Mohd. Rahim vs State
2009 Latest Caselaw 4915 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on: 27th November, 2009
                      Judgment Delivered on: 1st December, 2009

+                               CRL. A. 431/2003

       MOHD. RAHIM                                ...Appellant
               Through:             Ms.Sharddha Bhargava, Advocate

                                     Versus

       STATE                                       ....Respondent
                     Through:        Ms.Richa Kapoor, Advocate

                                CRL. A. 448/2003

       MAZIBUL REHMAN                             ...Appellant
                Through:            Ms.Sharddha Bhargava, Advocate

                                     Versus

       STATE                                       ....Respondent
                     Through:        Ms.Richa Kapoor, Advocate

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

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

     2. To be referred to the Reporter or not?         No

     3. Whether the judgment should be reported in the
        Digest?                                   No


PRADEEP NANDRAJOG, J.

1. The fate of the appellant hinges upon the testimony

of Shatrughan PW-3 for the reason Shatrughan claims to be an

eye witness to the incident in which Shatrughan‟s friend Shyam

Kumar suffered an untimely death. Apart from the testimony of

Shatrughan which has been accepted by the learned Trial Judge

the two other incriminating pieces of evidence used by the

learned Trial Judge are the recovery of a knife Ex.P-1 pursuant

to the disclosure statement made by appellant Mohd.Rahim

which was opined to be the possible weapon of offence by

Dr.B.N.Accharya PW-2 as also the recovery of blood stained

shirts pursuant to the disclosure statements made by appellant

Mohd.Rahim and appellant Mazibul Rehman which were opined

to be stained with human blood of group „B‟ i.e. the same blood

group as that of the deceased vide reports Ex.PA and Ex.PB.

2. Pertaining to the recoveries, as held in the decisions

reported as JT 2008 (1) SC 191 Mani Vs. State of Tamilnadu,

1999 Cri LJ 265 Deva Singh Vs. State of Rajasthan, AIR 1994 SC

110 Surjeet Singh Vs. State of Punjab, AIR 1977 SC 1753 Narsin

Bhai Haribhai Prajapati Vs. Chhatrasinh & Ors. and AIR 1963 SC

1113 Prabhoo Vs. State of UP, recovery of ordinary articles and

blood stained clothes, though relevant, are weak evidence.

This is our reason for observing in para 1 above that the fate of

the appellants turns upon the testimony of Shatrughan PW-3.

3. Vide impugned judgment and order dated 24.2.2003,

the appellants have been convicted for the offence punishable

under Section 302/34 IPC. Both have been sentenced to

undergo imprisonment for life.

4. We may note at the outset that appellant

Mohd.Rahim was admitted to bail vide order dated 18.10.2006

and as per the nominal roll pertaining to him, as on 12.10.2006

he had undergone an actual sentence of 5 years 3 month and 2

days and had earned a remission of 1 year 3 months and 20

days. Appellant Mazibul Rehman continues to be languishing in

jail and as per nominal roll pertaining to him, as on 10.8.2009

he has undergone an actual sentence of 8 years and 29 days.

He has earned remissions of 2 years 5 months and 10 days as

on 10.8.2009.

5. Shatrughan deposed about the incident in which his

friend Shyam Kumar was injured, in the following words:-

"Earlier I used to reside in D-2/6 J.J.Colony, Shakurpur, Delhi. Deceased Shyam Kumar was my friend. About 6/7 months earlier I, Shambhu who was my friend and deceased Shyam Kumar were present near Red Light, Britannia Chowk. I know the accused persons they are the rickshaw puller. Accused persons used to reside in Masjid in Shakurpur. Shambhu Kumar and Shyam Kumar were rickshaw puller. It was about 6/7 p.m. Accused persons were quarrelling with the deceased. This was because there was dispute over who would had first number in plying the rickshaw in line. Number of rickshaws stand there and each rickshaw puller is require to take passenger on his number. Accused Mazibul Rehman caught hold the deceased and accused Mohd. Rahim gave knife blow on the chest of Shyam Kumar. When we raised alarm both

the accused persons ran away towards the Punjabi Bagh side. We chased them but they could not be apprehended. I and my friend Shambhu Kumar returned at the spot and accused could not be apprehended. Police also reached there. Both the accused persons present in Court had committed the murder of deceased Shyam Kumar in my presence. Earlier also accused had used to quarrel with Shyam Kumar over the same issue."

6. As per the post-mortem report Ex.PW-2/A, Shyam

Kumar had only one stab injury, being an incised wound on the

right side chest placed 2 cm lateral to right nipple. The wound

was 15 cm below the mid clavicle and 11 cm on middle of chest

laterally. The wound had traversed following the path of the

weapon of offence, a knife, piercing the right middle lobe of the

right lung. The result was the collapse of the right lung

triggering death due to haemorrhagic shock.

7. With reference to the testimony of Shatrughan and

opining that the same evidences a past enmity, the learned

Trial Judge has concluded that it was obviously a case where

the appellants acted in concert and notwithstanding a quarrel

preceding the act of stabbing, it was a case where intention to

cause the death of the victim could be attributed to both

appellants.

8. Two submissions were urged at the hearing of the

appeal by Ms.Sharddha Bhargava, learned Amicus Curiae

appointed on behalf of the appellants. It was firstly urged that

the presence of Shatrughan at the spot when Shyam Kumar

was injured is doubtful and that Shatrughan is a planted

witness. Alternatively, by way of the second submission it was

urged that at best, the acts of the appellant attracted the

offence punishable under Section 304 Part I IPC and accordingly

counsel urged that the conviction and the sentence should be

suitably modified.

9. Whether Shatrughan was an eye witness or not

requires this Court to consider the evidence on record as to

when Shatrughan first met the investigating officer. The reason

is obvious. If Shatrughan was nowhere to be seen when the

investigating officer reached the spot soon after the police

received information of the crime, it would cast a doubt on

Shatrughan‟s presence at the spot when the crime took place.

We note that Shatrughan claims to be a friend of the deceased

and his contemporaneous conduct needs to be appreciated with

reference to how a friend would ordinarily react on seeing his

friend being stabbed. While considering the conduct of

Shatrughan we have to keep in mind that he is a rickshaw

puller. He comes from a rural background. He comes from a

humble background and his cognitive faculties may not be as

sharp and reactive as that of a city bread i.e. an educated

person. Needless to state education brings along with it self-

confidence and the power of rational thinking as also the ability

to take quick decisions at the spur of the moment even during

adverse conditions.

10. Information of two persons stabbing somebody near

Britannia Chowk was received at the local police station at 8:10

PM on 3.7.2001 when the duty officer recorded DD No.42 B

Ex.PW-4/A. Taking along with him a copy of the DD Entry SI

Surjeet Singh left the police station in the company of HC Sahib

Singh and proceeded to the spot, where, as deposed to by SI

Surjeet Singh he found no eye witness and learnt that the

injured had been removed to Babu Jagjeevan Ram Hospital.

Leaving behind HC Sahib Singh he proceeded to the hospital

where he learnt that the injured had been declared brought

dead. As deposed to by SI Surjeet Singh he found no eye

witness at the hospital and thus he obtained the MLC Ex.PW-1/A

of the deceased and made an endorsement Ex.PW-17/B

beneath the copy of the DD Entry and forwarded the same to

the police station for the FIR to be registered. Further

investigation was taken over by Insp.Sanjeev Tyagi PW-15 on

the same date. It stands recorded in the endorsement Ex.PW-

17/B that it has been dispatched from the spot at 11:00 PM. It

may be noted that as deposed to by SI Surjeet Singh he penned

the endorsement Ex.PW-17/B on returning from the hospital to

the spot where the crime took place.

11. HC Sahib Singh PW-11 has deposed that after DD

No.42 B was registered he left for the spot in the company of SI

Surjeet Singh and remained at the spot till SI Surjeet Singh

came back from the hospital and prepared the rukka. He left

the spot with the rukka so that he could get the FIR registered.

12. It is apparent that Shatrughan was nowhere to be

seen at the spot till 11:00 PM.

13. It may be noted that as deposed to by HC Krishan Lal

PW-7 he was in a PCR van which was stationed near TV Tower

Pitam Pura and on receipt of wireless information reached

Britannia Chowk within 3-4 minutes and removed the injured to

the hospital. He deposed that people standing at the spot were

saying that 2-3 persons had stabbed the injured.

14. It may be noted that a personal diary of the

deceased containing his name was recovered from his pocket

and for said reason the name of the injured has been recorded

in the MLC.

15. We have noted hereinabove the relevant extract of

the testimony of Shatrughan as per which he and his friend

Shambhu Kumar chased the appellants when they fled after

stabbing the deceased but since they could not apprehend the

appellants, he and Shambhu returned to the spot, by which

time the police had arrived.

16. If this be true, we wonder how come SI Surjeet Singh

and HC Sahib Singh did not meet Ram Kumar.

17. Shatrughan is positive in his statement that when he

and his friend Shambhu gave up the chase and returned to the

spot, the police had arrived at the spot. Reference to the police

by Shatrughan has obviously to be a reference to the presence

of the police from the police station for the reason the PCR van

reached the spot within 3 or 4 minutes and removed the injured

to the hospital as deposed to by HC Krishan Lal and during this

period, if at all, Shatrughan and his friend were chasing the

appellants.

18. Insp.Sanjeev Tyagi PW-15 took over the investigation

on 3.7.2001 itself and as deposed to by him he prepared the

site plan Ex.PW-15/A and lifted blood sample, earth control and

blood stained earth from the spot as per memo Ex.PW-11/A. He

stated that he recorded the statement of Shatrughan when he

revisited the spot for the second time.

19. From the testimony of Insp.Sanjeev Tyagi and the

testimony of SI Surjeet Singh it can safely be gathered that

Insp.Sanjeev Tyagi had reached the spot somewhere around

11:00 PM. We say so for the reason SI Surjeet Singh has

prepared the rukka and dispatched the same at around 11:00

PM and as per him around said time, Insp.Sanjeev Tyagi

reached the spot.

20. We find it difficult to accept that Shatrughan‟s

presence would go unnoticed till 11:00 PM. From the testimony

of HC Sahib Singh PW-11 it is apparent that he continued to

stay at the spot after reaching the same till SI Surjeet Singh

returned and handed over the rukka to him after preparing the

same for FIR to be registered. If Shatrughan and his friend

Shambhu returned to the spot after giving up the chase they

would have certainly met HC Sahib Singh.

21. Thus, there is sufficient material on record

wherefrom it becomes doubtful whether Shatrughan was

present at the spot as claimed by him. We may note that as

per Insp.Sanjeev Tyagi even he claims to have recorded

Shatrughan‟s statement when he returned to the spot for a

second time. Unfortunately for us, what was the time when

Insp.Sanjeev Tyagi went back to the spot for a second time has

not come on record. Be that as it may, it is apparent that when

Insp.Sanjeev Tyagi reached the spot at around 11:00 PM,

Shatrughan was not to be found.

22. In that view of the matter, we must give the benefit

of doubt to the appellants with respect to the claim of

Shatrughan being an eye witness.

23. If we ignore the testimony of Shatrughan, the only

other evidence left would be the recovery of blood stained

shirts, one each attributable to the two appellants and the

recovery of an ordinary knife attributable to appellant

Mohd.Rahim. Said recoveries are weak evidence in view of the

law declared in the decisions noted in para 2 above.

24. In returning the finding aforenoted we are conscious

of the fact that Shatrughan comes from a humble background

and may have had some initial hesitations in volunteering

information to the police. But as deposed to by HC Sahib Singh

10 to 15 persons were present at the spot. The place where the

incident took place was a rickshaw stand. Shatrughan is also a

rickshaw puller, a fact admitted by him during cross

examination, some of those 10 to 15 persons would be rickshaw

pullers and in the presence of his fellow rickshaw pullers

Shatrughan would be expected to muster courage and inform

the first police officer who came to the spot that he had

witnessed the crime.

25. What appears to have happened is that Shatrughan

reached the spot much later when Insp.Sanjeev Tyagi visited

the spot for the second time and on learning that his friend was

murdered, went back in time to think as to who could have

stabbed his friend. It happens with every human being. If a

near and dear one is killed the mind searches to find the answer

to the question: who did it? All those with whom the deceased

friend had an enmity are the ones whose names crop up in the

mind and hence the tongue.

26. Though we find considerable merit even in the

second plea that the act of the appellants attract the offence

punishable under Section 304 Part I IPC and even on said

account the appeals can be disposed of directing that the

appellants should be sentenced for the period of incarceration

already undergone since the main offender i.e. Mohd.Rahim has

suffered an actual sentence of 8 years and 5 months as of

today and with the remission of 2 years and 5 months would be

deemed to have undergone a sentence of 11 years; the one

with a lesser role i.e. Mazibul Rehman has likewise served an

actual sentence of 5 years and 3 months and a deemed

sentence of 6 years and 6 months, we express no opinion on

the same in view of our finding pertaining to the first

submission made by learned counsel for the appellants.

27. The appeals are allowed. The appellants are given

the benefit of doubt. The impugned judgment and order dated

24.2.2003 convicting the appellants is set aside. The appellants

are acquitted of the charge of having murdered Shyam Kumar.

28. Since appellant Mazibul Rehman is in jail, he is

directed to be set free forthwith if not required to be kept in jail

in some other matter. The bail bond and surety bonds

furnished by appellant Mohd.Rahim are discharged.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE December 1, 2009 mm