Delhi High Court
Jahangir @Abrahim vs State on 20 July, 2009
Author: Pradeep Nandrajog
i.3-5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : July 20, 2009
+ CRL.APPEAL NO.217/2006
JAHANGIR @ABRAHIM ..... Appellant.
Through: Mr.K.P.Mavi, Advocate.
versus
STATE ..... Respondent
Through: Mr.Pawan Sharma, APP.
CRL.APPEAL NO.814/2006
MOHD. FAROOQ @GAINDA ..... Appellant.
Through: Mr.Bhupesh Narula, Advocate.
versus
STATE ..... Respondent
Through: Mr.Pawan Sharma, APP.
CRL.APPEAL NO.341/2006
MOHD. KHOKHAN @ASLAM ..... Appellant.
Through: Mr.K.P.Mavi, Advocate.
versus
STATE ..... Respondent
Through: Mr.Pawan Sharma, APP.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether judgment should be reported in Digest?
Yes
Crl.A.Nos.217, 814 & 341/2006 Page 1 of 17
PRADEEP NANRAJOG, J. (Oral)
1. As recorded in DD No.3A, Ex.PW-2/A, at 2:38 AM on
1.8.2003 (i.e. during the intervening night of 31.7.2003 and
1.8.2003) the duty officer PS Seemapuri noted the information
that the police control room had informed him over the
telephone about the police control room having received
information that a boy named Moju had been shot at Lane No.3
near a park adjoining F-339, New Seemapuri.
2. Copy of the DD entry was handed over to SI
C.M.Meena PW-9. Accompanied by Const.Subhash PW-8, SI
C.M.Meena proceeded to the spot i.e. F-339, New Seemapuri
and learnt that the injured had been removed to G.T.B.Hospital.
3. In the meanwhile, the injured Muzibur Rehman @
Moju had been removed to GTB Hospital by his father Sheikh
Siadul PW-3 and was got admitted there at 2:56 AM i.e. in the
middle of the night; the time and the date being recorded in
the MLC Ex.PW-10/A.
4. Dr.Pradeep Narain Sahu was working as the
Additional Chief Medical Officer of GTB Hospital and was on
duty. He penned the MLC Ex.PW-10/A recording therein:-
"The Pt. is conscious, well oriented.
Pulse - 80/min.
BP - 140/80 mmHg."
5. Since the injured had been removed to the hospital
and no eye-witness was present at the spot, in any case, none
met SI C.M.Meena and Const.Subhash at the spot, the two
police officers proceeded to G.T.B. Hospital and found the
injured Muzibur admitted at the hospital. SI C.M.Meena
recorded the statement Ex.PW-9/A of Muzibur and obtained his
thumb impression at the point mark „A‟ thereon. In the
statement Ex.PW-9/A Muzibur stated that he was a resident of
House No.F-339, New Seemapuri, Delhi and was aged 28 years.
He stated that he was engaged in the trade of buying and
selling junk and that today night, at around 2:15, he went
outside his house to visit the public toilet and when he reached
the public toilet, accused Jahangir (A-1), Farooq (A-2), Khokhan
(A-3), one Jaleel (declared PO) and one more person whose
name he did not know, but could recognize him if brought
before him, accosted him, and all of a sudden accused Farooq
and accused Khokhan caught his right hand. Jaleel caught his
left hand and the person whose name he does not know
exhorted that he i.e. Muzibur would today be taught the lesson
of being a police informer and at that Jahangir, who had a
country made pistol in his right hand, fired a shot in his
stomach and all the accused fled.
6. SI C.M.Meena made the endorsement Ex.PW-9/B
under the statement Ex.PW-9/A and forwarded the same
through Const.Subhash PW-8 for an FIR to be registered.
7. As recorded in the endorsement Ex.PW-9/B, the
statement Ex.PW-9/A and the endorsement Ex.PW-9/B was
dispatched from the hospital at 4:00 AM on 1.8.2003.
8. ASI Sushil Kumar PW-2 who was then functioning as
the duty officer at the police station, on receipt of the
statement Ex.PW-9/A and the endorsement Ex.PW-9/B,
registered an FIR Ex.PW-2/C at 4:25 AM. The time being as
noted in the FIR.
9. Needless to state, the FIR was registered for the
offence punishable under Section 307/341 IPC.
10. SI CM Meena returned from the hospital to the place
where the crime was committed. Const.Subhash also returned
to the spot, but after getting the FIR registered.
11. As deposed to by Const.Subhash PW-8, since it was
raining in the night, no blood could be lifted from the spot i.e.
the public toilet where the crime was committed. However,
conducting proceedings at the spot pertaining to the
investigation, SI C.M.Meena prepared the rough site plan
Ex.PW-9/C with the assistance of the father of the deceased i.e.
Sheikh Saidul PW-3, recording therein the spot where the
deceased was shot; being at the entry of the public toilet at F-
Block. Since PW-3 claimed to have witnessed the firing, the
spot wherefrom he allegedly witnessed the firing was marked
„B‟.
12. Since the names of A-1 to A-3 and Jaleel were known
to the police as per the statement of the deceased and that of
his father, the police kept a look out for the accused A-1 to A-3
and Jaleel. A-1 Jahangir was the first one to be apprehended
on 1.8.2003 itself. He was interrogated and his statement
Ex.PW-5/A was recorded by SI C.M.Meena. The statement is a
confessional statement and hence we eschew a detailed
reference thereto, save and except such part of the statement
which attracts Section 27 of the Evidence Act.
13. The said relevant part of the statement is: "I fired a
shot in the stomach of Moju from a country made pistol and
thereafter all of us fled from the spot. The said country made
pistol can be got recovered by me from beneath an almirah in
the room taken on rent by me in Nandnagri."
14. Jahangir thereafter led SI C.M.Meena to House No.B-
3/105 Nand Nagri and led him to the first floor. At that time
Const.Vinesh Kumar PW-5 and Const.Bachchu Singh PW-13
were accompanying SI C.M.Meena. As recorded in the seizure
memo Ex.PW-5/C, Jahangir pointed out an iron almirah inside a
room on the first floor of House No.B-3/105 Nand Nagri and
from beneath the almirah took out a country made pistol which
was seized vide seizure memo Ex.PW-5/C. SI C.M.Meena
prepared the sketch Ex.PW-5/B of the revolver. A used
cartridge was also seized on being produced from beneath the
almirah by Jahangir, sketch whereof was also drawn on Ex.PW-
5/B.
15. The injured Muzibur Rehman was given medical
treatment at GTB Hospital. But, unfortunately he could not
survive and died on 4.8.2003. Said information was passed on
to the investigating officer who got registered the offence of
murder in the FIR and proceeded to the hospital to seize the
dead body. The body was sent for post-mortem to the
mortuary of GTB Hospital, where Dr.S.K.Verma PW-16
conducted the post-mortem the next day i.e. 5.8.2003. He
recorded in the post-mortem report Ex.PW-16/A that there
existed a fire-arm entry wound, oval in shape, placed on right
side hypochondrium. The exact spot was 3 cms to the right of
midline and 1.5 cms below the right coastal margin. He noted:
Tattooing in an area of 13 x 12 cms around the entry wound.
16. A bullet was found lodged in the para vertebral
muscles which was removed by him.
17. He noted that the cause of death was shock due to
septicemia following the solitary injury produced by the
projectile of a fire-arm and was sufficient to cause death in
ordinary course of nature.
18. After the post-mortem, the bullet along with the
blood sample of the deceased on a piece of gauze was handed
over by him to the investigating officer. By this time, since the
offence had taken a higher degree, i.e. from attempt to murder
to murder, further investigation was entrusted to the Additional
SHO Bakshi Ram who seized the bullet and the gauze piece
containing the blood sample of the deceased as recorded in the
seizure memo Ex.PW-9/F which was witnessed by SI C.M.Meena
who signed at point mark „A‟ on the seizure memo Ex.PW-9/F.
19. The bullet which was recovered from the body of the
deceased as also the firearm which was recovered pursuant to
the disclosure statement of Jahangir and upon Jahangir leading
the police to the room wherefrom it was recovered, were sent
for ballistic opinion. S.S.Baisoya, Junior Scientific Officer
(Ballistic), CFSL, Chandigarh PW-17, conducted the ballistic test
by test firing a standard bullet of size 8 mm for the reason the
country made pistol sent to him was of bore 8 mm. He opined,
vide report Ex.PW-17/A, that the bullet which was recovered
from the body of the deceased was fired from the country
made pistol. He so opined after examining and comparing the
individual characteristic marks on the bullet recovered from the
body of the deceased and test fired bullet. He also opined that
the cartridge case recovered and sent to him for opinion was
fired from the pistol in question for the reason individual
characteristic marks matched those on the cartridge of the test
fired bullet.
20. A-2 Farooq was arrested on 8.9.2003. A-3 Khokhan
was arrested on 29.10.2003. A-4 Halim was arrested on
10.11.2003. Jaleel could not be arrested and was declared a
proclaimed offender.
21. Save and except making confessional statements
admitting their involvement in the crime, which statements are
wholly inadmissible in evidence, we note that nothing was
recovered from the police pursuant to the confessional
statements made by A-2, A-3 and A-4.
22. According to the police, the motive, which needless
to state, has traces thereof in the statement Ex.PW-9/A of
Muzibur Rehman, is the vengeance against him of being a
police informer.
23. To a reader of our present decision it would be
apparent that the case of the prosecution hinged upon a
motive i.e. revenge; recovery of a country made pistol
pursuant to the disclosure statement of Jahangir followed by his
leading the police to a room and from beneath an almirah
within the room getting recovered the same; the FSL report
connecting the said firearm as the weapon of offence with
reference to the bullet which was recovered from the body of
the deceased during post-mortem; and lastly, the statement
Ex.PW-9/A of the deceased and the deposition of his father.
Needless to state, law treats said statement of the deceased as
a dying declaration.
24. At the trial, Sheikh Saidul PW-3 deposed that on
1.8.2003 he was sleeping in his house and got up to go to the
urinal and he heard a noise of his son Muzibur Rehman. He
went towards him and saw all the four accused as also their
accomplice Jaleel. He recognized them as he knew them
before. Jahangir fired at his son. When he reached near his
son and enquired from him, his son told him that Jahangir had
fired at him. He deposed that the accused had enmity with his
son as they suspected that his son was a police informer. After
firing, all the accused and their accomplice i.e. the 5th person
ran away. He removed his son to GTB Hospital and got him
admitted. Police reached there and recorded the statement of
his son.
25. Sheikh Saidul was cross-examined by counsel for all
the accused. On being cross-examined by counsel for A-2 and
A-3 he stated that his son was fully conscious when he was
admitted at the hospital and was in a fit state to make a
statement. On being cross-examined by counsel for A-1 and
A-4 he stated that the statement of his son was recorded by
police after about one hour of his son being admitted at the
hospital.
26. SI C.M.Meena deposed that after he was handed
over DD No.3-A, accompanied by Const.Subhash he went to the
spot where the crime was committed and therefrom to G.T.B.
Hospital and found Muzibur Rehman admitted at the hospital
and being fit for making a statement, he recorded the
statement Ex.PW-9/A of Muzibur. He deposed that he made an
endorsement Ex.PW-9/B thereunder and got the FIR registered.
He deposed that he apprehended Jahangir, who upon
interrogation, made the statement Ex.PW-5/A in which he
disclosed that after shooting the deceased he had hidden the
country made pistol beneath an almirah in the room taken on
rent by him in Nand Nagri and that thereafter he led him to the
room and from beneath the almirah produced the country
made pistol and a used cartridge which were seized vide memo
Ex.PW-5/C.
27. Const.Vinesh Kumar PW-5 and Const.Bachchu Singh
PW-13 deposed that they were present when Jahangir got
recovered the country made pistol and the used cartridge and
that they had witnessed the seizure memo Ex.PW-5/C.
28. The MLC Ex.PW-10/A of the deceased which was
prepared by Dr.Pradeep Narain Sahu was proved by Dr.Sanjy
Kohli PW-10 since Dr.Pradeep Narain Sahu had left the hospital
and Dr.Sanjy Kohli was familiar with the writing of Dr.Pradeep
Narain Sahu as he had worked with him.
29. Dr.S.K.Verma PW-16 proved the post-mortem report
Ex.PW-16/A. S.S.Baisoya, Junior Scientific Officer (Ballistic)
CFSL Chandigarh, PW-17, proved the ballistic report Ex.PW-
17/B.
30. ASI Shahid Khan PW-14 deposed that on 28.1.2003
he was posted at PS Seema Puri and on said day Muzibur
Rehman @ Moju, a resident of Seema Puri had informed him
that some persons were planning to commit dacoity at Taneja
Petrol Pump and were in the DDA Park. On receipt of said
information he formed a raiding party in which Muzibur joined.
Five persons had gathered. Four were apprehended. One
managed to escape. A-1 Jahangir was one of them from whose
possession a 12 bore loaded country made pistol was
recovered and that FIR No.28/03 under Sections 399/402 IPC
read with Section 25 of the Arms Act was registered.
31. Vide impugned judgment and order dated 10.3.2006
the learned Trial Judge has acquitted A-4 Mohd.Halim holding
that the version of PW-3, the father of the deceased, that he
saw the assailants could not be believed because everything
happened in a flash of moment and that in all probability the
names of the accused were disclosed to him by his injured son.
Since in the statement Ex.PW-9/A made by the deceased he
had not named Halim and had simply stated that there was one
more person with the named accused, the learned Trial Judge
held that there was insufficient evidence against Halim
wherefrom his involvement could be established. Holding that
the statement Ex.PW-9/A of the deceased inspired confidence
and was proved through the testimonies of his father PW-3, SI
C.M.Meena PW-9 and Const.Subhash PW-8, the learned Trial
Judge has held that the involvement of the appellants i.e. A-1
to A-3 in the crime was established therefrom. Further
incriminating evidence found and relied upon against Jahangir
A-1 is the recovery of the country made pistol pursuant to his
disclosure statement which was established to be the weapon
of offence as per the ballistic report Ex.PW-17/A. Conduct of A-
2 and A-3 of absconding was also found to be incriminating
evidence against them.
32. The first and the foremost question to be addressed
in the appeal, as was indeed urged, by learned counsel for the
appellants is whether it stands established that the statement
Ex.PW-9/A was made by the deceased when he was conscious.
Needless to state, as held in the decision reported as JT 2001
(9) SC 282 Patel Hiralal Joitaram Vs. State of Gujarat, the said
statement has to be treated as a dying declaration since the
maker thereof died four days after making the statement and
the statement pertains to the cause of his death.
33. It is true that there is no formal certificate issued by
any doctor certifying that the deceased was fit for making a
statement. But, as noted in para 4 above, on the MLC Ex.PW-
10/A, Dr.Pradeep Narain Sahu has recorded that the patient is
conscious and well-oriented. Not only that. The doctor has
recorded on the MLC that the pulse of the patient was 80 per
minute and his blood pressure was 140/80. The pulse and the
blood pressure of the injured as recorded on the MLC is good
evidence wherefrom it can be safely inferred that the condition
of the deceased had not deteriorated and on the contrary,
notwithstanding the injury, the body of the deceased, then
injured, was fairly stable. Besides, not only SI C.M.Meena has
deposed that Muzibur was fit for statement and thus he
recorded his statement at the hospital, PW-3, the father of the
deceased has also so deposed and so has Const.Subhash PW-8.
34. We note that the testimony of PW-8 in this respect
has gone totally unchallenged. Even the testimony of PW-3,
the father of the deceased, on this respect has gone virtually
unchallenged.
35. We thus hold that the evidence on record
establishes that the deceased was fully conscious and the
statement Ex.PW-9/A is the last dying declaration of the
deceased.
36. The post-mortem report of the deceased shows that
the skin around the wound where the bullet had entered the
body of the deceased had tattooing. This means that the shot
was fired from a contact range. The dying declaration Ex.PW-
9/A of the deceased also establishes that the shot was fired
from contact range. Thus, the post-mortem report
corroborates the statement of the deceased in one material
respect being the shot fired from a contact range. This lends
further assurance to the fact that the deceased consciously
stated as was recorded in his dying declaration and that the
same is not a concoction by SI C.M.Meena for on the day of the
injury SI C.M.Meena did not have with him the post-mortem
report for the obvious reason Muzibur was injured and had not
died by then.
37. The testimony of PW-14 clearly establishes the
motive for the crime; motive being the fact that the deceased
had given an information to the police on 28.1.2003 about a
dacoity being planned by A-1 Jahangir which led to Jahangir
being apprehended and thus nurturing revenge against the
deceased.
38. We note that two police officers have deposed to
the facts pertaining to the recovery of the country made pistol
pursuant to the disclosure statement made by Jahangir out of
whom Const.Vinesh Kumar PW-5 did not turn up on the date he
was to be cross examined. We ignore his testimony. But the
testimony of SI C.M.Meena and Const.Bachchu Singh
establishes the recovery of the country made pistol pursuant to
the disclosure statement of Jahangir. The said country made
pistol is indeed the weapon of offence. Thus, said evidence is
further incriminating evidence against A-1 Jahangir and further
corroborates the truth disclosed in the statement Ex.PW-9/A
that Jahangir had fired the shot.
39. The submission made by learned counsel for the
appellants that the Punjab Police Rules requires a dying
declaration to be recorded before a Magistrate of the area and
this not being done renders the statement Ex.PW-9/A as tainted
evidence has not impressed us for the reason no doubt it would
be desirable to have a dying declaration, whenever possible, be
recorded by a Magistrate because said fact would lend
credibility to the dying declaration. But, in a case of the kind
before us, where there is unimpeachable evidence of a high
quality, leaving no scope for doubt in a judicial mind, non
recording of a dying declaration before a Magistrate would be
of not much relevance. After all, rules of procedure are a step
in aid to do substantive justice.
40. The last submission made that the deceased died
due to septicemia and not as a direct result of being shot and
hence the offence is not one of murder needs to be noted and
rejected in light of the observations in the decision in Patel
Hiralal‟s case (supra). In said case the victim was set on fire
after some corrosive liquid was poured on her. She lived on for
quite a few days and died due to septicemia. In para 35 to 38
of the report, it was opined as under:-
"35. Section 299 IPC defines „culpable
homicide‟ as "whoever causes death by doing an
act with the intention of causing death, or with the
intention of causing such bodily injury as is likely
to cause death, or with the knowledge that he is
likely by such act, to cause death, commits the
offence of culpable homicide."
36. Explanation 2 to Section 299 has a
material bearing on the said contention and hence
that is extracted below:
"Explanation 2 - Where death is caused by
bodily injury, the person who causes such
bodily injury shall be deemed to have caused
the death, although by resorting to proper
remedies and skilful treatment the death
might have been prevented."
37. Section 300 IPC carves out two
segments, one is culpable homicide amounting to
murder and the second segment consists of
culpable homicide not amounting to murder. Four
clauses enumerated in the section are enveloped
in the first segment. What is set apart for the
second segment is compendiously described as
"except in the cases hereinafter excepted" from
out of the first segment. For the purpose of this
case we deem it necessary to quote only the
second clause in Section 300 IPC.
"2ndly - If it is done with the intention of
causing such bodily injury as the offender
knows to be likely to cause the death of the
person to whom the harm is caused."
38. In the present case, appellant did not
even make an effort to bring the case within any
of the four exceptions enumerated in Section 300.
Hence the only question to be answered is
whether he did the act with the intention of
causing such bodily injury as he knew "to be likely
to cause death of the deceased." It is
inconceivable that appellant would not have
known that setting a human being ablaze after
soaking her clothes with inflammable liquid would
cause her death as the type of burns resulting
therefrom would at least be "likely" to cause her
death (if not they are sufficient in the ordinary
course of nature to cause her death). The fact
that she died only after a fortnight of sustaining
those burn injuries, cannot evacuate the act out of
the contours of the "2ndly" clause of Section 300
IPC. There was a little abatement of the ferocity
of the flames which engulfed her as she, in the
instinctive human thirst of getting extricated from
the gobbling tentacles of the fire, succeeded in
tracing out of a water-flow. Such a reflex action
performed by her had mitigated the conflagration
of the flames but did not save her from the fatality
of the calamity. Hence, the interval of fourteen
days between the attack and her death is not a
cause for mitigation of the offence perpetuated by
the offender. We are, therefore, not impressed by
the alternative argument advanced by the learned
senior counsel for the appellant."
41. He, who shoots with a bullet in the stomach of a
person, can be attributed knowledge of doing an imminently
dangerous act which attracts Section 300 fourthly. Those who
act in concert are vicariously liable because of Section 34 IPC.
42. We find no merits in the appeals.
43. The appeals are dismissed.
44. Appellant Mohd.Farooq @ Gainda is already in
judicial custody. The appellants Mohd.Khokhan @ Aslam and
Jahangir @ Ibrahim are on bail. Their bail bonds and surety
bonds are cancelled and they are directed to surrender and
suffer the remaining sentence.
PRADEEP NANDRAJOG, J.
INDERMEET KAUR, J.
JULY 20, 2009
dk/mm
