Mohd. Yunus vs The State (Delhi)
2011 Latest Caselaw 4951 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Judgment delivered on 05.10.2011

+       CRL.A. 240/1997


MOHD. YUNUS                                        ...     Appellant


                                        versus


THE STATE (DELHI)                                  ...     Respondent

Advocates who appeared in this case:

For the Appellant         : Mr M. Shamikh
For the Respondent/State  : Mr Pawan Narang

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. This appeal is directed against the judgment dated 15.03.1997 delivered by the learned Additional Sessions Judge, Shahdara in Sessions Case No.79/1996 arising out of FIR No.741/1991 under Sections 302/34 IPC registered at Police Station Trilokpuri, whereby the present appellant Mohd. Yunus and the co-

accused Bobby Khanna (since deceased) were held guilty of having committed an offence punishable under Sections 302/34 IPC. The appeal is also directed against the order on sentence passed by the learned Additional Sessions Judge on the same date, that is, on 15.03.1997, whereby both the accused, namely, Bobby Khanna (since deceased) and Mohd. Yunus (the present appellant) were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs 500/- each and, in default whereof, to further undergo rigorous imprisonment for one month each.

2. It is relevant to note that both Bobby Khanna (since deceased) and the present appellant (Mohd Yunus) were faced with the following charge:-

"That on 17/12/91 at about 9.15 PM, in House No.D-86, Ganesh Nagar Complex, Pandav Nagar, within the jurisdiction of Police Station Trilokpuri, in furtherance of common intention of you both, committed the murder of Chanda, by causing her death and thereby committed an offence punishable U/s 302/34 IPC and within my cognizance."

"That on 17.12.1991 at about 9.15 p.m. in House No.D-86, Ganesh Nagar, Pandav Nagar within the jurisdiction of P.S. Trilokpuri, you both in furtherance of your common intention committed rape on the person of deceased Chanda and, thereby you both committed an offence punishable U/s 376/34 IPC and within my cognizance."

3. Both the accused were acquitted of the charge under Sections 376/34 IPC. However, as mentioned above, they were convicted under Sections 302/34 IPC for committing the murder of Chanda in furtherance of their common intention. Both the convicts had filed separate appeals. Mohd. Yunus filed the present appeal, whereas Bobby Khanna filed Criminal Appeal No.249/1997. However, during the pendency of the said appeals, co-convict Bobby Khanna died on 17.05.2006 and by virtue of the order dated 22.07.2010, on information of his

death being received by this court, Criminal Appeal No.249/1997 was declared as having abated insofar as Late Bobby Khanna was concerned.

4. The facts as narrated by the prosecution are that in the night intervening 17th and 18th December 1991, PW-19 (Inspector V.K. Gupta) was posted as the Station House Officer at Police Station Trilokpuri. On that day, the Duty Officer received a call from the Police Control Room that a quarrel had taken place in the area of Pandav Nagar and in this connection, D.D. No.49-B was recorded. Sub- Inspector Ajay Gupta was handed over the said D.D. for necessary action. On his departure to the said spot, D.D. No.56-B was recorded. In the meanwhile, the Duty Constable from the hospital also informed the Police Station wherefrom the said Sub-Inspector Ajay Gupta came to know that the accused (Mohd Yunus and Bobby Khanna) as well as the deceased Chanda had been removed to hospital. The said Sub-Inspector Ajay Gupta, alongwith Sub-Inspector Ajay Kumar, reached SDN Hospital after leaving Constable Harish to guard the spot. Both the accused were found unfit for making any statement. In the hospital, they found some relatives of the accused persons and one Shamshuddin (PW-6), who is the complainant. The statement of PW-6 (Shamshuddin) was recorded, wherein he stated that on 17.12.1991, when he was at his house, his daughter PW-1 (Shamim @ Baby), who was residing at Ganesh Nagar, came to his house and informed him that two persons had entered the house of Chanda Mausi and they had closed the door of the room from inside and some sounds of beating were heard from inside the room. Thereupon, PW-6 (Shamshuddin) alongwith his wife PW-22 (Naseem) and his daughter PW-1 (Shamim) arrived at his sister-in-law (Chanda's) house at about 9.15 p.m. at D-86, Ganesh Nagar Complex and found the door of

the room to be closed. According to the statement of PW-6 (Shamshuddin), he heard some sounds of beating coming from inside the room. When he knocked at the door and also asked for the door to be opened, nobody did so. Thereafter, he climbed onto the roof of the adjacent house and from there he saw that one person from the roof of Chanda's house had jumped. Later on, he came to know that the name of that person was Mohd. Yunus. He came down the stairs and entered Chanda's room and found that she was lying naked in an unconscious condition.

5. According to him, her Salwar and Shirt were torn and blood stained. Her brazier was also lying torn in the said room. One underwear of a male was also found lying in the room. As per the statement, Chanda was unconscious at that time and that both the persons, after seeing him, tried to run away from the stairs. According to him, one person, namely, Mohd. Yunus (the present appellant) tried to flee from the roof top of the house and, in doing so, he jumped and fell down and was thereafter apprehended with the help of the public. As per the said statement, the other person also tried to run away using the stairs, but he fell down. Thereafter, PW-6 (Shamshuddin), as stated in the complaint, opened the door of Chanda's room and his wife Naseem came inside the room and put clothes on the person of Chanda. According to him, Chanda was not dead at that point of time. The police is said to have arrived at the spot and they removed the injured Chanda as well as both the accused persons to the hospital.

6. After recording the aforesaid statement of Shamshuddin, PW-19 (Inspector V.K. Gupta) made his endorsement (Exhibit PW-19/A) and sent the same to the police station for registration of the case through Constable Satender Kumar and

after registration of the case, he received a carbon copy of the FIR (Exhibit PW- 16/A and Ruqqa at the spot. Thereafter, the said Inspector V.K. Gupta prepared the site plan (Exhibit PW-19/B). The crime team was called and the said crime team gave its report (Exhibit PW-19/C).

7. Subsequently, the clothes of the deceased alongwith certain other articles, such as an empty bottle of country made liquor, blood stained bed sheets, gadda, match box, a cap of a liquor bottle were seized as per Seizure Memo (Exhibit PW- 12/A). The clothes of the accused persons were seized as per Seizure Memos (Exhibit PW-12/B and 12/C).

8. Thereafter, further investigation was conducted, including the interrogation of the accused persons, who had, in the meanwhile, regained consciousness. The charge-sheet was filed in court and after committal, the learned Additional Sessions Judge framed the charges as mentioned above under Sections 302/34 and 376/34 IPC against both the accused persons. The accused pleaded not guilty and consequently, the trial ensued.

9. The prosecution has examined as many as 23 witnesses. The evidence against the accused persons were put to them and their statements under Section 313, CrPC were recorded. No defence evidence was led. As mentioned above, the learned Additional Sessions Judge acquitted the accused of the charge under Section 376/34 IPC while convicting them for the offence punishable under Section 302/34 IPC.

10. The prosecution case is based on circumstantial evidence. The key witness being PW-7 (Smt Shakuntala Devi), who was Chanda's tenant and was residing in the first floor of the said premises in which Chanda herself was residing on the ground floor. According to the prosecution, PW-7 (Shakuntala Devi) is the person who last saw Chanda alive in the company of the accused persons. She is also the person who reported this fact to PW-1 (Shamim @ Baby), who, in turn, is stated to have also arrived at Chanda's house, whereupon the accused persons ran away. It is then alleged on the part of the prosecution that PW-7 (Shakuntala Devi) left her house and returned only next morning to learn that Chanda had been murdered. As per the prosecution, PW-1 (Shamim @ Baby) had sent a person by the name of Vakeel to Chanda's house to know about her safety and when he reported that there were sounds of beating coming from the room, she went to her father PW-6 (Shamshuddin) who was in his house. Thereupon, as per the prosecution, PW-6 (Shamshuddin) alongwith his wife PW-22 (Naseem) and PW-1 (Shamim @ Baby) went to Chanda's house when they saw the scene as narrated in the statement of PW-6 (Samsuddin) which we have already referred to, in detail, above.

11. The learned counsel for the appellant took us through the testimonies of PW-1 (Shamim @ Baby), PW-3 Dr L.K. Barua (the doctor who conducted the post mortem examination on Chanda's dead body), PW-4 Dr Rajiv Grover (the person who proved the MLCs in respect of Bobby Khanna and Chanda, being Exhibits PW-4/A and 4/B, respectively), PW-5 Dr J.S. Purty (who proved the reports being Exhibits PW-5/A and PW-5/B, PW-6 Shamshuddin (who is the father of PW-1 (Shamim @ Baby) and who is said to have arrived at the scene alongwith his wife and daughter), PW-7 Smt Shakuntala Devi (Chanda's tenant,

who resided in the first floor), PW-9 Mehmood Khan (Chanda's brother), PW-21 ASI Kundan Lal (who is the police officer who removed all the three persons - the two accused and Chanda - to SDN Hospital), PW-22 Naseem (who is Chanda's sister and wife of PW-6 (Shamshuddin) and PW-1 Shamim @ Baby's mother), as also the other witnesses. He contended that the key witnesses PW-1 (Shamim @ Baby), PW-6 (Shamshuddin), PW-7 (Shakuntala Devi) and PW-22 (Naseem) have made contradictory statements and have thoroughly discredited themselves. He also submitted that the conduct of PW-1 (Shamim @ Baby), PW- 6 (Shamshuddin) and PW-22 (Naseem) is highly unnatural and this further casts serious doubts with regard to their presence at the scene. According to the learned counsel, PW-6 (Shamshuddin) and his wife and daughter did not, at all, see the appellant jumping from the roof, nor did they see Chanda lying unconscious in the room, nor were the three persons, namely, the deceased Chanda and the two accused persons, removed to hospital in their presence. It was further contended that PW-21 (ASI Kundan Lal) completely demolishes the testimony of PW-6 (Shamshuddin), PW-22 (Naseem) and PW-1 (Shamim @ Baby). It was also contended that in his Section 313 CrPC Statement, the appellant Mohd Yunus has clearly stated that he was picked up from the market and taken to the police station and from there to the hospital. According to the learned counsel, this explanation is also probable and that the appellant had been picked up by the police merely on suspicion and had been falsely implicated in this case.

12. Finally, the learned counsel for the appellant submitted that the prosecution has not been able to establish any motive for the alleged crime. He submitted that while it is true that in cases of ocular evidence, motive may not be a very

important circumstance, in the case of circumstantial evidence, the question of motive is of great importance. Consequently, the learned counsel for the appellant submitted that as the prosecution has not been able to prove its case, the appellant (Mohd. Yunus) is entitled to be acquitted of the charges against him.

13. Mr Pawan Narang, appearing on behalf of the State, fully endorsed the decision of the trial court insofar as the conviction of the appellant under Section 302/34 IPC was concerned. In addition, he submitted that it cannot be denied that all the three persons, namely, the deceased Chanda and the two accused, including the present appellant, were taken to hospital by PW-21 (ASI Kundan Lal). According to Mr Narang, this establishes the presence of the accused and, in particular, the present appellant at the spot. Apart from this, there is the testimony of PW-7 (Shakuntala Devi), who is stated to have last seen Chanda alive in the company of the accused, including the present appellant. Furthermore, according to Mr Narang, PW-1 (Shamim @ Baby), PW-6 (Shamshuddin) and PW-22 (Naseem), all arrived at the scene simultaneously and found Chanda to be unconscious in her room and PW-6 (Shamshuddin) had even seen the appellant Mohd. Yunus jumping from the roof and the co-convict Bobby Khanna lying on the floor of the room. Thus, according to the learned counsel for the State, the prosecution has been able to establish its case beyond reasonable doubt. Consequently, he submitted that the impugned judgment and / or order on sentence did not call for any interference by this court and that the appeal be dismissed.

14. First of all, let us examine the testimony of PW-7 (Shakuntala Devi), who has been presented by the prosecution as a witness who last saw Chanda alive in

the company of the accused, including the present appellant. According to PW-7 (Shakuntala Devi), on the fateful day, at about 6/7 p.m., she was cutting vegetables in her house when she heard the call bell ringing and saw two persons standing on the ground floor of the house. She also stated that she was a tenant in the first floor and her land lady (Chanda) used to reside in the ground floor. According to her, the two persons had asked her to open the door but that she had objected as it was 7.00 p.m. in the evening. The two persons insisted that they had come to see Chanda Baji (sister). She then stated that those two persons were the accused present in court. She further stated that the said two persons told her that they had come to collect their passports from Chanda and on their insistence she opened the door and thereupon they met with Chanda and talked with her. Thereafter, she went upstairs in her room and did not hear the conversation between Chanda and the said two persons.

15. PW-7 (Shakuntala Devi) further stated that on suspicion, she called the neighbour, namely, Bibia, who was Chanda's sister's daughter and that she had informed the said Bibia that two persons were in Chanda's room. As per her testimony in examination-in-chief, PW-7 (Shakuntala Devi) stated that thereafter she left her house and did not know what happened subsequently. According to her, she left her house to meet her sister at Shakarpur at about 7.00 p.m. and returned the next morning when she came to know that Chanda had been murdered.

16. Thus, according to this witness, the accused had come to see Chanda at 7.00 p.m. At first, she was not opening the door, but on their insistence, she opened the door and thereafter, they met with Chanda and had a conversation with

her. She became suspicious and informed Chanda's sister's daughter Bibia about the said visit by the said two persons. Thereafter, she left her house at about 7.00 p.m. and only retuned the next morning to find out that Chanda had been murdered. In her cross-examination, she revealed that at the time when the accused paid a visit to Chanda, the latter was under the influence of liquor and that she did not know whether Chanda was conscious or not, but she was talking with the accused. She further stated that she had seen Chanda consuming liquor on several occasions. She further revealed that she had gone to the house of Baby on foot with her three children and from outside Baby's house, she hired a three wheeler scooter rickshaw and left for her sister's house. She also made it clear that her husband went directly to her sister's house and did not visit their house at night. She then stated that she had seen "Yusuf" (the name of the appellant is actually "Yunus") at Chanda's house only once about 3-4 months prior to the incident and on that occasion he had come during the day and on that occasion he had stayed there hardly for 5-10 minutes. PW-7 (Shakuntala Devi) further revealed in cross-examination that her statement was recorded not in front of her house in the gali, but in the police station and at that point of time both the accused persons were present there. The learned counsel for the defence had confronted PW-7 (Shakuntala Devi) with various portions of her statement (Exhibit PW-7/DA) inasmuch as what she had stated before court was at complete variance with her said statement before the police. It was full of improvements and a completely different story had been set up. Interestingly, she stated in her cross-examination that "as far as she could recollect this incident took place during summer season". It is pertinent to note that the date of the offence, as per the charge is 17.12.1991 which happens to be during the winter season.

17. In her statement (Exhibit PW-7/DA), she had stated that on 17.12.1991 in the evening at about 7.00 p.m., when she was present at her house, upon hearing a "knock" at the door, she had come down and unbolted the door and found two persons standing who entered the house and went to the room of Chanda. At that time, Chanda was in a drunken state and she was in an inebriated condition. PW- 7 (Shakuntala Devi) asked them to go from there whereupon they told her that they were Chanda's brothers and they would not leave. They forcibly sat there and threatened her. Immediately thereafter, she (Shakuntala Devi) went to Chanda's niece's house who was residing a little ahead of Hanuman Temple and she apprised her of the facts. She, alongwith Baby, returned to Chanda's house whereupon both the persons fled therefrom. Thereafter, Baby went back to her house and she (Shakuntala Devi) bolted the door from inside and went to her room on the first floor. After a short while, someone knocked at the door from outside and she (Shakuntala Devi) came out of her room and saw that Chanda had opened the door and both the persons again went into Chanda's room and sat there. When she (Shakuntala Devi) asked them to go away from there, they threatened to kill her. She (Shakuntala Devi) closed the door of her room and went "again" to Baby to inform her and after telling her everything, went to her "father's" house at Laxmi Nagar. It is further stated that today (18.12.1991, i.e., the date on which her statement was recorded) when she returned to her house, she found the police officer alongwith other people and both the persons, who had come at night, namely, Mohd. Yunus and Bobby Khanna, whose names were known later on. She also stated that she came to know from the police officer that Chanda had been killed by these two persons at night.

18. It is apparent that her statement (Exhibit PW-7/DA) recorded under Section 161 CrPC is at complete variance with her testimony in court. First of all, in her testimony in court, she had taken the name of Chanda's niece as Bibia, whereas in Exhibit PW-7/DA, she has referred to her as Baby. Secondly, in court, she has testified that the accused persons rang the door bell, whereas in Exhibit PW- 7/DA, she has stated that the accused had knocked on the door. Thirdly, in Exhibit PW-7/DA, she has stated that the two persons forcibly entered the room, whereas she has not so stated in court. Fourthly, she stated in Exhibit PW-7/DA that she had gone to Baby's house twice, whereas in her testimony before court, she has stated that she went to Baby's house once. Fifthly, she has stated in Exhibit PW-7/DA that from Baby's house, she had gone to her father's house at Laxmi Nagar, whereas in her testimony before court, she has stated that she had gone to her sister's house at Shakarpur. Apart from these specific variations, the entire story, as appearing in Exhibit PW-7/DA and in her testimony before court, is completely different.

19. In view of the foregoing, not much, if at all any, credence can be placed on the testimony of PW-7 (Shakuntala Devi).

20. Now, let us examine the testimonies of PW-1 (Shamim @ Baby), PW-6 (Shamshuddin) and PW-22 (Naseem). PW-1 (Shamim @ Baby), in her examination-in-chief, has stated that on the date of the incident at about 6.00 p.m., she had gone to Chanda's house to bring some articles and at that point of time, she saw both the accused persons outside the house on the road. She met Chanda and brought one blanket and one attaché case as her husband was to go out of station. We can notice, at this juncture itself, that this is at variance with the

prosecution case because the prosecution case is that PW-1 (Shamim @ Baby) had gone to Chanda's house only after she had been called by PW-7 (Shakuntala Devi). It was also stated by PW-7 (Shakuntala Devi) that Chanda was completely intoxicated and inebriated as she had consumed liquor. This fact is not mentioned by PW-1 (Shamim @ Baby). Even the medical report suggests that Chanda had consumed liquor.

21. Furthermore, PW-1 (Shamim @ Baby) stated that it was about 7.30 p.m. when Chanda's tenant came to her house and told that she should immediately accompany her to Chanda's house as 'Ishu' had come and, at that point of time, PW-1 (Shamim @ Baby) pointed towards "accused Yusuf" (sic, possibly referring to the appellant Mohd. Yunus). She then stated that she went alone to Chanda's house and, on seeing her, both the accused persons ran away from there. So, she returned to her house. She then stated that she had gone to Trilokpuri to call her mother and then sent a boy named Vakeel to Chanda's house and he returned and told her that Chanda was being beaten by someone and that the door of Chanda's house was closed. According to her, she again sent him to Chanda's house and Vakeel once again returned and told her that the persons inside Chanda's house, who were beating her, were sharpening something. At this juncture, we may point out that the said boy named Vakeel has not been produced by the prosecution.

22. PW-1 (Shamim @ Baby) further stated that she then called her mother and father from Trilokpuri and the three of them went to Chanda's house. According to her, the house was bolted from inside and someone asked as to who they were.

Then, her father went inside the house from the adjoining house and he opened the door of Chanda's house. She saw Bobby Khanna lying on the floor and "Ishu" (Yusuf) jumped from the back wall and that he was apprehended by her father. Bobby Khanna was also apprehended and Chanda was lying on the bed. She was bleeding and lying unconscious. Her clothes were blood-stained. The clothes of Bobby Khanna were also blood-stained.

23. In cross-examination, PW-1 (Shamim @ Baby) has stated that Chanda was her mother's sister and that she used to live separately and the distance between Chanda's house and the house of PW-1 (Shamim @ Baby) was about 15-20 minutes on foot. She stated that she had gone to Chanda's house on the day of occurrence at about 5.00 p.m. and the tenant was also in the house alongwith a couple of children. She, however, did not remember their names. She stated that she stayed there for 5-10 minutes. With regard to Chanda's drinking habits, she stated that Chanda used to consume liquor sometimes, though, according to her, she was not a habitual drinker and that, importantly, on the day of occurrence, she had not consumed any liquor. She further stated that she had come to know of the name of "Yusuf" earlier, but had seen him for the first time on that day at about 9- 9.15 p.m. She further stated that the lady tenant had come to her house and told her that "she should come quickly as Yusuf had come". She stated that she went with the said tenant on foot. It has further been elicited from her that her father PW-6 (Shamshuddin) lived far away and that it took about half an hour to reach his house by rickshaw. She further stated that she reached Chanda's house around 6.30 p.m. and at that time Chanda was alone and was not drunk. In fact, according to PW-1 (Shamim @ Baby), Chanda was sleeping at that time and that

she had no conversation with her and that she returned to her house after advising the lady tenant to close the door from inside. She then stated that at around 8.30 p.m., she had gone to call her parents and that her parents came to Chanda's house by rickshaw. She further stated that when they reached Chanda's house, there was no crowd. The lady tenant was also not there as the assailants had threatened her to leave the place. According to PW-1 (Shamim @ Baby), PW-7 (Shakuntala Devi) had told her about this at about 8.00 p.m. when she was at home. It has also been elicited from her in cross-examination that between her visit of 6.30 p.m. and the visit alongwith her parents, she had not gone to Chanda's house and that it was only the boy Vakeel who had been sent to Chanda's house twice.

24. Pausing here, it must be noted that the timings given by PW-1 (Shamim @ Baby) do not, at all, match the timings given by PW-7 (Shakuntala Devi). It is also to be noted that PW-7 (Shakuntala Devi) made no mention of the visit of Shamim @ Baby at about 5.00 p.m. PW-1 (Shamim @ Baby), as mentioned above, stated that the lady tenant, namely, PW-7 (Shakuntala Devi) had told her at about 8.00 p.m. that the assailants had threatened her to leave the place. This is also at variance with the testimony of PW-7 (Shakuntala Devi). First of all, PW-7 (Shakuntala Devi) did not testify about this aspect of the matter. Secondly, PW-7 (Shakuntala Devi) could not have told anything to Shamim @ Baby at 8.00 p.m., as, according to PW-7 (Shakuntala Devi) herself, she had left for her sister's place / father's place at 7.00 p.m. itself. It is also to be noted that while PW-7 (Shakuntala Devi) stated that Chanda had consumed liquor and was intoxicated, PW-1 (Shamim @ Baby) has stated just the converse.

25. Continuing with the testimony of PW-1 (Shamim @ Baby), we find that she has stated in her cross-examination that she did not know if the door of Chanda's room, which opened onto the road, was bolted from inside or not. Then she positively stated that it was bolted from outside. However, she corrected this by stating that the door was bolted from inside and not from outside. She stated that her father had gone inside the room after taking a ladder from a neighbor and opened the door from inside. She further stated that when her father shouted "chor-chor"(thief-thief), then some people from the neighborhood came to the spot and "Yusuf" had jumped from the back of the house. She, however, admitted that she was standing outside on the road and that she could not see the rear portion of Chanda's house and that she had not seen "Yusuf" jumping as alleged earlier.

26. Furthermore, PW-1 (Shamim @ Baby) stated that Chanda was bleeding from her mouth and that she was not in her senses. She further stated that she and her mother went inside and thereafter people from the neighbourhood entered Chanda's house and that the police came after about 10-15 minutes. The police first did their paper work and then took Chanda to hospital.

27. PW-6 (Shamshuddin), in his examination-in-chief, stated that on 17.12.1991, his daughter (Shamim) had come to his house and told him that some persons had entered the house of Chanda Mausi. Thereafter, he, alongwith his wife PW-22 (Naseem) and the daughter PW-1 (Shamim @ Baby) went there at about 8.30 - 9.00 p.m. According to him, he knocked on the door of Chanda's house, but there was no response. Consequently, he went to the roof of the house

from the neighbour's house and when he reached the roof, he saw one person jumping down from the roof of Chanda's house. That person, according to PW-6 (Shamshuddin), was the present appellant Mohd. Yunus. He stated that when he shouted, people collected from the gali and then he also came downstairs and arrived at Chanda's room and found that Bobby Khanna was lying in an intoxicated condition and was not even capable of moving. Chanda was lying naked and his wife put clothes on the body of Chanda. He, thereafter, described the various articles that were lying in the room and stated that someone had called the police which reached the spot and Chanda was taken to hospital in his presence and thereafter, he went to hospital at 4.00 a.m. in the morning and that his statement was recorded by the police in hospital.

28. In cross-examination, he stated that he did not accompany the police alongwith the deceased to hospital and that the public persons had apprehended the accused persons. He contradicted his statement in examination-in-chief by saying that his statement was recorded at the spot by the police. Interestingly, PW-6 (Shamshuddin) stated that he did not call any of his relatives after the accused were apprehended and, even more interestingly, PW-6 (Shamshuddin) had stated in his cross-examination as under:-

"I had not seen anything as I had reached when the accused had already been apprehended. Public persons who had apprehended the accused, their statements were not recorded by the I.O. The articles were seized in my presence on the next morning. I was called only once by my daughter. I went to the hospital on the next day to see the deceased."

These statements elicited from PW-6 (Shamshuddin) during his cross- examination completely defeat the prosecution case that PW-6 (Shamshuddin)

had arrived at Chanda's house prior to the removal of Chanda and the two accused to hospital by the police. In fact, the testimonies of PW-1, PW-6 and PW-22 do not inspire any confidence whatsoever with regard to their having arrived at Chanda's house prior to her removal to hospital by the police. The conduct of PW-1, PW-6 and PW-22 is also quite unnatural in the sense that they did not inform any of their other relatives and that, according to them, after Chanda was removed to hospital, they did not immediately follow her to hospital, but went to their home and it is only much later, that is, on the next day, early in the morning at 4.00 a.m. that PW-6 (Shamshuddin) is said to have gone to the hospital. It is interesting that in his cross-examination, he stated that after having arrived at Chanda's house, he remained inside the room for about one and a half hours whereafter the police arrived at the spot and the body of Chanda was removed by the police at about 9.30 or 10.00 p.m. He further stated that he left the spot after about 5 minutes of the removal of the dead body for hospital by bus. Incredibly, he arrived at the hospital much later at 4.00 a.m. in the next morning as per his own testimony. This gap of time is clearly unexplained and inexplicable.

29. Another reason as to why PW-6 (Shamshuddin) cannot, at all, be believed when he says that he had arrived at Chanda's house prior to the removal of Chanda's body to hospital, is that inasmuch as the MLC (Exhibit PW-4/B) of SDN Hospital, Shahdara in respect of Chanda indicates that at the time she was brought to the said hospital, her name was unknown, her parentage was unknown, her religion was unknown and her residence was also unknown. She was brought by ASI Kundan Lal and the said MLC indicates that she had been brought dead and the date and hour of arrival was 11.15 p.m. on 17.12.1991. If what has been

stated by PW-6 (Shamshuddin) were to be true, then surely, he would have told the police the name and parentage of Chanda as she was a relative of his, in fact, a close relative inasmuch as she was his wife PW-22 (Naseem's) sister. Consequently, the religion would also have been known, as they were Muslims. Most importantly, the MLC also records the residence of Chanda as unknown. This is a clear indication that Chanda's body was not picked up from her house, but from somewhere else.

30. We may also point out that PW-22 (Naseem), who is Shamshuddin's wife and Chanda's sister, has given a completely different set of timings which are not in accord with the timings given by her husband PW-6 (Shamshuddin). According to her, the police arrived at Chanda's house between 8.30 or 9.00 p.m. and that the police stayed at the spot for about 5 minutes and then removed Chanda and both the accused persons, in a van, to the hospital. Interestingly, an indication of her unnatural conduct is the following statement made by her:-

"Neither I nor my husband nor my daughter accompanied the police to the hospital. My two brothers were residing in Trilokpuri in those days. I did not inform my brothers about the incident on that night."

She further stated that:-

"We came to know about the death of Chanda at about 7 or 8 AM on the following day. The dead body of Chanda was lying in the P.S. at about 8 AM. I did not go to the P.S. My husband and my brothers had gone to the P.S."

31. While it is an admitted position that Chanda was the sister of PW-22 (Naseem) and was, therefore, a Muslim, it is indeed curious that PW-22 (Naseem)

has stated that when the dead body was "cremated", her husband (Jalil) was not present there. All-in-all, even the testimony of PW-22 (Naseem) does not inspire any confidence whatsoever.

32. Finally, let us consider the testimony of PW-21 (ASI Kundan Lal) who is admittedly the person who took the injured to hospital. As per the examination- in-chief of PW-21 (ASI Kundan Lal), an information had been received through wireless that an incident had taken place at Pandav Nagar. He immediately reached the spot where several persons had collected. The members of public, who had gathered there, produced three persons out of which one was a woman and all the three were under the influence of liquor. He immediately removed all the three persons to SDN Hospital where the doctor had declared the lady as having been brought dead and the other two male persons were admitted in hospital in a drunken state. In the course of cross-examination, PW-21 (ASI Kundan Lal) stated that he did not see any bleeding on any of the three persons and did not remember as to what clothes were worn by the lady and that she was being lifted by public persons and was conscious and was speaking, but he did not ask her about anything. He also stated that nobody from the public told him that they were related to the lady. The testimony of PW-21 (ASI Kundan Lal) clearly negates the testimony of PW-1 (Shamim @ Baby), PW-6 (Shamshuddin) and PW-22 (Naseem).

33. Apart from all this, the prosecution has also not been able to bring out or even suggest what may have been the motive in this case. Thus, we are left with a case in which the key witnesses PW-7 (Shakuntala Devi), PW-1 (Shamim @ Baby), PW-6 (Shamshuddin) and PW-22 (Naseem) cannot be believed. Their

conduct is also highly unnatural and for this reason also, no reliance can be placed on their testimonies. In the absence of the testimonies of these witnesses and in the absence of any motive and any other evidence incriminating the present appellant, there is no question of convicting the present appellant in respect of the charge under Section 302/34 IPC. The learned Additional Sessions Judge, in convicting the present appellant, has seriously erred in law and / or on facts.

34. The impugned judgment and / or order on sentence are set aside. The present appellant had been released on bail and his sentence had been suspended. In view of the fact that the impugned judgment and / or order on sentence are set aside, his bail bonds stand cancelled and the sureties stand discharged.

The appeal is allowed.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J October 05, 2011 dutt