Delhi District Court
State vs . Sultan S/O Gulam Mohd. Khan, R/O H.No. ... on 31 July, 2010
1
IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGEVII/NECUM
ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 79/09
Unique Case ID No. 02402R0106262009
State Vs. Sultan S/o Gulam Mohd. Khan, R/o H.No. 160, Sunder
Nagri, Delhi.
FIR No. 32/09
PS Nand Nagri
U/s 307/34 IPC.
Date of Institution : 16.04.2009
Date on which reserved for Judgement : 13.07.2010
Date of pronouncement : 28.07.2010
J U D G E M E N T : Prosecution case emanates from the fact that on 03.02.09 at about 10.40pm, Minaz and his uncle Sariq were going to sleep. Salman and Sultan, who reside in their vicinity reached at their room. Sultan took Sariq outside the house on the pretext of having some talks. He took Sariq near Main Road, Primary School. He asked Sariq in filthiest language that why the latter had employed one Sabloo in his factory when Sabloo was working in the factory of former. He threatened Sariq that he would not let him live at Sunder Nagri. Sultan caught hold of Sariq with his both hands and exhorted Salman '' not to spare alive the bastard". Salman took out a knife from pocket of his pant and stabbed Sariq. Sariq smeared in the blood as soon as he was wielded knife blows. He reached near a medical shop No. N117 and cried for help. In the meanwhile Zahid, another uncle of Minaz, also reached there. Zahid raised alarm for help. Both the accused persons ran away from the spot. Some one informed the police control room. PCR officials reached at spot and removed Sariq to hospital. S.C. No. 79/09 Page 1/30
2 Statement of Minaz, the eyewitness of the incident, was recorded by police, which became bedrock of the case. Investigation was taken up. During the course of investigation, accused Salman and Sultan were arrested. Since Salman was juvenile, as such he was sent to Juvenile Justice Board. Accused Sultan was arrested. Investigation culminated into a charge sheet against him.
2. Charge for offence punishable under section 307 read with section 34 IPC was framed against the accused, to which charge he pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined SI Rajbir Singh (PW1), Constable Devender Singh (PW2), Dr. A.K. Gupta (PW3), HC Inder Pal (PW4), Meenaz (PW5), HC Prem Pal (PW6), Zahid (PW7), Shariq (PW8), Rambir ASI (PW9), Dr. Rajender (PW10), Nagesh Kumar (PW11) and Dr. Harish Raheja (PW12) in the case.
4. In order to afford an opportunity to explain circumstances appearing in evidence against the accused, he was examined under section 313 Cr.P.C. He had denied all the allegations levelled against him. His case has been of denial simpliciter. He pleaded his false implication in the case. He projects that no quarrel had taken place between him and complainant party. He also projects that he has been falsely implicated by complainant party, as they wanted to ruin his business. To defend himself, he has examined DW1 Akram in support of his defence.
5. Rajbir Singh SI (PW1) recorded FIR and proved copy of it as Ex.PW1/A. Constable Devender Singh (PW2) took tehrir recorded by the investigating officer and got the case registered. He detailed those very investigative steps, which took place in his presence. S.C. No. 79/09 Page 2/30
3 Dr. A.K. Gupta (PW3) prepared MLC of Sariq and proved it as Ex.PW3/A. HC Inder Pal (PW4) was posted at PCR van baker13 from 8pm to 8am. At about 11pm, on the intervening night of 03/040209, he received a call regarding quarreling/stabbing at H.No. 117, Sunder Nagri, Delhi. He reached there and removed injured to GTB Hospital. However, he did not remember the name of injured. Two persons, namely, Minaz and Zahid had also accompanied him to hospital.
Minaz (PW5) is the complainant of the case. His testimony will be discussed later on.
HC Prem Pal (PW6) was working as MHC(M) on 04.02.09 at PS Nand Nagri. On that day, ASI Rambir Singh deposited eight sealed parcels with him with the seal of RBS. He made an entry to this effect at Sr. No. 4097 and proved photocopy of the same as Ex.PW6/A. On 18.02.09, ASI Rambir Singh deposited one parcel sealed with seal of GTB Hospital and one sample seal of GTB Hospital. He made an entry to this effect at Sr. No. 4137 and proved photocopy of the same as Ex.PW6/B. On 30.03.09, he sent nine sealed parcel and one sample seal to FSL Rohini through Constable Ashok vide RC No. 18/21. He also proved said road certificate as Ex.PW6/C. Zahid (PW7) and Sariq (PW8) gave confirmation to facts unfolded by Minaz (PW5).
ASI Rambir (PW9) conducted investigation of the case. He deposed that on 03.02.09, he was posted at PS Nand Nagri. On that day at about 11pm, on receipt of DD No.28A, which is Ex.PW9/A, he along with Constable Devender reached at H.No. 175, Sunder Nagri. He noticed S.C. No. 79/09 Page 3/30 4 blood stains in front of Durga Medical Store situated at N117. He made inquiries at the spot and he came to know that one person, namely, Sariq has been stabbed and has been taken by PCR officials to GTB Hospital. He directed Constable Devender to remain at the spot to safeguard the site. He went to GTB Hospital. He collected MLC of injured Sariq and found injured Sariq admitted there. Injured Sariq was shown unfit for statement in the MLC. In the hospital itself, one person, namely, Minaz, nephew of injured Sariq met him. He stated that he had witnessed the occurrence. He recorded his statement Ex.PW5/A. Thereafter, he along with complainant Minaz came back at the spot. He prepared site plan at the instance of Minaz, vide memo Ex.PW5/B. He had made his endorsement on the statement of Minaz vide Ex.PW9/A. He gave tehrir to Constable Devender for getting the case registered. Crime team officials were also called at the spot, who inspected the site and took photographs. He lifted blood sample with the help of cotton. He had also lifted blood stained earth and earth control and kept the same in separate plastic container and these containers were sealed with seal of RBS. The same were taken into police possession and were given Sr. No.1, 2 and 3 vide seizure memo Ex.PW2/H. He had also lifted blood sample, blood stained earth and earth control from front side of N117, Sunder Nagri, and the same were kept in separate parcels and were sealed with seal of RBS. These containers were given sr. No.4,5 and 6. The same were taken into police possession vide memo Ex.PW2/J. Thereafter, he went to GTB Hospital. Sariq was still unfit for statement. Zahid, nephew of Sariq met him in the hospital. Zahid had produced before him blood stained clothes, that is, one while colour 'pathani' salwar and one vest in torn condition. He S.C. No. 79/09 Page 4/30 5 kept these clothes in a parcel and it was sealed with seal of RBS. Blood stained clothes were taken into police possession vide memo Ex.PW2/A. They searched for the accused persons, but they could not be traced. In the evening, Minaz gave information to him on his mobile phone that both the accused persons are roaming in the area. He along with Constable Devender went at the spot. Minaz pointed towards both the accused persons and stated that they are the assailants. They overpowered both of them. On interrogation, their names were revealed as Sultan and Salman. He interrogated them and accused Salman got recovered one knife which was lying on the side wall of MCD O Block, Sunder Nagri. He prepared the sketch of the knife which is Ex.PW2/B. He measured the knife and thereafter kept the same in a pullanda and it was sealed with seal of RBS. The seal after use was handed over to Constable Devender. He prepared seizure memo of the knife vide memo Ex.PW2/C. Both the accused persons were arrested. He prepared their arrest memo and personal search memo vide memo Ex.PW2/D, Ex.PW2/E, Ex.PW2/F and Ex.PW2/G. Thereafter, they came back to PS. Case property was deposited in the malkhana and accused Sultan was put behind the lock up and Salman was kept separately. On 18.02.09, Constable Sanjeev produced one parcel duly sealed and one sample seal before him. He took the same into possession vide memo Ex.PW9/B. He recorded statement of Sariq on 11.02.09. Juvenile Salman was produced before the Juvenile Justice Board and accused Sultan was produced before court concerned at Karkardooma Courts, Delhi.
Dr. Rajender (PW10), Assitant Director (Bio), FSL Rohini, examined exhibits of the case. He proved his biological report and serological report S.C. No. 79/09 Page 5/30 6 as Ex.PW10/A and Ex.PW10/B respectively.
Sh. Nagesh Kumar (PW11), Primary Teacher, brought school record of Salman, who was admitted in their school in 4th A class, on 15.07.2002. As per school record, date of birth of Salman is 10.06.1994. Salman was admitted in the school on the basis of admission form enclosed with one affidavit regarding his date of birth. He proved relevant entry at admission form and affidavit as Ex.PW11/A, Ex.PW11/B and Ex.PW11/C respectively.
Dr. Harish Raheja (PW12) opined nature of injuries by Sariq as grievous, on seeing surgical record of MLC No. C446/09. He proved his endorsement to this effect as Ex.PW12/A.
6. I have heard Sh. Subhash Chauhan, ld. Prosecutor, and ld counsel for the accused.
7. Police machinery, in the instant case, was set in motion on receipt of DD No. 28A Ex.PW9/A on 03.02.09 at about 11pm by ASI Rambir Singh, who along with Constable Devender reached at house No. N175, Sunder Nagri. He noticed blood stains on the road in front of house and also noticed blood stains in front of Durga Medical Store, situated at N
117. On inquiry, it was revealed that Shariq has been stabbed and has been taken by PCR officials to GTB Hospital. After leaving Constable at the spot to safeguard the site, ASI Rambir Singh went to GTB Hospital and collected MLC. The injured was found there admitted in the hospital. He was shown unfit for statement. He met one person, namely, Minaz, nephew of injured, who gave his statement Ex.PW5/A. Thereafter, he along with Constable came back at the spot, prepared site plan at his instance and made his endorsement on statement of Minaz and sent S.C. No. 79/09 Page 6/30 7 Constable Devender for getting the case registered. Crime team officials were called and blood samples, blood stained earth and earth control were lifted from the spot. He again went to GTB Hospital, where Zahid, brother of injured, met him and he produced blood stained clothes of injured, which were seized. Thereafter, on receiving information from the complainant Minaz, accused was arrested at his instance. Knife was recovered and remaining proceedings were conducted.
8. Complainant Minaz (PW5) is the star witness of prosecution. He has unfolded that he along with his uncles, namely, Sariq and Zahid used to reside at Sunder Nagri, Delhi. They used to make ladies purse. On 03.02.09 at about 10.40pm, he along with his both uncles were present at their room. Sultan, who used to reside in the same street and used to do work of making ladies purse, came at their room. He had taken his uncle Sariq on the pretext that he had to talk with him with regard to the job. He also came out from the room in the street. In the meanwhile, Salman also came there. Salman and Sultan were having talks with his uncle Sariq near Govt. Primary School. Sultan stated to his uncle Sariq that he brought his employee Sabloo to his factory and he has not done good thing by doing so. Sultan threatened his uncle Sariq that he would not allow Sariq to reside in the locality and he would see that the factory of his uncle Sariq is closed. Both, Salman and Sultan, quarreled with his uncle Sariq. Sultan caught hold of his uncle Sariq and he asked Salman to kill his uncle Sariq and stated that "mar sale ko, bach na pae, jaan se khatam karde". Accused Salman took out one knife from his pant and wielded knife blow on the back and also on the front beneath the chest. He raised alarm to save his uncle Sariq. He (witness) called his uncle Zahid, who S.C. No. 79/09 Page 7/30 8 also came out from the house. After having received the knife blow, blood started oozing out of his wounds. In order to save himself, his uncle Sariq ran towards O Block Chowk and when he reached in front of a medical store, that is, N117 he fell on the road. When his uncle Zahid also arrived there, then he (witness) raised alarm. Both accused Salman and Sultan ran away from the spot. Somebody informed the police control room. PCR van came there. He along with Zahid and injured uncle Sariq went to GTB Hospital in that PCR van, where Sariq was got admitted in the hospital. His (witness) statement Ex.PW5/A was recorded by police. He identified knife/khukhri Ex.P1 to be the same with which his uncle was assaulted. He also showed the place of occurrence to police officials, who prepared site plan at his instance, vide Ex.PW5/B. On 04.02.09, police officials lifted blood stained earth and sample earth without blood from the spot, and the same were taken into possession vide memo Ex.PW2/H. Police officials also lifted blood from front side of medical store, vide memo Ex.PW2/J. On the same day, at his instance, accused Sultan and Salman were arrested from 'O' Block Masjid, Sunder Nagri. Later on, at the pointing out of accused Salman, one knife was got recovered from dustbin, MCD School. The knife was kept in a cloth pulanda. Pulanda was duly sealed and was taken into police possession. Police officials prepared document Ex.PW2/C to this effect. Both accused persons were arrested.
9. PW7 Zahid is the uncle of injured and has deposed that on the night of 03.02.09, he was going to sleep in his house. At about 10.45pm, accused Sultan came to his house and called his brother Shariq on the count that he wanted to talk to him. At that time, his nephew Minaz was S.C. No. 79/09 Page 8/30 9 also present at the house. Sultan and Shariq went outside the house, while he remained inside the house. After one or two minute, his nephew Minaz also went outside to see them. Sultan and Shariq had gone to the corner of street, where scuffling took place between both of them. Sultan came from behind and he assaulted his brother Shariq with a knife and he gave three knife blows at the back of Shariq and one knife blow on the left side below chest. His nephew Minaz raised alarm and on hearing the same, he came outside and saw his brother lying in a pool of blood. On seeing him, Sultan and Salman ran away from there. On seeing his brother in injured condition, he became perplexed. Someone informed the police control room. PCR van came at the spot. He along with Minaz put his brother in PCR van. He accompanied Shariq to GTB Hospital in PCR Van. His brother was provided treatment by the doctor. His brother also under went an operation at GTB Hospital. Blood stained clothes of his brother were also taken into possession vide memo Ex.PW2/A. He identified pyjama patthani type and one banyan, which are Ex.P2 and P3 respectively, to be the clothes of his brother, who was wearing them at the time of occurrence. He also identified knife/khukhri Ex.P1 to the same, with which his brother Shariq was assaulted.
10. PW8 Shariq is the injured and has substantially corroborated testimony of Minaz and Zahid, while deposing that on 03.02.09 at about 10.45pm, he was going to sleep at his house, that is, H.No. N169, Sunder Nagri, Delhi. In the meanwhile accused Sultan called him to come outside as he had to talk something with him. On this, he came out from his house. During their talks, they reached near Primary School. Accused Sultan abused him and scuffled with him. He was wearing baniyan and S.C. No. 79/09 Page 9/30 10 pyjama at that time. Due to scuffling by Sultan his baniyan got torn. In the meanwhile, Salman came from behind, took out one knife from his pocket and wielded knife blows at three places on his back, and he gave one knife blow on below his left chest. Accused Sultan exhorted his co accused Salamn "Bach na paye, mar do". Minaz was also present near the spot, as he also came out from the house when accused Sultan had brought him from his house. Minaz raised alarm and on hearing the alarm of Minaz, his brother Zahid also came out from the house to save him. He ran towards medical store, NBlock, in front of 'O' Block near Primary School. He felt giddiness and fell on the road. Somebody informed the PCR. PCR van cam there and he along with his brother Zahid was taken to GTB Hospital in PCR van. Doctor asked to arrange the blood as he had to be operated upon. He was taken to operation theatre, where he was operated upon. He remained hospitalized for eight days. Both accused persons were known to him very well as they reside in the same locality, where he resides. His clothes viz vest and pyjama were put off by the doctor, when he was taken to operation theater and later on the same were taken into possession. He identified his pyjama pathani type and baniyan Ex.P2 and P3 to be the same, which he was wearing at the time of occurrence. He also identified knife Ex.P1 to the same with which he was assaulted.
11. A perusal of testimony of these three witnesses goes to show that there is substantial corroboration in the testimony of the witnesses regarding the fact that accused Sultan called injured Shariq outside the house in order to talk with him. Shariq came outside and when they reached near Primary School, scuffling took place due to which baniyan of S.C. No. 79/09 Page 10/30 11 Shariq got torn. It is has further come in the testimony of all the three witnesses that several knife blows were given on the person of Shariq by knife and Sultan had also exhorted Salman that Shariq be killed and he should not be let off. It has also come in the testimony of all the three witnesses that on receiving knife blows Shariq ran towards medical store at NBlock and fell in front of medical store. When Shariq had come outside house, on being called by Sultan, his nephew Minaz followed him. On seeing Shariq being stabbed, Minaz raised alarm. Thereupon Zahid also came out from his house. A slight discrepancy has appeared in the testimony of complainant and the injured as to who gave knife blows on the person of Shariq, inasmuch as, according to Minaz the knife blow was given by Salman whereas according to Shariq it was given by Sultan. However, it seems to be a typographical error inasmuch as it has come in the testimony of this witness that Sultan exhorted Salman "Bachna paye mar do". If the stabbing was done by Sultan himself, there was no occasion for him to exhort Salman. Even otherwise this discrepancy is not fatal, keeping in view the fact that stabbing was done in furtherance of common intention of both accused persons, who had come together armed with knife. Moreover, keeping in view identity of the accused was not in dispute, inasmuch as, both the accused who were well known to the witness from before as they used to reside in the same locality and even accused Sultan has admitted this fact in his statement recorded u/s 313 Cr.P.C. Moreover, presence of all the three witnesses at the spot is neither disputed by the accused and even otherwise stands proved from the testimony of PW4 HC Inder Pal, who was posted at PCR baker No.13 on the intervening night of 03/04th of February, 2009 and has unfolded that S.C. No. 79/09 Page 11/30 12 on receiving the call regarding quarrel at H.No. N117, Sunder Nagri, Delhi, he reached there and took injured to GTB Hospital. Two persons, namely, Minaz and Zahid also accompanied them to the hospital. As such testimony of Minaz and Zahid that somebody had informed PCR and thereupon PCR van came and with the help of Minaz and Zahid, injured was removed to hospital in PCR van and they accompanied injured to GTB Hospital in PCR van finds corroboration from testimony of HC Inder Pal. Therefore, the factum of Minaz having witnessed the occurrence stands p roved from testimony of HC Inder Pal, who found him present at the spot. Moreover, when ASI Rambir reached the spot on receipt of DD No. 28A and he came to know that injured has been removed to hospital. Thereupon, he reached GTB Hospital, where he met Minaz, who gave statement Ex.PW5/A at the earliest possible opportunity and in this complaint itself, he has named both accused persons and role played by them. No enmity has been alleged by the accused against all these witnesses, except the fact that on the date of occurrence, accused was nurturing illwill against Shariq on the ground that both Shariq and accused Sultan were running same business of making ladies purse and Shariq had brought his employee Sabloo to his factory, besides that there was no previous history of enmity between the parties. Moreover, enmity is a double edged weapon. Therefore, there was no reason as to why the complainant or for that matter the injured will falsely name them in this case allowing the real culprit to go scot free.
12. Needless to say, testimony of injured witness stands on much higher pedestal then any other witness. In State of Gujarat v. Bharwada Jakshibhai Nagribhai, 1990 Cr.L.J. 2531, it was observed that for S.C. No. 79/09 Page 12/30 13 appreciating the evidence of the injured witnesses, the Court should bear in mind that : (1)Their presence at the time and place of the occurrence cannot be doubted.
(2)They do not have any reason to omit the real culprits and implicate falsely the accused persons.
(3)The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects. (4)If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence.
(5)While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation.
(6)It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. S.C. No. 79/09 Page 13/30
14 In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story.
13. After recapitulating number of cases in the case of Appabhai v.
State of Gujrat, AIR 1988 SC 696 : (1988 Cr.L.J. 848), the Supreme Court has succinctly dealt with this aspect. The Court has held that the injured witness should be considered to be the best eyewitness to the incident and the discrepancy in his evidence which does not shake the basic version of the prosecution case may be discarded.
14. Similar view was taken in State of UP vs. Kishan Chand and others, (2004) 7 SCC 629, wherein it has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In 1994 Supp (3) SCC 235, Shivlingappa Kallayanappa vs. State of Karnataka, Hon'ble Supreme Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case, it is proved that he suffered the injury during the said incident. In 2009 (X) AD SC 381, Jarnail Singh and others vs. State of Punjab, Hon'ble Supreme Court held that in case the injured witness is subjected to lengthy crossexamination and nothing can be elicited to S.C. No. 79/09 Page 14/30 15 discard his testimony, it should be relied upon.
15. In the instant case, testimony of injured Shariq himself is sufficient.
However, his testimony finds substantial corroboration from testimony of Minaz and Zahid. All these witnesses were subjected to lengthy and searching crossexamination despite that nothing natural could be elicited to discredit their testimony. Their testimony are consistent, truthful, reliable. Moreover, occular testimony of these witnesses finds corroboration from medical evidence, inasmuch as, when injured was taken to GTB Hospital, he was examined by Dr. A.K. Gupta (PW3). On examination, doctor find following injuries on his person : (1) Clean incised wound measuring 2X2 cm on left hypchondirac area of anterior abdominal wall with omentum and subcutaneous fat coming out of it.
(2) Clean incised wound measuring 2X1 cm on left infra scapular area of upper back with active bleed.
(3) Clean incised wound measuring 2X1 cm on right scapular area of upper back with no active bleed.
(4) Clean incised wound measuring 1X1 cm on right infra scapular area of back with no active bleed.
After giving initial treatment at the casualty, he referred the patient to SR surgery. He found injury No.1 to 4 to be sharp. In cross examination, he denied the suggestion that injuries mentioned in the MLC are possible due to fall on grill. Injuries were opined to be grievous by Dr. Harish Raheja (PW12) as per his endorsement Ex.PW12/A.
16. It has further come on record that at the instance of complainant Minaz, both accused persons were arrested by police. Coaccused S.C. No. 79/09 Page 15/30 16 Salman made disclosure statement and on his pointing out, one knife Ex.P1 was got recovered from dustbin, near MCD school. The knife was kept in a cloth pullanda, which was sealed and taken into possession vide memo Ex.PW2/C. Recovery of knife at the instance of coaccused Salman stands proved from testimony of Minaz, Constable Devender Singh and ASI Rambir Singh. Despite crossexamination, nothing material could be elicited to discredit their testimonies.
17. Further more, testimony of complainant and injured that when injured was stabbed, blood started oozing out and in order to save himself, injured Shariq ran towards medical store, where he fell on the road, also finds corroboration from testimony of ASI Rambir Singh. When ASI Rambir along with Constable Devender reached the spot, that is, N175, Sunder Nagri, Delhi, he noticed blood stains on the road in front the house. He also noticed blood stains in front of Durga Medical Store, situated at N117. During the course of investigation, blood samples were lifted. Blood stained earth, earth control was also lifted and the same were taken into possession. It has also come on record that when injured was being taken to operation theater for the purpose of operation, at that time his clothes were given by doctor and clothes of injured were handed over by PW7 Zahid to the investigating officer of the case, who took the same into possession vide memo Ex.PW2/A. During the course of investigation, blood sample, blood stained earth, earth control and clothes of injured were sent to FSL, and the same were examined by Dr. Rajender, Assistant Director (Biology) (PW10). PW10 Dr. Rajender received following articles contained in nine cloth parcels : Parcel '1' : One sealed cloth parcel sealed with the seal of "RBS" S.C. No. 79/09 Page 16/30
17 containing exhibit '1' kept in a plastic container. Exhibit '1' : Cotton wool swab having dirty stains described as 'Blood'. Parcel '2' : One sealed cloth parcel sealed with the seal of "RBS" containing exhibit '2', kept in a plastic container. Exhibit '2' : Cemented and concrete material described as 'Blood stained earth'.
Parcel '3' : One sealed cloth parcel sealed with the seal of "RBS" containing exhibit '3' kept in a plastic container. Exhibit '3' : Earth described as 'Earth control'. Parcel '4' : One sealed cloth parcel sealed with the seal of "RBS" containing exhibit '4', kept in a plastic container. Exhibit '4' : Dirty cotton wool swab described as 'Blood'. Parcel '5' : One sealed cloth parcel sealed with the seal of "RBS" containing exhibit '5', kept in a plastic container. Exhibit '5' : Cemented and concrete material described as 'Blood stained earth'.
Parcel '6' : One sealed cloth parcel sealed with the seal of "RBS" containing exhibit '6', kept in a plastic container. Exhibit '6' : Cemented and concrete material described as 'Earth control'.
Parcel '7' : One sealed cloth parcel sealed with the seal of "RBS" containing exhibit '7a' and '7b'.
Exhibit '7a' : One pyjama having brown stains.
Exhibit '7b' : One banian having brown stains.
Parcel '8' : One sealed cloth parcel sealed with seal of "RBS" containing exhibit '8'.
S.C. No. 79/09 Page 17/30
18 Exhibit '8' : One weapon of offence having light brown stains, described as 'Blood stained knife'.
Parcel '9' : One sealed cloth parcel sealed with the seal of "MLC GTB Hospital Delhi95", containing exhibit '9'.
Exhibit '9' : Gauze cloth piece having brown stains described as 'Blood on gauze'.
As per result of analysis: (1) Blood was detected on exhibits '4', '5', '7a', '7b', '8' and '9'.
(2) Blood could not be detected on exhibits, '1', '2', '3' and '6'.
(3) Report of serology was as under :
Exhibits Species of Origin ABO Grouping/Remarks
'2' Cemented and Concrete No reaction
material
'3' Earth control No reaction
'4' Cotton Wool swab Human No reaction
'5' Blood stained cemented and Human No reaction
concrete material.
'6' Cemented and concrete No reaction
material (control)
'7a' Pyjama Human 'B' Group
'7b' Banian Human 'B' Group
'8' Weapon of offence Human No reaction
'9' Gauze cloth piece Human 'B' Group
He proved his biological and serological reports as Ex.PW10/A and Ex.PW10/B respectively. Perusal of these reports goes to show that blood was detected on cotton swab described as blood. Blood stained earth, pyjama and baniyan of the injured, blood stained knife recovered at the instance of co accused Salman and accused and cloth piece described as blood on gauze. On S.C. No. 79/09 Page 18/30 19 the pyjama and baniyan and gauze cloth piece, blood was opined to be of human origin, which was of 'B' group. On the cotton wool swab, cemented and concrete material and knife, blood was found to be of human origin. However, group could not be given. This report is also one of the corroborative piece of evidence to the ocular testimony of injured and complainant.
18. Result of the aforesaid discussion is that testimony of injured is reliable, truthful, cogent, convincing and trustworthy. There is no reason to disbelieve the same. Injured or for that matter the complainant Minaz has no axe to grind for which reason they will falsely implicate accused in this case. Moreover, as discussed above, occular testimony of injured Shariq, Zahid and complainant Minaz finds substantial corroboration from circumstantial evidence, viz : (1) On receipt of call regarding quarreling/stabbing at H.No. N117, Sunder Nagri, Delhi, HC Inder Pal (PW4) posted at PCR Van baker No.13 reached there and took injured to GTB Hospital. Minaz and Zahid accompanied him to GTB Hospital.
(2) Testimony of injured Shariq and Complainant Minaz that in the scuffling between Shariq and Sultan, baniyan of Shariq was torn, finds corroboration from baniyan, which was found in torn condition. (3) Ocular testimony of injured finds corroboration from medical evidene. As per testimony of Dr. A.K. Gupta, on examination of the injured, he found as many as four injuries. According to him, all the injuries were sharp. Injuries were opined to be grievous in nature by Dr. Harish Raheja. (4) Oral testimony of Minaz, Zahid and injured Shariq that due to stabbing by knife, blood fell at the spot. Shariq ran towards medical store at N Block in front of OBlock, near Primary School and fell on the road, when S.C. No. 79/09 Page 19/30 20 ASI Rambir singh reached there at the spot, who found flood at both spots, which was taken into possession.
(5) At the instance of coaccused Salman (juvenile) knife was recovered, which was identified by the witness to be the same, with which injuries were caused on the person of Shariq.
(6) Knife as well as blood stained earth control, clothes of deceased were sent to FSL and to a great extent FSL report also corroborates their oral testimony.
(7) There is apparent motive to eliminate Shariq as both accused Sultan and injured Shariq were doing the same business, that is, of making ladies purses. Sabloo used to work with accused Sultan. Later on he started working with Shariq. Accused Sultan was nurturing illwill against Shariq on this count and called Shariq outside his house and told him that by bringing his employee Sabloo in his factory Shariq had not done good thing, and as such Sultan threatened Shariq that he will not allow him to reside in the locality and will also see that factory of Shariq be closed.
Under these circumstances prosecution has been able to establish beyond reasonable doubt that it was accused Sultan along with his co accused Salman, who stabbed Shariq and caused grievous injuries to him.
19. Coming to the defence of the accused, he has simply stated that he has been implicated in this case by complainant party because they wanted to run his business and no quarrel had taken place between him and the complainant. He has examined DW1 Akram, who has deposed that on 03.02.09 he along with Sultan had gone to Navikarim to purchase material from the market. They had left Navikarim at 22.30pm and S.C. No. 79/09 Page 20/30 21 dispatched purses to shopkeeper, who asked them to take money at 7pm. During this period, they roam in the market. At about 7pm, they got money from shopkeeper and thereafter they purchased raw material and remained in the market till 11pm. Thereafter, returned to Sunder Nagri at about 11.45pm. Thereafter, they took dinner and went to sleep. He is working with Sultan from last four years. No person by the name of Sabloo worked with Sultan. In crossexamination by the ld. Prosecutor, he admitted that he could not produce any document to show that he was working as labourer in the factory of Sultan. He could not tell the shop number where he had gone with Sultan in Navikarim nor could tell the name of the shop owner. He could not tell what amount was given by the shopkeeper to Sultan. He admitted that he came to know that accused has been arrested by police officials on 04.02.09. He also came to know that Sultan has been arrested due to quarrel with Shariq. Although, he deposed that he had told the police officials that since Sultan was with him, then how could he because injuries on the person of Shariq. However, he admitted that no complaint in writing was given by him before any authority. It may be mentioned that no reliance can be placed on the testimony of this witness, inasmuch as, firstly he has not placed on record any documents to show that he was working as labourer in factory of Sultan. Even if, it is assumed for the sake of arguments that he was employee of Sultan, then this is another ground as to why he has come to depose in his favour. If according to him, Sultan is innocent and he is not involved in any incident, no explanation has been given by him as to why no written complaint was made by him to competent authorities regarding his false implication in this case. Moreover, it is not even the case of S.C. No. 79/09 Page 21/30 22 accused that he was not present at the spot at the relevant time or that he had gone to market to purchase raw material. Under these circumstances, testimony of this witness is beyond the case of accused and therefore accused cannot get any benefit from testimony of this witness. As regards plea of the accused that complainant wanted to ruin his business, it has come in his crossexamination that witness was running good business. As such there was no reason to spoil his business. Even otherwise, as stated above, factum of Shariq sustained injuries stands proved from the medical record. That being so, at the cost of repetition, it may be mentioned that there is no plausible explanation as to why the injured would have allowed the real culprit to go scot free, and to implicate accused in this case. Moreover, it was not the case of Sultan alone, but he has also testified about the role played by coaccused Salman with whom no enmity is alleged.
20. In the factual scenario noted above, it has to be seen whether Section 307 IPC has application. The said provision reads as follows : "307. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."
21. To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable S.C. No. 79/09 Page 22/30 23 assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.
22. It is sufficient to justify a conviction under section 307 IPC, if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. If the injury inflicted has been with the avowed object or intention to cause death, the ritual nature, extent or character of the injury or whether such injury is sufficient to actually causing death are really factors which are wholly irrelevant for adjudging the culpability under section 307 IPC. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section.
This position was highlighted in : S.C. No. 79/09 Page 23/30 24 (1) State of Maharasthra V. Balram Bama Patil, (1983) 2 SCC 28 :
1983 SCC (Cri.) 320.
(2) R. Prakash V. State of Karnatka, (2004) 9 SCC 27 : 2004 SCC(Cri.) 1408.
(3) Giri Shankar Vs. State of U.P., (2004) 3 SCC 793. (4) Vasant Vithu Jadhav Vs. State of Maharashtra, (2004) 9 SCC 31. (5) Bappa Vs. State of Maharasthra, (2004) 6 SCC 485. (6) Hari Mohan Mandal Vs. State of Jharkhand, (2004) 12 SCC 220. (7) Bipin Beher Vs. State of M.P., (2006) 8 SCC 799.
23. In Sarju Prasad v. State of Bihar, AIR 1965 SC 843 : (1965) 1 Cri.L.J. 766, it was observed in para 6 that mere fact that injury actually inflicted by the accused did not cut any vital organ of the victim, is not by itself sufficient to take the act out of the purview of section 307 IPC.
24. Whether there was intention to kill or knowledge that death will be caused, is a question of fact and would depend on the facts of a given case. The circumstance that the injury inflicted by the accused was simple or minor, will not by itself rule out application of section 307 IPC. The determinative question is intention or knowledge, as the case may be, and not nature of injury.
25. In 2010 VII AD (SC) 256, Singapagu Anjaiah vs. State of Andhra Pradesh, it was observed by Hon'ble Apex Court that nobody can enter into the mind of the accused, its intention has to be gathered from the weapon used, the part of the body chosen for the assault and nature of the injuries caused. In that case, the accused had chosen a crow bar as the weapon of offence, and injuries were inflicted on the vital part of the S.C. No. 79/09 Page 24/30 25 body, that is, head which had caused multiple fractures of skull, which reflected the force with which accused had used the weapon. Under these circumstances, it was held that cumulative effect of all these factors irresistibly lead to one and the only conclusion that the appellant intended to cause death of deceased.
26. In the instant case also, it has come on record that accused along with his associate went to the house of injured in late hours of night, that is, 10.40pm. Accused persons called the injured from his house on the pretext of talking to him with regard to the job. Thereafter, he took him in the street. They had come prepared, inasmuch as, they were armed with knife and thereafter accused Sultan exhorted his coaccused to kill him and he should not be left alive. Thereafter, the knife blows were given on various parts of the body, including the chest which was vital part of the body. As per report of Dr. A.K. Gupta, there were as many as 4 injuries out of which two are very serious, inasmuch as, it was found that injury No.1, that is, clean incised wound measuring 2X2 cm on left hypchondirac area of anterior abdominal wall with omentum and subcutaneous fat coming out of it, and injury No.2, that is, clean incised wound measuring 2X1 cm on left infra scapular area of upper back with active bleed, and injuries were opined to be grievous. The cumulative effect of all these factors leads to the irresistible conclusion that injuries were caused by the accused along with his associate with such with such an intention or knowledge and under such circumstances that if by that act, they would have caused his death then they would have been guilty of an offence of murder.
S.C. No. 79/09 Page 25/30
26
27. Charge against the accused is for offence punishable under section 307 read with section 34 IPC. Section 34 IPC has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under section 34 if such crimina act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of section 34, be it prearranged or on the spur of the moment: but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar vs. State of Punjab, AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the S.C. No. 79/09 Page 26/30 27 provision.
28. The section does not say "the common intentions of all" nor doe it say "an intention common to all". Under the provisions of section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in section 34, when an accused is convicted under section 302 read with section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy vs. State of A.P., 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused.
The above position was highlighted in Girija Shankar v. State of U.P., 2004 (3) SCC 793.
29. In the instant case, there is ample material available on record to show that initially accused Sultan came to the house of injured and called him. While they were talking to each other, coaccused Salman also came armed with a knife. Thereafter, Sultan exhorted Salman not to spare Shariq and he should not be left alive. Under these circumstances, material available on record proves beyond reasonable doubt that both accused persons had shared common intention, while attempting on the S.C. No. 79/09 Page 27/30 28 life of Shariq.
30. Result of the aforesaid discussion is that prosecution has been able to prove beyond reasonable doubt that on 03.02.09 at about 10.40pm, accused Sultan in furtherance of his common intention came along with his associate Salman and called Shariq on the pretext of talking, and thereafter cause grievous injuries on his person with a knife. Intention of the accused to cause such injuries as was likely to cause his death is manifest from number of injuries caused on the person of victim, exhortations made by the accused, weapon of offence used by him and part of the body chosen by the accused to cause injury. Therefore, the prosecution has been able to bring home the guilt of the accused Sultan for offence punishable under section 307 read with section 34 IPC beyond reasonable doubt. He is, accordingly, held guilty of of the offence u/s 307/34 IPC.
Announced in the Open Court (Sunita Gupta)
th
On this 28 day of July, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
S.C. No. 79/09 Page 28/30 29 IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGEVII/NECUM ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI : S.C. No. 79/09
Unique Case ID No. 02402R0106262009 State Vs. Sultan S/o Gulam Mohd. Khan, R/o H.No. 160, Sunder Nagri, Delhi.
FIR No. 32/09 PS Nand Nagri U/s 307/34 IPC.
Date of Institution : 16.04.2009 Date on which reserved for Judgement : 28.07.2010 Date of pronouncement : 31.07.2010 ORDER ON THE POINT OF SENTENE : Leniency in punishment has been claimed by ld. Counsel for the convict, pleading that he is a young man, aged about 28 years. He is the sole bread earner to support his family. In case he is awarded severe punishment, then his family would starve. This is the first offence committed by him. He has no criminal history behind him. As such, it is submitted that lenient view may be taken while awarding sentence to convict.
2. On the other hand, ld. Prosecutor submits that convict is liable to undergo severe punishment, so that it may deter others from committing such offence.
3. On 03.02.09 at about 10.40pm, Minaz and Shariq were going to sleep. Convict Sultan along with his associate Salman reached there.
Sultan took Shariq outside the house, near Main Road, Primary School. He asked Shariq in filthiest language as to why latter had employed Sabloo in his factory, when Sabloo was working in the factory of former. S.C. No. 79/09 Page 29/30
30 Convict Sultan threatened Shariq that he would not let him alive at Sunder Nagri. He caught hold of Shariq with his hands and exhorted Salman not to spare alive the bastard. Shariq was wielded knife blows on his back as well as chest. In the meanwhile, Zahid brother of Shariq reached there, besides Minaz. Shariq was removed to hospital, where doctor prepared his MLC and opined injuries sustained by him to be of grievous nature.
4. As per partI of section 307, maximum punishment prescribed is 10 years and fine, while as per partII, if hurt is caused the punishment may extend to life also.
5. In the instant case, injuries were caused on the injured on vital part of the body also and he had to undergo operation and remained hospitalized for number of days. The offence is very serious, but keeping in view the fact that no previous conviction is alleged against the convict nor he is stated to be facing trial in any other case as such balancing the aggravating and mitigating circumstances, I hereby order that convict Sultan shall undergo RI for 7 years and to pay a fine of Rs.7,000/ for offence punishable under section 307 read with section 34 IPC. In default of payment of fine, he would further undergo RI for one year.
6. Fine, if recovered, be paid to victim Shariq as token of compensation. 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 31 day of July, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
S.C. No. 79/09 Page 30/30