Crl.A.No.642/2001 Page 1 of 10

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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CRL.A. 642/2001

MOHD. RAHIS KHAN ..... Appellant

Through: Mr. Bhupesh Narula, Advocate

versus

STATE

..... Respondent

Through: Ms. Richa Kapoor, Advocate

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG

HON'BLE MS. JUSTICE INDERMEET KAUR

1. Whether the Reporters of local papers may be allowed to

see the judgment?

2. To be referred to the Reporter or not?

Yes

3. Whether the judgment should be reported in the

Digest?

Yes

PRADEEP NANDRAJOG, J. (Oral)

1.

In a judgment which is not clearly worded, one is

not too sure whether the learned Trial Judge has convicted the

appellant for the reasons noted in para 16 and para 19 of the

impugned decision or for the reasons noted only in para 19 of

the impugned decision.

2.

Thus, we shall be dealing with the reasons noted by

the learned Trial Judge in both the paragraphs.

3.

Four accused, Mohd.Rahis Khan, the appellant;

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Mukesh Bharti @Nanhe; Gopal @Baba and Smt.Shobha were

sent to trial for having murdered Sunil Kumar Rastogi the

husband of accused Shobha.

4.

Mukesh Bharti, Gopal and Smt.Shobha have been

acquitted vide judgment and order dated 13.8.2001. The

appellant has been convicted.

5.

In para 16 of the impugned decision the learned

Trial Judge has held that the appellant, after he was arrested,

pointed out the place where the offence was committed to

Inspector Satya Pal PW-29 as also pointed out the spot where

the police had recovered a brick with which the deceased was

murdered. He led them to a naala where he threw clothes

worn by him when the crime was committed which had got

stained with blood.

6.

The way the judgment is written, it is not clear

whether the Judge has held that the brick which was recovered

by the police at the pointing out of the appellant is evidence of

conduct admissible under Section 8 of the Evidence Act or is

proved to be the weapon of offence. We note that the learned

Trial Judge has referred to a judgment pertaining to Section 27

of the Evidence Act and the only recovery at the instance of

the appellant is of the brick in question.

7.

Under both circumstances, we fail to understand as

to what is the incriminating nature of the evidence. The brick

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in question has not been found to be stained with blood, much

less human blood. How does that brick get linked to the crime

is a mystery. Probably, the learned Trial Judge has been

influenced by the fact that a blunt hard object was the weapon

of offence.

8.

We may only note that the brick was recovered from

an open place and after three days of the offence. We hold

that the recovery of the brick, which is an ordinary brick, in the

absence of the same being found to be stained with blood and

the recovery being from an open place accessible to all is no

incriminating evidence against the appellant.

9.

Similarly, we fail to understand as to how the

pointing out of a place from where nothing is recovered would

be incriminating evidence of conduct. The place where the

appellant ostensibly took the investigating officer i.e. the naala

and pointed out a spot, stating that he threw his clothes there,

and no clothes being recovered, is again no incriminating

evidence. The place where the deceased was murdered was in

the knowledge of the police on 6.1.1998 i.e. 3 days prior to the

date when the appellant was arrested. Thus pointing out said

place by the appellant is irrelevant.

10.

This takes care of what has been noted by the

learned Trial Judge in para 16 of the decision