Full Text
STATE
IMRANA
STATE
Date of Decision: CRIMINAL APPEAL No. 373/2015
Through Mr. Ajay Verma, Advocate.
Appellant
Through Mr. Varun Goswami, AFP along with Inspector Sanjeev Arora, P.S. Ashok Vihar.
CRIMINAL APPEAL No. 587/2015 Appellant
Through Mr. Siddharth Mittal, Advocate.
Through Mr. Varun Goswami, APP along with
HON'BLE MR. JUSTICE R.K.GAUBA SANJIV KHANNA. J.
For detailed order see Criminal Appeal No. 32/2015 titled Mohd.
Shahid
SANJIV KHANNA
(JUDGE)
DECEMBER 4,2015 VKR ^ (JUDGE)
2015:DHC:11970-DB HIGH COURT OF DELHI Reser-ved on. 8 September, 2015
Date ot Decision. 4 December, 2015 ORIMINAL APPEAL No. 32/2015
MOHD. SHAH ID Appeiiant
Through Mr. K, S inghai. Advocate, v e r s u s
STATE NOT OF DELHI" Respondent
Th rough •Mr. Varun Goswami, APR along with
ORI MI NAL APPEAL No. 373/2015 SUNIE Appeiiant
Through Mr. Ajay Verma. Advocate, STATE ' Respondent
Through Mr. Varun Goswami, APR aiong with Inspector Sanjeev Arora, P.S. Ashok V ihar.
CRIMINAL APPEAL No. 587/2015 IMRANA Appeiiant
Through Mr. S iddharth K/littal, /Xdvocate.
STATE ' Respondent Th rough Mr. Varun Goswami, APR aiong with
00RAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K.GAUBA Crl.A.Nos.32,373 &587/2015 Page 1 of43
SANJIV KHANNA. J.
JUDGMENT
1. Th is common J udgment will dispose of the aforementioned appeals by Imrana, Mohd. Shahid and Sunll, who by thejudgment under.challenge dated uly, 2014 have been convicted under Section 302 read with Section 120B of the Indian Penal Code, 1860 (IPG, for short) for having murdered Naslr, husband of Imrana In the Intervening night between 10^. and 11. February, 2009, Imrana and Mohd. Shahid hax/e also been convicted for the offence under Section 201 read with Section 34 IPG, Imrana has been Individually convicted under Section 211 IPG. By the order on sentence dated 15'' November,. 2014, the three appellants have been sentenced to Imprisonment for life and fine of Rs,5,000/- each and In default, to undergo simple Imprisonment for six months for the offence under Sections 302/1 20B IPG. Imrana and l\/lohd. Shahid have been sentenced to rigorous Imprisonment for five years and fine of Rs.2,000/- each and In default, to undergo simple Imprisonment for three months for the offence under Section 201/34 IPG Imrana has been sentenced to rigorous Imprisonment for three years and fine of Rs.1,000/- and In default, to undergo simple Imprisonment for two months for the offence under Section 21 1 IPG.
2. It IS not cJisputed or under challenge that the deceased Naslr was a Acabad/ who used to reside at D-534, Wa^lrpur, JJ Go lony with his wife, one of the appellants herein, namely, Imrana. This was the second marriage of both Imrana and Naslr, solemnised about 2 months prior to the occurrence. After their marriage, Imrana and Naslr had cohabited for 8-10 days In the village Vankhala, Dist. Crl.A.Nos.32, 373 &587/2015 Page 2 of43 Bijnaur, U.P., before Nasir returned to his place of work I.e. Delhi. Nasir had brought Imrana to Delhi on 8 February, 2009 I.e. about 2/3 days before the occurrence.
3. • It Is an undisputed fact that Imrana and Mohd. Shahid belong to and were Inhabitants of village opur, Pol Ice StatIon Kotwall Dehat, District Bijnaur, U.P., whereas deceased Nasir was originally a resident of village Vankhala, Police StatIOh Kotwall, District Bijnaur, U.P. The factum that Nasir had suffered homicidal death In the Intervening night between 10'^ and 11 February, 2009 Is proved from the post~mortem report (Exhibit PW28/A), which was conducted by Dr. Deepak Mathur (PW28). 0 n external examination, a contused mark completely encircling the neck, running transversely around the neck measuring 39x[1] cm and creating a groove was noticed. On Internal examination, brain was found to be congested with betechial haemorrhages In white matter and bruising • of strap muscles of the neck surrounding the mark with diffused extravasation of blood along the upper one~thlrd of the muscle. There was also fracture of the upper horn of the hyold bone at both ends covered with haematoma. The stomach contained semi" d Igested un Identifiable ye I Iowish food and the wa I Is were congested. The cause of death was opined as asphyxia following ligature pressure upon the neck. In cross~examl nation, PW-28 clarified that the ligature mark was visible to the naked eye. Dr. Deepak Mathur (PW28), In his deposition and In the posfreport Ex.PW28/A, has stated that they had preserved the viscera to rule out the possibility of poisoning. We shall be referring to the said viscera report subsequently. Crl.A.Nos.32, 373 &587/2015
4. Presence o1^ the appellant Imrana with the deceased Naslr during the Intervening night o'F 10'" and 11'" February, 2009 is an accepted and admitted position. Th is factum is also proved by ACPOm Prakash ^' (PW31), Insp. Satya Prakash (PW30), SI Dev Raj (PW29) and HC Naresh (PW11). SI Dev Raj (PW29) has stated that at about 8.10 A.M., DD No. 8 PP Wa^irpur JJ Colony was marked to him regarding a quarrel at House No. D-534, Wazirpur JJ colony and he along with Head Constable Naresh Kumar (PW11) had reached the spot where a crowd had assembled. On going inside the house, one dead body was •found on a cot and a lady was sitting in front of the i _ • ' ' door of the store room which was adjacent to the room where the dead body was lying. PW29 had spoken to the said lady, namely, Imrana and she had narrated that between 12 midnight and 1 A.M., some persons had knocked at the door of the house. She had given details as to how the mid""night offenders had gaihed or rather were allowed entry in their residence and had murdered her husband. Head Constable Naresh (PW11) has stated that on visiting the spot, he had noticed the dead body of a person known as Nasir kabaadi was lying on a charpai with strangulation mark of a rope around his J ] neck. PW11 had seen wife of the deceased and that no other relative Vv of the deceased was present on the spot. SI Dev Raj (PW-29), Inspector Satya Prakash (PW-30) ahd ACP Cm Prakash (PW-31 ) have similarly deposed about the presence of Imrana at the spot, where they had seen the dead body of her husbahd Nasir on the cot/chanpa/. For reasons recorded below, we would accept that Irshad Ah med (PW-T) and Jabbir (PW-3) were present and had reached the residence of Nasir and Imrana. Crl.A.Nos.32, 373 &587/2015 Page 4 of43
5. SI Dav Raj (PW29), Inspector Satya Prakash (PW30) and ACP Onj Prakash (PW31) have deposed about the version given by the appeiiant Imrana as to how the occurrence had taken piace. The said statement became the f^i rst information and was endorsed at about 11,35 A.M. by ACP 0 m Prakash (PW31) with the direction that an FIR shouid be registered. For the sake of compieteness, we wouid like to reproduce the statement made by Imrana marked Ex. PW29/A and the endorsement made thereon by ACP Cm Prakash (PW-31 ) in enti rety. ~ Imrana alias Guddo w/o Late Shri Nasir, age 20 vears, R/o D-534. Wa.irpurJJ Colony, Delhi made her statement as under. "I am staying alongwith my husband at the aforesaid address on rent. My maternal village is Rajopur, Police Station Kotwaii Bijnaur, U.P. Approximateiy three years ago, I had got married with Irsha\d S/o Yamin, R/o V lllage Wahia Sherpur, Po li ce Station Nahtoika, U.P. Approximately 1 Vz years ago, I had got divorce from Irshad. Approximately 2 Fa months ago, for the second time I got married with Nasir S/o Mag boo i, R/o Village Bankhia, Police Station Kotwaii, Distt. Bijnaur as per Muslim rites and customs with the consent of both the families. I stayed at my matrimonial house after marriage. My husband had stayed with me for airnost 8/10 days and then had left for Delhi telling me that his shop had remained closed at Delhi. On Sunday i.e. 08.02.2009, my husband Nasir had brought me to his aforesaid rented accommodation. Both of us husband and wife had been living happily. In the night of 10/11.02.2009, both of us husband and wife were sleeping at our house having closed the door. At night at about 10.00 O'clock, the power ofthe eolony had got disconnected and did not get connected till the next morning. In the night, at about 12.00/01.00 0' C lock, someone knocked at the door of our house and enquired whether the scrap dealer was there or not. My husband got up and woke me up. The people standing outside were.saying that they had brought some articles and Crl.A.Nos.32,373 &587/2015 Page 5 of43 were asking to open the door and receive the articles. I told my husband Nasir that it was late at night and had asked him not to open the door. But my husband told me that he deals in scrap and sometimes, people come at late night hours to sell articles. Persons standing outside had stated that they had copper, Iron and empty bottles oh wine with them. Hearing this, _my husband Nasir opened the door and hour boys hrom outside entered our room. At that time, I had stood near the gate In the room. My husband asked the said persons about articles and asked them to deliver the same. Then two oh them pressed my husband 's mouth and one oh them caught his leg and the third one caught him at the waist and all the three carried my husband to the interior room. The hourth one among them put the shawl at my hace which I,had put on myselh. I tried to raise an alarm but he prevented and did not allow me to shout. I could hear my husband Nasir say 'Save me, save me. They are killing me' was coming hrom the Interior room. I asked them why they were killing my husband, but they did not give any answer. Ahter some time, voice oh my husband stopped coming hrom the room. Four persons went away hrom the room. When I went to the room and. checked, I saw my husband lying on the cot. Towel was wrapped around his mouth and neck. I called my husband and shook his hand. But my husband did not answer or say anything. I came outside and raised.an alarm In. the street and knocked at the gate oh a house nearby. No one opened their door nor did anyone come outside to help me. It was raining at the time and I sat outside my Interior room. In the morning, someone knocked at the door oh our house and when I opened the door, the person told me that he had bottles and asked_hor the scrap dealer to receive them. I had been weeping and I told him about the death oh my husband. He asked me whether I had inhormed the Police Post. I told him that I knew nothing about this place. He told me that he would Inhorm the Police Instantly and he went away. Ahter some time, police came to my house and people assembled. Four unknown persons have murdered- my husband by strangulating his throat. Legal action may be Initiated against them. I have heard my statement and the same Is correct." -, Sd/- (In Hi ndI) Crl.A.Nos.32, 373&587/2015 Page 6of43 I m ran a Attested by. Sd/- Om Prakasb (In EngIish) Insp. Om Prakash SHO/Ashok Vihar To The Duty Officer, Po 11 ce Station Ashok Vihar, It is officiaiiy submitted that on the receipt of information on wireiess set from S.I. Satya Prakash, l/C PP, JJ Coiony, W. Pur, I, the Inspector/S H0 aiohgwith staff reached at the piace of occurrence according to the information i.e. House No. D- 534, Wazir Pur, JJ Coiony by the officiai vehicie. I found SI Satya Prakash, AS I Dev, Const. Naresh Kumar NO. 1347/NW aiong with the staff present there. I found the dead body of a person on the foiding cot in the interior room of the piace of occurrence. On the inspection of the dead body, the mark of throat strangu iation was found on the neck of the dead body and a towei was found on the iower part of the neck. On inquiry, it was iearnt that the deceased was Nasir S/o Maqbooi Ahmed, R/o D-534, Wazirpur JJ colony/; Delhi. Deceased Nasir's wife Imrana was also found present at the place of occurrence. The District Crime Team aiong with the photographer came to the spot and inspected the piace of occurrence and the photographer took photographs of the spot and dead body from different angies. The deceased's wife Smt. Imrana met us and got her foregoing statement recorded. The dead body was sent to the mortuary of BJRM Hosp ita I, Jahangir Puri under the supervision of Const. Naresh Kumar, No. 1347/NW to get posfmortem conducted. From the perusai of the aforesaid statement and the inspection of the piace of occurrence and that of the dead body, prima facie an offence punishabie under Sections 302/34 of the Indian Penai Code seems to have been committed. Therefore, this writing is being sent through Constabie Pradeep Kumar, No. 1271/NW to the Po iice Station for the registration of the case. After the registration of this case, the number of the same may be Crl.A.Nos.32, 373 & 587/2015 Page 7 of43 (o intimated and the specjai report may be sent to the M.M. anc! the Sen ior Officers through special messenger. I, the Inspector aiongwith the staff am busy with the investigation at the spot. Date and Ti me of occurrence. At about 12.00 midn ight to 1.00 AM Dt. 11.02.2009. Piace of occurrence. House No. D-534, Wa^irpur, JJ Colony, De ih i. Date and Ti me of d ispatch of Writi ng. 11.02.09 at 11.35 A.M. Sd/-0m Prakash (In Engiieh) (Inspr. Om Prakash) SHO/Ashok Vihar No. D-l/994 PIS No. 28740012 P.S. Asho k Miha r 11.02.2009 DD No. 10A at 11.50 A.M. Dt11.02.2009 Case FIR No. 75/09 U/s 302/34 IPC P.S. Ashok Mihar, Delhi HC/DO Sukhbir S ingh N0.I86/NW PISNo.28821480 Dt 11.02.09"
6. It would be appropriate at this stage to refer to the deposition of ACP Om Prakash (PW31 ) In his cross"examination on behalf of the appellant Mohd. Shahid, this witness (PW-31) has accepted that after reaching the spot, he had made inquiries from Imrana and 12-13 neighbours. He had instructed that the FIR should be reQlstered on Imrana S statement. PW31 has also accepted as correct that on making inquiries, he felt assured that Imrana 's version was truthful. It is therefore clear that at that time or initially, Imrana was not a suspect. Imrana in her statement under Section 313 of the Code or Crl.A.Nos.32,373 &587/2015 Criminal Procedurej 1973 (Cr.P.C. for short) in response to question Nos. TO to 72, has stated as under." "Q70. It is further in evidence against you that PW29 stated that you informed that last night (10/11-02-2009), you along with your husband Nasir were sleeping in the inner room and at about 12-1 midnight, someone knocked the door who wished to sell copper, iron and empty liquor bottles. What you have to say I Ans. It is correct. Q71. It is further in evidence against you that PW29 further stated that you informed that your husband opened the door and four persons entered the house and three of them caught hold of your husband and fourth one put your shawl on the mouth of "your husband and killed him by strangulation. What you have to say? Ans. It is correct. Q72. It is further in evidence against you that PW29 recorded your statement vide Ex. PW29/A signed by you at point A and then he wrote the rukka vide Ex. PW29/B. What you have to say I Ans; It is correct."
7. A reading of Exhibit PW29/A would reveal that it is purely selfexculpatory in nature and does not record any confession as to the commission of the offence. To what extent this statement would be hit by Sections 25 and 26 of the Evidence Act, 1872 has been examined beiow. The said statement is not hit by Article 20 of the Constitution of India and Section 132 of the Evidence Act, 1872. In fact, the appellant Imrana relies upon the said statement and it is her contention that the same is.the true and correct version as to the Crl.A.Nos.32, 373 & 587/2015 Page 9 of43 % 0/' -r rana in her statement under Section 313 Cr.P.C,, occurrence. im response to question No. 90, had stated as under. "Q90. Do you have anything else to say? Ans! I have given only one statement to the police on which the FIR was registered and thereafter ho statement of mine was recorded by the police. On 11.02.2009 in. the mornihg, I was taken to the PS ahd was also confined in PS. 0 n the ' next day, my father got information regarding the death of my husband and reached at PS along with co accused Shahid at -about 01.00 pm. Co-accused Shahid is my heighbour like a brother from the village. 1did not give any statement to the Doctor in the I lospitai. Therefore, my MLC ( T does not bear my signature. After making the false story, I have been falsely implicated in this case."
8. ' The aforesaid statement under Section 313 Cr.P.C records that imrana accepts that she had giveh her statement or version on which the FIR was registered and thereafter, no other statement was recorded. She, however, claims that on IT" February, 2009, in the morning, she was takeh to the police station and confined. Next day, t. her father got the information regarding the death of her husband and had reached the police station along with Shahid (i.e. the appellant IVlohd. Shahid) at about 1 P.K/I. Section 132 of the Evidence Act would not be attracted in this case, as Imrana had never deposed as a 'witness in the witness box. There would thus be no question of compulsion. The m^orityjudgment authored by Sinha C.J. in State of^ Bomloav V. Kattni Ilj Ocjtisd and Otfners AIR 1961 SC 1808, interprets clause 3 of Article 20 of the Constitution and holds that the Article would apply wheh the person making the statement was an accused who must have beeh compelled, the compulsion must be to Crl.A.Nos.32,373 &587/2015 Page 10 of43 "A N T " be a witness and aQalnst hinhseir. 1he expression to be a witness, it was eiucidated, wouid mean making orai or written statement but would not inciude giving thumb impression, impression of paim, foot or fingers or specimen handwriting or even exposing a part of body for the purpose of identification. The bar was to protect an accused from the hazards of seif" incri m ination and was not intended to put obstacies in the way of efficient and effective investigation into the crime and to bring criminais to Justice. A person giving Impression o-f his signatures or specimen oT his handwriting was not giving testimony and far less, a seIf" incri minating testimony- The said marks/i mpressions were only a material for comparison in order to lend assurance to the court. It was neither oral nor documentary evidence, but beiongs to a separate category. Thus, an accused cannot be said to be a witness simpiy because he has made a statement in the police custody without doing anything more. To bring a statement under the provision of Articie 20 (3), the person must have stood in the character of accused person at the time of the statement and it wouid not be enough that he was arrayed as an accused any time after the statement was made. Ex.PW29/A wou Id not attract, disabiing provisions of Section 132 of the Evidence Act and Articie 20 ciause (3) of the Constitution.
9. We would now examine other provisions of the Evidence Act and the impact and effect of the Cr.P.C. The Supreme Court in Aqf)noo N&QGsis \/ersus Stste of Bifn&r, AIR 1966 SO 119 exposited Sections 24 •to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898 to observe that the expression "accused of an offence" would cover a person accused of an offence at a triai, Crl.A.Nos.32, 373 & 587/2015 Page 11 of43 whether or not he was accused of an offence when he had made the cohfession. Section 24 of the Evidence Act exciudes use of confessions caused by inducements, threats. or promises as contemplated therein. Sections 25 and 26 of the Evidence Act prohibit proof against any person of a confession made by him when he was in police custody made to a police officer or to a third person, except in the latter case when it was made in the immediate presence of a Magistrate. The said provisions exclude not only the whole of the confession relating to an admission of an offence, but also admission of any other incriminating fact, such as motive, preparation and subsequent conduct. Section 27 was in the form of a proviso and partially lifts the ban imposed by Sections 25 and 26 the Evidehce Act..Section 162 Cr.P.C. prohibits use of any statement made by a person to a police officer in the course of investigation for any purpose at any inquiry or trial in respect of an.offence under investigation, save as mentioned in the proviso and cases failing under sub'section 2, which protects the appi ication of Section 27 of the Evidence Act. W ords of Section 162 Cr.P.C. are therefore wide enough' to include a confession made to a police officer during the course of an investigation. These provisions proceed on the view that the confessions made by an accused to a police officer or to a third persoh while the accused was in custody of a police officer should not be read or used as evidence against him. These principles based upon public policy must be given the ~ fullest effect to.
10. Section 154 o-fCr.P.C. provides for recording of the first information which is not substantive evidence and can be used to corroborate the Crl.A.Nos.32,373 & 587/2015 Page 12 of43 informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Evidence Act, if the informant iscaiied as a.witness. If the first information is given by the accused himseif, the effect of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. Judgment in the case of Aqhnoo Nacjesis (supra) discusses in detaii what is meant by the term "confession", a term not defined in the Evidence Act, to observe that vide definition given in Articie 22 Stephens' Digest ofLaw ofEvidence as admission made at any time by a person charged with the crime, stating or suggesting the inference that he had committed that crime, stands discarded in Pakia NsraYanswamy versus tine Kincj Emperor, LR (1939) I.A. 66 vyherein it has been observed that a statement that contains excuipatory matter does not amount to confession, if the seif" excuipatory statement was of some fact, which if true wouid negate the offence aiieged to be confessed. Confession must admit in terms the offence or at any rate substantiai iy aii the facts, which constitute the'Offence. An admission of a graveiy incri minati ng fact or even conclusiveiy incriminating fact was not by itseif a confession. (Confession therefore, we observe is a species of admission.) It was further observed that if an admission was used against the accused, the whole of it should be tendered in evidence and if a part of the admission was excuipatory and a part incuipatory, the prosecution was not at iiberty to use in evidence the inculpatory part. But this principle was of no assistance to an accused vyhere no part was excuipatory, and the prosecution tends to use the whole of the statement against the accused. Before ascribing and ruling the Crl.A.Nos.32, 373 &587/2015 Page 13 of43 u aforesaid precept, the Supreme Court observed that Sections 17 to 31 of the Evidence Act grouped under the heading "Admissions" were applicable to criminal trials, suleject of course to the bar and prohibitions dealing with such trials.
11. In Agl-inoo Nacjesia (supra), the Supreme Court observed that when information report was given by an accused to a police officer and it amounts to a confessional statement, proof of confession was prohibited by Section 25 and such prohibition would not only relate to admission of' the offence but of all other admissions of incriminating facts related to the offence contained in the confessional statement. Th is bar/prohj bition against admission was subject to Section 27 of the Evidence Act and save and except the formal part identifying the accused as a maker of the report. Cases where an accused was the first informant and confessed commission of the offence were different from cases where the accused, though the first informant, claimed innocence and had made a self" exculpatory statement. Bar of Section 25 of the Evidence Act wou Id not exclude or stand in the way of admitting a statement to a police officer by a. person subsequently arrested if the same did not amount to confession.
12. In Ktiatri and Hemraj v. State of Gujarat AIR 1972 SC 922, the Supreme Court has elucidated that where an accused gives first information to the police, this fact of his giving the information was relevant under Section 8 of the Evidence Act. If the statement made was not a confessional statement, it would be admissible under Section 21 df the Evidence Act. However, if the statement was Crl.A.Nos.32, 373 & 587/2015 Page 14 of43 confessional, it cannot be used against the accused in terms of Section 25, except to the extent permitteP under Section 27 of the Evidence Act. In case of confessional statement resulting in registration of the FIR, the same could be also used for identifying the accused as the maker of the statement.
13. Section 25 of the Evidence Act has to be read with Section 161 of the Cr.P.C. as the latter provision protects an accused if a confession is made during the course of investigation. Relying upon Acjl-inoo Nagesis fsupira), it has been held that a statement by an accused that I he was present near the scene of crime could not be sufficient to discharge the burden on the prosecution and shift the'burden on the accused. [See State of Guiarat v. Sagtnunattn Vamanrao Baxi A!R 1985 SCI 092 and State of Malnarastntra V/s P.K.Patt-tak, A! R 1980 SC1224)].
14. A detailed discussion on the Question of se if"excu ipatory statement endorsed and recorded as the first information report, is to be found in /Gnda Padayactni \yersus State of Tamil Nadu, (1971) 2 SCO 641, wherein reference was made to Pakia N'arayanswamy (supra) \ to observe as under."
11. As held by the Privy Council, a confession has to be a direct acknowledgement of the guilt of the offence in question and such as would be sufficient by itself for conviction. If it fa 1is short of such a p i enary acknowledgement of guilt it wou id not be a confession even though the statement is of some incriminating fact which taken along with other evidence tends to prove his guilt. Such a statement is admission but not confession. Such a definition was brought out by Chandawarkar, J., in 7?. v. Santya Bandtiu by distinguishing a Crl.A.Nos.32, 373 &587/2015 Page 15 of43 statement giving rise to an inference of guiit and a statement directly admitting the crime in Question. 12, In Pa /v/nder Paur V. Punjad the statement made by the accused was that who had placedher husband's dead body in a trunk and had carried it in aJeep and thrown it into a weii. But with regard to the cause of death, the statement was that her husband had accidentally taken a poisonous substance erroneously thinking that to be a medicine. This Court referred to Pakala Narayanaswami case and the dictum of Lord Atkin and held that a statement which contained seifexcu i patory matter could not amount to a confession if the exculpatory matter is of some fact which if true would negative the offence alleged to be confessed. But the Court added that a statement to be a confession must either admit in terms of the offence or at any rate substantially ail the facts which constitute the offence, ^ ^ and that an admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. In Om Prakastt V. UP, the appellant was convicted under Section 161 read with Section 109 o1^ the Penal Code. Two statements made t>y him, Exs. P~3 and P-4, to the Assistant Agricu iturai Engineer, Aiigarh were relied upon as confessions of bribery having been given by him to public servants and upon which the High Court had based his convection. This Court set aside the conviction holding that neither of the two documents amounted to a plenary acknowledgement of the offence, that the statements were capable of being construed as complaints by him of having been cheated by the public servants named therein and that at best they might arouse suspicion that he had bribed them. In this conclusion, the Court approvingly cited Pakala Narayanaswami case and relied on the meaning of the word. COnfCSSiOIl given therein by Lord Atkin. In Faddi v. Madhya Pr-adesh, the appellant filed a first information report on the basis of which the dead body of his step son was recovered and three persons were arrested. As a result of the investigation', however, the appellant was arrested and was sent up for trial which resulted in his conviction and a sentence of death. In an appeal before this Court, he contended that the first information report ought not to have been admitted by reason of Section 25 of the Evidence Act and Section 162 of the Criminal Procedure Code. The contention was rejected on the Crl.A.Nos.32,373 & 587/2015 Page 16 of43 n ground that neither of the two provisions barred the admissibi i ity of the first information report as that report was oniy an admission by the appellant of certain facts which had a bearing on the question as to how and by whom the murder was committed and whether the statement of the appellant in the Court denying the evidence of certain prosecution witnesses was correct or not. Such admissions were admissible under Section 21 of the Evidence Act and as such could be proved against the accused.
13. It is true that in Queen -Empress. Nana, the Bombay High Court, following Stephen's definition of confession, held that a statement suggesting the inference that the prisoner had committed the crime would amount to confession. Such a definition would no longer be accepted in the light of Pakala Narayana Swam! case and the approval of that decision by this Court in Pal\yincler Kaur case. In U.P V, Deaman Upactnyaya, Shah, J., (as he then was) referred to a confession as a statement made by a person "stating or suggesting the inference that he had committed a crime". From that isolated observation, it is difficult to say whether he widened the definition than the one given by the Privy Council. But he did not include in the expression "confession" an admission of a fact, however incriminating, which by itself would not be enough to prove the guilt of the crime in question, although it might, together with the other evidence on record, lead to the conclusion of the / guilt of the accused person. In a later case of A. Nagesia v. BiPar, Bachawat, J., after referring to Lord Atkin's observations in Pakala Narayana Swam/ case and their approval in Pal\/inder Ka ur case defined a confession as "an admission of the offence by a person charged with the offence". It is thus clear that an admission of a fact, however i ncri rfi i nati ng, but not by itself establishing the guilt of the maker of such admission, would not amount to confession within the meaning of Sections 24 to 26 of the Evidence Act.
14. On the authority of those pronouncements by this Court, it is clear that the statement in question did not amount to a confession. It was an admission of a fact, no doubt, of an i ncri m.i nati ng fact, and which established the presence of the appellant in the deceased's room but which clearly was not Crl.A.Nos.32,373 & 587/2015 Page 17 of43 barred under Section 26, The Sessions Judge and the High Court were, therehore, right in hoiding it to be admissible and in relying upon it. In this view, counsers second contention also fails and has to be rejected."
15. Having examined the iegai position, we would hold and observe that the statemeht made by Imrana marked Ex.PW-29/A which she ahhi rms and reiterates in her statement under Section 313 Cr.P.C., would not be read as a confession which, in fact, it is not. However, the statement cannot also be read as a primary or core proof of the facts stated therein. The statement Ex. PW29/A, not being confession, would be admissible under Section 8 and also under Secti on 21 of the Evidence Act, but the prosecution must establish and prove their case and notjust refer to the statement Ex.PW29/A. It would be only read as an explanation given by the appellant Imrana and evidence and material must be produced by the prosecution to show and establish that she was th.e perpetrator or one of the perpetrators involved in the offence.
16. -We have referred to the evidence of the police officers who had visited the scene of crime i.e. residence of the deceased and the appellant Imrana [D~534, Wazirpur J.J. Colony, Delhi] in early morning hours of ir^ November, 2009 and at that time, Imrana was found to be present in the house. Th is factual aspect stands affirmed by Ishad Ah med, PW-1, who was also present at the residence of the deceased and the appellant ~ Imrana, a day earlier, till about 8:00/ 8:30 p.m. on 10.2.2009. Jabbir Ahmad (PW-3) has testified that he had seen Imrana at Jhuggi No.D-534, W a:^i rpur, J.J. Co Ionvj Delhi, in the earlv rnorning or 1T^ No\/ember, 2009. Imrana's presence at Crl.A.Nos.32, 373 & 587/2015 Page 18 of43 t J the said residence, being the wif^e cTthe deceased Nasir, was naturai and normai, and stands estabiished beyond any pale of debate. The place and time when the crime was committed is also beyond debate. The offence was committed in the intervening night between and 11 February, 2009, when the appellant Imrana and deceased Nasir were together in the property D-534, Wazirpur, JJ Colony, Delhi. These facts deciphered and estabiished are verifiabiy true. In the said factual background, we would examine Section 106 of the Evidence Act and the illustrations appended thereto, which reads thus."
IT. The import of the aforesaid section was examined by one of us (Sanjiv Khanna, J.) in Mohd. Faza! 1/s. State [Cri.A.No.243/2009 and other connected mattes] decided on 19'" May, 2014, wherein the following passage from Stnambu Natl-i Mehra 1/s. State of Ajmer, • AIR 1956 SC 404 was quoted.
Crl.A.Nos.32,373 & 587/2015 Page 19 of43 ^8 ij which it would be impossible, or at any rate disproportionately diff^icuit, f^or the prosecution to establish facts which are especially within the knowledQe of the accused and which he could prove without difficulty or inconvenience. The word II " I. especially stresses that. It means facts that are pre eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case, the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. it is evident that that cannot be the intention and the Privy c ounci I has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. Th ese cases are Attygalle v. Empenon A.I.R. 1936 P.C. 169 and Sene\/Iratne v. R. [1936]
10. xxxx
11. We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail hor expahd its ambit, and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diiigehce, as to the accused, the facts l( II cannot be said to be especially within the knowledge of the accused. This is. a section which must be considered in a commonsense way] and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the case with which the-accused could prove them, are all matters that " must be taken into consideration. The section cannot be used to undermine the well-established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts."
18. The following passage from Limukti MarotiLirkan 1/s. State of Matiarast-itra (2006) 10 SCC 681 was referred to. Crl.A.Nos.32,373 &587/2015 Page 20 of43 A 0' "14. Ifanoffence takes place inside the privacy ofa house and in such circumstances where the assaiiants have aii the opportunity to pian and commit the offence at the time and in circumstances of their choice, it wiii be extremeiy difficuit for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts, A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A j udge also presides to see that a guilty man does not escape. Both are public duties. (See Stiriand v. Director of Public Prosecution 1944 AC 315 quoted witin approval by AriJit Pasayat, J. in State of Purijab v. Karnaii Singh 2003 Cri LJ 3892). The law does not enjoin a duty on the prosecution to lead evidence cT such character which is • almost impossible to be led or at any rate extremely difficuit to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the-case. Here it is necessary to keep in mind Secti on 106 of the Evidence'Act which says that when any fact is especially within the 'knowledge of any person, the burden of proving that fact is upon him. illustration (b) appended to this section throws some light on the content and scope of this provision and it reads. (b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.
15. Where an offence like murder is committed in secrecy " W T / inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount' of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there wiii be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies Crl.A.Nos.32,373 & 587/2015 Page 21 of43 V entirely upon the prosecution and there is no duty at aii on an accused to offer any explanation." ~
19. Reference was also made to Pritpsi Sincjf-i 1/s. State of Punjab (2012) 1 sccro, wherein it has been held."
' relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. (See also Shambl-iu Natb Mebra v. State of /^'mer [AIR 1956 SC 404: 1956 Cn LJ 794], Sucha Singh v. State of Punjab [(2001) 4 see 375: 2001 see (eri) 717: air 2001 se 1436] and Sahade\/an v. 5tate [(2003) 1see 534: 2003 SeC (en) 382: AIR 2003 • Se215]). x x x x x
79. Both the courts below have found that the appellant" accused had abducted Shri Jaswant Singh Khaira. In such a situation, only the accused person could explain as to what happened to Shri Khaira, and if he had died, in what manner and under what circumstances he had died and why his corpus delicti could not be recovered. Aii the appei iant"accused failed to explain any inculpating - circumstance even in their respective statements under Section 313XrPC. Such a conduct Crl.A.Nos.32,373&587/2015 Page 22 of43 •t also provides for an additional link in the chain of ci rcumstances. The f^act as to what had happened to the victim after his abduction by the accused persons, has been within the special knowledge of the accused persons, therefore, they could have given some explanation. In such a fact situation, the courts below have rightly drawn the presumption that the appellants were responsible for his abduction, illegal detention and murder." 20, After referring to these pronouncements of the Supreme Court and the ratio thereof, in Mol-id, Faza! (Supra) it was held as under !
Secondly, the section is designed to meet exceptional cases where prosecution would be faced with d isproporti onate difficulty, if not an impossible task to establish facts which are especially within the knowledge of the accused.
44. The aforesaid provision i.e. Section 106 can be read with Section 114 which empowers'the court to assume existence cT facts which it thinks were likely to have happened. The true and correct position is that the State or the prosecution must prove basic factum probans in form of material or evidence from which presumption in law in the form of inference relating to further facts can be drawn. The burden of proof to establish the basic.factum probans is solely and exclusively on the prosecution/State and not on the accused who has a constitutionally protected right of silence. When factum probans establishes one set of facts, the court can infer and presume probability about existence or non" existence of a further fact, unless the truth of inference is disproved. Thus, the prosecution/State must first establish facts from which it is legally permissible to draw reasonable inference regarding certain other facts and thereupon the court can insist that the accused by virtue of special knowledge regarding existence of such facts is required to offer an Crl.A.Nos.32,373 &587/2015 Page 23 of43 L ) explanation for-the court to draw a difrerent inf^erence. Read in this manner, the burden oh prooh, it can be said remains on the prosecution/State and not on the accused. The probative burden is on the State/prosecution and has to be discharped but the prosecutor is entitled to plead that in the absence oh the evidence or explanation to the contrary adduced by the other side the court is entitled to presume and inher consequential hacts. ' But the accused should not be asked to prove Impossibility. The accused is not an investigator and lacks resources/power oh the State. The accused may be required to explain and state what according to him had happened when he was present with the deceased at time oh occurrence etc. The expianation may be ohhered by way oh questions in cross" examination, or by way oh explanation and statement under Section 313 Cr.P.C., or may otherwise appear to be apparent even hrom the prosecution version (in which case possibly It could be even argued that hactum probans is not established). Whether or not the explanation ohhered by the accused in a given case shouid be accepted or rejected would depend on the hacts oh the case like the conduct oh the accused, merits and probability oh the explanation, attending circumstances etc. The said explanation again Is not tested or evaluated on the highest parameter, but keeping In mind the hacts inciuding the dihhicult and practical impossibilities which the accused may hace. The preponderance oh the probability Is the criteria/test appl icable when it comes to the explanation oh the accused."
21. Recently In the State of Ralast>nan \/'ersus Tt-ial<ur SincjI-i, (2014) 12 see 211 it stands observed that Section 111 oh the Evidence Act lays down a rule that in a criminal case, the burden oh prooh Is on the prosecution and Section 106 is intended to reiieve the prosecution of that dutv- Section 106 is to take care oh a situation when the hacts are "especially" within the knowledge of the accused and it is well nigh Impossible or extremely dihhicult hor the prosecution to prove the said hacts given in the hactual matrix. Th us, where a crime takes Crl.A.Nos.32,373 & 587/2015 Page 24 of43 w}
22. place in a room or a dwelling house, the occupant whose presence Is established at the time or occurrence when charged with the offence shouid offer some expianation and when no explanation is offered or the expianation offered is found to be faise, the court can reiy upon the said factuai position as a stance against the accused. In x/iew df the aforesaid iegai position and factuai background, we wouid now examine the stand and stance of appeiiant, Imrana, with reference to Ex. PW-29/A and the version in her statement under Section 313 Cr.P.C. and other evidence on record. We have quoted verbatim Ex. PW-29/A and reievant portion of the statement of Imrana under Section 313 Cr.P.C. As per the said version unknown persons were aiiowed entry by the deceased Nasir after the former had knocked at the door, ciaiming that they had iron, copper and empty botties to seii. Th ree had caught hoid of her husband causing injuries and one of them had caught hoid and had prevented Imrana from shouting. Another statement given by the appeiiant Imrana is that the poiice officers inciuding Om Prakash (PW-31) after having made enquiries from both the Imrana and the neighbours, did not suspect Imrana's iuvo ivement. S. I. Dev Raj (PW-29), who was one of the first poiice officers to arrive at the spot, ha.s affirmed that the
1.0. had made enquiries from the neighbours. TheJtnuggi where the deceased and Imrana used to reside was thickiy popuiated and there were Jhuggis on adjoining sides with the common walis. The examination of the poiice case fiie wouid reveai that the neighbours had ciaimed that some iady had knocked at the door but out of fear they did not open the doors and speak to her. ACP Om Prakash (PW-31) has accepted that he had enquired from the neighbours as CrLA.Nos.32,373 &587/2015 Page 25 of43 X\ ( ^ well as Imrana on his arrival at the scene o-F crime and after making enquiries From 12 - 13 persons he beiieved that the statement oF Imrana was true. There is evidence to show that the broken bangle pieces were Found at the scene oF the crime. As against the aForesaid evidence there is teii tale and imperative evidence to show that Imrana was a co~participant and the version given by her as to the occurrence and cause oF injuries is condescendingly False and radiates contrivance. The version is make beiieF and disguised to hide the truth. We would in the succeeding paragraphs reFer to the said evidence and material.
23. We begin with reFerence to the evidence Found at the scene oF the crime and the FSL report marked Ex. PW31/G dated 9.4.2010. The photographs Ex.PW2/1 to 14 proved by PW[2], indicate that the deceased was sleeping on a Folding bed under a quiit. There were no marks or signs oF resistance, struggle or Fight with the alleged intruders who had committed the oFFence. The post mortem report does not mention and record any bodily injury other than the strangu iation mark. The belongings in the room were not disturbed or looted and this was not the motive or objective behind the crime. Nothing was apparently stolen or removed. The room was not ransacked or searched For va Iuabi es. There is no indication oF Forced or unFriendiy intrusion / entry into the premises. The photographs proFess and pontiFicate that the oFFence was committed when the deceased Nasir was in deep sleep. The deceased was wearing a T" shirt and an undei—wear at that time. Thus, he Was sleeping with his lower undergarment and was not wearing anything over the under wear. No one, specially a person who was newly married would Crl.A.Nos.32,373 &587/2015 Page 26 of43 / • J open the door to invite unknown persons at the midnight hour without putting on his iower garments, and that too in presence oh the newiy wedded wihe.
24. The scaied site pian marked Ex.PW16/A mentions two doors. One underneath the tin shade next to the main service road and the inside door next hor entering the sieeping room, which couid be accessed after crossing the passage and entry room the hirst hioor. Common sense wouid predicate that no one wouid have invited unknown persons at midnight inside the room where Imrana was present, even ih iate Nasir hor making quick money had got tempted and wanted to examine the goods statediy brought by unknown persons. It is in this context that viscera report oh Nasir marked Ex.PW31/G by the Senior Scientihic Ohhicer (Chemistry) is pertinent and conhi rmatory. Cn examination, sampie oh'biood, marked Ex.lC, was hound to be containing Aiprazoiam. The said report aiso states that presence oh metaliic poison and alcohol couid not be detected in the stomach, small pieces oh intestines, pieces oh liver, spleen and kidney. Aiprazine is a drug which induces central nervous system depressant activity. It is a white crystalline powder which on oral administration is readily absorbed. It can have muiti ehhect hrom task perhormance to hypnosis.
25. The FSL report marked Ex.PW31/G, which ahhi rms presence oh the said drug, wouid indicate the reason why Nasir did not ohher any resistance or hight back. It wouid be reasonable to inher that Nasir under the inhluence oh the said drug couid not react or even knew what was happening. Photographs, pontihicate that Nasir was in Crl.A.Nos.32,373&587/2015 Page 27 of43 •-..J slumber when he was strangulated and affirm that the drug Alprazine had Its effect.
26. Learned counsel for the appellants have submitted that there Is no evidence to show and suggest that appellant Imrana had administered Alprazlne, for testimony of Irshad Ahmad (PW[1]) that the deceased Nasir after taking tea had toid PW[1] that he was feeiing sieepy or the tea was tasting bitter wouid not indicate that Imrana had administered the said drug. It was highlighted that Irshad Ahmad (PW[1]) in his exam ination'i n".ch ief recorded on 2 August, 2010 had professed that appellant Imrana had brought three cups of tea, which the deceased, appellant and PW[1] had consumed. NasIr had complained that the tea was tasted bitter and had asked Imrana to taste it which was deciined by Imrana. Irshad Ahmad (PW[1]) has asserted that soon after taking tea, Nasir started feeiing sieepy. The version by Irshad Ahmad (PW[1]) it is submitted by the appeiiant should be disbelieved, for Irshad Ahmad (PW[1]) in his cross" examination on 14- November, 2011 had accepted that on 10'^ February, 2009, she had taken tea at about 4-5 p.m. and he had dinner at around 7-8 p.m. The time gap between the tea and the offence which was around midnight was highiighted. It is noticeabie that PW[1] in his testimony recorded on 2 August, 2010 did ciai m that Nasir, soon after the tea had felt sleepy. After closing the shop, PW[1] and Nasir went inside the room and had food, though PW[1] sometimes also proclaimed that he alone had food. The aforesaid discrepancies are inconsequential, for It does not matter when and how Alprazlne was administered, nor whether PW-1 and Nasir had food together or separately is of relevance. What is relevant and Crl.A.Nos.32,373 &587/2015 Page 28 of43 o J material is that the deceased Nasir was drugged ahd was strangulated while in sleep. The f^actum that the prosecutioh has not been able to show when and how the drug Alprazlne was administered does not count, for it was impossible Tor the prosecution to adduce the said evidence. It was-suggested that deceased Nasir could have himseir taken the said drug. No such suggestioh was given to the witnesses. That apart, presence o"F Aiprazine in the blood would deflate ahd negate Imrana's version that Nasir was up and about, and had opened the doors permitting entry to the perpetrators. The FSL report•marked Ex;PW31/G dated 9 April, 2010, therefore, punches holes and dents the plea and assertion of the appellant Imrana and affirms the prosecution case against her.
27 Irshad Ahmad PW[1] had professed that on 10"^ February, 2009, wh iie returning home he had seen the appellants Mohd. Shahid and Sunii. Portions of the aforesaid statement of PW[1] including the assertion that Nasir had protested that the tea was bitter, and of interaction with Mohd. Shahid and Sunii, we feel, are an ovei—statement and not true and correct rendition of facts. We would not on the assertion of the taste of tea reach a conclusion or finding that the tea was infused with the sedative with the intent to drowse. Albeit, this assertion is inconsequential and does not invalidate or erase our finding that the deceased Nasir was drugged as is affirmed by the FSL report. Similarly, the exaggeration, that PW[1] had seen Mohd. Shahid and Sunii, would not be a ground to reject and discard Irshad Ahmad's (PW[1]) deposition that he was with the deceased and Imrana till about 9 PM on 10'" February, 2009 and on 11 February, 2009 at about 8 a.m., he reached the house of Nasir after being informed Crl.A.Nos.32,373 &587/2015 Page 29 of43 about theft and that Nasir was beaten. On reaching Nasir's residence, Irshad Ah mad (PW[1]) had met Imrana, who was crying and had hugged him. Imrana had informed that unknown persons, four in number, had entered their Jhuggi and kilied Nasir after iooting money. Irshad Ahmad (PWl) testified that the appeilant Imrana had alieged that she was raped, which again is an over ampi ification and not a true statement. Th is was not stated by Imrana in Ex.PW29/A. Noticeabiy, this fact or that money was iooted were not mentioned in the statement of PWl Mark PW/DA recorded under Section 161 Cr.P.C. PWl Inas however correctly avowed having seen Nasir lying dead on the cot and his face was covered with a towei. On removing the towe i, PWl noticed iigature mark on his neck. Poiice and media had reached the spot and that Imrana's statement was recorded by the poiice. Mobiie phone of Irshad Ahmed (PWl), the witness h i mse if affirms was taken by the poiice in custody and returned later. PWl in response to a question put by Additional Public Prosecutor was positive that Nasir was using mobiie phone number 9811423903, which vyas purchased on Identity papers or Mohd. Farooq (PW[8]). On a leading guestlonj PWl had elaborated that PWl had inquired from Imrana about this mobiie telephone of deceased Nasir, but Imrana had profaned and pleaded ignorance. PWl further testified that in the evening on 11 February, 2009, he had seen appeilant Mohd. Shahid sitting near the bus stand of route number 115, near Nimri Colony and informed the poiice. Thereafter, he returned to the spot with the poiice and the appellant Mohd. Shahid was arrested vide arrest memo marked Ex. PW1/L. On personal search vide memo Ex.PWI/M, two mobiie phones Crl.A.Nos.32, 373 &587/2015 Page 30 of43 < } v>5 including the mobile phone belonging to Nasir or Nokia make was recovered rrom him, The second mobile phone, which was also or Nokia make, had picture-or a rish. The two mobiie' phones were seized and sealed vide memos Ex.PWI/A and Ex.PWl/B, which were signed by PW[1] at point A. The mobiie phone or Nasir recovered rrom accused Mohd. Shahid had a SIM card or IDEA, which did not belong to the deceased, Nisar. One more SIM card or IDEA was recovered rrom the appellant Mohd. Shahid. The Nokia mobile phone or red and cream colour or the deceased Nasir was identiried by Irshad Ahmad (PW[1]) and marked as Ex.P[5]. The second J mobile phone with a key ring or rish shape or yellow colour having the word "Shahid" on the one side and "Lovely" on the other,side was identiried by PW[1] and marked Ex. P-6.
28. A Signiricant assertion made by Irshad Ahmad (PW[1]) in his cross" examination was that Imrana was taken to the police station on 11"^ February, 2009 and was not released and permitted to go back home. The aroresaid ractum is important.and would show that appellant Mohd. Shahid had gained custody or the mobile phone or the deceased Nasir sometime In the intervening night between 10*^^ and 11 February, 2009 i.e. the night when Nasir was stiried to death. When Imrana was in the police custody or at the police station, she could not have transherred and given possession or this phone.
29. Jabbir (PW[3]) is the elder brother or deceased Nasir, who used to also / work as Kabstri in Delhi. He am rms that Nasir had recently got married to appellant Imrana, and latter had come to Delhi rrom the village on 8 February, 2009, I.e. about 2~3 days berore the occurrence. He conrirms presence or appellant Mohd. Shahid in Delhi and his arrest from the bus stand on 12"" February, 2009 in the p5r~GS©i ic© of^ Irsi i©ciJ /\[ im©c! (PW[1]). He also afrirms that In the morning hours O'F ir^ February, 2009, he had seen the dead body of his brother Nasir, which was lying on the cot, and had iigatur;e mark of a rope around his neck. Imrana at that time had professed and stated that four persons were responsible. Two of them had caught hold of Nasir, while two others had restrained her and pressed her mouth. It is noticeabie that Jabbir (PW[3]) has not signed the personai search memo o-f the appeilant Mohd. Shahid marked Ex.PWI/M, arrest memo marked Ex.PW1/L and the seizure memos of the two F mobiie phones marked Ex.PW1/A and B. This expiains the reason why Jabb ir (PW[3]) had not deposed and testified on recoveries etc.
30. SI Dev Raj (PW29)•©"rrirms his visit to the f^uggi in th© morning hours on IT" February, 2009, the version of Imrana, questions asked from Imrana about the mobiie phone number 9811423903 of Nasir and her ignorance as to where the mobiie phone was. P\A/-29 affirms that Irshad Ahmad (PW-1) had met and informed them that Mohd. Shahid was sitting at the bus stop of route number 115. Mohd. Shahid was arrested from the said spot. Mobile phone of red and r' cream colour without SIM card was recovered from Mohd. Sh ahig and seized vide seizure memo marked Ex.PWI/A, which was signed by SI E)ev R^ (PW~29) at point B. Another mobile phone of Nokia • ~ make with SIM card was seized from the appellant Mohd. Shahid and taken into possession vide seizure Ex.PW1/B. PW29 also proved recovery of the second SIM card.
31. Inspector Satya Prakash (PW30) has similarly testified as to his visit to theJhuggi on ir^ February, 2009 and that on 12"^ February, 2009, Mohd. Shahid was arrested at the instance of Irshad Ahmad (PW[1] ) and the mobile phone of the deceased Naslr without SIM card and the second mobile phone with SIM card o'T Idea were seized vide seizure memos Ex.PWl/A and Ex. PW1/B, respectively. A second SIM card of Idea, was also recovered.
32. ACP Om Prakash (PW31 ), who was theh posted as the SHO, has graphically narrated the facts noticed when he had paid a visit to the Jhuggi at about 8.40 a.m. on 11 February, 2009, the statement made by appellant Imrana at that time, registration of FIR etc. ACP 0 m Prakash (PW31) has stated that he had ingulred from Imrana as to Q the mobile phone of the deceased Naslr and she had disclosed the number as 9811423903, and had claimed that she (Imrana) did not know what had happened to the mobile phone. He has also testified on the arrest of the appellant fviohd. Shahid on 12'^ February, 2009 from the bus stand at the Instance of Irshad Ahmad (PW[1]), recovery of the two mobile phones Including one belonging to the deceased Naslr without SIM card and their seizure vide memos Fx.PWI/A and Fx.PWI/B. A nother SIM card was recovered. /\ppellant IVIohd. Shahid was arrested vide memo O Fx.PWI/C.
33. As noticed above, Irshad Ahmad (PW[1]) has stated that deceased Naslr was using mobile number 9811423903, which was procured on the Identity paper of Mohd. Farooq. The said Mohd. Farooq had appeared as PW[8]. This witness has accepted that deceased Naslr had a Kabari shop and had obtained a mobile connection on his Identity papers proclaiming that he had hahded over a photocopy of his election Identity card to the deceased for the said purpose. However, Crl.A.Nos.32,373 &587/2015 Page 33 of43 t-v/ PW[8] denied ha\/ing the receipt cT the Sll\/1 card or that mobile connection number 9811423903 was issued on his identity papers. We reject this portion and deniai o-f Mohd. Faroop (PW[8]), in view o"r the posltiN/e testimony o"r Irshad Ahrrnad (PW[1] ) and aiso of' Deepak (PW20), Nodal OfTicer, Vodafone IVlobile Services Ltd.I who had proved the customer appiication form for mobile connection number 9811423903 issued on 9'" April, 2003 on identity paper to Mohd. Farooq (PW[3]) i.e. the self"attested photocopy of PWS's driving license. The customer appiication form was marked Ex.PW20/B. It is correct that on the said application form Ex.PW20/B number Q 9999372003 was written but the same^_was struck off and thereafter V number 9311423903 has been written. To us, it is obvious, that this correction was made when the SIM card was issued and this is not a case cf interpolation or "Tabrication o'T documents. Deepak (PW20) had produced and proved the CDRs of mobile phone number 9311423903 for the period 25'^ December, 2003 to ir^ Eebruary, 2009 marked Ex.PW20/A. The said witness had aiso proved certificate under Section 65B of the Evidence Act, which was marked Ex.PW20/D and the cell location chart marked Ex. PW20/E. IMEI mentioned and recorded in the CDR marked Ex.PW20/A is ^ 35293702304264(0). This affirms that the SIM of telephone number 9311423903 was inserted and used in the mobile instrument with IMEI number 35293702304264(0).
34. Hussain M. Zaidi (PW19), Nodai Officer. Idea Cellular Ltd. had proved the customer application form for mobile telephone connection number 9639962567, issued to K/lohd. Shahid vide Ex.PW19/C on the basis of his voter identity card marked Crl.A.Nos.32, 373 &587/2015 Rage34 of 43 Ex.PW19/B. The said witness had also produced the call details of the said mobile connection for the period 1January, 2009 to 11"^ Februarvj 2009, which was marked Ex.PW19/A ahd had stated that the said details were retrieved froIH the company's main server and these details could not have been tempered with. Elowever, he had not produce the certificate under Section 65B'of the Evidence Act. Elence, we would read and examine CDRs of telephone number 9639962567.
35. The trial court has In the earlier portion of theJudgement referred to the CDR of telephone number 9639962567 for 11 February, 2009, which shows that the SIM card of telephone number 9639962567 was Installed in the Instrument of the deceased with IMF! number 35293702804264(0) at about 1.40 hours on 1T*^ February, 2009. However, the said chart has not been proved and Is not an exhibited document, hence It cannot be taken Into consideration. The CDR marked Ex.PW19/A ends on 7 February, 2009. Had care and cautlon been taken by the prosecution to prove the CDRs, they cou Id have relied on them. We have to Ignore and not take this evidence Into consideration. The prosecution can, however, rely upon the seizure (memo Ex.PW-1/A) dated 12.r p ebruary, 2009 Which mentions the IMEI number of the mobile phone recovered from the appellant, Mohd. Shahid as 35293702804264(3) and the CDRs of the deceased Nasir's telephone number 9811423903 marked Ex.PW- 20/A which were down'loaded on 17 September, 2012. The CDRs Ex.PW20/A confirm that the deceased was using a mobile Instrument with IMEI No.35293702804264(0), I.e. the Instrument recovered from Mohd. Shahid. Thus, the mobile Instrument Crl.A.Nos.32, 373 &587/2015 Page 35 of43 belonging to and being used by the deceased was recovered and seized •From Mohd. Shahid. Irshad Ahmad (PW[1]) had IdentiFied the phone. The mobile phone instrument oF the deceased mark Ex.P-6 was proved and reFerred to by S.l. Dev V Raj (PW29), Inspector Satya Prakash (PW30) and ACP Om Prakash (PW31). The last or the 15'^ digit oF the IMEI Number changes has been specirically shown/ indicated in bracket as it is not statistic. "The first 14 digits are relevant and determinative. [See Judgment in State Vs. Mol-id. FaJzaJ_ajnd_Aj2£^- reported 2007 (203) DLT 385], The CDRs marked Ex.PW-20/A also shows that SIM card 9811423903 and the mobile phone in question were last used together on 10"" February, 2009 at 21:59 hours.
36. It is clear to us that the appellant, Imrana, could not have committed the oFFence and strangulated the deceased ail alone. Involvement oF a second person is, thereFore, quite apparent. Imrana was new and had recently (2/3 days back) arrived in Delhi and was hardly acquainted with the residents oF the locality. A co-participant/ perpetrator could only be a person who was already known and close to her. Mohd. Shahid was known to her, and as per the prosecution both oF them liked each other. Appellant, Mohd. Shahid was arrested in Delhi, a day aFter the occurrence and was Found to be in possession oF the mobile phone instrument oF the deceased. Mohd. Shahid is the parlous second person and a Joint participant in the oFFence strangulating Nisar. Appellant, Imrana has claimed that she was taken to po iice station and conFi ned in the morning hours oF 11 February, 2009. Irshad Ah mad (PW[1]) has testlFied that indeed Imrana was not allowed to return. Once the police had reached the Crl.A.Nos.32,373&587/2015 place 0"F occurrence and interroQated Imrana, she had no occasion to get in touch with Mohd. Shahid. Thus the two appellants Imrana and Mohd. Sh ahid, did not interact and could not have met after 8:40 a.m. on 11 February, 2009. The CDRs for EX.PW20/A as noticed above prove and establish that till 21:59 hours on 10'" February, 2009, mobile phone instrument of the deceased Nasirwas being used by him with the SIM card. Thus it is in the intervening night between 10'" February, 2009 past 21:59 hours and before 8:40 a.m. on IT" February, 2009, that the mobile phone instrument of the deceased had changed hands to come into the custody and possession of appellant, Mohd Shahid. The aforesaid finding proves and establishes a pertinent connect and link of Mohd. Shahid with the offence, when we cumulatively account for his closeness and involvement with the appeiiant, Imrana, prior to the incident. They belonged to the same native village. Even, as per the statement of Imrana, Mohd. Shahid was present in Delhi on 12'" February, 2009, though she claims that Mohd. Shahid had reached the police station along with her father. ST. Recovery of the mobile phone of the deceased from the appeiiant, Mohd. Shahid would be covered by illustration (a) to Section 114 of the Evidence Act, as the recovery was "soon after" the crime was committed. We have expressly excluded the possibility of the appeiiant Imrana having passed on the mobile phone of the deceased on or after the police had reached the place of occurrence. It would be quite naturai and logical to infer that the appei iant, Mohd. Shahid had taken the phone with him before the police had started making enquiries about the phone from Imrana. The mobile phone went Crl.A.Nos.32,373 &587/2015 Page 37 of43 / T missing the night and soon after Nasir was throttied to death. The death and ioss of phone were a part of the same transaction. The piausibie and apparent reason why the mobiie phone instrument of the deceased was not ieft at the piace of occurrence, were the teiitale evidence of the caiis made from the phone. CDR Ex.PW20/A of the deceased Nasir 9811423903 record exchange of caiis with teiephone No. 9702810355, which as per the prosecution was the phone number of Mohd. Shahid. We are aware and conscious that prosecution is unabie to estabiish that Mohd. Shahid was a subscriber of this Idea Ceii no. 9702810355, for the customer { appiication form was untraceable [(See testimony of Sh. Hussain M. Zaidi (PW19) and Sh. Amar Nath Singh (PW23), who have proved and piaced on record the compiaint made to the police marked Ex.PW23/A]. However, the two appeliant were unaware that the customer appiication form of number 9702810355 was untraceabie.
38. This Bench has examined, presumption arising as under liiustration (a) to Section 1,14 of the Evidence Act, in. CriminaIAppeai 998/2012 Sti^LJlot 1/s. State and a connected appeai decided on 24.11.2015, to elucidate that no fixed time or period can be read into and set up as a test iine, when we examine the question whether the possession was 'recent' or 'soon after', for the time or period is dependent upon severai factors. The presumption envisaged by liiustration (a) to Section 114 of the Evidence Act can, be extended to impiicate an accused for a graver offence i i ke robbery and murder, if they form part of the same transaction. Lastiy, the weight or evidentiary value to be accorded In such cases would again depend upon factors, like the nature and character of goods stolen, whether they are easily Crl.A.Nos.32,373 &587/2015 Page 38 of43 (> available and readily dealt with, whether they can be planted as evidence or could have f^requent changed hand within the time gap between the occurrence and recovery etc. We are conscious that It may not be prudent to draw In-ference oh Involvement In cases oh murder solely on the basis oh possession oh stolen property, hor the said possession could-raise suspicion or even strong suspicion, but may not be conclusive to establish that the holder was necessarily the perpetrator, but In the present case, we have not only reherred to the recovery oh the mobile phone oh the deceased, but have noted and given cumulative ehhect to other material evidences like the relationship between the two appellants (Imrana and Mohd. Shahid), presence oh the appellant, Mohd. ShahlcJ In Delhi though he Is not a resident oh Delhi, the manner In which the ohhence was committed at the midnight, ahter Nasir was drugged and the story concocted by Imrana as a cover up, etc.
39. There Is yet another aspect oh this case. On the basis oh disclosure statement oh Mohd. Shahid marked Ex.PW1/C, the police got leads and had arrested the third appellant, Sunll hrom the guest house at C" 116, Sector-44, Noida; U.P vide arrest memo marked Ex. PW1/F. Gaurav (PW-4) and AdItya Prakash (PW-5) have deposed about the arrest and recoveries hrom the appellant Sunll. They ahhirm that the police had Interrogated Sunll who had produced a red colour pouch hrom his pocket. On Inspection, It was hound to contain one necklace having a golden thread, one necklace without thread, a pair oh pazeb, two rings and a pair oh ear tops. The Jewellery were seized vide seizure memo Ex. PW-4/A and the appellant Sunll was arrested vide arrest memo Ex.PW-1/E. Gaurav (PW-4) Identlhled the Jewellery Crl.A.Nos.32,373 &587/2015 Page 39 of43 articles, which were marked Ex.P-Q collectivelv- On a leading guestIon, PW-4 clari'Tled that the appellant Sunll was arrested on February, 2009 and not on 11'" February, 2009, as erroneously stated by him earlier. Aditya Prakash's (PW-5) deposition is atf^i rmative and supports the prosecution case, PW-5 did not remember the date, month or year oh the occurrence and on the particuiar day, but has averred that at about 12:30 a.m., one of the staff members of his guest house had informed him that poiice was searching for Sunii. PW-5 reached the guest house at about 5:00 a.m. and had noticed that Sunil was in police custody snd another accused Mohd. Shahid was aiso present with the poiice. Fie was shown a packet containing Jewel iery stated to have been recovered from the packet found in Sunil's room. PW-5 had signed the recovery memo Ex.PW-4/A at point 'B'. PW-5 identified thejeweiiery (Ex.P-9). He was cross" examined by the Pubiic Prosecutor on certain aspects mentioned in r his statement under Section 161 Cr.P.C., but this cross-examination is i nconsequentia i and irreievant.
40. We do not think that the deposition of Gaurav (PW-4) and Aditya Prakash (PW-5) can be disregarded and disbeiieved for the poiice personnei from Noida, Uttar Pradesh had not Joined during the proceedings. Noida is adjacent to Deihi and a part of the Nationai Capitai Region. There is a ring of truth in the depositions of PW-4 and PW-5, which supports the prosecution version. The third appeliant Sunii was arrested and from him,Jewei iery was recovered. The aforesaidJewei iery has been identified by Irshad Ahmed (PW-1) and marked as Ex.P-9.
41. The Jewellery In question belonging' to the deceased Nasir and f Imrana was taken away at the time of occurrence, In all probability for the reason that Imrana did not want to loose her right and claim on these valuables orgive any opportunity to Nasir's family to stake a claim. The aforesaid articles were recovered at the behest and at the instance of Mohd. Shahid from the appellant, Sunll. Thus, as against, Mohd. Shahid the said recoN/erv O'T the Jewellerv would, attract the presumption under Illustration (a) to Section 114 or the Evidence Act, sibeit It would not be a conclusive evidence to show his involvement In the murder. It would" b.e a corroborati ng factor and when read with other material facts established and proved, expose and pin him. However, against the appellant Sunll, except for the recovery of the aforesaid Jewellery items and that too at the behest of the appellant Mohd. Shahid, there Is no other evidence or incriminating material to show his Involvement or that he was one of the perpetrators. Irshad Ahmed (PW-1), no doubt avows as to the presence of Sunll at about 8:30 to 9:00 p.m. on 10'^ February, 2009 along with I\/lohd. Shahid, but we have not accepted this version and statement of PWH for several reasons. This part of PW-l's deposition, which is the edifice of the charge of conspiracy against Sunll Is not proved and credible. However, as noticed above, this would not affect our finding that the appellants, Imrana and Mohd. Shahid, have been rightly convicted for the offence under Section 302 read with Section 120-B IPG. At best, it appears to us that.appellant, Sunll had helped the appellant, Mohd. Shahid, whom he knew, as he had kept the Jewellery and other articles belonging to Imrana and the deceased, Nasir, with him. It could be urged and r stated in -Favour or Sun11 that Mohd. Shahid did not want to carry and move around with the said vaiuable articles in his possession.
42. BeFore' we conclude, it would be appropriate to deal with the contention raised on behalFoF Imrana, which the counsel highlighted also Finds reFerence in the police case File. It was urged that Imrana had recently come to Delhi and had no acquaintances. The police oFFicers had interacted with the neighbours, who had conFirmed that a lady in the middle pF the night had knocked at their doors and was possibly crying, but out oF Fear the neigbours did not open the door. The neigbours it appearsVeit that it was Imrana, who had knocked at the doors. If this version is to be accepted then we must accept the statement oF Imrana that perpetrators were unknown intruders, who were allowed a Friendly entry. For several reasons, elaborately discussed above, we have r^ected the said statement. These need not be reiterated and re'stated once again. Indeed, Falsehood and fabrication in Imrana's version having been uncovered and revealed, would add to the list oF incriminating circumstances, indicting and encircling her. It is possible that Imrana may have knocked at the door toJustlFy and support her Facile story. For otherwise her conduct would' have remained a suspect. Pertinently, Imrana did not use or call up the police at No.100 From the mobile phone oF the deceased., This apparently was not done, as it would have exposed and implicated Imrana. The mobile phone instrument oF the deceased with the SIM would have been taken into possession by the police and this would have led to dlFFicuities and problem For Imrana and Mohd. S hahid. 2015:DHC:11970-DB.0
43. Police case diaries can be relied only to the limited extent as stipulated In section 172 Cr.P.C. The Code stipulates that criminal court can ask for the police case diary and may use such diary not as evidence but as an aid, in such enquiry or trial. In the present case the police case diary show that police had acted olajectively and on the first occasion were inclined to accept Imrana's elucidation as to the occurrence, but as investigation progressed, facts were ascertained and scrutinized, truth emerged and the faisity of Imrana's statement became apparent and certain.
44. In view of the aforesaid discussion, we dismiss the Criminal Appeal Nos. 587/2015 and 32/2015 preferred by the appellants Imrana and Mohd. Shahid and their conviction and sentences are maintained. However, the Criminal Appeal No. 373/2015 filed by the appellant, Sunll, is allowed and his conviction under Section 302 read with Section 120-B IPC is set aside and quashed. Appellant, Sunil will be released forthwith, unless he Is required to be detained in accordance with law, in any other case.
45. The appeals are disposed of.
DECEMBER 4, 2015 Ssn/VKR Crl.A.Nos.32, 373 & 587/2015 SANJIV KHANNA (JUDGE)
R.K. GAUBA (JUDGE) Page 43 of43