Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 1 of 23 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 12th August, 2009 Judgment Delivered on: 21st August, 2009 + CRL.A.363/2001 MEHBOOB @ MEHMOOD ..... Appellant Through: Mr. Rajesh Mahajan, Adv. versus STATE ..... Respondent Through: Mr. Pawan Sharma, APP. CRL.A.171/2001 SHAHABUDDIN ..... Appellant Through: Mr. Rajesh Mahajan, Adv. versus STATE ..... Respondent Through: Mr. Pawan Sharma, APP. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 2 of 23 1. Appellant Mehboob has been convicted for having committed murder of Dev Raj @ Dabbu as also for having caused the disappearance of the evidence of the crime i.e. of concealing the dead body of Dev Raj @ Dabbu with the intention to screen himself from punishment. The co-appellant, Shahabuddin, father of Mehboob has been convicted for the offence punishable under Section 201 IPC i.e. for concealing the dead body of Dev Raj with the intention to screen his son from punishment. Appellant Mehboob has been sentenced to undergo life imprisonment as also a fine of Rs.5000/-in default of payment of fine, SI for two years for the offence under Section 302 IPC; for the offence under section 201 IPC he has been sentenced to undergo RI for two years and a fine of Rs.1000/- in default of payment of fine SI for two months. The co-appellant Shahabuddin has been sentenced to undergo RI for two years and a fine of Rs.5000/-, in default of payment of fine SI for two months. 2. On 14.7.1995, at 9.30 AM, D.D.No.5A was recorded in Police Station Rohini about a murder having taken place at shop number G-20/139, Sector-7, Rohini. Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 3 of 23 The DD was marked to SI Gian Singh PW-17, who along with Const.Sadhu Ram and Const.Arvind Kumar PW-15 reached the spot, where they met Mohd.Anwar PW-16, the owner of a barber shop being run by him under the name and style `Prince Hair Dressers’. 3. Mohd.Anwar PW-16, made a statement Ex.PW- 16/A which formed the basis of the rukka. In his statement PW-16 disclosed that he is a resident of house No.G-20, 139, C-20. Sector - Rohini; and that he was running a barber shop where he had employed two barbers; namely, Mehboob and Fareed. That Fareed had left for his village on 10.5.1995and Mehboob was alone in the shop and used to sleep there. On the intervening night of 13th and 14th July 1995, at about 10.30 PM he left the shop for his house, leaving Mehboob in the shop. Next morning i.e. on 14.7.1995, at about 9.15 PM, when he reached his shop, he saw that one of the two shutters of the shop was half open and on entering the shop he saw a dead body lying on the floor without its head and minus the male organ. He identified the dead body as that of his employee Mehboob. Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 4 of 23 4. The rukka Ex.PW-17/A was endorsed on this statement of PW-16 and sent through Const.Sadhu Ram on the basis of which the formal FIR Ex.PW-13/A was recorded by lady H.C. Sharda PW-13. 5. Shahabuddin the father of Mehboob was called at the spot and he identified the dead body as that of his son Mehboob. Investigation was thereafter handed over to Inspector Ram Chander PW-12 who also reached the spot. A pair of chappals and a black thread lying near the dead body alongwith the blood stained dari and the gadda were seized from the spot. The dead body was wearing a light green coloured pant and from its pocket, a blue coloured rexene purse was taken out which contained three passport size photographs of Mehboob, besides rupees four. The same were also seized and sealed. Photographer and the crime team were summoned. Sh.Sagar PW-23, took photographs of the blood smeared dead body which was without a head and the penis. 6. During investigation the investigating officer met Tilak Raj PW-6 who ran an eatery (dhaba), near the shop of Mohd.Anwar. He informed that Mehboob used to Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 5 of 23 take food in his dhaba and that Dev Raj his uncle’s son were last seen together by him at 11.00 PM on 13.7.1995 when both of them had left his dhaba to view a picture at the shop of Mehboob which was also the place where Mehboob used to sleep at night. 7. On 15.7.1995, i.e. on the following day the post mortem was conducted by Dr.Ashok Jaiswal PW-7 who had noted two external injuries on the body :- “(i) There was dismemberment of head and neck from the rest of the body at the label of C-7 – vertebra exposing soft tissues and vesscles at root of neck, both revealing angular cuts in more than one direction with no staining of skin margins which was smoothly cut with few angular cuts at places. No blood or clot seen in the structure found divided. Both oesophagus and Trachea were found to be acutely divided. The body of cervical 7 and thoracic one vertebra showed multiple superficial linear cuts. The spinal cord was found to be acutely cut at C-7 level. Tissue around were devoid of any blood clot. (ii) Penis was found to be missing from its root exposing oval to circular area at its based 1- 1/2 x 1” Margins clean cuts devoid of blood staining. Both testicles were exposed. No blood clot was seen around them. Apart of right spermatic cord of length 2.5cm. seeing handing out with a regular ends. The scrotal sac was missing in front and the part remaining irregular margins devoid of blood. No other external mark of injury of violence seen on the body.” Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 6 of 23 8. The opinion on the cause of death was kept pending as the report of viscera was yet awaited; the doctor had opined that injuries no.1 and 2 were post mortem in nature and caused by a sharp object. Time since death was opined about 36 hours i.e. relating back to 1.00 to 2.00 PM on the intervening night of 13-14.7.1995. The dead body was thereafter handed over to Shahabuddin co-appellant vide receipt Ex.PW-17/B believing it to be the dead body of his son Mehboob. 9. On 15.5.1995 SI Kuldeep Singh PW-18 who had been entrusted with the investigation of this case by PW-12 visited Mithapur, District Meerut in connection with the present case as co-appellant Shahbuddin has misled them into believing that this murder could have been committed by one Ram Pal Singh; enquiry, however, did not reveal any role of Rampal Singh. 10. On 17.7.1995 PW-18 visited the premises i.e. B- 3/91, Sector-6, Rohini where he met Tilak Raj PW-6 who was in search of his cousin Dev Raj @ Dabbu who was reported missing since 13.7.1995. Dev Raj @ Dabbu used to work in Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 7 of 23 the dhaba of PW-6. They proceeded to the place of Shahabuddin who on inquiry stated that he was fed up with the whole matter and would like to disclose the real truth; at this stage Shahabuddin disclosed that his son Mehboob was alive and the dead body which had been recovered from the barber shop was not of Mehboob but of Dev Raj @ Dabbu. PW- 18 recorded the disclosure statement of Shahabuddin Ex. PW- 6/E and arrested him vide memo Ex.PW-18/A. Shahabuddin disclosed that his son could be apprehended from the Delhi Railway Station; from Nizamuddin Railway Station at platform no.1 appellant Mehboob was apprehended and interrogated. His disclosure statement Ex.PW-18/B was recorded. He disclosed therein that he had hidden the head and penis of deceased Dev Raj @ Dabbu in the bushes in Sector-6, Rohini and he could get the same recovered as also the Ustra which had been used by him in the commission of the crime. He further disclosed that the clothes worn by him as also the pant of Dev Raj @ Dabbu which he had concealed in his sister’s house could also be recovered by him. 11. On the same day i.e. on 17.7.1995 appellant Mehboob led the police party comprising of PW-18, H.C. Raj Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 8 of 23 Kumar, Const.Katar Singh and Tilak Raj, PW-6, to Sector-6, Rohini where they were also joined by Daya Ram PW-4 and Tilak Ram PW-5. From the bushes near Shiva Road at Sector-6 Rohini Mehboob got a white-coloured plastic bag recovered, containing a male head and a penis; a cloth was tied around the neck of the head and the penis was wrapped in an underwear and a baniyan. On seeing the head PW-4 and PW- 5 who were cousin brothers of Dev Raj @ Dabbu identified the same to be that of their missing cousin Dev Raj @ Dabbu. The said articles were taken into possession vide memo Ex.PW-4/D. 12. On 18.7.1995 investigation of this case was handed over to Inspector S.S. Ramela PW-20. On 19.7.1995 PW-20, PW-18, Moti Ram PW-3 were led by the appellant Mehboob to Brahampur Mohalla Khhattonwali in Meerut where he pointed out the house of his sister and from inside the house he got a blood-stained pant and shirt recovered which were kept below a diwan in the room of the house; the grey coloured pant contained an Ustra without a blade which was taken into possession vide memo Ex.PW-3/B; the sketch of the Ustra Ex.PW-3/A was prepared; the blood stained shirt and the pant were also taken into possession. Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 9 of 23 13. On 20.7.1995 PW-20 visited the office of the ADM Meerut and under his order Ex.PW-19/A the Tehsildar Manish Kumar Sharma PW-10 joined by Raja Ram Verma PW-2 and SI Layak Singh Yadav PW-21 member of the U.P.Police, reached the grave yard of Village Meethapur, Meerut. At the instance of accused Shahabuddin a grave was dug and from there a dead body was taken out by Mangal Singh PW-22; the body was wrapped in a white cloth and the same was seized vide memo Ex. PW-4/C. The dead body was identified at that time by PW-4 and PW-5 as that of their deceased brother Dev Raj @ Dabbu. 14. On 21.7.1995 the dead body along with the severed head and the severed male penis were again taken to the doctor PW-7 for his opinion who did not think it fit to conduct a second post mortem on the said dead body; he opined that the head and the penis belong to the same dead body as the level of the cut of the dismembered parts i.e. the head and the penis matched and corresponded in manner and level; the cause of death was again kept pending as the report of the viscera was yet awaited. This second report is Ex.PW-7/B. Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 10 of 23 15. On 24.8.1995 PW-7 examined the weapon of offence i.e. a razor with a metallic blade and plastic handle sent to him by ASI Gian Singh PW-17; on examination it was opined that dismemberment of head and the external genetilia of the deceased; both post mortem injuries could have been caused by this sharp weapon. This report is Ex.PW- 7/C. 16. The trial Judge vide its impugned judgment had convicted Mehboob for the murder of Dev Raj @ Dabbu; he had also been convicted along with his father Shahabuddin for having caused disappearance of the evidence of the offence by concealing the dead body of Dev Raj @ Dabbu and of having given the impression that the dead body was that of Mehboob. 17. On behalf of the appellant Mehboob, it has been argued that the testimony of PW-6 cannot be relied upon as there are material improvements made by him in Court qua his first version recorded under Section 161 Cr.P.C. Ex.PW-6/A, thus belying the last-seen theory. It was urged that the razor (ustra) had been tampered with inasmuch as the recovery memo Ex.PW-3/B records that there is no blade in the razor Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 11 of 23 but the razor sent to the doctor who conducted the post- mortem had a blade inserted inside the razor. Attention has also been drawn to the post mortem report Ex.PW-7/A which had opined that injury no.1 and 2 are post mortem in nature; it is argued that the opinion on the cause of death was yet awaited and in the absence of which it cannot conclusively be said that the death of Dev Raj was homicidal. It was urged that while examining appellant Mehboob under Section 313 Cr.P.C., the evidence pertaining to last seen with the deceased was not put to Mehboob and hence the same has to be excluded while considering the incriminating evidence against Mehboob. It has lastly been argued that at best the offence under Section 201 of the IPC is made out for the appellant having disguised the dead body of Dev Raj @ Dabbu to make it look as if it was his own; he cannot however be connected with the murder of Dev Raj @ Dabbu. There is no serious challenge to the conviction of co-accused Shahabuddin. 18. We have perused the record; appreciated the evidence and taken note of the arguments advanced by the learned defence counsel. We are of the unhesitating opinion that the judgment of the trial Court call for no interference. Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 12 of 23 19. Tilak Raj PW-6 has deposed on the circumstance of having last seen the accused Mehboob in the company of Dev Raj @ Dabbu. He has on oath deposed that he is running a dhaba and deceased Dev Raj @ Dabbu used to work with him; he was his cousin. Accused Mehboob used to come to his hotel for eating food; Mehboob was working in the shop of Anwar, a barber and he used to sleep in the shop at night. On the 13th day about three years ago (in the year 1995) at 11.00 PM Mehboob had come to his hotel for taking food and thereafter he had taken Dev Raj @ Dabbu to his shop to see a picture; Dev Raj @ Dabbu did not return back at night. Dev Raj @ Dabbu while going with Mehboob had not taken food and stated that he would take his meal on returning after seeing the picture. On the following morning he went to the shop of Mehboob where he saw a dead body lying, which he identified as that of Mehboob as it was wearing the same clothes as Mehboob was wearing when he had come to his shop on the previous day for eating food. A pair of chappals belonging to his cousin Dev Raj @ Dabbu were also found lying there. PW-6 has further deposed that his cousin Dev Raj @ Dabbu was reported missing from 13th night and he was not Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 13 of 23 traceable right up to 17.7.1995 despite his best efforts; on 17.7.1995 he met some police official who told him that Mehboob was alive and he could be arrested from the Nizamuddin Railway Station. 20. PW-6 was subjected to a lengthy cross-examination and he was confronted with his version Ex.PW-6/A which he had given to the police i.e. his statement recorded under Section 161 Cr.P.C. In his cross-examination, it has come on record that in Ex.PW-6/A there was no mention that Mehboob had visited his hotel at 11.00 PM on the night of 13-14.7.1995 and after taking food he had taken Dev Raj @ Dabbu to his shop to see a picture and that Dev Raj @ Dabbu did not return at night from the shop of Mehboob. 21. From this version, it is clear that this part of the testimony of PW-6 on oath in Court is an improvement qua his first version before Investigating Officer and has to be ignored. PW-6 has categorically on oath stated that Dev Raj @ Dabbu while going with Mehboob had not taken his food and had stated that he would take his meal after seeing the picture. This part of his statement has not been the subject matter of any cross-examination, and thus must be deemed to be Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 14 of 23 accepted. Placing reliance upon this version, it has been established that Dev Raj @ Dabbu had gone with Mehboob on 13.7.1995 without taking his food and had stated that he would take his meal on his return after seeing the picture; thereby proving that both Dev Raj @ Dabbu and Mehboob had left together on the night of 13.7.1995. 22. In a judgment reported in Bal Kishan Vs. State & Anr. 1977 Crl. J. 410, it has been held by this Court that if there is a failure to cross-examine a witness in respect of a material assertion, it is to be presumed that that assertion stands admitted. 23. Version of SI Kuldeep Singh PW-18 is also relevant in this context. He has deposed that on 17.7.1995 he had joined investigation and had gone to B-3/91, Sector-6, Rohini where he met Tilak Raj; he further deposed that he had recorded the statements of Tilak Raj and Const.Kattar Singh; thus apart from the statement Ex.PW-6/A recorded on 14.7.1995 there was yet another statement recorded by the Investigating Officer of PW-6 Tilak Raj which was on 17.7.1995 and which had not been confronted to PW-6; be that as it may; even while ignoring this submission of the learned counsel for the State; the unconfronted deposition of PW-6 on Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 15 of 23 oath is by itself sufficient to establish that accused Mehboob and the deceased Dev Raj were last seen by PW-6 on the intervening night of 13-14.7.1995 when Mehboob had had his dinner but Dev Raj was yet to have it; they had left together for seeing a movie. 24. Sunder PW-8 has also on oath testified that Mehboob was working in the barber shop of Anwar; Dev Raj @ Dabbu used to work in the hotel of Tilak Raj and Dev Raj sometimes used to see picture at the shop of Anwar. 25. Mohd. Anwar PW-16 was the owner of the barber shop where Mehboob used to work. He had deposed that both his employees Mehboob and Fareed used to sleep in the shop after the day’s work; Fareed had gone to his village on 10.5.1995. On 13.7.1995 at about 10.00-10.30 PM he had left the shop after leaving Mehboob there. On the next morning i.e. on 14.7.1995 at about 9.00-9.15 PM he noted that one of the two shutters of his shop was half open; on opening the shop he saw a dead body lying on the ground covered with a cloth; on removing the cloth he saw that the dead body was headless and its male organ had also been severed. The police was informed. The dead body was wearing a chhalla Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 16 of 23 and the purse in the pant pocket contained three passport size photographs of Mehboob; the dead body was also wearing the same clothes which Mehboob was wearing on 13.7.1995. On this basis PW-16 had identified this dead body as that of Mehboob. 26. This version of PW-16 had led the investigation into motion. Investigating Agency believing that the dead body recovered from the barber shop was that of Mebhoob, the same was handed over to his father Shahabuddin who had also reached the spot. The post mortem Ex.PW-7/A had opined that the external injury no.1 and 2 i.e. the severance of the head and severance of the male organ were both post mortem injuries but the cause of death had been kept pending. 27. On 17.7.1995 Shahabuddin had made a disclosure statement in the presence of PW-18 SI Kuldeep Singh. Tilak Raj PW-6 was also present. Shahabuddin had disclosed that his son Mehboob was alive but in conspiracy with him he had identified the dead body as that of his son Mehboob which was actually of Dev Raj @ Dabbu. On pointing out of Shahabuddin accused Mehboob had thereafter been arrested. 28. On the same day i.e. 17.7.1995, PW-6 along with Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 17 of 23 police party, joined by PW-4 and PW-5, both cousins of Dev Raj @ Dabbu, led by Mehboob reached Sector-7, Ambedkar Park, from where near the bushes he retrieved a white bag containing a head and a penis. On seeing the head, PW-4 and PW-5, recognized this head as that of their cousin Dev Raj @ Dabbu. This recovery memo Ex.PW-4/B had been attested by PW-4 and PW-5 and both the said witnesses besides the police officials, PW-17 and PW-18, have corroborated one another on oath in Court in this regard. 29. The disclosure statement of Shahabuddin Ex.PW- 6/C had further led to the retrieval of the dead body of Dev Raj @ Dabbu which he had buried in the jungles of Meethapur; on 20.7.1995 police party headed by PW-20 had reached the graveyard of village Meethapur, Meerut where in the presence of PW-20, PW-10, PW-21, PW-4 and PW-5 the dead body was retrieved from the graveyard by PW-22; vide memo Ex.PW-4/C. Ex.PW-4/C has been attested by PW-4, PW-5, cousins of the deceased Dev Raj as also by PW-21, a member of the U.P.Police, PW-10, the Tehsildar and all have corroborated one another in their testimony on oath in Court. This dead body was without a head and minus the male organ; dead body was Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 18 of 23 identified by PW-4 and PW-5 as that of their deceased cousin Dev Raj @ Dabbu. 30. On 21.7.1995 PW-7 had vide his report Ex.PW-7/B opined that this head and penis belong to the same dead body which had been the subject matter of his post mortem. 31. Indeed, the seizure memo Ex.PW-3/B and the sketch Ex.PW-3/A of the razor (ustra) shows the same without any blade and the testimony of the doctor who conducted the post-mortem clearly shows that the razor sent to him for opinion had a blade inside. It is apparent that the overzealous investigating officer has tampered with evidence and hence we do not rely upon said recovery. 32. The version of the prosecution, however, does not suffer if evidence pertaining to the razor is discarded, as admittedly, the injuries which had been caused by virtue of this weapon i.e. the severance of the head and the penis were both post mortem injuries and were not the cause of death of the deceased. 33. The defence counsel has pointed out that the prosecution has failed to prove that the death was homicidal as the doctor had not given any conclusive opinion on the Crl. A. No.363/2001 and Crl. A.No.171/2001 Page 19 of 23 cause of death. It is not the defence that Dev Raj @ Dabbu had died a natural death or committed suicide; he had obviously been killed by some person; the question to be determined by this Court is as to who this person was. In this context, relevant it would be to state that apart from the aforenoted evidence proved, the blood stained gadda and dari which had been seized from the spot on which the dead body was lying also detected blood group `B’ which was the blood group of the deceased and