Abdul Sattar & Anr.. vs State
2009 Latest Caselaw 4306 Del

     * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Judgment reserved on: October 15 , 2009
                                 Judgment delivered on : October 26,2009


     +        CRIMINAL APPEAL NO. 103/1996

         ABDUL SATTAR & ANR.                              ..... Appellants
                     Through:           Mr. K.K. Sud, Sr. Advocate with
                                        Mr. Kunal Malhotra, Advocate


                    Versus

         STATE                                          ..... Respondent
                           Through:     Mr. Pawan Sharma, Advocate

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


     1.       Whether 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 Digest ?      Yes


     AJIT BHARIHOKE, J.

1. This appeal is directed against the judgment dated

03.06.1996 of the learned Additional Sessions Judge, Delhi in

Sessions Case No.13/96, FIR No.36/92 under Section 302 read with

34 IPC, P.S. Kamla Market, Delhi, vide which appellant Abdul Sattar

has been convicted for the offences punishable under Section 302

IPC as well as 27 of the Arms Act and the appellant Mohd. Naeem

has been convicted for offence punishable under Section 25 of the

Arms Act. Appellant Abdul Sattar for the offence under Section

302 IPC has been sentenced to undergo life imprisonment and also

to pay fine of Rs.1000/- and in default of payment of fine, to

undergo RI for a further period of six months. For offence under

Section 27 Arms Act, appellant Abdul Sattar has been sentenced to

RI for a period of three years. However, learned Trial Court

directed both the sentences shall run concurrently. Appellant

Mohd. Naeem has been sentenced under Section 25 of the Arms

and to undergo RI for a period of three years.

2. Briefly stated, case of the prosecution is that on 17.01.92 at

about 3.00 PM, Mohd Aamir s/o Naseem Ahmad was brought to JPN

Hospital with stab injuries on his person. On examination, he was

declared „brought dead‟. Constable Balbir Singh who was on duty

at the hospital passed on the information to P.S. Kamla Market.

Duty Officer, P.S. Kamla Market recorded said information as DD

No.10A (Ex.PW10/A). SHO, Inspector Mohan Singh immediately

proceeded to the hospital. He collected MLC of Mohd

Aamir(deceased). No eye witness was available in the hospital.

Therefore, he proceeded to the place of occurrence in the complex

of Anglo Arabic School. No one from public came forward to

volunteer information about the incident. SHO made endorsement

on the DD No.10A and sent the Rukka for registration of the case.

He also lifted blood, blood-stained earth and control earth from the

spot and took the samples into possession vide memo Ex. PW5/A

and Ex.PW5/B. On the next day, SHO, Inspector Mohan Singh

conducted inquest proceedings. Dead body was identified by PW5

Nabi Ahmed and PW6 Zahirul-Islam.

3. Post mortem of the dead body was conducted by PW14 Dr.

George Paul, who found as many as five injuries on the dead body.

He prepared a diagram Ex. PW14/B showing the stab injuries. He

also prepared the post mortem report Ex.PW14/A and opined that

the death had been caused by haemorrhage and shock from stab

wound to main pulmonary trunk (artery) and liver as a

consequence of injury Nos.1 & 3 detailed in the post mortem

report, which were found to be antemortem. He also opined that

injury Nos.1 and 3 were individually and collectively sufficient to

cause death in the ordinary course of nature.

4. After the post mortem, dead body of Mohd Aamir was

handed over to relatives and burial took place on 18.01.1992.

The prosecution story goes further that after the burial, the

relatives and other mourners assembled at the residence of the

father of the deceased at 6.30 PM on 18.01.1992. Inspector

Mohan Singh made an appeal to the people gathered there to

shed fear and come out with information to help the police.

He assured them of adequate protection. The appeal of the

SHO had its effect and PW1 Jamil, the husband of the sister of the

deceased came forward and claimed that he was eye witness of

the occurrence. He stated that on 17.1.1992 at about 2.30 PM, he

had come to visit his in-laws who were living in a staff quarter in

the school complex. As he was entering the main gate of the

complex, he saw his brother-in-law Aamir surrounded by four boys

at some distance inside the campus. Three boys were wearing

pathani suits and one was wearing white shirt and grey pant. One

boy stabbed Aamir from front side and one boy stabbed him from

the back. The other two boys gave fist-blows from the sides.

Aamir fell down holding his neck from the right. The assailants ran

away waving knives. He cried for help but nobody came forward.

He rushed out of the school gate to bring a three wheeler scooter

to take his brother-in-law to the hospital. By the time he returned,

the injured had already been taken to the hospital. He then went

to the hospital and came to know that Aamir had expired. He

thereafter went to the house of his in-laws and from there, he went

to Inderlok to inform his wife. PW1, Jamil explained in his

statement that he had remained silent due to fear.

5. PW13, Shahid, younger brother of the deceased also

claimed himself to be an eye witness and told the Investigating

Officer that he had seen the occurrence while he was going to his

house from school on the fateful day at 2.30 PM. He also gave a

similar explanation for his silence.

6. On receipt of secret information, Inspector Mohan Singh

arrested the appellants Abdul Sattar and Naeem and other co-

accused Shafique Ahmed and Mohd. Nadeem. On interrogation, all

four of them made disclosure statements Exhibits PW16/E, PW16/F,

PW16/G and PW16/H respectively. Appellant Abdul Sattar got

recovered Rampuri knife and a Pathani suit from a box lying near

the northern wall of his house. Sketch of the knife Ex.PW16/J was

prepared and the articles were sealed and taken into possession

vide memo Ex.PW16/K. Appellant Abdul Sattar also got recovered

one dagger and a Pathani suit from House No.1853, Lal Darwaza,

Lal Kuan. Sketch of the dagger Ex.PW16/L was prepared and the

recovered articles were seized vide memo Ex.PW16/M after sealing

the same.

7. On 20.01.92, the accused persons were taken to the Tis

Hazari Courts and a request was made for holding a Test

Identification Parade to fix their identity. All of them refused to

take part in Test Identification Parade on the pretext that they had

already been shown to the witnesses.

8. On 17.02.92, the weapon and clothes were recovered from

the appellant Abdul Sattar and Naeem as also the blood samples

and the clothes of the deceased were sent to CFSL for serological

examination. The reports Exhibits PW30/PY and PW30/PZ confirm

the presence of human blood on the Rampuri knife and the dagger

but the blood group could not be ascertained. Presence of human

blood on clothes of above appellant could not be confirmed.

9. On completion of the investigation, charge sheet against

the appellants and their co-accused was filed. Appellants Abdul

Sattar and Naeem were charged for having committed offences

punishable under Section 302 read with 34 IPC as also under

Section 25/27 of the Arms Act, 1959. Other two accused Mohd

Nadeem and Shafique Ahmed were charged for offences

punishable under Section 302/34 IPC. Appellants as well other co-

accused persons pleaded not guilty to their respective charges and

claimed to be tried.

10. In order to bring home the guilt of the accused persons,

prosecution has examined 32 witnesses. Statements of the

appellants as well as other two accused persons were recorded

under Section 313 Cr.P.C. All of them have claimed to be innocent

and according to them they have been falsely implicated by the

Police on the basis of suspicion expressed by the parents of the

deceased. Regarding their refusal to participate in the Test

Identification Parade, they have respectively explained that they

were shown by the Investigating Officer to the witnesses before

moving of the application for Test Identification Parade.

11. Learned Senior Counsel for the appellants has submitted

that the impugned judgment of conviction is based mainly upon

the testimony of PW1 Jamil, brother in law of the deceased and

PW13 Shahid, younger brother of the deceased who claim

themselves to be eye witnesses. He has pointed out that

according to the witnesses, their statements under Section 161

Cr.P.C. were recorded on the next evening at about 6.30/7.00PM,

i.e., about 28 hours after the occurrence. Admittedly, during that

period they informed neither the police nor any of the family

members of the deceased that they had witnessed the occurrence.

Aforesaid conduct of the witnesses, it was submitted, is highly

abnormal and raises a strong doubt that PW1 Jamil and PW13

Shahid have not witnessed the occurrence and they have been

introduced as eye witnesses by the Investigating Officer with a

view to implicate the appellants because of suspicion expressed

against them by the family members of the deceased.

12. Learned counsel for the State, on the other hand, has

argued in support of the judgment. He has submitted that the

testimony of PW1 Jamil and PW13 Shahid is consistent with the

prosecution case and both of them have withstood the test of

cross-examination. He has submitted that there is no reason to

doubt their credibility for the reason that they did not come

forward to report the matter to the police for about 28 hours, as

they have explained the reason for their failure to inform police or

the family members about the occurrence for such a long time.

13. PW1 Jamil and PW13 Shahid claim themselves to be the eye

witnesses of the occurrence. Admittedly, the said incident took

place at Anglo Arabic School, Ajmeri Gate on 17.01.92 at about

2.30 PM. Police Station Kamla Market was nearby, despite that

neither PW1 Jamil nor PW13 Shahid had gone to report the matter

to the police. On perusal of testimony of PW1 Jamil, it transpires

that immediately after the occurrence, he raised an alarm to seek

help for removing Mohd. Aamir to the hospital, but no one came

forward. Thereafter, he ran towards Ajmeri Gate side to fetch a

TSR, but PW13 Shahid remained at the spot. No TSR was ready to

remove the injured to the hospital, therefore, he returned back to

the spot and found a crowd of people there. The injured, according

to PW1, had already been removed to the hospital by someone in a

TSR, so he went to LNJP Hospital. He has admitted in his cross-

examination that the house of his in-laws was at a distance of

about three minutes walk from the place of occurrence and he did

not go to inform his in-laws about the incident. He has also stated

in his cross-examination when he returned back to the spot after

failing to find a TSR, Shahid had already left the spot. If that was

true, then the witness, under the natural course of circumstances

would have presumed that Shahid had gone to the hospital along

with his injured brother. It is surprising that despite of that, PW1

Jamil did not deem it proper to go to the house of his in-laws and

inform them about the incident. Not only this, PW1 Jamil who

claims that he had gone to Meerut to inform his sister-in-law,

stated in his cross-examination that he even did not tell them

about the murder of Mohd Aamir. He also stated that they reached

Delhi at around 11.30 PM in the night and he remained outside the

house of his in-laws throughout the night, but he did not tell

anyone that he was the eye witness to the occurrence. He has

stated in the cross-examination that he did not narrate the incident

to any of the relatives nor any one enquired about it from him. In

latter part of cross-examination, he further stated that he did not

disclose to anyone present at the "Mayat" of the deceased about

his being the eye witness to the occurrence and he mustered

courage to come forward with the facts only after the SHO made

an appeal requesting people to come forward with true facts and

gave assurance of police protection. This conduct on the part of

PW1 Jamil is abnormal. If PW1 Jamil had witnessed the occurrence,

it is highly improbable that he would have kept the facts to himself

for such a long time.

14. PW13 Shahid, the brother of the deceased, has also tried to

explain the delay by stating that because of fear he did not tell

anyone about the occurrence till the next day when SHO gave

assurance of protection. In his cross-examination, he has stated

that immediately after the occurrence, instead of attending to his

brother, he rushed to his home to inform about the incident but on

reaching his house, he fell in front of his mother and two sisters

and became unconscious. He went on to state that he gained

consciousness after about half an hour and then again went to the

spot. But, he did not see any of his family members there. He also

stated that he had no recollection of having seen any of his family

members in the house when he regained consciousness. It is

highly improbable that if PW13 Shahid had lost consciousness on

reaching his home, his family members would have left him

unattended. This witness in later part of his cross-examination

also stated that when after his second visit to the spot he returned

back to his house, he again became unconscious and fell down and

at that time also he does not remember having seen any of the

family members present at the house. Aforesaid explanation of

the witness, to our mind, is far from being true, and therefore,

unacceptable.

15. The conduct of both the witnesses in not telling anyone

about their having witnessed the occurrence is highly abnormal

and it raises a strong suspicion that they were not the witnesses to

the occurrence and they have been introduced subsequently as

eye witnesses to implicate the appellants who were suspected by

the family members of the deceased. Thus, we do not deem it

safe to rely on this testimony. Once the testimony of PW1, Jamil

and PW13, Shahid is taken to be unreliable, then we are left only

with the recovery of the dagger Ex.P-11 and clothes of appellant

Abdul Sattar Ex.P-1 and P-2 which were allegedly recovered at his

instance vide memo Ex.PW16/K. Admittedly, aforesaid dagger and

clothes were sent for serological examination. As per serological

report, Ex. PW31/PZ, no blood stains were found on the clothes

though human blood was found on the blade of dagger, but it

could not be matched with the blood group of deceased.

Therefore, in our considered view even the dagger and the clothes

remain unconnected with the occurrence and on basis of said

recovery the conviction under Section 302 IPC and Section 27

Arms Act cannot be sustained.

16. Next submission of the learned Senior Counsel for the

appellants is that perusal of the impugned judgment would show

that the learned Trial Court has not accepted the evidence of the

prosecution pertaining to identity of the appellant Mohd Naeem

and other two accused Nadeem and Shafiq and acquitted them of

charge under Section 302/34 IPC. However, he has made a

distinction in case of the appellant Abdul Sattar by observing that

his case is different and there is satisfactory evidence to fix his

identity as one of the assailants. It is submitted on behalf of

appellant Abdul Sattar that there is no justifiable reason for making

a distinction between the case of the Abdul Sattar and other co-

accused on the issue of identity based upon common evidence, as

such he has urged us to extend benefit of doubt also to him.

17. The question of identity of Abdul Sattar and other co-

accused has been dealt with by the learned trial Judge in para 17

of the judgment. The relevant portion of the observation of the

learned trial Judge making distinction between the case of Abdul

Sattar and other co-accused is reproduced as under:

"17........Admittedly accused Naeem, Nadeem and Shafiq were unknown to PW 1 Jamil and PW 13 Shahid. Therefore, dock identification of these accused will serve no purpose and will not be sufficient to prove their involvement in the crime. The case of Abdul Sattar is, however, different. He was a stranger to PW 1 Jamil. PW 13 Shahid says that he knew and recognised Abdul Sattar by face and he did not know his name till the time of occurrence. He says further that he had seen Abdul Sattar in the school many times. Abdul Sattar himself admits that he was a class-mate of Aamir in the same school, and therefore, I see no reason to doubt the statement of PW 13 Shahid. The presence of Abdul Sattar amongst the assailants of Aamir is thus very well established."

18. We are not convinced with the above reasoning of learned

trial Judge because PW13 Shahid in his examination-in-chief while

pointing out the appellant Abdul Sattar as one of the assailants has

not stated that Abdul Sattar was previously known to him by face.

Otherwise also, in view of the circumstances discussed above, the

presence of PW1 Jamil and PW13 Shahid at the time of occurrence

is highly doubtful. Therefore, we find that the conviction of

appellant Abdul Sattar under Section 302 IPC and Section 27 of the

Arms Act cannot be sustained.

19. Coming to the charge under Section 25 of the Arms Act

against the appellants Abdul Sattar and Mohd Naeem. Perusal of

the seizure memo Ex.PW16/K reveals that the knife Ex.P-11 was

recovered at the instance of appellant Abdul Sattar from a box in

his residential room. Similarly the seizure memo Ex.PW16/M

shows that the blood-stained knife was recovered at the instance

of Mohd Naeem from a box in his house. Thus, it is obvious that

both the recoveries, even if taken to be proved, were effected from

the respective houses of the appellants.

20. Section 25(1) (a) provides for punishment for illegal

possession of arms and ammunition and it reads thus:

"25. Punishment for certain offences-(1) Whoever-

(a) manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or

------"

21. Arms have been defined in Section 2(c) of the arms as

under:

"2.(c)"arms"means articles of any description designed or adapted as weapons for offences, or defence, and includes firearms, sharp-edged and other deadly weapons, and parts of, and machinery for manufacturing arms, but does not include articles designed solely for domestic or agricultural uses such as a lathi or an ordinary walking stick and weapons incapable of being used otherwise than as toys or of being converted into serviceable weapons;"

22. Perusal of the aforesaid definition of arms makes it clear

that knife and a dagger is covered by the definition, being the

sharp-edged and deadly weapon. However, as per Section 25 (1)

(a), possession of arms like dagger and ammunition constitute an

offence only if such possession is in contravention of Section 5 of

the Arms Act. Section 5 (1)(b) of the Arms Act prohibits a person

to expose or offer for sale or transfer or have in his possession for

sale, transfer, conversion, repair, test or proof any firearms or any

other arms of such class or description as may be prescribed or

any ammunition unless he holds in this behalf a licence issued in

accordance with the provision of this Act and the rules made

thereunder. Thus, in order to bring home the charge under Section

25 Arms Act against the appellants for having in their possession a

dagger and a knife respectively, the prosecution was required to

prove that possession of such category of knife and dagger even at

the residence distinct from a public place was prohibited at the

relevant time by some Notification issued under Section 5 of the

Arms Act. The prosecution, however, has neither placed nor

proved any such Notification. Thus, in absence of any evidence to

that effect, it is difficult to conclude that the possession of the

above recovered knife and dagger by the respective appellants

was in contravention of Section 5 of the Arms Act, which is one of

the main ingredients for offence punishable under Section 25 of

the Arms Act. Thus, we are of the considered view that the

prosecution has failed to prove the charge under Section 25 of the

Arms Act against the appellants. Accordingly, conviction of

appellant Mohd Naeem under Section 25 of the Arms Act cannot be

sustained under law.

23. In view of the discussion above, appeal of Abdul Sattar and

Mohd. Naeem against their conviction is accepted and the

impugned conviction and consequent order on sentence are set

aside.

24. Appellants are on bail. Their bail bond and surety bond

stand discharged and cancelled.

AJIT BHARIHOKE, J.

     OCTOBER 26, 2009                     SANJAY KISHAN KAUL, J.
     pst