Mohd. Rizwan vs State
2010 Latest Caselaw 3707 Del

             THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment Reserved on: 27.07.2010
                                     Judgment Pronounced on: 10.08.2010

1.           CRL.A. 215/1997

             Mohd. Rizwan                          .....         Appellant


                                     - versus -
             STATE                                .....       Respondent

2. CRL.A. 298/1997

Mohd. Jalil alias Kala ..... Appellant

- versus -

STATE ..... Respondent

Advocates who appeared in this case:

For the Appellant: Mr. P.K. Srivastava for the appellant in Crl. A. No. 215/1997.

Mr. P.N. Bhan for the appellant in Crl. A. No. 298/1997.

For the Respondent: Ms. Richa Kapoor, APP for the State.

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN

     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

V.K. JAIN, J

1. This appeal is directed against the judgment dated

29th March, 1997 and Order on Sentence dated 27th March,

1997, whereby the appellants were convicted under Section

302 of the Indian Penal Code, read with Section 34 thereof,

and were sentenced to life imprisonment and to pay a fine of

Rs.5000/- each or to undergo RI for 6 months each in default.

2. The case of the prosecution is that at about 10.30 PM

on 15.05.1990, the complainant Mukesh Kumar, PW-2 Ajay

Kumar and deceased Ravinder were returning from Block No.

27 of Trilokpuri after purchasing sweets. When they were a

little away from the shop of Kaddus, the appellants Mohd. Jalil

alias Kale and Mohd Rizwan met them. On seeing deceased

Ravinder, Kale told Mohd Rizwan that he was their old enemy,

who had stabbed him five six months ago, and therefore

should be done away with. Soon thereafter, Mohd Rizwan

caught hold of Ravinder, whereas Kale took out a sharp edged

weapon which looked like a razor blade, (an ustra) and hit

Ravinder on his neck, as a result of which he received a very

deep injury and blood started oozing out with great force. He

along with Ajay lifted Ravinder and brought him to Block No.

28 where marriage of the daughter of Vijay Pal was being

solemnized. Kale and Mohd. Rizwan, who were previously

known to him, fled from the place of occurrence, whereas

Ravinder was taken to hospital by his brother and father in a

three wheeler scooter. Deceased Ravinder later succumbed to

the injuries sustained by him.

3. The prosecution examined 23 witnesses in support of

its case. No witness was examined in defence. The case of the

prosecution rests primarily on the ocular evidence in the form

of testimony of PW-1 Mukesh Kumar and PW-2 Ajay, besides

circumstantial evidence comprising seizure of bloodstained

clothes of the appellants and recovery of weapon of offence

pursuant to the disclosure statement made by the appellant

Kale.

Ocular Evidence

4. PW-1 Mukesh Kumar and PW-2 Ajay Kumar claim to

be witnesses of this incident. Mukesh Kumar stated that on

15.05.1990, when they were returning from Block No. 28,

Trilokpuri after purchase of Burfi by Ravinder, and came just

in front of shop of Kaddus at 10.30 P.M., accused Kale and

Rizwan were present there. Rizwan caught hold of Ravinder,

whereas Kale gave blow with a sharp edged thing, on the right

side below the ear of Ravinder. He identified both the

appellants in Court and further stated that about six months

before this incident, Ravinder had stabbed Kale, who, for this

reason, was harboring a grudge against him. He also claimed

that he and Ajay lifted Ravinder and took him to the place

where marriage of Vijay Pal‟s daughter was being solemnized.

Ravi, elder brother of Ravinder, and his father Tara Chand

removed Ravinder in a three wheeler scooter to a Nursing

Home. He also claimed that on 16.05.1990 both the accused

were arrested in his presence from near the bus stand near

block No. 13 of Trilokpuri and were interrogated. The kurta of

Rizwan which was found to be stained with blood was removed

on the spot and was seized by the police. Similarly, shirt of

the appellant Kale was also got removed and seized by the

police.

5. During cross-examination by learned Addl. Public

Prosecutor he admitted that the accused had taken out a

sharp shining ustra which he had used for stabbing Ravinder.

He also admitted that the kurta of Rizwan and the shirt of

accused Kale were the same which they were wearing at the

time of the incident. He further admitted that during

investigation the accused Kale had made a disclosure

statement that the razor was thrown by him in the safeda

(Eucalyptus) trees near bus stand of block No. 13, Trilokpuri

and thereafter he had taken them to trees near bus stand of

block No. 13, Trilokpuri and got recovered the razor from

there, under the leaves lying there.

6. PW-2 Ajay Kumar stated that on 15.03.1990 a tent

was put up near their house on account of marriage of the

daughter of Vijay Pal, whose house was situated in front of

their house. When they reached near the shop of Kaddus at

10.45 P.M., both the accused were present there. Accused

Jalil alias Kale, on seeing them, told his co-accused Mohd.

Rizwan that Ravinder had beaten him and since he had met

them they should settle score with him. Rizwan thereupon

caught hold of Ravinder from behind, whereas Kale attacked

him with a blade (ustra) and injured him on the right side of

his neck. He and Mukesh took Ravinder to his house,

wherefrom his father Tara Chand and his brother took him to

the hospital.

7. PW-21 Ravi is the brother of the deceased. He stated

that on 15.05.1990 his brother deceased Ravinder had gone to

attend a marriage in the neighborhood. They received an

information that his brother had been stabbed. He and his

father came in the street and saw his brother Ravinder lying in

injured condition, about 20-25 paces away from their house,

and took him to a Nursing Home, in an auto rickshaw. From

the Nursing Home, he was taken to Irwin Hospital. Since his

shirt had got stained with blood, it was seized by the police.

The deposition of PW-21 has been corroborated by his father

PW-22, Tara Chand who stated that he, along with his son,

took Ravinder to a clinic in Mayur Vihar and from there to

Irwin Hospital. His son was taken to Operation Theatre, but,

about 2-3 minutes after, they were told that he was dead.

The case of the appellants

8. In their statements under section 313 of Cr.PC the

appellants denied all the allegations against them and claimed

that they were innocent. The appellants claimed that riots

had taken place between Hindus and Muslims and the

deceased had died in those riots.

9. The learned counsel for the appellants has pointed

out a number of material contradictions in the testimony of

PW-1 Mukesh Kumar and PW-2 Ajay Kumar who are the only

eye-witnesses in this case. The case of the prosecution, as set

out in the FIR, is that when these two witnesses, who were

accompanying the deceased Ravinder, met the appellants, the

appellant Kale, on seeing the deceased Ravinder, told the

appellant Rizwan that he was their old enemy, who had

stabbed him about five six months ago and, therefore, should

be done away with. In his examination-in-chief the

complainant Mukesh Kumar maintained that the accused

persons did not utter a word before Rizwan caught hold of the

deceased and Kale gave a blow to him using a sharp edged

thing for this purpose, though he did say that about six

months before this occurrence Ravinder had stabbed the

appellant Kale, who, for this reason, harbored a grudge

against the deceased. Even during cross-examination by the

learned Addl. Public Prosecutor he denied having told the

police that on seeing Ravinder the appellant Kale had exhorted

Rizwan saying that he was their old enemy and should be

done away with. He then stated that in fact these words were

used by the appellant Rizwan and were addressed to Kale. On

the other hand PW 2 Ajay Kumar stated that on seeing them

the appellant Kale told Rizwan that Ravinder had beaten him

and therefore they should settle score with him. It was also

pointed out that according to PW 1 Mukesh Kumar, they had

taken the deceased Ravinder to the marriage pandal whereas

according to PW 2 Ajay Kumar they had laid him on the street.

It was also pointed out that according to PW 1 Mukesh Kumar

they had accompanied the deceased to the Nursing Home

where he was taken for treatment, whereas PW 21 Ravi,

brother of the deceased, and PW 22, father of the deceased,

have denied this. The contradiction as to who had exhorted

whom, cannot be said to be insignificant or on a peripheral

issue unrelated to the main incident and pertains the core

part of their testimony. Admittedly, deceased Ravinder was

facing trial for stabbing the appellant Kale and not for

stabbing the appellant Rizwan, as is evident from the copy of

the FIR No.26/90 (a copy of which is available on record)

lodged by the appellant Kale alias Jalil at PS Trilokpuri, on

13th January, 1990 and the statement of IO.

10. Even if the contradictions pointed out by the learned

counsel for the appellant are excluded from consideration, the

conduct of these witnesses casts a very serious doubt on their

presence at the time of incident. Both of them claim to be

companions of the deceased and were attending a marriage

with him on that day. In the ordinary course of human

conduct, if a person is fatally stabbed in the company of his

friends, their first step would be to either take him to a

hospital or to inform his family members, in case they happen

to be residing nearby, so that they may take the deceased to

the hospital. It needs to be kept in mind that, according to PW

1 and PW 2, deceased Ravinder did not die on the spot and

had travelled for some distance with the support provided by

them to him. Therefore, their first reaction should have been

to ensure that he gets medical aid, at the earliest. Admittedly,

the house of the deceased is situated very close to the place

where the incident took place. Therefore, in the ordinary

course of human conduct, either PW 1 and PW 2 would have

taken him to hospital or they would have gone to his house

and informed his family members about the incident. Neither

of these courses was however, adopted by these witnesses,

which indicates that in fact they had not witnessed the

incident and this is why they claimed to have acted in a

manner which cannot be said to be natural.

11. According to the complainant, he and PW 2 Ajay

Kumar lifted Ravinder and took him to the place, where they

later left him. Since the deceased admittedly was profusely

bleeding on account of stabbing injuries given to him, the

blood must necessarily have come on the clothes of these

witnesses in the process of giving support to the deceased. In

his cross-examination PW 1 stated that his clothes as well as

clothes of Ajay Kumar had got stained with blood when they

lifted the deceased and carried him from the spot of

occurrence. He further stated that the police had seen blood

stains on their clothes. He also stated that police had arrived

after about half an hour of the occurrence and when he was

called from his house on arrival of the police, he as well as

Ajay Kumar were wearing those very bloodstained clothes. He

also stated that the police did not seize their bloodstained

clothes.

We find it very difficult to accept this part of the

deposition of the witnesses. Had the police seen bloodstains

on the clothes of these witnesses, who claim to be eye-

witnesses of the stabbing, their bloodstained clothes would

definitely have been seized. No police officer will be so

incompetent as not to seize the bloodstained clothes of the eye

witnesses of a murder, even after seeing them wearing those

very clothes. This is more so when admittedly, the police

officer was vigilant enough to seize clothes of brother of the

deceased, who had simply taken him to the hospital and had

not witnessed the incident of stabbing. We, therefore, find it

difficult to believe that these witnesses had given support to

the deceased in taking him up to the place where he was left

by them, which, in turn, indicates that they did not witness

the incident of stabbing.

12. The case of the prosecution is that deceased was

accompanied by two persons, namely, Mukesh Kumar and

Ajay Kumar, whereas the appellants were only two persons.

Despite that, no attempt was made by either of them to save

the deceased from the appellants. It is true that mere failure

of the witness to make an attempt to save the deceased does

not by itself show that he had not witnessed the incident. We

can understand a witness not trying to save the victim if he is

alone or the number of the assailants is quite large or the

incident happens at a secluded place or in a closed place like a

house, where he cannot expect immediate help in case there is

any risk to his own life on account of intervention made by

him. We can also understand if a witness does try to

intervene but is intimidated by the accused and, therefore,

retreats, in order to save his own life. But, in the facts and

circumstances of this case, where as many as three young

boys were confronted by two boys and the incident took place

at a place where a number of shops were still open at that

time as admitted by PW 1, we find it difficult to accept that

had these witnesses been present at the time of incident they

would not even have made an attempt to save the deceased.

These witnesses do not even claim that they had tried to shield

the deceased, but were threatened by the appellants and,

therefore, could do nothing to help him.

13. As noted earlier, according to PW 1 Mukesh Kumar

they had taken the deceased to the pandal where the marriage

of the daughter of Vijay Pal was being solemnized. No reason

has been assigned by the witness for taking the deceased to

the marriage pandal instead of taking him to a hospital. No

medical aid could have been available to the deceased in the

marriage pandal. Hence, we are unable to accept the

deposition of PW 1 Mukesh Kumar in this regard which in

turn indicates that he had not witnessed the incident and that

is why he claimed that the deceased was taken to the marriage

pandal. It would be worthwhile to note here that according to

the brother and father of the deceased they had found him

lying on the street. They did not claim to have found him in

the marriage pandal. They have, thus, contradicted the

testimony of the complainant in this regard, thereby creating a

serious doubt on his credibility and trustworthiness as a

witness. As noted earlier, according to PW 2 Ajay Kumar they

had laid down the injured in the street in front of his house,

though in cross-examination he stated that they had laid him

near his house and not in front of his house. He also claims

that from the place where they had laid the injured in the

street, they went to the police station where they remained for

about half an hour. However, this is nowhere the case of the

prosecution that the PW 1 and/or PW-2 had come to the police

station soon after this incident. In fact, in the second

paragraph of his cross-examination, PW-2 contradicted

himself by saying that he and Mukesh Kumar did not go to the

police post to inform the police and kept standing at the place

where the injured was lying, till the time he was removed to

the hospital. According to him, for 10-15 minutes they stayed

at the spot, where the injured was lying in the street, and then

they moved to the pandal. Thus, he contradicts the earlier

part of his deposition when he stated that they had gone to

police station, whereas they left the injured in the street. Even

otherwise, it would be very unnatural on the part of these

witnesses to attend the marriage while leaving their fatally

injured friend on the street. In the ordinary course of human

conduct, no one is likely to behave in this manner.

14. Since PW-1 and PW-2 claim to be friends of the

deceased, who were accompanying him when this incident

took place, it would be absolutely an unnatural behaviour on

their part to leave him in the street near his house instead of

either waiting for his family members or themselves taking

him to a hospital.

15. In his cross-examination, PW-1 Mukesh stated that

after leaving the injured Ravinder at the place where the

marriage was taking place, he had gone to his house to change

his clothes and had then immediately returned to the place

where Ravinder was stabbed. He thus contradicts his own

statement that he and Ajay were still wearing the same

bloodstained clothes when he was called by the police from his

house, after arrival of police. He also stated that he was taken

to police station from his house next day in the morning and it

was in the morning that his statement was recorded by the

police. If this is so, that would mean that the FIR, which is

shown to have been recorded at about 12.45 am in the night,

was ante-timed by the police. In fact, according to PW-2 Ajay

also, his statement was recorded in the police station next day

in the morning.

16. In his cross-examination, PW-1 Mukesh stated that

he had not accompanied Ravinder either to Nursing Home or

to the hospital. On the other hand, PW-22 Tara Chand, father

of the deceased, stated that he had accompanied them to a

clinic in Mayur Vihar, Phase-I.

17. According to PW-2 Ajay Kumar, the deceased whom

they had taken to the marriage pandal, remained there for 20-

25 minutes. This is contradictory to the deposition of PW-21

Ravi, brother of the deceased and PW-22 Tara Chand, father of

the deceased, who claimed that the deceased was found lying

in the street in the injured condition. Had the deceased been

taken to marriage pandal, as claimed by PW-2 and had he

remained there for 20-25 minutes before he was taken to

doctors, bloodstains were bound to have come in the pandal

since according to the witnesses, blood was oozing out

profusely when he was shifted by them from the place where

he was stabbed. However, no blood was seized from the

pandal though it was seized from the place of occurrence vide

Ex.PW-1/B.

Recovery of Weapon of Offence

18. PW-10 Inspector Tej Pal Singh stated that on

15.05.1990, the accused Mohd. Jalil pointed out near Safeda

(Eucalyptus) trees in block No. 13 of Trilokpuri and got

recovered from there a razor Ex.P/6 which was seized by them

. The testimony of PW-10 has been corroborated in this regard

by PW-11 Inspector Jeet Singh who stated that the razor

Ex.P/6 was got recovered by the accused Mohd. Jalil and was

seized by them.

19. PW-23 Dr. Vishnu Kumar conducted post-mortem on

the dead body of the deceased and found the following injuries

on his person:-

"1. Deep i/w 10x4.5 cms. on the right front and outer surface of neck running obliquely from above downwards from the angle of mandible to big line and just across it to its left at the level of the lower border of cricoids cartilage, lower ad being 146 cms. above heel underneath would was cutting neck muscles, thyroid cartage body on its right side obliquely, cricoids throng at the level of upper border of thyroid cartage rice thyroid membrane had caused communication with the laryngeal area in the troches(wind pipe).

Plenty of blood effusing in neck tissues as well as around was present.

2. Multiple fall abrasions in an area of 5x3.5 cms. on the back of right fore arm in upper part just below elbow was present."

20. In his cross-examination, PW-11 Ajit Singh stated

that after making disclosure statements, the appellants took

the police party to the jungle in front of Block-13, Trilokpuri

on 16th May, 1990, but recovery of razor could not be effected

on that day. He further stated that the accused then again

took the police party to the same jungle on 19th May, 1990 and

on that day, the appellant Mohd. Jalil alias Kale took out the

weapon from near Eucalyptus trees under some dry grass. He

also admitted that the accused remained in police custody

from 16th May to 19th May, 1990 and during this period, he

kept on interrogating them.

21. We find it difficult to believe that the appellant,

despite having disclosed to the police on 16th May, 1990 itself

that the razor had been concealed near Eucalyptus trees in

the jungle in front of Block 13 of Trilokpuri, did not take it out

or get it recovered on that day, but got it recovered after three

days on 19th May, 1990. Since they had already disclosed the

place where the weapon had been concealed to the police and

the weapon is alleged to have been recovered later from that

very place, there could have been no reason for the appellant

Kale not to take it out on 16th May, 1990 and then decide to

take it out on 19th May, 1990. The Investigating Officer has

not told the Court as to why he did not make an attempt to

search the weapon of offence on 17th and 18th May, 1990.

According to the PW-23, the razor was sent to him by

the police for obtaining opinion as to whether injuries to the

deceased could have been caused by that weapon and vide

opinion Ex.PW-23/A, he was of the view that the injury on the

body of the deceased could be caused by that weapon.

However, since we are not inclined to believe the alleged

recovery of the razor, the opinion of PW-3 does not, in any

manner, connect the appellants with the murder of the

deceased.

Recovery of bloodstained clothes

22. The case of the prosecution is that at the time of

arrest of the appellants on 16th May, 1990, the appellant

Mohd. Rizwan was wearing a kurta which was found stained

with blood, whereas the appellant Jalil alias Kale was found

wearing a bloodstained shirt and both the clothes were seized

by them. This is also the case of the prosecution that the

appellants were arrested and the bloodstained clothes were

seized in the presence of PW-1 Mukesh and PW-2 Ajay.

However, PW-2 Ajay stated in his cross-examination that after

arrest of the appellants and before taking them to police

station, the police party took them to their house, from where

their clothes were brought and in the police station, the

appellants were directed to remove their clothes and wear

those clothes which the police had brought from their house.

This witness, therefore, contradicts the case of the prosecution

that the appellants were wearing bloodstained clothes when

they were arrested from near the bus stand on 16th May, 1990.

23. A perusal of the report of CFSL Ex.PW-11/E would

show that blood of Group „A‟ was found on the shirt alleged to

have been recovered from the appellant Mohd. Jalil alias Kale,

whereas blood of Group „O‟ was found on the kurta which

according to the prosecution the appellant Mohd. Rizwan was

wearing at the time of his arrest. No blood of Group „A‟ was

found on that kurta. There is no explanation from the

prosecution as to how blood of Group „O‟ was found on the

kurta of the appellant Mohd. Rizwan. This is not the case of

the prosecution that blood group of appellant Mohd. Rizwan

was „O‟. More importantly, this is not the case of the

prosecution that the appellant Mohd. Rizwan was found

injured or was having a wound at the time he was arrested

and, therefore, the blood of Group „O‟ could be his own blood.

24. Even otherwise, we find it difficult to accept that the

person, who commits a murder, will be wearing a bloodstained

cloth at a public place near a bus stand and that too the cloth

which he was wearing at the time of commission of offence.

Considering the normal course of human conduct, the attempt

of the offender would be to either wash his bloodstained

clothes or to destroy them at the very first opportunity, since

he knows it very well that in the event he of his being caught

wearing a bloodstained cloth, he will have to explain the

presence of blood on his clothes and the recovery of a

bloodstained clothes from him would become a strong piece of

evidence against him. This is not the case of the prosecution

that the appellants were on the run before they were arrested

and, therefore, did not have an opportunity to destroy the

bloodstained clothes which they were wearing at the time of

commission of offence by them. According to PW-10, the

appellants were arrested at 09.00 pm on 16th May, 1990.

Hence, they had more than ample time available to them, not

only to change the clothes, but also to wash them, in case

there were any bloodstains on them. In fact, if PW-2 is to be

believed, they had been to their respective houses and the

clothes seized by the police were recovered from their house.

If the appellants had the opportunity to go to their house, they

would have washed the bloodstained cloths, instead of

preserving them and that too in their own house. This is more

so, when the accused knew that, murder committed by them,

was witnessed by two persons, who were known to them and,

therefore, were likely to inform the police about their

involvement in the murder. We, therefore, find it difficult to

believe the alleged recovery of bloodstained clothes from the

appellants.

25. Taking into consideration the facts and

circumstances of the case, including the fact that the deceased

Ravinder was facing trial for causing injuries to the appellant

Mohd. Jalil alias Kale, the possibility of PW-1 and PW-2 having

not witnessed the incident of murder and the appellants,

having been implicated only on account of suspicion arising

from the fact that deceased Ravinder had earlier caused

injuries to the appellant Mohd. Jalil alias Kale, cannot be

altogether ruled out in the facts and circumstances of this

case, though it cannot be disputed that this very factor could

also have been the cause for the murder of the deceased by

the appellant Kale.

For the reasons given in the preceding paragraphs,

the appeals are allowed. The appellants are given benefit of

doubt and are, hereby, acquitted. Their Bail Bonds stand

discharged.

(V.K. JAIN) JUDGE

(BADAR DURREZ AHMED) JUDGE AUGUST 10, 2010 Ag/BG/RS