Amiruddin vs State (Delhi Administration)
2009 Latest Caselaw 3368 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                         Reserved on : 18.08.2009
%                                                   Date of Decision : 26.08.2009


+                               CRL. A. No. 62 of 1996


AMIRUDDIN ...             ...       ...    ...          ...     ...    ...    ...APPELLANT
                                Through :       Mr. Praveen Marahatta,
                                                Advocate.


                                     -VERSUS-


STATE (DELHI ADMINISTRATION)                    ...   ...     ...     RESPONDENT
                     Through :                  Mr. Sunil Sharma,
                                                Advocate.

CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE AJIT BHARIHOKE

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

2.        To be referred to Reporter or not?                            Yes

3.        Whether the judgment should be                                Yes
          reported in the Digest?


SANJAY KISHAN KAUL, J.

1. A movie was going on in the Neelkanth Community Centre

in the afternoon of 12.01.1991. Ashok Kumar and Manoj

Kumar were watching the movie. One Zahid was also

watching the movie and had some altercation with Ashok

Kumar (PW-5) and a blow was delivered by Zahid on the

nose of Manoj Kumar. Manoj Kumar left the Community

Centre leaving behind Ashok Kumar (PW-5) and while going

to his house met Raju (PW-1), Ghanshyam (PW-3), _____________________________________________________________________________________________

Chanderpal (PW-4), Mukesh Kumar (PW-15) and one

Rajender (deceased) and told them about the incident. All

these persons went to the Community Centre and the

matter was apparently sorted out. The said persons were

thereafter returning back when at about 3.45 p.m., the

appellant (the brother of Zahid) came from behind and

struck Rajender at his back with a knife. A PCR van came

to the site and ASI Dev Dutt (PW-16) removed the deceased

to the hospital where he was declared brought dead at 4.25

p.m.

2. The appellant was subsequently apprehended and charged

with the offence of murder under Section 302 of the Indian

Penal Code, 1860 (for short, „IPC‟). The appellant pleaded

not guilty and after trial in terms of the judgment dated

23.03.1996 was held guilty for the offence under Section

302 of the IPC and sentenced to undergo life imprisonment

and pay a fine of Rs.1,000/- in default of which, he was to

further undergo RI for six months. This has resulted in the

present appeal. It may be noticed at the inception itself

that the case of the prosecution is really based on ocular

evidence and the eye-witnesses have deposed in favour of

the prosecution. The trial court has found that the

prosecution failed to prove recovery of weapon of offence

on account of the fact that the post-mortem report showed

that the injury could not have been caused by the knife

recovered. However, in view of the direct evidence

available, non-recovery of weapon was held to be not

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material and the contradictions, discrepancies and

improvements in the statements of the witnesses were

found to be of a minor nature, which did not go to the root

of the matter.

3. The prosecution examined 23 witnesses, but the entire

case revolves around the testimony of 6 witnesses, who are

stated to have witnessed the crime. These are PW-1, PW-3,

PW-4, PW-5, PW-10 and PW-15. Apart from them, PW-16 is

the ASI, who took the deceased to the hospital while PW-22

is the doctor who carried out the post-mortem. The

testimony of PW-1 relates the facts as setout hereinbefore,

which resulted in the incident. The appellant is stated to

have taken out chura saying, "yeh roj roj ki larai khatam kar

deta hoon" and stabbed the victim in the back whereafter

he ran away along with the chura (knife). The PCR van

came thereafter and the victim was taken to All India

Institute of Medical Sciences (AIIMS). The said witness also

deposed that he knew the accused earlier and that the

appellant and the deceased earlier had disputes over some

petty matter. This witness has also stated that he went to

the hospital in the PCR and his statement was recorded by

the police. The testimony of PW-3 is almost identical. The

only difference in the testimony of PW-4 is that while

stabbing, the appellant is stated to have said, "roz roz ke

jhagre ko hamesha ke liya khatam kar deta hoon". PW-4

states that he went to the hospital with PW-15 on

13.01.1991 and S.I. Lal Chand, PW-23 asked them to

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accompany him to the house of the appellant. The

appellant was not found whereafter they went to the house

of one Nizam in Kalu Sarai. The appellant was apprehended

on the pointing of the said PW-4 and thereafter disclosed

that the knife had been kept by him at the house of one

Feroz at Hauz Khas. The disclosure statement Ex. PW-4/B

was recorded and thereafter the appellant, PW-4, PW-15

were taken to Hauz Khas from where the recovery of the

knife took place, which was sealed in a parcel. The

draftsman visited the site on 21.02.1991 and took

measurement and rough notes on the site being pointing by

PW-4. The scaled site-plan (Ex. PW-6/A) was prepared in his

office on 11.03.1991.

4. PW-5, Ashok Kumar, has deposed on the similar lines and

he took the deceased to the hospital in the PCR and also

got admitted in the hospital for his injuries. PW-10 has

supported the incident as also PW-15 has further deposed

that they could not apprehend the appellant at site and that

he had accompanied PW-4.

5. Dr. M.S. Sagar, PW-22, conducted the post-mortem. An

ante-mortem stab wound was found on the left side of the

back, which was opined to have caused the hemorrhagic

shock and the injury was caused by a sharp-edged weapon.

The wound had been inflicted with such force that the

sharp-edged weapon had pierced through the left lower

lung. The said witness, however, opined that the injury

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found on the dead-body of the deceased was unlikely to be

caused with the knife Ex. P-1.

6. Learned counsel for the appellant sought to contend that no

reliance could have been placed on the testimony of PW-1,

PW-4 and PW-5 to establish the motive and that once the

prosecution came with some evidence to establish motive,

it became the duty of the prosecution to prove the same.

Learned counsel in this behalf relied upon the observations

in The State of U.P. v. Hari Prasad & Ors., AIR 1974 SC

1740. We, however, fail to appreciate as to how this

judgment would come to the aid of the appellant since the

ratio of the judgment is that it cannot be said that even if

witnesses are truthful, the prosecution must fail for the

reason that the motive of the crime is difficult to find. A

motive is often indicated to heighten the probability that

the offence was committed by the person who was impelled

by that motive, but if the crime is alleged to have been

committed for a particular motive, it is relevant to inquire

whether the pattern of the crime fits in with the alleged

motive. Similarly the observations in Ramgopal v. State of

Maharashtra, AIR 1972 SC 656, the acquittal was on

account of the fact that neither the motive nor the

administration of poison, which caused the death, was

proved.

7. On the other hand, learned counsel for the respondent has

relied upon the observations in Molu & Ors. v. State of

Haryana, AIR 1976 SC 2499 to support the plea that where

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direct evidence regarding the assault is worthy of credence

and can be believed, the question of motive becomes more

or less academic. It has been observed that sometimes

motive is clear and can be proved, while at other times, the

motive is shrouded in mystery and it is very difficult to

locate the same. So long as the evidence of the eye-

witness is creditworthy and is believed by the Court, the

presence of motive or not wholly becomes irrelevant.

8. It is not in dispute that the appellant is the brother of Zahid

with whom the dispute occurred and though the dispute

was sorted out, the appellant stabbed the deceased. The

case is based on ocular evidence and though the

background of some minor disputes between the appellant

and the deceased has been mentioned as a possible

motive, the aspect of motive really is not of any great

significance if the ocular evidence can establish the

commission of the crime. The ocular evidence is of 6

witnesses, who witnessed the crime. The testimony of

these witnesses is consistent insofar as the description of

the manner of the commission of the crime is concerned as

also the identification of the appellant. All these witnesses

have deposed that they saw the appellant coming from

behind and stabbing the deceased with the knife. The

appellant has been identified as the assailant, who inflicted

the knife wound on the deceased by all these witnesses.

9. Learned counsel for the appellant sought to cast a shadow

on the deposition of these witnesses by contending that

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there were a number of other persons present at site while

the investigating officer chose to examine only those

persons, who are deeply connected with the family of the

deceased and, thus, these witnesses cannot be said to be

independent witnesses. This aspect has been succinctly

dealt with in para 19 of the impugned judgment. It has

rightly been found that only PW-4, Chanderpal, is the uncle

of the deceased, while the other witnesses were not related

to the deceased. The mere fact that the other witnesses

were of the brotherhood of the deceased and knew both the

deceased and the appellant was no ground to discredit the

testimony of these witnesses. These witnesses have been

by and large consistent in their deposition and such

deposition cannot be ignored. The trial court was justified

in relying on such testimony for the purpose of conviction of

the appellant.

10. The challenge laid by learned counsel for the appellant to

the place of the incident is also similarly misplaced. The

place of the incident is clearly identified and the site-plan

was drawn, which stands proved. The location has also

been discussed and merely because PW-5 and PW-15 had

stated that the blood had fallen on metal road, while PW-10

had stated that the blood had fallen on the grass would not

make a difference as both are in proximity to the place of

the incident. There was an area of park as well as the road

and, thus, as rightly observed by the trial court, blood could

have fallen at both the places. There is no animosity

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attributed to any of these witnesses, who were all living in

the area and by the sequence of events related were

naturally present at the site. The testimony of these

witnesses evokes full confidence.

11. Another aspect of challenge to the impugned judgment is

that the conduct of the witnesses was not in the natural

course and, thus, there is a doubt that they were present at

the site. It is alleged that no effort was made to apprehend

the appellant even though six of them were present. It is

alleged that the PCR van should not have found the

deceased unattended. The claim of the witnesses that they

accompanied the injured in the PCR van is sought to be

belied by the fact that no blood came on the body or

clothes of the eye-witnesses and that the testimony of PW-

16 showed that only one public man accompanied to the

injured at the hospital. Thus, the manner of removal of the

deceased is said to be shrouded with suspicion.

12. It must be noticed that there is no consistent manner in

which a person may react to the scene of the crime. In this

behalf, it would be useful to reproduce the observations

made by the Supreme Court in Rana Pratap & Ors. v. State

of Haryana, AIR 1983 SC 680 in para 6 as under :-

"6. Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start _____________________________________________________________________________________________

wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way."

(emphasis supplied)

13. In our view, thus, nothing much would turn on the manner

of reaction of the witnesses to the incident of stabbing. In

fact, one of the witnesses did say that an endeavour was

made to run after the appellant, but he disappeared

quickly.

14. The aspect of name of all the persons being recorded, who

accompanied the deceased or who may have come

immediately to the hospital, has been rightly emphasized

by learned counsel for the State by submitting that it is not

the name of all the persons, which has to be noticed in the

MLC in normal routine and once the deceased is

accompanied by a police officer, the noting of his name

would suffice.

15. It is no doubt true that the knife, which has been recovered,

could not be co-related to the crime as the doctor, who

carried out the post-mortem, has opined that the wound in

question could not have been inflicted by that knife, but

then the recovery of knife was at the behest of the

appellant and he may have led the I.O. to a different knife

to create doubt in the prosecution.

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16. We have already noticed that the present case is one based

on ocular evidence and, thus, the conviction can be based

on an eye-witness account as has been done by the trial

court even if the knife could not be co-related to the wound.

We draw strength from the observations made by the

Supreme Court in Dharam Pal & Ors. v. State of U.P., AIR

1995 SC 1988 where it has been observed that possibly,

the accused could have used some other weapon and even

if there is a wrong description of the weapon, that would

not discredit the evidence of the eye-witnesses. To the

same effect are the observations in Pradumaninh Kalubha

v. The State of Gujarat, JT 1992 (1) S.C. 280.

17. The last aspect urged by learned counsel for the appellant

is that the present case, in any event, does not fall within

Section 302 of the IPC, but at best could fall under Part II of

Section 304 of the IPC. It was urged that there was no

animosity between the appellant and the deceased, the

incident took place all of a sudden when the appellant

inflicted the single injury and that too on a non-vital part of

the body at the back. It was also urged that the appellant

was about 19 years of age at that time and is now married

and has minor children. This position has arisen because

the appellant was enlarged on bail and sentence was

suspended by the Order dated 02.08.1999 since he had

already served a number of years. The appellant was,

however, re-arrested as he chose not to appear for hearing

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of the appeal in July, 2009 and has thereafter been in

custody.

18. The medical evidence shows the extent of the wound. If

the medical evidence is examined, it would show that the

gravity of injury was such that the knife pierced deep into

the lungs from the back which resulted in the death within

a few minutes. The utterance of the appellant before

inflicting the knife also shows that the intent was to cause

death of the deceased. The deposition of PW-22, Dr. Sagar,

shows that the injury sustained by the deceased was

sufficient to cause death in the ordinary course of nature.

19. We must also notice that it was not something, which

happened on the spur of the moment. The incident actually

occurred with the brother of the appellant and the issue

was sorted out. The parties were going back when the

appellant appeared and for no provocative reason at all,

which could be related to any immediate action, inflicted

wound with such force and with such intention as to cause

death.

20. Learned counsel for the respondent has pointed out that in

a recent judgment in Mohammed Asif v. State of

Uttaranchal, 2009 (3) SCALE 695, the injury had been

inflicted on the back and the request to convert the

sentence from under Section 302 of the IPC to Section 304

of the IPC was declined as the intent had to be gathered

from all the facts and circumstances of each case.

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21. Learned counsel for the appellant, on the other hand, relied

upon the following judgments :-

(i) State of Andhra Pradesh v. R. Punnayya & Anr., 1977 Crl.L.J. 1;

(ii) Jagrup Singh v. State of Haryana, 1981 Crl.L.J.

1136; and

(iii) Jagtar Singh v. State of Punjab; 1983 Crl.L.J. 852.

These judgments are on their own facts. In State of Andhra

Pradesh v. R. Punnayya‟s case (supra), the general

principles governing prosecution for cases of murder or

culpable homicide not amounting to murder have been

discussed succinctly, but turning on their own facts. In

Jagrup Singh‟s case (supra), the assault was held to be in

the heat of the moment and without being premeditation.

In Jagtar Singh‟s case (supra), the injury was held to be

inflicted on the spur of the moment and to an extent on the

deceased‟s provocation in a sudden and chance quarrel

and, thus, in the facts and circumstances of the case, it was

held that the conviction under Section 302 of the IPC was

not proper.

22. It is no doubt true that the family position of the appellant

is different from what it was earlier, but then that by itself

can be no reason since the option before the Court to

award any lesser punishment does not exist once the case

falls within the purview of Section 302 of the IPC.

23. We, thus, conclude that no infirmity can be found with the

impugned judgment and the conviction of the appellant is

in accordance with law and facts of the case. The appeal is

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dismissed and the appellant to serve the remaining

sentence.

SANJAY KISHAN KAUL, J.

AUGUST 26, 2009                                                     AJIT BHARIHOKE, J.
madan

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