Delhi High Court
Mohd. Fazal vs State on 19 May, 2014
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal No. 243/2009
Reserved on: 25th February, 2014
% Date of Decision : 19th May, 2014
Mohd. Fazal ....Appellant
Through Mr. R.M. Tufail, Amicus Curiae with
Mr. Anwar A. Khan, Mr. Farooq Chaudhary
and Mr. Vishal Raj Sehijpal, Advs.
Versus
State ...Respondent
Through Ms. Rajdipa Behura, APP.
Crl. Appeal 230/2009
Suraiya ....Appellant
Through Mr. R.M. Tufail, Amicus Curiae with
Mr. Anwar A. Khan, Mr. Farooq Chaudhary
And Mr. Vishal Raj Sehijpal, Advs.
Versus
State ...Respondent
Through Ms. Rajdipa Behura, APP.
Crl. Rev. Petition 361/2009
Naseem Bano ....Appellant
Through Mohd. Saleem, Advocate.
Versus
State ...Respondent
Through Ms. Rajdipa Behura, APP.
Crl.Appeals 243, 230/09, 1231/10 & Crl. Rev.P. 361/09 Page 1 of 48
Crl. Appeal 511/2009
Mohan Seth ....Appellant
Through Mr. R.M. Tufail, Amicus Curiae with
Mr. Anwar A. Khan, Mr. Farooq Chaudhary
And Mr. Vishal Raj Sehijpal, Advs.
Versus
State ...Respondent
Through Ms. Rajdipa Behura, APP.
Crl. Appeal 1231/2010
State Govt. of NCT of Delhi ....Appellant
Through Ms. Rajdipa Behura, APP.
Versus
Noor Ahmed Anjum and Ors. ...Respondents
Through Mr. R.M. Tufail, Amicus Curiae with
Mr. Anwar A. Khan, Mr. Farooq Chaudhary
And Mr. Vishal Raj Sehijpal, Advs.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE G. P. MITTAL
SANJIV KHANNA, J.
These appeals including Crl. Revision Petition filed by Naseem
Bano arise out of a common judgment dated 17 th March, 2009 in
Session Case No. 70/2003, relating to FIR No. 167/2003 P.S. Hazrat
Nizamuddin. By the said judgment, Suraiya and Mohd. Fazal have
been convicted under Section 302 read with Section 120-B of the
Indian Penal Code, 1860 (IPC, for short) and Mohd. Fazal and Mohan
Seth have been convicted under Section 201/34 IPC. Noor Ahmed,
Rahil and Mohan Seth have been acquitted for offences under Section
302 read with Section 120B IPC and the State has filed Crl. Appeal
No. 1231/2010 seeking reversal. Criminal Revision Petition No.
361/2009 is with a similar prayer i.e. it seek conviction of Noor
Ahmed, Rahil and Mohan Seth under Section 302 read with Section
120B IPC.
2. Suraiya is wife of Noor Ahmed and Rahil is their son. Mohd.
Fazal is brother of Suraiya. Mohan Seth, it is claimed is their friend.
3. The deceased Shakeel ur Rehman was a neighbour of Suraiya
and Noor Ahmed and was residing in property number 15/1 Jaipur
Estate, Nizamuddin, New Delhi. It is an undisputed and accepted
position that there were disputes and differences between Shakeel ur
Rehman and Suraiya and her family regarding the said property. A
suit for specific performance, CS No. 2151/1999 was filed by Shakeel
ur Rehman against Fazal, Suraiya and ors. which was pending before
the High Court and interim order had been passed. In fact on 7th
April, 2003, FIR No. 169/2003 (Ex. PW8/DG) was registered on a
complaint made by the appellant Suraiya with P.S. Nizamuddin.
4. There is also evidence that on 6th April, 2003, the deceased
along with others had tried to raise a boundary wall on the disputed
property, which was objected to by Noor Ahmed, Suraiya etc. and as
a result, complaints were made to the police, which were recorded as
DD entries no. 10A (Ex PW 3/A/Ex.PW8/D) and 16A. Noor Ahmed
in reply to question Nos. 5, 6 and 7, in his statement recorded under
Section 313 Criminal Procedure Code, 1973 (Cr.P.C., for short) had
accepted the aforesaid factual position and had accepted that he was
called to the police station on 6th April, 2003. Police officers had
advised the parties to patch up and resolve their disputes. Suraiya in
response to question No. 5, in her statement under Section 313
Cr.P.C., accepted that there was a transaction for sale and purchase of
plot No. 15/1, Jaipur Estate, Nizamuddin between her and Shakeel ur
Rehman but, denied having received Rs.1 crore. Similarly, appellant
Mohd. Fazal had stated that there was a transaction between Suraiya
and Shakeel ur Rehman for purchase of property but denied payment
of Rs.1 crore to Suraiya by Shakeel ur Rehman. Rahil, son of Noor
Ahmed and Suraiya, however, in his statement under Section 313
Cr.P.C. stated that „this was incorrect‟ and „he had no knowledge‟.
Similar stand has been taken by Mohan Seth in his statement under
Section 313 Cr.P.C.
5. Aniq ur Rehman (PW3) brother of the deceased, Lubna Habib
(PW4) sister of the deceased and Naseem Bano (PW6) wife of the
deceased have testified about the facts as they occurred on 6th April,
2003. They have uniformly deposed that Shakeel ur Rehman and
Aniq ur Rehman (PW3) were getting the boundary wall constructed,
but this was objected to. It thus, led to disputes between them and
Suraiya and others regarding the property and abuses were hurled.
Aniq ur Rehman (PW3) had deposed about attempt or threat of
physical violence. The two sides went to the police station and were
advised to resolve their differences. In the evening, the deceased
Shakeel ur Rehman was called to the house/ residence of Suraiya and
Noor Ahmed for settlement. In his statement under Section 313
Cr.P.C. while replying to question No. 7, Noor Ahmed had accepted
that Shakeel ur Rehman had come to their house after the police
officers had advised them to patch up, though this has been denied
and not accepted as correct by Suraiya and others.
6. Aniq ur Rehman (PW3), Ms. Lubna (PW4) and Ms. Nasim
Bano (PW6) have asserted that Shakeel ur Rehman returned to his
residence at about 7/7.30 PM, but soon thereafter he received a
telephone call from Suraiya. He left for Suraiya‟s residence
informing that he would come back after some time. Earlier, Shakeel
ur Rehman had stated that the matter had been settled. Aniq ur
Rehman (PW3) claimed that he had accompanied the deceased
Shakeel ur Rehman to the house of Suraiya, and came back and
remained at 15/1 Jaipur Estate till about 10.30 PM. By that time
Shakeel ur Rehman had not returned. Similar assertions have been
made by Ms. Lubna (PW4) and Naseem Bano (PW6). When
Shakeel ur Rehman did not return till 12 midnight, Lubna (PW4)
made a call to Aniq ur Rehman (PW3), who was residing at 161/52
Jogabai Nagar, Delhi. Thereupon Aniq ur Rehman came to the
residence of Shakeel ur Rehman. Attempts were made to speak to
Shakeel ur Rehman on his mobile phones , but in vain. At 4.40 AM,
Aniq ur Rehman (PW3) rang up No. 100 and made a complaint that
his brother Shakeel ur Rehman had left for the house of Noor
Ahmed/Suraiya @ Anjum and had not returned. DD entry No. 25A
(Ex. PW16/A) was recorded. This was followed by another DD entry
No. 27/A (Ex. PW 3/B) recorded at 7.15 AM on 7th April, 2003 at
Police Station, Hazrat Nizamuddin. In Ex. PW3/B, it stands recorded
that on 6th April, 2003, Shakeel ur Rehman had parked his vehicle
and stated that he was proceeding to meet Anjum. Shakeel ur
Rehman‟s two mobile phones with numbers 31078285 and 56023910
remained switched off and inspite of efforts, he could not be located.
Shakeel ur Rehman aged 38 years, height 5‟10", wheatish
complexion, was wearing white shirt, grey pant and black shoes.
Subsequently, Aniq ur Rehman made another complaint Ex. PW3/A
and FIR in question 167/2003 under Section 365/34 IPC (Ex. PW8/A)
was recorded at 5.30 PM on 7th April, 2003. DD entry No. 10/A (Ex.
PW8/DA) was also recorded. The complaint, on the basis of which
FIR was recorded, no doubt, was written after taking professional
help from a person well conversant with law and is in legal language,
but this is not sufficient to disregard or disbelieve the factual contents
thereof. The complaint/FIR is in accord and in consonance with the
court testimonies of Aniq ur Rehman (PW3), Lubna (PW4) and
Naseem Bano (PW6) that Shakeel ur Rehman had left for the
residence of Noor Ahmed and Suraiya at about 7/7.30 PM on 6th
April, 2003.
7. At this stage, we would like to repel the contentions raised by
the convicted appellants, Noor Ahmed and Rahil that there is
discrepancy as to the time mentioned in the FIR (Ex. PW8/A) i.e.
7.30 PM and the time as mentioned in DD entry No. 27/A (Ex.
PW3/B) i.e. 10.30 PM and this goes to the root of the prosecution
version and therefore, the charge should not be accepted. Aniq ur
Rehman (PW3), Lubna (PW4) and Naseem Bano (PW6) have
deposed that Aniq ur Rehman had remained at 15/1 Jaipur Estate till
about 10.30 PM on 6th April, 2003 before going to his residence.
The oral complaint resulting in DD Entry No. 27/A (Ex. PW3/B) was
recorded at about 7.30 AM on 7th April, 2003. The time 10.30 PM
mentioned in DD Entry NO. 27/A, Ex. PW3/B, we do not think
should be given undue importance and credence, contrary to the
written complaint (Ex. PW3/A) made at 5.30 PM on 7.4.2003, which
resulted in registration of the FIR (Ex. PW8/A). The ocular
depositions clearly supports the time mentioned in the FIR ( Ex PW
8/A). Even if there was difference or error in the time, the same was
corrected shortly and without undue delay. The FIR was initially
registered under Section 365/34 IPC on 7th April 2003 at 5.30 PM.
Till 5.30 PM on 7th April, 2003, no one had any clue and family
members of Shakeel ur Rehman were neither aware nor had the
slightest idea as to what had happened. The complainants were not
aware or conscious of the timing with reference to call details of
Mohd. Fazal and Rahil. The difference in the timing is not relevant
and material. What is material and relevant is that in DD entry No.
27/A (Ex. PW 3/B) as well as FIR (Ex. PW8/A), it was mentioned
and recorded that Shakeel ur Rehman had gone to the house of Anjum
and thereafter he was not traceable. His mobile phones were
switched off. Thus, the court depositions of Aniq ur Rehman (PW3),
Lubna (PW4) and Naseem Bano (PW6) support the initial complaint
(Ex. PW3/B), as well as written complaint resulting in FIR (PW8/A),
that the deceased Shakeel ur Rehman had gone to the residence of
Suraiya/Noor Ahmed and thereafter went missing.
8. There is ample evidence and material to show that after
registration of FIR, Suraiya, Noor Ahmed, Rahil and others were
interrogated [see court depositions made by SI Ram Sahai (PW19)],
but initially no progress was made and investigation remained
inconclusive and confused.
9. On 13th April, 2003, at 1.00 PM, as deposed by SI Ram Sahai
(PW19), Mohd. Fazal and Mohan Seth were arrested at 1.00 PM vide
arrest memos Ex. PW19/A and PW19/B respectively. They made
disclosure statements Ex. PW19/E and PW19/F respectively as to the
facts leading to the death of Shakeel ur Rehman which part is
inadmissible, but they also admitted and disclosed that dead body of
Shakeel ur Rehman was taken in a car to Haridwar by both of them
and thrown at a little distance from Singdwar chowk by the side of
Ganga Nahar. They were accompanied by one Madam Seema in the
car, who was not aware about the purpose of the visit or the facts but
she was taken by them to avoid any search/check of the vehicle and to
avoid suspicion.
10. Shakeel ur Rehman had died homicidal death and he was
strangulated and died due to asphyxia. [see paragraph 15 below].
11. There is enough evidence and material to show that Mohd.
Fazal and Mohan Seth had gone to Haridwar in the intervening night
of 6th and 7th April, 2003. Mohan Seth had stayed in a hotel at
Haridwar and Mohd. Fazal came back to Delhi in the early morning
of 7th April, 2003. (see paragraphs 13 and 14 below and other
paragraphs)
12. After recovery of the dead body, Suraiya, Noor Ahmed and
Rahil were arrested and charge-sheeted along with Mohd. Fazal and
Mohan Seth.
13. SI Ram Sahai (PW19) has deposed that Insp. K.K. Gaur
(PW24) along with other police officers and Mohd. Fazal and Mohan
Seth thereupon drove to Haridwar. Laiq ur Rehman, another brother
of Shakeel ur Rehman who deposed as PW5, Mohd. Tariq (PW7),
nephew of the deceased and one Mohd. Javed (PW20) also went to
Haridwar in another car/vehicle.
14. At Haridwar, dead body of Shakeel ur Rehman was recovered
in the presence of SI Ram Sahai (PW19), Insp. K. K. Gaur (PW24),
SI Ajay Kumar Singh (PW21) of Delhi Police, Laiq ur Rehman
(PW5) and Mohd. Javed (PW20). SI Rajesh Kumar of Uttranchal
Police (PW13) was also present at the spot. Photographs (Ex.
PW24/1 to 13) were taken. Recovery of the dead body was also
videographed as deposed to by Nitin Gupta (PW12), a
photographer/shop owner at Haridwar. SI Rajesh Kumar (PW13) has
deposed that on 13th April, 2003, he was posted at Kankhal when the
police officers from P.S. Hazrat Nizamuddin, Delhi had come to the
said police station with Mohan Seth and Mohd. Fazal. He was
deputed to accompany them to Singdwar and a videographer was with
them. Mohd. Fazal pointed out a place at the distance of one and a
half furlong towards the west of Singdwar and a dead body of a male
wearing half shirt labeled „M. Ilahi‟ and Sando baniyan was
recovered. Dead body was identified as that of Shakeel ur Rehman.
In the cross-examination, he deposed that information regarding dead
body was communicated by them at P.S. Kankhal at 6.05 PM over the
phone. He denied that the said dead body was visible and could be
seen from the ghat and dead body was recovered in the early evening
on 12th April, 2003. He had stated that police party from Delhi had
reached P.S. Kankhal at 5.00/5.30 PM. Deposition of SI Ram Sahai
(PW19) on the recovery of the dead body is almost identical. Similar
deposition were made by Insp. K.K. Gaur (PW24) and SI A.K. Singh
(PW21).
15. Post mortem on the dead body of Shakeel ur Rehman was
conducted by Dr. Pradeep Kumar (PW9), Pathologist, District
Hospital, Haridwar on 14th April, 2003. The post mortem
commenced at 12.50 AM. He noticed that rigor mortis was absent
and body was in advanced stage of decomposition. Eye sockets were
empty, mouth was open and lips were dry hard. The skin peeled off
at places leaving behind a greenish discoloration. Fingers and toes
were black and dry hard. Hair of skull were loose and could be
pulled out. Nails were also loose. Maggots of 0.5 to 1 cm in sizes
were present. PW9 further opined that anti mortem injuries in the
nature of ligature mark continuously, horizontally placed , lower
down in the neck below the thyroid cartilage 9 cms below right ear,
8.5 cms below left ear and 10 cms below the chin were present. The
groove was pale with reddish ecchymosed margins. No other
external injury marks were seen due to decomposition. It was opined
that the death was due to asphyxia as a result of strangulation and
time since death was 3 to 5 days.
16. It was highlighted on behalf of the defence that Dr. Pradeep
Kumar (PW9) had preserved body parts for DNA examination.
However, PW-9 in his cross-examination had stated that he had
recommended DNA report only because the police had asked for the
same. At the same time PW9 stated that the body had been identified
and, therefore, he had not made any separate recommendation for
DNA test. It is an accepted position that no DNA report was asked
or obtained. The prosecution relies upon statement of Laiq ur
Rehman (PW5), who identified the body was of Shakeel ur Rehman.
PW5 has stated that he had identified the dead body from the hair and
clothes of the deceased. Deceased was wearing white colour half
sleeve shirt, an underwear, vest and grey colour socks. We do not
think, we should disbelieve or reject identification of the dead body
by Laiq ur Rehman (PW5). Laiq ur Rehman was brother of Shakeel
ur Rehman and his testimony that he recognized the dead body of
Shakeel ur Rehman should be accepted as truthful and correct. The
dead body was cremated by the relatives of Shakeel ur Rehman and
the last rites were performed on 14th April, 2003. PW5 in the cross-
examination had stated that before cremation, the dead body was
given a bath and denied the suggestion that the dead body did not
belong to his brother and, therefore, proper burial was not performed.
The clothes worn by the deceased i.e. shirt and the under garments
were recognized by Naseem Bano (PW6), wife of the deceased, were
marked Ex. P2. In the cross-examination, PW6 had stated that the
label of the tailor had helped her to identify that the shirt belonged to
her deceased husband and the name of the tailor was „M. Ilahi‟. The
clothes of the deceased were also identified by Lubna (PW4), sister of
the deceased. Aniq ur Rehman (PW3), however, was not able to
identify the clothes when they were shown to him in the court as they
were in rotten condition. But this does not mean that we should
disregard the depositions of Naseem Bano (PW6) wife of the
deceased, brother Laiq ur Rehman (PW5) and sister Lubna (PW4).
We, therefore, hold that the identity of the dead body as that of
Shakeel ur Rehman was proved beyond doubt and there should not
be any debate on the same.
17. Learned counsel for the defence has submitted that there is
some discrepancy as to the timing of the recovery of the dead body
and our attention was also drawn to the statement of Mohd. Javed
(PW20). It was highlighted that Mohd. Tariq (PW7) had not stated a
word regarding recovery of the dead body though he had also gone to
Haridwar and was present at the time when the dead body was
recovered, as per the testimony of Laiq ur Rehman (PW5) and Mohd.
Javed (PW20). In the written arguments on behalf of the defence, it
is pleaded that Mohd. Tariq (PW7) had, therefore, not gone to
Haridwar at all. We need not go into the controversy, whether Mohd.
Tariq (PW7) was present at the time when the dead body was
recovered, because he neither stated nor deposed to the said aspect.
Mohd. Tariq (PW7) in his court deposition had only mentioned that
he had received a call at 12 midnight from Aniq ur Rehman and had
gone to his house at Jogabal Okhla, on his coming to know that his
maternal uncle Shakeel ur Rehman was missing. They came to the
house of Shakeel ur Rehman and tried to contact him on mobile
phones. He waited for Shakeel ur Rehman to return till 4 AM but he
did not return and his phones were switched off. The said witness
was not cross examined. Mohd. Javed (PW20) has partly supported
the prosecution case but has given different timings regarding visit to
Haridwar. He has claimed that they had reached Haridwar in the
morning and stayed in a hotel. However, he could not remember
name of the hotel. He deposed that Mohan Seth and Mohd. Fazal
were taken by the police to some place and thereafter they returned.
They then accompanied the police to a place from where a dead body
in a highly decomposed condition was recovered. Laiq ur Rehman
told him that the dead body was of his brother, Shakeel ur Rehman.
Local police was called. He identified Mohan Seth and Mohd. Fazal
who were present in court. He was cross-examined by the Additional
Public Prosecutor on various aspects purportedly averred/mentioned
in his statement under Section 161 Cr.P.C. (Ex. PW 20/A). He
denied several suggestions but accepted that the dead body was
wearing a white shirt, under wear and brother of Laiq ur Rehman had
identified the dead body and also accepted that videography was
done. In the cross-examination, Mohd. Javed (PW20) has stated that
they had left for Haridwar at 5 AM and reached Haridwar at 11 AM
and had gone from the hotel to recover the dead body at 2 PM. On
the question of timing, we are not inclined to accept the testimony of
Mohd. Javed (PW20). The testimony of videographer Nitin Gupta
(PW12), who is an independent witness, is to the contrary. Similarly,
the testimony of SI Rajesh Kumar (PW13) of P.S. Kankhal is to the
contrary. We also have statements of Laiq ur Rehman (PW5), SI
Ram Sahai (PW19), SI Ajay Kumar Singh (PW21) and Insp. K.K.
Gaur (PW24) on identical terms. Examination of the order sheets of
the trial court reveals that Mohd. Javed (PW20) was a reluctant
witness. He initially did not appear inspite of summons and made
repeated requests for exemption from appearance. Subsequently,
non-bailable warrants were issued vide order dated 21st February,
2006. The said warrants were cancelled on an application moved on
17th April, 2006 and his testimony was finally recorded on 27 th May,
2006.
18. The factum that Mohd. Fazal and Mohan Seth were taken to
Haridwar on 13th April, 2003 by Insp. K. K. Gaur (PW24), SI Ajay
Kumar Singh (PW21) with Mohd. Laiq ur Rehman and others was
not denied by appellant Mohan Seth in response to question No. 17 of
his statement u/s 313 Cr.P.C. He accepted that he was taken to
Haridwar but claimed that he was not taken anywhere else and he
remained in the custody of the police in a hotel. Mohd. Fazal on the
other hand has denied the said facts stating that „it was incorrect‟ or
„he did not know‟.
19. Seema Grover, who as per the prosecution case had
accompanied Mohan Seth and Mohd. Fazal and was cited as
prosecution witness, did not depose in the court. In the order sheet
dated 18th February, 2005, it is recorded that as per the public
prosecutor, she had expired.
20. There are more factors and material which prove and establish
that Mohan Seth and Mohd. Fazal had gone to Haridwar in the night
intervening between 6th and 7th April, 2003. Firstly, on the basis of
disclosure statement of Mohan Seth and Mohd. Fazal, Ex. PW19/F
and PW19/E respectively, guest register maintained in Hotel Gautam
Siddharth was recovered. Pawan Deep (PW10), had proved the said
register and entry No. 1588 dated 7th April, 2003 at 2.00 AM wherein
Mohan Seth had checked in along with his wife. He had made
departure entry at 9.30 AM on the same morning and then had made
another arrival entry No. 1589 at 2.00 PM on 7th April, 2003. The last
entry on the register was made on 13th April, 2003. This register was
seized by Insp. K.K. Gaur (PW24) who has stated that he along with
SI Ram Sahai (PW19) and others had gone to Hotel Gautam
Siddharth and met Pawan Deep. On finding the said entry, they took
into possession the Guest Register vide seizure memo Ex. PW10/A.
Similar deposition was made by SI Ram Sahai (PW19).
21. Secondly, we have telephone call records in respect of mobile
numbers 9810919733 (Ex. PW23/A) and 9810786388 (Ex. PW23/B)
which were proved by R.K. Singh (PW23), Nodal Officer, Bharti
Airtel. He had also proved the site details of the towers which were
marked Ex. PW23/C. The details of the subscribers of the two mobile
numbers were proved as Ex. PW23/D and as per the said details, the
mobile number 9810919733 was issued to Mohd. Fazal and
9810786388 was issued to Mohd. Rahil Khan. The call details show
that mobile telephone calls were exchanged between Mohd. Fazal and
Rahil on 7th April, 2003 at 6.57 Hrs. and 07.04 Hrs. early morning
and at that time Mohd. Fazal‟s mobile phone was connected to or
received signals from mobile towers No. 7221 and 6662. As per the
mobile tower chart (Ex. PW23/C) (see full document on the trial court
record), the two mobile towers were located at Brij Vihar, Ghaziabad
and East Rohtas Nagar, respectively. This shows that Mohd. Fazal
was not in Delhi in the early morning on 7 th April, 2003 and this
corroborates the case of the prosecution that Mohd. Fazal was
returning to Delhi from Haridwar.
22. R.K. Singh (PW23) stated that they had also furnished call
records of mobile no. 9818300840. The police case diary also
records that the Investigating Officer had applied for call details of
the deceased on 8th April, 2003 and was supposed to receive the same
on the next day. Prosecution has not placed on record the call details
of deceased Shakeel ur Rehman and Suraiya. But we do not think
that in view of the evidence on record, the said lapse justifies clean
chit to Suraiya or others, once their involvement and the prosecution
version has been proved and established beyond doubt. We also
notice that no questions were put to any of the three Investigating
Officers namely SI Ram Sahai (PW19), Insp. Anil Kumar (PW22)
and Insp. K.K. Gaur (PW24) on the said aspect or call details of
9818300840 or call records of Shakeel ur Rehman or Suraiya.
23. This brings us to the evidence of the two minor children of the
deceased, Jafar (PW1) and Azhar (PW2), who were aged about 10
and 12 years at the time of their court depositions in
October/November, 2003. The court before recording their testimony
had ascertained whether the two witnesses, who were to depose
without oath, were competent and were capable of answering
questions. They had stated that on 6th April, 2003 at about 9 PM
while returning from market they had seen Esteem car of Mohan
Seth. Rahil and Fazal were standing near the driver seat, while
Mohan Seth was sitting on the driver seat. They also recollected the
number as DL 4CM 1494. When they arrived, Fazal also sat in the
car and both of them drove away. Rahil went to his house. We have
grave doubts about the said testimonies by PW1 and PW2 regarding
what they had seen or noticed at 9 PM on 6 th April, 2003. It is clear
from their cross-examination that they could not remember or give
details of car numbers which they in fact used or used to travel
frequently. PW1 and PW2 had lost their father and it appears they
had been tutored to make the statement regarding the car number and
about the fact that they were returning at 9 PM on 6th April, 2003
when they saw Mohan Seth, Rahil and Fazal near the car. One of the
reasons, we have disregarded and not accepted the said testimonies is
the telephone call details of Mohd. Fazal and Rahil (Ex. PW23/A and
B) which have established and proved beyond doubt that both of them
had conversed with each other on 6th April, 2003 at 19.56 Hrs. and a
number of calls were earlier exchanged between them from 19.18 Hrs
to 19.46 Hrs. Thereafter, Mohd. Fazal had made another call at
21.22 Hrs. which was connected through tower which was located in
Nizamuddin. However, we are inclined to accept the statement of
PW1 and PW2 to the effect that their father deceased Shakeel ur
Rehman had gone to the house of Suraiya/Noor Ahmed at about 7 PM
on 6th April, 2003 and thereafter he did not return.
24. On 16th April, 2003, on the basis of further interrogation of
Mohan Seth as per prosecution version, Esteem Car bearing Regn.
No. DL 4CM 1494 (Ex. PX) was recovered by Insp. Anil Kumar
(PW22) who had taken over the investigation on 14 th April, 2003. He
had also arrested Suraiya and Noor Ahmed on 14th April, 2003 at
10.10/10.15 AM from their other house at Bara Hindu Rao (Ex.
PW18/A and PW22/A). Rahil was arrested in the night intervening
between 14th and 15th April, 2003 at 11 PM from the East
Nizamuddin Market. The car was seized vide seizure memo Ex.
PW19/G, and this fact was also deposed to by SI Ram Sahai (PW19).
The car was locked and was towed to the police station and thereafter
CFSL expert from Malviya Nagar was called for inspection and car
was got opened and one pair of shoes was recovered from its dicky,
which was identified by Laiq ur Rehman (PW5) as that of the
deceased Shakeel ur Rehman. The shoes were marked Ex. P1/1-2.
The trial court relied upon the said recovery and this was another
incriminating fact against the accused. At this stage, we may notice
that the enquiries were made to ascertain from the vehicle registration
authority, the registration number, chassis number and engine number
of the car. On the basis of the said enquiries, as deposed by Insp.
Anil Kmar (PW22), it was learnt that the correct number of the car
was DL 7CB 4121 and the said car was registered in the name of ATS
Infotech Ltd. This car was stolen from New Friends Colony Club
and FIR No. 218/2002 dated 5th May, 2002, in this regard was
registered under Section 279 IPC with the Police Station, New
Friends Colony.
25. Mohan Seth was also prosecuted and challaned in the said FIR
but was acquitted as per the judgment dated 11th March, 2005,
certified copy of which was taken on record by the trial court vide
order dated 14th February, 2007. The said judgment of acquittal in
FIR No. 218/2002 under Section 279/411 IPC does not help Mohan
Seth. While deciding the case, the Metropolitan Magistrate had
rejected, application of the prosecution under Section 323 Cr.P.C. that
the said prosecution should be clubbed with the present prosecution
case, observing that the cases were separate and there was no nexus
or linkage between the two. However, we record and observe that the
Metropolitan Magistrate had recorded that the recovery of the car
must be disbelieved and Mohan Seth must be given benefit of doubt
as the vehicle was recovered from Gurudwara Damdama Sahib, in an
open space and no independent witness had joined. Keys of the car
were also not recovered from Mohan Seth. Even if we disregard the
recovery of the said car and the shoes, we feel there is sufficient
evidence and material to conclusively prove the case against Mohan
Seth under Section 201 read with Section 34 IPC. There is also
sufficient evidence against other appellants as well as Noor Ahmed
and Rahil.
26. In view of the aforesaid discussion, we feel that the prosecution
has been able to conclusively prove the following facts:
(i) There were disputes and litigation inter se between the
deceased and Suraiya, Noor Ahmed and Fazal in respect of a
property.
(ii) Deceased Shakeel ur Rehman and Aniq ur Rehman (PW3) on
6th April, 2003 were trying to raise a boundary wall on the disputed
property, which was objected to by Noor Ahmed/Suraiya. There was
exchange of words and police was called to intervene. Parties were
asked to resolve and settle the matter, Pursuant to which discussions
and talks for settlement were held.
(iii) At 7/7.30 PM, Shakir Ur Rehman returned home but received a
telephone call on his landline phone from Suraiya. Thereupon he left
and went to the house of Suraiya/Noor Ahmed.
(iv) Shakeel ur Rehman did not return and was not seen alive,
thereafter. Complaints were made by Aniq ur Rehman and FIR No.
167/2003 under Section 365/34 IPC was registered.
(v) On 7th April, 2003, FIR No. 169/2003 was registered at the
same Police Station on complaint made by Suraiya regarding the
property.
(vi) Between 7th April, 2003 till 13th April, 2003, the accused were
interrogated but no substantial progress was made. Shakeel ur
Rehman could not be located and did not return.
(vii) Mohd. Fazal and Mohan Seth were arrested on 13th April, 2003
at 1 PM and thereafter, they made disclosure statements that they had
thrown the body of Shakeel ur Rehman in Haridwar near Singdwar.
(viii) Police team along with Mohd. Fazal and Mohan Seth went to
Haridwar at Singdwar and dead body of Shakeel ur Rehman was
recovered.
(ix) Laiq ur Rehman (PW5) who had accompanied the police
identified the dead body from hair and shirt of the deceased.
(x) Shakeel ur Rehman had died an unnatural death, asphyxia as a
result of strangulation.
27. The factual conclusions elucidated above justify joint
application and collation of two legal principles applicable to criminal
prosecutions, namely, last seen evidence and recovery of the dead
body of the deceased pursuant to the disclosure statement. In the
present factual matrix, the combined effect of the two, leads us to
miasmic conclusion with the highest degree of certainty required for
conviction under the criminal law. The last seen evidence is
applicable when the accused and the deceased were together at a
particular time or place which is proximate and has close nexus with
the place and time where deceased was injured/harmed. The
proximity of the place and time, when possibility of a third party‟s
involvement is ruled out, justifies the consequential inference as to
the perpetrator. Recovery of the dead body at the instance of the
accused on disclosure when covered by Section 27 of the Evidence
Act, indicates three possibilities. One that the accused himself had
concealed the body; secondly, he had seen another person concealing
the body; or thirdly that he was informed or told by another person
that the body was concealed at a particular place/location.
Explanation of the accused may assume great importance and
relevance, in the last two possibilities, as the Court in the absence of
any contra material/evidence can reliably assume that the body was
concealed by the accused himself. This is because unless there is
other evidence or material, only the accused can offer an explanation
as to how he came to know of such concealment. Therefore, when
the accused refrains from telling the court and maintains silence, the
court would well be justified in holding that the concealment was by
the said person (see State of Maharashtra vs. Suresh (2000) 1 SCC
471).
28. In Suresh Chandra Bhari vs. State of Bihar (1995) Supp (1)
SCC 80, the Supreme Court has held:-
"71. The two essential requirements for the
application of Section 27 of the Evidence Act
are that (1) the person giving information must
be an accused of any offence and (2) he must
also be in police custody. In the present case it
cannot be disputed that although these essential
requirements existed on the date when
Gurbachan Singh led PW 59 and others to the
hillock where according to him he had thrown
the dead body of Urshia but instead of the dead
body the articles by which her body was
wrapped were found. The provisions of Section
27 of the Evidence Act are based on the view
that if a fact is actually discovered in
consequence of information given, some
guarantee is afforded thereby that the
information was true and consequently the said
information can safely be allowed to be given in
evidence because if such an information is
further fortifid and confirmed by the discovery
of articles or the instrument of crime and which
leads to the belief that the information about the
confession made as to the articles of crime
cannot
be false. In the present case as discussed above
the confessional statement of the disclosure
made by the appellant Gurbachan Singh is
confirmed by the recovery of the incriminating
articles as said above and, therefore, there is
reason to believe that the disclosure statement
was true and the evidence led in that behalf is
also worthy of credence.
72. In the light of the facts stated above we are
afraid the two decisions mentioned above and
relied on by the learned counsel for the
appellants have no application to the facts of the
present case and do not advance the case of the
appellants challenging the discovery and seizure
of the incriminating articles discussed above. In
Nari Santa the accused of that case was charged
for the theft and it is said that in the course of
investigation the accused produced certain
articles and thereafter made a confessional
statement and it was in these facts and
circumstances it was held that there was no
disclosure statement within the meaning of
Section 27 as the confessional statement was
made only when the articles were already
discovered having been produced by the
accused. Similarly the decision rendered in
Abdul Sattar also does not help the appellants in
the present case. In the case of Abdul Sattar
recovery of wearing apparels of the deceased is
said to have been made at the instance of the
accused of that case more than three weeks after
the occurrence from a public place accessible to
the people of the locality and, therefore, no
reliance was placed on the disclosure statement
and recovery of the wearing apparels of the
deceased. But in the present case it was soon
after the arrest of appellant Gurbachan Singh
that he took the Police Officer while in custody
to the place where according to him he had
thrown the dead body of
Urshia wrapped by the incriminating articles.
Those articles were not found lying on the
surface of the ground but they were found after
unearthing the Khad gaddha dumping ground
under the hillock. Those articles were neither
visible nor accessible to the people but were
hidden under the ground. They were discovered
only after the place was pointed out and it was
unearthed by the labourers. No fault therefore
could be found with regard to the discovery and
seizure of the incriminating articles."
29. Scope and ambit of Sections 27 and 8 of the Evidence Act were
elucidated in Bheru Singh vs. State of Rajasthan (1994) 6 SCC 107.
Referring to the two earlier judgments, in Anuj Kumar Gupta Vs.
State of Bihar (2013) 12 SCC 383, it was highlighted that recovery of
a dead body from the place identified by the accused was admissible
by virtue of Section 8 read with Section 27 of the Evidence Act as it
reflected and indicated that the said fact was within exclusive
knowledge of the accused. It was further observed:
"18. In such circumstances, in the absence of any
convincing explanation offered on behalf of the appellant-
accused as to under what circumstances he was able to lead
the police party to the place where the dead body of the
deceased was found, it will have to be held that such
recovery of the dead body, which is a very clinching
circumstance in a case of this nature, would act deadly
against the appellant considered along with rest of the
circumstances demonstrated by the prosecution to rope in
the appellant in the alleged crime of the killing of the
deceased. Therefore, once we find that there was definite
admission on behalf of the appellant by which the
prosecuting agency was able to recover the body of the
deceased from a place, which was within the special
knowledge of the appellant, the only other aspect to be
examined is whether appellant came forward with any
convincing explanation to get over the said admission.
Unfortunately though the above incriminating circumstance
was put to the appellant in the Section 313 CrPC
questioning where he had an opportunity to explain, except
a mere denial there was no other convincing explanation
offered by him."
30. In a recent decision, Harivardhan Babubhai Patel vs. State of
Gujarat 2013 (7) SCC 45, it has been held that it was beyond
shadow of doubt that confessional part of any disclosure statement
was/is inadmissible but the place from where the dead body of the
deceased and other items were recovered, was admissible as it shows
that the "facts discovered" were within the special knowledge of the
accused, both as conduct of the accused under Section 8 as well as
under Section 27 of the Evidence Act. In the said case, reference was
made to the celebrated decision of the Privy Council in Pulukuri
Kottaya vs. Emperor AIR 1947 PC 67 elucidating the term "fact
discovered" envisaged in Section 27, which embraces the place from
which the object was produced and the knowledge of the accused as
to it. However, the information given must relate distinctly to the
said effect.
31. The factual conclusion reached above, proves beyond doubt
that the deceased Shakeel ur Rehman had gone to the residence of
Suraiya at 7/7.30 PM on 6th April, 2003 after receiving a phone call.
Thereafter, Shakeel ur Rehman was not seen alive by the family
members, though they made repeated attempts to contact him on the
phone and also searched. Whereabouts and well being of Shakeel ur
Rehman remained unknown and a mystery till 13th April, 2003, when
appellants Mohd. Fazal and Mohan Seth were arrested and they made
disclosure statements. Appellants Mohd. Fazal and Mohan Seth were
taken to Haridwar and from the ghats near Singdwar, dead body of
Shakeel ur Rehman at their instance was recovered. It is a fact that
no one knew before the recovery of the dead body, what had
happened to Shakeel ur Rehman, after he had gone to the
residence/house of Suraiya on 6th April, 2003 at 7/7.30 PM. In the
facts of the present case, recovery of the dead body collates and is
reinforced with assurance of last seen evidence and this provides
unequivocal certainty that the crime or the homicidal death had taken
place at the residence of Suraiya and at no other place.
32. Mohd. Fazal as noticed above, is the brother of Suraiya and the
telephone call records (Ex. PW23/A and 23/B) show and prove that
Mohd. Fazal was in touch and was speaking to Rahil on 6 th April,
2003 till 19.59 Hrs. Thereafter he had received one incoming call at
20.03 Hrs. from a third number and the next call thereafter was at
22.22 Hrs. i.e. after 1 hour and 22 minutes. At 22.22 Hrs, Mohd.
Fazal was in Nizamuddin as his phone was connected with tower No.
0192. Earlier from 19.18 Hrs. till 19.59 Hrs. i.e. till about 8 O‟clock,
a number of calls were exchanged between Rahil and Mohd. Fazal
and at that time mobile phone of Mohd. Fazal was connected with
tower No. 0911 in Bhogal area, which is near Nizamuddin. We have
already referred to and noticed the fact that the call details show that
Mohd. Fazal was returning from Hardwar in the morning on 7 th April,
2003 and then had made a call to Rahil at 6.56 Hrs. At that time
Mohd. Fazal was connected to tower No. 7221 at Brij Vihar,
Ghaziabad and at 7.04 Hrs he was connected to tower No. 6662 at
Rohtash Nagar, Delhi. There were good and sound reasons why
Suraiya, her husband Noor Ahmed and her son Rahil did not go or
take the body from Delhi to Haridwar to conceal and dump the dead
body of Shakeel ur Rehman. The reason was that they would have
been immediately suspected because of their abscondence. Presence
of Mohan Seth and his going to Haridwar has also been established
beyond doubt in view of the hotel records (see evidence of PW10).
33. Mohd. Fazal and Mohan Seth were arrested together and as per
the police version they got cornered when interrogated on the basis of
logs of mobile phone of Rahil and Mohd. Fazal. On question of joint
disclosure and applicability of Section 27 of the Evidence Act,
reference can be made to the decision of the Supreme Court in State
(NCT of Delhi) vs. Navjot Sandhu (2005) 11 SCC 700, wherein it
has been observed:
"Joint disclosures, to be more accurate,
simultaneous disclosures, per se, are not
inadmissible under Section 27. 'A person
accused' need not necessarily be a single
person, but it could be plurality of accused. It
seems to us that the real reason for not acting
upon the joint disclosures by taking resort to
Section 27 is the inherent difficulty in placing
reliance on such information supposed to have
emerged from the mouths of two or more
accused at a time. In fact, joint or simultaneous
disclosure is a myth, because two or more
accused persons would not have uttered
informatory words in a chorus. At best, one
person would have made the statement orally
and the other person would have stated so
substantially in similar terms a few seconds or
minutes later, or the second person would have
given unequivocal nod to what has been said by
the first person. Or, two persons in custody may
be interrogated separately and simultaneously
and both of them may furnish similar
information leading to the discovery of fact. Or,
in rare cases, both the accused may reduce the
information into writing and hand over the
written notes to the police officer at the same
time. We do not think that such disclosures by
two or more persons in police custody go out of
the purview of Section 27 altogether. If
information is given one after the other without
any break almost simultaneously, and if such
information is followed up by pointing out the
material thing by both of them, we find no good
reason to eschew such evidence from the
regime of Section 27. However, there may be
practical difficulties in placing reliance on such
evidence. It may be difficult for the witness
(generally the police officer), to depose which
accused spoke what words and in what
sequence. In other words, the deposition in
regard to the information given by the two
accused may be exposed to criticism from the
stand point of credibility and its nexus with
discovery. Admissibility and credibility are two
distinct aspects, as pointed out by Mr. Gopal
Subramanium. Whether and to what extent such
a simultaneous disclosure could be relied upon
by the Court is really a matter of evaluation of
evidence. With these preparatory remarks, we
have to refer to two decisions of this Court
which are relied upon by the learned defence
counsel."
34. The next issue in question is "which of the accused/appellants
was/were the perpetrator and had committed the offence resulting in
homicidal death i.e. had caused death of Shakeel ur Rehman by
asphyxia/strangulation at the residence of Suraiya"? As noticed
above, trial court held that Suraiya and Mohd. Fazal were responsible
and accordingly they have been convicted under Section 302 read
with Section 120B IPC, while Noor Ahmed husband of Suraiya, Rahil
son of Suraiya and Mohan Seth have been acquitted from the said
charge. Mohan Seth and Mohd. Fazal have been convicted under
Section 201/34 IPC.
35. On the conviction of Mohan Seth and Mohd. Fazal under
Section 201/34 IPC, there cannot be any doubt. In fact we have some
reservation on acquittal of Suraiya by the trial court for the offence
under Section 201 IPC as she has been convicted by the same court
for the offence under Section 302 IPC. Disposal of the dead body or
its concealment was with her participation as a result of active
abetment or with common intention. However, we are not proceeding
further on the said aspect as State has not preferred any appeal and for
an offence under Section 302 IPC, the minimum sentence is life
imprisonment. In the revision filed by Naseem Bano also, no such
prayer is made. (The said position holds good for Noor Ahmed and
Rahil also)
36. Trial court while acquitting Noor Ahmed and Rahil for the
offence under Section 302 IPC has observed that the litigation and
dispute regarding construction of boundary wall was between
Suraiya, her brother Mohd. Fazal and the deceased. Suraiya had
called the deceased to her house and nothing else has come on record
to establish that Noor Ahmed had conspired with other accused and
had participated in the commission of offence. Similarly for Rahil, it
has been observed that he was son of Suraiya, but beyond that there
was no other evidence except that purse etc. of Shakeel ur Rehman
was recovered from his house, and that recovery was also debatable.
It was observed that Rahil might have been speaking to Suraiya and
Mohd. Fazal but this was not sufficient.
37. We agree with the said finding on the question of recovery of
purse etc. which could have been easily planted and there was no
reason for Rahil to keep the purse etc. of the deceased with him
especially when he was aware that he and his parents were under
cloud of suspicion. Rahil was arrested at 11 PM on 14th April, 2003
and the recoveries were purportedly made from his house. The second
aspect/reason is being examined separately below.
38. The State in their appeal has submitted that reasoning given by
the trial court for acquitting Noor Ahmed, Rahil and Mohan Seth
under Section 302 read with Section 120B is specious and perverse,
specially when the trial court had accepted that there was a
conspiracy.
39. In a case of this nature where the crime/occurrence had taken
place within four corners/walls of a house, the prosecution in most
cases faces difficulty in establishing the culprit or the perpetrator
unless the occupants or family members of the said house come
forward and disclose what had happened. In the absence of such
insight, the prosecution is faced with an impossible task of proving
and establishing which occupant or person had participated and their
exact roles in the commission of the crime. In criminal law, the
burden of proving that the accused had committed the crime and that
too beyond reasonable doubt, is on the prosecution. The said legal
principle is virtuous, sacred and unexceptionable as it protects
innocents but the said principle is not designed and intended to be
applied in an impractical manner with unrealistically wide
interpretation; that silence on the part of the accused is always and
universally acceptable and under no circumstances the accused should
be or is required to give an explanation. The aforesaid legal position
has been applied and accepted in several factual situations, as noticed
above in the judgments under Section 27 of the Evidence Act. The
said legal principle is applied pragmatically in common sensically
manner, balancing the inconvenience, practical impossibilities and
disproportionate labour involved in finding out and proving special
facts in the knowledge of the accused, and the salutary protection,
while ensuring that accused should not be put to relative and
disproportionate inconvenience or punished for inaptitude,
impracticability or incompetency.
40. Section 106 of the Evidence Act and the illustrations appended
thereto read:
"106. Burden of proving fact specially within
knowledge - When any fact is specially within the
knowledge of any person, the burden of proving that
fact is upon him.
Illustrations
(a) When a person does an act with some intention other
than that which the character and circumstances of the
act suggest, the burden of proving that intention is upon
him.
(b) A is charged with traveling on a railway without a
ticket. The burden of proving that he had ticket is on
him."
Referring to the aforesaid provision in Shambu Nath Mehra
vs. State of Ajmer, AIR 1956 SC 404, it was observed:
"9. This lays down the general rule that in a criminal
case the burden of proof is on the prosecution and
section 106 is certainly not intended to relieve it of that
duty. On the contrary, it is designed to meet certain
exceptional cases in which it would be impossible, or at
any rate disproportionately difficult, for the prosecution
to establish facts which are "especially" within the
knowledge of the accused and which he could prove
without difficulty or inconvenience. The word
"especially" stresses that. It means facts that are pre-
eminently or exceptionally within his knowledge. If the
section were to be interpreted otherwise, it would lead
to the very startling conclusion that in a murder case
the burden lies on the accused to prove that he did not
commit the murder because who could know better than
he whether he did or did not. It is evident that that
cannot be the intention and the Privy Council has twice
refused to construe this section, as reproduced in
certain other Acts outside India, to mean that the
burden lies on an accused person to show that he did
not commit the crime for which he is tried. These cases
are Attygalle v. Emperor A.I.R. 1936 P.C.
169 andSeneviratne v. R. [1936] 3 All E.R. 36, 49. ...
10. xxxx
11. We recognise that an illustration does not
exhaust the full content of the section which it
illustrates but equally it can neither curtail nor expand
its ambit; and if knowledge of certain facts is as much
available to the prosecution, should it choose to exercise
due diligence, as to the accused, the facts cannot be said
to be "especially" within the knowledge of the accused.
This is a section which must be considered in a
commonsense way; and the balance of convenience and
the disproportion of the labour that would be involved
in finding out and proving certain facts balanced against
the triviality of the issue at stake and the ease with
which the accused could prove them, are all matters that
must be taken into consideration. The section cannot be
used to undermine the well-established rule of law that,
save in a very exceptional class of case, the burden is on
the prosecution and never shifts."
41. Similarly in Trimukh Maroti Kirkan vs. State of Maharashtra
(2006) 10 SCC 681, it has been held:
"14. If an offence takes place inside the privacy of a
house and in such circumstances where the assailants
have all the opportunity to plan and commit the offence
at the time and in circumstances of their choice, it will
be extremely difficult for the prosecution to lead
evidence to establish the guilt of the accused if the strict
principle of circumstantial evidence, as noticed above,
is insisted upon by the Courts. A Judge does not preside
over a criminal trial merely to see that no innocent man
is punished. A Judge also presides to see that a guilty
man does not escape. Both are public duties. (See
Stirland v. Director of Public Prosecution 1944 AC 315
quoted with approval by ArijitPasayat, J. in State of
Punjab v. Karnail Singh 2003CriLJ3892 ). The law does
not enjoin a duty on the prosecution to lead evidence of
such character which is almost impossible to be led or at
any rate extremely difficult to be led. The duty on the
prosecution is to lead such evidence which it is capable
of leading, having regard to the facts and circumstances
of the case. Here it is necessary to keep in mind Section
106 of the Evidence Act which says that when any fact
is especially within the knowledge of any person, the
burden of proving that fact is upon him. Illustration (b)
appended to this section throws some light on the
content and scope of this provision and it reads:
"(b) A is charged with traveling on a railway without
ticket. The burden of proving that he had a ticket is on
him."
15. Where an offence like murder is committed in
secrecy inside a house, the initial burden to establish the
case would undoubtedly be upon the prosecution, but
the nature and amount of evidence to be led by it to
establish the charge cannot be of the same degree as is
required in other cases of circumstantial evidence. The
burden would be of a comparatively lighter character. In
view of Section 106 of the Evidence Act there will be a
corresponding burden on the inmates of the house to
give a cogent explanation as to how the crime was
committed. The inmates of the house cannot get away
by simply keeping quiet and offering no explanation on
the supposed premise that the burden to establish its
case lies entirely upon the prosecution and there is no
duty at all on an accused to offer any explanation."
42. Recently in Pritpal Singh vs. State of Punjab (2012) 1 SCC
10, it has been elucidated:
"53. In State of W.B. v. Mir Mohammad
Omar [(2000) 8 SCC 382 : 2000 SCC (Cri) 1516 :
AIR 2000 SC 2988] this Court held that if fact is
especially in the knowledge of any person, then
burden of proving that fact is upon him. It is
impossible for the prosecution to prove certain facts
particularly within the knowledge of the accused.
Section 106 is not intended to relieve the
prosecution of its burden to prove the guilt of the
accused beyond reasonable doubt. But the section
would apply to cases where the prosecution has
succeeded in proving facts from which a reasonable
inference can be drawn regarding the existence of
certain other facts, unless the accused by virtue of
his special knowledge regarding such facts, failed
to offer any explanation which might drive the
court to draw a different inference. Section 106 of
the Evidence Act is designed to meet certain
exceptional cases, in which, it would be impossible
for the prosecution to establish certain facts which
are particularly within the knowledge of the
accused. (See also Shambhu Nath Mehra v. State of
Ajmer [AIR 1956 SC 404 : 1956 Cri LJ 794]
, Sucha Singh v. State of Punjab[(2001) 4 SCC 375
: 2001 SCC (Cri) 717 : AIR 2001 SC 1436]
and Sahadevan v. State [(2003) 1 SCC 534 : 2003
SCC (Cri) 382 : AIR 2003 SC 215] .)
xxxxxx
79. Both the courts below have found that the
appellant-accused had abducted ShriJaswant Singh
Khalra. In such a situation, only the accused person
could explain as to what happened to ShriKhalra,
and if he had died, in what manner and under what
circumstances he had died and why his corpus
delicti could not be recovered. All the appellant-
accused failed to explain any inculpating
circumstance even in their respective statements
under Section 313 CrPC. Such a conduct also
provides for an additional link in the chain of
circumstances. The fact as to what had happened to
the victim after his abduction by the accused
persons, has been within the special knowledge of
the accused persons, therefore, they could have
given some explanation. In such a fact situation, the
courts below have rightly drawn the presumption
that the appellants were responsible for his
abduction, illegal detention and murder."
43. The aforesaid quotations expound the word „especially‟ used in
Section 106 of the Evidence Act as to mean the facts which are pre-
eminently and exceptionally within the knowledge of the accused.
Secondly, the section is designed to meet exceptional cases where
prosecution would be faced with disproportionate difficulty, if not an
impossible task to establish facts which are especially within the
knowledge of the accused.
44. The aforesaid provision i.e. Section 106 can be read with
Section 114 which empowers the court to assume existence of facts
which it thinks were likely to have happened. The true and correct
position is that the State or the prosecution must prove basic factum
probans in form of material or evidence from which presumption in
law in the form of inference relating to further facts can be drawn.
The burden of proof to establish the basic factum probans is solely
and exclusively on the prosecution/State and not on the accused who
has a constitutionally protected right of silence. When factum
probans establishes one set of facts, the court can infer and presume
probability about existence or non-existence of a further fact, unless
the truth of inference is disproved. Thus, the prosecution/State must
first establish facts from which it is legally permissible to draw
reasonable inference regarding certain other facts and thereupon the
court can insist that the accused by virtue of special knowledge
regarding existence of such facts is required to offer an explanation
for the court to draw a different inference. Read in this manner, the
burden of proof, it can be said remains on the prosecution/ State and
not on the accused. The probative burden is on the State/prosecution
and has to be discharged but the prosecutor is entitled to plead that in
the absence of the evidence or explanation to the contrary adduced by
the other side the court is entitled to presume and infer consequential
facts. But the accused should not be asked to prove impossibility.
The accused is not an investigator and lacks resources/power of the
State. The accused may be required to explain and state what
according to him had happened when he was present with the
deceased at time of occurrence etc. The explanation may be offered
by way of questions in cross-examination, or by way of explanation
and statement under Section 313 Cr.P.C., or may otherwise appear to
be apparent even from the prosecution version (in which case
possibly it could be even argued that factum probans is not
established). Whether or not the explanation offered by the accused
in a given case should be accepted or rejected would depend on the
facts of the case like the conduct of the accused, merits and
probability of the explanation, attending circumstances etc. The said
explanation again is not tested or evaluated on the highest parameter,
but keeping in mind the facts including the difficult and practical
impossibilities which the accused may face. The preponderance of
the probability is the criteria/test applicable when it comes to the
explanation of the accused.
45. When we apply the aforesaid principles to the facts of the
present case, we feel the following position emerges:
(i) As far are Suraiya, Noor Ahmed and Rahil are concerned, their
presence in the house at 7/7.30 PM when the deceased Shakeel ur
Rehman was called and came to their residence, has been proved and
should be accepted. Suraiya being a lady could not have committed
the said offence alone. Presence of her husband and son was
axiomatic and normal. We do not find any explanation has been
given by Noor Ahmed or Rahil as to their absence from the place of
occurrence. In fact, the call details of Rahil (Ex. PW23/B) and Mohd.
Fazal (Ex. PW23/A) as noticed above, on 6th April, 2003 starting 7.18
PM show number of calls being exchanged and the presence of Rahil
at Nizamuddin as his mobile was connected through tower No. 911 in
Nizamuddin. The presence of Noor Ahmed husband of Suraiya with
them, when the deceased was called for discussion was natural and
normal.
(ii) We do not agree with the reasoning given by the trial court that
Suraiya and Fazal brother and sister had a property dispute and the
same has no connection with Noor Ahmed and Rahil, husband and
son of Suraiya. The said reasoning keeping in view the social and
cultural background of the family, merits rejection and has to be
discarded. It is not acceptable and ignores practical reality.
(iii) As far as Mohd. Fazal is concerned, his involvement in the
offence under Section 302 IPC would be a matter of debate as he was
certainly not in the premises where Rahil was present, as both of them
were in touch on phone till at least 7.59 PM. As per the prosecution
case on 6th April, 2003 at 8.03 PM Mohd. Fazal had spoken to
Suraiya on telephone no. 9891266685 (Suraiya‟s telephone number
has not been proved but this being the prosecution case, we can read
this factum against the prosecution). The next call made by Mohd.
Fazal was at 9.22 PM.
(iv) The next question is whether the crime or offence had taken
place between 8.03 PM and 9.22 PM or before. It is difficult to point
out the exact time, when the offence may have taken place but one
thing is certain that till 8.03 PM, Mohd. Fazal was not in the property
i.e. the house of Suraiya and at 9.22 PM onwards on 6th April, 2003,
he had started moving from Nizamuddin and by 9.27 PM his
telephone was connected with mobile tower at Nehru Enclave. No
direct question was put to Mohd. Fazal in his statement under Section
313 Cr.P.C. to get a response or reply regarding his presence between
8 to 9.22 PM on 6th April, 2003. It was not normal or necessary for
Mohd. Fazal to be present in the property i.e. residence of Suraiya at
that time unless he was called and asked. It would have certainly
taken time to decide how to transport the dead body and conceal it,
which by no means was an easy task. Modalities including arranging
a proper car and person(s) of confidence who would have taken the
dead body, was required. Therefore, for the offence under Section
302 read with Section 34 IPC or Section 120B IPC, we grant benefit
of doubt to Mohd. Fazal and he is acquitted.
(v) As far as Mohan Seth is concerned, the prosecution has not
produced any evidence on record that he was at the
residence/property of Suraiya. His call records or details have not
been placed on record. In these circumstances, we do not think there
was any mandate or requirement under Section 106 of the Evidence
Act on Mohan Seth to offer an explanation. Basic factum probans
was not established and proved against him. His acquittal under
Section 302 IPC is upheld and maintained.
(vi) We do not think separate offence and punishment under
Section 120B is proved or required. An act of throttling resulting in
death by asphyxia might have happened at the spur of the moment
due to heated arguments etc. We do not think, it would be safe to
assume that there was a pre-agreement or agreement on telephone
between Suraiya, Rahil and Mohd. Fazal. Calls or discussion could
be to discuss terms of settlement etc. The calls could very well
indicate panic and fear after the crime and need to conceal and cover
up.
46. In view of the aforesaid discussion, we have reached the
following conclusion:
(i) Suraiya, Noor Ahmed and Rahil are guilty of having committed
murder of Shakeel ur Rehman at their residence, between 7.00 and
9.22 PM on 6th April, 2003;
(ii) There is no evidence to show that Mohan Seth was at the
residence/property of Suraiya at that time and, therefore, he was
rightly acquitted under Section 302 IPC for having committed murder
of Shakeel ur Rehman;
(iii) Mohd. Fazal, we hold and observe is entitled to benefit of
doubt and prosecution has not been able to conclusively establish that
he was present in the house/property of Suraiya at the time when the
offence was committed.
(iv) We uphold the conviction of the appellant Mohan Seth and
Mohd. Fazal under Section 201 read with Section 34 IPC.
47. On the question of sentence, Suraiya has been sentenced to
imprisonment for life and fine of Rs.2000/- for the offence under
Section 302 IPC and on default of payment to undergo simple
imprisonment for six months. In the given facts, Noor Ahmed and
Rahil are awarded the same sentence i.e. imprisonment for life and
fine of Rs.2000/- each and in default of payment to further undergo
simple imprisonment for six months. Mohan Seth and Mohd. Fazal,
for the offence under Section 201/34 IPC, were sentenced for
imprisonment already undergone which was 5 years 11 months 6
days, on the date pronouncement of the order of sentence i.e. 19 th
March, 2009. Both of them were also to pay fine of Rs.1000/- each
and in default to undergo simple imprisonment for 9 months. The
said punishment is maintained.
48. By order dated 11th May, 2009, appellant Suraiya was granted
regular bail on suspension of sentence in her appeal. She shall
surrender within one month to undergo the remaining sentence as the
appeal filed by her has been dismissed. Noor Ahmed and Rahil, who
were acquitted by the trial court, but held to be guilty for the offence
under Section 302 read with Section 34 IPC in the appeal preferred by
the State, shall also surrender within one month to undergo the
sentence as directed in paragraph 47 above.
49. Appeals including appeal filed by the State are disposed of.
Criminal revision is also disposed of.
(SANJIV KHANNA)
JUDGE
(G. P. MITTAL)
JUDGE
May 19th, 2014
kkb
