Delhi District Court
State vs 1. Izhar Ahmed @ Bhura on 30 April, 2021
In The Court Of
Dr. Satinder Kumar Gautam: Additional Sessions Judge-03:
East District: Karkardooma Courts: Delhi.
Sessions Case No. : 611 of 2017
State Versus 1. Izhar Ahmed @ Bhura
S/o Mohd. Anwar Ahmed
R/o Near Bismillah Hotel,
Prem Nagar, U.P.
2. Sonu Verma
S/o Sh. Harpal Verma
R/o Gali No.6, Shanti Nagar,
Indirapuri, Loni, Ghaziabad, U.P.
3. Dinesh Kaushik @ Deva
S/o Late Ved Prakash
R/o Gali No.6, Shanti Nagar,
Indirapuri, Loni, Ghaziabad, U.P.
FIR No. : 134/17
Under Section : 302/392/397/411/34 IPC
Police Station : Pandav Nagar
Chargesheet Filed On : 02.08.2017
Chargesheet received by this Court on : 25.09.2017
Undersigned presided over this Court : 06.11.2017
Judgment Reserved On : 22.04.2021
Judgment Announced On : 30.04.2021
SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 1 of 49
JUDGMENT
BRIEF FACTS
1. The case of the prosecution, in brief, is that on 21.04.2017 on receipt of DD No. 4-A regarding an accident at service lane of Noida side, under the flyover one person might be lying dead, SI Mahesh Singh along with ASI Mukesh reached at the spot i.e. NOIDA turn, Akshardham flyover where they found one dead person in the middle of the road whose name was later on revealed as Hafiz S/o Mohd. Haneef. At the spot, they met with ASI Ravinder, HC Krishan and complainant Nafis. Crime team was called at the spot who inspected the spot and snapped the photographs. Deadbody of Hafiz was sent to LBS hospital in ERV through HC Krishan and MLC of deceased was obtained on which doctor mentioned "A/H/O ? RTA Brought Dead". Deadbody was shifted to Mortuary of LBS Hospital and statement of complainant Nafees was recorded who stated that in the night hours, he along with his brother Hafiz boarded in a private bus from Shahjahanpur and reached at Shastri Park from where they boarded an auto for a sum of Rs.200/- for going to Faridabad. In said auto, one boy was sitting with the driver of said auto and both i.e. complainant and his brother were sitting on its rear seat. When the auto reached at some SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 2 of 49 distance, one more boy also sat in said auto. At about 3 a.m. when the said auto reached at Noida mod near Akshardham flyover, auto driver as well as both boys asked them to handover all valuables which they have. When Hafiz objected to their said act, the assailants threw away him out of the auto and after covering some distance, he was also deboarded from said auto and came at the spot where he saw that his brother Hafiz was lying on the road in a pool of blood. In said auto, their two bags containing some clothes, one Intex mobile phone having SIM No. 9717764172 and some documents were left.
2. On the basis of statement of complainant, present case under Sec. 304 IPC was registered. Site plan was prepared at the pointing out of complainant. On 04.05.2017, on receipt of secret information, accused Izhar Ahmed @ Bhura was arrested and one weapon i.e. knife was recovered from his possession. At the pointing out of accused Izhar Ahmed, accused Sonu Verma was also arrested from Shanti Nagar, Loni Ghaziabad near Gopal Nursing Home and they got recovered one looted mobile phone from his house and the auto bearing registration no. DL- 1RQ-6500 used in the crime and at his pointing out, they reached at GTB Hospital where accused Dinesh Kaushik was found under treatment and on 12.05.2017, said accused was also arrested. Weapon of offence i.e. SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 3 of 49 knife was sent to FSL for forensic examination/blood analysis. Postmortem report was obtained.
3. On the basis of supplementary statement of complainant Mohd. Nafees, Sections 392/397/411/34 IPC were added. On conclusion of the investigation, chargesheet was filed against abovesaid accused persons for their trial before the court of ld. MM for the offences punishable under Sections 302/392/397/411/34 IPC.
4. After compliance of the provisions of Section 207 CrPC by the court of ld. MM, case was committed to the Court of Sessions as Sec. 302/34 IPC & 397 IPC are exclusively triable by it.
5. Vide order dated 08.12.2017, charge under Section 392/397/34 IPC and 302/34 IPC was framed against all these accused persons. Vide said order, separate charge under Sec. 411 IPC was also framed against accused persons Izhar Ahmed and Sonu Verma. To the said charges, all accused persons pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
6. To prove the prosecution case, prosecution took help of 22 witnesses and examined witnesses who are as under:
PW-1 Harpal Singh stated that in the year 2015, he had purchased TSR bearing no. DL-1RQ-6500 from one dealer Pramod Kumar SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 4 of 49 and used the same till 30.12.2016. On 31.12.2016, he had returned the said TSR to said dealer along with all original documents of TSR. PW-1 has proved photocopy of Agreement dated 03.08.2017 Ex.PW1/A (colly.), original insurance certificate Ex.PW1/B, RC and permit vide Ex.PW1/C & PW1/D. PW-2 Mohd. Sabir is the maternal uncle of deceased Mohd.
Hafiz and identified deadbody vide identification memo Ex.PW2/A. PW-3 Mohd. Nafees is the brother of deceased as well as eye witness of the present incident who narrated the entire incident in detail and correctly identified all accused persons present in the court. He proved his statement Ex.PW3/A, deadbody identification memo Ex.PW3/B as well as TIP proceedings of accused Sonu Verma and Izhar Ahmed vide Ex.PW3/C and PW3/D and TIP proceedings of case property i.e. his clothes vide Ex.PW3/E. PW-1 also correctly identified the butcher knife Ex.P-3 as used by accused Izhar Ahmed on the date of incident in the present crime.
PW-4 Pramod stated that he has taken one TSR bearing no.
DL-1RQ-6500 on rent from its registered owner Prem Prakash on 10.04.2017 for monthly rent of Rs.9,000/-. He stated that he used to ply said TSR in day hours and in night hours, he had given said TSR to SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 5 of 49 accused Dinesh @ Deva to ply the same w.e.f. 25.04.2017 on hire basis of Rs.250/- per day. He stated that on 22.04.2017 at about 6.30/7 a.m., when he reached at the house of accused Dinesh @ Deva to take the said TSR, the TSR was seen stationed in front of house of accused Dinesh @ Deva and he brought the TSR and on the same day in night hours, police officials of police station Pandav Nagar came at his home and inquired from him about the said TSR and thereafter, said TSR with keys was seized by police vide seizure memo Ex.PW4/A. This witness was cross-
examined by ld. Addl. P.P. for the State.
PW-5 Prem Prakash is the registered owner of TSR bearing no. DL-1RQ-6500 who had given the aforesaid TSR on rent to ply the same to Pramod on 10.02.2017. Later on he came to know that Pramod had given his TSR on rent to Dinesh @ Deva and also knew through Pramod that the said TSR was seized by police as it was used in robbery and murder case.
PW-6 Sh. Tasnimuddin Siddiqui mechanically inspected the TSR bearing no. DL-1RQ-6500 and proved his detailed report vide Ex.PW6/A. PW-7 Shahid is the owner of Intex Mobile phone which he had purchased from M/s. Nagar Communications, D-21, Tajpur Road, SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 6 of 49 Badarpur, Delhi for his son Jartab for a sum of Rs.11,700/- vide invoice/bill Ex.PW7/A depicting IMEI number on it. After sometime, said mobile phone was not working so he again went to M/s. Nagar Communication with said mobile phone where another mobile phone of Intex with new IMEI number was provided to him. He proved the photocopy of bill of said mobile phone vide Ex.PW7/A. PW-8 SI Harish Chander Pathak proved Certificate u/s 65B of Indian Evidence Act vide Ex.PW8/A and PW8/B. PW-9 ASI Dinesh Tyagi; PW-12 Ct. Satty Singh and PW Ct. Vikrant are the members of raiding party constituted by SI Mahesh on 03.05.2017 and thereafter, they along with secret informer reached at Prem Nagar Colony, Loni, Ghaziabad, U.P. on 04.05.2017 and at the pointing out of secret informer, police team apprehended accused Izhar Ahmed @ Bhura and arrested him in present case. PW-9 ASI Dinesh Tyagi also proved the arrest memo and personal search memo of accused Izhar Ahmed @ Bhura vide Ex.PW9/A and PW9/B, sketch and seizure memo of knife recovered from accused Izhar Ahmed vide Ex.PW9/C and PW9/D, disclosure statement of accused Izhar Ahmed vide Ex.PW9/E, arrest memo, personal search memo and disclosure statement of accused Sonu Verma vide Ex.PW9/F, PW9/G and PW9/H, seizure memo of mobile SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 7 of 49 phone vide Ex.PW9/I, pointing out memo Ex.PW9/J and photocopy of verification report vide memo Ex.PW9/K. PW-10 Dr. S. Lal conducted postmortem on deceased and proved its report vide Ex.PW10/A (colly. 5 pages).
PW-11 Dr. Manoj Teotia proved the MLC no. 5493 of deceased Mohd. Hafiz vide Ex.PW11/A. PW-13 HC Krishan Pal stated that on receipt of DD No.3-A by ASI Ravindra Kumar (PW-16) they reached at the spot where one person was lying in dead condition in the middle of the road whose name was later on revealed as Hafiz. PW-13 along with ERV staff had taken deadbody of said deceased to LBS Hospital where he was declared as 'brought dead' by the doctor.
PW-14 ASI Mukesh is a wintess to the arrest of accused Dinesh and proved arrest memo and personal search memo of said accused Dinesh vide Ex.PW14/A and PW14/B. PW-15 Insp. Ajay Kumar, Investigating Officer proved TIP proceedings of accused Izhar Ahmed and Sonu Verma in which both accused persons were correctly identified by complainant Nafees however, accused Dinesh @ Deva refused to participate in the TIP proceedings. PW-15 also proved the disclosure statement of accused Dinesh @ Deva SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 8 of 49 vide Ex.PW15/A. He is also the witness of recovery of clothes of accused Izhar Ahmed during police custody remand and proved its seizure memo Ex.PW15/B, seizure memo of red colour mobile phone box make Intex Aqua along with its bill got recovered by accused Dinesh @ Deva vide Ex.PW15/C. He also got the vehicle bearing no. TSR no. DL-1RQ-6500 mechanically inspected and obtained its report. PW-15 is also the witness of TIP of recovered clothes of deceased through complainant from accused Irshad Ahmed from Yamuna Khadar.
PW-17 SI Mahesh proved the endorsement on statement of complainant Nafees vide Ex.PW17/A and site plan Ex.PW17/B and seizure memo of two sealed parcels handedover to him by the doctor concerned vide Ex.PW17/C. He is also the witness of arrest, personal search and disclosure statement of accused Izhar Ahmed and Sonu Verma as well as recoveries effected from them.
PW-18 Sh. Jasbir Rana is the owner of tenanted house of accused Sonu Verma. This witness was declared hostile and cross- examined by ld. Addl. P.P. PW-19 ASI Thomas KA proved the disclosure statement of accused Dinesh @ Deva vide Ex.PW15/A. SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 9 of 49 PW-20 Insp. D.K Tejwan is the part Investigating Officer of present case and got prepared scaled site plan.
PW-21 Ms. Monika Chakravarty, SSA (Biology), FSL, Rohini proved the FSL report Ex.PW21/A. PW-22 SI Lalit Kumar is the witness of recovery of red colour Intex mobile phone box along with its bill from the possession of accused Dinesh @ Deva.
7. During prosecution evidence, ld. Addl. P.P. dropped prosecution witnesses PWs Ct. Vikrant and HC Naresh Kumar.
8. In joint statement of all accused persons recorded under Section 294 CrPC, they admitted the following documents :
1) TIP proceedings of accused Dinesh Kaushik @ Deva conducted by Sh. Dheeraj Mittal, ld. M.M. as Ex.C1;
2) TIP proceedings of accused Sonu Verma conducted by Sh.
Priyank Nayak, ld. M.M. as Ex.C2, (Ex.PW3/C and PW3/D);
3) TIP proceedings of robbed clothes recovered from accused Izhar Ahmed conducted by Ms. Vidhi Gupta, ld. M.M. as Ex.C3 (Ex.PW3/E);
4) Photographs of the spot taken by HC Ashok already Ex.P- 6A;
5) Crime Team Report prepared by SI Vishesh Khokhar as Ex.C4;
SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 10 of 49
6) FIR Ex.C5;
7) Scaled site plan of the place of incident Ex.C6. PLEA OF ACCUSED PERSONS UNDER SECTION 313 CrPC
9. After conclusion of the prosecution evidence, statements of all accused persons under Section 313 CrPC were recorded in which all of them denied all the incriminating evidence put against them. They pleaded their innocence and further pleaded their false implication. Accused Sonu Verma and Dinesh further pleaded that even they did not know one other prior to the date of incident. None of them opted to lead defence evidence nor claimed over case property.
ARGUMENTS BY THE STATE/PROSECUTION
10. Ld. Addl. P.P. for the State argued that the prosecution has proved its case beyond all reasonable doubt by examining almost all the prosecution witnesses as cited in the list of witnesses. The same is evident through their testimony. The deposition made by the public witnesses, police officials and expert witnesses complete the chain of evidence. All the accused persons were having common intention to commit the crime and they are responsible for the crime committed by them. However, on record no case to this principle had led principle of joint liability in the doing of a SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 11 of 49 criminal act as such all the accused persons are liable jointly and severely for the charges framed against them. PW-3 Mohd. Nafees who has asserted to the death of his brother Hafiz and eye witness of the murder of deceased Hafiz committed by the accused persons in furtherance of their common intention and eye witnesses of the incident of crime stating that deceased Hafiz was threw out of the auto by all accused persons due to which he came under the rear wheels of said auto and succumbed to his injuries. It is further testified by PW-3 Mohd. Nafees that he and deceased Hafiz were asked to handover all the articles to the accused persons but Hafiz refused and thereafter, all the accused persons with their common intention to kill, forcibly pushed him out of the auto and he came under the wheels of said auto and thereafter, they also dropped PW-3 Nafees after some distance and fled away with their auto. It is also testified that all the accused persons actively participated in the commission of the said offence and are equally liable for committing the murder of deceased Hafiz. The doctor who conducted the postmortem on the body of the deceased has given the opinion regarding cause of death of deceased in the postmortem report. PW-10 Dr. S. Lal proved the subsequent opinion dated 01.12.2017 on the basis of recovered knife and stated that the said injury can be possible by said recovered weapon. As such, PW-10 Dr. S. Lal SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 12 of 49 opined that injuries no.1 to 6 and injuries no. 8 to 10 caused by blunt force impact and injury no.7 caused by sharp edged weapon. The injury no.7 in postmortem report as "incised wound spindle shape of size 4.0 x 1.5 cm x muscle deep over left dorsum of forearm placed 7.0 cm above the wrist joint" and on 01.12.2017, Dr. S. Lal opined injury no. 7 could be possible to cause by this weapon produced. The clothes of deceased Hafiz were also identified by his brother/PW-3 Nafees. Ld. Addl. P.P., therefore, prayed for conviction to all the accused persons for the charge framed against them for the offences punishable under Sec. 302/392/397/34 IPC as well as separate charges for the offence punishable under Sec. 411 IPC against accused Izhar Ahmed and Sonu Verma further stating that there is no reason for false implication of any of these accused persons as no ill-will, grudge or enmity has either been alleged or proved and even accused persons failed to furnish any reason for their false implication at the hands of the victim or of any police official. One of the contentions of the ld. Addl. PP is that mere simple denial in the crime has no value in the eyes of law and even accused persons failed to furnish or produce any record about their presence else where than the spot on the date, time and place of incident and this all goes against them and thus, prayed for conviction to all these accused persons for the offences for which they have been SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 13 of 49 charged with.
ARGUMENTS OF DEFENCE
11. Ld. counsels for the accused persons have the common argument that the case of the prosecution is full of doubts as testimonies of the prosecution witnesses are full of contradictions and improvements. They also contended that non-joining of independent public witnesses from the spot is also fatal to the prosecution case. It is further argued that accused persons have been falsely implicated in this case and thus prayed for acquittal of the accused persons.
CONSIDERATION OF SUBMISSIONS OF PARTIES:
12. Having carefully gone through the entire material on record and have considered the rival submissions of the parties in the light of the law laid down on the issue in question.
13. The court has to analysis the prosecution evidence to the effect whether prosecution has able to prove its case for the offence, for which accused persons have been charged with.
14. Admittedly, the star and key witness of the present prosecution case is PW-3 Mohd. Nafees, the eye witness/brother of deceased Hafiz. He stated that on the date and time of the incident, all accused persons SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 14 of 49 committed the murder of his brother Hafiz by throwing him out of the said auto after committing robbery with him and with his deceased brother. On 28.02.2018, during his examination-in-chief, PW-3 Mohd. Nafees was under trauma and bound down as per court observation and his further examination-in-chief was recorded on 01.03.2019. On both these dates, PW-3 Mohd. Nafees in his statement before the court correctly identified all accused persons. To facilitate the matter, testimony of said witness recorded on 01.03.2019 is hereby reproduced as under:
"... After withdrawing the money of Rs.1,000/- from ATM by my brother Mohd. Hafiz, I alongwith my brother sat in middle at the back seat of the auto rickshaw whereas long heighted boy sat on my right side whereas short heighted boy about 5 feet sat on left side of my brother.
At this stage, witness has pointed out towards long heighted boy standing in the dock, now his name is disclosed as Izhar Ahmed @ Bhura whereas he has also pointed out towards the short heighted boy standing in the dock, now his name is disclosed as Sonu. The boy who is standing in the middle was the driver of the auto rickshaw on the date of incident, now his name is disclosed as Dinesh Kaushik @ Deva.
The accused Izhar Ahmed had taken out knife and put it on my neck and asked us to handover our belongings. We handedover all our belongings to them. We requested them to deboard us from the auto rickshaw but they did not but they took us to some distance. When we were shouting for help, accused Sonu stated that SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 15 of 49 my brother was shouting too high and directed to throw him out of the auto rickshaw. Both the accused Izhar Ahmed and Sonu pushed my brother out of the auto rickshaw but my brother had caught hold of the iron rod fitted in the rickshaw and he was trying to get remain into the auto rickshaw again. Thereafter, accused Izhar Ahmed gave a knife blow on the hand of my brother Mohd. Hafiz. At that time, my brother was hanging on the left side of the auto rickshaw. On this driver of the auto rickshaw Dinesh @ Deva gave a leg blow on the stomach of my brother due to which, my brother fell down and came under the rear wheel of the auto rickshaw. At that time, we were near Akshardham temple....".
15. Perusal of the above, it is reveal that victim narrated the incident and identified the accused persons as responsible for the crime committed upon him and his deceased brother Hafiz. Now court has to examine evidentiary value of the said witness.
CONTENTION QUA DISREGARD TO TESTIMONY OF PW-3 Mohd. Nafees:
16. As regard the contention of ld. defence counsel that testimony of PW-3 Mohd. Nafees, the complainant/victim is full of improvements and contradictions regarding time, place, and manner of incident, ld. defence counsel failed to point out any such major improvement and contradiction which may go to the root of the case. Besides the above, it is also well SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 16 of 49 settled law that the discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The Court has to consider the entire evidence as has been adduced before it and then come to a conclusion. The proof beyond reasonable doubt, only means that the Court should see that all the material ingredients of the offence have been proved by cogent evidence. Minor discrepancies in the statements of witnesses are of no help to the accused persons.
17. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 17 of 49 credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited.
18. In case reported as State of Rajasthan Vs. Smt. Kalki, 1981 SCC(2) 752, Hon'ble Apex Court observed that :
"In the depositions of witnesses there are always some normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
19. In another authority reported as Narayan Chetanram Chaudhary & Anr. Vs. State of Maharashtra, (Crl. A. 25-26/2000) the Hon'ble Apex Court held as under :
"Only such omissions which amount to SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 18 of 49 contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements if truthful witnesses as memory sometimes plays false and sense of observations differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW-2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness.
xxxx There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence."
SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 19 of 49
20. It is settled law that there is bound to be some discrepancies between the versions narrated by different witnesses regarding the specific details. However, if the discrepancies are minor and do not materially affect the case of the prosecution; the same cannot render the entire evidence unbelievable. The Supreme Court in Yogesh Singh Vs. Mahabeer Singh, AIR 2016 SC 5160 has held as under :-
"It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version if an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every commission SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 20 of 49 cannot take place of a material commission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case ad should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission."
21. It is admitted fact that parties were not known to each other prior to the date of incident. There is no motive for false implication of any of the accused persons at the hands of the complainant/victim. Admittedly, no ill-will, grudge or enmity has either been alleged or proved against any of the prosecution witnesses including the complainant/victim/eye witness. Rather, the complainant/victim would be the most interested person to see the actual culprit(s) behind the bars.
22. In case reported as Deepak & Ors. Vs. State, 2015 VII AD (Delhi) 140, Hon'ble Court has observed as :
SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 21 of 49 "testimony of injured witness reveals that material facts stated by him in examination-in- chief have remained unchallenged and uncontroverted in cross-examination - no ulterior motive assigned to victim for falsely implicating them for serious injuries sustained by him in incident when there was no previous animosity - victim not expected let real offenders go scot free and implicate his friend - xxxx- inconsistent defence led by appellant, to set up plea of alibi, - FIR lodged without delay least possibility of victim to concoct false story in such short period - no bar to base conviction on sole testimony of injured if it inspires confidence".
23. Apart from that, it is also matter of record that victim identified these accused persons during judicial test identification parade proceedings also and even accused persons during their statement under Sec. 294 CrPC, recorded on 06.04.2018, admitted the proceedings of test identification parade qua two accused and accused Dinesh @ Deva vide report Ex.C1, C2 and C3 conducted before ld. Metropolitan Magistrates.
24. With these observations, as discussed above, nothing contrary has come on record which may even remotely suggest that testimony of the complainant/victim suffers from any material contradiction and/or improvement. Even there is no cogent defence evidence led by the accused persons except denial the alleged offence which contradict the material placed on record and even during testimonies of the prsecution SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 22 of 49 witnesses.
INTERESTED AND/OR RELATIVE WITNESS:
25. Further, this Court is in agreement with the submission of the ld. Addl. P.P. that the testimony of a witness cannot be discarded on the sole ground that he was related to the deceased. Every related witness is not necessarily an interested witness and the Court has to carefully examine the testimonies of related witnesses to determine if they are independent as discussed in Ganapathi & Anr. Vs. State of Tamil Nadu (2018) 5 SCC 549. While discussing how the testimony of a related witness has to be examined, in present case, the evidence of ocular and trustworthy witness, PW-3 Mohd. Nafees, brother of the deceased, clearly exhibited the way in which the accused persons took away the life of deceased Hafiz. His evidence narrated the guilt of all accused persons beyond reasonable doubt and corroborates with that of the medical evidence. Dr. S. Lal (PW-10) who conducted the postmortem on the body of deceased Hafiz, had opined that injuries no.1 to 6 and injuries no. 8 to 10 produce by blunt force impact and injury no.7 caused with sharp edged weapon.
26. In several cases, only the family members could be present at the time of incident, then the case of the prosecution will be based only on SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 23 of 49 their evidence. When their evidence is the only evidence available, the courts should be cautious and meticulously evaluate the evidence in the process of trial and we are not able to appreciate the contention on behalf of the accused persons that the non-examination of independent witnesses and conviction based on the evidence of family members is fatal to the case of the prosecution. Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent, trustworthy and credible. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. POST-MORTEM REPORT:
27. The postmortem report - PW10/A - and the deposition of prosecution witness Dr. S. Lal (PW-10) are corroborated by the injury on the hand of deceased from the recovered knife from accused Izhar Ahmed @ Bhura. Further, the knife Ex.P-3 recovered from the possession of accused Izhar Ahmed @ Bhura was sent for FSL examination. SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 24 of 49 NON EXAMINATION OF PUBLIC WITNESS:
28. Contention of ld. defence that non-citation and non- examination of any other public witness present at the spot is of no value as it is not the number of witnesses which is material rather it is the quality of the evidence which counts. For this, reference is taken with the observations of judgment reported as Kishan Chand Vs State of Haryana, JT 2013 (1) SC 222.
29. It is well settled law that prosecution has to prove its case beyond all reasonable doubts. Accused persons have been charged for the offences punishable under Sec. 392/397/34 IPC and Section 302/34 IPC. Apart from it that accused Izhar Ahmed @ Bhura and Sonu Verma have also been charged for the offence punishable under Sec. 411 IPC individually.
30. First of all, court shall deal with the offence punishable under Section 392/397/34 IPC.
31. Qua offence punishable under Sec. 397 IPC, it is clear that while PW-3 Mohd. Nafees appeared before the court, during his examination-in-chief he correctly identify the Auto (Ex.P-1) in which the offence of robbery took place and in which accused Izhar Ahmed gave blow of knife (Ex.P-3) on the hand of deceased Hafiz when he hold the SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 25 of 49 supporter/handle of the said auto in order to rescue himself while being pushed by the accused persons out of the said auto as such, suffered fatal injuries. Nothing has come on record for false implication of any of these accused persons at the hands of the complainant, particularly, when no ill- will,enmity or grudge has either been alleged or proved and moreover, accused persons failed to furnish any proof either by document or orally of their presence at any other place and not at the spot on the day, time and place of incident. Mere simple denial of the incriminating evidence has no value in the eyes of law.
32. As such, this witness in clear and unequivocal terms stated that these accused persons are responsible for the crime of robbery committed upon and during said commission of offence, his brother Hafiz sustained fatal injuries. Consequently, this Court is of the view that the aforesaid testimony of eye witnesses - Mohd. Nafees has a ring of truth, is clear, cogent, consistent, credible, trustworthy and corroborated with the other chain of evidence on record and documents thereto in support of it.
33. MLC Ex.PW11/A of deceased Hafiz is proved to the aspect that on the date of incident at about 5 a.m., he was brought to hospital by HC Krishan Pal. PW-11 Dr. Manoj Teotia proved the said MLC and postmortem report regarding injury no.7 and subsequent opinion given by SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 26 of 49 PW-10 Dr. S. Lal while conducting postmortem and proving subsequent opinion. These witnesses were not cross examined on behalf of accused persons at any point of time to deny the contents of examination-in-chief and documents prepared thereof.
COMMON INTENTION UNDER SECTION 34 IPC
34. Section 34 IPC says that every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is terms as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although his individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between 'common intention' on the one hand and 'mens rea' as understood in criminal jurisprudence on the other.
35. Ordinarily, every man is responsible for the act criminally done by him. No man can be held responsible for an independent act and wrong committed by another. The principle of criminal liability is that the person who commits an offence is responsible for that and he can only be held SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 27 of 49 guilty. However, Section 34 of the IPC makes an exception to this principle. It lays sown a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention, animating from the accused leading to the doing of a criminal act in furtherance of such intention. It deals with the doing of a criminal act in furtherance of common intention. In such situation, each person is liable for the result that as if he had done that act himself. The soul of Sec. 34 IPC is the joint liability in doing a criminal act. Section 34 IPC is part of the original Code of 1860 as drafted by Lord Macaulay. The original section as it stood as "When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone." However, on account of certain observations made by Sir Barnes Peacock C.J. in Queen Vs. Gora Chand Gope & Ors., (1865) 5 South WR (Crl.) 45 it was necessary to bring about a change in the workings of the section. Accordingly, in the year 1870 an amendment was brought which introduced the following words after "when a criminal act is done by several persons...." "..in furtherance of common intention ...". After this change, the Section has not been changed or amended ever.
36. Section 392 IPC defines : Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 28 of 49 years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
37. Section 397 IPC defines : Robbery, or dacoity, with attempt to cause death or grievous hurt.- If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offeder shall be punished shall not be less than seven years.
38. PW-10 Dr. S. Lal proved the post-mortem report with observations that injury no. 1 to 6 caused to the deceased by forcefully pushing the deceased from the running auto and injury no. 7 caused with sharp edged weapon has been proved by statement of PW-11 Dr. Manoj Teotia. PW-3and PW-11 stated the manner of incident and about involvement of the accused persons for the commission of offence.
39. With the above discussion, it is revealed that the complainant in clear terms stated that he and his deceased brother Hafiz were robbed at the hands of the accused persons and even sustained fatal injuries by Hafiz during the commission of said offence with the sharp edged weapon. SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 29 of 49
40. Hence, with these observations and discussion inconsonance with the judgments, the court has come to the conclusion that the prosecution has proved its beyond all reasonable case against accused Izhar Ahmed @ Bhura for the offence punishable under Section 397 IPC and as such, accused Izhar Ahmed @ Bhura is held guilty and convicted for the offence punishable under Sec. 397 IPC and all accused persons namely Izhar Ahmed @ Bhura, Sonu Verma and Dinesh Kaushik @ Deva are held guilty for the offence punishable under Sec. 392/34 IPC. FOR THE OFFENCE UNDER SEC. 411 IPC:
41. Now the court has to see the evidence brought on record for the offence punishable under Sec. 411 IPC for which accused Izhar Ahmed and Sonu Verma have been charged with.
42. Section 411 IPC is reproduced here to facilitate the matter which says as - "Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with xxx"
43. To prove the said offence, prosecution took help of PW-9 ASI Dinesh Tyagi and PW-12 Ct. Satty Singh who categorically stated that clothes Mark X (belonging to deceased) were got recovered from the SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 30 of 49 possession of accused Izhar Ahmed @ Bhura and mobile phone make Intex of black & white colour vide Ex.P-4 (belonging to deceased) was got recovered by accused Sonu Verma from his house in their presence and during cross-examination there is no rebuttal to that effect in form of any suggestion.
44. As clear from the record, none of these accused claimed over the said properties. Both these witnesses in clear and unequivocal terms stated that clothes as well as mobile phone make Intex which belonged to deceased Hafiz were rgot ecovered and seized in their presence. PW-3 Mohd. Nafees correctly identified the clothes and mobile phone of his deceased brother in the court as well in TIP porceedings.
45. All accused persons in joint statement under Section 294 CrPC, admitted the documents i.e. TIP proceedings of accused Dinesh Kaushik @ Deva Ex.C1; TIP proceedings of accused Sonu Verma Ex.C2; TIP proceedings of robbed clothes and mobile phone recovered from accused Izhar Ahmed Ex.C3 and Sonu Verma as well as other documents i.e. photographs of the spot Ex.P-6A; Crime Team Report Ex.C4; FIR Ex.C5 and scaled site plan of the place of incident Ex.C6. SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 31 of 49
46. In Ronald Larks Goontha Vs. State of Rajasthan [1988 (2) Crimes 737], Hon'ble High Court of Rajasthan held as follows:
"that police officers are citizens and the public servants. Generally, it is expected that they perform their duties faithfully and sincerely. A presumption under section 114 of the Evidence Act can be drawn that they perform their duties in the ordinary course of business faithfully and sincerely. Their evidence can not be discarded only on the ground that they are police officers."
47. In judgment reported as Gurcharan Singh @ Channi & Another Vs. State (1993 (2) RCR (Criminal) 696, the Hon'ble High Court of Delhi after taking note of judgment of Hon'ble High Court of Rajasthan in Ronald Larks Goontha's case (supra) held as follows :
"There is no dispute with the said proposition of law that the statements of the police witnesses are entitled to the same weight and the same consideration which is attached to the statement of a member of the public. However the impugned statement must inspire confidence to be relied upon in a particular case."
48. Qua contention of ld. counsel regarding non joining of any independent witness, it is well settled that the police officials are competent witnesses and conviction against the accused can be based on their sole testimony but an onerous duty has been cast upon the court to SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 32 of 49 scutrtinise their statements very closely in order to form an opinion whether they are reliable and trustworthy. In judgment reported as Govt of NCT of Delhi Vs Sunil (2001) 1 SCC , 652 it is held that:
"It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police record are untrustworthy. As a preposition of law the presumption should be other way around. That officials acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain articles was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross examination of witnesses or through any other materials to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
49. Apart from that, in another case reported as Union of India Vs. Victor Nnamdi Okpo (crl. Appeal No. 617/2004 decided on SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 33 of 49 16.09.2010 by DHC), Hon'ble Court observed as - "It is a common knowledge that generally public is averse to become a witness in a criminal case because of the attitude of the Courts in summoning the witnesses time and again and sending them back on the ground that either the counsel for the accused was not available or accused was not there. While departmental witnesses get leave from their office and also get necessary support from the offence regarding TA,DA , the public witnesses are treated in a very clumsy manner in the courts and they keep standing from morning till evening and then they are told that defence counsel is not available. That is the reason that public persons are scared to become a witness in criminal case and it is hard to find public witnesses these days. The case of the prosecution cannot be rejected on the ground of non examination of public witness or on account of non-joining of public witness. Neither the prosecution version of incident can be disbelieved only on the ground of non-joining of public witness or non examination of public witness for valid reasons."
50. In view of the above, the contention of the ld. defence counsel qua non joining of independent witness has no adversely affect the present case and as such, this court is of the view that prosecution has been able to prove its case beyond all reasonable doubts that it was SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 34 of 49 accused Sonu Ver4ma who got recovered the mobile phone belonging to deceased Hafiz from his house and accused Izhar Ahmed @ Bhura the clothes of the PW-3 and deceased Hafiz de, which was correctly identified by complainant/PW-3 Mohd. Nafees, eye witness of the present case and there is no rebuttal to this effect. Therefore, accused persons - Izhar Ahmed and Sonu Verma - both - are held guilty and convicted for the offence punishable under Section 411 IPC individually for the said recovery.
51. As discussed above, all the circumstances and evidence brought on record leading to conclusion that these accused persons shared common intention with others to commit the offence alleged.
52. Now court has to analysis the matter as to whether this case falls under the ambit of Sec. 302/34 IPC or otherwise.
53. In a case reported as Harbeer Singh Vs. Sheeshpal, AIR 2016 SC 4958, Hon'ble Apex Court held that - It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts.
54. To further facilitate the matter, court will discuss what is culpable homicide as defined under Section 300 IPC. Culpable homicide- SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 35 of 49 whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
55. Section 300 Murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Section 300 Murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly - If it is done with the intention of causing such bodily injury s the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1. When culpable homicide is not murder - Culpable homicide is not murder if the offender, whilst deprived of the power if self-control by grave and sudden provocation or causes the death of the person SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 36 of 49 who gave the provocation, causes the death of any other person by mistake or accident.
The above exception is subject to the following proviso-
First - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly - that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of he powers of such public servant.
Thirdly - that the provocation is not given by anything done in the lawful exercise or the right of private defence.
Explanation - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
56. Further Hon'ble Apex Court in Abdul Waheed Khan and Others v. State of AP, (2002) 7 SCC 175, whilst appreciating the distinction between Section 299 and 300 IPC and in particular clause (3) of 300, thereof reiterated the principle laid down in the celebrated decision in Virsa Singh v. State of Punjab, AIR 958 SC 465 as under :
"This bring as to the crucial question as to which was the appropriate provision to be applied. In the scheme of IPC culpable homicide is the genus and "murder", its specie. All "murder" is "culpable homicide" sans "special SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 37 of 49 characteristics of murder is culpable homicide amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognizes three degrees of culpable homicide, which is defined in Sec. 300 as 'murder'. The second may be termed as 'Culpable homicide of the second degree". This is punishable under the first part of the section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Sec. 304".
57. PW-3 Mohd. Nafees during his examination-in-chief recorded on 01.03.2018 deposed before the court as-
"...The accused Izhar Ahmed had taken out knife and put it on my neck and asked us to handover belongings. We handed over all our belongings to them. We requested them to deboard us from the auto rickshaw but they did not but they took us to some distance. When we were shouting for help, accused Sonu stated that my brother was shouting too high and directed to throw him out of the auto rickshaw. Both the accused Izhar Ahmed and Sonu pushed my brother out of the auto rickshaw but my brother had caught hold of the iron rod fitted in the rickshaw and he was trying to get remain into the auto rickshaw again. Thereafter, SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 38 of 49 accused Izhar Ahmed gave a knife blow on the hand of my brother Mohd. Hafiz. At that time, my brother was hanging on the left side of the auto rickshaw. On this, driver of the auto rickshaw Dinesh @ Deva gave a leg blow on the stomach of my brother due to which, my brother fell down and came under the rear wheel of the auto rickshaw."
58. From the over all facts and circumstances of the case and testimonies of the prosecution witnesses and the judgments as discussed, testimony of PW-3 Mohd. Nafees is reliable and trustworthy and the same has been corroborated with the other oral and documentary evidence. No defence evidence was even opted to lead by any of the accused in order to shake the prosecution case as doubtful and discard the testimony of prosecution witnesses.
MOTIVE OF THE ACCUSED PERSONS
59. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. Motive is that which makes a man to do a particular act. There can be no action without a motive which must exist for every voluntarily act. As per the deposition of PW-1 Nafees and recovery of robbed articles from the possession of accused Izhar Ahmed and Sonu Verma reflect the intention SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 39 of 49 of the accused persons to commit the crime of robbery with ulterior motive.
60. It has been repeatedly held by the various higher Courts that culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa. Section 300 IPC further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part-I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part-II. The aforesaid distinction between an act amounting to murder and an act not amounting to murder has been brought out in the numerous decisions of the Hon'ble Apex Court. At this stage, it would be profitable to briefly encapsulate the legal position that emerges from a careful consideration of the above discussion, in light of the facts and circumstances of the present case, as follows :
a) If the subject injury is intended and is not caused by an accident or otherwise is not unintentional and the injury is sufficient in the ordinary course of nature to cause death, then the same would fall under Section 300 clause (3) and be punishable under Section 302 of IPC;
b) If there is intent and knowledge to cause a bodily injury likely to cause death, then the same would be a case of Section 304 Part I of IPC; and SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 40 of 49
c) If it is only a case of knowledge and not intention to cause a bodily injury likely to cause death, then the same would fall under Section 304 Part II of IPC.
61. The Hon'ble Supreme Court of India in State of Rajasthan v. Dhool Singh reported as MANU/SC/1076/2003 : (2004) 12 SCC 546, whilst promulgating inter alia the nature of injury, part of the body where it is caused and the weapon used in causing such injury to be the indicators of intention to establish an offence under Section 302 of IPC observed as follows :
"13. ... It is the nature of injury, the part of body where it is caused, the weapon used in causing such injury which are the indicators of the fact whether the respondent caused the death of the deceased with an intention of causing death or not. In the instant case it is true that the respondent had dealt one single blow with a sword which is a sharp-edged weapon measuring about 3 ft. in length on a vital part of the body, namely, the neck. This act of the respondent though solitary in number had severed sternocleidal muscle, external jugular vein, internal jugular vein and common carotid artery completely leading to almost instantaneous death. Any reasonable person with any stretch of imagination can come to the conclusion that such injury on such a vital part of the body with a sharp edged weapon would cause death. Such an injury in our opinion not only exhibits the intention of the attacker in causing the death of the victim but also the knowledge of the attacker as to the likely consequence of such attack which could be none other than causing the death of the victim. The reasoning of the High Court as to the intention and knowledge of the respondent in attacking and causing SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 41 of 49 death of the victim, therefore, is wholly erroneous and cannot be sustained."
MEDICAL EXPERT OPINION
62. Post-mortem report Ex.PW10/A (colly. 5 pages) clearly mentions the antemortem injuries as follows :
(I) Reddish grazed abrasion of size 18 x 6.0 cm over left side face suggestive of tyre mark and extent to neck region with fracture of zygomatic bone on left side.
(ii) Reddish grazed abrasion of size 16 x 6.0 cm over left side upper part of front of chest suggestive of tyre mark, obliquely placed 6.0 cm from midline and 17.0 cm above the lower border of rib cage.
(iii) Reddish abrasion 4.5 x 1.5 cm on right side forehead placed 5.0 cm from midline and 4.0 cm above the eyebrow.
(iv) Reddish abrasion 3.0 x 2.0 cm on right side face placed 1.5 cm outer to angle of eye.
(v) Reddish abrasion 1.5 x 0.6 cm on right side face placed just outer to angle of eye.
(vi) Reddish abrasion with lacerated wound 1 5 x 0.5 cm skin deep on left side back of pinna on upper part.
(vii) Incised wound spindle shape of size 4.0 x 1.5 cm x muscle deep over left dorsum of forearm placed 7.0 cm above the wrist joint.
(viii) Reddish abrasion 3.0 x 1.0 cm over right shoulder tip.
(ix) Reddish abrasion 4.5 x 2.0 cm over base of middle of back of neck.
SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 42 of 49
(x) Reddish abrasion 5.0 x 2.0 cm over back of left shoulder.
And on internal examination -
A - HEAD
(a) Scalp " Sub scalpel haemorrhage seen on right fronto-parieto area and both temporal area.
(b) Skull : Skull is compressed resulting fracture if both temporal bone seen.
(c) Brain, Meninges & Vessels : Meninges intact and patchy sybarracnoid haemorrhage seen at places on both side tempo-parietal area, with odem od brain. B - NECK
(a) Hyoid bone / Thyroid Cartilage / Cricoid Cartilage / Tracheal Rings & Mucosa / Any Foreign Body in Trachea : NAD.
C - CHEST (THORAX)
1) Ribs and Chest Wall : Extensive extravassation of blood seen in left side front of chest and fracture of ribs from 2nd to 7th at mid elavicular line.
2) Oesophagus : NAD
3) Pleural : About 500 ML of blood seen in left
Cavities side of cavity.
4) Lungs : Puncture wound seen on apieal lobe of
left lung and both lungs are congested.
SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 43 of 49
63. The Cause of Death as opined by PW-10 Dr. S. Lal is as under:
"Shock due to cranio-cerebral damage associated with injury to lung produce by blunt force impact on head and chest and sufficient to cause death in ordinary course of nature individually and collectively both and homicidal in nature. All injuries were ante-mortem in nature and fresh in duration. Injuries no.1 to 6 and injuries no. 8 to 10 produce by blunt force impact and injury no.7 produce by sharp edged weapon".
64. From the material on record and postmortem report, it is crystal clear that none of these accused persons have knowledge that their act is so dangerous to take the life of deceased. There was sudden provocation and fight when deceased objected to the acts of the accused persons for robbery.
65. It is ordinary human conduct that when a person is beaten without any free fight, the assailant is to be punished as desire in accordance with the nature of injuries and the mens rea. Under these circumstances, it has been attributed to have the knowledge that by beating with such several blows that he was likely to cause the death of the deceased. As such, the accused had the intentions and guilty knowledge a death must have been caused by under any of the SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 44 of 49 circumstances mentioned in the Exception of Section 300 IPC which include death caused by deprive power of self control under the grave and sudden provocation, while exercising the good faith, the right of the passion without pre-meditation. When death itself had not caused, there is no occasion to convict the accused for the offence punishable under Sec. 302 IPC. The death of the victim was necessary for conviction of the accused for the offence punishable under Sec. 304 IPC as the offence committed by the accused persons fell within the ambit of ingredients of Section 304 Part I IPC.
66. As discussed above, from the material on record, it crystal clear that in the instant case, there was sudden fight between the accused persons on one hand and the deceased and his brother PW-3 on the other hand on the issue of robbery resulted which, the accused was being provoked and deceased was thrown out from the auto rickshaw by pulling his hand. The assailant was on the upper hand since the deceased was sitting near the exit of the auto rickshaw. There was no pre-meditation or planning to kill the deceased. The facts and circumstances suggests the incident had taken place all of a sudden and in a spur of moment, the accused cannot be said to have intentions of causing the death of the deceased. No inference can also be drawn that the accused intended to SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 45 of 49 cause bodily injuries to as was sufficient in ordinary course of nature to cause death. Though, the act of the accused while pushing the deceased out of the auto rickshaw not in all prerogative or pre planned that would have been caused death or such bodily injury as likely to cause death. The accused would have attributed to the knowledge that the injury might have caused death of the deceased.
67. In case reported as Saroj @ Suraj Panchal & Anr. Vs. State of West Bengal, II (2015) CCR 20 (SC) = 2014 SCALE 358 , Hon'ble Apex Court clearly observed in its para no. 8 as - "...by no means can it be held to be a case of premeditation and it was a case of grave and sudden provocation and would come under the First Exception to Sec. 300 IPC. The fact situation bears great similarity to that in the decisions in Mangesh Vs. State of Maharashtra MANU/SC/0013/2011 : (2011) 2 SCC 123 and State of Punjab Vs. Jagtar Singh & Ors. MANU/SC/0873/2011 : (2011) 14 SCC 678.
68. In one of the judgment reported as State of Rajasthan Vs. Ratan Lal, 1995 CrLJ 2844 (Raj), it was held that the accused were acquitted of the charge for forming an unlawful assembly but convicted two accused under Section 302 read with Section 34 IPC against which the appeal was preferred to High Court where it was held that conviction under SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 46 of 49 Section 302 read with Section 34 was not sustainable and instead the accused were convicted under Section 304 (Part-I).
69. Moreover, in case of Madkami Laka Vs. State, 1995 CrlLJ 1484 (Ori), where accused had without any premeditation caused the death of his mother just in heat of passion. Only one blow was given and that proved fatal. It was held that the death was caused without any intention to cause fatal bodily injury, as such conviction of accused under Section 302 was altered to one under Section 304 Part-I.
70. Apart from that recently, in one case reported as Lalit @ Lucky Vs. State 2019 IX AD (Delhi) 421 - Hon'ble Delhi High Court observed that there was no enmity between the parties and there is no allegation of the prosecution that before the occurrence, the appellant and another had premeditated - convict is entitled to benefit of Exception 4 of Sec. 300 and consequently is convicted under Sec. 304 Part I IPC
71. In view of the above discussion, the act of the accused under the facts and circumstances of present case as well as the material on record and the deposing of witnesses including the eye witness and the expert opinion which fall within the ingredient of section 304 Part(I) of IPC. SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 47 of 49
72. From the above discussion, court has come to the conclusion that prosecution has been able to successfully prove its case beyond all reasonable doubts against all the accused persons namely - Izhar Ahmed @ Bhura S/o Anwar Ahmed, Sonu Verma S/o Harpal Verma and Dinesh @ Deva S/o Ved Prakash for committing an offence punishable under Setion 304 (Part-I)/34 IPC. As such, these above named accused persons are held guilty for the offence punishable under Section 304 (Part-I) read with Sec. 34 IPC and convicted accordingly. CONCLUSION
73. Keeping in view of the above discussion and judgments cited, it is successfully proved beyond all reasonable doubts that the prosecution has been able to prove the guilt of the accused persons as discussed in the abovementioned paras. Accordingly, accused Izhar Ahmed @ Bhura S/o Anwar Ahmed, Sonu Verma S/o Harpal Verma and Dinesh @ Deva S/o Ved Prakash are held guilty and convicted for the offence punishable under Section 304(Part-I)/34 IPC and Section 392/34 IPC. Apart from it, accused Izhar Ahmed @ Bhura is also held guilty and convicted for the offence punishable under section 397 IPC and further accused Izhar Ahmed @ Bhura and Sonu Verma are held SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 48 of 49 guilty and convicted for the offence punishable under Section 411 IPC individually and are convicted accordingly. Announced in the open Court on 30th day of April, 2021 (Dr. Satinder Kumar Gautam) Additional Sessions Judge-03 (East):
Karkardooma Courts: Delhi.
SC No. 611/2017 State Vs. Izhar Ahmed @ Bhura etc. Page No.: 49 of 49