{"id":63030,"date":"2011-11-03T00:00:00","date_gmt":"2011-11-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/aas-mohd-vs-state-on-3-november-2011"},"modified":"2019-02-23T13:29:06","modified_gmt":"2019-02-23T07:59:06","slug":"aas-mohd-vs-state-on-3-november-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/aas-mohd-vs-state-on-3-november-2011","title":{"rendered":"Aas Mohd. vs State on 3 November, 2011"},"content":{"rendered":"<div class=\"docsource_main\">Delhi High Court<\/div>\n<div class=\"doc_title\">Aas Mohd. vs State on 3 November, 2011<\/div>\n<div class=\"doc_author\">Author: S. P. Garg<\/div>\n<pre>*       IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                     Date of Decision : 3rd November, 2011\n\n+                         Crl.A.No.201\/1999\n\n        AAS MOHD                                      ....Appellant.\n                     Through : Mr.Anil Soni with Mr.Sarfaraz,\n                               Hussain and Mr.M.M.Shukla\n                               Advocates\n\n                                versus\n\n        STATE                                      ...Respondent.\n                     Through:   Mr.Pawan Sharma, Standing\n                                Counsel (Crl.) with Mr.Harsh\n                                Prabhakar, Advocate\n\n        CORAM:\n        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG\n        HON'BLE MR. JUSTICE S.P.GARG\n\n     1. Whether the Reporters of local papers may be allowed\n        to see the judgment?\n\n     2. To be referred to Reporter or not?\n\n     3. Whether the judgment should be reported in the Digest?\n\nS.P.GARG, J. (Oral)\n<\/pre>\n<p>1.            Vide    impugned    judgment    dated     3.3.1999     the<br \/>\nlearned Trial Judge, in para 21 of the impugned decision, with<br \/>\nreference to the evidence led has opined that following<br \/>\ncircumstances stand established:-\n<\/p>\n<blockquote><p>        (i)   On 25th of June, 1995 (in the morning hours)<br \/>\n        dead body of an unknown person was found lying in<br \/>\n        front of the house of witness Mustfa.<\/p>\n<p><span class=\"hidden_text\">CrlA.No.201\/1999                                      Page 1 of 11<\/span>\n<\/p><\/blockquote>\n<blockquote><p>        (ii) There was an incised stab wound over the back<br \/>\n       of the dead body.\n<\/p><\/blockquote>\n<blockquote><p>       (iii)   The dead body was smeared with blood.<\/p>\n<\/blockquote>\n<blockquote><p>       (iv) Blood trails led the police party to H.No.B-248,<br \/>\n       Gali No.2, Indra Vihar, Delhi.\n<\/p><\/blockquote>\n<pre>       (v)     There was blood spot inside the house.\n\n       (vi)    There was blood on the door of the house.\n\n<\/pre>\n<blockquote><p>       (vii) Wooden piece Ex.P.1 was recovered from the<br \/>\n       said house.\n<\/p><\/blockquote>\n<blockquote><p>       (viii) There was blood of &#8216;A&#8217; group on the said wooden<br \/>\n       piece.\n<\/p><\/blockquote>\n<blockquote><p>       (ix)    That the said house belonged to the accused.<\/p>\n<\/blockquote>\n<blockquote><p>       (x) Exhibits were lifted from the spot as well as from<br \/>\n       the house of the accused.\n<\/p><\/blockquote>\n<blockquote><p>       (xi)    On 26.6.1995, accused was arrested.<\/p>\n<\/blockquote>\n<blockquote><p>       (xii) Shirt Ex.P.4 having blood stains of &#8216;A&#8217; group was<br \/>\n       seized from him, which he was wearing at that time.<\/p>\n<\/blockquote>\n<blockquote><p>       (xiii) Knife Ex.P.3 was recovered at the instance of the<br \/>\n       accused, from his house.\n<\/p><\/blockquote>\n<blockquote><p>       (xiv) Clothes of the deceased were seized and handed<br \/>\n       over to the police by Dr.Anil Kohli.<\/p>\n<\/blockquote>\n<blockquote><p>       (xv) Exhibits were kept intact at the malkhana and<br \/>\n       were sent to FSL.\n<\/p><\/blockquote>\n<blockquote><p>       (xvi) Injuries mentioned in post-mortem report were<br \/>\n       possible by knife Ex.P.3.\n<\/p><\/blockquote>\n<blockquote><p>       (xvii) There was human blood on knife Ex.P.3.<\/p>\n<p><span class=\"hidden_text\">CrlA.No.201\/1999                                  Page 2 of 11<\/span><br \/>\n        (xviii)    Human blood of &#8216;A&#8217; group was on Ex.P.1<br \/>\n       and Ex.P.4.\n<\/p><\/blockquote>\n<blockquote><p>       (xix) Blood of the deceased was of &#8216;A&#8217; group.<\/p>\n<\/blockquote>\n<p>2.            It is apparent that the incriminating circumstances<br \/>\nagainst the appellant would be: (a) proof of the fact that blood<br \/>\ntrail from where the dead body was found led up to House<br \/>\nNo.B-248, Gali No.2, Indra Vihar, Delhi where the appellant<br \/>\nlived; (b) blood spots noted inside the house where the<br \/>\nappellant lived and the door of the house as also wood piece<br \/>\nEx.P-1 lifted from the house on which human blood of the same<br \/>\ngroup i.e. &#8216;A&#8217; as that of the deceased was detected; (c) knife<br \/>\nEx.P-3 on which human blood was detected being recovered<br \/>\npursuant to the disclosure statement made by the appellant<br \/>\nand at his instance; and (d) shirt Ex.P-4 worn by the appellant<br \/>\nwhen he was arrested being detected with human blood of the<br \/>\nsame group as that of the deceased.\n<\/p>\n<p>3.            The process of criminal law commenced when DD<br \/>\nNo.27 was recorded at 4:30 a.m. on 25th of June 1995 at police<br \/>\npost Johripur under jurisdiction of P.S. Gokul Puri recording<br \/>\ninformation that a dead body of a person was lying at the<br \/>\ncorner of the drain, near temple, Chaman Park, Indra Vihar,<br \/>\nDelhi. As deposed to at the trial by HC Mangal Prasad PW-2 he<br \/>\nwas entrusted with copy of DD No.27, Ex.PW-2\/A, and as he<br \/>\nreached House No.B-71 Indra Vihar, in which Mustfa PW-1<br \/>\nresided he found a person lying dead in the street and he<br \/>\ninformed the SHO on wireless. As deposed to by Insp.Bharat<br \/>\nSingh PW-8, the SHO, he reached the place of the crime<br \/>\n<span class=\"hidden_text\">CrlA.No.201\/1999                                 Page 3 of 11<\/span><br \/>\n accompanied by Ct.Raj Kumar PW-3 and by then, as deposed to<br \/>\nby ASI Balwant Singh PW-5, while patrolling the area, even he<br \/>\nreached the place of the crime.\n<\/p>\n<p>4.            Relevant would it be to note that all four i.e. HC<br \/>\nMangal Prasad PW-2, Insp.Bharat Singh PW-8, Ct.Raj Kumar<br \/>\nPW-3 and ASI Balwant Singh PW-5 have deposed in sync with<br \/>\neach other that from the place where the dead body was found<br \/>\nthey saw a trail of blood till House No.B-248 Indra Vihar in<br \/>\nwhich appellant lived.     But, whereas HC Mangal Prasad and<br \/>\nCt.Raj Kumar concluded their deposition by saying that they<br \/>\nsaw blood at the door of the house in which appellant lived, ASI<br \/>\nBalwant Singh and Insp.Bharat Singh deposed that they saw<br \/>\nblood spots inside the house as well.\n<\/p>\n<p>5.            Whereas HC Mangal Prasad and Ct.Raj Kumar have<br \/>\nnot deposed to any exhibit being lifted from inside the house,<br \/>\nASI Balwant Singh and Insp.Bharat Singh have deposed that<br \/>\nthe piece of wood Ex.P-1 and a pair of chappal Ex.P-2\/1 and<br \/>\nEx.P-2\/2 were seized from House No.B-248 Indra Vihar.\n<\/p>\n<p>6.            Further case of the prosecution before the learned<br \/>\ntrial court is that the wife of the appellant was found inside the<br \/>\nhouse and on interrogation she revealed that the deceased was<br \/>\nhaving objectionable relations with her and the appellant had<br \/>\nstabbed him with a knife inside the house and had thrown the<br \/>\ndead body outside the house of one Mr.Mustfa i.e. PW-1.\n<\/p>\n<p>7.            As per the prosecution, on 26.06.1995 i.e. the next<br \/>\nday, on receipt of secret information about the presence of<br \/>\nappellant at his house, HC Rishi Pal PW-6 and Insp.Bharat Singh<br \/>\nPW-8 reached there and apprehended the appellant outside his<br \/>\n<span class=\"hidden_text\">CrlA.No.201\/1999                                 Page 4 of 11<\/span><br \/>\n house and upon interrogation made a disclosure statement<br \/>\nstating that he could get recovered the knife used by him to<br \/>\nstab the deceased and thereafter from under a bed in the room<br \/>\nof his house got recovered the knife Ex.P-3. Shirt Ex.P-4 worn<br \/>\nby the appellant was noticed with blood stains thereon and<br \/>\nhence was seized.\n<\/p>\n<p>8.            As per FSL report Ex.PW-16\/A and Ex.PW-16\/B<br \/>\nhuman blood having &#8216;A&#8217; group i.e. the blood group of the<br \/>\ndeceased was detected on the piece of wood and the shirt.<br \/>\nHuman blood was detected on the knife, group whereof could<br \/>\nnot be ascertained.\n<\/p>\n<p>9.            Mustfa PW-1 the stated witness to the seizure of the<br \/>\nwood piece Ex.P-1 and the pair of chappals Ex.P-2\/1 and Ex.P-2,<br \/>\ndenied seizure thereof in his presence.\n<\/p>\n<p>10.           Photographer Ct.Ravinder Singh PW-4 took the<br \/>\nphotographs Ex.P-5 to Ex.P-11, and unfortunately save and<br \/>\nexcept Ex.P-8 all pertain to the place outside the house where<br \/>\nappellant statedly resided and Ex.P-8 throws no light on any<br \/>\nblood stain inside the house.\n<\/p>\n<p>11.           Dr.Anil Kohli PW-7 who conducted the post-mortem<br \/>\nproved the post-mortem report Ex.P-7\/A as per which a solitary<br \/>\nstab wound at the middle centre of the sternal notch pierced<br \/>\nthe upper lobe of the right lung causing death resulting from<br \/>\nhaemorrhagic shock and as per his opinion Ex.P-7\/B, if the tip<br \/>\nof the knife Ex.P-3 was not bent, the injury which caused the<br \/>\ndeath could have been inflicted by the knife in question.\n<\/p>\n<p>12.           Having perused the evidence led it strikes us that<br \/>\nduring investigation, no attempt was made to ascertain the<br \/>\n<span class=\"hidden_text\">CrlA.No.201\/1999                                  Page 5 of 11<\/span><br \/>\n identity of the deceased. ASI Balwant Singh PW-5 in the cross-<br \/>\nexamination admitted that name of the deceased could not be<br \/>\nascertained though they had interrogated people from the<br \/>\nlocality about the identity of the deceased.         Wife of the<br \/>\nappellant also did not give name of the deceased. The witness<br \/>\nfurther admitted that till date the identity of the deceased<br \/>\ncould not be established.    None of the person in the locality<br \/>\nknew the deceased. None of them informed the police that the<br \/>\ndeceased was ever seen in the locality.\n<\/p>\n<p>13.           The prosecution has failed to render plausible<br \/>\nexplanation as to why the identity of the deceased could not be<br \/>\nestablished during investigation. Nothing has come on record<br \/>\nas to what was the name of the deceased and the place where<br \/>\nhe used to reside. Nothing has come on record as to how and<br \/>\nunder what circumstances the deceased happened to be<br \/>\npresent there to be stabbed by someone.       No sincere efforts<br \/>\nseem to have been made by the police to ascertain the identity<br \/>\nof the deceased during investigation. Identity of the deceased<br \/>\nbecomes       relevant because as per     the prosecution,     the<br \/>\ndeceased was having intimate relationship with the wife of the<br \/>\nappellant. Had it been so, the wife of the appellant must have<br \/>\ndisclosed the identity of the deceased. An unknown stranger is<br \/>\nnot imagined to have intimate relation with the wife of the<br \/>\nappellant or to have dare to go inside the house of the<br \/>\nappellant during odd hours at night and that too with the<br \/>\nappellant present inside the house. Inaction\/negligence of the<br \/>\npolice to establish the identity of the deceased is an adverse<br \/>\ncircumstance against the prosecution to establish the motive of<br \/>\n<span class=\"hidden_text\">CrlA.No.201\/1999                                Page 6 of 11<\/span><br \/>\n the appellant to commit murder. There is nothing on record to<br \/>\nshow if the appellant had suspected fidelity of his wife at any<br \/>\ntime or that he had ever suspected the deceased to visit his<br \/>\nhouse to have objectionable relation with his wife. No quarrel<br \/>\nis alleged to have taken place of the appellant with his wife of<br \/>\nher having any relations with the deceased. The appellant was<br \/>\nnot aware about the visit of the deceased to his house to make<br \/>\na plan in advance to stab him on the intervening night of 25th<br \/>\nand 26th of June, 1995.\n<\/p>\n<p>14.           Appellant&#8217;s wife has not been examined as a<br \/>\nwitness, notwithstanding she being a relevant witness if we<br \/>\naccept the testimony of the four police officers who, as per<br \/>\ntheir testimony had reached the place where the murder took<br \/>\nplace.\n<\/p>\n<p>15.           Mustfa PW-1 has not deposed of having seen blood<br \/>\ninside the house where appellant lived. As noted herein above,<br \/>\ntwo of the four police officers who had reached the place of the<br \/>\ncrime have not deposed to have seen blood inside the house of<br \/>\nthe appellant.     Only two police officers, namely, ASI Balwant<br \/>\nSingh PW-5 and Insp.Bharat Singh PW-8 have deposed to have<br \/>\nseen blood spots inside the house where the appellant lived,<br \/>\nbut for reasons best known to them, they did not bother to lift<br \/>\nthe blood on a piece of gauze or swab of cotton.               In fact,<br \/>\nInsp.Bharat Singh PW-8 has categorically admitted during<br \/>\ncross-examination that no blood was lifted from inside the<br \/>\nhouse of the accused. This seriously dents the credit of the<br \/>\nversion of the prosecution that there were blood spots inside<br \/>\nthe house where the appellant lived.\n<\/p>\n<p><span class=\"hidden_text\">CrlA.No.201\/1999                                Page 7 of 11<\/span><\/p>\n<p> 16.           The post-mortem report Ex.P-7\/A does not show any<br \/>\ninjury being caused on the person of the deceased with a blunt<br \/>\nobject and thus it remains a mystery as to how a blood-stained<br \/>\npiece of wood Ex.P-1 was found inside the house of the<br \/>\nappellant. The post-mortem report, to which we have referred<br \/>\nto herein above with respect to the situs of the injury on the<br \/>\nperson of the deceased would reveal that the plural cavity<br \/>\ncontained two litres of blood; the reason was obvious: the<br \/>\nsolitary stab wound had pierced the upper lobe of the right<br \/>\nlung of the deceased. The injury is of a kind where it was the<br \/>\ninternal bleeding which was profuse and not the muscular<br \/>\nbleeding of the chest muscles and tissue which was profuse.<br \/>\nThe trail of blood from outside House No.B-248, Indra Vihar up<br \/>\nto House No.B-71 Indra Vihar, covering a fairly large distance of<br \/>\nprobably about 200 metres, as per rough site plan Ex.P-8\/B<br \/>\nthrows light on the fact that the deceased stumbled towards<br \/>\nHouse No.B-71 Indra Vihar. There being no bruises on the dead<br \/>\nbody rules out either the dead body being dragged or the<br \/>\ninjured victim being dragged from outside House No.B-248 to<br \/>\nHouse No.B-71. Under the circumstances it would be doubtful<br \/>\nwhether a solitary stab wound of the kind which we have<br \/>\nnoticed in the instant case would result in blood spilling at the<br \/>\nplace where the stab was inflicted thereby staining a piece of<br \/>\nwood lying nearby.\n<\/p>\n<p>17.           We need to speak a word about the shirt Ex.P-4 with<br \/>\nblood stains thereon being recovered by the police when the<br \/>\nappellant was apprehended the next day after the crime was<br \/>\ncommitted. The appellant is not a vagabond. He lived in his<br \/>\n<span class=\"hidden_text\">CrlA.No.201\/1999                                 Page 8 of 11<\/span><br \/>\n own house with his wife. It is most improbable that he would<br \/>\ncontinue to wear a blood stained shirt which he was wearing<br \/>\nwhen he committed the crime, if at all. We also need to speak<br \/>\na word about appellant being arrested the next day from his<br \/>\nhouse.     If indeed, he had committed the offence and having<br \/>\nknowledge that the police knows about the crime being<br \/>\ncommitted and that there was a trail of blood between his<br \/>\nhouse and the place where the dead body was recovered, it is<br \/>\nmost unnatural for him to be in his house, to be arrested by the<br \/>\npolice.\n<\/p>\n<p>18.           The only evidence with respect to the blood of the<br \/>\ndeceased would therefore be the trail of blood from outside the<br \/>\nhouse of the appellant till the house of Mustfa. Now, the time<br \/>\nwhen the crime took place assumes importance. It was around<br \/>\n4:30 a.m. of 25th June 1995.     Dawn was just about breaking.<br \/>\nPeople would be in their slumber by and large and that<br \/>\nexplains nobody hearing the shrieks of the deceased and this<br \/>\ndoes not rule out the possibility of anybody stabbing the<br \/>\ndeceased on the street outside the house of the appellant and<br \/>\nthe deceased walking towards a place where he could find<br \/>\nrescue. Unfortunately, the prosecution has made no attempt<br \/>\nto find out the identity of the deceased or the place where he<br \/>\nlived. The rough site plan Ex.P-8\/B shows that to reach from<br \/>\nHouse No.B-248 one has to walk first towards the North and at<br \/>\nthe T-junction towards the east and at the next T-junction, once<br \/>\nagain towards the North and at the first lane towards the West<br \/>\nto reach House No.B-71. The trail of blood would show that in<br \/>\nan injured condition, the deceased first moved towards the left<br \/>\n<span class=\"hidden_text\">CrlA.No.201\/1999                                Page 9 of 11<\/span><br \/>\n from outside House No.B-248, then towards the right, followed<br \/>\nby a movement in the left direction and once again, in the left<br \/>\ndirection by taking a 90 degrees turn. This also establishes, in<br \/>\nany case does not rule out the possibility, of the deceased,<br \/>\nwhilst he was injured, proceeding to a place where he could<br \/>\nfind a rescue.\n<\/p>\n<p>19.           There are traces of contrivance pertaining to the<br \/>\nrecovery of the knife Ex.P-3 at the instance of the appellant.<br \/>\nApart from Mustfa PW-1 categorically deposing that no<br \/>\nrecovery or seizure of a knife, much less Ex.P-3 was effected in<br \/>\nhis presence we find Mustfa&#8217;s signatures on the seizure memo<br \/>\nEx.PW-6\/D pertaining to the seizure of the knife, but on the<br \/>\nseizure memo Ex.PW-6\/E whereunder the shirt Ex.P-4 was<br \/>\nseized, we find Mustfa not being a witness although the<br \/>\nInvestigating Officer claims both seizures made in presence of<br \/>\nMustfa. That apart, as held by the Supreme Court in various<br \/>\ndecisions and we may only note a few, JT 2008 (1) SC 191 Mani<br \/>\nvs. State of Tamilnadu, 1994 (4) SCC 110 <a href=\"\/doc\/76952355\/\">Surjit Singh vs. State<br \/>\nof Punjab, and AIR<\/a> 1963 SC 113 <a href=\"\/doc\/363246\/\">Prabhu vs. State of U.P.,<\/a><br \/>\nrecoveries of ordinary articles such as a knife or a piece of<br \/>\nclothing is always considered as very weak evidence.\n<\/p>\n<p>20.           Therefore, the only incriminating evidence we have<br \/>\nis a trail of blood from outside the house of the appellant till the<br \/>\nhouse of PW-1 and at best the recovery of a knife and that too<br \/>\nalso with a taint, which was the possible weapon of offence and<br \/>\nthe recovery, that too with a taint, of the shirt which the<br \/>\nappellant was wearing when he was apprehended the next day<br \/>\non which human blood of the same group as that of the<br \/>\n<span class=\"hidden_text\">CrlA.No.201\/1999                                  Page 10 of 11<\/span><br \/>\n deceased was detected, the said circumstantial evidence may<br \/>\nonly point the finger of guilt towards the appellant but does not<br \/>\nrule out the possibility of his innocence and hence the<br \/>\nappellant would be entitled to the benefit of a doubt.\n<\/p>\n<p>21.           The appeal is allowed.   Impugned judgment and<br \/>\norder dated 3.3.1999 convicting the appellant for the offence of<br \/>\nmurder is set aside and the appellant is acquitted of the charge<br \/>\nframed against him. Needless to state, the order on sentence<br \/>\ndated 8.3.1999 is also quashed.\n<\/p>\n<p>22.           Since the appellant is on bail, the bail bond and<br \/>\nsurety bonds furnished by him are discharged.\n<\/p>\n<p>                                       (S.P. GARG)<br \/>\n                                          JUDGE<\/p>\n<p>                                  (PRADEEP NANDRAJOG)<br \/>\n                                          JUDGE<br \/>\nNovember 03, 2011<br \/>\nsa\/tr<\/p>\n<p><span class=\"hidden_text\">CrlA.No.201\/1999                                Page 11 of 11<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"<p>Delhi High Court Aas Mohd. vs State on 3 November, 2011 Author: S. P. Garg * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : 3rd November, 2011 + Crl.A.No.201\/1999 AAS MOHD &#8230;.Appellant. Through : Mr.Anil Soni with Mr.Sarfaraz, Hussain and Mr.M.M.Shukla Advocates versus STATE &#8230;Respondent. Through: Mr.Pawan Sharma, Standing [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-63030","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Aas Mohd. vs State on 3 November, 2011 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/aas-mohd-vs-state-on-3-november-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Aas Mohd. vs State on 3 November, 2011 - Free Judgements of Supreme Court &amp; 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