Delhi District Court
State vs . Zuber Ahmed on 31 August, 2007
1
IN THE COURT OF SH. ARUN KUMAR ARYA : ADDL. SESSIONS
JUDGE : ROHINI COURTS : DELHI.
In Re:
State V/s. Zuber Ahmed
FIR no. 1408/2001
PS Sultan Puri
U/S 302 IPC & 25/27/54/59 Arms Act
a) The serial no. of the : 90/06
Sessions case
b) The date of commission of : 19.12.01
offence
c) The name, parentage and : Zuber Ahmed
residence of the accused s/o Jamir Ahmed
r/o C-4/328, Sultan Puri.
JUDGEMENT
1. On 19.12.2001 a DD entry was recorded at Police Station Sultan Puri that knife blows were exchanged at C/6-30-31, Sultan Puri. Upon this SI Pradeep Kumar was sent to the spot alongwith HC Ajeet Singh. They reached the spot and came to know that injured was already removed to Sanjay Gandhi Hospital. On reaching Sanjay 2 Gandhi Hospital they obtained the MLC 3361/01 of Suraj who was declared brought dead with alleged injury of knife on right side of the chest. One eye witness Mohd. Kamar met the police officials and his statement was recorded in which he stated that one Zuber had inflicted injuries on Suraj in his chest. He tried to run away but was caught at the spot. Suraj (injured) was removed to Sanjay Gandhi Hospital. A case under Section 302 IPC was registered at Police Station Sultan Puri in this respect. The accused was arrested and Police filed charge sheet against the accused u/s 302 IPC and 25/54/59 Arms Act.
2. The Ld. MM complied with the provisions of section 207 Cr.PC and committed the case to the court of Sessions. My Ld. Predecessor after hearing the arguments, framed the charge u/s 302 IPC and 25/57 Arms Act on 15.7.2002.
3. In support of its case Prosecution has examined 21 witnesses. PW-1 Head Const. Vijay Kumar deposed that on 19.12.2001 he was posted at P.S. Sultan Puri and working as Duty Officer from 8.00 a.m. to 4.00 p.m. At about 1.30 p.m. he received a 3 message from PCR through Wireless Operator that at house No. C/6- 30-31, Sultan Puri knife blows were exchanged (Chakku chal rahein hai). He recorded the information and the copy of the same is Ex. PW-1/A. He again received massage from Duty Const. at Sanjay Gandhi Hospital that Suraj was brought to the hospital by one Naveen and was declared brought dead. This information was recorded by him as DD No. 19A. The copy of the same is Ex. PW-1/B. He received the rukka sent by SI Pradeep Kumar through Const. Dharmender at 3.00 p.m. He recorded the FIR No. 1408/2001 and the copy of the same is Ex. PW-1/C. Special report of the incident was sent to the Senior Officers. DD No. 20 A was recorded for the starting time of the FIR and DD No. 21 A was recorded for sending the FIR. Correct copies of these documents are Ex. PW-1/D and PW- 1/E.
4. PW-2 Anita deposed that on 19.12.2001 she was present at her house. On hearing noise she came out and saw her Devar in injured condition. She went to P.S. Sultan Puri and informed the police. One HC Vijender Singh came at the spot and by the time 4 injured was removed to the hospital by her husband. During cross- examination she denied that her husband was not present at the spot. The shirt of her husband was also soaked with the blood and the shirt of the injured was also soaked in the blood. She further reaffirmed that call was made at 1.35 /1.40 p.m. and accused was arrested at that time.
5. PW-3 Sushil Sharma deposed that deceased Suraj was his son. He had identified the dead body of his son on 20.12.2001. During cross-examination he admitted that his son was involved in 16 criminal cases. He denied the suggestion that his son was declared BC of the area. He admitted that he was a politician and belong to Congress Party. He admitted that his daughter was married to Mohd. Kamar. The place of incident was thickly populated area.
6. PW-4, Naveen Sharma is the younger brother of the deceased who deposed that on 19.12.2001 at about 1.15 p.m. he was going to his house for taking the meals from his shop. When he reached near MCD Park C-6 Block, Sultan Puri he saw his brother Suraj and Zuber in an altercation. Accused took out a knife from 5 pocket of his pant and stabbed in the chest of his brother. Accused was exhorting "tu ilake ka dada banta hai, teri mein dadagiri nikalata hu, tune mere bhai ko bhi mara pita tha. Upon this deceased raised noise, witness alongwith his brother in law Mohd. Kamar ran after him and caught him. He was caught. Deceased was taken to Nirmal Nursing Home but looking upon his condition he was taken to Sanjay Gandhi Memorial Hospital in a rickshaw. In the hospital he was declared brought dead. He identified the dead body of his brother vide statement Ex. PW-4/A and after postmortem the dead body was handed over to his father. During cross-examination he stated that no criminal case was pending against him. He admitted that his sister was married to Mohd. Kumar. He could not tell whether his brother was involved in criminal cases or he was B.C. of the area. He denied that he had no ration shop on contract or he did not attend the shop on the date of incident. The distance between the place of incidence and his ration shop was about 300 mtrs. He told that he was at a distance of about 20 mtrs when he saw accused running. He reiterated that he put the deceased on the cycle rickshaw with the 6 help of Mohd. Kamar and 2-3 other persons. He was wearing black colour pant and orange colour shirt and black colour jacket. He stated that his blood stained clothes were not seized by the IO. He denied that he was the planted witness. He denied that no recovery was effective from the accused.
7. PW-5 Mohd. Kamar is brother in law of the deceased and knew Zuber Ahmed, the accused present in the Court. He was going to his house for taking lunch on 19.12.2001 at about 1.00 p.m. The deceased also met him in the way and when they were going to house accused met and told the deceased that he had beaten him brother Farid and he had not visited him in the hospital. An altercation took place between both of them, they grappled with each other. Accused took out a knife from his pant and stabbed deceased in the chest. Accused tried to run away from the spot but was apprehended by the public. In the meanwhile his brother in law also came at the spot. Deceased was removed to Sanjay Gandhi Hospital by Naveen but he was declared brought dead. He lodged the report to the police, which is Ex. PW-5/A and bears his signatures at point A. Police 7 prepared the sketch of the knife in his presence, which is Ex. PW-5/B. He identified the knife Ex. P-1 by which accused had stabbed the deceased. Disclosure statement of the accused was recorded which is Ex. PW-5/D and bore his signatures at point A. He also signed the personal search memo and arrest memo of the accused, which are Ex. PW-5/E and PW-5/F. During cross-examination he admitted that he married the sister of the deceased and his father in law is the Congress leader. He had a Boutique shop at C-4 Block and he used to go for lunch in the noon. He stated that he used to take lunch at his father's house as well as at his own house. He stated that he did not lift the deceased who was lifted by one other person and Naveen. He stated that his clothes were also blood stained but police also did not seize the same. He denied that the accused was not apprehended at the spot. Babbal wife of Naveen had informed the police within five minutes of the incidence. He stated that contents of the FIR was read over to him. He denied that no recovery of the knife was recovered from the accused. He denied that the accused was falsely implicated at the instance of his father in law who was a influential man. 8
8. PW-6 Suresh Chand deposed that he was running a PCO Booth at telephone No. 5479436. He deposed that on 19.12.2001 some one informed the PCR at No. 100 from his telephone booth. During cross-examination he stated that he did not make register of such calls.
9. PW-7, Noor Hasan did not support the prosecution version. He stated that accused was not arrested in his presence. He had not seen the accused running and some people were chasing him. He denied that accused was arrested in his presence. He denied that neither knife Ex. P-1, alleged weapon of offence was recovered nor accused made a disclosure statement in his presence. He also stated that he had not made any statement to the police.
10. PW-8 Const. Dharmender was posted at P.S. Sultanpuri on 19.12.2001. He took the rukka to the Police station for registration of FIR. He brought two sealed parcels from the Mortuary and handed over the same to Inspector Banwari Lal who made the recovery memo Ex. PW-8/A, which bore his signatures at point A.
11. PW-9 Dr. Puneet Nath, CMO, Sanjay Gandhi Hospital 9 deposed that on 19.12.2001 he was working as CMO at 1.40 p.m. One Suraj was brought by one Naveen with the alleged history of knife injury on the right side of chest. On examination he was declared brought dead. MLC in this regard is Ex. PW-9/A, which bore his signatures at point A.
12. PW-10, Const. Joginder deposed that on 19.12.2001 he was posted at Police Station Sultan Puri. He had delivered the special reports of the case to Sr. Officers at 4.00 p.m.
13. PW-11, HC Raj Kumar deposed that on 18.12.01 he was posted at PS Sultan Puri. On that day at about 11:19 pm one copy of DD No.46A was handed over to him. After receiving the same he went to Sanjay Gandhi Memorial hospital, obtained the MLC of Farid Ahmed, injured. He recorded his statement and sent the rukka to the PS and on that basis FIR no. 1407/01 was registered u/s 323/341/34 IPC. Accused Deepak @ Bantu was registered in this case. Accused Suraj could not be arrested as he was murdered in case FIR no. 1408/01.
14. PW-12, HC Surinder, deposed that on 19.12.2001 he was 10 on duty on Commander 65. At 1.35 p.m. he received an information that a quarrel had taken place at C-6, Sultan Puri. On reaching there it was revealed that injured was taken to Sanjay Gandhi Hospital and the accused was apprehended by the public persons. People informed him that accused had caused injuries to the injured with a knife. In the meanwhile police personnel of P.S. Sultan Puri came and he handed over the accused to them.
15. PW-13, Const. Kamlesh deposed that on 19.12.2001 he was posted at PCR room at 8.00 a.m. to 8.00 p.m. At 1.33 P.m. one information was received from one Babbal from telephone No. 5479436 about some quarrel at C-6, Sultan Puri. He filled the PCR form, the copy of the same is Ex. PW-13/A.
16. PW-14, SI Parveen Kumar deposed that on 19.12.2001 he was posted at Police Station Sultan Puri, Police Post Prem Nagar. On that day he received information through telephone in the Police Post that knives were used at C-6, Sultan Puri. He reached at the spot and came to know that injured had already been removed to Sanjay Gandhi Hospital. He then went to Sanjay Gandhi Hospital, 11 obtained the MLC of Suraj, who was declared brought dead by the doctors. He recorded the statement of one Mohd. Kamar, which is Ex. PW-5/A and he signed at point B. He made the endorsement, the same is Ex. PW-14/A. He sent the rukka for registration of the FIR. Inspector Banwari Lal came at the spot and he joined the investigation with him. Disclosure statement of the accused was recorded which bore his signatures at point B of Ex. PW-5/D. Knife was recovered at the instance of accused. Sketch of knife was prepared vide memo Ex. PW-5/B and he signed at point B. He identified the knife in the Court. He stated that personal search and arrest memo of the accused were prepared in his presence.
During cross-examination he stated that he had received the telephone call at 1.40-1.45 p.m. He could not tell whether this telephone massage was recorded in Daily Diary or not. He reached the spot at about 2.00 / 2.10 p.m. He stated that he did not inspect the place of incident as he has to attend the injured first. He did not make any inquiry from the people gathered at the spot. He stated that he saw the accused at about 5.30 p.m. He did not made any entry at 12 P.S. Sultan Puri of his arrival at P.S. Sultan Puri. He started at about 6.15 p.m. for the recovery of knife and reached the spot at about 6.30 p.m. He denied that the knife was never recovered at the instance of accused and place of recovery is a common place.
17. PW-15, Dr. Komal Singh, CMO, Sanjay Gandhi Hospital deposed that he conducted the post mortem on the body of Suraj on 20.12.2001. On external examination he found one incised wound on the left side of chest placed at 8th intercostal space. It was 3.2 cmt. X 1.2 cmt., elliptical in shape 5.8 cmt. below the left nipple, obliquely placed, inner angle was acute and the outer obtuse. This injury had penetrating the left ventricle of the heart. He was shown the weapon of offence. He opined that the injury on the body of deceased could be possible by the weapon of offence shown to him, Ex. P-1. The cause of death was given as hemorrhagic shock due to penetrating injury to the heart which was sufficient to cause death. Time of death was given as 21.00 hours approximately. During cross-examination he stated that the injury sustained by the deceased can cause death 13 within 5 to 20 minutes. Assessment of time of death is with a margin of error of five hours.
18. PW-16, Dr. Ravi Kant Guglani, M.D. Nirmal Hospital deposed that on 19.12.2001 he was present in the hospital at 1.15 p.m. One injured person was brought in critical condition and he has referred the same to the Government Hospital. He stated that he had not given any statement to the police in this regard. He was declared hostile by Ld. Addl. Public Prosecutor. During cross-examination he stated that he cannot tell the name of the person who brought the injured to the hospital.
19. PW-17 HC Kali Charan deposed that on 19.12.2001 he was posted at P.S. Sultan Puri and he was working as Duty Officer. On receipt of rukka at 12.25 a.m. through Ct. Mohan Lal, he recorded the FIR no.1407/01 u/s 341/323/34 IPC. The same is Ex-PW17/A.
20. PW-18, HC Durga Prasad deposed that on 19.12.2001 he was posted at P.S. Sultan Puri as Malkhana Mohrar. One sealed parcel was deposited with him with the seal of BL. He made the corresponding entry at serial No. 6740 in register No. 19. The parcel 14 was sent to Sanjay Gandhi Hospital on 20.12.2001 for the opinion of the doctor. On 18.11.2002 three sealed parcels and one sample seal of DKS was sent to FSL, Malviya Nagar.
21. PW-19, SI Manohar Lal deposed that on 09.03.2002 he prepared the scaled site plan in the office on the basis of rough notes and measurements given by the IO to him. The scaled site plan is Ex. PW-19/A.
22. PW-20,HC Vijender Singh deposed that on 19.12.2001 he was posted at P.S. Sultan Puri and at 1.30 p.m. he was present in the Police Station. One woman came to the police station and told him that her brother in law Suraj had been stabbed with a knife by her neighbour Zuber Ahmed. She told her name as Anita wife of Naveen. He reached the spot C-6, Sultan Puri and found that Suraj was already taken to hospital. At the spot HC Surinder Singh of PCR handed over accused to him. He brought accused to the Police Station in the same PCR Van and handed over to Inspector Banwari Lal. He identified the accused as the same who was handed over to 15 him by HC Suriender Singh. During cross-examination he stated that no DD entry was made by him. He further stated that his statement was recorded on 19.12.2001. He also admitted that he did not make any DD entry regarding the handing over of the accused to the Addl. SHO. He denied that he was deposing falsely.
23. PW-21, Inspector Banwari Lal deposed that on 19.12.2001 he was posted at P.S. Sultan Puri as Additional SHO. Investigation of the case was handed over to him after registration of the case. He reached the spot at C-6 Sultan Puri and met SI Pradeep and HC Ajeet singh. He inspected the spot and prepared the site plan at the instance of Mohd. Kamar, the same is Ex. PW-21/A. Accused was identified by Mohd. Kamar and Naveen Sharma as the assailant. He interrogated the accused, recorded his disclosure statement, recovered the weapon of offence, prepared the sketch of the knife and signed all these memos at point C. He also conducted the inquest proceedings and moved the application for conducting the postmortem on the body of Suraj. He stated that accused was arrested, his personal search, arrest memo were prepared and he 16 was medically examined. He also obtained the opinion on the weapon of offence from Dr. Komal Singh. He recorded the statement of witnesses and filed the challan.
During cross-examination he stated that he received the rukka and the copy of the FIR at the place of occurrence. He admitted that the place of occurrence was thickly populated area and was surrounded by residential houses. He could not tell the name of the persons from whom the inquiry of the incidence was made. He also admitted that he had not recorded the statement of any public persons who apprehended the accused. He recorded the statement of Noor Hasan at about 5.45 p.m. He stated that accused was handed over to him by HC Vijender singh in Police Station. He stated that he did not file DD entries alongwith report u/s 173 Cr.P.C. as the same was not the practice. He stated that no formal statement was recorded while handing over the accused to him by HC Vijender Singh. He admitted that Log Book maintained by PCR has not been placed on record showing the arrest of the accused at the spot. He denied that the weapon of offence was not recovered before him. He 17 admitted that deceased was a history sheeter.
24. In his statement u/s. 313 accused stated that deceased was bad character in Sultan Puri area and was having many enemies. Somebody has assaulted and he has been framed on doubt.
25. Learned Additional Public Prosecutor for the State has argued that the prosecution has been able to establish its case against the accused beyond reasonable doubt. The deceased was the bad character of the area and had beaten the brother of the accused a day before the accident, so the motive of the murder was clear. The accused picked up the fight with the deceased, stabbed him in his chest with knife which clearly suggest that he had the intention to kill the the deceased. As per the opinion of the postmortem the injury was sufficient to cause death in the ordinary course nature. PW-4 Naveen Sharma was examined by the prosecution who has seen the occurrence and his testimony remained unrebutted on the factum of the incidence. Accused was caught red handed by the public at the spot and was handed over to the police. PW-5 had deposed to this effect. The knife i.e. weapon of offence was 18 also recovered from the accused and in the postmortem report it was observed that injury received by injured in the chest was possible through the knife recovered from the accused. The factum of incidence clearly establish as per the extracts of PCR placed on record. The incidence was reported through PCO Booth. The owner of the Booth has deposed that on 19.12.2001 somebody had informed at No. 100 from his telephone booth. It was argued that the evidence led on record leaves no room for doubt in the prosecution story. Hence, accused was liable to be convicted in this case as prosecution has proved the charges against him.
26. On the other hand counsel for the accused Shri R.K. Yashwant Singh has argued that accused was falsely implicated in this case at the instance of father of the deceased who is leader of Congress party. He argued that the alleged eye witnesses who had seen the occurrence are the blood relations of the deceased, so they cannot be relied as they are planted in this case. Accused was not arrested from the spot, as alleged by the prosecution. He further 19 argued that PW-7 Noor Hassan has not supported the prosecution version. He stated that he had not seen any boy running near the park being chased by two-three boys. He also stated that accused was not arrested in his presence and he had not made any statement to the police. He was the only public witness cited by the prosecution and the other witnesses who are relations of the deceased, cannot be relied being interested witnesses. He also argued that PW-16 Dr. Ravi Kant Guglani to whom the deceased was allegedly taken after the stabbing on 19.12.2001 had not supported the prosecution version. He denied that he had made any statement to the police. It was further argued that Mohd. Kamar is married to sister of the deceased, which was inter caste marriage. So Mohd. Kamar was giving a false statement against the accused in this case.
27. It was also argued that there was delay in examination of eye-witnesses namely PW2, Anita who was examined by IO of the case almost after three months. In this regard, reliance is placed upon the following judgments which are as under : 20
1) RajaSharnappa v/s state of Maharashtra, 1996 (2) Crime, 314 2 ) Kedar Singh @ Kedari v/s State, 1996 (1) Crime 308
3) Ganesh Bhawan Patel v/s State of Maharashtra, AIR 1979 SC 135 As per the above noted judgements there was delay in recording the statement of eye-witnesses ranging from two days to inordinate delay.
The above noted judgements are not applicable in this case as PW5 Mohd. Kamar was examined immediately after the occurrence when the police met him. The matter was reported to the police station and PCR within 5-10 minutes of the occurrence. The statement of PW2 cannot be termed as eye-witness because she has seen the deceased in an injured condition after injuries were inflicted.
28. It is also argued that site plan was not prepared as per the version of the eye-witnesses. In this regard Sh. R. K. Yashwant Singh, counsel for accused has placed reliance upon the following judgments which are as under :
1) Shyam Sunder v/s State, 1995, (33) DRJ, DB.
2) Bashir Shah v/s State of Rajasthan, 1994 Crl. L. J. 2526 21
3) Narain Singh v/s State 66 (1997) DLT 177 DB As per the above noted judgments, either the witness was not shown in the site plan or witness was not likely to be present at the site at the time of murder.
I have gone through the site plan Ex-PW21/A which was prepared by the IO at the instance of PW5, eye-witness. All the points where the deceased was inflicted injuries, he fell down, he was caught by the public and the position of eye-witnesses are clearly shown. PW-19, SI Manohar Lal, Drafts Man, prepared the scaled site plan after taking measurements and rough notes at the place of occurrence at the instance of IO. The scaled site plan is Ex-PW19/A which shows all the points as shown in the Ex-PW21/A. Hence, the above noted judgements cited by defence counsel are not applicable in the present case.
29. It is further argued that recovery of knife i.e. Weapon of offence was doubtful. No public person was joined at the time of 22 recovery. So, the same can not be relied in this case. In this regard reliance is placed upon the following judgements :
1) Pawan Kumar v/s The Delhi Administration, 1989 Cri. L.J. 127
2) Ten Singh v/s State, 1995 (34) DRJ (DB)
3) Puran Massi v/s State, 1997 (40) DRJ As per above noted judgements, the counsel for defence tried to impress upon the court that recovery was made from a public place and no independent witness had joined the recovery.
In the present case a buttondar knife Ex-P1 ( handle 12.5 cmt. + blade 11 cmt., = 23.5 cmt.) was immediately recovered after the incident from the MCD Park. The recovery memo Ex-PW5/C was duly signed by Mohd. Kamar (PW5) and Noor Hasan (PW7) and SI Pradeep. Witness Noor Hasan turned hostile before the court and denied that any recovery was effected in his presence. Mere resiling of one recovery witness does not make the recovery doubtful. IO of the case has duly complied the provisions of section 100 sub clause 4 of Cr.P.C. by joining the independent witnesses. The judgements 23 noted above are not applicable in the present case.
30. It is further argued by defence counsel that recovered articles were not immediately sealed and were sent to CFSL belatedly so, no value can be attributed to these articles. I this regard reliance is placed upon the following judgements :
1) Tulshi Ram v/s State of Maharashtra, 1999 (3) Crime 161
2) Desraj v/s State, 83 (2000) DLT 262
3) G. D. Kamat v/s State of Maharashtra, 1995, Cri. L. J., 1432
4) The State v/s Motia, AIR 1995 Rajasthan I have gone through the contents of above mentioned judgements which are predominantly given in robbery and decoity cases. In these judgements, the doubt was created on the sealing of the articles and non examination of Moharrar Malkhana. In the present case, PW18, HC Durga Prasad was duly examined who deposed that on 19.12.01 IO of the case deposited one sealed pullanda with him with the seal of BL. Entry of the same was made at serial no. 6740 in the register. On 20.12.01, this parcel was taken again by IO of the case for taking the opinion of the doctor. I have 24 gone through the evidence. There are no allegation of tampering with the seal of the weapon of offence. The opinion on the weapon of offence was taken on the very next day by the IO of the case. It is specifically mentioned that Ex-P1 was always kept in sealed cover.
So, the above noted averments of the defence counsel has no force.
31. It was also argued that no human blood was found on the weapon of offence i.e. Knife Ex-P1. So it was stressed that prosecution case is concocted. In this regard reliance is placed upon the following judgements:
1) Raj Kumar v/s State 68 1997, DLT 77
2) Sita Ram V/s State 67 1997 DLT 40 As per the above noted judgements in one case doctor who conducted the post mortem was not examined and the other case was based on circumstantial evidence. In the present case, Dr. Komal Singh (PW15) who conducted the post mortem report clearly stated that injury on the body of deceased Suraj could be possible by the weapon of offence Ex-P1 which was shown to him. 25
In view of the same, above noted judgements are not applicable in the present case as the weapon of offence was recovered from a filthy place as stated by the witnesses.
32. It was further argued on behalf of the defence that incident is a mid-day incident. No public person joined as a witness. He also argued that eye-witnesses in this case has changed their stances, so they are not reliable. In this regard following judgements are cited.
1. Thangavelu v. State of Tamil Nadu, AIR 2002 S.C. 2759
2. State of Karnataka Vs. Basappa, 2001(3) Crimes 320
3. Maharajdin v. State, 1996 Cr.L.J. 506 In Thangavelu's case (Supra) there was discrepancy between the oral evidence of two eye witnesses and medical evidence. The incident occurred on mid-day and persons living nearby not joined the investigation. It was held that two eye witnesses were interested witnesses. In this case evidence of doctor regarding time of death was having the probably of demolishing the prosecution case. But the facts of this case are not applicable in our 26 case. In the present case there is no discrepancy between the two eye witnesses and the medical evidence. Both the eye witnesses state that one knife injury was given to deceased Suraj on his chest and PW-15 Dr. Komal Singh has verified that one injury was inflicted on the left side of chest of deceased which was sufficient to cause death in ordinary course of nature. In view of the same above noted judgement is not applicable in our case.
Other two judgments are not applicable in the present case as investigation in this case was never tainted and witness have not changed their stands. So the arguments of defence has no merit.
33. It is also vehemently contended by counsel for the accused that investigation agency has failed to comply the directions of Hon'ble Supreme Court as given in case title D.K. Basu v. State of West Bengal, JT 1997(1) S.C. 1. As per this judgment it was desired that a arrest memo should be prepared in the presence of at least one witness who may be member of the family or a respected person of locality. In the present case, the accused was apprehended by the 27 public persons who handed him over to the police. The arrest memo prepared by the investigating agency is Ex. PW-5/F in which the name of Investigating Officer is given and Ms. Nazma Begum, mother of the accused was informed of his arrest. This arrest memo is signed by PW-5 Mohd. Kamar and PW-7 Noor Hassan (Public witnesses). So the directions given in above noted judgements are duly complied by the investigating agency.
34. Shri R.K. Yashwant Singh, counsel for accused has argued that only one injury was inflicted by the accused to the deceased, as alleged. So the present case cannot be covered under Section 302 IPC as intention to commit murder cannot be attributed to the accused. In this regard he has placed reliance on the following judgments:-
1.Shitla Prasad @ Baba v. State of U.P., AIR 1994 S.C. 1643
2.Hari Ram v. State of Haryana, AIR 1983 S.C. 185
3. Jagtar Singh v. State of Punjab, AIR 1983 S.C. 463
4. Ghan Shyam & Ors. v. State, 2004 II AD (Cr.) DHC 467
5. Randhir Singh v. State of Punjab, AIR 1982 S.C. 55 28
6. Kulwant Rai v. State of Punjab, AIR 1982 S.C. 126 I have gone through the facts of the above noted judgements.
In all these judgments facts are that a single injury was caused by the accused to the deceased and the case was converted from murder to culpable homicide. In all the cases there was sudden quarrel or fight on some petty matters.
The ratio of the above noted judgements is not applicable in the present case as accused approached the deceased, asked him as to why he has beaten his brother a day before. He further exhorted the words" tu ilake ka dada banta hai, teri mein dadagiri nikalata hu, tune mere bhai ko bhi mara pita tha". The above stated exhortation clearly speaks the intention of the accused. The brother of the accused was beaten by the deceased a day before so in order to settle the score accused was having a knife in his pocket when he confronted the deceased and inflicted injuries upon him. So, the action of the accused was premeditated so it cannot be said that the injury was single one so the case is not covered under Section 302 29 IPC.
35. I have gone through the arguments of Ld.APP for the State & the defence and the judgements relied. As per the evidence brought on record it was proved by prosecution that on 18.12.2001, a day before the incident, the brother of accused, namely, Farid Ahmed was wrongfully confined and beaten by the deceased and one Deepak. An FIR No. 1407/01 under Sections 323/341/34 IPC was registered against the deceased and Deepak. Deceased could not be arrested but Deepak was arrested in this case.
36. On next day i.e. on 19.12.2001 at about 1.30 p.m. accused armed with a knife confronted the deceased Suraj and exhorted "tu ilake ka dada banta hai, teri mein dadagiri nikalata hu, tune mere bhai ko bhi mara pita tha". Thereafter he gave a knife blow in the left region of the chest of the deceased. He was taken to hospital, where he was declared "brought dead". PW-15 has clearly held this injury to be sufficient in the ordinary course of nature to cause death. The accused was carrying a knife in his pocket when he confronted the deceased goes on to show that he had motive, preparation and 30 intention to kill the deceased.
37. Accused ran away from the spot, caught away by public and handed over to the police. PW4 Naveen Sharma and PW5 Mohd. Kamar, the eye witnesses had seen the occurrence and deposed in the court. Their testimony is found reliable and trust worthy. The incident was informed to the police within 5 to 10 minutes of the incident. PW-2 Anita Devi also informed the Police Station, Sultan Puri. The other official and procedural witnesses also proved the case of prosecution. So in view of the discussion made above, I hold the accused guilty under Section 302 IPC for committing the murder of Suraj.
38. The accused in commission of murder of deceased Suraj had also used knife in inflicting the injuries so he also held guilty under Section 27 Arms Act.
Announced in the open Court (ARUN KUMAR ARYA)
on 31st August, 2007 ADDL. SESSIONS JUDGE
ROHINI COURTS : DELHI
31
IN THE COURT OF SH. ARUN KUMAR ARYA : ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI.
In Re:
State V/s. Zuber Ahmed FIR no. 1408/2001 PS Sultan Puri U/S 302 IPC & 25/27/54/59 Arms Act ORDER ON SENTENCE Vide judgement dated 31.08.2007 accused Zuber Ahmed is held guilty under section 302 IPC for committing of one Suraj. He is also held guilty under section 25 Arms.
2. Ld. APP has requested for capital punishment. It is submitted that convict had killed one Suraj on the pretext of settleing score with him as deceased has beaten his brother one day before the date of incident. It is submitted that he had killed the deceased by stabbing him near his house. He had preparation, motive and intention to kill the deceased. As he had taken the life of a person on a petty matter, It is submitted by Ld. Ld. APP for the State. that the present case falls in the category of 'rarest of rare' and sentence of life imprisonment shall be inadequate. 32
3. On the other hand Sh. R.K. Yashwant Singh, Counsel on behalf of the convict has submitted that convict is young boy of around 30 years and have parents and other family members to look after. The convict is a young person and there is chances of rehabilitation and reformation.
4. Shri R.K. Yashwant Singh, Adv. has relied upon the mitigating circumstances, as spelled out by the Apex court in Bachan Singh Vs. State of Punjab reported as AIR 1980 SC 898, whereby certain guidelines have been laid down such as: manner of commission of murder, motive for commission of murder, anti social or socially abhorrent nature of the crime, magnitude of crime, personality of victim of murder, are to be considered at the time of sentence.
5. In the present case it is on record that convict is young boy in him prime youth and is around 30 years of age . The manner of killing the victim also cannot be said to be brutal. Though there was motive for the crime but it is seen that mitigating circumstances seem to the significant in comparison to aggravating circumstances. The family members of the 33 convict had not left him but are regularly attending the court and request for lenient view.
6. For the reasons stated above, I sentence the convict to undergo imprisonment for life with a fine of Rs. 5000/- under section 302 IPC and in case of default of payment of fine to further undergo simple imprisonment for a period of six months.
Convict is also sentenced to undergo punishment for three years under section 27 of Arms Act with a fine of Rs. 500/- and in case of default of payment of fine to further undergo simple imprisonment for a period of one month.
Both the sentences shall run concurrently and the convict is given benefit of section 428 Cr.PC. for the period he remained in custody in this case.
Copy of the judgement and order on sentence dated are given to the accused, free of cost.
File be consigned to record room.
Announced in the open Court (ARUN KUMAR ARYA)
on 31st August, 2007 ADDL. SESSIONS JUDGE
ROHINI COURTS : DELHI