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Delhi High Court
Mohd. Anis Ahmed vs The State Of The Nct Of Delhi on 13 October, 2011
Author: Badar Durrez Ahmed
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment delivered on 13.10.2011

+      CRL.A. 1225/2010

VIRPAL @ RAJU @ VIRA                                             ...      Appellant

                                       - versus -

THE STATE OF NCT OF DELHI                                        ...      Respondent

Advocates who appeared in this case:

For the Appellant            : Mr A. J. Bhambhani with Ms Nisha Bhambhani and
                               Ms Lakshita Sethi
For the Respondent           : Mr Sanjay Lao

                                              AND

+      CRL.A. 1236/2010

IBRAHIM @ GUDDU                                                  ...      Appellant

                                       - versus -

THE STATE OF NCT OF DELHI                                        ...      Respondent

Advocates who appeared in this case:
For the Appellant            : Mr Arun Sharma
For the Respondent           : Mr Sanjay Lao

                                              AND

+      CRL.A. 1426/2010

MOHD. ANIS AHMED                                                 ...      Appellant

                                       - versus -

THE STATE OF THE NCT OF DELHI                                    ...      Respondent

Advocates who appeared in this case:
For the Appellant            : Mr Rajesh Mahajan
For the Respondent           : Mr Sanjay Lao



CRL.A. Nos.1225/2010, 1236/2010 & 1426/2010                                Page 1 of 13
 CORAM:
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE MANMOHAN SINGH

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 Digest?              Yes

BADAR DURREZ AHMED, J

1. These three appeals are directed against the judgment dated 11-06-2010
delivered by the learned additional sessions judge-01/South, Patiala house courts, New
Delhi in Sessions Case No.107/2006 arising out of FIR No. 233/06 of police station
Malviya Nagar under sections 302/394/34 IPC and sections 216A/411/120B IPC
whereby the appellants Virpal @ Raju, Ibrahim @ Guddu and Mohd Anis Ahmed
were convicted under sections 394/302/34 IPC. The appellants are also aggrieved by
the order on sentence passed on 09-07-2010 by the learned Additional Sessions Judge
whereby they were sentenced to life imprisonment for the offence under section
302/34 IPC and were also directed to pay a fine of Rs. 2500/- each, in default of which
the defaulting convict was required to undergo simple imprisonment for two months.
The appellants were also sentenced under section 394 IPC to rigourous imprisonment
for 10 years as also to pay a fine of Rs. 2500/- each, in default of which the defaulting
convict was to undergo simple imprisonment for two months.

2. The charges framed against the appellants were, first of all, that on 28-02-
2006, between 11:30 AM to 12 noon at H.No. J-4/72-B, First Floor, Khirki
Extension, Malviya Nagar Extension, New Delhi, the appellants, in furtherance of
their common intention committed the murder of Rekha and thereby committed an
offence punishable under section 302 IPC read with section 34 IPC and, secondly, that
on the above mentioned date, time and place, the appellants, in furtherance of their

CRL.A. Nos.1225/2010, 1236/2010 & 1426/2010 Page 2 of 13
common intention committed robbery of cash of Rs. 80,000/- – Rs. 90,000/-, gold and
jewellery consisting of one golden set, three gold chains, one gold coin, one silver
coin, three other coins, one mobile phone and two bangles and while committing the
robbery the appellants voluntarily caused hurt to Rekha and thereby committed an
offence punishable under section 394 IPC read with section 34 IPC. It is pertinent to
point out at this juncture that two other persons namely Brij Pal and Asgar were also
accused of having committed the offence punishable under section 216A IPC.
However, by virtue of the said judgment, both these persons were acquitted.

3. The prosecution case, as narrated in the impugned judgment, is that on 28-02-
2006 head constable Bir Singh received DD No. 32-B at police station Malviya Nagar
which indicated that the duty constable Ajit Kumar at AIIMS hospital had given
telephonic information that one Rekha, wife of Banarsi Dass Patil, resident of J-4/72-
B, Khirki Extension was brought to hospital by one Manish s/o Madan Mohan and the
doctor had declared her dead. The said DD was given to Inspector Nirmal Singh,
Incharge, Police Post, Saket. He, along with head constable Jai Kishan, departed from
the police station to AIIMS hospital and received the MLC in respect of the deceased
Rekha. The dead body had been shifted to the mortuary. Thereafter, Inspector Nirmal
Singh along with the other police officers went to the place of the incident at J-4/72-B,
Khirki Extension where they were met by Manish who gave a statement.

4. Manish stated that he was living in the ground floor at the said address along
with his friend Roshan and was preparing for the IIT entrance test. At about 11:30
AM to 12 noon, when he was in his room, he heard a strange noise from the first floor
where his landlord resided. He also heard Rekha calling for Roshan. Upon hearing
this, he ran up the stairs and called out – “auntie”. But in response he heard a strange
noise coming from the bathroom which was bolted. He unbolted the door of the
bathroom and found that Rekha was lying on the floor and her throat was tied up with
a cloth and there were injuries on her throat from which blood was flowing out. He

CRL.A. Nos.1225/2010, 1236/2010 & 1426/2010 Page 3 of 13
also noticed some broken bangles lying on the floor. Rekha called out to him and said

– “hospital”. He then took her in the injured condition, first, to Akash Nursing Home,
Malviya Nagar with the help of neighbours – Gaurav and Sanjay – in a Maruti car
bearing registration number DL 3CA 8873 and then, on the advise of the officials of
Akash Nursing Home, he took her to AIIMS hospital where the doctors reported her
as having been brought dead. He also stated that he had noticed that in the room
belonging to Rekha the almirah was open and articles were strewn about.

5. Inspector Nirmal Singh received the statement of the complainant and
inspected the spot and found that blood had spread in the bathroom. Broken bangles
were also lying there. He also found one bloodstained electric wire lying at the spot.
There was also one handkerchief on which the image of an eagle was printed and the
words – “Fly Eagle” – were written on it. On the kitchen slab he found one plastic toy
pistol with the inscription ‘made in China’. Below that, broken bangles were found
lying. In the bedroom, the steel almirah was lying open and the lockers were open and
all the articles were lying spread about. Inspector Nirmal Singh made his
endorsement on the statement of the complainant and sent the ruqqa through head
constable Bir Singh for registration of the case. Thereafter, Inspector Nirmal Singh
continued with the investigation of the case with the preparation of the site plan,
recording of statements of witnesses, seizing of blood samples, broken bangles,
broken pieces of mangal sutra, PVC wire et cetera by virtue of different seizure
memos. The site was also inspected by the crime team and the dog squad. The
inquest proceedings were completed and thereafter the post-mortem examination of
the dead body was conducted at AIIMS hospital, after which the dead body of Rekha
was handed over to her legal heirs.

6. As a result of investigation, the appellants Virpal, Ibrahim @ Guddu and Mohd
Anis were arrested and the following recoveries were allegedly made from them:-

CRL.A. Nos.1225/2010, 1236/2010 & 1426/2010 Page 4 of 13

Virpal 1. Rs. 38,000/- Cash

2. One gold coin

3. One Mangal Sutra

4. One gold necklace

5. One gold chain

6. Knife

7. Shirt

Ibrahim @ Guddu 1. Rs. 18,000/- cash

2. One gold ring

Mohd. Anis 1. 8 door handles

2. 6 magnetic door closers

3. Rs. 35,000/- cash

4. 2 coins of silver metal

5. One gold ring

6. One gold chain

7. One broken piece of Mangal Sutra of gold like metal with
black pearls

8. Shirt

7. The charges framed against the appellants have already been mentioned above.
The appellants pleaded not guilty and claimed trial. The prosecution examined 24
witnesses in support of its case. The appellant Ibrahim examined himself as DW1.
His wife Shugufta testified as DW2. After considering the evidence on record and the
arguments advanced on behalf of the parties, the learned and additional sessions judge
delivered the impugned judgment and passed the impugned order on sentence.

8. The learned Additional Sessions Judge convicted the appellants on the basis of
the following circumstances – (1) recovery of case property; (2) identification of case
property; (3) recovery of the weapon of offence; (4) medical evidence; (5) recovery of
bloodstained shirts and FSL report with regard to the blood group; (6) motive of
robbery; (7) presumption of robbery and murder by invoking illustration (a) to section
114 of the Indian Evidence Act, 1872; and (8) false explanation provided by the
defence being an additional link in the chain of circumstances.

CRL.A. Nos.1225/2010, 1236/2010 & 1426/2010 Page 5 of 13

9. Mr Bhambani, the learned counsel appearing on behalf of Virpal, submitted
that the entire case rests on the recoveries allegedly made. It was contended by Mr
Bhambani that the recoveries attributed to Virpal were said to have been made
pursuant to a disclosure statement exhibit PW1/G on 22-03-2006. The seizure memos
in respect of the alleged recoveries are all dated 25-03-2006 and they are – Exhibit
PW20/B in respect of the shirt; Exhibit PW20/C in respect of the jewellery and cash
amounting to Rs. 38,000/-; and Exhibit PW20/E in respect of the knife which is the
alleged murder weapon. Mr Bhambani pointed out that the date of the incident was
28-02-2006 and the alleged recoveries were made on 25-03-2006, that is, 25 days after
the incident. He submitted that the alleged recoveries were made from the appellant
Virpal’s house in the village. He submitted that it is contrary to natural human
conduct that a murderer would preserve his bloodstained shirt and bloodstained knife
for 25 days in his own house in the village along with the jewellery and coins
inscribed with the word ‘Hyatt’ which could easily and clearly identify him with the
murder of Rekha.

10. Mr Bhambani further submitted that although the entire alleged disclosure
statement has been marked as exhibit PW1/G, only that portion of the statement would
be admissible in evidence which leads to a discovery of fact. He submitted that when
the recoveries themselves are doubtful, the disclosure statement would have no
meaning.

11. It was also contended by Mr Bhambani that it is all very well that the articles
which were allegedly stolen from the house of the deceased have been identified by
PW1 Banarsi Dass but, such identification is meaningless when the recovery itself is
in grave doubt. According to Mr Bhambani, the articles allegedly recovered were
provided by PW1 Banarsi Dass himself and in such a scenario it is obvious that he
would identify the articles.

CRL.A. Nos.1225/2010, 1236/2010 & 1426/2010 Page 6 of 13

12. Mr Rajesh Mahajan, the learned counsel appearing on behalf of Mohd Anis
Ahmed submitted that Anis comes into the picture only through the disclosure
statement of Ibrahim. He is not connected with PW1 Banarsi Dass. He referred to the
testimony of PW1 and submitted that though PW1 knew Virpal and Ibrahim, Anis was
not known to him prior to the incident and that he had seen Anis for the first time
upon his arrest.

13. Mr Mahajan further submitted that Anis is only connected through the alleged
recoveries which were allegedly made on 22-03-2006, after a time gap of 22 days
from the date of the incident. He further submitted that the learned Additional
Sessions Judge fell in error in invoking illustration (a) of section 114 of the Indian
Evidence Act, 1872. According to him, the said illustration could only be invoked
when a person is found in possession of stolen goods “soon after” the theft. He
submitted that the time gap of 22 days cannot be regarded as falling within the
expression “soon after”. Consequently, he submitted, the presumption which the trial
court drew could not have been drawn in the context of the factual matrix of the
present case.

14. Mr Mahajan also submitted that the recovery of the shirt, which was allegedly
bloodstained and carried the blood group “A”, is extremely doubtful. He submitted
that the seizure memo Exhibit PW1/J in respect of the said shirt does not mention that
it was bloodstained. Even the disclosure statement does not mention that the shirt was
bloodstained. In any event, it was submitted that as per natural human conduct the
shirt would have been washed in the intervening period of 22 days. Thus the alleged
recovery of the bloodstained shirt at the instance of the appellant Anis is not free from
doubt. He submitted that similarly the other recoveries at the instance of the appellant
Mohd Anis are extremely doubtful, to say the least.

15. With regard to the recovery of the cash amounts from the three appellants, Mr
Mahajan submitted that as per PW1 Banarsi Dass a sum of Rs. 91,000/- was found

CRL.A. Nos.1225/2010, 1236/2010 & 1426/2010 Page 7 of 13
missing. The prosecution has alleged that a sum of Rs. 35,000/- was recovered from
Mohd Anis, Rs. 38,000/- was allegedly recovered from Virpal and Rs. 18,000/- from
Ibrahim. The total of the three amounts comes to Rs. 91,000/-, which is exactly the
amount which PW1 Banarsi Dass stated to be missing. Mr Mahajan submitted that it
is astonishing that after three weeks none of the appellants spent a single rupee from
the amounts allegedly robbed by them! This in itself, according to Mr Mahajan,
proves the falsity of the prosecution case with regard to recoveries.

16. Insofar as Ibrahim is concerned, it was submitted that the hair samples which
were taken of Ibrahim did not match with the strands of hair which were found
clasped in the hands of the deceased Rekha. Exhibit PW23/P2 indicates that the
strands of hair were of human origin and that “no further opinion is offered from this
laboratory”. According to the learned counsel, this implies that the possibility of the
hair belonging to someone else other than the appellants cannot be ruled out. With
regard to the recoveries allegedly made from Ibrahim, it was submitted that the gold
ring was not identified by Banarsi Dass as per the TIP proceeding exhibit PW13/B.
And, insofar as the cash amount of Rs. 18,000/- is concerned, there were no specific
marks or numbers by which Banarsi Dass could have identified the said sum of Rs.
18,000/- as being the amount which was allegedly stolen from his house.

17. It was also contended on behalf of the appellant Ibrahim that as he was visiting
the police station frequently after the alleged incident, it would have been natural for
him, if he was in any way involved, to have removed the articles from his house. It
was also submitted that the arrest of Ibrahim was also fake.

18. Thus, the learned counsel for the appellants submitted that a false case has been
foisted on the appellants merely on the basis of alleged recoveries which are
extremely doubtful, to say the least. According to them, the impugned judgment and
order and sentence are liable to be set aside.

CRL.A. Nos.1225/2010, 1236/2010 & 1426/2010 Page 8 of 13

19. Mr Sanjay Lao appearing for the state submitted that there was no error in the
impugned judgment and order on the point of sentence. According to him the
recoveries from the appellants stand established. The stolen articles have been
identified by PW1 Banarsi Dass and the appellants Virpal and Mohd Anis have also
got their bloodstained shirts recovered pursuant to the disclosure statements. The
bloodstained knife has also been recovered at the instance of Virpal. Insofar as
Ibrahim is concerned he has also got the stolen articles recovered pursuant to his
disclosure statement. It was also submitted that the learned Additional Sessions Judge
has correctly concluded that the motive behind the crime was robbery. It was further
submitted that the trial court committed no error in raising the presumption of robbery
and murder based on the recovery of the stolen articles. Finally, it was submitted that
since the explanation of the appellants was found to be false, the learned Additional
Sessions Judge committed no error in treating that circumstance as an additional link.
According to the learned counsel, the chain of circumstances was complete and the
same unerringly pointed towards the guilt of the appellants. He, therefore, contended
that the impugned judgment and order on sentence do not warrant any interference by
this court.

20. We find that the present case rests heavily on the alleged recoveries made at the
instance of the appellants. There is no dispute with the medical evidence on record.
Rekha died a homicidal death and she was stabbed in the neck with a sharp edged
weapon. The doctor who conducted the post-mortem examination was also of the
opinion that the knife which was allegedly recovered at the instance of Virpal could
have caused the injuries found on the body of Rekha.

21. The first thing that needs to be established in the present case is whether the
recoveries were genuine or not. Because, if we find that the recoveries were doubtful
then the circumstance of identification of case property, as correctly submitted by Mr
Bhambani, would lose all significance.

CRL.A. Nos.1225/2010, 1236/2010 & 1426/2010 Page 9 of 13

22. Let us start with the recoveries allegedly made at the instance of Ibrahim. It is
alleged that one gold ring and a sum of Rs. 18,000/- in cash was recovered at his
instance. Insofar as the gold ring is concerned, we find that the same has not been
identified by PW1 Banarsi Dass in the course of TIP proceedings Exhibit PW13/B.
Further more, the cash amount of Rs. 18,000/- could not be specifically identified by
Banarsi Dass as he had not given the distinctive numbers of the currency. The cash
amount also did not contain any specific marks from which it could be said that PW1
Banarsi Dass was in a position to identify the same as belonging to him.

23. We also agree with the submission made by the learned counsel for Ibrahim
that it would have been unnatural for him to have retained the said articles, if they
belonged to the deceased or to Banarsi Dass, for over three weeks when he knew that
the police were actively investigating the crime. PW 23 Inspector Nirmal Singh who
was the investigating officer in this case had stated in the course of his cross
examination that several persons including Ibrahim were interrogated on the day of
the incident and they had been left as there was no evidence against them. He also
admitted that Ibrahim was again interrogated after 3-4 days of the murder. In this
backdrop, when Ibrahim was being repeatedly interrogated by the police, it would
have been against the course of normal conduct on his part to have retained stolen
articles which were allegedly recovered, much later, at his instance on 22/03/2006.

24. We may also point out that PW1 Banarsi Dass has stated that one gold chain
Exhibit P-5 and a gold ring Exhibit P-6 were the same which were recovered from
Ibrahim. But, we find that even as per the prosecution case no gold chain has
allegedly been recovered from Ibrahim. As regards the gold ring Exhibit P-6, we have
already seen that the same was not identified by Banarsi Dass in the course of TIP
proceedings.

25. Even the arrest of Ibrahim is not free from doubt. According to Banarsi Dass,
he arrived at Sai Baba mandir and made a call to the police and thereafter on their

CRL.A. Nos.1225/2010, 1236/2010 & 1426/2010 Page 10 of 13
arrival pointed out the accused Ibrahim to them. Ibrahim was arrested and taken to the
police station. However, as per PW22 Inspector Sanjay Bhardwaj, Ibrahim was
apprehended on the basis of secret information. We agree with the submission made
by the learned counsel that there was no need of secret information when the
whereabouts of Ibrahim were already known and he had been attending the police
station for interrogation on several occasions.

26. According to PW1 Banarsi Dass the alleged recovery from Ibrahim was made
from an almirah lying in his house. However, PW7 head constable Des Raj stated that
the said items were recovered from a wooden attaché from a chhajja in the room.
PW22 had a different story to tell. According to him the said items were recovered
from a grey plastic attaché similar to VIP baggage. PW23 had an altogether different
version. According to him the articles were recovered from an attaché case which was
neither of wood or steel but of some soft material such as leather, rexine, cloth or
plastic.

27. From the above evidence, it is clear that the recoveries insofar as Ibrahim are
concerned have not been established by the prosecution. Apart from the alleged
recoveries there is no other evidence to connect Ibrahim with the crime. The
disclosure statement is of no meaning until and unless it leads to a discovery of a fact.
Since that has not happened, the alleged disclosure statement of Ibrahim cannot be
looked into at all.

28. Insofar as Mohd Anis is concerned, we find that the stolen articles have
allegedly been recovered at his instance after a gap of 22 days. We are unable to
convince ourselves that the recovery at his instance is not free from doubt. The most
important recovery allegedly made at his instance is that of a striped shirt which is
said to be bloodstained. There is no doubt that according to the FSL report the
bloodstains in the said shirt are of human origin and of the group “A” which,
apparently, is also the blood group of the deceased Rekha. But, the disclosure

CRL.A. Nos.1225/2010, 1236/2010 & 1426/2010 Page 11 of 13
statement Exhibit PW1/F alleged to have been made by the appellant Mohd Anis does
not have any reference to a bloodstained shirt. Even the seizure memo Exhibit PW1/J
does not refer to any bloodstains on the striped shirt allegedly recovered at the
instance of the said appellant. PW7 also does not say that there were any bloodstains
on the shirt allegedly produced by the said appellant. Even PW23 who is the
investigating officer merely states that a used shirt was recovered from his jhuggi.
There is no mention of bloodstains. Furthermore, there is no evidence that the shirt
belonged to the accused or that he was wearing the same at the time of the incident.
In any event, the mere production of bloodstained articles by themselves does not lead
to the conclusion that the person who produced the said articles was the murderer (see:
Prabhu v. State of UP: AIR 1963 SC 1113).

29. In these circumstances, it cannot be held that the prosecution has proved the
alleged recoveries at the instance of the appellant Mohd Anis.

30. The recoveries attributed to Virpal are also not believable. We agree with the
submission made by Mr Bhambani that it would be contrary to natural human conduct
that a person involved in a murder would preserve a bloodstained shirt and a
bloodstained knife for 25 days in his own house in the village. We have already
indicated that the story with regard to the recovery of the exact amount of cash is also
not believable. This is apart from the question that the cash, in our view, could not
have been identified by PW1 Banarsi Dass as belonging to him without him first
supplying any distinctive marks or numbers of the currency. The identification of
certain articles is also meaningless once we come to the conclusion that the
prosecution has not been able to establish the recoveries at the instance of the
appellants.

31. Once the recoveries go, the entire case of the prosecution comes falling down
like a pack of cards. Apart from the recoveries, there is no other evidence to link the
appellants with the crime. We may point out at this juncture that the presumption

CRL.A. Nos.1225/2010, 1236/2010 & 1426/2010 Page 12 of 13
which was drawn by the learned Additional Sessions Judge could not, in any event,
have been drawn in view of the fact that even the alleged recoveries were not effected
“soon after” the robbery. We must not forget that illustration (a) to section 114 of the
Indian Evidence Act, 1872 is only an illustration of the substantive provision
contained in the said section which stipulates that the court may presume the existence
of any fact which it thinks likely to have happened, regard being had to the common
course of natural events, human conduct and public and private business, in their
relation to the facts of the paricular case. Viewed in this light, the retention of stolen
articles and bloodstained clothes and bloodstained murder weapon for a period of over
three weeks would certainly not fall within the expressions “common course of natural
events” or “human conduct”. Consequently, the presumption could not have been
drawn at all.

32. In view of the foregoing discussion, we are of the view that the prosecution has
not been able to prove its case against the appellants beyond reasonable doubt.
Consequently, the impugned judgment and order on sentence are set aside. The
appellants are acquitted of all charges against them in this case. They are directed to
be set at liberty forthwith.

The appeals are allowed.

BADAR DURREZ AHMED, J

MANMOHAN SINGH, J
OCTOBER 13, 2011
HJ

CRL.A. Nos.1225/2010, 1236/2010 & 1426/2010 Page 13 of 13


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