Yunus Alias Bhaiya And Another vs State
1995 Latest Caselaw 351 Del

JUDGMENT

S.D. Pandit, J.

1. The original accused in Sessions Case No. 31 of 1989 have preferred the present appeal against the order of conviction and sentence passed against them by the learned Additional Sessions Judge. The appellants are convicted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and each of them is sentenced to suffer imprisonment for life and to pay fine of Rs. 2,000/- each and in default to suffer R.I. for six months.

2. This appeal was originally preferred by both the appellants through Mr. D. R. Sethi, Advocate. The said learned advocate has expired after this appeal was admitted. Therefore, when appeal became ready for hearing production warrants were issued for producing both the appellants. Report was received that appellant No. 1 Yunus alias Bhaiya son of Gulab Massi, who was granted interim bail has since absconded. It was revealed that the proceedings against the surety were also taken and surety bond had been forfeited and amount of surety bond has also been recovered as fine from the surety. Record of the case is now before us. Appellant No. 1 Yunus alias Bhaiya having not appeared as he is absconding and appeal having become ready for hearing. In these circumstances, an interesting question of law has arisen in the matter as to whether the appeal of the absconding appellant is to be heard on merits or the same is to be dismissed in default by separating his appeal from the appeal of the co-appellant Puran son of Sukhram.

3. We have come across three cases of the Supreme Court on this point. In the case of Shyam Deo Pandey v. State of Bihar, the following principles are laid down by the Hon'ble Supreme Court :-

"The requirement regarding the perusal of record that has been sent for and received in the Court before disposing of an appeal cannot be treated as an empty formality. A perusal for record of particular case and giving indication of Such perusal in the order or judgment is a must before dismissing an appeal which has been admitted and notice whereof has been issued on the ground of non-appearance of the appellant or his pleader. Even where parties have been heard no order of dismissal can be passed without perusal of record."

The same question is again considered by the Supreme Court in the case of Kabira v. State of U.P., 1982 SCC (Crl.) 144 wherein it has been observed as under :

"The appeal could not be dismissed by the learned single Judge for default of appearance if the appellant was not present. The learned Judge should have appointed an advocate as amices curiae and then proceeded to dispose of the appeal on merits."

But in a subsequent decision in Ram Naresh Yadav v. State of Bihar, AIR 1987 SC 1500 : (1987 Cri LJ 1856) the Hon'ble Supreme Court has observed as under at page 1856 of Cri LJ :-

"It is no doubt true that if the counsel do not appear when criminal appeals are called out, it would hamper the working of the Court and create a serious problem for the Court and if this happens often the working of the Court would become well nigh impossible. We are fully conscious of the dimension of this matter but in criminal matters the convict must be heard before their matters are decided on merits. The Court can dismiss the appeal for non-prosecution and enforce the discipline or refer the matter to the Bar Council with the same in view but the matter can be disposed of on merits only after hearing the appellant or his counsel, the Court might as well appoint a counsel at State cost to argue on behalf of the appellants."

Though in the last case it has been observed that the Court can dismiss the appeal for non-prosecution, the earlier two decisions in Shyam Deo Pandey v. State of Bihar (supra) and Kabira v. State of U.P. (supra) were not brought to the notice of Their Lordships and all these three decisions are the decisions of the Division Bench of two judges. Even in the case of Ram Naresh Yadav v. State of Bihar (supra) it has been observed that the court can appoint an advocate as amices curiae for the appellant and after hearing him proceed to dispose of the appeal. Appellant Puran is in jail and his appeal cannot be decided separately from the appeal of absconding appellant. Hearing of the appeal of appellant Puran can brook no further delay as he is in jail for a long time waiting for decision of his appeal. There appears to be no near possibility of arrest of appellant Yunus so that he could make his own arrangement of a counsel for pursuing his appeal. Therefore, in these circumstances, we have proceeded to hear appeal of Yunus. We have appointed Shri Sandeep Sethi as amices curiae in this matter and have requested him to assist the Court by arguing the appeal on behalf of the appellant No. 1 Yunus @ Bhaiya and he has accordingly agreed and has argued the appeal on behalf of both the appellants.

4. It is the case of the prosecution that on 8-11-1988 in the evening the appellants had quarrelled with one Kishore who is the neighbour of the first informant Kamleshwar son of Sukhdev Singh. Victim Sundeshwar was the younger brother of first informant Kamleshwar. On 10-11-1988 there was Diwali festival and, therefore, on 9-11-1988 first informant PW/9 Kamleshwar and his brother Sundeshwar had taken in hand the work of white wishing and painting of their house No. W-2935. Padam Basti, Nangal Rai, Delhi. They had finished their work by about 8.00/8.30 P.M. and they were busy in putting their goods, which were kept by them outside the house at the time of painting and white washing the house, inside their house. When they were so doing, at about 8.30 P.M. the appellants arrived there and they asked Sundeshwar to give hockey stick to them. Thereupon Sundeshwar stated that he would not do so as on the next day there was Diwali and if they happened to pick up quarrel with somebody he and his brother would be unnecessarily involved and due to the same altercations took place between the appellants and the deceased Sundeshwar. After the said altercations both the appellants started beating him. Thereupon deceased Sundeshwar entered his room and tried to bolt the door but the appellants broke open the door of the room. Sundeshwar, deceased, ran out of the house when they started assaulting him. He was chased and appellant No. 2 Puran caught hold of Sundeshwar at a distance of 15/20 yards away from his house and felled him on the ground. By that time appellant Yunus came there and appellant Puran told him to teach Sundeshwar a lesson. Thereupon Yunus took out a knife, which was hidden by him under his pyjama at his foot, and started giving blows of the same to the deceased Sundeshwar. PW/2 Sheila Devi, neighbour of the victim Sundeshwar came there and intervened and rescued him and in the said intervention she also received one blow of his knife. After giving 2/3 blows on his chest and abdomen both the appellants took to their heels. Thereafter PW/9 Kamleshwar and his another neighbour PW/10 Vishwakarma lifted injured Sundeshwar and put him in a three-wheeler rickshaw and rushed him to Din Dayal Upadhyay Hospital. The doctor on duty at the Hospital on examination of Sundeshwar found that he was dead and accordingly declared that he was brought dead to the hospital.

5. In the meantime, someone had informed the police about Sundeshwar being rushed to the hospital in injured condition. The constable on duty at the hospital also gave information about the same and, therefore, PW/17, S. I. Joginder Singh went to the hospital. He recorded the first information report of PW/9 Kamleshwar and on the strength of the said first information report offence was registered as per FIR No. 176/88 and investigation was started. The present two appellants were arrested on the next day at about 7.00/7.30 P.M. at Delhi Cantonment Railway Station platform. At that time it was found that the shirt of appellant No. 2 Puran and kurta and pyjama of appellant No. 1 Yusuf were found having blood stains and, therefore, the clothes of both of them were attached under a detailed panchnama. Appellant Yunus made a statement leading to the recovery of the knife which was seized and attached under Section 27 of the Evidence Act. Post-mortem on the body of Sundeshwar was carried out. The attached weapon, clothes of the deceased and clothes of the two accused were forwarded to Chemical Analyser and on completion of necessary investigation charge sheet was filed against the present appellants for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.

6. Charge was framed against the present appellants on 26-4-1989 by the Additional Sessions Judge after they were committed to the Court of Session on 14-3-1989. Appellants were charged for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Both the accused pleaded not guilty to the charge. Their defense is of total denial and false implication.

7. In order to prove its case against the appellants prosecution has examined in all 19 witnesses. Out of these 19 witnesses PW/2 Sheila Devi, PW/3 Kishore, PW/5 Rajender Singh, PW/9 Kamleshwar, PW/10 Vishwakarma were examined as the direct witnesses to connect the accused with the offence with which they were charged. Out of these witnesses PW/2 Sheila Devi, PW/3 Kishore and PW/5 Rajender Singh turned hostile. The accused had examined in support of their defense two witnesses PW/1 Head Constable Bear Singh and PW/2 Ramesh Kumar. The learned Additional Sessions Judge accepted the evidence of direct witnesses PW/9 and PW/10 Vishwakarma which stood corroborated with the medical evidence, the recovery of weapon at the instance of appellant No. 1 and the findings of the Chemical analyser and came to the conclusion that the appellants had committed the offence with which they were charged. He accordingly held them guilty and sentenced them, as stated earlier.

8. Feeling aggrieved by the said decision the appellants have come in appeal before this Court. Learned Counsel for the appellants urged that the trial court was not at all justified in accepting the evidence of the two alleged eye witnesses. He further contended that the trial Court was not justified in accepting the evidence of recovery under Section 27 of the Evidence Act. As regards the weapon alleged to have been recovered at the instance of appellant No. 1 Yusuf he also contended that the evidence of two eye witnesses was inconsistent and full of improbablities. Therefore, in these circumstances, the appellants are entitled to get benefit of doubt. He also further contended that from the material on record appellant No. 2 Puran could not be held guilty of the offence punishable under Section 302 of the Code by taking the aid of Section 34 of the Indian Penal Code.

9. PW/9 Kamleshwar has deposed before the Court that on that fateful day of 9-11-1988 he and his brother Sundeshwar had carried out the work of painting and whitewashing their house and when in the evening they were busy in putting back the household articles accused Puran came there and asked Sundeshwar to give hockey stick whereupon Sundeshwar had told Puran that he would not give the hockey stick because it is the night of Diwali and that he (i.e. Puran) would pick up quarrel with somebody and would use the hockey stick for assaulting somebody and he would unnecessarily be involved for having given the hockey stick. On that reply of his brother Puran abused Sundeshwar and Yunus also joined him and then both abused his brother Sundeshwar and rushed to assault him. Therefore, he took to his heels and went inside the house and bolted it from inside. But appellant Yunus kicked the door and threw it open and, thereafter Sundeshwar ran out in the street. He was followed and chased by appellant Puran who caught him and felled him down on the round. He has further deposed that thereafter Yunus took out a knife-cum-dagger which he had concealed near his leg and gave blows of the same on the chest and other parts of the body of his brother. He has also deposed that at that time Vishwakarma was also present there. PW/10 Vishwakarma has deposed in support of the prosecution case and he has given the same version regarding the whole incident and the evidence of both these witnesses is quite consistent and cogent. The said evidence is further supported by the first information report lodged by PW/9 Kamleshwar. The first information report is lodged by him within one and a half hours from the time of the incident.

10. If the cross-examination of both these witnesses is considered then it would be quite clear that in the cross-examination of both of them there are no major inconsistencies or contradictions so as to discard their evidence. No doubt there are some minor inconsistencies in the cross-examination regarding the timing as to when the first information report as well as the statement to Vishwakarma was recorded by the police and as regards the further part of the prosecution case regarding the arrest of accused Nos. 1 & 2 and the recovery of the weapon of offence at the instance of appellant No. 1 Yusuf alias Bhaiya. But those contradictions and inconsistencies are not going to the root of the matter. They are due to the fact that PW/9 first informant Kamleshwar is an illiterate and also on account of the fact that the witnesses were deposing about the incident nearly one year after the date of incident. Therefore, in these circumstances, we do not give much importance to the said inconsistencies in their evidence.

11. The evidence of both these witnesses is further corroborated by the medical evidence on record. PW/13 Dr. Hari Om Gupta had found three incised wounds and one abrasion on the person of Sundershan. Dr. Gupta had further found that the incised wounds Nos. 1 & 3 were collectively as well as individually sufficient in the ordinary course of nature to cause his death. Injury No. 1 had cut diapharma and middle lobe of the right lung and the incised wound had cut omentum and mesentery of small bowls. The weapon recovered at the instance of appellant No. 1 Yusuf was pointed out to him and he has further deposed and had also earlier opined that the injuries found by him on the person of the deceased were possible by the weapon recovered at the instance of appellant No. 1. PW/19 Dr. P. S. Khutani has also deposed that the cut marks which were found on the clothes and body of the victim are possible by the weapon recovered at the instance of appellant No. 1. The prosecution witnesses PW/8 Constable Avtar Singh, PW/9 Kamleshwar, PW/10 Vishwakarma and PW/17 S. I. Joginder Singh have deposed that the weapon was recovered at the instance of appellant Yusuf on 11-11-1988 in a garden where it was concealed in a bush. The medical evidence on record and the circumstance of the discovery of the weapon of offence at the instance of appellant No. 1 give further corroboration and support to the testimony of PW/9 Kamleshwar and PW/10 Vishwakarma.

12. The evidence of PW/8 Constable Avtar Singh, PW/9 Kamleshwar, PW/10 Vishwakarma and PW/17 S. I. Joginder Singh, the investigating officer, further shows that at the time of the arrest the shirt of appellant Puran and the Kurta pyjama of appellant Yusuf were having blood stains and they were seized under a memorandum. The said clothes were forwarded to the Chemical Analyser and the report of the C.F.S.L. at Ex. PW/18/B clearly shows that the blood stains which are found on the kurta of appellant Yusuf and shirt of appellant Puran were of blood group 'O' which is also the blood group of the blood found on the clothes of the deceased. The said report further shows that even the pyjama of appellant Yusuf was having the human blood but the Chemical Analyser was not in a position to detect the blood-group of the said blood. The dagger recovered at the instance of respondent No. 1 was also having human blood on it. No doubt the Chemical Analyser was not in a position to detect the blood group of the blood found on the said dagger but the finding of the human blood on the said dagger and the pyjama of appellant Yusuf and the finding of the blood group of the deceased on the Kurta of appellant Yusuf and shirt of appellant Puran gives the necessary support and corroboration to the version of the eye witnesses and, thus, supports the prosecution case.

13. No doubt during the cross-examination Dr. P. S. Khutani as well as PW/13 Dr. Hari Om Gupta it was asked as to whether the dagger when it was produced before them was having any blood stains and both of them have clearly stated that when the said dagger was shown to them it was clean and there were no blood stains on it. But the opinion given by Dr. Gupta, PW/13 clearly shows that he was shown the said dagger and he had given his opinion on 19-1-1989 whereas the report of the Chemical Analyser shows that he had received the said dagger in his office on 28-11-1988 and the certificate issued by him is bearing the date of 30-12-1988. Therefore, in these circumstances, when the said weapon was shown to Dr. Gupta it was already cleaned by the Chemical Analyser in order to collect the blood stains on the same for his analysis and, therefore, in these circumstances naturally there would be no blood stains on the said dagger when it was shown to Dr. Hari Om Gupta. PW/13. Therefore the absence of blood stains on the dagger when it was seen by Dr. Gupta is of no consequence.

14. It must be further mentioned here that both PW/9 Kamleshwar and PW/10 Vishwakarma have no animosity or ill will towards the present appellant. They had no reason to falsely implicate them. PW/9 Kamleshwar being the real brother of deceased Sundeshwar would not leave the real culprits and try to falsely implicate the present appellants. Their evidence is supported by the medical evidence as well as the circumstantial evidence on record. Therefore, in these circumstances we do not find any reason to discard the evidence of PW/9 Kamleshwar and PW/10 Vishwakarma. We, thus, hold that the trial court was quite justified in accepting the evidence of both of them and to hold that on the night of 9-11-1988 the present appellants had gone to the house of PW/9 Kamleshwar and there they had quarrelled with victim Sundeshwar and appellant Yunus had caused his death by giving blows with the dagger in question.

15. The appellants had examined DW/2 Ramesh Kumar in support of their defense. Learned counsel for the appellants urged before us that DW/2 Ramesh Kumar was present in the hospital when PW/9 Kamleshwar had taken his brother there. As per the evidence of the said witness DW/2 Ramesh Kumar, PW/9 Kamleshwar had not disclosed to the doctor the name of either of the two accused but it must be said that during the cross-examination of PW/9 Kamleshwar, PW/10 Vishwakarma and PW/19 Dr. P. S. Khutani there is no suggestion about the presence of this witness in the hospital when PW/9 Kamleshwar had taken his injured brother Sundeshwar to the hospital. It is also very pertinent to note that there is no suggestion in the cross-examination of any of these three witnesses that Kamleshwar was asked by Dr. Khutani about the injuries on Sundeshwar and Kamleshwar has not given the name of the accused and had told that he did not know about the same. In the absence of such a version put up in the cross-examination of these witnesses and when PW/9 Kamleshwar has made a categorical statement that he had disclosed to the doctor that his brother Sundeshwar was given blows of dagger by Yunus @ Bhaiya the version put up by this defense witness could not at all be believed or accepted. It clearly seems that DW/2 Ramesh kumar is a got up witness. Therefore, we do not attach any importance to his testimony.

16. Thus, we are in agreement with the finding of the trial court about the happening of the incident as deposed by PW/9 and PW/10 on 9-11-1988 and in the said incident appellant Yunus @ Bhaiya had given blows of the dagger on the chest and abdomen of deceased Sundeshwar and that those blows resulted into injuries which were in the ordinary course of nature sufficient to cause his death. In view of the weapon used, the part of the body selected in giving the blows and the force used in giving the blows, it is quite clear that appellant Yunus did intend to cause his death and he had also clear knowledge that by giving the said blows he was going to cause his death. From the version given by PW/9 Kamleshwar and PW/10 Vishwakarma it would also be quite clear that there was no grave or sudden provocation to appellant No. 1 Yunus and he had also no right of private defense of person or property when he had inflicted the said injuries. Therefore, in these circumstances, there is no doubt whatsoever in holding appellant Yunus @ Bhaiya guilty of the offence punishable under Section 302 of the Indian Penal Code.

17. The next question which arises for consideration is as to whether appellant Puran could be said to be guilty of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. No doubt, we are in least doubt about his presence near the deceased as well as appellant No. 1 Yunus when Yunus had given those vital blows on victim Sundeshwar. But merely because he was present there could it be said that appellant Puran could be held guilty of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. If the first information report given by PW/9 Kamleshwar is considered that it would be quite clear that as per his first information report when deceased Sundeshwar started to run away appellant Puran ran behind him and caught him and threw him on the ground and as per his first information report he says that Puran had exhorted Yunus by swearing him not to spare him - "Puran Ne Kaha Yunus Tujhe Meri Kasam Hai Ise Chorna Nahin Hai". But he does not say in his first information report that after he had felled Sundeshwar he kept holding Sundeshwar and he had in any way aided Yunus in inflicting the blows on victim Sundeshwar. In his deposition before the Court PW/9 Kamleshwar has tried to make an improvement as regards the part of appellant Puran by saying that appellant Puran had caught hold of deceased Sundeshwar after felling him down but in his statement before the Court he has not stated that appellant Puran had in any way exhorted Yunus. PW/10 Vishwakarma does not say that appellant Puran had caught hold of Sundeshwar after throwing him on the ground. PW/9 Kamleshwar had not stated in his first information report that appellant Puran had caught hold of Sundeshwar after throwing him on the ground and when the other eye witness PW/10 Vishwakarma has also not stated that appellant Puran had caught hold of Sundeshwar after throwing him on the ground the claim of PW/9 Kamleshwar made by him for the first time in the Court that appellant Puran had caught hold of Sundeshwar when Yusuf was giving him dagger blows could not be accepted beyond doubt and without any hesitation of mind. Therefore, we are not prepared to believe and accept that part of his version, particularly, in view of his own first information report and the testimony of PW/10 Vishwakarma.

18. PW/10 Vishwakarma also does not say that appellant No. 2 Puran had in any way exhorted Yunus to take this drastic step. Even PW/9 Kamleshwar does not say so in his evidence in the Court. Therefore, in these circumstances, it would be quite clear that appellant No. 2 Puran had not played any part of aiding in the said attack by appellant No. 1 Yunus @ Bhaiya.

19. It must be also further mentioned that as per the evidence of both PW/9 Kamleshwar and PW/10 Vishwakarma Yunus had kept hidden the dagger and he had taken out the same suddenly. Therefore, appellant Puran could not have any knowledge that appellant No. 1 Yunus was going to cause the death of Sundeshwar by using the dangerous weapon of dagger. As per the version given by PW/9 Kamleshwar and PW/10 Vishwakarma both the appellant had come at the house of PW/9 Kamleshwar and appellant Puran had asked deceased Sundeshwar to give the hockey stick and as he refused to give the hockey stick, quarrel between him and the present two appellants took place and then the further incident took place. This part of the prosecution case shows that appellant Puran was not having the knowledge that any weapon was there with the appellant No. 1 Yunus. It must be further mentioned here that as per the case of the prosecution quarrel between the appellants and the deceased Sundeshwar had arisen all of a sudden. There was no previous animosity or ill will between the appellants and the deceased. Therefore, in view of the above considerations we are unable to hold that appellant Puran was in any way sharing the intention with appellant Yunus to cause the homicidal death of deceased Sundeshwar.

20. Therefore, in these circumstances, appellant Puran could not be held guilty of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. No doubt from the evidence on record appellant Puran had physically assaulted deceased Sundeshwar and he had also thrown him on the ground. Therefore, in these circumstances, it will have to be held that he had the intention to cause simple hurt to the deceased and he had shared the common intention Along with appellant No. 1 Yunus of causing simple hurt to the deceased Sundeshwar. Therefore, in these circumstances, appellant Puran would be held guilty of the offence punishable under Section 323 read with Section 34 of the Indian Penal Code whereas appellant Yunus @ Bhaiya alone could be held guilty of the offence punishable under Section 302 of the Indian Penal Code. Appellant Puran was in jail as an under trial prisoner and a convict for more than one year. The maximum sentence under section 323 is of one year. Therefore, in these circumstances, we hold that he must be released forthwith.

21. Thus, we hold that the present appeal will have to be partly allowed. The order of conviction and sentence against both the appellants for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code is set aside. However, appellant Yunus @ Bhaiya is held guilty of the offence punishable under. Section 302 and is sentenced to suffer imprisonment for life and pay fine of Rs. 2000/- and in default to suffer R. 1. for six months, as awarded by the trial court. Appellant No. 2 Puran son of Sukhram is found guilty of the offence punishable under Section 323 read with Section 34 of the Indian Penal Code but in view of the fact that he has been already in jail for a period of more than one year we order that he be set at liberty forthwith, if not required to be detained in any other case. The Police shall now take steps to arrest convict Yunus so that he undergoes the sentence. A copy of the judgment be sent to the police Commissioner for necessary action.

22. Appeal partly allowed.