Delhi High Court
Anwar vs State on 29 February, 2016
$~R-20, 21, 22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 29th February,2016
+ CRL.A. 464/2014
ANWAR ..... Appellant
Through : Mr. R. M. Tufail, Mr. Farooq
Chaudhary, Mr. Vishal Raj Sehijpal
and Ms. Meenakshi Joshi, Advocates.
versus
STATE ..... Respondent
Through : Ms. Anita Abraham, APP for State.
+ CRL.A. 467/2014
AKBAR ..... Appellant
Through : Mr. R. M. Tufail, Mr. Farooq
Chaudhary, Mr. Vishal Raj Sehijpal
and Ms. Meenakshi Joshi, Advocates.
versus
STATE ..... Respondent
Through : Ms. Anita Abraham, APP for State.
+ CRL.A. 468/2014
SHAUKAT PASHA ..... Appellant
Through : Mr. R. M. Tufail, Mr. Farooq
Chaudhary, Mr. Vishal Raj Sehijpal
and Ms. Meenakshi Joshi, Advocates.
versus
STATE ..... Respondent
Through : Ms. Anita Abraham, APP for State.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G. S. SISTANI, J. (ORAL)
1. All the three appeals arise out of a common order dated 14.02.2014
and order on sentence dated 13.03.2014 by which all the three
appellants had been held guilty and convicted under Section 302/34 of
the Indian Penal Code and sentenced to undergo imprisonment of life
and fine of Rs. 20,000/- each, in default of payment of fine, further
simple imprisonment for one year.
2. All the three appeals have been heard together and are being decided
by a common judgment.
3. The case of the prosecution before the learned trial court was that on
21.3.2009 at 6.00 p.m., an information was received in Police Station
Jamia Nagar about a person having been injured in firing and lying at
N-68, Batla House, near Khalil-Ul-Lah Mosque, New Delhi. The said
information was recorded as DD No.21A. The information was sent to
SI Ramjeet through Ct.Raj Kumar. Since Inspr.Amrit Raj was also
present in the Police Station copy of DD No.21A was given to him for
further action. Inspr.Amrit Raj along with SI Kameshwar Prasad, HC
Qurban Ali, HC Virpal, Ct.Dhir Singh and Ct.Harender reached at
spot. SI Ramjeet Singh and Ct.Raj Kumar were present at the spot,
besides other public persons. The Police team found that one person,
namely, Abdul Hafeez Khan, drenched in blood was lying in a vacant
plot, in front of property no.N-85. He was having bullet injuries on his
person. His wounds were bleeding and a lot of blood spread on the
ground. One used cartridge, on the bottom of which KF 8 mm was
engraved, was lying at some distance of the injured. The injured was
removed to Holy Family Hospital in official Gypsy by HC Qurban Ali
and Ct.Krishan Pal. IO collected the MLC of injured. The injured was
shifted to ICU Ward. The treating Doctor declared the injured unfit for
giving statement. HC Qurban Ali informed the IO that the injured had
disclosed to him that Shaukat Pasha, Akbar Amroha, Rizwan and
Anwar had fired at him. This statement was heard by Constable
Krishan Pal. The injured succumbed to his injuries.
4. During investigation, all the accused persons were apprehended, who
admitted their guilt in their disclosure statements. A charge sheet was
filed against all the accused persons under Section 302/34, 212 and
216 of the IPC read with Sections 27/54/59 of the Arms Act. Accused
Zahir, was discharged while the accused Akbar, Anwar and Shaukat
Pasha were charged for the offence punishable under Sections
120B/302 of the IPC or alternatively under Sections 302/34 of the IPC
vide order dated 30.8.2010 passed by the trial court. All of them
pleaded not guilty and claimed trial.
5. In support of its case, the prosecution has examined 29 witnesses.
Statements of the accused persons were recorded under Section 313 of
the Cr.P.C. Although the accused persons, Akbar and Anwar, did not
examine any witness in their defence but the accused, Shaukat Pahsa,
sought two days' time to give list of his witnesses, however, he failed
to do so nor any evidence was led by him.
6. Mr. R. M. Tufail, learned counsel appearing for the appellants submits
that there are various inconsistencies in the story of the prosecution,
there are material contradictions and improvements in the statements
of the witnesses and the judgment so passed has resulted in gross
miscarriage of justice. Counsel further submits that the trial court has
relied upon the testimony of HC Qurban Ali (PW-18) which is not
reliable for the reason that having regard to the bullet injuries suffered
by the deceased, it was highly improbable that he was in a position to
talk. Counsel for the appellants further contends that the testimony of
HC Qurban Ali is also not reliable for the reason that according to HC
Qurban Ali, the statement made by the deceased named the appellants
herein which was also heard by Driver Krishan Pal, who could not
have heard the statement, if any, made by the deceased as he was
concentrating on the road. Mr.Tufail contents that HC Qurban Ali
(PW-18) is not a reliable witness as according to him he had removed
the injured to the hospital but his clothes were not seized and it is
highly improbable that a person who had removed the victim to the
hospital with three gunshot injuries, blood would not be smeared on
his clothes.
7. Counsel further submits that the trial court has placed reliance on the
testimony of Asma (PW-13) who claims that she received a call from
her husband that Akbar and Rizwan had shot him which fact
according to the prosecution was supported by Smt. Mehar (PW-7).
Counsel contents that there is no evidence on record to suggest that the
victim was either in a position to speak to his wife neither any
telephone has been seized nor the call records have been proved of
PW-13 that she had received a phone call from the phone of her
husband (since deceased). Additionally, counsel contents that it is
highly improbable that the deceased did not disclose the names of his
assailants to the independent witness Constable Rahish Hasan (PW-
11) who had called the PCR and was in no way connected to the
investigation in the matter.
8. Mr. Tufail has also drawn the attention of the court to the MLC which
was recorded by Dr. Anjana Kharbanda (PW-10). As per the MLC the
patient was unfit for statement at 7.30 PM. Additionally, it is pointed
out that when the injured reached the hospital and the MLC was
prepared, it was noted that the patient was conscious but drowsy, pulse
was in palpable, BP was not recordable and in her testimony PW-10
had stated that the patient was opening the eyes on verbal command
but was not responding. She has further testified that punctured wound
over occipital region as mentioned in the MLC Ex. PW-8/DC may
affect the motor and sensory nervous system if the injury extend up to
the brain. During cross examination this witness has also testified that
if the BP and pulse of the patient is not recordable he would not be
fully conscious. Relying on the testimony of PW-10, Mr.Tufail, thus,
contends that it was impossible for the victim to have spoken a word
leave alone make a phone call and inform his wife the names of his
assailants or make a statement to PW-18.
9. Ms. Anita Abraham, learned APP for State submits that they were not
one but two dying declarations in this case. The first dying declaration
was made by the victim to HC Qurban Ali (PW-18). There is nothing
on record to suggest that there was any enmity between HC Qurban
Ali (PW-18) and the appellants thus, the testimony of HC Qurban Ali
(PW-18) is reliable. Learned APP further submits that the utterances
of the victim were made within the hearing range of Driver Krishan
Pal and thus the testimony of HC Qurban Ali (PW-18) is fully
corroborated by the testimonies of Krishan Pal (PW-19), Asma (PW-
13) and Smt. Mehar (PW-7) as Asma (PW-13) had informed Smt.
Mehar (PW-7) about the names of the assailants as informed to her by
her husband. Both Asma and Mehar claim to be the wives of the
deceased and even the call was received on the phone of Asma in the
presence of Mehar.
10. Learned APP further submits that merely because the clothes of HC
Qurban Ali (PW-18) were not seized that by itself would not make his
testimony to be unreliable.
11. Counsel also submits that merely because the statement of HC Qurban
Ali (PW-18) was not recorded on the same date cannot gain much
importance in view of the fact that the FIR which was registered on
the same day, the appellants herein stand named therein. Additionally,
the copy of the FIR was forwarded to the Ilaka Magistrate at 10:15
p.m.
12. We have heard the learned counsel for the parties, carefully examined
the record of the trial court and considered the rival submissions made
by the learned counsel for the parties.
13. In this case, the prosecution has placed strong reliance on the
testimony of HC Qurban Ali (PW-18), Asma (PW-13) and Ct. Krishan
Pal (PW-19) to bring home the guilt of the appellants.
14. HC Qurban Ali (PW-18) has testified that on 21.03.2009 he was
posted at Police Station Jamia Nagar and on receipt of DD No. 21-A
he along with Inspector (Investigation) and others reached the gali of
H. No. 85, Batla House and an injured person was found lying in a
vacant plot, he was bleeding and one empty cartridge was also found
at some distance. He deposed that he along with Driver Krishan Pal
had taken the injured to Holy Family Hospital in a Gypsy, on the way
to the hospital, the injured had told his name as Abdul Hafiz S/o
Abdul Wahid Khan and also informed him that one Akbar Amroha,
Shaukat Pasha, Rizwan and Anwar had shot him thereafter he expired
and his dead body was shifted to Mortuary at Holy Family Hospital.
He further deposed that Inspector (Investigation) along with Ct. Ram
Pal also reached Holy Family Hospital.
15. During cross-examination, he testified that the area was congested
area and rickshaws were also plying in the gali which was about 12/13
feet-wide. The gali comprises of houses of two storied and three
storied. He also testified in cross-examination that many persons were
present in the gali. He also stated in the cross-examination that when
they were on the main road to the Holy Family Hospital, at that time
the injured told him the names of the persons who had caused injuries
to him but he had not told the names of the assailants when he was put
in the vehicle or when they were in the gali. He testified that he was
sitting on the back side of the Gypsy on the seat behind the seat of the
co-passenger on the front. The injured was sitting with him as he was
holding him and there were marks of bullet injuries and they were
bleeding. He did not either write down what the injured had told him
nor he told the doctor what the injured told him neither he furnished
the information which the injured had given him on the wireless. He
had also not informed the Duty Constable (on duty) at the hospital
what the injured had told him neither he informed the Senior Officers
telephonically.
16. The other important witness is Ct. Krishan Pal (PW-19). He has
supported the testimony of HC Qurban Ali (PW-18) to the extent that
he was on duty on 21.03.2009 and received DD No. 21-A. He had
accompanied others to the place of incident. He along with HC
Qurban Ali (PW-18) had taken the injured the Holy Family Hospital.
On the way he had told HC Qurban Ali (PW-18) that one Shokat Pasa,
Rizwan, Anwar and Akbar had shot him.
17. In the cross-examination, Ct. Krishan Pal (PW-19) further testified
that :
"While I was driving the Gypsy, my attention was towards the
vehicles and pedestrians on the road in front of me. I was more
eager to reach hospital as early as possible. I did not care to
notice shops in the gali from where the injured was picked up.
It is correct that I did not care to notice any shops in the gali as
my attention was to avoid any collusion with the pedestrians or
the vehicles in the gali. I had to blow the horn as well as the
siren to dispel the pedestrians and the vehicles in front of my
vehicle so that I could reach as early as possible. The siren
fitted in the Gypsy was of the same type as is used in an
ambulance. It makes a lot of sound. HC Qurban Ali was sitting
on the back side with the injured. HC Qurban Ali and myself
were in uniform. I do not know whether HC Qurban Ali was
having any service revolver with him or not. HC Qurban Ali
had told me what the injured had told him. Again said, HC
Qurban Ali had also told me what the injured had told him and
I had also heard the conversation between HC Qurban Ali and
the injured."
(emphasis added)
18. Ct. Krishan Pal (PW-19) had volunteered to state that he had heard
their conversation but it was clarified by HC Qurban Ali later on and
also in the hospital what the injured had told him as he was not able to
hear clearly what the injured was saying. He had also deposed that
they were in the gali itself when the injured had told HC Qurban Ali
that he had been injured by the appellants.
19. Asma (PW-13) has also testified that she was the first wife of the
injured. The second wife of her husband Smt. Mehar was also residing
with her and her husband. Around 6.00/6.15 pm she had received a
telephone call on her mobile phone no. 9810795398 from her husband
informing her that he had been shot by one Akbar and Rizwan in Batla
House, he had sustained three bullet injuries, he was unable to speak
properly. She was then informed by one Heena that her husband was
taken to Holy Family Hospital. When she was cross-examined by the
PP, she stated that she was not giving the names of Shokat Pasa and
Anwar as she had been threatened by the accused persons not to
disclose their names in court. During cross-examination, she was
unable to recollect the mobile number of her husband. She had also
stated that she had not kept the number of her husband in writing and
she was unable to find out from anywhere about the mobile number of
her husband late Abdul Hafiz Khan.
20. We may note that it is only in her cross-examination this witness has
testified that after receiving the call from Hafiz, she immediately came
to Mehar at the first floor and told her about the incident.
21. Smt. Mehar (PW-7), second wife of the deceased has also supported
the prosecution to the extent that around 6:00pm a phone call was
received from her husband at the phone of Asma (PW-13) who had
told Asma that he had received bullet injuries. During cross-
examination by the PP, she denied that she had ever made a statement
to the police and named the appellants.
22. We also deem it appropriate to discuss the testimony of Rahish Hasan
(PW-11). The testimony of this witness gains importance as he was an
independent witness although he was working as a Constable in Delhi
Police. He testified that on the fateful day i.e. on 21.3.2009 he was
going towards Khali-Ul-Lah Masjid from his house and when he
reached in front of N- 85, Batla House, in the vacant plot, he noticed
that a person was lying in an injured condition and was bleeding. This
witness gave information regarding this to the police on 100 number
PCR. The IO of the case had met him and made enquiry from him.
During cross-examination, this witness testified that he did not ask the
name of the injured person from him. The injured person had talked to
him and asked him to save him. He did not say anything else. He had
stayed at the spot for about five minutes. The injured had not told him
anything as to how he had sustained injuries. He had left the spot after
the police reached the spot.
23. The MLC in this case was prepared by Dr. Anjana Kharbanda (PW-
10) who testified as under :
"On 21.03.2009, I was working as CMO in Holy Family
Hospital, New Delhi. On that day, one person namely Abdul
Hafiz Khan was brought to the hospital with gunshot injury.
The injured Abdul Hafiz Khan was medically examined by me
and the MLC in this regard was prepared with details of
injuries. The MLC is already Ex. PW-8/DC, bearing my
signature at point X. The injured was conscious but drowsy.
In this case, there were following injuries:-
(i) Punctured wound over occipital region, left side of
cheek (mandibular region).
(ii) Punctured wound on right side of back with splinter
hemorrhages over right side lower chest. The injuries
were gun shot injuries.
During examination of injured, the following was
observed:
Chest- bilateral air entry+
CVS- S-1 S-2 audible
P/A- Soft BS+
CNS- Conscious but drowsy
Bilateral pupils NS/NR
XXXXXXXXXX by Sh. L.K. Upadhyay, Ld. Counsel for
accused Shokat Pasa and Akbar.
The Patient was unfit for making statement because of his
injuries and condition. The patient was brought by PCR
constable. The address of the injured mentioned at point B on
Ex.PW-8/DC is in my handwriting. The file produced before
me was having the address of the injured and from the same,
I had copied it in the MLC Ex. PW-8/DC. It is correct that
there is a cutting on the time mentioned at point C on Ex.
PW-8/DC. The initial at point C-1 under the cutting does not
pertain to me. This cutting at point C was not done by me.
The patient was opening the eyes on verbal command but
was not responding. S-1 and S-2 mentioned in Ex. PW-8/DC
indicate heart sounds.
The punctured wound over occipital region as mentioned in
the MLC Ex. PW-8/DC may affect the motor and sensory
nervous system if the injury extend up to the brain.
The person accompanying the injured did not give the history
of the patient.
Court Ques : On what basis you have given the history of
the patient in the MLC Ex. PW-8/DC at point „D‟ to „D‟‟.
Ans. I had mentioned the history of the patient at
point „D‟to „D‟on Ex. PW-8/DC as stated to me by the
constable who had brought the injured.
Till the patient was shifted to ICU, no relative or
acquaintance of the injured had come. I cannot tell the time
when the patient was shifted to the ICU. It might have taken
half an hour maximum from the time he was brought before
me. Except the casualty card and MLC Ex. PW-8/DC, I had
not prepared any other document regarding the patient. The
casualty card contains the same history which I had
mentioned in MLC Ex. PW-8/DC.
When the patient was brought to me, he was bleeding
through the wound. My statement was not recorded in this
case. I do not know who is the Investigating Officer of this
case. The duty hours were from 2 pm to 8 pm on 21.03.2009.
XXXXXXXX by Ms. Sridevi Paniker (Amicus Curiae), Ld.
Counsel for accused Anwar.
It is not necessary that if a patient is conscious, his BP and
pulse would be recordable. Vol: it depends upon the
condition of the patient. If the BP and pulse of a patient is not
recordable, he will not be fully conscious."
24. The trial court has placed strong reliance on the testimonies of HC
Qurban Ali (PW-18), Asma (PW-13) and also on the testimony of
Ct. Krishan Pal (PW-19), while convicting the appellants, additionally
the prosecution has also placed reliance on the testimony of Smt. Mehar
(PW-7), second wife of the deceased.
25. The trial court has also reached the conclusion of guilt on the ground
that the statement made by the injured to HC Qurban Ali (PW-18) was
within the hearing range of Ct. Krishan Pal would be admissible in
evidence as per Section 32 of the Indian Evidence Act, 1872. While
relying on various judgments, the trial court has held that the dying
declaration can be made orally or in writing. There is no specific
form of dying declaration and thus there was no reason to discard the
testimony of HC Qurban Ali (PW-18) and Ct. Krishan Pal (PW-19).
There was nothing on record to show that there was enmity between
PW-18, PW-19 and all the appellants herein. Additionally, the trial
court was of the view that both Asma and Mehar had also
corroborated the testimonies of PW-18 and PW-19 as a phone call had
also been made by the injured to Asma (PW-13) informing her that
the appellants herein had shot him and the second wife of the injured
Smt. Mehar was also residing in the same house and Asma had then
informed Mehar. The trial court was also not impressed by the
arguments that HC Qurban Ali (PW-18) had not informed either the
IO or any other Superior Officer or sent a message on the wireless
when he was in the Gypsy that the injured had disclosed the names of
persons who had shot him. The trial court was also not impressed by
the fact that HC Qurban Ali (PW-18) who had brought the injured to
the hospital did not even inform the Doctor who prepared the MLC
that the injured had been shot by the appellants herein.
26. There is no quarrel with the proposition that a dying declaration may
be oral or in writing and there is no specific form of recording the
dying declaration provided the statement so made is not on account of
tutoring, it is not made under coercion or pressure. In short, while
relying on a dying declaration, the Court must satisfy itself that the
same is reliable and trustworthy.
27. In the present case, two basic issues would arise with respect to the
dying declaration. Firstly, whether such a statement was made to HC
Qurban Ali, PW-18; Ct.Krishan Pal, PW-19; and Asma, PW-13.
Secondly, was the victim in a position to make such a statement on
account of the gun shot injures? The second issue must be examined
first. The injured had suffered the following injuries as per the
medical evidence placed on record.
"(i) an entry wound of firearm bullet on right side of back of
thoraco-abdomen region,
(ii) an entry wound of firearm bullet on left side of back of
head, posterior most aspect of scalp above back of the neck,
(iii) an entry wound of firearm bullet on right side of upper
abdomen,
(iv) an exit would on left cheek cresentic in shape and
(v) contusion abrasion of size 2.5 cm x 3 cm on left upper
chest."
28. As per the MLC prepared by Dr.Anjana Kharbanda, PW-10, whose
testimony has been reproduced in para 23 above and taking into
consideration her evidence, a person who had suffered three gun short
injuries on the body, i.e. (i) an entry wound of firearm bullet on right
side of back of thoraco-abdomen region, (ii) an entry wound of
firearm bullet on left side of back of head, posterior most aspect of
scalp above back of the neck, (iii) an entry wound of firearm bullet on
right side of upper abdomen, (iv) an exit would on left cheek cresentic
in shape and (v) contusion abrasion of size 2.5 cm x 3 cm on left
upper chest, more particularly one bullet injury which passes through
the cheek of the injured, would have been in a position to use his
mobile phone, talk to his wife, Asma, and inform her as to who had
shot him. It is also virtually impossible for the injured to have
informed HC Qurban Ali, PW-18, which was also heard by
Ct. Krishan Pal. Having said that we would now examine the first
aspect of the matter i.e. whether the testimony of HC Qurban Ali,
PW-18; Ct.Krishan Pal, PW-19; and Asma, PW-13, are reliable and
trustworthy.
29. In this case, the first person to reach the spot was PW-11. He was not
connected with the present case although he was a constable in the
Delhi Police but he was a passer bye and he testified that when he had
reached in front of Batla House, a vacant plot, he had noticed a person
who was injured and was bleeding. It is PW-11 who had given the
information regarding this to the police on 100 number and he waited
at the spot till the arrival of the police and the IO of the case had met
him and made enquiry from him. Since the first phone call was made
to the police on 100 number by this witness, the presence of this
witness stands fully established at the place of the incident. He
confirmed that he had a mobile phone no. 9911545071. We may note
that as per PW-11, during cross-examination, he stated that the injured
did not tell the name but the injured had talked to him and asked him
to save him. He had left the spot only after the police reached the
spot. In all probability, if the injured had asked him to save him, the
injured would have also informed him about the names of his
assailants. Since he is an independent witness, his testimony gains
importance.
30. Another aspect, which requires consideration is, according to Head
Constable Qurban Ali (PW-18), after the injured was put in the Gypsy
and when they reached the main road, the injured informed him within
the hearing range of PW-19 the names of his assailants. Qurban Ali
had testified that he was sitting on the back side on the Gypsy on the
seat behind the seat of co-passenger on the front.
31. According to Head Constable Qurban Ali (PW-18), after the injured
was put in the Gypsy and when they reached the main road, the
injured informed him within the hearing range of PW-19 the names of
his assailants. Qurban Ali had testified that he was sitting on the back
side on the Gypsy on the seat behind the seat of co-passenger on the
front. Ordinarily, the police gypsies are not fitted with air-
conditioners and are otherwise also did not have a hard root. In effect,
the windows of the Gypsy would not have been rolled up when the
incident took place on 21.03.2009. A person who had suffered three
gun shot injuries on the body, i.e. (i) an entry wound of firearm bullet
on right side of back of thoraco-abdomen region, (ii) an entry wound
of firearm bullet on left side of back of head, posterior most aspect of
scalp above back of the neck, (iii) an entry wound of firearm bullet on
right side of upper abdomen, (iv) an exit would on left cheek cresentic
in shape and (v) contusion abrasion of size 2.5 cm x 3 cm on left
upper chest, more particularly one bullet injury which passes through
the cheek of the injured could it be possible that PW-19 (Constable
Krishan Pal) who was driving the Gypsy and according to his
testimony his attention was towards the vehicles and pedestrians on
the road in front of him as he was more eager to reach hospital as
early as possible and he had to blow the horn and the siren to dispel
the pedestrians and the vehicles in front of his vehicle and could have
heard the utterances if at all they were made by a person who was
seriously injured with gun shot injuries on the body as detailed above.
32. Another aspect which cannot be ignored in this case is a trained Head
Constable of the Delhi Police claims that the injured had informed
about the names of the persons who had shot him but claims he did
not inform his seniors, did not inform the doctor on duty, did not get
his statement recorded under Section 161 Cr.P.C. on the day of the
incident and did not inform his seniors from the Gypsy which was
fitted with a wireless. For us to place reliance on the testimony of this
witness and hold the appellants guilty on the testimony of this witness
is not possible as it would be highly unsafe.
33. We are now left with the testimony of Asma (PW-13) who claims that
she received a phone call from her husband. Neither the call details of
Asma or the deceased have been proved neither the mobile phone of
the deceased or Asma was seized, nor there is any evidence on record
to show that Asma received a phone call from her husband on the
fateful day between 6:00 p.m. to 7:00 p.m. Thus, it would be
extremely unsafe to place reliance on the testimony of Asma (PW-13)
who claims that she informed Mehar (PW-7). Moreover, having
regard to the nature of injuries, it was not possible for the injured to
have dialed the phone of the wife. In any case, Mehar has not
supported the case of the prosecution as far as the names of the
assailants are concerned.
34. We may also notice that Head Constable Qurban Ali had testified that
he was sitting with the injured on the back seat of the Gypsy and he
was held by him. It is virtually impossible that clothes of Qurban Ali
could have escaped even a single spot of blood and despite his holding
the injured person with three bullet injuries, one on the left side of
cheek and the others on the right upper chest and who according to
this witness was bleeding. If he was holding the injured, it is
impossible that his clothes would not have been smeared by blood, but
his clothes were not seized and, in fact, the Trial Court goes on to say
that is possible that he may not have got his clothes sustained with
blood, which is not possible particularly when he was held by him.
35. As per the MLC, the patient was conscious but drowsy, the pulse was
not palpable and BP not recordable. We find it difficult to believe that
a patient with such parameters would be in a position to make any
statement to HC Qurban Ali or make a phone call to his wife.
36. In the case of Md. Faizan Ahmad @ Kalu v. State of Bihar, reported
at I (2013) DLT (Crl.) 914 (SC), the Supreme Court of India has
cautioned that even if the offence is grave, the persons who are proved
to be guilty must be dealt with a firm hand but the seriousness or
gravity of the crime must not influence the Court to punish a person
against whom there is no credible evidence. It was held as under:
"..... We have no manner of doubt that the offence is grave; the
children were abducted and kept in a tunnel for over five
months and anonymous calls were made for ransom. Accused
whose involvement in such crimes is proved must be dealt with
a firm hand, but the seriousness or gravity of the crime must not
influence the Court to punish a person against whom there is no
credible evidence. The trial Court, therefore, erred in
convicting the appellant."
37. It has further been held in Md. Faizan Ahmad @ Kalu (supra) as
under:
"......... Criminal Courts recognize only legally admissible
evidence and not farfetched conjectures and surmises. The High
Court‟s observation that there was a preconceived plan to
abduct the children would not be applicable to the appellant
because there is nothing on record to establish that the
appellant met the co-accused and planned a strategy to abduct
the children and demand ransom. His case stands on a different
footing from that of the other accused. The case of the other
accused will have to be dealt with on its own merit. The High
Court was carried away by the heinous nature of the crime and,
in that, it lost sight of the basic principle underlying criminal
jurisprudence that suspicion, however grave, cannot take the
place of proof. If a Criminal Court allows its mind to be swayed
by the gravity of the offence and proceeds to hand out
punishment on that basis, in the absence of any credible
evidence, it would be doing great violence to the basic tenets of
criminal jurisprudence. We hope and trust that this is just an
aberration."
38. We also deem it appropriate to reproduce the observations made by
the Supreme Court of India in the case of Sarwan Singh Rattan
Singh v. State of Punjab, reported at AIR 1957 Supreme Court
637(1):
"..... It is no doubt a matter of regret that a foul cold-blooded
and cruel murder like the present should go unpunished. It may
be as Mr.Gopal Singh strenuously urged before us that there is
an element of truth in the prosecution story against both the
appellants. Mr.Gopal Singh contended that considered as a
whole the prosecution story may be true; but between „may be
true‟ and „must be true‟ there is inevitably a long distance to
travel and the whole of this distance must be covered by legal,
reliable and unimpeachable evidence."
39. In Ramreddy Rajesh Khanna Reddy and Another v. State of A.P.,
reported at (2006) 10 SCC 172, this Court while reiterating the settled
legal position, observed as under:
"It is now well settled that with a view to base a conviction on
circumstantial evidence, the prosecution must establish all the
pieces of incriminating circumstances by reliable and
clinching evidence and the circumstances so proved must form
such a chain of events as would permit no conclusion other
than one of guilt of the accused. The circumstances cannot be
on any other hypothesis. It is also well settled that suspicion,
however grave it may be, cannot be a substitute for a proof
and the courts shall take utmost precaution in finding an
accused guilty only on the basis of the circumstantial evidence.
At this stage, we also deem it proper to observe that in
exercise Crl. Appeal No. 1377/2011 Page 6 of 25 of power
under Article 136 of the Constitution, this Court will be
extremely loath to upset the judgment of conviction which is
confirmed in appeal. However, if it is found that the
appreciation of evidence in a case, which is entirely based on
circumstantial evidence, is vitiated by serious errors and on
that account miscarriage of justice has been occasioned, then
the Court will certainly interfere even with the concurrent
findings recorded by the trial court and the High Court Bharat
vs. State of M.P. [(2003) 3 SCC 106]. "
40. In the present case, for the reasons detailed above, we find the
testimony of HC Qurban Ali, PW-18, and Ct.Krishan Pal, PW-19, to
be unreliable and not trustworthy. We also find it virtually impossible
for the victim to have picked up a phone and called up his wife, PW-
13. Moreover, the evidence of PW-13 is unreliable as neither her
mobile phone nor the mobile phone of the victim was seized nor
examined nor the receipt of call was proved.
41. We find the evidence of an independent witness, Ct. Rahish Hasan,
PW-11, to be reliable as he was the first person, who reached the spot.
The testimony of PW-11 has remained unshaken in the cross-
examination. PW-11 was the person, who called the Police and if the
victim was in a position to talk, he would have informed PW-11 the
names of his assailants.
42. Based on the scientific evidence, we are of the considered view that
the victim was not in a position to talk, as is evident from reading of
the MLC, post-mortem report and also the testimony of the Doctor,
who had recorded in the MLC that the blood pressure was not
recordable, there was no pulse and the patient was opening his eyes
only on verbal command but was not responding.
43. In our view, the prosecution has not been able to prove its case
beyond any shadow of doubt. The disclosure statements are also not
free from doubt.
44. Accordingly, the present appeals are allowed. The judgment and the
order on sentence passed by the trial court are set aside. The
appellants be released forthwith and their bail bonds be cancelled
unless they are wanted in any other case.
45. Appeals stand disposed of.
G.S.SISTANI, J
SANGITA DHINGRA SEHGAL, J
FEBRUARY 29, 2016
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