Delhi District Court
Sc No. 124/09 State vs . Ahmed Sikander & Others on 28 February, 2011
IN THE COURT OF SH. R.K.GAUBA, ADDL. SESSIONS
JUDGE 01 (CENTRAL) DELHI
SC No. 124/09 FIR No.: 15/08
ID No.:02401R0836062008 PS : Jama Masjid
U/Sec: 302/34 IPC
State
Versus
1Ahmed Sikander s/o Mohd. Yusuf
R/o H. No. 143, 2nd Floor,
Katra Gokul Shah, Jama Masjid,
Delhi.
2Mohd. Suleman s/o Mohd. Yusuf
R/o H. No. 143, 2nd Floor,
Katra Gokul Shah, Jama Masjid,
Delhi.
Instituted on : 02.06.2008.
Judgment reserved on: 24.02.2011.
Judgment pronounced on: 26.02.2011.
J U D G M E N T
SC No. 124/09 State Vs. Ahmed Sikander & others Page 1 of 44
1. Both the accused persons are real brothers to each other, they being residents of House No.143, 2nd floor, Katra Gokul Shah, Jama Masjid, Delhi. It is undisputed case that the first informant Mohd. Asim (PW1) and his brother Mohd. Nazim (hereinafter, "the deceased") have been acquainted with both accused persons and further that first informant Mohd. Asim (PW1) is resident of House No. 1018, Gali Madrasa Hussain Bux, Bazar Matia Mahal, Jama Masjid, Delhi, located quite close to the house of the accused persons, while the deceased would live separately in Usmanpur area of Delhi. The accused persons have faced this trial on the allegations that on 05.03.2008, at about 3 PM, both of them in furtherance of their common intention accosted the deceased near Gali Shyam Lal, Bazar Matia Mahal, Delhi (within the jurisdiction of Police Station Jama Masjid), wherein accused no.2 Mohd. Suleman (hereinafter, "A2") caught hold of the deceased from front while accused no.1 Ahmed Sikander (hereinafter, "A1) stabbed him from behind, twice with a knife and when the deceased turned, A1 stabbed him again on the left side front chest causing injuries. It is further alleged that when the first informant Mohd. Asim (PW1) tried to intervene, A2 also tried to inflict another injury on the person of the deceased by attacking him with SC No. 124/09 State Vs. Ahmed Sikander & others Page 2 of 44 a knife like weapon but it was evaded on account of the first informant Mohd. Asim (PW1) giving him a push.
2. The prosecution case is that Mohd. Nazim (the victim) was shifted to Lok Nayak Hospital (hereinafter, "the hospital") by the first informant (PW1) with the help and assistance of another eye witness Nazim Khan (PW16), a neighbour, in a cycle rikshaw but he succumbed to the injuries in the hospital at about 07.40 PM on the same day.
3. The case of the prosecution may be taken note of, in the chronology of events that are alleged to have happened from the perspective of the case of the investigating agency.
4. The deceased was brought, then in injured state, to the hospital at 03.25 PM on 05.03.2008 by PW1 Mohd. Asim with history of assault. He was medically examined and MLC (Ex.PW 2/A) was prepared. In the MLC, based on the examination in the emergency, three injuries were noticed, one a penetrating wound over left upper chest, the other two being clean incised wounds one over left supra scapular region and the secondr over left paraspinal region over 12th left rib. The victim at that stage was unconscious, though responding to deep painful stimuli. He was referred to surgical emergency.
SC No. 124/09 State Vs. Ahmed Sikander & others Page 3 of 44
5. Information about the MLC was conveyed to police station and was logged vide DD no.17A (Ex. PW 19/A) at 03.35 AM on 05.03.2008 and made over to HC Surender Singh (Ex. PW 18), who, accompanied by Ct. Surender Kumar (PW7), went to the hospital, where he collected MLC and was met by Mohd. Asim (PW1). He recorded the statement (Ex. PW 1/A) of Mohd. Asim (PW1).
6. As per the statement (Ex. PW 1/A) of Mohd. Asim (PW1), the deceased lived separately with his family in Usmanpur and had come to his house on 04.03.2008 to visit the ailing mother and, thereafter, had stayed back overnight. He alleged that on 05.03.2008 at about 10 AM, A1 had come to his house and had demanded Rs.3000/ to be refunded by the deceased to him stating that the said amount of money had been taken as loan by the latter at the time of Eid festival. It is stated that the deceased had responded by stating that he did not have the money with him and he would pay when he had the money available. On this, there was allegedly an exchange of hot words between the two of them, when A1 left the place after extending threats to kill the deceased.
7. It was alleged further in the statement (Ex. PW 1/A) by the first informant PW1 Mohd. Asim to PW18 HC Surender Singh that at about 3.00 PM on 05.03.2008, when he with his brother, the SC No. 124/09 State Vs. Ahmed Sikander & others Page 4 of 44 deceased was to go to Seelampur to see his brotherin law Hasin Akhtar, and had reached near gali Sham Lal, Bazar Matia Mahal, both the accused came and assaulted on the person of the deceased in the manner set out earlier and, thereafter, fled from the scene.
8. On the statement of the first informant, Mohd. Asim (PW1), HC Surender Singh (PW18) made endorsement (Ex. PW 18/A) on which basis this FIR (Ex. PW 10/B) came to be formally registered in police station at 05.05 PM on the same day.
9. As stated earlier, the victim succumbed to injuries during treatment in the hospital at 07.40 PM on 05.03.2008 itself. Information in this regard was conveyed to the police station and came to be recorded as DD No.59B (Ex. PW 10/C) at 09.00 PM on 05.03.2008. After the death, the case initially registered for offence under Section 307 IPC was converted into one under Section 302 IPC and investigated accordingly. During the course of investigation, besides recording statement of the witnesses, the I.O. inspected the scene of crime, prepared site plan and arranged for crime team to visit.
10.The crime team comprised of Inspt. Yashpal (PW12) and photographer HC A.K. Krishnan (PW4). PW12 Inspt. Yashpal gave his report (Ex. PW 12/A) which is of not of any consequence, in that he did not collect or notice any material from the scene. SC No. 124/09 State Vs. Ahmed Sikander & others Page 5 of 44 PW4 HC A.K. Krishnan, on the other hand, took photographs by exposing negatives (Ex. PW 4/B1 to B4) on the basis of which he later prepared positive photographs (Ex. PW 4/A1 to A4). These photographs are also not of any consequence, in that they only depict the ground/road surface in front of what appears to be a row of local shops. It may be mentioned here itself that, during his crossexamination, PW4 would also concede that there was no blood lying at the spot at the time of his visit as part of the crime team at 08.30 PM on 05.03.2008.
11.The dead body was shifted to mortuary of Maulana Azad Medical College (MAMC) and death report prepared. The dead body was subjected to postmortem examination in the mortuary of MAMC at 09.00 AM on 06.03.2008. The postmortem examination was carried out by Dr. Ankita Dey (PW13), whose report (Ex. PW 13/A), indicates that the deceased had suffered the following four antemortem external injuries:
(i) Incised stab wound (3X 1.5) cm, present over front of left side of chest 2 cm below clavicle and 4 cm above left nipple. The wound was acute angled on both sides directed inward medially downward cutting through skin subcutaneous tissue and intercostals muscles of second intercostal place and perforating left lung apical region, then passing from left to right side penetrating the right atrium and ventricle; SC No. 124/09 State Vs. Ahmed Sikander & others Page 6 of 44
(ii) Surgical stitched wound 18 cm long present over left side of chest 3 cm below left nipple;
(iii) Incised stab wound 3 x 1.5 cm muscle deep with acute angles present over back of left side of chest over supra scapular region. The wound was directed downwards backward and medially piercing skin subcutaneous tissues and muscles; and
(iv) Incised wound 3 x 1.5 cm muscle deep present over back of left side of abdomen with both acute angles. The wound was directed downward, backward and medially piercing skin subcutaneous tissues and muscles.
12. It may be mentioned here that injury no.2, referred to above, is actually a surgical wound and, therefore, not attributable to the assault.
13. The internal examination of the dead body revealed, inter alia, a penetrating wound over the right atrium passing through right ventricle with about 30 ml. fluid mixed with blood present inside pericardial cavity.
14. In the opinion of the autopsy doctor, all the three injuries suffered in the assault had been produced by a sharp double edged weapon. The death had occurred due to hemorrhage and shock consequent upon stab wound to chest via injury no. 1 Injury no.1 was sufficient, in his view, to cause death in ordinary course of nature. SC No. 124/09 State Vs. Ahmed Sikander & others Page 7 of 44
15. The clothes of the victim were sealed separately and blood sample preserved during autopsy. These exhibits were taken over by the I.O. during the course of investigation.
16. It is the case of the prosecution that both the accused were arrested on 06.03.2008 at 06.15 PM from Subhash Park, Jama Masjid, on the basis of secret information. It is alleged that, after their arrest, they were interrogated, in the course of which A1 made a disclosure statement which was recorded (Ex. PW 18/F) in the wake of, and pursuant to, which A1 is alleged to have led the I.O. to bushes under an Ashoka tree near high mast light close to the statue within Subhash Park and got recovered a double edged chhura (dagger) (Ex.P1) which is alleged to have been used in the crime. The chhura (Ex.P1) was seized after its sketch (Ex. PW 18/G) had been prepared and it had been sealed, to be seized formally vide memo (Ex. PW 18/H). Site plan of the place of recovery of chhura was also prepared.
17.It is the case of the prosecution that exhibits were deposited in malkhana as per entries in register no.19 (Ex. PW 11/A).
18. Sealed parcel containing Chhura (Ex. P1) was sent to Finger Print Bureau, Malviya Nagar vide road certificate (Ex. PW 11/B) on 17.03.2008 and was examined there by ASI Aman Kumar Yadav (PW9), who gave his report (Ex. PW 9/A) on the same date. No SC No. 124/09 State Vs. Ahmed Sikander & others Page 8 of 44 finger prints could be lifted from the said weapon and, therefore, this part of investigation is also of no import.
19. Exhibits were sent to Forensic Science Laboratory (FSL), Rohini, vide road certificate (Ex. PW 11/C) on 20.03.2008. The exhibits resulted in FSL reports (Ex. PW 22/C and PW 22/D). As per the said reports, the blood of human origin of group "B" was found on the dagger (Ex.P1) which is also the blood group of the deceased ascertained from the blood stains on his clothes and the blood sample preserved during the autopsy.
20.On completion of investigation, charge sheet was laid in the court of Addl. Chief Metropolitan Magistrate (ACMM) on 02.06.2008 on which cognizance was taken. The ACMM secured the presence of the accused persons before him, complied with the provision of Section 207 Cr.P.C. and then committed the case to the court of Sessions vide his order dated 09.07.2008.
21.My learned predecessor considered the question of charge. He found charge made out for offences under Section 302 IPC against A1. He also found charge made out for offence under Section 302/34 IPC against A2. Charges were, accordingly, framed on 04.02.2008 to which both accused pleaded not guilty.
22.Thereafter, the prosecution led evidence in the course of which following 22 witnesses came to be examined: SC No. 124/09 State Vs. Ahmed Sikander & others Page 9 of 44
(i) Mohd. Asim, (PW1);
(ii) Dr. Anubhav Vindal, (PW2);
(iii) Dr. Arvind Mohan, (PW3);
(iv) HC A.K. Krishanan, (PW4);
(v) Ct. Shivpal, (PW5);
(vi) HC Kailash Kumar , (PW6);
(vii) Ct. Surender, (PW7);
(viii) ASI M. Haroon, (PW8);
(ix) ASI Aman Kumar, (PW9);
(x) HC Umed Singh, (PW10);
(xi) HC Surat Singh, (PW11);
(xii) Inspt. Yashpal, (PW12);
(xiii) Dr. Ankita Dey, (PW13);
(xiv) Inspt. Devender Singh, (PW14);
(xv) Dr. Animesh Singh, (PW15);
(xvi) Nazim Khan, (PW16);
(xvii) HC Dinesh Chand, (PW17);
(xviii) HC Surender, (PW18);
(xix) HC Baljit Kaur, (PW19);
(xx) Mohd. Iqubal, (PW20);
(xxi) SI Ramzan Ali, (PW21); and (xxii) Inspt. Narender Rana, (PW22).
SC No. 124/09 State Vs. Ahmed Sikander & others Page 10 of 44
23. After the prosecution had rested its case, statements of both accused were recorded under Section 313 Cr.P.C. in which they denied the prosecution's incriminating evidence and claimed to be innocent and falsely implicated. They generally pleaded ignorance as to the police proceedings involving collection of evidence and other steps of investigation. Both of them claimed that they have been implicated by the complainant on account of enmity. They would add that the deceased was a wellknown "bad character" of the area due to which he had even been served with order of externment from the National Capital Territory of Delhi. They claimed that he was killed by someone else.
24.The accused persons sought opportunity to adduce evidence in defence. They examined two witnesses Abdul Hamid (DW1) and Sabir Sehzad Khan (DW2), essentially to prove that the offence had occurred at the hands of someone else at a place other than the one alleged by PW1.
25.I have heard Sh. R.K.Tanwar, Addl. PP for the State and Sh. Rashid Hashami, advocate for the accused persons. I have gone through the record.
26.It is appropriate to examine the evidence concerning the factum of death of Mohd. Nazim and the cause leading to it, at the outset. SC No. 124/09 State Vs. Ahmed Sikander & others Page 11 of 44
27.MLC Ex. PW 2/A has been proved by PW2, who was working as senior resident in the hospital on the relevant date and time. His evidence is supported and complemented by that of PW3, Chief Medical Officer on duty in the causality of the hospital at that stage, under whose supervision the document was prepared in the hand of Doctor Dhiraj, Junior Resident. PW2, in fact, had examined the victim in the course of his treatment in the hospital, in surgery (emergency) and declared him unfit for statement at 04.00 PM on 05.03.2008.
28.The evidence of PW3 brings out that the victim was brought to casualty of the hospital by PW1 at 03.35 PM on 05.03.2008 with history of physical assault. The witness testified that on local examination, the following three injuries were noticed:
(i) Penetrating wound point of entry is 3.2 cm, depth is around one middle finger deep over left side of upper chest with tailing going towards left shoulder;
(ii) Clean incised wound 4 x 2 cm in dimension over left supra scapular region. Depth of wound was around 8 inches, active bleeding was positive; and
(iii) Clean incised wound over left paraspinal region over left 12th rib 5 x 2 cm.
29.PW3 proved the MLC Ex. PW 2/A prepared by Dr. Dhiraj, Junior Resident under his supervision. He deposed about the victim SC No. 124/09 State Vs. Ahmed Sikander & others Page 12 of 44 having been given necessary medical care including management in surgery (emergency).
30.PW2 deposed about the treatment administered in surgery (emergency) where the patient had been received from the casualty of the hospital at 04.10 PM. He testified that on examination the victim was found unconscious with very low blood pressure. His clothes were stained with blood from the left side. On examination, he was found to have suffered three injuries, as noted in the case sheet, with heavy bleeding on the left side of the chest. The estimated blood loss at that stage is said to be in excess of one litre. PW2 stated that it was decided to operate upon the victim immediately suspecting serious injury to the left lung and accordingly he was shifted to the operation theater. Even during transit to the operation theater, the victim had lost additional two liters of blood. On arrival in Operation Theater, he developed cardiac arrest but was revived. He was operated upon under very grave circumstances and it was revealed during surgical procedure that he had suffered massive haemothorax. There was serious injury to the left lung and also to left side pulmonary vessels which were repaired (during surgery). During this procedure, the victim sustained cardiac arrest twice and was later taken to intensive care unit. His general condition remained poor and in spite of SC No. 124/09 State Vs. Ahmed Sikander & others Page 13 of 44 substantive measures, he succumbed to injuries and massive loss of blood at 07.40 PM on 05.03.2008.
31.During crossexamination of PW2, question was raised as to whether the victim could have been saved, if he had been brought to hospital "immediately after injuries". PW2 deposed that it was difficult to answer this question. This line is of no help to the defence as it is more in the realm of speculation. It may be mentioned here that as per evidence on record, the injuries had been inflicted at 03.00 PM at a place within the jurisdiction of PS Jama Masjid. The victim had been brought to the hospital by 03.35 PM, as shown by the MLC. In these circumstances, the argument that there was delay in bringing him to the hospital does not impress me.
32.The information about the victim having been brought to the hospital and MLC being recorded in his respect was conveyed to police station by PW6 HC Kailash Kumar, who was on duty in the casualty. This was recorded in police station as DD no. 17A at 03.35 PM on 05.03.2008. Copy of the DD entry has been proved vide Ex. PW 19/A by PW18 HC Baljit Kaur, who was working as duty officer in the police station at the relevant time. She proved that the copy of this DD entry was made over by her to HC Surender (PW18).
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33. PW18 and PW7 have together proved that they had gone to the hospital on receipt of copy of DD entry, where the victim was found in injured state as per aforementioned MLC. As per medical papers, the victim was unfit for statement, a fact endorsed on the MLC at the time PW18 arrived in the hospital. PW18 proved his tehrir (Ex. PW 18/A) which is in continuation of statement (Ex. PW 1/A) proved by PW1 to have been made by him to the former at that stage.
34. It is further proved by PW18, and PW7, that the rukka was taken to police station by PW7 whereupon FIR (Ex. PW 10/B) came to be registered by PW10 Umed Singh, who was the duty officer in the police station at 05.05 PM. PW10 has proved the copy of the said FIR along with is corresponding endorsement (Ex. PW 10/A) on the rukka. There is nothing in the crossexamination of any of these witnesses so as to raise any doubts as to the time at which all these steps were taken by each of them culminating in registration of FIR (Ex. PW 10/B) at 17.05 hours on 05.03.2008.
35.Since the victim was yet alive, having regard to the injuries noticed suffered by him as recorded in MLC, as indeed on what was stated at that stage by PW1 before PW18 (forming basis of the FIR), the case was initially registered for offence under Section 307/34 IPC. SC No. 124/09 State Vs. Ahmed Sikander & others Page 15 of 44 According to PW10, after the FIR had been registered, the case was handed over to SI Ramzan Ali (PW21).
36. PW21 Ramzan Ali, the second investigating officer (hereinafter the 2nd I.O.) has confirmed having taken over the investigation of this case after registration of the FIR. He proved visit to the spot with PW1 and PW18 and having prepared site plan (Ex. PW 21/A). The site plan (Ex. PW 21/A) depicts the scene where the incident had occurred, as described in the version of PW1 in the FIR. In due course of investigation, PW14 also prepared a plan drawn to scale. He has proved this scaled plan vide Ex. PW 14/A. Noticeably, in both these site plans, the incident is shown to have occurred at the corner of Gali Shyam Lal, which begins at right angle (forming a Tpoint) on the western side of what has been described as Bazar Matia Mahal. It may be noticed here that in the site plan (Ex.PW 21/A) a street (locality) known as Katra Gokul Shah starts again at right angle on the eastern side of the Bazar Matia Mahal, a little distance from the place of incident, (as described by PW1) is also depicted. This would come up for discussion a little later as there is a dispute raised as to the actual place of occurrence.
37. Be that as it may, PW21 further testified that he had called the crime team. In the absence of utility of the efforts of the crime SC No. 124/09 State Vs. Ahmed Sikander & others Page 16 of 44 team comprising PW12 and PW4 as already taken note of, the same does not call for any further discussion.
38.According to the evidence of PW21, further investigation was carried out by Inspt. Narender Singh Rana (PW22), the final investigating officer (hereinafter referred to as "the final I.O."), who was posted as Inspector Investigation in the police station on the relevant date.
39.As brought out through the evidence of PW2, the victim had died during treatment in the hospital at 07.40 PM on 05.03.2008. This was conveyed to police station and was recorded by DD no.59B at 09.00PM on the same day. Copy of the said DD entry has been proved by PW10, the then duty officer, vide Ex. PW 10/C. In view of this development, the case was converted into one involving offence under Section 302 IPC and investigation was taken over by PW22.
40. PW22, in the course of investigation carried out by him, recorded the brief facts as per document Ex. PW 22/A, proved by him. He arranged for the dead body to be subjected to post mortem examination, inter alia, on the basis of death summary (Ex. PW 15/A), prepared by Dr. Animesh Singh, who was on SC No. 124/09 State Vs. Ahmed Sikander & others Page 17 of 44 emergency duty in the surgery in the hospital at the time of death and who has proved the said document.
41.Questions were raised during the statement of PW15, in the context of death summary (Ex. PW 15/A) to the effect that the death may have occurred on account of excess bleeding during the operation. PW15 expressed his incompetence to give answer to such questions.
42.The postmortem examination was carried out on the dead body after it had been identified by PW20, who is father of the deceased vide document Ex. PW 20/A. There is no contest to the fact of identification of the person whose dead body was subjected to autopsy.
43.The autopsy was carried out by PW13 in the mortuary of MAMC. She has proved her report Ex. PW 13/A. The gist of the report, to the extent necessary, has already been taken note of in earlier part of this judgment. It was suggested to her that injury no. 2 noted in the autopsy report was not an antemortem injury. She denied the said suggestion as incorrect. Given the events in their chronology, I do not find any substance in the defence plea in this regard. The victim had been brought to hospital with three grave injuries, all caused by sharp edged instrument. The injuries SC No. 124/09 State Vs. Ahmed Sikander & others Page 18 of 44 were deep and there was excessive bleeding noticed. This required management including by surgical procedure which is shown by the evidence to have been carried out. Injury no.2 noticed in autopsy report is clearly described as surgical wound. There is no reason why the report of PW13 to this effect should be disbelieved.
44.It was then suggested to PW13, during her crossexamination, that injury no.1 was not sufficient to cause death in the ordinary course of nature, particularly the depth and the consequent internal damage caused thereby. Suggestions given by the defence to the autopsy doctor appear to be unfounded and devoid of substance.
45.PW13 conceded that the autopsy had shown that the treatment administered during surgical procedure included giving stitches to the lungs which had been ruptured. It was suggested to her that death may have occurred on account of such mode of treatment, on which she expressed her inability to give a clear answer either way.
46.From the evidence in above nature, it is clear that Mohd. Nazim son of PW20 and his brother PW1 had been stabbed three times with a double edged sharp weapons some time before he was SC No. 124/09 State Vs. Ahmed Sikander & others Page 19 of 44 brought in the injured state to the hospital at 03.25 PM on 05.03.2008, when the MLC (Ex. PW 2/A) was recorded. The evidence has shown that the hospital tried to administer treatment to him including by putting him under emergency surgical procedure. On account of deep stab injury cutting at the vital parts inside the body, in particular perforating the left lung and penetrating the right atrium and ventricle, there was excessive bleeding which could not be stopped or checked.
47.I am not impressed with the defence plea suggesting medical negligence. The injury no.1 noted in the autopsy report was so extensive that Mohd. Nazim could not be saved despite best medical aid and efforts. Given the nature of said injury no.1, I have no reasons to discard the medical opinion of the autopsy doctor that it was by itself sufficient to cause death. In the result, the death is proved to have occurred due to hemorrhage and shock consequent upon the said stab wound in the left chest region.
48.Given the nature of the injuries, particularly the one which proved fatal, there can be no manner of doubts that it was deliberately inflicted with the intention to cause death. In these circumstances, the case of death of Mohd. Nazim at 07.40 PM on SC No. 124/09 State Vs. Ahmed Sikander & others Page 20 of 44 05.03.2008 during treatment in surgical emergency of the hospital on account of injuries suffered some time around 03.00 PM on the same day clearly falls within the mischief of first clause of Section 300 IPC, thereby rendering it a case of murder.
49.The next crucial question is as to who is responsible for the murder of Mohd. Nazim and further as to whether the fatal injuries were inflicted on him. In this regard, the prosecution relied upon the evidence of the first informant, PW1 and of PW 16, who was projected as a chance witness, he being allegedly present at the scene when the deceased was assaulted.
50.PW16, however, turned hostile. He stated that he had not seen any such incident as a result of which Mohd. Nazim would have died. He was declared hostile, crossexamined by Addl. PP and confronted with statement Ex. PW 16/A attributed to be one made by him under Section 161 Cr.P.C. to the I.O. during investigation. PW16, however, would not give any ground and therefore nothing in support of the prosecution could be brought out during his testimony.
51.Thus, the prosecution relies essentially on the evidence of PW1 giving the eye witness account and the evidence collected during SC No. 124/09 State Vs. Ahmed Sikander & others Page 21 of 44 investigation, particularly the seizure of dagger (Ex. PW1) allegedly at the instance of A1.
52.PW1 deposed about the sequence of events as set out in his statement (Ex. PW 1/A) forming the basis of FIR (Ex. PW 10/B). He narrated that the deceased used to live separately in Usmanpur, Shahdara on rent and had come to visit the ailing mother on the night of 04.03.2008 at his place in house no. 1018, Gali Madrass Hussain Bax. He deposed that the deceased had taken dinner and stayed overnight and that, on the next morning, at about 10AM, A1 had come demanding refund of Rs. 3,000/ from the deceased who instead told him that he did not have such amount of money at that time and would give the same later. According to PW1, this had resulted in a quarrel between the two of them in the gallery of his house in which he had intervened by separating the deceased from A1, who had left after giving threats to kill his brother.
53.During crossexamination of PW1, it was suggested to him by the defence that the deceased had criminal background. Though PW1 would denied such description of the deceased, he would concede that the deceased had been convicted in some criminal cases with some cases even pending at that time, also admitting SC No. 124/09 State Vs. Ahmed Sikander & others Page 22 of 44 that majority of the cases were either for charge of dacoity or extortion. Such can be the background of the deceased. But then, the prosecution has also proved through PW17 that even the accused persons have been facing the criminal cases. Though the lists Ex. PW 17/A and Ex. PW 17/B submitted on record through PW17 do show involvement of these two accused persons in various police cases, it is not advisable to go by the criminal background / antecedents of the individuals involved in this case. The previous criminal record is more in the nature of evidence as to the character which will have to be kept aside at this stage as far as the accused persons are concerned. For the present, it may be observed that the admission of PW1 about the criminal antecedents of the deceased has been referred by the defence to support their speculative plea that the death had been caused by some one other then the accused on account of some past enmity.
54.Noticeably, in the entire crossexamination, the evidence of PW 1 about the episode of the morning involving quarrel between A 1 and the deceased over refusal of the latter to refund to the former the loan amount of Rs. 3,000/ followed by A1 having left the place extending threats is not disputed in any manner. Though questions were raised as to who all were present in the SC No. 124/09 State Vs. Ahmed Sikander & others Page 23 of 44 house at that time and as to whether a complaint was made against A1, the basic evidence about the conduct of A1 in the morning has not been assailed. It has come in the evidence of PW1 that there may have been other members of the family present in the house at the relevant time. But then, it is not the case of the defence that the said witnesses, if produced would have brought out facts to the contrary. Non examination of all other persons present at the scene at that stage of the incident is of no consequence. Their evidence, if at all would have been in the nature only of duplication of what has been testified by PW
1. As regards the omission on the part of PW1 to make a complaint against A1 to the police or anyone else, there is sufficient explanation given by the witness to the effect that he was in a hurry to go to Seelampur to visit his brotherinlaw Hasin Akhtar.
55.PW1 has testified that when he with the deceased was going on foot and had reached gali Shyam Lal, Bazar Matia Mahal, the deceased was accosted by two accused persons. He has narrated the sequence of events confirming what was narrated by him in the FIR in all material particulars. According to his deposition, A2 had caught hold of the deceased, while A1 had stabbed the latter on his back twice with a knife and when the deceased had SC No. 124/09 State Vs. Ahmed Sikander & others Page 24 of 44 turned towards A1, he was stabbed by A1 on the left side of his chest with knife. He also spoke about A2 also trying to stab the deceased with some sharp edged weapon. But then, it is an admitted case that the said blow never landed so as to cause any further injury, in that, according to PW1, he had pushed A2 away, thereby saving him from such further assault. PW1 further stated that A1 and A2 had then kicked his brother and had fled from the spot. He spoke about he having shifted his injured brother to the hospital in a cycle rickshaw with the help of PW 16, according to him, was present at a nearby Biryani shop at the chowk.
56.MLC (Ex. PW 2/A) was recorded under the supervision of PW3 Dr. Arvind Mohan. It confirms that the victim was brought to the hospital at 03.25 PM by PW1, thus, within a space of 25 minutes of the occurrence. It does indicate the history narrated to the examining medical officer as "physical assault around 3 PM"
Clearly, the name of the assailant was not mentioned. This was confirmed by PW3 during his crossexamination. But then, it is basic that the victim having been taken to the hospital with grave stabbing injuries by his brother, the focus of the latter was mainly on getting the medical aid. In his position, he would naturally SC No. 124/09 State Vs. Ahmed Sikander & others Page 25 of 44 wait for the police, which was bound to have a role in due course, for the assailants to be brought to book. After all, the role of the medical officer was not of investigation of the crime but to treat the injured requiring emergency medical aid.
57. In the MLC by way of addition, it seems to have been recorded that the incident occurred as "near catra gocal saha". Apparently, reference is made to the locality known as "Katra Gokul Shah" which, as mentioned earlier, is a neighbourhood in the near vicinity as depicted in the site plan (Ex. PW 21/A). PW2 confirmed that the person who had brought the victim to the hospital had indicated that the incident had occurred at "near Katra Gokul shah".
58.The defence has tried to play on this discrepancy in the prosecution case by setting up a theory that the incident had actually happened "in" Katra Gokul Shah wherein the victim was stabbed and injured by some person (other than the accused persons) facing this trial. This is what was sought to be narrated by DW1 and also implied by DW2.
59.DW1 would state that he knew Nazim, the deceased. He stated that Nazim was a criminal and on some day in March, 2008, he was standing "in Katra Gokul Shah" when some person had SC No. 124/09 State Vs. Ahmed Sikander & others Page 26 of 44 come and stabbed him after a quarrel between two of them. In similar tone, DW2 tried to introduce a negative version by stating that he was present on the corner of gali Shyam Lal on 05.03.2008 and that no incident involving murder occurred on that day at that place. The defence counsel has tried to extract a statement from him clearly suggesting that a murder had taken place, asking him as to where it had happened. His efforts not having been allowed, the witness, thereafter, spoke about news that had spread around in the area that a murder had taken place in Katra Gokul Shah. The witness stated Katra gokul Shah was a locality 400500 yards away from gali Shyam Lal.
60.The statements of both DW1 and DW2 leave no room for doubt that each of them is a close acquaintance of the accused persons. It is admitted by each of them that they did not raise any grouse about the accused persons having been falsely implicated as is the theory propounded through their version. They never offered themselves to be witness on either side nor made any complaint about false implication.
61.I am not impressed with the theory to above effect submitted by the defence. PW1 had brought his injured brother to the hospital in less than half an hour (of the incident) with grave injuries SC No. 124/09 State Vs. Ahmed Sikander & others Page 27 of 44 being inflicted on him. He may have given the description of the locality "Katra Gokul Shah" at the stage of his brother being admitted in the casualty of the hospital. But then, it has to be remembered that he was speaking to the doctors in the heat of moment. Katra Gokul Shah is hardly 400 yards away from the actual scene of incident. It appears when asked by the doctor, PW1 would have named the locality in general terms. After all, Katra Gokul Shah is a well known land mark and would be more famous and easily understood than a nondescript gali Shyam Lal. It has to be borne in mind that PW1 did not have anything to gain by mentioning the place other than one where the incident had occurred.
62.For the above mentioned reasons, the evidence adduced by the defence does not make any dent in the evidence of the prosecution brought out through PW1.
63. PW1, under crossexamination, conceded that his clothes were not blood stained, even though it was he who had carried his brother to the hospital in the injured state with extensive bleeding injuries. This circumstance, on first blush, does appear odd. But then, PW1 has given an explanation in this regard. He explained that he was a "Namazi" and, therefore, could not have allowed blood to come on to his clothes and thus had taken all the SC No. 124/09 State Vs. Ahmed Sikander & others Page 28 of 44 necessary precautions to handle his brother properly. He would explain to the extent that the victim was made to sit on the foot rest of the rickshaw, while he with other person accompanying him had occupied the seat and all the while he had placed his own legs by extending them on the seat of rickshawpuller, parallel to the head of his brother.
64. Both accused persons are Muslims by faith. PW1 is also a Muslim by faith. Same is the case of the defence counsel Sh. Rashid Hasmi, advocate. They would apparently know, what is the discipline for a "Namazi". The explanation of PW1 in this line not having been questioned by the defence or anyone else, it must be believed and accepted as sufficient explanation for he having not suffered any bloodstains on his clothes.
65.During the treatment in the hospital, the blood stained clothes of the deceased along with sample of his blood were preserved. The blood stained clothes with sample seal of the hospital were taken by the I.O. from PW6, the duty constable in the hospital, to whom it had been handed over with sample seal of the hospital vide memo (Ex. PW6/A). The said clothes included trousers (Ex. P2), shirt (Ex. P3) and vest (Ex. P4), which were identified during the trial by PW1 to be the clothes of his SC No. 124/09 State Vs. Ahmed Sikander & others Page 29 of 44 deceased brother. During postmortem examination, the blood sample of the deceased was also preserved and taken over by the I.O. along with sample seal of MAMC, vide memo (Ex. PW 21/B). The evidence of PW11, MHC(M) of the police station, on the strength of the entries in register no.19 of the malkhana has confirmed that these exhibits in sealed parcels came to be deposited in police station immediately after seizure with seals intact. These exhibits would become relevant in the context of the investigation that followed.
66.According to the evidence of PW22, on 06.03.2008 at about 04.30 PM, he received a secret information about the presence of both the accused in Netaji Subhash Park, Jama Masjid. Since they had been named in the FIR lodged on the statement of PW1 as the assailants, they were wanted by the police. PW22 proved, with corroboration provided by PW18 and PW21, that the two accused persons were arrested from the said park on the pointing out of the secret informer at a place when they were sitting on a bench near Subhash Chandra Bose's statue located inside. These witnesses proved the arrest memos Ex. PW 18/B and Ex. PW 18/D with personal search memos Ex. PW 18/C and Ex. PW 18/E respectively. The arrest memos show the place of SC No. 124/09 State Vs. Ahmed Sikander & others Page 30 of 44 arrest as Subhash Park, Jama Masjid. It was vaguely suggested to PW22 during his crossexamination that the accused were not arrested from the said place. The witness denied this suggestion as incorrect. There is no other material adduced on record to raise doubts as to the place of arrests of the accused persons.
67. PW22, with corroboration from PW18 and PW21, has also spoken about interrogation of A1 having brought out disclosure, inter alia, about the weapon of offence. They also referred to document (Ex. PW 18/F) prepared in this regard at that time to which they are attesting witnesses. Document narrates at length the sequence of events which is inadmissible, except to the extent it seeks to refer to the offer to get a knife recovered from a certain place. This document is to be read with memo Ex. PW 18/H also proved by these witnesses and according to which A 1 had led the I.O. to the bushes of flowers under a Ashoka tree close to high mast light near the statue within Subhash Park leading to the recovery of Chhura (dagger) (Ex. P1). They further proved sketch (Ex. PW 18/G) of the said weapon and testified that it was put in a cloth parcel sealed with seal of NSR and then seized vide memo (Ex. PW 18/H), the place of this recovery being depicted in the site plan (Ex. PW22/B). SC No. 124/09 State Vs. Ahmed Sikander & others Page 31 of 44
68.I have carefully gone through the crossexamination of these witnesses. It is true that there was no public witness joined in the investigation at this stage. But to my mind, this ought not result in the evidence about recovery of the weapon being disbelieved.
69. In State Versus Sunil 88 (2000) DLT 630 (SC), it was observed that document prepared by IO contemporaneous with the recovery need not necessarily be attested by independent witnesses and that mere absence of independent witnesses when the investigating officer recorded the statement of the accused leading to recovery of incriminating material pursuant to such statement was not a sufficient ground to discard the evidence under Section 27 of Evidence Act. Hon'ble Court observed thus:
"it is archaic notion that actions of police officers should be approached with initial distrust - Courts cannot proceed with presumption that police records are untrustworthy - as a proposition of law presumption should be the other way round."
70. It is true that generally, the police officers are expected to take precaution by joining independent witnesses of the locality. Seen against such general practice, it does appear odd as to why the recovery officer had not joined independent public witnesses. SC No. 124/09 State Vs. Ahmed Sikander & others Page 32 of 44 But then, only on this default, the seizure does not become illegal. Further, even if it is argued that the search and seizure were illegal, the observations of Hon'ble Supreme Court in Dr. Pratap Singh Versus Director of Enforcement (1985) 3 SCC 72 provide the answer, viz., "illegality of the search does not vitiate the evidence collected during such illegal search."
71. Dealing with the arguments, almost to similar effect, albeit in the context of evidence of intercepted telephonic conversation, Hon'ble Supreme Court in the case of State of NCT of Delhi V. Navjot Sandhu @ Afsan Guru [(2005) 11 Supreme Court Cases 600] referred with approval to certain observations in R.M. Malkani Vs. State of Maharashtra 1973(1) SCC 471 to the following effect: "There is warrant for the proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. See. Jones v. Owens 80. The Judicial Committee in Karuma V. R. 81 dealt with the SC No. 124/09 State Vs. Ahmed Sikander & others Page 33 of 44 conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police office below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution.
It is that the judge has a discretion to disallow evidence in criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence."
72. It has been argued that no independent witnesses have been examined for corroboration of the evidence of eye witness. In this regard, suffice it to note that in Ambika Prasad Vs. State, 2002(2) Crimes 62(SC), it was held that if independent witnesses are not willing to cooperate, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence or to discard the evidence of eye witnesses.
73. In case of State of U.P. Vs. Anil Singh AIR 1988 SC 1998, it was held that in some cases the entire prosecution cases is doubted for not examining all witnesses to the occurrence. The general indifferent attitude of the public in the investigation of SC No. 124/09 State Vs. Ahmed Sikander & others Page 34 of 44 crimes or the fact that the public are generally reluctant to come forward to depose before the courts cannot be lost sight of. It is, therefore, not correct to reject the prosecution version only on the ground that other possible witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. In the case of Appabhai Vs.State of Gujarat AIR 1988 SC 696, it was held that these days people in the vicinity where the incident took place avoid to come forward to give evidence and civilized people are in sensitive when crime is committed even in their presence and they withdraw both from the victim and vigilante.
74. The defence counsel submitted that there are contradictions in the evidence of PW18, PW21 and PW22 in which view doubts arise as to this recovery. Small contradictions by themselves are no reason to throw the case out. It has been held time and again that discrepancies do not necessarily demolish the testimony. Proof of guilt can be sustained despite little infirmities [Narotam Singh Vs. State 1978 Cr.L.J. 1612(SC)]. No undue importance can be attached to such discrepancies if they do not go to the root of the matter and do not shake the basic version of SC No. 124/09 State Vs. Ahmed Sikander & others Page 35 of 44 witnesses [Lallan Vs. State 1990 Cr.L.J. 463]. It was ruled in Ramni Vs. State, [Judgment Today 1999(6) SC 247)] that all discrepancies are not capable of affecting the credibility of witnesses. Similarly, all inconsistent statements are not sufficient to impair the credit of a witness.
75. Observations of Hon'ble Supreme Court in 1985 Crl. L.J. 1173 can also be fruitfully referred to in this context. The evidence of an eye witness cannot be treated as one of the three legs of a tripod so as to conclude that it must collapse if one or the other leg collapses.
76. In the case of Sukhdev Yadav & ors. Vs. State of Bihar (2001) 89 (SCC) 86) it was held by Hon'ble Supreme Court that once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same. If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence. Relying upon an earlier decision in Leela Ram Vs. State of Haryana (1999) 9 SCC 525, it was observed that there are bound to be some discrepancies between the narration of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not SC No. 124/09 State Vs. Ahmed Sikander & others Page 36 of 44 be used to jettison the evidence in its entirety. Corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments or variations should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate otherwise acceptable evidence. Relying upon an earlier decision in Ramani Vs. State of M.P. (supra), it was also observed that when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between two statements of the same witnesses is an unrealistic approach for judicial scrutiny. It was observed that it is a common practice in trial courts to make out contradictions from the previous statement of a witness used for confronting him during cross examination. Merely because there is inconsistency in evidence SC No. 124/09 State Vs. Ahmed Sikander & others Page 37 of 44 it is not sufficient to impair the credit of the witness. No doubt section 155 of the Evidence Act provides scope for impeachment of the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness.
77.It has been argued that the dagger (Ex.P1) has been recovered from bushes in a public park accessible to the public at large. The submission of defence counsel essentially is that this recovery cannot lead to conclusion that the dagger was recovered from the possession of A1.
78.I am not impressed with these submissions. The weapon may have been recovered from bushes in a public park, thus a place thronged by and open to public at large. But that does not mean that it could have been thrown there by anyone else. The fact that A1 led to its discovery from the said place shows it was a matter within his special knowledge. The weapon recovered, as shall be seen hereafter, was found with blood stains of same group as of the deceased, thereby lending further assurance as to its connection with the crime involved here. Thus, there is no SC No. 124/09 State Vs. Ahmed Sikander & others Page 38 of 44 escaping use of this recovery at the instance of the accused as a further incriminating circumstance.
79. The evidence of PW11, MHC(M) confirms that the sealed parcel containing chhura (Ex. P1) initially deposited in malkhana vide entry Ex. PW 11/A was sent along with other exhibits to FSL on 20.03.2005 vide road certificate Ex. PW 11/C through PW5 who also confirmed on oath having carried out the said task. It was vaguely suggested to PW5 that the parcel containing exhibits were tampered during the period they remained in his control. The witness denied the suggestion as incorrect. The suggestion is of no consequence in as much as the FSL report Ex. PW 22/C confirms that all the three parcels were received in FSL with seals intact, the seal of hospital on the parcel containing clothes of the deceased, seal of MAMC on the parcel containing blood sample of the deceased and the seal of Finger Print Bureau on the parcel containing dagger (Ex. P1). The FSL reports (Ex. PW 22/C and PW 22/D) collectively show that when examined the blood of the victim was found to be of group "B". This is the blood group of the blood stains found on his clothes Ex. P2 to P
4. What is clinching for the prosecution is the fact that blood SC No. 124/09 State Vs. Ahmed Sikander & others Page 39 of 44 stains were also found on the dagger (Ex. P1), they being of group "B".
80.For the forgoing reasons, I have no hesitation in accepting the prosecution evidence in general and the statement of PW1 in particular, in as much as the same inspires confidence.
81.In above facts and circumstances, the prosecution has proved that A1 and A2 had together accosted the deceased, when he was going on foot with his brother, PW1. It is proved beyond all manner of doubts that A2 caught hold of the deceased blocking his way from the front while A1 assaulted upon him twice with the knife inflicting injuries on his waist and left shoulder and when the deceased took a turn, A1 inflicted another injury with the said weapon on his chest. The manner in which these injuries were inflicted and the nature thereof clearly shows that the intention was to cause death.
82.In above view, the prosecution has brought home the guilt of A1 and A2 for having committed the murder of Mohd. Nazim in furtherance of their common intention. They are held guilty and convicted for the offence under Section 302/34 IPC. Pronounced in open court on SC No. 124/09 State Vs. Ahmed Sikander & others Page 40 of 44 This 26th day of February, 2011 (R.K.Gauba) Addl. Sessions Judge1 Central, Delhi.
SC No. 124/09 State Vs. Ahmed Sikander & others Page 41 of 44 IN THE COURT OF SH. R.K.GAUBA, ADDL. SESSIONS JUDGE 01 (CENTRAL) DELHI SC No. 124/09 FIR No.: 15/08 ID No.:02401R0836062008 PS : Jama Masjid U/Sec: 302/34 IPC State Versus (1) Ahmed Sikander s/o Mohd. Yusuf R/o H. No. 143, 2nd Floor, Katra Gokul Shah, Jama Masjid, Delhi.
(2) Mohd. Suleman s/o Mohd. Yusuf R/o H. No. 143, 2nd Floor, Katra Gokul Shah, Jama Masjid, Delhi.
ORDER ON SENTECE
1. Vide judgment passed and pronounced on 26.11.2010, accused Ahmed Sikander and Mohd. Suleman were held guilty and convicted for offence under section 302/34 IPC.
2. I have heard Ld. Addl. Public Prosecutor for the State and counsel for the convicts on the question of sentence.
3. While Ld. Addl. Public Prosecutor submitted that the court may SC No. 124/09 State Vs. Ahmed Sikander & others Page 42 of 44 award appropriate punishment, the defence counsel has prayed for lenient view on the ground that the convicts are young in age and the case does not fall within the category of rarest of rare case.
4. I have given my considered thoughts to the contentions urged before me. The convicts assaulted the deceased by stabbing him repeatedly in the process, causing his death. Be that as it may, the case is not one which would fall in the category of rarest of rare category.
5. I, therefore, sentence each of the convicts to imprisonment for life with fine of Rs. 5,000/ (Five Thousand only) for the offence under section 302/34 IPC. In case of default in the payment of fine, they shall further undergo RI for six months.
6. Copy of this judgment and this order on sentence be supplied to the convicts free of costs.
7. They be sent to jail under appropriate warrants.
8. File be consigned to record room.
Pronounced in open court on
This 28th day of February, 2011 (R.K.Gauba)
Addl. Sessions Judge1
Central, Delhi.
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