Delhi District Court
State vs . Guddu @ Pandu S/O Chhidwa, R/O J25, ... on 1 September, 2010
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IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM
ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 99/09
Unique Case ID No. 02402R0206322009
State Vs. Guddu @ Pandu S/o Chhidwa, R/o J25, Janta Colony, Welcome,
Delhi.
FIR No. 95/09
PS Seelampur
U/s 302 IPC.
Date of Institution : 20.07.09
Date of reserving the Judgement : 06.08.2010
Date of pronouncement : 26.08.2010
J U D G E M E N T : Prosecution's case emanates from the fact that on 02.03.09 Munavar and his cousin brother Firasat Ali went to Kanti Nagar, Delhi. While returning from Kanti Nagar, they boarded a RTV bus route No.24 from Welcome Metro Station. A few passengers boarded the said bus from Seelampur red light. At about 7 or 7.15pm, the bus reached at Kabadi pulia. One of the passengers, who boarded bus at Seelampur red light, put his hand in the pocket of Firasat Ali. Firasat Ali caught hold of his hand. That boy insisted Firasat to leave his hand. When he did not leave his hand, that boy took a knife from his other hand and wielded a knife blow on the cheek of Firasat Ali and another blow on his left lower abdomen. Firasat Ali fell down from the bus. That boy also jumped from the bus. Munavar raised alarm and jumped from the bus to save his brother Firasat Ali. Munavar removed his brother to Kamal Nursing Home, Zafarabad, in a TSR. From there, he removed Firasat Ali to GTB Hospital. Firasat Ali was declared as brought dead at GTB Hospital. Police reached at hospital. Statement of Munavar S.C. No. 99/09 Page 1/44 2 was recorded, which became bedrock of the case. Investigation was taken up. During the course of investigation, name of the boy, who killed Firasat Ali, revealed as Guddu @ Pandu. On 23.03.09, accused Guddu @ Pandu was arrested u/s 41.1 Cr.P.C. On interrogation, he made disclosure regarding the instant case. Investigation culminated into a charge sheet against the accused.
2. Charge for offence punishable under section 302 IPC was framed against the accused, to which charge he pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Bishamber Dayal (PW1), Tooki Ram, Head Constable (PW2), Dr. Sanju Kohli (PW3), Munavar (PW4), Charanjeet, Ahlmad (PW5), Wasim (PW5), Nazim (PW6), Pawan Kumar, Head Constable (PW7), Sanoj (PW8), Ashok Kumar, Head Constable (PW9), Umesh Kumar, Head Constable (PW10), Udai Bhan Yadav, Constable (PW11), Satpal Singh ASI (PW12), Narayan Singh, Head Constable (PW13), Jaswant Saini, Head Constable (PW14), Parmod Joshi, Inspector (PW15), Ashok Kumar, Constable (PW16), Laique Ahmed, ASI (PW17), Dr. Meghali Kelkar (PW18), Parshuram Singh, Sr. Scientific Officer (PW19), Ms. Anita Chhari, Sr. Scientific Assistant (PW20) and N.R. Lamba, Inspector (PW21) in the case.
4. Bishamber Dayal (PW1) is the driver of RTV bus. His testimony will be discussed later on.
Tooki Ram, Head Constable (PW2) recorded FIR and proved copy of the same as Ex.PW2/A. Dr. Sanju Kohli (PW3) prepared MLC of deceased Firasat Ali and proved the same as Ex.PW3/A. Munavar (PW4) is the complainant//author of FIR. His testimony will S.C. No. 99/09 Page 2/44 3 be discussed in later part of the judgement.
Charanjeet, Ahlmed (PW4) deposed, on seeing the record, that kalandra vide DD No. 9A dated 22.03.09 was not submitted in his Court. He also deposed that said kalandra must be in the Court of PS Seelampur.
Wasim (PW5) identified dead body of his nephew Firasat Ali at GTB Hospital, vide his identification statement Ex.PW5/A. After the postmortem, dead body was given to father of Firasat Ali vide handing over memo Ex.PW5/B. Nazim (PW6) is the elder brother of deceased Firasat Ali. He also identified dead body of his brother, vide his identification statement Ex.PW6/A. Thereafter, dead body was handed over to them vide handing over memo Ex.PW6/B. Pawan Kumar, Head Constable (PW7) was posted at PS Seelampur, Delhi, on 23.03.09. On that day, he along with IO/Inspector Neki Ram went to PS Lodhi Colony. Accused Guddu @ Pandu was in the custody of police officials of PS Lodhi Colony. IO interrogated accused Guddu @ Pandu in a room at PS Lodhi Colony. Later on, police officials of Lodhi Colony produced accused at Patiala House Courts. ld. MM at Patiala House directed to produce the accused before the concerned Court. Later on accused was produced before the Duty MM at Karkardooma Courts. Inspector Neki Ram moved an application to interrogate and arrest accused Guddu @ Pandu. Application to interrogate the accused was not allowed. Investigating officer arrested accused Guddu @ Pandu. Later on, accused was sent to judicial custody by the Court. On 24.03.09, investigating officer moved an application S.C. No. 99/09 Page 3/44 4 before the concerned Court to interrogate accused Guddu @ Pandu, which was allowed by the Hon'ble Court. Investigating officer interrogated the accused in the Court premises and recorded his disclosure statement vide Ex.PW7/A. On 27.05.09, MHC(M) gave him four parcels duly sealed to deposit the same at FSL Rohini. Accordingly, he deposited the case property at FSL Rohini, vide RC No. 48/21. He gave a copy of the receipt to MHCM. He had also put his signatures on arrest memo Ex.PW7/B of the accused.
Sanoj (PW8) is the conductor of the RTV bus. His testimony will be discussed later on.
Ashok Kumar, Head Constable (PW9) made entry at sr. No. 2269 of store room register in respect of deposit of one duly sealed parcel and proved the photocopy of the same as Ex.PW9/A. On 12.05.09, he gave one parcel duly sealed to Inspector N.R. Lamba of PS Seelampur by the order of Hon'ble Magistrate Sh. Suresh Kumar Gupta, vide RC No. 48/21.
HC Umesh Kumar (PW10) took tehrir recorded by the investigating officer and got the case registered. In the hospital, doctor gave him two parcels, duly sealed with seal of hospital. Same were taken into possession vide memo Ex.PW10/A. On 09.03.09, he went to GTB Hospital, Mortuary, where doctor gave one sealed pullanda with seal of KKB and one sample seal. He produced the same to the investigating officer, N.R. Lamba and same was taken into possession vide memo Ex.PW10/B. Udai Bhan Yadav, Constable (PW11) was working as duty constable at GTB Hospital. He had given information at PS Seelampur, vide DD No. 25A, regarding one person, namely, Munavar who had S.C. No. 99/09 Page 4/44 5 brought one patient, namely, Firasat Ali at GTB Hospital, as brought dead.
Satpal Singh ASI (PW12) along with Inspector N.R. Lamba and accused went at 66 feet road, Seelampur, in front of Kabadi Market near Water Tank. Accused pointed out the place, wherein he stabbed one person in a moving RTV. Investigating officer prepared pointing out memo Ex.PW12/A. Narayan Singh, Head Constable (PW13) was posted at PS Seelampur as DD writer, on 22.03.09. At about 5.15pm, SI Parmod Joshi of PS Lodhi Colony gave information that Guddu @ Pandu has been apprehended u/s 41.1 Cr.P.C, who is wanted in case FIR No. 95/09, PS Seelampur. He further stated that accused Guddu @ Pandu has made disclosure statement regarding his involvement in the present case and he has been detained in the lock up. He made entry to this effect at Sr. No. 28B. He proved photocopy of the same as Ex.PW13/A. Jaswant Saini, Head Constable (PW14) was working as MHCM, at PS Seelampur, on 12.05.09. Inspector N.R. Lamba produced one sealed parcel with the seal of RS before him. He made an entry to this effect at Sr. No. 3722 and proved photocopy of the same as Ex.PW14/A. On 27.05.09, he sent the parcel to FSL Rohini through HC Pawan, vide R.C. No. 08/21. He proved copy of the same as Ex.PW14/B. SI Pramod Joshi (PW15) joined investigation of the case on 22.03.09. He detailed those investigative steps, which took place in his presence.
Ashok Kumar, Constable (PW16) delivered three envelops containing copy of FIR to joint CP, DCP and concerned MM.
Laique Ahmed ASI (PW17) was posted at PS Seelampur. On that S.C. No. 99/09 Page 5/44 6 day at about 9.30pm, an information was received from GTB Hospital and the information was reduced into writing in the form of DD No.25 Mark A. He along with HC Umesh went to GTB Hospital. He collected the MLC No. A901/09 of deceased Firasat Ali. On the MLC, doctor mentioned patient brought dead. He inspected the body of Firasat. On the left side of his cheek and on the left side of his abdomen, there were stab injuries. Senior officers also reached at GTB Hospital. One person, namely, Munavar brother of deceased was also present in the hospital. He recorded his statement. He made endorsement on the same vide Ex.PW17/A. He gave tehrir to HC Umesh for getting the case registered. After registration of the case, investigation was assigned to Inspector N.R. Lamba.
Dr. Meghali Kelkar (PW18) conducted postmortem on the dead body of Firasat Ali. She proved the postmortem report as Ex.PW18/A. She also proved her subsequent opinion on the said postmortem report as Ex.PW18/B and deposed that she conducted postmortem on the dead body of Firasat and found following injuries : (1) Reddish abrasion 4X2 cm present on left side of forehead 1.5cm above middle of left eyebrow and 3cm from midline.
(2) Reddish abrasion 2.5X1cm present on left temporal region 4cm medial to left ear and 1cm below lateral end of left eyebrow surrounded by reddish blue contusion on the medial end.
(3) Reddish abrasion 1X1.5cm present on left cheeck 1.5cm below injury and 6cm lateral from dorsum of nose.
(4) Incised wound lightly curved and obliquely placed on left cheek measuring 8.5cm X 0.2 X 0.3 cm with upper medial end 2cm lateral to left ala of nose and lower lateral end 4cm below left ear lobule. S.C. No. 99/09 Page 6/44
7 (5) Incised wound measuring 2.5cm X0.2X0.4cm present on left ala of nose cutting the underline ala cartilage.
(6) Reddish abrasion 3X0.8 cm present dorsum of nose just below gabella.
(7) Superficial incised wound measuring 3X0.2X0.2cm present on left lower face 2cm below left angle of mouth and 3cm from midline. (8) Three linear abrasions parallel to each other obliquely placed on submental region in an area of 4X1cm just below symphysis menti and 1cm from midline.
(9) Incised stab wound measuring 2.5X0.2X11 cm present obliquely on left lower abdomen 7cm from midline and 26 cm below left nipple. Both angles of wound were acute and margins were clean cut. The track of the wound was directed upwards, backward and medially cutting through the abdominal wall and muscles and entering into the abdominal cavity cutting the jejunal loops at three sites and cutting the mesentry measuring 1X0.2 cm. Extravassation of blood seen throughout the track about 2 to 2.5 litre of blood was present in abdomen cavity. Cutting of mesentry blood vessels and left common iliac artery was seen.
(10) Lacerated wound measuring 0.5 X 0.5cm surrounded by abrasion present on left forehead 2cm from midline and 2.5cm above left eyebrow. The wound is subcutaneous tissue deep.
(11) Reddish abrasion 2X 1.2cm present on left lower face 2cm below left angle of mouth and 1.5cm from midline.
(12) Multiple reddish abrasions in area of 6X4cm size ranging from 2X2 cm to 1X0.5cm present on knuckles of fingers of left hand. (13) Superficial incised wound measuring 0.5x 0.1 X 0.1 cm present on S.C. No. 99/09 Page 7/44 8 inner aspect of right hand palm 1cm below thumb.
(14) Lacerated wound measuring 0.5X0.5cmX0.2cm present on hypothenar aspect of left hand.
(15) Reddish abrasions multiple in number present on knuckles of 1st fore finger of right hand size ranging from 2.5cm X2cm to 5.5cm. (16) Reddish abrasion 2X0.5cm present on right knee joint. (17) Reddish abrasion 1X1cm present on lateral aspect of left arm just above elbow joint.
She also opined the cause of death was haemorrhagic shock as a result of antemortem injury to mesentric vessels and left common iliac artery produced by "double sharp edged weapon". The injury No.9 was sufficient to cause death in ordinary course of nature.
Sh. Parshuram Singh, Sr. Scientific Officer (PW19) examined exhibits of the case. He proved his report as Ex.PW19/A. Ms. Anita Chhari, Sr. Scientific Assistant (PW20) examined exhibits viz 1a, 1b, 2 & 6 and proved her report as Ex.PW20/B. Inspector N.R. Lamba (PW21) conducted investigation of the case. He deposed that on 02.03.09, he was posted at PS Seelampur, Delhi. On that day, DD No. 25 was received by ASI Laique Ahmed. On receipt of this information, he along with his staff reached at GTB Hospital. HC Umesh gave copy of FIR and original tehrir as the investigation of the present case was assigned to him. He got sent the dead body to mortuary. Thereafter, he along with complainant Munavar, ASI Laique Ahmed, HC Umesh and other police staff went at the place of occurrence, that is, water tank, 66 feet road, which leads from Seelampur to Gokulpuri flyover via Jafarabad. He inspected the site and prepared site plan at the instance S.C. No. 99/09 Page 8/44 9 of Munavar vide Ex.PW21/1. He came to know during his inquiry that the occurrence had taken place in a moving RTV No. DL1VA0515 rout No. 24F928A, plying between Bhajanpura and Jheel. He came to know that said vehicle was parked in the area of Ghonda. He also came to know regarding driver of RTV, namely, Bishamber Dayal and conductor, namely, Sanoj. He contacted both these persons at their rented accommodation at H Block, Seelampur and thereafter they both had taken him at H.No. 109, Kumarwali Gali, Purana Gaon, Ghonda, Delhi and he found that the aforesaid vehicle was found parked in front of that house. He had taken the vehicle into police possession vide memo Ex.PW21/B. Thereafter, they brought the vehicle to PS by driver Bishambar and it was deposited in the malkhana. On 03.03.2009, he went to GTB Hospital. He recorded identification statement of one Habib Khan, Wasim and Nazeem, vide memo Ex.PW21/C, Ex.PW5/A and Ex.PW6/A. He gave his request for conducting the post mortem vide his application Ex.PW21/D. Inquest form is Ex.PW21/E. After postmortem, the dead body was given to the relative of deceased vide memo Ex.PW5/B. He searched for the accused, but he could not be traced. On 09.03.09, HC Umesh Kumar produced one sealed envelop stated to be containing blood sample on gauze of deceased Firasat and one sample seal of GTB Hospital. The same were taken into police possession vide memo Ex.PW10/B. He deposited the same in the malkhana. On 22.03.09, an information was received vide DD No. 28B, which is Ex.PW21/F and verified by him at point A, from Lodhi Colony, to the effect that one person, namely, Guddu @ Pandu has been arrested under section 41.1 Cr.P.C., who had made his disclosure statement regarding his involvement in the present case. S.C. No. 99/09 Page 9/44
10 On 23.03.09, they went to PS Lodhi colony. He interrogated accused Guddu @ Pandu, and obtained the photocopy of the kallandra, arrest memo, personal search memo, disclosure statement etc. from SI Parmod of PS Lodhi Colony. Accused Guddu @ Pandu was produced at Patiala House Courts, in muffled face, by SI Parmod. He moved an application to interrogate the accused before that Court and accordingly permission was given. He made inquiries from accused and later on arrested him vide arrest memo Ex.PW7/B. He was directed by the concerned ld. MM of Patiala House Court, to produce accused at Karkardooma Courts. Thereafter, accused Guddu @ Pandu was produced before the concerned Court at Karkardooma Courts at 5pm in the Court of duty MM, who directed to produce the accused before the concerned Court on next day. Accused was sent to JC.
On 24.03.09, accused Guddu @ Pandu was produced before concerned Court. He moved an application to interrogate the accused and on receipt of the orders, he interrogated accused Guddu @ Pandu, recorded his disclosure statement vide memo Ex.PW7/A. In his disclosure statement, accused had stated that he was apprehended by the police officials of PS Welcome, at the time, when he was having one knife in his hand and he deliberately got himself arrested in that case so that he can escape from the present case. After interrogation, he moved an application for the TIP of accused Guddu @ Pandu. Accused was sent to Link ld. MM Court, where accused refused to participate in TIP proceedings. Accused was sent to JC. Production warrants were got issued against accused Guddu @ Pandu to produce him before the concerned Court on 30.03.09. Accused was taken on one day police S.C. No. 99/09 Page 10/44 11 remand. He interrogated accused and on 01.04.09, accused Guddu @ Pandu pointed the place, that is, Seelampur Red Ligh, from where he boarded the vehicle and committed the offence in the said moving vehicle and thereafter got down near Water Tank. He prepared his pointing out memo vide Ex.PW12/A. He produced accused before the concerned Court on 01.04.09 from there he was sent to judicial custody. He moved an application before the concerned Court of PS Welcome for the transfer of case property that is knife from PS Welcome to PS Seelampur, which was recovered from the accused in case FIR No. 45/2009, u/s 25 Arms Act, PS Welcome, and accused had made disclosure statement that he had used this weapon of offence in the present case. On 12.05.2009, HC Ashok Kumar, MHC(M) of PS Welcome, handed over one sealed pulanda with the seal of RS and he had taken the same into his possession vide memo Ex.PW21/G. He deposited the same in the PS Seelampur. On 19.05.2009, autopsy surgeon was requested to give his subsequent opinion with regard to weapon of offence vide his request Ex.PW21/H. He had taken sealed pulanda from MHC(M) and gave the same to autopsy surgeon for obtaining subsequent opinion. On 26.05.2009, he collected the subsequent opinion of autopsy surgeon and one parcel duly sealed with the seal of KKB was given to him and he had deposited the same with MHCM.
On 27.05.09, he got sent the exhibits of case to FSL, Rohini, through HC Pawan Kumar. He recorded statement of witnesses and after completion of investigation, challan was prepared.
5. In order to afford an opportunity to explain circumstances appearing in evidence against the accused, he was examined under section 313 S.C. No. 99/09 Page 11/44 12 Cr.P.C. He had denied all allegations levelled against him. His case has been of denial simplicitor. He alleged his false implication in the case. He projects that he has been made BC by police of PS Welcome and whenever they want they implicate him falsely in any case. He did not know about the present case. Firstly, he was falsely implicated in an Arms Act by police officials of PS Welcome. Nothing was recovered from his possession. Thereafter, present case was planted upon him. Police official did not apprehend the real culprit. He claims himself to be innocent. In order to defend himself, he has examined two witnesses in his defence, namely, Mehboob (DW1) and Shabbo (DW2).
6. I have heard Sh. Ravinder Khandelwal, ld. Prosecutor for the State and Sh. Mohd. Hasan, Advocate, amicus curiae for the accused, and have perused the record.
7. It was submitted by Sh. Mohd. Hasan, Advocate, that there is solitary testimony of PW4 Munavar, on which no reliance can be placed, inasmuch as, he is closely related to the deceased. Moreover, there was no occasion for him to be present with deceased at the time of alleged incident, inasmuch as, he as well as deceased are living separately at separate places and therefore they could not have been together at the time of alleged incident. Moreover, the doctor has opined that injury on the person of deceased are not possible by weapon of offence allegedly recovered from accused. He further submitted that accused had also refused to join TIP as he was shown to the witnesses. That being so, it is submitted that prosecution has not been able to bring home guilt of the accused beyond reasonable doubt, as such accused is entitled to be acquitted of the charge.
S.C. No. 99/09 Page 12/44
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8. Per contra, it was submitted by ld. Prosecutor that there is no reason to discredit testimony of complainant Munavar, who was with deceased at the time of incident and is eyewitness of the incident. It was he only, who took injured to hospital. Despite crossexamination, nothing could be elicited to discredit his testimony. His testimony is cogent and consistent and conviction can be based upon his solitary testimony. Moreover, his testimony finds substantial corroboration from medical evidence. As regards the opinion of doctor that injury No.9 was not possible by the weapon alleged to have been recovered from accused, it was submitted that complainant was not shown this weapon of offence and he has nowhere deposed that injuries were caused on the person of deceased by this weapon. Rebutting the contention ld. Defence counsel, it was submitted by ld. Prosecutor that since accused had refused to join TIP proceedings as such an adverse inference has to be drawn against the accused. It was further submitted that after causing serious injuries on the person of Firasat Ali, which proved fatal the accused got himself arrested in a case under 25 Ams Act, and he with a view to mislead the police produced a weapon of offence, and therefore even if initial opinion was given by the doctor that injury No.9, which was the main cause of death of the deceased was not caused by this weapon of offence, same is not fatal to the case of prosecution, inasmuch as, if ocular testimony is cogent and consistent, that has to be given due weight age than medical evidence. It was submitted that testimony of Munavar is trustworthy, reliable and cogent and the same can be made basis to convict the accused for offences alleged against him.
S.C. No. 99/09 Page 13/44
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9. I have given my considerable thoughts to respective contentions of the ld. Counsels for the parties and have perused the record.
10. PW1 Bishamber Dayal was driver of RTV bus, bearing No. DL1A 0515 from Jheel to Bhajanpura. This witness has unfolded that on 02.03.09, he was driving the aforesaid RTV and was coming from Jheel. At about 77.15pm, four or five passengers boarded his RTV from Seelampur Red Light stand. When he drove the vehicle to some distance from that red light, he heard commotion from inside the RTV itself. Conductor Sanoj gave signal to stop the RTV and accordingly, he applied brakes and stopped the vehicle. Four or five persons got down from RTV. Other passengers inside the RTV asked him to drive the vehicle as occurrence of stabbing took place inside RTV bus. The person who stabbed got down from the bus and ran away. When he applied brakes to stop the vehicle, he noticed that blood was oozing out from the cheek of one passenger and he also got down. When passengers asked him to drive the vehicle, he drove it and reached his destination, that is, Bhajanpura and informed his owner regarding the occurrence, who directed him to bring the vehicle to his residence. Accordingly, he drove the vehicle to the residence of his owner. He could not see the person, who stabbed, as he was driving the vehicle and his attention was towards driving.
11. PW4 Munavar is the complainant. He has unfolded that on 22.03.09, he along with his cousin brother Firasati Ali boarded one RTV bus of route No.24, which plies between Bhajanpura and Jheel, at about 77.15pm, from Kanti Nagar Metro Station. At about 7.15pm, their vehicle reached at red light Seelampur. Three or four passengers boarded the S.C. No. 99/09 Page 14/44 15 RTV. Accused was one of them. The bus started plying on the Jafrabad road for going to Bhajanpura. When bus reached near water tank, accused put his hand on the back pocket of his brother, namely, Firasat Ali. Firasat Ali caught hold of his hand. Accused asked his brother Firasat Ali to free his hand. When his brother Firasat Ali did not free his hand, accused had taken out the knife from the other hand and stabbed on the face of Firasat and on the left abdomen, due to which he fell down from the bus. Accused also got down from the bus and again gave beatings to his brother Firasat Ali. He also got down from the bus. He chased the accused, but he managed to run away from the spot. He took his injured brother to Kamal Nursing Home, Jafrabad, in a TSR, where doctors asked him to take injured to GTB Hospital. Thereafter, he took him to GTB Hospital, where doctors declared him to be "brought dead". He gave statement to police, which is Ex.PW4/A. From hospital, he went to police station and from there he went along with police officials to place of occurrence to show the place of occurrence. After one month from the date of occurrence, he went to police station where he saw accused sitting at police station. He identified the accused there itself and stated that he is the same person, who had stabbed his brother. At that time, he was not aware about name of the accused and came to know about his name in the police station only.
12. PW6 Nazim had identified dead body of his brother Firasat Ali, vide his identification statement Ex.PW6/A. After postmortem, dead body was handed over, vide memo Ex.PW6/B. When this witness was reexamined by the ld. Prosecutor, he deposed that he received an information through his friends at about 6.457pm to the effect that his brother has been S.C. No. 99/09 Page 15/44 16 stabbed. He was told to reach to Kamal Nursing Home, Jafrabad. He reached there and saw that his brother was in a pool of blood. Munavar, his mausi's son was with his injured brother. He asked the doctor at Kamal Nursing Home to attend his brother. Doctor stated to him that he has expired. He again asked doctor to take care of his brother. On this doctor stated that for the purpose of satisfaction, take the injured to GTB Hospital. Munavar had informed his mother through his mobile and she also met them at Kardampuri Red Light. He himself, Munavar and his mother had taken injured to Firasat to GTB Hospital in a TSR. Doctors applied the ventilation machine on the body of his brother Firasat Ali and they stated that injured has expired. He did not state these things before the police officials, as he was not asked regarding the same by police officials.
13. PW8 Sanoj was working as conductor on RTV bearing No. 0515, which plies between Bhajanpura to Jheel. He gave confirmation to facts as deposed by PW1 Bishamber Dayal by deposing that on 02.03.09, RTV bus was going from Jheel to Bhajanpura. It was being driven by Bishamber Dayal. Two persons boarded the RTV bus from Bihari Colony, Kanti Nagar, Delhi. At about 7.157.30pm, RTV bus reached red light, Seelampur. Accused boarded the bus from there. He asked him to come inside the bus and not to travel on foot rest of RTV bus, because traffic officials used to challan their RTV bus, if any passenger is found on the foot rest of the bus. That person slapped him. That person was drug addict. As such he stand at some distance in the bus. He saw that person putting his hand in the pocket of one of the passengers, who boarded RTV bus from Bihari Colony, Kanti Nagar, Delhi. That passenger caught hold of S.C. No. 99/09 Page 16/44 17 hand of that drug addict. The drug addict asked the passenger to free his hands. In the meanwhile, the drug addict wielded knife blow on the abdomen of that passenger. At that time, he was standing at the back portion of the bus. He did not dare to catch that drug addict as he had slapped him for no fault of him, and in case he happened to catch him, he might have inflicted injuries on his person. Both the passengers boarded bus from Bihari Colony and the drug addict got down from RTV bus near water tank, Jafrabad. The passengers inside the RTV bus raised alarm, "Kya Hame Marwayega Gadi Le Chal". The driver drove the bus and after reaching at Bhajanpura, they informed the owner of RTV bus and stated all facts to him on telephone. The owner asked him to bring the bus to his residence. After leaving the passengers at Bhajanpura stand, they had taken the vehicle to Ghonda Maujpur to the house of their owner. He could not see exactly that drug addict person, who inflicted knife blow, as he slapped him and due to fear he went towards back portion of RTV bus.
14. As regards submission of ld. Defence counsel that solitary testimony of Munavar cannot be relied upon being an interested witness as he is related to the deceased being his cousin brother, same is devoid of merits.
15. The question, whether a conviction can be based on the solitary evidence, arose before hon'ble High Court and hon'ble Supreme Court a number of times. As far back in the year, 1957, hon'ble Supreme Court in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 observed as under : "On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated S.C. No. 99/09 Page 17/44 18 as firmly established :
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. (2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the judge before whom the case comes."
16. It was further observed that section 134 of the Indian Evidence Act has categorically laid it down that "no particular number of witnesses shall in any case be required for the proof of any fact." The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in section 134. The section enshrines the well recognized maxim that "Evidence has to be weighed and not counted". Our legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the legislature were to insist upon plurality of S.C. No. 99/09 Page 18/44 19 witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. The matter thus depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. Hence, it is sound and well established rule of law that Court is concerned with quality and not with quantity of evidence necessary for proving or disproving a fact. In this case, the Court divided the nature of witnesses in three categories. First, wholly reliable, second is wholly unreliable and third category is of neither wholly reliable nor wholly unreliable. In the case of first two categories, it was held that they pose little difficulty to the Court to come to a conclusion. But in the third category of witness, corroboration is required. The relevant portion was quoted as under in Kunju @ Balachandran v. State of Tamil Nadu, 2008 Cr.L.J. 1804 : "Hence, in our opinion, it is a sound and well established rule of law that the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely :
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
17. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness,incompetence or subordination. In the second S.C. No. 99/09 Page 19/44 20 category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if Courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subordination of witnesses."
18. Vadivelu Thevar (supra) was subsequently relied upon in Jagdish Prasad Vs. State of M.P., AIR 1994 SC 1251, wherein it was held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. But, if there are doubts about the testimony, the Courts will insist for corroboration.
19. Hon'ble Apex Court in Bipin Kumar Mondal vs. State of West Bengal, 2010 VIII AD (SC) 117, relied upon following authorities to base conviction of the appellant on the solitary testimony of a witness. Those authorities are as follows : In Sunil Kumar vs. State Govt. of NCT of Delhi, (2003) 11 SCC 367, Hon'able Apex Court repelled a similar submission observing that as a general rule the Court can and may act on the testimony of a single witness 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 Evidence Act, 1872. But if there are doubts about the testimony, the Courts will insist on corroboration. In fact, 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. S.C. No. 99/09 Page 20/44
21 The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise.
In Namdeo vs. State of Maharasthra, (2007) 14 SCC 150, Hon'ble Apex Court reiterated the similar view observing that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent Court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the the quality of evidence.
In Kunju @ Balachandran vs. State of Tamil Nadu, AIR 2008 SC 1381, a similar view has been reiterated placing reliance on various earlier judgements of the Hon'ble Apex Court, including Jagdish Prasad vs. State of M.P., AIR 1994 SC 1251; and Vadivelu Thevar vs. State of Madras, AIR 1957 SC 614.
20. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
21. In Dalip Singh and others v. The State of Punjab, AIR 1953 SC 364, it has been laid down as under : "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually S.C. No. 99/09 Page 21/44 22 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 personal cause for enmity, that 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 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."
22. The above decision has since been followed in Guli Chand and others v. State of Rajasthan, 1974 (3) SCC 698 in which Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 was also relied upon.
23. Hon'ble Supreme Court also observed that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by the Hon'ble Supreme Court in Dalip Singh (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed : "We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses S.C. No. 99/09 Page 22/44 23 are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of Hon'ble Supreme Court endeavoured to dispel in - Rameshwar v. State of Rajasthan, AIR 1952 SC 54 at p. 59. We find, however, that it unfortunately still persists, if not in the judgements of the Courts, at any rate in the arguments of counsel."
24. In Masalti and others v. State of U.P., AIR 1965 SC 202, Hon'ble Supreme Court observed : (pp 209210 para 14) :
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much (such?) evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
25. In Jayabalan vs. U.T of Pondicherry [(2010) 1 SCC 199], Hon'ble Apex Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under : "23. We are of the considered view that in cases where the Court is S.C. No. 99/09 Page 23/44 24 called upon to deal with the evidence of the interested witnesses, the approach of the Court, while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.
26. Similar view was taken by the Hon'ble Apex Court in Ram Bharosey vs. State of U.P. [AIR 2010 SC 917], where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciationo f evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown over board, but has to be examined carefully before accepting the same. In the light of the above judgements, it is clear that the statements of the alleged interested witnesses can be safely relied upon by the Court in support of the prosecution's story. But this needs to be down with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. When their statements finds corroboration by other witnesses, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then we seen no reason S.C. No. 99/09 Page 24/44 25 why the statement of so called "interested witnesses" cannot be relied upon by the Court.
27. Substantially similar view was taken in 2010 VIII AD(SC) 50, Dharnidhar and others Vs. state of UP, where it was observed that there is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court, it will always depend upon the facts and circumstances of a given case.
28. Adverting to the case in hand, testimony of Munavar has to be scrutinized in the background of these authoritative pronouncements. A perusal of testimony of this witness goes to show that he was subjected to searching crossexamination by ld. Defence counsel, but nothing material could be elicited to discredit his testimony. His testimony is trusworthy, cogent, consistent and reliable. Moreover, accused is not alleging any ill will, grudge or animosity against the witness, as such he had no axe to grind to falsely implicate the accused and allow the real culprit to go scot free. Mere fact that he is cousin brother of deceased, and as such is related to him is no ground to discredit his testimony. Rather that is the factor, which lands assurance to the fact that he will not allow the real culprit to go scot free and to implicate the false person in this case. Moreover, in the instant case his testimony find substantial corroboration from other material available on record. His testimony can be divided into four parts : (1) Factum of his boarding the bus along with Firasat Ali in RTV bus of route No. 24, which plies between Bhajanpura and Jheel at about 7 7.15pm on 02.03.09 from Kanti Nagar Metro Station. S.C. No. 99/09 Page 25/44
26 (2) Accused boarding the same bus and putting his hand on the back pocket of his brother and his brother catching hold of his hand and when accused asked him to free his hand, then his brother did not free his hand. Thereupon, accused took out a knife from other hand and stabbed on the face of Firasat Ali and on his left abdomen due to which his brother fell down. Accused also got down from bus and he also got down from the bus.
(3) He took his injured brother to Kamal Nursing Home, Zafrabad, in a TSR, where on the advise of the doctor, he took him to GTB Hospital where his brother was declared brought dead.
(4) After one month of occurrence, he went to police station and identified him to be the same person, who stabbed his brother.
29. As regards his boarding the RTV bus of route No.24 along with Firasat Ali on 22.03.09 at about 77.15pm from Kanti Nagar Metro Station, this part of his testimony finds corroboration from PW1 Bishambar driver and PW8 Sanoj, conductor of the bus, both of whom have deposed that on 02.03.09 two persons boarded the RTV bus from Bihari Colony, Kanti Nagar, Delhi. As such, his presence in the bus where the incident took place also stands established.
30. His deposition regarding accused also boarding the same bus and then the narration of entire incident also find corroboration from PW8 Sanoj, conductor of the bus, who also deposed that at about 7.157.30pm, their RTV bus reached red light, Seelampur. One pickpocketer boarded the bus from there. He asked the pickpocketer to come inside the bus, and not to travel on foot rest of the RTV bus, because traffic officials used to challan their RTV bus, if any passenger is found on the foot rest of the S.C. No. 99/09 Page 26/44 27 RTV. That person slapped him. That person was a drug addict. He stood at some distance in the bus. He saw that person putting his hand in the pocket of one of the passengers, who boarded RTV bus from Bihari Colony, Kanti Nagar, Delhi. That passenger caught hold of the hand of the drug addict. That drug addict person asked the passenger to free his hand. But that passenger did not free his hand. In the meanwhile, the drug addict wielded knife blow on the abdomen of that passenger.
31. Even PW1 driver Bishambar Dayal has deposed that he heard commotion from inside RTV bus and conductor Sanoj gave signal to stop the bus. Accordingly, he applied brakes and saw four or five persons getting down from RTV bus. He saw blood oozing out of cheek of one of the passenger, who got down and came to know that incident of stabbing has taken place in the bus.
32. As regards the fact that Munavar had initially taken his injured brother to Kamal Nursing Home, Zafarabad in a TSR, from where he was advised to be taken to GTB Hospital, this part of his testimony finds corroboration from testimony of PW6 Nazim, brother of deceased, who has also deposed that on receiving the information that his brother has been stabbed, he reached Kamal Nursing Home, Jafrabad, where he saw that his cousin brother Munavar was with his injured brother. He asked the doctor at Kamal Nursing Home to attend his brother, who told him that his brother has expired. On his instance, he was asked to take him to GTB Hospital and thereupon injured was taken to GTB Hospital. Moreover, in the postmortem report Ex.PW18/A, prepared by Dr. Meghali Kelkar, the history recorded is "Alleged history of assault by a sharp weapon (knife) while travelling in a bus for which the patient was taken to Kamal Nursing S.C. No. 99/09 Page 27/44 28 Home, Jafarabad from where patient was referred to GTB Hospital."
33. The fact that injured was brought to GTB Hospital by Munavar, this part of his testimony finds corroboration from testimony of Dr. Sanju Kohli (PW3), who prepared MLC Ex.PW3/A of injured and also recorded that one person, namely, Firasat Ali, 25 years male, was brought by his brother Munavar with alleged history of assault, while travelling in bus. ASI Liaque Ahmed has deposed that on receipt of DD No.25, when he reached GTB Hospital, he came to know that Firasat, the deceased, was brought to hospital by his brother Munavar and he found him present at the hospital and recorded his statement. PW11 Udai Bhan Yadav, duty Constable at GTB Hospital, has also deposed that on 02.03.09 on person, namely, Munavar brought one patient, namely, Firasat Ali to GTB Hospital.
34. Further, ocular testimony of Munawar that injuries were caused by accused on the cheek and abdomen of Firasat Ali with a "knife" finds corroboration from postmortem report prepared by Dr. Meghali Kelkar, who deposed that injuries were caused by sharp edged weapon. Needless to say, knife is a sharp edged weapon.
35. Result of the aforesaid discussion is that testimony of Munavar himself is sufficient to convict the accused. But in the instant case, his testimony finds substantial corroboration from other evidence coming on record. It stands proved that when deceased boarded the bus along with Munavar in RTV bus, he was caused injuries with knife which proved fatal.
36. It has further been proved on record that it was the accused who caused injuries on the person of Firasat Ali, inasmuch as, the accused has been duly identified by Munavar to be the person, who caused injuries on the person of his brother Firasat Ali, which proved fatal. Further, it is the S.C. No. 99/09 Page 28/44 29 case of prosecution that on 22.03.09, SI Pramod Joshi was posted at PS Lodhi Colony as Incharge Special Staff. On that day, at about 2.15pm, he along with his staff was present in the area of PS Lodhi Colony for the prevention of crime. At about 3.30pm when he was present at CGO Complex, Lodhi Colony, an information was received that one person, namely, Gudu @ Pandu, who was well known criminal of the area and was involved in a murder case will be coming at Sai Baba Mandir, Lodhi Colony, to meet his friends at about 4pm. After informing SHO PS Lodhi Colony, he reached at Sai Baba Mandir and at about 4pm on the pointing out of informer, accused Guddu @ Pandu was apprehended when he was coming from the direction of Dayal Singh College. On interrogation, he made disclosure statement regarding stabbing a person his left cheek and left thigh, while travelling in a RTV bus from Seelampur Chowk to Gokulpuri and was trying to pick pocket a person. He was booked u/s 411 Cr.P.C and information was sent to PS Seelampur regarding the arrest of the accused.
37. On receipt of this information by DD No. 28B Ex.PW21/L, Inspector N.R. Lamba (PW21) went to police station Lodhi Colony on 23.03.09. He interrogated accused and obtained photocopy of kalandra, arrest memo, personal search memo, disclosure statement etc from SI Pramod Joshi at PS Lodhi Colony. He was produced in muffled face by SI Pramod Joshi at Patiala House Courts. He moved an application for interrogation and permission was granted. Thereafter, accused was arrested in this case vide memo Ex.PW7/B. Accused was produced before the concerned Court at Karkardooma Courts at 5pm. In the Court duty MM directed that accused be produced before concerned Court on next day and accused S.C. No. 99/09 Page 29/44 30 was sent to judicial custody. On 24.03.09, accused was produced before the Court concerned. He moved an application for interrogation by the accused, after seeking permission, and interrogated him and recorded his disclosure statement Ex.PW7/A. Thereafter, he moved an application for holding Test Identification Parade of accused Guddu, who was sent to the Court of Link MM, where accused refused to participate in TIP proceedings. Thereafter, production warrants were got issued against accused Guddu @ Pandu to produce before the Court concerned on 30.03.09 and he was taken on one day police remand. On 01.04.09, accused Gudu @ Pandu pointed the place that is Seelampur red light, where he boarded the vehicle and committed offence in moving vehicle. Thereafter, he got down near water tank, Jafarabad. He prepared his pointing out memo Ex.PW12/A. TIP proceedings have been tendered in evidence by ld. Prosecutor for the State, inasmuch as, same were recorded by judicial officer in discharge of her official duties and the ld. Defence counsel chose not to crossexamine the witness. These proceedings are Ex.PX. A perusal of same goes to show that when accused was produced before Ms. Shivali Sharma, ld. MM, for conducting his Test Identification Parade, accused was produced in muffled face. He was asked whether he wants to participate in Test Identification Parade proceedings. However, he refused to join test identification parade proceedings. ld. MM warned him that his refusal to join test identification parade proceedings may be used against him and an adverse inference may be drawn against him. But he persisted for refusal. Thereafter, ld. Presiding Officer took extra precaution and accused was called inside her chamber alone and at that time also he was inquired as to whether he is S.C. No. 99/09 Page 30/44 31 refusing voluntarily and what is the reason for his not participating in TIP proceedings. Accused took the plea that he had been shown to number of persons on that day at police station and as such, he did not want to join TIP proceedings. As such, ld. Presiding Officer recorded his statement. The result of the same is that accused refused to join TIP proceedings. When this incriminating evidence was put to him by recording his statement u/s 313 Cr.P.C, he had taken the plea that he was kept in police station for three days, where his photographs were taken and he was also shown to the witness. Therefore, he refused to join TIP proceedings. This plea of the accused does not find any corroboration from record, inasmuch as, as discussed above accused was arrested by Inspector Pramod Joshi, Incharge Special Staff, PS Lodhi Colony, on 22.03.09. On coming to know about involvement of the accused in the present case, he informed PS Seelampur immediately. On receipt of information on 23.03.09, Inspector N.R. Lamba went to PS Lodhi Colony. Accused was produced in muffled face at Patiala House Court by Inspector Pramod Joshi and on the same day, he was remanded to judicial custody. On next day, that is, on 24.03.09 when he was produced before the Court concerned, after seeking permission from the Court, he was interrogated and his disclosure statement was recorded on the same day and investigating officer of the case moved an application for TIP of the accused, who declined to join the proceedings. It was only thereafter that his police remand was taken on 01.04.09. That being so, the plea of the accused that he was made to sit in police station for three or four days and was shown to number of witnesses does not find corroboration from material available on record. That being so, his refusal to join TIP proceedings was without any S.C. No. 99/09 Page 31/44 32 sufficient cause and his refusal to join proceedings lead to an adverse inference that in case he would have joined TIP proceedings, then he would have been identified by the witness.
38. PW4 Munavar has deposed that after one month of the incident, he had gone to police station and saw accused present over there. He identified him to be the same person, who stabbed his brother Firasat Ali. But before identifying him in police station, there is nothing to show that accused was shown to him so that accused could have taken plea of being shown to the witness prior to his TIP proceedings. Under these circumstances, identification of the accused in police station as well as during his deposition before the Court, coupled with factum of refusal on the part of the accused to join TIP proceedings establishes the identity of the accused as assailant of crime.
39. The object, purpose and importance of test identification parade was succinctly dealt with by Hon'lble Supreme Court in Suraj pal and others vs. State of Haryana, 1994 (2) Crimes 862, where it was held as under : "It may be pointed out that the holding of identification parades has been in vogue since long in the past with a view to determine whether an unknown person accused of an offence is really the culprit or not to be identified as such by those who claimed to be the eyewitnesses of the occurrences and that they would be able to identify the culprit if produced before them by recalling the impressions of their features left on their mind. That being so, in the very nature of things, the identification parade in such cases serves the dual purpose. It enables the investigating agency to ascertain the correctness or otherwise of the claim of those witnesses S.C. No. 99/09 Page 32/44 33 who claimed to have seen the offender of the crime as well as their capacity to identify him and on the other hand it saves the suspect from the sudden risk of being identified in the dock by such witnesses during the course of the trial this practice of test identification as a mode of identifying an unknown person charge of an offence is an age old method and it has worked well for the past several decades as a satisfactory mode and a well founded method of criminal jurisprudence. It may also be noted that the substantive evidence for identifying witness is his evidence made in the Court but in cases where the accused person is not known to the witnesses from before who claimed to have seen the incident, in that event identification of the accused at the earliest possible opportunity after the occurrence by such witnesses is of vital importance with a view to avoid the chance of his memory fading away by the time he is examined in the Court after some lapse of time."
40. In that case also the accused had refused to join test identification proceedings. It was held that the accused could not have been compelled to line up for test parade, but they did so on their own risk for which the prosecution could not be blamed for not holding the test parade. The reason given by the appellants (in that case) for declining the test of identification was that they were shown by the police to the witnesses, but this allegation has been found to be baseless. As such, if the appellant in exercise of their own volition had chosen not to stand the test of identification without any reasonable cause, they did so on their own risk, for which they cannot be heard to say that in the absence of test parade, dock identification was not proper and should not be accepted. This very authority was relied upon by in Mohd. Aslam vs. State, S.C. No. 99/09 Page 33/44 34 Manu/DE/0398/2010. In that case also the accused was identified by the complainant, when he was examined during trial. When he appeared before the ld. Metropolitan Magistrate, he refused to join test identification parade, without assigning any reason. It was observed by Hon'ble High Court that if the accused refuses to join test identification parade, withou any justifiable cause, he does so on his own peril and the Court will, in such circumstances, is justified in coming to an inference that had the accused joined TIP, he would have been identified by the witnesses, that precisely was the reason as to why he refused to join. The identification of the appellant in Court, coupled with his refusal to join TIP without any reasonable ground was held to be sufficient to establish his identity. Similar view was taken in Lal Singh and another vs. State Nct of Delhi, Manu/DE/2921/2009. In view of these authoritative pronouncement, the accused has refused to join TIP proceedings on the ground that he was made to sit in PS, where he was shown to the witnesses. The discussion made above clearly reflects that there was no occasion for the accused to sit in PS, inasmuch as, he was arrested by special staff of PS Lodhi Colony and thereafter, was arrested in this case. Even before obtaining his police remand, his test identification proceedings were arranged. That being so, there was no occasion for him to be shown to the witnesses. Even no suggestion was given to the complainant that accused was shown to him in the PS or his photograph was shown to him before he could identify him in police station. That being so, refusal on the part of the accused leads to an adverse inference that had he joined the test identification proceedings, he would have been identified by the witnesses. Under these circumstances, identity of the accused as the S.C. No. 99/09 Page 34/44 35 assailant of the crime is established from his dock identification by PW4 Munavar, coupled with his refusal to join TIP proceedings.
41. It is further the case of prosecution that on coming to know that a knife was recovered from accused in case FIR No. 45/2009, u/s 25 Arms Act, PS Welcome and accused has made disclosure statement that he had used this weapon of offence in the present case. Inspector N.R. Lamba had moved an application before concerned Court of PS Welcome for transfer of case property. He received sealed pullanda on 12.05.09 from HC Ashok Kumar, MHC(M), PS Welcome. He requested autopsy surgeon to give her subsequent opinion vide request Ex.PW20/H. As per report of Dr. Meghali Kelkar the incised wounds present on the body of deceased Firasat Ali, vide injury No. 4,5, 7 and 13 can be caused by this weapon, but injury No.9, that is incised wound on the lower left abdomen and injury No. 1,2,3, 6, 8, 11, 12, 15, 16 and 17 cannot be caused by this weapon and the lacerated wound vide injury No.10 also cannot be caused by this weapon. However, the accused does not get benefit from this subsequent opinion, inasmuch as, after the incident, on the same day, that is, 22.03.09 accused was arrested by PS Welcome in case FIR No. 45/09 under section 25 Arms Act. Accused was not apprehended at the spot, when incident of stabbing on the person of Firasat Ali took place and as per testimony of Inspector N.R. Lamba, accused had disclosed in his disclosure statement that in order to escape his arrest in the present case, he got himself arrested in a case under Arms Act. Antecedents of accused are not clean and it is the case of prosecution that he is a man of bad character and involved in many other cases. That being so, it is quite possible that by a clever devise he might have got himself arrested in a S.C. No. 99/09 Page 35/44 36 case under section 25 Arms Act for possession of a button actuated knife by replacing the knife and then took plea in his disclosure statement that this was the same knife with which murder was committed, but as per subsequent opinion of the doctor, fatal injuries on the person of Firasat Ali was not possible by the knife, which was recovered from possession of the accused. Things would have been different, if he had been apprehended at the spot itself along with weapon of offence, which is not so in the case in hand. That being so, even if the knife recovered from his possession could not be connected with injury on the person of deceased, same is not fatal, more so, when his participation in the crime is unfolded in ocular account of the occurrence given by the witness who witnessed the incident and his testimony is found to be unimpeachable.
42. At the most, it has to be taken that knife, which was recovered from possession of the accused in case FIR No. 45/09 was not used in the commission of crime in the instant case and the weapon of offence used in this case was not recovered, but that itself is not fatal to the case of prosecution, inasmuch as, in Krishna Mochi and others vs. State of Bihar, 2002 (6) SC 81, Hon'ble Apex Court observed that recovery of no incriminating material from the accused cannot alone be a ground to exonerate him.
43. Similar view was taken by Hon'ble Apex Court in 2005 (3) AIR (SC) 3759, State of Punjab vs. Hakam Singh, where it was held that sole eyewitness to crime was found to be truthful and trustworthy. The fact that police did not recover fire arm used in offence and empties is not fatal because these recoveries would have only corroborated the prosecution case.
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44. ld. Prosecutor has relied upon number of authorities for the proposition that if there is any inconsistency between ocular and medical evidence, it is the ocular evidence which has to prevail. Reliance was placed on 1983 AIR (SC) 484, Solanki Chimanbhai Ukabhai vs. State of Gujrat, where it was held that it would not be appropriate to discredit testimony of eyewitness, if it was otherwise satisfactory on the simple ground that medical testimony was in conflict with the testimony of the witnesses. It was further observed that ordinarily the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. Substantially similar view was taken in 1973 AIR (SC) 1204, Bajwa and Others vs. State of U.P., where it was held by Hon'ble Apex Court that if evidence of an eyewitness is inconsistent with medical evidence, this by itself would not render the evidence of eyewitness unreliable. 2009 Cr.L.J. 3039, State of U.P. vs. Hari Chand was a case, where medical opinion pointed to alternative possibilities. It was observed by Hon'ble Apex Court that where an eyewitness account is found creditable and trustworthy, the medical opinion pointing to alternative possibilities is not accepted as conclusive. Unless oral evidence is totally irreconcilable with the medical S.C. No. 99/09 Page 37/44 38 evidence, it has primacy. It was further observed that it is trite that where the eyewitnesses account is found creditable and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence, the importance and primacy of the quality of the trial processes . Eye witnesses account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the credit of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
45. In view of these authoritative pronouncements, firstly it may be mentioned that there is no inconsistency between ocular testimony of PW4 Munavar and the medical evidence, inasmuch as, as per testimony of Munavar injuries were caused on the person of Firasat Ali, that is, on his cheek and abdomen by a "knife". In this regard, his version finds corroboration from testimony of Dr. Meghali Kelkar, who has deposed that cause of death was haemorrhagic shock as a result of antemortem injury to mesentric vessels and left common iliac artery produced by "double sharp edged weapon". The injury No.9 was sufficient to cause death in ordinary course of nature. Needless to say that knife is a sharp edged weapon.
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46. Even Dr. Meghali, who conducted postmortem examination on the dead body of Firasat Ali found incised wound slightly grave and obliquely placed on left cheek and incised stab wound on left lower abdomen. Besides that she also found some more injuries which are basically in nature of abrasions that they may have occurred, when injured fell down from bus. According to Munavar, at that time also accused gave beatings and caused injuries to him. Therefore, there is no inconsistency between ocular version of Munavar with medical report. The accused is trying to get benefit from subsequent opinion of the doctor, whereby she has opined that some of the injuries found on the person of deceased were not possible by weapon of offence shown to her. At the risk of repetition, it may be mentioned that this weapon of offence was not recovered at the instance of accused nor he was apprehended at the spot. If by clever device, he replaced weapon of offence with another knife and got himself arrested under Arms Act and after his arrest in this case, that weapon of offence was sought to be connected with injuries on the person of Firasat Ali, which did not tally, that does not aversely affects the case of prosecution in any manner, rather it reflects conduct of the accused in trying to misguide the prosecuting agency. It was precisely for this reason that when knife was sent to FSL, as per report Ex.PW20/A and Ex.PW20/B of Ms. Anita Chhari (PW20), Sr. Scientific Officer, although blood of human origin of 'B' Group could be detected on the clothes of deceased, but blood could not be detected on rusting knife.
47. In view of aforesaid discussion, I hold that prosecution has been able to establish beyond reasonable doubt that on 02.03.07 at about 7 7.15pm, in a moving RTV bus route No.24, accused caused serious S.C. No. 99/09 Page 39/44 40 injuries on the person of Firasat Ali by stabbing, which proved fatal. Although in the instant case, there is no evidence of premeditation or motive, but it is settled law that when there is direct evidence available, motive to commit crimes pales into insignificance. In 2010 VIII AD (SC) 50, Dharnidhar and others vs. State of U.P., it was held by Hon'ble Supreme Court that when positive evidence against the accused is clear in relation to the offence, motive is not of importance. Intention of the accused to cause death of Firasat Ali is proved from the fact that when the accused put his hand on the back pocket of the deceased, he caught hold of his hand. Accused asked him to free his hand, to which the deceased did not agree. Thereupon, accused took out the knife from other hand and stabbed on the cheek of Firasat Ali. He did not stop there and inflicted knife blow on the left abdomen, which was with such force that as per the testimony of Dr. Meghali Kelkar, who conducted postmortem examination on the dead body of Firasat Ali, she found incised stab wound measuring 2.5 X2 X11 cm present obliquely on left lower abdomen 7cm from midline and 26 cm below left nipple. Both angles of wound were acute and margins were clean cut. The track of the wound was directed upwards, backward and medially cutting through the abdominal wall and muscles and entered into the abdominal cavity cutting the jejunal loops at three sites and cutting the mesentry measuring 1X0.2cm. Extravassation of blood seen throughout the track about 2 to 2.5 litre of blood was present in abdomen cavity. Cutting of mesentry blood vessels and left common iliac artery was seen. She opined that cause of death was hemorrhagic shock as a result of antemortem injury to mesentric vessels and left common iliac artery produced by double sharp edged weapon. The injury No.9 was S.C. No. 99/09 Page 40/44 41 sufficient to cause death in ordinary course of nature. Besides that, 14 other injuries were found on the person of deceased. It has come in the testimony of Munavar that even after getting down from bus, accused gave beatings to his brother Firasat Ali. The number of injuries, coupled with the fact that serious injury was inflicted by the accused with great force on left lower abdomen of deceased, which were opined to be sufficient to cause death, the case falls within the four corners of section 302 IPC. For holding this view, I am fortified by Rajinder Singh vs. State of Punjab, 1978 AIR (SC) 1420. That was a case where serious injury was inflicted by the accused with great force on the chest of deceased, left lung was pierced through and through, both ventricles were punctured, injury was held sufficient to cause death. He was convicted under section 302 IPC. Before Hon'ble Apex Court, the plea was taken that the case falls under section 304II IPC, however, the Hon'ble Apex Court held that injury inflicted was very serious in nature and was given with great force on almost vital part of the body viz chest. Further more, doctor had opined that as a result of injury inflicted by the appellant, left lung was punctured through and through both ventricles punctured and injury was sufficient to cause death in ordinary course of nature. In these circumstances, it was held that case falls within four corners of section 302 IPC and accused was rightly convicted under that section.
48. In the instant case also, keeping in view the fact that injury was inflicted on vital part of the body, coupled with weapon of offence used and number of injuries caused on the person of deceased, prosecution has been able to establish beyond reasonable doubt that on 02.03.09 at about 77.15pm, in a moving RTV Route No24, at Road No.66, near S.C. No. 99/09 Page 41/44 42 Kabari Pulia, Jafarabad, Delhi, accused intentionally committed murder of Firasat Ali and as such he is held guilty and convicted for offence punishable under section 302 IPC.
Announced in the Open Court (Sunita Gupta)
th
On this 26 day of August, 2010 District JudgeVII/NEcumASJ,
Karkardooma Courts, Delhi.
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IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :S.C. No. 99/09
Unique Case ID No. 02402R0206322009 State Vs. Guddu @ Pandu S/o Chhidwa, R/o J25, Janta Colony, Welcome, Delhi.FIR No. 95/09
PS Seelampur U/s 302 IPC.
Date of Institution : 20.07.09 Date of reserving the Judgement : 26.08.2010 Date of pronouncement : 01.09.2010.
ORDER ON THE POINT OF SENTENCE : Leniency in punishment has been claimed by Sh. Mohd. Hassan, Advocate, on behalf of convict Guddu @ Pandu, pleading that convict has been falsely implicated in this case by police, inasmuch as, many other cases are pending against him. Therefore, present case has been planted upon him. He is aged about 28 years. Present case does not fall in the category of rarest of rare case, as such lenient view be taken.
2. On the other hand ld. Prosecutor submits that the offence committed by the convict is of alarming complexion. He should be provided maxima punishment provided in the statute. He does not deserve any leniency, inasmuch as, he is BC of PS Welcome and is involved in as many as 17 other cases. He has also been convicted in five other cases.
In the instant case, without any rhyme and reason, in order to pickpocket the deceased Firasat Ali, convict took extreme step and committed murder of deceased. As such, he does not deserve any leniency. S.C. No. 99/09 Page 43/44
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3. On 02.03.09 Munavar and his cousin brother Firasat Ali went to Kanti Nagar, Delhi. While returning from Kanti Nagar, they boarded a RTV bus route No.24 from Welcome Metro Station. A few passengers boarded the said bus from Seelampur red light. At about 7 or 7.15pm, the bus reached at Kabadi pulia. Convict, who boarded bus at Seelampur red light, put his hand in the pocket of Firasat Ali. Firasat Ali caught hold of his hand. Convict Guddu @ Pandu insisted Firasat to leave his hand. When he did not leave his hand, convict took a knife from his other hand and wielded a knife blow on the cheek of Firasat Ali and another blow on his left lower abdomen. Firasat Ali fell down from the bus. Convict Guddu @ Pandu also jumped from the bus. Munavar raised alarm and jumped from the bus to save his brother Firasat Ali. Munavar removed his brother to Kamal Nursing Home, Zafarabad, in a TSR. From there, he removed Firasat Ali to GTB Hospital. Firasat Ali was declared as brought dead at GTB Hospital.
4. Keeping in view facts and circumstances detailed above, coupled with the fact that convict is B.C of PS Welcome and has earlier been convicted in other cases as well, he does not deserve any leniency. But present case does not fall in the category of rarest of rare case where capital punishment should be awarded. Under these circumstances, I do hereby sentence convict Guddu @ Pandu to undergo imprisonment for life and to pay a fine of Rs.3,000/ for offence punishable under section 302 IPC. In default of payment of fine, he would further undergo RI for nine months.
5. Convict shall get benefit of period already undergone in detention during investigation and trial of the case. A copy of judgement and order on sentence be supplied to him free of cost.
Announced in the Open Court (Sunita Gupta)
st
On this 1 day of September, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
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