Delhi High Court

Rafi Ahmed & Anr. vs State on 17 April, 2009

Author: Pradeep Nandrajog

*           HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment reserved on : 02.04.2009
                         Judgment delivered on: 17.04.2009

+                      Crl. Appeal Nos.948-49/2005


RAFI AHMED & ANR.                      ..... Appellants
              Through : Mr.Pradeep Chaudhary, Advocate


                            VERSUS


STATE                                      .....Respondent
                  Through : Mr. Pawan Sharma, Advocate

CORAM :-
 HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
 HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?    Yes

     (3) Whether the judgment should be reported
         in the Digest ?                       Yes

PRADEEP NANDRAJOG, J.

1. Criminal law was set into motion at around 4.35 P.M. on

08.11.2001 when DD entry No.17A, Ex.PW-9/A, was recorded by

HC Rani Devi to the effect that a telephonic call has been

received informing that a boy has been stabbed with a knife

behind house bearing Municipal No.1178, Kishan Ganj mosque.

2. On receiving a copy of the afore-noted DD Entry, SI Arvind

Pratap Singh PW-14, accompanied with Const. Devi Prasad PW-

11, reached the spot and on learning that the injured has been

removed to St.Stephen Hospital, SI Arvind Pratap Singh

proceeded to the hospital where he learnt that one Khurshid

Alam (hereinafter referred to as the "Deceased") who was

admitted in an injured condition is being administered treatment

by the doctors and met one Mumtaz Ahmad PW-2, the maternal

uncle of the deceased, who claimed to have witnessed the

incident in which the deceased had sustained the injuries. SI

Arvind Pratap Singh recorded the statement Ex.PW-2/A of

Mumtaz Ahmad and made an endorsement Ex.PW-9/C thereon,

and taking along said endorsement, proceeded to Police Station

Bara Hindu Rao at around 6.10 P.M. where HC Usman Ali PW-9,

recorded FIR No.252/2001 Ex.PW-9/D.

3. In his statement Ex.PW-2/A, Mumtaz Ahmad stated that he

resides at house no.1117, Gali Neem Wali, Kishan Ganj with his

family and works in a wool factory in basti Harphool Singh. Due

to a medical problem of his foot, for the last 15-20 days, he was

not going to work. That on 08.11.01 at around 4.30 P.M. when

he was seated at Capital Tailors shop he saw the deceased

walking with his mother. That Mohd. Rafi who was holding a

knife in his hand and his brother Sayeed came from behind.

Sayeed caught hold of the deceased and Mohd. Rafi inflicted a

knife blow on the deceased. Thereafter the two brothers ran in

the direction of Sheeshmahal. Thereafter he helped the

deceased walk upto the police picket nearby, where the

deceased fell on the ground and got smeared with blood. Iftiquar

Ahmad father of the deceased came there and both of them

removed the deceased to St. Stephens Hospital in a TSR. That in

the night of 06/07.11.01 a quarrel had ensued between the

brothers of Rafi and family members of the deceased in which

brothers of Rafi had sustained injuries which incident was

reported to the police. In order to take revenge, Rafi and his

brother Sayed had dangerously attacked the deceased.

4. Thereafter SI Arvind Pratap Singh PW-14, proceeded to the

place of occurrence, where at the instance of Mumtaz Ahmad he

prepared rough site plan Ex.PW-14/A; recording therein, point

„A‟, „B‟, „C‟ and „D‟, the spots where the deceased was stabbed,

Mumtaz Ahmad witnessed the incident, the deceased having

fallen on the ground and a slipper of the deceased found lying

respectively. Const. Pradyuman Kumar (photographer) PW-13,

from the crime team reached the spot on being summoned. 5

photographs, Ex.PW-13/6 to Ex.PW-13/10; negatives whereof are

Ex.PW-13/5 to Ex.PW-13/5 were taken. Blood stained earth,

earth control and one slipper belonging to the deceased were

lifted from the ground near the police picket and seized vide

memo Ex.PW-10/A.

5. On the same day i.e. 08.11.01, the statement of

Khursheeda Begum PW-3, the mother of the deceased, who also

claimed to have witnessed the incident was recorded under

Section 161 CrPC wherein she also indicted the appellants as the

assailants of the deceased.

6. That the deceased succumbed to his injuries at the

hospital as noted in the MLC Ex.PW-5/B. We note that the

following injuries are recorded on the MLC Ex.PW-5/B of the

deceased:-

"(1) 7 cm x 4 cm spindle shape, underlying muscle exposed. Infra-scapular region left side. Active bleeding.

(2) 3.5 cm x 1.0 cm spindle shape wound over left scepra-scapular region laterally."

7. SI Arvind Pratap Singh PW-14, collected the MLC Ex.PW-5/B

of the deceased and the clothes which the deceased was

wearing at the time of the incident from the hospital and seized

the said clothes vide memo Ex.PW-14/B.

8. The body of the deceased was sent to the mortuary where

Dr.K.Goel PW-4, conducted the post-mortem at 12.45 P.M. on

09.11.01 and gave his report Ex.PW-4/A which records that

following external injuries were found on the person of the

deceased:-

"1. Abrasion 1.5 x 1 cm over left side of chin with superficial laceration 1 cm long in between the abraded area.

2. Stitched wound obliquely placed over left side back of chest about 3 cm left to the mid line and 5 cm below the inferior border of left scapula of size about 6.5 cm long. On opening the stitches the wound is

found to be incised with wound gapping about 1.75 cm. The lower angle was acute and upper one was somewhat roundish. More or less, wound was spindle shape.

3. Stitched wound 3.5 cm long, transversely placed over upper part of scapular region. On opening it was found to clean incised wound of size 3.5 cm x 1 cm. Spindle shape i.e one angle was acute and other one was less acute or somewhat roundish.

4. Stitched wound 3.5 cm long obliquely placed about 9 cm below left axilla at left mid-axillary line.

(Surgical wound for drainage tube)

The report further records that about 700-800 cc of blood

and clots were present in the chest cavity; that the depth of the

wound caused by injury no.2 was 16-17 cms; that the cause of

death was asphyxia with element of hemorrhagic shock

consequent upon injury to left lung as a result of injury no.2

which was sufficient to cause death in ordinary course of nature;

that all injuries were ante-mortem; that injuries nos. 2 and 3

were caused by sharp, cutting, penetrating, flat and straight

weapon; that injury no.1 was caused by the impact of blunt

force and that injury no.4 was caused as a result of a surgical

operation performed on the deceased at the hospital.

9. After conducting the post-mortem, the doctor handed over

the blood sample of the deceased on a gauze to Inspector

Rajender Singh Adhikari PW-18, who seized the same vide

memo Ex.PW-18/C.

10. Since the two eye-witnesses; namely, Mumtaz Ahmad PW-

2, and Khursheeda Begum PW-3, had indicted the appellants of

having murdered the deceased, the police set out to apprehend

them. On basis of a secret information, the appellants were

arrested on 10.11.01 as per arrest memos Ex.PW-16/A2 and

Ex.PW-16/B2. Inspector Rajender Singh Adhikari PW-18,

interrogated the appellants in the presence of Const. Bhupender

Singh PW-16 and SI Rajeev Vats PW17. Appellant Rafi Ahmad

made a disclosure statement Ex.PW-16/A, admitting having

committed the crime and using a knife to stab the deceased; he

stated that he had hidden the knife and can take the police to

the place where the knife was hidden by him. Appellant Sayeed

Ahmad made a confessional statement Ex.PW-16/B admitting

having participated in the crime. After making the disclosure

statement, appellant Rafi Ahmad led the afore-noted police

officers to a railway track underneath the flyover at Pul Mithai

and got recovered a knife Ex.P-1 concealed in the bushes. The

said knife was seized vide memo Ex.PW-16/C. Inspector R.S.

Adhikari PW-18, prepared the sketch Ex.PW-16/D of the knife

Ex.P-1. Since the appellant Rafi Ahmad had stated in his

disclosure statement Ex.PW-16/A that the clothes which he was

wearing at the time of his arrest were the same clothes which

he was wearing at the time of the incident, the said clothes

were seized vide memo Ex.PW-16/E.

11. The knife Ex.P-1 was sent to Dr.K.Goel PW-4, who had

conducted the post-mortem of the deceased, for his opinion.

Vide his opinion Ex.PW-4/D, the doctor opined that the injuries

nos. 2 and 3 recorded in the post-mortem report Ex.PW-4/A are

possible to have been caused by the knife Ex.P-1 or by any

other similar type of knife.

12. The seized materials; namely, earth control, blood stained

earth and slipper lifted from the spot; the clothes and blood

sample of the deceased; the clothes of appellant Rafi Ahmad

and the knife Ex.P-1 were sent to FSL for serelogical test. Vide

FSL reports Ex.PW-15/A and Ex.PW-15/B; it was opined that the

blood group of the deceased was „AB‟; that human blood of „AB‟

group was detected on the blood sample earth lifted from the

spot, the clothes of the deceased, the clothes of appellant Rafi

Ahmad and the knife Ex.P-1; that human blood was detected on

the slipper lifted from the spot, group whereof could not be

determined.

13. Needless to state, the appellants were sent for trial.

Charges were framed against them for having committing the

offence punishable under Sections 302/34 IPC.

14. Apart from examining the police officers associated with

the investigation, Mumtaz Ahmad, the maternal uncle of the

deceased, Khursheeda Begum, the mother of the deceased,

Iftiqar Ahmad, the father of the deceased, HC Ajit Pal Singh and

Const. Krishan Swaroop were examined as PW-2, PW-3, PW-8,

PW-10 and PW-12 respectively.

15. Mumtaz Ahmad PW-2, deposed in complete harmony with

his earlier statement Ex.PW-2/A.

16. Khursheeda Begum PW-3, the mother of the deceased,

deposed that on 08.11.01 at about 4.30 P.M. she and the

deceased were proceeding on foot to the market. On the way

the deceased lagged behind her by a few steps. Suddenly she

heard the cries of the deceased whereupon she turned back and

saw that appellant Sayeed had caught hold of the deceased and

that appellant Rafi Ahmad had inflicted a knife blow on the back

of the deceased. Mumtaz Ahmad who was present at the spot

provided support to the deceased and took him to the police

picket nearby. She immediately went to her residence and

informed her husband about the incident. Her husband and

Mumtaz Ahmad removed the deceased to the hospital, where

the deceased succumbed to his injuries. That on 06.11.01 a

quarrel had ensued between the family members of the

deceased and appellant Rafi in which the brother of appellant

Rafi had sustained an injury and that the said matter was

reported to the police.

17. Iftiquar Ahmad PW-8, the father of the deceased, deposed

that on 08.11.01 he was present at his residence when at about

4.30 P.M. his wife came there and told him that the deceased

has been stabbed. He rushed to the police picket nearby where

he found that the deceased was lying in an injured condition. He

and Mumtaz Ahmad who was also present at the police picket

removed the deceased to St. Stephen hospital in a TSR. That on

the way to the hospital the deceased regained consciousness

and told him that he was attacked by the appellants. That

appellant Sayeed had caught hold of him and appellant Rafi

Ahmad had stabbed him.

18. HC Ajit Singh PW-10, deposed that on 08.11.01 he was

present at the police picket Kishan Ganj when at around 4.30

P.M. he heard voices that a boy had been stabbed, whereupon

he came out of the picket and saw Mumtaz Ahmad escorting the

deceased, who was in an injured condition, to the picket. The

deceased became unconscious and fell on the ground near the

picket. In the meanwhile the father of the deceased also

reached the picket. He helped Mumtaz Ahmad and father of the

deceased in removing the deceased to the hospital in a TSR.

19. HC Krishan Swaroop PW-12, deposed that an FIR bearing

No.248/2001 Ex.PW-12/A was registered in connection with the

quarrel which had taken place between the family members of

the deceased and appellant Rafi Ahmad on 06.11.01.

20. In their respective statements under Section 313 CrPC the

appellants denied everything and pleaded false implication.

21. Holding that the evidence of the two eye-witnesses;

namely Mumtaz Ahmad PW-2 and Khursheeda Begum PW-3,

inspires confidence, but disbelieving the version of Iftiquar

Ahmad PW-8, that the deceased had made a dying declaration

to him before his death, vide judgment and order dated

30.08.05 the learned Trial Judge has convicted the appellants of

having murdered the deceased and has sentenced them to

undergo imprisonment for life.

22. At the hearing of the appeal, learned counsel for the

appellant advanced submissions on following 8 counts:-

I     That the eye-witnesses were interested.

II    Effect of non-examination of the public witnesses.

III Variance between medical evidence and ocular evidence.

IV Evidence of Mumtaz Ahmad PW-2, Khursheeda Begum PW-

3, Iftiquar Ahmad PW-8 and Ajit Singh PW-10 is unconvincing.

V Evidence pertaining to the recovery of incriminating

articles at the instance of appellant Rafi Ahmad is tainted.

VI Lapses in the investigation.

VII Scientific evidence belies the case of the prosecution.

23. From the narrative of the investigation, it is apparent that

the case of the prosecution succeeded on the deposition of PW-

2 and PW-3, the two eye-witnesses; the disclosure statement of

appellant Rafi Ahmad and the recovery of the knife; the report

of the Sereologist with respect to the blood group of the

deceased and human blood of same group detected on the

clothes of appellant Rafi Ahmad as also the knife. Needless to

state, the motive for the crime was the quarrel which had taken

place in the intervening night of 06/07.11.01.

Witnesses being Interested

24. The first submission advanced by the learned counsel for

the appellants was that the evidence on record establishes that

the two eye-witnesses; namely, Mumtaz Ahmad PW-2 and

Khursheeda Begum PW-3, were the close relatives of the

deceased, and were inimically disposed towards the appellants

inasmuch as a quarrel had ensued between the family members

of the deceased and the appellants few days prior to the

incident and therefore, counsel urged it is not safe to rely upon

their evidence to sustain the conviction of the appellants as

their evidence is highly tainted. In support of the said

submission, reliance was placed by the counsel on the decision

of the Supreme Court reported as Chandra Mohan Tiwari v State

of M.P. AIR 1992 SC 891.

25. Far from supporting the contention urged by the learned

counsel for the appellants, the decision goes against the

contention urged. The facts of the said case were that the

deceased who was raped by the accused persons was murdered

by them in order to stop her from giving evidence in a criminal

trial pertaining to the offence of rape. The incident of murder

was witnessed by her parents. The learned Trial Judge held the

accused persons not guilty of the offence of murder and

consequently acquitted them. In appeal, the High Court held

that the prosecution has satisfactorily established the guilt of

the accused persons beyond all reasonable doubts and thus

convicted the accused persons. In appeal, a submission was

advanced before the Supreme Court that the parents had

developed rancor towards the accused persons and therefore

their evidence should not be accepted as they are highly

interested witnesses. The said submission was dealt with by the

court in the following words:-

"32. No doubt, it is true that the evidence of PWs 5 and 6 is that of the interested party in that both of them are the parents of the victim and that they had animus towards the appellants. As dexterously emphasised by the Supreme Court on many occasions that interested witnesses are not necessarily false witnesses though the fact that those witnesses have personal interest or stake in the matter must put the Court on its guard, that the evidence of such witnesses must be subjected to close scrutiny and the Court must assess the testimony of each important witness and indicate the reasons for accepting or rejecting it and that no evidence should be at once disregarded simply because it came from interested parties. Vide Siya Ram Rai v. State of Bihar (1973) 3 SCC 241; Sarwan Singh v. State of Punjab. (1976) 4 SCC 369 Birbal v. Kedar AIR 1977 SC 1; Gopal Singh v. State of U.P. AIR 1979 SC 1822; Han Obulla Reddy and Ors. v. State of Andhra Pradesh AIR 1981 SC 82; and Anvamddin and Ors. v. Shakoor and Ors. [1990] 2 Judgements Today S.C. 83."

26. On an ultimate analysis of the testimony of the parents of

the deceased in the backdrop of the fact that being parents of

the deceased, they would be least disposed to falsely implicate

the accused persons and substitute them in the place of the real

culprits, the Supreme Court found their evidence to be

creditworthy and sustained the conviction of the accused

persons. It is relevant to note that one of the factors which

weighed with the court in arriving at the conclusion was that the

parents had lodged the FIR within an hour of the occurrence i.e.

got no time to contrive facts.

27. Suffice would it be to state that a relation of the victim, by

said fact alone cannot be labeled as an interested witness. A

witness can be labeled as an interested witness if there are

reasons to believe that the witness has an axe to grind i.e. has a

motive to see that by hook or by crook the accused are put

behind bars. Even when there are reasons to suspect that a

witness is an interested witness, on said count alone, his

testimony cannot be rejected. The rule of prudence requiring

the testimony of such witness to be microscopically examined

has to be applied.

28. In the instant case, it is to be noted that Mumtaz Ahmad

had met SI Arvind Pratap Singh PW-14, at St. Stephens Hospital.

The incident took place at around 4.30 P.M. The FIR stands

registered at around 6.10 P.M. Statement Ex.PW-2/A made by

Mumtaz Ahmad before SI Arvind Pratap has preceded the FIR. It

shows the presence of Mumtaz Ahmad with the deceased. The

MLC of the deceased records that the deceased has been

brought to the hospital at 5.05 P.M. by PW-8. This establishes

that PW-8, the father of the deceased had reached the place of

the occurrence, obviously when he got information of his son

being stabbed. The mother of the deceased had deposed that

she had told PW-8 that their son was stabbed. Cumulatively

read, PW-2, PW-3 and PW-8 have corroborated each other on all

material aspects of how the deceased was attacked and what

happened thereafter till he was removed to the hospital.

Non-Examination of Public Witnesses

29. The submission that public witnesses were not examined

by the police, as was urged in the case is being urged in

virtually every appeal before us. We are noticing a most

unfortunate trend, in virtual every case, where a public witness

is associated in an investigation, of the witnesses turning

hostile. We do not propose to pen a thesis as to why there is

public apathy towards crimes in metropolitan cities. But, the

fact that no public witness was associated, by itself is no ground

to disbelieve the prosecution. Of course, where the witnesses of

the prosecution who are related to the deceased are found to be

lacking in creditworthiness, courts have emphasized the

prudence of involving respectable public spirited citizens during

investigation because their participation would lend credibility

to the evidence gathered by the prosecution.

30. In this regards, the observations of the Supreme Court in

the decision reported as Sarwan Singh v State of Punjab (2003)

1 SCC 240 may be noted:-

"As regards the examination of independent persons or witnesses, we would do well to note a decision of this Court in Ambika Prasad and Anr. v. State (Delhi Admn.) (2002) 2 SCC 646, wherein this Court in paragraph 12 observed:

"12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the incident as deposed by the prosecution witnesses, not a single independent witness has been examined and,therefore, no reliance should be placed on the evidence of PW5 and PW7. This submission also deserves to be rejected. It is known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournment in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it

cannot be a ground for rejecting the evidence of injured witnesses. Dealing with a similar contention in State U.P. v.Anil Singh (1988 Supp SCC 686), this Court observed:(SC pp. 691-92, para 15) "In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable."

The test of creditworthiness and acceptability in our view,ought to be the guiding factors and if so the requirements as above, stand answered in the affirmative, question of raising an eyebrow on reliability of witness would be futile. The test is the credibility and acceptability of the witnesses available - if they are so, the prosecution should be able to prove the case with their assistance. Coming to the contextual facts once again, while it is true that there is no independent witness but the evidence available on record does inspire confidence and the appellant has not been able to shake the credibility of the eye-witnesses. There is not even any material contradiction in the case of the prosecution."

Variance between Medical Evidence and Ocular Evidence

31. Submissions under head III and IV made by the learned

counsel for the appellants related to the creditworthiness of the

testimony of PW-2, PW-3, PW-8 and PW-10. The submissions

pertaining to there being variance between medical evidence

and ocular evidence are being dealt with by us before discussing

submissions pertaining to the second head thereof. The first

variance pointed out by the learned counsel for the appellant

was that both the eye-witnesses particularly Mumtaz Ahmad

PW-2, had deposed that appellant Rafi Ahmad had inflicted a

single knife blow on the person of the deceased whereas the

post-mortem report Ex.PW-4/A of the deceased records that four

injuries were noted on the person of the deceased. The counsel

further submitted that the evidence of Dr.K.Goel PW-4, who had

conducted the post-mortem records that the injuries nos. (ii) and

(iii) found on the person of the deceased were caused in two

different attempts, establishes that at least two knife blows were

inflicted on the person of the deceased. To contend that the said

variance is fatal to the case of the prosecution, the counsel

placed reliance upon the decisions of the Supreme Court

reported as Piara Singh v State of Punjab 1977 Cri LJ 1941,

Purshottam v State of M.P. 1980 Cri LJ 1298 and Bejoy Singh v

State of W.B. 1990 SCC (Cr.) 289. The second variance pointed

out was that both, the MLC Ex.PW-5/B and the post-mortem

report Ex.PW-4/A of the deceased, records that spindle shaped

wounds were found on the person of the deceased which belies

the case of the prosecution that the knife Ex.P-1 allegedly

recovered at the instance of appellant Rafi Ahmad which was

single edged, was the weapon of offence, inasmuch as it is

settled principle of medical jurisprudence that a spindle shaped

injury is caused when the weapon used for inflicting the said

injury is double-edged. In support of the contention that spindle

shaped injuries are caused by the doubled edged weapon the

counsel placed reliance upon the decision of this court reported

as Rishi Pal v State 1994 (1) C.C. Cases 509 (HC).

32. The first variance pointed out by the learned counsel is

predicated upon the number of injuries found on the person of

the deceased. Insofar as injury no. (i) noted in the post-mortem

report Ex.PW-4/A namely, abrasion on the chin is concerned, it is

quite possible that the deceased had sustained the said injury

prior to the incident or at the time when he fell on the ground

near the police picket after the incident. In any case, the said

injury cannot be attributed to a knife blow. Injury no. (iv) noted

in the post-mortem report is not a stab injury inasmuch as the

doctor who had conducted the post-mortem of the deceased

had deposed that the said injury was a result of a surgical

operation performed on the deceased at the hospital. Thus,

injuries nos. (ii) and (iii) are the only stab injuries. Therefore, the

apparent variance which emerges from an analysis of the post-

mortem report Ex.PW-4/A is that two stab injuries were found on

the person of the deceased whereas the eye-witnesses had

deposed that appellant Rafi Ahmad had inflicted one knife blow

on the person of the deceased.

33. Subjecting to a close scrutiny of the testimony of

Khursheeda Begum PW-3, the mother of the deceased, the

possibility of her missing seeing, a second knife blow being

inflicted on the person of the deceased cannot be ruled out. As

already noted in foregoing paragraphs, Khursheeda Begum PW-

3, had deposed that she was walking ahead of the deceased at

the time of the incident and that she had witnessed the incident

when she had turned back on hearing the cries of the deceased.

It is quite possible that appellant Rafi Ahmad had already

inflicted a knife blow on the person of the deceased by the time

Khursheeda Begum had turned back, which possibility is

strengthened by the fact that Khursheeda Begum had heard

cries of the deceased, which attracted her attention.

34. That even Mumtaz Ahmad PW-2, deposed of seeing one

knife blow being inflicted by appellant Rafi Ahmad on the person

of the deceased and there were in fact two stab wounds, is not a

variance of a kind projected by the learned counsel for the

appellants. The same is explainable. Obivously, Mumtaz

Ahmad‟s attention got drawn towards the deceased even when

he heard a commotion on the street. The possibility of his not

seeing first stab blow being inflicted cannot be ruled out. In the

decision of Madras High Court reported as Velmurugan v State

MANU/TN/8290/2007, the murder of the deceased by the

accused was witnessed by the husband of the deceased who

had deposed that the accused had inflicted a single blow with a

spade on the person of the deceased, whereas three injuries

were found on the person of the deceased as per the medical

evidence. A contention was advanced before the court that the

evidence given by the husband is doubtful on account of the

said variance between the ocular evidence of the husband and

medical evidence. Repelling the said contention, the court

observed that when a person is witnessing an incident in which

his wife is being attacked with a spade, he could not correctly

give account of the number of injuries sustained because he

would be under the grip of fear and panic. The decision guides

us that rationale and normal human conduct of an ordinary

person has to be kept in mind while subjecting the deposition of

a witness to a scrutiny.

35. In the decision reported as State of Punjab v Hakam Singh

AIR 2005 SC 3759 it was held by the Supreme that whenever

there is a conflict between medical evidence and ocular

testimony; normally ocular testimony should be preferred unless

it belies fundamental facts. The decision guides us that unless

the conflict between medical and ocular evidence is of

irreconcilable opposites, credence and preference has to be

given to ocular evidence subject to the caution that the ocular

testimony should not be in conflict with fundamental facts.

36. In the decision reported as State of MP v Dharkole @

Govind Singh AIR 2005 SC 44 the Supreme Court observed as

under:-

"It is trite that where the eye-witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts; the 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation." (Emphasis Supplied)

37. Judged in the light of the afore-noted two decisions of the

Supreme Court and considering the fact that Mumtaz Ahmad

PW-2 and Khursheeda Begum PW-3, were witnessing the murder

of a close relative and therefore, could have missed registering

the minute details of the incident, the first variance pointed out

by the learned counsel for the appellants is of no consequence

as it does not belies the fundamental facts of the case set up by

the prosecution against the appellants.

38. The decisions relied upon by the learned counsel of the

Supreme Court in Piara Singh's case (supra) in no way help the

appellants. In the said case, there was a difference in the

opinion of the two doctors regarding the weapon by which an

injury was caused on the person of the deceased. One doctor

had deposed that the injury in question was caused by a fire-

arm which supported the evidence of the eye-witnesses while

another doctor opined that the injury in question was not caused

by a firearm. The learned Trial Judge disbelieved the prosecution

case mainly on the ground that the ocular evidence was

inconsistent with the medical evidence. Holding that it was not a

case of ocular evidence being totally inconsistent with the

medical evidence, but was a case where there was some doubt

in the opinion of the experts about the weapon of offence, it was

held that and that where there is a conflict between the opinion

of the two experts, the court should normally accept the

evidence of the expert whose evidence is corroborated by direct

evidence, the Supreme Court convicted the accused persons.

39. The decisions of Supreme Court in Purshottam and Bejoy

Singh‟s cases (supra) cited by learned counsel are clearly

distinguishable. The facts of Purshottam‟s case (supra) are that

the eye-witnesses had deposed that the three accused persons

had given blows with pharsis on the head of the deceased and

that the deceased had purportedly made a dying declaration

that the three accused persons had beaten him with pharsis.

The doctor who performed the autopsy found only one external

cut wound on left parietal area of the deceased and opined that

the said injury could not be caused by two simultaneous

blows/strokes. He further opined that after receiving said fatal

injury on his head, the deceased must have immediately lost

consciousness and could not have regained consciousness or

spoken anything till his death. The facts of Bejoy Singh‟s case

(supra) are that the eye-witnesses had deposed that the three

accused persons had caught hold of the deceased while he was

being stabbed by the other accused persons. The doctor who

conducted the autopsy found a number of injuries on the hands,

forearm and fingers of the deceased and opined that the said

injuries were defensive in nature. Holding that the medical

evidence belies the version of the eye-witnesses inasmuch as

number of injuries found on the person of the deceased would

go to show that nobody had held the deceased in the manner

spoken to by the eye-witnesses, Supreme Court acquitted the

three accused persons. From the afore-noted facts of the two

decisions relied upon by the counsel, it is clear that there was a

glaring inconsistency between the ocular evidence and medical

evidence, which is not the position in the present case.

40. The second variance pointed out by the learned counsel

for the appellants is predicated upon the shape of the entry

wound pertaining to the injuries sustained by the deceased,

recorded in the MLC Ex.PW-5/B and the post-mortem report

Ex.PW-4/A of the deceased.

41. No doubt, it is a sound proposition that a spindle shaped

injury is caused by a doubled edged weapon.

42. A spindle shaped injury is one which has acute edges at

both ends. While describing injuries nos. (ii) and (iii), Dr.K.Goel

PW-4, who had conducted post-mortem of the deceased, had

deposed that one angle of the said injuries was acute while the

other was somewhat „roundish‟. It is apparent that the rounded

angle of the injuries would signify a blunt side of a knife. While

rendering opinion as to weapon of offence, Dr.K.Goel PW-4, had

clarified the matter by stating that the 'injuries received by the

deceased were having one of the angle in acute and other one

was more or less roundish which is consistent being inflicted by

single sharp edged weapon'. In the light of the fact that one

angle of the injuries was roundish, the use of the word 'spindle

shape' by the doctors while describing the injuries sustained by

the deceased is nothing more other than the use of an

inappropriate expression. Spindle shape injury will also, to some

extent, be round (See the decision of Andhra Pradesh High Court

reported as Public Prosecutor v Manchanamolu AIR 1965 AP

251). Therefore, it is clear that the doctors who had prepared

the MLC Ex.PW-5/B and the post-mortem report Ex.PW-4/A of the

deceased had loosely used the word „spindle shaped‟ to

describe the injuries sustained by the deceased.

43. The submission relating to description of the injuries

sustained by the deceased as „spindle shaped‟ predicated on the

MLC Ex.PW-5/B and the post-mortem report Ex.PW-4/A of the

deceased to be merely quibbling with words and there is no

incongruity and contradiction between the medical evidence and

ocular evidence regarding the weapon of offence, particularly

when the doctor who had conducted the post-mortem of the

deceased had categorically deposed that the injuries found on

the person of the deceased were possible to have been inflicted

by the knife Ex.P-1 which was recovered at the instance of

appellant Rafi Ahmad.

Submisson IV pertaining to testimony of PW-2, PW-3, PW3-8 and

PW-10

44. The fourth submission advanced by the learned counsel

was that the testimony of Mumtaz Ahmad PW-2, Khursheeda

Begum PW-3, Iftiquar Ahmad PW-8, and Ajit Pal Singh PW-10

showed that the witnesses contradicted each other regarding

the presence of each other and that the so called eye-witnesses

were not eye-witnesses. The contention needs to be dealt with

reference to the deposition of the four witnesses.

45. The testimony of Mumtaz Ahmad PW-2, was urged as

being unconvincing, on the following reasons; namely, (i)

Mumtaz Ahmad PW-2, had deposed that the deceased was

bleeding profusely at the time he was walking from the place

where he was stabbed to the police picket; whereas

investigating officer A.P.Singh PW-14, had deposed that he did

not find any trail of blood between the two points between the

said two points. In support of the submission that the absence of

the blood trail makes the testimony of Mumtaz Ahmad PW-2,

susceptible, learned counsel placed reliance upon the decision

of this court reported as Rishi Pal v State 1994 (1) C.C. Cases

509 (HC); (ii) Mumtaz Ahmad PW-2, had deposed that he, along

with Iftiquar Ahmad PW-8, the father of the deceased, had

removed the deceased to the hospital. Learned counsel urged

that this testimony is not supported by the MLC Ex.PW-5/B of the

deceased wherein there is no mention of the names of Mumtaz

Ahmad or Iftiquar Ahmad as the persons who had brought the

deceased to the hospital; (iii) had Mumtaz Ahmad PW-2, been an

eye-witness to the incident as claimed by him, the police officers

necessarily would have involved him in the investigation

conducted at the spot as he would have provided them with the

necessary details of the incident whereas the fact that Mumtaz

Ahmad had not deposed a word about the investigation

conducted at the spot by the police officers evidences that he

had not participated in the investigation conducted at the spot

which, according to the learned counsel raises serious doubts on

his claim of being an eye-witness to the incident; (iv) there is a

serious contradiction in the evidence of Mumtaz Ahmad PW-2,

regarding the manner in which the deceased was held by the

appellant Sayeed Ahmad at the time of the incident; inasmuch

as, learned counsel urged that Mumtaz Ahmad had firstly

deposed that appellant Sayeed Ahmad had caught hold of the

deceased whereas he had later deposed that the appellant had

caught of the hand of the deceased; (v) there is a contradiction

between the evidence of Mumtaz Ahmad PW-2 and Khursheeda

Begum PW-3, the mother of the deceased, regarding the

position of the deceased and his mother at the time of the

incident; inasmuch as Mumtaz Ahmad had deposed that the

deceased was walking ahead of his mother whereas Khursheeda

Begum had deposed that she was walking ahead of the

deceased at the time of the incident (vi) the incident had

happened in a flash of the moment and therefore Mumtaz

Ahmad PW-2, who claimed to be present few yards away from

the place of the occurrence could not have witnessed the

incident. In support of the contention that the duration of the

incident rules out the possibility of Mumtaz Ahmad witnessing

the incident, the counsel placed reliance upon the decision of

the Supreme Court reported as Hardeep Singh v State of

Haryana 2002 CAR 621.

46. Pertaining to the submission that trail of blood was not

detected between the spot where the deceased was assaulted

and the spot where he had fallen on the ground near the police

picket, it would be relevant to note that the post-mortem report

Ex.PW-4/A records that 700-800 cc of blood was found in the

chest cavity of the deceased; which indicates that there was no

profuse external bleeding from the body of the deceased. The

evidence of Mumtaz Ahmad PW-2, that the deceased was

bleeding profusely at the time of the incident has to be analyzed

keeping in view that even less quantity of blood oozing out from

a wound would appear to be profuse bleeding to the eye of an

ordinary person. It is further relevant to note that the clothes

which the deceased was wearing at the time of the incident

were found to be stained with blood as recorded in the FSL

reports Ex.PW-15/A and Ex.PW-15/B, therefore, the possibility

that the clothes of the deceased had absorbed the flow of blood

leaving no trail of blood is explainable. The fact that earth lifted

from the place near the police picket was found to be stained

with blood lends credence to the evidence of Mumtaz Ahmad

PW-2, that the deceased had fallen on the ground near the

police picket after the incident.

47. The decision of this court in Rishi Pal‟s case (supra) relied

upon by the learned counsel has certain distinguishing features

from the present case. In the said case, the case set up by the

prosecution against the accused persons was that on the fateful

day, the deceased was present at his tea stall when four

accused persons, armed with open knives and hockey sticks

came, and one of the accused struck a blow on the head of the

deceased with a hockey stick. Thereafter, the deceased ran

away from the stall to save his life but the accused caught hold

of him at a nearby halwai shop and stabbed him on his back and

stomach whereupon the deceased, who was bleeding profusely,

fell on the ground and succumbed to his injuries. There was no

evidence to show that the clothes of the deceased, accused or

eyewitnesses were stained with blood, which could have

justified obstruction of flow of blood to leave a trail. There was

also no evidence to show that the blood was found near the

place of the occurrence. It was in these circumstances the court

held that absence of trail of blood assumes significance and is

fatal to the case of the prosecution.

48. The submission relating to non-mention of the name of

Mumtaz Ahmad PW-2 and Iftiquar Ahmad PW-8, in the MLC

Ex.PW-5/B of the deceased is based on an incorrect reading of

the said MLC for the reason the MLC clearly records that Iftiquar

Ahmad PW-8, the father of the deceased, had brought the

deceased to the hospital. Additionally, it has to be noted that

Dr.Vijay Kataria PW-6, who administered treatment to the

deceased at the hospital, had also categorically deposed that

the father of the deceased had brought the deceased to the

hospital.

49. The submission that Mumtaz Ahmed PW-2 did not depose

the facts pertaining to the preparation of the site plan at site

and the seizure of blood stained earth, control earth and slipper

of the deceased evidences that he never participated in the

investigation at site and hence it is doubtful that he was an eye-

witness, is without any factual foundation for the reason Mumtaz

Ahmed has clearly deposed that the site plan to scale was

prepared in his presence. Be that as it may, it is not necessary

to join an eye-witness in every part of the investigation.

50. The submission by learned counsel for the appellant that

Khursheeda Begum PW-3 and Mumtaz Ahmed PW-2 have

contradicted each other with reference to whether Khursheeda

Begum was ahead of the deceased or whether the deceased

was ahead of Khursheeda Begum. Counsel pointed out that

according to Khursheeda Begum the deceased had lagged

behind, but according to Mumtaz Ahmed, the deceased was in

front of the mother. We find no contradiction. The reason is the

position shown in the site plan from where Mumtaz Ahmed

witnessed the occurrence. The site plan shows that Mumtaz

Ahmed was sitting next to the street a little ahead of the point

where Khursheeda Begum was present when her son was

stabbed. The spot where her son was stabbed is further behind.

It is obvious that when she heard the cry of her son, Khursheeda

Begum turned back to see her son and as a result any person

sitting at the spot where Mumtaz Ahmed was sitting would say

that the son was ahead of Khursheeda Begum.

51. Be that as it may, it is settled law that discrepancies which

do not go to the root of the matter and which do not shake the

basic version of the witnesses, cannot be attached with undue

importance. (See the decision of Supreme Court reported as

Bharwada Bhoginbhai Hirjibhai v State of Gujarat AIR 1983 SC

753).

52. Pertaining to the submission that Mumtaz Ahmad PW-2,

could not have witnessed the incident because everything

happened in a flash, it would be relevant to note the sequence

of the events which led to the murder of the deceased. The

sequence of events forthcoming from the evidence on record is

that appellants came from behind and Sayeed caught the

deceased and Rafi Ahmed stabbed him. The cry of the

deceased attracted the attention of his mother and Mumtaz

Ahmed. The mother of the deceased and Mumtaz Ahmed were

at the place of the occurrence itself; a little distance away. It is

but natural that the deceased must have shouted the moment

he was caught from behind and the said cry attracted the

attention of Mumtaz Ahmed and the mother of the deceased, if

not earlier, simultaneously at the flash of the second when the

knife blows were inflicted on the deceased.

53. The decision in Hardeep Singh‟s case (supra) cited by

learned counsel for the appellants is inapplicable as the facts

thereof are entirely different from the facts of the present case.

In the said case, the version of the two eye-witnesses was that

they were talking to each other and were about 200-250 feet

away from the place of the occurrence when they heard the

alarm raised by the deceased, whereupon they proceeded in the

direction from where the voice was coming and had witnessed

the accused persons committing the murder of the deceased

whey they were about 20-25 feet away from the scene of the

occurrence. After noting that as per medical report only one

injury was found on the person of the deceased which indicates

that the deceased was attacked in the twinkling of an eye,

Supreme Court held that it is improbable that the eye-witnesses

had seen the incident, for the reason if their version is believed,

the injury would have already been inflicted on the person of

the deceased by the time they had traveled the distance of 180-

200 feet in reaching the point from where they claimed to have

witnessed the incident. The plea that Mumtaz Ahmed

contradicted himself, in as much, at one stage he said that

Sayeed caught hold of the deceased but later on deposed that

he caught the hand of the deceased, is immaterial, being trivial.

54. It was urged that the testimony of Khursheeda Begum PW-

3 is unconvincing because of the following reasons; namely, (i)

the conduct of Khursheeda Begum PW-3, of running away from

the place of the occurrence to call her husband, leaving behind

her critically injured son is most unnatural which makes her

presence at the spot susceptible. In support of the contention

that the evidence of Khursheeda Begum should not be believed

on account of her unnatural conduct, the counsel placed

reliance upon the decisions reported as Bhimappa Junapa

Nagaur v State of Karnataka 1993 (2) CC Cases 72 (SC) and Raj

Kumar v State 1997 (2) CC Cases 291; (ii) the position of

Khursheeda Begum PW-3, is not shown in the site plan Ex.PW-

14/A which fact makes her presence at the spot doubtful; (iii)

the incident had happened in a flash makes improbable the

testimony of Khursheeda Begum PW-3, that she had turned

back and witnessed the incident.

55. Pertaining to the submission relating to the conduct of the

mother of the deceased, it would be beneficial to note the

following observations made by Supreme Court in the decision

reported as State of Karnataka v K. Yellappa Reddy AIR 2000 SC

185:-

"The other reason to disbelieve her evidence is that if PW-11 had seen the murder she would have cried out or shouted. This is what the High Court had said about that aspect:

She claims to have remained calm like a stone in the house. This unnatural conduct of Sharadamma makes her evidence highly suspect and incredible. Would she not have atleast told the neighbours that a girl had been murdered in a room of her house and that the accused, if he really had done so, had murdered the girl in the room. This passive conduct of hers makes her evidence highly suspect.

Criminal Courts should not expect a set reaction from any eye witness on seeing an incident like murder. If five persons witness one incident there could be five different types of reactions from each of them. It is neither a tutored impact nor a structured reaction which the eye witness can make. It is fallacious to suggest that PW-11 would have done this or that on seeing the incident. Unless the reaction demonstrated by an eye witness is so improbable or so inconceivable from any human being pitted in such a situation it is unfair to dub his reactions as unnatural."

56. It has to be kept in mind that Khursheeda Begum is a

housewife and would not react the same way as a working

woman would so do. The fact that Mumtaz Ahmed was present

at the spot and took charge of the situation i.e. helped the

deceased, who was then injured, to walk up to the police picket,

would obviously have weighed with Khursheeda Begum. Her

conduct of rushing to the house to call her husband cannot be

classified as an unnatural conduct justifying an inference that

she was not present at the spot.

57. Facts in Bhimappa‟s case (supra) are that the wife of the

deceased claimed to have witnessed the murder of her husband.

The principal ground for disbelieving her evidence was that

there was a material variance between the ocular evidence and

medical evidence regarding the time of the assault. Additionally,

Supreme Court noted that even the conduct of the wife after the

occurrence of not nursing or offering any other help to her

critically injured husband but remaining a mute spectator is

most unnatural which renders her presence at the spot doubtful.

In Raj Kumar‟s case (supra), the conduct of an eye-witness of

not removing the deceased to the hospital but waiting for

another witness to come to the spot and not disclosing the

name of the assailant to the witness who had arrived at the spot

was found to be most unnatural and thus not worthy of any

credence by this court. By no stretch of imagination, the facts of

Raj Kumar‟s case (supra) can be equated with the facts of the

present case.

58. The plea that in the site plan the position of Khursheeda

Begum where from she witnessed the crime has not been shown

appears to have been argued without even looking at the site

plan to scale Ex.PW-7/B which clearly records, in the legend, the

place where from Khursheeda Begum witnessed the occurrence.

It appears that learned counsel has made the submission based

on the rough site plan Ex.PW-14/A.

59. We need not deal with the next submission advanced by

the learned counsel relating to duration of the said incident for

the reason we have already held in the preceding paragraphs

that the incident had not happened in a flash as sought to be

projected by the learned counsel for the appellants.

60. Assailing the testimony of Iftiquar Ahmad PW-8, the father

of the deceased, the counsel argued that Iftiquar Ahmad is a

„wholly unreliable‟ witness evident from the fact his testimony

pertaining to the dying declaration by the deceased was found

to be false by the trial court, therefore, no reliance should be

placed on the remaining testimony that he and Mumtaz Ahmad

had removed the deceased to the hospital.

61. The plea was urged to impinge the testimony of Mumtaz

Ahmed that both Mumtaz Ahmed and Iftikhar Ahmed removed

the deceased to the hospital. It was sought to be urged that if it

stood established that Iftiquar Ahmed was not present as

claimed by him, then even testimony of Mumtaz Ahmed would

be false; meaning thereby even presence of Mumtaz Ahmed

would be doubtful.

62. In India the witnesses have a tendency to over state or

exaggerate their cases. While appreciating ocular evidence, the

courts must separate the chaff from the grain; meaning thereby,

courts must try to extract and separate the hard core of the

truth from the testimony. In the instant case, the testimony of

Iftiquar Ahmad that he had removed the deceased to the

hospital is duly corroborated by the MLC Ex.PW-5/B of the

deceased which records that Iftiquar Ahmad had brought the

deceased to the hospital. Likewise, the evidence of Iftiquar

Ahmad that Mumtaz Ahmad had accompanied him at the time of

the removal of the deceased to the hospital stands corroborated

by the endorsement Ex.PW-9/C which records that SI Arvind

Pratap Singh PW-14, had met Mumtaz Ahmad at the hospital

soon after the occurrence.

63. The next submission advanced by the learned counsel for

the appellants was that the evidence of Const. Ajit Pal Singh PW-

10, is unconvincing because of the following reasons; namely (i)

being a police officer, it was incumbent upon Ajit Pal Singh PW-

10, to make an entry in the register maintained by him

regarding the incident, call the PCR van for removing the

deceased to the hospital, inform the police station about the

incident etc. However, the evidence on record establishes that

the said witness had performed none of the acts expected from

him and that the failure of the said witness in performing the

said acts is a strong pointer to the fact that he had not seen

Mumtaz Ahmad escorting the deceased to the police picket; that

the deceased falling on the ground near the police picket and

that Mumtaz Ahmad and Iftiquar Ahmad removing the deceased

to the hospital; (ii) the testimony of Ajit Pal Singh PW-10, that he

had helped Mumtaz Ahmad and Iftiquar Ahmad put the

deceased in a TSR is contrary to the evidence of Mumtaz Ahmad

PW-2, who had not deposed a word about the presence of Ajit

Pal Singh at the time of the removal of the deceased to the

hospital and Iftiquar Ahmad PW-8, who had categorically

deposed that besides he and Mumtaz Ahmad nobody else was

present at the time when the deceased was being removed to

the hospital.

64. The conduct of Ajit Pal Singh PW-10, in not performing the

official acts expected from him brings out the apathy of the

police officials towards the economically weaker sections of the

society.

65. It is settled law that when the direct testimony of the eye-

witnesses inspires confidence and fully establishes the

prosecution version, the failure or omission or negligence of the

police officer cannot affect the credibility of the prosecution

version. (See the decision of Supreme Court reported as Ram

Behari Yadav v State of Bihar AIR 1988 SC 1850).

66. That Ajit Pal Singh did not inform his superior officers

about the incident does not mean that Mumtaz Ahmed and

Iftiquar Ahmed have lied. That neither of the two speaking

about Ajit Pal Singh‟s presence does not mean that Ajit Pal Singh

lied that he helped the two to put the deceased inside a TSR.

The minor omission of Mumtaz Ahmed and Iftiquar Ahmed to

refer to a very miniscule role of Ajit Pal Singh is neither here nor

there. It has to be kept in mind that Ajit Pal Singh is not an eye-

witness. He played a very limited role in helping Mumtaz

Ahmed and Iftiquar Ahmed to put the deceased inside a TSR.

We are of the opinion that a witness not deposing about a trivial

facet of an event post commission of the crime is wholly

immaterial.

Recovery of Incriminating Articles

67. It was urged that the evidence relating to recovery of

incriminating articles is tainted because of the following

reasons; namely (i) the knife allegedly recovered at the instance

of appellant Rafi Ahmad was recovered from a place which was

open and accessible to all and hence was no recovery in the

eyes of law because the same did not inspire confidence. In

support of the said contention, learned counsel placed reliance

upon the decision of Punjab and Haryana High Court reported as

Mohinder Singh v State of Haryana 1995 1 Crimes 387; (ii) no

independent person was joined at the recovery of the

incriminating articles; (iii) Mumtaz Ahmad PW-2, had deposed

that he was called at the time of the recovery of the knife

whereas neither the police officers who were involved in the

recovery of the knife had deposed a word about the presence of

Mumtaz Ahmad nor any memo prepared in said regard contain

the signatures of Mumtaz Ahmad; (iv) the evidence of

Khursheeda Begum PW-3, that the knife Ex.P-1 allegedly

recovered at the instance of the appellant Rafi Ahmad is not the

knife with which he had stabbed the deceased when considered

in the light of the fact that she is a muslim lady and thus familiar

with knives/choppers because of her use of them in her daily life

demolishes the case of the prosecution that the said knife was

the weapon of the offence; (v) the fact that appellant Rafi

Ahmad was still wearing the same clothes which he was wearing

at the time of the incident at the time of his arrest which was

two days after the incident is highly improbable; likewise, it is

highly improbable that the appellants would have concealed the

blood-stained knife when they had ample opportunity to destroy

the same or at least wash the blood stains there from. In

support of the contention that the said improbability vitiates the

recoveries of the clothes and the knife, learned counsel relied

upon the decision of Punjab and Haryana High Court reported as

Liddu v State of Haryana 1994 1 CC Cases 599; (vi) appellant

Rafi Ahmad had made a disclosure statement to the effect that

the clothes which he is wearing at the time of his arrest are the

same clothes which he was wearing at the time of the incident;

the seizure of the clothes from the possession of the appellant

Rafi Ahmad is not something which was discovered pursuant to

the disclosure statement of the appellant therefore, the afore-

noted disclosure statement made by appellant Rafi Ahmad is

inadmissible in evidence. In support of the said contention, the

counsel relied upon the decision of this court reported as State

v Gurapal Singh 2006 (1) JCC 318; (vii) there is a discrepancy in

the memos relating to the recoveries of the incriminating

articles inasmuch as date of registration of the FIR recorded in

the said memos as 08.10.01 whereas the FIR in the present case

was registered on 08.11.01 which discrepancy indicates that the

memos were prepared by the police officers in a mechanical

manner.

68. Pertaining to submission that the knife was recovered from

a place which was open and accessible to all, suffice would it be

to note the following observations made by Supreme Court in

the decision reported as State of H.P. V Inder Singh AIR 1999 SC

1293:-

"There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is fallacious notion that when recovery of any incriminating article was made from a place which is open and accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open and accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."

69. In the instant case, the knife was found concealed in the

bushes. Therefore, the fact that the knife was recovered from a

place was accessible to others is no of relevance when it was

not ordinarily visible to others.

70. In Mohinder Singh‟ s case (supra) relied upon by the

counsel for the appellants, a barcha was found concealed under

a heap of toria lying in a field pursuant to the disclosure

statement made by the accused. It was held by Punjab and

Haryana High Court that the recovery of the said barcha is

vitiated as the same was recovered from an open place

accessible to all.

71. The said decision is not in consonance with the decision of

Supreme Court in Inder Singh‟ s case (supra).

72. Regarding the submission relating to non-joining of the

independent witnesses at the time of the recovery, we note the

following observations made by Supreme Court in the decision

reported as State v Sunil 2000 (7) SCALE 692:-

"Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the Investigating Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.

We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."

73. Therefore, the mere absence of the independent witness at

the time of the recovery of the incriminating articles at the

instance of the appellants, is not a sufficient ground to discard

the evidence.

74. It is true that Mumtaz Ahmed PW-2 has deposed that he

was called at the time of recovery of the knife. But, we note

that he is not a witness to the recovery memo. It is of

importance to note that said statement has been made by him

in cross examination. It appears that Mumtaz Ahmed has over

stated a fact which is incorrect, but there from it cannot be

concluded that the recovery of the knife is tainted.

75. Insofar Khursheeda Begum PW-3 failed to identify the knife