Ahmed Ali Sardar vs State
2009 Latest Caselaw 1151 Del

*                 IN THE HIGH COURT OF DELHI



%                         Judgment reserved on : 20.03.2009
                          Judgment delivered on: 06.04.2009


+                             CRL.A. No.726/2005

       AHMED ALI SARDAR                        ...Appellant
                 Through :    Ms.Purnima Sethi, Advocate

                              versus

       STATE                             ...Respondent
                  Through :   Ms.Richa Kapoor, Advocate.


CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE J.R. MIDHA

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?        Yes

3. Whether judgment should be reported in Digest?               Yes


: PRADEEP NANDRAJOG, J.

1. The police swung into action on 15.05.2002 at 2104 hours

when an unknown person informed SI Charat Singh PW-14, that

a person named Vicky has been stabbed at old Chandrawal;

that public persons had apprehended the offender and had left

him at Police Post Majnu Ka Tila and that the injured has been

removed to the hospital. Const. Chanderpal PW-2, recorded DD

No.33A Ex.PW-2/A, noting the said information.

2. ASI Rajeshwar PW-12, accompanied with SI Charat Singh

PW-14 and Const. Prem PW-8, reached the spot.

Simultaneously, another police officer named SI Sanjeev Kumar

PW-17, also reached the spot. What happened thereafter is

recorded in the endorsement (tehrir) made by SI Saneev Kumar

PW-17, which reads as under:-

"Respected Duty Officer Police Station Civil Lines it is humbly submitted that today at about 9.05 P.M. on receipt of a wireless information about a incident of stabbing I reached the place of occurrence i.e. Kale Khan Chowk, Majnu Ka Tila, where one Sugreev Yadav s/o Late Sh. Raja Ram Yadav was present who produced the accused Ahmed Ali Sardar s/o Surat Ali Sardar and handed over a spring actuated blood- stained knife in an open condition to me. The aforesaid spring actuated blood stained knife, in that very condition, was taken into police possession by means of a memo and aforesaid Sugreev got recorded his statement which was read over and explained to him and who having admitted the same to be correct put his signatures in Hindi which I attest. Th contents of the aforesaid statement, circumstances prevailing at the spot and the recovered knife reveal the commission of an offence punishable under Section 307 IPC and Sections 27/54/59 IPC of the Arms Act. Hence, this writing is being sent through Const. Prem Ram No.2251/N to the Police Station for registration of a case. Date and hour of occurrence : 15.05.02 at about 8.30 P.M.

Place of occurrence : Kale Khan Chowk near truck parking Majnu ka Tilla

Date and hour of despatch of writing : 15.05.02 at 9.50 P.M." (Translated Version)

3. The endorsement afore-noted on basis whereof the FIR

was registered was preceded by SI Sanjeev Kumar PW-17,

recording the statement Ex.PW-3/A of Sugreev Kumar Yadav,

the gist whereof is that he earns his livelihood by working as a

rickshaw puller in Majnu Ka Tilla area. That on 15.05.2002 at

around 8.30 P.M. when he was drinking tea at the tea shop of

Shashi Yadav situated at Kale Khan Chowk he saw that an

altercation had ensued between the deceased and the accused.

That thereafter the accused had inflicted a knife blow in the

middle of the chest of the deceased. That he had apprehended

the accused with the help of some persons who had gathered

and had brought the accused to the spot. That the deceased

had been removed to the hospital in the TSR of Sudeshwar.

That Shashi Yadav had also witnessed the said incident. That

he and Shashi Yadav had handed over possession of the blood

stained knife possessed by the accused to the police. That the

deceased was known to him prior to the incident as he also

used to ply rickshaw in Majnu Ka Tilla area.

4. That the statement Ex.PW-3/A on which the endorsement

was made by SI Sanjiv Kumar PW-17, was forwarded at 9.50

P.M. through Const. Prem Ram PW-8, for registration of an FIR.

Const. Prem Ram handed over the endorsement to HC Kashi

Ram PW-5, who registered the FIR bearing No.182/02 Ex.PW-

5/A, at 10.05 P.M. on 10.11.97.

5. As recorded in the endorsement, the appellant was

apprehended at the spot. In fact, if the endorsement is correct,

the appellant was caught red-handed. As recorded in the

endorsement, a blood stained knife was recovered from the

appellant which was seized vide seizure memo Ex.PW-3/B.

Blood stained earth and sample control earth were seized vide

memos Ex.PW-3/D and Ex.PW-3/E respectively. SI Sanjeev

Kumar prepared the sketch Ex.PW-3/C of the knife.

6. In the meantime, the deceased was removed to Trauma

Centre where he was declared brought dead as noted in the

MLC Ex.PW-1/A. SI Sanjiv Kumar PW-17, proceeded to the

hospital where he collected the MLC Ex.PW-1/A and clothes of

the deceased and seized the clothes vide memo Ex.PW-17/B.

7. Since the deceased was declared brought dead, his body

was sent to the mortuary, where Dr.Sarvesh Tandon PW-10,

conducted the post-mortem at 3.00 P.M. on 20.05.2002 and

gave his report Ex.PW-10/A which records that an incised

penetrating wound of size 3 cm X 1.3 cm was found in the

middle front of the chest, just by the right side of midline,

transversely placed before 4th and 5th ribs, in the line joining the

two nipples; that the depth of the wound was 14.7 cm; that the

said injury was ante-mortem in nature and was caused by a

sharp edged weapon which was having sharp edges at both

sides; that the said injury was sufficient to cause death in the

ordinary course of nature.

8. After conducting the post-mortem, the doctor handed

over the blood sample of the deceased on a gauze which was

seized vide memo Ex.PW-13/B.

9. The clothes and blood sample of the deceased; the knife

recovered from the possession of the appellant and the blood

stained earth and sample earth control seized from the spot

were sent to a serologist for a serological test. Vide FSL reports

dated 19.08.02 it was opined that the blood group of the

deceased was 'A'; that human blood of group „A‟ was found on

the clothes of the deceased; that human blood was detected on

the knife recovered from the possession of the appellant and

blood stained earth seized from the spot, group whereof could

not be determined.

10. Armed with the aforesaid material, a challan was filed

accusing the appellant of having murdered the deceased

Manhaiya @ Vicky. Charges were framed against the appellant

for having committed offences punishable under Section 302

IPC and Sections 27/54/59 of the Arms Act.

11. At the trial, apart from examining the police officers who

were associated with the investigation and the doctors who had

conducted post-mortem and prepared MLC of the deceased,

Sugreev Kumar Yadav, Shashi Yadav and one Sudeshwar Dass

were examined as PW-3, PW-4 and PW-15 respectively.

12. Sugreev Kumar Yadav PW-3, deposed in harmony with his

earlier statement Ex.PW-3/A recorded by the police.

13. Shashi Yadav PW-4, deposed that on 15.05.2002 at about

8.30 P.M. he was present in his tea shop situated at Kale Khan

Chowk when he saw that the appellant started quarreling with

the deceased who was standing near his tea shop. That

thereafter the appellant gave a knife blow on the chest of the

deceased and ran away. That he along with Sugreev who was

drinking tea at his shop at that time and some other persons

from the public apprehended the appellant and brought him to

the spot. That the deceased was removed to the hospital in a

TSR.

14. Sudeshwar Dass PW-15, deposed that he had removed

the deceased to the hospital in his TSR and had got him

admitted therein on the date of the incident.

15. The appellant in his examination under Section 313

denied everything and pleaded false implication.

16. The appellant did not lead any evidence in his defence.

17. Holding that the evidence of Sugreev Kumar PW-3 and

Shashi Yadav PW-4, is fully corroborated by the other evidence

led by the prosecution, vide judgment 21.08.2004 the learned

Trial Judge has convicted the appellant for committing offence

punishable under Section 302 IPC and Sections 27/54/59 of the

Arms Act.

18. In support of the appeal, the counsel for the appellant

advanced under-noted 7 submissions:-

A. The first submission advanced by the counsel was

predicated upon the contents of the DD Entry Ex.PW-2/A. The

counsel argued that the said DD Entry records that the

appellant was brought to Police Post Majnu Ka Tilla by public

persons after apprehending him which recording is contrary to

the case of the prosecution that the appellant was

apprehended by the police at the spot.

B. The second submission advanced was that the recording

contained in the MLC Ex.PW-1/A of the deceased that an

unidentified person has been brought to the hospital and the

testimony of Sudeshwar Dass PW-15, who had removed the

deceased to the hospital that he did not know the name of the

deceased is contrary to the testimony of Sugreev Yadav PW-3,

who had deposed that the deceased was removed to the

hospital by the persons who knew the deceased.

C. The third submission advanced by the counsel was that

there are infirmities in the evidence of Shashi Yadav PW-4,

which makes his presence at the spot doubtful. The first

infirmity pointed out was that Shashi Yadav PW-4, had deposed

that he along with Sugreev and other persons from the public

had apprehended the appellant whereas Sugreev Kumar PW-3,

had not deposed a word about the role of Shashi Yadav in

apprehending the appellant. The second infirmity pointed out

was that there are contradictions in the testimony of Shashi

Yadav PW-4, pertaining to the time period of his running the tea

shop at the spot inasmuch as he firstly deposed that he is

running the tea shop at the spot since last 2-3 years; thereafter

he said that he was running the shop for the last 3-4 years and

lastly said that he was running the shop for the last 15-20 days.

The third infirmity pointed was that no other shop is shown in

the site plan to scale Ex.PW-9/A whereas Shashi Yadav PW-4,

had deposed that some other shops were also situated in the

vicinity of his shop.

D. The fourth submission advanced by the counsel was that

Shashi Yadav PW-4, had deposed that he has no knowledge

whether the other shop owners were present around the spot

at the time of the incident as he was busy in making tea at his

shop. The counsel argued that the aforesaid testimony of

Shashi Yadav brings out that Shashi Yadav was absorbed in his

work and was oblivious of his surroundings at the time of the

incident. The counsel further argued that this selectiveness on

the part of Shashi Yadav of having witnessed the incident but

being completely unmindful of the other surroundings at the

same time due to his being absorbed in work raises a serious

doubt on the truthfulness of his version that he had witnessed

the incident.

E. The fifth submission advanced by the counsel was that

the alleged recovery of the knife from the possession of the

appellant is tainted. The counsel pointed out that Shashi Yadav

PW-4, had deposed that the knife recovered from the

possession of the appellant was not stained with blood at the

time when the sketch of said knife was drawn by the police

whereas seizure memo Ex.PW-3/B of the said knife records that

the knife was stained with blood at that time. The counsel

further pointed out that SI Sanjiv Kumar PW-17, had deposed

that he had snatched the knife from the hands of the appellant

at the time of his arrest whereas Sugreev Kumar PW-3 and

Shashi Yadav PW-4, had deposed that they had handed over

the knife possessed by the appellant to the police.

F. The sixth submission advanced was that there was a

delay of two months in sending the case property to the FSL

which is fatal to the case of the prosecution.

G. The last submission advanced was that evidence on

record establishes that an altercation had ensued between the

appellant and the deceased and during the same the appellant

had inflicted only one injury on the person of the deceased and

hence the appellant can only be attributed with an intention to

cause an injury which was likely to cause death and not with an

intention to cause the death of the deceased or an injury

sufficient in the ordinary course of nature to cause death.

Hence, counsel urged that at best it was a case of culpable

homicide not amounting to murder. Alternatively, counsel

urged that from the testimony of PW-3 and even his statement

Ex.PW-3/A it was apparent that the act of stabbing was

preceded by an altercation between the appellant and the

deceased and hence it was a case of causing an injury upon a

sudden quarrel.

19. Before dealing with the submissions advanced by the

learned counsel, the salient features of the case set up by the

prosecution against the appellant may be briefly noted. The

two eye-witnesses namely, Sugreev Kumar PW-3 and Shashi

Yadav PW-4, have supported each other in material particulars.

The statement Ex.PW-3/A of Sugreev Kumar wherein it was

stated that the appellant had inflicted a knife blow on the chest

of the deceased which statement was recorded prior in time to

the conduct of post-mortem of the deceased stands fully

corroborated by the post-mortem report Ex.PW-10/A which

records that an incised wound was noted on the chest of the

deceased. The evidence of Sugreev Kumar PW-3 and Shashi

Yadav PW-4, that the appellant had inflicted a knife blow on the

person of the deceased is corroborated by the FSL reports

which records that human blood was detected on the knife

which was recovered from the possession of the appellant.

20. With regard to the first submission advanced by the

counsel, it is relevant to note that the DD Entry Ex.PW-2/A was

recorded on the basis of the information provided by a public

person. It is quite possible that the said person assumed that

the appellant would be taken to police post Majnu Ka Tila as the

said police post was very near to the spot or that he might

have heard somebody saying that the appellant would be taken

to the said police post. Be that as it may, nothing much turns

on the said recording contained in the DD Entry Ex.PW-2/A in

view of categorical evidence of Sugreev Kumar PW-3, Shashi

Yadav PW-4 and the police officers who were associated with

the investigation at the spot on the date of the incident that the

appellant was apprehended by the public at the spot and

handed over to the police at the spot.

21. Pertaining to the second contention urged, as noted

above, it relates to the MLC Ex.PW-1/A of the deceased wherein

it is recorded that an unidentified has been brought to the

hospital. Submission made is that Sudeshwar Dass PW-15 got

the deceased admitted at the hospital and Sugreev Kumar PW-

3 had deposed that a person known to the deceased had

removed him to the hospital. The submission made is worthy

of hardly any consideration. Sugreev Kumar PW-3, who was

preoccupied with holding the appellant till the police arrived

may not have paid attention to as to who removed the injured

to the hospital and presumed that somebody known took him

to the hospital. Now, Sudeshwar Dass PW-15 never claimed to

have known the deceased.

22. The third submission pertaining to the infirmities in the

deposition of Shashi Yadav PW-4, it is relevant to note the

following observations made by Supreme Court in the decision

reported as Bharwada Bhoginbai Hirjibhai v State of Gujarat AIR

1983 SC 753:-

"Over much importance cannot be attached to minor discrepancies. The reasons are obvious:

(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen:

(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable

estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person,

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.

Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses." (Emphasis supplied)

23. That Sugreev Kumar PW-3, did not depose a word about

role of Shashi Yadav PW-4, in apprehending the appellant is not

of much relevance as it does not go to the root of the matter.

We find no infirmity at all the possibility of Sugreev Kumar PW-

3, who was busy chasing the appellant, of not seeing Shashi

Yadav who was also chasing the appellant due to his

preoccupation with chase of the appellant or because of the

presence of lot of people at that time cannot be ruled out. In

any case, it is a trivial fact. Similarly, the second infirmity

pertaining to the duration for which Shashi Yadav was running

the shop is irrelevant. The third alleged infirmity in the

evidence of Shashi Yadav PW-4, vis-a-vis the site plan Ex.PW-

9/A is not an infirmity at all. The site plan only indicates the

broad contours of the place of the occurrence. The fact that no

other shop is shown in the site plan Ex.PW-9/A does not lead to

a conclusion that Shashi Yadav PW-4 had deposed falsely that

some other shops were situated in the vicinity of his shop.

Relevant would it be to note that neither the presence of an

eye-witness or the doing of an act at or outside any other shop

has been alleged by the prosecution.

24. Nothing much turns on the fourth submission advanced

by the counsel that Shashi Yadav PW-4, could not have

witnessed the incident as he was absorbed in his work at the

time of the incident. The case of the prosecution cannot be

disbelieved by the courts on the mere theories put forward by

the defence. Shashi Yadav PW-4, was cross-examined at length

but nothing tangible could be extracted there from to discredit

his testimony. Even otherwise, it is entirely possible that Shashi

Yadav PW-4, while making tea caught a glimpse of the quarrel

which had ensued between the deceased and the appellant due

to which his attention got riveted to them and he witnessed the

incident.

25. With regard to the submission pertaining to recovery of

the knife and the dispute that whereas Shashi Yadav PW-4

deposed that the knife recovered from the appellant was not

stained with blood when the sketch thereof was drawn and the

fact that the seizure memo records that the knife was stained

with blood, is again of no consequence. It is relevant to note

that Shashi Yadav deposed on 9.10.2003 i.e. after about one

year and five months of the incident and suffered from a

memory lapse. The controversy pertaining to the fact that

Sanjeev Kumar PW-17 deposed that he snatched the knife from

the hand of the appellant whereas Sugreev Kumar PW-3 and

Shashi Yadav PW-4 deposed that they had disarmed the

appellant and had handed over the knife to the police, is again

of no consequence. It is not unknown that witnesses tend to

overstate facts and assign a larger role to them than what they

actually played. Unless the exaggerated fact deposed is a lie of

a serious nature, it has to be ignored as a mere embellishment.

26. That the case property was sent to the FSL very late, is

not always fatal to a case. In a given case it may be fatal and

in a given case it may not be fatal. It is settled law that when

the direct testimony of the eye-witnesses inspires confidence

and fully establishes the prosecution version, failure or

omission or negligence on part of the Investigating Officer

cannot affect the credibility of the prosecution version. (See the

decision of Supreme Court reported as Ram Bihari Yadav v

State of Bihar & Ors AIR 1988 SC 1850).

27. The last submission made that, at best the offence made

out is of culpable homicide not amounting to murder needs to

be dealt with before penning off.

28. The testimony of PW-3 establishes the fact that the

appellant did not act with pre-meditation and no doubt was

armed with a knife, used the same when a quarrel ensued

between him and the deceased. There is no evidence as to

who commenced the quarrel. There is no evidence as to what

the quarrel was. There is no evidence of any past enmity. In

the absence of the evidence as to any past enmity, who

commenced the quarrel and what the quarrel was, the benefit

has to go in favour of the accused and it must be held that the

appellant acted upon a sudden quarrel. Exception IV to Section

300 IPC is clearly attracted. Relevant would it be to note that

the appellant has not acted in a cruel or an unusual manner.

29. The appeal is partially allowed. The conviction of

the appellant for the offence of murder is set aside. The

appellant is convicted for the offence punishable under Section

304 Part I. The appellant is sentenced to undergo rigorous

imprisonment for 10 years and to pay a fine of Rs.2,000/-; in

default of payment of fine to under simple imprisonment for

two months.

30. Copy of this order be sent to Superintendent,

Central Jail, Tihar for compliance.

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J.

April 06, 2009 Dharmender