Rashid Khan vs State
2009 Latest Caselaw 3326 Del

R-77

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                   Date of Decision : August 24, 2009


+                        CRL.A. 415/2001


        RASHID KHAN                               ..... Appellant
                 Through:           Mr.Dinesh Malik, Advocate.

                         versus

        STATE                                 ..... Respondent

Through: Mr.Pawan Sharma, A.P.P.

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

28.9.1999, the appellant has been convicted for the offence of

having murdered Raj Kali wife of Joginder PW-11. Appellant

has been sentenced to undergo imprisonment for life.

2. The case is based on circumstantial evidence urges

learned counsel for the appellant and hence submits that

unless it is held that the chain of circumstances proved by the

prosecution are complete wherefrom the only inference which

can be drawn is the guilt of the accused and his innocence

being ruled out, only then can the conviction be sustained.

3. We agree.

4. As per the impugned judgment, with reference to

the testimony of Maninder PW-9, Lala Ram PW-10 and Joginder

PW-11, learned Trial Judge has held that the testimony of the

three witnesses establishes that at 11:30 AM on 19.7.1997 the

appellant was seen running away from the place where the

deceased was found murdered and at that point of time the

appellant had a chhura (knife) in his hand.

5. With reference to the testimony of Joginder PW-11,

the husband of the deceased, the learned Trial Judge has held

that the same establishes the motive i.e. that the appellant

was having an evil eye on the deceased and killed her when

she, in all probability, repelled his overtures.

6. With reference to the FSL report Ex.PW-17/J, the

learned Trial Judge has held that the same establishes that the

shirt which was recovered when the appellant was arrested

was stained with human blood of the same group as that of

the deceased. With reference to the same report, learned Trial

Judge has held that the pant recovered when the appellant

was arrested was detected with human blood group whereof

could not be detected. Knife which was got recovered by the

appellant was detected with human blood of the same group

as that of the deceased and the doctor who conducted the

post-mortem opined that the injuries on the person of the

deceased could possibly be caused by that knife.

7. Though not used as incriminating circumstance, we

note that the appellant was not found at his house by the

police. He absconded. Appellant surrendered in Court on

6.8.1997 and thereafter the investigating officer, after

obtaining permission of the Court, took the appellant on police

remand.

8. While considering the incriminating evidence

against the appellant, we shall be ignoring the evidence

pertaining to the report of the serologist for the reason we find

it strange that the same pant and the same shirt which the

appellant was alleged to be wearing on 19.7.1997 i.e. the day

when the crime was committed, was continued to be worn by

the appellant when he surrendered in Court on 6.8.1997.

Pertaining to the recovery of the weapon of offence i.e. the

knife seized vide seizure memo Ex.PW-6/D, pursuant to the

disclosure statement of the appellant, we note that the knife

was recovered from bushes in an open area. The recovery is

on 6.8.1999. Being monsoon season, it is highly unlikely that

remnants of blood group could be detected on the knife. Be

that as it may, the recovery is from an open place and does

not inspire confidence.

9. Movement of the police with respect to the crime

commenced when DD No.8A Ex.PW-3/A was recorded by the

duty officer at PS Saraswati Vihar noting therein that a person

Maninder (PW-9) had informed over telephone that Raj Kali has

been fatally stabbed by her neigbhour Rashid Khan at House

No.B-304, Shakarpur J.J. Colony.

10. Copy of the DD entry was handed over to SI Dhan

Singh PW-6, who accompanied by Const.Dhanpal went to the

spot. He and Const.Dhanpal reached the place at around

12:00 noon, the time being disclosed by SI Dhan Singh when

he was cross-examined. Soon thereafter Inspector Naval

Kishore PW-17 reached the place as he was also directed to

reach the spot.

11. Joginder PW-11, the husband of the deceased made

a statement Ex.PW-11/A which was recorded by Inspector

Naval Kishore PW-17. The statement is the complaint to the

police and has formed the basis of the FIR.

12. Briefly noted, in the statement Ex.PW-11/A, Joginder

stated that he was a resident of House No.B-304 J.J.Colony,

Shakarpur. For the last three months he was residing on the

first floor thereof along with his wife, the deceased. That he

was earning his livelihood by selling eatables on a handcart.

On the first floor of the adjoining house Rashid Khan used to

reside with one or two companions who used to sell clothes on

hand cart. Four days ago, due to fever he had not gone to

work and was resting in his room. Through the partition wall

segregating his room and the room of Rashid Khan he saw

Rashid Khan peeping into his room. His wife Raj Kali was in

the room. He asked Rashid Khan as to why was he peeping

inside his room. Rashid Khan responded that he was scenting

the air in his room. Yesterday i.e. on 18.7.1997 when he

returned home in the evening after work, his wife told him that

during the day Rashid Khan talked to her indecently. She

rebuked him as a result the two had a verbal duel. He did not

inform the police as he thought that the matter pertained to

the reputation of his family. He left for the market at 9:30 AM

on 19.7.1997 to deliver money to a shopkeeper and returned

back at 11:30 AM. As he proceeded to go to his room upstairs

he saw Rashid Khan rushing down holding a knife in his hand.

He felt alarmed and tried to stop Rashid Khan who pushed him

aside and ran towards the park in the front. He and Lala Ram

chased Rashid Khan who managed to flee. He returned and on

coming to the room saw his wife smeared in blood having stab

wounds all over her body.

13. After recording the statement, Inspector Naval

Kishore made an endorsement Ex.PW-17/A beneath the

statement and as recorded in the endorsement dispatched the

rukka at 1:30 PM to the police station for FIR to be registered.

14. At the trial, Maninder, the person who conveyed the

first information to the police over the telephone as recorded

in DD No.8A, Ex.PW-3/A deposed as PW-9. He stated that on

19.7.1997 at 11:30 AM he saw Joginder PW-11 and Lala Ram

PW-10 standing in front of their room. He saw accused Rashid

Khan coming down with a chhura in his right hand. Joginder

and Lala Ram followed Rashid Khan. He went upstairs and saw

Raj Kali with injuries on her neck. She had died. He informed

the police. Maninder was cross-examined and the only thing

which has been brought out in his cross-examination is his

statement that he raised an alarm, a fact not recorded in his

statement Ex.PW-9/DA i.e. his statement under Section 161

Cr.P.C. recorded by the investigating officer.

15. It is settled law that minor embellishments not

impinging upon a fact in issue are irrelevant and have to be

ignored. Thus, while deposing in Court, Maninder stating that

he raised an alarm and his not so stating to the police when

his statement was recorded under Section 161 Cr.P.C. is of a

trivial kind. The same does not discredit the witness.

16. Lala Ram PW-10 deposed that on 19.7.1997 at

11:30 AM he and Joginder were coming from outside and were

going to their room upstairs and saw accused Rashid Khan

coming down with a chhura in his right hand. He pushed

Joginder and fled. He i.e. Lala Ram followed him for some

distance but could not apprehend the accused. When he went

upstairs he saw wife of Joginder in a very bad state. She was

stabbed on the neck and other parts of the body. She was

dead.

17. Lala Ram was cross-examined and nothing has

been brought out in the cross-examination to discredit the

testimony of Lala Ram.

18. Joginder, husband of Ram Kali deposed as PW-11

and stated that on 18.7.1997 Rashid Khan had used indecent

words with his wife which resulted in a verbal duel between

the two. To avoid defamation he did not inform the police. On

19.7.1997 he went to the market and returned at around

11:15 AM. As he started going up and had placed his foot on

the first step he saw Rashid Khan coming down with a chhura

in his hand. He tried to stop Rashid Khan who pushed him

aside. He went upstairs and found his wife Raj Kali with blood

all over. She had stab injuries on various parts of her body.

The police reached and picked up blood with the help of

cotton. The floor was broken and part thereof was picked up.

After the accused pushed him he ran towards the park and he

and Lala Ram followed the accused.

19. Joginder was cross-examined and during cross-

examination stated that the place where he had gone in the

market to pay money was situated at a distance of 10 km. He

went on foot. He left his house at 9:30 AM.

20. Inspector Naval Kishore PW-17 proved the

investigation conducted by him and in respect of the

circumstances of first meeting Joginder at the spot stated that

when he reached the spot he found SI Dhan Singh and Const.

Dhanpal at the spot. He saw the dead body of a woman and

that in the meanwhile the husband of the deceased i.e.

Joginder Singh also arrived and was horrified to see the scene

of the occurrence. When he regained composure his

statement was recorded.

21. SI Dhan Singh PW-6 deposed that when he reached

D-304 Shakarpur J.J.Colony he met Joginder at the spot and

that the investigating officer recorded the statement of

Joginder in his presence.

22. With respect to the submission of learned counsel

for the appellant that there is no eye-witness to the crime,

suffice would it be to state that the law of circumstantial

evidence does not require the existence of a number of

circumstances as the sine qua non before a conviction can be

sustained. A single circumstance can be of a nature

wherefrom a reasonable and a logical mind, without any

hesitation, would draw a conclusion of guilt.

23. Facts which are not themselves in issue sometimes

affect the probability of the existence of facts in issue and so

constitute the foundation thereof that it becomes impossible to

separate the two. Where a fact has occurred with a series of

acts preceding or accompanying it, it can safely be presumed

that a fact was possible as a direct cause of preceding or

accompanying acts unless there exists a fact which breaks the

chain upon which the inference depends.

24. Thus, if it is proved that A was seen running away

from the place of crime with a knife in his hand and a dead

body is found immediately thereafter from the said spot, said

evidence is sufficient wherefrom the inference of guilt can be

inferred.

25. Thus, the question which arises for consideration is,

whether there is sufficient evidence on record to establish the

fact that the appellant was seen running away from the spot

where the crime was committed at 11:30 AM on 19.7.1997.

26. Three persons namely Maninder PW-9, Lala Ram

PW-10 and Joginder PW-11 have deposed said fact.

27. No embellishment worthy of credence has been

shown in the testimony of PW-9 and PW-12.

28. Qua the testimony of Joginder, as noted above, it

has been pointed out to us that Joginder claims to have left his

house at 9:30 AM. He walked a distance of 10 km to deliver

money. He returned back on foot. The time of the crime is

11:30 AM. Counsel argues that it is not possible for a man to

walk 20 km in two hours. Linking the arguments and

extending the same a little further, with reference to the

testimony of Inspector Naval Kishore, it is urged that the same

establishes that Joginder arrived after Inspector Naval Kishore

reached the house, thereby discrediting the presence of

Joginder in the house when the crime of his wife being

murdered was committed.

29. At first blush, the argument that Joginder was not

present at the place as claimed by him appears to be very

attractive. But a close look at the evidence would show to the

contrary.

30. Firstly, Joginder has categorically stated in his

deposition that he did not have any watch with him. It is

apparent that Joginder was referring to time based on his

opinion. He was not scientific in his evaluation of time. Thus,

nothing turns on the time factor vis-à-vis the testimony of

Joginder.

31. Pertaining to the testimony of Naval Kishore, it does

happen that while narrating, depending upon the language at

the command of the maker of a statement, he uses

expressions which are suggestive of an event transpiring after

a first event; whereas the maker of the statement simply

prioritizes the sequence of the events.

32. Let us take an example. A goes to a spot and

notices B and C. He intends to say that he has noticed B and

then C. Using imperfect language, A may say that he saw C

after some time. That would not mean that C was not present

and reached the spot after some time.

33. Be that as it may, Maninder's presence and what

Maninder saw and conveyed to the police stands mentioned in

a contemporaneous document; namely, DD No.8A, Ex.PW-3/A,

which notes the time of the DD entry being 11:50 AM.

34. The said DD entry records the information given by

Maninder that Rashid Khan had stabbed Ram Kali at House

No.B-303, Shakarpur and that police be sent immediately.

35. Thus, we need not fall back on the testimony of

Joginder to prove the presence of the appellant and his seen

running away from the spot with a chhura in his hand for the

reason Maninder's testimony inspires confidence and needs no

corroboration.

36. Lala Ram PW-10 has corroborated the testimony of

Maninder PW-9. We once again repeat that nothing has been

brought out in the cross-examination of Lala Ram which

discredits his testimony.

37. Before bringing the curtains down we must note

that Ram Kali was fatally stabbed. She has received, as noted

in her post-mortem report Ex.PW-14/A, 10 injuries. The

injuries are on her hand, upper arms, the chest and the

abdominal region. It is apparent that the lady tried to save

herself but so brutal was the assault that she could not

survive.

38. Internal arteries were cut. Excessive blood loss

resulted in haemorrhagic shock.

39. The injuries inflicted upon Ram Kali show the

intention of the assailant; being that, to cause her death.

40. Motive for the crime has been established through

the testimony of Joginder. The circumstance of the appellant

absconding is also a pointer towards his guilt.

41. We find no merit in the appeal. The appeal is

dismissed.

42. The appellant has been admitted to bail. The bail

bond and the surety bond furnished by the appellant are

cancelled.

43. The appellant is directed to surrender and suffer

the remaining sentence.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

AUGUST 24, 2009 Dharmender