Mohd. Tahir @ Khuddar vs State
2012 Latest Caselaw 1806 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            RESERVED ON: 09.02.2012
                                          PRONOUNCED ON: 16.03.2012

+              CRIMINAL APPEAL NOS.409/1997 & 452/1997

       CRL. APPEAL-409/1997
       ANISA

+      CRL. APPEAL-452/1997
       MOHD. TAHIR @ KHUDDAR                           ..... Appellants

                      versus

       STATE                                           ..... Respondent

APPEARANCE: Ms. Kamna Vohra, Advocate for Appellants in both cases.

Ms. Richa Kapoor, APP for State in both cases.

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

MR. JUSTICE S.RAVINDRA BHAT % 1. These appeals are directed against the judgment and order of the Learned Additional Sessions Judge, Delhi, dated 01-08-1997, order on sentence dated 06-08-97 whereby the present appellants were found guilty for the offence punishable under Section 302 read with Section 34 IPC.

2. The prosecution case was that on 15-02-1995 at about 02-30 A.M. in the early hours of the morning, PW-3 Prem and her husband,

CRIMINAL APPEAL NOS.409/1997 & 452/1997 Page 1 PW-4 Vijay went to the jhuggi of the appellant Anisa on hearing her voice. They saw the deceased, Vinod lying on the ground; the appellant Mohammed Tahir was sitting upon the deceased, holding a knife in his right hand. Anisa had muffled the mouth of Vinod with her palm. PW- 3 and her husband separated the accused from the deceased. Blood was oozing out from the deceased's stomach and his intestines had come out. Vinod, who was conscious and had not died by then, told them that Tahir and Anisa had stabbed him. The prosecution case is that information was given to the Police Control Room; Vinod was taken to the SDN hospital by the PCR van where he was declared brought dead. It was alleged that the statement of PW-3 Prem was recorded, and FIR 26/1995 was registered by the concerned police station. Tahir had fled the spot, but Anisa was at the crime scene, when the police went there; she was arrested. Later, Tahir was arrested. His disclosure statement led to the recovery of a knife, the weapon of offence. The prosecution had alleged that Anisa was Vinod's wife, and initially lived with him; she later left him, and started living with Tahir, but in the same jhuggi, after throwing out Vinod. The police alleged that Tahir and Anisa had threatened Vinod with dire consequences, when he went asking that his jhuggi be restored back to him. After investigation, the police filed a charge sheet; the accused were arraigned for committing the offences mentioned previously; they denied guilt, and claimed trial.

3. The prosecution, to bring home guilt of the accused, had examined 17 witnesses, and also relied on several exhibits, such as the

CRIMINAL APPEAL NOS.409/1997 & 452/1997 Page 2 post mortem report, the recovery and seizure memos, FSL reports, and so on. After considering these, and the submissions of the parties' counsel, the Trial Court held that the appellants' guilt had been established beyond reasonable doubt. During the pendency of this appeal, the Court had suspended the sentence of the appellants. When the appeals were taken up for hearing, they were not present. Despite repeated adjournments, and attempts to serve them, the appellants defaulted in appearing before the court. Therefore, an amicus was appointed to assist the court, in the hearing of their appeals.

4. It was urged that the entire prosecution story was cooked up, and the reliance placed by the Trial Court, on the deposition of the two so-called eyewitnesses, was incorrect. Learned counsel submitted that according to the prosecution, the incident took place at 02-30 AM in the early morning of 15-02-1995; however, the post-mortem, which was conducted on 16-02-1995, fixed the time of death at 36 hours before the commencement of the procedure (which started at 12:30 AM). This proved that the incident did not take place at 02:30 AM as alleged by the prosecution, but much earlier.

5. It was urged that the testimony of PW-3 was unreliable. Counsel argued that while in her examination in chief, the witness deposed as if Anisa was responsible for the crime, in the cross examination, she contradicted herself, and deposed that she and her husband went to Anisa's jhuggi, on hearing Anisa crying out "bachao bachao"; again contrary to what she deposed earlier, she testified that when she entered the jhuggi, not only the accused, but others too were

CRIMINAL APPEAL NOS.409/1997 & 452/1997 Page 3 present- the others were outside. Curiously, she stated that the jhuggi was opened by Anisa herself, after the witness and her husband asked it to be opened. She later deposed to having called Manjul Pradhan, and returning to Anisa's jhuggi; at that time, 2-4 persons had entered the jhuggi. She also claimed to have seen Tahir running from the spot, without being chased by anyone; she did not see anything in his hands. She also deposed to having remained outside the jhuggi, till 4:00 AM, when the police arrived. She contradicted herself utterly, by stating in the cross-examination - after stating that Anisa had opened the jhuggi

-that she was covering Vinod's mouth, when the two witnesses had reached their jhuggi.

6. The learned amicus argued that PW-4 Vijay contradicted his wife, Prem; according to him, both went to Anisa's jhuggi, when they heard the witness (Vijay) being called by name by the accused persons. He also deposed - in his examination in chief that not only the two of them, i.e., his wife and him, but others too, reached the jhuggi, at the same time. There was darkness in the jhuggi; however, he could see Vinod on the ground, and Tahir sitting on top of him; he had a dagger with him. He saw Anisa clamping Vinod's mouth with her hand; the witness went to call the police, and Tahir fled the spot. In cross examination, he admitted that Vinod was his colleague, whom he had known for 2-1/2 years; Counsel highlighted that even PW-3 stated that Vinod, the deceased belonged to her "biradari". PW-4 admitted in cross examination that 20-25 persons were collected in the jhuggi (of Anisa and Tahir) when he went there. He importantly

CRIMINAL APPEAL NOS.409/1997 & 452/1997 Page 4 admitted that when Vinod was taken to the hospital, both accused were present in the jhuggi; Tahir later slipped away. PW-4 contradicted himself by saying that he went to the jhuggi, after hearing the cries "bachao bachao" contrary to his deposition of having gone there with his wife, after hearing his name being called out by the accused persons from the neighbouring jhuggi. He also contradicted the earlier story about seeing Anisa clamping Vinod's mouth, and Tahir sitting on him, by saying that when he entered the jhuggi, both accused were standing near the injured, and not having anything in their hands. He admitted that his statements, with thumb impression, were taken by the police at 10-10:30 AM in the morning. He also said that accused was not arrested in his presence.

7. It was contended by the amicus that the version of the two eyewitnesses was also unbelievable, because even though the ocular evidence stated that intestines had come out, the post mortem report did not corroborate that. Counsel further emphasized that the Trial Court failed to give due importance to the contents of the post-mortem report, and the other medical evidence. It was submitted that if the death had occurred 36 hours before 12:30 PM on 16-2-1995, the time of death would have been at least 2 hours before the alleged time of incident, i.e., at around 12-30 AM in the early morning of 15-2-1995, and not at 2:30 AM. Thus, where medical evidence was at variance with the ocular testimony relied on by the prosecution, the Court ought not to have given credence to the witnesses' statements to convict the appellants.

CRIMINAL APPEAL NOS.409/1997 & 452/1997 Page 5

8. It was urged that the Trial Court erred in giving explanations to some of the vital discrepancies in the eyewitnesses' testimonies, such as the serious contradiction about how PW-3 and PW-4 were called into Anisa's jhuggi, whether both or any one of them saw Tahir sitting on Vinod; whether Anisa had clamped her hand over Vinod's mouth; whether the accused were standing near the injured Vinod, how many persons were present near the deceased, when the two witnesses went there, how and who opened the jhuggi, and so on.

9. Learned APP submitted that the findings of the Trial Court should not be interfered with, since it was based on a sound analysis of the evidence presented during the trial. It was argued that the appellants cannot emphasize on the so-called contradictions of the testimony of eyewitnesses, since they were illiterate, and could not be expected to be accurate about time, and description of sequence of events observed by them. The so called contradictions were only minor discrepancies, which would be seen in every case, and cannot impel the court to disbelieve the basic story of the two eyewitnesses, who had no connection with the deceased, and were his neighbours.

10. It was urged that what matters is the quality of evidence, and whether the prosecution witnesses were consistent in their basic deposition. Here, urged the APP, the depositions of PW-3 and PW-4 corroborated each other about how they went to Anisa's jhuggi, what they saw (Tahir sitting on Vinod, and Anisa clamping his mouth); that Tahir fled from the spot, how the police were called to the scene of occurrence, and when they took Vinod to the hospital. It was argued

CRIMINAL APPEAL NOS.409/1997 & 452/1997 Page 6 that false implication is ruled out entirely in this case, because the rukka was recorded at 03:45 AM, within an hour of the incident, and the FIR was registered at 03:55 AM. The motive for killing the deceased was strengthened by the deposition of PW-5 Parmod, the deceased's brother; he corroborated that Vinod had married Anisa, after his previous wife's death, and that she had thrown him out of the jhuggi, and started living with Tahir.

11. It was argued that another important or significant circumstance was that Anisa was arrested from the spot; this too ruled out the possibility of manipulation and false implication. Furthermore, the witnesses were examined in April, 1996. With the passage of time, barring the important events, their memories would have inevitably faded about details and particulars. Therefore, the court should not attach much importance to the so-called discrepancies, which were not in respect of vital matters, but only marginal in the overall appreciation of evidence.

12. The preceding discussion would show that the prosecution alleged that the attack took place around 02:30 AM in the morning of 15.2.1995; Vinod was the victim. The intimation was received and PCR reached the spot; on the basis of the intimation (rukka), statement was recorded - Ex.PW-3/A at 03:34 AM. The First Information Report (FIR) was registered just ten minutes later. The prosecution alleged that PW-3 and her husband PW-4 were eye witnesses who actually saw both the accused when they entered the latter's jhuggi upon hearing some cries. Both witnesses deposed having seen Tahir

CRIMINAL APPEAL NOS.409/1997 & 452/1997 Page 7 sitting on the injured Vinod's chest and Anisa clamping her hand over his mouth. To that extent, the versions recorded by the couple is consistent; they more or less corroborated each other in the examination in chief. Yet, a careful reading of the overall testimonies would reveal following major points of deviation: -

(1) PW-3 stated that Anisa was calling out "bachao bachao" upon which she went to the latter's jhuggi with PW-4. PW-4, on the other hand, stated that he and his wife went to Anisa's jhuggi upon hearing his name being called out;

(2) PW-3 stated that Anisa opened the jhuggi. Later she deposed that when she and PW-4 went in, both Anisa and Tahir were standing along with others;

(3) PW-4 stated that about 20-25 persons had collected inside the jhuggi when he and his wife went inside. He stated that police arrived little later;

(4) PW-3 claimed to have gone to fetch Manjul Pradhan who in turn informed the police; PW-4, on the other hand, claimed that he went to call the PCR Van and that Tahir fled from the spot;

(5) PW-3, in the examination in chief, claimed that upon seeing Tahir sitting on Vinod's chest, armed with the dagger, she and her husband PW-4 pushed him aside. However, this aspect was not corroborated by PW-4 in his deposition who

CRIMINAL APPEAL NOS.409/1997 & 452/1997 Page 8 merely stated that upon seeing this, he rushed to call the Police Control Room Van; and

(6) PW-3 clearly deposed that she did not see Tahir running away with the dagger; PW-4 merely stated that Tahir fled the spot.

(7) PW-3 stated that there was no bed sheet or mattress underneath injured Vinod; however, PW-4 was put a leading question by the APP to which he stated that the police had seized two blood stained bed sheets from the jhuggi; seizure memo was marked as Ex.PW-4/C.

13. The prosecution's case was principally based on the testimonies of PW-3 and 4. The glaring aspect which this Court has to scrutinize is the prosecution's account about PW-3 and 4's knowledge. Here the witnesses are at variance. PW-3 claimed to have heard Anisa crying out „bachao bachao‟ in the examination in chief. If one were to believe this witness, though in the examination in chief, she supported the prosecution's story about having witnessed Tahir sitting atop Vinod with the knife and Anisa clamping her hand on the deceased's mouth, yet she acknowledged later that Anisa and Tahir were standing by the side of the Vinod along with others when she and her husband went in. PW-4, her husband, on the other hand, had an entirely different version to narrate; he claims to have heard someone calling him out in the next door jhuggi, upon which, he went there with his wife PW-3. He too initially supported the prosecution version about having seen Tahir with the knife sitting on top of Vinod. Later, he

CRIMINAL APPEAL NOS.409/1997 & 452/1997 Page 9 stated that 20-22 persons had collected at the place of occurrence and that Rahul and Manjul Pradhan were among them. He importantly stated that both the accused were present inside jhuggi at the time injured was taken to the hospital. This contradicted his earlier deposition that Tahir fled the spot before the police came - something stated by PW-3 in her deposition. Furthermore, another significant variation between the deposition of the husband and wife is that PW-4 claimed to have fetched the police, whereas, PW-3 stated that she went to Manjul Pradhan in order to seek the assistance of the police.

14. It is undoubtedly a cardinal rule of criminal jurisprudence that ocular testimony has to be given credence, especially, if that is of independent witness. However, there are certain well established principles to test the depositions of those who claim to be eye witnesses to a crime; these are the tests of consistency, credibility and probability having regard to all the materials made available to the Court in the form of ocular testimonies as well as circumstances emerging on the record. In this case, although, the prosecution claims that the crime took place around 02:30 AM on 15.02.1995, the medical evidence in the form of postmortem report Ex.PW-13/A, does not corroborate this fully. The postmortem procedure began at 12:30 PM on 16.02.1995; according to the report, the time of death was approximately 36 hours prior to the commencing of the procedure. In other words, the time of death was around 12:30 AM on 15.2.1995 and not 02:30 AM. Even if some leeway were to be given, the time of death would be around 01:30 AM. This circumstance by itself cannot

CRIMINAL APPEAL NOS.409/1997 & 452/1997 Page 10 be considered suspicious to doubt the prosecution case entirely. However, this would assume significance having regard to the nature of the testimonies of the eye witnesses PW-3 and 4. If in fact one were to ignore the circumstances which led both of them to enter the jhuggi, the fact still remains that both are consistent that several others were present at the time they went there. The role of one Manjul Pradhan has been mentioned by both PW-3 and PW-4; according to the former, he called the police; PW-4 stated that he informed the PCR. Whatever be the circumstance, that individual has not been examined as the prosecution witness. This is another material omission which casts some suspicion about the prosecution version.

15. Although both PW-3 and 4 supported each other initially about what they saw, i.e., Tahir sitting on Vinod with the dagger and Anisa clamping her hand over his month, PW-3 turned a complete volte face later and stated that both the accused were standing along with others when she and her husband entered the jhuggi. She had stated in the examination in chief that both she and her husband pulled out Tahir; PW-4, however, did not support that statement. Another significant aspect is that PW-3 stated that Tahir slipped away from the spot before the police arrived. PW-4 deposed that both the accused were present when the injured Vinod was taken to the Hospital. Now, it is the prosecution's case that Vinod was taken to the Hospital in the PCR Van. If that were the position and indeed about 20-25 people were present at the location, the prosecution has not explained how Tahir was not arrested at that time even though Anisa was arrested from the

CRIMINAL APPEAL NOS.409/1997 & 452/1997 Page 11 spot. If one keeps this lack of explanation in mind while considering another aspect i.e. that Tahir did not flee the spot with the knife (as deposed by PW-3 - on this aspect PW-4 is silent), the prosecution's version about the recovery of the knife also becomes suspect.

16. Quite apart from the discrepancy in the time of death in this case which emerges upon the reading of the postmortem report Ex.PW-13/A, another serious mismatch between the medical evidence and ocular testimony of the eye witnesses is the matter of corroboration in the postmortem report regarding the injuries on the abdomen - PW-3 and 4 stated that Vinod's intestine had come out. However, postmortem report does not indicate this; even PW-13 did not depose to this effect in the Court.

17. This Court is of the opinion that even though earliest discrepancies were pointed out to the Trial Court on behalf of the appellants during the hearing, they were glossed over or made light of. For instance, while rejecting the argument about the circumstances which led PW-3 and 4 to go to the jhuggi and also the discrepancies in their evidence about what was observed, the Trial Court observed as follows: -

"Undoubtedly, it is a relevant question as to what was the need for the accused persons to shout "Bacho Bacho" but, as stated above, one would not know as to why the accused persons thought of raising a noise and uttering the words "Bacho Bacho", but, it may be their own „self-thought defence‟ and „move‟ to act in that particular fashion with a view to confuse the situation thinking - they might earn some beneficial point out of it

CRIMINAL APPEAL NOS.409/1997 & 452/1997 Page 12 by acting in the said manner so as to once put the on- looker in a thoughtful mood compelling him/her to think otherwise then to what he or she is ocularly finding at that time. It may be a simple pre-thought move of the accused persons to divert the attention of the onlooker in some other direction by creating such a confusing behaviour. I do not think and see anything which should appear to be surprising in the said conduct of the accused persons. Regarding the other contention as to why accused Anisa would go back and again clamp the mouth of injured/deceased it also seems to be explained from the prosecution evidence as we find that the injured/deceased was still alive at that time and had spoken to the witnesses PW 3 & 4 that he was stabbed by the accused persons. It is quite possible that accused Anisa went back after opening the jhuggi door and again clamped the mouth of the injured/deceased so that deceased may not be able to speak any further. We also cannot over look the fact that accused Tahir was still sitting on the injured/deceased holding a dagger in his hand and the process of killing was perhaps not over by that time. According to this accused and he might be in a fix whether to hit the injured again or not, perhaps in a bid to ascertain whether the injured/deceased was already dead or he needed some further assault on him before breathing his last."

18. To say the least, these observations are astonishing and one is at a loss to understand the logic behind them. To expect someone guilty to a crime to call out for help and then upon seeing others coming to the crime scene, go back to continue committing the crime, is not only illogical but contrary to normal human behaviour. If one adds this to the glaring inconsistencies between the two witnesses' version about whether the accused were separated from the deceased and whether they were standing by the side of the injured or whether they were

CRIMINAL APPEAL NOS.409/1997 & 452/1997 Page 13 behaving in the manner alleged against them, the inconsistencies are beyond any explanation. The attempt of the Trial Court to completely gloss over these contradictions, in the opinion of this Court, points to an over anxiety somehow to stretch the point and uphold the palpably untenable story.

19. In view of the above discussion, this Court is of the opinion that though in some salient material particulars, two eye witnesses had corroborated each other, their subsequent depositions contradicting each other and the internal inconsistencies in their own versions, render them untrustworthy to return the conviction. These, coupled with the uncertainty as to the time of death and lack of corroboration as to whether the deceased had such injuries as would have led to his intestine falling out, persuade this Court to hold that the reasoning in the impugned judgment cannot be sustained and is accordingly set aside. The Appeals have to, therefore, succeed. Criminal Appeal Nos.409/1997 and 452/1997 are accordingly allowed.

S. RAVINDRA BHAT (JUDGE)

S.P. GARG (JUDGE)

MARCH 16, 2012 /vks/

CRIMINAL APPEAL NOS.409/1997 & 452/1997 Page 14