Delhi District Court
Abdul Waheed S/O Mazid vs . on 29 September, 2010
1
IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM
ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 24/09
Unique Case ID No. 02402R0000462009
State
vs.
1. Abdul Waheed S/o Mazid, R/o C56, Gali No.4, Chaman Park, Gokalpuri,
Delhi.
2. Imran Khan S/o Abdul Waheed, R/o C56, Gali No.4, Chaman Park,
Gokalpuri, Delhi.
3. Noor Jahan @ Haseena W/o Abdul Waheed, R/o C56, Gali No.4,
Chaman Park, Gokalpuri, Delhi.
FIR No. 280/08
PS Gokul Puri
U/s 302/506 IPC.
Date of Institution : 03.01.2009
Date of reserving the Judgement : 07.08.2010
Date of pronouncement : 22.09.2010
J U D G E M E N T : Prosecution case emanates from the fact that on 08.10.08 DD No. 5B was assigned to SI Alok Kumar. He along with Constable Shishpal went to Chaman Park, Gali No.4, CBlock. On reaching there, they came to know that injured has been removed to GTB Hospital. No eyewitness was present at the spot. They went to GTB Hospital and obtained MLC of injured Jamil, who was unfit for his statement. Kalsuman, mother of Jamil, was also present there. Her statement was recorded, which became bedrock of the case. She detailed therein that on 08.10.08 at about 8am she was present at her home, that is, H.No. C55, G.No.4, Chaman Park, Delhi. Yamin and Rashid, who reside in her locality, came to her house and called Jamil. They told that they would get his S.C. No. 24/09 Page 1/65 2 dispute settled with Wahid. Jamil got up and went with them. She followed Jamil. Wahid was also standing outside. Wahid and Jamil started reasoning with each other on the count of fixing a peg in the wall. Wahid questioned Jamil as to why he fixed the peg in the wall on his side. Jamil disputed those facts. They started exchanging hot words. In the meantime, Imran Khan and his mother Noorjahan @ Haseena also reached there. Imran Khan was having a knife in his hand. While reaching there, Imran Khan declared that he will kill Jamil. He ran towards Jamil. Jamil tried to run away in a bid to save himself. At that juncture, Haseena and Wahid caught hold of Jamil and Imran Khan wielded stab blows in his abdomen with an intention to kill him. Her son started bleeding. When she tried to apprehend Imran Khan, along with her daughterinlaw, at that juncture he criminally intimidated her of her instant death. Imran Khan and Wahid ran away from the spot. She overpowered Haseena. In the meanwhile someone called PCR van. PCR van reached at the spot and removed her son Jamil to GTB Hospital. Her son had got injuries due to stab blows given by Imran Khan, who was assisted by his father Abdul Wahid and mother Haseena in his act. Alok Kumar SI took up the investigation of the case. He got registered case u/s 307/34 IPC. During the course of investigation, he obtained one blood stained banyan of Jamil from his mother. Thereafter, he prepared site plan of the spot at the instance of Kalsuman. He also recorded statement of Yamin and took his white kurta into possession, which was blood stained as blood sprinkled on it at the time of incident. On 08.10.08 at about 3.30pm, Jamil succumbed to his injuries at GTB Hospital. Further investigation of the case was assigned to A.S. Negi, Inspector. He called the mobile crime team at the spot. Photographer took photographs of the spot. Accused Haseena was arrested in the presence of constable Sonia. Postmortem on the dead body of Jamil was got conducted. S.C. No. 24/09 Page 2/65
3 Offence under section 302 was added in the case against the accused persons. On 15.10.08, accused Abdul Wahid and Imran Khan were arrested on an informant's tip. Investigation culminated into a charge sheet against all the three accused persons.
2. Charge for offences punishable under section 302 read with section 34 IPC was framed against all the accused persons, besides a separate charge for offence u/s 506 IPC was framed against accused Imran Khan, to which charges they pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Rashid (PW1), Kalsuman (PW2), Sonia, Constable (PW3), Shishpal, Constable (PW4), Misqeen (PW5), Neeraj Kumar, Constable (PW6), Jagdish Parsad, Head Constable (PW7), Mukesh Kumar SI (PW8), Desh Raj, Head Constable (PW9), Nafees Ahmed (PW10), Riyazuddin (PW11), Krishan Lal HC (PW12), Saleem Khan (PW13), Yameen (PW14), Constable Rajender (PW15), Surender Kumar HC (PW16), Dr. Arvind Kumar (PW17), E.S. Yadav SI (PW18), Vikram Singh HC (PW19), Dr. Harish (PW20), Dr. Dhurv Sharma (PW21), SI Alok Kumar (PW22), and A.S Negi, Insepctor (PW23) in the case.
4. Rashid (PW1) witnessed the incident of altercation between Abdul Wahid and Jamil. However, he did not know as to how Jamil sustained injuries and who caused the same. However, for suppressing true facts of the case, this witness was crossexamined by the ld. Prosecutor.
Kalsuman (PW2) is the mother of deceased Jamil. Her testimony will be discussed later on.
Sonia, Constable (PW3) unfolded facts pertaining to arrest of accused Noorjahan @ Hasina.
S.C. No. 24/09 Page 3/65
4 Shishpal, Constable (PW4) took rukka recorded by SI Alok to PS and got the case registered. He detailed those investigative steps, which took place in his presence.
Misqeen (PW5) is the wife of deceased Jamil. Her testimony will be discussed later on.
Neeraj Kumar, Constable (PW6) took photographs of the spot from different angles. He proved negatives and photographs as Ex.PW6/A to Ex.PW6/J. Jagdish Parsad, Head Constable (PW7) deposited seven sealed parcels at FSL Rohini, Delhi, vide RC No. 111/21.
Mukesh Kumar SI (PW8) prepared scaled site plan of the spot and proved the same as Ex.PW8/A. Desh Raj, Head Constable (PW9) was posted at Baker 11, PCR Van as incharge. He removed injured Jameel to GTB Hospital.
Nafees Ahmed (PW10) is the eyewitness of the incident. His testimony will be discussed later on.
Riyazuddin (PW11) identified dead body of Jamil vide his identification statement Ex.PW11/A. Krishan Lal HC (PW12) unfolded facts pertaining to arrest accused Abdul Wahid and Imran. He detailed those investigative steps, which took place in his presence.
Saleem Khan (PW13) is the brotherinlaw (jeeja) of Jamil. His testimony will be discussed later on.
Yamin (PW14) is neighbour of deceased Jamil.
Constable Rajender (PW15) gave one pullanda to Dr. Arvind Kumar, for obtaining his opinion, vide RC No. 107/21. Doctor gave him S.C. No. 24/09 Page 4/65 5 the receipt and he gave the same to MHC(M).
Surender Kumar, HC (PW16) recorded FIR and proved photocopy of the same as Ex.PW16/A. Dr. Arvind Kumar (PW17) conducted postmortem on the dead body of Jamil. He proved postmortem report as Ex.PW17/A. He also proved his subsequent opinion as Ex.PW17/C, besides description and dimension of knife prepared by him as Ex.PW17/B. E.S. Yadav SI (PW18) inspected the scene of crime and prepared report Ex.PW18/A. Vikram Singh, HC (PW19) was working as MHC(M) at PS Gokalpuri, Delhi, on 08.10.08. On that day, he received two sealed parcels from AS Negi, Insepctor, and recorded an entry to this effect at Sr. No. 2870 in store room register. He proved copy of the same as Ex.PW19/A. On that very day, SI Alok Kumar deposited two parcels with him. He made an entry to this effect at Sr. No. 2871 and proved photocopy of the same as Ex.PW19/B. On 09.10.08, Inspector AS Negi deposited one parcel with him. He made entry at Sr. No. 2844 and proved the same as Ex.PW19/C. On 15.10.08, Inspector AS Negi deposited two parcels with him. He made entry to this effect at Sr. No. 2908 and proved photocopy of the same as Ex.PW19/D. On 26.11.08, he sent seven sealed parcels, one sealed envelope and three sample seals to FSL Rohini through HC Jagdish, vide RC No. 111/21. On 04.11.08, he sent one parcel duly sealed with seal of AS and one sample seal to Head of Department, Forensic, GTB Hospital through Constable Rajender Singh, vide RC No. 107/21. On 12.11.08, one parcel duly sealed and one sample seal were deposited by Inspector AS Negi.
S.C. No. 24/09 Page 5/65
6 Dr. Harish (PW20) prepared MLC of Jamil and proved the same as Ex.PW20/A. Dr. Dhruv Sharma (PW21), Sr. Scientific Officer, FSL, Rohini, examined exhibits of the case. He proved his report to this effect as Ex.PW21/A. He also prepared serological report and proved the same as Ex.PW21/B. Alok Kumar SI (PW22) joined investigation of the case on 08.10.08. He detailed those investigative steps, which took place in his presence.
Inspector AS Negi (PW23) conducted investigation of the case. He deposed that on 08.10.08, on receipt of DD No. 60B, Ex.PW22/D, he along with SI Alok, Constable Shishpal, Constable Arvind and Lady Constable Shakuntala went at C55, Chaman Park, Gokulpuri, Delhi. He had called District Mobile Crime team at the spot. Crime team officials SI Etender Yadav, Incharge Crime Team along with staff reached there. Photographer had taken the photographs. He had noticed blood stains lying on the marble in the street, in front of C55. He had taken into possession those two blood stained marble stones and kept the same in two separate pulanda and these parcels were sealed with the seal of AS and the same were taken into police possession vide memo Ex.PW10/A. In the evening hours, one secret information was received to the effect that accused Noorjahan would come at her residence in the night. He requested public persons to join investigation and one person, namely, Nafis Ahmed joined investigation. At about 11pm, one lady was found coming from Aksha Masjid and was going towards street No.4. Nafis Ahmed identified that lady as accused Noorjahan, wife of accused Wahid. He with the help of lady Constable overpowered that lady and on S.C. No. 24/09 Page 6/65 7 interrogation her name was revealed as Noorjahan. He interrogated accused Noorjahan and recorded her disclosure statement Ex.PW3/A. Accused was arrested and her arrest memo and personal search memo were prepared vide memos Ex.PW3/B and Ex.PW3/C. On 09.10.08, he along with Constable Shishpal and relatives of deceased went at GTB Hospital Mortuary. Deceased was identified by relatives of deceased, namely, Riyazuddin and Yamin, vide their identification statement Ex.PW11/A and Ex.PW23/A. On 15.10.08, he searched for accused Abdul Wahid and his son. At about 6pm, he along with HC Krishan Lal, Constable Shishpal and HC Jagdish, was present at Shiv Vihar, Tpoint. One secret information was received that Abdul Wahid along with his son and one more person would come at their residence during night hours. One public person, namely, Nafis joined the investigation of the case. At about 6.30pm, three persons were found coming from Aksha Masjid. On the pointing out of Nafis Ahmed, all the three persons were overpowered. On interrogation, their names were revealed as Abdul Wahid, his son and third person was nephew of Abdul Wahid. He interrogated accused Abdul Wahid and his son Imran. Accused Imran Khan stated that he can get recovered the knife used at the time of committing crime and his blood stained clothes from his house. Thereafter, both accused persons got recovered one knife from beneath diwan, which was lying at the ground floor in a room, in a corner. He prepared sketch of knife vide Ex.PW12/C. He took measurements of knife and prepared seizure memo of the same vide Ex.PW12/D. Accused had also taken out from beneath that diwan one selati colour Tshirt, having word C in front of T Shirt and on the collar one label mark soft was S.C. No. 24/09 Page 7/65 8 attached and one creme colour pant. He noticed blood stains on these clothes. He took the same into possession vide memo Ex.PW12/E. He also prepared site plan of the place of recovery of aforesaid articles. Site plan Ex.PW23/C was also prepared. Arrest memos and personal search memos of both accused persons were prepared vide Ex.PW12/F, Ex.PW12/G, Ex.PW12/H and Ex.PW12/I. Both accused persons were brought to PS. Case property was deposited in malkhana. They were got medically examined and produced before the Court. He recorded statements of witnesses and got the accused persons challaned.
5. In order to afford an opportunity to explain circumstances appearing in evidence against them, accused persons were examined under section 313 Cr.P.C. They had denied all allegations levelled against them. Accused Abdul Wahid projected that Jamil stated to Yamin that he (accused) poured incanted water in front of his house. Yamin and Rashid came to him and asked him regarding the same. He replied in negative and on this they stated that they will make understand Jamil. He was standing in front of his house. After making Jamil understood, Yamin went from there. Thereafter, Jamil came out and started abusing him in filthy manner. He asked him not to abuse. Jamil caught hold of him from his collar and gave him many slaps. He dragged him from the stairs in front of his house and made him to lay on the ground. Thereafter, he did not know who rescued him. Yamin and Rashid were also present at that time. His son and his wife were not present at that time. After sometime his son Imran came there. When his son Imran asked Jamil as to why Jamil gave beatings to him Jamil scuffled with his son Imran. Some altercation took place between Jamil and Imran. Yamin separated both of them. S.C. No. 24/09 Page 8/65
9 Thereafter, Jamil went from there to call the police at 100 number. Aslam and Salman had taken injured Jamil to the hospital. Neighbours of the street asked to go from their house and they went away from their house.
6. Accused Imran presented that on 08.10.08, he was inside his house. When he came out at about 7.308am, he saw that Jamil had made his father laid on the ground and was quarreling with his father and was beating his father. He asked him as to why he was beating his father. He left his father and grappled with him and thereafter Jamil had taken out one chhuri from his pocket and he tried to inflict knife blow on his hand. He saved his hand from that blow and that knife hit on the left hand of Jamil itself. Thereafter, Jamil immediately went inside his house and within one minute he came out and stated that he would implicate them in the case and is going to inform the police. Thereafter, he went to a nearby STD shop. There was brawl in the area. Locality persons were saying to call the family member of Jamil, but no one came out from the house of Jamil for 1520 minutes. His mother was cooking food at the 2nd floor of the house. There was uproar in the area and it was heard that police is about to come. Some neighbours asked him to go from there and he went from there. At about 11am, he came to know that police officials have lifted his mother and thereafter he came to know that she had been sent to jail. He had only seen that accused received injuries on his hand by knife. He did not know as to how he received injuries on his abdomen. On 14.10.08, he and his father were lifted from the area of Uttam Nagar and they were brought to PS. They were kept at the PS for two day. Their signatures were obtained on some documents and thereafter they were sent to jail.
7. Accused Noorjahan pleaded her innocence by stating that she was S.C. No. 24/09 Page 9/65 10 present at the second floor of her house. She was preparing food. At about 88.30am when she came in the street, Yamin, Hafiz and many persons were in the street, Jamil was going towards STD shop. Nafis, Misquin and Kalsuman were coming from Masjid side. Persons gathered in the street asked her to go inside the house and accordingly she went inside the house. Two police officials came to her residence and they took her to the PS. She did not witnessed any other occurrence. Her thumb impression were obtained on many blank papers in the PS. Two persons had taken injured Jamil to the hospital.
To defend themselves, accused persons have examined Rubina (DW1), Shabnam (DW2), Shakil Ahmed (DW3), Mohd. Shamee (DW4) and Mohd. Hanif (DW5) in support of their case.
8. I have heard Sh. Subhash Chauhan, ld. Prosecutor, for the State and Sh. I.A Hashmi, Advocate, for the accused, and have also perused written submissions filed by ld. Counsel for the accused and have perused the record.
9. It was submitted by ld. Counsel for the accused that as per case of the prosecution on 08.10.08 at about 8am, Yamin and Rashid, who are neighbours of the deceased, reached at the house of deceased to call him for compromising the matter with accused party. At that time, deceased was sleeping and when aforesaid persons called him, he came in the gali where Wahid was also present. Hot words exchanged between them on the pointing of fixing nail on the wall. On hearing shouts, Imran and Hasina came out. Imran brought a knife with him and stabbed the deceased with knife in order to kill him. It was submitted that there are major contradictions in the testimony of witnesses. As per prosecution S.C. No. 24/09 Page 10/65 11 version, PW1, PW2, PW5, PW10 and PW14 are the eyewitnesses. However, PW2, PW5, PW10 and PW13 are close relatives of the deceased, and as such are interested witnesses, and therefore no value can be attached on their statements. Besides that there is contradiction in their testimony. As per testimony of PW9, two persons were putting one injured in TSR and he did not inquire regarding telephone number 22188303, then why the prosecuting agency did not make the investigation regarding the PCO Booth and why they did not make those two persons, PCR owner and TSR owner as witness in the case. Presence of PW2, PW5 and PW10 at the spot is doubtful. If they were present at the spot, then why injured himself informed the police. There is further contradiction in the testimony of witnesses regarding the place from where Hasina @ Noor Jahan was arrested, inasmuch as, PW2 and PW22 stated that she was arrested from her house, but PW2 and PW3 stated that she was arrested on the way of Aksha Masjid. However, according to PW23, remaining accused persons were overpowered on the pointing out of Nafis Ahmed, whereas PW22, PW12 and PW13 stated that they were arrested on the pointing out of PW13 Saleem. Dr. Arvind Kumar found two injuries on the person of deceased, but prosecution witnesses did not disclose the injury on the left hand of deceased. In fact, at the time of incident, accused Hasina was present at the roof of her house and was preparing breakfast for the family members. Her husband was at his shop. Two persons, namely, Hazi Rashid and Yamin came to Abdul Wahid and told that Jamil has asked Yameen that Abdul Wahid poured incanted water in front of his house, to which Abdul Wahid replied in negative. Thereafter, Yamin called Jamil from his house and tried to make parties S.C. No. 24/09 Page 11/65 12 understand. In the meantime, Jamil pushed Abdul Wahid and slapped him. Abdul Wahid fell down on the floor. In the meantime, Imran came out from the house and asked Jameel that why he gave beatings to his father, then Jameel started grappling with Imran and in the meantime Jamil took a knife and tried to stab Imran, but Imran tried to escape himself and Jamil tried to stab Imran at that time, knife cut the left hand of Jamil due to mis attempt. After receiving this injury, Jamil went to his house and again came back at the spot and started abusing Imran and Abdul Wahid and also informed at 100 number. At that time, no family members were present at the spot. Two persons of the locality took him to hospital in TSR and the accused persons did not know as to how other injuries were sustained by Jamil. Under these circumstances, it was submitted that prosecution has not been able to establish its case beyond reasonable doubt. As such, all the accused persons are entitled to be acquitted of the charge.
10. Rebutting the contentions of ld. Counsel for accused, it was submitted by ld. Prosecutor that prosecution case stands established from testimony of prosecution witnesses. The mere fact that some of the witnesses are relative of the deceased does not make their testimony unworthy of credit. In fact the incident had taken place in the morning hours in front of house of deceased and family members were very much present in the house and thereafter at the scene of occurrence. Further more, as regards complainant Kalsuman is concerned, it was submitted that there is no effective crossexamination of this witness with the result her testimony on material particulars of the case goes unrebutted and unchallenged. Her testimony finds corroboration from other material S.C. No. 24/09 Page 12/65 13 available on record. Medical evidence amply proves the case of prosecution. Further more, at the instance of accused Imran, weapon of offence was recovered and his Tshirt and pant, which he was wearing at the time of incident. Same were sent to FSL and even report of FSL proves the case of prosecution. Even if, there is slight discrepancy in the testimony of witnesses, the same is of no consequence, inasmuch as, it is not on the main issues and therefore it was submitted that prosecution has been able to prove its case beyond reasonable doubt and all the accused persons are liable to be convicted for offences alleged against them.
11. I have given my considerable thoughts to respective submissions of the ld. Counsel for parties and have perused the record.
12. In order to substantiate its case, prosecution is primarily relying upon :
(i) Eyewitness account of the incident.
(ii) Medical Evidence.
(iii) Other circumstantial evidence.
(iv) Expert Evidence.
13. Before going to these grounds, it may be mentioned that perusal of the record goes to show that certain facts are undisputed :
(a) Deceased Jamil was residing along with his family members at H.No. C55, Street No.4, Chaman Park, Mustafabad, Delhi.
(b) Accused persons are resident of C56, Gali No.4, Chaman Park, Delhi.
(c) House of deceased and accused are adjacent to each other.
(d) Some illwill was going on between family of the accused and deceased. However, there is dispute regarding cause of illwill, inasmuch S.C. No. 24/09 Page 13/65 14 as, according to the case of prosecution accused Abdul Wahid was alleging that Jamil had fixed a peg (nail) on the common wall, which was denied by Jamil. However, according to accused persons cause of dispute was that family members of deceased used to say that Abdul Wahid used to put incanted water in front of house of Jamil and other superstitious articles, which was denied by them.
(e) PW1 Rashid and PW14 Yamin went to the hosue of Jamil on 08.10.08 at about 8am in order to sort out the issue.
(f) Jamil was sleeping in his house and was called by Rashid and Yamin and he came out of his house. Some altercation took place between Jamil and Abdul Wahid.
(g) Imran came out of his house and altercation took place between Imran and Jamil.
(h) Blood came on the hand of Jamil.
(i) Information was given to PCR regarding occurrence.
(j) Blood came on the kurta of Yamin, when he tried to intervene.
(k) Two boys were removing injured Jamil in a TSR from the spot. In the meanwhile, PCR van came and removed Jamil to GTB Hospital, where he succumbed to his injuries.
14. With this background let us discuss the piece of evidence relied upon by the prosecution to substantiate its case.
EYE WITNESS ACCOUNT:
15. Material witnesses regarding occurrence are PW1 Rashid, PW2 Kalsuman, PW5 Masqeen, PW10 Nafis Ahmed and PW14 Yamin.
16. PW1 Rashid has unfolded that family of Jamil and that of Abdul Wahid are known to him, as they reside in the same street, where he used S.C. No. 24/09 Page 14/65 15 to reside. On 08.10.08 at about 8am, he was coming in the street and was called by Yamin. An altercation took place between Yamin and Wahid. Jamil was present in the street. Jamil got laid down Mullaji (Wahid) in the street. In the meanwhile, Imran came out from his house. He was standing at the corner of the street, that is, at a distance of 1015 paces from the place, where the occurrence was going. These persons were quarreling. He saw blood coming out from the hand of Jamil. However, he could not say as how blood came out and who caused injuries to him. Since this witness did not support the case of prosecution, he was crossexamined by the ld. Prosecutor and in crossexamination he admitted that house of Jamil and Wahid are adjacent and are having common wall in between. He pleaded his ignorance, if there used to be altercation between Jamil and Wahid on affixing a nail in the said wall. He admitted that Yamin gave a call to Jamil and told him to settle their grievances on that day. He could not say, if Jamil was sleeping at that time or he put on his clothes and came out in the street. He did not try to intervene, when Wahid and Jamil were exchanging words with each other. He did not see Imran bringing knife from his house. He denied that Imran declared that he will finish Jamil that day or that Jamil started running from there and was overpowered by Hasina and Wahid. He also denied that Hasina and Wahid made their intentions clear by saying that Jamil be assaulted or Imran rushed towards Jamil and wielded blow on his abdomen with a knife with intention to kill him or that he tried to save Jamil, but by that time Imran had wielded blow. He admitted that a few blood stains reached shirt of Yamin. He denied that when he and other persons of locality tried to overpower Imran, then he made it clear to them by showing knife that they S.C. No. 24/09 Page 15/65 16 would meet the same fate. He admitted that thereafter he and Imran left the spot. There were stab injuries on the hand of Jamil and that he was bleeding from his injuries. Persons of locality removed Jamil to hospital.
17. Kalsuman (PW2), who is mother of the deceased. This witness has unfolded that on 08.10.08 at about 8am, she was present at her house. Yamin and Rashid, who reside in her neighbourhood, came to her house. On that day, a minor altercation took place between Jamil and Wahid. They told Jamil that they would get that matter settled. On that pretext, they took Jamil along with them and went in the street. Jamil was sleeping, when Yamin and Rashid Hafiz had come to his house to take him along with them. While coming out, Jamil put on his clothes. When Jamil was taken outside in the street, she had also accompanied him. In the street, Wahid had questioned Jamil as to why he had affixed a nail in the common wall. Jamil had answered that proposition in negative. At that juncture, they reasoned with each other in bold words. In the meantime, Hasina, mother of Imran and Imran came out of their house. Imran was having a knife in his hands. Imran declared that he will see Jamil that day. Wahid overpowered her son from his right portion of his body, while Hasina overpowered him from the left side and Imran wielded knife blow in the abdomen of her son. On account of the stab injury, her son bleeded profusely. When she rushed towards Hasina to overpower her, she pushed her. On getting an opportunity, accused persons ran away from there. Police van reached there and removed her son to GTB Hospital. Her son remained admitted in the hospital for one day. He sustained injuries at the hands of accused Imran. He expired in the hospital on that very day. She made her report before the police in the hospital which is S.C. No. 24/09 Page 16/65 17 Ex.PW2/A. When she took a step forward, at the time of incident, Imran showed knife to her and uttered that she would also meet the same fate, in case, she would proceed towards him. Her son was wearing a pant and vest, at the time of incident. She gave those clothes to police in the hospital. Police had seized those clothes, vide memo Ex.PW2/B.
18. PW5 Misqeen is the wife of deceased and has deposed that on 08.10.08 at about 8am, her husband was sleeping at the house. Yamin and Rashid came to the house and asked her husband to get dispute between him and Wahid resolved. They offered their mediation in the said dispute. Her husband got up and accompanied them. Her motherinlaw followed her husband and she followed her. She saw exchange of hot words was going on between her husband and Abdul Wahid. Abdul Wahid was saying that her husband had put a peg (nail) in his wall. But her husband denied that allegation. Abdul Wahid abused her husband. Exchange of words between her husband and Abdul Wahid became very loud. In the meantime, Hasina and Imran reached there. Abdul Wahid grappled with her husband. Haseena also overpowered her husband. Imran was having a knife in his hands. Her husband was in the grip of Abdul Wahid from one side and Hasina from the other side. Imran wielded a knife blow in abdomen of her husband. Her husband sustained injuries and fell down. As soon as she and her motherinlaw took forward steps, accused Imran showed knife to them and uttered that in case, they would come forward then they would meet same fate. All of them ran away from there. Somebody gave telephone call to PCR van. PCR van reached at the spot. Jamil was removed to hospital. During evening hours, her husband expired in the hospital.
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18
19. PW10 Nafis Ahmed is the brotherinlaw of deceased and has deposed that on 08.10.08 at about 88.15am, he was standing in the street. He heard noise coming from street No.4, and immediately reached there. He saw a crowd in front of house of his relative Jamil. Altercation was going on between Jamil and Wahid. Both were abusing. Wahid was holding Jamil from one side and Noor Jahan @ Hasina was holding him from other side. Both these persons were calling Imran to come. Imran came from his house, having knife in his hand. Imran stabbed in the abdomen of Jamil. They tried to apprehend accused persons, but they managed to run away from there. Due to stab, blood started oozing out and Jamil fell on the ground. Police was informed. They were about to shift injured Jamil from the spot to hospital, in the meanwhile PCR van reached there and took him to hospital. He took Kalsuman, mother of Jamil, to GTB hospital on his scooter. Injured Jamil was taken to operation theatre. Due to his serious condition, in evening hours he was declared dead by the doctor.
20. PW14 Yamin is the other person, who tried to mediate the dispute between Wahid and Jamil and has deposed that both parties were known to him from before as they were his neighbours. An altercation used to take place between family of Wahid and Jamil. Family members of Jamil used to say that Wahid used to put incanted water in front of Jamil and other superstitious articles. Jamil asked him to make understand Wahid. He asked Wahid not to pour water in front of house of Jamil. Wahid assured him not to do so and further stated that he is not in the habit doing this type of things. Jamil was inside his house. He went to him and sated that he had conveyed his message to Wahid and even Wahid assured not S.C. No. 24/09 Page 18/65 19 to pour water in front of his house. He came out and told Wahid to pacify all these matters and not to repeat these things in future as houses of Jamil and Wahid are adjacent to each other. In the meanwhile, Jamil came out from his house and Wahid was standing there. Jamil caught hold of Wahid, pushed him and asked him to call persons who favours him. Wahid fell on the ground. He took care of Wahid. In the meanwhile, son of Wahid came out from the house and asked as to how his father is being beaten by Jamil. Jamil asked Imran to see him. There was grappling between Jamil and Imran. Leaving behind Wahid, he (witness) tried to save both of them and separated them. In the process his clothes were sustained with blood. He saw that one chhurri was lying there. He saw that knife injuries were there on the person of Jamil, but he could not say as to on which part of body there were knife injuries. Wife of Wahid came there and asked as to what has happened. Two boys from same street started taking injured Jamil to hospital. Wahid and Imran left the spot. He was taken to police station by police officials and brotherinlaw of the deceased and to state the things which happened before him. He produced his blood stained kurta before police officials, which was taken into possession. Since this witness did not support the case of prosecution in all material particulars, he was crossexamined by the ld. Prosecutor and in crossexamination, his attention was drawn towards his statement Ex.PW14/PX, where there was no mention that altercation between family of Wahid and that of Jamil was regarding putting incanted water by Wahid in front of house of Jamil and other superstitious articles and the other statement made by him in his examinationinchief that Wahid assured him not to pour water in front of house of Jamil. He admitted that before S.C. No. 24/09 Page 19/65 20 there was grappling between Jamil and Imran, he did not see any blood on the person of Jamil. He also admitted that blood came on his kurta, after there was grappling between Jamil and Imran. However, he could not say if the blood which came on his kurta was that of Jamil. He admitted that the scuffling between Jamil and Imran was going and during that period Jamil did not go anywhere and did not come back again at the spot. He also admitted that there was no third person except Jamil and Imran when grappling between two took place. He admitted the presence of Wahid at the spot, but denied that Noorjahan was also present. According to him, she came after occurrence.
21. ld. Counsel for accused is relying upon testimony of Rashid and Yamin and has attacked testimony of Kalsuman, Masqeen and Nafis Ahmed on the ground that they are close relatives of the deceased, inasmuch as, Kalsuman is the mother of Jamil, Masqin is wife of Jamil, while Nafis Ahmed is his brotherinlaw. That being so, being close relatives, they are interested in success of the case. Further more, he has also challenged their presence at the spot.
22. As regards the submission that no reliance can be placed on the testimony of Kalsuman, Masqin and Nafis Ahmed, being close relatives of the deceased, this submission is devoid of merits. There are catena of decisions to the effect that relations is not a factor to discard testimony of a witness. In fact, it is more often seen that close relatives will not allow a real culprit to go scot free and to implicate an innocent man. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
S.C. No. 24/09 Page 20/65
21
23. In Ashok Kumar Chaudhary vs State of Bihar : 2008 Crl.L.J. 3030, Hon'ble Supreme Court while dealing with the question of creditworthiness of the evidence of relatives of the victim, after review of several decisions on the issue, including Dalip Singh vs State of Bihar 1954 SCR 145, Masalti Vs. State of U.P. (1964) 8 SCR 133 and Rizwan & Anr. vs. State of Chhatisgarh 2003 I AD (S.C.) 637 = 2003 Crl. LJ 1226, held that relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterized as an 'interested witness. It was further observed that the term concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive.
24. In Namdeo vs. State of Maharashtra : 2007 III AD (S.C.) 717 = 2007 Crl. LJ 1819, Hon'ble Supreme Court held that a close relative cannot be characterised as an "interested" witness. The only rule of caution in this regard is that the evidence of such witness needs to be carefully scrutinized with great caution. If on such scrutiny, his evidence is found to be reliable, probable and trustworthy, conviction can be based even on the 'sole' testimony of such witness.
25. In Dalip Singh vs. State of Bihar, 1954 SCR 145 Hon'ble the Supreme Court laid down as under:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would S.C. No. 24/09 Page 21/65 22 be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that here is a tendency to drag in an innocent person against whom a witness has a grudge alongwith the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
''We are unable to agree with the learned Judge of the High Curt that the testimony of the two eyewitnesses required corroboration,. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this court endeavoured to dispel in Rameshwar vs. The State of Rajasthan 1952 Crl.L.J. 547. We find, however, that it unfortunately still persists, if not in the judgements of the courts, at any rate in the arguments of counsel."
26. In view of these authoritative pronouncements, the mere fact that Kalsuman, Misqin and Nafis Ahmed are close relatives of the deceased is no ground to distrust their testimony. In fact, being close relatives they would not allow real culprits to go scot free and make allegations against S.C. No. 24/09 Page 22/65 23 the accused persons who are neighbours and except for petty allegations on the issue of fixing a peg in the wall (as per prosecution case) or pouring incanted water in front of house of Jamil (as per case of accused), there was no animosity, illwill or grudge against them. As such there is no reason to disbelieve them on the sole ground of relationship.
27. ld. Counsel for the accused has placed reliance on 1994 Cr.L.J. 1689, Jai Singh vs. State of Rajasthan; and AIR 2004 SC 3554, Shankar Lal vs. State of Rajasthan for submitting that presence of witness Kalsuman at the spot is very doubtful, inasmuch as, she made no efforts to take the injured to hospital. Had she been present at the spot and witnessed the incident, she would have removed injured to hospital. I have carefully gone through both authorities relied upon by the ld. Counsel for accused. With due respect, none of the authorities helped him. Jai Singh (supra) was a case where the case of prosecution was that alleged eyewitness and the deceased were sleeping in the same room on separate cots. In the midnight, he saw accused inflicting knife blows on the thigh of deceased. When he tried to stand, then he inflicted blows with a dagger and thereafter he fled away. He was solitary eyewitness of the incident. However, it emerged on record that name of the assailants was not disclosed by him soon after commission of offence before the villagers. Moreover, only one cot was found in the room. Foot marks were not present at the place of occurrence. There was a dispute between the witness and father of accused. Moreover, he did not make any effort to take the injured to hospital. Under these circumstances, it was held that presence of the witness at the spot was doubtful. In Shankar Lal (supra) also presence of the witness at the spot was doubtful. His conduct of not S.C. No. 24/09 Page 23/65 24 informing anybody about the incident, though persons were available on his way back until he went to village square appeared unnatural. Moreover, his testimony suffered from inconsistencies, as such, it was held that it was not safe to convict on his solitary testimony. Things are entirely different in the instant case, inasmuch as, the incident had taken place at about 8am in front of house of accused and deceased. As such presence of family members of deceased at the house was quite probable. Moreover, Kalsuman has given complete and vivid narration of the entire incident as to how altercation took place and how Imran inflicted knife blows on the person of Jamil and accused Wahid and Hasina assisted him, by overpowering Jamil from left and right portion of his body. Perusal of record goes to show that this witness was examined on 02.03.09 and was crossexamined to some extent and thereafter her crossexamination was deferred on request of ld. Defence counsel. Thereafter, she was recalled on 04.03.09 and at that time counsel for accused did not choose to crossexamine this witness. Her cross examination, which had taken place on 02.03.09, was not touching the incident in question. With the result on material aspects of the incident, her testimony goes unrebutted and unchallenged. There is no reason to disbelieve the unchallenged and unshattered testimony of the witness.
Moreover, on receipt of information at about 8.24 a.m. regarding stabbing of one person, HC Des Raj went to spot and removed Jamil to GTB Hospital. As per MLC Ex.PW20/A, injured was brought to hospital at 9.15 p.m. According to SI Alok (PW22), on receipt of DD No.5B Ex.PW22/A regarding stabbing of one person, he went to the spot but did not find any eye witness there. Then he went to GTB Hospital, where he S.C. No. 24/09 Page 24/65 25 met Kalsuman and recorded her statement Ex.PW2/A, made endorsement vide Ex.PW22/B and gave original tehrir to Constable Shishpal for getting the case registered. A perusal of this tehrir goes to show that it was sent at 10.00 a.m meaning thereby that at the earliest available opportunity, without any loss of time, Kalsuman made complaint to the police wherein she had levelled allegations against all the accused persons holding them responsible for causing injuries upon her son with intent to kill him with a knife and also that when she and her daughterinlaw tried to catch hold of Imran, then he threatened them to face the same consequences, after pointing out knife on them. Thereafter, Imran and Wahid managed to escape from the spot along with knife. She caught hold of Hasina. However, she also managed to slip from there. Under these circumstances, keeping in view the fact that at the earliest available opportunity Kalsuman had stated to police regarding role of each and every accused, which became bedrock of investigation, coupled with the fact that in her deposition before the Court also she narrated entire incident succinctly and accused persons for reasons best known to them did not choose to challenge her testimony in material particulars, there is no reason to disbelieve her unchallenged and unrebutted testimony or to doubt regarding her presence at the spot.
28. Accused have examined DW3 Shakil Ahmed for showing that Kalsuman was not present at her house at the time of incident and had gone to the house of Nafis, who was residing in another street. This witness has deposed that in the year, 2008 at about 8am, he came out of his house and saw mother of Jamil sitting at the house of Nafis. One boy came there and stated to mother of Jamil that a quarrel had taken place S.C. No. 24/09 Page 25/65 26 with Jamil. Thereafter, Nafis along with mother of Jamil went to Gali No.4, Chaman Park. He along with others followed them, who came to know that Jamil had received injuries and has been taken to hospital by two persons. In crossexamination, he admitted that Nafis resides with his family at the first floor and that from the street he cannot say as to who is sitting and what is going on at the first floor of Nafis. Under these circumstances, crossexamination of this witness demolishes the entire examinationinchief, inasmuch as, if Nafis was residing at the first floor and he cannot see as to who is sitting and what is going on at the first floor of Nafis, then, he could not have seen mother of Jamil sitting at the house of Nafis. In fact, he admitted that he had come to depose before the Court at the instance of Rubina, daughter of Abdul Wahid and Rubina used to call him Mamu. As such, no reliance can be placed on the testimony of this witness and this witness does not help the accused persons.
29. Coming to the testimony of Masqin (PW5), the mere fact that this witness is wife of deceased does not make her testimony unreliable, rather record reveals that this witness was subjected to lengthy cross examination by ld. Defence counsel, despite that nothing material could be elicited to discredit her testimony. Same is the case with testimony of Nafis Ahmed, who was also subjected to lengthy crossexamination, and stood the test of crossexamination.
30. As regards, minor discrepancies appearing in their testimony, it may be mentioned that incident took place on 8.10.08 while witnesses came to be examined after a lapse of time in as much as PW Kalsuman was examined on 2/4 March, 2009, Misqeen was examined on 5.3.2009, S.C. No. 24/09 Page 26/65 27 Nafees Ahmed was examined and partly cross examined on 9.4.2009 and 13.4.2009. It is common knowledge that with passage of time human memory fades away.
31. In Krishna Pillai Vs. State of Kerala, 1981 Cr.L.J. 1743 : AIR 1981 SC 1237, it was held as under : ''The prosecution evidence no doubt suffers from inconsistencies here and discrepancies there, but that is a short coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies etc. go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases.'' In Sidhan Vs. State of Kerala, 1986 Cr.L.J. 470, it was held : ''Minor discrepancies regarding minute details of the incident including the sequence of events and overt acts are possible even in the versions of truthful witnesses. In fact such discrepancies ae inevitable. Such minor discrepancies only add to the truthfulness of their evidence. If on the other hand these witnesses have given evidence with mechanical accuracy that much have been a reason to contend that they were giving tutored versions. Minor discrepancies on facts which do not affect the main fabric need not be taken into account by the Courts if the evidence of the witnesses is found acceptable on broad probabilities.'' The principles that can be culled out from the aforesaid decisions are minor discrepancies and inconsistencies cannot give (sic) importance. The Court has to see whether inconsistencies can go to the root of the S.C. No. 24/09 Page 27/65 28 matter and affect the truthfulness of the witnesses while keeping in view that discrepancies are inevitable in case of evidence of rustic and illiterate villagers, who speak them after long lapse of time. It is also observed in Sidhan Vs. State of Kerala (supra), that minor discrepancies need not be taken into account by the Courts, if the evidence of the witness is found acceptable on broad probabilities.
32. In view of the legal proposition enunciated above coupled with the fact that as stated above, the witnesses have come to appear after a lapse of time from the incident as such minor discrepancies were bound to occur in their testimony.
33. In 2010 III AD (Delhi) 34 Gore Lal vs. State, Hon'ble Division Bench of our own High Court observed that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of their testimony, provided there is the impress of truth and conformity to probability in the substantial fabric of the testimony delivered. Hon'ble High Court relied upon Crl. A.No.327/2007 Akbar & Anr. Vs State, and decisions of Hon'ble Supreme Court reported as Tahsildar Singh vs State of UP AIR 1959 SC 1012, Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat AIR 1983 SC 753 & Leela Ram vs. State of Haryana AIR 1997 s/c 3717 and observed that 13 principles are to be followed while evaluating evidence of eye witnesses: I. While appreciating the evidence of a witness, the approach must be whether the evidence of a witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the S.C. No. 24/09 Page 28/65 29 deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless thee are reasons weighty ad formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eyewitness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a S.C. No. 24/09 Page 29/65 30 photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimate in such matters. Again, it depends on the timesense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to et confused, or mixed up when interrogated later on.
XII. A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out S.C. No. 24/09 Page 30/65 31 of nervousness mx up facts, get confused regarding sequence of evens, or fill up details from imagination on the spur of he moment. The sub conscious mind of he witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
A minute scrutiny of prosecution witnesses goes to show that they are trustworthy witnesses. PW Kulsuman, Misqin and Nafees Ahmed have categorized the role of accused Imran as the offender who has inflicted stab injury on the victim and he was assisted by Abdul Wahid and Noor Jahan who caught hold of the victim. While scrutinising the testimony of these witnesses it has to be kept in mind that they are not very educated persons and the intelligence power, observation as also the retentive memory of the witnesses have to be kept in mind. Testimony has to be read in its entirety to decide whether it has a ring of truth or not. All these witnesses have passed the test of reliability and their version are natural, probable, coherent and cogent.
34. Much emphasis has been laid by ld. Defence counsel on the testimony of PW1 Rashid and PW14 Yamin for submitting that they have not supported the case of prosecution and as such were crossexamined by ld. Public Prosecutor. In this regard, it may be mentioned that it is settled law that even if a witness is declared hostile, his testimony cannot S.C. No. 24/09 Page 31/65 32 be discarded in toto. Hon'ble Apex Court in Bhagwan Singh Vs State of Haryana, (1976) 2,SCR 921, Ravinder Kumar Dey Vs State of Orissa, AIR 1977 SC 170, Sayed Akbar Vs. State of Karnataka, AIR 1979 Supreme Court, 1848, Khudi @ Surender Tiwari Vs. State of M.P.1991, Crl.L.J. 2653 and various other decisions held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found dependable on a careful scrutiny thereof. Perusal of testimony of these witnesses goes to show that so far as Rashid is concerned, this witness has not disputed that dispute was going on between Jamil and Wahid and Yamin asked them to settle their grievances. Even this witness has deposed that Jamil came out of the house and thereafter Imran also came out and hot words exchanged between them. They grappled with each other. He also admitted that blood came on the shirt of Yamin and that he noticed stab injuries on the hand of Jamil. Therefore, he has admitted that during the course of altercation between Jamil and Imran, Jamil had sustained stab injuries. However, he is trying to conceal as to how Jamil sustained those injuries. Same is the case with PW Yamin, who also admitted that he and PW Rashid tried to mediate the dispute between family of Wahid and Jamil and with that end in view, he called Jamil. Thereafter, grappling took place between Jamil and Imran and he tried to separate them from each other, and in that process his clothes were stained with blood. He also noticed knife injuries on the person of Jamil. In his crossexamination by the ld. Prosecutor, he admitted that there was S.C. No. 24/09 Page 32/65 33 nobody else at the spot, except Imran and Jamil and grappling had taken place between them. That being so, it is not the case that some stranger may have come to the spot and inflicted injuries on the person of Jamil. This witness is trying to conceal the manner in which Jamil sustained injuries. However, even as per version of both these witnesses, Jamil did not sustain stab injuries from any other person or anywhere else, except the place of incident and the place where the altercation had taken place between Imran and Jameel In fact, both these witnesses substantially corroborated the testimony of other eye witnesses. Since they are neighbours of accused and deceased, therefore, it is quite possible that they are trying to suppress the manner in which Jameel sustained injuries. At the same time, they could not deny that Jameel sustained stab injuries and in fact when PW Yamin tried to intervene, blood also came on his Kurta. It will be advantageous to produce the observation made by Hon'ble Supreme Court in Krishna Mochi Vs. State of Bihar, (2002) 6 SCC 81, in this regard : "It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or highups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of crossexamination, S.C. No. 24/09 Page 33/65 34 which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at the times under the stress of crossexamination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. These days, it is not difficult to gain over a witness by money power or giving him any other allurance or giving out threats to his life and/or property at the instance of persons, in/or close to powers and muscle men or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent."
Dealing with the aspect of contradictions, inconsistencies and exaggeration or embellishments, hon'ble Apex Court in Kirshna Mochi (supra) has observed as under : "If a whole body of the testimony is to be rejected because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stage. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be satisfied with care. One hardly comes across a witness, whose evidence does not contain a grain of untruth or at any rate exaggeration, embroidery or embellishments. An attempt has to be made S.C. No. 24/09 Page 34/65 35 to separate the grain from the chaff."
35. In view of these authoritative pronouncements, it becomes clear that merely because these witnesses did not fully supported the case of prosecution, that is not a ground to discard their testimony altogether.
36. In view of the legal position enunciated above so much part of the testimony of the witnesses which find corroboration from other material on record can be read in evidence. In fact, on material aspects both these witnesses corroborate the version of remaining witness. Both these witnesses are admitting presence of Imran and Wahid at the spot. They are also admitting the fact that Jamil sustained injuries at the spot, but are trying to suppress the manner in which he sustained injuries and the persons who caused injuries. The reason is obvious : they being neighbours of the parties are trying to suppress the real truth but at the same time on material aspects they have corroborated their version. As such accused do not get any benefit from their testimony. Medical Evidence :
37. Moreover, ocular testimony of eyewitnesses, regarding stabbing of Jamil finds substantial corroboration from medical evidence, inasmuch as, it has come on record that when injured was removed to hospital, he was examined by Dr. Harish (PW20). As per his testimony on 08.10.08, he examined one person, namely, Jamil 20 years, male, who was brought by police officials with alleged history of injury with a sharp weapon with complaint of wound present in the abdomen and right hand. On examination, the size of the wound was 3cm X 1cm present on left hypochandrium. There was another 4cm sharp lacerated wound present on the right hand a the base of thumb. The patient was given treatment IV S.C. No. 24/09 Page 35/65 36 support in which he was given lactated solution and plasma expander hameceem and then was sent to surgery department. He prepared his MLC Ex.PW20/A. After injured succumbed to his injuries, request was made by Inspector A.S. Negi to Dr. Arvind Kumar for getting postmortem on the dead body of Jamil. Postmortem was conducted by Dr. Arvind Kumar. On external examination, he found following injuries : (1) Incised wound of size 8cm X0.2cm, starting from base of the left hand thumb and extending upto wrist over thenar muscles over left hand.
(2) Incised stab wound of size 2.9 cm X0.2 cm was present in the middle of the abdomen, 9cm below Xiphisternum and 2cm left to the midline, obliquely placed, upper inner angle of wound was blunt and lower outer angle was sharped. Direction of the wound was upward, backward and inward. On exploration of track, it entered in the abdomen cavity, evidence of surgical repair was present in middle of 1/3 or transverse clolon with ligation of mesentric vessels. The total depth of the wound was 8cm.
38. After postmortem examination, he opined that cause of death was haemorrhagic shock due to antemortem injuries to intestine and its blood vessels produced by single edged sharp cutting/stabbing weapon. Injury No. 2 was sufficient to cause death in ordinary course of nature. He gave his postmortem report Ex.PW17/A. Under these circumstances, it stands amply proved from medical evidence that injuries on the person of Jamil was caused by sharp cutting/stabbing weapon and injury No.2 was sufficient to cause death in ordinary course of nature. Circumstantial Evidence : S.C. No. 24/09 Page 36/65 37
39. Besides ocular evidence in the form of statement, given by Pws Kalsuman, Misqeen, Nafees Ahmed, case of the prosecution is also based upon following circumstantial evidence:
(i) Information given to HC Desraj regarding stabbing of Jameel by Imran.
(ii) While in police custody accused Jameel disclosed regarding concealment of knife in his house and then leading the police party to his house and getting the knife recovered.
(iii) Recovery of blood stained clothes of Imran at his instance.
(iv) Accused Imran and Wahid were found absconding from their house after the murder of Jameel.
Each of the circumstance shall be dealt with one by one. Information.
HC Desh Raj (PW9) was posted at baker11, PCR van as incharge from 8am to 8pm on 08.10.08. At about 8.24am, he received call to the effect that one person has been stabbed. Thereafter, he went to the spot, that is, H.No. C55, Street No.4, Chaman Park, Karawal Nagar. Two persons were putting one injured in a TSR. In the meanwhile, his PCR van reached there. They kept injured in PCR van and took him to GTB Hospital and got him admitted there. Name of the injured was revealed as Jamil. One person whose name was revealed as Maqbool stated that Imran had stabbed Jamil with a knife meant to cut goat. In cross examination, it has come that name of other person, who was with Maqbool was Aslam and both these persons stated that they were neighbours of injured. Maqbool and Aslam accompanied him to the hospital in PCR van. He made relevant entry in the call register S.C. No. 24/09 Page 37/65 38 Ex.PW9/DA, wherein it was mentioned that he was informed by these persons that injured has been stabbed by Imran. He was totally independent witness and at the very initial juncture, he was informed by public persons regarding stabbing of Jamil at the most by Imran. This is a very strong piece of evidence against the accused.
Recovery of Weapon of Offence :
40. As per prosecution version, on 15.10.08 Inspector A.S. Negi along with HC Kishan Lal, Constable Shish Pal and HC Jagdish were present at Shiv Vihar, Tpoint, when a secret information was received that accused Wahid along with his son and one more person would come at their residence during night hours. One public person was asked to join investigation. At about 6.30pm, accused Abdul Wahid, his son and his nephew came from Aksha Masjid side. They were overpowered and interrogated. Both the accused made their disclosure statement Ex.PW12/A and Ex.PW12/B. Accused Imran stated during his interrogation that he can get recovered a knife used at the time of commission of crime and his blood stained clothes from his house. Thereafter, both accused persons took them to their house, that is, C56, Gali No.4, Chaman Park, Delhi, and accused Imran got recovered one knife from beneath a diwan, which was lying at the ground floor in the corner of a room. Sketch of the knife vide Ex.PW12/C was prepared. It was measured and total length of knife was 27.5cm, length of the blade was 15.5cm and handle was 12 cm. Knife was kept in a pullanda with seal of AS. Seal after use was given to HC Kishan Lal. It was taken into possession vide seizure memo Ex.PW12/D. Site plan of the place of recovery of these articles Ex.PW23/C was prepared. Both accused S.C. No. 24/09 Page 38/65 39 persons were arrested, vide arrest memo and personal search memo Ex.PW12/F, Ex.PW12/G, Ex.PW12/H, Ex.PW12/N and Ex.PW12/I.
41. HC Kishan Lal (PW12) has corroborated testimony of Inspector A.S. Negi, inasmuch as, he has deposed that on 15.10.08, he along with Inspector AS Negi, HC Jagdish and Constable Shishpal went to street No.4, Chaman Park, Delhi, in search of all the accused persons, but they could not be traced. At about 5pm, secret information was received by Inspector A.S. Negi to the effect that wanted accused would come at their residence. Some passersby were asked to join the investigation, but they did not join the investigation. One person, namely, Saleem joined proceedings. All the members of raiding party hide themselves near Aksha Mosque. At about 6pm, three persons were found coming from Johripur, Shiv Vihar Tiraha. When they reached Aksha Mosque at the pointing out of Saleem, investigating officer with other police officials overpowered those persons. On interrogation, their names were revealed as Wahid and Imran and the third person was nephew of Wahid. Both accused persons were interrogated, who disclosed regarding their involvement in crime and stated that some quarrel was going on between them and Jamil. On 08.10.08, two persons, namely, Yamin and Rashid came forward to settle the matter. Wahid and his wife, namely, Hasina caught hold of Jamil in the street. Imran brought a knife and stabbed Jamil. Due to excessive bleeding, Jamil fell on the ground and both accused persons were arrested. Imran disclosed in his disclosure statement that he had hidden a chhura in a corner beneath the diwan in his house and he can get recovered the same. Thereafter, they came at the house of accused persons and accused got recovered one chhuri from beneath the diwan S.C. No. 24/09 Page 39/65 40 lying in the corner of a room. The chhurri was taken into possession after preparing its sketch vide memo Ex.PW12/D. He identified the chhurri Ex.P1 to be the same, which was recovered at the instance of accused Imran.
42. PW13 Saleem Khan is an independent witness. He has deposed that on 15.10.08, police officials came to him at about 5.30pm and informed him that they had information that Wahid and Imran would come at their residence. Police officials requested two or three neighbours to join investigation, but they did not join. He was asked to identify accused Wahid and Imran. He consented for the same and joined investigation with police as both these accused were known to him. At about 6pm, he along with police officials reached near gali near Aksha Mosque and hidden themselves in that street. In the meanwhile, three persons came from Shiv Vihar Tiraha. When those persons came near them, then he identified them. On interrogation, both accused persons made disclosure statement regarding their involvement in the present case. The disclosure statement Ex.PW12/A and Ex.PW12/B bear his signatures at point 'B'. Further, in pursuance to the disclosure statement made by accused Imran that he can get recovered blood stained cloth and knife, which were kept in a room beneath a diwan, he took police party over there and one knife and blood stained clothes were recovered, which were taken into possession. He also identified chhuri Ex.P1 to be the same, which was recovered at the instance of accused Imran.
43. In State of Maharashtra Vs Suresh : 1999 X AD (SC) 29, the accused made a disclosure statement that dead body was kept concealed in the fields and he would take out and produce the same. The following S.C. No. 24/09 Page 40/65 41 observations made by the Hon'ble Supreme Court regarding the implication of such a statement are relevant :
"We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But, if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in section 27 of the Evidence Act."
Therefore, in this case also, there are three probabilities. The first probability is that the accused himself had kept the knives in the chhappar of their house. The second possibility is that someone had told him that knife has been kept there and the third possibility is that the accused had seen someone keeping the knife at that place. Accused has not disclosed as to how he came to know that knife was lying beneath the diwan of his room. In fact, the plea taken by him is that he did not take the police to his house and did not produce knife from there. Therefore, it can be safely presumed that accused had kept the knife Ex.P1 beneath the diwan of S.C. No. 24/09 Page 41/65 42 house and therefore, got the same recovered to the police.
44. ld. Counsel for the accused has placed reliance on :
(i) Mukesh vs. State, 2010 (2) C.C. Cases (HC) 330.
(ii) Ashish vs. State, 2010 (2) C.C. Cases (HC) 333.
(iii) Prabhoo vs. State of U.P., AIR 1963 SC 1113.
In Mukesh vs. State, 2010 (2) CC Cases (HC) 330, recovery of weapon of offence was held to be doubtful, keeping in view totality of facts and circumstances of the case, viz, character of the alleged eyewitness, who himself was an accused in as many as 19 crimes, testimony of the witness was otherwise unreliable, person at whose instance injured responded and reached his house, place where crime took place was not examined by prosecution, shirt which injured claimed to have wrapped around the waist of the deceased was not seized.
2010 (2) CC Cases (HC) 333, Ashish vs. State, in this case recovery of knife and blood stained clothes of accused were held to be weak type of evidence, because the case was based on circumstantial evidence and chain of circumstances to prove guilt of the accused was not complete.
AIR 1963 SC 1113, Prabhoo vs. State of UP., in this case there was only the statement that axe is one with which murder was committed and blood stained clothes belonged to him. It was held that incriminating statement made to police are hit by Section 25 and 26 of the Evidence Act. It is fallacious to treat fact discovered within Section 27 as equivalent to the object produced. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. As such, the S.C. No. 24/09 Page 42/65 43 alleged statement of accused that axe has been used to commit murder or the statement that blood stained shirt and dhoti were his cannot be admitted in evidence.
45. All these authorities, with due respect, do not help the accused as the same are quite distinguishable from the case in hand and in view of the discussion made above, it was in pursuance to the disclosure statement made by accused Imran that weapon of offence was recovered from his house, as such recovery of weapon of offence at the instance of accused Imran stands proved beyond doubt.
46. Testimony of Inspector A.S. Negi has been challenged by ld.
Defence counsel on the ground that while according to HC Kishan Lal, public witness, namely, Salim joined the proceedings when accused Imran and Wahid were arrested. However, as per his testimony the accused persons were arrested on the pointing of witness Nafis. Although, in the examinationinchief at one stage, it has come in the testimony of Inspector A.S. Negi that one public person, namely, Nafis joined the investigation and on his pointing out accused Abdul Wahid, Imran and one more person were apprehended. However, in examinationinchief itself, while narrating sequence of events whereby disclosure statement was made by both accused persons, and then at the instance of accused Imran recovery of weapon of offence and his blood stained clothes were recovered, he has deposed that he had recorded statement of Salim. That being so, it seems that it was a typographical mistake. Moreover, things become more clear from his crossexamination, wherein it is clearly mentioned that Salim Khan joined investigation and on his identification accused persons were apprehended. Under these circumstances, this S.C. No. 24/09 Page 43/65 44 submission of ld. Defence counsel is devoid of merits. On the other hand, all the witnesses to the apprehension of accused and recovery of weapon of offence were crossexamined at great length by ld. Defence counsel. However, nothing material could be elicited to discredit their testimony. Under these circumstances, it stands established beyond reasonable doubt that in pursuance to the disclosure statement made by accused Imran, weapon of offence, that is, knife (chuuri) Ex.P1 was recovered from his house.
Recovery of blood stained clothes of accused Imran :
47. It has come on record that on 1`5.10.2008 when Inspector A.S.Negi alongwith other police officials and Saleem apprehended accused Abdul Wahid and Imran, they made disclosure statement Ex.PW12/A and Ex.PW12/B. In his disclosure statement, Imran stated that he can also get his blood stained clothes recovered from his house. Thereafter he led the police party to his house and took out from beneath that diwan one slati colour Tshirt, having word "C" in front it and on the collar one label marked Soft was attached and one cream colour pant. Blood stains were noted on the clothes. Clothes were kept in a pullanda and were sealed with seal of AS and were taken into possession vide seizure memo Ex.PW12/E. He also got recovered his blood stained Tshirt of grey colour, on which collar mark "soft" R40 was written. On the back of Tshirt, "C" was written. He also got recovered one blood stained pant. The blood stained clothes were also taken into possession vide memo Ex.PW12/E. Witnesses Insp. A.S.Negi, HC Kishan Lal, PW Saleem Khan identified T shirt and pant Ex.P2 and P3 to be the same which were got recovered at the instance of accused Imran. As per the FSL report Ex.PW21/A & S.C. No. 24/09 Page 44/65 45 PW21/B human blood was found on the pant and T Shirt of accused and no explanation is forthcoming from the side of accused as to how blood came on his clothes. This is another corroborative piece of evidence against the accused.
Abscondence It has come on record that incident in question took place on 08.10.2008. Accused Abdul Wahid and Imran were arrested on 15.10.2008. This is yet another circumstance which goes against the accused.
In Virender Kumar Gara Vs State : 2001 III AD (Delhi) 319, A division bench of Hon"ble High Court was of the view that the fact that the accused absconding immediately after the incident was a strong factor to rove his guilt. In Amrit Lal Someshwra Joshi Vs State of Maharashtra :
AIR 1994 SC 2516, the appellant who was employed as a domestic servant was found absconding after murder of his employer. It was held to be an incriminating circumstance against him. In State of UP vs. Deoman Upadhyay : 1960 Crl. L.J. 1504, the appellant, who had also threatened the accused, was found absconding after her death. It was held that his having threatened the deceased and his absconding immediately after the death of the deceased by violence, lent very strong support to the case of the prosecution.
In 2010 VII AD (Delhi) 83: Ram @ Ram Dass Vs State of Delhi, also the accused was absconding from his house after murder of his wife and he was not able to give any plausible explanation for his not being found in the house before he was arrested by the police. This was one of the circumstance which went against the accused. S.C. No. 24/09 Page 45/65
46 In the instant case also, the conduct of the accused persons in absconding after the incident, is another piece of evidence which goes against them. In the instant case also, no plausible explanation is forthcoming from the side of accused regarding their absence from their house since the date of incident till their arrest. In fact, as per the testimony of DW 4 Mohd. Shamim police officials were searching for both these accused and therefore, they were enquiring from the relatives of these accused and asked him to assist in searching the accused persons. Thereafter he made telephone calls in his relations at Aligarh Bulandshahar, Khurja etc. and thereafter he came to know from his brother in law Hanif that Abdul Wahid and his son had come to him and he was bringing them to Delhi. It was only when Hanif brought the accused persons to Delhi that they could be arrested on 15.10.2008. This conduct of accused Abdul Wahid and Imran in absconding after the incident also goes against them.
Expert Evidence :
48. As per prosecution version, on 08.10.08 on receipt of DD No.5B Ex.PW22/A, SI Alok Kumar along with Constable Shish Pal went in front of House No. C5556, CBlock, Gali No.4, Chaman Park, Delhi. He did not find any eyewitness at the spot and found that injured has been taken to GTB Hospital. As such, he went to GTB Hospital along with Constable, where injured Jamil was found admitted. In the hospital, he met Smt. Kalsuman, mother of injured, who gave her statement Ex.PW2/A. She produced one blood stained vest of injured, stating that this vest was given to her by doctors, when her son was being taken in operation theatre.
There was a knife cut mark on that vest. He kept vest in a pullanda and S.C. No. 24/09 Page 46/65 47 sealed it with seal of AK and took the same into possession vide memo Ex.PW2/B. Thereafter, he went to the place of occurrence. Yamin came at the spot, his statement was recorded. Yamin produced one blood stained kurta, stating that blood had come on his kurta, when he was trying to intervene. He took that kurta into police possession, kept the same in pullanda and sealed it with seal of AK and took the same into possession vide memo Ex.PW4/A. Investigation of the case was entrusted to Inspector A.S. Negi.
49. Inspector A.S. Negi called District Mobile Crime Team at the spot.
Crime team officer SI E.S. Yadav (PW18) along with staff reached at the spot. He prepared his report Ex.PW8/A. Blood stains were noticed on the marble in the street in front of H.No. C55. Inspector Negi took two blood stained marble stones into possession and kept the same into a separate pullanda and sealed the same with seal of AS and took the same into possession vide memo Ex.PW10/A.
50. Photographs of place of occurrence were taken by Constable Neeraj.
51. After injured succumbed to his injuries and his postmortem was conducted, doctor at the hospital had given one sealed pullanda and one sample seal of AK, which was blood on gauze of the deceased, which was taken into possession vide memo Ex.PW23/B.
52. On 15.10.08, when accused Imran along with his father Abdul Wahid were arrested, in pursuance to the disclosure statement made by accused Imran, he got recovered weapon of offence, which was taken into possession vide memo Ex.PW12/D. He also got recovered his blood stained Tshirt and pant, which were taken into possession vide seizure S.C. No. 24/09 Page 47/65 48 memo Ex.PW12/E. The case properties were deposited from time to time with MHC(M).
53. On 06.11.08, an application was moved by the investigating officer for obtaining subsequent opinion from the doctor. As such, sealed parcel containing knife was produced before Dr. Arvind and as per statement of doctor, the knife was having wooden handle and one edge of the blade was sharp, while other was blunt. The reddish brown stains were present over both surfaces of blade. He prepared the description and dimension of knife Ex.PW17/B. After examination of knife and going through postmortem report, he opined that injury No.1 and 2, mentioned in the postmortem report, were possible by knife under examination. He proved his subsequent opinion as Ex.PW17/C.
54. During the course of investigation, exhibits were sent to FSL. Same were examined by Dr. Dhruv Sharma, who gave his report Ex.PW21/A and Ex.PW21/B. As per report Ex.PW21/A, following articles were received by Dr. Dhruv Sharma for the purpose of examination. He gave his result with analysis as under : Parcel '1' : One sealed cloth parcel sealed with the seal of "AK" containing exhibit '1'.
Exhibit '1' : One cut/torn dirty baniyan.
Parcel '2' : One sealed cloth parcel sealed with the seal of "AK"
containing exhibit '2'
Exhibit '2' : One kurta having brown stains.
Parcel '3' : One sealed cloth parcel sealed with the seal of "AK"
containing exhibit '3'.
Exhibit '3' : One stone slab described as marble piece with blood.
S.C. No. 24/09 Page 48/65
49
Parcel '3A' : One sealed cloth parcel sealed with the seal of "AS" containing exhibit '3A'.
Exhibit '3A' : One stone slab piece described as marble piece with blood.
Parcel '4' : One sealed paper envelope sealed with the seal of "AK" containing exhibit '4'.
Exhibit '4' : Brown gauze cloth piece described as 'blood in gauze of deceased'.
Parcel '5' : One sealed cloth parcel sealed with seal of "AS" containing exhibits '5a' and '5b' described as clothes of accused. Exhibit '5a' : One pants having few dirty brownish stains. Exhibit '5b' : One Tshirt having few dirty brownish stains. Parcel '6' : One sealed paper envelope sealed with the seal of "AK" containing exhibit '6'.
Exhibit '6' : One knife with wooden handle having rusty stains.
1. Blood was detected on exhibits '1', '2', '3', '3A', '4', '5a', '5b' and '6'.
2. Report of serological analysis.
55. Dr. Dhruv Sharma also examined the exhibits, using various serological techniques, which gives following results : Exhibits Species of Origin ABO Grouping/Remarks '1' Banayan Human 'A' Group '2' Kurta Human 'A'Group '3' Stone piece Human No reaction '3A' Stone piece Human No reaction '4' Gauze cloth piece Human 'A' Group '5a' Pants Human No reaction S.C. No. 24/09 Page 49/65 50 '5b' Tshirt Human No reaction '6' Knife Human No reaction
56. As per report Ex.PW21/A, blood was detected onthe banyan (belonging to deceased), one kurta (belonging to Yamin), marbles pieces, which were lifted from the spot, blood under gauze of deceased, pant and Tshirt (belonging to accused Imran) and the knife. As per report Ex.PW21/B, the blood group of deceased was 'A', while on all exhibits species of origin was "human", on banyan of deceased 'A' Group was opined. Similarly, on the kurta of Yamin blood group was opined as 'A'. As regards other exhibits, the blood group could not be given. From these reports, it becomes amply clear that on all the exhibits, which were sent to FSL, blood was detected. Moreover, the kurta of Yamin also bore 'A' group, which came on his kurta while he tried to intervene in between scuffle between Jamil and Imran, and blood on his kurta belonged to deceased. No explanation is forthcoming from the side of accused as to how blood came on his clothes. The accused does not claim that he sustained any injury at the time of incident. He also does not claim that the blood found on his clothes was his own blood or the blood of a human being other than the deceased. Similarly, the accused does not claim that the knife Ex.P1 had blood of a human being other than the deceased.
57. In Gura Singh vs The State of Rajasthan 2000 IX AD (SC) 299, Hon'ble Supreme Court rejected the contention that in the absence of report regarding origin of the blood, the trial court could not have been convicted the appellant. In State of Rajasthan Vs Teja Ram & Others :
1999 II AD (SC) 537 = 1999 (3) SCC 507, Hon'ble Supreme Court held S.C. No. 24/09 Page 50/65 51 that failure of the Serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stock on the axe would not have been human blood at all. It was observed that sometimes it happens, either because the stain is insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. In Moti Ram Vs State of Maharashtra : JT 2002 (2) SC 637, the report of the Forensic Science Laboratory indicated that the clothes of the appellant and the knife recovered at his instance were having human blood, the group of which could not be ascertained on account of disintegration of the blood spots. It was held that merely because the blood group on the clothes and the blood on the knife was not ascertained, could not be a reason to hold that any chain of circumstances was missing, as argued on behalf of the appellant.
58. In Ram @ Ram Dass Vs. State of Delhi 2010 VII AD (Delhi) 83, also the blood group of the human blood found on the knife and the clothes could not be ascertained. It was held by Hon'ble High Court that mere absence of blood group does not lead to the conclusion that human blood found on these articles was not of the deceased.
59. In view of these authoritative pronouncements, mere absence of blood group of the human blood on stone pieces, pant, Tshirt of accused and knife does not lead to the conclusion that human blood found on these articles is not of the deceased.
60. Result of the aforesaid expert evidence goes to show that it has come in the eyewitness account that Jamil stabbed with a chhurri, the chhurri, which was recovered at the instance of accused Iman, was found S.C. No. 24/09 Page 51/65 52 to be containing blood and as per report of doctor, injuries on the person of Jamil were possible by the weapon of offence, which was recovered at the instance of accused Imran. Under these circumstances, this expert evidence also proves the case of prosecution beyond reasonable doubt.
61. Now coming to the statements of accused persons, accused Abdul Waheed in his statement recorded u/s 313 Cr.P.C has admitted : (1) He along with his family members used to reside adjacent to the house of PW2 Kalsuman.
(2) A minor altercation took place between him and Jameel. (3) Yameen and Rashid came to get the matter settled. (4) He had seen Jameel in the street.
(5) Jameel sustained stab injuries, as a result of which, he started bleeding profusely.
(6) Jameel himself gave call to PCR regarding the occurrence. (7) Two persons, namely, Salman and Aslam took injured Jameel in TSR from the spot and later on injured Jameel was taken to GTB Hospital in a PCR van from there.
(8) Jameel was examined by Dr. Harish, SR of GTB Hospital, on 08.10.08 vide MLC No. 20/A. (9) On receipt of DD No. 25B, SI Alok Kumar along with Constable Sheesh Pal went in front of house No. C5556, Gali No.4, Chaman Park, Delhi and did not find any eyewitness at the spot at that time and they were informed that injured has been taken to GTB Hospital. (10) When police officials went to GTB Hospital, injured Jameel was found admitted in the hospital.
(11) PW14 Yameen came at the spot, who produced one blood stained S.C. No. 24/09 Page 52/65 53 kurta Ex.P4 and stated that blood came on his kurta when he was trying to intervene and that kurta was kept in a pullanda by SI Alok Kumar and sealed with the seal of AK and was taken into possession vide memo Ex.PW4/A. (12) SI Alok Kumar received information that injured Jameel has expired in the hospital.
(13) On receipt of information regarding death of Jameel, investigation was assigned to Inspector A.S. Negi, who along with other police officials went to H.No. C55, Chaman Park, Gokulpuri, Delhi. (14) Inspector A.S. Negi called District Mobile Crime Team at the spot. SI E.S. Yadav, Incharge Mobile Crime Team along with Constable Sanjay Kumar photographer reached at the place of occurrence, inspected the site and photographs of place of occurrence were taken. (15) Two blood stained marbles were lying in the street in front of H.No. C 55 and the same were taken into possession.
(16) On request of police officials, PW10 Nafis Ahmed joined investigation.
62. It is further his case that quarrel took place between him and Jameel. Jameel stated to Yameen that he (Wahid) poured incanted water in front of his house. Yameen and Rashid came to him and asked him regarding the same and he replied in negative and on this they stated that they will make understand Jameel. He was standing in front of his house. After making Jameel understood Yameen went from there. Thereafter, Jameel came out and started abusing him in filthy manner. He asked him not to abuse. Jameel caught hold of him from his collar and gave him many slaps. He dragged him from the stairs in front of his house and made him to lay on the ground. Thereafter, he did not know who rescued S.C. No. 24/09 Page 53/65 54 him. Yameen and Rashid were also present at that time. His son and his wife were not present at that time. After sometime, his son Imran came there. When his son Imran asked Jameel as to why Jameel gave beatings to him Jameel scuffled with his son Imran. Some altercation (hatha pai) took place between Jameel and Imran. Yameen separated both of them. Thereafter, Jameel went from there to call the police at 100 number. Aslam and Imran had taken injured Jameel to the hospital. Since he was asked by neighbours to go from his house, therefore, he went away from his house.
63. Accused Imran in his statement recorded u/s 313 admitted that : (1) He along with his family members used to reside adjacent to the house of PW2 Kalsuman.
(2) On 08.10.08, a minor altercation took place between Abdul Waheed and Jameel.
(3) His rest of the case was of denial simplicitor. However, he projected that on 08.10.08, he was inside his house. When he came out from his house at about 7.308am, he saw that Jameel had made his father laid on the ground and was quarreling with his father and was beating his father. He asked him as to why Jameel was beating his father. He left his father and grappled with him and thereafter Jameel had taken out one chhurri from his pocket and he tried to inflict knife blow on his hand. He saved his hand from that blow and that knife hit on the left hand of Jameel itself. Thereafter, Jameel immediately went inside his house and within one minute he came out and stated that he would implicate them in the case and is going to inform the police. Thereafter, he went to a nearby STD shop. There was brawl in the area. Locality persons were saying to call S.C. No. 24/09 Page 54/65 55 the family member of Jameel, but no one came out from the house of Jameel for 1520 minutes. His mother was cooking food at 2nd floor of the house. There was uproar in the area and it was heard that police is about to come. Some neighbours asked him to go from there and he went from there. At about 11am, he came to know that police officials have lifted his mother and thereafter he came to know that she had been sent to jail. He had only seen Jameel receiving injuries on his hand by knife. He did not know as to how he received injuries on his abdomen. On 14.10.08, he and his father were lifted from the area of Uttam Nagar and they were brought to the PS. They were kept at the PS for two days. Their signatures were obtained on some documents and thereafter they were sent to jail.
64. Noorjahan claims herself to be innocent. She projected that she was present at the second floor of her house and was preparing food. At about 88.30am, when she came in the street, Yameen, Hafiz and many persons were in the street. Jameel was going towards STD shop. Nafeez, Miskeen and Kalsuman were coming from Masjid side. Persons gathered in the street asked her to go inside the house. She accordingly went inside the house. Two police officials came to her residence and they took her to the PS. She did not witness any other occurrence. Her thumb impression was obtained on many blank papers in the PS. Two persons had taken injured Jameel to the hospital.
65. Accused persons have examined five witnesses in support of their defence. DW1 Rubina is the daughter of accused Abdul Wahid and Noor Jahan and is the sister of accused Imran. This witness has deposed that on 08.10.08, her mother had prepared break fast and they were taking break fast. They heard noise of quarrel. Her mother asked her to see as S.C. No. 24/09 Page 55/65 56 to what has happened in the street. She came downstairs and saw that there was heavy crowd in the street. Her father Abdul Wahid was lying in the street and his brother was lifting his father. He saw Jamil abusing and crossing the street. She again saw Jamil in the street and at that time blood was coming from his hand. Jamil was saying that he was going to call PCR van. Jamil was abusing a lot. As such, residents of street asked her brother Imran to go away from there. Thereafter, his father and brother went away from there. She along with her sister and mother were standing in the street. Residents of locality asked them also to go inside, and therefore they stood on the slip in front of the house. On the asking of residents of locality, Jamil also went towards his house and sat on the folding iron cot. He was asked by the residents to go to the hospital, but he did not go. One auto came in the street and Jamil along with two other persons boarded that TSR and went from there. After 510 minutes, mother of Jamil and one other person, namely, Nafis and relatives of Jamil, who reside in the street came there and started using filthy language. She along with her mother went inside the house. At about 11 11.30am, two police officials came and took her mother to police station for the purpose of making inquiries. Thereafter, she along with her sister had gone to the house of her foofi, leaving behind first aunt at the residence. To the same effect is the testimony of DW2 Shabnam. Both these witnesses have been examined by the accused persons for submitting that accused Noorjahan was taken by police officials at 11am from her house for the purpose of making inquiries and at the time of incident, Noorjahan was not present at the spot.
Much stress has been laid by the ld. Defence counsel for submitting S.C. No. 24/09 Page 56/65 57 that prosecution version is that accused Hasina was apprehended by police officials at the instance of Nafis Ahmed from her house and Constable Sonia and Nafis Ahmed have deposed so. However, according to Inspector A.S. Negi, she was apprehended at about 11pm, when she was coming from Aksha Masjid side. Although this discrepancy has appeared in the testimony of prosecution witnesses, but at the most it is regarding the place from where this accused was apprehended and then arrested. But the fact remains that there is no dispute that accused Noorjahan was arrested on 08.10.08 itself. Moreover, place of apprehension of this accused does not go to the substratum of the case, which may affect the prosecution case adversely.
66. Further more, although these witnesses have also tried to show that their mother Hasina was not present when actual incident of stabbing had taken place, and that she was preparing break fast in her house at that time. It may be mentioned that this plea has been tried to be taken by the accused at a very late stage of proceedings and in fact record reveals that when material witnesses were examined by the prosecution, no such suggestion was given to the prosecution witnesses. As such, this plea seems to be an afterthought. Further more, her presence at the spot at the time of incident and her participation in the crime stands established from testimony of prosecution witnesses. Moreover, if the testimony of these two witnesses, who are none else, but daughter of Hasina is believed then no explanation is forthcoming as to why at the very earliest available opportunity, no such complaint was made by them to the police station. It was only subsequently that on 30.01.09, complaint was made to police and even in this complaint there is no averment regarding absence S.C. No. 24/09 Page 57/65 58 of Noorjahan at the time of incident or her presence at the house itself. In fact, this complaint is basically regarding threats given by complainant party to her or not allowing them to enter their house. As such testimony of both these witnesses does not help the accused persons, rather during the course of crossexamination, presence of witness Kalsuman was not disputed by the accused persons. DW4 Mohd. Shamim and DW5 Mohd. Hanif have been examined by the accused persons in order to show that accused Abdul Wahid and Imran were arrested by police officials on 14.10.08 from one house situated at Uttam Nagar, Delhi. However, testimony of both these witnesses that Abdul Wahid and Imran were apprehended from a house at Tilak Nagar is contrary to their own case, inasmuch as, when statement of accused Abdul Wahid was recorded u/s 313 Cr.P.C and it was put to him that he was apprehended on 15.10.08 at about 6am, near Aksha Masjid, he simply denied this fact and no plea was taken that he was not arrested on 15.10.08, but was apprehended on 14.10.10.
67. As regards submission of ld. Counsel for accused that two persons, who lifted Jamil in a TSR for taking him to GTB Hospital, has not been examined by the prosecution. It may be mentioned that the non examination of these witnesses is not fatal to the case of prosecution. Nonexamination of these witnesses does not cast any dent on the prosecution version, inasmuch as, even accused persons have admitted that Jamil was lifted by two persons of locality for taking him to GTB Hospital. Moreover, in Krishna Mochi (Supra) it was held by Hon'ble Supreme Court that nonexamination of any witness would not affect the prosecution case unless he is a material witness. Keeping in view the fact S.C. No. 24/09 Page 58/65 59 that even as per the admission of the accused persons initially the injured was lifted by two persons of the locality for taking him to hospital, their nonexamination is not of much significance.
68. In view of the discussion made above, keeping in view the direct evidence proving complicity of the accused in the crime, coupled with the circumstantial evidence, medical evidence and expert evidence, I hold that prosecution has been able to establish beyond reasonable doubt that on 8.10.2008 in front of house No.C55, Street No.4, Chaman park, Delhi, Jameel was stabbed in his abdomen and hand and injuries sustained by him on his abdomen proved fatal and he succumbed to injuries.
69. It has further been proved that when Kalsuman came forward to intervene, at that time accused Imran criminally intimidated her of her instant death in case she dares to apprehend them as such charge under section 506 IPC against accused Imran is proved.
70. Now coming to the applicability of Section 34 IPC, it is a settled principle of law that to show common intention to commit a crime it is not necessary for the prosecution to establish, as a matter of fact, that there was a premeeting of the minds and planning before the crime was committed. In the case of Surendra Chauhan vs State of Madhya Pradesh [AIR 2000 SC 1436], Hon'ble Supreme Court held that common intention can be developed on the spur of the moment. Also, under Section 34, a person must be physically present at the place of actual commission of the crime. The essence is the simultaneous consensus of the minds of persons participating in the criminal act and such consensus can be developed on the spot. It is not mandatory for the prosecution to bring direct evidence of common intention on record and this depends on S.C. No. 24/09 Page 59/65 60 the facts and circumstances of the case. The intention could develop even during the course of occurrence. In this regard reference can be made to Ramaswamy Ayhangar vs State of Tamil Nadu [(1976) 3 SCC 779] and Rajesh Govind Jagesh vs State of Maharashtra [ (1999) 8 SCC 428]. In other words, to apply Section 34, two or more accused should be present and two factors must be established i.e. common intention and participation of the accused in the crime. Section 34 moreover, involves vicarious liability and therefore, if intention is proved but no overt act is committed, the section can still be invoked.
71. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of section 34, be it prearranged or on the spur of the moment: but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each S.C. No. 24/09 Page 60/65 61 of them has done it individually by himself. As observed in Ashok Kumar vs. State of Punjab, AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
72. The section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in section 34, when an accused is convicted under section 302 read with section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy vs. State of A.P., 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some overt act on the part of the accused.
73. In view of the legal proposition, enunciated above, in the instant case common intention of all the accused to put an end to the life of S.C. No. 24/09 Page 61/65 62 deceased is amply clear from the fact that accused Abdul Wahid and Haseena caught hold of Jameel while Imran Khan stabbed him in his abdomen and when Kalsuman came forward to intervene, she was also threatened with dire consequences.
74. The aforesaid circumstances lead to the irresistible conclusion that murder of Jameel was committed by none else other than the accused persons. The circumstances, discussed above, are wholly incompatible with the innocence of accused and unerringly point out towards them as the persons responsible for the murder of Jameel. Under the circumstances, in the backdrop of the scenario as discussed above, I hold that prosecution has been able to establish beyond reasonable doubt that on 8.10.2008, at about 8.00 a.m. In front of house No.C55, Street No.4 Chaman Park, Delhi all the accused shared common intention and with intent to kill Jameel accused Imran Khan stabbed him in his abdomen with the active assistance of Abdul Wahid and Noor Jahan resulting in his death and when Kalsuman tried to intervene, she was threatened by Imran with dire consequences. As such all the three accused persons are held guilty for the offence under section 302 read with section 34 IPC and convicted thereunder. Accused Imran Khan is also held guilty of offence under section 506 IPC.
Announced in open court (Sunita Gupta)
nd
on this 22 Day of September, 2010 District JudgeVII/NEcumASJ
Karkardooma Courts, Delhi.
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63
IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 24/09
Unique Case ID No. 02402R0000462009 State vs.
1. Abdul Waheed S/o Mazid, R/o C56, Gali No.4, Chaman Park, Gokalpuri, Delhi.
2. Imran Khan S/o Abdul Waheed, R/o C56, Gali No.4, Chaman Park, Gokalpuri, Delhi.
3. Noor Jahan @ Haseena W/o Abdul Waheed, R/o C56, Gali No.4, Chaman Park, Gokalpuri, Delhi.FIR No. 280/08
PS Gokul Puri U/s 302/506/34 IPC.
Date of Institution : 03.01.2009 Date of reserving the Judgement : 22.09.2010 Date of pronouncement : 29.09.2010 J U D G E M E N T : Leniency in punishment has been claimed by Sh. I.A. Hashmi, Advocate, for the convict persons, pleading that convict persons are related to each other as father, mother and son. Convict Abdul Wahid and Noor Jahan @ Hasina have five children, out of whom two daughters have been married. There are two minor daughters aged about 3 and 7 years. One son, who is aged about 13 years, does not live in the house being scared. There is none to look after the minor daughters of convict persons. Convict persons are not involved in any other case. In case they are awarded maxima punishment provided in the statute, then other family members dependent on the convict persons would starve. ld. Counsel for convict persons pleads that it is not a fit case where S.C. No. 24/09 Page 63/65 64 capital punishment would meet ends of justice.
2. On the other hand, ld. Prosecutor submits that in case convict persons are not punished with maxima punishment provided in the statute, then convict persons deserves to be sentenced for life.
3. On 08.10.08 at about 8am, Yamin and Rashid, who reside in the neighbourhood of Jamil, reached at her house. On that day, a minor altercation took place between Jamil and Abdul Wahid. They told Jamil that they would get that matter settled. On that pretext, they took Jamil along with them and went in the street. Jamil was sleeping, when Yamin and Rashid Hafiz had come to his house to take him along with them. While coming out, Jamil put on his clothes. When Jamil was taken outside in the street, Kalsuman, his mother, had also accompanied him. In the street, Wahid had questioned Jamil as to why he had affixed a nail in the common wall. Jamil had answered that proposition in negative. At that juncture, they reasoned with each other in bold words. In the meantime, convict Hasina and Imran came out of their house. Imran was having a knife in his hands. Imran declared that he will see Jamil that day. Convict Abdul Wahid overpowered Jamil from his right portion of his body, while Hasina overpowered him from the left side and Imran wielded knife blow in the abdomen of Jamil. On account of the stab injury, Jamil bleeded profusely. On getting an opportunity, accused persons ran away from there. Police van reached there and removed Jamil to GTB Hospital. In the hospital, Jamil succumbed to his injuries. Postmortem on his body was got conducted. After postmortem examination, doctor opined that cause of death was haemorrhagic shock due to antemortem injuries to intestine and its blood vessels produced by single edged sharp S.C. No. 24/09 Page 64/65 65 cutting/stabbing weapon. Injury No. 2 was sufficient to cause death in ordinary course of nature.
4. From the facts and circumstances detailed above, it is crystal clear that offence committed by the convict persons was of alarming complexion. However, keeping in view the mitigating factors surrounding the convict persons, I do not deem it a fit case where capital punishment would meet ends of justice. Consequently, all the three convict persons are hereby sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/ each for offence punishable under section 302 read with section 34 IPC. In default of payment of fine, they would further undergo RI for one year each. Convict Imran is also further sentenced to undergo RI for three years and to pay a fine of Rs.3,000/ for offence punishable under section 506 IPC. In default of payment of fine, he would further undergo RI for six months. Fine, if recovered, be paid as token of compensation to the family members of deceased.
5. Substantive sentences awarded to convict Imran shall run concurrently.
6. Convict persons shall get the benefit of period already undergone in detention during investigation and trial of the case. A copy of judgement and order on sentence be supplied to them free of cost.
Announced in the Open Court (Sunita Gupta)
th
On this 29 day of September, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
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