Ali Hasan vs State
2013 Latest Caselaw 743 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of decision: 14th February, 2013

+                    CRIMINAL APPEAL 899/2011

         ALI HASAN                                     ..... Appellant
                  Through        Mr. Bhupesh Narula, Advocate.

                     versus

         STATE                                           ..... Respondent
                     Through     Mr. Sanjay Lao, APP.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

SANJIV KHANNA, J. (ORAL)

By order dated 8th December, 2010, the appellant Ali Hasan

stands sentenced to life imprisonment and fine of Rs.10,000/- for the

offence under Section 302 of the Indian Penal Code, 1860 (IPC)

arising out of FIR No.129/2007, Police Station Narela. It has been

held that the appellant had committed murder of his step son Mohd.

Anwar. The appellant, however, has been acquitted under Section 201

IPC and the State has accepted this portion of the judgment. The order

on sentence dated 8th December, 2010 states that in case the appellant

does not pay the fine of Rs.10,000/-, he shall undergo Rigorous

Imprisonment for three months.

2. Learned counsel appearing for the appellant has challenged the

conviction on the ground that there was delay in recording of the FIR

as Mohd. Anwar, as per the prosecution version, had gone missing on

19th February, 2007. The FIR was registered on 2nd March, 2007 at

about 9.30 P.M. It is submitted that there was no motive or cause for

the appellant to finish and kill his step son Mohd. Anwar. Further the

trial court erred in relying upon the purported earlier report/complaint

dated 25th February, 2007 marked Ex.PW-2/B-2 and 7/B. It is stated

that the so called complaint has been manufactured or created by the

police to justify the delay in recording of the FIR and should be

disbelieved as there is no daily diary entry of the complaint and for the

alleged investigation thereafter being entrusted to ASI Karan Singh

Dahiya, who had appeared as PW-10.

3. The first daily diary entry in the present case was recorded vide

DD No.29A (Ex.PW-7/A) on 2nd March, 2007 at 6.20 P.M. The said

DD entry records that information had been received from a PCR van

that a dead body of a child was lying in the bushes near CRPF Camp,

Narela-Bawana Road. Name of the child was not mentioned. The

police thereafter got activated.

4. ASI Dharamvir (PW-15) has deposed that on 2nd March, 2007,

he was on PCR van duty and was posted at Narela Bawana Road near

JJ Colony-I. At about 6.15 P.M. on that day some passersby informed

that a dead body of a boy was lying in the bushes opposite CRPF

Camp. PW-15 reached there and found that a dead body of a boy aged

about 8/9 years was lying in the bushes. He gave information to PCR

and after some time, SI Mahinder Singh (PW-7) from Police Station

Narela reached at the spot along with his staff. In the cross-

examination he has stated that SI Mahender Singh along with his staff

had reached at the spot within twenty minutes.

5. The aforesaid statement is fully corroborated by SI Mahender

Singh (PW-7) and Constable Manjeet (PW-13). These two police

officers had reached at the spot after the dead body of Mohd. Anwar

was noticed by ASI Dharamvir (PW-15). PW-7 has made a similar

statement that dead body of a boy was found in bushes near CRPF

Camp, Narela Bawana Road. The age of the boy appeared to be 8-9

years. The body was decomposed and boy was wearing a T-shirt of

yellow colour. Constable Manjeet (PW-13) has deposed that body

appeared to be lying there for some time. Both of them have stated

that in the meantime Inspector Jitender Singh (PW-16), the then SHO

and other officers reached at the spot. PW-7 has stated that the

deceased boy was identified as Mohd. Anwar by his mother Rameeda

Khatoon. The Investigating Officer thereafter recorded statement of

Rameeda Khatoon, prepared rukka and sent it to the police station

through Constable Ram Karan (PW-6) for registration of FIR. Further

investigation was carried out by Inspector Jitender Singh. Constable

Manjeet (PW-13) has similarly stated that one lady, namely, Rameeda

Khatoon was present there and identified the dead body as that of her

son Mohd. Anwar. He has stated that Rameeda Khatoon was present

there with her previous husband. The discrepancy in the statement of

police witnesses, whether Rameeda Khatoon had first reached the spot

and thereafter her previous husband had come or both of them had

together reached the said spot is a minor discrepancy, which does not

destroy or make the prosecution case doubtful.

6. Rameeda Khatoon, who appeared as PW-2, in her statement

before the Court, has stated that she was previously married with

Mohd. Alam (PW-5) and was blessed with four children. Mohd.

Anwar was one of them. Mohd. Alam had divorced her and got

married to another lady. After three years, she also got married to the

appellant Ali Hasan, whom she identified in the Court. Ali Hasan

used to pull rickshaw at Chandni Chowk. After her second marriage,

she along with her children from her previous husband started living

with Ali Hasan. However, the appellant Ali Hasan did not like the

children and used to beat them. On 19 th of the relevant month in the

year 2007, Mohd. Anwar had accompanied and gone with his step

father Ali Hasan. Ali Hasan came back after 2-3 days, but Mohd.

Anwar was not with him. When PW-2 enquired, she was informed

that Mohd. Anwar had been left with one of his relatives. Ali Hasan

assured her that he would bring back Anwar within 2-3 days.

Thereafter, PW-2 insisted that the appellant should bring back Mohd.

Anwar and threatened that in case he did not bring back her son, she

would report the matter to the police. Appellant Ali Hasan then left the

house on the pretext that he would bring back Mohd. Anwar. But the

dead body of Mohd. Anwar was found on 2nd March, 2007, near

Amrud Ka Bagh, JJ Colony, Bawana, Delhi.

7. At this stage, we may note that Rameeda Khatoon (PW-2) was

residing in a Jhuggi near government school, JJ Colony, Bawana and

the dead body was found near the Jhuggi area. PW-2 has deposed that

she had reported the matter to the police and had suspected the

appellant‟s involvement. The dead body was found 11 days after

Mohd. Anwar had left the house with the appellant. She had confided

and informed about the entire incident to her previous husband Mohd.

Alam. She and her previous husband visited the Police Station Narela.

She had earlier made a complaint dated 25th February, 2007

(Ex.PW2/B-2) to the police. The carbon copy of the said complaint,

which also has the seal of police station Narela is Ex.PW7/B. Office

copy or the original copy is Ex.PW2/B-2. On the original copy it is

recorded:-

"ASI Karan Singh For n/action

SHO/NCA 25/2/07"

8. This complaint Ex. PW2/B-2 and Ex.PW7/B was not diarized in

the daily diary. This should have been done as required and mandated

by law. The appellant now wants to take advantage of this error and

mistake made by the police. However, we feel that even if we ignore

the documents Ex. PW2/B-2 and Ex.PW7/B, there are sufficient

grounds and reasons to sustain the conviction of the appellant.

9. At this stage, we would only record that Rameeda Khatoon

(PW-2) and her former husband Mohd. Alam belong to the lower strata

of the society. PW-2 was a rag-picker at Chandni Chowk. It is

difficult and requires courage for the said persons even to go to the

police station and make a report. Police must be sensitive and serious

about the complaints made by them. Their complaints should be dealt

with in accordance with law. Lapses made by police can result in

miscarriage of justice. What is apparent and clear from the testimony

of PW-2 is that she had seen the dead body of her young son aged

between 8-9 years on 2nd March, 2007 at about 7 P.M. The dead body

was found from the bushes near Amrud Ka Bagh, Narela Bawana

Road, Delhi. The facts narrated by her indicate that PW-2 and her

previous husband Mohd. Alam had been looking around and searching

for Mohd. Anwar, who had gone missing and was not traceable.

Immediately after identifying the dead body, Rameeda Khatoon made

a complaint Ex.PW2/A. The said complaint forms the basis or is the

„rukka‟ which was recorded. Immediately „tehrir‟ was sent to the

police station Narela for recording of FIR at about 9 P.M. on 2 nd

March, 2007. The FIR (Ex.PW4/A) in question was recorded at 9.30

P.M. and DD No.33A was duly made in this regard. Thus, within

about three hours from when dead body of Mohd. Anwar was found,

the FIR was registered on the complaint made by PW-2. For the sake

of convenience what was stated by PW-2 in Ex.PW2/A, is quoted

below:-

"Ramida Khatoon w/o Ali Hasan r/o Jhuggi, Near B- Block Govt. School, J.J. Colony, Bawana, Delhi made the following statement :

I reside at the aforesaid address alongwith my children and do the work of rag-picking at Chandni Chowk. My first marriage was solemnized in the year 1990 with Mohd. Alam s/o Mohd. Mauleen r/o Village, Post Office and Police Station Nauhatta, Mohalla Pakhat Tola, Distt. Saharsa (Bihar). After five years of our marriage, we shifted to Delhi. Out of the said wedlock, I gave birth to four children including three daughters and a son namely Anwar who is about 8/9 years old. About five years ago my husband Alam divorced me and made second marriage and started living with his second wife. Thereafter about three years ago, I also married with one Ali Hasan s/o Mohd. Jameel r/o Village Jhalari, (?) Distt. Araria, Bihar. After that I alongwith Ali Hasan and my four children started living at the aforesaid address. Ali Hasan did not do any work and used to spend even the little money that I earned. He (Ali Hasan) would hate my four children and used to give beatings to them. On 19th (?) my son Anwar had gone with his father Ali Hasan. He did not return even after 2-3 days. On inquiring, Ali Hasan told me that he had left Anwar with someone. On 24/02/2007, when my son Anwar did not come, I said Ali Hasan to lodge a report at the Police Station in this regard. Thereupon, Ali Hasan said to bring Anwar back. Thereafter Ali Hasan left the Jhuggi and did not return till date. Today, the deadbody of my son Anwar has been found in the bushes at J.J. Colony, Bawana near Guava Tree Garden, Delhi. I am sure that Ali Hasan has murdered my son Anwar

and dumped him in the bushes.

You have recorded my statement which I have heard and the same is correct."

„A‟ R.T.I. of Ramida"

10. Thus, from the very beginning PW-2 suspected involvement of

her husband i.e. the appellant herein. Her testimony in court is on

identical lines.

11. Testimony of PW-2 is also supported by statement of Shahana

Khatoon (PW-3) aged 12 years, the elder sister of Mohd. Anwar.

Before she was examined, questions were put to her by the Judge to

verify whether she is capable of giving cogent answers. She has stated

that they used to live with the appellant after her mother got married

with him. The appellant used to beat them as well as their mother. She

did not remember the date, but stated that the appellant had taken her

brother Mohd. Anwar away at about 8 P.M. and thereafter her brother

Anwar did return though her step father returned after 2-3 days. When

they inquired, the appellant informed them that he had left Anwar at

the house of some known person. When her mother insisted that the

appellant should bring Anwar back, otherwise she would report the

matter to the police, the appellant left the house and did not return.

After some days, dead body of Mohd. Anwar was found. Her mother

asked PW-3 to inform her father Mohd. Alam. In the cross-

examination she deposed that she had not been tutored by anyone.

Voluntarily again stated that Anwar was taken by the appellant in her

presence, but she could not tell the date. At that time the appellant had

stated that he was taking Anwar for a round. She denied the

suggestion that she was tutored by her father i.e. Mohd. Alam.

12. The father Mohd. Alam has appeared as PW-5. He testified that

PW-2 was his previous wife and after six-seven years of marriage he

had divorced her. They had four children and Anwar was one of them.

After divorce, PW-2 had started living in a Jhuggi in Bawana with the

children. PW-5 married Zahira Khatoon and PW-2 also got married

with the appellant-Ali Hasan. PW-2 had informed him that Anwar

was taken away by the appellant on 19th February, 2007 and he did not

return thereafter. They waited for 3-4 days for Anwar to return and

then went to the police station to lodge a report. He continued with his

efforts to trace Anwar as well as the appellant. On 2 nd March, 2007,

Shahana Khatoon (PW-3) informed him that the dead body of Anwar

was found lying in the bushes. He went to the said place and saw the

dead body of Anwar. Police reached at the spot and carried out the

proceedings. He identified the dead body and received custody of the

dead body after the post mortem. 3-4 days thereafter the appellant was

apprehended at the old Delhi Railway Station. He identified the

appellant and had signed his arrest memo (Ex.PW5/B) and personal

search memo (Ex.PW5/C). PW-5 in his cross-examination has stated

that after divorce, PW-2 use to pick garbage to earn her livelihood.

During his marriage with Rameeda Khatoon, she was a housewife. At

the time of divorce, Anwar was 3-4 years of age and her elder daughter

Shahana was 6 years old. After divorce he had asked PW-2 to

handover custody of children, but PW-2 refused as the children were

too young and were not willing to leave their mother. On 25 th

February, 2007, he was called by PW-2 through his daughter Shahana

Khatoon (PW-3). They had gone to the police station at 10-11 A.M.

He had started searching for Anwar and made inquiries from the

locality and had visited the known places where the appellant could be

found. He could not contact the appellant-Ali Hasan as he was not

available. In the cross-examination he has stated that PW-3 had

informed him about the presence of the dead body at about 3-4 P.M.

This obviously is an error or mistake. With lapse of time such

errors/inconsistencies do occur. This error or mistake does not make

the prosecution case doubtful. We may notice here that the crime team

was called at the spot and immediately report Ex.PW8/A was prepared.

The crime team remained at the spot from 7.10 P.M to 8 P.M. on 2nd

March, 2007. Name of the deceased is mentioned in the crime team

report Ex.PW8/A as Mohd. Anwar s/o Mohd. Alam. This was

possible only if somebody had identified the dead body. In the DD

No.29A dated 2nd March, 2007 (Ex.PW7/A), which was recorded at

6.20 P.M. name of the child is not mentioned. It is obvious that the

police came to know about the name of the child/deceased within this

period. In addition, we have photographs marked Ex.PW1/B-1 to B-7

taken by the crime team. The said photographs show dead body of a

young boy lying hidden in the bushes. The body was decomposed.

13. As per the post mortem report (Ex. PW14/A), no definite

opinion could be given regarding cause of death due to advance stage

of decomposition. The said post mortem report was given by Dr.

Upender Kishore (PW-14), who had conducted the said post mortem

on the body of Anwar aged about 8 years. He has stated that body was

in highly decomposed condition. Maggots were crawling all over the

body in mottleing stage. Blackening of the body present, fouls were

present, mandible, teeth, front and back of the neck exposed. Neck

tissues were eaten by maggots. Bones of neck were exposed. Beetles

in early stage were also present. Scalp hair was loose. Rigor mortis

had passed off. Postmortem staining was not appreciable. Eyes were

putrified. Stomach was empty.

14. The post mortem report confirms that Anwar must have been

missing for some time. This would have necessarily shaken up the

mother, PW-2 and other children. It was natural for them to get in

touch with Mohd. Alam, father of Anwar and previous husband of

PW-2. The appellant was missing and was not traceable. He had

earlier taken Anwar with him on 19th February, 2007 and thereafter

Anwar did not come back. Ali Hasan, the appellant was not found at

the site when the dead body of Anwar was found on 2 nd March, 2007.

The appellant was arrested after nearly 3 days thereafter on 6th March,

2007 vide arrest memo Ex. PW5/B.

15. Confronted with the aforesaid facts, the appellant in his statement

under Section 313 Cr.P.C. has stated:-

"Rameeda Khatoon wants (wanted) to again join her previous husband, but I did not want to left her."

This answer was given by the appellant in response to the last

question i.e., why the present case was registered against him? In

response to other questions put to him the appellant simply denied the

allegations as wrong or stated that it was a matter of record. He did not

claim that he had also tried to locate or find Anwar.

16. The plea that Rameeda Khatoon (PW-2) wanted to re-marry her

previous husband is a sham defence. Mohd. Alam (PW-5) and PW-2

have both stated that Mohd. Alam had got re-married. PW-5 has stated

that he had married Zahira Khatoon. It is also not understandable why

PW-2 and 3 would have framed and made false allegation against the

appellant. It is difficult to accept the contention that PW-3 would have

concocted a false story to implicate the appellant. As noticed above,

„rukka‟ after recording of „tehrir‟ was sent to the police station for

registration of FIR on 2nd March, 2007 at 9.30 P.M. The Investigating

Officer has deposed on similar lines and has proved the investigation,

which was undertaken in the present case finally leading to the arrest

of the appellant.

17. The contention that delay in lodging FIR is fatal in the present

case has to be rejected. Prompt and immediate lodging of FIR has

advantages as it ensures prompt investigation without lapse of time and

also negates the possibility of concoction of a false version. When

there is delay in lodging of FIR we have to examine the reason and the

cause for such delay. There can be a variety of genuine causes and

when such causes are not reflective of an effort to concoct a false

version, the delay by itself is not enough to doubt the case of the

prosecution.

18. Keeping in view the factual matrix of the present case the socio- economic background to which PW2 and PW5 belong to and the close relationship amongst the victim, the complainant and the perpetrator, we hold that the so called delay in FIR is not fatal and has been satisfactorily explained. Of course if we take into consideration the complaint dated 25.02.2007 (Ex.PW-2/B-2) there would in fact virtually be no delay. Only one accused i.e. the appellant, was named in the FIR and in the factual matrix of the instant case the "delay" is certainly not reflective of an effort to concoct a false story to implicate the appellant.

19. In Tara Singh v. State of Punjab 1991Supp(1)SCC 536, the Supreme Court has examined the question of delay in lodging of FIR and has observed:

"4. It is well-settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. ...."

20. This position was reiterated in Ravinder Kumar and Anr. v. State of Punjab (2001) 7 SCC 690, wherein it was observed:

"13. The attack on the prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. OF course a prompt and immediate lodging of the FIR is the ideal as that would given the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.

14. When there in criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of uncoversantness is not too uncommon among urban people also. They might not immediately think of going as the police station. Another possibility is due to lack to adequate transport facilities for the informers to reach the police station. The

third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or seductiveness of temper of moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident."

21. In the present case there is evidence of last seen, as Anwar, the boy was last seen being taken away by his step-father, the appellant herein. The statement of PW-2 affirming the said facts stands fully corroborated by the sister of Anwar, PW-3 Shahana Khatoon. The conduct of the appellant implicates him and establishes his involvement as he thereafter vanished. He was not present when the dead body of Anwar was found on 02.03.07. He was subsequently arrested on 06.03.07.

22. Keeping in view the aforesaid facts, the chain of incriminating circumstances that stand established against the appellant is complete and leads to the irresistible conclusion of guilt of the appellant. Therefore, we dismiss this appeal and affirm the judgment of the Trial Court and maintain the conviction and sentence of the appellant for the murder of Anwar, his stepson.

(SANJIV KHANNA) JUDGE

(SIDDHARTH MRIDUL) JUDGE FEBRUARY 14, 2013 NA