Saghir Ahmad And Others vs The State
1987 Latest Caselaw 146 Del

JUDGMENT

Jagdish Chandra, J.

1. This judgment shall dispose of the following three appeals which have arisen out of the same judgment of conviction dt. 20th November, 1985 and order of sentence dt. 22nd November, 1985 passed by Shri P. L. Singla, then Additional Sessions Judge, Delhi :-

1. Crl. Appeal No. 261/85 : Saghir Ahmad v. The State.

2. Crl. Appeal No. 263/85 : Harish Chander v. The State.

3. Crl. Appeal No. 252/85 : Roshan Lal v. The State.

2. Appellant Harish Chander was convicted under Section 302 IPC and sentenced to undergo life imprisonment there under. He was also convicted under Section 27 Arms Act and was sentenced to undergo rigorous imprisonment for two years there under. Both sentences were to run concurrently.

3. Appellant Saghir Ahmad was convicted under Section 302 read with S. 34. and was sentenced to under go imprisonment for life.

4. Appellant Roshan Lal was convicted under Section 324 I.P.C. for which he was sentenced to undergo rigorous imprisonment for three years. He was also convicted under Section 27 Arms Act and was sentenced to undergo rigorous imprisonment for two years for the same. Both sentences were to run concurrently.

5. The case was registered against these three appellants and one Mohd. Nasim on the basis of the statement of Abdul Majid son of Razi resident of Trilokpuri, Delhi, who narrated the occurrence to A.S.I. Brahm Singh of Police Station Kalyanpuri, Delhi, on 23rd August, 1978. The occurrence is stated to have taken place at about 2.00 a.m. in the night intervening 22nd and 23rd August, 1978 in Trilokpuri. According to the prosecution, appellant Saghir Ahmad was appointed as Cashier-cum-Secretary of a mosque in Block No. 20, Trilokpuri, Shahdara, Delhi, by the residents of that locality. A dispute was going on for quite some days prior to the occurrence regarding the retention of appellant Saghir Ahmad as Secretary of the mosque for the purpose of collecting money for the said mosque which idea was not acceptable to Saghir Ahmad who got annoyed with Abdul Majid and his supporters and who also lodged false reports against them at police stations for apprehension to his life in order to cause some harm to them. He also started nursing a grudge against Abdul Majid. The matter was, however, got compromised after calling a meeting in the mosque but Saghir Ahmad and his supporters continued to nurse grudge against Abdul Majid and his supporters. This is the motive of the crime in this case.

6. According to the prosecution, at about 2 a.m. in the night between 22nd and 23rd August, 1978, Abdul Majid, as per his daily schedule in the month of 'Ramzan' (month of fasting for moslems), was awakening the residents of the locality to take 'Sehri' (early morning breakfast) for observing fast. While doing so he knocked at the door of the house of Mehdi Hassan and called him. Having heard his voice Saghir Ahmad and his two friends Roshan and Harish appellants and Nasim (husband of sister of Saghir Ahmad), who were already known to him as they used to visit along with Nasim the house of Saghir came out from his house and suddenly attacked him saying that they would settle all accounts of the mosque with him that day. Abdul Majid ran towards the house of one Hanif in order to save his life and when he reached in front of the house of Hanif, Naeem son of Hanif who was also sleeping in the street in front of the house got up after hearing the noise and asked Abdul Majid what was the matter. Rafiq brother of Naeem and Jamil son of Abdul Majid who were also sleeping there also got up. All the three appellants and Nasim who were chasing Abdul Majid in order to kill him also reached there.

7. The prosecution story further goes on to allege that appellant Saghir Ahmad caught hold of and secured Naeem and exhorted appellant Harish to attack him with the knife ('Mar Sale Ko Chaku') whereupon Harish inflicted knife injury on the left buttock of Naeem.

8. Nasim caught hold of Jamil and appellant Roshan inflicted three knife injuries on his right buttock.

9. When Abdul Majid tried to rescue them, appellant Harish attacked him with a knife which hit him on the inner side of his left thigh.

10. When Abdul Majid and Rafiq challenged all the four accused persons, they run away from there after hitting a brick piece on the left arm of Abdul Majid and on the forehead of Rafiq about his left eye.

11. On receiving the aforesaid knife injury on his left buttock. Naeem became unconscious. Smt. Shakooran, mother of Naeem, put Naeem in a three wheeler scooter belonging to and plied by Zarif Ahmad and took Naeem to J.P.N. Hospital where she got him admitted and where Naeem succumbed to the injury at 2 p.m.

12. Post-mortem examination on the person of Naeem (deceased) was conducted at 2 p.m. on 23rd August, 1978 by Dr. Bishnu Kumar, Professor and Head of the Department, Forensic Medicine, Maulana Azad Medical College, New Delhi, and he found the following external injuries on his person :-

1. Incised punctured wound 2.8 x 1.2 cm oblique on the left buttock at the level of upper end of internet groove 8 cm from mid line and abdominal cavity deep. Faint bruising present just outside the margin on either side as if caused from hilt of the weapon. Blood oozing out of wound. Margins were clean cut. Lower inner angle was acute while upper outer angle was rounded. It was 85 cm above heel.

2. Abrasion 2 x 0.5 cm on the inner lower part of left leg 8 cm above ankle.

3. Abrasion 1 x 0.3 cm on the upper surface of left foot near inner border, 5 cm proximal to first metatarsi-pharyngeal joint.

13. On internal examination of abdomen, peritoneal cavity and pelvic cavity was full of liquid and clotted blood. Injury No. 1 entered in the buttock muscles, then entered in the pelvic cavity through left greater sciatic notch, then caused cut in the internal iliac vessels and its branches as well as nerves around, then cut the peritoneal fold medially, then cut deep ileum, small intestine, at two places through and through and at third place finished by cutting its wall. It also caused cut in the mesentery by the side of ilea-catcall junction. While cutting the filial loops at two places through and through mesentery was also cut nearby. The total depth of this injury No. 1 was approximately 18 to 19 cm. The direction of this injury was left to right, behind forward and upwards slightly. The cut in the loops of small intestines at two places measured 2.2 x 0.5 cm entry and 2.3 x 0.5 cm exit 43 cm away from ilea-catcall junction and other 2.2 x 0.5 cm entry and 1.8 x 0.6 cm exit 40 cm away from ilea-catcall junction. The third cut in the wall of ileum measured 0.6 x 0.3 cm on wall 48 cm from ilea-catcall junction. The cuts in the mesentery measured 1.5 cm each and the mesenteric vessels were also cut together with it. He opined that death of Naeem was caused due to haemorrhage and shock as a result of injury to pelvic vessels and intestines via injury No. 1 According to him all the injuries were ante-mortem and recent and injuries 2 and 3 were caused by some blunt object or surface while injury No. 1 by some sharp single edged penetrating weapon and that injury No. 1 was sufficient to cause death in the ordinary course of nature. He proved his post-mortem report Ext. PW2/A being correct and bearing his signatures.

14. The remaining three injured persons namely Rafiq, Abdul Majid and Jamil Ahmed were examined on 23rd August, 1978 at about 5.00 a.m. by Dr. L. T. Ramani, (PW 3), Medical Officer Police Hospital, Delhi, who found the following injuries on their persons :-

On the person of Rafiq :

1. CLW 1" x 2/10" x 2/10" on the left side of forehead near hair margin.

2.2 abrasions 1" x 3/4" each on the right tibia tuberosity.

Nature of injuries : Simple and caused by blunt force/object.

Report : Exhibit PW3/A.

On the person of Abdul Majid :

1. Bruise 2" x 1" on the middle of left forearm dorsal aspect.

2. Laceration 1/4" x 2/10" on the upper lip left side on the mucus surface.

3. An incised wound 1/2" x 2/10" x skin deep on the poster-medial aspect of the left thigh upper part. Margins were regular and there was a corresponding cut on the lungi.

Nature of injuries : Simple, Injuries Nos. land 2 were caused by blunt object and injury No. 3 by sharp object.

Report : Exhibit PW3/C.

On the person of Jamil Ahmed :

Multiple stab injuries on his right buttock.

He referred the case to Irwin Hospital to ascertain the depth of the injury and management vide note Ext. PW3/B.

15. Jamil Ahmed after having been referred to Irwin Hospital by Dr. Ramani was examined by Dr. Kavinder Medra who found that there were 5 CLWS. on the right hip gluteus region 2" x 3" x 1" and no active bleeding. He was advised admission in Medical Surgical III Emergency Ward for detailed examination and treatment. Subsequently, these injuries were opined to be simple by Dr. K. Katoch. His wounds were stitched and he was discharged on 25th August, 1978.

16. The Investigating Officer ASI Brahm Singh (PW 22) then posted in Police Station Kalyan Puri, Delhi, took Rafiq injured along with him from the place of occurrence and on his pointing out he arrested Saghir Ahmad appellant and Nasim accused. The I.O. then took Saghir Ahmad and Nasim to Pahar Gang and on their pointing out he arrested appellant Harish Chander from his house in Pahar Ganj. Appellant Harish Chander was then interrogated by the I.O. and during interrogation he disclosed that he had buried the knife under the earth (sand) on the outer side of the mullah near the Yamuna Pushta and could get the same recovered. His disclosure statement Ext. PW20/F was recorded. On the pointing out of the three accused namely Nasim, Saghir Ahmed and Harish, the Investigating Officer went to the house of Roshan appellant and arrested him and during investigation Roshan appellant disclosed that he had buried a dagger near the place where appellant Harish had buried the knife and that he could get the same recovered and thereupon his disclosure statement Ext. PW20/F was recorded. All the four accused persons were taken to Police Station Kalyan Puri and were confined in the police lockup.

17. On 24th August, 1978 at about 9.45 a.m. the Investigating Officer took out all the four accused from police lockup and took appellants Harish and Roshan along with him besides Constable Kirpal Singh and Nasir Ahmad PW to Yamuna Pushta. The appellant Harish then took out knife Ext. P-6 and appellant Roshan took out dagger Ext. P-7 of which rough sketches Ext. PW20/A and Ext. P20/B respectively were prepared and put into sealed parcel.

18. Dr. Bishnu Kumar PW 2 opined that injury No. 1 on the person of Naeem deceased and the corresponding cut in his lungi Ext. P-2 could be caused by the single edged knife Ext. P-6 and could not be caused by the dagger Ext. P-7.

19. The report of C.F.S.L. showed that no blood could be detected on the knife Ex. P-6 but human blood of 'B' group was found in the blood seized from the spot, on the lungi, shirt cloth piece and towel of the deceased Naeem.

20. In their statements recorded under Section 313 of Cr.P.C. 1973 by the learned Trial Judge the appellant denied their guilt and pleaded innocence and asserted their implication falsely in this case. Appellant Saghir Ahmad took up the position that he was General Secretary of the Committee of the mosque and Hafiz Allaudin was the Cashier and that Mohd. Hanif father of Mohd. Naeem and Sharif Ahmad wished to snatch money from Hafiz Allaudin. He further stated that he rendered accounts thrice and that seven days before the alleged occurrence they snatched accounts from him. He further stated that they went to police Station and there a compromise was reduced to writing and fresh register and proceeding books were commenced. He also stated that Abdul Majid extended a threat to him where upon he lodged a report with the police on 17th August, 1978 and thereafter again lodged a report against him on 22nd August, 1978 about a threat to his life at his hands, but the police did not accompany him to the house of Abdul Majid and out of fear he (Saghir) went to the house of his relations in Jama Masjit area and he slept there during the night and after taking 'Sargi' in the morning he reached police post Pahar Ganj at 2 p.m. as per direction of A.S.I. Brahm Singh in connection with his report where he was detained by the police and subsequently implicated falsely in this case. Regarding the prosecution witnesses, appellant Saghir stated that they belonged to Teli Biradari whereas he belonged to Shafi Biradari and the prosecution witnesses did not wish him to be the Secretary of the Masjid Committee. He chose to examine only one witness Abdul Waheed DW 1 in defense. This witness is resident of Nai Wali Gali, Urdu Bazar, Jama Masjid, Delhi, and according to him he knew appellant Saghir Ahmad who came to his house at about 11 p.m. on 22nd August, 1978 and told him that as he had lodged some reports against the residents of his locality, the police had told him to stay away from his house and that Saghir Ahmad stayed during the night with him and he left his house on the following day at about 12 Noon, and about 3 or 4 days later he came to know that Saghir had been arrested by the police.

21. The eye witnesses in this case are Abdul Majid PW 1, Shabir Ahmed PW 5 (cousin of deceased Naeem), Jamil PW 13, Nasir Ahmed PW 20 and Rafiq Ahmed PW 21. Out of these eye witnesses Abdul Majid PW 1, Jamil PW 13 and Rafiq Ahmed PW 21 are the persons injured in the occurrence. It would be necessary to set out the relevant portions of the statements of these eye witnesses so far as the same pertain to catching hold of and stabbing on the part of the appellants and accused Nazim who has not filed any appeal as he was let off on probation.

  P.W. - 1 Abdul Majid :         Saghir Ahmad caught hold of my son Jamil
                                and Roshan gave knife blows. The other
                                accused caught hold of my other son Naeem
                                and these accused gave knife blows upon
                                him. 
                                Accused Harish while fleeing, gave three 
                                knife blows to my son Jamil. Accused
                                Saghir Ahmad had grappled me. He had
                                grappled me from behind. 

 P.W. - 5 Shabir Ahmad :        Saghir Ahmad caught hold of Naeem and
                                Roshan, caught hold of Jamil. Accused
                                Harish hurled a chhuri blow on Naeem.
                                Accused Roshan had caught hold of Jamil
                                and the letter was inflicted chhuri
                                blows 2-3 in number by accused Nasim.
                                Majid was also given chhuri blow but be
                                whom I cannot say. 

 P.W. - 13 Jamil :              Saghir Ahmad caught hold of Naeem and
                                accused (pointed towards Roshan) caught
                                hold of me. Accused (pointed towards
                                accused Harish) stabbed Naeem with a
                                knife and Nasim stabbed with a dagger.
                                Accused Nasim had given me three stab
                                blows on my buttocks. While running away
                                from the spot the accused persons stabbed
                                my father in his right thigh but I cannot
                                say which of the four accused had stabbed
                                him. 

 P.W. - 20 Nasir Ahmed :        Saghir secured Naeem. Nasim accused had
                                secured Jamil. Harish accused inflicted
                                knife injury on the person of Naeem.
                                Roshan accused inflicted knife injury
                                on Jamil. 
                                Jamil received two injuries on his
                                person. This P.W. does not say about
                                injury on P.W. 1 Majid. 

 P.W. - 21 Rafiq Ahmad :        Saghir Ahmad secured Naeem and Mohd.
                                Nasim accused secured Jamil. Harish
                                inflicted a knife blow on Naeem which hit
                                him on his buttock and Roshan inflicted
                                a knife injury on the person of Jamil. 
 
 

22. It would be seen that four out of these five eye witnesses namely Shabir Ahmad PW 5, Jamil PW 13, Nasir Ahmad PW 20 and Rafiq Ahmad PW 21 are unanimous in deposing that appellant Saghir Ahmad caught hold of and secured Naeem deceased and it was then appellant Harish Chander who caused a knife injury on the person of the deceased Naeem. Anyhow, Abdul Majid PW 1 appears confused on this part of the occurrence when he talks of other accused catching hold of Naeem deceased and who gave knife blows to the deceased. The remaining four eye witnesses, already referred to above, are further supported by the version in the FIR Ext. PW 11/B on this part of the occurrence. Abdul Majid is an old man aged about 50 years and on account of his age appears to have been confused especially when the occurrence had taken place as early as 23rd August, 1978 while his testimony in court was recorded on 4th February, 1980 after a gap of about 1 1/2 years. The FIR had been recorded on the basis of his initial statement dt. 23rd August, 1978 made to the police which constituted the 'rukka'. Thus, the statements of the four eye-witnesses supported by the FIR have to be believed in regard to this part of the occurrence.

23. First of all we shall discuss the case of appellant Harish Chander who inflicted knife injury on the left buttock of Naeem deceased. We cannot uphold his conviction under Section 302 I.P.C. and the sentence of life imprisonment awarded to him there under by the learned Trial Court for the reason that the buttock is not a vital part of the body of a person and so when the knife, weapon of offence in this case, was aimed at the buttock of the deceased, appellant Harish cannot be imputed the intention of causing the death. Such an intention is also excluded for the reason that the remaining two injuries caused by Harish on the person of the deceased are also not on any vital part of the body and in fact injury No. 2 was caused on the inner lower part of the left leg 8 cms. above the ankle whereas injury No. 3 was caused on the under-surface of left foot near inner border 5 cms. proximal to first metatarsi pharyngeal joint. Furthermore, injuries Nos. 2 and 3 were not of a grievous nature and had been opined to be caused by some blunt object or surface. Injury No. 1 on the person of the deceased proved fatal simply because of the force of the thrust of the knife. Under these circumstances, the offence of appellant Harish Chander would appear to fall under the second part of S. 304 I.P.C. a injury No. 1 which caused the death of the deceased, appears to have been caused by appellant Harish Chander with the knowledge that it is likely to cause death but without any intention to cause death, or to cause such bodily injury as is likely to cause death and thus this offence of culpable homicide not amounting to murder and falling under part (2) of S. 304 I.P.C. is punishable with imprisonment of either description for a term which may extend to 10 years or with fine or with both. Under the circumstances the reasonable punishment for appellant Harish should be R.I. for five years and fine of Rs. 2500/-. Sentence U/s 27 Arms Act should also be reduced to R.I. for one year.

24. Coming to the case of appellant Saghir Ahmad, the part ascribed to him is that he caught hold of Naeem deceased and he exhorted appellant Harish to attack him with knife ("Mar Sale Ko Chaku"). Thereupon Harish inflicted the fatal knife injury on the left buttock of the deceased. The exhortation on the part of Saghir Ahmad finds mention in the statement of Shabir Ahmad PW 2, Nasir Ahmad PW 20 and Rafiq Ahmad PW 21, but does not find mention in the statements of Abdul Majid PW 1 and Jamil PW 13. The testimony of the witnesses who deposed to the factum of exhortation on the part of appellant Saghir finds support from the F.I.R. and appears to have been proved beyond a reasonable doubt. Under the circumstances appellant Saghir Ahmad is guilty of the same offence of which appellant Harish Chander is guilty i.e. under the second part of S. 304 I.P.C. read with S. 34 I.P.C. The twin factum of exhortation and catching hold of Naeem deceased goes to point out clearly the guilt of appellant Saghir Ahmad as aforesaid.

25. Mr. Soni learned counsel for appellant Saghir Ahmad contended that the intention, if at all, of Saghir Ahmad was to take revenge on PW 1 Abdul Majid on account of his grievance on the question of the demand in regard to the Masjid accounts and there was no weapon in his hand nor did he go to the house of the deceased. He also contended that if knife injury was intended it could be given at the earliest to Abdul Majid PW 1 when he had allegedly gone to the house of Mehdi Hassan and called him for early morning breakfast and further that there could be no intention to cause knife injury to Naeem deceased. We have given our thoughtful consideration to these contentions of the learned counsel but we find no merit in the same. When Abdul Majid PW 1 was at the house of Mehdi Hassan as aforesaid, and the appellants and their co-accused Nasim tried to attack Abdul Majid, the latter run to save himself and thus he could not be given the knife injury at that point of time, but when he reached near his own house, Naeem deceased, on hearing the noise, appears to have intervened and was struck with a fatal blow at the hands of appellant Harish after he was secured and caught hold of by appellant Saghir Ahmad and who also exhorted appellant Harish to attack him with the knife.

26. As already pointed out above, the allegation of appellant Saghir catching hold of and securing Naeem deceased before the fatal blow was given by appellant Harish on the left buttock of the deceased, finds mention in the statements of as many as four eye-witnesses namely Shabir Ahmad PW 5, Jamil PW 13, Nasir Ahmad PW 20 and Rafiq Ahmad PW 21 and their statements find further support from the version of the FIR in respect of the same. Thus, the case against appellant Saghir Ahmad stands proved beyond all reasonable doubts and he is held guilty under the second part of S. 304 I.P.C. read with S. 34 I.P.C. and is liable to the same punishment of five years rigorous imprisonment and fine of Rs. 2,500/- as is awarded to appellant Harish.

27. Now we are left with the appeal of Roshan. It would be seen that eye-witnesses Shabir Ahmad PW 5 and injured Jamil PW 13 stated that appellant Roshan Lal caught hold of Jamil injured and accused Nasim inflicted 2/3 churl/dagger blows on the person of Jamil. Shabir Ahmad talked of chhuri and 2-3 blows thereof while Jamil talked of three blows with a dagger on his person. On the other hand, the eye-witnesses Nasir Ahmad PW 20 and Rafiq Ahmad PW 21 stated that accused Nasim had secured Jamil while appellant Roshan inflicted a knife injury on the person of Jamil. Thus the statements of the two sets of witnesses i.e. Shabir Ahmad and Jamil on the one hand and Nasir Ahmad and Rafiq Ahmad on the other are just the reverse of each other. But the version of the F.I.R. on this point supports what has been stated by Nasir Ahmad PW 20 and Rafiq Ahmad PW 21, and thus their version appears to be correct as against that of Shabir Ahmad and Jamil Ahmad PWs. The statement of Abdul Majid PW 1 adopts a mid-way course inasmuch as he has stated that appellant Saghir Ahmad caught hold of his son Jamil and appellant Roshan gave knife blows on the person of Jamil. The aforesaid discrepancies cannot be given any appreciable weight against the case of the prosecution for the reason that in such an occurrence when injuries are caused, it is difficult to remember precisely the same and as to which of the accused persons gave the injuries and which others caught hold of the injured persons and this is all the more so when there is a considerable time lag between the occurrence and the statements of the witnesses during trial.

28. It was contended on behalf of the appellant that it was night time and it was dark. This contention finds support from the statements of Abdul Majid PW 1 and Smt. Shakooran PW 4. On the other hand, this contention finds rebuttal from the statements of Jamil PW 13, Nasir Ahmad PW 20 and Rafiq Ahmad PW 21 who stated that there was street-light in the gali at the time of occurrence. Abdul Salim PW 14 stated that there was no light in the gali but there was moon light. In view of the street-light being the normal feature in Delhi, the statements of Jamil, Nasir Ahmad and Rafiq Ahmad PWs that there was street-light in the gali at the time of occurrence, appears to be correct on this point. Thus, on sifting the truth the case against appellant Roshan also appears to have been proved beyond all reasonable doubts. The injuries caused by Roshan appellant are simple in nature. He has been awarded three years R.I. by the learned trial court under Section 324 I.P.C. and two years R.I. u/s 27 Arms Act and both these sentences were to run concurrently Both these sentences appear to be rather excessive and harsh and in all reasonableness the term of R.I. for three years should be reduced to R.I. for one year under Section 324 I.P.C. and the term of two years R.I. under Section 27 Arms Act should also be reduced to R.I. for one year.

29. The remaining injuries remain unsubstantiated at it does not stand proved as to which of the appellants or their co-accused Nasim gave and to which of the injures persons.

30. No other point was urged and in view of the above discussion, the appeals succeed only in part and modifying the judgment and sentences under appeal the following orders are passed in regard to the appellants :

Appellant Harish Chander :

His conviction and sentence under Section 302 I.P.C. is set aside and instead he is now convicted under second part of S. 304 I.P.C. and is sentenced to undergo R.I. for five years and he shall also pay fine in the sum of Rs. 2,500/- which amount shall be paid to the heir of Naeem deceased. In default of payment of fine he shall undergo further R.I. for one year. His sentence under Section 27 Arms Act is reduced from two years R.I. to one year R.I. Both these sentences shall run concurrently.

Appellant Saghir Ahmad :

His conviction under Section 302 read with S. 34 I.P.C. is set aside and instead he is now convicted under second part of S. 304 I.P.C. read with S. 34 I.P.C. and is sentenced to undergo R.I. for five years and he shall also pay fine in the sum of Rs. 2,500/- which amount shall be paid to the heir of Naeem deceased. In default of payment of fine he shall undergo further R.I. for one year.

Appellant Roshan Lal :

His sentence under Section 324 I.P.C. is reduced from R.I. for three years to R.I. for one year. His sentence under Section 27 Arms Act is also reduced from R.I. for two years to R.I. for one year. Both these sentences shall run concurrently. He is on bail. His bail is cancelled. He shall be taken in custody forthwith.

30. Appeals partly allowed.