IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on : January 27, 2009
Judgment delivered on : February 02, 2009
CRL.A.915/2004
02.02.2009
ASLAM .....
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?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J.
1. This is a case of false implication. The police has contrived
to fabricate evidence and unfortunately had succeeded in pulling wool over the
eyes of the learned Trial Judge, who has chosen to proceed on the assumption
that the police officers always tell the truth and that they never manipulate
witnesses. Lulled into a slumber, the learned Trial Judge has ignored material
contradictions and variations in the deposition of the witnesses of the
prosecution. The learned Trial Judge has failed to note the inherent
improbability of the nature of evidence sought to be brought on record through
the testimonies of Ram Avtar PW-17, as also Bhola PW-11, who, on being declared
hostile were cross-examined at length by the learned Public Prosecutor.
2. As per the charge-sheet filed by the prosecution, the case of
the prosecution was that deceased Shamima was offering herself for sex in lieu
of monetary consideration and that Ram Avtar PW-17 was acting as a pimp. That
on 29th January 2001 the appellant had a desire to have sexual intercourse with
a prostitute and went to Ram Avtar for a prostitute to be supplied to him and
that Ram Avtar contacted the deceased Shamima who was in touch with Ram Avtar so
that he could find customers for her. That accordingly, the deceased went along
with the appellant, to have sexual intercourse, at the tenanted house of the
appellant i.e. A-326 Buddha Market, Mandawali, Zedi Market, Delhi. That it was
agreed by the deceased that she would get Rs.200/- after satisfying the desire
of the appellant and after she did so, she demanded Rs.300/-, which sum was
refused to be paid by the appellant. The deceased threatened the appellant that
she would implicate him in an offence of rape. At that, the appellant
strangulated her and threw her body in the house of Nasir PW-3, being house
No.B-149 Chand Masjid, Mandawali, Delhi. He did so by the mid-night of
30.1.2001 and went to the house of Rajaram PW-2 and used Rajaram?s phone to ring
up the police at 100 and disclosing himself to be Shankar, informed the police
that a quarrel had taken place at Chand Masjid. The police reached Chand Masjid
and found that no quarrel had taken place but noted the door of a house half
open and the inquisitive police officials entered through the door and saw a
dead body of a female inside the room, which happened to be a toilet. The news
spread in the locality and the body was identified as that of Shamima, resident
of House No.B-235, Gali No.3, Near Memdi Masjid, Mandawali, New Delhi. Rajaram
PW-2, had also received information of a dead body being found and police
arriving at the spot on hearing that a fight had taken place at Chand Masjid.
He knew the appellant, who was from the same village in Bihar i.e. the native
village of Rajaram and told the police that the appellant had rung up the police
from his house wrongly disclosing his name to be Shanker as the informant.
Obviously, the suspicion fell on the appellant who was apprehended by the police
on 1.2.2001. According to the charge-sheet, the appellant made a disclosure
statement Ex.PW-3/B and confessed to the crime after disclosing how he had
promiscuous sex with the victim and the circumstances under which he was
compelled to kill her. He disclosed that when the deceased resisted him as he
was strangulating her, a glass bangle worn by the deceased broke and an ear top
fell in the room where the incident took place. He offered to have the same got
recovered and led the police to his house where-from an ear top of the deceased
and pieces of broken bangle were recovered on 1.2.2001. It was the case of the
prosecution that thereafter, on 4.2.2001, the appellant got recovered a chunni
used by him to strangulate the deceased from a suitcase in his house.
3. Needless to state, police swung into action when at 3.40 AM on
30.1.2001 a telephonic message was received at the PCR from a person who
disclosed his name as Shanker, informing that a quarrel is going on at Chand
Masjid, Mandawali.
4. The PCR flashed a message to the police station concerned. ASI
Brij Pal Singh PW-20, accompanied by SI DK Tejwan PW-22, reached Chand Masjid,
Mandawali but did not notice any quarrel. But, noting the door of a house half
open and inquisitively entering through the door, stumbled upon the dead body of
a woman lying inside the toilet. The house happened to be that of Nasir PW-3.
Its number is B-149, Chand Masjid, Mandawali.
5. The news spread in the locality. People gathered. On the dead
body being found in the house of Nasir, Shazad Ali PW-5, who was the Pradhan of
the area was called. Shazad Ali stated that possibly the deceased was Shamima,
sister of Munni. Munni is actually Anwari Begum PW-1, who was summoned and
reached the spot at around 4.00 AM and identified that the dead body was that of
her sister Shamima. Her statement Ex.PW-1/A was recorded by Inspector GS
Randhawa PW-26, the SHO of the police station, who had reached in the meanwhile.
He made an endorsement thereon and forwarded the same for registration of the
FIR through Inspector BP Sharma PW-23. The FIR was recorded at the police
station by HC Kusum Pal PW-19 at 8.50 AM.
6. The dead body of Shamima was sent to Lal Bahadur Shastri Govt.
Hospital where Dr.L.C.Gupta PW-13, conducted post-mortem on 31.1.2001 and gave
his report Ex.PW-13/A. He recorded therein that there were ligature marks and
abrasions on the mid one-third neck. Nail scratch abrasions were noted by him
on the right side of the mid one-third neck. He opined that the deceased died
due to asphyxia resulting from strangulation by means of ligature material which
is sufficient to cause death in the ordinary course of nature.
7. Being relevant to note, in relation to the testimony of the
husband of the deceased Kammuddin PW-8, Dr.L.C.Gupta PW-13 noted on the MLC that
the deceased was poorly nourished and was severely anaemic.
8. In his statement recorded under Section 161 Cr.P.C. Rajaram PW-
2, disclosed to the police that the appellant had come to his house and rung up
the police to give the information which resulted in the police reaching the
spot and had wrongly disclosed his name to be Shanker. The police set about to
apprehend the appellant, who as per the police, voluntarily surrendered at the
police station on 1.2.2001 and made a confessional statement Ex.PW-3/B before
the SHO Inspector GS Randhawa which was recorded by SI DK Tejwan PW-22.
9. In the meanwhile, after the post-mortem of the deceased was
conducted and her body was handed over to her husband Kamuddin PW-8, he took the
dead body to the house for burial and bathed the body and removed a chain and
one ear top from the dead body. A glass bangle worn by the deceased got broken
and pieces thereof were collected by him. The police seized vide seizure memo
Ex.PW-5/2 only the chain and the pieces of the broken bangle.
10. Since Ex.PW-3/B, the disclosure statement of the appellant,
disclosed that after committing sexual intercourse with the deceased and on the
issue of money a fight erupting and he having strangulated her; in the process a
glass bangle of the deceased getting broken as also an ear top falling in the
room where the act was committed, he accompanied the police to the room in
question. At the spot, vide seizure memo Ex.PW-5/1, an ear top as also broken
pieces of glass bangle were recovered, ostensibly at the pointing out of the
appellant.
11. Three days later, on 4.2.2001, the appellant again took the
police to his room and from a suitcase therein got recovered a chunni which was
seized vide seizure memo Ex.PW-6/1. The chunni is stated to be the weapon of
offence.
12. Bhola PW-11, was a person contacted by the police. He is a
vagabond lad aged 12 years when he deposed in the Court on 19.9.2002. He
ostensibly told the police as recorded in his statement under Section 161
Cr.P.C. that on 29.1.2001 he had gone to the room of the appellant as he knew
the appellant and that the appellant opened the door when he knocked. He saw a
woman lying on the cot crying ?bachao?. He ostensibly told the police that the
appellant told him to run away and thereafter he closed the door. He claimed to
have peeped from the gap between the door and the floor and saw that Aslam sat
on top of the woman and strangulated her to death. After that, Aslam opened the
door and on seeing him standing, gave him Rs.2/- and asked him to bring a deck.
That he ran away thereafter.
13. That the deceased was supplied to the appellant, was as per
the statement of Ram Avtar PW-17, a photographer by profession; statement being
recorded under Section 161 Cr.P.C. He ostensibly told the police that the
deceased had told him that her husband was not looking after her and she needed
money for sustenance and offered herself for sex. He used to find customers for
her and that on 29.1.2001 he supplied her to the appellant for the sexual
gratification of the appellant.
14. Armed with the afore-noted witnesses and hoping that the
witnesses would support the case of the prosecution and pinning its case on the
recovery of one ear top of the deceased and broken pieces of a bangle of the
deceased from the room of the appellant and hoping that her husband would
corroborate them that indeed the said ear top was that of his wife and that the
broken bangle pieces were a part of the bangles worn by his wife, the
prosecution proceeded to file the charge-sheet, indicting the appellant with the
offence of murdering Shamima.
15. The most incriminating evidence against the appellant which was
sought to be brought on record was the alleged recovery of the ear top and the
broken pieces of glass bangle recovered from his room.
16. While deposing as the witness of the prosecution, Kamuddin,
husband of the deceased who was examined as PW-8 deposed as follows:-
?After post-mortem of the dead body the dead body of my wife was handed over to
me on 31.1.2001, vide memo Ex.PW-1/B which bears my signatures at point B. I
took the dead body at my house and bathed the dead body. At that time I had
removed a chain from her neck which was of white metal and a bangle from the
left hand. The bangle broke into three pieces while I was removing the same
from her hand. I had also removed one top from her left ear. I handed over the
same to the IO of the case who had taken the same into possession after sealing
the same into a parcel with the seal GSR vide memo Ex.PW-5/2 which bears my
signature at point B.?
17. With reference to the recovery of an ear top from the room of
the appellant, he went on to depose that after the appellant made a disclosure
statement before the police, he accompanied the police party to the residence of
the appellant and that :
?Near the drum an ear top was lying. Aslam picked up that top and handed over
the same to the police. I had identified that top as the top of my wife which
she used to wear in her ears. Near the folding bed, 3 ? 4 pieces of broken
bangles were lying. Those were also of white colour, and was the same pieces of
bangle which my wife used to wear in her hands. The pieces of broken bangles
which were recovered from the room of the accused at my instance and the pieces
of bangles which were broken which I had produced to the police, in the above
said manner were the same. The police had seized the above said recovered top
and pieces of bangle in a parcel with the seal of GSR and taken into possession
vide memo Ex.PW-5/1. My statement was recorded and I was discharged.?
18. Surprisingly enough, Ex.PW-5/2, the seizure memo omits the
seizure of the ear top. It only records seizure and sealing of a chain and
three pieces of glass bangle.
19. Deposing as PW-26 Inspector GS Randhawa, with respect to the
testimony of the chain and the pieces of broken bangle handed over by Kamuddin
to him deposed as under:-
?Thereafter we went to the house of Kamuddin the husband of the deceased.
Kamuddin had produced a chain Ex.P-2 and broken bangle Ex.P-3 which he had
removed from the dead body of his wife deceased Shamima. I seized the above
said chain and broken pieces in the parcel and sealed the same with my seal GSR
and taken into possession vide memo Ex.PW-5/2. Seal after use was handed over
to PW Zaidi. Kamuddin had told me that there was one top in the ear of his
deceased wife and while they were bathing the dead body, the said top fell down
in a nali and could not be traced out. I recorded his statement in this regard
under Section 161 Cr.P.C. I had also recorded statements of other witnesses.
Thereafter we returned to the PS and deposited the case property with the
malkhana mohrar.?
20. It is relevant to note that as per PW-26, one ear top of the
deceased, as told to him by Kamuddin, had fallen down the drain and could not be
traced. As per Kamuddin he had noticed only one ear top on the left ear of his
wife which he handed over to the police. It is relevant to note that in the
seizure memo Ex.PW-5/2 there is no mention of the ear top being seized. It is
apparent that one ear top came in the possession of SHO GS Randhawa, which
obviously was planted at the spot. It is relevant to note that the house of the
deceased was searched on 1.2.2001. Kamuddin had handed over the ear top, the
chain of the deceased and the broken pieces of bangle of the deceased to the
police on 31.1.2001.
21. What was intended to be proved from Bhola PW-11 can be
ascertained from the questions put to him by the learned APP. We intend to note
the deposition of Bhola in its entirety.
22. After asking preliminary questions to ascertain whether Bhola
understood what was being queried from him and recording a satisfaction that
Bhola, aged 12 years, when he deposed could understand the questions, his
testimony was recorded which reads as under:-
?I know Aslam who is present in the Court today as he used to come to get his
clothes ironed from my neighbour but I do not know the name of the neighbour.
He used to do masonry job of constructing lenter of the roofs. He used to
reside in a jhuggi at a distance from my house. The jhuggi belonged to him. I
know how to drive a bicycle. I owned my own bicycle. I did not take Aslam?s
cycle for driving. I used to address Aslam as uncle. I did not see anything
happening in my presence about 1? years back in the winter season. I did not
see any dead body. I did not hear any cries. In the evening I take tuitions.
I do not know anything about this case. At this stage on the request of the APP
witness is allowed to put leading questions. It is incorrect that accused Aslam
was a tenant in the house in front of my house and that he used to visit us for
watching pictures on TV. I do not know if accused had subsequently taken on
rent H.No.A-126. It is incorrect that I used to visit Aslam in his house and I
used to drive his bicycle. It is incorrect that on 29.1.2001 at about 7 pm I
had gone to Aslam and that I had knocked the main gate for taking keys of his
bicycle. It is incorrect that Aslam had opened the door of the house and I saw
a woman lying on the cot inside the house and I heard the cries ?bachao?. It is
incorrect that Aslam asked me to run away and closed the door. It is incorrect
that from below I saw accused Aslam sitting on the woman and that I also saw
that Aslam had strangulated the woman from the neck. It is further incorrect
that the legs of the woman were struggling for some time and there after they
became silent and the woman died. It is incorrect that when Aslam opened the
door I was standing there. It is incorrect that Aslam gave me Rs.2/- and asked
me to bring deck. It is further incorrect that after some time I brought the
deck which Aslam took from me and put it inside and there after he closed the
door. I know Nasir who is living near Jama Masjid. It is incorrect that on the
morning of 30.1.2001 I saw the dead body of the same woman whom Aslam had killed
in his room lying in the latrine of Nasir. Police did not meet me in my house.
I was never summoned in the PS. I have never visited the PS. I did not make
any statement before the police. Statement mark X is read over to the witness
which he denied having made before the police. It is incorrect that I have been
threatened by the accused and that I have deposed falsely at the instance of my
father. I know that if a witness give a wrong statement, the Court punishes
him.?
23. It is apparent that the manner in which the police wanted Bhola
to prove having witnessed the crime is preposterous. No sane person who is in
the process of strangulating a person would open a door on hearing a knock and
allowing the visitor to have a look inside. Besides, if Bhola had indeed heard
the woman crying ?bachao? he would have summoned help for her by calling people
from the neighbourhood.
24. It is interesting to note that the suggestion given by the
learned APP to Bhola is that; is it correct whether he saw a woman lying on the
cot inside the house. Of course, Bhola has denied the same. But, was it
possible for a person to peep through the narrow gap between the floor and the
door and see a struggle going on, on a cot inside the room? The answer is
obviously a ?no?. Try and peep through the narrow gap between the door and the
floor. Not more than 6 to 8 inches of the opposite wall can be seen.
25. Rajaram PW-2 and his son Rajesh Kumar PW-10 deposed, as
directed by the police, that on the intervening night of 29th and 30th January
2001 at around 2.30 am the accused came to their house and made a telephonic
call to the police. Rajaram PW-2, additionally stated that the appellant
disclosed his name as Shanker to the police and that when the police came, he
told the police that Aslam was the person who had called, because he knew Aslam
as both were residents of Bihar.
26. The photographer Ram Avtar PW-17 did not support the case of
the prosecution and on being declared hostile was given suggestions pertaining
to his alleged statement recorded by the police under Section 161 Cr.P.C. to
the effect that he had told the police that Shamima was a prostitute and that he
had supplied Shamima to the appellant for satisfying his lust and she was to
receive Rs.200/- from the appellant.
27. Needless to state Ram Avtar PW-17 deposed that he never acted
as a pimp and that he earned his livelihood by running the business of a
photographer from a shop and that he had no concern with the deceased.
28. It is not out of place to record that as per the police Shamima
was murdered at the premises, by the appellant which he had taken on rent being
A-326 Buddha Market, Mandawali, Zedi Market, Delhi. The dead body was found at
B-149 Chand Masjid, Mandawali, Delhi and there is no evidence on record as to
how was the body transported from one place to another.
29. PW-6 Mohd. Sadiq Khan deposed of having witnessed the recovery
of a chunni from inside a suitcase lying in the house of the appellant.
30. In view of the post-mortem report that there were ligature
marks on the neck of the deceased and that the death was due to strangulation;
holding that the chunni recovered from the suitcase inside the house of the
appellant could have been used as the object to strangulate the deceased and
that the recovery of broken pieces of glass bangle and the ear top of the
deceased from the house of the appellant was sufficient incriminating evidence
to nail the appellant; believing Rajaram that the appellant was the one to rung
up police and wrongly gave his name as Shanker; believing Nasir?s statement
regarding the appellant having enmity with him which was the reason for dumping
the body of the deceased at his house, the learned Trial Judge has returned a
finding of guilt. The appellant has been convicted of the offence punishable
under Section 302 IPC and for destroying the evidence i.e. the offence
punishable under Section 201 IPC, we need not pen down much.
31. The learned Trial Judge failed to appreciate that there is no
evidence of how was the dead body transported from the house of the appellant
i.e. A-326 Buddha Market, Mandawali, Zedi Market, Delhi to the place where it
was recovered i.e. House No.B-149 Chand Masjid, Mandawali, Delhi.
32. Further, the ear top and the broken glass bangles being planted
in the house of the appellant stands established from the fact that Kamuddin
handed over only one ear top of his wife to the police as also a chain and
broken pieces of bangle but in the seizure memo Ex.PW-5/2 the police
deliberately omitted to record the seizure of the ear top. This ear top handed
over by Kamuddin to the police has been planted in the house of the appellant.
It is not out of place to re-note that SHO G.S. Randhawa PW-26 in his deposition
stated that Kamuddin had told him that when he was bathing his wife the other
ear top fell inside the drain and could not be retrieved; where Kamuddin has
categorically deposed that before the burial when he was bathing the dead body
of his wife he saw only one ear top on the left ear which he removed and handed
over to the police. He has also deposed of handing over broken pieces of
bangle; which had to be of glass; the ones which were recovered from the house
of the appellant were obviously planted.
33. The learned Trial Judge forgot why the appellant would have
gone to the house of a person known to him and rung up the police and disclosed
to the police a wrong name. Would any person do that?
34. Well not, unless he is mad.
35. A person would have given a wrong name over the telephone to a
person whom he called, obviously to hide his identity. What would be the motive
of the appellant to ring up the police, give a wrong name and furnish wrong
information of a quarrel going on at Chand Masjid?
36. Obviously to mislead the police to reach the spot with the hope
that the dead body would be recovered from the house of Nasir; the intention
would obviously be to falsely implicate Nasir.
37. But to give effect to this intention the appellant would
certainly not go to the house of a person known to him and give false
information and that too under an assumed name. Would he not know that Rajaram
would question him as to why was he disclosing his name as Shanker.
38. The learned Trial Judge has forgotten to note that Nasir PW-3
has categorically deposed that there was enmity between him and the appellant
and probably for said reason the accused had dumped the dead body in his house.
39. Could Nasir be not the culprit. Could Nasir not have contrived
with his versions to ring up the police and then go about falsely deposing that
it was the appellant who rung up the police styling himself as Shanker? These
are questions which arise and should have been considered by the learned Trial
Judge.
40. These questions assume significance because there is no
evidence of the appellant transporting the dead body from his house to the house
of Nasir.
41. The colony in question is a re-settlement colony. It is
densely populated. People move around in such colonies 24 hours a day. It is
not out of place to note that as per Rajaram PW-2 that Saraswati Puja was going
on in his house and hymns were being sung late night on the day the incident
occurred.
42. It is difficult to believe that nobody saw the dead body being
transported.
43. The learned Trial Judge failed to note that as per the MLC of
the deceased she was found severely anaemic and under-nourished. Obviously, her
husband was not caring for her. Had she been a prostitute, she would have
earned enough to keep the body physically fit, at least not in the condition in
which it was. It is difficult to accept that the deceased was a prostitute.
44. The false implication of the appellant is writ large. The
planting of the ear top of the deceased and pieces of broken bangle in the house
of the appellant is writ large.
45. The appeal is allowed. Impugned judgment dated 11.10.2004 and
order dated 14.10.2004 sentencing the appellant to undergo imprisonment for life
for the offence punishable under Section 302 IPC and to undergo rigorous
imprisonment for a period of 7 years for the offence punishable under Section
201 IPC as also the fine imposed upon the appellant is set aside.
46. The appellant is directed to be set free unless required in
some other case.
PRADEEP NANDRAJOG, J.
ARUNA SURESH, J.
FEBRUARY 02, 2009
Dharmender
Crl.Appeal No.915/04
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