Crl.A.Nos.485/2001 & 803/2001 Page 1 of 38 * IN THE HIGH COURT OF DELHI % Judgment reserved on : 27.04.2009 Judgment delivered on: 04.05.2009 + CRL.A. 485/2001 MOHD. RASHID …Appellant Through: Mr. Rajesh Mahajan, Advocate versus STATE …Respondent Through: Mr. Pawan Sharma, Advocate + CRL.A. 803/2001 SANJAY KUMAR @ MANGAL …Appellant Through: Mr. Rajesh Mahajan, Advocate versus STATE …Respondent Through: Mr. Pawan Sharma, Advocate 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 31.10.2000, the appellants Mohd. Rashid and Sanjay @ Mangal have been convicted for the offence of having murdered Ashok Singh (hereinafter referred to as the deceased), for which Crl.A.Nos.485/2001 & 803/2001 Page 2 of 38 offence they have been sentenced to undergo imprisonment for life and pay a fine in sum of Rs.4,000/-; in default of payment of fine to undergo rigorous imprisonment for 1 year. Both of them have also been convicted for the offence punishable under Section 201 IPC i.e. destroying evidence for which offence they have been directed to undergo rigorous imprisonment for 5 years and to pay a fine in sum of Rs.2,000/-; in default of payment of fine to undergo rigorous imprisonment for 3 months. Both sentences have been directed to run concurrently. 2. Case of the prosecution is that on 29.1.1996 appellant Sanjay @ Mangal was last seen in the company of the deceased at around 7:30 PM in the office of Delhi Nainital Goods Carrier near Apasara Delhi-UP border, by Manohar Lal PW-6 and Vinod Kumar PW-7 and the two i.e. Sanjay and the deceased left in a TSR bearing No.DL-1RA-1592 belonging to the deceased of which deceased was the driver. Mohd. Rashid and Iqrar Ahmed joined the company of the two i.e. Sanjay and the deceased. Mohd. Rashid, Sanjay, as also the deceased, consumed ganja and liquor. Sanjay removed his belt and with the help of Mohd. Rashid strangulated the deceased who died due to asphyxia. Getting scared, Iqrar Ahmed fled. Mohd. Rashid and Sanjay threw the dead body of the deceased in a Crl.A.Nos.485/2001 & 803/2001 Page 3 of 38 drain at Jagat Puri adjoining Parwana Road and took along with them the TSR of the deceased. Mahender Kumar PW-8 saw Sanjay and Mohd. Rashid at around 5:30/6:00 AM on 30.1.1996 at Dadri-Noida Highway as the two flagged him while he was driving a Maruti van and requested him to lend a spanner; telling him that they required the spanner to change the wheel of their TSR which had got punctured; the TSR being the one belonging to the deceased. 3. Needless to state the case of the prosecution hinged upon the veracity and the credibility of the testimony of Iqrar Ahmed PW-2, Manohar Lal PW-6, Vinod Kumar PW-7 and Mahender Kumar PW-8. Of course, the manner in which the investigating officer Inspector S.N.Khan PW-28, who took over the investigation on 26.3.1996, claimed to have achieved the break through and his testimony pertaining to the investigation, also heavily impacts the case of the prosecution. 4. Before discussing the relevant evidence and the attendant circumstances in which the evidence has to be analyzed, we note that the impugned decision is one of the poorest we have come across. The decision spanning 50 pages guides nothing and gives no reason. Till page 43, in a parrot like manner the learned Trial Judge has simply noted the case of the prosecution and the testimony of 29 witnesses Crl.A.Nos.485/2001 & 803/2001 Page 4 of 38 who were examined at the trial. Without any discussion or an analysis of their evidence and completely ignoring the fact that the circumstances of a case are as important as the testimony of the witnesses as also the fact that what is stated by a particular witness needs to be considered with reference to the circumstance of a case, the learned Trial Judge has concluded the decision in para 38 against the accused at page 43 and 44 of the impugned decision. There is no reasoning preceding the conclusions arrived at. It is a strange decision we have seen, where after noting the evidence, straight away conclusions have been arrived at and thereafter in a summary manner, in a single paragraph being paragraph No.39, the contentions urged by the defence counsel and their reply by the learned APP have been noted. Not only that. It neither being the case of the prosecution that past enmity of the accused was the motive for the crime, nor there being any evidence to prove past enmity being the motive, the learned Trial Judge has held that the evidence established that the motive for the crime was past enmity. We simply do not understand as to how the learned Trial Judge has held so. It shows a complete non application of mind by the learned Trial Judge. From the case of the prosecution as noted above, it is apparent that the motive was to rob the deceased of his TSR. We hasten to add that for unexplainable reasons the charge Crl.A.Nos.485/2001 & 803/2001 Page 5 of 38 sheet did not allege the offence of robbery against the appellants. 5. We note para 38 of the impugned decision, which as noted above, has been penned immediately by the learned Trial Judge after noting the deposition of the 29 witnesses examined by the prosecution. It reads as under:- “38. There is no evidence on behalf of the accused persons in defence. The motive on the part of the accused persons is revealed to be previous enmity and the evidence of the last scene is established sufficiently beyond reasonable doubts by PW-7 Vinod Kumar and PW-6 Manohar Lal. The both accused persons were found by PW-8 Mahender Kumar Sharma with the TSR of deceased immediately after the incident at the same night and both the accused persons have been identified by PW-8 Mahender Kumar Sharma, PW-7 Vinod Kumar. Accused Sanjay has refused to join TIP besides that accused Sanjay was arrested on the identification by Vinod Kumar PW- 7 who got prepared his portrait immediately after the incident. The belt used in committing the crime was recovered at the instance of the accused Sanjay and both the accused have made their disclosure statement about the involvements in the crime of this case and they have pointed out the place of commission of crime and the place where the dead body was thorwn by them and the place where the three wheeler was abandoned by them vide pointing out memos and disclosure statements. The PW-7 is a natural witness who has identified the accused Sanjay and his testimony cannot be disbelieved. Similar is the position of testimony of PW-6 Manohar Lal. The testimony of PW-8 Mahender Kumar Sharma cannot be disbelieved only on the ground that he is only chance witness because he had no motive against the accused persons to implicate them falsely in this case and also he was in his ordinary course of his business when going to Surajpur with the spare parts of the truck. On behalf of the accused persons in his cross Crl.A.Nos.485/2001 & 803/2001 Page 6 of 38 examination nothing could be extracted so that his testimony could not be discarded as not genuine.” 6. The involvement of the police with the instant case was when between 9:00 AM – 10:00 AM on 30.1.1996 Const.Ashok Kumar PW-14 and HC Rahat Singh PW-25, both posted at PS Suraj Pur spotted TSR No.DL-1RA-1592 near Rubi Chemical Factory at Noida – Dadri Road with the left rear wheel missing. The abandoned scooter was removed by them to PS Suraj Pur. The same day i.e. on 30.1.1996, at around 4:22 PM, DD No.13A was recorded at PS Anand Vihar that a wireless message has been received through the police control room that a dead body was spotted at a drain at Parvana Road, Jagat Puri. A copy of the DD entry was handed over to ASI Ganga Ram who accompanied by Const.Harinder left for the spot. Inspector Mohan Singh PW-20 then posted as the SHO PS Anand Vihar was on patrol duty along with Const.Lokender and Const.Suresh Kumar. Over his wireless set even he was conveyed the information about a dead body being spotted at a drain at Parvana Road, Jagat Puri and accordingly he took the gypsy in which he and the two constables were travelling to the place disclosed to them where the dead body was spotted. Crl.A.Nos.485/2001 & 803/2001 Page 7 of 38 7. At the place where the dead body was found, Inspector Mohan Singh prepared a statement of fact Ex.PW- 29/C and handed over the same to Const.Harinder who took the same to the police station at 6:15 PM (as recorded on Ex.PW-29/C). At the police station HC Krishan Kumar PW-29 registered the FIR Ex.PW-29/A under Section 302 IPC. 8. At the spot, Inspector Mohan Singh summoned the crime team and a photographer. The crime team could not lift any clue of substance and hence left. Const.Surender Singh PW-17 took 6 photographs Ex.PX-1 to Ex.PX-6; negatives whereof are Ex.PX-7 to Ex.PX-12. The dead body was sent for post-mortem to the Civil Hospital Subzi Mandi through Const.Satinder PW-13. 9. Though during trial Budh Ram PW-17 did not speak about visiting the police station on 31.1.1996 to inform that his relative Ashok (the deceased) was missing, but as claimed by Inspector Mohan Singh PW-20, Budh Ram had visited the police station since the deceased Ashok had not returned home. Since an unidentified dead body had been found the previous day, it appears that the said fact was disclosed to Budh Ram. This is not a hunch of this Court, but the logical inference which can be drawn from the fact that the next day i.e. 1.2.1996 Budh Ram along with Asha PW-1, the wife of the Crl.A.Nos.485/2001 & 803/2001 Page 8 of 38 deceased, Manohar Lal PW-6, the brother of the deceased and Suresh PW-11, the brother-in-law of the deceased identified the dead body recovered by the police on 30.1.1996 as that of Ashok Singh. 10. At the mortuary, Dr.Ashok Jaiswal PW-21 conducted the post-mortem on 1.2.1996 and penned his report Ex.PW- 21/A recording therein the following 10 injuries on the person of the deceased:- “1. Lacerated wound on upper lid of left eye 1” x 1/3” x 1/4” with bruising around. 2. Haematoma on left frontal eminence 1½” x 1”. 3. Bruise on dorsom of nose ½” x ¼", abrasion on tip of nose ¼” x ¼” with fractured nasal bones. 4. Abrasion on left malaregion ¼” x ¼” and 3/4” x ¼”. 5. Abrasion on left temporal region ½” x ¼”. 6. Lacerated wound on chin 3/4” x 1/4”. 7. Linear scratches on back of left hand 1cm, 1.5cm and .5cm. 8. Crescentric abrasions on back of right index finger and middle finger 3 mm each. 9. Bruise on right ear upper part 1 x ½”. 10. There was a ligature constriction mark present in front of neck almost horizontally and circling middle part of neck over and just below thyroid prominence brownish in colour with abraded and bruise margins with a width varying 1.5 cm x 2 cm, running horizontally place 5 cm below angle of mandible on left side margins abraded and bruise with a width of 1 cm x 1.2 cm to posterior hairline. On right side it was dark brown in colour parchment like with a width Crl.A.Nos.485/2001 & 803/2001 Page 9 of 38 varying from 1.5 cm x 2 cm placed 4.8 cm below angle of mandible to posterior hairline.” 11. He opined that the cause of death was asphyxia consequent to ligature constriction of the neck. The probable time of death was opined to be 2½ days prior to the date when post-mortem was conducted. After the post-mortem, along with the report he handed over the clothes of the deceased and a blood sample to HC Ruda Khan PW-12 who took possession of the same as recorded in the memo Ex.PW-12/A. 12. There is no evidence on record as to how Inspector Mohan Singh PW-20 came to know that the deceased had left his house in his TSR No.DL-1RA-1592, but he did learn said fact from some source, for the reason he flashed a wireless message to all the police stations in Delhi requiring his police station to be informed if the TSR was spotted by any police personnel in Delhi. At this stage we may note that probably the said information was given to him by either the wife or the brother or the brother-in-law or the friend of the deceased i.e. either one of PW-1, PW-6, PW-10 and PW-11. But, we do not find on record or even any reference in the testimony of anyone of said witness or the investigation officer that the statement of anyone of them was recorded in which said fact was told by either one of them to the investigating officer. Crl.A.Nos.485/2001 & 803/2001 Page 10 of 38 13. Since information had been flashed to all police stations to report, if cited, the whereabouts of TSR No.DL-1RA- 1592, and since the said TSR had been spotted and removed to PS Suraj Pur on 30.1.1996 by Const.Ashok Kumar and HC Rahat Singh, said information was transmitted to Inspector Mohan Singh who deputed ASI Surender Singh PW-5 and HC Devender Pal PW-15 to take possession of the TSR and accordingly the two took possession of the TSR (Ex.P-8) as recorded in the memo Ex.PW-5/A and deposited the same in the Malkhana of PS Anand Vihar. 14. It remained a blind murder. Inspector Mohan Singh PW-20, the investigating officer could make no headway. 15. Inspector S.N.Khan PW-28 in the District Crime Cell was handed over with the investigation on 26.3.1996. On the same day he recorded the statement Ex.PW-1/DA under Section 161 of Smt. Asha PW-1, the wife of the deceased and the statement Ex.PW-7/DA of Vinod Kumar PW-7, the employee of the brother of the deceased. Whereas, Smt. Asha stated that her husband was the owner of the TSR in question and on 29.1.1996 had left from the house with the TSR at 6:30 PM informing her that he was going to meet his brother Manohar Singh; Vinod Kumar stated that on 29.1.1996 at around 7:30 PM the deceased had come to the office of Delhi Nainital Crl.A.Nos.485/2001 & 803/2001 Page 11 of 38 Transport Co. where his brother was employed and that he was accompanied by another boy aged about 24-25 years. 16. On 29.3.1996 Inspector S.N.Khan recorded the statement of Manohar Lal PW-6, the brother of the deceased, and the proprietor of Delhi Nainital Transport Co. who also stated that at around 7:30 PM on 29.1.1996, his brother i.e. the deceased had met him in his office and that he had seen a boy in the TSR along with his brother. On the same day i.e. 29.3.1996 Inspector S.N.Khan recorded the statement of Mahender Kumar PW-8 to the effect that he had come to the police station to give some relevant information as he had seen a poster published by the police at Pehlwan Dhaba, Noida. He informed that at around 5:30/6:00 AM on 30.1.1996 when he was driving on the Dadri – Noida Highway in his Maruti van and had reached near Ruchi Chemical Industries he saw two boys waving and he stopped his van. The two boys requested him to lend a spanner telling him that they needed the same to change the wheel of their TSR as the same had got punctured. He drove off telling them that the spanner used in a Maruti van is unfit to be used in a TSR and that he saw the TSR No.DL-1RA-1592 which was parked on the other side of the road. That the poster which he had seen was that Crl.A.Nos.485/2001 & 803/2001 Page 12 of 38 of one of the two boys he had seen in the wee hours of 30.1.1996. 17. The appellants were apprehended on 30.3.1996. Inspector S.N.Khan interrogated them and recorded their statements, which we note are nothing but confessional statements and hence completely inadmissible in evidence, save and except the disclosure of Sanjay, pursuant whereto he led Inspector S.N.Khan to a spot and pointed out a place wherefrom a belt was recovered. In his statement Ex.PW-7/A Sanjay disclosed that the belt used to strangulate the deceased was kept by him in the house of his in-laws and that he could get the same recovered. Thereafter, he led Inspector S.N.Khan to the house of his in-laws in Gali No.9, Bihari Colony and from a room adjoining the kitchen pointed out towards a hanger on which was placed a leather belt which was seized vide seizure memo Ex.PW-7/C. 18. On 3.4.1996, Inspector S.N.Khan recorded the statement of Iqrar Ahmed PW-2, as per which on 29.1.1996 he i.e. Iqrar Ahmed was a good friend of Mohd. Rashid and both of them used to consume Ganja. That at 6:00 PM on 29.1.1996 Rashid met him and enquired whether he i.e. Iqrar Ahmed had taken Ganja to which he replied that he had not taken Ganja. At the instance of Rashid both boarded a bus from Jafrabad for Crl.A.Nos.485/2001 & 803/2001 Page 13 of 38 Kodi Colony and on reaching there Rashid called Sanjay @ Mangal. The two i.e. Rashid and Sanjay left leaving him at a tea stall and returned after sometime having consumed Ganja. The three came out of the colony and saw Ashok Singh, a scooter driver, standing at the corner of the street. Rashid and Sanjay had a talk with Ashok. They had some talk. Sanjay told that he would drive the scooter as Ashok was drunk. Whilst Sanjay drove the scooter the three i.e. Rashid, Ashok and he i.e. Iqrar Ahmed sat in the rear seat and reached Apsara Border. Rashid purchased two pouches of liquor. Sanjay and Rashid consumed the liquor and Ashok consumed Ganja. They sat there for about 2 hours. Even he i.e. Iqrar Ahmed smoked Ganja. Thereafter all left the spot with Sanjay driving the scooter and after crossing a railway bridge nearby, Sanjay stopped the scooter and he i.e. Sanjay and Rashid brought out Ashok from the vehicle who was completely intoxicated. Sanjay handed over his belt to Rashid who used the same to form a noose around the neck of Ashok. Thereafter both Sanjay and Rashid strangulated Ashok. He i.e. Iqrar Ahmed cried due to fear. Sanjay and Rashid threatened to kill him if he discloses anything to anybody and that due to fear he sat down silently. Thereafter Sanjay and Rashid put the body of Ashok in the TSR and even he sat in the TSR which was driven by Sanjay towards Vivek Vihar and on the way next to a nala Crl.A.Nos.485/2001 & 803/2001 Page 14 of 38 opposite Jagat Puri the two dumped the body in a pit as their attempt to throw the same in the nala failed. He was once again threatened to keep his mouth shut. That he was volunteering the information as he no longer feared because he had learnt that the accused were arrested. 19. On 10.4.1996, Iqrar Ahmed was produced before the learned Metropolitan Magistrate Sh.Alok Aggarwal PW-23 and his statement Ex.PW-2/A under Section 164 Cr.P.C. was recorded, in which Iqrar Ahmed stated as under:- “I reside at 241, Block 22, Welcome, Delhi and drive a scooter (TSR). I was introduced to Mohd. Rashid through one of my friend Sajid. He also drive a scooter. I develop friendship with Mohd. Rashid. On 29.1.1996 at about 6:00 PM Rashid met me and asked me whether I had Ganja with me or not. We both sometimes used to smoke Ganja together. I told him that I do not have Ganja with me. At his instance, both of us boarded a bus from Jafrabad for Kodhi Colony. On reaching there one Mangal @ Sanjay Kumar called out Rashid. Both of them, making me to sit at a tea stall, came back within 5-10 minutes after taking Ganja. Then all the three of us started coming out of Kodhi Colony, one Ashok was standing at a corner of the gali. He was also a scooter driver. Rashid and Mangal after having some talks with each other, called out Ashok. He came to us taking his vehicle (TSR No.DL-IR-1592). After exchanging greetings with each other, Mangal told Ashok that he would drive the vehicle as Ashok was under the influence of liquor. Now said, Rashid had said that he would drive the vehicle. Then Rashid drove the vehicle and all the three of us sat on the rear seat. Rashid took the vehicle to Apsara Border. From there Rashid took two pouches of liquor and Mangal and Rashid consumed liquor. The offered “Ganja” and got the same smoke to Ashok. We remained sitting there for two/two and a half hours there. I also smoke Crl.A.Nos.485/2001 & 803/2001 Page 15 of 38 Ganja there. Thereafter Mangal drove the vehicle and he took the same to railway bridge. After crossing the bridge, Mangal stopped the vehicle at some distance. Mangal and Rashid brought Ashok out of the vehicle. Ashok was under the state of complete intoxication. Mangal handed over his belt to Rashid and Rashid put a noose of the belt around the neck of Ashok and then both of them pulled the same. Ashok fell down after the noose of the belt was pulled for about 5-7 minutes. When I cried out, both of them threatened me that in case I uttered anything, I would be killed, as they were very much infuriated so I sat down silently out of fear. Both of them made Ashok to sit down in a side in the TSR and Rashid sat down while holding him. I had sat down on the other side of Rashid till then Ashok had died. Mangal brought the vehicle towards Vivek Vihar. Then he, passing opposite Karkardooma Court stopped the vehicle near the nala opposite Jagat Puri. Then Rashid and Mangal dragged out the dead body of Ashok from the vehicle and standing by the side of a wall, threw the dead body in a pit by the side of the wall. They had tried to throw the dead body in the nala but the same could not fall in the nala. Mangal again threatened me and they dropped me at Welcome by that very vehicle and then both of them left by the same vehicle. Two/three days thereafter Rashid met me and he again threatened me that in case I disclose anything to anyone, I will be done to death. Due to fear I did not disclose anything to anyone. Then I came to know that Rashid and Mangal have been arrested, so I went to Inspector Noor Khan and disclosed everything to him. I still apprehend danger from Rashid and Mangal.” 20. On 8.4.1996, the appellants were taken for test identification proceedings which were supervised by Sh.Alok Aggarwal PW-23 the learned Metropolitan Magistrate. Crl.A.Nos.485/2001 & 803/2001 Page 16 of 38 Whereas Sanjay refused to join the TIP, Rashid was duly identified by Mahender Kumar PW-8. 21. Needless to state the appellants were sent to trial with the charge of having murdered Ashok Kumar and destroying evidence. As noted above, for the reasons recorded in para 38 of the impugned decision, with reference to the testimony of PW-6 and PW-7 i.e. the deceased being last seen as claimed by them in the company of Sanjay as also with reference to the testimony of PW-8 who claimed to have seen both appellants near the TSR in the morning of 30.1.1996, further noting that whereas Sanjay refused to join TIP and Rashid was identified by Mahender Kumar at the TIP, the learned