Delhi High Court
Mohd. Gulfam vs State on 17 October, 2022
Neutral Citation No.2022/DHC/004316
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 2nd September, 2022
Decided on: 17th October, 2022
+ CRL.A. 890/2019
MOHD. GULFAM .... Appellant
Represented by: Mr. Salim Malik, Mr.Niyaj Ahmed
Faroozi, Ms. Shavana, Advs.
versus
STATE NCT OF DELHI .... Respondent
Represented by: Mr. Mukesh Kumar, APP for State.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON'BLE MR. JUSTICE MINI PUSHKARNA
MUKTA GUPTA, J.
1. By this appeal, the appellant challenges the impugned judgment dated
19th December, 2018 whereby the Learned Additional Session Judge-03
convicted the appellant for offences punishable under Section 364/302/201
Indian Penal Code (IPC) and the order on sentence dated 30th January, 2019
directing the appellant to undergo life imprisonment along with a fine of
₹1,00,000/- under Section 302 IPC, in default to undergo simple
imprisonment for a period of three years and further sentence to undergo
rigorous imprisonment for a period of five years along with a fine of
₹10,000/- under Section 201 IPC, in default to undergo simple imprisonment
for a period of one year and further sentenced to undergo rigorous
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imprisonment for a period of ten years along with a fine of ₹20,000/- under
Section 364 IPC, in default to undergo simple imprisonment for a period of
three years.
2. Appellant Mohd. Gulfam assails the impugned judgment on the
grounds that the learned Trial Court referred the part of disclosure statement
of appellant in para 53 & 54 of the impugned judgment, which is not
admissible in evidence. Para 53 of the impugned judgment is also contrary to
law. The alleged incident had taken place on 26th June, 2011, the dead body
was found on 27th June, 2011 however the FIR was lodged on 29th June,
2011. Since 1st January, 2011 to 26th June, 2011 only two calls were made on
22nd June, 2011 and 26th June, 2011 hence it cannot be said that there was
proximity between the deceased and the appellant. Further, SI Dinesh (PW-
14) should not have been allowed to depose in respect of facts which were
stated before him by the witnesses under Section 161 Cr.P.C. during the
course of investigation. Learned counsel for the appellant further contends
that nothing adverse was found in the FSL report. The alleged garments were
not taken into possession. The neighbors were not examined as witnesses
and no recovery of weapon of offence took place. The appellant has no
history of prior criminal cases and he has been in the judicial custody for
more than eight years now.
3. On the other hand, Ld. APP for the State submits that the accused had
a clear motive behind committing the murder of the deceased, Azeema. The
deceased was in relationship with the appellant Mohd. Gulfam, who was
residing in the same vicinity and was pressurising and threatening him to get
married to her. On the day when the deceased went missing, she had gone
with the appellant on his motorcycle. The appellant led the Police Team to
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the place of murder and also the place of scuffle between him and the
deceased. Appellant was arrested only after the analysis of the Call Detail
Records of his mobile phone which became available to the police on 21st
July, 2011. Ct. Shiv Kumar (PW-7), Abdul Aziz (PW-5), SI Dinesh Kumar
(PW-14) and Insp. Vivekanand (PW-19) have deposed about the arrest of the
appellant. Abdul Aziz, father of the deceased (PW-5) identified the deceased
daughter through the photograph during investigation. Sabista Khatoon (PW-
2) though declared partly hostile, deposed that she facilitated telephonic
conversation between the deceased and accused. The pant and T-shirt which
the appellant was wearing at the time of the incident were recovered from the
cooler inside his house at the instance of the appellant. Appellant went
missing for several days after the incident. Learned APP for the State further
contends that the recovery of the accused's purse from the spot of scuffle
clearly establishes his presence at the spot of scuffle which was around 100-
150 metres from where the dead body was recovered. Reliance is placed on
the case cited as AIR 1991 SC 1853 Khujji @ Surendra Tewari Vs. State of
MP.
4. Case of the prosecution in nutshell is that in the evening of 26th June,
2011, Alma/ Complainant's (PW-3) daughter namely Azeema left the house
at about 6-6:30 PM to go to the house of her friend with a plastic box
containing Kunda (Mithe Puyye) and failed to return back home.
Complainant visited the house of one Chanchal, friend of her deceased
daughter, who told her that the deceased had gone with appellant Mohd.
Gulfam and one Shahjad. Thereafter, the complainant went to the house of
the appellant where she met his sister who showed her ignorance at the
course of events. On the same night, parents of accused Mohd. Gulfam came
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to the house of complainant and threatened her about kidnapping her elder
daughter and also offered her to take ₹50,000/- for not reporting or
disclosing the matter to police or any other authority. The complainant
further proved the photograph of her deceased daughter (Ex. PW3/A). Thus,
FIR No. 191/2011 was lodged on 29th June, 2011 on the complaint of mother
of Azeema (deceased) about her being missing since 26th June, 2011 at 6:30
PM, though inadvertently the date of missing was typed as 25th June, 2011 in
the said FIR.
5. Upon receipt of information from Duty officer at PS Khajuri Khas,
first IO S.I. Dinesh Kumar (PW-14) searched for the missing girl but failed
to trace her. On 01st July, 2011, father of the missing girl namely Abdul Aziz
(PW-5) informed the investigating officer that his neighbor namely Mohd.
Gulfam was also missing for several days and that he had come back about
one or two days back. On the said suspicion, the investigating officer visited
the house of Mohd. Gulfam and interrogated him. The appellant stated that
he had gone to attend the marriage of his friend's cousin in Moradabad on
27th June, 2011 and had returned back on 29th June, 2011. After analyzing
the call detail record of Mohd. Gulfam, the investigating officer noticed that
Mohd. Gulfam's phone was switched off from 26th June, 2011 from 19:12:59
hours till 19:46:59 on 05th July, 2011. During interrogation, appellant stated
that his sim card fell down and for this reason his mobile phone was
switched off. On analysis of the call detail record it was also found that one
Sabista Khatoon (PW-2) had received several calls from the number of the
appellant. Sabista Khatoon informed that the deceased and appellant used to
talk to each other and the deceased used to make a missed call from her
phone to the appellant and thereupon the appellant used to call deceased on
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her phone. She further informed that on 26th June, 2011, at about 4-4:30 PM,
deceased Azeema had a conversation with the accused and at about 6-6:30
PM, deceased told Sabista that Mohd. Gulfam was taking her to introduce to
her "khala" and had agreed to marry her. She further stated that she noticed
appellant standing at the corner on his motorcycle and deceased
accompanied him on the same. On the same day, appellant Mohd. Gulfam
was arrested. Thereafter, investigation was assigned to Insp. Vivekanand
(PW-19) on 21st July, 2011.
6. According to Inspector Vivekanand, Gulfam disclosed that he used to
talk to the deceased, Azeema using a Nokia Mobile Phone. He had used
Bajaj Discover motorcycle to take the deceased near Simbhawali where the
offence took place. Both the said articles were thereafter seized. In pursuance
of his disclosure statement, appellant led the IO along with SI Dinesh (PW-
14), Ct. Shiv Kumar (PW-7) and father of the deceased Abdul Aziz (PW-5)
to his house situated at 551, D Block, Gali no.8, Kacchi Khajuri, Delhi.
Accused further led them to the 2nd floor and got recovered one gray-
blackish color pant and one t-shirt having green, black & blue strips. He
stated that he had worn these clothes at the time of incident and the same
were washed by him. In pursuance of information disclosed by appellant
Gulfam, verification was done at Simbhawali where SI Promod Choudhary
(PW-16) of PS Simbhawali informed that FIR No. 218/11 was registered at
PS Simbhawali on 27th June, 2011 as a dead body of a girl and some articles
were recovered from a sugarcane field of Hazi Gufran in Village Vait.
Thereafter, Gulfam led them to 50-60 meters on Vait Furri Road and a
pointing out memo was prepared in the sugarcane field of Hazi Gufran. He
further led them to another place in the field i.e., 100-150 meters away from
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the above said place and got recovered his dark brown purse which fell down
during the quarrel with the deceased. On showing the recovered articles i.e.,
clothes of girl (kurta, pajami and dupatta), one pair of slippers, one nose pin,
four ear pins, one plastic box and one black thread and photograph to Abdul
Aziz (PW- 5), he stated that the same belonged to his daughter Azeema
(deceased). Inspector Vivekanand (PW-19) further stated that despite several
efforts, the weapon of offence could not be recovered.
7. The postmortem of the deceased was conducted on 28th June, 2011 at
about 3:30 PM at District Hospital, Mathura, U.P., by Dr.Subhash Chand
Gupta (PW-9), Chief Medical Superintendent who exhibited the report as
Ex.PW-9/A. The following ante mortem external injuries were found on the
deceased:
i.
Stab wound present over the neck anteriorly, laterally
posteriorly with a gap 3cm. Stab wound size measurement
25cm x 3cm. All deeper structures were cut, wound
reached up to the bone. The stab wound was 6cm below
the right ear, 7cm below the chin and 5.5cm below the left
ear.
ii. Horizontal stab wound was present over the abdomen,
which was 3cm above umbilicus up to right flank. Size of
wound was 18cm x 7 cm deeper to peritoneum. All
abdominal viscera came out.
8. It was opined by Dr.Subhash Chand Gupta (PW-9) that the cause of
death was due to shock and hemorrhage as a result of antemortem injury.
Dead body was two days old. All injuries were caused due to a fine and a
sharp object. The post mortem report further noted that Bowel loops and
intestinal loops were injured. Peritoneal Cavity was having faecal contents
with blood. Buckle cavity was having 15/15 teeth. Stomach was injured and
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was having 200ml semisolid. Both small and large intestine were injured and
pale. Liver was congested. Right kidney was injured. Uterus was empty and
non-gravid.
9. During the course of trial, 19 prosecution witnesses and on the other
hand one defence witness, Sh. Mehraj (DW-1) were examined. Sabista
Khatoon (PW-2), Abdul Aziz, father of the deceased (PW-5), Ct. Shiv
Kumar (PW-7), SI Dinesh Kumar, first IO of the case (PW-14) and Inspector
Vivekanand (PW-19) are the material witnesses of the prosecution.
Statement of accused was recorded under section 313 CrPC. Accused
admitted in his statement that deceased used to make missed calls to him and
that he and Sabista used to live in the same gali. He also admitted that he led
the way to recoveries but had not committed the murder of the deceased,
Azeema. He stated that his purse was not recovered from the spot of alleged
scuffle, but the police had taken the purse and his clothes from his mother.
He further stated that the deceased did not meet him on the day of alleged
incident. In his statement appellant further accepted as correct that the
Police reached the place of incident at the instance of appellant when Police
staff of Simbhawali confirmed that they found a dead body of a female there.
He also admitted that the father of the deceased identified the plastic dabba
carried by the deceased and the tabeez worn by her. He also admitted to the
recovery of mobile phone bearing No. 9650511106 from his possession
during his personal search.
10. In his statement under Section 313 Cr.P.C., the appellant took the plea
that on the fateful day he had gone to the marriage at Moradabad, however
he led no evidence in this regard. This plea of alibi taken by the appellant
was not proved by him. In response to the question that his phone was
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switched off from 26th June, 2011 at 19:12:55 seconds to 5th July, 2011 at
19:46:59 seconds appellant admitted the said fact and stated that he had
changed the SIM of his mobile phone and inserted a new SIM which he has
purchased a month before, when he went to attend the marriage in
Moradabad and put back the old SIM from which he used to talk to the
deceased. Though he admitted that he used to talk to the deceased in the
manner that a missed call used to be received on his phone, however he
denied any love affair between the two of them. He also admitted that the
deceased used to live in the same gali as his.
11. Deposition of Alma, the complainant and mother of the deceased was
recorded as PW3 who reiterated her version stated in the Ruqqa. Father of
the deceased, Abdul Aziz (PW-5) corroborated the statement of Alma/
Complainant's (PW-3). He also stated that the appellant got recovered his
clothes which were worn by him at the time of the incident from his house
which were lying inside the water cooler. The witness further stated that
police interrogated the accused in his presence after about 20-22 days of the
alleged incident and arrested him thereafter.
12. Ct. Shiv Kumar (PW-7) is a witness to the arrest and pointing out
memo prepared at the instance of the accused where the dead body had been
recovered. He is also a witness to recovery of wallet of the accused at the
spot. He further deposed about the site plans related to two places i.e., place
of scuffle and place of murder at little distance. He identified before the
court, the clothes of victim, her tabeez, nose pin, bangles, chappals and
plastic dabba. He further identified the clothes of accused allegedly worn by
him at the time of alleged offence which were washed later and were
recovered at the instance of the appellant hidden in a cooler inside the house.
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In his cross examination, he denied having knowing the accused previously.
13. Case of the prosecution is based on circumstantial evidence. One of
the crucial witness of the prosecution is Sabista Khatoon (PW-2) who though
has not fully supported the case of the prosecution, however, deposed that
Gulfam used to reside in her street and used to visit deceased Azeema who
used to reside on the first floor of their house as tenant. She stated that
Azeema used to make missed call from her mobile phone to her Saheli, who
used to return the call. Sabista later came to know that the missed calls were
made to Gulfam. Though she did not remember the date, however on the
day of incident Azeema came to her and demanded mobile phone of her
husband and stated that she had to make missed call to her friend whereafter
she left and at that time she was carrying one lunch box of plastic and while
going at about 6 - 6.30 PM she stated that "abhi aa Rahi hun, apni Saheli ko
kunde (mithe puyee) dekar". She further stated that around 10 - 10.30 PM
sister of Azeema came to her when she informed her that Azeema had gone
to her friend by making the missed call. On the asking of the sister she
showed her the mobile phone number on which the missed call was made,
which the sister noted. She stated that her mobile number was 9899046131
and that the SIM of her mobile number phone was in the name of Abdul Hai
who is the cousin of her husband Mahfooj Alam. She identified her mobile
phone of Videocon make dark grey colour which was seized by the IO.
14. Abdul Hai (PW6) who was owner of SIM card 9899046131 deposed
that this number was provided by him to his brother Mahtooz Alam and his
wife Sabista Khatoon who were both using the same. From the call detail
records (Ex.PW11/B) of the Airtel SIM No. 9650511106 used by the
appellant which was recovered from his personal search and in his name, the
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following calls were made and received in June 2011 to and from mobile
number 9899046131 used by Sabista Khatoon:-
Date From To Time Duration Call Type
(S)
01.06.2011 9650511106 9899048131 20:52:41 45 OUT
18.06.2011 9650511106 9899048131 20:35:54 350 OUT
22.06.2011 9650511106 9899048131 21:21:16 63 OUT
22.06.2011 9650511106 9899048131 21:24:19 648 OUT
22.06.2011 9899048131 9650511106 21:51:06 13 IN
26.06.2011 9899048131 9650511106 16:38:27 53 IN
15. The CDR analysis of the two mobile phones would thus show that on
26th June, 2011 at about 4:38 PM a call was made from the mobile phone
with Sabista to that of appellant's mobile number thereby corroborating the
version of Sabista that the deceased and appellant used to call each other.
Contention of learned counsel for the appellant that there being merely two
calls would not show the relationship between the appellant and the deceased
deserves to be rejected in view of the CDR analysis of the appellant and
Sabista Khatoon (PW-2).
16. Further, after Azeema went missing the appellant was also not
available at his residence for 4/5 days from 26th June, 2011. Though the
appellant in his statement under Section 313 Cr.P.C. took the plea that
during this period he went to Moradabad to attend a marriage, however no
defence evidence was led nor was new SIM number which was purportedly
used during this period provided by the appellant to prove that he was at
Moradabad. Hence the plea of alibi taken by the appellant could not be
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substantiated. This conduct of the appellant of absconsion is an additional
link in the chain of circumstances.
17. Further, after the appellant was arrested pursuant to the disclosure
statement, he led the Police party to the place in the sugarcane fields near
village Vait, Simbhawali, Uttar Pradesh. It is on the pointing out of the
place of incident further information was received and on cross-checking it
was revealed that a dead body of one lady was recovered on 27th June, 2011
in which regard SI Yashbir Singh (PW-18) and Insp. Pramod Chaudhary
(PW-16) deposed. When the photograph of the deceased, the tiffin box,
sleepers and tabeez which were lying near the body were shown to the father
of the deceased, he identified the same to be that of the deceased. This
disclosure by the appellant about the place of incident which further led to
the information regarding recovery of the dead body from the said field on
27th June, 2011 is admissible under Section 27 of the Indian Evidence Act.
18. It is trite law that for application under Section 27 of the Indian
Evidence Act, recovery of a physical object is not necessary. The said
provision embodies the doctrine of confirmation by subsequent event. Thus,
an information received from the accused which leads to a fact discovered as
a result of investigation pursuant thereto, which fact was not in the
knowledge of the police officer prior thereto, would be admissible in
evidence against the said accused. Dealing with this issue, Hon'ble Supreme
Court in the decision reported as (2005) 11 SCC 600 State (NCT of Delhi)
Vs. Navjot Sandhu held as under:-
"121. The first requisite condition for utilising Section 27 in
support of the prosecution case is that the investigating police
officer should depose that he discovered a fact in consequence of
the information received from an accused person in police
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custody. Thus, there must be a discovery of fact not within the
knowledge of police officer as a consequence of information
received. Of course, it is axiomatic that the information or
disclosure should be free from any element of compulsion. The
next component of Section 27 relates to the nature and extent of
information that can be proved. It is only so much of the
information as relates distinctly to the fact thereby
discovered that can be proved and nothing more. It is explicitly
clarified in the section that there is no taboo against receiving
such information in evidence merely because it amounts to a
confession. At the same time, the last clause makes it clear that it
is not the confessional part that is admissible but it is only such
information or part of it, which relates distinctly to the fact
discovered by means of the information furnished. Thus, the
information conveyed in the statement to the police ought to be
dissected if necessary so as to admit only the information of the
nature mentioned in the section. The rationale behind this
provision is that, if a fact is actually discovered in consequence
of the information supplied, it affords some guarantee that the
information is true and can therefore be safely allowed to be
admitted in evidence as an incriminating factor against the
accused. As pointed out by the Privy Council in Kottaya
case [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] : (AIR p. 70,
para 10)
"clearly the extent of the information admissible must
depend on the exact nature of the fact discovered"
and the information must distinctly relate to that fact.
Elucidating the scope of this section, the Privy Council speaking
through Sir John Beaumont said : (AIR p. 70, para 10)
"Normally the section is brought into operation when a
person in police custody produces from some place of
concealment some object, such as a dead body, a weapon,
or ornaments, said to be connected with the crime of which
the informant is accused."
XXX XXX XXX
127. The crux of the ratio in Kottaya case [AIR 1947 PC 67 : 48
Cri LJ 533 : 74 IA 65] was explained by this Court in State of
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Maharashtra v. Damu [(2000) 6 SCC 269 : 2000 SCC (Cri)
1088] . Thomas J. observed that : (SCC p. 283, para 35)
"The decision of the Privy Council
in PulukuriKottaya v. Emperor [AIR 1947 PC 67 : 48 Cri
LJ 533 : 74 IA 65] is the most quoted authority for
supporting the interpretation that the „fact discovered‟
envisaged in the section embraces the place from which
the object was produced, the knowledge of the accused as
to it, but the information given must relate distinctly to that
effect."
In Mohd. Inayatullah v. State of Maharashtra [(1976) 1 SCC 828
: 1976 SCC (Cri) 199] , Sarkaria, J. while clarifying that the
expression "fact discovered" in Section 27 is not restricted to a
physical or material fact which can be perceived by the senses,
and that it does include a mental fact, explained the meaning by
giving the gist of what was laid down in PulukuriKottaya
case [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] . The learned
Judge, speaking for the Bench observed thus : (SCC p. 832, para
13)
"Now it is fairly settled that the expression „fact
discovered‟ includes not only the physical object produced,
but also the place from which it is produced and the
knowledge of the accused as to this
(see PulukuriKottaya v. Emperor [AIR 1947 PC 67 : 48
Cri LJ 533 : 74 IA 65] ; UdaiBhan v. State of U.P. [1962
Supp (2) SCR 830 : AIR 1962 SC 1116 : (1962) 2 Cri LJ
251] )."
XXX XXX XXX
142. There is one more point which we would like to discuss i.e.
whether pointing out a material object by the accused furnishing
the information is a necessary concomitant of Section 27. We
think that the answer should be in the negative. Though in most
of the cases the person who makes the disclosure himself leads
the police officer to the place where an object is concealed and
points out the same to him, however, it is not essential that there
should be such pointing out in order to make the information
admissible under Section 27. It could very well be that on the
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basis of information furnished by the accused, the investigating
officer may go to the spot in the company of other witnesses and
recover the material object. By doing so, the investigating officer
will be discovering a fact viz. the concealment of an
incriminating article and the knowledge of the accused
furnishing the information about it. In other words, where the
information furnished by the person in custody is verified by the
police officer by going to the spot mentioned by the informant
and finds it to be correct, that amounts to discovery of fact within
the meaning of Section 27. Of course, it is subject to the rider
that the information so furnished was the immediate and
proximate cause of discovery. If the police officer chooses not to
take the informant accused to the spot, it will have no bearing on
the point of admissibility under Section 27, though it may be one
of the aspects that goes into evaluation of that particular piece of
evidence.
XXX XXX XXX
144. In Bodhraj v. State of J&K [(2002) 8 SCC 45 : 2003 SCC
(Cri) 201] this Court after referring to the decisions on the
subject observed thus : (SCC p. 58, para 18)
"The words „so much of such information‟ as relates
distinctly to the fact thereby discovered, are very important
and the whole force of the section concentrates on them.
Clearly the extent of the information admissible must
depend on the exact nature of the fact discovered to which
such information is required to relate."
19. Further, the appellant got recovered his purse of dark brown colour at
a distance of 100 - 150 meters from the place of pointing out where the dead
body was found and on checking the purse one driving license in the name of
the appellant, one I-Card of school in the name of appellant, one cash memo
of Bajaj motorcycle service station and ₹250 were found. On further
verification it was found that the appellant got his motorcycle serviced from
the said service station.
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20. Considering the circumstantial evidence of the appellant talking to the
deceased whereafter the deceased went to meet the appellant and on the next
day on 27th June, 2011 her dead body was found at Simbhawali which place
of incident was pointed out resulting in the discovery of the fact that on 27 th
June, 2011 dead body of Azeema was found there, coupled with the recovery
of purse of the appellant near the place of incident, the opinion of the post-
mortem doctor that on 28th June 2011 dead body was two days old, the
explanation rendered by the appellant and his conduct of absconsion
immediately after the incident, this Court is of the considered opinion that
the prosecution has proved its case beyond reasonable doubt. Hence, this
Court finds no error in the impugned judgment of conviction and order on
sentence.
21. Appeal is accordingly dismissed.
22. Copy of the judgment be uploaded on the website of this Court and be
also conveyed to the Superintendent Jail for intimation of the appellant.
(MUKTA GUPTA)
JUDGE
(MINI PUSHKARNA)
JUDGE
OCTOBER 17, 2022
ga/akb
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