Mohd. Bhure vs State
2009 Latest Caselaw 3108 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                 Date of Judgment: 11th August, 2009.


+                               CRL.A.370/2001


       MOHD. BHURE                                       ...Appellant
               Through:             Mr. Bhupesh Narula, Advocate.


                            Versus


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


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers 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. (ORAL)

1. Vide impugned judgment and order dated 10.11.2000

the appellant and the co-accused Riaz Ahmed have been

convicted for the offence punishable under Section 302/34 IPC.

2. Vide order dated 13.11.2000 both have been

sentenced to undergo imprisonment for life and pay a fine in sum

of Rs.5000/-. In default of payment of fine, both have been

directed to undergo simple imprisonment for six months.

3. Appellant Mohd.Bhure has filed the instant appeal.

Co-accused Riaz Ahmed challenged his conviction vide

Crl.A.No.406/2001.

4. In his appeal, Riaz Ahmed took a plea of being

juvenile as on the date when the crime was committed. His plea

succeeded.

5. Vide order dated 7.5.2004, the appeal filed by Riaz

Ahmed was disposed of noting that he had already undergone a

sentence of more than five years which was more than the

prescribed period for which a juvenile can be kept in detention.

The result was a direction that Riaz Ahmed be set free forthwith.

6. At the outset, we may note that while disposing of

Crl.A.No.406/2001, the conviction of Riaz Ahmed has been

recorded as having been sustained. We find that on merits the

court did not consider the correctness of the view taken by the

learned Trial Judge. The judgment and order dated 7.5.2004

shows that the court disposed of the appeal with reference to the

issue whether Riaz Ahmed was a juvenile on the date when the

crime was committed.

7. Thus, we have considered the merits of the appeal

pertaining to the challenge raised by Mohd.Bhure to the

impugned judgment and order dated 10.11.2000.

8. A perusal of the impugned decision shows that the

learned Trial Judge has held as under:

(a) The testimonies of PW-1, PW-12 and PW-15 establish that

the appellant and his co-accused were apprehended when they

were moving suspiciously in the night. Co-accused Riaz Ahmed

was armed with a danda Ex.P-7 which was stained with blood.

The shirt and the pant Ex.P-2 and Ex.P-3 worn by the appellant

were blood stained. The shirt and the pant Ex.P-5 and Ex.P-6

worn by co-accused Riaz Ahmed were also stained with blood.

PW-1, PW-12 and PW-15 were police officers on patrol duty and

they immediately reported the factum of apprehension of the

accused which was noted at police station Trilok Puri vide DD

no.29-A Ex.PW-6/C.

(b) SI Sanjay Gupta PW-18 accompanied by Const.Prakash and

Const.Satbir went to the place with PW-1, PW-12 and PW-15 had

apprehended the accused.

(c) The accused made confessional statement which was

recorded by SI Sanjay Gupta. They informed of having killed

Nasir. Pursuant to the disclosure statements made by the accused

they led the police to Sanjay Jheel and pointed out the place

where they had assaulted the deceased. A quilt was pointed out.

Under the quilt the body of the deceased was seized. To put it

pithily, the incriminating circumstance held established against

the accused is the recovery of the body of the deceased at the

instance of the accused.

(d) The blood stained clothes of the accused as per the report

of the serologist i.e. Ex.PY, established that human blood of group

B was present on Ex.P-2, P-3, P-5 and P-6. The blood group of the

deceased was also B.

(e) PW-9 Akbar had established the motive which was an act of

extortion by the deceased. The victim of the extortion/demand

being co-accused Riaz. As per the learned Trial Judge, the

testimony of PW-9 shows that Riaz and the appellant took revenge

against the deceased.

(f) The apprehension of the appellants at the spot finds

corroborative proof in the rukka Ex.PW-1/A and the endorsement

Ex.PW-18/A. The rukka has been dispatched from the spot at

2:40 AM. The information pertaining to the apprehension of the

accused was recorded at the police station at around midnight.

(g) PW-1, PW-12 and PW-15 were at patrol duty in their PCR

van and each of them have deposed that when they saw the

appellant and his co-accused moving in the night in suspicious

circumstances, they accosted the accused noticing that the

clothes of the accused were stained with blood and co-accused

Riaz Ahmed had a danda which was stained with blood. They

informed the police station. The three witnesses deposed that the

I.O. PW-18 reached the place where they had apprehended the

accused who made disclosure statements and led the police

personnel to Sanjay Jheel where body of the deceased, covered

with quilt, was recovered. The rukka records the aforesaid facts.

9. We concur with the view taken by the learned Trial

Judge that the dead body of the deceased was recovered from the

spot which was in the knowledge of the appellant and his co-

accused and that by virtue of Section 27 of the Evidence Act, said

part of the confessional statement which has resulted in the

recovery of a dead body is admissible evidence. The fact which

has been discovered is the knowledge of the appellant and his co-

accused that Nasir was dead as also the knowledge of the place

where the body of Nasir could be found. The authorship of

concealing the body under the quilt can also be safely ascribed as

admissible evidence against the appellant and his co-accused.

The report of the serologist Ex.PY adds a further link in the

evidence against the appellant and his co-accused inasmuch as

the pant and shirt worn by them were stained with human blood

of the same blood as that of the deceased.

10. The appellant and his co-accused have rendered no

satisfactory explanation as to how their clothes got stained with

human blood.

11. As regards the danda Ex.P-7, only blood could be

detected thereon. The specie as also the group could not be

determined as the blood was disintegrated. Thus, nothing

incriminating against the appellant can be found qua the danda.

12. Akbar PW-9 has deposed that at 8.45 PM on

14.3.1999 which happened to be the date of the crime, he and

Riaz were standing when Nasir demanded money from him. He

i.e. Akbar had Rs.4/- with him which he offered to the deceased.

Riaz refused to give any money. Deceased struck the head of Riaz

against the wall. They grappled with each other. He separated

them. The deceased left. Riaz told him that the deceased would

be done away with in the night. He left for his house and next

day morning learnt about the deceased being killed.

13. Truthfulness qua the testimony of Akbar can be found

with reference to MLC Ex.PW-16/A of Riaz Ahmed who was got

medically examined at SDN hospital on 15.3.1999 at 8.30 AM.

The doctor has noted swelling on the occipital region of the skull

of Riaz Ahmed.

14. The view taken by the learned Trial Judge that the

evidence establishes the death of the deceased at the hand of the

appellant and his co-accused is fully correct.

15. But the question which needed to be further

considered is, whether it is a case of murder or homicide

simplicitor.

16. The testimony of PW-9 establishes that the deceased

was a extortionist and had not only extorted Rs.4/- from Akbar but

had thrashed co-accused Riaz for not succumbing to his

extortionist demand and had, in fact, even struck the head of Riaz

against a wall causing simple injury to Riaz.

17. It is apparent that Riaz Ahmed and the appellant were

good friends and struck back against the deceased. They did so

after some time. They did not do so at the heat of the moment.

They have acted with premeditation. But, what they have done?

18. They have not gone armed with a deadly weapon.

They took with them a danda. They gave beatings to the deceased

with a danda, with one blow falling on the head of the deceased.

19. Evidence probablize that the appellant and his co-

accused had wanted not to cause the death of the deceased but

had desired to inflict injuries on him.

20. Since co-accused Riaz Ahmed was inflicted with an

injury on his head by the deceased, it appears to be a case where

the single assault on the head of the deceased was to take

revenge for the head injury caused on Riaz.

21. The MLC does not show that the assault on the head

of the deceased was ferocious; the brain matter was not oozing

out. No doubt, the blow has been struck with considerable force

evidenced by the fact that the deceased suffered criano damage.

22. We are of the opinion that the acts of the appellant

and his co-accused attract punishment not under Section 302 IPC

but under Section 304 Part I IPC for the reason the offence

committed by them is falling under Section 304 Part I IPC.

23. The appeal stands disposed of partially allowing the

same. The conviction of the appellant for the offence of having

murdered Nasir is modified. It is held that the evidence on record

establishes the commission of offence punishable under Section

304 Part I IPC. We convict the appellant for said offence.

24. We sentence the appellant to undergo rigorous

imprisonment for ten years. Needless to state, the appellant

would be entitled to benefit of Section 428 Cr.PC.

25. The appellant has been released on bail vide order

dated 21.5.2005. The nominal roll of the appellant shows that by

the said date he had undergone imprisonment for a little less than

six years.

26. We direct the appellant to surrender and undergo the

remaining sentence. The bail bond and the surety bond furnished

by the appellant are hereby cancelled.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE

August 11, 2009 rb