Titu vs State
2007 Latest Caselaw 376 Del

JUDGMENT

Aruna Suresh, J.

1. The present Appeal has been filed by Appellant Titu assailing the judgment of the Learned Additional Sessions Judge dated 21st January, 2000 convicting him under Section 302 of the Indian Penal Code, (hereinafter referred as I.P.C.) and under Section 25/27 of the Indian Arms Act and order on sentence dated 28th January, 2000 awarding him sentence of imprisonment for life and fine of Rs. 500/- and in default simple imprisonment for one month for the offence punishable under Section 302 I.P.C. and rigorous imprisonment for one year for the offence punishable under Section 25/27 of the Arms Act with fine of Rs. 500/- and in default further simple imprisonment for one month. Both the sentences were ordered to run concurrently and benefit under Section 428 Code of Criminal Procedure was also given to the Appellant.

2. Prosecution had charge sheeted the present Appellant along with Sheikh Jainal Abuddin @ Babu, Sheikh Sakil and Sheikh Illyas @ Lal under Section 302/324/34 I.P.C. and also the present Appellant Along with Sheikh Jainal under Section 25/27 of the Arms Act for having murdered Totu @ Beeru by stabbing him with a knife and causing simple injuries on the person of Rajesh.

3. Learned trial court convicted Sheikh Sakil and Sheikh Illyas @ Lal under Section 323 I.P.C. and Sheikh Jainal Abuddin @ Babu under Section 324 I.P.C. These three accused persons namely Sheikh Jainal Abuddin @ Babu, Sheikh Sakil and Sheikh Illyas @ Lal have not filed any Appeal against the order of their conviction and sentence.

4. In brief, the allegations of the prosecution against the present Appellant and his other co-accused persons are that on 3rd May 1998 at about 12.30 A.M. (night) deceased Totu @ Beeru Along with his friends PW Jai Kishan, Bobby, Pappu, Rajesh, Brijesh and Pinki were coming back on foot after attending the marriage at Jahangir Puri for going to Madipur and were talking with each other. The present Appellant Along with other co-accused persons and their associates were preparing tazias near Kushal Cinema, Jahangir Puri. They felt offended and objected to and abused Totu @ Beeru for making noise. These persons felt sorry and walked away. However, Appellant and other accused persons chased them and caught hold of deceased Totu @ Beeru and Rajesh. Deceased Totu @ Beeru and Rajesh were stabbed with knives. They were also given fist blows by all the accused persons. Totu @ Beeru died at the spot, whereas Rajesh managed to escape and went to Madipur and then to Hindu Rao Hospital.

5. During the investigation, the Appellant got recovered knife Ex.P1 (some of the witnesses have referred to it as Ex.P2) from garbage lying adjacent to the wall behind Kushal Cinema on 6th May, 1998 and he also got recovered his blood stained clothes from his house No. C-417, Jahangir Puri, Delhi. The other co-accused Sheikh Jainal Abuddin @ Babu got recovered his blood stained clothes and one dagger wrapped among the clothes. The exhibits were sent to Central Forensic Science Laboratory, Chandigarh for Chemical and serological examination, witnesses were examined and after completion of the investigation charge sheet was filed.

6. On the basis of prima facie evidence available on record, the learned Additional Sessions Judge was pleased to frame the following charges against the present Appellant and co-accused persons:

CHARGE

I, S.P. Garg, Addl. Sessions Judge, Delhi, do hereby charge you Titu s/o Yusuf, 2) Seikh Iliyas @ Lal s/o Sheikh Afjal, 3) Sheikh Jainal Abuddin @ Babu s/o Sheikh Abul, 4) Sheikh Sakil s/o Sheikh Sameer as follows:

That on the intervening night of 3/5/98 and 4/5/98 at about 12.55 am (night) at Kushal Service Road near G-Block Chowk, Jahangir Puri within the jurisdiction of PS Jahangir Puri you all in furtherance of common intention committed murder of Totu by stabbing and thereby committed an offence punishable Under Section 302/34 IPC and within the congnizance of this Court.

That on the above said date, time and place you all in furtherance of common intention voluntarily caused simple hurt on the person of Rajesh with a sharp object and thereby committed an offence punishable Under Section 324 r/w Section 34 IPC and within the cognizance of this Court.

And I hereby direct that you all the accused persons be tried by this Court for the aforesaid offences.

ASJ/Delhi

2.9.98

CHARGE

I, S.P. Garg, Addl. Sessions Judge, Delhi do hereby charge you Titu s/o Yusuf as follows:

That on 6.5.98 on the back side wall of Kushak Cinema, you got recovered one knife (churri) allegedly used unlawfully in the commission of the offence by you on the intervening night of 3/4.5.98 at about 12.55 A.M. (night) at G-Block, Chowk Jahangir Puri thereby you committed an offence punishable Under Section 25/27. Act and within the cognizance of this Court.

And I hereby direct that you be tried by this Court for the aforesaid charge.

ASJ/Delhi

2.9.98

The Appellant denied the charges and claimed trial.

7. Prosecution has examined as many as 25 witnesses. However, for the purposes of the present Appeal, the relevant witnesses are PW5 Jai Kishan, PW6 Bobby, PW8 Pappu, PW12 Rajesh, PW14 Brijesh introduced as eye witnesses as they were accompanying the deceased at the time of the incident and PW23 Dr. Sarvesh Tandon who conducted the postmortem on the dead body of the deceased.

8. Ms. Charu Verma, learned amices Curiae has submitted that all PWs that is PW5 Jai Kishan, PW6 Bobby, PW8 Pappu, PW12 Rajesh, PW14 Brijesh were introduced as eye witnesses by the prosecution but have turned hostile and have not supported the case of the prosecution on material facts and that there is no eye witness to stabbing of the deceased Totu @ Beeru including PW12 Rajesh who had fled away from the place of incident and conduct of all these prosecution witnesses including Rajesh is unnatural in not trying to save the deceased from the clutches of accused though they had number of persons chasing them. She has also pointed out that they did not report the matter to the police at the earliest. The incident had taken place at about 12.30 night and rukka was sent only at 5.30 A.M. Injured Rajesh had only simple injuries and was discharged from the hospital and even he did not care to inform the police and chose to go back home. She has also attacked the identification of the Appellant and other co-accused persons (who are not before us) by the prosecution witnesses especially when there was total darkness at the spot. According to her even the recovery of knife and bloodstained clothes of the Appellant are doubtful as no independent witness was joined for effecting the recovery and the place from where the knife Ex.P1 was recovered was a public place. It has been further argued by the learned amices Curiae that even the CFSL Report belies the testimony of the witnesses and the prosecution case.

9. The entire episode consists of two incidents. All the eye witnesses that is PW Jai Kishan, PW Bobby, PW Pappu, PW Rajesh and PW Brijesh have supported the prosecution case to the fact that when they Along with deceased Totu @ Beeru were coming back after attending the marriage, the accused persons Along with others were preparing tazia near Kushal Cinema. Those boys abused them for talking, but this matter was pacified. All these eye witnesses stated that the present Appellant Along with three other co-accused persons followed them, two of them (one of them being the Appellant) were armed with knives.

10. However, PW5 Jai Kishan, PW8 Pappu , PW14 Brijesh and Pinku (who has not been examined as a witness by the prosecution) have not supported the prosecution case regarding the second incident of stabbing on the plea that they ran away from the spot fearing their lives. PW5 Jai Kishan did state that the assailants including Appellant, whom he identified in the court, were the persons who had inflicted injuries on the person of Rajesh with knives and murdered Totu who was stabbed on his face and abdomen.

11. PW6 Bobby had supported the prosecution case regarding stabbing and killing of Totu and also stabbing of Rajesh on his chest and abdomen by the Appellant and other convicts. He also identified the Appellant but could not name or describe the weapon of offence with which Totu and Rajesh were stabbed by all the four convicts. It was only in the cross-examination that he resoled from his statement and deposed that assailants had not caused injuries to Rajesh and Totu in his presence.

12. PW8 Pappu, though deposed that Rajesh and Totu were not stabbed in his presence but, identified the Appellant and other convicts as the four boys who had chased them after the first incident of abusing.

13. PW14 Brijesh has also identified the Appellant and other convicts who had chased them. All the above said prosecution witnesses are illiterate persons.

14. PW12 Rajesh has fully supported the prosecution story. He categorically stated that after the first incident of abusing, which was cooled off, they proceeded further but were chased by the Appellant and other convicts, two of them were armed with knives. He identified Sheikh Jainal and Titu as the persons who were having knives in their hands. As per his statement Sheikh Jainal gave him knife blow on his abdomen and on the back. The present Appellant Titu inflicted knife injuries on the chest and neck and hand of Totu. The other convicts had given them fists blows. He managed to run away from the spot and went to Madi Pur and then to Hindu Rao Hospital to get medical treatment.

15. From the testimony of the witnesses as discussed above, it is proved that all the witnesses including the deceased Totu were coming at about 12.30 night of 3rd May, 1998 after attending the marriage when an altercation took place between them and the Appellant and other convicts. The witnesses and the deceased had realized their mistake and the matter was compromised. However, when they proceeded further, the convicts followed them. Convict Sheikh Jainal and Titu were armed with knives. PW injured Rajesh, PW Jai Kishan and PW Bobby had seen the Appellant stabbing Totu @ Beeru to death with knife Ex.P1 and convict Sheikh Jainal inflicting injuries on the person of PW Rajesh.

16. The eye witnesses examined by the prosecution therefore are not totally hostile. The testimony of Rajesh coupled with the testimony of Bobby and Jai kishan who have partly supported the prosecution with regard to the stabbing of deceased Totu and Rajesh, clearly bring home the guilt of the present Appellant that he had stabbed Totu to death and caused injuries to Rajesh.

17. Simply because the prosecution witnesses have not supported the case of the prosecution in full, their testimony cannot be completely discarded. Unless the credibility of the witness is completely shaken and he does not stand the test of cross examination by the party who called him in evidence, that part of his statement which in the opinion of the court is credit worthy, can be relied and acted upon, provided it finds corroboration from other evidence on the record.

18. In , Sat Paul v. Delhi Administration it was laid down by the Hon'ble Supreme Court as follows:

It emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole , with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.

19. It is a settled principal of law that while assessing and evaluating the evidence of an eye witness the court must follow two principles, namely, whether in the circumstances of the case it was possible for the eye witness to be present at the scene and whether there is anything inherently improbable or unreliable. The credibility of a witness has to be decided by referring to his evidence and find out how he has fared in cross-examination and what impression is created by his evidence taken in other context of the case and not by entering into realm of conjecture and speculation.

20. Under the circumstances of this case, the presence of eye witnesses at the scene of occurrence is fully established from their own testimony. None of the prosecution witnesses are hostile regarding their presence at the spot and also their altercation with the Appellant and other convicts near Kaushal Cinema at about 12.30 night when they were coming back after attending the marriage. These witnesses also saw the Appellant and other convicts chasing them. It is not the case of the Appellant that besides them some other persons were already present at the spot. None of the witnesses have been suggested that some other persons were also present at the time of the commission of the offence who could be responsible for fatal stabbing of Totu. Therefore, the testimony of the witnesses is fully reliable regarding the identification and presence of the Appellant at the spot and also the altercation which took place between them.

21. Learned Counsel for the Appellant has tried to convince the court that none of the witnesses had seen the Appellant / convict stabbing the deceased to death and it was dark at night therefore the witnesses could not have identified the Appellant as the person who was present at the spot at the time of the scuffle or even at the time when the incident took place. She has referred to Joseph @ Jose v. State of Kerala 2003 (2) JCC 811 in support of her submission.

22. The Appellant was duly identified by the witnesses in the Court. There is no mistake in the identification of the Appellant. At the time when scuffle took place, the Appellant Along with other convicts was present preparing Tazia near Kushal Cinema where there was sufficient light. These witnesses also saw the Appellant with other convicts following them; two of them having knives in their hands. Even though at the place of stabbing there was darkness, it can not be said that witnesses had no occasion to properly see the assailants whom they subsequently identified in the Court. The Appellant was also identified in the Test Identification Parade (TIP) held by PW16 Satender Kumar, the then Learned Metropolitan Magistrate on 12.05.1998 at Central Jail No. 5. The Appellant was correctly identified by PW Rajesh as per report Ex.PW16/D. None of the witnesses were shown the Appellant in the police station after his arrest.

23. In Joseph @ Jose v. State of Kerala (supra) as referred by the learned Counsel for the Appellant, it was on the basis of discrepancies in the statement of the sole eye witness and darkness at the time of occurrence, that the Apex Court was pleased to hold that it was unsustainable to hold the accused guilty. The facts in the present case are very different from the facts and the observations in the said case are based on facts.

24. It is natural that the public witnesses ran away from the spot fearing their lives at the hands of the assailants. Their act cannot be considered as unnatural or intriguing. PW12 Rajesh having received stab injuries naturally first thought of getting himself medical aid, and went first to Madi Pur and then to Hindu Rao hospital and then to his house. His conduct obviously indicates the depth of his trauma received on seeing the incident and on receiving stab injuries.

25. Submissions of the learned Counsel for the Appellant that none of the eye witness lodged F.I.R., which was delayed and appellant is entitled to benefit of doubt are devoid of merits. Simply because none of the prosecution witnesses informed the police immediately does not ruin the prosecution case. The incident took place at about 12.30 night, the information was received by the PCR at about 00.52 am vide DD Ex. PW4/A, PCR in turn informed the police station vide DD Ex.PW4/B at about 00.55 am, immediately thereafter the Investigating Officer swung in to action and went to the spot and then to the hospital and then back to the spot. It was only after preliminary investigation that FIR was registered at about 5.35 A.M. Under these circumstances, it cannot be said that there was any delay in reporting the matter to the police and the registration of the case. It is not necessary that one of the star witnesses has to be the complainant.

26. , Jagir Singh v. State, relied upon by the learned Counsel for the Appellant is distinguishable from the facts and circumstances of this case. In that case there was rivalry between the two groups. The eye witnesses had disclosed the name of the assailants much later and not at the earliest. Under these circumstances, the court reached the conclusion that the witnesses must not have recognized the assailants and probably they had not actually witnessed the incident. The eye witnesses had left the city leaving behind the deceased in the hospital without even making formal report. Besides, the testimony of the witnesses was contrary to the expert medical witness. In the present case the Appellant was not known to the witnesses from before. The witnesses came to know the name of the Appellant only in the court rather they had identified the assailant by pointing out towards him and not by name. None of the witnesses had left the city.

27. Knife Ex.P1 which was used by the Appellant in stabbing Totu to death was recovered at his instance from garbage lying behind the wall of the Kaushal Cinema. This recovery was effected almost after four days of the incident but the fact remains as per the testimony of the witnesses that this place is not frequently visited by public except occasionally for urination.

28. The statement of the Appellant made before the police, though is not admissible in evidence but when it leads to the recovery or discovery of a thing or a fact related to the crime, that part of the statement is admissible against him in evidence, In State of Himachal Pradesh v. Jeet Singh it was held that there is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the article was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disintered its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but, whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others. Reference in this regard may also be made to the decision of this Court in Prakash (Shri) v. The State 2007 I AD (Delhi) 226.

29. In the present case the Appellant got recovered knife Ex.P1 hidden inside the garbage lying behind the wall of Kaushal Cinema. Even if it was the place for urination purpose for frequent visitors, the persons visiting the place would not have known that the knife was hidden in the garbage. It was only the Appellant who knew that he had hidden the weapon of offence, that is knife in the garbage. Facts and circumstances of the present case squarely fall within the proposition of law as discussed above. It is not material in like circumstances that the said statement of the Appellant is inculpatory because Section 27 of the Evidence Act rendered even this inculpatory statement of the Appellant given to the police officer admissible in evidence because of the words used in section "whether it amount to confession or not".

30. Similarly, bloodstained clothes of the Appellant were recovered at his instance. All the witnesses of recovery are police witnesses and no independent public witness was joined for affecting the recovery. Be that as it may, we do not find any reason to discard or disbelieve the testimony of the police officials who are witnesses to the recovery of bloodstained clothes of the Appellant in the absence of independent public witness to the recovery.

31. PW23 Dr. Sarvesh Tandon had conducted the postmortem on the dead body of the deceased Totu on 4.5.1998 vide his postmortem Report Ex.PW23/A he found the following injuries on the person of deceased Totu.

External Injuries:

1. Incised Penetrating Wound:- 2 cm long x 1 cm wide, in left part of upper side chest, 2 cm to the left of middle, verticle, sharp edges, margins inverted, lower angle acute, upper angle acute, 9 cm down and to the right of the left nipple, in left 4th intercoastal space, disposition is above downwards.

2. Abrasion - over right check, 3 in no, in an area of 8 cm, reddish brown, fresh.

3. Abrasion - at the centre of chin, reddish brown, 3.2 cm and 2 cm size, fresh.

4. Incised penetrating wound - 2.6 cm x 0.9 cm wide in lower part of left side of back, 5 cm to the left of midline, 28 cm below superior angle of left scapula, with sharp edges, inverted margins, both angles acute, obliquely vertical, in the gap between 8th and 9th ribs.

5. Incised penetrating wound - on outer side of left thigh, 4.2 cm long and 1.6 cm wide, dried bloodstiched to it, with sharp edges and inverted margins, 9.5 cm above lateral condyle of left knee, vertical, both angles acute.

6. Incised perforating would - 3.6 cm x 0.8 cm size, in the middle of left forearm, on back side, vertical sharp edges, inverted margins, both angles acute, cutting muscles and passing in between forearm bones, communicating with injury No. 7.

7. Incised perforating would - 0.9 cm long x 0.4 cm broad, in upper 1/3 of left forearm, front aspects 3.8 cm from the centre of left elbow, sharp edges, everted margins, both angles acute, communicating with injury No. 6.

8. Incised penetrating wound - 0.9 cm x 0.4 cm, over left side of neck, obliquely vertical, both angles acutes, sharp edges inverted margins, 9 cm towards right from top of left shoulder, only 0.4 cm deep.

32. As per his opinion cause of death was shock and hemorrhage due to multiple sharp edged injuries present over the body inflicted by the other party. Injury No. 1 and 4,5,6,7 and 8 are caused by sharp edged weapon. Injury No. 1 which has injured heart lower lobe of left lung and liver is fatal in nature and sufficient to cause death in ordinary course of nature. Certain cause of death in this case is haemothorax, followed by shock and hemorrhage as enunciated above.

33. Knife Ex.P1, which was recovered at the instance of the Appellant was also shown to PW23 Dr. Sarvesh Tandon to seek his opinion if the said knife Ex.P1 could have been used by the Appellant in stabbing the deceased Totu to death. As per his opinion Ex.PW23/C, Dr. Sarvesh Tandon opined that injuries No. 1,5,6,7 and 8 are possible to be caused by the said knife or by similar such weapon. Though he could not give any specific opinion about the injury No. 4 if it was caused by dagger Ex.P2. PW23 Dr. Sarvesh Tandon has also found the corresponding cuts to the injuries on the clothes of the deceased.

34. Scientific Examination of exhibits by Central Forensic Laboratory as per the report Ex.PY indicates that human blood of Group AB was found on the shirt of the Appellant as well as on the knife Ex.P1. Similar blood group was also found on the clothes of the deceased.

35. The conduct of the Appellant also becomes relevant under Section 8 of the Evidence Act. The fact that after the murder the Appellant concealed evidence and procured the absence of persons who might have been witnesses by scaring them away, is relevant against him.

36. The entire discussion as above leads to the conclusion that the direct evidence as well as the circumstantial evidence clearly prove and are so closely connected with each other that a complete chain is formed and they lead to only one conclusion that Appellant had murdered Totu by stabbing him to death. Direct evidence of the witnesses who actually had seen the occurrence is the best proof but in circumstances like the one before us it is equally true that circumstances may often be so clearly proved, so closely connected with each other and leading to one result in conclusion that the mind is convinced as if it was proved by eye witnesses. The testimony of PW12 injured Rajesh gets full corroboration from the recovery of knife and bloodstained clothes of the Appellant at the instance of the Appellant, the postmortem report, the opinion of Dr. Sarvesh Tandon that the knife Ex.P1 could have caused injury No. 1,5,6,7 and 8. Injury No. 1 is found to be fatal in nature. Not only this, the other eye witnesses are not totally hostile, they have fully corroborated the prosecution case as regards the motive of the Appellant and another convicts in stabbing and causing hurt to Totu and Rajesh with knife, dagger and fists blows because they were offended with their talks and had objected to the same. Despite the fact that witnesses had realised their mistake, the Appellant and other convicts followed them, they caught hold of Totu and Rajesh. The Appellant murdered Totu with knife blows and gave injuries to Rajesh. The learned trial court has therefore rightly assessed the entire evidence of the prosecution in coming to the conclusion that Appellant was guilty of having committed murder of Totu.

37. The learned Counsel for the Appellant has made half hearted attempt to say that it was a case of sudden fight and therefore the Appellant should be given benefit of Exception 4 to Section 300 I.P.C. as the present fight was without any pre-meditation, motive or intention to kill the deceased. She has referred to Prakash Chand v. State of H.P. . However, these submissions are devoid of any merit. As discussed above, the altercation between the parties had cooled off when the witnesses and the deceased realized their mistake and they did not stop there and moved forward to go to their respective houses. Despite this the Appellant and other convicts followed them with knives and stabbed the deceased and PW Rajesh was injured. The injuries inflicted are not a direct consequence of the alleged provocation. The offenders that is Appellant did take undue advantage and acted in a cruel or unusual manner. The parties had cooled down after the verbal altercation, there was no combat between the two parties which could be considered as provocation to the Appellant to take law into his own hands and cause death of Totu. Prakash Chand's case (supra), therefore, is of no help to the Appellant.

38. Hence we find no merits in the present Appeal and the same is accordingly dismissed.

39. In view of the efforts put in by learned amices Curiae, we direct the Delhi Legal Services Authority to pay her a fee of Rs. 5500/- within six weeks from today.