Delhi High Court
Chotta Khan vs State on 3 March, 2010
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : February 23, 2010
Judgment Delivered on : March 03, 2010
+ CRL.APPEAL NO.419/2000
CHHOTA KHAN ..... Appellant
Through: Mr.Bhupesh Narula, Advocate
versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, Advocate
CRL.APPEAL NO.784/2001
MOHD.YUNUS @ CHANNA ..... Appellant
Through: Mr.Bhupesh Narula, Advocate
versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
PRADEEP NANDRAJOG, J.
1. Appellants Chhota Khan and Mohd.Yunus @ Chana Khan have filed the present appeal challenging the judgment and order dated 29.2.2000 convicting the former for the offence punishable under section 302/34 IPC and the latter for Crl.A.Nos.419/2000 & 784/2001 Page 1 of 23 the offences punishable under sections 302/323/34 IPC. For the offence of murder appellant Chhota Khan has been sentenced to undergo imprisonment for life and to pay a fine in sum of Rs.2,000/-; in default to undergo simple imprisonment for 2 years. For the offence of murder appellant Mohd.Yunus has been sentenced to undergo imprisonment for life and to pay a fine in sum of Rs.2,000; in default to undergo simple imprisonment for 2 years. For the offence punishable under Section 323 appellant Mohd.Yunus has been sentenced to undergo rigorous imprisonment for 6 months and to pay a fine in sum of Rs.500/-; in default to undergo simple imprisonment for 15 days.
2. The charges in the instant case were framed against five accused; namely Chhota Khan, Mohd.Yunus @ Channa, Babu Ram, Sagir Ahmed and Kunda Swami. While accused Babu Ram and Sagir Ahmed have been given benefit of doubt and have been acquitted of the charges framed against them for the offence of murder, co-accused Kunda Swami expired during the pendency of trial and therefore no definite finding has been given qua him by the learned Trial Judge.
3. The broad contours of the case set up by the prosecution is that on 21.6.2001 a wedding was taking place in Crl.A.Nos.419/2000 & 784/2001 Page 2 of 23 the locality of Dharam Kanta Camp No.1, Nangloi. The baratis (the groom, his relatives and friends), not being residents of Delhi, were staying in a temple-cum-dharamshala near Dharam Kanta Camp No.1, Nangloi. At about 8:00 PM when the barat started proceeding towards the place where the wedding was to take place, appellants Chhota Khan, Mohd.Yunus @ Channa, co-accused Babu Ram, Sagir Ahmad and Kunda Swami, who were neither friends nor relatives of the groom, but were residents of the colony, started dancing in the barat. The baratis, in particular Suresh PW-9 and Ram Kishan PW-11, objected to this. As a result a quarrel ensued but got pacified when the accused left the barat. When the barat reached the place of wedding, the accused re-appeared and caused disturbance. The accused tried to drag away Suresh PW-9, but with the intervention of the elders the matter was settled for the time being. After some rituals of the wedding had been performed, some of the baratis including Suresh PW-9, deceased Balwant and deceased Ram Phal, their father Ram Singh, Ram Kishan PW-11 and Rajbir Singh PW-1 returned to the temple-cum-dharamshala. The accused who were in wait followed them to the dharamshala and gave fist blows and slaps to Suresh PW-9. When Balwant, Ram Phal and Ram Singh intervened to rescue Suresh, the accused acted in Crl.A.Nos.419/2000 & 784/2001 Page 3 of 23 concert and stabbed Balwant and Ram Phal, thereby causing their death. The weapon, a knife was yielded by Chhota Khan and the other accused facilitated the commission of the crime by exhorting Chhota Khan or catching hold of the deceased.
4. The process of criminal law was set into motion when at 9:55 PM on 21.6.1990 information was received at PS Nangloi about a quarrel taking place at Barat Ghar, Camp No.1, Nangloi between baratis. The said information was recorded vide DD No.59 B and its investigation was entrusted to ASI Gulab Singh PW-24 who accompanied by Const.Jaipal Singh PW-22 reached the aforestated spot and on learning that the injured had already been removed to DDU Hospital, proceeded for DDU Hospital. At the hospital he learnt that the injured Balwant and Ram Phal were both declared brought dead. He collected their MLCs Ex.PW-10/A and Ex.PW-10/B and met Suresh PW-9 and recorded his statement Ex.PW-24/A. Making an endorsement under said statement ASI Gulab Singh sent the same for registration of an FIR. Further investigation was transferred to Insp.R.S.Dahiya. Insp.R.S.Dahiya arrested accused Chhote Khan, recorded his disclosure statement and pursuant to the same effected the recovery of a knife stated to be the knife used in the offence. Said knife was seized vide memo Ex.PW-11/C. Crl.A.Nos.419/2000 & 784/2001 Page 4 of 23
5. Insp.R.S.Dahiya filled in the inquest papers pertaining to the dead bodies and sent the same along with the dead bodies to Civil Hospital, Delhi for post-mortem. Dr.L.T. Ramani conducted the post-mortem on the body of Ram Phal and prepared his report Ex.PW-15/A. He noted an incised wound 5.5 cm X 3 cm X 12 cm, placed vertically above the left anterior superior, iliac spine. He opined that the injury was caused by a sharp edged weapon and was sufficient in the ordinary course of nature to cause death. On the post-mortem examination of the body of Balwant, Dr.L.T.Ramani prepared his report Ex.PW-15/B and noted an incised wound 5 cm X 1.8 cm X 9 cm placed obliquely on the right side front of chest. He opined that the injury was caused by a sharp edged weapon and was sufficient in the ordinary course of nature to cause death. The knife recovered at the instance of Chhote Khan was sent to Dr.L.T.Ramani, who on examination opined that said knife could possibly be the weapon of offence.
6. Needless to state the case of the prosecution hinged upon the testimonies of Rajbir Singh PW-1, Suresh PW- 9 and Ram Kishan PW-11 who claim to be the eye witnesses of the incident.
7. Rajbir Singh PW-1 deposed that on 21.6.1990 along with his brothers Balwant and Ram Phal and father Ram Singh, Crl.A.Nos.419/2000 & 784/2001 Page 5 of 23 he had come to Delhi for a wedding of a relative. The baratis were staying at a mandir-cum-dharamshala in Nangloi. At about 8:30 PM on the said date, the barat departed towards the house of the bride. After covering some distance, some persons including the accused started dancing in the barat and when the relatives of the groom objected to the same a quarrel took place between the relatives of the groom and the accused. The accused continued to disturb the barat till the barat reached the house of the bride. After sometime some of the baratis returned from the venue of the wedding to the dharamshala. His brothers Balwant and Ram Phal and father Ram Singh also returned to the dharamshala. He followed them and when he reached the dharamshala, he saw all the 5 accused present. His brother Balwant was lying on the ground and was bleeding. He was stabbed by Chhota Khan. When his elder brother Ram Phal tried to catch hold of Chhota Khan, Chhota Khan stabbed Ram Phal as well. When Ram Phal was stabbed, appellant Mohd.Yunus and accused Babu Ram had caught hold of Ram Phal.
8. Suresh PW-9 deposed that on 21.6.1990 he was attending a wedding in Nangloi. At about 8:00 PM when the marriage procession commenced, 3 or 4 boys started dancing with the barat. His relatives and he told the boys not to dance Crl.A.Nos.419/2000 & 784/2001 Page 6 of 23 with their barat, whereupon an altercation took place with those boys. At that time the boys went away but when the barat reached the house of the bride, the boys re-appeared and dragged him aside. But due to the intervention of the elders the matter was settled at that point of time. When he returned to the dharamshala where the relatives of the groom were staying, the boys followed him there and while accused Babu Ram held him, Channa started slapping him and also gave him fist blows. The boys were addressing each other by the name of Channa Khan, Kunda Swami, Chhota Khan etc. When Balwant, Ram Phal and their father Ram Singh came to his rescue, Channa Khan exhorted by saying "Chhota Khan, ye sale aise na hin manen ge in ko chakoo maro". On this, appellant Mohd.Yunus @ Channa caught hold of Ram Singh, accused Sagir Ahmed caught hold of Balwant, accused Kunda Swami caught hold of Ram Phal and Chhota Khan took out a knife from his pocket and inflicted one stab each on the chest of Balwant and on Ram Phal. When Chhota was about to inflict another stab on the person of Balwant, Balwant screamed and as a result, one of the accused came in between and got injured. Said accused fled from the spot with the help of Babu Ram and Channa Khan.
Crl.A.Nos.419/2000 & 784/2001 Page 7 of 23
9. Ram Kishan PW-11 deposed that on 21.6.1990 he was in Nangloi to attend a wedding. The marriage party was staying in a temple in Nangloi. When at about 8:00 P.M., the marriage procession commenced and was proceeding towards the house of the bride, 4/5 boys of the colony started dancing with the barat. Suresh and he objected to this and an altercation ensued. The boys were addressing to each other by the names of Channe, Chhota and Madrasi. The boys left after the altercation but returned after sometime when the barat had already reached the house of the bride and some of the marriage ceremonies were being performed. They tried to drag Suresh away but on the intervention of some of the elders they left. Once the ceremonies were over some of the family members of the groom returned to the dharamshala where they were staying. Soon after they reached the dharamshala the four or five boys also reached there. Appellant Channa caught hold of Suresh and gave him fist blows. When Balwant, Ramphal and their father Ram Singh tried to intervene, Channa left Suresh and caught hold of Ram Singh and exhorted by saying "Chhota yeh aise nahin maanen gen in saalon ko chakoo maar". On this accused Sagir Ahmed caught hold of Balwant. Chhota Khan took out a knife from his dub and stabbed Balwant in his chest and when Ramphal tried Crl.A.Nos.419/2000 & 784/2001 Page 8 of 23 to rescue Balwant, accused Kunda Swami caught hold of Ramphal and Chhota stabbed Ramphal. When Chhota was about to inflict another blow upon Balwant, accused Sagir Ahmed came in between and got injured. When Sagir fell down accused Kunda Swami and Babu Ram helped him flee from the spot.
10. Vide impugned judgment and order dated 29.2.2000, the learned Trial Judge has acquitted accused Babu Ram and accused Sagir Ahmad. The reason being, the three eye witnesses PW-1, PW-9 and PW-11 did not attribute any concrete role to accused Babu Ram in the assault. The only role attributed to him was that of catching hold of either of the victims of the assault and when accused Sagir Ahmed inadvertently got injured after the assault, of helping Sagir Ahmed in fleeing from the spot. Further, since the testimonies of PW-1, PW-9 and PW-11 were inconsistent with respect to which of the victims or by standers Babu Ram had clutched on to when Chhota Khan stabbed, learned Trial Judge has preferred to give him benefit of doubt and acquit him. Qua accused Sagir Ahmad, learned Trial Judge has held that the MLC Ex.PW-10/C of Sagir Ahmad evidenced that he was admitted in DDU Hospital on 21.6.1990 at 10:30 PM by his brother Rais. Rais was examined as DW-1 and he stated that Crl.A.Nos.419/2000 & 784/2001 Page 9 of 23 at 10:30 PM on 21.6.1990 Sagir Ahmad and he were returning from their work when two boys tried to rob them and when they objected to the same, the boys gave Sagir a knife blow on his abdomen. Learned Trial Judge has relied upon the testimony of DW-1 and has held that the prosecution has failed to establish the presence of Sagir Ahmad at the spot and therefore acquitted him.
11. Learned Trial Judge has not given any finding with respect to accused Kunda Swami as he died during the pendency of the trial.
12. In convicting the present appellants for the offences aforenoted in para 1 above, learned Trial Judge has held the testimonies of Suresh PW-9 and Ram Kishan PW-11 to be true ocular versions of the incident. The testimony of Rajbir Singh PW-1 has also been held to corroborate the testimonies of PW- 9 and PW-11 inasmuch as all the three witnesses deposed that appellant Mohd.Yunus @ Channa facilitated the stabbing by catching the victims and by exhorting Chhota Khan and appellant Chhota Khan stabbed both the deceased. Against Chhota Khan, the recovery of a knife pursuant to his disclosure statement, which knife was opined to be the possible weapon of offence by the doctor who conducted post-mortem, was held to be additional incriminating evidence. Crl.A.Nos.419/2000 & 784/2001 Page 10 of 23
13. Learned counsel for the appellants had made three- fold arguments. Firstly that the testimonies of the three alleged eye witnesses Rajbir Singh PW-1, Suresh PW-9 and Ram Kishan PW-11 were mutually contradictory to each other and could not be relied upon. Secondly that having disbelieved the testimonies of PW-1, PW-9 and PW-11, with respect to the involvement of accused Babu Ram and Sagir Ahmad in the crime, learned Trial Judge has erred in relying upon the testimonies of PW-1, PW-9 and PW-11 in reaching a finding of guilt qua appellants Chhota Khan and Mohd.Yunus @ Channa. Lastly, learned counsel had urged that if at all an offence is made out it is of culpable homicide not amounting to murder and not murder as only a single stab wound has been inflicted upon the deceased persons.
14. The first submission of the counsel deserves to be rejected at the outset. We do not find the testimonies of the three witnesses mutually contradictory, as urged by the learned counsel. In fact, Suresh PW-9 and Ram Kishan PW-11 have deposed in absolute harmony with each other, not only in the broad contours of the incident but also in the roles assigned by them to each of the accused in the incident of stabbing. PW-9 and PW-11 have deposed that a quarrel took place at about 8:30 PM when both the said witnesses objected Crl.A.Nos.419/2000 & 784/2001 Page 11 of 23 to the accused dancing in the barat of their relative. The quarrel was settled at that time and the accused left the barat, but they returned when the barat reached the venue of the wedding. The accused tried to drag Suresh PW-9 away but were again stopped by the elders present in the barat. When at about 9:30 PM, PW-9 returned to the dharamshala from the place of the wedding, the accused followed him there. Appellant Mohd.Yunus @ Channa gave fist blows to PW-9. When deceased Balwant, deceased Ramphal and their father Ram Singh attempted to rescue Suresh PW-9, Mohd.Yunus @ Channa released Suresh from his clutches and caught hold of Ram Singh and exhorted by saying "Chhote yeh aisey nahin maanenge in saalon ko chakoo mar". On this, accused Sagir Ahmed caught hold of Balwant and appellant Chhota Khan took out a knife from his possession and inflicted a stab blow on Balwant. When Ramphal went to the rescue of his brother Balwant, accused Kunda Swamy caught hold of Ramphal and Chhota Khan inflicted a stab blow on Ramphal. When Chhota Khan was about to inflict a second blow upon Balwant, accused Sagir Ahmed inadvertently came in between and received a stab blow. He fell down and could flee from the spot only with the help of his accomplices in the offence.
Crl.A.Nos.419/2000 & 784/2001 Page 12 of 23
15. What are the variations in the inter-se testimony of PW-9 and PW-11. The first, they have differed in the sequence in which the events of appellant Mohd.Yunus exhorting to Chhota Khan and of appellant Mohd.Yunus catching hold of Ram Singh took place. The second being that while PW-11 names Sagir Ahmed as the person who accidently received a stab blow when Chhota Khan was about to inflict the same upon deceased Balwant, PW-9 merely stated that one of the accused inadvertently got injured when appellant Chhota Khan was about to inflict a second stab upon Balwant. PW-9 did not specify as to which of the accused was so injured. The last discrepancy noted by us is that while PW-9 stated that the injured accused fled from the spot with the help of appellant Mohd.Yunus @Chana and accused Babu Ram, PW-11 stated that Sagir Ahmed fled with the help of accused Kunda Swamy and Babu Ram.
16. The discrepancies noted above by us are trivial in nature and cannot have the effect of denting the case of the prosecution. Such discrepancies are but natural, as in an incident involving a number of assailants and a number of victims or bystanders, it cannot be expected from each of the eye-witnesses to assign specific roles in the assault to each of the accused and to corroborate each other with respect to Crl.A.Nos.419/2000 & 784/2001 Page 13 of 23 each detail given. We derive support from the decisions reported as AIR 1956 SC 116 Masalti vs. State of U.P., 1987 (3) SCC 747 State of U.P. vs. Dan Singh and 2003 Cri.L.J. 41 (SC) Gangadhar Behera & Ors. vs. State of Orissa. In fact in the instant case, PW-9 and PW-11 having attributed specific and distinct roles to each of the accused and having corroborated each other in the material particulars, the minor discrepancies in their testimonies as noted above cannot be taken to discredit the said witnesses. The law is settled that a discrepancy has to be distinguished from a contradiction. Whereas contradictions in the statements of witnesses are fatal to the case, minor discrepancies or variations in the testimonies are immaterial. (See the decision of the Supreme Court reported as State of Himachal Pradesh v Lekh Raj & Anr 1999 (9) Supreme Today 155)
17. We note that Rajbir Singh PW-1 did not witness the complete incident. But his being a witness to a part of the incident of stabbing cannot be doubted. He deposed that by the time he reached the dharamshala, he saw his brother Balwant lying on the ground. Balwant was bleeding because of stab blow inflicted upon him by Chhota Khan. When his brother Ram Phal attempted to rescue Balwant, Chhota stabbed Ram Phal as well. Clearly, PW-1 has not witnessed Crl.A.Nos.419/2000 & 784/2001 Page 14 of 23 any stab being inflicted upon Balwant. But, on seeing Balwant lying on the ground and bleeding, and further witnessing the following event of his brother Ram Phal being inflicted knife blow by Chhota when he went to rescue Balwant, any prudent person would perceive that Chhota inflicted stab upon Balwant as well. Accordingly, we hold that what was perceived by Rajbir Singh being spoken of as being seen by him is not suggestive of his being not a truthful witness. We find the testimony of PW-1 also credible and in harmony with the testimony of PW-9 and PW-11. That he stated that when Ram Phal was stabbed, Mohd.Yunus and Babu Ram had caught hold of him, may be in slight variation with the version of PW-9 and PW-11, but is not so strong a discrepancy so as to discredit him as well as PW-9 and PW-11. Again the law stated above that in an incident involving a number of assailants, a number of victims and by-standers, the witnesses cannot be expected to remember the exact roles played by each of the accused, applies to Rajbir Singh as well.
18. Now, having held that the testimonies of PW-1, PW- 9 and PW-11 are worthy of full credence, we proceed to see whether from the facts emerging from the testimonies of said witnesses, the conviction of the appellants for the offence of murder is correct or not.
Crl.A.Nos.419/2000 & 784/2001 Page 15 of 23
19. There is no dispute that Balwant and Ram Phal have died as a result of stab injury inflicted upon them. The three eye-witnesses PW-1, PW-9 and PW-11 to their deaths have deposed in harmony with each other that both the deceased were inflicted single stab wounds by Chhota Khan. The recovery of a knife pursuant to the disclosure of Chhota Khan, and the said knife being opined to be the possible weapon of offence by the doctor conducting the post-mortem, are additional incriminating evidence against appellant Chhota Khan. Thus, we hold that the prosecution has successfully established the active involvement of Chhota Khan in causing the death of Balwant and Ram Phal.
20. Turning to appellant Mohd.Yunus @ Channa, the role attributed to him by PW-1, PW-9 and PW-11 is three-fold. First, of slapping and giving fist blows to PW-9; second, of exhorting appellant Chhota to inflict knife blows upon those trying to rescue PW-9; and third, of catching hold of Ram Singh i.e. father of deceased Balwant and Ram Phal, when Chhota Khan was inflicting knife blows upon Balwant and Ram Phal. Clearly, the role played by Mohd.Yunus @ Channa was of a facilitator. Now the question arises whether in the facts and circumstances, appellant Mohd.Yunus @ Channa can be said to be sharing a common intention with appellant Chhota Khan to Crl.A.Nos.419/2000 & 784/2001 Page 16 of 23 cause death of the deceased? To prove common intention on part of a number of accused, two essentials have to be established. Firstly that there was common intention between all the accused and secondly those sought to be held liable had participated in some manner in the act constituting the offence.
21. From the testimonies of PW-1, PW-9 and PW-11 it is evident that the incident has taken place in three stages. First stage being the quarrel which took place when PW-9 and PW- 11 objected to the accused dancing with the barat of their relative; second stage being the re-appearance of the accused when the barat reached the venue of the wedding, and their trying to drag away PW-9 probably to settle scores and to take revenge; the third stage being the accused following PW-9 back to the dharmashala from the wedding after about an hour or so of the barat reaching the place of wedding, and inflicting fist blows and slaps upon him. Clearly, the incident has spanned over a time period of more than an hour. The fact that after the first brawl the accused continued to follow the barat and when the barat reached the place of wedding the accused tried to drag PW-9 away shows that the accused had developed hatred for PW-9 and desired retribution from him for the earlier brawl. That the accused waited for PW-9 outside Crl.A.Nos.419/2000 & 784/2001 Page 17 of 23 the place of the wedding for about an hour or so and when PW- 9 left the place of the wedding, they followed PW-9 up to the Dharamshala, evidences the extreme level of hatred of the accused towards PW-9 and their determination to take revenge from him. It shows that since the time PW-9 had objected to the accused dancing with the barat of his relative, the accused were searching for an opportunity to teach PW-9 a lesson.
22. From said fact, it can reasonably be inferred that when all the accused followed PW-9 to Dharamshala, they shared a common intention of taking revenge from PW-9 and of teaching him a lesson. When Balwant, Ram Phal and Ram Singh intervened while the accused were inflicting fist blows and slaps upon PW-9, on the exhortation of Mohd.Yunus @ Channa, each of the accused caught hold of one of the three i.e. Balwant, Ram Phal and Ram Singh, and Chhota Khan took out a knife from his pocket and inflicted stabs upon Balwant and Ram Phal, from said part of the incident, it is clear that all the accused shared a common intention not only to teach a lesson to Suresh PW-9, but also to overcome any resistance to save PW-9. The fact that Mohd.Yunus exhorted by saying "Chhote ye aise nahi maanenge, inko chaakoo maar"
evidences the knowledge of Mohd.Yunus about appellant Crl.A.Nos.419/2000 & 784/2001 Page 18 of 23 Chhote being in possession of a knife. It is true that Suresh was the target and death caused is of 2 other persons. But from the evidence we can safely gather the intention of the group was to not only assault Suresh but overcome resistance if any offered and to achieve their common intention, as an integral component thereof, to use a knife. That the group preyed upon Suresh shows their determination.
23. Thus, we can safely gather that all the accused shared a common intention to do away with PW-9 and if anyone tried to resist the attack on PW-9, to overcome the resistance. Appellant Mohd.Yunus may not be the one to have yielded the knife blows upon the deceased, but inasmuch as he has participated in the offence to the fullest, by firstly assaulting PW-9, then exhorting appellant Chhota to yield knife blows to those who came to the rescue of PW-9 and then lastly by immobilizing Ram Singh father of the deceased and thereby preventing him from interfering with the assault upon Balwant and Ram Phal, he is liable for the deaths of the deceased, in the same manner as appellant Chhota Khan would be liable and Section 34 IPC would apply to him.
24. True, that accused Babu Ram and Sagir Ahmed have been given benefit of doubt by the learned Trial Judge and have been acquitted in the instant case. We have noted Crl.A.Nos.419/2000 & 784/2001 Page 19 of 23 the reasoning given by the learned Trial Judge in acquitting the said accused in para 10 above. We wish to clarify that the learned Trial Judge has not acquitted Babu Ram and Sagir Ahmed on basis of a finding that the witnesses PW-1, PW-9 and PW-11 were not creditworthy. Accused Babu Ram was given benefit of doubt on the grounds that no concrete role emerged qua him in the commission of the murders, from the testimony of the eye-witnesses, save and except that he helped accused Sagir Ahmed flee from the spot when Sagir Ahmed had got injured. Such a passive role in the incident was insufficient to infer a common intention on part of Babu Ram with the other accused to commit murder of Balwant and Ram Phal. Accused Sagir Ahmed was acquitted on the grounds that his presence at the spot at the time of the offence was not sufficiently established by the prosecution. Learned Trial Judge relied upon the testimony of Rais DW-1 and held that the same established that the stab injury upon the person of Sagir Ahmed was a result of a quarrel with two boys who attempted to rob Sagir Ahmed and DW-1. Learned Trial Judge held that the testimony of DW-1 sufficiently cast a doubt on the presence of accused Sagir Ahmed at the place of occurrence at the time of the incident and therefore acquitted him. This being so, the contention of the counsel for the appellant that Crl.A.Nos.419/2000 & 784/2001 Page 20 of 23 the learned Trial Judge has erred in believing the testimonies of the eye-witnesses with respect to the appellants, but disbelieving the same with respect to accused Babu Ram and Sagir Ahmed, is devoid of any merit. The reason being, learned Trial Judge has not disbelieved the testimonies of the eye-witnesses qua any of the accused. The testimonies of the eye-witnesses have been held to be trustworthy. The learned Trial Judge has merely followed the Rule of Prudence and has given benefit of doubt to Babu Ram and Sagir Ahmed, on basis of the other evidence on record.
25. Here, we wish to state that we are not in agreement with the acquittal of accused Sagir Ahmed on the basis of the testimony of Rais DW-1. Rais DW-1 is the brother of Sagir Ahmed and we do not find his testimony worthy of any credence. Having thoroughly perused the evidence on record, we find that the testimonies of PW-1, PW-9 and PW-11 conclusively established the presence of Sagir Ahmed at the spot at the time of offence, his active involvement in the offence and his sharing a common intention with the other accused to cause death of the deceased.
26. The decision reported as AIR 1962 SC 1211 Sunder & Ors. Vs. State of Punjab guides us that if in dealing with the case presented before it on behalf of the appellants, it Crl.A.Nos.419/2000 & 784/2001 Page 21 of 23 becomes necessary for the High Court to deal indirectly or incidentally with the case against the accused who was acquitted, there is no legal bar at all for the High Court to consider evidence as a whole and come to a conclusion that the evidence against the accused who was acquitted was wrongly appreciated by the Trial Court.
27. Learned counsel for the appellants had urged that only a single stab wound having been inflicted upon each of the deceased it cannot be said that the accused had intention to cause death or to cause injury sufficient in the ordinary course to cause death of the deceased.
28. We need not note a host of decisions wherein a single stab wound inflicted on the vital parts of the body of the deceased have been held to attract Section 302 IPC and not Section 304 IPC. We may emphasize here that the stab on both the deceased have been inflicted upon vital parts being the chest and the abdomen. Further, from the testimony of PW-9 and PW-11 it emerges that Chhota Khan was ready to inflict another stab upon Balwant, but when the same inadvertently hit Sagir Ahmed and Sagir Ahmed fell on the ground, the accused lost their enthusiasm and preferred to flee. Crl.A.Nos.419/2000 & 784/2001 Page 22 of 23
29. The conviction of appellant Chhota Khan for the offence of murder is sustained and Crl.A.No.419/2000 filed by him is dismissed.
30. The conviction of appellant Mohd.Yunus @ Channa for the offences punishable under Section 323 for voluntarily causing hurt upon PW-9 and under Section 302/34 for acting in concert with appellant Chhota Khan to commit murder of the deceased, is also sustained. Crl.A.No.784/2001 filed by appellant Mohd.Yunus @ Channa is also dismissed.
31. Appellants are on bail. Their bail bonds and surety bonds are cancelled. They are directed to surrender forthwith and suffer the remaining sentence.
(PRADEEP NANDRAJOG) JUDGE (SURESH KAIT) JUDGE March 03, 2010 mm Crl.A.Nos.419/2000 & 784/2001 Page 23 of 23