Delhi District Court
State vs Walim on 16 January, 2024
-1-
IN THE COURT OF MS. SHEFALI SHARMA:
ADDL. SESSIONS JUDGE-02( NORTH ):
ROHINI DISTRICT COURTS : DELHI
In the matter of:-
(Sessions Case No. 58751/2016)
FIR No. 765/2015
Police Station Mahendra Park
Charge sheet filed Under Section 302/307/324/392/397/
411 IPC
Charge framed Under Section 324/307/392/302 IPC
State V/s Walim
D-28, Jhuggi Sarai Peepal Thala
Azad Pur, Delhi.
......Accused
Date of institution 16.12.2015
Dates of arguments 03.01.2024, 06.01.2024
& 12.01.2024
Judgment Pronounced on 16.01.2024
Decision Convicted U/s 324/307/
392 & 304(II) IPC
JUDGMENT
BRIEF FACTS
1. Events which set the prosecution machinery into motion are that on the intervening night of 3/4.09.2015, the SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 1 of 79 -2- complainant Ms.Hasina was talking to her neighbour Ms.Shamim Bano (since deceased)/ mother of the accused while the accused Walim who was sitting at some distance, on seeing the son of Ms.Hasina, Md. Shan, forcibly took away his phone and on this Ms.Hasina tried to take away her son towards her house when the accused in a highly intoxicated state started abusing her son and saying "isse abhi uppar pahucha deta hu" and suddenly took out a knife and gave multiple knife blows on the person of Md. Shan. That when Ms.Hasina in order to save her son tried to stop the accused, she caught the knife blade with both her hands and also got injured because of the knife blow. In the meanwhile mother of accused Walim, Ms.Shamim Bano in order to save Md. Shan, who had fallen down, fell on him to save him from her son accused Walim but the accused gave knife blows even to his mother, as a result of which, she received injuries and was rushed to BJRM Hospital, where she was declared brought dead. The accused gave multiple stab injuries on body of Md. Shan on vital parts including the ribs and the right side of the back and right knee as is reflected from their MLCs. The accused also gave simple injuries on the hands of Ms.Hasina, who was trying to save her son by holding the knife in her hands. In an earlier transaction, he also committed the robbery of the mobile phone of the injured Md. Shan, although without using any deadly weapon at that time and in the second transaction while causing knife injuries, inflicted knife blows on his own mother causing her SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 2 of 79 -3- death.
In the backdrop of this factual matrix, the present FIR had been registered initially under Section 304/307/324 IPC and after the recording the statement of the complainant, injured and other witnesses and on completion of the investigation, the charge sheet had been filed under Section 302/307/323/392/397/ 411 IPC.
CHARGE
2. On committal of the case to the Court of Sessions, vide order dated 03.01.2018 charge under Section 324/3207/392/ 302 IPC was framed against accused Walim. Accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Thereafter, prosecution in support of its case have examined 30 witnesses in all.
PW1 is ASI Bhagwan Singh. He has deposed that on 04-09-2015, he was posted at PS Mahindra Park, Delhi as a HC and working as duty officer from 12:00 night to 8:00 am. That on that day, at about 5:15 AM, he received rukka through Ct. Pawan sent by SI Devi Lal for the registration of FIR. That he got registered the present FIR No. 765/15 u/s 304/307/324 IPC Ex.PW1/A through Computer Operator and also made endorsement Ex. PW1/B on the original rukka vide DD No. 6A.
SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 3 of 79 -4- He further deposed that after registration of FIR, copy of FIR and original rukka was sent to SI Devi Lal through Ct. Pawan for investigation. He has also brought certificate u/s 65 B of Indian Evidence Act Ex. PW1/C for the correctness of the FIR.
PW2 is Sh.Sonu Nagpal. He has deposed that he is a vegetable seller at Azadpur Sabzi Mandi. That in the intervening night of 03/04.09.2015, in the night, he was going to his house from his work place via near Badola jhuggis. That at about 12:15 am (in the night), when he was passing through Masjid wali gali, Badola jhuggis, he saw one aged lady was lying in a wounded condition. That public had gathered there and he was requested by them to make call to the police.
He further deposed that thereafter, he called 100 number from his mobile phone bearing no. 9910376203. That after making the call, he left the spot. That the SIM of the said mobile phone was issued in the name of his tenant Sikander Yadav and he was using the said mobile number one and a half year prior to the present incident and till date he was using the said number. He further deposed that he had already changed the said number to Postpaid after given my ID.
PW3 is Smt. Hasina. She has deposed that in the intervening night of 03/04.09.2015, at about 9:30 pm, she came to her house and was standing outside her jhuggi. That one Shamim Bano W/o Islamuddin came to her and they were talking to each other. Shamim Bano told her that her son Walim used to demand SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 4 of 79 -5- money from her for intoxication and she further told her that her son Walim would kill her or her elder son at any time. She further deposed that at a some distance, she noticed that her son was coming and accused Walim tried to snatch mobile phone of her son Mohd. Shan. She noticed that a quarrel took place between her son Mohd. Shan and accused Walim. She go there and caught hold her son and was coming towards her jhuggi and mobile phone remained with the accused.
She further deposed that in the meanwhile, accused took out knife from the dub of his waist and stabbed with the same on the back of her son. That when he pulled out the knife after stabbing once my son and again tried to stab him, she caught hold the knife with her hands, due to which her fingers were cut due to the knife injury. That in the meanwhile her son had fallen on the ground. Thereafter, accused again repeatedly stabbed her son Mohd. Shan, twice on his back, right hand and right leg. She further deposed that accused again wanted to stab her son Mohd. Shan, however, his mother Shamim Bano came in between as a shield in order to save her son Mohd. Shan. She further deposed that thereafter, she (mother of accused) suffered a knife blow on her thigh with stab blow given by the accused given with full force. That Shamim Bano also fell down and the accused Walim ran away. Thereafter, she lifted her son and her hands were soiled with blood, but nobody gave her any assistance or help. She further deposed that she put her son on a rehdi/thela and took him SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 5 of 79 -6- outside the road. That thereafter, he was put in an auto and taken to the BJRM Hospital. Thereafter, he was admitted there and was given treatment. That thereafter, she called her bhanja namely Ali from Jahangir Puri. Thereafter, her son was shifted to LNJP hospital for further treatment.
She further deposed that later on, PCR had taken Shamim Bano also to BJRM Hospital, but she was not present at that time. That doctors had examined Shamim Bano in the hospital in her presence and she saw that there was heavy oozing of blood in the salwar of Shamim Bano and when it was taken out, it was found that there was a deep gash in the thigh of Shamim Bano and she was declared brought dead. That SHO and police reached the hospital. That police had inquired from her and had recorded my statement Ex.PW3/A. She further deposed that from the hospital, she came to her house. That police also reached at the spot and on her pointing out, police inspected the spot and prepared the site plan. She further deposed that her blood stained clothes i.e. my salwar kameez and dupatta were handed over to the police and police converted the same into a pulanda and it was sealed and taken into possession vide seizure memo Ex.PW3/B. She further deposed that police also lifted the blood from the spot.
She further deposed that on 6th or 7th the nali was cleaned by the employees of MCD and at that time one knife was recovered, which was shown to me by the MCD employees and SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 6 of 79 -7- she identified the said knife to be the same, which was used by the accused on the day of incident and she called the police and handed over the said knife to the police and they converted the same into a pulanda and sealed and taken into possession vide seizure memo Ex.PW3/C. She further deposed that thereafter, police searched the accused and he was apprehended by the police from the nearby spot and from his possession 3-4 mobile phones including mobile phone of her son was recovered. She further deposed that accused Walim was arrested by the police in her presence vide arrest memo Ex.PW3/D. That he was interrogated and confessed his guilt and his disclosure statement Ex. PW3/E was recorded. She further deposed that the clothes of her son were not seized in my presence. That during the search from the accused, a sum of Rs.1300/- was recovered and some foreign currency was also recovered.
She has also identified the case property i.e. one dirty chunni, one dirty ladies suit and one dirty salwar, to be her chunni, salwar and ladies shirt. The said clothes, which she was wearing at the time of the incident are collectively Ex. P1. She has also identified the knife to be the same which was used by the accused Walim at the time of incident for causing injuries as Ex. P2.
She has also identified the mobile phone make Chinese black colour having IMEI No. 911401503857086 and SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 7 of 79 -8- 9114041503885111 having Airtel SIM, memory card, to be the same mobile phone which was robbed by the accused from her son Mohd. Shan on the day of incident, as is Ex. P3.
She further deposed that after the entire proceedings, which were carried out in her presence by the police, they had recorded my statements in this regard.
After putting some leading questions by Ld. Addl. PP for the State, she deposed that the incident is around 12:00 midnight and that on 07.09.2015, she alongwith police officials visited LNJP Hospital, where her son Mohd. Shan was under
treatment and there police had seized the blood stained half pant of her son after converting the same into a pulanda vide seizure memo Ex. PW3/F and voluntarily said his shirt was not taken into possession.
She further stated that on 04.09.2015, police also recovered the cover of the knife in which accused had kept the said knife and police prepared the sketch of said cover Ex. PW3/G and it was converted into a pulanda and taken into possession vide seizure memo Ex. PW3/H but voluntarily said that the said cover was lifted by the police from the spot on the date of the incident.
She has also identified the half pant of her son Mohd. Shaan and cover of the knife as Ex.P4 and Ex.P5 respectively.
PW4 is HC Krishan. He has deposed that on
04.09.2015 he was posted at PP N. S. Mandi of PS Mahindra Park SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 8 of 79 -9- as a constable and on that day was working as DD writer from 12 night to 8 am. He further deposed that on that day at about 12:25 am, he received a message from control room which was reduced in writing vide DD No. 2PP Ex.PW4/A and copy of same was handed over to SI Devi Lal for necessary action.
He has further deposed that on the same day, at about 12:30 am ASI Jaivir had lodged his departure entry vide DD No. 3PP Ex. PW4/B and he informed Ct. Praveen to reach at the spot who was already in the area for petrolling.
PW5 is Ct. Ombir. He has deposed that on 04.09.2015, he was posted at CPCR as a constable and on that day, his duty was from 8:00 pm to 8:00 am of the next morning, at channel no. 101. He further deposed that on that day, at about 12:18 AM, he received a message from mobile phone number 9910376203 informing that "Badola village jhuggiyon mei nearby murga market ek lady ko chaku maar diya". That said message was flashed in PCR as well as information was sent to concerned control room. He further deposed that the computer generated copy of PCR Form No. 1 is Ex. PW5/A. PW6 is ASI Mukesh Kumar. He has deposed that 0n 04.09.2015 he was posted at PS Mahendra Park and was working as MHC(M).
He further deposed that on that day, IO SI Devi Lal had deposited 6 pulandas in a sealed condition, out of 6, two were sealed with the seal of DLP and remaining were sealed with seal SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 9 of 79 -10- of FMT BJRM and the same were kept in Malkhana and relevant entries Ex. PW6/A (collectively) were made in the register No. 19 vide serial No. 1131.
He further deposed that on 07.09.2015, IO SI Devi Lal had again deposited one pulanda sealed with the seal of DLP. That the same was kept in Malkhana and relevant entry Ex. PW6/B was made in the register No. 19 vide serial No. 1138.
He further deposed that on 11.09.2015, IO SI Devi Lal had again deposited one pulanda sealed with the seal of DLP. The same was kept in Malkhana and relevant entry Ex.PW6/C was made in the register No. 19 vide serial No. 1146.
He further deposed that n 08.09.2015, 13 sealed pulandas along with FSL Form were sent to FSL Rohini through Ct. Pawan vide RC No. 164/21/15 Ex. PW6/D to deposit in FSL Office. That after depositing the same Ct. Pawan handed over me the acknowledgment Ex. PW6/E. PW7 is injured Mohd. Shan. He has deposed that he was working alongwith his father at Sabzi Mandi Azadpur. That in the intervening night of 03/04.09.2015, at about 12:00 night his mother Smt. Hasina and Smt. Shamim Bano, our neighbour were talking to each other outside his house and he was coming from mandi. He further deposed that accused Walim was sitting on the rehdi and on seeing to him, he came towards him and at that time accused was under the influence of liquor. He further deposed that all of sudden, accused put his hand on the SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 10 of 79 -11- upper pocket of his shirt and took out his mobile phone of Micromax Eureka by force and also robbed a sum of Rs.900/- from his same pocket. That when he tried to object him, scuffle took place between him and accused Walim. He further deposed that on seeing them, his mother Smt. Hasina came there and after her intervention, she took him towards his house, as accused took the mobile phone and Rs.900/-. He further deposed that in the meanwhile, accused took out knife from his waist and stabbed the said knife on his back 4 times. That he fell down due to stab injuries and in order to save him, his mother also laid upon me and she also sustained injuries on her hand.
He further deposed that in the meanwhile, Smt. Shamim Bano, mother of the accused came there to rescue him from the clutches of accused. He further deposed that when Smt. Shamim Bano tried to rescue him, accused Walim tried to stab 5 th time upon him with knife, but the said knife hit on the hips of his own mother Smt. Shamim Bano. That thereafter, he fell unconscious. He further deposed that his mother was raising alarm. That Smt. Shamim Bano also sustained injuries on her inner side hips. He further deposed that accused fled away from the spot and his mother took him to hospital. That when he regained my consciousness, he found himself at JPN Hospital. He further deposed that at that time, police officials were present there. That SHO was also present and police made inquiries from him and recorded his statement. He further deposed that when he SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 11 of 79 -12- regained his consciousness in the hospital, he was informed that Smt. Shamim Bano, mother of the accused succumbed to her injuries.
He further deposed that on 01.12.2015, he alongwith his mother visited the Police Post, there his mother handed over his original medical treatment record alongwith discharge slip. He further deposed that his robbed mobile was having a SIM of Airtel and its number was 8800246592, which was issued in the name of his mother. That his robbed mobile phone was of Chinese of surmaiya colour on the behind of the mobile phone YU was written and he has identified the said Chinese mobile phone of black colour having IMEI no. 911401503857086 and 911401503885111 and on the back of the mobile phone YU is printed, which was robbed by the accused Walim in the intervening night of 03/04.09.2015 as Ex. P3.
PW8 is Sh. Chander Shekhar, Nodal Officer from Bharti Airtel. He has deposed that during the investigation of the present case, on the request of Sh. Vijay Singh, DCP, North-West District, certified copies of CDR along with certificate u/s 65-B of Indian Evidence Act and CAF in respect of Mobile No. 8800246592, in the name of Hasina from the period of 03-09- 2015 to 05-09-2015 was supplied.
He further deposed that the CAF is Ex. PW8/A, ID Proof of Hasina is Ex. PW8/B, certified copy of CDR is Ex. PW8/C and certificate u/s 65 B of Indian Evidence Act to SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 12 of 79 -13- authenticate the correctness of computerized copies of CDR is Ex. PW8/D. PW9 is Ct. Manish. He has deposed that on 10.12.2015, as per the instruction of IO, he had collected one vile in sealed condition stated to be containing blood sample of accused Walim alongwith one sample seal of casualty BJRM Hospital from MHC (M), PS Mahendra Park vide RC No. 165/21/15 and deposited the same at FSL, Rohini in Chemistry Division. That thereafter, he came back to PS and handed over one copy of RC alongwith acknowledgment of FSL to MHC (M).
PW10 is Sh. Ajay Karar, Senior Scientific Officer (Chemistry), FSL Rohini. He has deposed that vide reference number 7020/SHO/Mahendra Park dated 07.12.2015, their office received one sealed parcel. The said parcel was marked to him for examination purposes. That he had checked the said parcel and seal over the said parcel was found intact and tallied as per forwarding specimen seal. That he had opened the said parcel which was found containing reddish brown colour blood volumn 2 ml approximately kept in a vaccutainer.
He further deposed that he had examined the said exhibit and upon chemical and GC-HS examination, the said exhibit was found to contain ethyl alcohol 15.4 mg/100 ml of blood. That after examination, the remnants of the exhibits were sealed with the seal of AK FSL DELHI and after examination, he had prepared report dated 31.12.2015 Ex.PW10/A. SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 13 of 79 -14- PW11 is Retd. ASI Dharmabir. He has deposed that on 27.01.2017, on the instruction of IO SI Devi Lal, he went to FSL Rohini from where he had collected 13 sealed pulandas sealed with the seal of FSL as well as sample seal impression as well as the FSL Report in sealed envelope. That thereafter, he returned back to PS and handed over the said sealed pulandas and sample seal to MHC (M) and also handed over the FSL result to IO SI Devi Lal.
PW12 is Sh. Rakesh. He has deposed that he had been working as safai karamchari with MCD. That in the month of September, 2015 he was on duty at Ward no. 15, Bhadola Village and his duty hours were from 7:00 am to 3:00 pm. He further deposed that though he does not remember the exact date, but on one day in the month of September 2015, he came to the place of his duty at about 7:00 am. That on that day, while performing his duty in between 7:30 - 7:45 am, he was cleaning the drain situated at near D-1, Bhadola Village. That the said drain was having 2 feet of width and 3 feet deep and he was cleaning the said drain with the help of iron pachangra i.e. iron instrument having 5 kneels / edges. He further deposed that while cleaning the said drain, one knife struck in between the edges of the said iron instrument and when he saw the said knife, the public persons started gathering there and someone had informed the police. He further deposed that in the meantime, police officials came there and upon the arrival of police officials, he SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 14 of 79 -15- had handed over the said knife to the police. That police had also prepared the sketch of the said knife Ex. PW12/A. That thereafter, police had kept the said knife in a polythene and the said polythene was kept in a cloth pulanda and said pulanda was sealed and then seized vide seizure memo Ex.PW3/C. He further deposed that police had also made inquiries from him in this regard. He has identified the said knife Ex. P2.
PW13 is Mustkeen. He has deposed that on 03.09.2015, at about 11:00/11:30 pm, while he was present at his house, he received a phone call of his brother Mukim and over the said phone call, he had informed about the murder of his mother Smt. Shamim Bano. That thereafter, he rushed to BJRM Hospital. He further deposed that by the time, he had reached at BJRM Hospital, his mother had already expired. That the dead of his mother was sent to the mortuary and thereafter, on 04.09.2015, he again went to the mortuary and identified the body of his mother. He further deposed that IO had recorded his statement Ex.PW13/A. That after postmortem, the body of my mother was handed over to us.
PW14 is Inspector Mahesh Kumar. He has deposed that on 02.12.2015, on the call of SI Devi Lal, he first went to PS Mahendra Park from where he alongwith SI Devi Lal went to the place of occurrence, where on the pointing out of SI Devi Lal, he took the measurements and prepared rough notes.
He further deposed that on the basis of measurements SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 15 of 79 -16- and rough notes, he prepared scaled site plan Ex. PW14/A on 03.12.2015 and that thereafter, he destroyed the rough notes and measurements.
PW15 is Sh. Parshuram Singh, Assistant Director (Physics), FSL, Rohini, Delhi. He has deposed that vide letter no. 7019/SHO MAHENDRA PARK, dated 07.12.2015, their lab i.e. FSL Rohini, Delhi received two sealed envelopes in connection with case FIR No. 765/15. That the said parcels were marked to him and he had checked the said parcels and found the seals over the said parcels were intact and tallied as per the forwarding authorities letter.
He further deposed that he had opened the said parcels, out of which one parcel was found containing a metallic knife and second parcel was found containing a knife cover. He further deposed that the said parcels were already marked as Ex. 5 and Ex. 14. That he had examined the said exhibits and found that the metallic knife Ex. 5 and knife cover Ex. 14 that the logo on Ex.5 and logo on Ex. 14 were similar, the make mentioned on both the exhibits were also similar. That on putting the knife in the said cover, the cover was properly accommodating the blade of the knife. That the piece of band on the cover was also corresponding to the depression design on the handle of the knife.
He further deposed that upon examination, he had prepared FSL report dated 19.09.2016 Ex. PW15/A. That after SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 16 of 79 -17- the examination, the said exhibits were resealed with the seal of PS FSL DELHI.
PW16 is SI Jaivir. He has deposed that in the intervening night of 03/04.09.2015, DD No. 2PP was marked to SI Devi Lal and accordingly, SI Devi Lal alongwith Ct. Pawan left for the place of occurrence. That in the meantime, vide DD No. 3PP, he alongwith Ct. Pradeep and Ct. Praveen left for the place of occurrence i.e. at in front of Masjid wali gali, Bhadola jhuggis, Delhi, where they met SI Devi Lal and Ct. Pawan.
He further deposed that SI Devi Lal alongwith Ct. Pradeep left for BJRM Hospital, while they remained at the spot. That at about 4:00 am, SI Devi Lal returned back to the spot and informed them that the dead body of Shamim Bano had been shifted in the mortuary of BJRM Hospital and Ct. Pradeep had been appointed in the said mortuary. That in the meantime, injured Smt. Hasina W/o Yamin had reached at the spot after she being discharged from the hospital. That SI Devi Lal had called the crime team and crime team officials had inspected the place of occurrence and crime team photographer took the photographs of the place of occurrence.
He further deposed that SI Devi Lal had lifted exhibits from the spot and after sealing the said exhibits, seized five pulandas through seizure memo. That SI Devi Lal had recorded the statement of Smt. Hasina and prepared rukka and got the FIR SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 17 of 79 -18- registered through Ct. Pawan. SI Devi Lal had also prepared rough site plan.
He further deposed that thereafter, Smt. Hasina had produced her blood stained clothes which she was wearing at the time of occurrence. That IO SI Devi Lal had seized the said clothes and after sealing seized the same through seizure memo. That thereafter, on the same day, i.e. at about 11:00 am, SI Devi Lal had prepared inquest papers and he had accompanied him to BJRM Hospital mortuary and accordingly, the postmortem on the body of deceased was conducted by the concerned autopsy surgeon. He further deposed that SI Devi Lal had also recorded the statements of the relatives of the deceased and instructed him for handing over the body of the deceased to the said relatives. That after postmortem, he had handed over the body of deceased to the relatives vide receipt Ex. PW16/A. He further deposed that after postmortem, the autopsy surgeon had handed over him one sealed pulanda sealed with the seal of FMT BJRM HOSPITAL stated to be containing the clothes of deceased Shamim Bano and one sealed envelope containing blood sample of deceased as well as sample seal and he had produced the said exhibits to IO SI Devi Lal, who seized the same vide seizure memo Ex.PW16/B. PW17 is Sh. Alim Qureshi. He has deposed that on 03.09.2015, his mother Smt. Shamim Bano had been murdered and she was taken to BJRM Hospital. That during treatment, she SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 18 of 79 -19- had expired in the said hospital and the body of his mother was shifted to the mortuary of BJRM Hospital. He further deposed that on 04.09.2015, he had visited the mortuary of BJRM Hospital and in the said mortuary, he had identified the body of Smt. Shamim Bano being his mother and IO SI Devi Lal had recorded his statement Ex. PW17/A. That after postmortem, the body of his mother was handed over to us vide receipt Ex. PW16/A. PW18 is Ct. Pawan Kumar. He has deposed that in the intervening night of 03/04.09.2015, DD No. 2PP was marked to SI Devi Lal and accordingly, he alongwith SI Devi Lal left for the place of occurrence. That in the meantime, ASI Jaivir alongwith Ct. Pradeep and Ct. Praveen had also visited the place of occurrence i.e. at in front of Masjid wali gali, Bhadola jhuggis, Delhi, where they met them.
He further deposed that SI Devi Lal alongwith him left for BJRM Hospital, while the other police officials remained at the spot. That in the said hospital, SI Devi Lal had collected the MLC of Smt. Shamim Bano. That upon the instruction of SI Devi Lal, he had deposited the body of Smt. Shamim Bano in the mortuary of BJRM Hospital. That SI Devi Lal had called Ct. Pradeep in the said mortuary and Ct. Pradeep was appointed in the said mortuary.
He further deposed that at about 4:00 am, he alongwith SI Devi Lal returned back to the spot. That in the meantime, injured Smt. Hasina W/o Yamin had reached at the spot after she SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 19 of 79 -20- being discharged from the hospital. That SI Devi Lal had called the crime team and crime team officials had inspected the place of occurrence and crime team photographer took the photographs of the place of occurrence.
He further deposed that SI Devi Lal had lifted the exhibits from the spot and after sealing the said exhibits with the seal of DLP i.e. five pulandas seized the same through seizure memo Ex. PW18/A. That SI Devi Lal had recorded the statement of Smt. Hasina and prepared rukka and handed over the said rukka to him and he went to PS and got the FIR registered through duty officer. That thereafter, he returned back to the spot and handed over original rukka and copy of FIR to IO SI Devi Lal, who had also prepared rough site plan.
He further deposed that thereafter, Smt. Hasina had produced her blood stained clothes which she was wearing at the time of occurrence. That IO SI Devi Lal had sealed the said clothes and after sealing, seized the same vide seizure memo Ex. PW3/B. That thereafter, he alongwith IO SI Devi Lal and complainant Smt. Hasina left for the search of accused Walim and while they were present at near fruit mandi gate, there they saw accused Walim and complainant Smt. Hasina pointed out and identified towards accused Walim and they managed to apprehend accused Walim. He further deposed that IO had interrogated accused Walim and after interrogation effected his arrest vide arrest memo Ex. PW3/D and conducted his personal search vide SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 20 of 79 -21- memo Ex. PW18/B. He further deposed that accused Walim had also made disclosure statement Ex. PW3/E. He further deposed that during the search of accused, one cloth cover of knife was recovered which was found hanging at the belt of his wearing pant. That IO had prepared the sketch Ex. PW3/G of the said cover. That thereafter, IO had kept the said cover in a cloth pulanda and said pulanda was sealed with the seal of DLP and was seized vide seizure memo Ex. PW3/H. That from the personal search of accused Walim, one mobile phone Chinese black colour alongwith SIM was recovered. That accused Walim had disclosed that he had taken the said mobile from the possession of Shan after stabbing him with knife in the intervening night of 03/04.09.2015. That IO had kept the said mobile instrument in a cloth piece and prepared pulanda and the said pulanda was sealed with the seal of DLP and was seized vide seizure memo Ex. PW18/C. He further deposed that thereafter, accused Walim led them to his jhuggi no. D-28, Sarai Peepalthala and inside the said jhuggi, he had taken off his wearing blood stained clothes i.e. one shirt of yellow colour, one baniyan of black colour and one jeans blue colour pants with belt. That IO had kept the said clothes in a cloth pulanda and the said pulanda was sealed with the seal of DLP and was seized vide seizure memo Ex. PW18/D. He further deposed that thereafter, accused Walim led them to jhuggis near D1 Block and pointed out the place from where he had allegedly thrown the weapon of offence SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 21 of 79 -22- i.e. knife, but despite efforts, said knife could not be recovered. That IO had recorded his statement in this regard and deposited the case property in the malkhana.
He further deposed that during investigation, IO had obtained one day PC remand of accused Walim. That during PC on 05.09.2015, accused Walim was again interrogated and again led them to jhuggis D-1 Bhadola Block and pointed out the place from where he had allegedly thrown the said knife, but despite efforts, the said knife could not be recovered. That IO had also recorded the supplementary disclosure statement Ex. PW18/E of accused Walim and after PC, accused Walim was sent to JC.
That thereafter, on 07.09.2015, he had joined the investigation of the present case. That on that day, he had accompanied the IO to JPN Hospital, where injured Mohd. Shan was under treatment. That on that day, Mohd. Shan was declared fit for statement and IO had recorded his statement. That mother of injured Shan, Smt. Hasina had also produced one half pant of black colour with naara and IO had kept the said half pant in a cloth pulanda and the said pulanda was sealed with the seal of DLP and was seized vide seizure memo Ex. PW3/F. That thereafter, on 11.09.2015, he had again joined the investigation of the present case. That on that day, Smt. Hasina made a call to IO and accordingly he had accompanied IO to jhuggi D-1 Block, near Sarai Peepalthala, Bhadola Village, where they met Sh. Rakesh i.e. employee of MCD Civil Line Zone and Sh. Rakesh SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 22 of 79 -23- had produced one knife and stated to us that while he was clearing the drain, the said knife was entangled in his khurpa /kolchi.
He further deposed that IO had prepared the sketch Ex. PW12/A of the said knife. That IO had also measured the said knife. IO had kept the said knife in a cloth pulanda and the said pulanda was sealed with the seal of DLP and was seized vide seizure memo Ex. PW3/C. That IO had also recorded the statement of Smt. Hasina, statement of Sh. Rakesh as well as his statement. That thereafter, IO had deposited the case property in malkhana. He further deposed that thereafter, on 08.12.2015, he had collected the exhibits from MHC (M) vide RC Nos. 162/21/15, 163/21/15, 164/21/15 and deposited the same in Bio Division and Physics Division at FSL, Rohini. That the exhibits in Chemistry Division could not be deposited due to some objection and thereafter, he had returned back to PS and handed over the acknowledgment as well as the exhibits meant for Chemistry Division to MHC (M). He further deposed that so far as the said pulandas remained with him, the same were not tampered in any manner.
He has identified the case property i.e. one dirty chunni, one dirty ladies suit and one dirty salwar as Ex. P1 being produced by PW Hasina to be worn by her at the time of occurrence and seized during the investigation of this case. He has also identified one black colour dirty half pant as Ex. P4 SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 23 of 79 -24- being produced by PW Hasina belonging to Mohd. Shan, which Shan was wearing at the time of occurrence and seized during the investigation of this case.
He has also identified black colour cover of knife as Ex. P5 being recovered from the possession of accused and seized during the investigation of this case. He has also identified one knife as Ex. P2 being recovered from the drain while PW Rakesh was cleaning the said drain and seized during the investigation of this case. He has also identified one dirty shirt, one dirty baniyan and one dirty jeans pant alongwith belt as Ex. P18/1 being recovered at the instance of accused Walim and seized during the investigation of this case.
PW19 is Ms. Seema Nain, Assistant Director (Biology), FSL, Rohini. She has deposed that vide letter no. 7019/SHO MAHENDRA PARK dated 07.12.2015, their lab i.e. FSL Rohini, Delhi received 13 sealed parcels in connection with case FIR No. 765/15. That the said parcels were marked to her and she had checked the said parcels and found the seals over the said parcels were intact and tallied as per the forwarding authorities letter.
She further deposed that out of the 13 parcels, 12 were sealed cloth parcels and one was sealed paper envelope. She had opened the said parcels and material contained in them were marked as Ex. 1 to Ex. 14. That upon biological examination, blood was detected on Ex. 1a, 1b, 1c, 2, 3a, 3b, 3c, 4a to 4d, 5, 6, SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 24 of 79 -25- 7, 8A, 8B. 9A, 9B & 10. That upon DNA examination performed on the source of exhibits i.e. Ex. 1a, 1b and 1c, Ex. 2, 3a, 3b, 3c, 4a, 4b, 4c, 6, 7, 8A, 8B, 9A, 9B was sufficient to conclude that DNA Profile generated from the source of Ex. 7 was similar with the DNA Profile generated from the source of Ex. 1a, 1b, 1c, 3b, 4a, 4b, 4c, 8A, 8B, 9A and 9B. She further deposed that further DNA Profile generated from the source of Ex. 6 i.e. blood in gauze of accused Walim was also found similar with the DNA Profile generated from the source of Ex. 3c i.e. salwar of injured Hasina. That upon examination, she had prepared FSL report dated 20.01.2017 Ex. PW19/A and after examination, the remnants of the exhibits were sealed with the seal of S.Nn FSL DELHI, however, parcel no. 5 and 14 were forwarded to Physics Division and report regarding query no. 9 and 10 was required to be sought from the Physics Division.
PW20 is Dr. Mukesh Mandal, CMO, BJRM Hospital. He has deposed that on 04.09.2015, I was posted as CMO, BJRM Hospital and on that day, at about 12:30 am, patient Shamim Bano was brought to hospital by her son with the alleged history of physical assault. He further deposed that she was examined by him vide MLC No. 104206 Ex. PW20/A is in his handwriting. That after examination, she was referred to SR Surgery for further management.
On the same day, at about 00:44 am, patient Mohd. Shan was brought to hospital by PCR with the alleged history of SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 25 of 79 -26- physical assault. He was examined by me vide MLC No. 104208 which is in his handwriting and is now exhibited as Ex. PW20/B bears my signature at point A. After examination, she was referred to SR Surgery for further management.
He further deposed that on the same day, at about 03:52 am, patient Hasina was brought to hospital by PCR with the alleged history of physical assault. He further deposed that she was examined by him vide MLC No. 103567 Ex. PW20/C, which is in hhis handwriting. That after examination and treatment, she was discharged.
PW21 is Dr.R.S. Mishra, CMO, BJRM Hospital. He has deposed that on 23.11.2015 he had received a request from the IO regarding subsequent opinion on the MLC of Mohd. Shan and MLC of Hasina with respect to their injuries whether possible with the recovered weapon or not. That alongwith the request, he had received the two MLCs of the abovesaid injured persons and one sealed knife. He further deposed that after examination, he gave his opinion i.e. injuries no. 2 and 3 in MLC of Mohd. Shan were possible with the recovered weapon of offence and that his detailed report in this regard is Ex. PW21/A. He further deposed that he had also prepared the sketch Ex. PW21/B of the weapon of offence supplied to him by the IO i.e. knife. That the print out of photograph Ex. PW21/C taken by him from his mobile phone of the said knife.
SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 26 of 79 -27- PW22 is Dr. Anshul Saxena, Assistant Professor, Department of Forensic Medicine, Sharda Hospital, Greater Noida, UP. He has deposed that on 08.09.2015, he was posted as SR at Department of Forensic Medicine, BJRM Hospital and on that day, he conducted postmortem examination on the dead body of one Shamim Bano and his report in this regard is Ex. PW22/A (running into two pages). He further deposed that three external injuries were found on the dead body and he gave opinion that the deceased died to due hemorrhage secondary to injury to the blood vessels of the left forearm by sharp cutting / stabbing instrument and that the injury no. 2 was sufficient to cause death in ordinary course of nature.
He further deposed that on 16.11.2015, he received an application from the IO regarding opinion on weapon of offence in the PM report Ex. PW22/A and alongwith the application, copy of PM report, MLC of deceased and the alleged weapon of offence i.e. knife were supplied to him. That his report in this regard is Ex. PW22/B. He further deposed that the print out of photograph taken by him from my mobile phone of the said knife is Ex. PW22/C. PW23 is Ct. Pradeep Kumar. He has deposed that in the intervening night of 03/04.09.2015, he was posted at PP N. S. Mandi, PS Mahendra Park and on that night, DD No. 2PP was marked to SI Devi Lal. That he alongwith ASI Jaivir reached at the place of occurrence i.e. at in front of Masjid wali gali, SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 27 of 79 -28- Bhadola jhuggis, Delhi, where SI Devi Lal and Ct. Pawan were present at the spot. That in the meantime, Ct. Praveen also reached there. He further deposed that he alongwith SI Devi Lal left for BJRM Hospital, while the other police officials remained at the spot. That in the said hospital, SI Devi Lal had collected the MLC of Smt. Shamim Bano. That upon the instruction of SI Devi Lal, he took the dead body of Smt. Shamim Bano in the mortuary of BJRM Hospital and deposited the same in the mortuary.
He further deposed that at about 11:00-12:00 noon, on 04.09.2015, ASI Jaibir reached at the mortuary with relatives of the deceased. That SI Devi Lal also reached at the mortuary, where the dead body was identified by the relatives of the deceased. That SI Devi Lal prepared the inquest documents. That trhe postmortem was conducted on the dead body and after postmortem, the dead body was handed over to the relatives of deceased. That after the postmortem, the doctor handed over the exhibits which were seized by SI Devi Lal vide seizure memo Ex. PW16/B. He further deposed that on the instruction of IO SI Devi Lal the accused Walim was taken to the casualty, where he was medically examined. That the blood sample in gauze piece duly sealed, sample in red vial with sample seal were handed over and seized vide seizure memo Ex. PW23/A. PW24 is Dr. Sushanto Neogi, Professor (Surgery) MAM College, Lok Nayak Hospital. He has deposed on behalf SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 28 of 79 -29- of Dr. Manoj, SR (Surgery) and Dr. Arihant, Postgraduate student of Lok Nayak Hospital. He deposed that Dr. Manoj and Dr. Arihant have left the services of the hospital and he has identified the handwriting and signatures of Dr. Manoj and Dr. Arihant, as he has seen them writing and signing during official work.
He further deposed that Dr. Manoj prepared the discharge slip CR No.379626 Ex. PW24/A of Mohd. Shan, Add. Bhadola, Delhi, 20 years male, date of admission 04.09.2015 and discharge on 08.09.2015 with the alleged history of stab over back and right hand and right knee by known person near Adarsh Nagar, Bhadola, at 12:00 am. That the CR No.379626 is bearing the signature of Dr. Manoj at point A and at point B bears the signatures of Dr. Arihant.
He further deposed that Dr. Manoj gave opinion that the patient Mohd. Shan is fit for statement on 07.09.2015. That the noting of Dr. Manoj is encircled with red ink at point X on Ex. PW20/B i.e. MLC of Mohd. Shan, which bears the signatures of Dr. Manoj at point P. PW25 is HC Sachin Kumar. He has deposed that in the intervening night of 3-4.09.2015, he was posted at PCR van C-46 being Incharge with Ct. Sanjeev and HC Rajinder. That on 04.09.2015 at 00:20 AM a call was received from control room that a lady had been stabbed with knife near Murga Market, Bhadola Village jhuggies. That on receipt of this information, he along with my staff reached at the spot where they found one SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 29 of 79 -30- female Shamima Bano, w/o. Islamuddin was found in an injured condition and bleeding from legs and her clothes were stained with blood. That she was seriously injured and unconscious. That at the spot they met Nisha and Mukim, relatives of Shamima Bano and both of them informed that Walim had stabbed Shamima Bano.
He further deposed that he with the help of his staff and above named relatives removed the said female in PCR van to BJRM Hospital. That Nisha and Mukim accompanied them in PCR van to BJRM Hospital and in the BJRM Hospital, they met duty Ct. Ajeet, no. 2156/NW, who accompanied them inside the hospital and they admitted Shamima Bano in the hospital and accordingly informed the control room that injured Shamima Bano had been stabbed by Walim and they had admitted her in the BJRM Hospital.
He further deposed that he mentioned the call and other facts in the call book. That the copies of the call book handed over to the concerned police officials of PS Mahendra Park and the photocopy of the call book Ex. PW25/A. PW26 is HC Sanjeev Kumar. He has deposed that in the intervening night of 3-4.09.2015, he was posted at PCR van C-46 being gunman with Incharge HC Sachin and HC Rajinder. That on 04.09.2015 at 00:20 AM, a call was received from control room that a lady had been stabbed with knife near Murga Market, Bhadola Village jhuggies and on receipt of this information, they SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 30 of 79 -31- reached at the spot where they found one female Shamima Bano, w/o. Islamuddin in an injured condition and bleeding from legs. That the clothes of the injured were stained with blood, she was serious and unconscious. He further deposed that at the spot, they met relatives of the injured namely Nisha and Mukim, who informed them that Walim had stabbed Shamima Bano.
He further deposed that he with the help of others and above said relatives removed the said female injured in PCR van to BJRM Hospital. That the said persons Nisha and Mukim accompanied them in PCR van to BJRM Hospital and in the BJRM Hospital, they met duty Ct. Ajeet, no. 2156/NW, who accompanied them inside the hospital and they admitted the injured Shamima Bano in the hospital and also informed to the control room that injured Shamima Bano had been stabbed by Walim and they had admitted her in the BJRM Hospital.
PW27 is ASI Satya Pal Singh. He has deposed that on 08.12.2017, he was posted at PS Mahendra Park as MHC (M) and on that day, on the direction of the SHO and the IO, he handed over 13 sealed pulandas with sample seals to Ct. Pawan for depositing the same in FSL vide RC Nos. 162/21/15, 163/21/15 and 164/21/15. That Ct. Pawan left the police station and deposited the same in FSL and handed over the copy of Road Certificate and acknowledgment on his return to the police station. That he made entry in this regard in register no. 19. That SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 31 of 79 -32- the copies of Road Certificates are Ex. PW27/A, Ex. PW27/B and Ex. PW27/C and copy of acknowledgment is Ex. PW27/D. He further deposed that on 10.12.2015, on the direction of the SHO and the IO, he handed over one sealed pulanda and sample seal to Ct. Manish for depositing the same in FSL vide RC No. 165/21/15. That Ct. Manish left the police station and deposited the same in FSL. That Ct. Manish handed over the copy of Road Certificate and acknowledgment on his return to the police station and he made entry in this regard in register no. 19. That the copy of Road Certificate is Ex. PW27/E and copy of acknowledgment is Ex. PW27/F. He further deposed that on 14.01.2016, he received from HC Satpal FSL result and sealed envelope, which was deposited in the malkhana. That the FSL result was handed over to the IO for depositing the same in the court and he made entry in this regard in register no. 19.
PW28 is Dr. Neeraj Chaudhary. He has deposed that Dr. Atul Jain has left the services of the hospital and he identified the handwriting and signatures of Dr. Atul Jain, as he have seen him writing and signing during official work. He further deposed that on 04.09.2015, the patient Mohd. Shan, S/o Mohd. Yasin was referred to SR Surgery by doctor on casualty duty. That the patient was examined by Dr. Atul Jain, SR (Surgery), who opined the nature of injuries as dangerous. That the noting Ex. PW28/A of Dr. Atul Jain is on the back of the MLC and bearing the SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 32 of 79 -33- signature of Dr. Atul Jain at point B. He further deposed that Dr. Atul Jain had also encircled nature of injury as dangerous on the MLC by signing at point B. He has also been examined as PW30. He has deposed that on 04.09.2015 patient Hasina was brought with the alleged history of physical assault. He further deposed that Dr.Amit (JR) examined the patient and prepared the MLC Ex.PW20/C. He has identified the hand writing and signatures of Dr.Amit PW 29 is SI Devi Lal, who is the IO of the case. He has deposed on the lines of investigation conducted by him in the present case. He had prepared the inquest papers i.e. Form 23.35 Ex.PW29/A, application Ex.PW29/B for preserving the dead body of Shamim Bano in the mortuary through Ct.Pradeep. He had made his endorsement Ex.PW29/C on the statement of Smt.Hasina. He had also prepared the site plan Ex.PW29/D. He had also prepared the pointing out memo Ex.PW29/E of the scene of crime. He further deposed that accused Walim was medically examined at BJRM Hospital vide MLC Ex.PW29/F. He had further deposed that accused made supplementary disclosure statement and led them to the jhuggi of D-1 Bhadola Block and pointed out the place where he had thrown the knife but despite efforts the same could not be recovered and he (PW29) prepared memo Ex.PW29/G in this regard. He had also identified the case property.
SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 33 of 79 -34- STATEMENT OF ACCUSED UNDER SECTION 294 Cr.P.C
4. Vide a separate statement under Section 294 Cr.P.C. recorded on 18.11.2022, accused admitted the following documents:
1 Crime Team report dated 04.09.2015 Ex.P-1 2 Ten photographs with CD of crime scene Ex.P-2 collectively STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
5. After closure of PE, the statement of the accused person Walim was recorded on 12.07.2023 wherein he stated that he had not robbed any mobile phone of PW3. That PW3 alongwith his family members concocted false story only in order to falsely implicate him in the present case. That the crime scene was manipulated by the crime team members at the instance of concerned police officers. That the complainant made the statement at the instance of police officials only in order to falsely implicate him in the present case and in order to save herself and her son. That the paper works were prepared by the police officials in consonance with prosecution story. That the spot was manipulated and the same was prepared by the concerned police officers to suit their case. That he was very much at the spot where his mother was lying. That he was sitting with his mother when the police reached there. That he lifted his mother to remove her to the hospital in a vehicle, however, after shifting her SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 34 of 79 -35- in a vehicle, police officers apprehended him and thereafter falsely implicate him in the present case in connivance with the complainant and her family members. That during his police custody, the concerned police officials forcefully obtained his signature on certain blank and printed papers and thereafter created false and fabricated case against me. He further stated that while shifting his mother in a vehicle for hospital, his clothes were stained with blood of his mother and the same were planted by the police only in order to create false evidence against him.
He further stated that all the proceedings were conducted by the IO while sitting at PS and case property planted upon him. That he never gave any disclosure statement neither point out any place of incident. That he was never arrested at the place and manner as shown by the prosecution.
He further submitted that on the day of incident a verbal altercation took place between him and PW7, upon which his mother in order to save him entered into that altercation upon which PW3 asked PW7 to eliminate his mother and on the asking of PW3, PW7 gave knife blow to his mother. That mother of PW7 namely Smt. Haseena also gave knife blow to her son only in order to create false story and thereafter in connivance with the local police implicate him in the present case.
Accused opted to lead evidence in his defence and examined two witnesses.
SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 35 of 79 -36- DEFENCE EVIDENCE
6. DW1 is Mohd. Imran. He has deposed that on 03.09.2015 at about 11:00-12:00 mid night at the chowk of Tamatar Mandi, Shaan m/o Smt. Hasina and Walim s/o Salim were arguing with each other. Shaan started beating Walim. Mother of Walim namely Shamim came there, she intervened and said chod do chod do. Mother of Shaan namely Smt. Hasina also reached there. Hasina said to her son Shaan Maar de Maar de Walim ki maa ko, mai dekh lungi. Shaan pulled out knife and started stabbing mother of Walim. Shaan hit brick on the head of Walim. Walim ran away from there by putting hand on his head. Walim ran away from there in order to save his life. Mother of Walim namely Shamim died on the spot. The brother of Walim namely Alim also reached there. Alim made a call from a mobile phone of some person and called his brother Mustakeem to reach there. He further deposed that my mother Khairu Nisha also reached there and she took me to my house. That people of their locality made a complaint to the police by stating that accused Walim is innocent and he be released.
He further deposed that on 05.09.2015 he alongwith other public persons of our locality went to PS Mahindra Park and made a written complaint Mark PW29/DC and further requested them for the release of Walim. That police official advised them to approach the court. Thereafter he never visited PS. He further deposed that accused Walim is innocent he be released.
SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 36 of 79 -37- DW2 is HC Mohinder. He has deposed regarding DD No.39B dated 06.09.2015. He further deposed that the said DD Mark PW29/DC had been destroyed vide diary no. 19445- 19525/HAR Br/NWD dated 21.10.2019 and the copy of the said is Ex.DW2/A.
7. Thereafter, matter was fixed for final arguments.
ARGUMENTS
8. I have heard Sh. Nishant Kumar, Ld. Addl. PP for the State and Sh. Anuj Arya, Ld. LAC for accused.
9. It was argued by Ld. Addl. PP for State that the allegations levelled against the accused are of serious nature and the prosecution has proved its case vide the testimonies of the material prosecution witnesses PW3 Smt. Hasina and PW7 Md. Shan, who were the injured whose testimony is consistent, cogent and corroborate each other. That the prosecution has been successful in proving its case beyond reasonable doubt.
It was further argued that all the police officials have clearly proved the chain and the manner of investigation and merely because the witnesses are police officials their testimony cannot be disbelieved.
10. On the other hand, Ld. LAC Mr. Anuj Arya has SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 37 of 79 -38- argued that accused has been falsely implicated. That there are material contradictions in the testimony of the prosecution witnesses regarding the manner of the alleged crime. That injuries if any are self inflicted and the prosecution has failed to prove the case beyond reasonable doubt. It was further argued that the paper works were prepared by the police officials in consonance with prosecution story. That the spot was manipulated and the same was prepared by the concerned police officers to suit their case. that all the proceedings were conducted by the IO while sitting at PS and case property planted upon him. That accused never gave any disclosure statement neither point out any place of incident. That accused was never arrested at the place and manner as shown by the prosecution. Accordingly, accused deserve acquittal.
11. I have heard the arguments at length and perused the entire record.
FINDINGS
12. The accused Walim had been charged for the commission of offence punishable under Section 324/307/392/ 302 IPC.
13. The relevant Sections are reproduced as under for ready reference:
SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 38 of 79 -39- SECTION 324 IPC "Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
SECTION 307 IPC "Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts.--2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.] SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 39 of 79 -40- SECTION 392 IPC "Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten 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."
SECTION 302 IPC "302. Punishment for murder.--
Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine."
PRESUMPTION OF INNOCENCE
14. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the European Convention for the Protection of Human Rights in Article 6 Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.
Presumption of Innocence is a re-statement of the SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 40 of 79 -41- rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........
Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
15. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.
Brief case of the prosecution is that on the intervening night of 3/4.09.2015, the complainant Ms.Hasina was talking to her neighbour Ms.Shamim Bano (since deceased)/ mother of the accused while the accused Walim who was sitting at some distance, on seeing the son of Ms.Hasina, Md. Shan, forcibly took away his phone and on this Ms.Hasina tried to take SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 41 of 79 -42- away her son towards her house when the accused in a highly intoxicated state started abusing her son and saying "isse abhi uppar pahucha deta hu" and suddenly took out a knife and gave multiple knife blows on the person of Md. Shan. That when Ms.Hasina in order to save her son tried to stop the accused, she caught the knife blade with both her hands and also got injured because of the knife blow. In the meanwhile mother of accused Walim, Ms.Shamim Bano in order to save Md. Shan, who had fallen down, fell on him to save him from her son accused Walim but the accused gave knife blows even to his mother, as a result of which, she received injuries and was rushed to BJRM Hospital, where she was declared brought dead. The accused gave multiple stab injuries on body of Md. Shan on vital parts including the ribs and the right side of the back and right knee as is reflected from their MLCs. The accused also gave simple injuries on the hands of Ms.Hasina, who was trying to save her son by holding the knife in her hands. In an earlier transaction, he also committed the robbery of the mobile phone of the injured Md. Shan, although without using any deadly weapon at that time and in the second transaction while causing knife injuries, inflicted knife blows on his own mother causing her death.
MATERIAL WITNESSES/INJURED
16. PW3 is Smt. Haseena. She deposed that she had noticed that her son was coming and accused Walim tried to SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 42 of 79 -43- snatch mobile phone of her son Mohd. Shan. She noticed that a quarrel took place between her son Mohd. Shan and accused Walim. She go there and caught hold her son and was coming towards her jhuggi and mobile phone remained with the accused.
She further proved that in the meanwhile, accused took out knife from the dub of his waist and stabbed with the same on the back of her son. That when he pulled out the knife after stabbing once my son and again tried to stab him, she caught hold the knife with her hands, due to which her fingers were cut due to the knife injury. That in the meanwhile her son had fallen on the ground. Thereafter, accused again repeatedly stabbed her son Mohd. Shan, twice on his back, right hand and right leg. She further proved that accused again wanted to stab her son Mohd. Shan, however, his mother Shamim Bano came in between as a shield in order to save her son Mohd. Shan. She further proved that thereafter, she (mother of accused) suffered a knife blow on her thigh with stab blow given by the accused given with full force. Shamim Bano also fell down and the accused Walim ran away.
PW7 is Mohd. Shan, son of PW3. He stated that that all of sudden, accused put his hand on the upper pocket of his shirt and took out his mobile phone of Micromax Eureka by force and also robbed a sum of Rs.900/- from his same pocket. When he tried to object him, scuffle took place between him and accused Walim. He further proved that on seeing them, his mother SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 43 of 79 -44- Smt. Hasina came there and after her intervention, she took him towards his house, as accused took the mobile phone and Rs.900/-. He further proved that in the meanwhile, accused took out knife from his waist and stabbed the said knife on his back 4 times. He fell down due to stab injuries and in order to save him, his mother also laid upon me and she also sustained injuries on her hand.
In the meanwhile, Smt. Shamim Bano, mother of the accused came there to rescue him from the clutches of accused. He further proved that when Smt. Shamim Bano tried to rescue him, accused Walim tried to stab 5th time upon him with knife, but the said knife hit on the hips of his own mother Smt. Shamim Bano.
From the testimony of PW7 it is clearly proved that accused put his hand on the upper pocket of his shirt and forcefully took out the mobile phone of Mircromax Eureka make and also robbed a sum of Rs.900/-. He further proved that scuffle took place between them and his mother Hasina/PW3 intervened and took him towards the house when the accused suddenly came and took out a knife from his waist and stabbed the same four times upon him due to which he fell down and in order to save him, even his mother sustained injuries. In the meantime, Shamim Bano, mother of accused came to recuse PW7 from the clutches of accused but the accused did stop and continued to give a stab blow which hit in the hips of his own mother.
SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 44 of 79 -45- The testimony of PW3 was duly corroborated by the testimony of PW7, who are the injured/material witnesses.
Their testimonies are also buttressed by the medical record which is self speaking of the injuries.
MLC of Md. Shan bearing no. 104208 of BJRM Hospital reflects that he had sustained multiple stab injuries i.e.:
(i) Stab injury 2 X 1 cm over right side below 12th rib,
(ii) Stab injury 5 X 2 cm over right side of back lateral to the spine.
(iii) Another incised wound 4 X 2 cm over lateral aspect of knee of the right side.
(iv) 6 X 2 cm deep over right hand between thumb and the index finger.
The patient was unfit for statement on 04.09.2015 owing to his multiple injuries and was only fit 03 days after i.e. on 07.09.2015. Further, the patient was referred for surgery and thereafter to a higher centre. The nature of injuries was opined to be dangerous.
MLC of Ms. Hasina bearing no. 103567 of BJRM Hospital reflects that she had sustained injuries as follows:
(i) Chronic lacerated wound 3 X 0.5 cm over right ring finger.
(ii) Chronic lacerated wound 2 X 0.5 cm over left ring finger.
(iii) Chronic lacerated wound over left hand.
(iv) Chronic lacerated wound over right hand between thumb and index finger.
SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 45 of 79 -46-
(v) Abrasion over left forearm.
The injuries were opined to be simple in nature. At this stage, it imperative to take note of the law related to the testimony of an injured, who is a witness. Reliance is placed upon Abdul Sayed Vs. State of M.P. reported in 2010 AIR SCW 5701 wherein it is held as under:
"The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
In State of U.P. Vs. Naresh & Ors (2011) 4 SCC 324, it is held as under:
"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 46 of 79 -47- testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence."
The above mentioned observations are also reiterated in the latest case of Khema @ Khem Chandra Etc. Vs. State of Uttar Pradesh Criminal Appeal Nos. 1200-1202 of 2022 arising out of SLP (Criminal) Nos. 8624-8626 of 2019, by the Hon'ble Supreme Court.
The testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, in view of the duly corroborated testimonies of the injured persons supported by their respective MLCs, there is nothing to suggest that their version is concocted or that they have falsely implicated the accused. Rather, testimonies of PW3 & PW7 are consistent, cogent and probable and categorically proved the manner of commission of the crime and factum of injuries sustained.
17. Moving forward, I shall now delve upon the testimony of other material witnesses.
OTHER MATERIAL WITNESSES
18. PW12 Rakesh has proved that he had been working SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 47 of 79 -48- as safai karamchari with MCD. That in the month of September, 2015 he was on duty at Ward no. 15, Bhadola Village and his duty hours were from 7:00 am to 3:00 pm. He further deposed that though he does not remember the exact date, but on one day in the month of September 2015, he came to the place of his duty at about 7:00 am. That on that day, while performing his duty in between 7:30 - 7:45 am, he was cleaning the drain situated at near D-1, Bhadola Village. That while cleaning the said drain, one knife struck in between the edges of the said iron instrument and when he saw the said knife, the public persons started gathering there and someone had informed the police. Sketch of the said knife Ex. PW12/A. Knife was sealed and then seized vide seizure memo Ex.PW3/C. He has identified the said knife Ex. P2.
It was argued by Ld. LAC for the accused that the cover of the knife allegedly shown recovered from the accused has been falsely planted. However, PW12 is an independent witness and working in a government office i.e. with the MCD and there is no reason to disbelieve his testimony.
It is the case of the prosecution that the cover of the knife was recovered hanging from a belt of his wearing pant during the search of the accused. The seizure memo has been proved as Ex.PW3/H and the sketch of the same has bee proved as Ex. PW3/G. Thus, it is not a case where the said cover was found at an open public space which could have been accessible to all rather was found from the personal possession of the SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 48 of 79 -49- accused which shows it was in his specific knowledge.
At this stage, it is imperative analyzed the law on the point of recovery.
It has been held in the landmark judgment of State (NCT of Delhi) Vs. Sunil 2001 SCC, (Cri) 248, the Hon'ble Supreme Court held that:
"when discovery is made pursuant to any facts deposed by the accused, the discovery memo prepared by the IO is necessarily attested by the independent witnesses but if no witness is present, it is difficult to lay down as a proposition that the recovery must be tainted or that or unreliable. But in such a situation, the court has to consider the report of the IO on its own merits".
In Mani Vs. State of Tamilnadu decided on 08.01.2008, the Hon'ble Supreme Court, it has been held that:
"Discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon discovery".
In the case of Naveen kumar Verma Vs. State (Govt. of NCT of Delhi) decided by Hon'ble High Court of Delhi on 03.07.2013 relying on the landmark judgment of Mohd. Jabbar Vs. State decision 21.05.2010 Crl. A. 1022/18, it has been reiterated that:
"The courts have to be cautioned and to vigilant against the non practice of the police to plaint ordinary objects on the accused persons to prove access by the accused to the place where the crime was allegedly SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 49 of 79 -50- committed".
In Prabhu Vs. State AIR 1963, Supreme Court 1113, recovery of a blood stained shirt and a dhoti as also on an axe on which human blood was detected was held to be a weak evidence as was also held in the case of Narsinghbhai Prajapati Etc. Vs. Chatrasingh & Ors. AIR 1977 Supreme Court 1753, where recovery of a blood stained shirt and a dhoti and also a dharia (weapon of offence) were held to be a weak evidence.
In the case of Surjit Singh Vs. State of Punjab AIR 1994 Supreme Court 110, the watch of the deceased and a dagger stained with the blood of the same group as that of the deceased was held to be weak evidence.
However, in the present case, from the testimony of PW12, the prosecution has proved that the knife had been recovered from the drain situated near D-1, Bhadola Village and the testimony of the said witness remains unrebutted.
As regards, the cover of the knife, recovered from the possession of the accused, the prosecution has proved from the testimony of PW15 that the same matched with the knife. PW15 Asstt. Director FSL further proved his FSL report dated 19.09.2016 Ex.PW15/A which reflects that the metallic knife Ex.P5, recovered and proved vide the testimony of PW12, and the knife cover Ex.P14, recovered from the accused bore the similar logo, the make mentioned on both the exhibits was also similar. He further proved that on putting the knife in the said cover, the SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 50 of 79 -51- cover properly accommodated the blade of the knife. The piece of band on the cover was also corresponding to the depression design on the handle of the knife. This further shows that the weapon of offence i.e. the knife was used by the accused and the defence taken that the injury upon PW3 and PW7 were self inflicted does not seem to be probable in the wake of the cover of the knife with similar specifications as proved by PW15 being recovered from the accused.
It is further pertinent to mention that said PW15 has not been cross examined by ld. Counsel for the accused despite due opportunity.
The cover of the knife was seized from the personal possession of the accused, which reflects that it was in his specific knowledge and was not recovered from a common place easily accessible to public at large. Thus, the arguments by ld. LAC for the accused does not have much force in the wake of the testimonies of independent witness PW12 and the Forensic evidence proved by PW15 in this regard.
19. Moving forward, another witness is PW13 Mustkeem, brother of accused. He has deposed that on 03.09.2015, at about 11:00/11:30 pm, while he was present at his house, he received a phone call of his brother Mukim and over the said phone call, he was informed about the murder of his mother Smt. Shamim Bano. That thereafter, he rushed to BJRM Hospital.
SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 51 of 79 -52- He further deposed that by the time, he had reached at BJRM Hospital, his mother had already expired. That the dead body of his mother was sent to the mortuary and thereafter, on 04.09.2015, he again went to the mortuary and identified the body of his mother. He further deposed that IO had recorded his statement Ex.PW13/A. That after postmortem, the body of my mother was handed over to us.
In his cross examination, the said witness has stated that it was not the accused (his brother) rather the injured namely Md. Shan, who had committed the murder of his mother as was informed to him. Ld. LAC for the accused had argued that this witness has falsified the case of the prosecution. However, Ld. Addl. PP for the State has rightly objected to the fact during the course of cross-examination that he was merely a hearsay witness and was not present on the spot when the incident happened. And also, being the brother of the accused is an interested witness and his testimony cannot be solely relied upon.
Further, in the cross-examination of the injured persons, no specific question has been put to the witnesses that it was PW Md. Shan who committed the murder of Ms.Shamim Bano and in order to save himself inflicted the self injuries. This defence is not only improbable but also contrary to the record i.e. MLCs which are self speaking of the multiple knife blows sustained by PW Md. Shan and the injury sustained by Ms.Hasina. The injuries in the MLC of Md. Shan were opined to SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 52 of 79 -53- be dangerous and PW Md. Shan was referred to higher centre as was unfit at that time to even give his statement. The defence is on the face of it sham, as it is highly improbable that a person would inflict so many injuries on himself that too on vital parts and only to screen himself would put his own life in danger.
MATERIAL POLICE WITNESSES
20. PW18 Ct. Pawan proved that at about 4:00 am, he alongwith SI Devi Lal returned back to the spot from BJRM Hospital. That in the meantime, injured Smt. Hasina W/o Yamin had reached at the spot after she being discharged from the hospital. That SI Devi Lal had called the crime team and crime team officials had inspected the place of occurrence and crime team photographer took the photographs of the place of occurrence.
He further proved exhibits lifted from the spot and five pulandas seized through seizure memo Ex. PW18/A. He further proved that Smt. Hasina had produced her blood stained clothes which she was wearing at the time of occurrence. IO seized the same vide seizure memo Ex. PW3/B. That thereafter, he alongwith IO SI Devi Lal and complainant Smt. Hasina left for the search of accused Walim and while they were present at near fruit mandi gate, there they saw accused Walim and complainant Smt. Hasina pointed out and identified towards accused Walim and they managed to apprehend accused SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 53 of 79 -54- Walim. He further proved that IO had interrogated accused Walim and after interrogation effected his arrest vide arrest memo Ex. PW3/D and conducted his personal search vide memo Ex. PW18/B. He further proved that accused Walim had also made disclosure statement Ex. PW3/E. He further proved that during the search of accused, one cloth cover of knife was recovered which was found hanging at the belt of his wearing pant. That IO had prepared the sketch Ex. PW3/G of the said cover. That thereafter, IO had kept the said cover in a cloth pulanda and said pulanda was sealed with the seal of DLP and was seized vide seizure memo Ex. PW3/H. That from the personal search of accused Walim, one mobile phone Chinese black colour alongwith SIM was recovered. That accused Walim had disclosed that he had taken the said mobile from the possession of Shan after stabbing him with knife in the intervening night of 03/04.09.2015. That IO had kept the said mobile instrument in a cloth piece and prepared pulanda and the said pulanda was sealed with the seal of DLP and was seized vide seizure memo Ex. PW18/C. He further proved that accused Walim led them to his jhuggi no. D-28, Sarai Peepalthala and inside the said jhuggi, he had taken off his wearing blood stained clothes i.e. one shirt of yellow colour, one baniyan of black colour and one jeans blue colour pants with belt. That IO had kept the said clothes in a cloth pulanda and the said pulanda was sealed with the seal of DLP and was seized vide seizure memo Ex.
SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 54 of 79 -55- PW18/D. He further proved that thereafter, accused Walim led them to jhuggis near D1 Block and pointed out the place from where he had allegedly thrown the weapon of offence i.e. knife, but despite efforts, said knife could not be recovered. That IO had recorded his statement in this regard and deposited the case property in the malkhana.
That IO had also recorded the supplementary disclosure statement Ex. PW18/E of accused Walim and after PC, accused Walim was sent to JC. That thereafter, on 11.09.2015, he had again joined the investigation of the present case. That on that day, Smt. Hasina made a call to IO and accordingly he had accompanied IO to jhuggi D-1 Block, near Sarai Peepalthala, Bhadola Village, where they met Sh. Rakesh i.e. employee of MCD Civil Line Zone and Sh. Rakesh had produced one knife and stated to us that while he was clearing the drain, the said knife was entangled in his khurpa /kolchi.
He further proved that IO had prepared the sketch Ex. PW12/A of the said knife. That IO had also measured the said knife. IO had kept the said knife in a cloth pulanda and the said pulanda was sealed with the seal of DLP and was seized vide seizure memo Ex. PW3/C. That IO had also recorded the statement of Smt. Hasina, statement of Sh. Rakesh as well as his statement. That thereafter, IO had deposited the case property in malkhana. He further deposed that thereafter, on 08.12.2015, he had collected the exhibits from MHC (M) vide RC Nos.
SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 55 of 79 -56- 162/21/15, 163/21/15, 164/21/15 and deposited the same in Bio Division and Physics Division at FSL, Rohini. That the exhibits in Chemistry Division could not be deposited due to some objection and thereafter, he had returned back to PS and handed over the acknowledgment as well as the exhibits meant for Chemistry Division to MHC (M). He further deposed that so far as the said pulandas remained with him, the same were not tampered in any manner.
He correctly identified the case property i.e. one dirty chunni, one dirty ladies suit and one dirty salwar as Ex. P1 being produced by PW Hasina to be worn by her at the time of occurrence and seized during the investigation of this case. He has also identified one black colour dirty half pant as Ex. P4 being produced by PW Hasina belonging to Mohd. Shan, which Shan was wearing at the time of occurrence and seized during the investigation of this case.
He has also identified black colour cover of knife as Ex. P5 being recovered from the possession of accused and seized during the investigation of this case. He has also identified one knife as Ex. P2 being recovered from the drain while PW Rakesh was cleaning the said drain and seized during the investigation of this case. He has also identified one dirty shirt, one dirty baniyan and one dirty jeans pant alongwith belt as Ex. P18/1 being recovered at the instance of accused Walim and seized during the investigation of this case.
SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 56 of 79 -57- Also, PW29 IO SI Devi Lal has deposed on the lines of investigation conducted by him in the present case. He had prepared the inquest papers i.e. Form 23.35 Ex.PW29/A, application Ex.PW29/B for preserving the dead body of Shamim Bano in the mortuary through Ct.Pradeep. He had made his endorsement Ex.PW29/C on the statement of Smt.Hasina. He had also prepared the site plan Ex.PW29/D. He had also prepared the pointing out memo Ex.PW29/E of the scene of crime. He further deposed that accused Walim was medically examined at BJRM Hospital vide MLC Ex.PW29/F. He had further deposed that accused made supplementary disclosure statement and led them to the jhuggi of D-1 Bhadola Block and pointed out the place where he had thrown the knife but despite efforts the same could not be recovered and he (PW29) prepared memo Ex.PW29/G in this regard. He had also identified the case property.
Both the witnesses proved the manner of investigation which further complete the chain of events pointing towards the guilt of the accused.
It was argued by ld. Counsel for the accused police witnesses have falsely implicated the accused.
Merely because the witnesses are police officials their testimony cannot be disbelived and for this reliance is placed on the case of Girija Prasad Vs. State of M.P. (2007) 7 SCC 625.
SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 57 of 79 -58- MEDICAL/FORENSIC EVIDENCE 21 PW19 is Ms. Seema Nain, Assistant Director (Biology), FSL, Rohini. She has deposed that vide letter no. 7019/SHO MAHENDRA PARK dated 07.12.2015, their lab i.e. FSL Rohini, Delhi received 13 sealed parcels in connection with case FIR No. 765/15. That upon biological examination, blood was detected on Ex. 1a, 1b, 1c, 2, 3a, 3b, 3c, 4a to 4d, 5, 6, 7, 8A, 8B. 9A, 9B & 10. That upon DNA examination performed on the source of exhibits i.e. Ex. 1a, 1b and 1c, Ex. 2, 3a, 3b, 3c, 4a, 4b, 4c, 6, 7, 8A, 8B, 9A, 9B was sufficient to conclude that DNA Profile generated from the source of Ex. 7 was similar with the DNA Profile generated from the source of Ex. 1a, 1b, 1c, 3b, 4a, 4b, 4c, 8A, 8B, 9A and 9B. She further deposed that further DNA Profile generated from the source of Ex. 6 i.e. blood in gauze of accused Walim was also found similar with the DNA Profile generated from the source of Ex. 3c i.e. salwar of injured Hasina. That upon examination, she had prepared FSL report dated 20.01.2017 Ex.PW19/A. From the report Ex.PW19/A, it is proved by the prosecution that the DNA profile generated from source Ex.6 i.e. blood in gauze of accused Walim was found similar with DNA profile generated from source Ex.3C i.e. salwar of injured Haseena. If going by the testimony of defence witness, the injured Haseena had self inflicted the injuries upon herself and her son to evade the process of law and the accused herein SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 58 of 79 -59- had already left the spot, then how the blood of the injured Haseena on her salwar could bear a similar DNA profile with that of the blood of accused Walim. This further proves the presence of the accused on the spot and uproots the sham defence taken.
PW20 is Dr. Mukesh Mandal, CMO, BJRM Hospital. He proved that patient Shamim Bano was brought to hospital by her son with the alleged history of physical assault. He further deposed that she was examined by him vide MLC No. 104206 Ex. PW20/A is in his handwriting. That after examination, she was referred to SR Surgery for further management. She was declared brought dead.
On the same day, at about 00:44 am, patient Mohd. Shan was brought to hospital by PCR with the alleged history of physical assault. He was examined by me vide MLC No. 104208 which is in his handwriting and is now exhibited as Ex. PW20/B bears my signature at point A. He further proved that on the same day Hasina was brought to hospital by PCR with the alleged history of physical assault. He further deposed that she was examined by him vide MLC No. 103567 Ex. PW20/C, which is in his handwriting. That after examination and treatment, she was discharged.
PW21 is Dr.R.S. Mishra, CMO, BJRM Hospital. He proved the subsequent opinion on the MLC of Mohd. Shan and MLC of Hasina with respect to their injuries. He further proved that after examination, he gave his opinion i.e. injuries no. 2 and 3 SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 59 of 79 -60- in MLC of Mohd. Shan were possible with the recovered weapon of offence and that his detailed report in this regard is Ex.PW21/A. He further proved the sketch Ex. PW21/B of the weapon of offence supplied to him by the IO i.e. knife. That the print out of photograph Ex. PW21/C taken by him from his mobile phone of the said knife.
PW22 is Dr. Anshul Saxena, Assistant Professor, Department of Forensic Medicine, Sharda Hospital, Greater Noida, UP. He has proved that on 08.09.2015 he conducted postmortem examination on the dead body of one Shamim Bano and his report in this regard is Ex. PW22/A (running into two pages). He further proved three external injuries which were found on the dead body and he gave opinion that the deceased died to due hemorrhage secondary to injury to the blood vessels of the left forearm by sharp cutting / stabbing instrument and that the injury no. 2 was sufficient to cause death in ordinary course of nature.
MLC of Md. Shan bearing no. 104208 of BJRM Hospital reflects that he had sustained multiple stab injuries i.e.:
(i) Stab injury 2 X 1 cm over right side below 12th rib,
(ii) Stab injury 5 X 2 cm over right side of back lateral to the spine.
(iii) Another incised wound 4 X 2 cm over lateral aspect of knee of the right side.
SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 60 of 79 -61-
(iv) 6 X 2 cm deep over right hand between thumb and the index finger.
The patient was unfit for statement on 04.09.2015 owing to his multiple injuries and was only fit 03 days after i.e. on 07.09.2015. Further, the patient was referred for surgery and thereafter to a higher centre. The nature of injuries was opined to be dangerous.
MLC of Ms. Hasina bearing no. 103567 of BJRM Hospital reflects that she had sustained injuries as follows:
(i) Chronic lacerated wound 3 X 0.5 cm over right ring finger.
(ii) Chronic lacerated wound 2 X 0.5 cm over left ring finger.
(iii) Chronic lacerated wound over left hand.
(iv) Chronic lacerated wound over right hand between thumb and index finger.
(v) Abrasion over left forearm.
The MLCs of the injured are self speaking reflecting multiple injuries on the vital parts of injured Md. Shan. Further in the cross-examination of the injured, no specific question has been put to the witnesses that it was PW Md. Shan in order to save himself inflicted the self injuries. This defence is not only improbable but also contrary to the record i.e. MLC which are self speaking of the multiple knife blows sustained by PW Md.
Shan. The injuries were opined to be dangerous and PW Md. Shan was referred to higher centre. The defence is on the face of it sham, as it is highly improbable that a person would inflict so SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 61 of 79 -62- many injuries on himself that too on vital parts and only to screen himself would put his own life in danger.
22. DW1 is Mohd. Imran deposed that mother of Shaan namely Smt. Hasina said to her son Shaan Maar de Maar de Walim ki maa ko, mai dekh lungi. Shaan pulled out knife and started stabbing mother of Walim. Shaan hit brick on the head of Walim. Walim ran away from there by putting hand on his head. Walim ran away from there in order to save his life. Mother of Walim namely Shamim died on the spot. The brother of Walim namely Alim also reached there.
DW1 in his cross examination by Ld. Addl. PP for the State had stated that mother of injured Shan had given one stab injury in the lower back left side of Mohd. Shan but the same gets self contradicted with the MLC Ex.PW20/B wherein multiple stab injuries are reflected and the injured had been referred to a higher centre and the nature of injury was opined to be dangerous.
Further, he said that the brother of accused namely Alim also reached the spot, however, Alim who was produced as a prosecution witness i.e. PW17 did not depose anything in consonance with DW1.
Further, as regards DW2, there was a DD No.39B dated 06.09.2015 but the original could not be proved as the same was destroyed as per rule. Even otherwise the said DD is subsequent to the incident which happened in the intervening SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 62 of 79 -63- night of 3/4.9.2015.
Thus, from the defence evidence adduced nothing could be proved which could shake the testimony of PWs or prove the sham defence of the accused which as discussed earlier is as such contradictory to records i.e. MLCs of the injured.
Thus, from the testimonies of material injured witness, PW3 and PW7, which are consistent and cogent and corroborate each other and buttressed by their respective MLCs and from the other medical and forensic evidence, as discussed above, prosecution has been successful in proving beyond reasonable doubt that accused Walim caused hurt to Ms. Hasina and with the intention of causing death of injured Md. Shan gave multiple stab injuries with dangerous sharp edged weapon on vital parts and thus, the prosecution proved its case beyond reasonable doubt qua the offences under Section 324/307 IPC.
The prosecution further proved that on the very same day in an earlier transaction, accused also committed the robbery of the mobile phone of the injured Md. Shan, although without using any deadly weapon at that time and thus, the prosecution proved its case beyond reasonable doubt qua the offences under Section 392 IPC.
23. Now moving forward to the offence under Section 302 IPC.
SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 63 of 79 -64-
24. The accused has been charged with the offence under Section 302 IPC for having committed the murder of his own mother Ms.Shamim Bano with a knife blow.
It was the case of the prosecution that while accused gave multiple knife blows on the person of Md. Shan and that when Ms.Hasina in order to save her son tried to stop the accused, she caught the knife blade with both her hands and also got injured because of the knife blow. In the meanwhile mother of accused Walim, Ms.Shamim Bano in order to save Md. Shan, who had fallen down, fell on him to save him from her son accused Walim but the accused gave knife blows even to his mother, as a result of which, she received injuries and was rushed to BJRM Hospital, where she was declared brought dead.
25. At this stage, it is imperative to note the relevant case law on the point of Section 302 IPC and the essential ingredients of intention of knowledge of the act to cause culpable homicide.
In the case titled as Mohd. Rafiq @ Kallu Vs. The State of Madhya Pradesh, Criminal Appeal No. 856/2021 decided by Hon'ble Supreme Court has held as under:
11. The question of whether in a given case, a homicide is murder, punishable under Section 302 IPC, or culpable homicide, of either description punishable under Section 304 IPC has engaged the attention of courts in this country for over one and a half century, since the enactment of the SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 64 of 79 -65- IPC; a welter of case law, on this aspect exists, including perhaps several hundred rulings by this court. The use of the term "likely" in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the accused may or may not have killed the person.
Section 300 IPC which defines murder, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death. It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes.
In the case of State of Andhra Pradesh v Rayavarapu Punnayya & Anr 1977 AIR SC 45 notes the important distinction between the two provisions, and their differing, but subtle distinction. The Hon'ble Supreme Court pertinently pointed out that:
"12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder"
its specie. All "murder" is "culpable homicide" but not vice- versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree".
This is the greatest form of culpable SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 65 of 79 -66- homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of 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 Section 304..
13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300."
13. The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, 1976 (4) SCC 382 were outlined in Pulicherla Nagaraju @ Nagaraja Reddy v State of Andhra Pradesh.
This court observed that:
"29. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 66 of 79 -67- in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under Section
302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances; (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body;(iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger;(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 67 of 79 -68- on the question of intention."
In the case of N. Ram Kumar Vs. State decided by Hon'ble Supreme Court in Crl. A. No. 2006/2023, it has been held as under:
14. The cause of death assigned in the post-
mortem report as already noticed is "died of head injury". It is a trite law that "culpable homicide" is a genus and "murder" is its species and all "murders" are "culpable homicides, but all "culpable homicides" are not "murders" as held by this court in Rampal Singh Vs. State of Uttar Pradesh (2012) 8 SCC 289. The intention of the accused must be judged not in the light of actual circumstances, but in the light of what is supposed to be the circumstances.
In the case of Basdev Vs. State of Pepsu AIR 1956 SC 488 at page 490 the following observations have been made:
"Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this has led to a certain amount of confusion."
From the aforesaid landmark judgments, it emerges SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 68 of 79 -69- that, it requires to be borne in mind that the test suggested in the aforesaid decisions and the fact that the legislature has used two different terminologies, 'intent' and 'knowledge' and separate punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death and for an act committed with a knowledge that his act is likely to cause death without intent to cause such bodily injury as is likely to cause death, it would be unsafe to treat 'intent' and 'knowledge' in equal terms.
They are not different things. Knowledge would be one of the circumstances to be taken into consideration while determining or inferring the requisite intent. Where the evidence would not disclose that there was any intention to cause death of the deceased but it was clear that the accused had knowledge that his acts were likely to cause death, the accused can be held guilty under second part of Section 304 IPC.
It is in this background that the expression used in Indian Penal Code namely "intention" and "knowledge" has to be seen as there being a thin line of distinction between these two expressions. The act to constitute murder, if in given facts and circumstances, would disclose that the ingredients of Section 300 are not satisfied and such act is one of extreme recklessness, it would not attract the said Section.
In order to bring a case within Part 3 of Section 300 SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 69 of 79 -70- IPC, it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. In other words, that the injury found to be present was the injury that was intended to be inflicted.
The Hon'ble Supreme Court in the case of Pulicherla Nagaraju @ Nagaraja Reddy vs State of Andhra Pradesh, AIR 2006 SC 3010 has further observed:
"Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality.
At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances:
(i) nature of the weapon used;
SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 70 of 79 -71-
(ii) whether the weapon was carried by the accused or was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was any premeditation;
(vii) whether there was any prior enmity or whether the deceased was a stranger;
(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.
The Hon'ble Supreme Court in the case of Pratap Singh @ Pikki v. State of Uttarakhand (2019) 7 SCC 424 had noticed that the deceased-victim had suffered total 11 injuries and had been convicted for offences under Section 304 Part-II/Section 34 IPC apart from other offences. It was noticed that some altercation took place and the groups entered into scuffle without any premeditation and convicted accused for the offence punishable under Section 304 Part-II/Section 34 IPC.
SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 71 of 79 -72- In the case of Deepak v. State of Uttar Pradesh reported in (2018) 8 SCC 228 it came to be noticed by this Court that incident had taken place in the heat of the moment and the assault was by a single sword blow in the rib cage was without any premeditation and incident had occurred at the spur of the moment, and thus inferred there was no intention to kill and as such the offence was converted from Section 302 IPC to Section 304 Part II IPC and the appellant was ordered to be released forthwith by sentencing them to the period of conviction already undergone. It was held:
"7. On consideration of the entirety of the evidence, it can safely be concluded that the occurrence took place in the heat of the moment and the assault was made without premeditation on the spur of time. The fact that the appellant may have rushed to his house across the road and returned with a sword, is not sufficient to infer an intention to kill, both because of the genesis of the occurrence and the single assault by the appellant, coupled with the duration of the entire episode for 1½ to 2 minutes. Had there been any intention to do away with the life of the deceased, nothing prevented the appellant from making a second assault to ensure his death, rather than to have run away. The intention appears more to have been to teach a lesson by the venting of ire by an irked neighbour, due to loud playing of the tape recorder. But in the nature of weapon used, the assault made in the rib-cage area, knowledge that death was likely to ensue will have to be attributed to the appellant.
The Hon'ble Supreme Court in a recent judgment in the case of Anbazhagan vs. The State represented by the SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 72 of 79 -73- Inspector of Police in Criminal Appeal No.2043 of 2023 disposed of on 20.07.2023 has defined the context of the true test to be adopted to find out the intention or knowledge of the accused in doing the act as under:
"60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC.
It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 73 of 79 -74- Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 74 of 79 -75- for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC.
But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 75 of 79 -76- ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.
(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.
(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 76 of 79 -77- circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."
26. Thus, it emerges from the case law analyzed herein above that whether the death was a murder or culpable homicide not amounting to murder can be discerned by unraveling the facts during trial.
In the facts of case in hand, there appears to be no pre meditation to cause death by of his own mother, who suddenly came in between the altercation of the accused and the injured. There was a single assault by the accused and the duration of the episode of causing death did not reflect a pre meditative or repeated act to ensure that his mother dies. Had there been an intention to do away the life of his own mother, obviously, the accused would have given repeated blows or a single blow at the vital part of the body whereas the blow had hit her on her thigh as per the case of the prosecution. Thus, it cannot be said that the accused had the intention of causing murder of his own mother in the wake of the tests and guidelines as laid by the Hon'ble Supreme Court in the aforesaid case laws, discussed above.
The accused however, can be attributed to the knowledge that the knife blow given to his mother and not SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 77 of 79 -78- stopping in the fit of rage even when his mother threw herself of Md. Shan requesting the accused to stop was a bodily injury caused with knowledge and as per the postmortem report the said injury was sufficient to have caused death. Thus, the accused committed the act covered under Section 304 (II) IPC.
CONCLUSION
27. In view of the above said discussion, from the testimonies of material injured witness, PW3 and PW7, which are consistent and cogent and corroborate each other and buttressed by their respective MLCs and from the other medical and forensic evidence, as discussed above, prosecution has been successful in proving beyond reasonable doubt that accused Walim caused hurt to Ms. Hasina and with the intention of causing death of injured Md. Shan gave multiple stab injuries with dangerous sharp edged weapon on vital parts and thus, the prosecution proved its case beyond reasonable doubt qua the offences under Section 324/307 IPC.
The prosecution further proved that on the very same day in an earlier transaction, accused also committed the robbery of the mobile phone of the injured Md. Shan, although without using any deadly weapon at that time and thus, the prosecution proved its case beyond reasonable doubt qua the offences under Section 392 IPC and caused culpable SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 78 of 79 -79- homicide not amounting to murder his mother Ms.Shamim Bano.
Thus, accused Walim is convicted for the offences punishable under Section 324/307/392/304 (II) IPC.
28. Copy of the judgment running into 79 pages be provided to the accused free of cost.
29. Matter be listed for arguments on the quantum of sentence on 02.02.2024. In the meanwhile, the convict and the Ld. Addl. PP for the State are directed to file their respective affidavits in terms of the judgment of the Hon'ble High Court of Delhi titled as Karan Vs. State of NCT of Delhi Criminal Appeal No. 352/2020 decided on 27.11.2020.
Dictated and announced in the open (Shefali Sharma) Court on 16.01.2024. Addl. Session Judge-02 (running in 79 pages) (North), Rohini Courts/Delhi SC No. 58751/16, FIR No. 765/2015, PS Mahendra Park State Vs. Walim Page No. 79 of 79