Delhi District Court
State vs :- 1- Nasruddin, on 19 April, 2007
1
IN THE COURT OF SH. BHARAT
PARASHAR:ASJ:FTC:ROHINI:DELHI
S.C.NO.206/06
STATE VERSUS:- 1- NASRUDDIN,
S/O SH. SHAHBUDDIN,
R/O 37, KURENI, NARELA,
DELHI.
2- SARAJUDDIN @ TANNU,
S/O SH. QYAMUDDIN,
R/O 37, KURENI, NARELA,
DELHI.
3- WASIM @ PAPPU,
S/O SH. ABDUL HAKIM,
R/O NAI BASTI, KURENI, NARELA,
DELHI.
4- SALALUDDIN,
S/O SH. SHAHBUDDIN,
R/O VILLAGE KURENI, NARELA,
DELHI.
5- NASIM KHAN,
S/O SH. ABDUL HAKIM,
R/O NAI BASTI, KURENI, NARELA,
DELHI.
FIR NO.39/2000
U/S 302/323 R/W 34 IPC
PS N.I. AREA.
2
JUDGMENT
Briefly stated the case of the prosecution as unfolded by the report U/S 173 Cr.PC is as under :
On 27-1-00 at about 8pm one Shabbir Ali was having his dinner inside his house along with his wife Smt. Sajreen, daughter Smt. Parveen and son-in-law Shehzad Ali. One child however came to their house and informed them that some quarrel is taking place with their son Irfan at his shop just outside their house. They all accordingly rushed outside and saw the five accused persons, who were residents of their locality, namely, Nasruddin, Wasim @ Pappu, Nasim Khan, Sarajuddin @ Tajju and Slalauddin quarreling with Irfan. While accused Sarajuddin @ Tajju was having a knife in his hand and accused Wasim was armed with lathi-cum- bhala and other accused persons were carrying lathis. However, as soon as Shabbir Ali confronted the five accused persons as to why they were quarrelling with his son Irfan that they all said "pahley isi ko ley lo". They all thus started giving beating to Shabbir Ali with lathis. Shabbir Ali in order to save himself thus started running away in the gali towards the house of his sister. Thus, while running Shabbir Ali entered inside the house of one Hashima, who was the daughter of his sister but was continued to be chased by the accused persons. Despite the intervention of all other family members of Shabbir Ali, the accused persons continued to give 3 beating to Shabbir Ali initially in the courtyard of the house of Hashima and thereafter inside one of the rooms of her house. In the process they also gave beating to Irfan, Smt. Sajreen and Smt. Praveen. Smt. Sajreen, the wife of Shabbir Ali however managed to inform the matter to the police. By the time, a PCR van reached the spot, the accused persons manged to flee away from there. Shabbir Ali was accordingly taken to Hindu Rao Hospital by a PCR Van where he was declared as brought dead. Smt. Sajreen was also taken to hospital by another PCR Van. Local police also reached the spot and thereafter at the hospital. At the hospital, IO/Inspt. Sohanveer Singh recorded statement of Smt. Sajreen, the wife of Shabbir Ali and on the basis of her statement a case for the offence U/S 302/34 IPC was registered at PS N.I. Area. Thereafter, IO/Inspt. Sohanveer Singh came back to the spot and prepared the site plan at the pointing out of Smt. Praveen. He recorded statement of other witnesses. The spot was also got photographed. Blood was lifted from the place of incident along with earth control samples. Certain broken bangles, which were also found to be lying at the spot were taken into possession. Inquest proceedings qua the death of Shabbir Ali were carried out and the dead body was sent for postmortem examination.
Subsequently, on the next day accused Nasruddin and Wasim were apprehended from Berriwala Bag near village "Boreygher". Nasruddin also got recovered one danda which he had used in the 4 incident from the nearby bushes. Similarly, Wasim also got recovered one lathi which was also found to be having certain blood stains. The two lathis were accordingly taken into possession. Thereafter, on 29-1-00 on the basis of a secret information two other accused persons, namely, Wasim and Sarajuddin were also apprehended from near DDA park, Narela. Accused Wasim thereafter made a disclosure statement and got recovered one knife used by him in the impugned incident from the nearby bushes. The said knife was also taken into possession after preparing its sketch. Accused Sarajuddin also made a disclosure statement and got recovered a 'bhala' from near the DDA park. The same was also taken into possession and sealed in a pullanda with the seal of SV Singh. Thereafter, on 21-2-00 the fifth accused Slalauddin was apprehended from his house. He too made a disclosure statement admitting his guilt in the present case.
All the exhibits of the present case were sent to FSL for examination. Thus, upon completion of necessary further investigation challan was prepared and was filed in the court for trial.
Upon committal of the case to the court of sessions, charge for the offence U/S 302/323/34 IPC was framed against all the five accused persons viz Nasruddin, Wasim @ Pappu, Nasim Khan, Sarajuddin and Slalauddin to which they all pleaded not guilty and claimed trial. 5
Prosecution in order to prove its case examined 31 witnesses. Accused persons were thereafter examined U/S 313 Cr.PC. They however refused to lead any evidence in their defence.
PW11 Smt. Praveen, PW13 Smt. Sajreen, PW23 Shahzad Ali and PW26 Irfan were the four alleged eye witnesses of the incident. They all deposed almost on identical lines while reiterating the prosecution story in their deposition. It was stated by PW26 Irfan, the son of deceased Shabbir Ali that the initial quarrel had started with him over the purchase of a 'gutka' from his shop by the accused persons.
PW17 Smt. Hashima was a resident of the house in which Shabbir Ali was finally attacked by the accused persons. She however stated that at the time of incident she was present in the other room of her house and upon hearing some noise when she opened the door she saw the accused persons leaving her house and her mama Shabbir Ali was lying in a pool of blood in the courtyard of her house. She also saw Sajreen, Irfan and Smt. Praveen carrying Shabbir Ali to the doctor.
PW1 Tauseef Ali @ Kalu and PW2 Shabir Ali were the two brothers of deceased Shabbir Ali, who had identified his dead body in the mortuary.
In support of the medical evidence, prosecution examined six witnesses, namely, PW4 Dr. CB Dabbas, PW5 Surinder Mantoo, PW6 Dr. Sanjay Yadav, PW7 Dr. Rekha Jain, PW8 Dr. Rajiv Tiwari and PW19 Dr. SK 6 Angra. PW4 Dr. CB Dabbas had carried out the postmortem examination upon the dead body of deceased Shabbir Ali and had also given the opinion as regards the various weapon of offences alleged to have been recovered by the police at the instance of accused persons to be the probable weapon of offences which could have resulted in different injuries found on the dead body of deceased Shabbir Ali. He accordingly proved his report Ex.PW4/A to C in this regard.
PW5 Surinder Mantoo had medically examined Irfan vide MLC Ex.PW5/A. PW6 Dr. Sanjay Yadav had medically examined Smt. Sajreen vide MLC Ex.PW6/A. PW7 Dr. Rekha Jain had medically examined accused Nasruddin on 27-1-00 vide his MLC Ex.PW7/A. PW8 Dr. Rajiv Tiwari had medically examined Smt. Praveen vide MLC Ex.PW8/A. He had also examined Irfan.
PW19 Dr. SK Angra had initially examined Shabbir, Son of Nawab Ali when he was brought to Hindu Rao Hospital and was declared by him as brought dead vide his report Ex.PW19/A. PW3 HC Rattan Singh was the duty officer, PS NI Area on 27/28- 1-2000. He had recorded the FIR in the present matter and proved the copy of FIR as Ex.PW3/A besides also recording DD No.Ex.PW23/A Ex.PW3/B. 7 PW10 HC Tej Pal Singh was posted as MHC(M), PS NI Area on 28-1-00 with whom the various case property articles were deposited with by the IO.
PW12 ASI Surajbhan had produced record of one other case FIR No.447/98 which was recorded on the complaint of Smt. Sajreen, W/o Shabbir Ali on 16-10-98 against one Shamim, Mubbi, Shahid Mohd., Maqsoodan, Salaluddin and Master Abbas Ali.
PW14 Narender Kumar was the photographer, who had taken the photographs of the spot and he proved the same as Ex.PW14/2 to 8 and corresponding negatives as Ex.PW14/9 to 16.
PW15 Ct, Roop Kanwar was the Special Messenger, who had taken the copy of FIR to the senior officers and to the concerned area Magistrate.
PW18 HC Ved Singh was the PCR van official, who had removed Sajreen to the hospital.
PW22 Ct. Izaz Ali had taken ten sealed pullandas from MHC(M), PS NI Area to FSL on 10-2-00.
PW24 L.Ct. Kusum was the PCR official, who had received the initial information about the present incident and she accordingly proved the relevant PCR Form Ex.PW24/A filled by her in this regard.
PW27 ASI Om Prakash was also the PCR van official, who had removed the other injured to hospital in his van.8
PW28 Miss. Manju was the Assistant Ahlmad in the then court of Ld. Civil Judge Sh. Rakesh Kumar. She had produced record of a civil suit titled Shabbir Ali Vs. Arshad etc. as pending in their court.
PW29 SI Raghubir Singh was the wireless operator PS Narela on the night of incident, who had received the initial information about the incident and had conveyed the same to the duty officer, who had recorded it vide DD No.17A.
PW31 Inspt. Sohanveer Singh was the IO of the case. In his deposition he reiterated the investigation carried out by him besides proving the various documents/memos prepared by him during the course of investigation.
PW16 SI Praveen Kumar, PW21 Ct. Naresh Kumar, PW25 SI KP Singh and PW30 SI Darshan Lal were the other police officials of PS NI Area, who had accompanied IO/Inspt Sohanveer Singh in the investigation of the case. They accordingly deposed about the investigation as carried out in their presence besides proving the various documents/memos prepared by the IO in their presence.
In their statements U/S 313 Cr.PC all the three accused persons however stated the case of the prosecution to be false and the prosecution witnesses to be deposing falsely. They further stated that as Shabbir Ali had encroached upon the land of 'kabristan' and 'madrasa' and on account of which various litigations were pending in different 9 courts against him at the instance of the Wakf Board and Villagers so the names of the present accused persons were taken deliberately on account of previous enmity. They thus claimed themselves to be innocent.
I have heard the arguments as addressed by ld. APP as well as by ld. counsel Sh. Mohd. Naseem for all the five accused persons.
It has been submitted by ld. defence counsel that the present case is an offshoot of previous enmity existing between the parties. It was emphasized that Shabbir Ali and his family members encroached upon the land of 'kabristan' and 'madrasa' in the village and which was objected to by the WAKF Board and other members of the village. Various cases both civil as well as criminal were also stated to be pending against Shabbir Ali. It was thus stated that the present accused persons, who were holding respectable posts in the Management of the village Mosque, 'madrasa' or 'kabristan' were deliberately named in the present incident so as to settle their old scores. It was also stated that in the initial information given by Smt. Sajreen, she named one Saleem as responsible for the death of her husband Shabbir. It was also stated that subsequently in connivance with the police, the names of the present five accused persons were taken and for that reason, the FIR in the present matter was ante timed. In support of his contention of FIR being ante timed ld. defence counsel placed reliance upon the testimony of PW15 Ct. Roop Kanwar, the special Messenger, who went to deliver the copy of FIR to the 10 residence of area M.M. Ld. dfence counsel also pointed out to various other contradictions made by the prosecution witnesses and the improvements made by them over their previous statements made during the course of investigation. It was further stated that despite the place of incident being in a residential area no independent witness was joined in their proceeding by the police. All the other witnesses examined by the prosecution were thus stated to be interested and unreliable witnesses. It was further stated that the motive as put forward by prosecution was a small quarrel over the purchase of a 'gutka' and which could not have been the motive to the accused persons to kill Shabbir Ali. It was further stated that even as per the prosecution case no common intention was ever arrived at between the accused persons to kill Shabbir Ali as they had only come to purchase a 'gutka' at the shop of Irfan and they had no idea that Shabbir will come over there. It was further stated that even the words "Aaj Issi Ko Lo" does not impute existence of common intention to the accused persons. It was also stated that the injuries on the person of Nasruddin also were not explained for by the prosecution. Similarly, the arrest of various accused persons and the consequent recovery of various weapon of offences was stated to be highly doubtful. It was thus stated that the prosecution has miserably failed its proving its case against all the accused persons. All the accused persons were thus prayed to be acquitted.11
On the other hand, ld. APP strongly opposed the contentions of learned defence counsel stating that the testimony of the prosecution witnesses examined was cogent, convincing and reliable. It was further stated that usually public independent witnesses refrain from intervening in the dispute of other persons and especially when both the parties are resident of same locality. It was also stated that the mere fact that the witnesses examined by the prosecution were closely related to the deceased cannot be a ground to discard their testimony as they were the natural witnesses to the incident and their presence stands fortified from the injuries sustained by them in the present incident itself. The contradictions or improvements as pointed out by learned defence counsel were stated to be minor in nature. It was further stated that whenever witnesses deposes after a long gap of time and as per their memory then such kind of contradictions and improvements are bound to occur. The prosecution was thus stated to have been successful in proving its case against all the five accused persons. They were thus prayed to be convicted.
I have carefully perused the record as well as the written submissions filed by learned defence counsel.
Before adverting to a detailed analysis of the testimony of various prosecution witnesses, I would first like to deal with certain basic issues/contentions raised by learned defence counsel. The foremost is the 12 motive.
Undoubtedly, motive is an important aspect of every criminal trial. Sometimes, motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with. But, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime.
Coming to the case in hand, it will be worthwhile to mention over here that though the apparent motive as proved on record by the prosecution is the issue of non-payment of price of a pouch of 'gutka'. Certainly, the nature of motive as proved on record can at times be a guide to ascertain the intention of the accused persons in committing the given act or not. However, at the same time the mere fact that the motive as proved on record by the prosecution appears to be a minor 13 one on the face of it cannot take away the very ground beneath the prosecution story. In the present proceedings, it is the admitted case of both the parties that there existed some previous enmity between them. The accused persons claimed by way of putting certain suggestions to the various prosecution witnesses in their cross examination that they had encroached upon the land of 'madrasa' and 'kabristan' in the village and on account of which certain litigations were pending between them and the villagers. Thus, if with this background in mind, the simple issue of purchase of 'gutka' and non-payment of its price is seen then it becomes crystal clear that the accused persons were probably looking for an opportunity to settle their scores. Even as regards the issue of purchase of 'gutka' from the shop of Irfan, it will be worthwhile to mention that no question or suggestion was put to PW26 Irfan by any of the accused persons that no such incident of purchase of 'gutka' from his shop at all took place. It was to this witness only that such a question or suggestion ought to have been put in this regard. The fact thus remains that the prosecution has been successful in proving on record that the initial quarrel started with the non-payment of the purchase price of a pouch of 'gutka' from the shop of Irfan by Wasim.
Thus, in view of my aforesaid discussion, I'm of the considered opinion that the prosecution has been successful in proving the issue of motive in the present case beyond shadows of all reasonable doubts. 14
As regards the issue of there being no common intention on the part of accused persons in committing the murder of Shabir Ali, I may state that the prosecution has been successful in proving this important ingredient also in the present case.
The common intention of the accused persons in any given case can be inferred from the overall circumstances of the case besides from the conduct of the parties. The common intention may also develop on the spot itself during the course of the commission of an offence. In my aforesaid view, I find ample support from the case RISHIDEV PANDEY VS. STATE OF UP AIR 1955 SC 331 & KRISHNA GOVIND PATIL VS. STATE OF MAHARASHTRA AIR 1963 SC 1413. Thus, if in the overall facts & circumstances of the present case the testimony of the various prosecution witnesses examined is seen and analyzed viz a viz the conduct of the accused persons besides existence of previous enmity between the parties then it becomes crystal clear that the accused persons went to the shop of Irfan with a deliberate intention to raise some quarrel. Clearly, there was previous enmity between the parties and thus it is beyond comprehension that why the accused persons will like to go and purchase 'gutka' from the shop of Irfan only. Furthermore, the very fact that Shabir Ali suddenly came at the spot and challenged the accused persons as to why they are raising a quarrel prompted the accused persons to form a common intention at the spur of moment 15 itself by saying "pahle isi ko ley lo". Thus, from the overall facts & circumstances of the case, coupled with the conduct of the parties, the exhortation made by them by stating "pahle isi ko ley lo" besides the factum of there being previous enmity between the parties clearly establishes the common intention on the part of all the accused persons to first go after Shabir Ali.
I shall be dealing with the other issue raised by learned defence counsel qua the intention of the accused persons to kill Shabir Ali having been proved by the prosecution or not viz a viz the charge framed against them for the offence U/S 302 IPC or not.
As regards the issue of non-joining of public independent witnesses in the proceedings or the mere examination of interested witnesses by the prosecution I may state that usually in villages, the residents avoid taking sides with two different faction ridden parties of the same village. All the more they tend to avoid joining issues involving police. Moreover, it has already come on record that certain litigations were already pending between the present parties and thus no adverse inference can be simplicitor drawn from the mere non-examination of public independent witnesses. Certainly, the investigating officer ought to have made a conscious effort to join public independent witnesses in his proceedings but the mere absence of public independent witnesses cannot take away the probative value from the testimony of the other 16 prosecution witnesses examined. Thus, on a similar footing if the witnesses examined by the prosecution are found to be truthful witnesses even though they are relatives of the deceased then also their testimony cannot be brushed aside merely on the ground that they were the interested witnesses. What the court has to see is as to whether all such witnesses examined by the prosecution were the natural witnesses of the incident or not.
At this stage, it will be worthwhile to mention by way of a passing reference that if no such incident had taken place then the accused, who were also the residents of the same village could have always produced certain villagers in their defence and their failure to not to do so should have led to an adverse inference against them also. However, as a mark of caution, I may mention that I am not drawing any adverse inference on this account against the accused persons.
Be that as it may be, keeping in view the overall facts & circumstances of the case, I do not find any ground to draw any adverse inference against the prosecution case by the mere fact that no public independent witness has been joined in the proceedings by the IO or that all the witnesses examined were the relatives of deceased.
Coming to the testimony of the various prosecution witnesses examined, I may state that they all appears to be natural witnesses of the incident. They all sustained injuries and which fact has not been 17 controverted on behalf of the accused persons. The factum of their sustaining injuries thus goes to establish their presence at the time of incident. It will be worthwhile to mention that the testimony of various prosecution witnesses examined in this regard viz PW4 Dr. CB Dabbas, PW5 Surinder Mantoo, PW6 Dr. Sanjay Yadav, PW7 Dr. Rekha Jain & PW8 Dr. Rajiv Tiwari has not been disputed at all by the accused persons. No question or suggestion of any nature whatsoever was put to any of the aforesaid witnesses. I shall be demonstrating herein after that the injuries sustained by the various injured persons as mentioned in their respective MLCs also goes to support the prosecution story as to the manner in which the incident actually took place. All the three witnesses Irfan, Sajreen and Praveen stated that they sustained injuries when they were trying to protect Shabir Ali from the assault made upon him by the accused persons. The MLCs of Smt. Sajreen shows presence of bruises over her right upper arm and swelling over her frontal region right side. The injuries were opined to be simple and having been caused by some blunt object. Similarly, the MLC of Smt. Praveen shows presence of bruises over 10cm long over her lower back with swelling and tenderness and abrasion over her left neck. The injuries on her person were also stated to have been caused by some blunt object. Similarly, the MLC of Irfan shows presence of swelling and tenderness over her right parietal region of the scalp and tenderness over her upper abdomen. Her injuries were also stated to be 18 simple and as having been caused by blunt object.
Thus, if the aforesaid injuries are seen in the light of the overall facts & circumstances of the case and the fact that witnesses have deposed that the accused persons primarily gave beating by lathies then it clearly comes out that in the process of saving Shabir Ali the present three witnesses also suffered lathi blows on various parts of their body at the hands of accused persons.
In this regard, it will be also worthwhile to mention that the IO seized certain broken pieces of bangles from the spot. This un- controverted piece of evidence also goes to support the presence of Smt. Praveen and Smt. Sajreen at the spot at the time of incident.
Learned defence counsel however submitted that Smt. Hashima contradicted the prosecution story by shifting the place of incident to the courtyard of her house from as being inside the room of her house. Certain other contradictions in this regard were also sought to be put forward by learned defence counsel as to the place of incident . However, in my considered opinion these submissions of learned defence counsel are also without force. The photographs of the spot as have been proved on record by PW14 Narender Kumar as Ex.PW14/1 to 8 clearly shows presence of blood inside the room as well as lying outside in the courtyard from inside the room. Though, a mere suggestion was put to the witness that he had not visited the spot and which suggestion was rightly 19 denied by the witness but it was nowhere suggested to him that the said photographs does not pertains to the place of incident in question in the present case. It will be also worthwhile to mention over here that the site plan Ex.PW31/B also shows vide footnote no.1 that blood was found lying inside the room besides outside in the courtyard.
Ld. defence counsel also raised an issue that the FIR in the present matter was ante timed. It was stated that the copy of the FIR was received at his residence by the area MM on the morning of 28-11-00 at about 7.28am, though the FIR was registered at about 1.15am in the night. In this regard, I may again state that this contention of learned defence counsel also does not holds ground. It will be worthwhile to mention that the testimony of the duty officer PW3 HC Rattan Singh remained un- controverted at the altar of cross examination on behalf of any of the accused persons. It ought to have been put to this witness that the FIR was not recorded at the time mentioned by him in the register and there being no question or suggestion put to the said witness no adverse inference against the case of the prosecution in this regard can thus be drawn. Moreover the special messenger, PW15 Ct, Roop Kanwar, who had gone to deliver the copy of the FIR to the residence of various senior officers of the police as well as to the residents of area MM clearly stated in his deposition that on the way, his motor cycle had gone out of order and it took few hours in getting it repaired. The DD entry recorded as 20 regards the arrival back of Ct. Roop Kanwar in the police station vide DD No.13B also states this fact. I thus do not find any substance in the aforesaid contention of learned defence counsel that the FIR in the present matter was ante timed.
As regards the non-seizure of the clothes of Sajreen, Irfan and Praveen, who had saved Sabbir Ali from the clutches of accused persons so as to prove that their clothes also got blood stains, I may state is a sheer negligence on the part of IO. Similarly, the other contentions of learned defence counsel that the IO failed to join any public independent witnesses either at the time of arrest of the accused persons or while effecting recovery of various weapon of offences at the instance of accused persons, I may state cannot be given much credence so as to throw the entire prosecution case overboard.
As regards the injury on the person of accused Nasruddin, I may state that though the prosecution ought to have explained the said injuries on the person of accused Nasruddin also but at the same time accused persons have also been taking contradictory stands qua his injuries. At certain places it has been suggested to the witnesses that Nasruddin was not involved in the incident. Yet at other places, it has been suggested to the witnesses that the accused persons themselves had gone to the shop of Nasruddin and caused injuries to him. Still at certain other places, it has been suggested that the accused persons 21 were engaged in a fight with the villagers in general and in that processes they had sustained injuries. However, in my considered opinion quarrel which has taken place in the present incident must have evoked certain sharp reactions from the side of deceased family also either while saving Shabbir Ali from the assault of the accused persons or by way of retaliation to the actions of accused persons and which must have resulted in injuries to Nasruddin. However, the MLC of Nasruddin shows that he was removed to hospital by one Hamid i.e his brother. Said Hamid was not at all produced even by the accused persons, who could have explained as to how and in what circumstances he came to remove injured Nasruddin to hospital. On the other hand, in his statement U/S 313 Cr.PC accused Nasruddin denied his presence at the time of incident at all and thus if that be the case then, the onus lie upon him to explain as to how he came to sustain injuries in the incident and why at the hospital the doctor were informed either by him or the person accompanying him viz Hamid that he sustained injuries in a fight. Thus once again no adverse inference against the case of the prosecution can be drawn on this score also.
We are now thus left with the only contention of learned defence counsel that the prosecution witnesses examined have given vague answers in their cross examination or have made material improvements over their previous statements or have contradicted each 22 others testimony.
The observations by Hon'ble SC of India as made in the case JAI SHREE YADAV VS. STATE OF UP AIR 2004 SC 4443 are worth mentioning in this regard. It was observed by Hon'ble SC of India that when a witness is subjected to arduous cross examination over a lengthy period of time then there is always a possibility of the witnesses committing mistakes which can be termed as omissions, improvements and contradictions. Therefore, those infirmities will have to be appreciated in the background realities which makes the witness confused because of the filibustering tactics of the cross examining counsel.
Similarly, in the case STATE OF UP VS. ANIL SINGH AIR 1988 SC 998 it was observed by Hon'ble SC with regard to falsehood stated or embellishment added by the prosecution witnesses that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It was also observed that experience shows that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved but that is no ground to throw the case overboard, if true in the main. If there is a ring of truth in the main the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to disbelieve that the inconsistencies of falsehood are so glaring as utterly to destroy confidence in the witnesses.23
Thus, keeping in view the aforesaid observations of Hon'ble SC of India in mind, I may again reiterate that though certain degree of embellishment is found to have been made in the testimony by the witnesses but they are not of such a nature when seen and analyzed in the overall facts & circumstances of the case and the other evidence led by the prosecution that they may call for an out right rejection of the testimony of these witnesses. I may state that the prosecution witnesses examined have very meticulously withstood the testimony of lengthy and arduous cross examination. When witnesses depose as per their memory and that too after a gap of some time then certain contradictions are bound to occur in their testimony. Had the witnesses churned out a parrot like version then they would have been termed to be tutored witnesses and thus some degree of deviation has to be allowed to the witnesses. All the witnesses have given the vivid details of the incident as well as the role played by the accused persons. I find their testimony to be cogent, convincing and reliable.
In fact, the latest trend of the Criminal Jurisprudence is moving adrift from the earlier view of proof beyond reasonable doubt to be the golden principle. It is now held that it is public duty of the Judge that guilty should not escape. If there is ring of truth around the prosecution case, the same cannot be rejected. This was the view of the Hon'ble Supreme Court in State of UP Vs. Anil, reported in AIR 1988 Supreme Court-1998, In 24 State of Punjab Vs. Karnail Singh reported as 2004,SCC (Cri.)-139 The Hon'ble Supreme Court has held as under :
"Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See Gurbachan Singh Vs. Satpal Singh). The prosecution is not required to meet any and every hypothesis put forward by the accused (See State of UP Vs. Ashok Kumar Srivastava).
A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish (See Inder Singh Vs. State (Delhi Admn.). Vague hunches cannot take place of judicial evaluation.
"A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man 25 does not escape. Both are public duties (Per Viscount Simon in Stirland Vs. Director of Public Prosecution quoted in State of UP Vs. Anil Singh, SCC page 692 para 17). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth (See Shivaji Sahabrao Bobade Vs. State of Maharashtra, State of UP Vs. Krishna Gopal and Gangadhar Behera Vs. State of Orissa)".
Ld. Defence counsel has pointed out that in the initial information given to the police by Smt. Sajreen, it was conveyed that her husband Shabbir Ali has been stabbed by one Saleem. However, as rightly observed by the then ld. A.S.J while considering the bail application of the accused persons at the initial stage of the trial itself that this mentioning of the name of Saleem in the initial information may be a case of overhearing. This explanation all the more should have been sought from PW Sajreen in her cross examination by learned defence counsel during the course of her lengthy cross examination. Moreover, the plea of defence taken by the accused persons that Shabbir Ali was in fact involved in a fight with the villagers also does not inspires confidence. No-doubt the accused persons are not required to prove their plea of defence beyond shadows of all reasonable doubts. However, some preponderance of probabilities ought to have been shown by them in their impugned plea of defence. Moreover, there is no reason as to why 26 the relatives of deceased Shabbir Ali will choose to mention the name of the present accused persons while saving the actual killers of Shabbir Ali. There was no reason for them to absolve the actual killers of the charge of murder of Shabbir Ali and to rather falsely implicate the present accused persons. The fact that accused Nasruddin also sustained injuries in the incident as already discussed herein above also goes to support the aforesaid conclusion.
Thus, from the overall facts & circumstances of the case, it clearly emerges out that the present incident was the result of a quarrel taking place between the two parties which incidentally resulted in the death of Shabbir Ali.
The FSL report also shows that the various weapon of offences recovered in the present case were having blood stains upon them and was of the same group as was found lying on the floor.
Coming to the last contention of learned defence counsel that the prosecution has been unable to show any intention on the part of the accused persons to commit the murder of Shabbir Ali. I may state that the number of injuries which were found to be existing on the body of Shabbir Ali clearly lends support to various conclusions.
Firstly, that the number of assailants involved in causing injuries to him were more than one and as deposed to by the various prosecution witnesses i.e the present accused persons. 27
Secondly, the accused persons were using different kind of weapons in assaulting Shabbir Ali i.e blunt as well as sharp objects viz lathies, knife and bahla.
Thirdly, it also goes to show the knowledge on the part of the accused persons that the injuries were so dangerous that it must in all probabilities cause death or such bodily injury as were likely to cause death. Thus, from the facts & circumstances of the case, this common intention/knowledge on the part of the accused persons in causing such bodily injuries clearly stands established. Similarly, the knowledge as stated herein above that the injuries were dangerous and in all probabilities would cause death or such bodily injury as are likely to cause death also stands imputed upon them.
PW4 Dr. CB Dabbas also clearly stated that injury no.15 was sufficient to cause death in the ordinary course of nature. It is well settled that for the applicability of Section 34 IPC the actual participation by the various accused persons in causing a particular injury is not required. The conduct of the accused persons in first coming to the shop of Irfan with an intention to raise a quarrel and thereafter chasing and assaulting Shabbir Ali with various weapon of offences blunt as well as sharp to a distance of about 150 meters or so and causing such bodily injuries which were likely to cause his death clearly makes them liable for the offence of murder of Shabbir Ali jointly. It also stands proved on record that such an act was 28 committed by the accused persons without there being any excuse for incurring the risk of causing death or such injury as aforesaid. Thus, on the similar analogy the accused persons also stands guilty of causing simple injuries on the person of Sajreen, Praveen and Irfan and thereby having committed an offence punishable U/S 323/34 IPC.
In view of my aforesaid discussion, I am thus of the considered opinion that the prosecution has been successful in proving its case against all the five accused persons, namely, Nasruddin, Wasim @ Pappu, Nasim Khan, Sarajuddin and Slaluddin for the offence U/S 323/302/34 IPC. I accordingly convict them thereunder.
ANNOUNCED IN THE OPEN COURT ON 17-4-07.
(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSION JUDGE FAST TRACK COURT:ROHINI COURTS D E L H I. 29 IN THE COURT OF SH. BHARAT PARASHAR:ASJ:FTC:ROHINI:DELHI S.C.NO.206/06 FIR NO.39/2000 U/S 302/323 R/W 34 IPC PS N.I. AREA.
ORDER ON SENTENCE Vide my separate detailed judgment dated 17-4-07 all accused persons, namely, Nasruddin, Sarajuddin @ Tannu, Wasim @ Pappu, Slaluddin and Nasim Khan all have been convicted for the offence U/S 323/302/34 IPC .
I have heard ld. APP for the State and Sh. Mohd. Naseem for all the five convict persons on the point of sentence.
It has been submitted by learned defence counsel that all the five convict persons are of young age. As regards convict Salaluddin, it was stated that he is aged about 42 years with four small children to look-after.
As regards convict Nasruddin, it was stated that he is aged about 38 years and having two daughters, who have attained the age of majority.
As regards convict Sarajuddin @ Tannu, it was stated that he is aged about 30 years and is having three small children to look-after. 30
The other two convict persons, namely, Wasim @ Pappu and Nasim Khan were stated to be unmarried and aged respectively 26 years and 30 years. It was also stated that they have no previous criminal record and have already remained in jail for considerable period during the course of trial. A lenient view was thus prayed for.
On the other hand, ld. APP strongly prayed for imposition of a severe sentence of imprisonment stating that the manner in which the convict persons had acted at the time of incident was that of hardened criminals. It was thus submitted that the convict persons does not deserves any leniency.
I have carefully perused the record.
Certainly at the outset, I may state that the present case cannot be put in the category of rarest of rarer cases, which could call for imposition of death penalty. I accordingly hereby sentence all the five convict persons, namely, Nasruddin, Sarajuddin @ Tannu, Wasim @ Pappu, Slaluddin and Nasim Khan to rigorous imprisonment for life and to pay a fine of Rs.5,000/- each for the offence U/S 302/34 IPC.
In default of payment of fine, each of the convict persons shall further undergo simple imprisonment for a period of six months each.
As regards offence U/S 323/34 IPC each of the five convict persons, I sentence each of the five convict persons to rigorous imprisonment for a period of six months each.
31
Benefit of Section 428 Cr.PC shall be given to all the convict persons.
It is further directed that all the substantiative period of sentences of imprisonment shall run concurrently.
A copy of the Judgment as well as that of Order on Sentence be given free of costs to all the convict persons and another copy be attached with their jail warrants.
File be consigned to Record.
Announced in the open court on 19-4-07.
(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSION JUDGE FAST TRACK COURT:ROHINI:DELHI 32 S.C.NO.206/06 FIR NO.39/2000 U/S 302/323 R/W 34 IPC PS N.I. AREA.
19-4-07 Pr. Addl. PP for the State.
All convict persons are present in JC with their counsel. Arguments on sentence have been heard.
Vide my separate detailed order, order on sentence has been announced.
File be consigned to record room.
Announced in the open court on 19-4-07.
(BHARAT PARASHAR) (ASJ:FTC:ROHINI:DELHI) 33