Furkan vs State
2010 Latest Caselaw 87 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment Reserved on: 7th January, 2010
                      Judgment Delivered on: 11th January, 2010

+                    CRL.APPEAL NO.989/2002

       FURKAN                                   ......Appellant
           Through:         Ms.Rakhi Dubey, Advocate

                                 Versus

       STATE                                    ......Respondent
           Through:         Mr.M.N.Dudeja, Advocate

                     CRL.APPEAL NO.706/2002

       SURINDER SINGH                    ......Appellant
            Through: Ms.Rakhi Dubey, Advocate

                                 Versus

       STATE                                    ......Respondent
           Through:         Mr.M.N.Dudeja, Advocate

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

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

     2. To be referred to the Reporter or not?       Yes

     3. Whether the judgment should be reported in the
        Digest?                                   Yes

PRADEEP NANDRAJOG, J.

1. The appellants in the above captioned appeals have

challenged the judgment and order dated 22.7.2002 passed by

the learned Trial Judge convicting them of the offences

punishable under Sections 302/307/34 IPC. The appellants have

been sentenced to undergo imprisonment for life and to pay a

fine in sum of Rs.1,000/- each for the offence of murder and for

the offence punishable under Section 307/34 IPC they have

been sentenced to undergo RI for five years and to pay a fine in

sum of Rs. 1000/- each.

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

around 5:30 PM on 21.8.1998 appellants Surinder and Furkan

along with one more associate were travelling on a two wheeler

scooter in a street near House No.RZ-15, Mahinder Park, Uttam

Nagar and they hit a dog. The dog belonged to Sanjay PW-18

who was a resident of RZ-15, Mahinder Park, Uttam Nagar.

Sanjay questioned the appellants whether they were blind and

hence a quarrel ensued. The appellants got enraged and

started abusing Sanjay and tried to enter his house. On this,

Smt.Bhagwan Devi the sister of Sanjay intervened and slapped

appellant Surinder twice. Though at that time the appellants

went away, after about half an hour they returned with 5 or 6

more associates. While some, including appellant Furkan

caught hold of Sanjay in order to prevent him from intervening,

appellant Surinder stabbed Bhagwan Devi in her abdomen.

When Vinod Kumar PW-4, son of Bhagwan Devi, who was also

present there intervened to save his mother, Surinder stabbed

Vinod in his chest region. After stabbing Bhagwan Devi and

Vinod, while appellant Furkan and their other associates

managed to escape, appellant Surinder was chased by the mob

present there and was apprehended and beaten at the spot.

Bhawan Devi was immediately taken to DDU Hospital where she

was declared brought dead. Vinod PW-4 and appellant Surinder

were also taken to the hospital.

3. Process of criminal law was set into motion when at

6:40 PM information was received at police post Uttam Nagar

that a person had been stabbed with a knife at Jeevan Park,

Pankha Road, Shukar Bazar, and DD No.32 was recorded. A

copy of said DD was entrusted to SI Jagbir Singh for

investigation, who accompanied by Const.Karamvir, Const.

Karan Singh and Const.Kabul Singh reached the spot. On

learning that the injured had already been removed to DDU

Hospital, SI Jagbir Singh proceeded to said hospital. He learnt

that Smt.Bhagwan Devi had been declared brought dead and he

collected the MLC Ex.PW-20/B of Bhagwan Devi. He met Sanjay

PW-18 at the hospital and recorded his statement Ex.PW-1/A,

made an endorsement thereunder and sent the same for the

registration of an FIR for the offence punishable under Section

302/34 IPC.

4. Further investigation was transferred to

Insp.Lakhvinder Singh PW-22 who had also reached the spot in

the meantime. He inspected the site and after carrying out the

necessary investigation, proceeded to DDU Hospital. At the

hospital both the injured Vinod PW-4 and appellant Surinder

were declared unfit for making a statement. He collected their

MLCs. The MLC Ex.PW-20/C of Vinod records 4 incised wounds

around the chest of Vinod and one wound on his finger. The

injuries were opined to be caused by a sharp edged weapon and

were grievous in nature. MLC Ex.PW-20/A of Surinder records 8

injuries on the person of the deceased being 3 bruise injuries on

knee, thigh and forearm and 4 abrasion injuries on the thumb,

foot, chin and parietal region and 1 CLW on the parietal occipital

region.

5. Insp.Lakhvinder Singh sent the body of Bhagwan

Devi for post-mortem which was conducted by Dr.L.K.Barua PW-

19. The post-mortem report Ex.PW-19/A records 2 incised

wounds on the left breast and lower chest of the deceased and

2 horizontally placed scratches on the left side lower part of the

chest of the deceased. The injuries were opined to be caused

by a sharp edged weapon and both the incised wounds were

opined to be sufficient to cause death in the ordinary course of

nature.

6. On 23.8.1998 appellant Surinder was discharged

from the hospital and was arrested. Insp.Lakhvinder Singh

recorded the disclosure statement Ex.PW-9/B of Surinder and

attempted to recover the weapon of offence, but the same

could not be traced. The co-accused could also not be arrested

and were declared proclaimed offenders.

7. Appellant Surinder was charged for the offences

punishable under Section 302/307/34 IPC and it was only after

the trial of Surinder began and after all 22 prosecution

witnesses were examined that appellant Furkan was arrested.

He was also charged and all the 22 witnesses examined by

prosecution against Surinder were recalled to depose against

appellant Furkan.

8. Needless to say, the case of the prosecution hinged

upon the eye witness account of Vinod PW-4 and Sanjay PW-18.

9. Vinod PW-4 deposed that deceased Bhagwan Devi

was his mother. On 21.8.1998 he along with his mother was

present at Shukar Bazar at Mahinder Park, selling vegetables.

His maternal uncles Sanjay resided in a house close to where he

sold vegetables. At about 5:30 PM appellant Surinder, appellant

Furkan and one more boy were riding a two wheeler scooter

when a puppy belonging to his uncle Sanjay came under the

wheel of their scooter. When his uncle asked the appellants

that did they not know how to drive, the appellants started

beating his uncle. His mother Bhagwan Devi intervened, but

the accused held a finger of Bhagwan Devi. It was on his

intervention that his mother was saved and the appellants left

the place threatening that they would come back. At about

6:00 PM the appellants returned to them and appellant Surinder

inflicted 3 blows on the abdomen of his mother with a sharp

object. When his uncle Sanjay and he intervened to save

Bhagwan Devi he also received injuries on his wrist, hand and

chest. His uncle Sanjay however managed to avoid any injuries

on his person.

10. Sanjay PW-18 deposed that he used to sell

vegetables in front of his house. Deceased Bhgawan Devi was

his sister and she along with her son Vinod also used to sell

vegetables near his shop. On the day of the incident at about

5:00 or 6:00 PM appellants Surinder and Furkan and one more

boy were on their two wheeler scooter when they ran over his

dog. As a result a quarrel ensued. The appellants entered his

house and were using abusive language. His sister Bhagwan

Devi objected to the appellants doing so, and slapped appellant

Surinder twice. Though at that time the appellants went away,

they returned after about half an hour with 5 or 6 more

associates. Appellant Furkan and the others caught hold of him

and appellant Surinder stabbed his sister Bhagwan Devi. When

Vinod attempted to intervene, Surinder stabbed Vinod on his

chest and hand. The place being a crowded place around 100

people gathered and gave beatings to Surinder, while his other

associates managed to escape.

11. Vide impugned judgment and order dated 22.7.2002

learned Trial Judge convicted the appellants Surinder and

Furkan for the murder of Smt.Bhagwan Devi and for an attempt

to murder Vinod PW-4. Needless to state reliance was placed

upon the testimonies of PW-4 and PW-18 and that Surinder was

apprehended at the spot by the mob.

12. At the hearing of the appeals, the counsel for the

appellants urged that Vinod PW-4 and Sanjay PW-18 were most

unreliable witnesses inasmuch as there are material

contradictions in the versions deposed by them. It was

highlighted that while Vinod PW-4 stated that when the

appellants ran over the dog of Sanjay a quarrel ensued between

Sanjay and the appellants and the appellants gave beatings to

Sanjay, but Sanjay PW-18 did not state so. He merely stated

that a quarrel ensued and the appellants abused him. Further,

while Vinod PW-4 nowhere stated that the assailants entered

the house of Sanjay and it was on this issue that Bhagwan Devi

quarreled with the appellants and slapped Surinder, Sanjay PW-

18 deposed that when the quarrel took place the appellants

forcibly entered his house and objecting to the same, Bhagwan

Devi slapped appellant Surinder.

13. The counsel further urged that the only evidence

against Furkan is his dock identification when Vinod PW-4 and

Sanjay PW-18 deposed in Court against him after more than 2

years of the incident and thus the same has to be treated with

suspicion for the reason Furkan was not known by name or face

to Vinod and Sanjay and the altercation which took place on

21.8.1998 was a chance encounter. Counsel highlighted that

the prosecution deliberately did not get conducted any test

identification of Furkan. Thus, it was urged that the rule of

prudence adopted by the Courts requiring corroboration should

be followed and there being no corroborative evidence, Furkan

should be acquitted by giving him the benefit of doubt.

14. Pertaining to the alleged discrepancies in the

deposition of Sanjay and Vinod, we have noted the same in para

12 above while noting the contentions urged by learned counsel

for the appellants. To every reader it would be apparent that

the slightly different versions are not of a material nature so as

to discredit the two witnesses. These are natural variations

which occur when two persons deposed on the same facts in

relation to an incident after months have passed. With passage

of time human memory fades and the facts at the fringes are

either forgotten or become hazy. Only the core remains. Thus,

we hold that Sanjay and Vinod have not deposed with any

material difference on material points and have withstood the

test of cross-examination. In this context it becomes important

to note that Surinder was apprehended by the public at the spot

and was beaten, a fact which stands corroborated from the MLC

Ex.PW-20/A of Surinder. The injuries recorded thereon show

that Surinder has been beaten with blunt force i.e. fist blows.

15. It is settled law that substantive evidence in a

criminal trial is the evidence in Court and pertaining to

identification of an accused, the substantive evidence is the

evidence of identification in Court. Under Section 9 of the

Evidence Act, facts which establish the identity of the accused

are relevant under Section 9 of the Evidence Act.

16. Test Identification pertains to the domain of

investigation. There is no provision in the law which obliges the

investigating agency to hold Test Identification Proceedings or

confers any right upon the accused to claim a Test

Identification. Test Identification Proceedings do not constitute

substantive evidence and are essentially governed by Section

162 of the Code of Criminal Procedure.

17. The genesis of Test Identification of accused during

investigation has its route in human psychology. As opined by

Professor Borchard in his Article „Convicting the Innocent‟

referred to in para 9 of the decision reported as 1988 SC 345

Hari Nath & Anr. Vs. State of UP, the emotional balance of the

victim or eye-witness is so disturbed by his extra-ordinary

experience that his powers of perception become distorted

and his identification is frequently most untrustworthy. Into the

identification enter other motives not necessarily stimulated

originally by the accused personally the desire to requite a

crime, to exact vengeance upon the person believed guilty, to

find a scapegoat, to support, consciously or unconsciously, an

identification already made by another. Thus, doubts are

resolved against the accused.

17. In Halsbury‟s laws of England there exists a passage

being para 363, Vol. II, 6th Edition which is worth recalling. It

reads as under:-

"It is undesirable that witnesses should be asked to identify a defendant for the first time in the dock at his trial; and as a general practice it is preferable that he should have been placed previously on a parade with other persons, so that potential witness can be asked to pick him out."

18. We need not catalogue the various decisions relating

to Test Identification Proceedings for the reason we find that the

law has been very succinctly penned in para 11 of the decision

in Hari Nath‟s case (supra), which reads as under:-

"It is, no doubt, true that absence of corroboration by test identification may not assume any materiality if either the witness had known the accused earlier or where the reasons for gaining an enduring impress of

the identity on the mind and memory of the witness are, otherwise, brought out."

19. Clearly, in the instant case the witnesses namely

Vinod and Sanjay had the opportunity of seeing the appellants

for a considerable length of time. They first saw the appellants,

when the two-wheeler scooter of the appellants ran over the

dog of Sanjay. Both Vinod PW-4 and Sanjay PW-18 have

deposed that the running over of the dog was followed by a

quarrel between the appellants on one side and PW-18,

Bhagwan Devi and PW-4 on the other side. An exchange of hot

words and even some grappling between appellants and Sanjay

took place. When Bhagwan Devi intervened there was some

exchange of hot words with her as well, before the appellants

left. So much of action would have taken at least some 2-3

minutes, and would have enabled PW-4 and PW-18 to see the

appellants for said time span. Thereafter, when the appellants

returned after about half an hour, with their other associates,

appellant Furkan and the associates caught hold of Sanjay and

immobilized him and appellant Surinder stabbed Bhagwan Devi.

The post-mortem report of Bhagwan Devi evidences that she

was stabbed twice. She had two scratches wounds. When Vinod

PW-4 intervened, he was also assaulted. His MLC evidences

that he was given 5 stab wounds. It is not the case that both

the appellants and their associates attacked Bhagwan Devi and

Vinod simultaneously. The assailant was only one i.e. Surinder.

The others were only facilitating the offence by immobilizing

Sanjay and preventing him from saving his sister. Obviously,

the incident of stabbing would have spanned over at least 3-4

minutes, thus enabling both PW-4 and PW-18 to see the

appellants once again, for said span. In effect, PW-4 and PW-18

would have seen the appellants Surinder and Furkan for a good

7-8 minutes, which is sufficient time for any prudent person to

develop an impression in his mind of the face of the assailant,

and be able to identify him at a later date.

20. It may also be noted, that the incident took place on

21.8.1998 between 5.00 PM to 6:15 PM. In North India, in the

month of August the visibility is good till about 7.00/7:15 PM and

it is only after 7.00/7.15 PM that it gets dark.

21. We see no reason to doubt the dock identification of

appellant Furkan by Vinod PW-4 and Sanjay PW-18. We hold

that both PW-4 and PW-18 are truthful witnesses. We hold that

appellants are guilty of the offence of murder of Bhagwan Devi

and for the offence of attempting to murder Vinod.

22. We dismiss the appeals and uphold the conviction of

the appellants Surinder and Furkan for the offences punishable

under Sections 302/307/34 IPC.

23. Appellant Surinder is on bail. We cancel his bail bond

and surety bonds and direct him to surrender and suffer the

remaining sentence.

24. Appellant Furkan is in jail. We direct that a copy of

this order be sent to the Superintendent Central Jail Tihar for

necessary action and to be made available to Furkan.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE JANUARY 11, 2010 mm