Mohd. Mustaq vs The State (Nct Of Delhi)
2013 Latest Caselaw 361 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CRIMINAL APPEAL NO. 199/2011

                                 Reserved on: 6th December, 2012
%                            Date of Decision: 24th January, 2013


MOHD. MUSTAQ                                 ..... Appellant
            Through Mr. Bhupesh Narula, Advocate.

                                 Versus

THE STATE (NCT OF DELHI)                       ..... Respondent

Through Mr. Sanjay Lao, APP for the State.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE S.P.GARG

SANJIV KHANNA, J:

Mohd. Mustaq, by this first appeal, challenges his conviction

vide impugned judgment dated 20th October, 2010, for murder of

Manju and pilfered valuables and cash, on 1st September, 2006, under

Section 302 and 392 of the Indian Penal Code, 1860 (IPC, for short).

By the order of sentence dated 27th October, 2010, the appellant has

been sentenced to life imprisonment for the offence under Section

302/34 IPC and Rs.10,000/- as fine with stipulation that he will

undergo Simple Imprisonment for six months in case of default in

payment of fine, and Rigorous Imprisonment for ten years and fine of

Rs.7,000/- with the condition that in case of default of payment of fine

shall undergo Simple Imprisonment of four months for the offence

under Section 392/34 IPC.

2. At the outset, we may notice that two other accused, Mehtab and

Habibullah, were chargesheeted but could not be arrested and brought

to trial. They were declared as Proclaimed Offenders (PO).

3. We record that homicidal death of the deceased Manju, on 1st

September, 2006, because of injuries caused between 8.30 A.M. to

11.30 A.M., on ground floor of D-1/20, Sita Puri, Part-I, New Delhi

remains undisputed. Dr. Anil Shandil (PW-4), posted as Senior

Resident, Department of Forensic Medicine, DDU Hospital, New

Delhi, has proved the inflicted injuries on deceased‟s body, found after

due examination conducted during the post mortem on 2nd September,

2006. The Post Mortem Report (Ex.PW-4/A) delineates following

injuries:

"External Injuries:

1. Incised looking cut wound with well defined regular margins left side forehead 2 cm. below hair line and 3 c.m. from mid line of dimension 1.9 cm×0.2 cm with dried up blood clots along margins.

2. Incised cut wound over palmar aspect of left hand over proximal phalanx of middle finger, ring finder of size 1.2×0.2 cm and 1cm×0.2 cm with dried up blood clots along margins.

3. Multiple irregular shaped reddish abrasion 11cm from natal cleft 7cm from mid line and left side back varying in size from 0.3cm ×0.2 cm to 1.1m×0.2 cm in an area 10cm×7 cm.

                      Head:               Brain matter pale.



                       Neck:                Cut throat wound present over front

and sides of neck with clean cut well defined regular margins 4cm left from mid line nad 9 cm right from mid line and 4 cm from hyper extended chin, 3 cm from right angle of mandible 7.6 cm above jugular notch and 2.7 cm from mandible bone left side of dimension 13 cm × 5 cm in to tracheal deep with blood cloths over the wound, chest both arms. The wound cutting through right side vessels of neck and anteriorly trachea with blood clots corresponding with clean cut well defined regular margins.

                      Chest:       Heart empty, all coronaries patent,
                      musculature and valves NAD.
                      Abdomen: All abdominal viscera pale.

Opinion: All the injuries were antemortem in nature and caused by sharp edged weapon. Time since death was approximately about 24 hours prior to post mortem. Cause of death was hemorrhage and shock resulting from injury to right side vessels of neck and injury to trachea cumulative effect of which was sufficient to cause death in ordinary course of nature."

PW-4 further opined that the injuries could possibly have

been inflicted using the produced knife (Exhibit P-1) or similar

instrument.

3. The deceased Manju, wife of Devki Nandan (PW-1), was residing at

RZ D-120, Sitapuri, New Delhi, as proved from the statement of PW-1.

He has averred that, on 1st September, 2006 after 11.30 A.M., he

rushed home and discovered that Manju‟s dead body was lying, with

the aforesaid injuries inflicted on the body. Lady Head Constable

Sunita (PW-8), the duty officer in Police Station, Dabri on 1st

September, 2006 between 8 A.M. to 4 P.M, has proved that she

recorded DD No. 17A (Exhibit PW-8/A), at about 11.48 A.M. On the

same day at about 2.15 P.M., FIR No. 848/2006 (Exhibit PW-8/B) was

recorded, on the basis of rukka sent by SI Maharaj Singh (PW-27)

through Constable Sunil. SI Maharaj Singh (PW-27) has deposed

similarly. Thus, it can be conclusively held that Manju was stabbed to

death, on 1st Sept. 2006, before 11.30 A.M. She was last seen alive on

1st Sept, 2006 morning at 8.30 A.M., according to PW-1‟s statement.

4. The basic dispute pertains to the alleged involvement of the

appellant, in the said crime and whether the prosecution has established

case against the appellant beyond reasonable doubt. The prosecution

case, on the involvement of the appellant, largely rests upon the

statement of Devki Nandan (PW-1) husband of the deceased, Laxmi

Kant Srivastava (PW-7), SI Maharaj Singh (PW-27) and Inspector

Dharamvir Singh (PW-28).

5. It is an undisputed position that the appellant‟s name is not

mentioned in the FIR, which was recorded on the basis of PW-1 Devki

Nandan‟s statement. PW-1, in his statement (Exhibit PW-27/A (rukka)

has stated that, on 1st September, 2006, at 8.30 A.M., he had left home

for his shop and by that time his children had already left for their

school. At about 11.30 A.M., a neighbour came to his shop and asked

him to immediately reach his residence as an incident had occured

there. On reaching the house, he found that his wife Manju was lying

in the kitchen, smeared in blood, and injury marks were visible on her

body. A knife was lying near the corpse, the belongings were scattered

and the almirah was left open. He has averred that Rs.10,000-15,000/-

and 100-125 grams of gold jewellery had been looted by the assailants.

The property, in question, was two floored construction on 40 square

yards plot and had two rooms on the first floor. PW-1 had rented one

room to Ayesha and her two daughters and the second room to two

boys, who had approached him just the evening before the incident.

One of the boys had given his name as Mohd. Rustam but PW-1 did

not remember the second boy‟s name. He had identified Mohd.

Rustam to be between 20-22 years old and the second boy to be around

24-25 years old. Ayesha and her two daughters generally left the

property by 9.00-9.30 A.M. but, according to him, when he left in the

morning for the shop, the two boys were still present in the room,

upstairs. PW-1 has, in his statement, suspected involvement of those

two boys, who had rented his room, in the commission of the said

offence.

6. As per the court testimony of PW-1, his supplementary

statement (Exhibit PW-1/DA) was recorded on 1st September, 2006

wherein he had mentioned that Mohd. Rustam had given his telephone

number as 9213444549 but had informed that the said phone was out

of order, at the time. He has further stated that the second person was

about 30-35 years old, fair in complexion and about 5.8 feet in height

but of strong built. However, Dharamvir Singh (PW-28) Investigating

Officer, in his examination-in-chief, has stated that, on 3rd September,

2006, the complainant Devki Nandan (PW-1) had disclosed to him

that, at the time of letting out of the room, the two boys had given the

telephone No. 9213444549 as their contact number. Thus, there is a

contradiction regarding the date on which PW-1 had disclosed

regarding Telephone No. 9213444549 and the date on which

supplementary statement (Exhibit PW-1/DA) was recorded. The

police file does state that Devki Nandan had given a supplementary

statement under Section 161 Cr.P.C., on 1st September, 2006 but does

not record the telephone number or the age of the second accused,

whose name was unknown. Similarly, the police file for 2nd

September, 2006 does not mention that any efforts were made to locate

details of the subscriber of the telephone number 9213444549 and

ascertain or locate the place of usage, and neither were the call

details/cell tower details obtained. The case diary for 2nd and 3rd

September, 2006 similarly does not refer to the said number or

consequent inquiries which would have followed. The case diary for

3rd September, 2006 refers to local inquiries and the inclination that the

accused might be working in an export factory stands recorded.

Inquiries from the beat constable etc. were indicated. It is only on 4th

September, 2006, in the case diary No. 4, that inquiry about telephone

number 9818444549 gets reflected for the first time. The details of this

number, the name of the subscriber and other details including ID etc.

were collected. It also came into notice that the said number had been

issued by Raj Telecom. This factum was also admitted and accepted

by Inspector Dharamvir Singh (PW-28), in his statement in chief,

wherein he proved the details (marked Exhibit PW-23/A to PW-23/C)

collected from Tata Indicom office through the Nodal Officer. The

said telephone number was issued in the name of Laxmikant Srivastava

s/o Satya Prakash, resident of Soothna Barsola, District Lakhimpur-

Khiri, U.P. On the same day Samyuddin, who was running a

fabrication unit at D-504, Sita Puri, Dabri, was interrogated. He

disclosed that the said number belonged to one worker Mehtab and led

them to his residence, at Chankaya Place near Madina Masjid, where

landlady Sayada Khatum met them. She revealed that Mehtab had not

been seen, at this residence, since 1st September, 2006. Samyuddin

took them to the shop of Mukesh (PW-3), STD Booth operator, who

confirmed that the said number belonged to one Mehtab. As noticed

above, Mehtab has not been arrested and has been declared PO in the

present case.

7. Thereafter, on 7th September, 2006, PW-28 along with the police

staff went to village Soothna Barsola, Police Station Tikonia, District

Lakhimpur-Khiri, U.P. and interrogated Lakshmikant Srivastava, on

whose name the telephone number was obtained. They also

interrogated Istkhar @ Raju, cousin brother of Mehtab. Lakshmikant

Srivastava revealed the friendship amongst Mehtab, Habibullah, (both

proclaimed offenders) and the present appellant Mustaq. Samayuddin

affirmed that, on 30th August, 2006, he had seen Habibullah and

Mustaq at Mehtab‟s residence.

8. Before we examine the testimony of Lakshmikant Srivastava

(PW-7), we would like to refer to the statement of Mukesh (PW-3) and

Vinay Jain (PW-5). Mukesh (PW-3) has stated that one person

Mehtab, who was working in Samyuddin‟s factory and resided near the

masjid on rent, used to come with his brother Raju to purchase goods

regularly. Vinay Jain (PW-5) has stated that he had issued the Tata

Mobile Phone No. 9213444549 in subscriber Lakshmikant Srivastava‟s

name, on 24th March, 2006. However, he did not remember whether

two boys Mehtab and Raju had accompanied Lakshmikant Srivastava,

at the said time. He was declared hostile and cross-examined by the

public prosecutor but denied that he knew Mehtab and Raju, prior to

24th March, 2006. He has averred that local address Sitapuri was

written by the person who had come to purchase the SIM card and,

therefore, in the entry, in his diary (Exhibit PW-5/A), the local address

mentioned was D-104, Sitapuri, New Delhi. This was the address of

Mehtab.

9. Lakshmikant Srivastava (PW-7), in his testimony, has agreed

that he purchased the mobile No. 9213444549 for Mehtab (PO) on the

basis of his ID proof. He knew Mehtab because they belonged to the

same village and when PW-7 had come to Delhi, in April, 2006 to

meet his sister, he had visited Mehtab in Uttam Nagar. At that time, it

had been two years since Mehtab had not visited his family, in the

village and they had requested him to meet Mehtab. He stayed at

Mehtab‟s residence where he had seen Mustaq and Habibullah (PO).

He had visited Mustaq‟s residence, in Gurgaon, with Mehtab. He had

informed the police that the number, in question, was being used by

Mehtab but was purchased with his name as subscriber, when he had

come to Delhi. The police interrogated and brought him to Delhi to

assist the investigation. They went to Mehtab‟s house but it was

locked. He was further interrogated and he suggested that Mehtab

could be with the appellant Mustaq. Thereafter, PW-7 took the police

to Mustaq‟s residence at Subzi Mandi, Kapashera where the appellant

was interrogated and, thereafter, arrested. From the house of Mustaq, a

shirt was recovered. PW-7 has stated that the police had come to his

village on 7-8th September, 2006. Police diary of 8th September, 2006

reveals that they had gone to Lakshmikant Srivastava‟s village and

interrogated him. In his examination-in-chief, PW-7 has indicated that

"after" (i.e. he had stated the facts regarding accused Mustaq) he was

then set free. Thus, he had been detained by the police till the

appellant was interrogated and detained. (The disclosure statement and

recovery of the clothes, which the appellant Mustaq had worn, at the

time of occurrence shall be examined separately).

10. This brings us to the crucial aspect regarding Devki Nandan

(PW-1)‟s evidence. The said witness had identified the appellant

Mustaq, as the second boy, who had been taken as tenant, on 31st

August, 2006. He has propelled that it was Mustaq who had come with

Mohd. Rustam. As noted above, Mohd. Rustam‟s name is mentioned

in the statement of PW-1, i.e., rukka (Exhibit PW-1/A) but the

appellant‟s name is not to be found. We notice that the appellant had

refused to participate in the Test Identification Parade (TIP). When

this fact was put to the appellant, at the time when his statement under

Section 313 Cr.P.C. was recorded, he has riposted "I was shown to the

complainant by the police, in the police station, after making me bald

due to which I refused to participate in the TIP". It may be relevant to

note here that, in the said statement, the appellant Mustaq admitted that

he was arrested on 10th September, 2006 by Inspector Dharamvir Singh

(PW-27) from his residence- Quarter No. 8, Bihari Kachi Colony, close

to a drain near Kapashera border. He has accepted that Lakshmikant

Srivastava was present there, with the police team. He has even

affirmed his arrest memo.

11. Ordinarily, the testimony, made in the court by a related witness,

who has identified the culprit, is accepted i.e., in the present case, the

allegation that the appellant was the second tenant. The fact that PW-1

is the deceased‟s husband by itself cannot be a ground to reject his

deposition and appellant‟s identification, in the Court, by him.

However, in the present case there are several considerations which

insinuate that PW-1‟s statement and the identification, made by him in

the court, is unreliable and not trustworthy. In the present case, the

police had charge sheeted three persons; Habibullah, Mehtab and the

appellant. Mehtab and Habibullah are both PO and, hence, have not

been subjected to trial because they could not be arrested. Mohd.

Mehtab‟s name is delineated in the FIR and stands affirmed by PW-1

who had disclosed this immediately after the occurrence, when the

police visited the crime spot. PW-1 was unable to give the second

name and, therefore, gave a general description of the second boy, in

his first statement (Ex PW1/A) which is also reflected and recorded in

the FIR. Therein he estimated the second boy‟s age to be between 24-

25 years. The appellant herein is about 35 years of age and could not

have been 24-25 years age at the time of incident. This is further

fortified by the MLC (Ex. PW 11/A) , wherein his age is mentioned to

be 35 years. It was submitted by the public prosecutor that, in the

second statement under Section 161 Cr.P.C. recorded on 1st September,

2006, that is the date of occurrence itself, PW-1 had given the second

boy‟s age to be between 30-35 years. We have already raked that the

second statement of the PW-1 does not appear to have been

recorded on 1st September, 2006 but is rather a subsequent recording

probably on 3rd September, 2006. In the second statement, tenant‟s

telephone number is disclosed but inquiries regarding the telephone

number were initiated only on 4th September, 2006 and not before. In

the arrest form of the appellant, available in the police file, his age is

recorded to be 36 years with observations that he is of medium built

and shallow complexion. Further, against the columns „beard‟ and

„mustache‟ it is indicated to be black. In other words, the appellant had

black beard and mustache, when he was arrested. It mentioned that the

appellant had a mole on the neck. (Photocopy of the arrest form is

directed to be kept on record and for identification is marked HC-1).

This fact is not mentioned in the FIR or even in the second statement

(Exhibit PW-1/DA). What is mentioned in the said statement is that

the second person had a mole on his cheek. Now, it is not the

prosecution case that the appellant had grown the beard or

moustache, after 1st September, 2006 and hence the mole was not

identifiable or he had done so to change his appearance. More

importantly, after failed search for the two other absconding accused,

the police were, fortuitously, led to their acquaintance Lakshmikant

Srivastava (PW-7) who was brought to Delhi by the police from his

residence in Village Soothna Barsola, U.P., and entailed in the present

case. PW-1 had claimed that 100-125 grams gold and Rs 10,000 were

pilfered. No jewellery or cash was, however, recovered from the

appellant‟s personal search or on the basis of his disclosure statement.

The loot was of substantial value and it is not palatable that, if the

appellant was involved in the robbery, he would be so ingenuous as to

not be a beneficiary of the loot. The motive behind the crime is

evidently and undeniably to steal money and valuables. Neither has the

police investigation suggested that they suspected sale of gold, by the

appellant to a third party. Additionally the chance finger prints lifted

from the almirah are not attributed to the appellant.

12. Learned Public Prosecutor submitted that PW-1‟s shirt, with

sticker „Vijay Tailor‟ on it, was recovered from the appellant Mustaq‟s

possession and was later identified in the TIP by PW-1. The first

statement (Ex. PW1/A) does not disclose that two shirts were missing,

with the stolen goods, but this is, interestingly, mentioned in the

second statement (Ex. PW1/DA). The fact that the shirt was stolen

and, thereafter, recovered from the appellant, by itself and without

recovery of the valuable items, would not justify accepting PW-1‟s

stand.

13. The another corroborating fact, relied by the prosecution to

advance their case, is the recovery of blood stained clothes, allegedly

worn by the appellant at the time of commission of offence. These

clothes were found on 11th September, 2006, i.e., after about ten days

of the occurrence from bushes of a park in Sector-1, Dwarka.

Ostensibly, the appellant had produced a shirt (Exhibit No. P-50), kept

in the polythene bag. It is not copacetic and believable that the

recovered shirt was kept intact, in polythene, even after many days of

the occurrence. This position comes under suspicion when it is noticed

that PW-7, who was the witness to the recovery, in his cross-

examination has been unable to give any details as to how and in what

manner the shirt was recovered. He has stated "it is correct that I did

not (sic) go inside the park from where as accused Mustaq had

produced the shirt in the polythene. The two police men had gone with

Mustaq inside the park. I do not remember the name of the officials

who had stayed outside. I cannot say whether IO had gone inside or

not. I was so nervous at that time that I cannot say as to how much

time was taken by the accused to take out the shirt from the bushes".

14. As per the FIR (Ex. PW-8/B) and PW-1‟s deposition, Mehtab and

one other tenant were the perpetrators of the crime. Prosecution has,

however, chosen to prosecute against three- Mustaq, Habibullah and the

appellant. Involvement of a third person is not proved or established. The

core issue is whether the second person/tenant was Habibullah, the

proclaimed offender, or the appellant Mustaq. Habibullah is a proclaimed

offender and has not been arrested, therefore, has not faced trial. PW-1, no

doubt, has identified the appellant as the second tenant but we have doubts

about the said identification, in the court, for various reasons stated above,

including mismatching of physical features as mentioned in the FIR, 2nd

statement (Exhibit PW1D/A) and in the arrest form. Further, as noticed,

no recovery of stolen/looted articles has been made from the appellant

though, as per the FIR (Ex.PW-8/B), 100-125 grams gold and Rs 10,000/-

was swindled from the house. Further, the appellant did not abscond or

run away whereas Habibbullah and Mehtab have and are untraceable after

the occurrence. Thus, there is a considerable possibility that Habibullah

was the 2nd person/tenant and the appellant has been implicated because

Habibullah has not been found. The prosecution has not been able to

dispel this doubt. In a case of circumstantial evidence, the circumstances

from which inference of guilt is sought to be drawn must be cogently and

firmly established. The circumstances taken cumulatively should form a

chain so complete that there is no escape from the conclusion that within

all human probability the crime was committed by the accused and no one

else. Circumstances established should show a definite tendency

unerringly pointing towards the guilt of the accused and in order to sustain

conviction, must be complete and incapable of explanation other than guilt

of the accused. Evidence should be inconsistent with his innocence (see

Chandmal vs. State of Rajasthan, AIR 1976 SC 917 and Padala Veera

Reddy vs. State of Andhra Pradesh & Ors. (3) 1989 Supp (2) SCC 706).

We are conscious of the fact that meticulous perfection is not required and

proof beyond reasonable doubt does not mean completely foolproof. We

have to be realistic and not swayed by stray chances of innocence. But

evidence established in this case, as elucidated above, does not show and

meet the required and accepted parameters for conviction based on

circumstantial evidence. The required parameter that the facts

cumulatively must show unerring tendency of guilt of the accused and that

the accused within all human probability had committed the crime and

rule out possibility of involvement of a third person i.e. Habibullah, in this

case, is not satisfied.

15. As observed in Sharad Birdhichand Sarda v. State of

Maharashtra (1984) 4 SCC 116, the circumstantial evidence, in order to

sustain a conviction, must be complete and incapable of any other

explanation or hypothesis, other than the guilt of the accused. The

following conditions must be fulfilled before a case against an accused

can be said to be fully established on circumstantial evidence:

(1) The circumstances from which the conclusion of guilt is to be

drawn must or should be and not merely „may be‟ fully established,

(2) The facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they should not be

explainable on any other hypothesis except that the accused is guilty,

(3) The circumstances should be of a conclusive nature and tendency,

(4) They should exclude every possible hypothesis except the one to be

proved, and

(5) There must be a chain of evidence so complete as not to leave any

reasonable ground for the conclusion consistent with the innocence of the

accused and must show that in all human probability the act must have

been done by the accused.

16. In view of the aforesaid position, we are inclined to extend benefit

of doubt to the appellant. He is accordingly acquitted and will be released

immediately unless required to be detained in any other case in

accordance with law. Appeal is accordingly disposed of.

-sd-

(SANJIV KHANNA) JUDGE

-sd-

( S.P. GARG) JUDGE

JANUARY 24, 2013 VKR/kkb