Delhi High Court
Mohd.Jafar vs State on 10 November, 2014
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : October 30, 2014
Judgment Delivered on : November 10, 2014
+ CRL.A.1184/2014
MOHD.TANVIR .....Appellant
Represented by: Ms.Inderjeet Sidhu, Advocate with
Ms.Shruti Tiwari, Advocate
versus
STATE ..... Respondent
Represented by: Ms.Aashaa Tiwari, APP
Insp.Surender, PS Keshavpuram
CRL.A.1185/2014
MOHD.JAFAR .....Appellant
Represented by: Mr.Azhar Qayum, Advocate
versus
STATE ..... Respondent
Represented by: Ms.Aashaa Tiwari, APP
Insp.Surender, PS Keshavpuram
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS.JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J.
1. Process of criminal law was set into motion when at around 08:40
AM on December 31, 2011, W.HC Rajeshwari recorded DD No.9A,
Ex.PW-28/A, noting therein that an unknown person has informed over
the telephone that the dead body of a boy was lying in a MCD park which
was in the front of the office of the SDM, Rampura.
2. Being handed over a copy of DD No.9A, accompanied by
Ct.Naresh PW-16 and Ct.Suresh PW-20, SI Surender Singh PW-28,
reached the park. In the meantime, Insp.Vijay Kumar PW-29, also
reached the park having received said information. The police officers
saw the dead body of a male child aged about three to four years in the
bushes. The child was wearing a shirt and knickers which were smeared
with blood. A pair of slippers, also smeared with blood, was lying near
the dead body.
3. After sometime, the crime team reached the spot on being
summoned. SI Davender PW-12, in-charge, Mobile Crime Team, North
West District, inspected the spot and dead body. It was noted that there
were strands of hairs and straw in the right hand of the child. SI Davender
prepared the crime team report Ex.PW-12/A. Being relevant, we note the
following portion of the crime team report Ex.PW-12/A:-
"12. ARTICLES WHICH MAY BE SEIZED BY THE I.O.
Blood & Blood stained Earth with its control, 1 pair PURPLE
colour chappal & bush grass from Rt Hand of deceased along
with some hairs." (Emphasis Supplied)
4. Ct.Subhash PW-13, Photographer, Crime Team, took seven
photographs of the spot Ex.PW-13/A1 to Ex.PW-13/A7 and dead body;
negatives whereof are Ex.PW-13/B1 to Ex.PW-13/B7.
5. In the meantime, one Mohd.Chand PW-1, reached the spot and
identified the dead child as his son Mohd.Afridi (hereinafter referred to as
the „Deceased‟).
6. SI Surender Singh made an endorsement Ex.PW-28/B beneath the
copy of DD No.9A at about 11:30 AM on October 31, 2011 and sent the
same through Ct.Suresh to the police station for FIR to be registered. At
the police station HC Parmod Kumar PW-2, registered FIR No.335/2011,
Ex.PW-2/D, for an offence punishable under Section 302 IPC.
7. Since an argument was advanced with reference to the contents of
the endorsement Ex.PW-2/B, we note the same. It is in vernacular and
loosely translated it reads as under:-
Respected Duty Officer Police Station Keshav Puram
Delhi it is humbly submitted that on receiving aforesaid
DD entry I SI along with Ct.Naresh No.2200/NW and
Ct.Suresh No.865/NW reached the MCD park situated in
front of SDM office where inside the park dead body of a
child facing downwards was lying on the grass grown on
the ground in the grove of trees. Lot of blood had oozed
from the neck of the dead body and spilled on the shirt of
boy and the ground. There were deep cut marks on the
neck and right hand of boy. The head of dead body of boy
was in the west direction. A slipper of left foot smeared
with blood was lying near the right hand of boy and a
slipper of right foot was lying at some distance from the
left hand of boy. There was some grass in the fist of right
hand of boy. Crime team was summoned at the spot and
the spot was got inspected and photographed. Enquiries
were made from the people living nearby but no witness
was found at the spot. In the meantime, Mohd.Chand S/o
Mohd.Israel R/o H. No.269, Roomal Wali Gali, Rampura
came at the spot and identified dead child as his son
Mohd.Afridi aged 4 years. From aforesaid report and
facts and circumstances of the case, it appears that an
offence under Section 302 IPC has been committed.
Hence, this endorsement is being sent through Ct.Suresh
No.865/NW to the police station. After registering the
case the investigation be handed over to SHO Sir Vijay
Kumar Inspector who along with his staff has reached
the spot. Senior officers be informed through special
messenger.
8. After the FIR was registered the investigation of the case was taken
over by Insp.Vijay Kumar PW-29.
9. Insp.Vijay Kumar lifted blood from the spot on a gauze, blood
stained earth, earth control, slippers lying at the spot and straw of grass
and strands of hairs held in the fist of the deceased vide memo Ex.PW-
16/A.
10. On the same day i.e. October 31, 2011, the dead body was sent to
the mortuary of Babu Jagjivan Ram Memorial Hospital, where at about
06:40 PM Dr.Bhim Singh PW-7 conducted the post-mortem of the
deceased and prepared the post-mortem report Ex.PW-7/A.
11. The post-mortem report Ex.PW-7/A of the deceased records that
the following external injuries were found on the person of the deceased:-
"1. Incised wound 6.5 cms x 1.5 cms x 1.5 cms front of neck
at the level of thyroid, the under line skin tissues, thyroid
vessels trachea and esophagus shows cut through and
through, tailing of wound on right side.
2. Incised wound 1 cm x 0.5 cm just above injury no.1
merges with the injury no.1 on left side of neck.
3. Incised wound 2.5 cm x 0.5 cm x 02 cm just above the
injury no.1, inner and merges with injury no.1.
4. Incised wound 5 cm x 1 cm x 0.8 cm, front and outer
aspect of right forearm, in ulnar area 2.8 cm above wrist
joint."
12. The post-mortem report records that the death was caused due to
haemorrhagic shock consequent upon excessive blood loss due to injury
No.1 (cut throat injury); all the injuries were ante-mortem, fresh and
caused by a sharp edged weapon; that injury No.1 was sufficient to cause
death in the ordinary course of nature and that the deceased died 16-18
hours before the post-mortem was conducted. Meaning thereby, the death
took place around 10:40 PM - 12:40 midnight in the intervening night of
October 30, 2011 and October 31, 2011.
13. After conducting the post-mortem, Dr.Bhim Singh PW-7, handed
over a blood sample of the deceased on a gauze, nail clippings and scalp
hair of the deceased as also the shirt and the knickers worn by the
deceased to Insp.Vijay Kumar who seized the same vide memo Ex.PW-
16/B.
14. Insp.Vijay Kumar recorded the statements of Mohd.Chand PW-,
father of the deceased and Zubeda Begum PW-5, mother of the deceased
under Section 161 Cr.P.C. on October 31, 2011 wherein they stated that
the deceased was found missing from the house since about 06:00 PM on
October 30, 2011 and that the appellants who were their neighbours may
be involved in the death of their son since Mohd.Chand (father of the
deceased) had a quarrel with the appellants a week prior and that the
appellants were missing from their residence.
15. Insp.Vijay Kumar recorded the statement of Mohd.Rehmat PW-3,
a neighbour of the deceased under Section 161 Cr.P.C. on November 01,
2011 wherein he stated that he along with the appellants is staying as a
tenant in one room in the House bearing Municipal No.269, Rumal Wali
Gali, Rampura and that in the night of October 30, 211 appellant
Mohd.Tanvir had informed him that he and Mohd.Jafar had murdered the
deceased.
16. Since the needle of suspicion was strongly pointing towards the
appellants the police set out to apprehend them.
17. On November 01, 2011 at about 07:00 PM Insp.Vijay Kumar
accompanied by HC Subash Chand PW-24 and SI Surender Singh PW-
28, went to the room in house bearing Municipal No.269, Rumal Wali
Gali, Rampura where the appellants were residing and arrested appellant
Mohd.Tanvir from there. Appellant Mohd.Tanvir was interrogated and
his disclosure statement was recorded. We need not note the contents of
disclosure statement of appellant Mohd.Tanvir for neither any recovery
was effected nor was a fact discovered pursuant to the said statement
made by appellant Mohd.Tanvir. Insp.Vijay Kumar noted that there were
blood stains on the shirt worn by Mohd.Tanvir when he was apprehended
and therefore he seized the same vide memo Ex.PW-24/D in the presence
of HC Subhash Chand PW-24 and SI Surender Singh PW-28.
18. Thereafter appellant Mohd.Tanvir was taken to BJRM Hospital
where Dr.Anil examined appellant Mohd.Tanvir and prepared his MLC
Ex.PW-9/A. The MLC Ex.PW-9/A of Mohd.Tanvir records that an
abrasion of size 1 cm x 1 cm was found on the left eyebrow of
Mohd.Tanvir.
19. After conducting the medical examination of Mohd.Tanvir, the
doctor handed over the blood sample and strands of hair of Mohd.Tanvir
to SI Deepak Bhardwaj PW-31, who seized the same vide memo Ex.PW-
31/A.
20. Insp.Vijay Kumar recorded the statement of Nitin Sharma PW-6,
under Section 161 Cr.P.C. on November 02, 2011 wherein he stated that
on October 30, 2011 at about 05:30 - 06:00 PM he had seen the deceased
with the appellants near Chaudhary Hotel, Rampura, Delhi.
21. On November 03, 2011 a police team comprising of SI Rakesh
Duhan PW-25 and HC Jitender PW-10 arrested appellant Mohd.Jafar at
Samastipur, Bihar and brought him to Delhi.
22. Appellant Mohd.Jafar was taken to BJRM Hospital on November
04, 2011 where Dr.Anil examined him and prepared the MLC Ex.PW-
26/A recording the presence of undernoted external injuries:-
"1. Old & incised wounds present on index finger of right
hand (terminus part)
2. Old scar present on left hand thumb"
23. After conducting the medical examination of Mohd.Jafar, the
doctor handed over the blood sample and strands of hair of Mohd.Jafar to
Ct.Prabhu Shah PW-16, who in turn handed over the same to Insp.Vijay
Kumar vide memo Ex.PW-17/A.
24. On being interrogated by Insp.Vijay Kumar in the presence of SI
Surender Singh appellant Mohd.Jafar made a disclosure statement
wherein he stated that he can get recovered the blade used to inflict the
injuries on the deceased and the shirt worn by him (Mohd.Jafar) when the
deceased was killed.
25. Pursuant thereto, Mohd.Jafar led Insp.Vijay Kumar and SI
Surender Singh to the park where the body of the deceased was found and
got recovered a shaving blade which was concealed in the bushes near the
place/point where the body of the deceased was lying which blade was
seized vide memo Ex.PW-28/E.
26. Thereafter Mohd.Jafar led Insp.Vijay Kumar and SI Surender
Singh to a room in house bearing Municipal No.269, Rumal Wali Gali,
Rampura (where he was staying) and got recovered a shirt hung on a
khunti (spike) in the room which was seized vide memo Ex.PW-28/G.
27. On November 05, 2011 Mohd.Jafar was again taken to BJRM
Hospital to obtain opinion regarding the injuries found on his person as
recorded in the MLC Ex.PW-26/A. Dr.Bhim Singh PW-7 examined the
injuries and opined as under:-
"1. Healed incised wound 0.5 cm with flap of skin
healed present over outer surface of right index finger of
right hand.
OPINION: Injury is simple in nature, about 6-7 days old
and could be possible by sharp edged weapon like blade
due to grasping by finger and thumb." (Be it noted here
that the aforesaid opinion has been given by Dr.Bhim
Singh PW-7, at point X in the MLC Ex.PW-26/A on
appellant Mohd.Jafar.)
28. On November 15, 2011 the shaving blade recovered at the instance
of appellant Mohd.Jafar was sent to Dr.Bhim Singh for his opinion
whether the injuries on the deceased could be caused by the blade. Vide
opinion Ex.PW-7/B Dr.Bhim Singh opined that the four injuries on the
deceased were possible to have been caused by the shaving blade in
question.
29. The articles seized during investigation were sent to Forensic
Science Laboratory, Delhi for serological/DNA examination.
30. Vide FSL report Ex.PW-23/A it was opined that blood seized from
the place where the body of the deceased was found was human blood
having group A; human blood was detected on earth seized from the
place where the body of deceased was found but produced no reaction
when tested for blood group; human blood was detected on the slippers
seized from the place where the body of deceased was found but
produced no reaction when tested for blood group; human blood was
detected on the hair found clutched in the fist of the deceased but
produced no reaction when tested for blood group; human blood of group
A was detected on shirt and knickers worn by the deceased at the time of
his death; human blood was detected on nail clippings and scalp hair of
the deceased but produced no reaction when tested for blood group and
blood groups of appellants Mohd.Tanvir, Mohd.Jafar and deceased are A,
B and A respectively.
31. Vide FSL report Ex.PW-27/A it was opined that blood detected on
the shirt recovered at the instance of appellant Mohd.Jafar and the shirt
worn by appellant Mohd.Tanvir at the time of his arrest and shaving
blade recovered at the instance of appellant Mohd.Jafar is similar with
stains on blood sample of the deceased and that alleles from blood sample
of deceased are accounted in the alleles of blood detected on the shirt
recovered at the instance of appellant Mohd.Jafar, the shirt worn by
appellant Mohd.Tanvir at the time of his arrest and shaving blade
recovered at the instance of appellant Mohd.Jafar.
32. Vide FSL report Ex.PW-30/A, it was opined that DNA profile
obtained from blood sample of appellant Mohd.Tanvir is matching with
DNA profile obtained from hair found clutched in the fist of the
deceased.
33. Armed with the aforesaid material(s), the Investigating Officer
filed a challan against the appellants charging them of murdering the
deceased. Charges were framed against the appellant for having
committed an offence punishable under Section 302 IPC read with
Section 34 IPC.
34. At the trial, the prosecution examined 32 witnesses.
35. Mohd.Chand PW-1, the father of the deceased, deposed that in the
year 2011 he was residing with his family in one room in a tenanted
house bearing Municipal No.269, Rumal Wali Gali, Rampura, while the
appellants were staying in another room in said (tenanted) house. He
works in a factory manufacturing slippers. On October 30, 2011 at about
07:30 PM he returned home from his workplace. His wife Zubeda Begum
told that him at about 05:00 - 05:30 PM she had gone to the market to
purchase vegetables and that the deceased was playing in their room in
the building. When she returned to the house at about 06:00 PM she
found that the deceased was not present in the room nor anywhere
around. She further informed him that she had looked around for the
deceased in the adjoining houses but could not find him. Therefore along
with the neighbours he went to search the deceased but could not find
him. On the next day i.e. October 31, 2011 at about 09:00 AM he learnt
that the dead body of a boy was found in the park in front of MCD Office
and therefore he went to the park where he saw the dead body of his son
lying near the bushes. About one week prior a quarrel took place between
him and the appellants since appellant Mohd.Tanvir had disconnected his
cable connection. At that time appellants had threatened him with dire
consequences. His wife had also informed him that the appellants were
present outside their room when she had gone to the market and that
when she returned the appellants were not present in the house. He noted
that the appellants were not present in their room in the night of October
30, 2011 when he was searching for his son.
36. We note that Mohd.Chand was cross-examined by the appellants
essentially on the point that no quarrel took place as alleged by him a
week prior. Pertinently, Mohd.Chand was not cross-examined by the
appellants on the point that the deceased was missing since the evening of
October 30, 2011.
37. Mohd.Rehmat PW-3, deposed that he works in a factory
manufacturing slippers. In the month of October, 2011 he and appellants
were residing as tenants in one room in house bearing Municipal No.269,
Rumal Wali Gali, Rampura. On October 30, 2011 the deceased who was
the son of his neighbour Mohd.Chand was found missing. He along with
the parents of deceased looked for the deceased but he could not be
found. On the said day i.e. October 30, 2011 the appellants did not return
to the room where they were staying. On October 31, 2011 he was
present in his factory when at about 10:00 - 10:30 AM appellant
Mohd.Jafar came there and met him. Appellant Mohd.Jafar was in a
perplexed condition at that time. When he enquired from Mohd.Jafar
about his absence from the room in the previous night Mohd.Jafar told
him that he gone to meet someone. Thereafter Mohd.Jafar demanded
some money from him and upon his refusal to give the money
Mohd.Jafar left the factory. After finishing his work he returned to his
room in the evening of October 31, 2011. Appellant Mohd.Tanvir was
present in the room at that time. When he enquired from Mohd.Tanvir
about his absence from the room in the previous night he told him that he
and Mohd.Jafar had murdered the deceased in the MCD Park in
Rampura. On hearing the same he became nervous and shocked and thus
did not disclose said fact to anyone due to fear.
38. Being relevant, we note the following portion of cross-examination
of Mohd.Rehmat by appellant Mohd.Jafar:-
"Mohd.Chand was my neighbour. I did not make any
complaint to the police regarding missing of the child. I don‟t
know, if Mohd.Chand made any complaint to the police or
not. Vol. He might have lodged a complaint to the police and
on the date of missing of child, we were not having any
apprehension about any mis-happening with the child."
39. Being relevant, we note the following portion of cross-examination
of Mohd.Rehmat by appellant Mohd.Tanvir:-
"Accused Mohd.Tanvir told me that, "Maine Aur Mohd.Jafar
Ne Milkar Mohd.Chand Ke Ladke Ko MCD Park, Rampura,
Mein Le Jakar Kaat Diya Hai", at about 10.00 PM. At that
time, I and accused Mohd.Tanvir were only present there.
Due to fear, I did not disclose the said fact of killing the child
to Fahim and other boys who were tenant in the same room,
in which I was tenant. Police came to my room in the night
hours, after 12.00 midnight on the intervening night of
31.10.2011 and 01.11.2011. The room of Mohd.Chand was
just after one room from my room. I immediately did not
disclose the fact of killing the child, as told by accused
Mohd.Tanvir, to Mohd.Chand."
40. Mohd.Aftab PW-4, deposed that the deceased was his nephew. On
October 30, 2011 he learnt that the deceased was missing from his house
since 06:00 PM. He along with other persons looked for the deceased.
Pertinently, the deposition of the witness that the deceased was missing
from his house since 06:00 PM on October 31, 2011 was not controverted
during cross-examination by the appellants.
41. Zubeda Begum PW-5, the mother of the deceased, deposed that on
October 30, 2011 at about 05:30 PM she had gone to the market to
purchase vegetables. The deceased and her other two children were
present in their room at that time. When she was leaving for the market
she saw the appellants standing outside her room. She returned to her
room at about 06:00 PM and noted that the deceased was not present in
the room. Both the appellants were also not present. She made efforts to
search the deceased but he could not be found. At about 07:00 PM her
husband Mohd.Chand returned from work. She informed her husband
about the deceased being missing. Her husband and other persons
searched for the deceased. At about 08:30 PM Mohd.Jafar came to his
room, broke the lock of the door of his room, took out a bag and hurriedly
went from the house. On October 31, 2011 she learnt that a dead body is
lying in a park upon which she immediately went to the park and saw the
dead body of the deceased lying near the bushes. A week prior a quarrel
took place between her husband and the appellants since Mohd.Tanvir
had disconnected their cable connection. At the time of quarrel the
appellants had threatened her husband with dire consequences. The
appellants went missing from their room from October 30, 2011.
42. We note that Zubeda Begum PW-5, was cross-examined by the
appellants essentially on the point that no quarrel took place a week prior.
Pertinently, Zubeda Begum was not cross-examined by the appellants on
the point that the deceased was found missing since the evening of
October 30, 2011.
43. Nitin Sharma PW-6, deposed that he was manufacturing dies of
shoes and slippers in his factory. Mohd.Chand, father of the deceased,
has been working in his factory since last four-five years. He had visited
the room in the house bearing Municipal No.269, Rumal Wali Gali,
Rampura where Mohd.Chand was residing on several occasions. The
family members of Mohd.Chand including his children are known to him.
On October 30, 2011 at about 05:30 - 06:00 PM he was going to his
factory when he saw the appellants near Chaudhary Hotel. The appellants
were taking away the deceased with them and the deceased was weeping
at that time. He did not ask the appellants as to where they were taking
the deceased since they were neighbours of Mohd.Chand.
44. Being relevant, we note the following portion of the cross-
examination of Nitin Sharma PW-6:-
"It is correct that after seeing the child Afridi with accused
Mohd.Tanvir and Mohd.Jafar in weeping condition, I went to
my factory. At that time, I did not tell this about this fact to
anyone regarding the fact of child Afridi with accused
Mohd.Tanvir and Mohd.Jafar, as I did not feel it necessary to
do so....On 30.10.2011, Mohd.Chand came to factory, but I
did not meet him in the evening hours. I meet him on
31.10.2011 in the morning, when I came to know about the
incident. ....Vol. I told this fact to the family members of child.
Police recorded my statement at PS on 02.11.2011....i told the
fact about the taking away of child Mohd.Afridi by both the
accused, to Mohd.Chand on 31.10.2011 itself and he told this
fact to the police, then police called me and recorded my
statement."
45. Dr.Bhim Singh PW-7, proved the post-mortem report Ex.PW-7/A
of the deceased and the opinion Ex.PW-7/B regarding weapon of offence.
Additionally, he proved the opinion regarding injuries found on person of
Mohd.Jafar given by him at point X in the MLC Ex.PW-26/A of
Mohd.Jafar. Being relevant, we note following portion of cross-
examination of witness by appellant Mohd.Jafar:-
"There are no chances of the blood of the person holding the
blade coming out since in the present case flap of the skin had
come out showing that the blade was held in a slanting
position. Moreover, the skin of the palm is hard that is why in
the given situation there are very little chances that the blood
would come out. I had conducted the post mortem of the
deceased and that is why I can say that the injury caused to
the deceased was by the same blade which was produced
before me and is already exhibited as Ext.PW7/1. It is wrong
to suggest that I had given the subsequent opinion at the
asking of the investigating officer without any application of
mind."
46. Tabbassum PW-8, deposed that she is residing as a tenant in a
room in house bearing Municipal No.269, Rumal Wali Gali, Rampura.
On October 23, 2011 at about 08:00 PM appellant Mohd.Tanvir
disconnected the cable and electricity connections of the room of
Mohd.Chand upon which a quarrel took place between them and
Mohd.Chand who had slapped Mohd.Tanvir. Appellant Mohd.Jafar came
there and supported Mohd.Tanvir. Both the appellants were under the
influence of liquor at that time. Mohd.Chand had also slapped
Mohd.Jafar. Landlord Satpal and other tenants pacified the matter. On the
same day i.e. October 23, 2011 at about 09:30 - 10:00 PM she heard
appellant Mohd.Jafar saying that he would make Mohd.Chand childless
for having slapped him.
47. Dr.V.K.Jha PW-9, deposed that Dr.Nitin had examined
Mohd.Tanvir and prepared his MLC Ex.PW-9/A under his supervision.
48. Satpal Singh Khari PW-11, deposed that he is the owner of the
house bearing Municipal No.269, Rumal Wali Gali, Rampura and
Mohd.Chand, appellants and Mohd.Rehmat were residing as tenants in
his house. On October 23, 2011 a quarrel had taken place between
Mohd.Chand and appellants over cable connection. Pertinently, it was
suggested to the witness during the cross-examination by the appellants
that Mohd.Chand was not his tenant.
49. SI Devender Singh PW-12, deposed that the crime team report
Ex.PW-12/A was prepared by him. Ct.Subhash PW-13, deposed that
photographs Ex.PW-13/A1 to Ex.PW-13/A7 were taken by him;
negatives whereof are Ex.PW-13/B1 to Ex.PW-13/B7.
50. Ct.Naresh Kumar PW-16, deposed regarding the role played by
him in the investigation of the present case as noted by us in the
foregoing paragraphs. Pertinently, the witness deposed about the presence
of strands of hair in the fist of the deceased.
51. D.S.Paliwal PW-23, Senior Scientific Assistant, Biology/DNA
Finger Printing, FSL, Delhi, Dr.Dhruv Sharma PW-27, Assistant Director
(Biology), FSL, Delhi and Dr.Rajender Kumar PW-30, Deputy Director
(Biology), FSL, Delhi proved the FSL reports Ex.PW-23/A, Ex.PW-27/A
and Ex.PW-30/A respectively.
52. Dr.Deepak Chugh PW-26, proved the MLC Ex.PW-26/A of
Mohd.Jafar.
53. SI Surender Singh PW-28 and Insp.Vijay Kumar PW-29, deposed
regarding the role played by them in the investigation as noted by us in
the foregoing paragraphs. Pertinently, the two witnesses deposed that
some strands of hair and straw of grass were found clutched in the right
hand of the deceased at the time when the body of the deceased was
found; which depositions were not specifically controverted during cross-
examination of the witnesses by the appellants. Be it noted here that
Insp.Vijay Kumar PW-29, stated in his cross-examination that no report
regarding missing of the deceased was lodged by his parents at the police
station.
54. In their examination under Section 313 Cr.P.C. except admitting
that the appellants and the family of the deceased as also Mohd.Rehmat
PW-3 were staying as tenants in the house bearing Municipal No.269,
Rumal Wali Gali, Rampura, the appellants denied every incriminating
circumstance.
55. Being relevant, we note following portion of the statement of
appellant Mohd.Jafar under Section 313 Cr.P.C.:-
"Q.27: It is in evidence against you that according to
PW29 Insp.Vijay Kumar that he took you accused Mohd.Jafar
to BJRM Hospital and made a request to autopsy surgeon
Dr.Bhim Singh to give a subsequent opinion with regard to
the injury showing the use of a shaving blade on the fingers of
you accused Mohd.Jafar and Dr.Bhim Singh examined the
hand of you accused Mohd.Jafar and gave his subsequent
opinion Ex.PW26/A informing that there were certain injuries
present on the fingers of you accused Mohd.Jafar which could
be possible while use of shaving blade for slitting/slashing the
throat of the child. What have you to say about it?
Ans: Opinion has been given on the asking of IO. I
want to clarify that the injuries present on my finger were
old injuries for last many months.
Q91: Do you wish to say anything else?
Ans: I am innocent. I have been falsely implicated in
the present case by the police officials to solve a blind
murder case. I have no previous enmity with the
complainant or his family however they have implicated me
at the instance of police. The police instead of apprehending
the actual culprit has implicated me in this case in
connivance with the father of the child only to work out the
same. I have nothing to do with the alleged incident."
56. Being relevant, we note following portion of statement of appellant
Mohd.Tanvir under Section 313 Cr.P.C.:-
"Q91: Do you wish to say anything else?
Ans: I am innocent. I have been falsely implicated in
the present case by the police officials to solve a blind
murder case. I have no previous enmity with the
complainant or his family however they have implicated me
at the instance of police. The police instead of apprehending
the actual culprit has implicated me in this case in
connivance with the father of the child only to work out the
same. I have nothing to do with the alleged incident."
57. The appellants did not lead any evidence in defence.
58. Vide judgment dated May 09, 2014 and order dated May 24, 2014
the learned Trial Judge convicted the appellants of having committed the
murder of the deceased and sentenced them to undergo imprisonment for
life respectively. In reaching the conclusion of guilt, it has been held by
the learned Trial Judge that the prosecution has been able to establish
following circumstances, which circumstances when seen cumulatively,
unerringly point towards the guilt of the appellants:-
a) The FSL report Ex.PW-27/A establishes presence of blood of the
deceased on the shirt worn by appellant Mohd.Tanvir at the time of his
arrest, which in turn establishes that appellant Mohd.Tanvir was present
with the deceased at the time when the deceased was murdered.
b) The FSL report Ex.PW-27/A establishes presence of blood of
deceased on the shirt recovered at the instance of appellant Mohd.Jafar,
which in turn establishes that appellant Jafar was present with the
deceased at the time when the deceased was murdered.
c) The FSL report Ex.PW-27/A establishes the presence of blood of
deceased on the shaving blade recovered at the instance of appellant
Mohd.Jafar, which in turn establishes that the said shaving blade
recovered at the instance of appellant Mohd.Jafar was used to cut/slash
the throat of the deceased.
d) The FSL report Ex.PW-30/A establishes that strands of hairs found
clutched in the right fist of the deceased was that of appellant
Mohd.Tanvir when seen in conjunction with the fact that few straw of
grass were also found clutches in the hand of the deceased and an
abrasion was found on the left eyebrow of appellant Mohd.Tanvir
establishes that Mohd.Tanvir had caught hold of the deceased when he
i.e. the deceased was being murdered and the deceased had put up a stiff
resistance and tried to escape from the clutches of the murderer.
e) The opinion given by Dr.Bhim Singh PW-7, that the injury found
on the index finger of the right hand of appellant Mohd.Jafar was possible
to have been caused by a sharp edged weapon such as blade due to
grasping by finger and thumb establishes that it was appellant Mohd.Jafar
who had inflicted the cut injuries on the throat and the forearm of the
deceased.
f) The testimonies of Mohd.Chand PW-1, father of the deceased,
Zubeda Begum PW-5, mother of the deceased, Tabassum PW-8,
neighbour of the family of the deceased and Satpal PW-11, landlord of
the deceased establish the motive of the appellants to murder the
deceased inasmuch a one week prior to the death of the deceased the
appellants had a quarrel with Mohd.Chand, the father of the deceased,
threatened him i.e. father of the deceased with dire consequences and to
make him childless at the time of said quarrel.
g) The testimony of Nitin Sharma PW-6, establishes that the deceased
was last seen alive in the company of the appellants and there was
proximity between the time of last seen and time of death of deceased.
h) The testimony of Mohd.Rehmat PW-3, establishes that appellant
Mohd.Tanvir had made an extra-judicial confession to Mohd.Rehmat to
the effect that he and Mohd.Jafar had committed the murder of the
deceased.
i) The conduct of appellant Mohd.Jafar subsequent to the murder of
the deceased was most suspicious inasmuch as he i.e. Mohd.Jafar was in
perplexed condition on October 31, 2011 (established through the
testimony of Mohd.Rehmat PW-3) and fled to his native village in Bihar
soon after the murder of the deceased.
59. Aggrieved by the aforesaid, the appellants have filed above
captioned appeals.
60. During the hearing of the above captioned appeals, following seven
arguments were advanced by the learned counsel for the appellants:-
A The first submission advanced was that the (alleged) recovery of
strands of hair found clutched in the right fist of the deceased is doubtful
for the reason the factum of said recovery does not find a mention in the
endorsement Ex.PW-28/B prepared by SI Surender Singh PW-28.
Counsel argued that had the strands of hair been found clutched in the
right fist of the deceased as claimed by the prosecution the same would
have surely found a mention in the endorsement Ex.PW-28/B,
particularly when a perusal of the endorsement Ex.PW-28/B shows that
the articles which were found near/around the dead body of the deceased
have been noted in the said endorsement.
B The second submission advanced related to the conduct of the
parents of the deceased (Mohd.Chand PW-1 and Zubeda Begum PW-5)
pertaining to their claim that their son was found missing from the house
at around 06:00 PM on October 30, 2011. Counsel argued that if this was
so it was to be expected that the parents would have lodged a missing
person report on October 30, 2011. Therefrom counsel urged that an
inference has to be drawn : that the deceased was not missing from his
house either in the evening of October 30, 2011 and had stayed in his
house in the morning. There was a probability that in the morning of
October 31, 2011 when the child went out, somebody murdered him.
Taking the argument to its logical conclusion it was urged that in said
view of the matter it becomes immaterial that the child was seen with the
appellants in the evening of October 30, 2011. The argument was with
the caveat that it should not be taken as an admission by the appellants
that the testimony of Nitin Sharma PW-6 had to be believed.
C The third submission advanced was linked to the second
submission relating to the alleged abnormal conduct of the parents of the
deceased in not lodging a missing person report. Counsel argued that the
conduct of the parents of the deceased of rushing to the park soon after
receiving the information that a dead body of a boy was lying in the park
is again abnormal. Why would they rush to the park if they only learnt
that a dead body was lying in the park? Was the query posed.
D The fourth submission advanced pertained to the veracity of the
testimony of Nitin Sharma PW-6. Counsel pointed out that the statement
of Nitin Sharma under Section 161 Cr.P.C. was recorded on November
02, 2011 i.e. two days after the recovery of the dead body of deceased,
which as per learned counsel was clearly indicative of the fact that Nitin
Sharma is a planted witness.
E The fifth submission advanced pertained to the recovery of the shirt
worn by appellant Mohd.Tanvir at the time of his arrest. Counsel argued
that Mohd.Tanvir was arrested from the room where he was staying at
about 07:30 PM on November 01, 2011. The death of the deceased had
taken place around 10:40 - 12:40 PM on October 30, 2011 as per the
post-mortem report Ex.PW-7/A. Counsel argued that it is highly
improbable that appellant Mohd.Tanvir would have continued to wear a
blood stained shirt for two days.
F The sixth submission advanced pertained to the shirt got recovered
at the instance of appellant Mohd.Jafar. Counsel argued that the shirt was
recovered hanging from a spike in the room shared as residence by
Mohd.Jafar, Mohd.Tanvir and Mohd.Rehmat, which room was visited by
the Investigating Officer on November 01, 2011 when Mohd.Tanvir was
arrested and thus the recovery of the shirt at the instance of Mohd.Jafar
from the same room on November 05, 2011 was highly tainted.
G The last submission advanced pertained to the shaving blade got
recovered at the instance of appellant Mohd.Jafar. Counsel urged that
concededly the crime team was summoned to the place where the dead
body of the deceased was found and thus one has to presume that the
crime team would have thoroughly investigated in or around the area
where the dead body was found and it is unbelievable that the crime team
could not see the blade in question.
61. Dealing with the first submission advanced, the factual narratives
noted by us herein above bring out that on being handed over a copy of
DD No.9A, SI Surender Singh PW-28, accompanied by Ct.Naresh PW-
16 and Ct.Suresh PW-20, reached the park where they saw the dead body
of a boy aged 3-4 years. Crime team was summoned at the spot and
reached the park shortly thereafter. SI Davender PW-12, in-charge,
Mobile Crime Team, North West District inspected the spot where the
body of the deceased was lying.
62. SI Surender Singh PW-28, scribe of the endorsement Ex.PW-28/A
has no doubt recorded what he saw at the scene of the crime including
that there was grass in the right fist of the deceased; and has not recorded
that he saw strands of hair in the grass, but that would not mean that there
was no hair in the grass clutched in the right fist of the deceased. SI
Surender Singh wrote in the endorsement what he could visually see with
a naked eye and when we look into the photographs Ex.PW-13/A-1 to
Ex.PW-13/A7 we cannot see the strands of hair but can see the grass in
the right fist of the deceased, for the obvious reason the thickness of hair
is a few microns and unless there is a bunch of hair in the fist, few strands
of hair which are intermingled with grass would obviously not be seen by
the naked eye. Only when one forensically examines the contents of the
clutched fist can one identify what is being clutched on to.
63. The second submission was that it would be the natural conduct of
parents whose infant child is found missing at 06:00 PM to report said
fact to the police within reasonable period of time if the infant child
cannot be located. The argument would be that if when it became dark
the child was not to be found the natural conduct of the parents would be
to inform the police. The argument as noted above runs further that this
would mean that the child was not missing from his house in the evening
nor during the night and in all probability left the house in the morning.
Somebody killed the child thereafter.
64. The aforesaid argument overlooks the post-mortem report Ex.PW-
7/A of the deceased. As per the post-mortem report, the deceased died
between 10:40 PM - 12:40 midnight in the intervening night of October
30, 2011 and October 31, 2011 and thus the question of the deceased
being in his house in the night does not arise. We further note that
Mohd.Chand PW-1, father of the deceased, Zubeda Begum PW-5, mother
of the deceased and Mohd.Aftab PW-4, uncle of the deceased, have
deposed that the deceased was found missing around 06:00 PM on
October 30, 2011, which depositions have not been controverted by the
appellants during the cross-examination of the said witnesses.
65. From the fact that the deceased died anytime between 10:40 PM to
12:40 midnight of the intervening night of October 30, 2011 and October
31, 2011 we have proof of the fact that the child did not spend the night
in his house. And yet we have the parents of the deceased not lodging a
missing person complaint with the police. The conduct of parents when
their child who is an infant does not return home by darkness would
certainly be to report the matter to the police. But in the instant case as a
matter of fact the parents have not done so. But is this conduct so
unnatural that it destroys the credibility of the claim of the parents, to
which we find corroboration by Mohd.Rehmat PW-3 and Mohd.Aftab
PW-4 that the two had joined the parents when they were searching for
their infant son. We do not think so.
66. Whilst it may be true that the conduct of a rational parent would be
to inform the police if an infant does not return home by dark, but a
conduct to the contrary would not be irrational for those who live in the
slums and unauthorized colonies where one witnesses not only young
children but even infants loitering around in the night or sleeping around
wherever they find a place to sleep, with the parents unmindful of their
absence or perhaps a little concern of the child being absent but not
perturbed because probably they are used to the child occasionally
sleeping in the house of a friend and returning the next day. Not that they
do not love their children, but the toil of their lives somewhat diminishes
their emotions which evince profitlessness in the same. The helpless
miseries of the poor, wandering gaunt and hunger-stricken, drone out
their melancholy ditties. The decisiveness of the moral nerve is
somewhat found missing. They become sodden with despair due to the
oppressive loneliness, and as they lose faith in just about everything
around them, they do not think and behave as an enlightened soul would.
They sometimes stand silently by even when fiendish wrongs are
perpetrated before their very eyes. As against an enlightened soul whose
blood would boil with rage at the very sight of enormities callously
inflicted, they silently bear these miseries. Unfortunately and with head
hanging in shame, it has to be accepted that in the slums and unauthorized
colonies one finds a population eaten up by every social and physical
melody. This explains why cries of victims are not heard by the
inhabitants of the slum, for we have experienced arguments in each and
every case of a physical crime in a slum that how come nobody around
heard the shrieks of the victim. If the cry was the first time that a wail of
hopeless misery had sounded on the ears of the slum dweller, the matter
would be heard with concern. But it is because the slum dweller hears of
it so often, even the exceedingly bitter cries, which have become familiar
in the ears of the slum dweller, is ignored just as the roar of motor
vehicles racing on the roads adjacent to the slums. Either the slum
dweller is too busy or too idle or perhaps indifferent to spare it a thought.
Only now and then on rare occasions one hears a clear voice giving better
articulate utterance. Seen in the backdrop of life in a slum or a
resettlement colony one would not be wrong to state that the volume of
dull, squalid horror of great darkness gradually obscures the light of day
from the life of these unfortunate sufferer fellows whom one meets every
day in the streets. It confronts the same „hope springs eternal in the
human breast‟. Seen in light of the fact that the deceased admittedly died
around midnight of the intervening night of October 30, 2011 and
October 31, 2011, the rationality to the conduct of his parents in not
informing the police can be gleaned from the few words we have penned.
After all, the father of the deceased was a labourer in a factory and was
living with his wife and three children in a one room tenement in an
unauthorized colony.
67. The third submission, which was linked to the second, therefore
needs no further discussion in view of what we have written in the
preceding paragraph. But we find no logic in the argument that it was an
abnormal conduct for the parents to rush to the park when they heard that
the dead body of a child was noted in the park. Whilst it may be true that
for the reasons given by us in the preceding paragraph, there is rationality
in the lack of concern which an enlightened soul would show if his infant
child does not return home by dark, but that would not mean that the
parents would not sense something amiss when they learnt of the fact that
the dead body of a child has been found nearby. Whatsoever be the
disillusionment in their lives and whatsoever be the darkness shadowing
their soul, the parents instinct would lead them to the spot.
68. There is some merit in the fourth submission concerning the
creditworthiness of Nitin Sharma PW-6. He has deposed that he
recognized the deceased who was the son of his employee because he had
met him when he used to visit the residence of Mohd.Chand. He claims
to have seen the child weeping. The natural conduct of Nitin Sharma,
who is an enlightened soul - he is the owner of a factory and hence does
not suffer the miseries of a slum dweller, would be to walk up to the child
and ask him why was he crying. Further, he volunteering information of
having seen the child in the company of the appellants on November 02,
2011 has to be taken with a pinch of salt because the dead body of the
child was discovered in the morning of October 31, 2011 and thus one
can presume that Mohd.Chand did not report for work at the factory on
October 31, 2011 and November 01, 2011. Surely Nitin Sharma would
have enquired the reason for Mohd.Chand‟s absence and would have
learnt that Mohd.Chand‟s son has been killed by somebody. He would
have surely enquired as to under what circumstances the young
unfortunate infant was killed and if indeed he saw what he claimed to
have seen in the evening of October 30, 2011, he would have volunteered
said information promptly because as a reasonable man one can impute
him knowledge of the importance of the information which he had and
the importance of it being shared with the police.
69. We thus ignore the testimony of Nitin Sharma, but would
emphasize the fact that the testimony of Zubeda Begum PW-5 would
establish that the appellants were seen in their one room tenement which
they shared with Mohd.Rehmat PW-3 which was in the same building in
which Zubeda Begum, her husband and children resided and the conjoint
testimony of Zubeda Begum and Mohd.Rehmat PW-3 would prove that
the appellants were found missing thereafter and continued to remain
missing till they were apprehended.
70. We take up together the fifth and the sixth submission advanced.
Mohd.Tanvir was arrested around 7:30 PM on November 01, 2011 and
the case of the prosecution is that blood of the deceased was detected on
the shirt which he was wearing when he was apprehended. The FSL
Report Ex.PW-27/A has not been challenged and thus we have proof of
the fact that blood of the victim was found on the shirt. It is not
uncommon for people in the slums and unauthorized colonies not to
change their clothes for days together. That Mohd.Tanvir did not notice
blood on his shirt is obvious. In the absence of challenge to the DNA
Report the argument by Mohd.Tanvir is sans any reasons. Even
Mohd.Jafar has not challenged the FSL Report Ex.PW-27/A which
proves that blood of the deceased was detected on the shirt got recovered
at the instance of Mohd.Jafar. Whilst it may be true that the shirt was
recovered from the same room three days after the police had visited the
room for the first time, but from the fact proved from the FSL Report
Ex.PW-27/A, in the peculiar facts of the instant case nothing turns on the
fact that the shirt was recovered from a room which was visited by the
police three days earlier.
71. Recoveries made by the police from open spaces and from a place
which the police has visited on an earlier occasion are looked upon by
Courts with suspicion because of the evolution of law in the early part of
the 17th Century in England when Judges found planting being resorted to
by the sheriff and hence the Courts crafted the rule of caution against
accepting such recoveries unless there was something more, of a kind,
when the raised eyebrows would be dropped. It is not the law that such
recoveries are per se inadmissible. Now, a person is not expected to be
wearing two shirts at the same time and that on two shirts blood of the
deceased was detected proves that there were two persons, each wearing
one shirt, when the child bled. The raised eyebrows concerning the
recovery of the shirt at the instance of Mohd.Jafar are bound to drop in
view of the FSL Report Ex.PW-27/A.
72. The last submission concerning the recovery of the blade by
appellant Mohd.Jafar overlooks the photographs Ex.PW-13/A1 to
Ex.PW-13/A7 which show that the dead body was surrounded by dense
bushes and a grove of trees with grass all around. It was possible that a
small shaving blade, lying hidden in the dense bushes, was not seen. It
would be akin to finding a needle in a hay stack. Besides, the FSL Report
Ex.PW-27/A establishes presence of blood of the deceased on the shaving
blade, meaning thereby that the blade in question had a distinct identity
mark thereon and the incriminating factor would be the knowledge of
Mohd.Jafar that the blade used to inflict the injuries on the victim was
lying at the spot wherefrom it was recovered.
73. That apart, having not challenged the FSL Report Ex.PW-30/A we
have proof of the fact that hair found clutched in the right fist of the
deceased was that of Mohd.Jafar. Thus, Mohd.Jafar‟s participation in the
crime is independently proved by said report.
74. Though learned counsel for the appellants had not challenged the
claim of Mohd.Rehmat PW-3 that Mohd.Tanvir had made an extra
judicial confession to him, but we find Mohd.Rehmat‟s testimony in said
regard to be a figment of imagination and his claim of not having
disclosed said fact at the first available opportunity is the reason for our
opinion. Residing in a room in the same building where the deceased
resided with his parents, he had nothing to fear when, as claimed by him
Mohd.Tanvir made the confession in the evening of October 31, 2011 and
fled. The dead body of the child had been recovered in the morning of
October 31, 2011. His first instinct would be to tell the parents of the
confession made by Mohd.Tanvir.
75. We note that the index finger of the right hand of Mohd.Jafar was
injured and Dr.Bhim Singh had opined that the injury was 6 -7 days old,
Dr.Bhim Singh had examined Mohd.Jafar on November 05, 2011 and
therefore the injury would relate back to October 30, 2011. The opinion
of the expert is that the injury was caused when a sharp edged object was
grasped between the thumb and the index finger. The post-mortem report
of the deceased and the photographs show that firstly an attempt was
made to cut the arteries on the wrist and thereafter the neck was sawed.
The post-mortem report shows that the incised wound reached the trachea
and the esophagus, meaning thereby the blade was moved to and fro
along the front of the neck with considerable force applied. Mohd.Jafar
could not explain the said injury when examined under Section 313
Cr.P.C. and his explanation that he had injured his finger and thumb a
few months ago is a false explanation and this is further incriminating
evidence against him. Similarly appellant Mohd.Tanvir had an abrasion
on his left eyebrow, which he failed to explain, and was possibly the
result when the child struggled when firstly his wrist was being cut and
then the neck.
76. An analysis of the evidence led in the instant case shows that the
prosecution has been successful in establishing following circumstances:-
(i) The deceased and his family appellants were residing as tenants in
the house bearing Municipal No.269, Rumal Wali, Rampura. (The said
fact has been admitted by the appellants in their statements under Section
313 Cr.P.C.)
(ii) A quarrel had taken place between Mohd.Chand PW-1 and
appellants on October 23, 2011 i.e. one week prior to the death of
deceased. Tempers had flared in said quarrel and appellants had
threatened the father of the deceased with dire consequences and make
him childless at the time of said quarrel. (Established through the
testimony of Mohd.Chand PW-1, Zubeda Begum PW-5, Tabassum PW-8
and Satpal PW-11).
(iii) The deceased went missing from his house between 05:30 - 06:00
PM on October 30, 2011. (Established through the testimony of
Mohd.Chand PW-1, Zubeda Begum PW-5 and Mohd.Aftab PW-4).
(iv) The appellants were present in the house wherefrom the deceased
went missing at about 05:30 PM on October 30, 2011. (Established
through the testimony of Zubeda Begum PW-5)
(v) The death of the deceased had taken place between 10:40 PM to
12:40 midnight in the intervening night of October 30, 2011 and October
31, 2011. (Established through the post-mortem report Ex.PW-7/A of the
deceased).
(vi) Appellant Mohd.Jafar had fled to his native place in Samastipur,
Bihar after the death of the deceased. (Established through the testimony
of SI Rakesh Duhan PW-25 and HC Jitender PW-10, who had arrested
appellant Mohd.Jafar at Samastipur, Bihar)
(vii) Blood of deceased was detected on the shaving blade recovered at
the instance of appellant Mohd.Jafar. (Established through the FSL report
Ex.PW-23/A).
(viii) Injuries found on person of deceased were possible to have been
caused by the shaving blade recovered at the instance of appellant
Mohd.Jafar. (Established through the opinion Ex.PW-7/B prepared by
Dr.Bhim Singh PW-7)
(ix) Injury found on index finger of right hand of appellant Mohd.Jafar
at the time of his arrest on November 03, 2011 was six-seven days old
and possible to have been caused by sharp-edged weapon such as blade
due to grasping by finger and thumb. (Established through the opinion
given at point X by Dr.Bhim Singh PW-7, on the MLC Ex.PW-26/A of
appellant Mohd.Jafar)
(x) False explanation by Mohd.Jafar as regards the injury in question.
(xi) Injury on Mohd.Tanvir which he could not explain.
(xii) Blood of deceased was detected on the shirt worn by appellant
Mohd.Tanvir at the time of his arrest. (Established through the FSL report
Ex.PW-23/A).
(xiii) Blood of deceased was detected on the shirt recovered at the
instance of appellant Mohd.Jafar. (Established through the FSL report
Ex.PW-23/A).
(xiv) Hair of appellant Mohd.Tanvir was found clutched in the right
hand of the deceased at the time of recovery of (dead) body of the
deceased. (Established through the FSL report Ex.PW-30/A).
77. The afore-noted fourteen circumstances proved by the prosecution,
when seen cumulatively, lead to an irresistible conclusion that the
appellants had committed the murder of the deceased.
78. In view of above discussion, the above captioned appeals are
dismissed.
79. TCR be returned.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
NOVEMBER 10, 2014
mamta
