CRL.A. 72/2005 Page 1 of 36

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 17.08.2026

Pronounced on: 25.09.2026

Uploaded on: 25.09.2026

# CNR No. DLHC010513472005

+ CRL.A. 72/2005

HASMAT ALI .....Appellant

Through: Mr. Mohd. Nasir, Mr. Tabrez,

Mr. Javed, Mr. Saad, Advocates

with appellant in person.

versus

STATE NCT OF DELHI .....Respondent

Through: Mr. Aman Usman, APP for the

State with Mr. Manvendra

Yadav, Advocate with Insp.

Abhijit Kumar, PS-Seelampur.

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

HON'BLE MR. JUSTICE RAVINDER DUDEJA

J U D G M E N T

RAVINDER DUDEJA, J.

1. The present appeal has been filed by the Appellant Hasmat Ali

against the judgement of conviction dated 22.03.2004[“impugned

judgement”] and order on sentence dated 25.03.2004 passed by the

learned Additional Sessions Judge[“Trial Court”] in SC no.115/2000

in case FIR no. 12/2000 registered under Section 302, 364 of the

Indian Penal Code, 1860 [“IPC”], Police Station [“P.S”] Seelampur.

BRIEF FACTS:

2. The prosecution case, as set out in the impugned judgment, is

that the appellant, Hasmat Ali used to work with the deceased Mohd.

Hanif. On 09

th

January, 2000, Smt. Husan Bano, the wife of the

CRL.A. 72/2005 Page 2 of 36

deceased, lodged a missing report of her husband at PS Seelam Pur. In

the said report, she stated that her husband was taken away by Hasmat

Ali on 31

st

December, 1999 at about 12.00 noon on the pretext that

they were to go to Jaipur in connection with some work. When her

husband Mohd. Hanif did not return back, DD No. 6-A dated 09

th

January, 2000 (Ex. PW-1/A) was recorded. The same was assigned for

investigation to SI Virender Kumar Bagoti (PW-25), who along with

Constable Santosh (PW-15), reached at the house of complainant

Husan Bano and recorded her statement. On the basis of such

statement, an FIR was registered under Section 364 IPC (Ex. PW-

3/A).

3. PW-25 interrogated Habib, the son of the complainant. It came

to notice that Hasmat Ali was residing at Ranjeet Nagar. PW-25 along

with Constable Santosh went at the house of Hasmat Ali at Ranjeet

Nagar, from where, he was arrested. Upon interrogation, he gave

disclosure statement (Ex.PW-25/A), wherein, he confessed to have

murdered Mohd. Hanif in the area of Bulandshahar, U.P. He disclosed

about the place where he had thrown the dead body.

4. On 11

th

January, 2000, the police team took Hasmat Ali and the

son of the deceased at Kotwali, Bulandshehar. There they came to

know that the dead body of one person was recovered on 02

nd

January

2000 from the fields of Khachera, behind Shilkarpur, Bus Stand, New

Faislabad, Bulandshehar, U.P. and that the said body had not been

identified and was buried after getting conducted the post-mortem. It

was also revealed that the clothes and the photographs of the body

were deposited in the concerned Malkhana.

CRL.A. 72/2005 Page 3 of 36

5. The clothes of the deceased and one pair of “jutti” of yellow

colour were taken out from the Malkhana from a sealed parcel and

was shown to the son of the deceased. The son of the deceased

identified the body to be of his father on the basis of the photographs

and clothes shown to him. Appellant Hasmat Ali then led the police

party to the place where he had thrown the dead body. Constable

Rajender (PW-21), from the concerned police station, also joined in

the police party to the place of burial, where the grave of the deceased

was pointed out.

6. Hasmat Ali was brought back to Delhi. Upon further

interrogation, he named Mohd. Iqbal to be his partner in the crime.

Statements of witnesses were recorded, including that of one Yasin,

who disclosed about the extra-judicial confession made by Hasmat Ali

regarding the murder of Mohd. Hanif.

7. During investigation, police came to know that Hasmat Ali was

working with the deceased Mohd. Hanif, but failed to keep proper

accounts of the payments collected by him from Jaipur. He had taken

the deceased Mohd. Hanif with him 01

st

January, 2000 on the pretext

to get the payments from the shopkeepers at Jaipur. However, they did

not go to Jaipur. During this period, Hasmat Ali used to make

telephone calls, telling the family members of the deceased that the

deceased would return soon. When the deceased did not return for

about eight days, his wife Husan Bano suspected the involvement of

Hasmat Ali in the commission of the crime and ultimately lodged a

report with the police. After his arrest, Hasmat Ali confessed his guilt

and pointed out the place where he had thrown the dead body of the

CRL.A. 72/2005 Page 4 of 36

deceased. The body recovered by the police at Bulandshehar on 02

nd

January 2000 was connected in this case to be that of deceased Mohd.

Hanif.

8. Upon completion of investigation, charge sheet was filed

against the appellant Hasmat Ali and co-accused Mohd. Iqbal.

PROCEEDINGS BEFORE THE LEARNED TRIAL COURT:

9. The learned Trial Court framed charges under Section 302/34

IPC against the appellant and co-accused Mohd. Iqbal. A separate

charge under Section 364 IPC was also framed against the appellant

Hasmat Ali. The appellant and the co-accused Mohd. Iqbal pleaded

not guilty and claimed trial

10. In order to bring home the guilt of the accused persons, the

prosecution examined a total of 25 witnesses including the wife (PW-

2), sons of the deceased (PW-5/6 and PW-7), the Dhaba owner Mukut

Lal (PW-9), brother-in-law (PW-11) and Father-in-law (PW-23) of the

deceased, witness to the extra-judicial confession, Mohd. Yasin (PW-

13), police officials from Bulandshahar (PWs- 18, 20, 21 and 24) and

the Investigating Officers of the case, Inspector Rajender Gautam and

SI Virender Kumar (PW-16 and 25).

11. After the completion of the prosecution evidence, the

statements of the accused persons were recorded under Section 313 of

the Code of Criminal Procedure, 1973 (“Cr.P.C.”), wherein they

denied all the incriminating evidence appearing on record against

them. The stand of the appellant was that he was falsely implicated in

the present case. It was stated that PW-12 Aslam, who appeared as a

witness in the present case, had enmity with the co-accused Iqbal, as

CRL.A. 72/2005 Page 5 of 36

his son had divorced the daughter of PW-12 Aslam’s sister. It was

further stated that, at the instance of PW-12 Aslam, a criminal case

under Section 498-A IPC had been registered against the family

members of accused Iqbal at Bulandshahar, UP. He preferred not to

lead any evidence in his defence.

12. The learned Trial Court, vide impugned judgment dated 22

nd

March, 2004, convicted the appellant Hasmat Ali under Section 302

IPC, but co-accused Mohd. Iqbal was granted benefit of doubt and

was acquitted. Vide order dated 25

th

March, 2004, the appellant

Hasmat Ali was sentenced to undergo imprisonment for life with fine

of Rs. 500/-, and in default of payment of fine, he was awarded

Simple Imprisonment for a period of one month under Section 302

IPC.

13. The learned Trial Court was of the view that the dead body

recovered on 02

nd

January 2000 was established to be that of deceased

Mohd. Hanif on the basis of the identification from the photographs

Mark X & Y and the clothes Ex. P-1 to P-5, which the deceased was

wearing at the time of incident. The learned Trial Court also

concluded that Mohd. Hanif had met with homicidal death and the

material on record fully establishes the employment of the appellant

with the deceased prior to the occurrence. The learned Trial Court

believed the evidence of last seen, observing that the prosecution has

examined several witnesses to prove the same and that they had no

motive to falsely implicate the appellant and to let the real culprit go

scot-free. The learned Trial Court was of the view that the discovery

of the place where the dead body was thrown by Hasmat Ali and

CRL.A. 72/2005 Page 6 of 36

identification of dead body by PW-6 Habib on seeing the photographs

and clothes of the dead body recovered on 02

nd

January, 2000 are

material circumstances to connect Hasmat Ali with the commission of

murder. The learned Trial Court observed that the appellant had failed

to account for the payments collected by him on behalf of the

deceased and therefore had the motive to commit the offence. With

regard to the conduct of the appellant, the learned Trial Court was of

the view that Hasmat Ali was found present at his residence on 09

th

January, 2000. He did not explain where he remained present in

between 01

st

January, 2000 and 09

th

January, 2000. He did not

produce any witness to show his presence at any other place, that is, at

his residence or at his place of job during this period. Nothing was

found on record to show that Hasmat Ali used to do any specific job at

a particular place during this period. This concealment of material fact

by Hasmat Ali was taken as an unnatural conduct. The learned Trial

Court, however, disbelieved the circumstance of extra-judicial

confession. Notwithstanding the same, the learned Trial Court

concluded that the circumstances established on record by the

prosecution proved the guilt of Hasmat Ali in the commission of

murder. Non-explanation of the proved facts was considered as an

additional link in the chain of circumstances to connect Hasmat Ali

with the commission of the offence, and accordingly, the finding of

conviction was returned against the appellant.

SUBMISSIONS ON BEHALF OF THE APPELLANT:

14. The learned counsel for the Appellant submitted that

prosecution has failed to establish a complete and unbroken chain of

CRL.A. 72/2005 Page 7 of 36

circumstances, pointing towards the guilt of the appellant. It was

submitted that the identification of the deceased was itself doubtful.

The body remained unidentified at the time of recovery and was

buried as an unclaimed body. However, on 11

th

January, 2000, the

same was identified only on the basis of the photographs and the

clothes. It was submitted that Avdesh Kumar (PW-14), who

conducted the post-mortem examination, deposed that the deceased

was a clean shaven man. The photographs Mark ‘X’ and Mark ‘Y’

also show that the deceased was a clean shaven man. However,

according to PW-2 and other witnesses, including the sons of the

deceased, Mohd. Hanif was having beard. The learned counsel

submitted that this inconsistency was significant in the context of the

prosecution case, particularly, when the body had initially remained

unidentified and unclaimed and was subsequently identified primarily

on the basis of the photographs and the clothes.

15. It was further argued that the missing complaint was lodged by

PW-2 only on 08/09

th

January, 2000, that is, after a substantial delay

of about eight to nine days from the date of the alleged disappearance,

without any satisfactory explanation for such delay. It was further

argued that the medical evidence does not corroborate the manner of

death, as the post-mortem doctor, PW-14, attributed the death to

coma, resulting from the ante-mortem injuries and opined that Injury

No. 4, a contusion on the left side of the head, was sufficient to cause

death, with no ligature mark or other characteristic injury of

strangulation having been noted, whereas, appellant Hasmat, in his

disclosure statement, stated that he had strangulated the deceased with

CRL.A. 72/2005 Page 8 of 36

his lungi.

16. It was further argued that the prosecution case suffers from

material contradictions with regard to the date of disappearance of the

deceased and the circumstances in which he allegedly left his house

with the appellant. PW-2, wife of the deceased, deposed that the

appellant had taken her husband to Jaipur for business purposes on

01

st

January, 2000, whereas, in DD No. 6-A, lodged by her, such date

was stated to be 31

st

December, 1999. The learned counsel contended

that this discrepancy was not a minor inconsistency, but goes to the

root of the prosecution case, concerning the last occasion on which the

deceased was seen with the appellant.

17. It was further submitted that as per the prosecution version, the

appellant committed the murder of the deceased with his lungi.

However, the said lungi was neither seized nor recovered during

investigation, and thus, the alleged weapon of offence is not

recovered.

18. It was further argued that there are other contradictions as well

in the testimonies of the witnesses, inasmuch as, PW-2 stated that she

went to PS Saleempur on 09

th

January, 2000, but did not state that

Aslam (PW-11) or any other person accompanied her, while PW-11

claimed that he and Alladiya (PW-23) had accompanied PW-2 to the

police station for lodging the missing complaint of Mohd. Hanif.

19. The learned counsel further submitted that the prosecution

witnesses were inconsistent even with regard to the persons who

allegedly accompanied the police and the appellant to Bulandshahar

on 11

th

January, 2000. PW-5/6 Mohd. Habib stated that he had

CRL.A. 72/2005 Page 9 of 36

accompanied the appellant and the police, whereas, PW-23 Alladiya

deposed that he, Farooq and Habib had accompanied the police and

the appellant to Bulandshahar. Mohd. Habib did not mention about

Farooq or PW-23 in his statement. Farooq, the brother in law of the

deceased, is neither cited nor examined as a witness in this case. The

learned counsel contended that these contradiction/inconsistencies are

of utmost importance because the prosecution sought to rely upon the

alleged disclosure and subsequent recovery to establish the appellant’s

involvement.

20. As per the stand of the prosecution, the appellant used to make

STD calls to the family of the deceased at a PCO booth belonging to

one Salim to mislead the family of the deceased, however, Salim was

neither examined nor produced as a witness, thereby, leaving this

circumstance wholly unsubstantiated.

21. As regards the alleged motive, it was submitted that the

prosecution sought to attribute misappropriation of money to the

appellant on the premise that he was working for the deceased as

money collector. However, no evidence was adduced to establish that

the appellant was employed by the deceased, collected money from

his customers or had misappropriated the same in any manner. The

investigating agency failed to identify, examine or produce any of the

customers of the deceased, and thus, no evidence has been brought

before the Court to establish the motive.

22. It was further submitted that as per prosecution case and the

testimonies of PW-25 and PW-5/6, the appellant Hasmat Ali led the

police party to the place where he had disposed the body after

CRL.A. 72/2005 Page 10 of 36

committing the murder and pointing out memo was prepared at his

instance. However, the veracity of the evidence of identification of the

site and the pointing out memo at the instance of the appellant has a

weak evidentiary value, because by that time, the body had already

been recovered by the police officials at Bulandshahar and therefore,

the place of recovery of body was already known.

23. It was further submitted that the learned Trial Court rightly

disbelieved the alleged extra-judicial confession, purportedly made by

the appellant to PW-13 Mohd. Yasin and therefore, the same could not

be relied upon to connect the appellant with the commission of the

murder. It was also contended that the evidence of last seen is also not

reliable and moreover the same is only weak kind of evidence and

cannot be relied upon without corroboration, which is not available in

the present case.

24. Accordingly, it was submitted by the learned counsel that the

prosecution has failed to establish the alleged motive, the last-seen

circumstance, the manner of death, the identity of the deceased with

certainty, the alleged disclosure and the recovery in a legally reliable

manner. The alleged extra-judicial confession had already been

disbelieved by the learned Trial Court, while the remaining

circumstances were either unsupported by independent evidence or

suffered from material contradictions. It was thus submitted that

prosecution has failed to prove the complete chain of circumstances

beyond reasonable doubt and therefore, the appellant was entitled to

such benefit.

SUBMISSIONS ON BEHALF OF THE STATE:

CRL.A. 72/2005 Page 11 of 36

25. Per contra, the learned APP duly supported the judgment

passed by the learned Trial Court, stating that the learned Trial Court

duly appreciated the evidence on record and recorded a well reasoned

finding convicting the appellant/accused. He submitted that the case is

based on circumstantial evidence and that the circumstances proved by

the witnesses lead to an irresistible conclusion that it is the appellant

who committed the murder.

26. It was submitted that PW-2 Husan Bano and PW-9 Mukut Lal

are the witnesses of last seen evidence with PW-9 being an

independent witness, having no reason to falsely implicate the

appellant. The learned APP submitted that PW-9 being an independent

witness, his testimony deserves due weight. He further submitted that

the testimony of PW-7 to the effect that he had gone to the Dhaba in

search of his father in order to accompany him, also finds

corroboration from the testimony of PW-9.

27. The learned APP further submitted that the prosecution has

been able to establish the motive behind the occurrence, and in this

regard, placed strong reliance on the testimony of PW-10 Mohd.

Tahir, who stated that he knew the deceased Hanif and had worked

with him for about 20-27 days prior to Diwali in the year 1999. He

further stated that after Diwali, he left the said work, as Hasmat had

started working with Hanif.

28. As regards the alleged contradictions and omissions in the

testimonies of the prosecution witnesses, it was submitted that the

same are minor in nature, and thus, cannot enure to the benefit of the

appellant, when the substantive evidence otherwise establishes the

CRL.A. 72/2005 Page 12 of 36

prosecution case. It was further submitted that the defence theory

regarding PW-12 Aslam and PW-13 Mohd. Yasin, being responsible

for false implication of the appellant, is not established during the trial

and no material has been brought on record to demonstrate any prior

enmity or circumstance, which could furnish a reason for the

prosecution witnesses to falsely implicate the appellant.

29. It was further submitted that prior to the disclosure statement of

the appellant, Delhi Police had no knowledge regarding the recovery

of the body by the Bulandshahar Police on 02

nd

January, 2000 or with

regard to the place of such recovery and this information came to their

knowledge only pursuant to the statement made by the appellant.

Thus, the portion of the disclosure statement which has resulted in

discovery of the aforesaid fact is admissible in evidence and is a

strong circumstance against the appellant.

30. The learned APP further submitted that the conduct of the

appellant constitutes an additional incriminating circumstance, and in

this regard, he placed reliance on the testimonies of PW-2 Husan Bano

and PW-11 Aslam, brother in law of the deceased, who stated that the

appellant used to contact the family of the deceased and mislead them

regarding the whereabouts of Mohd. Hanif. According to him, non-

examination of the PCO owner is also not fatal to the prosecution

case.

31. The learned APP thus contended that the identification of the

recovered body, the conduct of the appellant, coupled with the motive,

the last-seen evidence, the disclosure statement and the pointing out

proceedings form a complete and incriminating chain of

CRL.A. 72/2005 Page 13 of 36

circumstances pointing towards the guilt of the appellant. According

to him, the minor contradictions or omissions relied upon by the

defence are insufficient to dislodge the prosecution case, and thus,

prayed that the appeal be dismissed and the conviction and sentence of

the appellant be upheld.

ANALYSIS AND REASONING:

32. We have considered the rival submissions and have given our

anxious consideration to the same and have perused the material on

record.

33. In a case of murder, the identification of the body is of utmost

importance. As per the prosecution case, the first information

regarding the discovery of body from a vacant plot at Faisalabad,

within the jurisdiction of PS Nagar Kotwali, Bulandshahar, was

passed on to SHO, PS Nagar Kotwali, Bulandshahar by one

Swaleheen @ Swale (PW-22) vide document Ex. PW-22/A. PW-22

during his deposition before the Court, identified his handwriting and

signatures on Ex. PW-22/A, and during cross examination by the

learned APP, he admitted that the contents of the said application were

written by him, the same being the facts. However, he also stated that

he had not seen the dead body lying there before the police met him.

34. PW-18 SI Ramvraksh Verma, who was then posted at Police

Station Nagar Kotwali, Bulandshahar, deposed that on 02

nd

January,

2000, at about 12.40 am, GD No. 28 (Ex. PW-14/A) was recorded by

GD Writer regarding a dead body lying on a vacant plot near the field

of Khachera, Faisalabad, near Siana Bus Stand, Bulandshahar, and on

receipt of the same, he along with Constable Rajender Singh (PW-21)

CRL.A. 72/2005 Page 14 of 36

and Satyapal (PW-24) reached at the place of recovery of the body.

Upon inspection, the age of the body was found to be about 45 years.

The body was wearing safari suit of Saleti colour, one jersey and

Rajasthani shoes with socks. At that time, the face of the body was

clean shaven. He deposed that he had the body photographed. All

possible efforts were made for the identification of the body, but

without any success. Thereafter, the inquest form (Ex. PW-14/A-2)

was filled up and the body was sent to the mortuary for post-mortem.

He further deposed that the dead body was unclaimed and therefore,

the same was buried by the authorized community/committee. The

clothes of the deceased, post-mortem report and other exhibits were

deposited at PS Nagar Kotwali, Bulandshahar by Constable Rajender

and Satyapal.

35. Constable Rajender Singh and Constable Satyapal Singh were

also examined as PW-21 and PW-24 respectively. They also deposed

about the recovery of an unclaimed body and the factum of taking

photographs Mark ‘X’ and Mark ‘Y’, preservation of the clothes of

the deceased in a sealed parcel and the burial of the body. Thus, the

testimonies of PW-18, PW-21 and PW-24 prove the recovery of an

unidentified and unclaimed body from a vacant plot near the field of

Khachera, Faisalabad, near Siana Bus Stand, Bulandshahar on 02

nd

January, 2000.

36. PW-18 SI Ramvraksh Verma deposed that on 11

th

January,

2000, one SI and ASI of Delhi Police, accompanied by the appellant

Hasmat and the son of the deceased came, and the son of the deceased

had identified the photograph and claimed that the dead body was of

CRL.A. 72/2005 Page 15 of 36

his father. He also identified the clothes of the deceased and claimed

that the same were of his father.

37. PW-17 SI Santosh Kumar also deposed about this fact, stating

that on 11

th

January 2000, he along with ASI Virender Singh Bargoti,

Constable Santosh Kumar, along with Habib (PW-6) and accused

Hasmat had gone at Nagar Kotwali, Bulandshahar Police Station,

where firstly, the arrival entry was recorded by ASI Virender Singh

and there it came to their notice that one dead body had been

recovered in the area of jurisdiction of Nagar Kotwali and that the

same was buried in the burial ground after post-mortem as an

unclaimed body. He further deposed that some photographs of the

deceased and a sealed parcel and jootis were produced, and on

opening of the seal parcel, one jersey, one pant and shirt of safari suit,

one pair of Pathani jootis and one pair of socks were taken out, which

were identified by the deceased’s son Habib, as belonging to his

father. He further deposed that Habib also identified the body of his

father from the photographs Mark ‘A’ and ‘Mark B’.

38. The testimonies of Constable Santosh Kumar (PW-15) and SI

Virender Singh Bargoti (PW-25) are also more or less similar.

According to PW-25, Habib had moved a written application before

the senior police officers, Nagar Kotwali, Bulandshahar (Ex. PW-6/B)

and thereafter two photographs of the dead body and one shirt safari,

pant, pair of socks, one pair of jootis of yellow colour were shown

after opening the sealed parcel, and on seeing the above said clothes

and the photographs, Habib identified the body of his father.

39. PW-6 Mohd. Habib, son of the deceased Mohd. Hanif,

CRL.A. 72/2005 Page 16 of 36

corroborated the testimonies of PW-17, PW-18 and PW-25 by

confirming that he was shown the clothes of his father and the

photographs at PS Nagar Kotwali, Bulandshahar, and he identified the

same.

40. The identity of the deceased has been challenged mainly on the

ground that in her statement, PW-2 described Mohd. Hanif as a person

having a beard, whereas, the photographs of the recovered body depict

that it was of a clean-shaven person, which is also consistent with the

description given in the post-mortem report. PW-2 Smt. Husan Bano,

in her cross examination, stated that her husband was of normal

health. He was of wheatish colour. He was having medium built and

used to keep beard. He used to keep short hair on his head with all his

teeth intact. He was not having any visible mark or mole. Except for

the beard, the aforesaid description, narrated by PW-2, more or less

matches with the description noted by Dr. Avdesh Kumar (PW-14) in

the post-mortem report Ex. PW-14/B. He noted that the length of the

body was 5 feet and 4 inches, sole was 9 inches, scalp hair were 3

inches black and he was clean shaven. He also noted that at the time of

post-mortem examination, jersey, safari suit (pant & shirt), one pair of

jooti and one pair of socks were found on the body and the same were

converted into a sealed parcel and handed over to the concerned

Constable after post-mortem examination. The said clothes were

identified by PW-6 Mohd. Habib on 11

th

January, 2000 at PS Nagar

Kotwali, Bulandshahar, to be belonging to his late father.

41. Importantly, prosecution also examined Aslam (PW-12), who

deposed that he was running a parchoon shop at Bulandshahar and

CRL.A. 72/2005 Page 17 of 36

that on 01 January, 2000, he had seen three persons, including the

appellant, whom he identified in Court, walking with a man having

beard and was moving in an incoherent manner. He further stated that

on the following morning, at about 6:00 am, despite dense fog and

severe cold, he noticed a commotion and went to the spot, where he

saw a dead body, which was clean-shaven and had fresh blade marks

on the face, appearing as if these marks occurred while shaving the

person. PW-12 stated that he was unable to identify the deceased. The

presence of fresh blade marks on the face of the deceased assumes

significance, as it provides a plausible explanation about the absence

of beard on the body. There is a possibility that the beard had been

shaved off after the occurrence, with the objective that the body

remained unidentified.

42. Moreover, the identification of the deceased was not based

solely on the photographs but also from the clothes, preserved by the

Bulandshahar Police. PW-6 identified the clothes to be belonging to

his father Mohd. Hanif. The photographs Mark ‘X’ and Mark ‘Y’ are

sufficiently clear for the identification of the body by the near and

dear ones. It is improbable that the close relatives of the deceased

would falsely identify the dead body of someone else to be that of the

deceased Mohd. Hanif. Since the body was identified by PW-6 Mohd.

Habib on the basis of the photographs and the clothes, there was no

necessity to dig out the dead body for the purpose of identification.

Even if the body had been exhumed so many days after the death, it

would not have served any purpose, because by that time, the body

would have got decomposed beyond recognition. The learned Trial

CRL.A. 72/2005 Page 18 of 36

Court rightly recorded that sometimes religious sentiments also

compel the police not to take such extreme steps and there is nothing

on record to show that the dead body belonged to some other person.

43. Therefore, the mere fact that the recovered body was clean

shaven, in the face of the evidence regarding the presence of fresh

shaving marks and other circumstances connecting the body with

Mohd. Hanif, cannot by itself create a reasonable doubt regarding the

identity of the deceased.

44. The appellant has challenged the prosecution narrative

regarding the cause of death, inasmuch as, the post-mortem report Ex.

PW-14/B records that Injury No. 4, namely, a contusion measuring 5

cms × 2 cms on the left side of the head, 3 cms above the left ear

pinna, to be sufficient to cause death, whereas, the prosecution stand is

that the appellant strangulated the deceased with his lungi. This

contention, however, does not displace the finding that the deceased

had suffered a homicidal death. PW-14 Dr. Avdesh Kumar, who

conducted the post-mortem examination, found four ante-mortem

injuries on the body and opined that the death was due to coma

resulting from the said injuries, with Injury No. 4, being sufficient in

ordinary course to cause death. In his cross-examination conducted on

behalf of co-accused Iqbal, he stated that Injuries No. 1 to 4 were

caused by a blunt object and were approximately 1 ½ days old.

Significantly, PW-14 was not cross-examined on behalf of the

appellant Hasmat Ali with regard to the cause of death or regarding

the opinion that the death was homicidal. No suggestion was put to the

doctor that the deceased had not suffered a homicidal death. It must

CRL.A. 72/2005 Page 19 of 36

not be lost sight of that the cause of death being strangulation with

lungi was based on the disclosure statement of the appellant, which

may have been made only to mislead the prosecution. It is even

otherwise irrelevant as the fact remains that Mohd. Hanif died a

homicidal death and the cause of death proved by the medical opinion

remains unchallenged.

45. Admittedly, the prosecution case is based on circumstantial

evidence, there being no eye witness of the occurrence.

46. The first circumstance relied upon by the prosecution is that the

appellant was employed by deceased Mohd. Hanif about four months

prior to the occurrence. In his statement under Section 313 Cr. PC, the

appellant denied this fact. PW-2 Smt. Husan Bano, wife of the

deceased, deposed in her testimony that about four months prior to the

incident, the appellant had told her husband “Mujhe Sar Chhipane Ke

Liye Jagah Chahiye”. The deceased told the appellant that he could

work with him and thereafter the appellant started working with the

deceased at Maujpur, and on his request, he was deputed to look after

the business of her husband at Jaipur. She further testified that the

appellant worked at Jaipur for about one month prior to the incident

and the deceased used to send jackets to Jaipur to the appellant. She

further deposed that the appellant used to collect payments from the

customers at Jaipur and that on her visit along with her son to Jaipur

prior to the occurrence, the appellant had given Rs. 15,000/- to her out

of the amount collected by him. During cross examination, PW-2

stated that besides Jaipur, goods also used to be sent to Dehradun. She

denied the suggestion that the appellant had never worked with her

CRL.A. 72/2005 Page 20 of 36

husband.

47. PW-6 Mohd. Habib also deposed that the appellant used to

work with them. He stated that initially, the appellant used to work at

Delhi, and later on, worked with his father at Jaipur. According to

him, the appellant used to collect payments from the parties. In cross

examination, there is not even a suggestion that the appellant never

worked with the deceased either at Delhi or at Jaipur.

48. PW-10 Mohd. Tahir is the witness who was earlier employed

with the deceased, and on the appellant joining the deceased, he left

the job. He deposed that he worked with the deceased for about 20-27

days and left the job as the appellant had started doing the work with

Mohd. Hanif.

49. PW-11 Aslam, brother in law (Bahnoi) of the deceased,

deposed that Hasmat was well acquainted to him because he was a

worker in the “Karkhana” of Hanif. There is no cross examination of

PW-11 with respect to the aforesaid deposition. Similarly, PW-23

Alladiya, father in law of deceased Mohd. Hanif, deposed that the

accused Hasmat was working with his son in law Mohd. Hanif for a

period of about five months prior to his death and used to remain with

the deceased while going to and coming back from Jaipur in

connection with manufacture and sale of jackets. No question or even

a suggestion was put to the contrary in cross examination of this

witness.

50. In cross examination, PW-2, PW-6, PW-10, PW-11 and PW-23,

nothing has come out which may shake their testimonies. No previous

enmity or ill-will has even been alleged for his false implication. Thus,

CRL.A. 72/2005 Page 21 of 36

there is no reason to disbelieve them. Absence of any documentary

proof of employment would not in any manner dent the testimonies of

the aforesaid witnesses, who are found to be trustworthy. It is

therefore proved beyond reasonable doubt that appellant was in

employment of the deceased and was working for him since prior to

the occurrence.

51. The next circumstance on which the prosecution as well as the

learned Trial Court relied is the last seen evidence, which in the

present case, was sought to be established through the testimonies of

PW-2, PW-5/6, PW-7 and PW-9.

52. PW-2 Smt. Husan Bano, wife of the deceased, in her testimony

deposed that on 01

st

January, 2000, the appellant took her husband

from her house to Jaipur for business purposes, but later, it was

revealed that he had not reached Jaipur. She then lodged the missing

report at police station on 09

th

January, 2000. In cross examination

except for the suggestion that the appellant had not taken the deceased

with him, there is no material cross examination on this aspect, so

much so, no motive has even been imputed to this witness for making

false statement against him.

53. PW-5/6 Mohd. Habib, son of the deceased, also deposed that on

01

st

January, 2000, the appellant took his father with him to Jaipur at

1.00 pm for the purpose of collecting the payments, but his father did

not return thereafter. The presence of PW-5/6, at the house at the

relevant time, has not been controverted in cross examination. No

suggestion was put in cross examination that the appellant had not

taken the deceased with him on 01

st

January, 2000 at about 1.00 pm.

CRL.A. 72/2005 Page 22 of 36

54. PW-7 Mohd. Ishtqar, the other son of the deceased, deposed

that on 01

st

January, 2000, at about 1.00 pm, the appellant came and

asked him about his father. The appellant then told his father that he

should accompany him to Jaipur for collecting the payments. Upon

this, PW-7 insisted that he would also accompany them to Jaipur. The

appellant asked him to get ready and meet them at Mukut Hotel,

where they would wait for him. He deposed that after getting ready

when he reached the hotel, he did not find them. Upon an enquiry

from a person at the hotel, he was informed that they have already left

after taking meals. In cross examination, the presence of PW-7 at the

house at the relevant time, is not challenged.

55. The evidence of PW-2, PW-5/6 and PW-7 clearly establish that

appellant took the deceased Mohd. Hanif from his residence on the

pretext that they were going to Jaipur for the purpose of collecting the

outstanding payments. PW-2, being the wife of the deceased, deposed

regarding the appellant taking the deceased from their house, while

PW-5/6 and PW-7 materially corroborated the circumstances in which

the deceased left with the appellant. This evidence is further

corroborated by PW-9 Mukut Lal, an independent witness, who stated

that the deceased and the appellant came together to his Dhaba, took

meals and thereafter left together. PW-9 further stated that when PW-7

subsequently came looking for his father, he informed him that the

deceased had left with the person who had accompanied him to the

Dhaba. The presence of PW-9 at the Dhaba at the relevant time has

not been controverted. There is nothing on record to show that this

witness had any relation with the deceased or PWs to falsely implicate

CRL.A. 72/2005 Page 23 of 36

the appellant.

56. The testimony of PW-9 has been challenged on the ground that

there was considerable delay in recording his statement under Section

161 Cr. PC. However, no specific suggestion was made to him as to

why his statement under Section 161 Cr. PC was not recorded

immediately or that the delay had resulted in his subsequent

introduction as a witness. Both the Investigating Officers, that is,

Inspector Rajender Gautam (PW-16) and SI Virender Kumar Bargoti

(PW-25) were not at all cross examined for their explanation

regarding the reasons of delay in recording statement of PW-9 under

Section 161 Cr. PC. Therefore, the delay in recording the statement of

PW-9 under Section 161 Cr. PC by itself cannot be considered as a

circumstance impeaching his credibility.

57. PW-4 Rashid and PW-8 Mohd. Kallu are also the witnesses of

last seen. PW-4 Rashid deposed that on 01

st

January, 2000, he had

seen the appellant taking the deceased Mohd. Hanif at Village

Mohalla, Maujpur at 1.00 pm. Similarly, PW-8 Mohd. Kallu deposed

that he had also seen the appellant with the deceased near the

transformer near Tent Wala School on 01

st

January, 2000. He had seen

the deceased along with two other persons including the appellant

herein on road leading from Yamuna Vihar to Zafrabad, while they

were talking to a rickshaw wala near a transformer. In their cross

examination, nothing could be brought out to suggest that PW-4 and

PW-8 had any reason to falsely implicate the appellant.

58. Thus, the prosecution has not just relied merely upon the

testimonies of related witnesses but has produced independent

CRL.A. 72/2005 Page 24 of 36

witnesses to prove the circumstance of deceased being last seen alive

in the company of the appellant. The defence has not been able to

bring out any material contradiction which would render the core

testimonies of these witnesses unreliable. The circumstance of last

seen, therefore, stands duly established.

59. We are conscious that while the “last seen” theory is an

important link that may shift the burden on the accused to explain the

death, it is not prudent to base conviction solely on this circumstance

and it must be applied only after considering the prosecution case as a

whole, including the circumstance preceding and following the point

of last being seen together, and in taking this view, we are supported

by the judgment of Hon’ble Supreme Court in the case of Nizam &

Anr. v. State of Rajasthan, (2016) 1 SCC 550.

60. The last seen circumstance assumes considerable significance in

the present case when examined with the medical evidence regarding

the approximate time of death. PW-14 Dr. Avdesh Kumar, the post-

mortem doctor, in his cross-examination conducted on behalf of co-

accused Iqbal, stated that the injuries found upon the body were

approximately 1 ½ days old. Since the post-mortem was conducted on

03

rd

January, 2000 at about 5:00 pm, as per the medical evidence, the

time of infliction of injuries was sometimes in the night of 01

st

/ 02

nd

January, 2000. This time-line is consistent with the time when the

deceased was last seen leaving in the company of the appellant. The

medical evidence, therefore, does not create a temporal gap sufficient

to render the last-seen circumstance inconsequential. Rather, it

provides material corroboration to the prosecution version regarding

CRL.A. 72/2005 Page 25 of 36

the relevant time-frame in which the deceased suffered the fatal

injuries. The proximity between the last-seen evidence and the

approximate time of death is thus an important link in the chain of

circumstances.

61. As per Section 106 of the Indian Evidence Act, the onus to

explain would shift on the accused only after the prosecution succeeds

in establishing the basic facts from which a reasonable inference can

be drawn regarding the existence of certain other facts which are

within the special knowledge of the accused. If the accused fails to

offer a proper explanation about the existence of the said other facts,

the Court can draw an inference against the accused. In cases based on

circumstantial evidence, the failure of the accused to provide a

reasonable explanation as required under Section 106 of the Evidence

Act, can serve as an additional link in the chain of circumstantial

evidence. However, if the prosecution fails to establish the basic facts

in the first place, then the accused's failure to discharge the burden

under Section 106 of the Evidence Act becomes irrelevant.

62. In the present case, since the prosecution has been able to prove

that the appellant had taken the deceased on the pretext of going to

Jaipur and was last seen alive in the company of the appellant, it was

incumbent upon the appellant to explain as to when and how they both

parted company, or in the alternative, the cause of his death. Mere

denial of the prosecution case and the absence of any explanation in

the statement under Section 313 Cr. PC is not sufficient. In this

regard, reliance is placed on Ganeshlal v. State of

Maharashtra (1992) 3 SCC 106, wherein, the appellant was

CRL.A. 72/2005 Page 26 of 36

prosecuted for the murder of his wife inside his house. Since the death

had occurred in his custody, it was held that the appellant was under

an obligation to give an explanation for the cause of death in his

statement under Section 313 of the Code of Criminal Procedure. A

denial of the prosecution case coupled with absence of any

explanation was held to be inconsistent with the innocence of the

accused, but consistent with the hypothesis that the appellant was a

prime accused in the commission of murder of his wife.

63. The next important circumstance relates to the identification of

the recovered body to be that of Mohd. Hanif and the place from

where the same could be recovered, pursuant to the disclosure made

by the appellant. The appellant was arrested by PW-25 on 09

th

January, 2000. PW-25 SI Virender Kumar Bargoti deposed that upon

interrogation, the appellant gave disclosure statement Ex. PW-25/A,

and in such disclosure statement, the appellant confessed to have

murdered Mohd. Hanif in the open fields behind the bus stand at

Bulandshahar and had left his body there. PW-25 further deposed that

on 11

th

January, 2000, he along with SI Sanjeev, Constable Santosh,

Habib, son of the complainant and appellant reached at Bulandshahar

Kotwali, where, it came to his notice that one dead body had been

recovered from the field of one Khachera behind Shikarpur Bus Stand

near Faisalabad on 02

nd

January, 2000 and the same had been buried

after post-mortem as unclaimed. In this regard, DD No. 28 dated 02

nd

January, 2000 (Ex. PW-14/A-4) and an FIR under Section 302 IPC

had already been registered at PS Nagar Kotwali, Bulandshahar. PW-

25 further deposed that the appellant pointed out the place, that is, the

CRL.A. 72/2005 Page 27 of 36

field of Khachera, behind Shikarpur Bus Stand near Faisalabad,

Bulandshahar, where he had thrown the dead body after committing

murder.

64. PW-6 Mohd. Habib and PW-17 SI Santosh Kumar corroborated

the aforesaid version of PW-25. PW-21 Constable Rajender Singh and

PW-24 Constable Satyapal Singh of UP Police corroborated the

arrival of PW-6 and the police officials from Delhi Police at

Bulandshahar and the identification of the body by PW-6 on the basis

of the photographs and the clothes of the deceased.

65. Significantly, during cross examination of the aforesaid

witnesses, no question or suggestion was put on behalf of the

appellant challenging the prosecution chronology timeline, the prior

recovery of the unidentified body, the subsequent visit of the Delhi

Police pursuant to the disclosure, or the identification of the body and

articles. The absence of any such challenge in cross-examination is a

relevant circumstance while assessing the evidence, particularly when

these witnesses through their testimonies consistently establish that

the body was recovered earlier but its identity remained unknown till

the Delhi Police arrived along with the appellant Hasmat.

66. The significance of the appellant’s disclosure therefore lies not

in the discovery of the dead body, which was already in the

knowledge and had been recovered by the Bulandshahar Police, but

the discovery that such body was of Mohd. Hanif and also his

knowledge of the place of recovery of the body. The fact that the

Bulandshahar Police had already recovered the unidentified body does

not therefore negate the discovery flowing from the appellant's

CRL.A. 72/2005 Page 28 of 36

disclosure, namely the identification of the body already recovered at

the place identified by the appellant in his disclosure statement. It is

this information and the fact discovered pursuant thereto, which

assumes relevance under Section 27 of the Indian Evidence Act, 1872

[“Evidence Act”]. Only a person who was present at the place of

commission of the offence, would know about the place of

commission of crime and appellant undoubtedly had the exclusive

knowledge of the same.

67. In the case of Charandas Swami v. State of Gujarat and Ors.

(2017) 7 SCC 177, pursuant to the disclosure statement made by the

accused, a dead body was identified to be that of the deceased/victim,

which until then was recovered as dead body of an unknown person

from the location disclosed by the accused. It was held that the

discovery of the fact arises by reason of fact that information given by

the accused exhibited knowledge or mental awareness of information

as to its existence at a particular place. It was thus held that the dead

body having already been recovered from the same place does not

undermine the admissibility of disclosure made by the accused to the

IO about the location where the dead body of the deceased was

dumped by him, which information was exclusively within the

personal knowledge. The relevant paras of the judgment read as

under:-

“58. The disclosure made by Accused 3 to the

investigating officer was recorded in the

panchnama, Ext. 188, when he had led the

police party to the spot where the dead body

was dumped by him. That location matched

with the location from where the dead body of

CRL.A. 72/2005 Page 29 of 36

an unknown person was recovered on 4-5-

1998 on the information given by PW 50 to the

local police at Barothi. The fact that the dead

body was already recovered from the same

place on 4-5-1998 and so noted in the public

records in the State of Rajasthan does not

undermine the admissibility of the disclosure

made by Accused 3 to the investigating officer

about the location where the dead body of

Gadadharanandji was dumped by him, which

information was exclusively within the

personal knowledge of Accused 3. The fact

that the dead body recovered on 4-5-1998 was

of Gadadharanandji, was unravelled and

discovered only after the results of its medical

examination became available to the

investigating agency. Till then, it was

considered to be of an unknown person. The

courts below have accepted the case of the

prosecution that the disclosure made by

Accused 3 about the location where the dead

body of Gadadharanandji was dumped by him,

was admissible under Section 27 of the

Evidence Act. The appellants, however, take

exception to that by relying on the reported

decisions.

.....

65. It is not necessary to multiply the

authorities on this aspect. In our opinion, the

courts below have rightly placed reliance on

the fact discovered by the investigating officer

(PW 64) on the basis of the disclosure made by

Accused 3 on 2-4-1999, after his arrest on 29-

3-1999, as recorded in Ext. 188. The

panchnama, Ext. 188 was proved by pancha

witness, PW 30. The fact that PW 30 was not

on good terms with the accused cannot be the

basis to discard his evidence. This aspect has

been considered by the High Court and in our

opinion, rightly, that the evidence of PW 30

was relied upon for the limited purpose to

prove the panchnama and not for any other

relevant fact. We affirm the view taken by the

courts below about the admissibility of

disclosure of the spot where the dead body of

CRL.A. 72/2005 Page 30 of 36

Gadadharanandji was disposed off by Accused

3. The same stood corroborated from the

recovery of a dead body of an unknown person

from the same spot by Rajasthan Police on 4-

5-1998 on the information provided by PW 50.

That dead body, on subsequent medical

examination was found to be of none other

than that of Gadadharanandji.

.....

74. As noted earlier, it was only on the basis of

the disclosure made by Accused 5 as to the

place where the murder was committed that

the investigating agency was able to take the

investigation forward and then interrogate the

aforesaid witnesses i.e. PW 25, PW 42, PW 43

and PW 49. Only a person who was present at

the time of commission of the offence could

have known about the location of the offence

and Accused 5 undoubtedly had exclusive

knowledge about the place where the crime

was committed, a fact which has been affirmed

by both the courts. The panchnama drawn on

the basis of this disclosure has been

corroborated by independent pancha witness

PW 31. The courts below, on analysing the

relevant evidence, have held that the

inescapable conclusion is that the deceased

was taken to Navli. We are in agreement with

this finding, as the evidence on record

supports that conclusion.”

68. We are thus of the firm view that the prosecution has been able

to prove the circumstance of identification of the body to be that of the

victim/deceased as also about the knowledge of the place of recovery

of the same at the instance of the appellant pursuant to his disclosure

statement.

69. The next important circumstance in the chain of circumstantial

evidence is the motive. No offence is committed without any motive.

Motive is an emotion which impels a person to commit the crime.

CRL.A. 72/2005 Page 31 of 36

70. In order to prove the motive, the prosecution strongly places

reliance on the testimonies of PW-2 Smt. Husan Bano, PW-6 Mohd.

Habib and PW-7 Mohd. Ishtqar. PW-2 Smt. Husan Bano deposed that

the appellant had worked at Jaipur for about one month prior to the

incident. She deposed that her husband was having ill health and

therefore, he would return after leaving the appellant at Jaipur. Her

Husband used to send jackets to the appellant. According to her, the

appellant handed over the payment of Rs. 15,000/-. She questioned

him for making less payment. She herself contacted the customers to

verify the money collected by the appellant from them. She deposed

that the appellant had collected an amount of Rs. 1,00,000/- which he

failed to pay.

71. Similarly, PW-5/6 Habib also stated in his testimony that the

appellant used to receive payments from the parties for the business of

his father. PW-7 Mohd. Ishtqar deposed that on 01.01.2000, the

appellant had asked his father to accompany him for collection of

payment. The testimonies of all the above said three witnesses

remained unchallenged on material aspects. It is evident from their

testimonies that the appellant used to collect payments on behalf of the

deceased from the customers at Jaipur. Admittedly, during

investigation, no such customer was examined. However, in our view,

the same is only an investigating lapse, on account of which the

appellant shall not be entitled for any benefit. In fact, the appellant

himself also did not lead any evidence in his defence to show that he

had duly accounted for the cash collected by him from the customers

of the deceased at Jaipur. We are of the considered view that the

CRL.A. 72/2005 Page 32 of 36

prosecution has successfully proved that there were money disputes

between the appellant and the deceased, and owing to his failure to

account for the payments collected by him, which constituted as

motive to commit the murder.

72. The next circumstance relied upon by the prosecution is the

extra-judicial confession made by the appellant before PW-13 Mohd.

Yasin. PW-13 deposed that 8/10 days before the police met him, on

10/11

th

January, 2000, the appellant told him that he had killed one

person in the house of co-accused Iqbal. He had confessed that he had

killed the said person over money dispute. However, he nowhere

deposed that the said extrajudicial confession was regarding the killing

of the deceased Mohd. Hanif. No date was given on which the

appellant had made the extra-judicial confession. He did not report the

matter to the police immediately regarding such confession made by

the appellant.

73. In cross-examination, PW-13 stated that he had not disclosed

the confession to police or any other person in authority before the

police subsequently came to his house. He was unable to furnish any

reason for withholding such material information. He further stated

that he had narrated about the alleged confession to approximately 15-

20 persons including Yakub, Yusuf, Ershad, Shakeel, Babu, Sharfaraz,

Akbar and Salauddin. However, none of these persons were examined

by the prosecution nor any explanation was offered as to why these

purported independent recipients of information were not produced to

corroborate the version of PW-13.

74. In cross examination, PW-13 admitted that the appellant

CRL.A. 72/2005 Page 33 of 36

appeared terrified, was fully drunk and was not in his senses when he

made the alleged confession and further accepted that in such a

condition at times a person may speak about something which had

never taken place. He admitted that he made no attempt to verify the

truthfulness of the alleged confession. The unexplained delay in

reporting the confession, the absence of corroboration from the said

15-20 persons, who were informed about the confession by PW-13

and the state of condition of the appellant at the time of the confession

diminishes the credibility of the testimony of PW-13. The learned

Trial Court rightly discarded this circumstance as it was not found to

be sufficiently reliable.

75. The impugned judgment has also been challenged on the

ground of undue delay in lodging the missing report by the family of

the deceased. Upon examination of the testimony of PW-2 Smt. Husan

Bano, it is found that the appellant informed her on telephone either

on the same day or on the next day that they had reached Jaipur. She

sent her son Ishtqar to Jaipur to check if her husband had reached

Jaipur. Upon his return from Jaipur, Ishtqar informed that Mohd.

Hanif was not in Jaipur. According to PW-2, on the third day, she

received a telephone call from the appellant that they were in

Dehradun. According to her, she had searched for the deceased, but

could not trace him, and ultimately, lodged the report with the police

on 09

th

January, 2000.

76. In the cross-examination of PW-2, no suggestion was put to the

witness that she had received no such telephone call from the

appellant. The testimony of PW-2 finds corroboration from the

CRL.A. 72/2005 Page 34 of 36

testimony of PW-7 Mohd. Ishtqar who deposed that he also received

telephone call from the appellant that they were well and would return

soon. The same is further corroborated by the testimony of PW-11

Aslam who deposed that the appellant used to call on the STD booth

of one Salim and during such telephonic conversation he had told that

Hanif was there with him and that some financial matter was pending.

According to him, the last telephone call made by the appellant was

received at the shop of STD owner Mohd. Salim, that they had

returned to Delhi. The testimonies of PW-2, PW-7 and PW-11 to the

aforesaid extent have remained materially unchallenged with no cross-

examination.

77. Thus, the evidence suggests that prior to the lodging of the

report by PW-2 with the police on 09

th

January, 2000, the appellant

had been misleading them by making telephone calls, firstly by saying

that they had reached Jaipur and later telling them that they have gone

to Dehradun. Such evidence satisfactorily explains the reason for the

delay. Even otherwise, the delay itself cannot be considered as fatal to

the prosecution case. In the case of Kamlesh vs. State,

2023/DHC/000051, this Court, inter alia, held that the delay in

lodging the FIR raises considerable doubts in the case of prosecution,

however, the same depends upon the facts of each case and every

delay in registration of the FIR, cannot be said to be fatal to the case

of the prosecution and if the delay is sufficiently explained, the case of

the prosecution would not suffer.

78. The argument regarding the non-examination of the STD booth

owner Salim, does not demolish the prosecution case. The alleged

CRL.A. 72/2005 Page 35 of 36

calls made by the appellant to the family of the deceased are

supportive circumstances and are not the foundation, upon which, the

conviction rests. Even assuming that the evidence concerning the STD

calls is excluded from consideration, the prosecution case still does

not collapse.

79. We also find no merit to the challenge raised on account of

contradiction of the date mentioned in DD No. 6-A. While the date of

missing of Mohd. Hanif was recorded as 30

th

December, 1999 in DD

No. 6-A, PW-2 subsequently stated that the said date was 01

st

January,

2000. It is true that DD No. 6-A is the earliest information regarding

the missing of Mohd. Hanif and therefore the discrepancy in the said

date deserves consideration. However, the genesis of the present case

is not the recording of DD No. 6-A by PW-1 Constable Siri Pal, but

lies in the statement of PW-2, recorded by PW-25 SI Virender Kumar,

which form the basis of rukka and the subsequent registration of the

FIR Ex. PW-3/A. The discrepancy of the date in DD No. 6-A, in view

of the consistent stand of the witnesses, may be a typographic error,

and therefore, may not be given undue importance.

80. The learned Trial Court took note of the fact that the appellant

was found present at his residence on 09

th

January, 2000, but he did

not explain where he remained present in between 01

st

January, 2000

and 09

th

January, 2000. He did not produce any witness to show his

presence at any other place. The learned Trial Court was of the view

and rightly so, that the concealment of material facts by the appellant

shows his unnatural conduct.

81. Thus, the cumulative effect of the circumstances proved on

CRL.A. 72/2005 Page 36 of 36

record, establishes a complete chain pointing towards the appellant’s

guilt. The learned Trial Court correctly appreciated the evidence and

arrived at the conclusion that the prosecution succeeded in

establishing the guilt of the appellant beyond reasonable doubt.

CONCLUSION:

82. The findings recorded by the learned Trial Court are based on a

proper appreciation of evidence on record and do not suffer from any

perversity and illegality warranting any interference by us. The

sentence imposed is proportionate and commensurate with the offence

committed. We, therefore, find no ground to interfere with the trial

court's judgment.

83. The appeal accordingly stands dismissed.

84. The appellant is directed to surrender before the Superintendent

Jail within a period of two weeks from the date of the judgment for

serving the remaining sentence and in the event of failure to surrender,

appropriate steps be taken by the Superintendent Jail and the learned

Trial court to ensure that the appellant is taken into custody for

serving the remaining sentence.

85. Copy of this judgment be sent to the learned Trial Court and the

concerned Jail Superintendent for information and compliance.

RAVINDER DUDEJA, J.

NAVIN CHAWLA, J.

SEPTEMBER 25, 2026/na