* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRIMINAL APPEAL NO. 128 OF 2003 % Date of Decision: 17th October, 2008 # LIYAKAT HUSSAIN ...Appellant ! Through: Mr. K.B. Andley, Sr. Advocate with Mr. M.L. Yadav, Advocate versus $ STATE …Respondent ^ Through: Mr. Sunil Sharma, APP for State . CORAM: * HON'BLE MR. JUSTICE MUKUL MUDGAL HON'BLE MR. JUSTICE P.K.BHASIN 1. Whether Reporters of local papers may be allowed to see the Judgment?(Yes) 2. To be referred to the Reporter or not?(Yes) 3. Whether the judgment should be reported in the digest?(Yes) JUDGMENT P.K.BHASIN, J: The appellant has challenged his conviction and sentences awarded to him under Sections 302/201 of Indian Penal Code („IPC‟ Crl.A.128/03 2 for short) vide judgment and order dated 15-2-2003 passed by learned Additional Sessions Judge, Delhi in Sessions Case No. 70/02. 2. The case of the prosecution, in substance, is that on 2.9.99 an information was received from an unknown person on telephone by the Mahipal Pur Police station at about 8.10 a.m. that a dead body was lying in jungle on Shahbad Bharthal Road and was being eaten up by the animals. That information was recorded as DD no. 3-A(Ex. PW- 22/1) and its copy was handed over to the SHO Insp. Bishan Mohan (PW-22) who accompanied by one Sub-Inspector and one Constable went to the jungle on Shahbad Bharthal Road where on search Insp. Bishan Mohan found one headless and partially burnt dead body of a male. One pocket diary, one driving licence in the name of Ibrahim Khan, one watch and two keys were found lying near the dead body. Since it appeared to be a case of murder a rukka was prepared and sent to the police station by PW-22 for registration of a case under Sections 302/201 IPC and accordingly FIR no.52/99 (Ex. PW-13/1) was registered. Intimation of recovery of the dead body reached PW-2 Yusuf Ahmed, brother of the Ibrahim Khan whose driving licence was found lying near the corpse and he then came to the place of recovery Crl.A.128/03 3 of the corpse and identified the same to be of his brother Ibrahim from the shirt on the dead body as well as the watch which was found lying nearby and some marks on the dead body. The police seized the driving licence, diary and the watch. Yusuf Ahmed informed the police that his brother Ibrahim was having illicit relations with the wife of one Liyakat (the appellant herein) who was earlier living in their locality. The police then went to the house of Liyakat (hereinafter to be referred as „the accused‟) in Nangloi where his wife Razia told them that Liyakat had gone to Baroda on 1.9.99 alongwith one Nagender on a tanker owned by Mr. Ramesh Gupta (PW-5) and with whom the accused was employed as a driver. When Mr. Ramesh Gupta (PW-5) was contacted he informed the police that Liyakat was his permanent driver on tanker no. HR 38A-0481and had gone to Asian Paints Factory at Ankleshwar in Gujarat on 1.9.99. The police team then left for Ankleshwar and reached there on 5.9.99 where they found the tanker lying parked outside the Asian Paints factory but the accused and the cleaner were not found. Blood stains were noticed on the headlight, bonnet and seat in the driver‟s cabin of the tanker. The police waited there for someone to come to take the tanker but nobody came there and the police officials came to know on 06/09/99 Crl.A.128/03 4 that the accused had been arrested in Delhi and then the tanker was taken into police possession on 06/09/99 and brought to Delhi and kept at Mahipalpur police station. 3. It is the further case of the prosecution that on 6.9.99 the accused made a disclosure statement, Ex. PW1/1, pursuant to which he got recovered one blood stained axe (Ex. P-12) and the head of the deceased. Later on one Nagender, who was the cleaner on duty on tanker no. 0481, was also arrested on 11.9.99 pursuant to the disclosure statement of accused Liyakat Husain. 4. The decapitated body and the head of the deceased were sent for post-mortem examination on 9.9.99. The autopsy surgeon, Dr. Alaxender(PW-8) had found the following external and internal injuries which he had described in his post-mortem report (Ex. PW- 8/1) : “(A) External injuries: Rigor mortis had passed off from all over the body. P.M. staining was fixed and discoloured on the back. Maggots infestation was present. Epidermal, dermoepidermal and deep burns(post mortem) were present on the anterior abdomen, pelvis, whole of right lower limb except right foot left thigh, knee and upper leg anteriorly, left thigh Crl.A.128/03 5 with gluteal region posteriorly whole of the lower limb except foot posteriorly including gluteal region. Line of redness inflammation were not present blackening and charring were present, intestines on the right side anterior abdomen and both femurs were exposed. Penis was circumcised. Decapitated head – cornea was hazzy on both sides, conjunctiva were pale on both sides. There was no bleeding from the nose, ears and mouth. Facial skin whitish, faded, bleached and sodden. Scalp hair, eye-brows and eye-lashes were intact. Third molars were present on the lower jaws bilaterally on both sides. The autopsy surgeon opined that death was due to shock and hemorrhage caused by ante-mortem decapitation done with a sharp- edged heavy weapon/object and he further opined that the injuries noticed on the dead body were sufficient to cause death in the ordinary course of nature and that the burn injuries were post-mortem in nature. The time since death was opined to be approximately 7 ½ days. The axe (Ex. P-1) got recovered by the accused was also shown to the autopsy surgeon for his opinion whether the injuries found on the body and the head of the deceased could have been caused with that axe. He gave his opinion (Ex. PW-8/3) that multiple chopped wounds on the end stumps of the head and neck could be caused with that axe or any other similar weapon. 5. After completion of investigation the police charge-sheeted Crl.A.128/03 6 accused-appellant Liyakat Husain and the cleaner Nagender. On the case being committed to the Court of Sessions accused Nagender was discharged while accused Liyakat Husain was charged and tried under Sections 302/201 IPC. In the absence of any direct evidence to prove the commission of murder by the appellant the prosecution had sought to establish its case on the basis of circumstantial evidence. 6. After the completion of prosecution evidence the appellant- accused was examined under Section 313 Cr.P.C. He denied that he was employed by PW-6 Bhushan Gupta as a driver for his tanker no. HR 38-A 0481. It was his defence that he used to purchase cotton from Ibrahim(the deceased) who overcharged him because of which he stopped going to his shop. Ibrahim insisted him to purchase cotton from his shop and for this reason he might have been implicated falsely. He adduced three witnesses in his defence, namely, DW-1 Rajia Khatoon and DW-2 Shabudin to prove that he was living in Gajrola and not in the locality in Delhi where the deceased was residing as was being claimed by the prosecution witnesses examined to establish illicit relationship between his wife and the deceased. DW-3 Devi Lal was examined to prove that the accused was doing the Crl.A.128/03 7 cotton spinning work in Nabi Karim in Delhi and was not a driver. 7. On examining the evidence on record, the learned trial Court found that the circumstances relied upon by the prosecution for establishing the guilt of accused Liyakat Husain had been proved beyond any doubt and the same established that the deceased was killed by Liyakat Husain and with the intention of saving himself from punishment for the offence of murder he had chopped off the head of the deceased and thrown the headless body in a jungle and the decapitated head in a drain. Feeling aggrieved by his conviction under Sections 302/201 IPC and the sentences awarded to him by the trial Court this appeal was preferred by the convicted accused. 8. The circumstances relied upon by the prosecution to prove the guilt of the accused as noticed by the learned trial Court in the impugned judgment are as under: a) The deceased Ibrahim was having illicit relationship with the wife of the accused and therefore the accused had a grudge against the deceased. b) The head of the deceased Ibrahim was recovered by the police pursuant to the disclosure statement by the accused to police. Crl.A.128/03 8 c) The weapon used for committing the murder of deceased Ibrahim was recovered by the police pursuant to a disclosure statement made by the accused. d) Blood stains were found on the tanker driven by the accused. 9. After examining the evidence adduced during the trial by the prosecution as well as the defence the learned trial Judge came to the following conclusions in para no. 41 of his judgment in respect of the aforesaid circumstances relied upon by the prosecution: “41. Thus the prosecution has successfully proved that: 1. The accused suspected that deceased Ibrahim was having illicit relationship with his wife. 2. Blood stains were found on the tanker driven by him while in the employment of Mr. Bhushan Gupta. 3. The axe EX. P1, which had come into possession of the accused before it was thrown by him in bushes near Dharuheda, had blood stains of the group of deceased and could have been used for committing murder of the deceased. 4. The head of the deceased had come into possession of the accused before it was thrown by him in a drain near Chittorgarh.” These are the circumstances which were pressed into service before us also by the learned Addl. Public Prosecutor while supporting the judgment of the trial Court. Crl.A.128/03 9 10. Regarding the circumstance of motive learned trial Judge relied upon the evidence of PW-2 Yusuf Ahmed, the brother of the deceased. This witness had deposed that the accused was suspecting that the deceased had illicit relations with his wife the learned trial Judge observed in his judgment that there was no reason to disbelieve this statement of PW-2 that the accused suspected that the deceased Ibrahim was having illicit relationship with his wife. As to whether or not the prosecution had succeeded in proving that in fact there was illicit relationship between the deceased and the wife of the accused the learned trial Judge observed that: “It is immaterial as to whether Ibrahim was actually having illicit relationship with the wife of the accused or not. The relevant fact is as to whether the accused suspected such a relationship or not.” The learned trial judge also noticed that it was the prosecution case that the landlord of the accused had got his house vacated from the accused because of the relationship between the deceased and the wife of the accused. After noticing this aspect of the prosecution case the learned trial Judge further observed in his judgment that: “The very fact that the accused was asked to vacate Crl.A.128/03 10 the house in Hari Enclave where he was residing at that time leaves no doubt that not only the accused but also family of Ibrahim suspected that there was some kind of relationship between Ibrahim and Razia, wife of the accused.” From these observations of the learned trial Judge it is clear that the trial Judge was of the view that whether, in fact, there was any illicit relationship between the deceased and the wife of the accused had not been clearly established from the prosecution evidence. We have also examined the evidence of the two prosecution witnesses examined on the motive aspect of the prosecution case, namely, PW- 1 Iftikhar, who claimed to have let out the house to the accused in the same locality where the deceased was also living i.e. Hari Enclave, PW-2 Yusuf Ahmed, the brother of the deceased and we also find that from their evidence nothing has come on record from which it could be said that there was illicit relationship between the deceased and the wife of the accused. PW-1 had claimed that he was suspecting that Ibrahim had illicit relations with the wife of the accused and other people also used to complain about their relationship and therefore he had got the house which he had let out to the accused vacated. In cross-examination this witness claimed that he had stated before the police that people used to complain about the illicit relationship Crl.A.128/03 11 between the deceased and the wife of the accused but when he was confronted with his police statement Ex. PW-1/D1 this fact was not found to be recorded therein. That shows that this statement of PW-1 that locality people were also suspecting illicit relationship between the deceased and the wife of the accused was an exaggeration made by the witness and in any case in because of non examination of anyone of the locality person who might have suspected such a relationship between the deceased and the wife of the accused this statement of PW-1 becomes inadmissible being hearsay. PW-1 had also deposed that the deceased used to visit the house of the accused during his presence as well as in his(accused‟s) absence and, therefore, he (PW-1) had suspected illicit relationship between the deceased and the wife of the accused. This witness, however, did not claim that the accused was aware that the deceased used to come to his house even in his absence when his wife was alone in the house. It is not the case of the prosecution that the accused had expressed his suspicion regarding such a relationship before anyone. So, just because PW-1 was having some kind of suspicion in his mind regarding the relationship between the deceased and the wife of the accused that would not establish that the accused was also harbouring Crl.A.128/03 12 same suspicion in his mind. Similarly, mere ipse-dixit of PW-2 Yusuf Ahmed deposed that his brother had developed illicit relations with the wife of the accused is not sufficient to come to the conclusion that in fact there was any such relationship between the deceased and the wife of the accused and that accused was aware of that relationship and for that reason he had a motive to kill the deceased. Such kind of allegations are very easy to make but quite difficult to be established and in our view in the present case the prosecution has not succeeded in establishing the illicit relationship between the deceased and the wife of the accused. In fact, it also does not stand established that the accused was suspecting that the deceased had such a relationship with his wife, as has been concluded by the trial Court. 11. The next circumstance which the learned trial Court has found to have been established and relied upon also while convicting the accused is that the accused was a driver employed by PW-6 Bhushan Gupta for his tanker. On 1.9.99 the accused had gone with the tanker to Ankleshwar in Gujarat alongwith the acquitted accused Nagender who was the cleaner. After the police had started suspecting the involvement of accused Liyakat Husain in the murder of the deceased Crl.A.128/03 13 because of his having a suspicion about illicit relationship between his wife and the deceased (which circumstance we have already found to have not been established) a team of police officials went to Ankleshwar in search of accused Liyakat Husain. As per the prosecution case this accused was supposed to deliver some goods at the factory of Asian Paints in Ankleshwar. When the police team reached the premises of Asian Paints(India) Ltd. in Ankleshwar tanker no. HR-38-A 0481 which according to the prosecution had been taken by accused Liyakat Husain and the cleaner Nagender(since discharged by the trial Court) was found parked on the road outside the premises of Asian Paints( India) Ltd. However, accused Liyakat Husain and the discharged accused Nagender were not available there on 5.9.99 when the policemen reached there. So, a vigil was kept by the police- men till 6.9.99 so that the two accused could be apprehended whenever they would come there to take the tanker which, as per PW- 6 Bhushan Gupta, was to be taken from Ankleshwar to Bombay. However, neither accused Liyakat nor the cleaner Nagender came to the tanker even till 6.9.99 on which date accused Liyakat Hussain was arrested in Delhi and then that tanker was taken into police possession and brought to Delhi. As per the further prosecution case blood was Crl.A.128/03 14 noticed on the bonnet, headlight and the seat in the driver‟s cabin. Blood stained head light was sealed in a separate parcel. The blood on the bonnet and the seat in the driver‟s cabin on being examined at the Central Forensic Science Laboratory(CFSL), New Delhi was found to be human blood while origin of blood on the seized head light of the tanker could not be ascertained. The find of human blood on the tanker which was in the custody of accused Liyakat Husain has been considered to be an incriminating circumstance against him by the learned trial Court. 12. In order to establish that accused Liyakat Husain had been employed as a driver for the aforesaid tanker no. 0481 the prosecution had examined PW-5 Ramesh Gupta and PW-6 Bhushan Gupta, both of whom are brothers. As far as PW-5 Ramesh Gupta is concerned his examination-in-chief was recorded partly on 1.8.2001 when he claimed that tanker no.0481 was owned by his brother Bhushan Gupta(PW-6) and that Liyakat Hussain was employed as a driver for that tanker. However, thereafter he was not produced for the completion of his unfinished statement. Therefore, his statement cannot be read. Then his brother Bhushan Gupta was examined as Crl.A.128/03 15 PW-6. Bhushan Gupta deposed that he was the registered owner of tanker no. HR-38-A-6481 and that accused Liyakat was his driver and he had taken the said tanker to Ankleshwar alongwith cleaner Nagender Singh(discharged accused) on 1.9.99. As far as the stand of accused is concerned he denied being an employee of PW-6 and a suggestion to that effect was put to PW-6 in his cross-examination. When asked whether he had any documentary proof to show that the accused was his driver the witness stated that he was not having any documentary proof to show that accused Liyakat was ever employed by him as a driver. The defence of the accused was that he was doing the work of spinning cotton and in support of that plea he had examined one witness(DW-3 Devi Lal). DW-3 Devi Lal who had deposed that the accused was doing the work of spinning cotton in Nabi Karim for about 4-5 years till 2.9.99 in a tenanted premises which was in front of the house where he(DW-3) himself was residing. The learned trial Judge has accepted the statement on oath of PW-6 Bhushan Gupta in this regard in preference to the statement made on oath by DW-3 only on the ground that since there was no enmity between him and the accused he(PW-6) had no reason to depose falsely against the accused and also because even the accused Crl.A.128/03 16 had not imputed any motive to him for falsely deposing against him. If that was the only consideration for placing reliance on the statement on oath made by PW-6 then the evidence of defence witness should also have been examined keeping in mind the same consideration that he too had no apparent reason to depose falsely to help the accused and to DW-3 the prosecutor also had not suggested any motive in his cross-examination for falsely claiming that the accused was doing the work of cotton spinning and was not employed as a driver anywhere. The defence witnesses are entitled to equal treatment and respect as the prosecution witnesses get. Another reason given by the trial Judge for rejecting the defence plea was on the ground that the accused had not examined the landlady of the house where he was doing the work of cotton spinning and that the accused had not obtained registration under The Shops and Establishments Act. In our view, the evidence of DW-3 has been rejected on flippant grounds. If the learned trial Judge was expecting a documentary proof from the accused to substantiate his defence, although the concept of proof beyond reasonable doubt applies only in case of prosecution evidence and not in respect of the evidence adduced by an accused in support of his defence plea which has only to be probabalised, then the same proof should have been Crl.A.128/03 17 expected from the prosecution side also. We have already noticed that PW-6 Bhushan Gupta had claimed that he was not having any documentary proof to show that the accused was employed by him as a driver. The prosecution had not produced on record even the documentary proof of ownership of the tanker in question. Because of non-production of documentary proof in that regard by PW-6 his evidence, in fact, should have been rejected. The burden of proving the fact that the accused was employed as a driver with PW-6 was on the prosecution which, in our view, cannot be said to have been discharged. That burden could have been discharged by producing some documentary evidence but no such evidence had been produced. This apart to expect a person doing cotton spinning to have a registration under the Shops and Establishments Act is bordering on absurd. Lakhs of small artisans work in India who are not attached to establishments which have a Shops and Establishments Registration. In particular to use this circumstance as a factor for recording conviction for murder is inexplicable and wholly uncalled for. From the reasons given by the learned trial Judge for not accepting the defence evidence we are of the view that the learned trial Judge had put the burden of proof on this aspect of the prosecution case on the Crl.A.128/03 18 shoulders of the accused. It is the basic principle of criminal jurisprudence that if prosecution is making any allegation against an accused it is for the prosecution to establish the same and just because the accused does not produce strong evidence to establish his defence plea the prosecution allegation cannot not be presumed to have been established for that reason. The conclusion of the learned Trial Judge in para no. 31 of the impugned judgment to the effect that “Thus, there is no credible proof of the accused being a cotton spinner and not a driver. In these circumstances, the conclusion is that the accused was working as a driver with PW-6 and was driving his tanker no. HR 38- A 0481” can be said to have been arrived at in total disregard to the legal position regarding burden of proof in a criminal trial and so it cannot be accepted by us. 13. We also find from the impugned judgment that the learned trial Judge while coming to the conclusion that the accused was employed as a driver with PW- 6 Bhushan Gupta appears to have been influenced by the statement of the Investigating Officer PW-22 Inspector Bishan Mohan to the effect that accused Liyakat Husain was arrested from the house of PW-5 Ramesh Gupta, who happens to be Crl.A.128/03 19 the brother of PW-6 Bhushan Gupta. It appears that the learned trial Judge had in mind this fact that accused having been arrested from the house of Ramesh Gupta must have had some connection with the Gupta brothers and that connection could be his being the driver of Bhushan Gupta only. In our view, the learned trial Judge might have been justified in raising this kind of an inference from the aforesaid statement of the investigating officer if actually the correctness of the statement of the investigating officer had been tested by going