State vs . Mohd. Farukh on 12 October, 2009

[Cites 67, Cited by 0]

Delhi District Court

State vs . Mohd. Farukh on 12 October, 2009

                                   1

            IN THE COURT OF SHRI S.K. SARVARIA
           ADDITIIONAL SESSION JUDGE-01- SOUTH
                        NEW DELHI

SC No. 331/2009/2006

State            Vs.       Mohd. Farukh
                           S/o Shri Ali Sher
                           R/o 326/57, Okhla Village,
                           New Delhi


FIR NO.                -       619/06
Police Station         -       New Friends Colony
Under Section          -       302 IPC


Date of institution            :   03/06/09
Date when the arguments
were heard                     :   26/08/09, 22/09/09,   24/09/09,
                                   29/09/09 & 07/10/09
Date of judgment               :   12/10/09




JUDGEMENT

The SHO of Police Station New Friends Colony has filed challan against the accused in the court of Metropolitan Magistrate, New Delhi for the trial of the accused for the offence under Section 302 IPC. After supplying the copies to the accused in compliance of 2 provisions of the section 207 Cr. P.C. the learned Metropolitan Magistrate committed the case to the court of Sessions under Section 209 Cr. P.C. for trial of the accused.

BRIEF FACTS OF THE CASE The case of the prosecution, in brief, is that a telephonic information was received from Ct. Ram Vilas on 27/10/06 in the police post Jamia Nagar that accused Farukh was running after stabbing his father and was caught hold of by him at Sealing Club Picket. On this information DD No. 14 was recorded and SI A K Singh alongwith ASI Fajruddin and Ct. Radhey Shyam went to Sealing Club Picket and found that accused Md. Farukh alongwith knife was over powered and there were blood stains on the clothes of the accused. On inquiry it was found that the accused stabbed his father in his furniture shop. Thereafter, brother of accused Md. Farukh namely Zakir s/o Ali Sher gave a statement to the initial investigating officer on the basis of which FIR No. 619/06 was recorded at Police Station New Friends Colony.

In his statement, the brother of accused, Zakir stated that 3 they were four brothers. He and his brother Md. Iqbal used to live with father and accused Farukh and another brother Aas Md. used to live separately with their wives and children. At about 2.00 PM, he heard a scream and he ran and saw that his brother Farukh was running from the shop with blood stained knife and blood stained clothes and his father was lying in pool of blood outside the shop with several stab wounds in his body. He shouted and his elder brother Aas Md. and Md. Iqbal took the injured father to Holy Famiy hospital and he ran behind and saw that accused Farukh was caught hold of by the police. He went to Holy Family hospital where the doctor declared his father as dead.

On the basis of this statement of Zakir, the brother of accused, the FIR was recorded. The postmortem of the dead body was got conducted at the hospital and dead body was returned to the legal heirs of deceased, after the postmortem examination at AIIMS hospital. The investigating officer prepared the site plan at the spot and obtained postmortem report, recorded statements of witnesses and on the completion of the investigation, the challan was filed, as 4 referred before.

CHARGE & PLEA OF THE ACCUSED Prima facie case for the offence under S. 302 IPC was found made out against the accused and accordingly charge under S. 302 IPC was framed against the accused, accordingly on 12/02/07, to which the accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE In support of its case prosecution examined 21 witnesses in all. Their statements in nut shell, are discussed below:

PW1 is SI Vinod Pal, Mobile Crime Team Incharge, South Distt. On the request of SI Kamehwar he visited the spot and prepared his report Ex.PW1/A. He has also stated that the spot was photographed by his photographer.

PW2 is Md. Iqbal, brother of the accused. He has stated that on 27/10/06 at about 2 PM he was sitting in his house aongwith Aas Md. He was preparing for Namaj and went upstairs for changing clothes. When he was changing clothes he heard noise on ground floor. He came down immediately and saw his father in pool of blood 5 inside the shop. His brother in law aso came there and shifted his father to Holy Family Hospital by TSR ( Three Wheeler Scooter ) where doctor declared him brought dead. Before postmortem, he had identified the dead body of his father. His father was killed by his elder brother Farukh the accused then present in court. His elder brother was staying in front of their house. Earlier he was residing with them. Subsequently his father got him separated as he used to pick up quarrels on petty matters. Accused used to remain depressed as he did not pay attention to his work of embroidery. His father had given his shop to the accused. However, he had let out the shop on rent of Rs. 3,000/- per month. His father used to give him money. He also used to give money to help him. Accused was suspecting that he won't get his share in property. For the last about 6 months he was telling that he was feeling depressed and mentally disturbed.

PW3 is Ct. Radhey Shyam, No. 1891 who accompanied SI A K Singh to Sealing Club Gate where Ct. Ram Bilas met them alongwith the accused. The witness has stated that accused was having blood stained knife in his hand and his clothes were blood 6 stained. ASI Fajruddin also arrived there. Investigating officer directed ASI Fajruddin and 'Ct. Ram Bilas to remain present there.

He and investigating officer went to the Holy Family Hospital. Prior to leaving the spot for hospital, the investigating officer inquired the matter at the spot and they came to know that accused Farukh has stabbed his father Ali Sher and the injured was taken to Holy Family Hospital. They reached at the hospital and found Ali Shet to have been declared brought dead, in his MLC. He has also stated that investigating officer recorded the statement of Mohd. Zakir, prepared rukka and handed over the same to him for registration of FIR. He went to Police Station New Friends Colony and after registration of FIR, the case was marked to Addl SHO for further investigation.

PW4 is Zakir, the complainant and brother of the accused.

He has stated that on 27/10/06 at about 2 PM he was present inside his house alongwith his brother-in-law Aas Md. There was a distance of only one room in between his shop and house. His father deceased Ali Sher was sitting inside his shop. He heard noise. He came out on hearing the noise/cry of his father. He saw accused 7 Farukh then present in Court having Khanjar (dagger) in his hands.

The Khanjar was smeared in blood. The accused was at a distance of about 10 ft from him. On seeing him accused fled away from the spot. He saw his father lying in a pool of blood. There were number of stab injuries on his person. He called his brother and brother in law. Both of them reached there. They put his father in a TSR and removed his to Holy Family Hospital. He saw that police had apprehended the accused when he was crossing the road. He reached at Holy Family Hospital. There doctor declared his father dead. Police reached the hospital and recorded his statement Ex.PW4/A. He has also stated that he identified the dead body of deceased before postmortem. He has also identified accused then present in the court.

PW5 is Aas Mohd., brother in law of the accused, he has stated that on 27/10/06, it was Friday at about 2 PM he and his brother in law Jakir were present in his house. At that time they heard noise of crying. They came outside. He saw his father-in-law Ali Sher lying in pool of blood. He became unconscious and perlaxed on 8 seeing him. He saw accused then present in the court running from the spot. He was having some arm. He got stopped one TSR and put the deceased Ali Sher in the TSR and removed him to Holy Family Hospital where he exprired. He alone had gone at the house of his father in law.

The witness was cross examined by learned Additional Public Prosecutor as he was resiling from his statement. In the cross examination conducted by learned Additional Public Prosecutor he has stated that police had made inquiries from him and had recorded his statement. He had not told to the police in his statement that his brother in law accused Farukh then present in the court had come at his house for last few days or that he was feeling uneasy/depressed.

The witness volunteered, however, accused had come at their house for the last about two days with his family. He also admitted that it was correct that on 27/10/06 at about 1.45 PM he alongwith accused had gone to offer Namaj at Kahalilullah Mosque. He further admitted that they both had reached earlier as there was time for Namaj. He denied that he alongwith accused came at the house of deceased 9 Alisher. He volunteered that he alone came at the house of deceased. He had not stated this fact to police. He was confronted with portion A to A of his statement Ex.PW5/A where these facts find mention. He denied that accused went inside the shop of his father in law where he was present in the shop alone or that accused sat with the deceased inside the shop. He stated he had not stated these facts to police. He was confronted with portion B to B of statement Ex.PW5/A where these facts find mention. He admitted that when he came outside the house, he saw that accused was running from the spot and he was having blood stained dagger in his hand, his clothes were stained with blood. He further admitted that there was none else present inside the shop when he saw his father in law lying in pool of blood. He admitted that he had chased the accused by raising noise and he was apprehended by the police at a distance of about 15 meters from the spot.

PW6 is HC Somrath Lal who has stated that on 27/10/06 he was posted as HC in PS NFC (New Friends Colony) and was working as DO ( Duty Officer ) from 8 AM to 5 PM. On that day at about 4.30 10 PM he received ruqqa from ASI A K Singh throught Ct. Radhey Shyam on the basis of which he registered formal FIR of this case.

He had brought the original FIR register. He had proved the carbon copy of the FIR Ex.PW6/A. After registration of the FIR, the case was marked to Insp. Akhilesh Yadav, the copy of FIR and original ruqqa were sent back to the IO for further investigation. The copies of FIR were sent to senior officers and local MM through special messenger.

PW7 is Ct. Mahipal Singh. He has stated that on 07/11/06 he was posted at PS NFC. On that day as per the direction of the IO, he took 7 exhibits and sample seal vide RC NO. 60/21 from MHCM NFC and depostied the same in FSL Rohini, untampered.

PW8 is HC Hawa Singh. He has stated that on 27/10/06 he was posted at PS NFC and was working as MHCM. On that day Insp.

Akhilesh Yadav depostied 7 exhibits and two sample seals which he enered vide Serial No. 1760 and 1762 of register NO. 19. He had brought the original register No. 19 and photocopy of the same is proved as Ex.PW8/A. He corroborated with the statement of PW7 Ct.

Mahipal Singh that he handed over the FSL form, 7 exhibits and 2 11 sample seal vide RC NO. 60/21 to Ct Mahipal for depositing the same in FSL Rohini. After deposition, the Ct returned back to PS and handed over him the receipt copy. During his possession the seals were intact and were not tampered with.

PW9 is Ct. Ram Bilas who has stated that on 27/10/06, he was on picket duty at Sealing Club Picket from 8 AM to 8 PM. On that day at about 2 PM he saw a person coming towards picket having a blood stained knife in his hand. His dress was also blood stained. He apprehended that person with the help of two passersby. He brought him to the PS. Two persons who were taking a persosn in TSR told him that the accused had stabbed his father. On inquiry accused told his name as Farooq. He informed the PP (Police Post). SI A K Singh I/C PP Jamia came to the spot along with Ct. Radhey Shyam and ASI Fazruddin. IO directed Ct Raj Kumar to guard the accused and he left for Holy Family Hospital along with Ct Radhey Shyam. ASI Fazruddin and Ct Raj Kumar were directed by the IO to guard the spot and the accused. At about 5 PM ASHO along with SI A K Singh came to the spot. After brief interrogation accused Farooq present in the court 12 was arrested by the IO. His personal search was conducted vide memo Ex.PW9/A. He was interrogated and his disclosure statement Ex.PW9/B was recorded. He handed over the blood stained knife to the IO. IO prepared sketch of the knife vide memo Ex.PW9/C, kept it in pulanda, sealed it with seal of AS and seized it vide memo Ex.PW9/D. IO also seized the dress of the accused vide memo Ex.PW9/E. Before seizure the dress was kept in pulanda and sealed with the seal of AS. This witness identified the knife Ex.PW9/P1 which was seized from accused Farooq and the shirt and pant with blood spots Ex.PW9/P2 to P3 which was worn by the accused Farooq.

PW10 is HC Suresh Chand who has stated that on 27/10/06 he was posted as photographer Crime Team South Distt.

On that day as per the direction of I/C Crime Team, he accompanied him to H.No. 326A, Okhla Village and as per the direction of IO and I/C crime team, he took ten photographs at the spot. The negatives of the same he handed over to the IO. He had seen the negatives and positives in the judicial file. The negatives are proved as Ex.PW10/P1 to Ex.PW10/P10 and the positives as Ex.PW10/P11 to Ex.PW10/P20.

PW11 is Ct. Devender Kumar who has stated that on 27/10/06, he was posted as Ct. at PS New Friends Colony and was working as a motorcycle rider. On that day, as per the direction of the IO, he took copy of the FIRs and handed over them to the local Magistrate, DCP and ACP of their District. He left the PS at about 5.25 PM and returned at about 10.40 PM.

PW12 is Dr. B. L. Chaudhary, Sr. Resident, Deptt. Of Forensic Medicine, AIIMS. He conducted the postmortem on the dead body of Alisher, 75 years male and found following antemortem injuries:-

1) A cut throat wound of size 13 x 6 cms into muscle deep present over the lower part of the neck extending from midline to backward, transversly on the right side of the neck. Margins were sharp and regular. Both the ends were with acute angle. It was also showing cutting of external jugular vein and neck muscle. No injury over trachea and carotid arteries seen.

2) Incised wound of size 7x1 cms into muscle deep was obliquely present over left cheek. The wound was extending from 14 lateral to downward medially with tailing of wound at medial end.

Medial end lies 2 cms lateral from left angle of mouth. Margins of wound were sharp, regular and bevelling type. Lower margins were undermined.

3) Incised wound of size 4.5 cms x 0.5 cm x muscle was present over right side collar bone, placed horizontally and medial end lies 1.5 cms from midline. Tailing of wound present on lateral end wound.

4) Incised wound of size 5 .0.4 cms x bone deep was present over left occipital region and was placed obliquely extending from midline to downward and laterally. Lateral end was 13 cms backward and upward from left mastoid process.

5) Incised wound of size 4 x 0.2 cms x skin deep present over back of neck on left side. Placed horizontally. Medial end lies 2 cms lateral from midline and lateral end is 3 cms back from left mastoid process.

6) Incised wound of size 4 x 0.4 cms x muscle deep present over left side of chin. Cresentric in shape with bevelling of margins, 15 lower margins were undermined. Wound lies just lateral to midline and 2 cms below from lower lip.

7) A wedge shape stab wound of size 8 x 4 cms x cavity deep present over right side of chest. The base of wound lies just lateral to midline and extending laterally and downwards. Lateral end of wound lies 8 cms medially upwards from right nipple and medial end of wound lies 5 cms below to medial end of right clavicle. Wound directed inward and backward. Wound also showing protruding of part of lung through it. On exploration of wound it showed wound piercing chest wall and cutting of 3rd right rib at costo-chondral junction. Middle lobe of right lung showing cut wound was horizontally placed and passing through and through and measuring 7 x 2 cms in size. Right pleural cavity filled with about 500 ml of blood.

8) Incised wound of size 1 x 0;.5 cm x muscle deep was present over ventral aspect of proximal phalanyx of right index finger, placed horizontally.

9) A flap incised wound of size 10 x 5 cms x muscle deep was present over dorsal aspect of right forearm at lower end and just 16 above to wrist joint. Margins of wound were bevelling type directed from upward to downward.

10) Incised wound of size 3 x 1 cm x muscle deep present over anteromedial surface of left arm, lies horizontally and 11 cms from anterior axillary fold and 10 cms above from elbow joint. Tailing of wound was present on lateral end.

11) Incised wound of size 16 x 4 cms x muscle deep obliquely placed was present over anteromedial aspect of left arm and anterior surface of elbow. The wound was extending from upward to downward, auteriroly towards anterior surface of right elbow. The margins were sharp, regular and bevelling. The lower margins were undermined.

12) Incised wound of size 3 x 0.3 cms x skin deep was present over middle half of left forearm and was horizontally placed over dorsal aspect.

13. A cresentric shape incised wound of size 3 x 0.5 cms present horizontally over dorsal aspect of left forearm was lying 2.5 cms below from injury No. 12.

On internal examination, scalp showed extravasation of blood under the skull corresponding to occipital injury No.4. No. abnormality was detected in skull. Meninges were intact. Brain was pale and weight of brain of 1150 grams. Mouth was closed and tongue was inside oral cavity. No abnormality was detected in orbital, nasal and aural cavities. Neck, larynx, neck structure, ribs and chest wall showed injuries as mentioned above.

He also gave the opinion that the cause of death was due to haemorrhagic shock as a result of injury No.1 and injury No.7 individually or collectively. Injury No.1 and injury No.7 were sufficient to cause death in the ordinary course of nature. All injuries were antemortem in nature. The post mortem report prepared by him is proved by him as Ex.PW12/A. On 23.01.07, he received a sealed envelope with the seal of FSL. Copy of post report No. 1508/06, copy of the FIR, copy of Road Certificate, copy of MLC of No. 655899 of Holy Family Hospital and copy of sketch of knife for his subsequent opinion. On opening the envelope he found a knife. He examined the knife along with his 18 post mortem report and after examination, as per his opinion, the injuries described in post mortem report No. 1508/06 were possible by the above said weapon. His subsequent opinion is proved as in Ex. PW12/B. He stated that the weapon of offence was re-sealed with the seal of AIIMS and was handed over to IO.

PW13 Ct. Rajkumar has stated that on 27.10.06, DD writer at PP Jamia PS New Friends Colony had handed over DD No.15 for handing over to SI A.K. Singh. He went to Sealing Club Picket where SI A.K. Singh and other staff met him. Accused was present in the custody of police. Blood stains were found present in the clothes of the accused. The accused was also having blood stained knife in his hand. IO directed him and ASI Fajruddin to ramain at the spot and IO left for Holy Family Hospital. The crime team and photographer came to the spot and took the photograph of the spot.

PW 14 is Ct. Balwan who stated that on 27.10.06, he was working as DD writer. He proved the copy of DD No. 41B and he had brought the true copy of the same as Ex.PW13/A. PW15 HC Rajender has stated that on 28.10.06, he joined 19 the investigtigation with IO. They went to Holy Family motuary. The dead body of deceased Ali Sher was transferred to AIIMS hospital mortuary. After post mortem, doctor handed over to him one sealed pulanda and one sample which he later handed over to the IO and IO seized the same vide memo Ex.PW15/A. PW16 SI A.K. Singh, initial investigating officer, has stated that on 27.10.06, he was posted as SI at PS New Friends Colony and was working as ICPP Jamia Nagar. On that day, on receipt of DD No.14 PP he along with ASI Fazruddin and Ct. Radhey Shyam went to Sealing Club Picket where Ct. Ram Vilas with the accused Mohd. Farukh were found present. The clothes of accused Mohd. Farukh were stained with blood. The knife which was reported as snatched by Ct. Ram Vilas from the hand of accused was also stained with blood. During inquiry, he came to know that the injured had been shifted to Holy Family Hospital. He directed ASI Fazruddin to remain at the spot alongwith other staff. He alongwith Ct. Radhey Shyam went to Holy Family Hospital where he found the doctor had declared the injured brought dead.

This witness has proved this during investigation. He corroborated the statement of Zakir as Ex. PW4/A and proved his endorsement Ex.PW16/A and stated he prepared a rukka and handed it over to Ct. Radhey Shyam for registration of the FIR. After registration of the case the case was transferred to AddI. SHO Akhilesh Yadav PS New Friends Colony for further investigation. The witness stated that he joined investigation with new investigating officer. He corroborated with the statement of PW9 regarding arrest of accused and conducting of his personal search vide memo Ex.PW9/B, the disclosure statement of accused Ex.PW9/B, preparation of sketch of knife Ex.PW9/C, recovery of knife vide memo Ex. PW9/D and the fact that IO seized the clothes of the accused vide memo Ex.PW9/E. He also stated that IO seized sample blood, blood stained earth and sample earth from the spot vide memo Ex.PW16/B. The pulanda which he handed over to the IO at Holy Family Hospital was also seized vide memo Ex.PW16/C. He identified the knife Ex.PW9/P1 and clothes of the accused i.e. blood stained pant and shirt Ex.PW9/P2 and Ex.PW9/P3.

PW17 HC Harish Kumar was posted as DD writer on 27.10.06, he proved the copy of DD No.14 EX.PW17/A. He also proved the copy of DD No.15 Ex.PW17/B. PW18 Ct. Hardeep Singh is Assistant Draftman who prepared the scaled site plan Ex.PW18/A and stated after preparation of scaled site plan rough notes and measurements prepared by him were destroyed.

PW19 is SI Fajruddin, who stated that on 27.10.06 at about 2.10 pm on receipt of information about this case he accompanied SI A.K. Singh and Ct. Radhey Shyam Sealing Club Picket where Ct. Ram Vilas alongwith accused Mohd. Farukh then present in the court, were found present. The clothes of accused Mohd. Farukh were stained with blood. The knife which was reported to be snatched by Ct. Ram Vilas from the hands of the accused was also blood stained. During inquiry he came to know that the injured had been shifted to Holy Family Hospital. He alongwith Ct. Raj Kumar were directed to remain at the spot and IO left for Holy Family Hospital. In the evening, crime team and photographer reached at the spot. The spot 22 remained intact during his presence.

PW20 Dr. Priyadarshani Bhoi, CMO, Holy Family Hospital, has proved the MLC of the deceased Ali Sher and proved the same as Ex.PW20/A. She also proved the death report prepared by her Ex.PW20/B and the emergency papers prepared by her are proved as Ex.PW20/C. PW21 is Inspector Akhilesh Yadav, Addl. SHO PS Connaught Place who has proved various steps taken by him during further investigation of the case, after the further investigation was handed over to him from SI A.K. Singh. He proved the death report Ex.PW21/A. He corroborated with the statement of PW16 regarding handing of the clothes in sealed pulanda by doctor which was seized by him vide memo Ex.PW16/C. He stated that crime team visited the spot and they gave him inspection report Ex.PW1/A. He corroborated with the statement of PW16 regarding seizure of blood from the spot and also separate samle of blood with soil from the spot and also vide memo Ex. PW16/B. He corroborated with statement of PW21 regarding preparation of site plan Ex.PW21/B and seizure memo of 23 Chura Ex.PW21/D. He corroborated with the statement of PW9 regarding preparation of sketch of knife Ex.PW9/C and seizure of the knife vide memo Ex.PW9/D and seizure of pant and shirt of the accused vide memo Ex.PW9/E. He also stated that doctor handed over him the sealed pulanda containing blood sample of the deceased and one sample seal to HC Rajender who later on handed over the same to him and he seized the same vide memo Ex.PW21/E. He identified the knife (Chura) alleged to have been seized from accused Ex.PW9/P1 and pant and shirt of accused Ex.PW9/P2 and PW3/P3.

After recording statement of PW21 the prosecution closed his evidence.

PLEA AND DEFENCE OF THE ACCUSED In the statement under Section 313 Cr.PC, the accused has either disputed the prosecution case or has expressed his ingorance about the incriminating evidence put to him from the prosecution case. He has stated that it is a false case against him and the witnesses have deposed against him as they are interested witnesses and accused declined to lead evidence in defence but has stated that 24 he was innocent and has not committed any offence and has been falsely implicated in this case by his brother in relation to the property dispute. He stated his brother Aas Mohammed came to see him in jail and met him and threatened him there.

ARGUMENTS Ld. Addl. Public Prosecutor contended that the DD No. 14 dated 27/10/2006 was recorded by PW 17 and when he was examined, the accused did not dispute the facts narrated by the said witness by putting questions to him but instead the accused in his statement under S 313 CrPC when was asked question pertaining to the said witness denied as to what he deposed, thus the same shows the conduct of the accused. Similarly, it was submitted that PW 9 Ct. Ram Bilas deposed that he saw the accused, wearing blood stained clothes and carrying blood stained knife, coming towards the picket, where he was posted, the defence cross-examined in length but no question was put to him that the accused was arrested from the home or shop and not from the picket area etc. but when question in this regard was put to the accused in his statement under S. 313 CrPC he 25 denied the same. It was urged that the entire chain of circumstantial evidence is complete in the instant case to convict the accused.

It was averred that it is established that the accused was caught while running while wearing blood stained clothes and carrying blood stained knife within few minutes of commission of the offence, as per the expert opinion of PW 12 Dr. B.L. Chaudhary, who prepared the postmortem report of the deceased, the said knife with which the accused was caught is the same due to which the deceased died. Furthermore, the PW4 Jakir has categorically stated that when he heard his father's cry and rushed to the shop, he saw the accused running out of the shop with the dagger in his hand. Same thing has been deposed by PW5 Aas Mohd. and he also stated that the deceased was lying in pool of blood when they entered the shop. Also, the fact that the incident took place at 2:00pm and the accused was caught within 5 minutes of the incident further proves the prosecution case. Thus, the accused is liable to be convicted for the offence committed under S. 302 IPC. Reliance was placed on decisions in Daya Ram vs. State - 1988 C.C. Cases 42 (SC); Rammi 26 @ Rameshwar etc. vs. State of M.P. - 1999 III AD (Cr.) SC 652; Lachho Devi vs. State - 1990 (2) C.C. Cases 395 (Del); D. Sailu vs. State of Andh Pra - 2008 II A.D. (SC) 507; and Balwant Singh & Ors. Vs. State of Punjab - 2008 III A.D. (SC) 121, in support of the contentions.

The contention of Ld. counsel for the defence is that no fingerprint was lifted from the spot and there is neither any scientific evidence of fingerprint at the shop where the incident happened nor on the weapon of offence, thus there is no evidence of the accused having visited the site of incident on the day of occurrence of the incident.

He urged that the PW2, Mohd. Iqbal deposed that the father of the accused gave property to the accused, also an embroidery shop was given to the accused and accused used to sit with father at the furniture shop of the father, thus, the accused had no motive to kill his own father. He also contended that PW2 did not say that he saw accused running from the spot but PW4 Zakir said that he saw the accused running out of the shop when both PW2 and PW4 came 27 together for performing namaz and while they were preparing for the Namaz at about 1:15 pm. He has also submitted that no public witness identified the dagger/knife or blood stained clothes of the accused or the site of the offence and same is fatal to the prosecution case. It was also averred that in the FIR, the word used is knife but the weapon of offence used is dagger. Pw2 stated that the accused use to sit with the deceased at the shop of the deceased, but PW4 stated that PW4 used to sit with the deceased and accused never used to sit in the shop of the deceased with the deceased. PW4 stated that he saw accused running out of the shop with the dagger in his hand but he did not chase the accused, thus clearly he did not find the accused to have committed murder of the deceased and the present case is nothing but a result of the concocted story told by PW4 as there was a property dispute between the accused and the said PW4.

The counsel also pointed out that PW5, Aas Mohd. saw the accused running out of the shop with the blood stained knife and the clothes of the accused were also stained with the blood but this 28 witness is hostile as far as the last scene evidence is concerned. It was also contended that as per PW2 and the complaint Ex. PW2/DA, time of namaz was 1:15 pm but the prosecution case is that the murder took place at 2:00 pm. The prosecution brought forth the blood group opinion and the weapon opinion but did not bring out the opinion as regards the fingerprints, which is a good circumstance favouring the defence.

FINDINGS I have heard Ld. Counsel for the defence and Addl. Public Prosecutor for the State and perused the record and carefully considered the decisions relied upon by the counsel for the defence and the Addl. Public Prosecutor for the State. LEGAL POSITION AS TO CASES BASED ON CIRCUMSTANTIAL EVIDENCE The present case is a case of circumstantial evidence. As regards circumstantial evidence the law is well settled that if the prosecution is able to prove against the accused the chain of events, without there being any break in the chain, then the accused is liable 29 to be convicted, otherwise not. As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. (See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)) In a recent pronouncement in Raju Vs. The State by Inspector of Police - AIR 2009 SC 2171, as regards circumstantial evidence, the Hon'ble Apex Court observed as under:

"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316);

Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal 30 fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".

9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human 31 probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any 32 reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".

12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.

13. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully 33 established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

The circumstances concerned 'must' or 'should' and not 'may be' established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."

The contentions raised by the parties are dealt with under the following heads for the sake of convenience and clarity:

Discrepancies in statements of witnesses - effect Discrepancies as to Pw2 stating that the accused used to sit 34 with the deceased at the shop of the deceased, but whereas PW4 stated that PW4 used to sit with the deceased and accused never used to sit in the shop of the deceased with the deceased are minor discrepancies.

Same is position when some witnesses stated accused had Khanjar (dagger) in his hand while the other stated he had knife in his hand.

From the entire testimonies of both PW2 and PW4, it comes out that accused Farukh killed his father with a dagger. It is well settled that if the testimonies of the witnesses on the whole inspire confidence then the minor discrepancies do not affect the prosecution case. In Sukhdev Yadav v.State of Bihar AIR 2001 SC 3678, it was held that minor variations may be there but if on a perusal of the evidence in its entirety, it appears to be otherwise trustworthy, question of the evidence being non-trustworthy would not arise.

It was further observed as follows:

t is now well settled that the Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence. This Court in Leela Ram (dead) through Duli Chand v.

State of Haryana (1999) 9 SCC 525 : 1999 AIR SCW 3756 : AIR 1999 SC 3717, relying upon an earlier decision of this Court in State of U.P. v. M. K. Anthony (1985) 1 SCC 505 : AIR 1985 SC 48: 1985 Cri LJ 493 observed :

"......There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reasons therefor should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence."

It was further observed:

"In Rammi v. State of M. P. (1999) 8 SCC 649, this Court further observed : 1999 AIR SCW 3546: AIR 1999 SC 3544: 1999 Cri LJ 4561 "24. 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 36 on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."

This Court went on to state (SCC pp. 656-57, paras 25-27):

"25. It is a common practice in trial Courts to make out contradictions from the previous statement of a witness for confronting him during cross-

examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt S. 155 of the Evidence Act provides scope for impeaching 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. The material portion of the section is extracted below :

'155, Impeaching credit of witness.-The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him-

(1) and (2) (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted:'

26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be 'contradicted' would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross examiner to use any former statement of the witness, but it 37 cautions that if it is intended to 'contradict' the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of Code also permits the cross-examiner to use the previous statement of the witness (recorded under S. 161 of the Code) for the only limited purpose i.e. to 'contradict' the witness.

To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P., AIR 1959 SC 1012.""

The Court held as follows:

"15. True, as noticed above there are lapses, but the question that arises for consideration is whether any prejudice has been caused by reason of such a lapse, if the answer thereto is in the affirmative obviously it will have a serious impact on to the trial but if in the event however, it is on the negative, no prejudice can be said to have been caused and correspondingly question of the trial being vitiated would not arise. The eye- witnesses account as available on record cannot but be termed to be trustworthy and by reason therefor, the lapses stand over-shadowed by the testimony of the eye-witnesses. The observations above obtain support from the decision of this Court in Baleshwar Mandal v. State of Bihar, AIR 1997 SC 3471."

Thus, this contention of the counsel for the accused is without any merit.

MOTIVE The contention of Ld. Counsel for the accused that the prosecution could not prove the motive for the accused person to have committed the alleged murder of the deceased is fatal for the prosecution case. On the other hand, contention of Addl. PP is that though motive is a good circumstance against the accused persons but even if prosecution fails in proving it, same would not lead to throwing the entire prosecution to the winds.

As regards, motive, the Hon'ble Apex court observed in State of H.P. vs. Jeet Singh - AIR 1999 SC 1293, which is as under:

"25. The High Court observed that the accused had no good motive to liquidate his young wife. This is what the learned Judges of the High Court have stated on that aspect :

"Although it is not always necessary for the prosecution to prove motive in a criminal trial, however, this is one of such cases where motive is essential in case the prosecution wants to succeed in its endeavours to prove the case against the accused. But, we are not convinced with this kind of motive. These factors, narrated 39 by the prosecution, are too trivial to be taken note of to establish it. They are thoroughly insignificant and do not, in any way, indicate that they could influence the accused to the extent that he would take the extreme step of killing his wife."

Having stated the legal principle correctly that it is not the requirement of law that unless prosecution establishes a motive of the accused to murder the deceased prosecution must necessarily fail, learned judges proceeded to treat the case on hand as an exception to the aforesaid general approach. Why should the present case be an exception to the aforesaid legal principle ?

26. Learned counsel for the accused invited our attention to the decision of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, A.I.R. 1984 SC 1622 in which an earlier decision in Ram Gopal v. State of Maharashtra, A.I.R. 1972 SC 656 was followed with approval as laying down different tests regarding the mode and manner of proof in cases of murder by administration of poison. They are : (1) Whether there is a clear motive for an accused to administer poison to the deceased. (2) Whether the deceased died of poison which is said to have been administered. (3) Whether the accused had poison in his possession. (4) Whether he had an opportunity to administer it to the deceased.

27. On its basis learned counsel contended that the establishment of a clear motive is sine qua non for a conviction in cases of murder through administration of poison.

28. No doubt it is a sound principle to remember that every criminal act was done with a motive but 40 its corollary is not that no criminal offence would have been committed if prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. In this context we may extract the observations made by a two Judge Bench of this Court (Dr. A.S. Anand, J. - as the learned Chief Justice then was and Thomas, J.) in Nathuni Yadav v. State of Bihar, 1998(9) SCC 238 :

"Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act . Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in R.V. Palmer (Shorthand Report at p. 308 CCC MAY 1856) thus :

"But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We 41 know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties.

"Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant."

(Para 17) Be the position as it may, this is a case where prosecution succeeded in showing that the accused had some cause for dislike of his wife. Some of the letters which accused had written during the preceding months were seized by police and marked as exhibits of the prosecution. Some of those letters contained the adverse remarks made by him about Sudarshana Devi's conduct in domestic activities. The High Court did not read much in those letters as exhibiting any prejudice or ill will towards his wife. Of course such an interpretation is plausible. Hence those letters do not afford any clue for the motive to finish her."

In Shiv Narayan Vs State (NCT of Delhi) 2001 V AD (DELHI) 761 the Division Bench of our High Court has held: 42

"It is well settled principle of law that in a case based on circumstantial evidence motive assumes considerable importance. However, failure to establish motive would not affect prosecution case if there is positive evidence and establishes the charge against the accused. If other circumstances are such as to complete the chain connecting accused with crime then lack or absence of motive is not fatal. "

In Tarsem Kumar v Delhi Admn 1995 Cr LJ 470 (SC), JT 1994 (5) JT 264 (SC), the Supreme Court has laid down that where the case of the prosecution has been proved beyond all reasonable doubt on the basis of material produced before court, the motive loses its importance, but in a case based on circumstantial evidence, motive for committing the crime on the part of the accused assumes great importance. It was further emphasised that if each of the circumstances proved on behalf of the prosecution is accepted by the court for the purpose of recording a finding that it was the accused who committed the crime in question, then even in the absence of any proof of a motive for commission of such crime the accused can be convicted. [See also State of Madhya Pradesh v Digvijay Singh AIR 1988 SC 1740, 1981 Cr LJ 1278; Arun Kumar v State 1996 Cr 43 LJ 2280 (Del) (DB)].

Thus, from the aforesaid, it is clear that motive alone, even if not proved, is not sufficient to doubt the prosecution case. Proof of motive coupled with other circumstances in effect is to be seen as relevant but not essential part of chain of circumstances. Thus, in the facts and circumstances of the case, it is apparent that failure of prosecution to prove motive on the part of accused is a further blow on the prosecution story.

Non-examination of independent witnesses - effect As regards the issue that the trial court based its judgment on the testimonies of the complainant and his other relatives and no independent/public witness was examined, the law as regards related witness is explained by the Apex court as under in Seeman @ Veeranam v. State, by Inspector of Police-AIR 2005 SC 2503:

"4. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the 44 interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinizing the evidence of the interested sole witness. The prosecution's non-production of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."

Therefore, if the evidence of the interested or related witness inspires confidence and has been duly corroborated by the testimony of other prosecution witnesses, then the same can be basis for the conviction of the accused persons. Be that as it may, it is well settled that it is not the quantity/count of the evidence but the quality/weight of the evidence, which is to be seen by the courts while appreciating evidence, in this regard, in Sunil Kumar v. State Govt. of NCT of Delhi-AIR 2004 SC 552, the Hon'ble Apex Court observed as under:

"9. Vadivelu Thevar's case (supra) was referred to with approval in the case of Jagdish Prasad and Ors. v. State of M.P. (AIR 1994 SC 1251). This Court held that as a general rule the court can and may act on the testimony of a single witness 45 provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short the `Evidence Act'). But, if there are doubts about the testimony the courts will insist for corroboration. It is for the Court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principles stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."

In the instant case, the public witnesses have seen the accused running near the shop with a blood stained dagger in his hand and wearing blood stained shirt and pant. The police official, Ct. Ram Bilas even caught him while trying to flee within minutes of the incident. Thus, it cannot be said that the non-examination of independent witness is fatal to the prosecution case. Furthermore, the following decision in Bhargavan vs. State of Kerela - AIR 2004 SC 1058 of the Apex Court is also worth noting:

In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid down as under :-

"A witness is normally to be considering independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan (1974(3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614) was also relied upon.

In the present case the public witnesses are not only close relatives of the deceased but also close relatives ( real brother/brother in law ) of the accused. Their presence in the viscinity of spot is not 47 improbable or impossible, rather natural. Therefore, there is no reason to disbelieve their statements against the accused. Evidentiary value of statement of the hostile witness It is well settled that the statement of the hostile witness cannot be washed of altogether. In this regard in Khujji @ Surender Tiwari vs. State of M.P. - AIR 1991 SC 1853, the Hon'ble Apex Court observed as under:

"It seems to be well settled by the decisions of this Court Bhagwan Singh v. State of Haryana MANU/SC/0093/1975 <javascript:fnOpenGlobalPopUp('/citation/crosscit ations.asp','MANU/SC/0093/1975','1');> :

1976CriLJ203 ; Rabinder Kumar Dey v. State of Orissa MANU/SC/0176/1976 <javascript:fnOpenGlobalPopUp('/citation/crosscit ations.asp','MANU/SC/0176/1976','1');> :

1977CriLJ173 and Syed Akbar v. State of Karnataka MANU/SC/0275/1979 <javascript:fnOpenGlobalPopUp('/citation/crosscit ations.asp','MANU/SC/0275/1979','1');> : 1979CriLJ1374 that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In the present case the evidence of the aforesaid two 48 eye-witnesses was challenged by the prosecution in cross-examination because they refused to name the accused in the dock as the assailants of the deceased. We are in agreement with the submission of the learned Counsel for the State that the trial court made no effort to scrutinise the evidence of these two witnesses even in regard to the factum of the incident. On a careful consideration of their evidence it becomes crystal clear that PW 4 had accompanied the deceased in PW 3's rickshaw to the place of incident. In the incident that occurred at the location pointed out by the prosecution, PW 4 sustained an injury. His presence in the company of the deceased at the place of occurrence, therefore, cannot be doubted. Immediately after the incident within less than an hour thereof PW 4 went to the police station and lodged the first information report. It is true that the first information report is not substantive evidence but the fact remains that immediately after the incident and before there was any extraneous intervention PW 4 went to the police station and narrated the incident. The first information report is a detailed document and it is not possible to believe that the investigating officer imagined those details and prepared the document Exh. P 3. The detailed narration about the incident in the first information report goes to show that the subsequent attempt of PW 4 to dis- own the document, while admitting his signature thereon, is a shift for reasons best known to PW

4. We are, therefore, not prepared to accept the criticism that the version regarding the incident is the result of some fertile thinking on the part of the investigating officer. We are satisfied, beyond any manner of doubt, that PW 4 had gone to the 49 police station and had lodged the first information report. To the extent he has been contradicted with the facts stated in the first information report shows that he has tried to resile from his earlier version regarding the incident. So also the presence of PW 3 at the scene of occurrence cannot be doubted once the presence of PW 4 is accepted. The trial court did not go so far as to say that both these witnesses were not present at the scene of occurrence or that PW 4 was not injured in the incident but refused to look into their evidence treating their evidence as non-est on their being declared hostile by the prosecution.

We think that the approach of the trial court insofar as the evidence of these two witnesses is concerned, is legally unacceptable. The High Court has not endeavoured to assess their evidence since it thought that the conviction of the appellant could be sustained on the evidence of PW 1 Komal Chand. We are satisfied on a close scrutiny of the evidence of the aforesaid two eye- witnesses, PWs 3 and 4, that the deceased and PW 4 came to the place of occurrence in the rickshaw pulled by PW 3. On reaching the spot where the incident occurred they were surrounded by certain persons who were lying in wait and a murderous assault was launched on them. The first to receive the injury was PW 4. When they gauged the intention of their assailants they jumped out of the rickshaw and both ran in different directions. The appellant first tried to chase PW 4 but later he turned to the deceased as he was informed by one of his companions Gopal that the person he was pursuing was not Gulab. Therefore, from the evidence of these two eye-witnesses the fact that the deceased and PW 50 4 came to the place of occurrence in the rickshaw of PW 3 is established. So also the fact that on their reaching the place of occurrence they were surrounded by some persons and an assault was launched on them in which PW 4 received an injury and Gulab died is clearly established. The only area where they have not supported the prosecution and have resiled from their earlier statements is regarding the identity of the assailants. We will deal with that part of the evidence a little later but the fact remains that the deceased had received three injuries as narrated by PW 12 Dr. Nagpal, to which he succumbed on the spot. Once these facts are accepted as proved, the only question which really survives for consideration is whether the appellant was an assailant of the deceased."

From the aforesaid, it is manifest that the witness Aas Mohd. , PW 5, deposed that he saw the deceased in a pool of blood and saw accused running out of the shop, which fact is also corroborated from the testimony of PW4 Md. Jakir. Also, it was stated by him that the accused was seen, running holding a blood stained dagger and wearing blood-stained clothes, by him, which fact is corroborated by the testimonies of Pw5 and Pw 9. Thus, the said statements are good enough to rely on. Thus, this contention of the counsel that PW5 is hostile and his testimony cannot be relied upon 51 at all is without any merit.

PW4 not chasing accused The contention of the counsel for the defence that Md. Jakir, PW4 admitted that he did not chase the accused although he saw the accused running out of the shop holding a blood stained dagger and wearing blood-stained clothes, shows that the said witness did not find the accused to have committed the offence but later impleaded him in a false case due to property dispute, does not find favour with me. It is now well-settled by various decisions of higher Courts that different persons act differently in a given situation.

In Rana Partap v. State of Haryana AIR 1983 SC 680, the Hon'ble Apex Court has observed as follows:

"Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far 52 removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way."

In Dinesh Borthakur v. State of Assam 2008 IV AD (SC) 617, the Hon'ble Supreme Court has observed as follows:

"43. No hard and fast rule having any universal application with regard to the reaction of a person in a given circumstance can, thus, be laid down. One person may lose equilibrium and balance of mind, but, another may remain a silent spectator till he is able to reconcile himself and then react in his own way.

44. Thus, merely because the appellant did not cry or weep on witnessing the dead bodies of his wife and daughter, cannot be made the basis for informing his guilt."

A person who sees his stabbed father lying in a pool of 53 blood and also finds his own brother fleeing, holding a blood stained dagger and wearing blood-stained clothes, is obviously perplexed and it would take time to sink in as to what exactly happened. Thus, merely because, Md. Jakir did not chase the accused while seeing him flee would not demolish the prosecution case, particularly when accused had weapon of offence in his hand.

Difference in time The contention of the counsel for the defence that as per PW2 and the complaint Ex. PW2/DA, time of namaz was 1:15 pm but the prosecution case is that the murder took place at 2:00 pm, is a material factor, is also not of any merit. Such discrepancies are normal discrepancies. Obviously, no person is expected to keep a track of the time of the events which he is not expecting to happen. Be that as it may, in State of Punjab v. Jagir Singh (AIR 1973 SC 2407), Lehna v. State of Haryana (2002(3) SCC 76) and Gangadhar Behera and Ors. v. State of Orissa (2002(8) SCC 381), the Hon'ble Apex Court observed that normal discrepancies in evidence are those which are due to normal errors of observation, 54 normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were also highlighted recently in Krishna Mochi and Ors. v. State of Bihar etc. (JT 2002(4) SC 186 : 2002(2) RCR(Cr.) 567 (SC)) and also in Bhargavan v. State of Kerala, 2004 Cri.L.J. 646 (SC) .

In the present case the discrepency in the statement of witnesses as to time of offence or offering Namaz cannot be said to be material discrepency.

No fingerprints taken-effect Although, the fingerprints are strong and conclusive piece of evidence but merely because no fingerprints were taken from the dagger/weapon of offence and also from the site of offence/incident, 55 would not prove fatal to the prosecution case and will not throw the entire prosecution case to the winds. In circumstantial evidence when the entire chain of circumstances is complete and same point conclusively at the guilt of the deceased, the same fulfill the mandate of the law and is sufficient to convict the accused and merely because a type of test or investigation is not done, viz. fingerprint test herein, would not jettison the entire prosecution case. At the most, the fact that the investigating officer did not take /pick the fingerprints from the spot would amount to defect in the investigation and same can neither be a circumstance favouring accused nor prosecution though investigation agency is liable to criticism due to this lapse, more so, when public and official witnesses have seen accused in blood/stained clothes and with blood stained knife/dagger in his hand. Opinion of doctor - evidentiary value In the instant case, following injuries were mentioned in the post mortem report of the deceased:

1) A cut throat wound of size 13 x 6 cms into muscle deep present over the lower part of the neck extending from midline to 56 backward, transversly on the right side of the neck. Margins were sharp and regular. Both the ends were with acute angle. It was also showing cutting of external jugular vein and neck muscle. No injury over trachea and carotid arteries seen.

2) Incised wound of size 7x1 cms into muscle deep was obliquely present over left cheek. The wound was extending from lateral to downward medially with tailing of wound at medial end.

Medial end lies 2 cms lateral from left angle of mouth. Margins of wound were sharp, regular and bevelling type. Lower margins were undermined.

6) Incised wound of size 4 x 0.4 cms x muscle deep present over left side of chin. Cresentric in shape with bevelling of margins, lower margins were undermined. Wound lies just lateral to midline and 2 cms below from lower lip.

7) A wedge shape stab wound of size 8 x 4 cms x cavity deep present over right side of chest. The base of wound lies just lateral to midline and extending laterally and downwards. Lateral end of wound lies 8 cms medially upwards from right nipple and medial end of wound lies 5 cms below to medial end of right clavicle. Wound directed inward and backward. Wound also showing protruding of part of lung through it. On exploration of wound it showed wound piercing chest wall and cutting of 3rd right rib at costo-chondral junction. Middle lobe of right lung showing cut wound was horizontally placed and passing through and through and measuring 7 58 x 2 cms in size. Right pleural cavity filled with about 500 ml of blood.

8) Incised wound of size 1 x 0;.5 cm x muscle deep was present over ventral aspect of proximal phalanyx of right index finger, placed horizontally.

9) A flap incised wound of size 10 x 5 cms x muscle deep was present over dorsal aspect of right forearm at lower end and just above to wrist joint. Margins of wound were bevelling type directed from upward to downward.

12) Incised wound of size 3 x 0.3 cms x skin deep was present over middle half of left forearm and was horizontally placed over dorsal aspect.

13. A cresentric shape incised wound of size 3 x 0.5 cms present horizontally over dorsal aspect of left forearm was lying 2.5 cms below from injury No. 12.

Upon perusal of the post mortem report of the deceased, Ex. PW 12/A and as per the opinion given and also specified in the testimony of PW12, Dr. B.L. Chaudhary, the doctor who prepared the post mortem report (PMR) of the deceased, it is manifest that the death was caused, individually or collectively, due to hemorrhagic shock as a result of a cut throat wound of size 13 x 6 cms x muscle deep present over the lower part of the neck extending from midline to backward, transversely on the right side of the neck (injury no. 1 in PMR Ex.PW12/A) and a wedge shape stab wound of size 8 x 4 cm x cavity deep present over right side of the chest (injury no. 7 in PMR Ex.PW12/A) and the same were sufficient in the ordinary course of nature to cause death.

Furthermore, in the opinion sought as to whether the dagger with which the accused was caught was the one used to cause injuries on the deceased, the said witness PW 12 opined vide opinion dated 23/1/2007 that the said dagger may possibly have been used to cause injuries to the deceased. Also, in his cross- examination, the said witness stated that it was incorrect that the definite opinion regarding weapon of offence can only be made while making of the post mortem report only.

The law as regards expert evidence enshrined under S. 45 Indian Evidence Act was explained In the case of Vishnu @ Undrya v. State of Maharashtra-(2006) 1 SCC 283, wherein the Apex Court relied on its earlier decision in Madan Gopal Kakkad v. Naval Dubey and Anr., 1992(3) RCR(Crl.) 461 (SC) : (1992)3 SCC 204 observed as under :

"34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the 61 Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court."

Once, a circumstance is put to the expert witness during cross-examination and he gave his opinion on it, the counsel for the defence cannot claim otherwise unless there is some cogent ocular evidence to the contrary in that regard. From the aforesaid, it is manifest that the deceased was injured with the said dagger and such injuries caused his death/proved fatal.

Intention/ knowledge 'Intention' is different from 'knowledge' and 'motive'. In this regard, the following observations in Jai Prakash vs. State (Del. Admn.) - (1991) 2 SCC 32, are worth noting:

"12. Referring to these observations, Divisional Bench of this Court in Jagrup Singh's case observed thus :-

"These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh's case for the applicability of clause Thirdly is now ingrained in our legal system and 62 has become part of the rule of law."

The Division Bench also further held that the decision in Virsa singh's case has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words the 3rd Clause consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury whereas the second part whether it was sufficient to cause the death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that Clause. The `intention' and `knowledge' of the accused are subjective and invisible state of mind and their existence has to be gathered from the circumstances, such as the, weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the code designedly used the words `intention' and `knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the 63 samething as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he, must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to `knowledge', `intention' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end.

13. Kenny in "Outline of Criminal Law" (17th Edition at page 31) has observed :-

"Intention : To intend is to have in mind a fixed purpose to reach a desire objective; the noun `intention' in the present connexion is used to denote the state of mind of a man who not only forsees but also desires the possible consequences of his conduct. Thus if one man throws another from a high tower or cuts off his head it would seem plain that the both foresees the victim's death and also desires it : the desire and the foresight will also be the same if a person knowingly leaves a helpless invalid or infant without nourishment or other necessary support until death supervenes. It will be noted that there cannot be intention unless there is also foresight, since a man must decide to his own satisfaction, and accordingly must foresee, that to which his express purpose is directed.

Again, a man cannot intend to do a thing unless he desires to do it. It may well be a thing that he dislikes doing, but he dislikes still more the consequences of his not doing it. That is to say he desires the lesser of two evils, and therefore, has 64 made up his mind to bring about that one."

Russel on Crime (12th Edition at Page 41) has observed :-

"In the present analysis of the mental element in crime the word `intention' is used to denote the mental attitude of a man who has resolved to bring about a certain result if he can possibly do so. He shapes his line of conduct so as to achieve a particular end at which he aims."

It can thus be seen that the `knowledge' as contrasted with `intention' signify a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive. On the otherhand, `intention' is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. It means shaping of one's conduct so as to bring about a certain event. Therefore in the case of `intention' mental faculties are projected in a set direction. Intention need not necessarily involve premediation. Whether there is such an intention or not is a question of fact. In Clause Thirdly the words "intended to be inflicted"

are singnificant.l; As noted already, when a person commits an act, he is presumed to expect the natural consequences. But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature. However, the presumption arises that he intended cause that particular injury. In such a situation the Court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption 65 and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case. However, as pointed out in Virsa Singh's case the weapon used, the degree of force released in wielding it, the antecedent relation of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether the injury was inflicted during a struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of the relevant factors. These and other factors which may arise in a case have to be considered and if on a totality of these circumstances a doubt arises as to the nature of the offence, the benefit has to go to the accused. In some cases, an explanation may be there by the accused like exercise of right of private defence or the circumstances also may indicate the same. Likewise there may be circumstances in some cases which attract the first exception. In such cases different considerations arise and the Court has to decide whether the accused is entitled to the benefit of the exception, though the prosecution established that one or the other clauses of Section 300 I.P.C. is attracted. In the present enquiry we need not advert to that aspect since we are concerned only with scope of clause Thirdly of Section 300 I.P.C."

Intention or knowledge can basically be inferred from the expression used by the offender; weapon used; number and nature of injuries inflicted and deliberation gone into by the offender at the time 66 of committing the act.

From the aforesaid discussion, it is clear that the witnesses saw accused fleeing out of the shop where the deceased was found lying in a pool of blood holding a blood stained dagger in one hand and wearing blood stained clothes. On perusal of the post mortem report, it is manifest that the deceased received 13 injuries and out of them the injury nos. 4, 6 and 7 were missed injuries. Clearly, the accused had all the will to cause more harm as regards the places where injury nos. 4, 6 and 7 are concerned. Also, the fact that the accused cut the throat of the deceased and caused a stab wound on the chest of the deceased goes to show that the accused had all the intention to kill the deceased, especially, when PW12 also opined that said injuries, individually or collectively, were sufficient in the ordinary course of nature to cause death. In this regard following observations in Abdul Waheed Khan @ Waheed v. State of Andhra Pradesh- AIR 2002 SC 2961 are being referred below:

"It is the intention prevailing at the time of assaults, which determines the applicability of the relevant provisions. One of the factors which appears to have weighed with the trial court, and on which the 67 reliance was placed to alter conviction to Section 304 Part I was the finding that the two injuries which were stated by the doctor PW8 to be sufficient to cause the death were possible by fall. A reading of the post-mortem report indicates that several injuries were stated by the doctor to be the cause of death and the two injuries noticed by the trial court were not the only ones. In fact, injury No. 5 i.e. stab injury was one of them. There were six stab wounds. The doctor stated injury Nos. 5, 7 and 11 and internal injuries 1 and 2 were sufficient to cause death in the normal course of nature. Much was made by the trial Court of the statement of PW-8 to the effect that cause of death could be stab wounds associated with head injury. It was, however, not noticed that the doctor clarified to the following effect : "The Stab wounds as well as the head injury are individually sufficient to cause death". The stab wounds came first and then the possible fall. Taking into account the totality of the circumstances the conviction recorded by the High Court under Section 302 IPC cannot be faulted."

Murder or Culpable Homicide Not Amounting to Murder:

Having dealt with the contentions of counsel for the defence, it is manifest that the accused with an intention to kill the deceased, caused injuries to the deceased, his father which were sufficient in the ordinary course of nature to cause death. Now, what remains to be seen is, what offence is made out by the accused.

Section 299 IPC defines culpable homicide not amounts to 68 murder and S. 300 IPC defines culpable homicide amounting to murder. In the scheme of the IPC culpable homicide is genus and 'murder' is 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 the generic offence, the IPC practically recognizes 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 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 punishment for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. (see: Laxman vs. State of M.P. - AIR 2006 SC 3240).

The following observations in Laxman's case (Supra), are worth noting and are relevant viz-a-viz the present case:

"12. For cases to fall within Clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and Anr. v. State of Kerala (AIR 1966 SC 1874) is an apt illustration of this point.

13. In Virsa Singh v. State of Punjab (AIR 1958 SC 465), Vivian Bose, J. speaking for the Court, explained the meaning and scope of Clause (3). It was observed that the prosecution must prove the following acts before it can bring a case under Section 300 IPC, "thirdly". First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeded further, and fourthly it must be proved that the injury of the type just described made up the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

14. The ingredient of clause "Thirdly" of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows :

"12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300, "thirdly".

First, it must establish, quite objectively, that a 70 bodily injury is present;

Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

15. The learned Judge explained the third ingredient in the following words (at page 468):

"The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question; and once the existence of the 71 injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion."

16. These observations of Vivian Bose, J. have come locus classicus. The test laid down by Virsa Singh's case (supra) for the applicability of clause "Thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied : i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. 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, viz., that the injury found to be present the injury that was intended to be inflicted.

17. Thus, according to the rule laid down in Virsa Singh's case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 IPC clearly brings out this point."

Thus, clearly, all the ingredients of clause thirdly of S. 300 IPC have been proved beyond reasonable doubt by the prosecution by proving postmortem reports and testimony of Dr. B. L. Chaudhary. 72 Crucial Circumstances In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:

" 29. It is settled law that circumstances play very important role in the appreciation of evidence. The conduct of witnesses is a very important facet to determine their creditworthiness. "

In the present case, the eye witness PW4 the complainant Zakir has stated that he saw accused Md. Farukh having Khanjar(dagger) in his hand which was smeared in blood and he saw accused fled away from the spot. PW5 Aas Mohd with brother-in-law of the accused also saw accused running from the spot. PW9 Ct. Ram Bilas who arrested the accused has stated that the accused had blood stained knife in his hand and his dress was also blood stained. The other police witnesses PW16 SI A. K. Singh, PW19 SI Fazruddin have seen the accused with blood stained clothes and also the weapon of offence with blood stains, recovered from the accused. Thereafter, after the murder of the victim Ali Sher, the father of the accused, the accused was found running from the spot by his brother 73 and brother in law and accused was arrested by PW9 Ct. Ram Bilas when he was appearing with blood stained clothes and having knife with blood stains in his possession. The other witness SI A K Singh and SI Fazruddin also saw blood stained clothes of the accused. These blood stained clothes are proved as Ex.PW9/P2 and Ex.PW9/P3. The blood stained dagger Ex.PW9/P1 was seized by police vide memo Ex.PW9/D and blood stained clothes of the accused Ex.PW9/P2 and Ex.PW9/P3 were seized by police vide memo Ex.PW9/E. PW12 Dr. B. L. Chaudhary has conducted postmortem on the body of the deceased Ali Sher. He has not only given the opinion indicating the cause of the death of the victim but also has given subsequent opinion Ex.PW12/B that the knife Ex.PW9/P1 alleged to be recovered from the accused can cause injuries inflicted on the body of the deceased Ali Sher may have been used for inflicting injuries found on the person of deceased Ali Sher. These are crucial circumstances appearing against accused leading to the inference that the accused has committed murder of his father Ali Sher.

Additional Link The accused absconding after incident is an additional circumstance which reinforces prosecution case, no explanation given by the accused as to where they were, indicates their guilty mind. (See Vaman Jaidev Raval v State of Goa, 2007 Cr LJ (NOC) 431 (Bom).) In the present case two witnesses PW4 the complainant Zakir, the brother of the accused and PW5 Aas Mohd., the brother in law of the accused have testified having seen the accused running from the spot soon after murder of the victim Ali Sher and soon after that, the accused was arrested by PW9 Ct. Ram Bilas with blood stained dagger and blood stained clothes. This certainly is an additional circumstance in support of the prosecution case in the light of Vaman Jaidev Raval's case (supra).

It is a well settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. (See 75 Swepan Patra v State of West Bengal (1999) 9 SCC 242; Anthony D'Souza & ors v State of Karnataka 2002 (10) AD 37 (SC)) A false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. In such a situation a false answer can also be counted as providing 'a missing link' for completing the chain. (See State of Maharashtra v Suresh 2000 (1) SCC 471, 2000 SCC (Cr) 263; Kuldeep Singh & ors v State of Rajasthan 2001 Cr LJ 479 (SC), (2000) 5 SCC 7; Joseph v State of Kerala AIR 2000 SC 1608, (2000) 5 Sec 197; Jalasab Shaikh v State of Goa AIR 2000 SC 571, 2000 AIR SCW

111.) Where the accused on being asked, offers no explanation or explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. (See Chandrasekhar Kao v Ponna Satyanarayana AIR 2000 SC 2138, JT 2000 (6) 465 SC; State of Tamil Nadu v Rajendran AIR 1999 SC 3535, 1999 Cr LJ 4552; Hari Lal v State 2001 Cr LJ 695 (All) (DB); Madho Singh & etc v State of Rajasthan 2001 Cr LJ 2159 (Raj) (DB); Sonatan Mahalo v State of West Bengal 2001 Cr LJ 3470 76 (Cal) (DB).) In the statement under Section 313 CrPC, the accused denied that he was having blood stained knife in his hand and his clothes were blood stained. He has also denied that PW4 the complainant Zakir saw him having Khanjar(dagger) in his hand which was smeared in blood. He also denied that he was arrested and his personal search was conducted vide memo Ex.PW9/A or he gave disclosure statement Ex.PW9/C or his dress was seized vide memo Ex.PW9/E, despite the fact that these facts are clearly proved by prosecution evidence, referred before.

He took the plea that he was innocent and has not committed the offence and has been falsely implicated in this case by his brother, in relation to property dispute. He also has stated that his brothers namely Iqbal and Aas Md. came to see him in jail and met him and threatened him in jail but these facts are not proved by accused by leading any defence evidence. Neither any property dispute with his brother was specified by giving particulars of the property over which there was dispute amongst brothers nor the 77 accused has cross examined his brothers PW2 and PW4 with regard to any property dispute between him and his brothers. Therefore, in the light of Swepan Patra's case (supra) , Anthony D'Souza's case (supra) , State of Maharashtra v Suresh's case (supra) , Kuldeep Singh's case (supra) , Joseph's case (supra) , Jalasab Shaikh's case (supra) , Chandrasekhar Kao's case (supra) , Rajendran's case (supra) , Hari Lal's case (supra) , Madho Singh's case (supra) and Sonatan Mahalo's case (supra), the incorrect explanation or statements made by accused in the statement under Section 313 CrPC can be taken as additional link in the chain of circumstances proved by prosecution against him to complete the chain and prove his guilt.

RESULT OF THE CASE In view of the aforesaid discussion, I hold that the prosecution has successfully proved its case against the accused beyond reasonable doubt for the charge for the offence under clause thirdly of section 300 IPC punishable under S. 302 IPC, the accused 78 is accordingly convicted of the said charge framed against him. Let accused be heard on point of sentence separately. The judgment be sent to the server (www delhidistrictcourts.nic.in).




Announced in the open
court on 12/10/09                       (S K SARVARIA )
                                Addl Sessions Judge-01/South
                                       Patiala House Court
 79

Legal Document View

Unlock Advanced Research with PRISMAI

Delhi District Court

State vs . Mohd. Farukh on 12 October, 2009