Delhi High Court
Mohd Arif & Anr vs State (Delhi Admn.) on 26 February, 2010
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: February 09, 2010
Judgment delivered on : February 26, 2010
+ CRIMINAL APPEAL NO. 137/1997
MOHD ARIF & ANR ....APPELLANTS
Through: Mr. Anupam Sharma,
Advocate/Amicus Curiae
Versus
STATE (DELHI ADMN.) .....RESPONDENT
Through: Mr. Manoj Ohri, APP
WITH
CRIMINAL APPEAL NO.190/1997
ASLAM ....APPELLANT
Through: Ms. Meena Chaudhary Sharma,
Advocate
Versus
STATE (N.C.T. OF DELHI) ..... RESPONDENT
Through: Mr. Manoj Ohri, APP
AND
CRIMINAL APPEAL NO. 284/1997
MAHMOOD KHAN ....APPELLANT
Through: Mr. Anupam Sharma,
Advocate/Amicus Curiae
Versus
STATE (DELHI ADMN.) ..... RESPONDENT
Through: Mr. Manoj Ohri, APP
Crl.A. Nos. 137/1997, 190/1997 & 284/1997 Page 1 of 24
CORAM:
HON'BLE MR. JUSTICE A.K. SIKRI
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. The above referred appeals are directed against the impugned
judgment dated 07.02.1997 in Sessions Case No.68/96 FIR No.58/89 P.S.
Bhajanpura convicting the appellants Mohd. Arif, Waris Khan, Aslam and
Mahmood Khan for the offences punishable under Sections 302 and 307
IPC both read with Section 34 IPC for committing murder of Mukesh and
attempting to commit murder of Ramesh (PW7) in furtherance of their
common intention as also against the consequent order on sentence
dated 11.02.1997 in terms of which each of the appellant, for the offence
punishable under Section 302/34 IPC, have been sentenced to undergo RI
for life and also to pay a fine of Rs.500/-, in default of payment of which to
undergo RI for a period of one month and for the offence under Section
307/34 IPC to undergo RI for a period of seven years and also to pay fine
of Rs.250/- each, in default of payment of fine to undergo RI for a period
of 15 days.
2. Briefly stated, case of the prosecution is that on 01.02.1989 at
about 8:54 pm, an unknown person informed the police control room that
some bad character had stabbed someone near the Kothi of Councillor
Mauzpur, behind Radha Krishan Mandir. The information was recorded as
DD No.221 in the daily diary maintained at PCR on 01.02.89. Said
information was conveyed by PCR Constable Veena on telephone to
Police Station Bhajanpura, which was recorded as DD No.19A dated
01.02.89 at 8:56 pm. Copy of the DD report was entrusted to ASI Kishan
Chand, who left for the spot of occurrence along with Constable Parvesh.
There he met Vijender Singh, PW6 and recorded his statement Ex.PW6/A.
ASI Kishan Chand sent said statement to the Police Station after
appending his endorsement Ex.PW11/A on it for the registration of case.
3. PW6 Vijender Singh stated in his statement Ex.PW6/A that on
01.02.89 at about 8:45 pm, he was present in front of his house along
with Ramesh Chand, PW7, Mukesh (hereinafter referred to as the
"deceased") and Satish, PW12. The appellant Aslam came on a scooter
to visit Mohd. Arif and Waris Khan. He was driving the scooter at a fast
speed. They told Aslam that since it was a narrow gali, he should drive
scooter at a slow speed. On this, Aslam got annoyed and a heated
exchange of words took place. On hearing the noise of arguments,
appellant Mahmood Khan, father of Aslam came there along with
appellants Waris Khan and Mohd. Arif. Mahmood Khan exhorted "Aajkal
Ramesh Chand aur iske ladke Mukesh ke jaban bahut chalne lagi hai, inki
zuban band kar do aur in dono ko jan se mar do". On the exhortation of
Mahmood Khan, the appellant Aslam caught hold of Ramesh and
appellant Waris Khan caught hold of the deceased. Appellant Mohd. Arif
took out a knife and inflicted stab wound in the abdomen of Ramesh and
thereafter, he inflicted a stab wound in the abdomen of the deceased
with the intention to kill him. Ramesh and Mukesh started bleeding and
in the meanwhile, public persons gathered at the spot. The appellants
ran away along with the knife. PW19 Vijay Pal also reached the spot and
he took injured Ramesh and Mukesh to GTB Hospital.
4. On receipt of the information about the occurrence, SHO Ishwar
Singh and SI Kanahai Singh also reached at the spot. On the direction of
the SHO, further investigation of the case was taken over by SI Kanahai
Singh. SI Kanahai Singh lifted the blood-stained earth as well as control
earth from the spot of occurrence in four vials and sealed those vials with
the seal of „KS‟. He also prepared the rough site plan Ex.PW19/A and
appended marginal notes on the same. Investigating Officer got the spot
of occurrence photographed from various angles and recorded the
statements of the witnesses. SI Kanahai Singh also visited GTB Hospital
along with the SHO and collected the MLCs of Mukesh and Ramesh. The
deceased Mukesh was declared unfit for statement but Injured Ramesh
PW7 was declared fit for statement. Mukesh expired later on and on
being informed about the death of Mukesh by the Duty Constable, the
investigation was taken over by the SHO.
5. Appellants Waris Khan, Aslam and Mahmood Khan were arrested on
02.02.89. The appellant Mohd. Arif was arrested from Jheel, Welcome on
03.02.89. On interrogation, Mohd. Arif made a disclosure statement
stating that he could get the weapon of offence i.e., the knife recovered
and pursuant to the said disclosure, he got recovered the knife Ex.P1
which was wrapped in the blood-stained shirt Ex.P2 from the garbage
lying under the „Old Pulia, Mauj Pur‟. The Investigating Officer arranged
for the post-mortem examination of the dead body. He sent incriminating
articles i.e., samples seized at the spot, clothes of the deceased, blood
sample of the deceased as also the knife Ex.P1 and blood-stained shirt
Ex.P2 got recovered at the instance of appellant Mohd. Arif to CFSL for
serological examination and all the exhibits except the control earth lifted
from the spot gave positive tests for human blood Group „A‟ which was
the blood group of the deceased. The knife Ex.P1 was also sent to the
Autopsy Surgeon Dr. L.T.Ramani for opinion and on examination, he
opined that the injuries found on the person of the deceased were
possible with the knife Ex.P1. On completion of investigation, charge-
sheet was filed against the appellant.
6. The appellants were charged for the offences punishable under
Section 302 read with Section 34 IPC as also under Section 307 read with
Section 34 IPC. The appellant Mohd. Arif was also charge-sheeted for the
offence punishable under Section 27 of the Arms Act. All the appellants
pleaded innocence and claimed to be tried.
7. In order to bring home the guilt of the appellants, the prosecution
examined 23 witnesses in all. We may note that both PW Vijay Pal and SI
Kanahai Singh have been given the number PW19. For the sake of
convenience, hereinafter SI Kanahai Singh shall be referred to as PW19A.
8. The case of the prosecution is essentially based upon the eye-
witness account given by PW6 Vijender, PW7 Ramesh and PW12 Satish
Kumar in their respective testimonies. Before proceeding further, it
would be appropriate to have a look upon the eye-witness account given
by the above referred witnesses.
9. PW6 Vijender Singh is the complainant. He deposed that on 1st
February, 1989 at around 8:45 pm, the appellant Aslam came driving a
scooter at a fast speed. Earlier also, he used to drive scooter in the gali
at a fast speed. Therefore, PW7 Ramesh reprimanded Aslam and told
that he should drive the scooter at a slow speed as the road was narrow
and children used to play there. On this, appellant Aslam started arguing
in a loud voice. Hearing his voice, the other appellants came out from
their house and there was exchange of hot words. At that time, appellant
Mahmood Khan exhorted the other appellants by saying that Ramesh and
his father Mukesh have learnt to speak in a loud voice and therefore, their
voice should be stopped forever and they should be killed. On this
exhortation, Aslam caught hold of Ramesh and the appellant Waris
caught hold of Mukesh. Appellant Mohd. Arif took out a knife which he
had brought from his house and inflicted a knife wound in the abdomen of
Ramesh and also gave a knife blow in the abdomen of Mukesh. Both of
them started bleeding and the appellants ran away after that assault. He
further stated that while they were attending to Mukesh and Ramesh,
Vijay Pal came there, who took both of them to the hospital and he went
to his house. He stated that the police came to the spot at 9:45 p.m. and
recorded his statement Ex.PW6/A. In the cross-examination, he admitted
the suggestion given by learned counsel for the appellant Mohd. Arif that
while the altercation was going on, appellant Mohd. Arif went to his house
and fetched the knife.
10. PW7 Ramesh and PW12 Satish Kumar have corroborated the
version of the complainant Vijender Singh by deposing to almost similar
effect. PW7 Ramesh Chand, however, in his cross-examination stated
that during the occurrence, appellant Mohd. Arif did not go anywhere and
PW12 Satish Kumar in his cross-examination stated that Mohd. Arif was
carrying a knife with him.
11. PW19 Vijay Pal who took the injured persons to the hospital and is
claimed to be the eye-witness to the occurrence has not fully supported
the case of the prosecution. He has supported the case of the
prosecution to the extent that on 01.02.89 at about 9:00 pm while he was
passing through „Gali Mohan Baba Mandir‟, he noticed a crowd of people,
so he stopped his vehicle to find out as to what had happened. There he
saw PW7 Ramesh and his son Mukesh (deceased) drenched in blood. On
the request of some persons who were attending to them, he took both
the injured to the hospital. He claimed to have reached at the spot after
the occurrence but stated that Naresh and Vijender, besides several other
persons were present at the spot.
12. PW18, Dr. L.T.Ramani is the Autopsy Surgeon. On post-mortem
examination of the dead body, he found the following injuries:
External Injuries
"1. Incised stabbed wound present tranversely on the right sided front
of chest in mid clavicular line, 20 cm. below clavicle size of injury was
2.5 cm. X 1 cm.? Margins were regular, outer end of injury was acutely
cut and medial and was squarish. There was no other mark of external
injury on the body."
Internal Examination
"Scalp tissues were normal; skull bones were intact; brain was pale;
nect tissues were normal; hyoid bone and thyroid cartilage were intact;
trachea was normal;. Injury on the chest was found to be communicating
with right chest cavity after cutting 6th & 7th costal cartilages and
xiphoid process transversely. Injury continued on the pericardium and
enterior wall of right ventricle of heart upto the chambered deep. Cut on
heart surface was 0.8 cm long. Peri-cardial cavity and right chest cavity
were full of blood. Total depth of injury was 8 cm. from body surface.
Both lungs were pale and bloodless. Stomach contained four ounces of
digested food material. Mucosa was pale. Lever, spleen and kidneys
were pale."
13. PW Dr. L.T.Ramani opined that the injuries were ante mortem
caused by sharp-edged weapon and were sufficient to cause death in the
ordinary course of nature. Death was due to haemorrhagic shock,
consequent to injuries, which were possible with the aforesaid knife. He
stated that the clothes and the samples of blood of the deceased were
sealed and those packets were handed over to the police with the sample
seal.
14. The appellants, when examined under Section 313 Cr.P.C. denied
the prosecution evidence and claimed that they have been falsely
implicated in this case. Appellant Mohd. Arif took a defence that on the
date of occurrence, he was a minor.
15. The learned Trial Court, relying upon the eye-witness account given
by the ocular witness, found the appellants guilty of committing murder
of Mukesh and attempting to commit murder of PW7 Ramesh in
furtherance of their common intention and convicted them under Section
302 and 307 IPC both read with Section 34 IPC. The learned Trial Judge,
however, failed to return any finding on the charge under Section 27,
Arms Act framed against the appellant Mohd. Arif.
16. During the pendency of the appeal, all the four appellants were
granted bail. They, however, failed to appear in subsequent proceedings.
Accordingly, non-bailable warrants were issued against the respective
appellants but they could not be arrested. Mr. Anupam Sharma,
Advocate, was therefore appointed as Amicus Curiae on behalf of the
appellants Mahmood Khan, Mohd. Arif and Waris Khan to assist the Court.
Ms. Meena Chaudhary Sharma, Advocate appeared on behalf of the
appellant Aslam, who also has jumped bail.
17. Learned Ms. Meena Chaudhary Sharma, Advocate on behalf of the
appellant Aslam and learned Mr. Anupam Sharma, Amicus Curiae on
behalf of the other three appellants have made similar submissions to
assail the impugned judgment.
18. Learned counsels appearing on behalf of the appellants have
assailed the impugned judgment of conviction on several counts. Firstly,
it is submitted that the impugned conviction is based upon the so-called
eye-witness account given by PW6-complainant Vijender, PW12 Satish
Kumar-neighbour and PW7 Ramesh Kumar-injured father of the deceased.
Learned counsels submitted that the learned Trial Judge while relying
upon the testimony of above witnesses has ignored the fact that, they fall
within the category of interested witnesses, being the father and
neighbours of the deceased. That the learned Trial Judge ignored the fact
though as per the case of the prosecution, a crowd of people had
gathered at the spot, no independent witness except PW19 Vijay Pal was
joined in the investigation. Even said independent witness PW19 Vijay Pal
has not supported the case of the prosecution as regards having seen the
occurrence. Thus, they have urged us to reject the testimony of said
three witnesses on the ground that they are interested witnesses.
19. We do not find any merit in the above contentions. It is a well
settled principle of law that in a criminal trial, the testimony of a witness
cannot be rejected on the sole ground of his being a relative or friend of
the deceased. Testimony of such witness under law is required to be
appreciated in the background of other material available on the record
and if the witness is found reliable, there is no reason to discard his
testimony on the ground of interestedness. In the matter of Sher Singh
& Anr. Vs. State of Haryana, 1984 CriLJ 1980 SC, Hon‟ble Supreme
Court, while dealing with similar arguments observed thus:
"5. Merely because PWs 2 and 3 are related to the deceased, that by itself
is not a ground to reject their evidence. As a matter of fact PW 2 would be
the last person to implicate somebody falsely. It is to be noted that he went
to the village, informed his parents and rushed to the police station which
is 19 kilometres away and gave the report without any delay."
20. In the matter of Surinder Singh Vs. State of U.P., (2003) 10 SCC
26, the Supreme Court, on the issue of the credibility of a related witness
observed thus:
"10. ...Relationship is not a factor to affect the credibility of a witness. It
is more often than not that a relation would not conceal the actual culprit
and make allegations against an innocent person. Foundation has to be
laid if a plea of false implication is made. In such cases, the court has to
adopt a careful approach and analyse the evidence to find out whether it is
cogent and credible.
13. We may also observe that the ground that the witness being a close
relative and consequently being a partisan witness, should not be relied
upon, has no substance. ..."
21. In view of the above enunciated principle of law on appreciation of
evidence of relative witness, we find no reason to out-rightly reject the
testimony of the above three witnesses. So far as PW19 Vijay Pal is
concerned, we may note that though he has turned hostile, his version is
not contradictory to the version of PW6 Vijender, PW7 Ramesh Chand and
PW12 Satish Kumar. He stated, when he reached at the spot, PW7
Ramesh Chand and the deceased were already injured and bleeding,
which gives an assurance that the occurrence did take place. Careful
scrutiny of the testimony of PW19 Vijay Pal shows that even his version
supports the case of the prosecution inasmuch as it fixes the presence of
PW6 Vijender Singh at the spot of occurrence amongst the crowd.
22. The next submission on behalf of the appellants is that the learned
Trial Court while relying upon the testimony of purported eye-witnesses
PW6 Vijender Singh, PW7 Injured Ramesh and PW12 Satish Kumar ignored
the fact that they are unreliable witnesses because of several
contradictions in their testimony. The contradictions pointed out by the
learned counsels for the appellants are reproduced thus:
(a) PW6 in Court stated that Ramesh had asked Aslam to drive
slowly whereas in his previous statement (Ex.PW6/A) it
was that they all so asked Aslam.
As per Satish Kumar (PW12), it was Vijender who told
Aslam to drive at slow speed. Vijender did not support
the version.
(b) PW6 stated that Aslam started talking in loud voice with
Ramesh whereas in Ex.PW6/A it was with everybody.
PW12, stated that altercation took place between
Vijender and Aslam.
(c) PW6 stated that initially appellant Mahmood came and
thereafter Arif and Waris reached at the spot, however, in
Ex.PW6/A, it was that initially Arif and Waris reached the
spot and then Mahmood.
As per PW7, in his examination-in-chief Mahmood, Arif
and Waris came together, thereafter in cross it was
Mahmood first and then Arif and Waris.
As per PW12, Aslam and his father came first and then
Waris and Arif.
(d) Factum of bringing knife from home is not mentioned in
previous statement of PW6.
PW7 and PW12 stated that Arif had not gone anywhere
when the occurrence took place.
23. The above contradictions pointed out by learned counsels appearing
on behalf of the appellants, in our view, are inconsequential and those
contradictions do not touch the material aspect of the case. Careful
reading of the evidence of the above referred three witnesses clearly
shows that they have corroborated the version of each other and their
version is consistent to the case of prosecution on material aspects. We
cannot lose sight of the fact that the incident took place in the year 1989
whereas PW6 and PW7 were examined four years later in the year 1993
and PW12 Satish Kumar was examined in the year 1994 and cross-
examined on 23.07.1996. When a witness is examined after a lapse of
such a long time, some minor contradictions in their version are bound to
occur because of the lapse of memory due to efflux of time. Otherwise
also, we cannot ignore the fact that PW7 Ramesh Chand himself suffered
injury in the occurrence as is apparent from his MLC Ex.PW13/B and the
presence of PW6 Vijender Singh at the time of occurrence is established
by the testimony of PW19 Vijay Pal, who stated that when he reached at
the spot, he found complainant Vijender Singh present in the crowd.
There is nothing on record to suggest that there was previous enmity or
motive on the part of the witnesses to falsely implicate the appellants.
Further, it is not expected of a father to falsely implicate a wrong person
for the murder of his son and let the real culprit go scot free. Thus, we
find no reason to doubt the credibility of the version of PW6 Vijender
Singh, which finds corroboration from the testimony of PW7 Ramesh
Chand and PW12 Satish Kumar. In our aforesaid view, we draw strength
from the judgment of Hon‟ble Supreme Court in the matter of Appabhai
Vs. State of Gujarat, 1988 (Supp) SCC 241, wherein the Supreme
Court, while dealing with same controversy, inter alia observed thus:
"13. ....The court while appreciating the evidence must not attach undue
importance to minor discrepancies. The discrepancies which do not shake the
basic version of the prosecution case may be discarded. The discrepancies which
are due to normal errors of perception or observation should not be given
importance. The errors due to lapse of memory may be given due allowance. The
court by calling into aid its vast experience of men and matters in different
cases must evaluate the entire material on record by excluding the exaggerated
version given by any witness. When a doubt arises in respect of certain facts
alleged by such witness, the proper course is to ignore that fact only unless it
goes into the root of the matter so as to demolish the entire prosecution story.
The witnesses nowadays go on adding embellishments to their version perhaps
for the fear of their testimony being rejected by the court. The courts, however,
should not disbelieve the evidence of such witnesses altogether if they are
otherwise trustworthy."
24. Learned counsels for the appellants further submitted that the
conduct of PW6 Vijender Singh and PW12 Satish Kumar at the spot of
occurrence and post-occurrence is highly unnatural, because they
admittedly, did not intervene to save the deceased and PW7 Ramesh
Chand. They also did not try to provide medical aid to the injured persons
nor did they accompany them to the hospital. Admittedly, they also did
not inform the police. Their clothes were also not stained with blood and
even in the rough site plan Ex.PW19/A, the Investigating Officer has not
shown the respective positions of those witnesses in the site plan. From
the above, learned counsels for the appellants have urged us to infer that
the presence of the above referred witnesses at the time of occurrence is
highly doubtful and their testimony is not reliable.
25. We do not find any merit in this contention. On perusal of the
testimony of PW6 Vijender Singh, PW7 Ramesh Chand and PW12 Satish
Kumar, it is apparent that after the initial arguments, the stabbing
incident took place suddenly on the exhortation given by the appellants
Mahmood Khan. The deceased as well as PW7 Ramesh Chand were given
one stab blow each, which could not have taken more than a minute or
two, leaving no reaction time to PW6 Vijender Singh and PW12 Satish
Kumar. Regarding providing medical aid to the victims and
accompanying them to the hospital, it is apparent from the testimony of
PW19 Vijay Pal that he reached at the spot immediately after the
occurrence and he took the victims to the hospital in his vehicle. When
injured persons were removed to the hospital within a short span of their
being stabbed, there was no occasion for the witnesses to make an effort
for providing medical aid to the injured persons. PW6 Vijender Singh has
stated that when they were trying to attend to the injured person, the
appellants ran away. From the above, we find no reason to infer anything
unnatural in the conduct of the above referred witnesses. Merely because
the clothes of the witnesses were not stained with blood or their positions
have not been shown in the rough site plan Ex.PW19/A prepared by the
Investigating Officer, it cannot be said that above witnesses were not
present at the spot or they are unreliable witnesses.
26. The next submission on behalf of the appellants is that as per the
MLC, PW7 Ramesh Chand had sustained simple injury. When he reached
at the hospital, he was conscious and fit to make statement. Despite of
that, in the history of his injury recorded in the MLC, there is no mention
of the name of the appellants who caused injury. From this, learned
counsels for the appellants have urged us to infer that PW7 Ramesh
Chand was not aware of the identity of the assailants and the names of
the appellants have been falsely introduced in this case subsequently,
after due deliberations.
27. We are not convinced with the above arguments. Non-mention of
the names of the appellants in the MLC, in our view, is of no consequence.
MLC is a medico-legal document in which the attending doctor is
supposed to record his observations about the condition of the patient,
diagnosis and treatment and follow up action. The history of the
injury/ailment of the patient is recorded to promote the aforesaid object.
The MLC is a medical document and it is not supposed to substitute the
complaint so as to record each and every detail of the occurrence. One
cannot lose sight of the fact that in the incident, PW7 Ramesh Chand
sustained a stab injury and his son was also stabbed in his chest and at
that time, the main anxiety of PW7 Ramesh Chand and the doctor must
have been to save the life of Mukesh by providing immediate treatment
and if in that state of mind, PW7 did not give the name of the assailants in
the history of his injury, it cannot be taken as a circumstance to doubt his
credibility.
28. It was next submitted on behalf of the appellants that this is a case
of delayed FIR recorded after due deliberations. Therefore, a possibility of
fabrication of the case cannot be ruled out. In support of this contention,
learned counsels pointed out that as per Duty Constable Satya Narayan,
there was a huge time gap between the recording of the preceding and
succeeding FIRs at the police station. In the cross-examination, Head
Constable Satya Narayan stated that FIR No. 57/89 was recorded on
01.02.89 at 09:30 pm and FIR No. 59/89 was recorded two days later on
03.02.89 at 02:30 pm, which time gap obviously left the scope for
manipulation and ante-timing of the FIR. Learned counsels further
submitted that in this case, there is no compliance of mandate of Section
157 (1) of Cr.P.C. inasmuch as that the special report was not sent
immediately to the Metropolitan Magistrate. In this regard, they have
drawn our attention to the testimony of PW3 Constable Dalel Singh, who
in his cross-examination could not tell the address of the concerned
Metropolitan Magistrate at whose residence he delivered the copy of the
FIR nor could he tell whether he delivered the copy of the FIR to the
Metropolitan Magistrate and senior officers before 12:00 mid-night or
thereafter. From this, learned counsels have urged us to infer that the
special report was deliberately withheld and after due manipulations, the
FIR was registered ante-timed and copy thereof was later on sent to the
Metropolitan Magistrate. Learned counsels also pointed out that the
relevant DD No. 21A corresponding to the registration of the FIR has not
been proved by the prosecution, which also compounds the above
referred doubt.
29. No doubt, that PW3 Constable Dalel Singh has not been able to tell
the address of the Metropolitan Magistrate, nor has he been able to tell
the time at which he delivered the copy of FIR at the residence of
Metropolitan Magistrate. However, the fact remains that PW3 Constable
Dalel Singh is categoric in his examination-in-chief that on the night
intervening 01/02.02.89, Duty Officer gave him special report of this case,
which he delivered at the residence of Metropolitan Magistrate. It cannot
be ignored that Constable Dalel Singh was examined on 15.03.1993 i.e.
four years after the incident. The lapse of time obviously must have
taken toll on his memory, therefore, his inability to tell the address of the
Metropolitan Magistrate or to tell the time at which he delivered the copy
of the FIR cannot be termed as a significant circumstance to reject his
testimony, which is, otherwise consistent and reliable. As regards
prosecution‟s failure to prove DD No. 21-A corresponding to the
registration of FIR, it is suffice to say that aforesaid technical lapse on the
part of the prosecution by itself is not so significant to doubt the
credibility of the eye-witnesses whose version is otherwise found reliable.
30. As per DD No. 19A, the information regarding the incident was
received at the police station at 08:56 pm in the night of 01.02.89. PW1
ASI Kishan Chand stated that immediately on receipt of copy of DD report,
he proceeded to the spot of occurrence. As per the „rukka‟, complaint
statement Ex.PW6/A of Vijender Singh was recorded and it was sent to the
police station along with the endorsement of the Investigating Officer
Ex.PW11/A at 10:15 pm and the FIR Ex.PW15/A was registered at the
police station at 10:30 pm. From the aforesaid sequence of events, it is
apparent that the FIR in this case was promptly recorded, which leaves no
scope for manipulations on the part of the Investigating Agency.
Otherwise also, it is highly improbable that PW7 Ramesh Chand, father of
the deceased, instead of bringing the real culprit to gaol, would falsely
implicate the appellants for the murder of his son and causing injury to
him.
31. In view of above, we do not find infirmity in the finding of learned
Trial Judge based upon the testimony of eye-witnesses PW6 Vijender
Singh, PW7 Ramesh Chand and PW12 Satish Kumar, particularly when
their version is consistent with the case of the prosecution and they have
withstood the test of cross-examination.
32. Lastly, it was argued on behalf of the appellants that their
conviction under Section 302 IPC for the offence of murder of Mukesh is
not justified in the factual background of this case. They submitted that
from the evidence on record, it is obvious that the incident took place
suddenly without any pre-meditation, as a result of the heated arguments
between the parties on account of the appellant Aslam having driven
scooter in the lane at a fast speed ignoring the safety of the children
playing there. Therefore, the case of the appellant even as per the
prosecution story falls within the purview of Exception 4 to Section 300,
as such, at best, the appellants could have been convicted for the offence
of culpable homicide not amounting to murder under Section 304 Part II,
IPC.
33. Exception 4 to Section 300 reads thus:
"Section 300. Murder
Except in the cases hereinafter excepted, culpable homicide is murder, if
the act by which the death is caused is done with the intention of causing
death, or-
-------
-------
-------
4thly
If the person committing the act knows that it is so imminently dangerous
that it must, in all probability, cause death or such bodily injury as is likely
to cause death, and commits such act without any excuse for incurring the
risk of causing death or such injury as aforesaid".
34. On bare perusal of the above referred exception, it is apparent that
to extend benefit of this Exception to the accused, following two
conditions must be satisfied:
(i) That the act of homicide was committed without pre-meditation in a
sudden fight in the heat of passion upon a sudden quarrel;
(ii) That the offender ought not to have taken undue advantage for acting in a
cruel or unusual manner.
35. As per the evidence on record, it is established that appellant
Mahmood Khan exhorted the other appellants to kill PW7 Ramesh Chand
and the deceased Mukesh and pursuant to the said exhortation, the
appellant Waris Khan and Aslam caught hold of Mukesh (deceased) and
Ramesh respectively and the appellant Mohd. Arif stabbed both of them
with a knife one after the other. From the aforesaid factual matrix, it is
apparent that the appellants who were four in number had taken undue
advantage of the situation inasmuch as that two of the appellants
immobilised the deceased and PW7 Ramesh Chand by catching hold of
them whereby eliminating any possibility of their warding of the attach
by Mohd. Arif and Mohd. Arif then stabbed both of them. Therefore, in our
considered view, the requirement of Section 302 Exception 4 is not
satisfied in this case. As such, it is a clear case of homicide amounting to
murder punishable under Section 302 IPC. Otherwise also, this argument
on behalf of the appellants appears to be an afterthought because it was
never their case that the deceased was killed as a result of sudden
quarrel in a heat of moment. Even in their statement under Section 313
Cr.P.C., they did not take the above defence and denied having
committed any offence in question.
36. It was also contended on behalf of appellants Waris Khan, Mehmood
Khan and Aslam that the learned Trial Court have gone wrong in inferring
that they shared a common intention with the appellant Mohd. Arif, who
alone stabbed the deceased and PW7 Ramesh, as such, their conviction
under Section 302 as also Section 307 both read with Section 34 IPC is
not justified.
37. From the sequence of events discussed above, it is apparent that all
the four appellants participated in the commission of crime. Appellant
Mehmood Khan exhorted the other appellants to kill the deceased and
PW7 Ramesh, appellants Waris Khan and Aslam restrained the deceased
and PW7 by catching hold of them and appellant Mohd. Arif stabbed both
of them. From the aforesaid facts, it can be safely inferred that all the
four appellants shared a common intention to kill the deceased. As such,
we do not find any infirmity in the impugned judgment convicting all the
four appellants for offence under Section 302 IPC with the aid of Section
34 IPC.
38. Mohd. Arif was also charged by the learned Trial Court under
Section 27 of the Arms Act for using the knife Ex.P1 for inflicting injury on
the person of PW7 Ramesh Chand and the deceased Mukesh. However,
the learned Trial Judge has not returned any finding on the aforesaid
charge. The occurrence took place in February, 1989, therefore, at this
late stage, we do not deem it appropriate to remand the case back for
returning finding on the aforesaid charge. Thus, we have taken it upon
ourselves to scrutinise the evidence and return a finding on this charge.
39. Section 27(1) of the Arms Act is relevant for the adjudication of this
controversy which is reproduced thus:
"27. Punishment for using arms, etc.- (1) Whoever uses any arms or
ammunition in contravention of section 5 shall be punishable with
imprisonment for a term which shall not be less than three years but which
may extend to seven years and shall also be liable to fine".
40. On reading of above provision, it is apparent that in order to bring
home the guilt of the appellant Mohd. Arif under Section 27 of the Arms
Act, the prosecution is required to establish that the user of the knife
Ex.P1 by Mohd. Arif was in contravention of Section 5 of the Arms Act.
41. Section 5 of the Arms Act read thus:
5. Licence for manufacture, sale, etc., of arms and ammunition.---[(1)]
No person shall---
(a) [use, manufacture], sell, transfer, convert, repair, test or prove, or
(b) 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 provisions of this behalf a licence issued in
accordance with the provisions of this Act and the rules made thereunder:
[***]
[(2)] Notwithstanding anything contained in sub-section (1), a person may,
without holding a licence in this behalf, sell or transfer any arms or
ammunition which he lawfully possesses for his own private use to
another person who is entitled by virtue of this Act, or any other law for
the time being in force to have, or is not prohibited by this Act or such
other law from having in his possession such arms or ammunition;
Provided that no firearm or ammunition in respect of which a licence
is required under Section 3 and no arms in respect of which a licence is
required under Section 4 shall be sold or transferred by any person
unless--
(a) He has informed in writing the district magistrate having jurisdiction or
the officer in charge of the nearest police station of his intention to sell or
transfer such firearms, ammunition or other arms and the name and
address of the person to whom he intends to sell or transfer such firearms,
ammunition or the other arms, and
(b) A period of not less than forty-five days has expired after the giving of
such information]
42. On bare reading of this provision, it is apparent that in order to
succeed on this charge, the prosecution is required to establish that the
Government had notified the knives of the description similar to the knife
to be covered under Section 5 (1) of the Arms Act. No such notification
has been proved or placed on record by the prosecution. In absence of
any such notification, it cannot be said that possession or user of the
knives of the category similar to Ex.P1 was prohibited under Section 5 of
the Arms Act. As such, the prosecution has failed to prove one essential
ingredient of Section 27 of the Arms Act, as such, appellant Mohd. Arif is
acquitted on the aforesaid charge.
43. In view of the discussion above, we find no reason to interfere with
the impugned judgment. The appeals are devoid of merit, accordingly
dismissed.
44. The appellants are absconding. SHO, P.S. Bhajanpura and the
concerned Court are directed to take steps for their arrest, so that they
can be sent to Jail for undergoing the remaining sentence.
AJIT BHARIHOKE, J.
FEBRUARY 26, 2010 A.K. SIKRI, J.
pst
