Delhi High Court
Mukeem & Anr vs State (Nct Of Delhi) on 21 September, 2012
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 21st August, 2012
DECIDED ON : 21st September, 2012
+ CRL.A. 123/2012, CRL.M.B.194/2012
MUKEEM & ANR. ..... Appellants.
Through : Mr.K.S.Singh with Mr.Rahul Singh,
Ms.Tripta singh and Ms.Madhu
Sharma, Advocatse.
Versus
STATE (NCT OF DELHI) ..... Respondent
Through : Mr.Sanjay Lao, APP for the State.
+ CRL.A. 208/2012, CRL.M.B.342/2012
KHALID ..... Appellant.
Through : Mr.Satish Tamta with Ms.Ruchi
Kapur, Advocates.
Versus
STATE ..... Respondent
Through : Mr.Sanjay Lao, APP for the State.
CORAM:
MR. JUSTICE SANJIV KHANNA
MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. The present appeal is directed against the judgment dated
13.12.2011 and order on sentence dated 16.12.2011 of learned Additional
Sessions Judge in Sessions Case No.55/2008 by which the appellants
Mukeem (A-1), Khalid (A-2) and Deepak (A-3) were convicted for
committing offences punishable under Section 302/394/34 IPC and 27 of
Arms Act and sentenced to undergo imprisonment for life with fine.
2. The prosecution alleged that Daily Diary (DD) No.21
(Ex.PW-17-A) was recorded at police station Nand Nagri on 27.02.2006
at 5:50 P.M. on receipt of information that a child aged 14-15 years was
murdered at House No.33A, Gali No.1, Bank Colony. The investigation
was assigned to SI Ajay Singh Negi (PW-17) who with ASI Jalbir Singh
(PW-14) and Constable Khursid reached there. The incident had taken
place in House No.A-14 Adarsh Colony, Bank Enclave. On reaching
there, they found the door of the house on the ground floor open. In the
meantime, DD No.22 (Ex.PW7/B) was recorded at 05:55 P.M. where the
information was conveyed about the murder of a boy at A-14, Adarsh
Gali, Bank Enclave. This DD was also marked to SI Ajay Singh Negi.
3. PW-17 (SI Ajay Singh Negi) found that the household
articles were lying scattered in the house. A boy aged 14/15 years was
found in a pool of blood in the kitchen. He sent the victim in a PCR van
to GTB hospital where he was declared 'brought dead'. SI Ajay Singh
Negi searched eye-witnesses but in vain. He made an endorsement on DD
No.21 and sent the rukka for lodging First Information Report. Further
investigation was taken over by Inspector Veer Singh Tyagi. Crime Team
inspected the scene of crime and photographed it. The I.O. lifted blood,
earth control, blood-stained towel, blood-stained cricket wicket, blood-
stained bed sheet and prepared seizure memos. After completion of
investigation, a charge-sheet was submitted against A-1 to A-3 in the
court. As per the charge-sheet, the prosecution version is as under :
(a) Amita Goel (PW-9), deceased's mother, disclosed that when
she reached the house at 5:10 P.M. from her office and knocked at the
door, there was no response from her son-Vaibhav. When she repeatedly
knocked at the door, three boys came out and one of them was Mukeem
(A-1) earlier employed as a driver with them. They fled the spot on a blue
coloured Yamaha motorcycle DL3SAR-3954 parked in front of the house.
Inside the house, she found the articles scattered and her son in the kitchen
smeared with blood. She became unconscious and came to her senses
subsequently. Ram Kumar reached the spot and helped her.
(b) Since A-1 was identified by the deceased's mother as
suspect, the police went to village Mandoli to apprehend him but he was
not found there. On 28.02.2006, the body was sent for post-mortem.
Dr.Arvind Kumar (PW-4) conducted post-mortem examination of the
body. On 03.03.2006, A-1 was arrested when he arrived on motorcycle
number DL3SAR-3954 at about 09:00 P.M. from the side of IIT at Kale
Sarai. On his search, one gold necklace with beads was recovered from
the pocket of the pant. Pursuant to the disclosure statement, A-1 recovered
blood-stained shirt from the bed box in the house.
(c) A-3 was arrested on the same night from the house of his
maternal grandmother (Nani) at village Saboli and one pair of gold ear-
rings (tops) was recovered at his instance. He also produced a shirt and
black pant which he was wearing on the day of incident. A-2 was arrested
from his brother-in-law's house at Loni, Ghaziabad and two gold bangles
and a knife were recovered. He also produced shirt of light purple colour
and light blue jeans pant which he was wearing at the time of incident. A-
1 to A-3 also pointed the place of occurrence.
(d) On 06.03.2006 Sagir (since discharged) was arrested from
Mandoli.
(e) During investigation, (A-2 and A-3) refused to participate in
the Test Identification Proceedings (TIP).
(f) The case property was got identified in Test Identification
proceedings.
(g) The exhibits were sent to Forensic Science Laboratory and
the Investigating Officer collected the reports subsequently. The IO
recorded statements of the witnesses conversant with facts at different
stages of the investigation. The accused were duly charged and brought to
trial.
4. To substantiate the charges the prosecution examined 18
witnesses in all. The statements of the accused were recorded under
Section 313 Cr.P.C. to afford them an opportunity to explain the
incriminating circumstances. The accused denied the allegations against
them and pleaded false implication. A-1 examined DW-3 ( ASI Krishan),
DW-4 (Ct.Rajneesh), DW-5 (Laxmi Narayan Udapa), DW-6 ( HC Anil
Kumar) and DW-7( Smt.Aamna Begum) in defence. A-2 and A-3
examined DW-1 (Shri Devi Das @ Devi Ram) and DW-2 ( Mumtaz)
respectively in their respective defence.
5. After appreciating the evidence and considering the rival
contentions of the parties, the Trial Court by the impugned judgment
convicted A-1 to A-3 for the offences mentioned previously. Aggrieved
by the said judgment the appellants have preferred the appeals.
6. Learned counsel for the appellants challenged the findings of
the Trial Court and urged that it did not appreciate the evidence in its true
and proper perspective and fell into grave error in relying upon the
testimonies of PW-1 (Ram Kumar) and PW-9 (Amita Goel) without
ensuring their credibility and truthfulness. It was contended that they
were not present at the spot at the time of occurrence and had not seen the
assailants coming out of the house. They were introduced subsequently as
planted witnesses to strengthen the case. In the rukka sent at 8:15 P.M.,
PW-17 (SI Ajay Singh Negi) categorically mentioned that he did not meet
any eye-witness or family member of the deceased in the house. The Trial
Court did not observe that post-event conduct of PW-1 (Ram Kumar) was
highly unnatural. He did not report the incident to the police and
conveniently left to attend the marriage. His statement under Section 161
Cr.P.C. was recorded after considerable delay. Number of discrepancies
emerged in his deposition to rule out his presence at the spot were
ignored without valid reasons. It is highly unbelievable that he would
write down the number of the motorcycle on his palm in the absence of
suspicion. The Trial Court did not notice that he was facing two criminal
cases. Counsel further urged that the number of injuries inflicted on the
boy reveal that it was a case of personal enmity/revenge. The prosecution
did not collect documentary evidence to prove A-1's employment as
driver with the informant. The circumstances showing the arrest and
recoveries of the gold articles are highly suspicious. No independent
public witness was joined at the time of alleged recoveries of the gold
ornaments and the clothes. In the CFSL reports the deceased's blood was
not found on the clothes. The accused were lifted from their houses and
illegally detained in the police station. A-2 and A-3 were justified to
decline participation in the TIP as they were shown to witnesses. The
jewellary of insignificant value was planted upon the accused to create
evidence. Learned counsel for A-1 further contended that Constable
Khursid was instrumental in falsely implicating him as he had lodged
complaints against him.
7. Supporting the judgment of the Trial Court, learned APP
urged that it did not call for any interference. The Trial Court relied upon
the cogent and reliable testimonies of PWs 1 and 9 to base its conviction
as they had seen the accused including A-1 coming out of the house. PW-
9 became unconscious on seeing the horrible scene and came to senses
after considerable time. When she regained consciousness, in her
statement under Section 161 Cr.P.C. at about 11:00 P.M. she named A-1
and others who came out of the house. She had no ulterior motive to
falsely implicate A-1 in the absence of any prior enmity. A-1 was earlier
employed as a driver with them. There was no occasion of mistaken
identity. The police visited A-1's residence on the same night after his
name was revealed by PW-9 (Amita Goel). PW-1 (Ram Kumar) could
not inform the police as he had to rush to Faridabad to participate in the
function of his close relative i.e. niece. After returning from Faridabad, he
immediately recorded his statement under Section 161 Cr.P.C. and named
A-1 to be among the assailants. In his statement recorded under Section
164 Cr.P.C. also, he was categorical that A-1 was among the assailants
seen by him. The robbed articles were recovered from the possession of
the accused soon after the occurrence and they failed to explain how and
under what circumstances they got possession of the gold articles
belonging to the victims. Necklace recovered from A-1's possession had
distinct features and the investigating officer was unable to get 'similar'
property to be mixed with the case property. A-2 and A-3 were also
found in possession of robbed articles. They also refused to participate in
the Test Identification Proceedings without any justification. The police
was able to recover the motorcycle used in the commission of the crime.
The blood group of deceased was detected on the clothes of the accused.
Minor discrepancies or lapses in the investigation cannot be considered
fatal to the prosecution's case. There was no inconsistency between
ocular and medical evidence. Dr.Arvind Kumar (PW-4) who conducted
post-mortem examination of the body opined that the injuries of the body
were possible with the knife recovered from the possession of the accused.
8. We have heard the submissions of both the parties and have
examined the Trial Court record minutely. At the outset, it may be
mentioned that homicidal death of the child is not under challenge.
Dr.Arvind Kumar (PW-4) proved the post-mortem report (Ex.PW-4/A)
and was of the opinion that injuries No.1 to 6 were sufficient to cause
death in the ordinary course of nature. The victim had 17 external stab
incise injuries on the body. Indisputably, it is a case of culpable homicide.
9. Trial Court relied upon the testimony of PW-1 and PW-9
who claimed that they had witnessed the accused coming out of the house.
The accused vehemently challenged the findings of the Trial Court on this
aspect.
10. PW-9 (Amita Goel), deceased's mother, claimed that on the
day of occurrence, she reached the house at about 5:10 P.M. and found
motorcycle Yamaha bearing No. DL3SAR-3954 parked in front of her
house. She knocked at the door and called her son Vaibhav but he did not
open it. She kept on calling her son. In the meantime, her neighbour Ram
Kumar reached there. She saw three boys coming out of her house. One
of them was recognised accused Mukeem (A-1) who was earlier
employed as a driver by them. They started the motorcycle and left the
spot. The other two boys were aged 19-20 years.
11. The occurrence took place in between 4:00 P.M. to 5:30 P.M.
on 27.02.2006. DD No.21 (Ex.PW-17/A) was recorded at the police post
Harsh Vihar at 5:55 P.M. Another DD No.22 (Ex.PW-17/B) was
recorded at 5:50 P.M. It is not clear who were the informants. In DD
No.21 place of occurrence was described House No.33A, Gali No.7,
Bank Enclave. However, in DD No.22 the place of incident was stated
A-14, Adarsh Gali, Bank Enclave. The victim was taken to GTB hospital
in a PCR van and was medically examined vide MLC (Ex.2/A) at 6:16
P.M. The prosecution did not examine Head Constable Harsh of PCR
who had taken the child to the hospital. The investigation was assigned to
PW-17 (SI Ajay Singh Negi) who with ASI Jalbir, Constable Khurshit and
Constable Ramesh reached the spot. After sending the victim in the PCR
van to GTB hospital, he reached the hospital and collected the MLC
where the child was declared brought dead. On return to the spot, he did
not find any eye-witness. He made endorsement (Ex.PW17/C) on DD
No.21 and sent the rukka through Constable Ramesh for lodging the First
Information Report at 8:15 P.M. There is specific mention in the rukka
(Ex.PW-17/C) that till the time of sending it, no eye-witness or family
member of the deceased met him there. The rukka does not record
presence of PW-9 (Amita Goel) and PW-1 (Ram Kumar) at the spot.
They did not come forward to apprise the Investigating Officer that they
had seen three assailants including A-1 coming out of the house. PW-17
(SI Ajay Singh Negi) was unable to make any inquiry and record their
statements under Section 161 Cr.P.C. In the cross-examination, he
reiterated that at the hospital or spot he did not meet PW-1 (Ram Kumar)
and PW-9 (Amita Goel). PW-18 (Insp.Veer Singh Tyagi) came at the
spot at about 9:00 P.M.
12. PW-9 was a clerk in Syndicate Bank, Preet Vihar. As per the
attendance Register (Ex.DW5/DA) proved by DW-5 (Laxmi Narayan
Udapa), the then Manager, she was present in the Bank from 10:00 to 5:00
P.M. He, however, stated in the cross-examination by APP that the
clerical staff used to come to the Bank at 8:45 A.M. and leave by 3:45
P.M. but he had no record to show that on the day of incident Amita Goel
was employed at the extension counter from 8:45 A.M. to 3:45 P.M. She
used to travel by bus. Her version of reaching the spot at 5:10 P.M. that
day has not been corroborated by any other evidence. Her conduct is
highly unnatural and abnormal. When she knocked at the door of the
house and did not find any response from inside, she did not raise alarm.
When three assailants allegedly came out of the house after opening the
door, she and PW-1 (Ram Kumar) did not confront them. No attempt was
made to raise alarm at that time also. It is unbelievable that they (PW-1
and PW-9) would allow the assailants to flee on motorcycle. Even after
coming to know about the brutal murder of the child, PW-1 and PW-9 did
not report the incident to the police. They did not inform the neighbours
or any other person about the complicity of A-1. According to the
prosecution, on receipt of DD No.21 (Ex.PW7/8) SI Ajay Singh Negi had
reached the spot at about 6:00 P.M. but he did not find PW-1 (Ram
Kumar) and PW-9 (Amita Goel) at the spot. The child was found inside
the kitchen in injured condition and PW-17 sent him in a PCR van to GTB
hospital. Neither PW-1 nor PW-9 accompanied the child to GTB hospital.
None of them narrated the incident to PCR official or the Investigating
Officer. The police was unaware till their statements were recorded under
Section 161 Cr.P.C. at about 11:30 P.M. that they had seen the three
assailants including A-1 coming out of the house. It is hard to believe that
they would remain silent and not disclose the crucial clue to the police to
enable them to apprehend the culprits immediately. The court can
understand the mental condition and trauma of the mother after she found
her son smeared with blood and became unconscious. However, it has
come in PW-9's testimony that when she regained consciousness, she
found several persons present in her house. Even then, she did not name
A-1 to be one of the perpetrators of the crime. Police recorded her
statement at 11:30 P.M. She did not explain the inordinate delay in
making the statement to the police. In the cross-examination, she stated
that she had questioned the assailants as to where her son was. She and
Ram Kumar did not try to apprehend the accused. She admitted that she
did not notice any kind of weapon such as lathi, danda or knife in
possession of the accused at that time. She did not disclose the number of
the motorcycle to the police. It is highly improbable that PW-9 and PW-1
would not reveal the name of A-1 a prime suspect in the crime as there
was no occasion for him along with two others to enter the house of the
victim in her absence. A-1 was employed as driver about four years prior
to the occurrence and was not a regular visitor to the house. The exit of
the strangers from the house must have alerted the witnesses to name them
immediately as suspects. These circumstances make her presence and her
statement that she had seen A-1 to A-3 is highly suspicious and doubtful.
13. PW-1 (Ram Kumar) claimed that when PW-9 (Amita Goel)
was knocking at the door, he happened to reach there. He testified that
after some time, A-1 along with two boys came out of the house. When
PW-9 (Amita Goel) asked them as to where her son Shanu was, A-1
replied that he was inside the house and thereafter, all the three went away
on a blue colour motorcycle parked outside the house. The number of the
motorcycle was DL-3SAR-3954.
14. Admittedly, PW-1 (Ram Kumar) did not report the incident
to the police. He did not make call to police at No.100. He did not
accompany the victim to the hospital. The police reached the spot soon
after the occurrence but did not find him at the spot. He did not come
forward to disclose to the police that he had seen the assailants including
A-1 coming out of the house. He did not confront the assailants and did
not enquire as to why they had entered the house in the absence of PW-9
(Amita Goel). He did not attempt to catch hold of them or restrain them
from fleeing on the motorcycle. Even after coming to his house which was
at a short distance, he did not inform his wife and family members about
the complicity of A-1. He attempted to explain his absence stating he had
gone to Faridabad to attend a marriage. In the examination-in-chief, he did
not give explanation as to why he did not report the incident to the police
or the neighbours. He even did not testify that he had gone to attend the
marriage at Faridabad. Only in the cross-examination, he came up with
the plea that he left the house at 05.45 P.M. and went to Faridabad with
her niece Dimple to attend a simple function of ring ceremony. He
returned to the victim's house at 11.15 P.M. and his statement was
recorded by Insp.Veer Singh Tyagi on 27.02.2006. He did not give any
reason why he did not inform the police at number 100 and when the PCR
officials reached the spot and took the child to the hospital, why he did not
divulge the assailants's name to them. SI Ajay Singh Negi has stated that
he had sent the child to GTB Hospital in the PCR van. There was no
excuse for PW-1 (Ram Kumar) not to name A-1 as one of the culprits to
the Investigating Officer who was in search of eyewitnesses. Till he sent
rukka at 08.15 P.M., PW-17 did not find any eyewitness and family
member of the deceased. PW-1 (Ram Kumar) claimed close association
with the victim's family for the last ten years. Such a close acquaintance is
not expected to conveniently leave to attend a function after witnessing
the gruesome incident and would not disclose the family members or
relatives in the function about the incident. There was no hitch for PW-1
to report the occurrence to the police even during his presence in the
function at Faridabad. His conduct is unreasonable and makes his
presence at the spot doubtful. His plea that he had noted the number of the
motorcycle on which the assailants fled the spot on his palm does not
inspire confidence. This statement/conduct is contrary to the casualness
shown is not informing and stating fact to the police. His statement on
these vital facts has not been corroborated by any of his family member
during investigation. Even after coming to know that the child was
brutally injured and soon after the assailants including A-1 had come out
of the house, he did not raise alarm. He did not inform neighbours. In his
examination, he admitted that he left the house after the police arrived the
spot and took Shanu to hospital. His silence at that time not to disclose the
material facts rules out his presence at the spot. He did not try to
overpower the accused.
15. PW-15 (Sh.S.K.Malhotra, ACMM) recorded his statement
under Section 164 Cr.P.C. on 08.03.2006. The Investigating Officer did
not explain as to what forced him to get his statement recorded under
Section 164 Cr.P.C., belatedly. In that statement also he disclosed arrival
of the police in his presence but did not explain why he did not provide
the crucial clue about the incident to them. PW-1 (Ram Kumar) appears
to be a doctored witness. His statement cannot be reconciled with the
contemporaneous official record i.e. DD entry No.21, rukka and the FIR.
16. PW-12 (Anil Kumar Goel) categorically claimed that A-1
was employed by him as a driver four years prior to the occurrence in
2002 on a monthly salary of `2,800/- and he worked for a month only.
PW-9 (Amita Goel) corroborated his version and testified that A-1 worked
as a driver with them. In the cross-examination, she explained that her
husband did not know how to drive and he was employed as a driver for
one month in October, 2002. PW-1 (Ram Kumar) also deposed that he
identified A-1 as he was a driver with PW-12 (Anil Kumar Goel). We
have no reason to disbelieve PW-9 and PW-12 regarding employment of
A-1 as driver with them. In their statements recorded under Section 161
Cr.P.C., they had disclosed to the police about his employment as driver
with them. The police even visited A-1's house on the same night after
getting his address from them. A-1 was arrested on PW-12's
identification. They had no ulterior motive to falsely claim his
employment as driver with them about four years prior to the incident.
A-1 did not produce any document to show that he was minor in 2002,
and had no licence to drive a four wheeler. Her mother appeared as DW-7
but did not claim that A-1 never worked as a driver with the family of the
victim. In the absence of any material discrepancies in the statements of
the witnesses, we are of the view that the prosecution established that A-1
worked as a driver with the family of the deceased in 2002. But this does
not prove or show their involvement. This evidence indicates that the
family members may have suspected involvement of A-1.
17. A-2 and A-3 were arrested on the night intervening
3/4.03.2006. On 04.03.2006, an application for conducting TIP was
assigned to PW-16 (Sh.Pooran Chand, MM) and he fixed 08.03.2006 for
conducting it at Tihar Jail. However, A-2 and A-3 refused to participate in
the Test Identification Proceedings and their statements were recorded.
PW-16 proved the proceedings Ex.PW-16/A and Ex.PW-16/B. A-2
declined to participate in the Test Identification Proceedings alleging that
he was shown to the witnesses in police post Harsh Vihar on 04.03.2006
at 11.00 A.M. and was beaten by them. This explanation may not be
correct as no complaint was lodged by A-2 before the Metropolitan
Magistrate before whom he was produced for seeking judicial custody
remand. No such injuries were recorded by the concerned Metropolitan
Magistrate during remand proceedings. A-3 did not participate in the Test
Identification Proceedings stating that he was beaten by deceased's father
at the police post Harsh Vihar on 03.03.2006 at 10.00 A.M. He further
stated that there were four or five witnesses and other persons from the
locality and he was shown to them. Again, this explanation may not be
correct as no complaint was lodged with the Court at the time of his
seeking custody. The application for Test Identification Proceedings was
moved on 04.03.2006 itself, without undue delay and the accused were
sent to judicial custody. The application was assigned to Link
Metropolitan Magistrate, Tihar Jail for 06.03.2006. There was thus no
possibility of the police to show the accused to the witnesses as alleged.
A-3 did not examine any witness to prove when and from where, he was
arrested in this case. DW-1 (Devi Das) examined by him, merely stated
that A-3 was not arrested on 03.03.2006 and 04.03.2006. DW-2 (Mumtaz)
examined by A-2 merely stated that on 03.03.2006 at about 05.15 P.M. A-
2 was forcibly lifted however, she did not lodge any complaint to the
higher authorities for his arrest on 03.03.2006. PW-17 (SI Ajay Singh
Negi) and PW-18 (Insp.Veer Singh Tyagi) categorically denied that the
accused were shown to any witness after their arrest. No material
contradictions have been elicited on this aspect in their cross-examination.
We are of the view that the accused had no reasonable explanation to
decline to participate in the Test Identification Proceedings. However, the
moot question is whether PW-1 and PW-9 had in fact seen A-1, A-2 and
A-3 on 27.02.2006. In view of the above discussion their statements to the
said effect have been disbelieved. In these circumstances, the failure of
the accused A-2 and A-3 to participate in the TIP or their recognition in
the Court loses significance.
18. It is alleged that motorcycle No.DL-3SAR-3954 (Ex.PW-
7/B) was recovered from the possession of A-1 on 03.03.2006 at the time
of his arrest and seized vide seizure memo Ex.PW-7/B. The accused has
disputed this circumstance. According to the prosecution, PW-1 and PW-
9, had noticed motorcycle No.DL-3SAR-3954 parked outside the house
and the assailants including A-1 had fled on it. PW-1 (Ram Kumar) even
testified that he had noted the number of the motorcycle on his palm.
However, neither did PW-1 nor did PW-9 report to the police that
motorcycle (Ex.PW-7/B) was used in the commission of the crime. No
such fact finds mention in the rukka (Ex.PW-17/A) sent by PW-17 (SI
Ajay Singh Negi) at 08.15 P.M. PW-18 (Insp. Veer Singh Tyagi) deposed
in the cross-examination that he had recorded the statement of PW-1
(Ram Kumar) and PW-9 (Amita Goel) in between 11.00 P.M. to 11.30
P.M. on 27.02.2006. He did not explain what steps were taken by him to
intercept the motorcycle whose number was brought to his notice on
27.02.2006 itself. There is no evidence on record if any message was
flashed to the various police stations to seize the motorcycle used in the
offence. The Investigating Officer did not contact the Transport
Authorities to find out as to who was the registered owner of the said
motorcycle. The police visited the house of A-1 on the night intervening
27/28.02.2006 but did not find the motorcycle there. On 03.03.2006, at the
time of apprehension of the accused (A-1), the motorcycle was seized
from his possession vide seizure memo (Ex.PW-7/B). No independent
public witness was associated at the time of the recovery of the
motorcycle. PW-12 (Anil Kumar Goel) was a witness to the seizure
memo. However, in his examination-in-chief, he did not disclose that PW-
1 or PW-9 had informed him that motorcycle No.DL-3SAR-3954 was
used in the crime. The police did not join PW-1 and PW-9 at the time of
seizure of the motorcycle. After coming to know that the police was in his
search, after visiting his house, it is unbelievable that A-1 would roam
freely with the motorcycle in question. Key of the motorcycle was not
produced in the Court. PW-18 (Insp. Veer Singh Tyagi) admitted that
seizure memo regarding key of motorcycle was prepared. When asked
about the key, he stated that he did not know what happened with the key.
Malkhana register No.19 (Ex.PW-15/C) did not record if key of the
motorcycle was deposited. The IO also failed to collect any document to
show that the motorcycle in question was registered in the name of the
accused and if so, since when. Personal search memo Ex.PW-1/B reveals
that Registration Certificate recovered from the possession of the accused
was in the name of one Sabina D/o Akram Ali. There is no mention if any
driving licence was recovered at the time of arrest of A-1. All these
circumstances cast serious doubt if motorcycle (Ex.PW-7/B) was
recovered from the possession of the accused in the manner alleged by the
prosecution or that the said motorcycle was used by the assailants to flee
from the spot.
19. The possession of the fruits of the crime, soon after it has
been committed, affords a strong and reasonable ground for the
presumption that the party in whose possession they are found is the real
offender, unless he can account for such possession in some way
consistent with his innocence. However, the prosecution is required to
prove beyond doubt that the suspect was found in possession of the
robbed/stolen articles. The witnesses deposed that when they entered in
the house after the occurrence, the articles in the house were found
scattered. Cases of burglary by unknown persons are not uncommon.
However in the present case, there is no evidence that the main door, or
other windows or doors, were broken, to gain access to the house.
Possibility of a known person knocking at the door to make an entry
cannot be ruled out, but it cannot be said with certainty that the deceased
would have acquiesced Mukeem, who had worked for only one month
about five years back, to enter the house, along with two others. Entry by
someone who was better known is more probable. There is also a
probability that the door may have been left open. Possibility of only one
person committing both robbery and murder seems remote, keeping in
view large number of stab wounds on the body and manner in which
house was ransacked.
20. Photographs show that the almirahs were opened and
household articles were scattered all over. From the photographs, and as
per the prosecution, robbery was motive and the culprits had succeeded in
taking whatever valuables they found. Detailed description of missing
articles, which were later allegedly recovered from the accused, is relevant
and important. At the same time, caution and care has to be taken to
ensure that the valuables so recovered have not been planted.
21. As noticed above, in the present case testimony of Amita
Goel (PW-9) has been disbelieved. It is apparent that PW-9 and PW-12
suspected and believed that A-1 was behind the said murder and robbery.
This is clear from the fact that the police had visited A-1's residence on
the same night. As far as arrest of A-2 and A-3 is concerned, no public
witnesses were joined. Bu, what makes the recoveries in the present case a
suspect, are following reasons :
(i) No inmate of the house reported to the Investigating Officer
that any article from the house was stolen/robbed in the incident. Rukka
(Ex.PW-17/C) was sent for lodging First Information Report only under
Section 302 IPC.
(ii) No list of missing articles with their description was given to
the police during the initial investigation.
(iii) Details of missing articles were given by PW-12 only on
01.03.2006 after the cremation, though the offence was committed on
27.02.2006. The details were given only of three recovered articles i.e.
one gold set, two bangles and two ear-rings. In addition, it was stated that
`3500/- were missing.
(iv) The robbery therefore was of limited articles i.e. three in
number. This appears and looks to be inconsistent with the manner in
which the house was ransacked and the almirahs were broken.
(v) Loss of the said articles could have been easily ascertained
and would not have required verification and inventory. The delay in
recording the details of the articles gave an opportunity and chance to
plant recovery.
(vi) As per the prosecution version, one article each i.e. the gold
set, two bangles and two ear-rings were recovered from A-1, A-2 and A-3,
respectively. Therefore, recovery, as per the prosecution version, has
been attributed to each one of three accused in respect of each stolen
article.
(vii) The recovery in the present case is not substantial. The police
allegedly recovered all the stolen articles i.e. the gold set, two bangles and
two ear-rings on the same night intervening 03/04.03.2006 from different
accused persons and at different locations.
(viii) The police visited A-1's house many times before his arrest
on 03.03.2006 at about 09.00 P.M. No attempt was made by the police
during those visits to search his house to recover the stolen/robbed
articles.
(ix) Recovery from A-1 is under highly suspicious circumstance.
It is stated that he was caught when he was riding a motorcycle and from
his pants, the necklace i.e. gold set was recovered. Recovery from A-2
was made on 04.03.2006 from Loni, Ghaziabad, his brother-in-law's
house. Recovery from A-3 of ear-rings was made from the house of his
maternal grand mother (nani).
(x) As per prosecution's case, the three appellant accused had
not sold or disposed off any of the stolen articles, even after a gap of six to
seven days. This does not appear to be probable and is contrary to normal
human conduct.
(xi) Section 394 was added only on 01.03.2006, after the
statements of Anil Goel and Amita Goel under Section 161 Cr.P.C. were
recorded.
(xii) During the alleged recoveries from the possession of the
accused or at their instance, no independent public witness was joined.
The local police was not associated at the time of the recoveries.
(xiii) The Investigating Officer could not arrange similar necklace
or ear-rings to be mixed with the recovered articles for holding Test
Identification Proceedings. Consequently, Test Identification Proceedings
qua necklace and ear-rings could not be conducted. No family member of
the victim was present at the time of recovery of the ear-rings and bangles
for identification. Description of the recovered articles including its
weight etc. has not come on record. The Investigating Officer did not
collect any documents showing ownership of these articles.
Considering all these circumstances, the recoveries cannot be
taken as incriminating circumstance against the accused.
22. It is alleged that on the night intervening 03/04.03.2006 A-2
also recovered a knife lying in the garbage on the roof of the house of his
brother-in-law. No independent pubic witness was associated at the time
of recovery of the knife. The knife had no specific identification mark.
No photographs of the garbage on the roof were taken. The local police
of Ghaziabad was also not informed about the raid and no police official
from the local police station was joined in the investigation. It is not clear
since when A-2 was residing with his sister. Recovery of knife under
these circumstances from an open place accessible to all i.e. roof after six
days of the incident is suspicious.
23. The knife was sent to Forensic Science Laboratory. The FSL
reports reveal that human blood was deducted on it. However, its group
could not be ascertained. Thus it cannot be said with certainty that the
knife (Ex.P-1) was used in the commission of offence.
24. A-1, pursuant to his disclosure statement recovered his blood
stained shirt lying in a bed box from his house. A-3 produced one yellow
colour shirt and black pant which he was wearing at the time of
occurrence. A-2 also produced one shirt of light purple colour and one
light blue jeans from his house. For the reasons mentioned above, the
recoveries of these clothes have not been established beyond reasonable
doubt. No reliable evidence is on record to prove that the assailants were
wearing these clothes at the time of incident. PW-1 and PW-9 could not
prove that they had seen the assailants coming out of the house soon after
the occurrence. There was no occasion for the accused to retain
bloodstained clothes at their respective houses even after six days after
coming to know that the police had suspected A-1 and had visited his
house for apprehension. Of course, deceased's blood group (O) was
ascertained only on T-shirt, another T-shirt and pant (jeans). The
prosecution, however, did not establish what was the blood group of the
accused. This blood group 'O' may belong to others as well.
25. There are inherent defects in the prosecution case. The crime
team could not lift any chance prints/finger prints on any article. No
efforts were made to find out if PW-1 (Ram Kumar) was residing in the
neighbourhood of the victim and was known to them and if so, since when
or what business/job he used to do to earn his livelihood and what was its
timings. The IO did not examine the shopkeeper from whom PW-1 had
allegedly gone to purchase cigarette before reaching the spot. It was not
investigated if there was marriage of PW-1's niece at Faridabad or he had
attended the said marriage and if so for what duration. No call details of
the witnesses and that of the accused were collected. There is no
documentary evidence to show that A-1 was employed as a driver with the
complainant and if so under what circumstances, he was removed from
the job. There was no investigation about the antecedents of the accused
to find out their involvement in any such criminal activity. It is not clear
how and when A-1 to A-3 came into contact with each other to hatch
conspiracy to commit the crime. It was not found from where the
assailants had bought the knives. The police did not investigate what
forced A-2 and A-3 to reside with his brother-in-law and maternal
grandmother respectively. The police even arrested one Sagir who was
discharged vide order dated 13.12.2011 by the Trial court. His arrest and
involvement of a fourth person is inconsistent with the prosecution case.
The police did not contact the transport authorities to find out who was the
registered owner of the motorcycle, when it was purchased and how it
came into A-1's possession. Inspector Veer Singh Tyagi strangely came to
know about the gruesome incident in his area only at about 9:00 P.M.
after rukka was sent by PW-17 (SI Ajay Singh Negi) for registration of
the First Information Report. Prior to that, two DD entries 21 and 22 had
been recorded about the incident before 6:00 P.M. Despite that PW-18
did not bother to rush to the scene of occurrence to find out the details of
the incident. When he was confronted on material facts and inquiries
were made from him whether he had mentioned those facts in the case-
diary, he expressed ignorance. He refused to refresh his memory after
going through the contents of the case diaries. It is not clear in what
manner the assailants gained entry inside the house and by what process
the articles were robbed i.e. if the lock of the almirah was broken to take
out the articles. Deceased's sister doing CA was not examined. It is not
clear at what time she reached the spot from her place of work or if she
had met PW-1 and PW-9 prior to the lodging of the First Information
Report. The IO could not arrange 'similar' case property to be mixed with
the recovered articles in Test Identification Proceedings. The IO did not
flash message to intercept the motorcycle whose number was revealed to
him. The police did not search the house of the accused prior to their
arrest. The IO did not record the statement of any employee of the bank
where PW-9 used to work to find out at what time she had left the bank
that day. No neighbour of the victim was examined to ascertain till which
time PW-9 (Amita Goel) remained unconscious. PW-1's family members
were also not examined to corroborate his version. PW-1 was facing trial
in two cases, one under Section 307 IPC and other under Section 506 IPC.
No documents regarding the ownership of the gold ornaments were
collected. Cash of `3,500/- allegedly robbed could not be recovered.
26. Number of discrepancies have emerged in the testimonies of
the witnesses. PW-5 (Const. Sunil) of Mobile Crime Team took
photographs (Ex.PW-5/A1 to PW-5/A7). In the cross-examination, he
disclosed that when they reached the spot, deceased's mother and sister
were present in the house and were weeping bitterly. They remained at
the spot for about 40-50 minutes and his statement was recorded by the IO
at about 6:30 or 7:00 P.M. He deposed about the presence of Inspector
Veer Singh Tyagi there at that time. PW-18 (Inspt.Veer Singh Tyagi) to
the contrary claimed that he reached the spot at about 9:15 P.M. and did
not find Amita Goel, deceased's mother, in the house. She met him at
11:00 P.M. as she had fainted and had come to the spot from the
neighbourhood. PW-6 (Const.Ramesh) deposed that when he handed
over copy of the FIR to Inspector Veer Singh at the spot, Amita Goel and
Ram Kumar were present at the spot. In the cross-examination, he stated
that when they reached the spot, one lady i.e. Amita Goel was lying
unconscious. She was interrogated by the SHO at about 7:30 P.M. When
rukka was sent, Amita Goel was present in her drawing room. He further
stated that Ram Kumar remained present throughout at the spot and he
could not tell the exact time when he left the spot.
27. PW-11 (SI Anil Kumar Pandey), Incharge Mobile Team, in
the cross-examination revealed that during his visit from 6:30 P.M. to
7:20 P.M. he checked the entire house for lifting chance prints but did not
find any female lying unconscious in the house. It contradicts PW-18's
statement that he had requested the crime team at about 9:15 P.M. to
inspect the scene of crime.
28. PW-7 (HC Vijay Kumar), member of the raiding team, stated
that when they reached A-3's house he was found sleeping in the house.
PW-17 (SI Ajay Tyagi) stated that he was sitting on a 'deewan'. They
gave different timings as to when they reached A-3's house. PW-18
stated that he did not see the accused sleeping in the house.
29. PW-7 (HC Vijay Kumar) gave inconsistent version as to how
they reached the spot where A-1 was arrested. He stated that informer
met them on the way at about 5:45 A.M. and left their company after 5-10
minutes. PW-17 (SI Ajay Singh) on the other hand deposed that he
organized a raiding party and reached Kale Sarai. They received
information that A-1 would come at the house of his in-laws at about 9:00
P.M. He passed on the information to the SHO and requested him to join
Amita Goel or any other family member to identify A-1. At about 8:15
P.M. IO along with Anil Goel reached near IIT Gate and he verified the
information from the secret informer. PW-18 (Inspt.Veer Singh Tyagi)
still gave another version that on 03.03.2006 at about 6:00 P.M. he
received information from SI Ajay Kumar Tyagi about the arrival of A-1.
He, thereafter, went to Anil's house and took him along with him and
reached Kale Sarai at 8:15 to 8:30 P.M. At about 9:00 P.M. A-1 was
arrested and identified by Anil Goel. In the cross-examination, he
disclosed that he had sent the vehicle to call Anil Goel. Anil Goel met
them at his house at about 6:15 P.M. PW-15 (Anil Goel) contradicted him
and in the examination-in-chief deposed that on 03.03.2006 at about 6:30
P.M., he visited PS Nand Nagri and was associated in the investigation by
the police.
30. On the basis of above discussion, we hold that the
prosecution failed to establish the chain of circumstances which could link
the appellants with the crime. In the result, the appeals are allowed and the
impugned judgment is set aside. The appellants are acquitted giving them
benefit of doubt. The appellants shall be released forthwith if not required
to be detained in any other case. The Trial Court record be sent back
forthwith. All pending applications stand disposed of.
(S.P.GARG)
JUDGE
(SANJIV KHANNA)
JUDGE
September 21, 2012
sa/tr
