permission to cross-examine the witness

and upon such cross-examination, this witness stated that he did not

remember if the VCR was produced by Mohd. Akhtar from below a

bed-sheet in his jhuggi at Yamuna Pusta. But that, after reading the

contents of PW16/F, he recollected that the VCR was recovered from

the jhuggi of Mohd. Akhtar. This witness has importantly stated that

the video cassettes of the films were easily available in the market and

that the number of the TV was not mentioned in the recovery memo

and that TVs of the same make are also available in the market.

11. From the above, it is clear that there were two witnesses to

the recovery. One was PW16 - Pappu and the other was PW23 - ASI

Mahinder Singh. Insofar as PW16 Pappu is concerned, he has

completely resiled from his earlier statement and has stated that no

recoveries were made in his presence. PW23 ASI Mahinder Singh is

also ambivalent about the recovery of the VCR from Mohd. Akhtar.

This aspect has already been mentioned above. Therefore, we are of

the view that the recovery of the VCR at the instance of Mohd. Akhtar

has also not been established beyond reasonable doubt.

12. We now come to the last limb of the case and that is with

regard to the last seen evidence. On going through the testimony of

PW11 Meer Singh, we find that he has not mentioned the name of the

deceased anywhere, either in his examination-in-chief or during his

cross-examination. On the contrary, he has referred to the person who

allegedly brought the TV, VCR and cassettes as "a servant" of the shop

keeper. He has also not identified the deceased as being that person

whom he had referred to as the servant of the shop keeper. Therefore,

PW11‟s testimony cannot be regarded as a part of the last seen

evidence because he has not identified the person whom he last saw in

the company of the accused. Apart from this, PW11 has also

contradicted himself by saying that after he took his meal at about 9:30

pm on 20.02.1989, he went to sleep and woke up only after 11 am the

next morning. This completely contradicts the prosecution version of

PW11 having seen the deceased Raj Kumar in the company of the

accused persons including the appellants at about 2:30 am. We may

point out that this witness has stated that he had informed the police on

the day the dead body of the deceased Raj Kumar was discovered, that

is, on 22.02.1989 but we find from the evidence on record that there is

no such information available with the police on that date. In fact,

PW11 made his statement only on 05.03.1989, that is, after 12 days of

the incident.

13. Insofar as the PW16 is concerned, we have already stated

that he completely resiled from all his statements to the extent that he

stated that he did not know anything about the case and that the earlier

statements made by him, which tended to support the prosecution, were

made under the influence of the police. Apart from this, we find that

PW16 Pappu has contradicted his father PW11 Meer Singh on several

counts. One of the counts being that Meer Singh stated that his wife

had gone to Rajasthan whereas PW16 Pappu states that his mother was

present on that date. PW16 Pappu also stated that he did not tell police

anything because of fear, but he does not explain as to why after

several days he made the statement before the police. In fact, the

learned counsel for the appellants had placed reliance on a Supreme

Court decision in the case of Surinder Singh v. State of Punjab: 1989

SCC (Crl) 649, where the Supreme Court, in a similar situation,

rejected the testimony of one of the witnesses who did not inform the

police in the first instance on the ground that he had been threatened by

the accused and subsequently after a few hours, he informed the police.

The Supreme Court questioned the veracity of the testimony of the said

witness in the following manner:-

"If he was so frightened at that time to go and tell others about the occurrence, it is not known how he was able to get over his fears a few hours later and go and inform PW3 and others about what had happened."

Similarly, in the present case, there is no explanation as to what made

PW16 Pappu overcome his so-called fears and to make the statement

before the police. In any event, this witness has completely resiled

from his statements and, therefore, cannot be relied upon for the

purposes of convicting the appellants.

14. We also note that the trial court took note of DD No. 13-A,

which is a document which has been marked „A‟ and which is the first

statement made by PW2 Subhash reporting the fact that his brother Raj

Kumar was missing. In that statement, we find that PW2 Subhash has

not made any mention about the accused or about any persons coming

to the residence of Raj Kumar for the purposes of hiring of the TV set,

VCR and video cassettes. It is only stated that Raj Kumar had gone

somewhere to install the VCR and TV and that he suspected nobody.

15. The trial court has noted these facts in paragraph 7 of the

impugned judgment as under:-

"7. My attention has been drawn to Mark-A , which is the copy of DD No. 13-A dt. 21.2.89. This DD entry was made at 7.15 p.m. on the report of PW 2 Subhash Chander. The story of three boys having come on the previous night does not find mention in DD No. 13-A. It simply states that on 20.2.89 at 9. 30 p.m. Raj Kumar had gone to install VCR and Colour TV somewhere. It does not say that three boys had themselves come to hire TV and VCR. Rather the information i.e. Subhash says that he does not have suspicion on anyone. Even in the FIR Ex. PW 6/A which was registered on the statement of Subhash, the description of the boys is not given. The omission, according to ld. counsel for the accused, indicates that the accused were framed in the case. I see no substance in the argument. The story that was given by Subhash at the first opportunity on 21.2.89, was not in any manner inconsistent with the version developed later. It is another thing that the Duty Officer did

not care to record all the details. As a matter of fact, PW 2 Subhash may not have even imagined on 21.2.89 that his brother had been murdered. He had gone to the police station to lodge a missing report and that appears to be the reason why he confined himself to making a missing report. No fault can be found with the prosecution case, if Subhash did not elaborate at the earliest stage."

However, we do not find ourselves in agreement with the conclusions

arrived at by the learned Additional Sessions Judge. When PW2

Subhash‟s brother had gone missing, it was all the more reason to give

all details so that his brother could be located. We do not agree with

the manner in which the learned Additional Sessions Judge has brushed

aside the fact that DD No. 13-A does not contain any of the details

which had subsequently come in at a later stage in the statement

Exhibit PW2/A, which forms the basis of the ruqqa, after the dead

body was discovered. We may point out that the ruqqa was sent at

9:10 am on 22.02.1989. It is for this reason also that the refusal of the

Test Identification Parade by the appellants at the instance of PWs 1

and 2, would be of no consequence.