* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 3rd November, 2011
+ Crl.A.No.201/1999
AAS MOHD ....Appellant.
Through : Mr.Anil Soni with Mr.Sarfaraz,
Hussain and Mr.M.M.Shukla
Advocates
versus
STATE ...Respondent.
Through: Mr.Pawan Sharma, Standing
Counsel (Crl.) with Mr.Harsh
Prabhakar, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE S.P.GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
S.P.GARG, J. (Oral)
1. Vide impugned judgment dated 3.3.1999 the
learned Trial Judge, in para 21 of the impugned decision, with
reference to the evidence led has opined that following
circumstances stand established:-
(i) On 25th of June, 1995 (in the morning hours)
dead body of an unknown person was found lying in
front of the house of witness Mustfa.CrlA.No.201/1999 Page 1 of 11
(ii) There was an incised stab wound over the back
of the dead body.
(iii) The dead body was smeared with blood.
(iv) Blood trails led the police party to H.No.B-248,
Gali No.2, Indra Vihar, Delhi.
(v) There was blood spot inside the house.
(vi) There was blood on the door of the house.
(vii) Wooden piece Ex.P.1 was recovered from the
said house.
(viii) There was blood of ‘A’ group on the said wooden
piece.
(ix) That the said house belonged to the accused.
(x) Exhibits were lifted from the spot as well as from
the house of the accused.
(xi) On 26.6.1995, accused was arrested.
(xii) Shirt Ex.P.4 having blood stains of ‘A’ group was
seized from him, which he was wearing at that time.
(xiii) Knife Ex.P.3 was recovered at the instance of the
accused, from his house.
(xiv) Clothes of the deceased were seized and handed
over to the police by Dr.Anil Kohli.
(xv) Exhibits were kept intact at the malkhana and
were sent to FSL.
(xvi) Injuries mentioned in post-mortem report were
possible by knife Ex.P.3.
(xvii) There was human blood on knife Ex.P.3.
CrlA.No.201/1999 Page 2 of 11
(xviii) Human blood of ‘A’ group was on Ex.P.1
and Ex.P.4.
(xix) Blood of the deceased was of ‘A’ group.
2. It is apparent that the incriminating circumstances
against the appellant would be: (a) proof of the fact that blood
trail from where the dead body was found led up to House
No.B-248, Gali No.2, Indra Vihar, Delhi where the appellant
lived; (b) blood spots noted inside the house where the
appellant lived and the door of the house as also wood piece
Ex.P-1 lifted from the house on which human blood of the same
group i.e. ‘A’ as that of the deceased was detected; (c) knife
Ex.P-3 on which human blood was detected being recovered
pursuant to the disclosure statement made by the appellant
and at his instance; and (d) shirt Ex.P-4 worn by the appellant
when he was arrested being detected with human blood of the
same group as that of the deceased.
3. The process of criminal law commenced when DD
No.27 was recorded at 4:30 a.m. on 25th of June 1995 at police
post Johripur under jurisdiction of P.S. Gokul Puri recording
information that a dead body of a person was lying at the
corner of the drain, near temple, Chaman Park, Indra Vihar,
Delhi. As deposed to at the trial by HC Mangal Prasad PW-2 he
was entrusted with copy of DD No.27, Ex.PW-2/A, and as he
reached House No.B-71 Indra Vihar, in which Mustfa PW-1
resided he found a person lying dead in the street and he
informed the SHO on wireless. As deposed to by Insp.Bharat
Singh PW-8, the SHO, he reached the place of the crime
CrlA.No.201/1999 Page 3 of 11
accompanied by Ct.Raj Kumar PW-3 and by then, as deposed to
by ASI Balwant Singh PW-5, while patrolling the area, even he
reached the place of the crime.
4. Relevant would it be to note that all four i.e. HC
Mangal Prasad PW-2, Insp.Bharat Singh PW-8, Ct.Raj Kumar
PW-3 and ASI Balwant Singh PW-5 have deposed in sync with
each other that from the place where the dead body was found
they saw a trail of blood till House No.B-248 Indra Vihar in
which appellant lived. But, whereas HC Mangal Prasad and
Ct.Raj Kumar concluded their deposition by saying that they
saw blood at the door of the house in which appellant lived, ASI
Balwant Singh and Insp.Bharat Singh deposed that they saw
blood spots inside the house as well.
5. Whereas HC Mangal Prasad and Ct.Raj Kumar have
not deposed to any exhibit being lifted from inside the house,
ASI Balwant Singh and Insp.Bharat Singh have deposed that
the piece of wood Ex.P-1 and a pair of chappal Ex.P-2/1 and
Ex.P-2/2 were seized from House No.B-248 Indra Vihar.
6. Further case of the prosecution before the learned
trial court is that the wife of the appellant was found inside the
house and on interrogation she revealed that the deceased was
having objectionable relations with her and the appellant had
stabbed him with a knife inside the house and had thrown the
dead body outside the house of one Mr.Mustfa i.e. PW-1.
7. As per the prosecution, on 26.06.1995 i.e. the next
day, on receipt of secret information about the presence of
appellant at his house, HC Rishi Pal PW-6 and Insp.Bharat Singh
PW-8 reached there and apprehended the appellant outside his
CrlA.No.201/1999 Page 4 of 11
house and upon interrogation made a disclosure statement
stating that he could get recovered the knife used by him to
stab the deceased and thereafter from under a bed in the room
of his house got recovered the knife Ex.P-3. Shirt Ex.P-4 worn
by the appellant was noticed with blood stains thereon and
hence was seized.
8. As per FSL report Ex.PW-16/A and Ex.PW-16/B
human blood having ‘A’ group i.e. the blood group of the
deceased was detected on the piece of wood and the shirt.
Human blood was detected on the knife, group whereof could
not be ascertained.
9. Mustfa PW-1 the stated witness to the seizure of the
wood piece Ex.P-1 and the pair of chappals Ex.P-2/1 and Ex.P-2,
denied seizure thereof in his presence.
10. Photographer Ct.Ravinder Singh PW-4 took the
photographs Ex.P-5 to Ex.P-11, and unfortunately save and
except Ex.P-8 all pertain to the place outside the house where
appellant statedly resided and Ex.P-8 throws no light on any
blood stain inside the house.
11. Dr.Anil Kohli PW-7 who conducted the post-mortem
proved the post-mortem report Ex.P-7/A as per which a solitary
stab wound at the middle centre of the sternal notch pierced
the upper lobe of the right lung causing death resulting from
haemorrhagic shock and as per his opinion Ex.P-7/B, if the tip
of the knife Ex.P-3 was not bent, the injury which caused the
death could have been inflicted by the knife in question.
12. Having perused the evidence led it strikes us that
during investigation, no attempt was made to ascertain the
CrlA.No.201/1999 Page 5 of 11
identity of the deceased. ASI Balwant Singh PW-5 in the cross-
examination admitted that name of the deceased could not be
ascertained though they had interrogated people from the
locality about the identity of the deceased. Wife of the
appellant also did not give name of the deceased. The witness
further admitted that till date the identity of the deceased
could not be established. None of the person in the locality
knew the deceased. None of them informed the police that the
deceased was ever seen in the locality.
13. The prosecution has failed to render plausible
explanation as to why the identity of the deceased could not be
established during investigation. Nothing has come on record
as to what was the name of the deceased and the place where
he used to reside. Nothing has come on record as to how and
under what circumstances the deceased happened to be
present there to be stabbed by someone. No sincere efforts
seem to have been made by the police to ascertain the identity
of the deceased during investigation. Identity of the deceased
becomes relevant because as per the prosecution, the
deceased was having intimate relationship with the wife of the
appellant. Had it been so, the wife of the appellant must have
disclosed the identity of the deceased. An unknown stranger is
not imagined to have intimate relation with the wife of the
appellant or to have dare to go inside the house of the
appellant during odd hours at night and that too with the
appellant present inside the house. Inaction/negligence of the
police to establish the identity of the deceased is an adverse
circumstance against the prosecution to establish the motive of
CrlA.No.201/1999 Page 6 of 11
the appellant to commit murder. There is nothing on record to
show if the appellant had suspected fidelity of his wife at any
time or that he had ever suspected the deceased to visit his
house to have objectionable relation with his wife. No quarrel
is alleged to have taken place of the appellant with his wife of
her having any relations with the deceased. The appellant was
not aware about the visit of the deceased to his house to make
a plan in advance to stab him on the intervening night of 25th
and 26th of June, 1995.
14. Appellant’s wife has not been examined as a
witness, notwithstanding she being a relevant witness if we
accept the testimony of the four police officers who, as per
their testimony had reached the place where the murder took
place.
15. Mustfa PW-1 has not deposed of having seen blood
inside the house where appellant lived. As noted herein above,
two of the four police officers who had reached the place of the
crime have not deposed to have seen blood inside the house of
the appellant. Only two police officers, namely, ASI Balwant
Singh PW-5 and Insp.Bharat Singh PW-8 have deposed to have
seen blood spots inside the house where the appellant lived,
but for reasons best known to them, they did not bother to lift
the blood on a piece of gauze or swab of cotton. In fact,
Insp.Bharat Singh PW-8 has categorically admitted during
cross-examination that no blood was lifted from inside the
house of the accused. This seriously dents the credit of the
version of the prosecution that there were blood spots inside
the house where the appellant lived.
CrlA.No.201/1999 Page 7 of 11
16. The post-mortem report Ex.P-7/A does not show any
injury being caused on the person of the deceased with a blunt
object and thus it remains a mystery as to how a blood-stained
piece of wood Ex.P-1 was found inside the house of the
appellant. The post-mortem report, to which we have referred
to herein above with respect to the situs of the injury on the
person of the deceased would reveal that the plural cavity
contained two litres of blood; the reason was obvious: the
solitary stab wound had pierced the upper lobe of the right
lung of the deceased. The injury is of a kind where it was the
internal bleeding which was profuse and not the muscular
bleeding of the chest muscles and tissue which was profuse.
The trail of blood from outside House No.B-248, Indra Vihar up
to House No.B-71 Indra Vihar, covering a fairly large distance of
probably about 200 metres, as per rough site plan Ex.P-8/B
throws light on the fact that the deceased stumbled towards
House No.B-71 Indra Vihar. There being no bruises on the dead
body rules out either the dead body being dragged or the
injured victim being dragged from outside House No.B-248 to
House No.B-71. Under the circumstances it would be doubtful
whether a solitary stab wound of the kind which we have
noticed in the instant case would result in blood spilling at the
place where the stab was inflicted thereby staining a piece of
wood lying nearby.
17. We need to speak a word about the shirt Ex.P-4 with
blood stains thereon being recovered by the police when the
appellant was apprehended the next day after the crime was
committed. The appellant is not a vagabond. He lived in his
CrlA.No.201/1999 Page 8 of 11
own house with his wife. It is most improbable that he would
continue to wear a blood stained shirt which he was wearing
when he committed the crime, if at all. We also need to speak
a word about appellant being arrested the next day from his
house. If indeed, he had committed the offence and having
knowledge that the police knows about the crime being
committed and that there was a trail of blood between his
house and the place where the dead body was recovered, it is
most unnatural for him to be in his house, to be arrested by the
police.
18. The only evidence with respect to the blood of the
deceased would therefore be the trail of blood from outside the
house of the appellant till the house of Mustfa. Now, the time
when the crime took place assumes importance. It was around
4:30 a.m. of 25th June 1995. Dawn was just about breaking.
People would be in their slumber by and large and that
explains nobody hearing the shrieks of the deceased and this
does not rule out the possibility of anybody stabbing the
deceased on the street outside the house of the appellant and
the deceased walking towards a place where he could find
rescue. Unfortunately, the prosecution has made no attempt
to find out the identity of the deceased or the place where he
lived. The rough site plan Ex.P-8/B shows that to reach from
House No.B-248 one has to walk first towards the North and at
the T-junction towards the east and at the next T-junction, once
again towards the North and at the first lane towards the West
to reach House No.B-71. The trail of blood would show that in
an injured condition, the deceased first moved towards the left
CrlA.No.201/1999 Page 9 of 11
from outside House No.B-248, then towards the right, followed
by a movement in the left direction and once again, in the left
direction by taking a 90 degrees turn. This also establishes, in
any case does not rule out the possibility, of the deceased,
whilst he was injured, proceeding to a place where he could
find a rescue.
19. There are traces of contrivance pertaining to the
recovery of the knife Ex.P-3 at the instance of the appellant.
Apart from Mustfa PW-1 categorically deposing that no
recovery or seizure of a knife, much less Ex.P-3 was effected in
his presence we find Mustfa’s signatures on the seizure memo
Ex.PW-6/D pertaining to the seizure of the knife, but on the
seizure memo Ex.PW-6/E whereunder the shirt Ex.P-4 was
seized, we find Mustfa not being a witness although the
Investigating Officer claims both seizures made in presence of
Mustfa. That apart, as held by the Supreme Court in various
decisions and we may only note a few, JT 2008 (1) SC 191 Mani
vs. State of Tamilnadu, 1994 (4) SCC 110 Surjit Singh vs. State
of Punjab, and AIR 1963 SC 113 Prabhu vs. State of U.P.,
recoveries of ordinary articles such as a knife or a piece of
clothing is always considered as very weak evidence.
20. Therefore, the only incriminating evidence we have
is a trail of blood from outside the house of the appellant till the
house of PW-1 and at best the recovery of a knife and that too
also with a taint, which was the possible weapon of offence and
the recovery, that too with a taint, of the shirt which the
appellant was wearing when he was apprehended the next day
on which human blood of the same group as that of the
CrlA.No.201/1999 Page 10 of 11
deceased was detected, the said circumstantial evidence may
only point the finger of guilt towards the appellant but does not
rule out the possibility of his innocence and hence the
appellant would be entitled to the benefit of a doubt.
21. The appeal is allowed. Impugned judgment and
order dated 3.3.1999 convicting the appellant for the offence of
murder is set aside and the appellant is acquitted of the charge
framed against him. Needless to state, the order on sentence
dated 8.3.1999 is also quashed.
22. Since the appellant is on bail, the bail bond and
surety bonds furnished by him are discharged.
(S.P. GARG)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
November 03, 2011
sa/tr
CrlA.No.201/1999 Page 11 of 11