Jabir Ali @ Sonu v. State

4. The cause of death, as opined, was asphyxia caused by forceful and sustained constriction of neck by using ligature material. All injuries were ante mortem in nature and injury No.1 was sufficient to cause death. The said post mortem was conducted on 6th January, 2008 between 12.15 p.m. to 2.55 p.m. Time since death, as opined, was about 5 days prior to the post mortem. The Post Mortem Report (Ex.PW3/A) records that rigor mortis had passed off and decomposition had set in. Bloody discharge was present on nostrils and mouth and signs of marbling were present. We shall in subsequent portion of the judgment refer to the statement of witnesses on how Aruf Mandal went missing on 2nd January, 2008 and his dead body was recovered on 5th January, 2008. At this stage, it is suffice to notice the main contention raised by the Appellants Counsel is that the impugned judgment wrongly records that the three appellants were the perpetrators, who were involved in kidnapping and murder of Aruf.

5. On the question of kidnapping of Aruf Mandal, his father Shanker Mandal (PW[1]) has stated that on 2nd January, 2008 at about 3 p.m. Aruf aged about 5 years was playing outside the house but thereafter did not return home. As he was untraceable, a phone call was made to police at number 100. Police came and recorded his statement (Ex.PW1/A). At about 6.30 p.m. and 7.40 p.m. PW-1 received two telephone calls demanding Rs.[2] lacs for release of Aruf. The caller claimed that Aruf was with him and threatened that if his instructions were not followed, Aruf would be killed and thrown in a Nala. PW-1 thereupon informed the police, who tried and located the address from where the phone calls were made. PW-1 accompanied the police officers to Badarpur and went to the STD booth. The lady, and her son operating the STD booth, were questioned. However, no clues were forthcoming and PW-1 returned back at 2.00 A.M. PW-1, thereafter received several phone calls on his mobile number 9873837741 from the kidnappers demanding ransom. The kidnappers required him to board Vaishali Express, reach Kanpur and follow instructions to take a train to another destination. On 5th January, 2008, another phone call was received with further instructions to come to Kanpur with Xeroxed copy of a currency note. On 15th the police and PW-1 again made a search for the culprits and appellant Abdul Mannan was apprehended and confessed his crime. He made a disclosure statement and led them to a room on the third floor of house number 337-338, Raghubir Nagar, Delhi. The door lock was broken. On pointing out of the appellant Abdul Mannan, dead body of Aruf was found inside a blue bag. PW-1 identified that the dead body was of his son Aruf. Crime Team was called and the dead body was taken to the hospital. PW-1 has deposed that the appellants Abdul Mannan and Jabir Ali had earlier worked with him and they were introduced by the third appellant Arvind Kumar. Appellants Abdul Mannan and Jabir Ali had left their job on 19/20th December,

2007. Appellant Arvind Kumar was a known person and on occasions PW-1 used to give him the charge of his factory. PW-1 averred that he had received threatening telephone calls from mobile number

9873107159. The voice of the caller appeared to be as that of Jabir Ali.

6. Mahender Singh (PW-16), Owner of House number 337-338, Raghubir Nagar, Delhi has stated that on 1st January, 2008 he had rented out the said room to three persons. In his court deposition he named two of them as Abdul Mannan and Arvind but could not name the third person. PW-16 claimed that they had paid advance of Rs.300/- and the rent fixed was Rs.1,200/- per month. On 5th January, 2008 appellant Abdul Manan, who was present in the Court, had come to his house with police officers. Police had broken the lock of the room from where the dead body of a child was found, in a bag. The child was aged about 5 years and identified by his father Shanker Mandal, who was present. PW-16 identified the three appellants in the Court as the persons who had taken the room on rent. In his crossexamination he has accepted that in his statement under section 161 Cr.P.C. (Ex.PW16/A) recorded by the police on 5th January, 2008 he had not given the names of Arvind and Jabir Ali. He has clarified that the room in question was located on the third floor and not on the second floor and when the possession was handed over to the appellants they had put their own lock. The lock was broken by the police officers. He has accepted that PW-1’s house was one Gali (street) away from his house and he knew PW-1 from before. He has denied the suggestion that Jabir Ali had never approached him for taking the room on rent.

7. The Investigating Officer, Inspector Vijay Singh Chandel (PW-22) has deposed that on 4th January, 2008 he took over the investigation of the case and on 5th January, 2008 he was informed that the appellant Abdul Mannan was seen roaming in Block A, Raghubir Nagar. He along with ASI Sri Krishan, HC Ashok Kumar and other staff searched for Abdul Mannan. Complainant i.e. PW-1 was with them and on identification made by PW-1, appellant Abdul Mannan was apprehended and his disclosure statement (Ex.PW18/B) was recorded. The disclosure statement was signed by PW-22 at point B. On the basis of the disclosure statement, dead body of Aruf was recovered from the room on the third floor of house No.337-338, Raghubir Nagar. When the police team reached the said house, the room was found to be locked. Lock was broken to gain entry and inside the room a blue colour bag was found. The appellant Abdul Mannan disclosed that dead body was in that bag. PW-1 identified the body as that of his son Aruf. Crime team was called and photographs were taken. The dead body was shifted to the mortuary. Site plan (Ex.PW22/B) was prepared and the appellant Abdul Mannan was arrested vide arrest memo Ex.PW1/E. On 7th January, 2008, the appellant Abdul Mannan led the police team to Mitthapur and identified the appellant Arvind. The appellant Arvind was apprehended and interrogated and subsequently was arrested vide memo Ex. PW18/C. Jabir Ali, the third appellant, who was also named by appellant Abdul Mannan, remained untraceable and could be apprehended on 10th January, 2008 from Garhi Main Market, Lajpat Nagar. PW-22 had gone there along with staff and the two appellants. The appellant Jabir Ali was arrested vide memo Ex.PW14/A. On personal search of Jabir Ali, one mobile phone Nokia 1600 of black colour was recovered with purchase bill/ receipt of Sharma Communication (Ex.PW14/D).

8. PW-18, ASI Shri Krishan was present when the dead body of Aruf was recovered on 5th August, 2008. He has stated that he was involved in the investigation of the case from 2nd January, 2008 and had also gone to Badarpur where they had spoken to Bishan Wati, owner of the STD booth from where ransom call was made. They also met booth operator Rakesh and had made inquiries about the caller but did not succeed in getting any clues. On 3rd January, 2008, he and HC Ashok had spoken to Jagdish Nagar (PW-2) and Mohd. Ajhar, friends of PW-1 and their statements were recorded. He has deposed about the telephone calls demanding ransom received by PW-1. On verification, it was revealed that the telephone SIM number 9873107159 was issued in the name of one Rakesh Kumar, Block No.3, Dakshin Puri Extension. They met Rakesh Kumar at the said address, but he denied having obtained the said number. Somebody had misused his I-card. During investigation, details of ex-employees of PW-1 were obtained and employees were interrogated but on verification nothing incriminating came to light. On 5th January, 2008, complainant informed that he had seen the appellant Abdul Mannan, his exemployee, in Raghubir Nagar area and Abdul Mannan may have kidnapped his son. PW-18 along with PW-22, HC Ashok Kumar and Constable Shodan Singh went to A-Block, Raghubir Nagar and on pointing out of the PW-1, the appellant Abdul Mannan was overpowered and interrogated. The appellant Abdul Mannan made a disclosure statement (Ex.PW18/B) and led the police team to the room on the third floor of house No.337-338, Raghubir Nagar from where the dead body of Aruf was recovered. The room was initially locked but the same was broken by PW-22. Crime team came, inspected the spot and took photographs. On 7th January, 2008, appellant Arvind was apprehended and arrested from Mithapur at the instance of appellant Abdul Mannan. In the cross-examination PW-18 has deposed that House No.A479 belonging to PW-16 was a three storey building. He had not procured or seized the call details of the STD booth. They had gone to the house of Rakesh, the registered subscriber of SIM number 9873107159, but on the said date no record was seized. Rakesh on inquiry informed that he was not using the said SIM. PW-18 has further deposed that a police team had been sent to Lucknow in connection with the case and on 4th January, 2008 he along with complainant (PW-1) had gone to the Badarpur area, but no clue was found. Appellant Abdul Mannan was apprehended at about 4 p.m. but at the time of arrest no public person had joined. Appellant Abdul Mannan was arrested at about 5.30 p.m. and was thoroughly interrogated and made a disclosure statement, which was recorded between 5.30 p.m. to 6 p.m. Owner of House No.337-338, Raghubir Nagar, Mahender Singh (PW-16) met them when they reached the third floor of the house. There were two rooms on the third floor and both were locked. Lock of the room in question was broken at about 6.00-

6.15 p.m. PW-18 could not depose whether brick/stone/hammer was used for breaking the lock. Message was sent to the crime team before breaking the lock, but they arrived after the lock was broken. Dead body of Aruf was shifted from the room at about 7.30-8.00 p.m. but he did not remember under whose supervision the dead body was shifted. The crime team reached the spot at about 6.00/6.15 p.m. and inspected the spot till 7.00 p.m.

9. Learned counsel for the appellants have highlighted the discrepancies and differences in the statements of Shankar Mandal (PW-1), ASI Shri Krishan (PW-18) and Inspector Vijay Singh Chandel (PW-22). It is highlighted that the time given by the said witnesses do not tally or match with the arrest memo (Ex.PW1/E) of appellant Abdul Mannan and the time when the dead body of Aruf was received in the mortuary i.e. 5 p.m. as per Ex.PW3/B and as stated in the testimonies of PW-3 and PW-22.

10. There are some variations or differences in time when the appellant Abdul Mannan took the police party and PW-1 to the room on the third floor of house No.337-338, Raghubir Nagar, Delhi, when he was apprehended or when the dead body was received in the mortuary. However, this slight variation in time is natural and can be easily explained since the court depositions of PWs-1, 18 and 22 were recorded after one year or more. It is humanly impossible to remember the precise time when a particular fact was discovered or steps were taken. Lapse and failure to precisely recollect the exact time is possible and such or extra photogenic memory should not be expected. PWs-1, 18 and 22 have made identical and similar depositions on core and material aspects relating to the factum that the appellant Abdul Mannan was apprehended on 5th January, 2008, he made a disclosure statement and thereupon the police team which included PWs-18, 22 and the complainant (PW-1) went to the room on the third floor of House No.337-338, Raghubir Nagar, Delhi from where dead body of Aruf was recovered. On these facts, the witnesses are in seriatim, support and corroborate each other. These facts are not contradicted by any of the three witnesses mentioned above. PW-16 the landlord also supports their testimonies. In Neelam Bahal v. State of Uttarakhand (2010) 2 SCC 229, it has been observed that some minor discrepancies in the testimonies are immaterial, rather a parrot like deposition after a long time smacks of tutoring and some differences in fact advance credibility of witnesses. Recently Supreme Court in Sunil Kundu and Anr v. State of Jharkhand (2013) 4 SCC 422 it was reiterated that minor contradictions or inconsistencies which do not go to root of prosecution version can be ignored.

11. The contention that the body of the child was received in the mortuary on 5th January, 2008 at 5.00 p.m. does not contradict the Crime Team Report (Ex.PW17/A) or the statement of PWs-1, 18 and

22. Ex.PW17/A mentions that the Crime Team reached the spot at

4.30 p.m. and had remained there till 6.30 p.m. Thus, the Crime Team had reached the spot before the dead body was received in the mortuary. The dead body was decomposing. In these circumstances, it is possible and we accept that the dead body was immediately sent to the mortuary, while Crime Team continued with the task of collecting incriminating material. There is variation and difference in the statements of prosecution witnesses as to the time when the dead body was sent to the mortuary, but this does not defeat or negate the prosecution case that the body was recovered pursuant to the disclosure statement. Similarly, the objection of the learned counsel for the appellant Abdul Mannan that there is no consistency how and who had located the appellant Abdul Mannan and how the police team had apprehended him. This minor discrepancy again should not be understood in the light of the position that the statements were being recorded after a considerable delay

12. Aruf had gone missing on 2nd January, 2008 at about 2 p.m. There is ample evidence and material to show that PW-1 and the police had made all efforts to trace him but were unsuccessful till the evening of 5th January, 2008. After the appellant Abdul Mannan was apprehended and pursuant to the disclosure statement Ex PW-18/B, the dead body of Aruf was recovered from the room on third floor of premises of House No.337-338, Raghubir Nagar, Delhi. Till the disclosure statement was made by the appellant Abdul Mannan, the complainant PW-1, the police were completely unaware and had no knowledge that the dead body of Aruf was lying in the said room. In fact they did not know whether Aruf was alive or dead or whether he was in Delhi or outside Delhi. A police team was also sent outside Delhi for investigation. Section 27 of the Evidence Act, therefore, has been rightly invoked and referred to by the trial court. Recovery of the dead body of Aruf from a secured place i.e. the room on the third floor, which was locked, is a highly incriminating fact against the appellant Abdul Mannan. He had knowledge and was aware that Aruf had died and his body had been kept in a bag inside the said room, which was locked. Supreme Court in State of Maharastra Vs. Suresh, JT 1999 (9) SC 513 noticed that there are three possibilities when an accused points out the place where a dead body or an incriminating material is concealed. Firstly, he could have himself concealed it. Secondly, he could have seen somebody concealing it. Thirdly, the said fact may have been told to him by a third person. Once recovery is made and the accused declines to tell the criminal court that his knowledge was an account of the last two possibilities, a criminal court can presume that the concealment was by the accused himself. To take benefit of last two possibilities, the accused should offer an explanation as to how he came to know and if he chooses to remain quiet and refrains from telling the court about how he came to know, the presumption is that the concealment was made by the accused himself.

13. Earlier in Suresh Chander Bhari Vs. State of Bihar, 1995 Supp (1) SCC 80 the Supreme Court while discussing the essentiality of Section 27 of Evidence Act, it was held as under:-

14. In Deepak Chandrkant Patil Vs. State of Maharashtra, (2006) 10 SCC 151, the Supreme Court upheld the conviction as the dead body of the deceased and his motorcycle were recovered at the instance of the accused. Similarly in Ningappa Yallappa Hosamani and Ors. Vs. State of Karnataka and Ors, (2009) 14 SCC 582 recovery of the dead body from the canal pursuant to the disclosure statement in the absence of any explanation, it was observed, was sufficient to sustain conviction. The natural presumption was that the persons at whose behest the dead body was recovered, were the perpetrators when no explanation was forthcoming how the accused persons were aware and had knowledge.

15. Referring to the principles of Section 27 of the Evidence Act in Geeta Vs. State of Karnataka, 2000 (10) SCC 72 it has been elucidated that recovery of the dead body from the room of the accused requires an explanation from the accused. When an accused gives false and misleading explanation on being questioned by the Court or by a third person before his arrest, the said circumstances amount to corroboration. Further, the appellant’s answers in his/her statement under Section 313, Code of Criminal Procedure, 1973 (Cr.P.C.) are relevant and significant. A false statement can lead to conviction of the accused and supply the missing link in the chain of circumstances.

16. It has been contended by the learned counsel for the appellant that statement of PW-16, the landlord, that the said room was taken on rent by the three appellants is somewhat debatable as there is no written document and proof and PW-16 did not name appellants Arvind and Jabir Ali in his statement under Section 161 Cr.P.C. It is highlighted that the appellant Abdul Mannan was present and shown to PW-16 on 5th January, 2008 when the dead body was recovered. There is part merit in the said contention insofar as the appellants Arvind and Jabir Ali are concerned as they were not named or identified by description by PW-16 in his statement under Section 161 Cr.P.C. It is difficult to perceive that the landlord would not know and recollect names of his tenants. Normally, a person would keep some record and note his details. However, as far as appellant Abdul Mannan is concerned he had taken the police team and PW-1 to the room in question. The said room was on the third floor of the house and was locked. The natural assumption is that the appellant Abdul Mannan was aware of the said room and also had access to the said room as he was aware what was inside the room. Section 27 of the Evidence Act, it has been explained, does not relate only to the recovery of the physical object, but the knowledge of the accused as to the place where the said physical object was lying and can be recovered. In Pulukuri Kottaya & Ors Vs. Emperor AIR 1947 PC 67 it has been observed as under:-

17. As far as the appellant Abdul Mannan is concerned, statement of PW-16, Mahender Singh is relevant and fully supports the prosecution case that the said appellant is the perpetrator of the crime in question.

18. PW-1 has deposed, and in our opinion the said assertion should be accepted, that the appellant Abdul Mannan had worked with him till 19/20th December, 2007. In the same building, where PW-1 resided, he had his industrial unit. The appellant Abdul Mannan was, therefore, aware that PW-1 had a child named Aruf. He was aware of the financial position of PW-1 and had knowledge about the telephone numbers on which he could contact PW-1.

19. In view of the aforesaid position, we have no doubt that the prosecution has been able to satisfactorily prove beyond doubt that the appellant Abdul Mannan had committed the said crime under Sections 363/364-A and 302 IPC.

20. The next question relates to involvement of appellants Arvind and Jabir Ali. As far as the appellant Arvind is concerned, there is hardly any evidence to implicate him. PW-1 has deposed that the appellants Abdul Mannan and Jabir Ali were employed in his factory by the appellant Arvind. This is not a relevant fact directly implicating Arvind in the crime. This only shows that Arvind knew Jabir Ali and Abdul Mannan. PW-1 has not stated that during employment, conduct of the appellants Abdul Mannan and Jabir Ali were suspicious or raised doubts. PW-1 has not deposed or stated that appellant Arvind had ceased to be in his employment or was removed due to any reason. On the other hand, PW-1 has averred that he had faith in Arvind and on occasions used to leave charge of his factory with Arvind.

21. This brings us to the statement of Jagdish Nagar (PW-2), a friend of PW-1. He has deposed that on 2nd January, 2008 at about 2.30 p.m. he had gone to the house of Shankar Mandal (PW-1) but could not meet him. He made a call on his mobile number but the mobile phone was lying in PW-1’s house. He has further stated that when he came out, he saw Arvind taking Aruf with him at about 2.00-2.30 p.m. Next day in the morning he came to know that Aruf was missing. Thereupon he informed PW-1 that he had seen Aruf with appellant Arvind. We have grave doubts on the testimony of PW-2 for several reasons. His statement purportedly was recorded on 3rd January, 2008, but there is no material or evidence that the police had interrogated Arvind on that basis or leads in the said statement on 3rd January, 2008. It is not urged or stated that Arvind was missing on 3rd January, 2008 or 4th January,

2008. PW-1 and the police officers, including the investigating officer PW-22 statement have not alleged abscondence. It is natural to assume that Arvind was not absconding and was present on or after 2nd January. PW-1 has stated that he had about 7-8 laborers [see crossexamination on 7th October, 2010] working in his factory or 5-6 employees/ karigars [as mentioned in the cross-examination on 7th January, 2009] and they had also searched for Aruf on the date of occurrence itself. Arvind used to stay in the same house where PW-1 was residing. PW-1 has not alleged that Arvind or his belongings were missing. Thus, we are not inclined to accept the statement of PW-2 that he had seen Arvind and Aruf together at 2.00-2.30 p.m. on 2nd January,

2008. If this was correct, Arvind would have been the first person to be interrogated and questioned. Possibly Arvind has been implicated as he had got the appellant Abdul Mannan emoployed with PW-1. This is not sufficient to hold or establish that the Appellant Arvind was involved.

22. On the question of last seen, we would like to reproduce the following observations made by the Supreme Court in Mohibur Rahman Vs. State of Assam, 2002 (6) SCC 715:-