Amzad vs State (Gnct Of Delhi)
2012 Latest Caselaw 1312 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     DECIDED ON: 27.02.2012

+             CRL.A. 374/2011 & CRL.A. 516/2011

CRL.A.No.374/2011
AMZAD                                    ..... Appellant
               Through: Appellant present in person.

CRL.A. No.516/2011
SAGIR                                      ..... Appellant
                Through : Mr. Deepak Vohra, Advocate

                            versus

STATE (GNCT OF DELHI)               ..... Respondent
                  Through: Mr. Sanjay Lau, APP.

CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE S.P. GARG

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)
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1.     The Appellant Amzad has been produced in police custody.
The Appellant Sagir is represented by counsel, Shri. Deepak
Vohra. With consent of counsel for parties, these two appeals were
finally heard, (since the appellants had undergone detention for
over 8 years). The Trial Court records are in the Court and the
paper books had been prepared; they were furnished to counsel for
all the parties.
2.     The Appeals are directed against the judgment and order of

Crl.A.374/2011 & 516/2011                                   Page 1
 the learned Additional Sessions Judge dated 27.04.2010 in Session
Case No.141/2009. The appellants were convicted for the offences
punishable under Sections-366/376/377/302/34 IPC.
3.     The prosecution had alleged that the appellants had
conspired and lured the victim Gudiya, daughter of the
complainant/informant, Rahmat Ali (PW-2) earlier on 12.12.2003
at around 6:00 PM and thereafter proceeded to commit rape on her
and killed her.        It was alleged that Gudiya was asked to
accompany the accused, with the promise that she would be given
a toffee. The evidence and materials on record reveal that Gudiya's
body was discovered in the morning, on 13-12-2003, after her
abduction, at 09:52 AM, within the jurisdiction of PS Geeta
Colony; evidenced by Ex.PW-9/A. PW-2 was the complainant or
first informant; his statement about the disappearance of Gudiya
had been recorded in the night of 12-12-2003. After the conclusion
of investigations, during the course of which, the appellants were
arrested, they were charged with committing the various offences
which they were ultimately convicted for; they denied guilt, and
claimed trial.
4.     To prove its case, the prosecution relied upon the testimonies
of 20 witnesses including the informant -who deposed as PW-2, the
victim's mother, PW-10 and PW-2's brother Shaukat Ali, PW-20.
5.     The Court after considering all the materials and the oral
testimonies      of   witnesses,   which   included   the   recoveries,
postmortem report and other documents, held that the prosecution
had established the appellants' guilt beyond reasonable doubt.

Crl.A.374/2011 & 516/2011                                        Page 2
 6.     Counsel for Sagir argued that the entire prosecution story
could not have been believed. He highlighted the fact that even
though PW-2 deposed as though he was an eyewitness, he kept
silent about the fact that when Gudiya went missing, he was not
even at home. It was pointed out that even the rukka was recorded,
at 12:50 AM on 13-12-2003, as if PW-2 had witnessed the
abduction of Gudiya. Mr Deepak Vohra, learned counsel for Sagir,
pointed out that it was only during cross examination that the
witness confessed that he was not present when Gudiya went away
from home, early evening on 12-12-2003. In these circumstances,
he was not an eyewitness, the version given by him, was wholly
inadmissible.
7.          Learned counsel submitted that the prosecution story
cannot be believed, because even though the eyewitnesses claimed
that they went to the police station to intimate about the police
disappearance of Gudiya, at 09:00 PM, the FIR was recorded much
later, i.e. in the early morning hours of 13-12-2003. No explanation
about the delay in recording of the FIR was forthcoming on the
part of the prosecution. This was an important circumstance, which
casts doubt about the veracity of the allegations made against the
accused, as it strongly suggested false implication.
8.     It was next argued that a combined reading of the
testimonies of PW-2 and PW-10 would reveal a vital discrepancy
as to who went to inform PW-2. Whereas one deposed that
Shahnawaz, (the elder son of PW-2 and PW-10) went to the factory
where PW-2 worked, the other deposed that another son, Sabir had

Crl.A.374/2011 & 516/2011                                     Page 3
 gone to fetch PW-2. Similarly, learned counsel argued that the
testimony of PW-20 clearly suggested that PW-10 had not seen the
girl going away with anyone. In the deposition, PW-20 had stated
that PW-10 had asked where Gudiya was. Such a query would not
have been asked, if in fact PW-10 had seen her daughter going
away with the accused. This according to counsel was not a mere
discrepancy, but a contradiction between the witnesses, which went
into the root of the matter. The Court, therefore, could not have
given credence to the version of either witness. Under the
circumstances, argued Counsel, Sagir was entitled to the benefit of
doubt.
9.       Learned Counsel submitted that similarly, the prosecution
did not care to rely on independent and objective corroboration of
the circumstances; in this regard, it was urged that the accused's
clothes seized during investigations did not show any blood; nor
did any blood sample match the blood found on those clothes, or
any article seized and proved as part of the record. Likewise,
argued counsel, the accused's undergarments were not seized; there
was no scientific evidence in the form of testing or matching of
semen found on the deceased. It was further highlighted that the
prosecution had placed great emphasis on the recovery of a torn
pocket from near the crime scene; in fact the same was not even
shown to PW-2. Under the circumstances, there could have been
no reliance on that piece of evidence.
11.      It is submitted on behalf of Amzad that the prosecution's
version about the Appellants was that they were tenants in the

Crl.A.374/2011 & 516/2011                                    Page 4
 premises which formed a part of the same building where PW-2 the
informant had also rented out a separate accommodation. However,
the evidence clearly showed that both the accused did not stay
together, and were in fact in separate rooms on separate floors in
the building. The common allegations against both were that they
had lured Gudiya with the promise of giving her toffee and
thereafter abducted, raped and killed her. Learned counsel pointed
out that PW-2 and PW-10 had not even named the appellant
Amzad and that the only witness who attributed a specific role to
him is PW-20. Commenting on this, counsel urged that in the
present case, the judgment principally was hinged on the last seen
circumstance said to have been proved.
12.    The appellant Amzad urged through his counsel that "the
last seen" circumstance is inherently weak circumstantial evidence
and the present incident was not proved. Pointing out that while
PW-2 and PW-10, the deceased's parents, even after mentioning
that Amzad and Sagir were co-tenants in same premises and,
therefore, knew them, had specifically attributed the kidnapping
only to Sagir; they were conspicuously silent about Amzad's role.
Similarly, it was submitted that the Trial Court's reliance on
PW-20 testimony was misplaced. Here, it was pointed out that the
witness merely stated that Amzad used to live in the same premises
as Sagir; he however stated that only Sagir took away Gudiya on
the fateful day.    Learned counsel emphasized that even in the
earliest intimation to the police and the rukka, produced as
Ex.PW-13/B, the informant had ascribed a specific role only to

Crl.A.374/2011 & 516/2011                                   Page 5
 Sagir, the co-accused and had not mentioned Amzad as a suspect
or stated that he was last seen with Gudiya.
13.    It was argued that the Trial Court fell into grave error in
believing   the    entire   prosecution   story,   despite   the    fatal
inconsistencies. In this context, it was urged that the "last seen"
circumstance is essentially a weak one, and should not be the sole
basis for returning a conviction of any accused, in a criminal case.
In this context, reliance was placed on the judgment reported as
Bodh Raj @ Bodha & Ors. v. State of Jammu and Kashmir, (2002)
8 SCC 45, in which the Supreme Court held that the last seen
theory comes into play where the time gap between the point of
time when the accused and deceased were seen last alive and when
the deceased is found dead is so small that possibility of any person
other than the accused being author of the crime becomes
impossible. Counsel also relied on Mohibur Rehman & Anr. v.
State of Assam, (2002) 6 SCC 715, a decision in which the
Supreme Court observed as follows:-
       "10. The circumstance of last seen together does not by itself
       and necessarily lead to the inference that it was the accused
       who committed the crime. There must be something more
       establishing connectivity between the accused and the crime.
       There may be cases where on account of close proximity of
       place and time between the event of the accused having been
       last seen with the deceased and the factum of death a
       rational mind may be persuaded to reach an irresistible
       conclusion that either the accused should explain how and in
       what circumstances the victim suffered the death or should
       own the liability for the homicide......."




Crl.A.374/2011 & 516/2011                                          Page 6
 14.    Learned APP submits that there is no error or infirmity in the
impugned judgment, calling for interference by this court, in the
exercise of its appellate jurisdiction. It was urged that there was in
fact no delay in recording the rukka, or the FIR. The APP urged
that advantage cannot be taken by the appellants, on account of the
omission to mention Amzad's role in Ex.PW-13/B because often
the names of the suspects or accused are not mentioned by the
informant or not taken down by the police and such omission
should not be considered fatal. It was urged that the account of
PW-10 suggested that PW-2 was not an eye witness and had been
told about the role of appellant. However, PW-20 was present at
the time of occurrence, i.e., Gudiya's going away. He clearly saw
both accused leaving in the company of the deceased. Learned
counsel sought to emphasize that PW-10 specifically mentioned
that her Jeth was present at that time. It was argued that having
regard to the other circumstances, i.e., both the appellants'
absconding from their premises, and the recoveries made,
particularly of a shirt with a torn pocket, the Trial Court's findings
cannot be characterized as arbitrary and not based on facts.
15.    It was also argued that the prosecution had clearly proved
that both accused lived in the same building as the deceased's
parents and therefore were in the know as to the habits of the
young girl, and her parents. Besides the oral testimony, the strong
circumstance which pointed unerringly to the guilt of the accused
arraigned in this case was the circumstance that they were both
named even before the discovery of the dead body. Similarly, three

Crl.A.374/2011 & 516/2011                                       Page 7
 toffees were found near the body of the deceased, which further
corroborated the prosecution's version, and that of PW-10 about
Gudiya being lured away with the promise that she would be given
toffees.
16.    The rukka (Ex. PW-2/A) in this case was dispatched at 12:50
AM on 13.12.2003, as may be seen by the endorsement Ex.
PW-13/B. The incident, i.e. Gudiya leaving the premises of her
parents, took place at 06:00 PM on 12.12.2003. The FIR was
registered at PS Gandhi Nagar late next morning; the body of
Gudiya was subsequently found within the jurisdiction of PS Geeta
Colony; as is evident from DD Ex.PW-9/A. The body was
recovered on 13.12.2003 at 09:52 AM in the morning.
17.    The testimony of PW-2, the father and informant is to the
following effect: -
       "Accused Amjad present before the court and
       Accused Sagir who is also present before the court
       were also living as tenant in the same house in
       different portions. On 12.12.2003 my all the
       children along with my wife including my elder
       daughter Guriya aged around eight years were
       present at home at about 5.30 P.M. Accused Sagir
       took my daughter Guriya from our house on the
       pretext of getting her „Toffee‟. Guriya did not return
       home for some time."

11.    The material portion of PW-10's testimony reads as follows:
-

"On 12.12.2003 at about 6:00 p.m. accused Sagir, present in the court (correctly identified by the witness) came to my house. He was living on rent

Crl.A.374/2011 & 516/2011 Page 8 in my neighbourhood. He started talking with me and with my children. Other accused Amjad present in the court was standing at ground floor at that time. Accused Amjad used to reside in a room adjacent to my room. Accused Sagir used to reside at Ground floor in the same house, where I was residing. I was residing at First Floor. After sometime, accused Sagir told me that he is taking my daughter Guriya, aged about 8 years with him to give her toffees from a shop. He took my daughter Guriya with him and did not return. My daughter Guriya also did not return. I waited upto 8:00 to 9:00 p.m. My husband had come during that period, I told this fact to him. My husband took my brother-in-law Sokat (Jeth) who also works at Gali No.8 in that area to search for my daughter Guriya and the accused persons, present in the court, but they could not trace them."

17. The testimony of PW-20 is as follows: -

"I used to visit house of my brother Rehmat Ali father of deceased Gudia. On 12.12.03 at about 6.00-6.30 pm I reached his house. In the street just 2-3 steps away from the house, accused Amjad and Sagir (both present in the Court today correctly identified by witness) were going in the company of Gudia daughter of my brother Rehmat Ali. Accused Sagir was holding the finger of Gudia. Accused Amjad was following them. I asked Gudia "beta kahan ja rahen ho". She replied that she is going with uncle to take toffee. Thereafter, I went inside the house. In the house wife of Rehmat asked me to sit and have tea. I sat down there and took tea. I remained there for sometime. Electricity went off.

I took out a match box from the pocket and lit the candle. Wife of Rehmat asked her son Sabir that where Gudia has gone. I told her that I had seen

Crl.A.374/2011 & 516/2011 Page 9 her in the company of accused Amjad and Sagir and on my asking Gudia told me that she is going to have toffee with uncle. Sabir went out and search for Gudia. On the request of wife of Rehmat I remain seated there as there was no electricity and she asked me to go after electricity comes. After sometime Sabir came back and told that Gudia is not found by him. Then Rehmat also reached there. Me and Rehmat started searching for Gudia at different places. Wife of Rehmat and Sabir also searched Gudia at different places. Throughout night we kept on searching for Gudia."

18. These eye witnesses particularly PW-10 and 20 claim to have seen the incident as it took place during the time of occurrence i.e. 06:00 PM. However, there are variations as to the role of the appellant Amzad. Whereas PW-2 omits any mention of Amzad as one of the individuals who took away Gudiya, PW-20 states that he saw Sagir holding Gudiya's finger and also saw Amzad following him. On being asked, Gudiya is alleged to have said that she was going with "uncle" to take toffee. Having regard to the variations in testimonies of PW-2, 10 & 20, and the circumstance that PW-10 stated that her husband was not at home at the time of the incident and he came to know later when he was told about the events (that had preceded the disappearance of Gudiya), we are of the opinion that ocular testimonies could not have been conclusive as regards the role attributed to Amzad. We are reinforced in our finding by the rukka Ex.PW-13/B which is a detailed account given by the PW-2 Rehmat Ali who did not that Amzad as one of the individuals who had abducted the deceased.

Crl.A.374/2011 & 516/2011 Page 10 We further notice that prosecution's attempts to match semen and hair samples seized during the investigation with the samples obtained from the accused particularly Amzad were unsuccessful.

19. Barring the eyewitness testimonies of PW-10 and PW-20, who clearly were in the premises when Gudiya was taken away, there is no witness. These two, significantly corroborate each other about Sagir being the only accused who took away the deceased. In these circumstances, the omission of Amzad in the rukka assumes great significance, particularly if we keep in mind the fact that it was prepared more than 3 hours after the family members of the deceased had approached the police. The evidence also clearly reveals that Amzad lived in a separate room; the prosecution was unable to show that he was close to, or had any friendly relationship with Sagir. All these facts, taken together, the mere mention of Amzad as one who was there at the time Sagir took Gudiya, (by PW-20) are insufficient to fasten criminal responsibility upon the former (Amzad). His appeal therefore, deserves to succeed.

20. As far as Sagir is concerned, the testimonies of the two eyewitnesses, i.e PW-10 and PW-20 are consistent vis-à-vis his role. Both stated in unison that he held out the promise of giving Gudiya toffee(s); that led her to accompany him. He was also named at the earliest available opportunity, in the rukka, at 12:50 AM early next morning. In this case, that fact assumes significance because at that time, Gudiya was reported missing; her body was discovered much later, next morning at 09:52 AM at a distance,

Crl.A.374/2011 & 516/2011 Page 11 within the jurisdiction of P.S. Geeta Colony. The basic consistency of PW-10 and PW-20 about having witnessed Sagir taking away Gudiya with him, with the promise that she would be given a toffee, cannot, in our opinion, be undermined by the lack of credibility as regards the lack of role of co-accused Amzad. As observed by this court, Amzad lived in entirely different premises; the prosecution was unable to prove that he was intimate or friendly with Sagir. At the same time, Sagir's role has been proved beyond any doubt, as the individual who promised something which led Gudiya to trustingly accompany him. He was also apparently known to Gudiya's parents; therefore PW-10 and the girl's uncle PW-20 unhesitatingly allowed her to leave home with Sagir.

21. It has been repeated time and again that the last seen circumstance should be based on "close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death" (Mohibur Rehman [supra]). In this case, the eyewitness account fixes the time when the girl left with Sagir at 06:00 PM on 12-12-2003; her body was discovered next morning. The post mortem was started at 12:30 PM on 14-12-2003 (Ex. PW-4/A); the document clearly stated that the time since death was 40 hours from the time of commencement of the procedure. The approximate time of death was therefore around 8:30 PM on 12-12-2003. The evidence in the form of eyewitness testimony is categorical that both Gudiya and Sagir were not seen together after 06:00 PM on the fateful date. The witnesses mention

Crl.A.374/2011 & 516/2011 Page 12 about their frantic attempts to locate both the girl and Sagir, but in vain. The proximity of time, i.e. just over two hours, between the time when the accused Sagir was seen with Gudiya, and the time of her death, therefore, is a strong and conclusive incriminating circumstance. In his replies to queries under Section 313 Cr. PC, he generally disclaimed any involvement in the incident, and stated that he had come from Bihar a week before the incident, and was living with his brother Nasir in the same building where the complainant lived. He claimed that he had returned home at 08:00 PM and that the police had arrested him from the same premises. However, during the trial court proceeding, no such line of questioning was adopted on his behalf; he also did not choose to put his brother in the witness box. The Court is aware that these facts cannot be taken to incriminate him; yet once the prosecution proved that he was seen last with Gudiya, and also established the narrow time gap between that time, and the time of her death, the onus of furnishing information which was within his peculiar knowledge was upon the appellant Sagir, by virtue of Section 106 Evidence Act. His inability to give any satisfactory explanation also calls for an adverse inference.

15. In the light of the above discussion, Criminal Appeal No.374/2011 on behalf of Amzad deserves to succeed; it is allowed. The appellant Amzad shall be released forthwith unless he

Crl.A.374/2011 & 516/2011 Page 13 is needed in connection with any other case. Criminal Appeal No. 516/2011, the appeal by Sagir, has to fail. It is accordingly dismissed.

S. RAVINDRA BHAT (JUDGE)

S.P. GARG (JUDGE) FEBRUARY 27, 2012 /vks/

Crl.A.374/2011 & 516/2011 Page 14