Shuaib & Anr. vs State
2009 Latest Caselaw 497 Del

i.13
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              CRL.A. 808/2008

%                              Date of Order : February 11, 2009


      SHUAIB & ANR.                           ..... Appellant
                Through        Mr. Javed Hashmi, Adv.

                               versus

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

      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MS. JUSTICE ARUNA SURESH

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

      2. To be referred to the Reporter or not?

      3. Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J. (Oral)

1. Vide impugned judgment dated 25.7.2008,

appellants Shuaib and Shadab have been convicted for the

offence of having murdered Shamim. Both of them have been

convicted under Section 302/34 IPC.

2. Vide order of sentence dated 29.7.2008, both have

been awarded the punishment to undergo imprisonment for

life and to pay fine in sum of Rs.5000/- each. In default of

payment of fine they have been directed to undergo rigorous

imprisonment for six months.

3. The evidence found to be incriminating against the

appellants is two-fold.

4. Against appellant Shuaib the learned Trial Judge

has accepted the testimony of Reshma PW-4, sister of the

deceased, who claimed to be an eye witness to the incident.

Against Shadab, the learned Trial Judge has held that there are

two incriminating pieces of evidence; firstly the facts disclosed

by Reshma and secondly the recovery of a scissor, being the

alleged weapon of offence used to cause injuries on the body

of Shamim, at the instance of Shadab pursuant to his

disclosure statement.

5. In her testimony, Reshma deposed in Court that on

5.3.2005 at around 4.35 p.m. her youngest brother Bilal was

playing marbles outside their house along with Imran who was

residing in the neighbourhood. While playing marbles, Bilal

quarreled with Imran. She separated both of them and got Bilal

inside the house. Imran went to his house. After about five

minutes, her brother Shamim (deceased) 18 years was sent by

her to bring vegetables. Shamim had hardly taken 5-6 steps

outside the house when appellants came out of their house.

Appellant Shadab caught hold of her brother and appellant

Shuaib inflicted a wound on the chest of her brother with

something. Her brother started bleeding. Sandeep PW-7 was

present. She along with Sandeep took Shamim to Kamal

Nursing Home where doctor bandaged her brother and told her

to take him to some good hospital. Accompanied by Sandeep

she took her brother Shamim to Mohan Nursing Home, from

where they were referred to GTB Hospital. They remained at

GTB Hospital for some time and took back the injured to

Mohan Nursing Home where the doctor referred him to

St.Stephen's Hospital, where he died the next day at 8.00 A.M

upon which she informed the police that her brother was

murdered by the appellants.

6. In cross-examination, Reshma accepted that the

place of occurrence was a thickly populated area and that she

did not tell anyone about the incident. She admitted that

neither at Kamal Nursing Home nor at Mohan Nursing Home

she told that the appellants had inflicted injuries on her

brother. She stated that she did not inform anybody of the

appellants having caused injuries on her brother because the

father and the brother of the appellants had threatened her.

7. Sandeep examined as PW-7 has not supported the

case of the prosecution. He deposed that when he reached the

house of the deceased he found Shamim lying on the ground

and his sister Reshma was standing there. Reshma told him

that Shamim has sustained injuries and that he accompanied

Reshma to take Shamim to Kamal Nursing Home where first-

aid was given to him. He accompanied Reshma to Mohan

Nursing Home and from there to GTB Hospital. He further

deposed that in his presence, Shamim had told the doctor at

GTB Hospital that he had sustained injuries as a result of

falling down from the stairs. We note that the FIR in question

was registered pursuant to the statement made by Reshma

before the police the next day. i.e. 6.3.2005, after Shamim

died. We also note that said statement has been made by

Reshma to the police after nearly 28 hours of the incident.

8. Post-mortem of Shamim was conducted by

Dr.K.K.Banerji PW-3, who noted that apart from two surgically

sutured wounds, deceased had one more wound on his person

which had cut through blood vessels. He recorded that due to

surgical intervention it was not possible to give a definite

opinion regarding the nature of the third wound.

9. After he gave the post-mortem report, Ex.PW-3/A,

on 11.5.2005 he received an application Ex.PW-3/DA from the

Investigating Officer seeking opinion whether the injury could

be a result of a fall over metal garbage or was the result of an

assault. He gave his opinion, Ex.PW-3/DB, to the effect that no

definite opinion can be given in this regard as the wound on

the body were surgically altered.

10. It is not in dispute that at Mohan Nursing Home

where Shamim was taken on 5.3.2005, in the medical papers,

Ex.DW-1/D1, it has been recorded: "Alleged H/o fall from

stairs".

11. It is also not in dispute that at GTB Hospital where

Shamim was taken, as recorded in Ex.DW-1/DD, at 6.05 p.m.

on 5.3.2005, the history of the injury has been recorded

"Alleged H/o fall from height".

12. It is also not in dispute that when Shamim was

taken to St.Stephen's Hospital on 5.3.2005 at 11.50 p.m. while

recording the history of the injury it was recorded: "H/o Fall on

metal garbage at 5.00 p.m. today".

13. We note that the said history is recorded in the MLC

prepared at St.Stephen's Hospital, being Ex.PW-15/A.

14. Believing the testimony of Reshma and holding that

she would be perplexed when her brother was injured and

medical evidence shows that she was taking her brother from

hospital to hospital, the learned Trial Judge has held that the

delay in informing the police that the appellants had assaulted

her brother is explainable, and hence there is no fatal delay in

registration of the FIR.

15. With respect to the conduct of Reshma in not

informing anybody that the appellants had inflicted the injuries

on her brother, learned Trial Judge has believed her statement

that she was under a threat. Discrepancies pointed out in her

deposition have been brushed aside by the learned Trial Judge

holding that she was speaking from memory when she

deposed in Court and that her mental condition at the relevant

point of time i.e. when her brother was injured on 5.3.2005

was such that she could reasonably be expected to be shaken

and shattered.

16. Medical history recorded at Mohan Nursing Home,

GTB Hospital and St.Stephen's Hospital has been brushed

aside with a finding in para 20 of the impugned decision that

the same do not reveal that the deceased had himself given

the said history.

17. We are pained at the manner in which the learned

Trial Judge has analysed the evidence. It appears that the

Court was determined, somehow or the other, to convict the

appellants.

18. The learned Trial Judge has ignored the fact that as

per Reshma, her brother was injured by appellants at around

4.35 p.m. Sandeep, a friend of her brother was present and

both of them immediately rushed Shamim to Kamal Nursing

Home and there from took him to Mohan Nursing Home.

19. There is no record before this Court, indeed none

was before the learned Trial Judge, pertaining to what

happened at Kamal Nursing Home. But Ex.DW1/D1 shows that

the injured was given medical aid at Mohan Nursing Home on

5.3.2005. The injured, as deposed to by Reshma, was taken to

GTB Hospital and we find that he was given medical treatment

there at 6.05 p.m. evidenced by DW-1/DD.

20. Where was the occasion of any family member of

the appellants accosting Reshma and threatening her not to

disclose what had actually happened. Besides, Sandeep PW-7,

was all throughout besides her. He does not say that anybody

contacted Reshma.

21. The learned Trial Judge has ignored the fact that

there is no evidence to show that any third person ever came

into contact with Reshma.

22. The Trial Judge has glossed over the categorical

statement of Sandeep, to the effect, that at St.Stephen's

Hospital, in his presence, the injured himself gave the

statement as to how the injury was sustained by him.

23. It is important to note that in three

contemporarious medical records at three hospitals, the

history of the injury has been consistently recorded as a result

of fall from a height.

24. Now, a doctor can record the history of an injury

either as told by the injured himself or by the person

accompanying the injured i.e. the person who has got the

injured admitted at the hospital.

25. There is no evidence that any family members of

the appellants were present in either of the three hospitals

where the injured was first taken i.e. Kamal Nursing Home,

Mohan Nursing Home or the GTB Hospital. There is some

evidence that Naved, PW-11, a brother of the accused had

reached St.Stephen's Hospital.

26. Be that is it may, the fact of matter remains that

contemporarious medical records at three different hospitals

shows that the three doctors concerned had recorded the

history of the injury as a result of a fall. Needless to state, the

doctors did not conceive of the same out of their imagination.

They must have written the same as told by the injured or by

Reshma. As noted above, Sandeep has categorically stated

that the history of the injury at St.Stephen's Hospital was

disclosed by the injured himself.

27. Thus the testimony of Reshma PW-4 stands totally

discredited with respect to the independent medical record.

28. It is not of no significance that the doctor who

conducted the post-mortem could not give a definite opinion

whether injury was a result of a fall or could possibly be the

result of being stabbed with a knife.

29. Under the circumstances the recovery of the

alleged weapon of offence i.e. scissors, pursuant to the

disclosure statement of appellant Shadab is of no

consequence. More so, for the reason, the injury on the

person of the deceased is on the abdomen and the shirt of the

deceased admittedly does not have any cut mark as per the

CFSL report Ex.C-1. It is important to note that the shirt of the

deceased and the scissor was sent to the CFSL for an opinion

whether the cut on the shirt could be the result of the scissor

piercing through the shirt before entering the abdominal cavity

of the deceased. The report records that the shirt is not even

cut.

30. Thus, the probable cause of the injury was a result

of a fall.

31. The appeal is allowed. Impugned judgment and

order dated 25.7.2008 convicting the appellants is set aside.

Order dated 29.7.2008 imposing the sentence is also set aside.

The appellants are acquitted of the charge of murdering the

deceased. If not required in any other case the appellants are

directed to be set free forthwith.

32. DASTI.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

FEBRUARY 11, 2009 San.