Delhi High Court
Mohd. Hanif & Anr vs State on 27 September, 2011
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat, G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON: 27.09.2011
+ CRL.A. No.31/1998
MOHD. HANIF & ANR ..... Appellants
Through: Mr. Jatin Rajput, Advocate
versus
STATE ..... Respondent
Through: Mr. Sanjay Lao, APP CORAM:
MR. JUSTICE S. RAVINDRA BHAT MR. JUSTICE G.P. MITTAL
1. Whether the Reporters of local papers YES may be allowed to see the judgment?
2. To be referred to Reporter or not? YES
3. Whether the judgment should be YES reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT %
1. This appeal challenges a judgment and order of the learned Additional Sessions Judge dated 01.10.1997 in S.C. 91/1996. The accused/appellants were convicted for the offences punishable under Sections 302/37/34 IPC, and sentenced to undergo life imprisonment, besides fine. The Appellant Hanif was convicted, in addition, under Section 308 IPC and directed to undergo rigorous imprisonment for two years as well as pay fine. The appellant Sharif was, in addition, convicted under Section 27 of the Arms Act, and directed to undergo rigorous imprisonment for two years with fine.
2. The prosecution alleged that in the early hours of 08.01.1994, the police received information through D.D. (Ex. PW-16/A), intimating about the occurrence of a crime in a room on the third floor of H. No. 9/4422, Gali No. 7, Ajit Nagar, Gandhi Nagar. The police found goods scattered in the room on the third floor and the dead body of Vidya Crl.A.No.31/1998 Page 1 Ram Fauji in a pool of blood. Sardev, the injured was present and gave an eyewitness narrative, which was recorded as Ex. PW-10/A. This resulted in the registration of the First Information Report (FIR) in the case, Ex. PW-27/A, at 03.30 AM. Sardev, who deposed as PW-10 stated that he used to work in the factory of Vidya Ram (who had established and was managing a tailoring shop). The factory was in the third floor; Vidya Ram used to reside in the same premises. It was further stated that PW-1 Ram Prakash and other employees used to reside in the premises and used to sleep on the third floor. Vidya Ram was sleeping in an adjacent room. He narrated having witnessed the deceased being assaulted by Hanif and Sharif. The police recorded the statement; PW-10 was also medically examined, since he had sustained injuries, allegedly inflicted by the attackers upon him. The prosecution alleged that after seizing the articles, collecting blood samples and lifting specimen finger prints from the spot, the investigation commenced, which evidently led to the arrest of the accused/appellants on 15.01.1994 and the subsequent recovery of objects, pursuant to their disclosure statements. After completion of investigation, a charge sheet was filed; the Appellants denied their guilt and claimed trial. The prosecution relied on the testimony of 31 witnesses, besides placing several exhibits on the record. After considering these and the submissions made on behalf of the parties, the Trial Court convicted the Appellants and sentenced them in the manner described previously in this judgment.
3. Learned amicus for the appellants - Sh. Jatin Rajput argued that the conviction recorded by the Trial Court is not sustainable, contending that the entire prosecution depended on the testimonies of PW-1 and PW-10, the alleged eyewitnesses. Learned amicus urged that the testimony of PW-1 was in stark contrast with the deposition of PW-
10. Counsel submitted that whereas the latter PW-1 implicated both the accused, PW-10 mentioned about the assault by only one of the accused. Furthermore, urged counsel, the inability of PW-10 to name Sharif also put a big question mark on his veracity and truthfulness. Even though he claimed to have been working with the deceased for more than 3-4 years prior to the incident, and claimed familiarity with both of them, he did not name both in his statement made to the police. This single contradiction between the versions of PWs-1 and 10 was serious enough to improbabilize the entire story. It was next urged that the testimony of PW-1 clearly revealed that he was not an eyewitness to the incident at all as he neither mentioned about Sharif in the first instance, during his examination, nor did he receive any injuries, unlike in the case of PW-10. Elaborating, it Crl.A.No.31/1998 Page 2 was submitted that according to PW-1, there was no street light in the Gali which could have enabled the witnesses to see the accused when they sped away after committing the murder. Further, PW-10 contradicted this, saying that there was sufficient light in the street. However, argued learned amicus, PW-1 contradicted PW-10 in the matter as to whether the alarm was raised after the occurrence of attack. Learned counsel also pointed- out that PW-1 did not support that in the disclosure statement made by Sharif in his presence, contrary to the deposition of PW-29. It was also urged that both the eyewitnesses were not clear as to the weapon used by the attackers to kill Vidya Ram. PW-10 had, in the statement under Section 161 Cr.PC, said that a sharp-edged weapon was used whereas in the Court he deposed that a Chhuri was used by the assailants. Learned counsel underlined the fact that the story was completely unbelievable because PW-10 nowhere mentioned Sharif's name. He did not even mention that the presence of the second assailant, much less the co-employee, in the statement recorded under Section 161 Cr.PC.
4. Learned counsel argued that the Trial Court fell into error in convicting the Appellants because despite the attack having occurred in a crowded locality and even though the alleged eye witness had raised an alarm, the police did not join any independent witnesses or residents. It was also submitted that PW-1's deposition further throws doubts on the prosecution version because he clearly mentioned having being detained by the police for 8 days after he went to village for three days. This meant that he could not have been present on 15.01.1994 when the appellants' arrest took place.
5. Learned APP argued that too much weight cannot be attached to the inconsistencies between the testimonies of PWs-1 and 10. Clearly PW-10 was an eyewitness, who received injuries as a result of the assault. He had by all accounts heard the commotion and gone to investigate the matter. In the process, he was criminally attacked by the accused, whose motive was to rob Vidya Ram and kill him. Learned APP submitted that both PW-10 and PW-1 were consistent that the appellants worked with Vidya Ram and used to stay there like other co-employees. The evidence also suggested that even though there was no light in the premises, there was adequate light outside in the neighbourhood, to enable identification of the assailants. Tracing the sequence of events, it was urged that upon hearing the commotion, PW-10 apparently told PW-1 that it would be necessary to go and find-out what was happening. They discovered that the room door was bolted from outside; as a result, they used the window to reach the place. PW-10 reached the place where the incident occurred first and was, therefore, attacked by the accused.
Crl.A.No.31/1998 Page 3 PW-1, who was following him, happened to witness the attack; he also saw that the accused were assaulting Vidya Ram and as a result of the fright, went up. However, a cumulative reading of the evidence and these two witnesses clearly proved that it was the two accused, who murderously assaulted Vidya Ram Fauji and robbed him of ` 2 lakhs which he had kept to get his daughter married.
6. Learned APP argued that the disclosure Statements of Hanif and Sharif, Ex. PW- 1/F and Ex. PW-1/E led to the seizure of a shirt and knife (Ex. PW-5/H) at the instance of Sharif; and seizure of clothes at the behest of Mohd. Hanif, Ex. PW-5/G. Learned APP emphasized that the accused refused to participate in the TIP and did not attribute any motive to the prosecution or the eyewitnesses, to say that they had been falsely implicated.
7. Lastly, urged learned APP, the testimony of PW-26 revealed that chance finger prints were lifted from the spot immediately after the incident and later sent for examination by an expert. The report of the finger print expert, Ex. PW-28/B, which were placed on record clearly implicated the accused, Haneef. All these facts, it was urged, proved that the chance prints were identical with the specimen finger prints of Hanif. Having regard to these circumstances, contended learned APP, the impugned judgment and order do not call for any interference in the present appeal.
8. In this case, the prosecution banked heavily on the testimonies of two eyewitnesses, i.e PW-1 and PW-10, who are, according to it saw the incident. PW-10 is the first informant, whose statement was recorded (Ex. PW-10/A) immediately after the police reached the spot. That statement was also the basis for the First Information Report. The testimony of PW-10 is that he was sleeping in a third floor room; Vidya Ram was sleeping in an adjacent room. PW-1 too was in the same room as the witness. He heard a noise or commotion from Vidya Ram's room, woke up PW-1; they tried to open the door, but it was locked from outside. He and PW-1 went out from the window, and reached the entrance of Vidya Ram's room. He saw Hanif with a sharp edged weapon, inflicting injuries on Vidya Ram. He had an accomplice. He too was attacked with the weapon, by Hanif. He extricated himself from Hanif's clutches and rushed downstairs. The accused sped away. He came back later, and found Vidya Ram's body in a pool of blood. The goods in the room lay scattered. He could see the place, since there was a tube light which was switched on. He knew Hanif, since he used to work with Vidya Ram; he also claimed to know the other accused, but by face, as he too used to work - like Hanif, previously, Crl.A.No.31/1998 Page 4 with the deceased Vidya Ram. He also supported the prosecution story about seizures of various articles from the spot, and deposed about the layout in the premises. During cross examination, he was confronted with his previous statement recorded under Section 161 in which he did not mention about Sharif, or even that Hanif's accomplice used to work in Vidya Ram's factory. This witness was examined in the hospital, for the injuries suffered by him; the MLC was placed on the record.
9. PW-1 supported the deposition of PW-10 in many particulars. However, what is apparent from a reading of his testimony is that he followed PW-1, and did not apparently actually see the assault by Hanif, on Vidya Ram. He witnessed the assault on PW-10, and went up - perhaps to the roof, in fright. He corroborated that some light was there near the premises.
10. The prosecution story is that the accused were arrested on 15-01-1994. They refused TIP. Now as far as that aspect goes, not much significance can be attached, because even otherwise, the prosecution allegations were that both accused were working as Vidya Ram's employees. The prosecution also alleged that the eyewitnesses could identify both accused. In these circumstances, a TIP would be rendered valueless.
11. A close analysis of the testimonies of the eyewitnesses reveals that they are consistent about the manner in which the events unfolded on the fateful day, i.e:
(1) Identity of Hanif, as an employee of Vidya Ram; (2) That Vidya Ram and his employees, including PW-1 and PW-10 used to stay in the premises;
(3) On the night of the incident, the two of them slept on the third floor, in a common room. Vidya Ram slept in an adjacent room; (4) In the early hours of 07-01-1994, PW-10 some noise from Vidya Ram, and woke up PW-1.
(5) Both tried to open their door, and discovered that it was bolted from outside. (6) Both shinned out of the window - PW-10 leaving first, followed by PW-1. (7) PW-10 saw Hanif and an accomplice attacking Vidya Ram. Hanif was holding a churri or sharp edged object.
(8) PW-10 was attacked by Hanif. This was seen by PW-1, who in addition claims to have seen Sharif.
(9) PW-10 extricated himself, and ran down; PW-1 went to the roof.
Crl.A.No.31/1998 Page 5
(10) The accused fled the spot; the witnesses came back to the spot later. The
police reached the spot, and recorded the statement of PW-10, and registered the FIR.
12. It has been held (Ref Anil Phukan v. State of Assam (1993 (3) SCC 282); that great weight is attached to the testimony of victim to the crime. In case the witness is also injured in the incident, the courts have to take that into consideration, since if that aspect is established, he too is the victim of a crime. Further, it has been held that eyewitness testimony cannot be lightly discarded, even if it conflicts with the medical evidence (Ref. Mange v. State of Haryana (1979 (4) SCC 349), State of U.P. v. Krishna Gopal and Anr. (AIR 1988 SC 2154) and Ram Dey and Anr. v. State of U.P. (1995 Supp. (1) SCC 547).
13. Despite cross examination, the testimonies of PW-1 and PW-10 remained unshaken, in material particulars, as regards the way the events unfolded, the presence of Hanif, the place and time where the attack took place. The existence of light in the premises, or otherwise, is not of importance, because the testimonies of the witnesses show that some light existed outside. What cannot be forgotten is that Hanif was known to both the witnesses, as a co-employee, who worked for Vidya Ram and had gone away a few days prior to the incident. The clear and consistent stand of these witnesses, who corroborated each other about his presence, at the site, and PW-10's clear identification of the assailant, at the earliest opportunity, in PW-10/A almost immediately after the incident, lends assurance that there was no manipulation in his case. Having regard to this, and the fact that Hanif left the spot, and was arrested much later, the court is of opinion that the prosecution had proved that he was involved in the murderous attack on Vidya Ram; he was in fact the assailant. Furthermore, the prosecution lent corroboration to this, in proving that the chance prints lifted from the site, matched with the specimen finger prints of Hanif, as is evident from the testimony of PW-28 and the finger print expert's report, i.e PW-28/B. This is also an extremely incriminating circumstance, which Hanif was unable to explain in his reply to the queries under Section 313, Cr. PC.
14. Now, as far as the involvement of Sharif is concerned, this court is of opinion that the prosecution has not discharged the burden of proving it, beyond reasonable doubt. PW- 10 is concededly a co-employee of Hanif, and PW-1. However, he did not name Sharif in his first statement recorded by the police, during investigation. He admitted not having told the police that Sharif used to work in Vidya Ram's factory. PW-1 claims to have been Crl.A.No.31/1998 Page 6 working in the factory. The witnesses' accounts reveal that Vidya Ram's unit was involved in garment fabrication, and had employed some tailors and embroiderers. Many of them lived in the premises. Both the eyewitnesses lived together, in the same room. If indeed Sharif was involved in the attack against Vidya Ram, PW-10 would have been in a position to name him, or at least describe him as one employed by the deceased. This omission, to name the co-accused, in the first account recorded by the police, is fatal to the prosecution. It has been held (Kishan Lal, Appellant V. State Of Rajasthan, 2000 (1) SCC 310; Muthu v State of Karnataka 2002 (9) SCC 158) that if an accused is named at the first instance, during the investigation, that is a pointer to whether there was any scope of manipulation or false implication. In this case, the first informant was PW-10; his failure to name Sharif, on the one hand, and the fact that he was the injured eyewitness, who saw the incident, undermines the prosecution version that he too was involved. PW-1, as noted earlier, did not in fact see the attack. However, he saw the attack on PW-10. He mentioned about Sharif's involvement. His statement was recorded after that of PW-10, later during the day. The inconsistencies between the testimonies of these two witnesses, in the opinion of the court, render the prosecution case against Sharif fatal. His conviction therefore, cannot be sustained.
15. For the foregoing reasons, we are of opinion that the Appeal has to succeed in part, to the extent it concerns Mohammed Sharif. The impugned judgment convicting him, of the charges, is set aside. The bail and personal bonds furnished on his behalf are hereby discharged. As regards Mohammed Hanif, the appeal fails. He is directed to surrender before the Trial Court, and serve the remainder of the sentence ( which is left undisturbed) on 14th October, 2011. The Registry is directed to transmit the original records to the Trial court, to ensure compliance with these directions, forthwith. The Appeal is disposed of in terms of the above directions.
S. RAVINDRA BHAT (JUDGE) G.P.MITTAL (JUDGE) SEPTEMBER 27, 2011 Crl.A.No.31/1998 Page 7