Aquil Khan vs State
2009 Latest Caselaw 5396 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+           Criminal Appeals No. 10 & 35 of 2006

%                       Reserved on:  22nd December, 2009
                        Pronounced on: 23rd December, 2009

#     AQUIL KHAN                               ..... Appellant
!                           Through: Mr. R.N. Sharma, Adv.

                        versus

$     STATE                                   ..... Respondent
!                           Through: Amit Sharma, APP.


                            AND

#     MOHD. YAMIN                              ..... Appellant
!                           Through: Mr. R.N. Sharma, Adv.

                        versus

$     STATE                                   ..... Respondent
!                           Through: Amit Sharma, APP.

*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN

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

      2.    To be referred to the Reporter or not?         Yes

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

: V.K. JAIN, J.

1. These are two criminal appeals arising out of a common

judgment dated 30th November, 2005, and Order on Sentence

dated 6th December, 2005, whereby both the appellants were

convicted under Section 307 of IPC read with Section 34 thereof.

The appellant Mohd. Yamin was sentenced to undergo R.I. for

two years and to pay a fine of Rs.1,000/- or to undergo R.I. for

four months, in default, whereas the appellant Aquil/Akhil Khan

was sentenced to undergo R.I. for one year and to pay fine of

Rs.500/- or to undergo R.I. for three months, in default.

2. The case of the prosecution, as disclosed in the FIR lodged

by the injured Amit, is that on 1st December, 1998 at about 7.30

P.M. when he was returning home, accompanied by his friend

Jitu and Vinod, and reached main road of H Block, Shakurpur,

some boys, including Yamin and Aquil came from opposite

direction and started beating Jitu. He alleged that Aquil was

holding Jitu when Yamin was beating him. He further alleged

that when he tried to save Jitu, Aquil held him, whereas Yamin

caused injuries on his head, right hand and other parts, with a

sharp object.

3. The injured Amit came in the witness box as PW-3 and

stated that on the day of this incident, when they were going

towards H Block, about 10-15 boys, including Yamin and Aquil

came there. Yamin took hold of his friend and when he tried to

rescue him, Yamin gave knife blow on his stomach and on back

side of his neck. The boys then ran away and he went to Chawla

Hospital where the police recorded his statement Ex.PW3/A,

which is signed by him at point A. He identified both the

appellants, who were present at the time of recording his

statement.

4. PW-1 Jitender stated that on 1st December, 1998 at about

7.30 PM, when he came out of Ashirward Restaurant alongwith

Amit and Vinod, Yamin and Aquil caught hold of him and they

started beating him. Amit tried to save him and thereupon they

caught hold of Amit. Yamin took out some pointed object from

his pocket and struck on the abdomen and hand of Amit, who

started bleeding and fell down. Both the accused then ran away

from the spot. They went to call the relatives of Amit and then

all of them took him to Chawla Nursing Home, where he was

treated. He further stated that on 4 th December, 1998, Yamin

made a disclosure statement Ex.PW1/A and stated that he could

get a knife recovered. Next day, he got recovered one knife

Ex.P1, which was sealed with the seal of AK. The seal after use

was handed to him and the knife was seized vide memo

Ex.PW1/B.

5. PW-2 Vinod has stated that on 1st December, 1998, when

he came out of Ashirwad Restaurant, alongwith Jitender and

Amit, Yamin, who was previously known to him, caught hold of

Jitender. Amit tried to save him as they were grappling. Yamin

then took out some sharp edged article and attacked Amit on his

head, stomach and hand. Amit started bleeding. He went to the

house of Amit and narrated the incident. He also stated that the

other accused present in the Court had also come alongwith

Yamin and had caught hold of Jitender.

6. PW-4 Daya Kaur is the mother of the injured Amit. She has

stated that in the evening of 1st December, 1998, Vinod and

Jitender came to their house and informed that Yamin had

stabbed their son Amit. She alongwith others removed Amit to

hospital. PW-5 is the brother of the injured Amit. He stated that

on 1st December, 1998, Vinod and Jitender came to their house

and informed that Yamin had stabbed his brother Amit.

7. PW-7 ASI Baljeet Singh has stated that on 5th December,

1998 Yamin got recovered one Dagger Ex.P-1 from the bathroom

of his house. After preparation of the sketch of the dagger and

sealing it with the seal of AK, it was sealed vide memo

Ex.PW1/B. PW-9 Const. Prem Singh has corroborated the

deposition of PW-7 regarding recovery of dagger. PW-15 Anant

Kiran is the IO of the case. He has also corroborated the other

depositions of the officials of the case regarding recovery of the

knife from the bathroom at the instance of the appellant Yamin.

8. PW-13 Dr. D.P. Chawla examined and treated the injured

Amit in Chawla Nursing Home and prepared his MLC Ex.

PW13/A. He also gave his opinion Ex.PW13/C after examining

the weapon of offence, which was sent to him on 18th February,

1999 for giving opinion. According to him, he had resealed the

knife with the seal of CNH. He identified Ex.P1 as the knife

which was sent for his opinion.

9. In his statement under Section 313 of Cr.P.C., appellant

Yamin denied allegations against him and stated that he has

been falsely implicated in this case. The appellant Aquil Khan

also denied allegations against him and claimed to be innocent.

10. So far as the appellant Aquil is concerned, the case of the

prosecution, as disclosed in the FIR, is that he had held the

injured Amit, when knife blows were given to him by the

appellant Yamin. No injury to Amit has been imputed to the

appellant Aquil. However, when the injured Amit came in the

witness box, he did not impute any such act to the appellant

Aquil. He did not claim that Aquil had held him when knife

blows were given to him by the appellant Yamin. PW-2 Vinod

Kumar, who is the eye-witness of the incident, also did not say

that the appellant Aquil had held Amit when knife blows were

given to him by Yamin. According to Vinod, the appellant Aquil

had caught hold of Jitender. He does not say that he had caught

hold of the injured Amit. Therefore, no act to the appellant Aquil

has been imputed by this witness.

11. PW-1 Jitender also did not say that the appellant Aquil had

held Amit when knife blows were given to him by the appellant

Yamin, though he stated that the appellant Aquil had also caught

hold of Jitender and both the appellants had given beating to

him. He also stated that when Amit saved him, the appellants

caught hold of him. But he does not say that the appellant Aquil

had held Amit when knife blows were given to him by Yamin. In

any case, the appellant Aquil cannot be convicted merely on the

basis of such a vague statement of PW-1, when neither the

injured nor PW-2 Vinod attribute any such act to him. Therefore,

the prosecution has failed to prove the role attributed to the

appellant Aquil in the FIR.

12. Though it has come in the deposition of PW-1 Jitender that

both the appellants had given beating to him, I find that no

charge has been framed against either of the appellants in

respect of beating, alleged to have been given to PW-1 Jitender.

In the absence of any charge, no punishment can be given to the

appellant in respect of the beating alleged to have been given to

PW-1 Jitender.

13. I do not see any reason to disbelieve the testimony of the

injured Amit. No motive has been imputed by the appellant

Mohd. Yamin to him to make false allegations of stabbing

against him. The injured is the best witness of the incident in

which injuries were caused to him and, therefore, his testimony

is entitled to great weight. The presence of such a witness at

the time and place of occurance cannot be doubted. It is not

likely that he would spare the real assailant and implicate an

innocent person. Being the victim of crime, he would be most

keen to ensure that the real culprit does not go scot free. In Mer

Dhana Side vs. State of Gujarat vs. State of Gujarat AIR 1985

SC 386, three injured witnesses had supported the prosecution.

It was held by the Hon‟ble Supreme Court that as there were

three injured witnesses, and we would require very convincing

submissions to discard the evidence of the injured witnesses

whose injuries would at least permit a reasonable inference that

they were present at the time of occurrence. Undoubtedly, this

is subject to the requirement that there must be evidence to

show that these witnesses received injuries in the same

occurrence. Very cogent and convincing ground would,

therefore, be required to discard the evidence of the injured. In

Machhi Singh vs. State of Punjab 1983 Crl. LJ 1457 one witness

Hakam Singh himself had sustained injuries in the course of

incident in question. It was observed by the Hon‟ble Supreme

Court that it was difficult to believe that he would implicate the

persons other than the real culprits and that the evidence of that

witness alone was sufficient to bring home the guilt of the

appellants even if one were to exclude from consideration the

evidence of other PWs . Identical view was taken by the Hon‟ble

Supreme Court in a number of other cases including Makan

Jivan and Ors. vs. State of Gujarat AIR 1971 SC 1797; Mori Lal

and Anr. Vs.State of U.P. AIR 1970 SC 1969; and Jamuna

Chaudhary and ors. vs. State of Bihar AIR 1974 SC 1822.

14. The deposition of the injured has been corroborated by PW

1&2, both of whom were present at the time of this incident.

The presence of PW 1 &2 at the time of this incident finds

corroboration from the deposition of PW 4 Daya Kaur, the

mother of the injured and PW 5 Sonu Singh, brother of the

injured. Had they not witnessed this incident, there would have

been no occasion for them to go to the house of the injured and

inform his family members about the appellant Mohd. Yamin

stabbing him. In the FIR lodged by him the injured Amit

himself has stted that he was accompanied by Jitender and Vinod

when this incident took place. All of them had food together in

Ashirwad Restaurant and were going together when this

incident took place. But, even if the testimony of PW 1 & 2 is

excluded from consideration, the deposition of the injured Amit

coupled with other corroborative evidence on record is sufficient

to prove the guilt attributed to the appellant Mohd. Yamin.

15. The testimony of PW 1 Jitender and PW 15 SI Anant Kiran

shows that while in police custody the appellant Mohd. Yamin

made disclosure statement Ex. PW 1/A and told the police that

he could get a knife recovered. The testimony of PW 1 who is a

public witness and PW 7, PW 9 and PW 15 who are police

officials also proves that the appellant Mohd. Yamin took the

police to a bathroom and got recovered one knife/dagger Ex.P1

from there. The disclosure statement Ex.PW 1/A is admissible in

evidence under section 27 of the Indian Evidence Act, since

pursuant to the disclosure statement the police discovered the

fact that a knife had been kept in the bathroom, from which it

was later on recovered. In fact, during cross-examination of PW

5 Sonu Singh, the learned counsel for the appellant Mohd.

Yamin suggested to him that the accused had disclosed to him

inthe evening of 4th December, 1998 that the knife was inside

the bathroom in asbestos sheet. It was further suggested to him

that the bathroom from where knife was recovered was not

inside the house No.881, Shakarpur but was outside, adjacent to

it. By giving these suggestions, the appellant Mohd. Yamin

himself admitted having stated to the police that knife had been

kept inside the bathroom under asbestos sheet. This is not the

case of the appellant Mohd. Yamin that he had come to know

from some other person that there was a knife kept inside that

bathroom underneath asbestos sheet. Therefore, the inevitable

inference is that the knife Ex.P1 was concealed in the bathroom

by none other than the appellant Mohd. Yamin himself and that

is why this fact was in his knowledge and was disclosed by him

to the police on 4th December, 1998.

16. The testimony of PW 1 Jitender also shows that after the

knife had been sealed with the seal of „AK‟, the seal was handed

over to him. This is yet another corroboration of the case of the

prosecution as regards recovery of knife at the instance of the

appellant Mohd. Yamin, pursuant to the disclosure statement

made by him while in police custody.

17. It has been opined by PW 13 Dr. D.P. Chawla, vide his

opinion Ex.PW 13/C that the injuries caused to the injured Amit

were possible with knife/dagger Ex.P1. A perusal of the opinion

given by PW 13 shows that the knife when received by him was

sealed with the seal of „AK‟. It further shows that after

examining the knife PW 13 had sealed it with the seal of „CNH‟,

obviously „CNH‟ stands for Chawla Nursing Home. A perusal of

the report of the Forensic Science Laboratory(FSL) Ex. PW 14/A

would show that the knife was sealed with the seal of CNH when

it was received in FSL. Thus, it stands proved that the knife

examined by PW 13 and later examined in FSL was the same

knife which was recovered at the instance of and pursuant to

the disclosure statement made by the appellant Mohd. Yamin.

This is yet another corroboration of the testimony of PW 1 to PW

3 as regards the injuries caused to PW 3 Amit.

18. It has come in the deposition of PW 13 that there were

traces of blood on the knife Ex.P1 when it was received by him.

It is true that the report of PW 13 does not contain any

endorsement to the effect that there were traces on the knife

when it was received by him. But, there is absolutely no reason

to disbelieve the oral deposition of PW 13 in this regard,

particularly when the seizure memo of the knife Ex.PW1/B also

shows that it was stained with blod when it was recovered from

the bathroom and was seized by the IO and blood was also found

on it when it was examined later in FSL.

19. The report of the FSL also shows that blood of Group „A‟

was found on the knife/dagger sent to it. The blood of the same

group was found on the underwear and baniyan of the injured

Amit. This is yet another corroborative evidence which indicates

that the injuries to PW 3 Amit were caused using the dagger

Ex.P1 and that is why blood of the same group was found on the

dagger and cloths of the injured.

20. It was contended by the learned counsel for the appellant

that no permission was taken by PW 8 from the doctor before he

recorded the statement in Chawla Nursing Home. It has come in

the deposit of PW 13 Dr. D.P. Chawla that when he took round at

about 11.00 A.M. on 2nd December, 1998, the condition of the

injured was satisfactory. Therefore, the injured was in a position

to give statement to PW 2 at about 2.00 P.M. on 2 nd December,

1998. In fact, even the application submitted by PW 8 to the

doctor and the endorsement made by the doctor declaring him

fit for statement is also available on the judicial file though it has

not been proved during evidence. What is material is that the

injured should have been fit for giving statement at the time his

statement is alleged to have been recorded and the testimony of

PW 13 leaves no reasonable doubt that the injured was fit for

statement when he was examined by PW 8 in Chawla Nursing

Home at about 2.00 P.M. on 2nd December, 1998.

21. It was contended by the learned counsel for the appellant

Mohd. Yamin that the signature of the injured Amit on the

statement Ex.PW1/A were obtained on blank paper as stated by

PW 3 in his cross-examination and he did not know what was

later on written on this document. PW 3 Amit admits his

signature on Ex.PW3/A which is his statement recorded by PW 8

HC Shukhan Singh. During cross-examination of PW 8 no

suggestion was given to him that he had obtained signature of

the injured Amit on a blank paper and had later on incorporated

a statement on that blank paper, without the injured knowing

what had been written in the document. Moreover, had PW 8

not examined the injured Amit in Chawla Nursing Home on 2 nd

December, 1998, he could not have come to know how this

incident had taken place. The very fact that the formal FIR was

also recorded on 2nd December, 1998 and there is no reasonable

possibility of the formal FIR being ante dated shows that PW 8

had, in fact, recorded the statement of Amit on 2 nd December,

1998 and that is why the formal FIR was registered on the basis

of that statement on that very date. Since the injured Amit had

sustained serious injuries which took place on 1st December,

1998, it is quite possible that he did not recollect all the facts

when he was examined inthe court on 6th May, 2002. As regards

PW 3 not knowing the contents of the document, I find

thataccording to him he did not know the contents of Ex.PW1/A.

Ex. PW 1/A is the disclosure statement of the appellant Mohd.

Yamin and not the statement of the complainant Amit.

Therefore, nothing turns on this part of the deposition of the

injured. In any case, there is no reason to disbelieve the

deposition of the injured in the court which has stood the test of

cross-examination as far as the appellant Mohd. Yamin is

concerned and which finds ample corroboration not only from

the deposition of PW 1 and 2 but also from the recovery of the

knife/dagger Ex.P1 at is instance and pursuant to the disclosure

statement made by him.

22. For reasons given in the preceding paragraphs, I hold that

the appellant Mohd. Yamin had caused injuries as mentioned in

the MLC PW 3/A to the injured Amit using the dagger Ex.P1.

23. A perusal of the MLC Ex.PW13/A would show that the

following serious injuries were sustained by PW 3 Amit at the

hands of the appellant Mohd. Yamin:

"Stab wound on the abdomen below & left of the umbilicus

2.5 cm long, greater omentum popping out of the wound.

Omentum pushed inside the abdomen and a fresh (L)

paramedian, muscle-splitting incision given and abdomen

opened.

A pool of blood (around 500 ml) was seen inside the

abdomen, in paracolic gutters and pelvis, which was

sucked and mopped out.

Rectus muscle was badly torn across/damaged and

bleeding.

A large retro-peritoneal haematoma located at the region

of pancreas in the mesentry of duodeno-jejunal loop of

intestines loops of intestines."

24. A perusal of the sketch of the knife Ex. P1 would show that

the blade of the knife was 7.5 inch long. Thus, it was not a

kitchen knife and was a dangerous weapon. The injuries to PW 3

were caused on the vital parts of his body. A perusal of Ex.PW

13/A would show tht the injuries inflicted by the appellant Mohd.

Yamin to PW 3 had resulted in serious intra-peritoneal damage

and haemorrhage. It has also come in the testimony of PW 13

that injured was subjected to operation which continued till

10.30 P.M. and he had to be given anaesthesia for that purpose.

He was thereafter kept in ICU. Thus, serious injuries using a

dangerous weapon were caused on the vital parts of the body of

the injured Amit.

25. In order to succeed the prosecution was required to prove

(1) that the death of a human being was attempted, (2) that such

death was attempted to be caused by or in consequence of the

act of the accused and (3) that such act was done with the

intention of casuing death or that it was done with the intention

of causing such bodily injuries as the accused knew to be likely

to cause death or were sufficient in the ordinary course of

nature to cause death. To justify conviction under section 307 of

IPC, it is not essential that bodily injury capable of causing death

should have been inflicted. Although the nature of injury may

often given considerable assistance in coming to a finding as to

the intention of the accused, such intention may also be deduced

from other circumstances. What the court has to see is whether

the act irrespective of its result, was done with the intention or

knowledge and under the circumstances mentioned in the

section. The intention of the assailants can be gathered from the

nature of weapon used, number of blows given by him and the

parts of the body where the injuries are inflicted and other

surrounding circumstances, if any. The language of the section

makes it clear that even if mere hurt is caused by an act which is

done with such intention or knowledge and under such

circumstances, that if by that act death is caused, the offender

would be guilty of murder, this section will apply. This section

itself provides a punishment of 10 years for doing an act which

amounts to an attempt to murder even though the act causes no

hurt to any one, but the offender is liable to the heavier

punishment of imprisonment for life, if the injury is actually

inflicted. The nature of injuries by themselves may be of

considerable help in arriving at the finding as to whether the

accused had the intention of causing the death of the victim.

While the intention of he accused to inflict injuries sufficient

enough to cause death is established from the nature of the

injuries and other circumstantial evidence, it cannot be said that

there was no evidence that the injuries caused were known to be

accused to be likely to cause death.

26. In the present case, there was no quarrel before stab

injuries were given to PW 3 Amit by the appellant Mohd. Yamin.

Therefore, it cannot be said that the injuries were caused to PW

3 at the spur of moment or in a fit of anger. The appellant

Mohd. Yamin was already carrying a deadly knife with him

which he used for causing injuries to PW 3 Amit. This indicates

preplanning on his part. He chose to select vital parts of the

body of Amit for giving knife blows to him. He did not stop at

giving one knife blow and gave multiple blows to the injured.

The very fact that the wounds were bone deep and a surgery had

to be performed after giving anaesthesia to the injured shows

that the injuries were serious and could even have endangered

the life of Amit, had he not been rushed immediately to Chawla

Nursing Home and not been subjected to emergency operation.

Therefore, it can be safely said that the appellant Mohd. Yamin

attempted to cause death of PW 3 Amit or that he gave stab

blows to him with the intention of causing such bodily injuries

which he knew to be likely to cause death. Hence, the offence

under section 307 of IPC stands proved against him beyond any

reasonable doubt.

27. For the reasons given in the preceding paragraphs, the

conviction of the appellant Mohd. Yamin under section 307 of

IPC is maintained. In the matter of sentence, the appellant

Mohd. Yamin has already been dealt with rather softly by the

trial court and there is absolutely no scope for reduction of the

sentence awarded to him. The appellant Aquil Khan is given

benefit of doubt and is hereby acquitted.

28. Crl. Appeal Nos.10 of 2006 and 35 of 2006 stand disposed

of accordingly.

(V.K.JAIN) JUDGE DECEMBER 22, 2009 AG/RS