Delhi High Court
Ishtkar & Anr. vs State Of Delhi on 13 April, 2009
Author: G. S. Sistani
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on 13th April, 2009.
+ + CRL. Appeal No.152/2004
# ISHTKAR & ANR ..... Appellant
Through : Mr. K.B. Andley, Sr. Adv. with
Mr. M.L. Yadav and Mr. C.L. Dhawan,
Advocate for the petitioners
Versus
STATE OF DELHI .... Respondents
Through : Mr. Sunil Sharma, APP for the State.
CORAM:
HON'BLE MR. JUSTICE B.N. CHATURVEDI
HON'BLE MR. JUSTICE G.S.SISTANI
1. Whether reporters of local papers may be allowed to
see the Judgment ? YES
2. To be referred to the Reporter or not? YES
3. Whether the Judgment should be reported in the
Digest? YES
G.S. SISTANI, J.
1. This appeal has been filed against the Judgment dated
24.01.2004 and the Order on Sentence dated 29.01.2004,
passed by the learned Additional Sessions Judge, Delhi in the
Session's case No. 74/2000, FIR No. 103/2000 of Police Station
Moti Nagar. The Trial Court had held Ishtkhar, s/o Mohd. Hussain
and Miraj @ Mehraj s/o Mohd. Daud, guilty of the offence under
section 302/34 of the Indian Penal Code, 1860 (hereinafter, IPC)
and were sentenced to Rigorous Imprisonment (hereinafter, RI)
for life and a fine of Rs. 10,000/- under section 302/34 of the IPC.
In default of the payment of fine, the appellants were directed to
further undergo RI for a period of one (1) year. The appellants
were also sentenced to RI for a period of five years and a fine of
Rs. 5,000/- under sections 27/54/59 of the Arms Act. In default
whereof the appellants were to undergo a further RI for a period
of six months. Appellant Miraj was further sentenced to RI for a
period of three years and fine of Rs. 5,000/- under section 25 of
the Arms Act. In default whereof, the appellant was directed to
undergo RI for a further period of six months. All the sentences
were to run concurrently and the period already undergone by
the appellants during the trial was to be set off under section
428 of the Code of Criminal Procedure, 1973 (hereinafter, CrPC).
2. The brief facts of the case as noticed by the Learned Trial Court
are. On 08.03.2000 at about 8:00 PM, opposite Jhuggi No. 482,
Rakhi Market under Zakhira Flyover and within the jurisdiction of
PS Moti Nagar, the appellants, namely, Ishtkhar; and Miraj @
Mehraj in furtherance of their common intention alongwith their
associates namely Mohd. Ladoo @ Nishad; Chottu @ Sadar E
Alam; and Irfan (since Proclaimed Offenders) committed murder
of Rattan Lal s/o Sh. Ram Lakhan by causing injuries on his
person with knives. On the statement of Smt. Munni Devi
(mother of the deceased) a case was registered under section
302/34 of the IPC.
3. The case was investigated by Gurdip Singh, Inspector. During
investigation the IO got the scene of the crime photographed
and a site plan was prepared at the instance of Smt. Meena Devi.
One broken watch, blood stained earth, earth control, a chappal,
pieces of blood stained bench were also taken into possession by
the IO. The appellants Ishtkhar and Miraj were apprehended on
15.03.2000, who made disclosure statements regarding the
commission of crime. Appellant Miraj also got recovered one
knife from a Railway Cabin. Since the remaining accused persons
were untraceable, Ishtkhar; and Miraj @ Mehraj were tried for the
alleged commission of the killing of Rattan Lal and were found
guilty of the said offence.
4. The prosecution in support of its case examined 23 witnesses.
Three witnesses were examined by the defence. It would be
useful to discuss the evidence of some of the material witnesses
in detail.
5. PW 2, Jagjit Singh, Inspector has deposed that on 08.03.2000 on
receipt of D.D. No.21, he alongwith SI Ram Avtar reached Jeewan
Mala Hospital, New Rohtak Road, where Sunder (brother) and
Ram Lakhan (father) of the deceased told him that the incident
had taken place in the area of P.S. Moti Nagar and accordingly
District Control Room, North was informed. Thereafter, SHO of
Police Station Moti Nagar along with the staff reached the
hospital and then all of them went to the spot of the incident at
Rakhi Market, Zakhira Flyover.
6. PW 4, Smt. Meena Devi (mother of the deceased) has deposed
that she had been running a dhaba by the name of "Meena" at
jhuggi No. 482, Rakhi Market under Zakhira Bridge, Delhi. On
08.03.2000 at about 8.00 p.m., she along with her husband and
her son Rattan Lal were present at the dhaba, when appellants
Ishtkhar; Miraj; Mohd. Ladoo; Chottu; and Irfan arrived at the
dhaba. PW 4 deposed that at that time her son, Rattan Lal was
standing at the shop of Bhola, who sells Masale opposite to her
Dhaba. All the accused persons were in an angry mood and
asked about the whereabouts of her elder son, Sunder Lal. And
to which Meena Devi responded that Sunder Lal had gone to
attend a marriage party. Thereafter they asked about her
younger son, Rattan Lal and after that the accused persons and
their associates started stabbing Rattan Lal with knives. She
raised an alarm and after which all the assailants ran away
towards Inderlok through the jhuggis.
7. Thereafter PW-4 deposed that she; her husband; Abdul Rubb;
Bhola masale wala and some others took Rattan Lal to Jiwan
Hospital in a tempo. After about half an hour, Rattan Lal was
declared dead. PW 4 deposed that the Police met her in the
hospital and where her statement Ex.PW3/B was recorded.
Thereafter she came back to the spot of the crime along with the
police and from where the police took into possession sample-
blood, earth control, a blood stained chappal, pieces of wood of
the bench that were stained with blood and one watch. PW 4
further deposed that she knew the assailants prior to the
incident and that on 15.03.2000, the police had brought the two
appellants, Ishtkhar and Miraj at her dhabha and where she
identified them. Further that on 03.05.2000, at her instance/
pointing out the draftsman took rough notes and the
measurement of the place of occurrence.
8. In her cross-examination by the learned counsel for the
appellants, PW 4 deposed that three days prior to the incident,
she had lodged a report with the police against the assailants as
there had been a quarrel between her son Rattan Lal (deceased)
and the assailants. The police officials did not write the
complaint but had met the assailants and reprimanded them,
however no further action was taken in this regard. This witness
also deposed that it was correct that there were three shops of
doctors if one moves from her dhaba towards the small railway
line. PW 4 further deposed that the shop of Abdul Rubb is
opposite to her hotel at a distance of two-three hands. The shop
of Munna meat wala was at a distance of about 15-20 yards from
her hotel. The shop of Munna Meetwala was closed on that day.
And deposed that it was correct to say that there was a shop of a
subziwala, Alludin in between her dhaba and Munna meatwala
and that the shop of Alludin subziwala was open at the time of
the incident. However PW 4 could not tell whether Alludin had
witnessed the incident or not. PW 4 further deposed that it was
correct to say that doctor is available in the area to any person
who is injured and for giving treatment/ medical facilities/ first
aid facilities of glucose drip are also available with the doctors in
that area. PW-4, further deposed that she did not receive any
injuries on 08.03.2000. She had also tried to intervene and threw
a stone at the assailants, whereafter they fled away as they were
hit by the stone. That when she along with her husband picked
up their son, then their clothes were smeared with blood, but the
police did not ask them to deposit the clothes. She did not take
her injured son to the doctor in the locality as he was in a critical
condition. PW-4 stated that it was wrong to suggest that her son
Sunder Lal had a meat shop in the market or that he was in
possession of any cutting instruments.
9. PW 4 further deposed in her cross-examination that at the
hospital Rattan Lal had a chat with the doctor for about 7-8
minutes and after his talk to the doctor, he was declared dead by
the doctor. Bhola had not accompanied her to the hospital but
Abdul Rubb had. PW-4 further deposed that although the shop
of Alluddin was open but he was not present there and some of
his relations were sitting whose names she did not know. She
stated that it was wrong to suggest that there was no electricity
on the day of the incident. She stated that there was light at the
shop of Bhola, Abdul Rubb and Alluddin. PW-4 deposed that
Sunder Lal reached Jeewan Mala Hospital later on and that he
was not with them. She and her husband had taken Rattan Lal to
the hospital in a tempo and none else had gone with them in the
tempo. PW-4 also deposed that Alluddin and Sabir had also
witnessed the incident.
10. PW 5 Sunder Lal (brother of the deceased), s/o Ram Lakhan
deposed that on 08.03.2000 he had gone to attend a marriage
party and after attending the party, when he came back to his
house he found a crowd gathered outside his house and was
informed by the crowd that his brother Rattan Lal had been
stabbed and had been taken to Jeewan Mala hospital. After that
he went to the hospital and where the doctor informed him that
his brother, Rattan Lal had expired. This witness also deposed
that the same day/night he went along with the police officials
and identified one of the assailants Ishtkhar and whereafter the
said assailant was arrested and also got recovered one knife
from the bushes near railway lines in the area of Inderlok.
11. PW 5 further deposed that on 03.03.2000, his maternal-uncle
Ram Chander (mama) was beaten by four/five boys under the
Zakhira Bridge. His younger brother, Rattan Lal reached there
and tried to rescue his maternal uncle. The names of those
four/five boys were Laddu, Irfan, Chhotu, Miraj and Ishtkhar. On
05.03.2000 there was an altercation between Chhotu and Rattan
Lal. Yet again at around 9:00 AM, in the morning of 08.03.2000
there was an altercation between Rattan Lal and Chhotu and the
latter had threatened the former that he would kill him within 12
hours.
12. Learned APP objected and stated that PW 5 is resiling from his
statement made to the police and was cross-examined by the
learned APP. In his cross-examination PW 5 stated that it was
incorrect to suggest that after returning from the marriage he
saw that his parents were attending to Rattan Lal and along with
Abdul Rubb were making him sit in the tempo and that he had
not stated so before the police.
13. PW-5 further deposed that it was incorrect to suggest that on the
way to the hospital his mother/father told him that the assailants
had stabbed Rattan Lal with knives. On being cross-examined by
the learned APP, PW-5 denied the suggestion that appellants
Ishtkhar and Miraj were arrested by the police from the bus
stand near Inderlok opposite Masjid. In cross-examination by the
learned counsel for the appellants, PW-5 deposed that on
08.03.2000 he was not present at the place when the altercation
took place between his brother and the assailants at the Zakhira
Market. And further that the police had never met him after
08.03.2000 and never obtained his signatures on any paper.
14. PW 6, Abdul Rubb, s/o Abdul Subhan, r/o JJ Colony, Wazir Pur, B
271 deposed that he also has a jhuggi where he is running a
shop of selling tea at Zakhira Bridge. On 08.03.2000 after
coming from his business of selling cloth as a hawker, he saw a
large crowd gathered near the shop of Bhola Masalewala. On
enquiry he came to know that the son of Meena had been
stabbed by someone. This witness deposed that apart from this
he did not know anything. The witness was cross-examined by
the learned APP. In his cross-examination by the learned APP, PW
6 denied to have known anything with regard to the case. He
denied the suggestion that he was the one who took Rattan Lal
to the hospital along with others. This witness denied having
made any statement to the police with regard to this case.
15. PW 7, Bhola Singh, s/o Chandrika, r/o B- 1/312, Nehru Nagar,
Delhi deposed that he sells Masale under Zakhira Bridge and
that the hotel of "Meena" was just opposite to the place from
where he sells Masale. PW 7 deposed that on 08.03.200, which
was a Wednesday, he was present at his shop and had
customers to attend to. There was no electricity on that day and
he was working under candle light. At some distance from his
shop, a stabbing incident took place and Rattan Lal, s/o Meena
sustained stab injuries. However this witness stated that he did
not know as to who caused the stab injuries. Thereafter he got so
scared that he left his shop and went to his home and sent his
brother to wrap up the shop. In his cross-examination by the
learned APP, PW 7 denied having seen anything.
16. PW 8, Dr. Ashok Jaiswal, CMO Subzi Mandi, Delhi deposed that on
09.03.2000 while working as CMO in Subzi Mandi mortuary he
conducted examination on the body of Rattan Lal. PW 8 opined
that all the injuries were ante-mortem in nature and were caused
by a sharp edged weapon and that the death was due to
hemorrhagic shock consequent to the injuries. He further opined
that the injuries were possible by the alleged weapon of offence,
a knife. Also that the injuries on the body were consonant with
the cuts and tears on the clothes brought as those which were
worn by the deceased before the incident of stabbing.
17. PW 9, Dr. Rakesh Sharma, Jiwan Hospital, New Rohtak Road,
deposed that on 08.03.2000 he was attending as a doctor at the
said hospital. On that day, patient Rattan Lal, s/o Ram Rattan
was brought by Ram Rattan and Abdul Rubb, with the alleged
history of sustaining multiple stab injuries. The patient was
brought in gasping condition; BP and pulse were not recordable;
pupil of both sides were dilated at the time of arrival of the
patient. Pulmonary resuscitation was done but the patient could
not be revived and was declared dead at 8:40 PM. On being
cross-examined by the learned counsel for the appellants, PW 9
deposed that he had examined the patient at about 8:30 PM.
PW-9 further deposed that Ram Lakhan and Abdul Rubb had
brought the injured to the hospital and who had told him that the
injured had been assaulted by five persons with knives.
However, they did not disclose the names of the assailants. And
further that it was not to his notice that any lady had come at
the hospital in connection with the injured.
18. PW 10, SI Babu Lal, PS Moti Nagar deposed that on 08.03.2000
he was posted at P.S. Moti Nagar and on that day on receipt of
D.D.No.35-A through Constable M. Oran and on receipt of this
D.D., he reached the Zakhira Flyover. The D.D. was regarding an
accident but on reaching the spot he did not find any accident or
the accident site. Thereafter he along with HC Ranbir and Const.
M. Oran came to Jeevan Mala Hospital and where PW Meena Devi
met him. On 15.03.2000 he joined the SHO and other staff in the
investigation of the case and reached Zakhira Jhuggis in search
of the appellants. During this search operation, a secret informer
and also Sunder Lal, brother of the deceased were with them.
The secret informer apprised the police officials that Ishtkhar and
Miraj wanted in connection with a case were sitting at that time
at a bus stand in front of the Inder Lok Masjid and could be
apprehended. On receipt of this information, the SHO along with
Sunder Lal immediately proceeded to the informed place. The
SHO left his vehicle at some distance from the informed place.
On reaching there the appellants were identified by the secret
informer as well as by Sunder Lal and thereafter both were
apprehended. During interrogation the appellant Ishtkhar
besides giving other details also gave information regarding his
companions namely, Miraj, Ladoo, Chhotu and Irfan. He also
disclosed that he had given his knife to Ladoo and that Ladoo
resides in Meerut. The disclosure statement of appellant Ishtkhar
is marked as Ex-PW-5/C. Appellant Miraj was also interrogated
and he disclosed that he had thrown his knife in the bushes near
the railway line in Inder Lok and that he could get the same
recovered. Thereafter they all proceeded to the said place and
from where appellant Miraj got recovered a knife. The knife was
taken into possession vide memo Ex. PW-5/F. Both the appellants
also pointed out the place of occurrence. PWs Meena and Ram
Lakhan also identified the two appellants, Ishtkhar and Miraj.
19. PW 10 was cross-examined by the learned counsel for the
appellants and he deposed that at the hospital Smt. Meena Devi,
her son Sunder Lal and some persons from the locality of the
deceased were found present. Meena Devi had come to know
about the death of the son. PW 10 also deposed to have
recorded the statement of Meena Devi at the hospital and of
nobody else. Further he met the father of the deceased for the
first time at the spot of the incident around 12:05 A.M.
20. PW 11, Ram Lakhan (father of the deceased) deposed that he
has a jhuggi under Zakhira bridge, Delhi, from where he was
running a hotel in the name of "Meena Hotel" along with his wife
Meena and two sons Sunder Lal and Rattan Lal (deceased). PW-
11 deposed that on 08.03.2000 at about 8:00 PM he was sitting
alongwith his wife at the above said hotel, five persons came and
asked about the whereabouts of his elder son Sunder Lal, and at
which he told them that Sunder Lal had gone to attend some
marriage function. They said that if Sunder Lal was unavailable
then they would teach a lesson to his younger son, Rattan Lal,
who was standing at the shop of Bhola Masale wala opposite
their hotel. The five persons who had come to the shop were
Ishtkhar; Miraj; Laddoo; Irfan; and Chhotu. All these persons
asked his son about his elder brother and saying so, all those
persons started stabbing his son with knives in their hands and
by the time they could reach near their son, all the five persons
ran away towards Western Side Jhuggis. Thereafter he alongwith
Abdul Rubb and 3/4 persons lifted Rattan Lal in an injured
condition and took him near the chhoti lines from where they
hired a „Matador‟ and took Rattan Lal to the Jiwan Mala hospital.
After some time Rattan Lal was declared dead. In cross-
examination by the learned counsel for the appellants, PW 11
deposed that "(t)he accused persons never had business
dealings with us nor we had any quarrel with each other prior to
this incident. We had never moved any application against the
accused persons prior to this occurrence. This market remains
open for all the seven days of the week....Abdul Rub was running
a tea shop at that time and he was running the shop himself. At
that time of incident, Abdul Rub had not come but he came to
the spot thereafter. The incident took place in the presence of
Bhola masalewala. There was one Alludin vegetable vendor at
the spot, he was present on his shop at the time of incident.
Alludin did not come to the spot after incident or at the time of
incident." "There was light on the hotel on that day. Light had
gone off in the day after the incident....There are shops of doctor
in that market." PW 13 further deposed in his cross-
examination that he did not throw any stone or brick on the
persons who came at his hotel nor did he make any efforts to
intervene in the said incident nor did his wife (Meena) intervene.
He also deposed that Alluddin was present at his shop when the
incident took place but he did come to the spot at the time of the
incident or after the incident. His wife had accompanied him at
the time of taking their injured son, Rattan Lal to the hospital.
His wife also did not raise any alarm. They did not pick up any
palta, or mirchi, nor hurled any stone or brick at the assailants
as they had immediately ran away after the incident and by the
time they reached the spot, the assailants had already fled.
21. PW 13, HC Rajinder Singh, deposed that on 08.03.2000 at about
8:50 PM, he received a telephonic call from Dr. Rakesh from
JiwanMala Nursing Home that one Rattan Lal, s/o Ram Lakhan,
had been admitted to the hospital by his brother Sunder Lal in
injured condition having stab injuries and had expired. This
information was recorded by him in the roznamcha vide D.D.
No.21-A.
22. PW 14, Constable M. Oram deposed that on 08.03.2000, he was
posted at PS Moti Nagar. In his cross-examination by the learned
counsel for the appellants he deposed that he received DD
no.25-A at PS Moti Nagar at 8:50 PM and reached at the spot
within 15 minutes by bus. He stated that he found 40-50
persons present there. SI did not interrogate any person out of
those persons. PW-14 deposed that he did not find any close
relatives of the deceased nor his parents. PW-14 further deposed
that he reached the hospital but could not tell the time. It might
have been 12 or 12:30 in the night and that only Smt. Meena
had met the IO in the hospital.
23. PW 21, HC Sunil Kumar deposed that on 22.04.2000 he went to
the house of Ladoo, s/o Mayudin, r/o Pandolwala, PS Shakri, to
the house of Chhotu r/o village Pathan Kaval, to the house of
Irfan, but they were not found at the given addresses. On
29.04.2000 he returned back and handed over the NBWs with his
report. He alongwith IO and the complainant Meena Devi went to
Budh Vihar to see Irfan s/o Jaffrul-Haq, r/o Kachoi colony, Mange
Ram Park, however the complainant Meena Devi on seeing him
refused and stated that he was not the person involved in this
case as according to her Irfan/accused had a cut on his cheek
and the person to whom they had gone to meet did not have the
said cut on his cheek and thus he was not the assailant.
24. PW 22, HC Ranbir Singh, PS Rajouri garden deposed that on
08.03.2000 he alongwith SI babu Lal were present at Zakhira
Picket. In the hospital Smt. Meena Devi, mother of the deceased
met them and gave her statement to the IO. SI prepared the
rukka and sent the same to the Police Station for registration of
the case.
25. PW 23, Inspector Gurdip Singh deposed that on the night of
8/9.03.2000 he was posted as SHO at Police Station Moti Nagar.
On the receipt of information on wireless set, he went to the spot
of the crime and came to know that the injured had been taken
to the Jeewan Mala Hospital. Thereafter he went to the said
hospital and where he met the father of the deceased Ram
Lakhan. He recorded the statements of Abdul Rubb and
thereafter he along with the parents of the deceased came back
to the spot of the crime and got the spot photographed,
prepared the site plan at the instance of PW 4. Thereafter PW 23
deposed that on 15.03.2000 on the basis of secret information,
the appellants Ishtkhar and Miraj were arrested from a bus stand
opposite Inderlok Mazjid. Both these appellants made disclosure
statements and pointed out the place of occurrence. In
pursuance of the disclosure statement, appellant Miraj led them
to the bushes near the railway station and got recovered a knife
from the railway cabin. Thereafter, PW 23 stated that he
recorded the statements of PWs Sunder Lal and SI Babu Lal, on
the point of investigation having been done in their presence.
26. In cross-examination by the learned counsel for the appellants
PW 23 deposed that he had recorded the statements of Ram
Lakhan and Abdul Rubb at the hospital itself and of no other
person. And after coming back to the spot of the crime he had
made enquiries from public persons including Abdul Rubb and
Bhola. He denied the suggestion that Sunder Lal did not meet
him after 08.03.2000. And further denied that Alluddin and Sabir
were the eye-witnesses of the incident and that he had
deliberately not examined them.
27. Learned counsel for the appellants has argued that the
prosecution has not been able to prove its case beyond shadow
of doubt. Learned counsel has adduced three witnesses on his
behalf.
28. DW 1, Kanwal Singh, s/o Sh. Ram Dhan Singh, r/o House no.
260/1, Gali no. 7, Nehrunagar, Delhi has deposed that he knew
Meena and her family for the past 5-6 years. On 08.03.2000
there was marriage of one Bhagatji and who resides in gali no. 6.
He along with Meena had gone to attend the marriage and the
programme for the same was fixed on 07.03.2000. DW 1
deposed that while going to the house of Meena on 08.03.2000,
at around 8:00 PM he met Meena on the way and Meena
informed him that that her son had a quarrel with someone and
requested him to accompany her to her hotel. They reached
there about 8-8:20/8:25 PM and where they were informed that
her son had already been removed to the hospital. They stayed
at the place for about 30 minutes and thereafter DW 1 stated to
have come back to his house and where after which he
proceeded to the marriage party. DW 1 further deposed that he
was a summoned witness and that he did not know the
assailants.
29. DW 2, Alludin, s/o Sh. Mohd. Nasibul, r/o under Zakhira Bridge
Delhi deposed that he has a vegetable shop under the Zakhira
Bridge for the past 9-10 years and that he knew Meena who was
operating a hotel from there for the past 8-9 years. DW 2
deposed that his shop is close to the hotel of Meena and that on
08.03.2000, he was sitting at his shop when suddenly he saw
customers running away. He closed his shop and heard that
somebody had inflicted knife blows to Rattan Lal. The incident
took place at about 8:00 PM on that day. This witness further
deposed that by the time he reached the spot the injured had
already been removed to the hospital, and none of the family
member of the injured person was found present at the spot.
Meena came there after about 20-30 minutes. DW-2 further
deposed that police interrogated him at the spot, he was taken
to the police station and thereafter he was released. In the
cross-examination by the learned APP, this witness deposed that
he knew all the appellants and that they also had shops under
the Zakhira Bridge. Further stated that he did not close the gate
of his shop on seeing the people running and that he did not see
Meena at the spot after the incident. DW 2 further deposed in his
cross-examination that he did not see the incident nor saw any
person taking Rattan Lal to the hospital. He did not know as to
where the incident had taken place and did not go out of his
shop. DW 2 further deposed that he did not see Meena at the
spot after the incident.
30. DW 3, Kailash maurya, s/o Sh. Ram Sanehi Maurya, r/o 122,
Nehru Nagar, Delhi deposed that he runs a TV and Radio repair
shop under Zakhira Bridge for the past 7 years. This witness
deposed that he knew Meena and that on the day of the incident
which was a 2nd Wednesday of the month of March, 2000, he was
sitting at his shop when he heard a noise of quarrel in the
market. He asked his son to sit at the shop and went near the
„Meena hotel‟. DW-3 deposed that he saw that Meena‟s son was
lying on the ground in an injured condition and was being
removed by some neighbourers. He deposed to have not seen
even a single family member of the injured, including Meena at
that time at the spot. He remained there for about half an hour
and thereafter Meena arrived at the spot. He remained alongwith
Meena at the spot for about 15-20 minutes. In cross-examination
by the learned APP, DW 3 deposed that the incident in question
did not take place in his presence. He heard the noise of „maar
diya, maar diya' and at that time he was attending to his
customers. He left his employee at the shop and came to the
hotel of Meena. A lot of people had gathered there. No family
member of the injured was present there and all were waiting for
the arrival of any member of the injured. Thereafter, Meena
came alongwith Komal Singh.
31. Learned counsel for the appellant submits that the judgment of
the trial court is contrary to law and facts established on record.
There is no legal evidence against the appellant, justifying the
conviction in above case. Learned counsel submits that
presence of the two eye witnesses PW-4 and PW-11 i.e. mother
and father of the deceased is highly doubtful. He submits that
they being the interested witnesses, no reliance should be
placed on their testimonies. It is next contended that there are
material contradictions in the testimonies of the witnesses
examined by the prosecution and the contradictions go to the
very root of the case and thus it creates serious doubt in the
story of the prosecution. It is next contended that blood stained
clothes of the persons, who removed the injured to the hospital
have not been taken into possession which also casts a doubt
about their presence at the spot of the incident. Learned counsel
argues that the clothes of the parents have not been seized by
the police. Since an essential piece of evidence has not been
submitted before this Court, the case of the prosecution cannot
be believed. In support of the same, reliance has been placed on
the case of State of Rajasthan v. Teja Singh reported at AIR
2001 SC 990. Furthermore, prosecution has to prove as to who
gave the final blow to the deceased. In the same vein counsel
submits that the parents have shown a complete unnatural
conduct as they neither shouted for help nor made any effort to
save their son which also creates a doubt with respects to their
presence at the spot of the incident, as it would be natural for
the parents to ask for help to save their son. The direct
consequence of this fact is that they were not present at the spot
of the incident. Learned counsel has also strongly argued before
this court that as per the evidence on record, the victim was
alive and he had a brief chat with the doctor (PW-9) before he
was declared dead. In view of this fact, if the victim knew the
assailants, he would have surely named them before PW-9,
Dr.Rakesh Sharma of Jeewanmala Hospital. In support of this
submission he has relied upon the case of Devinder v. State of
Haryana reported at 1996 Cri. LJ 4461.
32. Learned counsel for the appellant further submits that in spite of
there being a large number of persons available at the spot of
the incident, public witnesses have not been associated in this
case, hence the evidence of the witnesses PW-4 and PW-11,
being interested witnesses, without corroboration cannot be
relied upon. And even otherwise also PW-6, Abdul Rubb and PW-
7 Bhola, have not supported the case of the prosecution.
33. Learned counsel for appellant, Ishtkhar further submitted that
the MLC of the deceased says that the father had brought the
injured son to the hospital, but the Investigating Officer (IO) took
the statement of the mother and not of the father and which
conduct is questionable. The learned counsel has in support
relied upon the case of Meharaj Singh V. State of U.P.,
reported at 1994 SCC Cri. 1390.
34. Learned counsel for the appellant, Miraj while relying upon the
submissions made by counsel for appellant, Ishtkhar further
submits that the First Information Report (FIR) is fabricated and
thus the case of prosecution can be said to be false and
unreliable. In support of this argument, learned counsel relies
upon the case of Marudanal Augusti v. State of Kerala
reported at AIR 1980 SC 638 and Bandi Mallaiah and others
v. State of Andhra Pradesh reported at AIR 1980 SC 1160.
35. Learned counsel for appellant, Miraj submits that in a criminal
case it is the prosecution on which the onus lies to prove the
different ingredients of the offence and unless it discharges that
onus, it cannot succeed. To support his argument, learned
counsel relies upon the cases of Kali Ram v. State of
Himachal Pradesh reported at 1974 Cri. LJ 1 (SC) and Md.
Alimuddin and others v. State of Assam reported at 1992
Cri. LJ 3287. Learned counsel for appellant, Miraj submits that
the recovery of the weapon of offence is also doubtful and in
light of the same the appellant cannot be convicted. In support,
he relies upon the case of Babudas v. State of M.P. reported
at II (2003) CCR 116 (SC).
36. Furthermore, learned counsel for appellant, MIraj submits that
defense witnesses are entitled to equal treatment and equal
respect as that of the prosecution and bases his argument on the
case of State of Haryana v. Ram Singh reported at I (2002)
CCR 68 (SC).
37. Learned counsel for appellant, Miraj further submits that since
there were improvements in the version of witnesses, such
evidence given by them is to be disbelieved and to support this
argument learned counsel cites the case of Kunju Muhammhed
v. Khumani and another reported at 2003 (3) JCC 1549 and
Ahmed Bin Salam v. State of Andhra Pradesh reported at
1999 (3) Ch. Crl. Cases 72. Learned counsel submits that
inconsistent statements have been given with regard to material
facts, and thus such witnesses are to be held as unreliable in
view of the case of Suraj Mal v. State (Delhi Administration)
reported at AIR 1979 SC 1408. Lastly he submitted that when
two views are possible, then the one which favours the accused,
is to be accepted, also noted in State of Haryana v. Inder
singh reported at 2002 (2) Crimes 164 (SC).
38. Learned counsel for the State submits that prosecution has been
able to prove its case beyond any shadow of doubt. The
evidence of PW-4 and PW-11 i.e. mother and father of the
deceased is truthful and reliable. They are the witnesses to the
crime and their evidence cannot be discarded merely because they
are closely related to the deceased. It is also contended that
merely because the blood stained clothes were not seized, this by
itself cannot be reason enough to come to the conclusion that PW-4
and PW-11 were not present at the spot of the incident. It is also
submitted that at the time when the victim reached the hospital his
condition was such that he could not have made any statement
to the doctor.
39. We have heard learned counsel for the parties and carefully
analyzed the evidence on record. Learned counsel for the
appellant has strongly urged before this Court that the evidence of
the mother and father of the deceased cannot be relied upon
broadly on two grounds, firstly that they are the interested
witnesses and secondly that their presence at the spot of the
incident is highly doubtful. Before dealing with the submissions
made, it would be useful to discuss the law laid down by the Apex
Court with regard to placing reliance on evidence of witnesses who
are interested or partisan. In the case of Masalte Vs. State of
Uttar Pradesh, reported at AIR 1965 Supreme Court 202, the
Apex Court has held as under:
"14. Mr.Sawhney has then argued that where
witnesses giving evidence in a murder trial like
the present are shown to belong to the faction
of victims, their evidence should not be
accepted, because they are prone to involve
falsely members of the rival faction out of
enmity and partisan feeling. There is no doubt
that when a criminal court has to appreciate
evidence given by witnesses who are partisan
or interested, it has to be very careful in
weighing such evidence. Whether or not there
are discrepancies in the evidence; whether or
not evidence strikes the court as genuine
whether or not the story disclosed by the
evidence is probable, are all matters which
must be taken into account. But it would, we
think, be unreasonable to contend that
evidence given by witnesses should be
discarded only on the ground that it is
evidence of partisan or interested witnesses;
Often enough, where factions prevail in
villages and murders are committed as a result
of enmity between such factions, criminal
courts have to deal with evidence of a partisan
type. The mechanical rejection of such
evidence on the sole ground that it is partisan
would invariably lead to, failure of justice. No
hard and fast rule can be laid down as to how
much evidence should be appreciated. Judicial
approach has to be cautious in dealing with
such evidence; but the plea that such evidence
should be rejected because it is partisan
cannot be accepted as correct."
40. Similar view has also been expressed in the case of State of
Punjab Vs. Karnail Singh, reported at AIR 2003 (90) Supreme
Court 3613:-
8. We may also observe that the ground that the
witnesses being close relatives and
consequently being partisan witnesses, should
not be relied upon, has no substance. This
theory was repelled by this Court as early as in
Dalip Singh and others v. The State of Punjab
(AIR 1953 SC 364) in which surprise was
expressed over the impression which prevailed
in the minds of the Members of the Bar that
relatives were not independent witnesses.
Speaking through Vivian Bose, J. it was
observed:-
"We are unable to agree with the learned
Judges of the High Court that the
testimony of the two eye-witnesses
requires corroboration. If the foundation
for such an observation is based on the
fact that the witnesses are women and
that the fate of seven men hangs on their
testimony, we know of no such rule. If it is
grounded on the reason that they are
closely related to the deceased we are
unable to concur. This is a fallacy common
to many criminal cases and one which
another Bench of this Court endeavoured
to dispel in - Rajasthan', (AIR 1952 SC 54
at p.59). We find, however, that it
unfortunately still persists, if not in the
judgments of the Courts, at any rate in the
arguments of counsel."
9. Again in Masalti and others v. The State of U.P.
(AIR 1965 SC 202) this Court observed : (pp.
209-210 para 14):
"But it would, we think, be unreasonable to
contend that evidence given by witnesses
should be discarded only on the ground
that it is evidence of partisan or interested
witnesses......... The mechanical rejection
of such evidence on the sole ground that it
is partisan would invariably lead to failure
of justice. No hard and fast rule can be laid
down as to how much evidence should be
appreciated. Judicial approach has to be
cautious in dealing with such evidence;
but the plea that such evidence should be
rejected because it is partisan cannot be
accepted as correct.
10. To the same effect is the decision in State of
Punjab v. Jagbir Singh, (AIR 1973 SC 2407) and
Lehna v. State of Haryana, (2002 (3) SCC 76).
As observed by this Court in State of Rajasthan
V. Smt. Kalki and another, (AIR 1981 SC 1390),
normal discrepancies in evidence are those who
ae due to normal errors of observation, normal
errors of memory due to lapse of time, due to
mental disposition such as shock and horror at
the time of occurrence and those are always
there, however, honest and truthful a witness
may be. Material discrepancies are those who
are not normal, and not expected of a normal
person. Courts have to lable the category to
which a discrepancy may be categorized. While
normal discrepancies do so. These aspects were
highlighted in Krishna Mochi and others v. State
of Bihar etc. (JT 2002 (4) SC 186)."
41. This view has again been reiterated recently in the case of State
of NCT of Delhi Vs. Rani Kant Sharma & Ors., reported at
2007 (3) JT 501, relevant portion is reproduced below:-
"11. In some cases persons may not like to come and
depose as witnesses and in some other cases the
prosecution may carry the impression that their
evidence would not help it as there is likelihood of
partisan approach so far as one of the parties is
concerned. In such a case mere non-examination
would not affect the prosecution version. But at
the same time if the relatives or interested
witnesses are examined, the court has a duty to
analyse the evidence with deeper scrutiny and
then come to a conclusion as to whether it has a
ring of truth or there is reason for holding that the
evidence was biased. Whenever a plea is taken
that the witness is partisan or had any hostility
towards the accused, foundation for the same has
to be laid. If the materials show that there is
partisan approach, as indicated above, the court
has to analyse the evidence with care and caution.
Additionally, the accused persons always have the
option of examining the left out persons as
defence witnesses."
42. Again in the case of Manoj Vs. State of Tamil Nadu, reported
at 2007(5) JT 145, it has been observed:
9. In regard to the interestedness of the witnesses for
furthering the prosecution version, relationship is
not a factor to affect the credibility of a witness. It
is more often than not that a relation would not
conceal the actual culprit and make allegations
against an innocent person. Foundation has to be
laid if a plea of false implication is made. In such
cases, the court has to adopt a careful approach
and analyse evidence to find out whether it is
cogent and credible.
10. In Dalip Singh and Ors. v. The State of
Punjab it has been laid down as under:-
"A witness is normally to be a considered
independent unless he or she springs from
sources which are likely to be tainted and
that usually means unless the witness has
cause, such as enmity against the accused,
to wish to implicate him falsely. Ordinarily a
close relation would be the last to screen the
real culprit and falsely implicate an innocent
person. It is true, when feelings run high and
there is personal cause for enmity, that
there is a tendency to drag in an innocent
person against whom a witness has a grudge
along with the guilty, but foundation must be
laid for such a criticism and the mere fact of
relationship far from being a foundation is
often a sure guarantee of truth. However, we
are not attempting any sweeping
generalization. Each case must be judged on
its own facts. Our observations are only
made to combat what is so often put forward
in cases before us as a general rule of
prudence. There is no such general rue. Each
case must be limited to and be governed by
its own facts."
11. The above decision has since been
followed in Guli Chand and Ors. v. State
of Rajasthan in which Vadivelu Thevar v.
State of Madras was also relied upon.
43. It is seen that it has been consistently held by the Apex Court
that the Courts must be cautious and careful while weighing the
evidence given by witnesses, who are partisan or interested.
However, the evidence of such witnesses should not be
mechanically discarded. Applying the aforesaid principles laid
down by the Apex Court to the facts of this case and having
analyzed the evidence of PW-4 and PW-11 carefully and with
deep scrutiny, we find that the incident in question took place at
about 8:00 p.m. and the FIR was recorded at 11:20 p.m., on the
statement of the mother (PW-4). This shows that there was no
unnecessary delay in lodging the FIR and the appellants were
also named at the very first instance and opportunity available
to the mother of the deceased, PW-4. PW-4 has also deposed
that on 8.3.2000 at about 8:00 p.m. she was present at her
Dhaba along with her husband and son, deceased - Rattan Lal.
During her examination she pointed to the appellants (who had
visited her Dhaba looking for her elder son Sunder) and rightly
identified them. On being told that Sunder had gone to attend a
marriage, the assailants had asked for her son Rattan Lal, whom
they stabbed in her presence and in the presence of her
husband. According to this witness (PW-4), Ram Lakhan and
Bhola Nath had taken the injured to the hospital where her
statement (PW-4) was recorded. Her presence at the hospital
stands corroborated by the evidence of PW-10 S.I. Babulal,
wherein he has stated that he met Meena Devi (PW-4) in the
hospital from whom he made enquiries and recorded her
statement as PW-3/B. Inspector Gurdip Sigh, PW-23 has deposed
that he was posted as SHO, Police Station Moti Nagar on the
night of 8th - 9th March, 2000. He received information on the
wireless with respect to the incident and he learnt that the
injured had been taken to Jeewan Mala Hospital where he met SI
Babu Lal, along with the parents of the deceased and learnt that
Babu Lal had already sent Rukka on the statement of PW-4,
Meena Devi, mother of the deceased and he recorded the
statement of Ram Lakhan and Abdul Rubb under Section 161 of
the Cr.P.C. Presence of Ram Lakhan and Abdul Rubb also stands
corroborated by the evidence of PW-9, Dr.Rakesh Sharma, who
in his testimony has stated that on 8.3.2000 he was the
attending doctor at Jeevan Mala Hospital and on that date one
patient, Rattan Lal, was brought by Ram Lakhan and Abdul Rubb
with alleged history of sustaining multiple injuries over chest,
abdomen and lumber. There are no contradictions in the
evidence of PW-4 mother and PW-11, father of the deceased on
material aspects. Both have deposed that on 8.3.2000 they
were present at that Dhaba around 8:00 p.m. when their son
Sunder Lal had gone to attend marriage and five persons had
asked about Sunder Lal and on being told that Sunder Lal is not
available, they asked about Rattan Lal and who was thereafter
stabbed by these five persons. PW-11 has also correctly
identified the appellants in Court and also corroborated that he,
Abdul Rubb and 3 -4 persons had lifted the injured person and
took him to Jeevan Mala Hospital. Both PW-4 and PW-11 have
stated that they along with others had taken the injured to the
hospital. Soon thereafter, statement of mother of the deceased,
PW-4 was recorded at the hospital and the MLC shows the
presence of the father at the hospital. Having regard to the
testimony of both PW-4 and PW-11, which statements are firm
and consistent with respect to the time, place of incident, the
manner in which the accused persons had approached them
while they were at the Dhaba and the manner in which the entire
incident was described, we find no reason to disbelieve the
evidence of PW-4 and PW-11, who are natural witnesses. Merely
because they happen to be the parents of the deceased this fact
alone cannot be a ground to disbelieve their testimony.
44. Further to say that merely because the blood smeared clothes of
PW-4 and PW-11 were not seized by the police that by itself
cannot create a doubt upon their evidence. It has been held by
the Apex Court in the case of State of U.P. Vs. Hari Mohan &
Ors., reported at 2000 VIII AD(SC) 389 that the defective
investigation cannot be made a basis for acquitting the accused
if despite such defects and failures in their investigation a case is
made out against the appellant.
45. On the same line, it has been observed by the Apex Court in the
case of State of West Bengal Vs. Meer Mohd. Umed and
Others, reported at JT 2000 (9) SC 467, that:-
"41. ....The function of the Criminal Courts
should not be wasted in picking out the
lapses in investigation and by expressing
unsavoury criticism against investigating
officer. If offenders are acquitted only on
account of flaws or defects in investigation,
the cause of criminal justice becomes the
victim. Effort should be made by Courts to
see that criminal justice is salvaged despite
such defects in investigation. ...."
46. It has been next contended before us that the evidence of
defence witnesses shows that the mother of the deceased was
not present at the spot and in fact equal weightage is to be given
to the evidence of the defence witnesses. There is no quarrel to
this proposition of law mooted before us, however, this
proposition is subject to the condition that the evidence of
defence witnesses should be truthful and reliable.
47. In the matter before us, DW-1 has deposed that a day prior to
the date of incident i.e. 7.3.2000 it was settled that he would go
to the house of PW-4 on 8.3.2000 at Anand Parbat and thereafter
would proceed for the marriage. Although, we find that DW-1,
has deposed that on the fateful day, he met PW-4, Meena,
mother of the deceased at around 8:00 p.m. and he had asked
her to accompany him to the marriage, but she requested him to
come to the house, as she had learnt that her son had quarreled
with somebody and when both reached the spot at about 8:20 -
8:25 p.m. they were informed that her son had already been
removed to the hospital but they did not come to know about the
name of the hospital. He further goes on to say that he
remained with Meena for more than 30 minutes and thereafter
left the house. In the cross-examination he has stated that he
did not reach the house of Meena, but he met her in the gali. We
find the evidence of this witness unreliable for the reasons that
on the one hand this witness has stated that Meena and he were
to attend the wedding together and he was to pick her up from
the house and on the other hand he has deposed that he had
met Meena in the gali. In case Meera had agreed to go to the
marriage with DW-1, knowing fully well that she had to
accompany DW-1 to the marriage, she would be waiting for him
in the house and not be present in gali. As per this witness he
stayed with Meena for more than 30 minutes and then decided
to attend the wedding, which is again an unusual situation that
instead of helping Meena to find out in which hospital her injured
son is taken, he has left her and went to attend the wedding. On
the other hand the statement of S.I. Babulal PW-10, who is an
independent witness shows that he met Meena at Jeevan Mala
Hospital, soon after the incident. This would show that evidence
of DW-1 is not truthful as he could not have been with Meena for
30 minutes after the incident.
48. As per the evidence of DW-2 his shop is near the hotel of Meena
and he was aware that at 8:00 p.m. a quarrel had taken place
near the hotel of Meena and he also heard that somebody had
inflicted knife blow to Rattan Lal. As per his evidence, when he
reached the spot, the injured had already been removed to the
hospital and none of the family members were present at the
spot and Meena came afterwards about 20 - 30 minutes at the
spot and further that he was interrogated at the spot by the
Police. We also find the evidence of this witness to be unreliable,
as in the cross-examination he has admitted that Dhaba of
Meena is situated 3 shops / jhuggi away from his jhuggi. In the
cross-examination he has stated that he did not see the incident
and did not know as to who took Rattan Lal to the hospital, did
not know where the incident had taken place as he did not come
out of his shop and further he did not come to the spot of the
incident and Police came at the spot after one hour of the
incident. In the cross-examination he further goes on to state
that he did not see Meena at the spot after the incident. His
evidence is contradictory as on the one hand in the examination-
in-chief he has stated that the police came at the spot after 20 -
30 minutes, on the other hand he has stated in the cross-
examination that the police came to the spot after one hour. In
the examination in chief he has stated that Meena reached the
spot after the incident. In the cross-examination he has stated
that he did not see Meena at the spot after the incident. In case
he did not see the incident, did not know who took the injured to
the hospital while he was present only three shops away from
the incident how would he know whether Meena was present at
the spot of the incident or not. Similarly DW-3, Kamlesh Maurya
has deposed that he heard noise of quarrel in the market so he
rushed towards it and saw son of Meena lying on the ground in
the injured condition being removed by some neighbours and
that he did not find Meena at the spot and Meena came only
after half an hour. Evidence of this witness is also unreliable as
according to him he remained at the spot of the incident for half
an hour and thereafter Meena came to the spot, while as per S.I.
Babu Lal, PW 10, statement of mother was recorded at the
hospital soon after the incident. All the three witnesses, we feel
have been introduced to show that Meena was not at the spot. If
DW-1 is to be believed he along with Meena reached the spot of
the incident by about 8:20 p.m. DW-3 Kamlesh Maurya was
present soon after the incident, but did not find Meena present
at the spot, but came there after about half an hour. This
witness has further deposed that 3 - 4 neighbours were taking
the son of Meena to the hospital, but DW-3 was not able to tell
their names and kept on waiting at the spot for 40 -45 minutes
as none of the family members were present. Both Abdul Rubb
and Bhola Masalewala, the two independent witnesses have
joined as the prosecution witnesses. They did not identify the
assailants during the evidence, however, they admitted that the
occurrence of the incident had taken place on 8.3.2000 at 8:00
p.m. Both PW-6, Abdul Rubb and PW-7, Bhola, were declared
hostile. The fact that PW-9 Dr. Rakesh Sharma has deposed that
injured was brought to the hospital by Ram Rattan and Abdul
Rubb would show that Abdul Rubb has been bought over or was
under threat from the appellant, as there is no reason for the
doctor to falsely state that Abdul Rubb had brought the victim to
the hospital. Merely because the two independent witnesses
decided not to support the case of the prosecution no fault can
be found against the prosecution for not associating independent
persons the investigation. In this regard, reliance can be placed
on a judgment titled as Iswar Singh Vs. State, reported in
1985 Crl.C.J. 1625 in which it was observed as under:-
"It is common experience that people are greatly
reluctant to co-operate with the police in such
matters for a variety of reasons and there is as
such absolutely no reason to disbelieve the I.O.
that public did not respond to join the
investigation."
49. We find no force in the submission of the counsel for the
appellants that since the injured was alive when he was removed
to the hospital, he could have given the name of the assailants,
whom he knew, to the doctor. It is also submitted that PW-4
Meena has deposed that when her son was taken to the hospital
he was alive and was saying that he would be saved and
thereafter had told about the incident to the attending doctor, to
whom he had talked to 3 -4 minutes and thereafter he was taken
to the operation theatre. PW-9, Dr.Rakesh Sharma, who
attended the victim, has deposed that the patient was brought in
gasping condition, B.P and pulse was not recordable; pupil of
both sides were dialated at the time of arrival of the patient,
Cardio Pulmonary Resuscitation was done but the patient could
not be revived and was declared dead at 8:40 pm. It is seen that
the patient was having the following injuries:
1. CLW about 8 cm on left cheek
2. About 5 cm CLW over left front of Axilla near heart.
3. Incised wounds about 8 cm , 12 cm; with muscle and
lung deep in right axilla and right pectoral region;
4. Incised wounds in epigastrium with lever, stomach,
intestine exposed.
5. CLW on left arm.
6. Muscle deep incised would left above knee.
7. Left wrist incised would with bone exposed.
8. Left arm CWL.
50. Looking at this evidence, we find that a patient with multiple
stab injuries over chest, abdomen and lumber brought in a
gasping condition to the hospital, with B.P and pulse not
recordable, would not be in a fit condition to talk.
51. We also do not find any force in the submission of learned
counsel for appellants that merely because the mother and
father of the victim allegedly did not run to save him, it should
lead to the conclusion that they were not present at the spot.
The sequence of events would show that five persons reached at
the spot and not finding Sunder Lal, they moved towards the
victim, Rattan Lal and started stabbing him. We are in
agreement with the reasons given by learned ASJ that different
persons react differently to a situation and there cannot be any
straightjacket formula that as to how a person would react in a
situation like this. In the case of Rana Pratap Vs. State,
reported at AIR 1983 SC 680 it has been held that "to discard
the evidence of a witness on the ground that he did not react in
particular way, is to appreciate the evidence wholly in
unreleastic and unimaginative manner".
52. For the reasons aforestated we find that PW-4 and PW-11 were
present at the spot at the time of the incident and were the eye
witnesses to the occurrence. They have fully supported the case
of the prosecution and there are no material contradictions in
their evidence which go to the root of the matter. The ocular
version of these witnesses stand corroborated with the medical
evidence of PW-8, Dr.Ashok Jaiswal, who conducted the
postmortem on the body of the deceased, Rattan Lal and found
ten incised wounds on his person. As per the opinion of PW-8,
these injuries were caused by a sharp edged weapon and on
examining the knife which was recovered in this case, this
witness has also opined that injuries found on the person of the
deceased, were possible by the knife recovered. We are further
satisfied that the witnesses (PW-4 and PW-11) could not help
their son because of the sudden attack by the five persons, who
were armed, however, these witnesses were in fact natural
witnesses and their evidence is honest, truthful and reliable.
There is no force in the submission of counsel for the appellants
that PW-4 and PW-11 were not present at the spot and have
falsely implicated the appellant as the parents would be more
interested in getting the real culprits punished rather than falsely
implicating the appellants at the cost of letting the real culprits
go scot free. On a careful consideration of the above stated
submissions made by counsel for the parties and in light of the
evidence discussed above, we find that the judgment of the trial
court does not suffer from any manifest error or improper
appreciation of evidence and does not warrant interference in so
far as the conviction and sentence awarded by the trial court to
the appellants under section 302/34, IPC is concerned. Further
both PW-10 and PW-23 have deposed that appellant Miraj led
them to the bushes near Railway Lines where a knife was
recovered at his instance and that the said knife was seized vide
memo Ex. PW-5/F. PW-8, Dr. Ashok Jaiswal on being shown the
knife recovered in this case, has deposed that it was possible to
inflict the injuries found on the deceased, with the said weapon.
Taking into account the said stand, whereby the injuries have
been connected to the recovered weapon of offence, we find no
reason to interfere in the sentence awarded to appellant Miraj
under sections 27/54/59 of the Arms Act. Having upheld the
conviction of appellant Miraj under section 27 of the Arms Act,
there is no reason to convict this appellant (Miraj) under section
25 of the Arms Act as well. Accordingly, the conviction and
sentence under Section 25 of the Arms Act in respect of the
appellant, Miraj, has to be set aside. Furthermore, as no weapon
has been recovered from appellant Ishtkhar, the charge under
sections 25/27 of the Arms Act against this appellant is not made
out, and hence his conviction and sentence under sections
27/54/59 is liable to be set aside.
53. The appeal is disposed of in above terms.
G.S.SISTANI
( JUDGE )
B.N.CHATURVEDI
( JUDGE )
April 13th, 2009
„ssn‟
