Mohd. Akhtar vs State
2007 Latest Caselaw 942 Del

JUDGMENT

Mukul Mudgal, J.

1. This is an appeal filed by the appellant challenging the judgment dated 27th September, 2004 delivered by the learned Additional Sessions Judge in SC No. 12/2001 convicting the accused/appellant under Section 302 IPC and sentencing him to life imprisonment. The case commenced on an FIR No. 574/2000 registered in the Police Station Malviya Nagar, New Delhi, under Section 302 of Indian Penal Code (hereinafter referred to as "IPC").

2. The facts of the case as alleged by the prosecution are as follows : The accused/appellant (Md. Akhtar) and the deceased (Hasmat Ali) used to sleep in the same room in the premises of the industrial unit owned by Sudhir Kumar (PW 1) where they worked. At about 3.15 in the morning on the 9th of July, 2000 the accused is alleged to have stabbed the deceased repeatedly with a pair of scissors culminating in his death. In the meanwhile, alerted by the commotion, a large crowd of fellow workers of the accused and the deceased gathered outside the room. Since, the accused was scared of getting beaten up, he refused to open the door until the police arrived. The accused was questioned after the police arrived on the scene and identified themselves and he opened the door and the dead body and the blood-stained scissors were recovered from the spot.

3. The appellant/accused was represented through an amices Curiae namely Mr. Rajeev Nasim in the trial court. The amices Curiae during the course of the hearing stopped appearing in the trial midway and thereafter another amices Curiae was appointed namely Mr. R.C. Tiwari. The trial court found the offence under Section 302 IPC to have been made out and accordingly directed the conviction of the accused for Life Imprisonment and to fine of Rs. 1000/-, and in default to undergo further Rigorous Imprisonment for a period of three months.

4. Mr. Raina appearing on behalf of the Legal Aid as amices Curiae has challenged the impugned judgment on four principal pleas:

(a)The trial court has written the judgment more in the nature of an order dealing with a civil revision petition convicting the petitioner without discussing any witnesses properly nor has addressed circumstances which enured to the benefit of the appellant.

5. The learned amices Curiae further submitted that there were following glaring inconsistencies in the prosecution case:

(a) Weapon of offence namely scissors was sent for identifying the finger prints to the bureau and finger prints were not found on the scissors.

(b) While several objects which were having blood stains were sent to the CFSL, but the weapon used for the murder, i.e., scissors was not sent to CFSL.

(c) The accused had also raised the plea of insanity in his statement recorded under Section 313 Cr.P.C. This fact was not adverted to by the trial court.

6. We have gone through the judgment of the trial court. The criticism by the learned amices Curiae about the nature of the order rather than the judgment of the learned Sessions Judge is fully justified as the trial court in its brief order convicted the accused and has merely listed 3-4 incriminating circumstances without discussing the evidence in detail. In a case under Section 302 IPC the evidence of prosecution witnesses is required to be discussed and its veracity or lack of it recorded. While there is no merit in prolixity, nevertheless, at least a summary of what each witness deposed must be noted. However, in case more than one witness has given a similar testimony then each deposition need not be discussed and only the similarity is required to be found. In the present case during the trial, court has not discussed and analyzed the statements of the witnesses in a proper and exhaustive manner and convicted the accused by a terse order styled as a judgment where the testimony of the witnesses has been noticed in four paragraphs only. We are, therefore, of the view that such judgments ought not to be written in a murder trial. Such a practice could lead to a gross miscarriage of justice particularly since in a given case if detailed perusal of the evidence indicates acquittal and a cursory perusal leads to conviction. This might happen because of mere passing reference to the evidence in the case. We hope and trust and direct that such brevity, which otherwise would be commendable in an appropriate case, would not be resorted to while dealing with the cases being tried under Section 302 IPC.

7. Consequently, we have ourselves gone through the evidence of the prosecution witnesses and the record. The extremely significant testimony of PW 1, Sudhir Kumar who is also the owner of the factory where the incident took place is as follows:

Around 3.30 in the morning, I received a call whereupon I rushed to the room where the incident had taken place. There, I saw that a large crowd had collected while the accused was present inside the room holding the scissors in his hand. He was simply refusing to open the door as he wanted the police to be called. This was primarily due to the fact that he was scared that he might be beaten up. He announced that he had committed the murder of Asmat Ali. After the police had arrived, he still refused to open the door. He wanted the police to show him their arms before they came inside. After showing him their arms, the police entered the room. All those present at the spot saw that the dead body was lying on the floor. The blood-stained rajaai, gadda, chaddar, shirt and tehmat apart from the scissors were also taken into possession. The dead body of the deceased was taken to the AIIMS mortuary for examination. I can also state that there had been no previous enmity between the accused and the deceased and also that the accused had been working in the factory for about a month before the incident took place. However, I cannot say anything about the mental condition of the accused.

8. The testimony of PW 1 has not been shaken in the cross examination. The testimony was also corroborated in material particulars by the other workers of the factory namely PW 6 Mohd. Jiyauddin and PW 10 Abdul Subhan. The testimony of PW 6 clearly corroborates the veracity of the evidence of PW 1. PWs 6 and PW 10 are Mohd. Jiauddin and Abdul Subhan respectively. They testified in Court that they were sleeping on the top floor of the factory and the accused and Hasmat Ali were sleeping in a room on the ground floor. They came down after having heard cries. However, they found that the door of the room of the accused was closed from inside. They also heard shouts coming from the inside of the same room. When they tried to ask the accused what the problem was, he refused to open the door. The accused told them that he had killed Hashmat Ali. When the workers of the factory peeped inside the room they saw that the accused was holding the scissors in his hand. At this, they called the owner of the factory, Sudhir Kumar who reached the spot within 10-15 minutes. The accused flatly refused to open the door until the police arrived. The door was opened only after the police did arrive at the spot. Both these witnesses, PW 6 and PW 10 also asserted that they reached the spot immediately after the incident took place. They also asserted that they heard the shouts of the deceased that attracted them to the spot.

9. The prosecution case is also supported by the evidence of the following other witnesses:

(i) PW 5, Bunde Khan (brother of the deceased) deposed to having identified the dead body of the accused. His statement was recorded there and then.

(ii) PW 22, Sub-Inspector Gurdev Singh is the Investigating Officer who proceeded to the spot of the incident. He deposed to having seen the dead body of the accused. He had also found a pair of scissors lying near the door where the body was lying. In all other respects, his testimony was similar to that of PW 1. The Investigating Officer (PW-11, Sub-Inspector Madan Lal) also deposed to having prepared the site plan there. Photographs were also taken of the area where the incident had taken place according to the testimony of PW -12, Constable Yogender.

(iii) According to PW -13, Sh. A.K. Srivastava who was the Senior Scientific Officer of the FSL, the seven sealed parcels were received by him. Blood was detected on all exhibits apart from the scissors that had not been sent to him for examination. This also corroborates the prosecution case as the quilt, pillow and bed sheet and underwear were deposed to have blood on them. Dr. Sudhir Gupta (Asst. Professor, AIIMS)-PW 18 who examined the body also deposed that death had been caused due to excessive bleeding as the accused had been stabbed with a sharp-edged weapon. However, Dr. Sanjiv Lalwani, PW 20, said in his testimony that there had been an injury on the right hand of the accused. The circumstantial evidence as discussed above clearly indicates that the prosecution case is corroborated in material particulars. The presence of the accused with the body along with the blood stained scissors from a room locked from inside where only the accused and the deceased were sleeping has thus been clearly established justifying his conviction under Section 302 IPC. The plea of insanity cannot also be entertained as the conduct of the appellant informing his landlord Sudhir Kumar that he would not open the door as he was afraid that co-workers could have beaten him up in case he opened the door. This conduct of the accused clearly shows that the appellant was fully conscious of the consequences of his action and cannot therefore rely on the plea of insanity. Furthermore, no evidence in defense of treatment under AIIMS for a psychiatric disorder has been led on behalf of the appellant.

10. In so far as the second plea relating to the lack of finger prints on the scissors is concerned, Mr. Sharma, the learned Additional Public Prosecutor, appearing for the State, has submitted that in an offence involving 11-12 wounds, it is possible that the physical action of stabbing may have obliterated the finger prints, specially when the murder weapon used was a metallic instrument, i.e., scissors in the present case. He further submitted that no cross examination was done on this score. The evidence of PW 3, Malkhana, Muharar, clearly shows that the scissors were sent for CFSL for blood detection and no explanation is forthcoming as to what happened the CFSL report, if any. Mr. Sharma in our view has also pointed out rightly that there is no cross examination in respect of this and accordingly this plea cannot be raised at the stage of appeal. The conduct of the case by the amices Curiae in not asking any question in respect of lack of finger prints and the weapon of offence not being sent to the CFSL for blood detection demonstrates that more attention ought to have been paid to the case of the accused. This does show that the indigent accused had not received appropriate and adequate legal assistance at the stage of trial. Consequently, we have ourselves gone through the entire trial record and the evidence, and we are satisfied that while the conclusion of the trial court was correct but not the cursory manner in which the evidence was discussed and the judgment written. Accordingly, there is no ground to interfere with the impugned judgment dated 27th September, 2004, the appeal is dismissed and the impugned judgment is affirmed.

11. While dismissing the appeal we record our appreciation of the capable assistance rendered by Mr. V.K. Raina, appointed as amices Curiae by DLSA in this Court in direct contrast to the nature of Legal aid rendered at the trial stage.