Shamshad Ali vs State
1998 Latest Caselaw 186 Del

JUDGMENT

N.G. Nandi J.

1. Conviction recorded for the offence under Section 302 I.P.C. and sentenced to suffer rigorous imprisonment for life in F.I.R. No. 358/90, Police Station Tilak Nagar - Sessions Case No. 206/90 - by the learned Additional Sessions Judge, Delhi have been assailed in this appeal under Section 374 of the Criminal Procedure Code (hereinafter referred to as "the Code") by the appellant convict Shamshad Ali son of Mohd. Soleman.

2. As revealed, the prosecution case is that one Munshi Ram resides at and plies Rehri (hand card) in Khyala on the road near Vaishno Devi Madrasi Temple for selling eggs; that Shamshad Ali had a cycle repairing shop on the footpath of the said road and near the shop of Shamshad Ali, deceased Govind Singh Gopi Singh also used to repair the cycle. On the fateful day of 28.6.1990 at about 7.45 p.m. Shamshad Ali told Govind Singh not to repair cycle near his shop. This led to exchanges between the two and Shamshad Ali lifted scissor which is used for repairing the puncture in the tube of the tyre fitted in the cycle and also told Govind Singh that he would not spare him and attacked Govind Singh on his chest 34 times with the scissors as a result of which Govind Singh received injuries and fell down.

At 8.5 p.m. DD No. 16-B was received at P.S.Tilak Nagar from the Police Control informing that the wireless operator has reported that one person has been stabbed with the scissors near the bus stand of Route No. 830 at Khyala and he is seriously injured; that he is being removed by van and requested that some officer may be sent; that on receipt of the wireless message the report was entered into Rojnamcha and copy of the report for taking proper action was handed over to S.T. Ram Rattan, who alongwith Const Atma Ram, No. 771 /W left, for the inquiry. Thereafter statement of Munshi Ram son of Sunder Lal was recorded and Rukka was prepared and sent to the police station at 11.20 p.m. for registration of the offence where-upon F.I.R. under section 154 of the Code came to be registered for the offence under Section 307, IPC. It is also revealed that injured Govind Singh succumbed in RML Hospital to the injuries sustained in the incident and breathed his last at 10.25 p.m. on the same evening. Thereafter offence was converted into Section 302, IPC. The usual investigation commenced and on completion of the investigation, accused Shamshad Ali came to be chargesheeted for the offence 'Under Section 302, IPC. The prosecution, in order to bring home the guilt to the accused Shamshad Ali, adduced oral as well as documentary evidence and the Additional Sessions Judge appreciating the oral, as well as documentary evidence and the statement of the accused under Section 313 of the Code, found accused Shamshad Ali guilty of the offence under Section 302, IPC and sentenced him to suffer rigorous imprisonment for life. It is this finding of guilt and the sentence, for rigorous imprisonment of life assailed in this appeal by the convict-appellant.

3. One of the arguments advanced on behalf of the appellant by the learned Advocate amices curiae Ms. Kamna Vohra is that there is no basis of evidence for coming to the conclusion that the appellant inflicted injuries in the incident to the deceased since PW-12 Munshi Ram, complainant is not reliable and that P-W-11 Kehar Singh is a chance witness as he can have no occasion or reason to go to the deceased every day and the witnesses also do not depose about the number of blows.

4. As far as the main incident of inflicting scissor blows to deceased Govind Singh is concerned, the prosecution has examined two eye witnesses - PW-12 Munshi Ram son of Sunder Lal and PW-11 Kehar Singh son of Sant Singh.

5. PW-12 Munshi Ram has deposed in his evidence that he parks his Rehri for selling the eggs near Khyala Chowk Madrasi Colony; that he knows Govind Singh who used to repair cycles on the pavement nearby; that he also knew accused Shamshad; that he also used to repair the cycles on pavement near the place of work of Govind Singh; that about one and half years back at about 7.45 or 8.00 p.m. the witness was present at his Rehri. A fight was going on between Govind Singh and Shamshad. They were consuming liquor; that the accused lifted a pair of scissors used for cutting rubber and hit Govind Singh on his chest 3 or 4 times; that polices came there and took away Govind Singh and also took accused Shamshad with them; that the police came there and recorded statement Ex.PW-12/A of the witness. In the cross-examination, it has been deposed that the witness parks his Rehri across the road in front of the shop of the accused; that the road is about 30 ft. wide. The witness had just arrived at his Rehri when the occurrence took place; that Govind Singh was empty handed; that they used to consume liquor; that on that day the witness did not see them consuming liquor; that both were abusing each other; that the scissor was lying on the pavement at the place where Govind Singh used to work; that no one tried to intervene or tried to separate them; that the witness went across the road only after the incident; that police recorded the statement of the witness at the police station.

It will be seen fro m the deposition of PW-12 that he has been keeping his Rehri for sale of eggs near the place of work of deceased Govind Singh and accused Shamshad Ali and both of them were doing the business of cycle repairing; that both of them used to consume liquor; that a fight was going on between Govind Singh and Shamshad; that accused lifted pair of scissors which is normally used for. cutting rubber and hit Govind Singh on his chest 3-4 times. It is suggested that the witness had just arrived at his Rehri when the occurrence took place; that the scissor was lying on the pavement at the place where GoVind Singh used to work; that the witness went across the road only after the incident. Thus, as far as the- main occurrence is concerned, in unmistakable and categorical terms, it has been deposed by PW-12 Munshi Ram that he had just arrived at his Rehri which he was daily keeping on the road at/near the place of occurrence and Govind Singh and Shamshad were doing the cycle repairing work on the pavement of the footpath near the place where the witness used to park/keep his eggs selling Rehri; that Govind Singh was empty handed; that both were sitting together and the pair of scissors lying on the pavement at the place where Govind Singh used to work was lifted by Shamshad and hit Govind Singh on his chest 3 or 4 times. Thus, in unequivocal terms it has been stated by PW-12 Munshi Ram that fight was going on between the two. Shamshad lifted the pair of scissors which was lying there and attacked Govind Singh 3 or 4 times on his chest. As far as deceased and accused are concerned, both were doing the work of cycle repairing on the pavement where PW12 Munshi Ram used to park his Rehri for the sale of eggs. The witness knew both much prior to the incident. In clear terms, the incident of giving blows with scissors on the chest of Govind Singh has been stated by the witness. Nothing substantial has been brought out from the cross-examination of PW-12 Munshi Ram so as to discredit him or render his testimony untrustworthy or unreliable.

6. The other eye witness examined by the prosecution is PW-11 Kehar Singh son of Sant Singh. The evidence of PW-11 is attacked on the ground of he being a chance witness, his presence not natural and probable and his evidence, therefore rendered unreliable.

PW-11 Kehar Singh has stated in his evidence that on 28.6.1990 he went to Vishnu Garden to see his son Baljit Singh; that the witness went to the shop of Govind Singh as his cycle had got punctured; that accused Shamshad Ali has also a cycle puncture repairing shop near the shop of Govind Singh; that they are working on the foot path on Khyala Road; that the accused had a scissor in his hand; that it was about 7.45 p.m. and he was saying that he will not spare Govind Singh and saying so he attacked Govind Singh with scissor in his chest; that many people collected there. The witness went to the house of Govind Singh to inform his family; that the witness knew Govind.Singh as he used to get his cycle puncture repaired from him; that he also knew Accused Shamshad Ali; that by the time witness returned to the spot, Govind Singh had -been removed to the hospital. That in the cross-examination it has been stated that the witness used to daily go to the shop of Govind Singh and had seen Govind Singh and Shamshad Ali sitting together number of times; that the witness saw from a distance of 15 feet that Shamshad Ali was holding the scissor. The witness reached the spot at about 7.45 p.m.; that prior to that the witness did not see any fight between Govind Singh and Shamshad Ali; that Munshi Ram was also standing there; that he is Rehri wala and parks his Rehri nearby, that Govind Singh was not related to the witness nor was he his friend. The witness simply used to go to get his cycle's puncture repaired; that the witness used to pass through that road almost daily since it was on the way to the house of his son.

7. It is suggested from the evidence of PW-11 Kehar Singh that the witness happened to pass from near the pla of work of Govind Singh and Shamshad Ali as the same fell on the way to the house of his son Baljit Singh; that the witness used to go to the shop of Govind Singh for the repair of puncture; that accused was also having shop of cycle repairing near the shop of Govind Singh and both were working on the foot path of Khyala Road, The witness has identified the accused in the Court. It is further suggested that it was 7.45 p.m. that the incident of inflicting scissor blows in the chest of Govind Singh at the hands of accused Shamshad Ali took place. In unmistakable terms the witness has deposed that accused Shamshad All was holding scissor in his hand and with the same inflicted blows in the chest of Govind Singh. In the cross-examination, it is not suggested to the witness that his son Baljit Singh-does not stay in Vishnu Garden area and that the place of occurrence does not fall on the way to the house of Baljit Singh so as to enter the presence of the witness unnatural or improbable. It is also not suggested from the cross-examination of this witness as to why the witness should falsely implicate the accused nor it is suggested that deceased was in any manner related to the witness. The witness has also deposed about the presence of PW-12 Munshi Ram. Of course PW-12 Munshi Ram does not refer to the presence of this witness ie. PW-11 at the place of incident when the occurrence took place but that would not make any difference since the same would be a matter of,individual perception. It may be that PW-11 may have seen PW-12 at the place of incident but PW-12 may not have noticed the presence of PW-11 at the, place of incident may be he was not attentive as regards the presence of PW-11 at the place of occurrence. PW-11 cannot be regarded as a chance witness for the reason that it would be natural for him to visit his son in Vishnu Garden area and he might be getting his cycle's puncture repaired at the shop of Govind Singh on the footpath of Khyala Road as and when required. There may be an exaggeration on the part of PW-11 as regards daily visiting the shop of Govind Singh and getting his cycle's puncture repaired but;-,t the same time it is sufficiently suggested that on occasions he might be getting his cycle's puncture repaired at the;shop of Govind Singh and that is how he used to know Govind Singh doing the work of cycle puncture repairing on the foot path of Khyala Road and accused Shamshad Ali also having the cycle repairing shop on the same foot path near the shop of Govind Singh. The exaggeration-with regard to the number of visits to the shop of Govind Singh cannot be regarded sufficient to discard the evidence of PW-11 as far as the main occurrence is concerned. Nothing substantial has been brought out from the cross-examination of PW-11 or for that matter PW-12 so as to discard their evidence as far as the main occurrence is concerned when both of them have in clear and unambiguous manner stated to the effect that there were exchanges between Govind Singh and Shamshad Ali, Shamshad Ali was,having scissor and inflicted blows in the chest of deceased Govind Singh. It need hardly be said that some additions, exaggerations are bound to be there but they are of no significance and trivial in nature, and we have to make allowance for the same. As also the discrepancy in the exact number of blows cannot render the ocular version one witnesses doubtful or untrustworthy.

8. The ocular version of the occurrence given by PW-11 and 12, as pointed out above, has been corroborated the medical evidence. PW-14/A is the MLC of Govind Singh, prepared in Deen Dyal Upadhyay Hospital at 8.20 p.m. Perusal of the same suggests that the external injuries were noticed on the chest and these injuries, are punctured, wounds 2 in number and incised wounds 2 in number.

PW-21 Dr. L.K. Barua, who conducted the post mortem examination on the dead body of Govind Singh has deposed that in course of the post mortem examination he noticed the external as well as internal injuries and the external injuries were two punctured wounds on the left side front of chest, two incised wounds on the left angle of the chest and two were the horizontally placed scratches on the left shoulder front. Thus, the injuries on the left side chest region, deposed by PW-11 and 12 were found by PW-21 and the same noted in the post mortem report Ex.PW-21/A.

9. As pointed out above, PW-11 and 12 both have deposed to the effect that Shamshad Ali was having, scissor in his hand and with the scissor he inflicted blows on the left side chest of Govind Singh. According to the prosecution, at the disclosure of accused Shamshad Ali scissor Ex.P-1 was recovered. The accused, in his further statement, has denied any disclosure statement having been made and having led to the place wherefrom scissor Ex.P-1 is said to have been recovered. According to the accused scissor Ex.P-1 is planted on him. PW-21 has deposed in his evidence that he was shown scissor Ex-P-1 by the police for obtaining the opinion regarding the cause of death and the weapon with which the injury, on the dead body could be caused and also whether external injury No. 1 would be possible by scissor Ex. P-1. Thus, the say of PWs-11 and 12 with regard to the inflicting of the injuries on the left side of the chest of Govind Singh with scissor Ex.P-1 has been sufficiently corroborated by the medical evidence, especially MLC Ex.PVI-14/A, deposition of PW-21, the post mortem report Ex. PW-21 /A and Ex. PW-22/E CFSL report. The results of the serological analysis from Serology Division suggests that on the scissor Ex. P-1 human blood of O group was found, on Ex. P-3a the pant of the deceased human blood of O group was noticed, on Ex. P-3b the Banian of the deceased human blood was found but the blood group could not be ascertained whereas in the blood stained earth Ex. P-2 collected from the place of incident human blood was noticed. From the control earth the species of the origin of the blood showed no reaction and the blood group could not be ascertained of either the blood stained earth or the control earth whereas the blood stained gauze showed human blood of O group.

10. The disclosure statement Ex. PW-20/B and consequent recovery of Ex.P-1 vide Ex. PW-20/C are also challenged on the ground that no independent witnesses have been joined by the Prosecution Agency either for the purpose of so called disclosure statement Ex. PW-20/B and the recovery of Ex. P-1 vide Ex. PW-20/C and also that the recovery of scissor Ex. P-1 has been from the open space and that the place was not in exclusive domain of the accused as many persons could have access to the place wherefrom Ex. P-1 is said to have been recovered.

Perusal of Ex. PW-20/B, disclosure statement, stated to have been made by the accused and Ex. PW-20/C, memo of recovery of scissor Ex. P-1 stated to be at the instance of the accused suggests that both have been witnessed by police constable Akna Ram of P.S. Tilak Nagar. It need hardly be said that in order to lend assurance that the investigation has been proceeding in fair and honest manner, it would be necessary for the I.O. (PW-22) to take independent witnesses to the discovery under Section 27 of the Indian Evidence Act and not taking independent witnesses and taking subordinate police person as the witnesses to the iscovery would in a given case, render the discovery at, least not free from doubt. The object of Subsection (4) of Section 100 of the Code is to ensure an honest and genuine search and to prevent trickery by 'planting" the things to be "found" in searches.

11. In the cross-examination of PW-20, who has attested Exs. PW-20/B and PW20/C it is not suggested by the defense that there were independent witnesses available, yet not joined for the purpose. In the cross-examination, it has been stated by the witness that when the disclosure statement was made by the accused, it was night time and so no body was available and that no body was called from any house to be a witness. This part of the evidence would not suggest that though independent witnesses were available, they were not joined in the investigation. The evidence of PW-22 10 also does not suggest that though the independent witnesses were available, same were not in need nor it is suggested to either PW-20 or PW-22 that scissor Ex.P-1 was visible to any passer-by and any body could have put the same. In the cross-examination, PW-20 has stated that the scissor was lying open in the bushes. The scissor may be lying open but that by itself would not suggest that the same was visible to all and that anybody could have put the same in the manner in which the same was found lying in the bushes. Looking to the fact that from scissor Ex. P-1 human blood of 0 group, which tallies with the blood group of deceased Govind Singh was found and also the absence of evidence suggesting that independent witnesses, though available, were not joined by the Investigating Agency for the purpose of disclosure statement Ex. PW-20/B and the consequent recovery vide memo Ex. PW-20/,C and for want of evidence that the scissor Ex.P-1 lying open in the bushes were visible to any passer-by and that any body could have put the same in the manner in which it was found lying at the time of recovery, the object of Sub-sec. (4) of Section 100 of the Code cannot be said to have been in any manner violated or offended.

The recovery of scissor Ex. P-1 at the instance of the accused vide Ex. PW-20/ C, the find of human blood of O group thereon which tallies with the blood group of deceased Govind Singh lend sufficient corroboration to the prosecution version of PWs-11 and 12 having witnessed the occurrence deposed by them, as pointed out above.

12. One of the arguments advanced on behalf of the appellant-accused is that the special report under Section 157 of the Code has not been delivered to the Duty Magistrate, as required under the law. PW-18 Const Ramesh Kumar has deposed in his evidence that on the night intervening 28/29.6.1990 he took special report of this case from the duty officer and delivered it to the area Metropolitan Magistrate at his residence. It is further stated that the witness also delivered the copy of the FIR to the Senior Police Officer. It is pertinent to note that there is no cross-examination of this witness on behalf of the accused, though, opportunity was afforded. Thus, the unchallenged evidence of PW-18 suggests that on the same night special report was delivered to the area Metropolitan Magistrate at his residence. In absence of any cross-examination of this witness, suggesting that the special report was not delivered to the Area Metropolitan Magistrate, during the night intervening 28/29.6.1990, it cannot be said that the special report was not delivered to the Area Magistrate by PW-18, as deposed by him. Simply because in the copy of the FIR delivered to the Area Magistrate, time suggesting the receipt thereof is not mentioned, it would not necessarily mean that PW-18 is unreliable or untrustworthy and, therefore, in absence of any suggestion to PW-18 to the contrary as regards the delivery of special report to the Area Magistrate at his residence on the night intervening 28/29.6.1990 the say of PW-18 has got to be accepted.

13. One of the arguments advanced on behalf of the appellant-convict is that though the incident took place on 28.6.90, the case property was sent to CFSL on 4.9.1990 for analysis and report after considerable lapse of time and that the same would render prosecution version doubtful and unreliable.

14. PW-6 HC Ajit Singh has deposed in his evidence that on 28.6.90 he was working as Malkhana Moharrer, PS Tilak Nagar; that SI Ram Rattan deposited two sealed parcels bearing the seal of RR which the witness entered at SI.NO. 1892 in Register No. 19; that on 29.6.90, HC DO Om Prakash deposited two sealed Pullandas and one sample seal of Dr. B. Singh, which were entered at SI.NO. 1892 in Register No. 19; that on 29.6.90 the sealed parcel containing scissor was taken by Const-Gian Chand vide RC No. 37/21; that the same was redeposited on 30.8.1990, sealed with the seal of Dr. B. Singh; that on 8.7.90, SI Ram Rattan deposited one sealed parcel and a sample seal of casualty department of DDU Hospital with a sample seal which were entered at SI.NO. 2410 of the register; that on 4.9.90, all these articles were sent to "CFSL through Const. Azad Singh vide RC No. 64/21. The witness has also produced and proved the relevant entries in Register No. 19 at Ex.PW-6/A. It is further deposed that so long as the sample parcels remained in his custody they were not tempered with. It is pertinent to note that there is no cross-examination of this witness on behalf of the accused, though opportunity afforded.

PW-19 Const. Azad Singh, PS Tilak Nagar has, deposed to the effect that on 4.9.1990, he collected case property comprising of sealed parcels and sample seals from the Malkhana Moharrer, PS Tilak Nagar and took them to the office of CFSL vide Road Certificate No. 64/21 and details of articles were mentioned in the RC; that he deposited them in the office of CFSL on the same day and were not tempered with so long as they remained in custody of the witness. In the cross-examination, it has been stated that the witness can not tell the number of articles (Pullandas) so deposited by him; that he also does not remember the name of the clerk in the office of CFSL with whom the witness deposited the articles.

Thus, it will be seen from the evidence of PW-6 and 19 that pullandas were deposited with PW-6, Malkhana Moharrer of PS Tilak Nagar with seals intact and tire same were not tempered with so long as the same remained with PW-6. The evidence of P.W-19 suggests that he received the articles on 4.9.90 from the Malkhana Moharrar, PS Tilak Nagar and took the same to CFSL vide RC No. 64/ 21 and deposited the same with the CFSL on the same day and so long as these articles remained with the witness they were not tempered with. The CFSL report Ex.PW-22/E suggests that the articles were received in laboratory on 4.9.90 with seals intact. It may be recalled here that PW-21 deposed-in-his evidence that he performed postmortem on the dead body of deceased Govind Singh on 29.6.90 and that scissor Ex.P-1 was shown to the witness by the police for the purpose of his opinion with regard to the weapon by which the injuries found on the dead body was possible. Perusal of PW-21/A, post mortem notes suggests that one sealed packet was brought from PS Tilak Nagar by the police Constable before the witness and the same was opened and one scissor shown to the witness and after examining the scissor, the witness opined that the injuries on the body was possible by this scissor. The scissor was then resealed with the hospital seal and. handed over to the police. PW-6 has deposed in his evidence that on 29.6.90 the sealed parcel containing scissor was taken by Const Gian Chand vide RC No. 37/21 and the same was redeposited or, 30.8.1990, sealed with the seal of Dr. B. Singh. This would be for the purpose of showing scissor Ex,. P-1 to PW-21 for the purpose of his opinion regarding the weapon, by which th e injury found on the dead body was possible. Now simply because the articles seized/recovered were sent to the CFSL laboratory on 4.9.90 that by itself when the case properties were seized/recovered on 29.6-1990 would not suggest any hanky panky. There is nothing on record to suggest that the delay of two months in sending to the CFSL the case property having blood stains, would result into disintegration of the blood group thereon, otherwise ascertainable. It is suggested from the evidence that no sooner the articles were seized/recovered were deposited with PW-6 Malkhana Moharrar, PS Tilak Nagar and till 4.9.90 the articles remained with PW-6 without being tampered with; that the same were handed-over to PW-19 on 4.9.90 for being delivered to CFSL. PW-19 has also stated in his evidence that he took the articles vide RC No. 64/21 and he-deposited the same on the say day ie. on 4.9.90 without being tampered with and CFSL report EX.PW22/E suggests that all the articles were received with seals intact. Under these circumstances, we do not find any substance in the argument advanced in this regard on behalf of the appellant-convict.

15. Thus, the above discussion would reveal that appellant Shamshad Ali has inflicted scissor blows. on the chest of deceased Govind Singh around 7.45 p.m. on 28.6-90 on the foot path of Khyala Road, which incident is proved to have been witnessed by PWs-11 and 12 and the ocular version is fully corroborated by the medical evidence and also CFSL report Ex.PW-22/E, as aforestated and the prosecution has been able to bring the guilty home to the accused beyond a shadow of doubt.

16. The question that arises in the facts and circumstances of the case is whether the Trial Court is justified in convicting the appellant ' under Section 302, IPC? Relying on the decision reported in the case of Gurdip Singh V. State, 1995 (1) AD (Delhi) 41 in the alternative it has been argued by the learned Advocate-amices curiae for the appellant that if the appellant is held guilty for the murder of deceased Govind Singh, then looking to the facts and circumstances and the evidence in the case, the offence under Section 302, IPC cannot be said to have been proved and the offence would at the most fall under Section 304 Part-1, IPC. In this connection, it may be appreciated that the deceased as well as the appellant were doing the business of repairing the cycle puncture on the same foot path in the close proximity. According to PW-12, both were occasionally consuming liquor together. As disclosed from the evidence, the exchanges between the two led to the incident and the incident was the consequence of the sudden fight between the two. The weapon i.e. Ex. P-1 scissor used for cutting the rubber for puncture repairing was lying at the place of occurrence which was lifted by Shamshad Ali and blows dealt in the incident. The, evidence does not suggest that there was any ramification culminating in to the giving of scissor blows by the appellant to deceased Govind Singh, but the same was the result of the sudden fight. It cannot be said that there was any intention on the part of the appellant to commit the murder of the victim. We are in agreement with the submissions advanced in this regard on behalf of the appellant and looking to the facts and evidence in the case, we are of the view that Section 302, IPC would not be attracted but the offence would fall under Section 304 Part-1, PC and the appeal, therefore, deserves to be partly allowed . The conviction and order of sentence by the Additional Sessions judge needs to be modified and converted from Section 302, IPC to Section 304 Part-1, IPC. We, therefore, set aside the sentence imposed under Section 302, IPC and sentence the appellant-convict for the offence punishable under Section 304 Part-1, IPC.

17. It is stated at the bar by the amices curiae for the appellant that the appellant has been in custody since the date of his arrest i.e. 28-6.90 and has already undergone imprisonment for a period of more than seven years. We feel that the imprisonment already undergone by the appellant-convict, serves the ends of justice in this case.

18. In the result, the appeal is partly accepted. Conviction altered to Section 304 Part-1, EPC and sentenced to the period already undergone. The appellant is ordered to be set at liberty forthwith unless required to be detained in connection with any other case.