Delhi High Court
Suleman Alias Pillu vs State Of Nct Of Delhi on 27 September, 2017
Author: Najmi Waziri
Bench: Siddharth Mridul, Najmi Waziri
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 27.09.2017
+ CRL.A. 118/2016
SULEMAN alias PILLU ..... Appellant
Through: Mr. Ajay Verma, Adv.
Versus
STATE OF NCT OF DELHI ..... Respondent
Through: Ms. Rajni Gupta, APP for State.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J
1. The appellant has been convicted for the murder of one Ibrahim under
section 302/34 Indian Penal Code, 1860 ("IPC") and sentenced to life
imprisonment, and to pay a fine of Rs.1,00,000/- in default of payment of
which he is to undergo simple imprisonment for a period of one year.
2. The prosecution's case is that on the 25th April, 2008 at about 8.05
pm, the local police concerned received an information that a boy Ibrahim
has been shot by firearm near Street No. 2, near Hanuman Temple,
Mauzpur, Seelampur, Delhi. According to his father Aslam (PW1), Ibrahim
had quarreled with the appellant Suleman two days earlier on the 23 rd of
April, 2008. However, the matter was resolved with the intervention of well
Crl. A. No. 118 of 2016 Page 1 of 14
wishers; hence no report of the quarrel was lodged with the police.
According to Aslam, on the day of the incident, Suleman had been loitering
about his house and had asked Aslam twice about the whereabouts of
Ibrahim. Aslam was a resident of Mohalla Bajrang, Mauzpur, Seelampur.
Around 8 p.m. Aslam came out of his house and saw Suleman, the appellant,
along with 2-3 others grappling with Ibrahim. The appellant exhorted his
accomplices to finish off Ibrahim, and they shot Ibrahim with a country-
made pistol (katta) and assaulted him with gupti in his stomach and on his
feet. While trying to avert injuries from being inflicted on Ibrahim, Abdul
Salam (PW2), the uncle of the deceased, also sustained injuries. On account
of the grievous assault, Ibrahim fell down at the spot. The appellant and his
accomplices/companions escaped from the area whilst firing shots in the air.
Ibrahim was taken to GTB Hospital where he was declared dead upon
arrival. On receiving the information at 8.05 pm, the police made a Daily
Diary (DD) No. 26-A. The case was assigned to ASI Laik Ahmed. Head
Constable (HC) Krishan Kumar went to the spot and found two slippers
(chappals) covered with blood lying at the spot. HC Mahender Singh also
arrived there. While he was left there to guard the crime spot, the other two
policemen went to the GTB hospital. They collected MLC No. C-
1712/2008. Statement of PW1 was recorded. The Investigation Officer (IO)
prepared a rukka and on the basis of that rukka an FIR was registered under
Sections 302/34 of the IPC. The Crime team inspected the place of crime;
photographed it; collected earth sample and prepared pulandas of the same.
A site plan was also prepared on Aslam's intimation. The appellant
Suleman was arrested on the same day whilst three other persons namely
Javed, Janu @ Nafis and Jaigam @ Babloo were arrested on 04.05.2008
Crl. A. No. 118 of 2016 Page 2 of 14
upon the statement of the appellant. The latter three too disclosed similar
facts as disclosed by Suleman. The postmortem of Ibrahim was conducted
on 27.04.2008. Separate disclosure statements of all the accused were
recorded. However, all of them refused to participate in the TIP
proceedings. Suleman, the appellant and Jaigam @ Babloo opted to not lead
any evidence. Accused Jaigam pleaded not guilty and argued that he was
falsely implicated in connivance with the complainant and the police. Jannu
@ Nafis pleaded that he had never met Suleman nor was any weapon
recovered at his instance. All the co-accused, i.e., Janu @ Nafis, Jaigam @
Babloo and Javed were acquitted due to insufficient evidence against them.
Javed and Janu were acquitted on the ground that the link between them and
the alleged crime between could not be proved by the prosecution and there
was doubt about the recovery of a knife from either Javed or Janu @ Nafis.
The Trial Court found that the prosecution did not prove its case beyond all
reasonable doubt regarding Javed, Janu and Jaigam or that they or any of
them had committed murder punishable under Section 302/34 IPC, in
furtherance of their common intention or in furtherance of common
intention with Suleman. Accordingly, they were acquitted of the offences
under Sections 302/34 IPC. Janu was also acquitted of the offence of
possessing and using a knife, under Section 25/27 Arms Act.
3. The first ground of challenge by the appellant is that that the weapon
of offence, i.e., sword/gubti, as alleged by PW-5 was never recovered, nor
was the pistol which is alleged to have been used in the murder. The learned
counsel for the appellant submits that the case against the appellant has not
been proved beyond reasonable doubt because the firearm which the
Crl. A. No. 118 of 2016 Page 3 of 14
appellant allegedly used to shoot the deceased was never recovered and only
a knife as opposed to a "gupti", was recovered at his instance. He submits
that the sharp gupti/sword was never recovered and that knives were planted
on the accused, and this raises doubts about the prosecution's case.
Furthermore, there are contradictions between the statements of PW-1 and
PW-2 regarding when they reached the spot i.e. during the occurrence of or
after the incident; if it was the latter, then they could not have witnessed the
incident.
4. Ms. Gupta, learned APP for the state submits that the deceased
Ibrahim was assaulted by the appellant and his co-accused Javed, Janu and
Jaigam at about 8.05 pm on 25.04.2008, when Suleman shot him twice
through a firearm and the latter three assaulted him with a sharp-edged
weapon. The postmortem report prepared on 26.4.2008 at about 11.45 am
concluded that all injuries were ante mortem in nature and injuries No. 7 & 8
were caused by a firearm. Injury No. 1 was possible by the recovered knife
while injuries No. 3, 8 and 9 were possible by a knife. It has recorded that
there was a firearm entry wound of 2 cm x 1 cm near the mid line of the
abdomen, 15 cm below in the abdomen and cause of death was recorded as
hemorrhage shock due to ante mortem injury to abdominal organ and
vessels, produced by the projectile of firearm and contributed by stab injury
to abdomen produced by single sharp-edged weapon. All injuries were ante
mortem in nature. Injuries Nos. 7 and 8 were individually and collectively
were sufficient to cause death in ordinary course of nature. The firing of the
shot from a firearm is attributed to Suleman, the appellant, which was
sufficient to cause death in the ordinary course of nature. The CFSL report
Crl. A. No. 118 of 2016 Page 4 of 14
recorded that one sealed paper packet contained one sealed small glass bottle
which contained one bullet. It was marked as Ex. EB1. On physical
examination it was found to be a fired soft nose bullet of .315 inch/8 mm
caliber and the expert opinion was that it was fired through a country-made
firearm (Katta). Counsel argues that the medical evidence as well as the
testimonies of the prosecution witnesses support the sequence of events, and
in the absence of any evidence to the contrary, there is no infirmity in the
Trial Court findings.
5. The appellant argues that there was insufficient light at the time of the
alleged murder since the electricity supply in the area concerned had ceased
15 minutes before the incident; therefore it was unlikely that anybody would
have identified the appellant when the incident happened. He submits that
PW1 and PW2 are in fact not eye witnesses, but have been planted at later
stage, and that they would have had no way of identifying the appellant at
such a late hour in the absence of adequate lighting. The counsel for the
State refutes the said contention and refers to the finding of the Trial Court
which observed as under:
" 59. As mentioned above, the alleged incident
took place at 8.05 p.m. Thus it was a time after
sunset. Light is required to see the occurrence and
identify the accused persons. IO PW-21 proved
site plan of the place of occurrence as Ex. PW
21/A. PW-13 proved the scaled-site plan as Ex.
PW13/A. In both site plans source of light has not
been shown. PW-1 on this aspect in his cross-
examination deposited that the street in front of
their house is 15-20 feet wide. The Halwai shop is
one side of the street and on the other side of street
Crl. A. No. 118 of 2016 Page 5 of 14
there is Doctor's clinic. There was no light on the
spot. The supply of electricity had failed since
about 15 minutes prior to the incident. He could
not tell when the supply of electricity was restored
as he had taken his son to the hospital. However,
he explained that all the four accused persons were
at the spot and he could see them in the light of
inverter which was working in the shop of milk
vendor. He had told to the police in his statement
that he had seen the accused persons in the light of
the inverter but that statement was not found in his
statement Ex. PW1/A, which was recorded by the
police. He denied the suggestion that he did not
see anybody causing injury to his son Ibrahim.
PW-1 on this aspect deposed that the place of
occurrence was about 25 feet away from the house
of his brother. The assailants were running while
firing and they were ahead of them by five feet. The
assailants had run away towards the road which
leads to Brahmpuri towards north side. They had
come from west side of the crossing. He had
chased and caught held one of them but he was
able to free himself and then fled away. He was at
a distance of about 15-20 feet from the assailants
when he had seen their faces while they were
running. At the time of the incident, some of the
shops were closed and some were open. All the
four shops situated at crossing were open. After
the incident, shops were closed. There was street
light on the crossing due to electric pole. The
electric pole was near the shop of halwai. IO PW-
21 in his cross-examination admitted that he did
not show the electricity pole/source of light in the
site plan."
6. The site plan further lends credence to the prosecution's case and no
infirmity can be found in this regard.
Crl. A. No. 118 of 2016 Page 6 of 14
7. The next ground of challenge by the appellant is that Aslam - PW-1,
the father of the deceased, did not support the case of the prosecution i.e.
PW-1 was declared hostile, therefore, his testimony was neither reliable nor
trustworthy. The appellant relied on Anand Kumar @ Beeru & Ors. vs.
State, 2014 (1) JCC 495 wherein the Court observed that:
"23. It is this testimony of PW-2 which had to be
decided on the touchstone of reliability. It is now
well settled that merely because a witness has been
declared hostile his evidence cannot be rejected in
toto: it is not washed off altogether However such
an evidence has to be closely and cautiously
examined, when a case rests upon an eye-witness
account and it is a primary piece of evidence also
being a case where the witness has been declared
as adversarial to the version of the prosecution
and has been permitted to be cross examined by
the defence counsel the standard to judge his
reliability is different."
8. Refuting the aforesaid contention, the respondent argues that the
testimonies of two witnesses PW-1 and PW-2, i.e., Aslam and Abdul Salam
- the father and uncle of the deceased Ibrahim, remains un-impeached to the
extent, both had deposed, that Suleman had shot Ibrahim after exhorting his
co-accused by saying "Is saale ka kaam tamam kar dete hain", and while his
co-accused caught hold of Ibrahim, Suleman took out a country-made pistol
and fired a shot at Ibrahim. PW-1 Aslam had stated that the appellant had
come to his house at around 7.30-8 pm on 25.04.2008 and had called for
Ibrahim and while doing so, he told him "ab gale mil gaye hain, aisi koi
baat nahi hai". After sometime PW-1 and his brother (PW-2) Abdul Salam,
on hearing a noise, came out of the house and saw that Ibrahim was
Crl. A. No. 118 of 2016 Page 7 of 14
grappling with Suleman and one of the co-accused had caught hold Ibrahim
from behind. Suleman exhorted his accomplices by saying "Is saale ka
kaam tamam kar dete hain" and shot Ibrahim. This aspect of the evidence
remains un-shattered. It supported the prosecution's case that Suleman had
shot the deceased by a firearm, the Trial Court found no reason to discard
his statement. In Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC
396, the court observed as under:
"No doubt Smt. Dhillo Devi was declared hostile
by the prosecution as she resiled from her earlier
statement to the police. However, as observed in
State of U.P. v. Ramesh Prasad Misra & Anr.,
AIR 1996 SC 2766 :
"The evidence of a hostile witness would not be
totally rejected if spoken in favour of the
prosecution or the accused, but can be
subjected to close scrutiny and the portion of
the evidence which is consistent with the
case of the prosecution or defence may be
accepted."
Similarly in Sheikh Zakir vs. State of Bihar AIR
1983 SC 911 this Court held :
"It is not quite strange that some witnesses do
turn hostile but that by itself would not prevent
a court from finding an accused guilty if there
is otherwise acceptable evidence in support of
the conviction."
In Himanshu alias Chintu vs. State (NCT of
Delhi), (2011) 2 SCC 36 this Court held that the
dependable part of the evidence of a hostile witness
can be relied on. Thus it is the duty of the Court to
separate the grain from the chaff, and the maxim
"falsus in uno falsus in omnibus" has no
Crl. A. No. 118 of 2016 Page 8 of 14
application in India vide Nisar Alli vs. The State
of Uttar Pradesh AIR 1957 SC 366. In the present
case we are of the opinion that Smt. Dhillo Devi
denied her earlier statement from the police
because she wanted to save her son. Hence we
accept her statement to the police and reject her
statement in court.
The defence has not shown that the police had any
enmity with the accused, or had some other reason
to falsely implicate him."
9. Therefore, that portion of the testimony of hostile witness could be
used which supports the case of the prosecution, provided it is coupled with
other evidence of the prosecution. The Trial Court found that the testimony
of PW-1 and PW-2 support each other's case, and after perusing the
evidence on record, concluded that PW-1 and PW-2 had witnessed the crime
and were not planted witnesses. The place of the incident was about 25 feet
from the house of PW-1, therefore the presence of the father and uncle - the
two witnesses, at that time of the evening could not be disputed under
normal circumstances. Their being real brothers, could not be any reason to
disbelieve their testimonies. PW-2 had deposed that he was present at his
elder brother's house at the time of the alleged occurrence. A distance of
about 25 feet can be covered within a few seconds in the case of an
emergency. The Court reasoned that even if there was no street light at the
place of incident, there was nevertheless sufficient light from the inverter
installed at the halwai shop near it. Both the witnesses have specifically
deposed that they saw the occurrence of the crime. Hence, there was no
reason to disbelieve their testimony in this regard. The injury upon the hand
Crl. A. No. 118 of 2016 Page 9 of 14
of PW-2 also supported the prosecution case that he was present at the time
of the incident.
10. It is clear from the evidence on record that PW-1 and PW-2, had
categorically stated that they saw Suleman fire upon the deceased, and this
portion of their testimony was found trustworthy and reliable. Furthermore,
the testimony of father (PW-1) who turned hostile cannot be entirely
discarded if some portion of it supported the prosecution case. Reliance is
placed upon Anand Kumar @ Beeru & Ors. Vs. State 2014(1) JCC 495.
11. On the admissibility of testimony of hostile witness, the Trial Court
relied upon the case of Anand Kumar @ Beeru & Ors. Vs. State 2014 (1)
JCC 495 wherein this Court held:
" 23. It is this testimony of PW-2 which had to be
decided on the touchstone of reliability. It is now
well settled that merely because a witness has been
declared hostile his evidence cannot be rejected in
toto; it is not washed off altogether. However,
such an evidence has to be closely ad cautiously
examined, when case rests upon an eye-witness
account and it is a primary piece of evidence also
being a case where the witness has been declared
as adversarial to the version of the prosecution
and has been permitted to be cross examined by
the defence counsel the standard to judge his
reliability is different."
12. The Trial Court also relied upon the decision of this Court in the case
of State v. Sejappa (Karnataka) 2008 Cri.L.J. 3312 which held:
"27. As far as the acceptance of evidence of the
hostile witness is concerned, it is a well settled law
that part of the hostile witness which goes well
Crl. A. No. 118 of 2016 Page 10 of 14
with the prosecution case can be accepted and
rejecting only that portion of the evidence which
does not support the prosecution case. Therefore,
applying such yardstick in the instant case, it
cannot be said by any stretch of imagination that
the evidence of PW-1 has to be ignored in totality
merely because of a witness not supporting the
prosecution case in certain minor aspects which do
not have any bearing on the core of the
prosecution case. ****Therefore, on the very
same analogy of accepting the evidence of a hostile
witness to the extent that it supports the
prosecution case, the testimony of PW-2 also will
have to be accepted n regard to that part of the
evidence, which supports the prosecution case."
13. Lastly, the appellant submits that no motive was proved by the
prosecution in the present case and if at all any motive existed, it was not
established by the prosecution. However, the Court would note that in the
cross examination, the exhortation by Suleman "Is saale ka kaam tamam kar
dete hain" was never questioned by the defense. Therefore, insofar as the
exhortation was made by Suleman, coupled with the previous quarrel
between him and the deceased, the motive for revenge was shown. This
evidence remained un-assailed and there is no reason to disbelieve it. The
State placed reliance upon Sat Paul v-s. Delhi Administration AIR 1976
SC 294 wherein the Supreme Court held:
41. The fallacy underlying this view stems from the
assumption that the only purpose of cross-
examination of a witness is to discredit him; it
ignores the hard truth that another equally
important object of cross-examination is to elicit
admissions of facts which would help build the
case of the cross-examiner. When a party with the
Crl. A. No. 118 of 2016 Page 11 of 14
leave of the court, confronts his witness with his
previous inconsistent statement, he does so in the
hope that the witness might revert to what he had
stated previously. If the departure from the prior
statement is not deliberate but is due to faulty
memory or a like cause, there is every possibility of
the witness veering round to his former statement.
Thus, showing faultiness of the memory in the case
of such a witness would be another object of cross-
examining and contradicting him by a party calling
the witness. In short, the rule prohibiting a party to
put questions in the manner of cross-examination
or in a leading form to his own witness is relaxed
not because the witness has already forfeited all
right to credit but because from his antipathetic
attitude or otherwise, the court feels that for doing
justice, his evidence will be more fully given, the
truth more effectively extricated and his credit
more adequately tested by questions put in a more
pointed, penetrating and searching way.
14. PW1 and PW2 also testified to revenge being the appellants' motive
for killing Ibrahim, pursuant to their altercation two days ago on 23 rd April.
The appellant argued that there were contradictions apropos the alleged
weapon used in the fatal assault on Ibrahim. The witnesses have deposed
that the alleged incident was committed by a sword/gupti, however, the
prosecution had planted the same and showed recovery of two knives from
the accused persons; the so-called gupti or sword was never recovered nor
was the country-made pistol with which Suleman is stated to have fatally
wounded Ibrahim. This non-recovery of weapon would not be fatal to the
prosecution case qua the appellant because of the overwhelming evidence
against him and the eye-witness testimony of PW1 and PW2. In his cross-
Crl. A. No. 118 of 2016 Page 12 of 14
examination, the PW-1 had admitted that a quarrel had taken place between
the appellant and his son Ibrahim. PW-2 had deposed that the said quarrel
between Suleman and Ibrahim had been compromised due to the
intervention of Suleman's maternal uncle. PW-2 denied that the deceased
Ibrahim had beaten Suleman or that during the compromise PW-1, PW-2
and the deceased had admitted to the latter's mistake. He also denied the
suggestion that no compromise had taken place on 23 rd April or that no
quarrel had ever taken place or that the story of a quarrel was concocted for
the purposes of proving previous enmity and for falsely implicating the
accused persons in this case. In view of the evidence it is clear that the
prosecution has proved that Suleman had motive to eliminate the deceased
Ibrahim.
15. In light of the aforementioned evidence and discussion, it is evident
that minor contradictions/ discrepancies in prosecution evidence would be
required to be ignored as these are bound to occur due to subjective
individual perceptions and observations, hence the Court would act upon
that part of the testimony which may be reliable and trustworthy.
(See Ramesh vs. State of Himachal Pradesh (HP) 2004(4) Crimes 60;
Appbhai and another vs. State of Gujarat, AIR 1988 SC 696 and Leela
Ram (Dead) through Duli Chand vs. State of Haryana (SC) 1999(4)
R.C.R. (Criminal) 588)
16. This court notes that the factum of FIR not being sent to the area MM
was not fatal to the prosecution case. Section 157 of Cr.P.C. requires for a
copy of FIR is required to be sent to Area M.M. This fact was mentioned by
the Duty Officer in the FIR and a copy of the FIR was proved by PW-22 as
Crl. A. No. 118 of 2016 Page 13 of 14
Ex.PW22/A. He proved rukka as Ex.PW22/B and stated that ASI Suresh
who actually recorded FIR had expired. In FIR Ex,PW22/A, it has, inter alia,
been mentioned that copy of the FIR was being sent to Area MM by Special
Messenger HC Satbir Singh. The mere non-examination of the Special
Messenger would not result in an improper investigation so as to result in
any advantage to the present appellant.
17. The Court notes that the impugned judgment is based upon cogent
evidence, reasoning, after appreciation of the evidence on record, and there
is no reason to interfere with the same. The appeal is without any merit.
Accordingly, it is dismissed.
NAJMI WAZIRI, J.
SIDDHARTH MRIDUL, J.
SEPTEMBER 27, 2017/acm Crl. A. No. 118 of 2016 Page 14 of 14