Crl.A.Nos.327/07, 329/07 & 374/07 Page 1 of 58 * IN THE HIGH COURT OF DELHI % Judgment reserved on : 28.04.2009 Judgment delivered on: 29.05.2009 + CRL. APPEAL NO.327/2007 AKBAR & ANR. …Appellants Through : Mr. K.K.Sud, Sr. Adv. with Mr. Alok Rai and Mr. Atul Sahi, Advocates versus STATE …Respondent Through : Ms. Richa Kapoor, Advocate CRL. APPEAL NO.329/2007 ABDUL HAMEED @ MILLU …Appellant Through : Mr. K.K.Sud, Sr. Adv. with Mr. Alok Rai and Mr. Atul Sahi, Advocates versus STATE …Respondent Through : Ms. Richa Kapoor, Advocate CRL. APPEAL NO.374/2007 AFSAR @ UMAR DARAZ …Appellant Through : Mr. F.Haq, Advocate versus STATE …Respondent Through : Ms. Richa Kapoor, Advocate Crl.A.Nos.327/07, 329/07 & 374/07 Page 2 of 58 CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes : PRADEEP NANDRAJOG, J. 1. Vide impugned judgment and order dated 30.04.2007, the appellants, Abdul Hamid @ Millu, Akbar, Afsar @ Umar Daraj and Arasleen @ Mursaleen @ Sanno have been convicted for the offence of having murdered Mohd. Kazim @ Babbu Pehelwan (hereinafter referred to as the “Deceased”), for which offence they have been sentenced to undergo imprisonment for life and pay a fine in sum of Rs.5,000/- each; in default to undergo rigorous imprisonment for one year. 2. Case of the prosecution was that in the night of 03.02.2001 the appellants went to the house of the deceased and that a dispute arose between appellant Arasleen and the deceased over a sum of money. Thereafter all the appellants fired shots at the deceased from their respective pistols and fled from the place of the incident after causing the death of the deceased. The wife and sons of the deceased namely, Crl.A.Nos.327/07, 329/07 & 374/07 Page 3 of 58 Haseen Bano PW-1, Safdar PW-2 and Akbar PW-3, had witnessed the incident. 3. Needless to state the case of the prosecution hinged upon the veracity and credibility of the testimony of Haseen Bano PW-1, Safdar PW-2 and Akbar PW-3. 4. Criminal law was set into motion when at around 11.20 P.M. on 03.02.01, DD Entry No.28A, Ex.PW-6/A, was recorded by HC Umesh Singh PW-6, to the effect that a wireless information has been received informing that two persons named Akbar and Afsar have shot a person near a transformer situated near Brahmpur Pulia. 5. On receiving a copy of the afore-noted DD Entry, SI Jagbir Singh PW-12, accompanied with Const. Shokeender PW-5 and Const. Billu Singh PW-7, went to the electric transformer situated near Brahmpur Pulia and on learning that an incident of murder had taken place at a nearby slum-dwelling bearing Municipal No. B-16/K-3332, K-Block, Ganda Nala, Seelam Pur proceeded to the said dwelling where they learnt that the deceased has been removed to GTB hospital. 6. Leaving Const.Shokeender PW-5, at the place of occurrence, SI Jagbir Singh PW-12 and Const.Billu Singh PW-7, proceeded to GTB hospital where they were informed that the deceased has been declared brought dead as noted in the MLC Crl.A.Nos.327/07, 329/07 & 374/07 Page 4 of 58 Ex.PW-4/A of the deceased. We note that on the MLC Ex.PW- 4/A of the deceased, following was recorded:- “Name and address of relative or friend brought by: wife ……. Alleged H/o gunshot Patient brought to hospital at 11.30 P.M.” 7. After obtaining the MLC Ex.PW-4/A of the deceased, SI Jagbir Singh and Const. Billu Singh returned to the place of occurrence where they met Haseena Bano PW-1, the wife of the deceased, who claimed to have witnessed the incident. SI Jagbir Singh recorded the statement Ex.PW-1/A of Haseen Bano and made an endorsement Ex.PW-12/A thereon, and at around 1.30 A.M. forwarded the same through Const.Billu Singh PW-7, for registration of an FIR. Const. Billu Singh took Ex.PW-12/A to the police station and handed over the same to HC Ram Singh PW-8, who recorded the FIR No.50/2001, Ex.PW-8/A, at 1.40 A.M. on 04.02.01. HC Ram Singh contemporaneously prepared DD Entry No.30A Ex.PW-6/DA, recording the registration of the FIR Ex.PW-8/A. 8. In her statement Ex.PW-1/A, Haseen Bano stated that she resides in a slum-dwelling bearing Municipal No.B-16/K-3332, K-Block, Ganda Nala, Seelam Pur with her family. Her husband had a factory, where bangles were manufactured, but at Crl.A.Nos.327/07, 329/07 & 374/07 Page 5 of 58 present is running a dairy on account of the said factory being sealed. Tonight, at around 10.30 P.M. she along with her husband and children was present in her house when Sanno Pehelwan along with his nephews Akbar and Afsar s/o Allah Pehelwan and one Abdul @ Millu who was their friend had come there. That two of her children; namely, Safdar and Akbar were awake at the time of the arrival of said persons in their house. The aforesaid persons who reside in New Seelampur used to keep meeting her husband and that she is well acquainted with them as they are her distant relatives. On the arrival of the said persons, she got up from takhat (cot) and was standing when Sanno asked her husband to return the money borrowed by him on which her husband replied that he did not owe any money to him. Thereupon a quarrel ensued between her husband and Sanno and suddenly Sanno took out a pistol. On seeing this, Akbar, Safdar and Millu also took out pistols hidden in their clothes. On seeing pistol in their hands, she got scared; fell on the feet of Sanno and pleaded with him to forgive the deceased, but all the four aforesaid persons fired shots at her husband. The bullets fired by them hit the chest, left abdomen and the ribs of the deceased. When she and her two children Akbar and Safdar shouted for help the said four persons ran away. She sent her son Akbar to call the police and removed her husband who was profusely bleeding to GTB Crl.A.Nos.327/07, 329/07 & 374/07 Page 6 of 58 hospital in a TSR with the help of her son Safdar where he was declared as brought dead. Sanno Pehelwan, Akbar, Afsar and Millo had acted in concert with each other and murdered her husband. She and her two sons namely, Safdar and Akbar, have witnessed the incident in question. 9. At the spot SI Jagveer Singh PW-12, prepared the rough site plan, Ex.PW-12/B of the place of the offence; recording therein, at point „A‟ the spot where the takhat (cot) on which the deceased was murdered was lying. On thorough search of the place of occurrence, two cartridge cases of .12 bore and .315 bore respectively and one bullet of .315 bore were found which were seized vide memo Ex.PW-2/A. SI Jagveer Singh lifted blood found at the place of occurrence which was seized vide memo Ex.PW-1/C. The blanket stained with blood found at the place of occurrence was seized vide memo Ex.PW-1/B. Const.Padam (photographer) PW-9, reached the place of occurrence on being summoned. 4 photographs, Ex.PW-9/A to Ex.PW-9/D; negatives whereof are ExPW-9/E to Ex.PW-9/H were taken. 10. The statements of the sons of the deceased namely Safdar PW-2 and Akbar PW-3, who also claimed to have witnessed the incident were recorded under Section 161 Cr.P.C. wherein they also indicted the appellants as the assailants of the deceased. Crl.A.Nos.327/07, 329/07 & 374/07 Page 7 of 58 11. Since the deceased was brought dead at the hospital, his body was sent to the mortuary of GTB Hospital, where Dr.K.K.Banerjee PW-18, conducted the post-mortem at about 11.05 A.M. on 04.02.2001 and gave his report Ex.PW18/A, which records the following external ante-mortem injuries:- “Antemortem Injuries (i) Firearm Entry wound 3 cm x 2 cm x cavity deep with irregular margins and blackening around the wound obliquely placed on left side of upper part of chest 4.5 cm medial to above at straight line drawn medially from left nipple and 4.5 cm away from mid- line directed inwards and medially from left to side of chest cavity. On exploring the wound it had caused a wide fracture of the 1st rib in the left parasternal area 3.5 x 3 cm, a big laceration of the left anterosuperior surface of the heart, aortic arch and upper lobe of left lung. (ii) Firearm Entry wound 1 cm x 0.8 cm, oval shaped surrounded by tattooing over an area of 9 cm x 9.2 cm on left side of abdomen 5 cm away from mid- line, 15 cm above the middle of left inguinal line entering the abdominal cavity directed from left to right obliquely from above downwards. (iii) Firearm Exit wound 1 cm x 1.2 cm on right posterior axilliary line 10 cm above right iliac crest irregular margins. On exploring the wound it was found connecting injury no.2 and caused perforation of the ileum.” 12. He opined that the cause of the death of the deceased was shock as a result of ante-mortem injuries to the internal organs produced by the projectile of a firearm from a closed range. That the injuries nos. (ii) and (iii) were caused by two Crl.A.Nos.327/07, 329/07 & 374/07 Page 8 of 58 different weapons and were sufficient to cause death in the ordinary course of nature. 13. After the post-mortem, the doctor handed over the clothes and blood sample of the deceased on a gauze, a blanket found wrapped on the body of the deceased, three wads and 90 pellets recovered from the body of the deceased to HC Om Pal Singh PW-11, who in turn handed over the same to HC Bhoop Singh PW-10, as recorded in the memo Ex.PW- 10/A. 14. Since the three eye-witnesses; namely, Haseen Bano PW- 1, Safdar PW-2 and Akbar PW-3, had indicted the appellants of having murdered the deceased, the police set out to apprehend them. Appellants Abdul Hamid and Akbar were apprehended by Inspector Rajender Gautam PW-18, SI Jagveer Singh PW-12 and Const.Billu Singh PW-7 on 08.02.01 from a flyover at ISBT. Thereafter appellants Afsar and Arsaleen were apprehended on 09.02.01 and 14.02.01 respectively. 15. The appellants were interrogated and their confessional statements were recorded. We need not note the contents of confessional statements inasmuch as the same are completely inadmissible in evidence as they admit of guilt. We note that no recovery were effected nor was a fact discovered by the police pursuant to the said statements made by the appellants. Crl.A.Nos.327/07, 329/07 & 374/07 Page 9 of 58 16. On 20.04.01 SI Mahesh Kumar, a draftsman, was taken to the place of occurrence by Inspector Rajender Gautam PW-19, where at the instance of Safdar he prepared the site plan to scale Ex.PW-13/A; recording therein, points „A‟ to „F‟, the spots where the takhat on which the deceased was murdered was lying, the two shells and bullets were found, the spots wherefrom Safdar and Haseena witnessed the incident and blood was lying, respectively. 17. The seized materials; viz. the blood sample and clothes of the deceased, the blanket seized from the place of occurrence and the blanket found wrapped on the body of the deceased at the time of post-mortem were sent to a serologist for a serological test. Vide FSL reports Ex.PW-19/D and Ex.PW- 19/E it was opined that the blood group of the deceased was „A‟; that the blood lifted from the place of occurrence was human blood of group „A‟; that human blood of group „A‟ was found on the clothes of the deceased and the afore-noted two blankets. 18. The two cartridge cases and one bullet found at the place of occurrence, three wads and 90 pellets recovered from the body of the deceased and the clothes of the deceased were sent to a ballistic expert for his opinion. Vide report Ex.PW- 19/C, the ballistic expert opined that the said two cartridges cases are fired empty cartridge cases; that the bullet found at Crl.A.Nos.327/07, 329/07 & 374/07 Page 10 of 58 the place of occurrence corresponds to the bullet of .315 cartridge; that the wads recovered from the body of the deceased are air cushion wad, under shot wad and over powder wad of 12 bore cartridge; that the pellets, 88 in number, correspond to shots of a 12 bore cartridge; that four holes were found present on the shirt of the deceased, three in front and one in back and that the three out of the said four holes viz, two in front and one in back , were caused by the bullets. 19. Needless to state, the appellants were sent for trial. Charges were framed against them for having committing the offence punishable under Sections 302/34 IPC. 20. At the trial, HC Umesh Singh PW-6, deposed that DD Entry No.28A, Ex.PW-6/A, was recorded by him. HC Ram Singh PW-8, deposed that the FIR Ex.PW-8/A and DD Entry No.30A Ex.PW-6/DA were recorded by him. Const.Om Pal Singh PW-11, deposed having handed over the clothes and blood sample of the deceased, the blanket found wrapped on the body of the deceased and the wads and pellets recovered from the body of the deceased to HC Bhoop Singh PW-10, vide memo Ex.PW- 10/A. SI Mahesh Kumar PW-13, deposed that the site plan to scale Ex.PW-13/A was prepared by him. Dr.K.K.Banerjee PW- 18, deposed that he conducted the post-mortem of the deceased and the post-mortem report Ex.PW-18/A was Crl.A.Nos.327/07, 329/07 & 374/07 Page 11 of 58 prepared by him. Const.Padam PW-9, deposed that the photographs, Ex.PW-9/A to Ex.PW-9/D; negatives whereof are ExPW-9/E to Ex.PW-9/H were taken and developed by him. Mohd.Hashim PW-15 and Abdul Kalam PW-16, the brothers of the deceased, deposed that they had identified the body of the deceased. 21. Ignoring the testimony of few formal police witnesses who deposed to the receipt of various articles in the malkhana and further movement thereof to FSL, we note the testimonies of such witnesses, in respect whereof, submissions were made during the arguments of the appeals on the issue, whether Haseen Bano PW-1, Safdar PW-2 and Akbar PW-3, were at all eye-witnesses. 22. Haseena Bano PW-1, the wife of the deceased, deposed on the lines of her statement Ex.PW-1/A. 23. Safdar PW-2, the son of the deceased, deposed that on 03.02.01 the appellants who were quite familiar to him had come to his house and that he, his parents and his younger brother were awake at that time. That appellant Sanno asked his father to return the money borrowed by him to which the deceased replied that he did not owe any money to him whereupon an altercation took place between them. Suddenly the appellant Sanno took out a pistol hidden in his clothes. On seeing this, Akbar, Safdar and Millu also took out pistols Crl.A.Nos.327/07, 329/07 & 374/07 Page 12 of 58 hidden in their clothes. On seeing pistol in their hands, his mother got scared; fell on the feet of Sanno and pleaded with him to forgive the deceased. Thereafter appellant Afsar followed by appellant Akbar fired shots at the deceased whereupon he, his mother and brother surrounded the deceased. Thereafter appellants Sanno and Millu fired shots at the deceased and then all the appellants fled from their house after firing shots in the air. He and his mother removed the deceased to GTB Hospital in a tempo where the doctor declared him as brought dead. On their return from the hospital they found that two police officials were present at their residence. Two cartridge cases and one bullet was recovered by the police from their house. 24. Mohd. Akbar PW-3, the son of the deceased, deposed that on 03.02.01 at around 10.30 P.M. the appellants had come to his house and that he, his parents and siblings were present therein at that time. Appellant Sanno asked his father to return the money borrowed by him to which the deceased replied that he did not owe any money to him, whereupon an altercation took place between them. Suddenly the appellant Sanno took a pistol hidden in his clothes. On seeing this, Akbar, Safdar and Millu also took out pistol hidden in their clothes. On seeing pistols in their hands, his mother got scared; fell on the feet of Sanno and pleaded with him to Crl.A.Nos.327/07, 329/07 & 374/07 Page 13 of 58 forgive the deceased. Thereafter appellant Afsar fired a shot at the deceased which hit him on the chest and he fell on the ground. Thereafter appellant Akbar fired a shot at the deceased which hit him on the back side of his stomach. Thereafter appellants Sanno and Millu fired shots at the deceased and then the appellants fled from their house. His mother and brother Akbar removed the deceased to the hospital in a TSR. Two cartridge cases and one bullet was recovered by the police from their house. 25. In their examination under Section 313 Cr.P.C., the appellants pleaded innocence and false implication. They stated that the deceased used to indulge in gambling and was murdered by some unidentified persons in connection with the same. The deceased was murdered near an electric transformer situated near Brahmpur Pulia and that his body was subsequently shifted by his family to his residence in order to contrive evidence against the appellants. That the family of the deceased was inimical towards appellant Akbar and Mursaleen on account of the fact that the brother of the wife of the deceased was engaged to a relative of said appellants, which engagement was broken by the family of the said appellants. Due to this the family of the deceased bore a grudge against appellants Afsar and Abdul Hamid inasmuch they had supported the appellants Akbar and Mursaleen in the Crl.A.Nos.327/07, 329/07 & 374/07 Page 14 of 58 dispute arising out of the said broken engagement. Additionally, appellant Afsar pleaded the defence of alibi to improbablize his physical presence at the place of occurrence at the alleged time of occurrence. He stated that he was attending the marriage of the daughter one Satbir Singh, a friend of his father, at the alleged time of the crime. 26. In defence, the appellants examined five witnesses namely, Rukhsana, Allo, Satbir Singh, Jakir and Sayeeda Parveen as DW-1, DW-2, DW-3, DW-4 and DW-5 respectively. 27. Rukhsana DW-1, a neighbour of the deceased, deposed that the deceased used to indulge in gambling in his lifetime. That 6-7 years ago at around 10-10.20 P.M. she was present in her residence when she heard noises coming from the neighbourhood whereupon she went out and found that the deceased was lying murdered under an electric transformer situated near pulia. That 2-3 persons brought the deceased to his residence wherein no family member of the deceased was found present. The deceased was laid down on the floor of his residence and was covered by a blanket. Someone from the crowd informed the wife of the deceased who was present at the residence of her brother. That she had appraised the police about the said incident. 28. Jakir DW-4, a neighbour of the deceased, deposed that the deceased used to indulge in gambling in his lifetime. That Crl.A.Nos.327/07, 329/07 & 374/07 Page 15 of 58 about 6-61/2 years ago he had seen that the deceased was lying near an electric transformer situated near the pulia of his colony and that 15-20 persons were standing near the deceased. That someone from the crowd went to the house of the deceased but the same was found to be locked. That thereafter some persons from the crowd removed the deceased to GTB hospital. 29. Sayda Parveen DW-5, a neighbour of the appellant Mursaleen, deposed that a dispute had arisen between the families of the wife of the deceased and appellant Mursaleen in connection with the engagement of the brother of the wife of the deceased with a relative of appellant Mursaleen. That the family of the wife of the deceased had given threats to appellant Mursaleen and also to his family members and friends. 30. Also DW-2, the father of appellant Afsar, deposed that the family of the deceased was inimically deposed towards his family as he had supported appellant Mursaleen in the dispute which had arisen between the families of the wife of the deceased and appellant Mursaleen in connection with the engagement of the brother of the wife of the deceased with a relative of appellant Mursaleen. That on 03.02.01 appellant Afsar had gone to village Kiradi near Punjabi Bagh to attend a marriage and returned home next day at around 4 A.M. Crl.A.Nos.327/07, 329/07 & 374/07 Page 16 of 58 31. Satbir Singh DW-3, a friend of the father of appellant Afsar, deposed that the marriage of his daughter was solemnized on 03.02.01 and that appellant Afsar had attended the said marriage. That appellant Afsar handed him a gift at around 7.30 P.M. and that he had last seen him at venue between 12.30 A.M. to 1.00 A.M. 32. Believing the testimony of Haseen Bano PW-1, Safdar PW-2 and Akbar PW-3, to be creditworthy; holding that the witnesses examined by the defence particularly Rukhsana DW- 1 and Jakir DW-4, do not inspire any confidence for the reason there is a material contradiction between their versions inasmuch as Rukhsana had deposed that the deceased was removed to his house from the electric transformer whereas Jakir deposed that he was removed to the hospital; that appellant Afsar has not been able to prove his defence of alibi for the reason the credentials of Satbir Singh DW-3, are doubtful, inasmuch as he has not been able to show any evidence to establish that appellant Afsar had attended the marriage of his daughter on 03.02.01, the learned Trial Judge has convicted the appellants. 32. At the hearing of the appeals, learned counsel for the appellants advanced submissions on following 8 counts:- I That the FIR registered in the present case was ante- timed. Crl.A.Nos.327/07, 329/07 & 374/07 Page 17 of 58 II That the witnesses namely, Haseena Bano PW-1, Safdar PW-2 and Akbar PW-3, are „wholly unreliable‟ witnesses. III That there is variance between medical and ocular evidence. IV That the conduct of the so-called eye-witnesses after the incident is most unnatural. V That the case set up by the prosecution is improbable. VI That the prosecution failed to prove the genesis of the occurrence. VIII That there are suspicious circumstances in the case of the prosecution. VIII That the investigation conducted in the present case is most perfunctory. FIR BEING ANTE-TIMED 33. The first submission advanced by the learned counsel for the appellants was that the FIR Ex.PW-8/A registered in the present case was ante-timed which leads to a strong presumption that the police had gained time to contrive evidence against the appellants. According to the counsel, the circumstances which indicated that the FIR was ante-timed are that: - (i) no evidence has been adduced by the prosecution to prove that the requirement of sending the copy of the FIR to the Magistrate soon after the occurrence prescribed under Section 157 Cr.P.C. was complied with. Particular emphasis Crl.A.Nos.327/07, 329/07 & 374/07 Page 18 of 58 was laid on the fact that the police official who had allegedly delivered copy of the FIR to the Magistrate has not been examined by the prosecution; (ii) there is a serious contradiction in the evidence on record regarding the delivery of the FIR to the Magistrate inasmuch as FIR Ex.PW-8/A records that the same was delivered through Const.Ranveer Singh whereas HC Bhoop Singh PW-8, who is the scribe of the FIR, deposed that the same was delivered through Const.Harbeer Singh; (iii) DD Entry No.30A Ex.PW-6/DA, records that the FIR in question is „being recorded‟ at 1.40 A.M. on 04.02.01 which is contrary to the recording contained in the FIR that the same was recorded at 1.40 A.M. on 04.02.01 and (iv) the fact that DD Entry No.30A Ex.PW-6/DA, was got proved by the defence and not by prosecution indicates that the prosecution had attempted to