Delhi High Court
Chotta Khan vs State on 3 March, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : February 23, 2010
Judgment Delivered on : March 03, 2010
+ CRL.APPEAL NO.419/2000
CHHOTA KHAN ..... Appellant
Through: Mr.Bhupesh Narula, Advocate
versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, Advocate
CRL.APPEAL NO.784/2001
MOHD.YUNUS @ CHANNA ..... Appellant
Through: Mr.Bhupesh Narula, Advocate
versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, 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. Appellants Chhota Khan and Mohd.Yunus @ Chana
Khan have filed the present appeal challenging the judgment
and order dated 29.2.2000 convicting the former for the
offence punishable under section 302/34 IPC and the latter for
the offences punishable under sections 302/323/34 IPC. For
the offence of murder appellant Chhota Khan has been
sentenced to undergo imprisonment for life and to pay a fine
in sum of Rs.2,000/-; in default to undergo simple
imprisonment for 2 years. For the offence of murder appellant
Mohd.Yunus has been sentenced to undergo imprisonment for
life and to pay a fine in sum of Rs.2,000; in default to undergo
simple imprisonment for 2 years. For the offence punishable
under Section 323 appellant Mohd.Yunus has been sentenced
to undergo rigorous imprisonment for 6 months and to pay a
fine in sum of Rs.500/-; in default to undergo simple
imprisonment for 15 days.
2. The charges in the instant case were framed
against five accused; namely Chhota Khan, Mohd.Yunus @
Channa, Babu Ram, Sagir Ahmed and Kunda Swami. While
accused Babu Ram and Sagir Ahmed have been given benefit
of doubt and have been acquitted of the charges framed
against them for the offence of murder, co-accused Kunda
Swami expired during the pendency of trial and therefore no
definite finding has been given qua him by the learned Trial
Judge.
3. The broad contours of the case set up by the
prosecution is that on 21.6.2001 a wedding was taking place in
the locality of Dharam Kanta Camp No.1, Nangloi. The baratis
(the groom, his relatives and friends), not being residents of
Delhi, were staying in a temple-cum-dharamshala near
Dharam Kanta Camp No.1, Nangloi. At about 8:00 PM when
the barat started proceeding towards the place where the
wedding was to take place, appellants Chhota Khan,
Mohd.Yunus @ Channa, co-accused Babu Ram, Sagir Ahmad
and Kunda Swami, who were neither friends nor relatives of
the groom, but were residents of the colony, started dancing in
the barat. The baratis, in particular Suresh PW-9 and Ram
Kishan PW-11, objected to this. As a result a quarrel ensued
but got pacified when the accused left the barat. When the
barat reached the place of wedding, the accused re-appeared
and caused disturbance. The accused tried to drag away
Suresh PW-9, but with the intervention of the elders the matter
was settled for the time being. After some rituals of the
wedding had been performed, some of the baratis including
Suresh PW-9, deceased Balwant and deceased Ram Phal, their
father Ram Singh, Ram Kishan PW-11 and Rajbir Singh PW-1
returned to the temple-cum-dharamshala. The accused who
were in wait followed them to the dharamshala and gave fist
blows and slaps to Suresh PW-9. When Balwant, Ram Phal and
Ram Singh intervened to rescue Suresh, the accused acted in
concert and stabbed Balwant and Ram Phal, thereby causing
their death. The weapon, a knife was yielded by Chhota Khan
and the other accused facilitated the commission of the crime
by exhorting Chhota Khan or catching hold of the deceased.
4. The process of criminal law was set into motion
when at 9:55 PM on 21.6.1990 information was received at PS
Nangloi about a quarrel taking place at Barat Ghar, Camp
No.1, Nangloi between baratis. The said information was
recorded vide DD No.59 B and its investigation was entrusted
to ASI Gulab Singh PW-24 who accompanied by Const.Jaipal
Singh PW-22 reached the aforestated spot and on learning that
the injured had already been removed to DDU Hospital,
proceeded for DDU Hospital. At the hospital he learnt that the
injured Balwant and Ram Phal were both declared brought
dead. He collected their MLCs Ex.PW-10/A and Ex.PW-10/B
and met Suresh PW-9 and recorded his statement Ex.PW-24/A.
Making an endorsement under said statement ASI Gulab Singh
sent the same for registration of an FIR. Further investigation
was transferred to Insp.R.S.Dahiya. Insp.R.S.Dahiya arrested
accused Chhote Khan, recorded his disclosure statement and
pursuant to the same effected the recovery of a knife stated to
be the knife used in the offence. Said knife was seized vide
memo Ex.PW-11/C.
5. Insp.R.S.Dahiya filled in the inquest papers
pertaining to the dead bodies and sent the same along with
the dead bodies to Civil Hospital, Delhi for post-mortem.
Dr.L.T. Ramani conducted the post-mortem on the body of
Ram Phal and prepared his report Ex.PW-15/A. He noted an
incised wound 5.5 cm X 3 cm X 12 cm, placed vertically above
the left anterior superior, iliac spine. He opined that the injury
was caused by a sharp edged weapon and was sufficient in the
ordinary course of nature to cause death. On the post-mortem
examination of the body of Balwant, Dr.L.T.Ramani prepared
his report Ex.PW-15/B and noted an incised wound 5 cm X 1.8
cm X 9 cm placed obliquely on the right side front of chest. He
opined that the injury was caused by a sharp edged weapon
and was sufficient in the ordinary course of nature to cause
death. The knife recovered at the instance of Chhote Khan
was sent to Dr.L.T.Ramani, who on examination opined that
said knife could possibly be the weapon of offence.
6. Needless to state the case of the prosecution
hinged upon the testimonies of Rajbir Singh PW-1, Suresh PW-
9 and Ram Kishan PW-11 who claim to be the eye witnesses of
the incident.
7. Rajbir Singh PW-1 deposed that on 21.6.1990 along
with his brothers Balwant and Ram Phal and father Ram Singh,
he had come to Delhi for a wedding of a relative. The baratis
were staying at a mandir-cum-dharamshala in Nangloi. At
about 8:30 PM on the said date, the barat departed towards
the house of the bride. After covering some distance, some
persons including the accused started dancing in the barat and
when the relatives of the groom objected to the same a
quarrel took place between the relatives of the groom and the
accused. The accused continued to disturb the barat till the
barat reached the house of the bride. After sometime some of
the baratis returned from the venue of the wedding to the
dharamshala. His brothers Balwant and Ram Phal and father
Ram Singh also returned to the dharamshala. He followed
them and when he reached the dharamshala, he saw all the 5
accused present. His brother Balwant was lying on the ground
and was bleeding. He was stabbed by Chhota Khan. When his
elder brother Ram Phal tried to catch hold of Chhota Khan,
Chhota Khan stabbed Ram Phal as well. When Ram Phal was
stabbed, appellant Mohd.Yunus and accused Babu Ram had
caught hold of Ram Phal.
8. Suresh PW-9 deposed that on 21.6.1990 he was
attending a wedding in Nangloi. At about 8:00 PM when the
marriage procession commenced, 3 or 4 boys started dancing
with the barat. His relatives and he told the boys not to dance
with their barat, whereupon an altercation took place with
those boys. At that time the boys went away but when the
barat reached the house of the bride, the boys re-appeared
and dragged him aside. But due to the intervention of the
elders the matter was settled at that point of time. When he
returned to the dharamshala where the relatives of the groom
were staying, the boys followed him there and while accused
Babu Ram held him, Channa started slapping him and also
gave him fist blows. The boys were addressing each other by
the name of Channa Khan, Kunda Swami, Chhota Khan etc.
When Balwant, Ram Phal and their father Ram Singh came to
his rescue, Channa Khan exhorted by saying "Chhota Khan, ye
sale aise na hin manen ge in ko chakoo maro". On this,
appellant Mohd.Yunus @ Channa caught hold of Ram Singh,
accused Sagir Ahmed caught hold of Balwant, accused Kunda
Swami caught hold of Ram Phal and Chhota Khan took out a
knife from his pocket and inflicted one stab each on the chest
of Balwant and on Ram Phal. When Chhota was about to inflict
another stab on the person of Balwant, Balwant screamed and
as a result, one of the accused came in between and got
injured. Said accused fled from the spot with the help of Babu
Ram and Channa Khan.
9. Ram Kishan PW-11 deposed that on 21.6.1990 he
was in Nangloi to attend a wedding. The marriage party was
staying in a temple in Nangloi. When at about 8:00 P.M., the
marriage procession commenced and was proceeding towards
the house of the bride, 4/5 boys of the colony started dancing
with the barat. Suresh and he objected to this and an
altercation ensued. The boys were addressing to each other
by the names of Channe, Chhota and Madrasi. The boys left
after the altercation but returned after sometime when the
barat had already reached the house of the bride and some of
the marriage ceremonies were being performed. They tried to
drag Suresh away but on the intervention of some of the
elders they left. Once the ceremonies were over some of the
family members of the groom returned to the dharamshala
where they were staying. Soon after they reached the
dharamshala the four or five boys also reached there.
Appellant Channa caught hold of Suresh and gave him fist
blows. When Balwant, Ramphal and their father Ram Singh
tried to intervene, Channa left Suresh and caught hold of Ram
Singh and exhorted by saying "Chhota yeh aise nahin maanen
gen in saalon ko chakoo maar". On this accused Sagir Ahmed
caught hold of Balwant. Chhota Khan took out a knife from his
dub and stabbed Balwant in his chest and when Ramphal tried
to rescue Balwant, accused Kunda Swami caught hold of
Ramphal and Chhota stabbed Ramphal. When Chhota was
about to inflict another blow upon Balwant, accused Sagir
Ahmed came in between and got injured. When Sagir fell
down accused Kunda Swami and Babu Ram helped him flee
from the spot.
10. Vide impugned judgment and order dated
29.2.2000, the learned Trial Judge has acquitted accused Babu
Ram and accused Sagir Ahmad. The reason being, the three
eye witnesses PW-1, PW-9 and PW-11 did not attribute any
concrete role to accused Babu Ram in the assault. The only
role attributed to him was that of catching hold of either of the
victims of the assault and when accused Sagir Ahmed
inadvertently got injured after the assault, of helping Sagir
Ahmed in fleeing from the spot. Further, since the testimonies
of PW-1, PW-9 and PW-11 were inconsistent with respect to
which of the victims or by standers Babu Ram had clutched on
to when Chhota Khan stabbed, learned Trial Judge has
preferred to give him benefit of doubt and acquit him. Qua
accused Sagir Ahmad, learned Trial Judge has held that the
MLC Ex.PW-10/C of Sagir Ahmad evidenced that he was
admitted in DDU Hospital on 21.6.1990 at 10:30 PM by his
brother Rais. Rais was examined as DW-1 and he stated that
at 10:30 PM on 21.6.1990 Sagir Ahmad and he were returning
from their work when two boys tried to rob them and when
they objected to the same, the boys gave Sagir a knife blow on
his abdomen. Learned Trial Judge has relied upon the
testimony of DW-1 and has held that the prosecution has failed
to establish the presence of Sagir Ahmad at the spot and
therefore acquitted him.
11. Learned Trial Judge has not given any finding with
respect to accused Kunda Swami as he died during the
pendency of the trial.
12. In convicting the present appellants for the offences
aforenoted in para 1 above, learned Trial Judge has held the
testimonies of Suresh PW-9 and Ram Kishan PW-11 to be true
ocular versions of the incident. The testimony of Rajbir Singh
PW-1 has also been held to corroborate the testimonies of PW-
9 and PW-11 inasmuch as all the three witnesses deposed that
appellant Mohd.Yunus @ Channa facilitated the stabbing by
catching the victims and by exhorting Chhota Khan and
appellant Chhota Khan stabbed both the deceased. Against
Chhota Khan, the recovery of a knife pursuant to his disclosure
statement, which knife was opined to be the possible weapon
of offence by the doctor who conducted post-mortem, was
held to be additional incriminating evidence.
13. Learned counsel for the appellants had made three-
fold arguments. Firstly that the testimonies of the three
alleged eye witnesses Rajbir Singh PW-1, Suresh PW-9 and
Ram Kishan PW-11 were mutually contradictory to each other
and could not be relied upon. Secondly that having
disbelieved the testimonies of PW-1, PW-9 and PW-11, with
respect to the involvement of accused Babu Ram and Sagir
Ahmad in the crime, learned Trial Judge has erred in relying
upon the testimonies of PW-1, PW-9 and PW-11 in reaching a
finding of guilt qua appellants Chhota Khan and Mohd.Yunus @
Channa. Lastly, learned counsel had urged that if at all an
offence is made out it is of culpable homicide not amounting to
murder and not murder as only a single stab wound has been
inflicted upon the deceased persons.
14. The first submission of the counsel deserves to be
rejected at the outset. We do not find the testimonies of the
three witnesses mutually contradictory, as urged by the
learned counsel. In fact, Suresh PW-9 and Ram Kishan PW-11
have deposed in absolute harmony with each other, not only in
the broad contours of the incident but also in the roles
assigned by them to each of the accused in the incident of
stabbing. PW-9 and PW-11 have deposed that a quarrel took
place at about 8:30 PM when both the said witnesses objected
to the accused dancing in the barat of their relative. The
quarrel was settled at that time and the accused left the barat,
but they returned when the barat reached the venue of the
wedding. The accused tried to drag Suresh PW-9 away but
were again stopped by the elders present in the barat. When
at about 9:30 PM, PW-9 returned to the dharamshala from the
place of the wedding, the accused followed him there.
Appellant Mohd.Yunus @ Channa gave fist blows to PW-9.
When deceased Balwant, deceased Ramphal and their father
Ram Singh attempted to rescue Suresh PW-9, Mohd.Yunus @
Channa released Suresh from his clutches and caught hold of
Ram Singh and exhorted by saying "Chhote yeh aisey nahin
maanenge in saalon ko chakoo mar". On this, accused Sagir
Ahmed caught hold of Balwant and appellant Chhota Khan
took out a knife from his possession and inflicted a stab blow
on Balwant. When Ramphal went to the rescue of his brother
Balwant, accused Kunda Swamy caught hold of Ramphal and
Chhota Khan inflicted a stab blow on Ramphal. When Chhota
Khan was about to inflict a second blow upon Balwant, accused
Sagir Ahmed inadvertently came in between and received a
stab blow. He fell down and could flee from the spot only with
the help of his accomplices in the offence.
15. What are the variations in the inter-se testimony of
PW-9 and PW-11. The first, they have differed in the sequence
in which the events of appellant Mohd.Yunus exhorting to
Chhota Khan and of appellant Mohd.Yunus catching hold of
Ram Singh took place. The second being that while PW-11
names Sagir Ahmed as the person who accidently received a
stab blow when Chhota Khan was about to inflict the same
upon deceased Balwant, PW-9 merely stated that one of the
accused inadvertently got injured when appellant Chhota Khan
was about to inflict a second stab upon Balwant. PW-9 did not
specify as to which of the accused was so injured. The last
discrepancy noted by us is that while PW-9 stated that the
injured accused fled from the spot with the help of appellant
Mohd.Yunus @Chana and accused Babu Ram, PW-11 stated
that Sagir Ahmed fled with the help of accused Kunda Swamy
and Babu Ram.
16. The discrepancies noted above by us are trivial in
nature and cannot have the effect of denting the case of the
prosecution. Such discrepancies are but natural, as in an
incident involving a number of assailants and a number of
victims or bystanders, it cannot be expected from each of the
eye-witnesses to assign specific roles in the assault to each of
the accused and to corroborate each other with respect to
each detail given. We derive support from the decisions
reported as AIR 1956 SC 116 Masalti vs. State of U.P., 1987 (3)
SCC 747 State of U.P. vs. Dan Singh and 2003 Cri.L.J. 41 (SC)
Gangadhar Behera & Ors. vs. State of Orissa. In fact in the
instant case, PW-9 and PW-11 having attributed specific and
distinct roles to each of the accused and having corroborated
each other in the material particulars, the minor discrepancies
in their testimonies as noted above cannot be taken to
discredit the said witnesses. The law is settled that a
discrepancy has to be distinguished from a contradiction.
Whereas contradictions in the statements of witnesses are
fatal to the case, minor discrepancies or variations in the
testimonies are immaterial. (See the decision of the Supreme
Court reported as State of Himachal Pradesh v Lekh Raj & Anr
1999 (9) Supreme Today 155)
17. We note that Rajbir Singh PW-1 did not witness the
complete incident. But his being a witness to a part of the
incident of stabbing cannot be doubted. He deposed that by
the time he reached the dharamshala, he saw his brother
Balwant lying on the ground. Balwant was bleeding because
of stab blow inflicted upon him by Chhota Khan. When his
brother Ram Phal attempted to rescue Balwant, Chhota
stabbed Ram Phal as well. Clearly, PW-1 has not witnessed
any stab being inflicted upon Balwant. But, on seeing Balwant
lying on the ground and bleeding, and further witnessing the
following event of his brother Ram Phal being inflicted knife
blow by Chhota when he went to rescue Balwant, any prudent
person would perceive that Chhota inflicted stab upon Balwant
as well. Accordingly, we hold that what was perceived by
Rajbir Singh being spoken of as being seen by him is not
suggestive of his being not a truthful witness. We find the
testimony of PW-1 also credible and in harmony with the
testimony of PW-9 and PW-11. That he stated that when Ram
Phal was stabbed, Mohd.Yunus and Babu Ram had caught hold
of him, may be in slight variation with the version of PW-9 and
PW-11, but is not so strong a discrepancy so as to discredit
him as well as PW-9 and PW-11. Again the law stated above
that in an incident involving a number of assailants, a number
of victims and by-standers, the witnesses cannot be expected
to remember the exact roles played by each of the accused,
applies to Rajbir Singh as well.
18. Now, having held that the testimonies of PW-1, PW-
9 and PW-11 are worthy of full credence, we proceed to see
whether from the facts emerging from the testimonies of said
witnesses, the conviction of the appellants for the offence of
murder is correct or not.
19. There is no dispute that Balwant and Ram Phal
have died as a result of stab injury inflicted upon them. The
three eye-witnesses PW-1, PW-9 and PW-11 to their deaths
have deposed in harmony with each other that both the
deceased were inflicted single stab wounds by Chhota Khan.
The recovery of a knife pursuant to the disclosure of Chhota
Khan, and the said knife being opined to be the possible
weapon of offence by the doctor conducting the post-mortem,
are additional incriminating evidence against appellant Chhota
Khan. Thus, we hold that the prosecution has successfully
established the active involvement of Chhota Khan in causing
the death of Balwant and Ram Phal.
20. Turning to appellant Mohd.Yunus @ Channa, the
role attributed to him by PW-1, PW-9 and PW-11 is three-fold.
First, of slapping and giving fist blows to PW-9; second, of
exhorting appellant Chhota to inflict knife blows upon those
trying to rescue PW-9; and third, of catching hold of Ram Singh
i.e. father of deceased Balwant and Ram Phal, when Chhota
Khan was inflicting knife blows upon Balwant and Ram Phal.
Clearly, the role played by Mohd.Yunus @ Channa was of a
facilitator. Now the question arises whether in the facts and
circumstances, appellant Mohd.Yunus @ Channa can be said to
be sharing a common intention with appellant Chhota Khan to
cause death of the deceased? To prove common intention on
part of a number of accused, two essentials have to be
established. Firstly that there was common intention between
all the accused and secondly those sought to be held liable
had participated in some manner in the act constituting the
offence.
21. From the testimonies of PW-1, PW-9 and PW-11 it is
evident that the incident has taken place in three stages. First
stage being the quarrel which took place when PW-9 and PW-
11 objected to the accused dancing with the barat of their
relative; second stage being the re-appearance of the accused
when the barat reached the venue of the wedding, and their
trying to drag away PW-9 probably to settle scores and to take
revenge; the third stage being the accused following PW-9
back to the dharmashala from the wedding after about an hour
or so of the barat reaching the place of wedding, and inflicting
fist blows and slaps upon him. Clearly, the incident has
spanned over a time period of more than an hour. The fact
that after the first brawl the accused continued to follow the
barat and when the barat reached the place of wedding the
accused tried to drag PW-9 away shows that the accused had
developed hatred for PW-9 and desired retribution from him
for the earlier brawl. That the accused waited for PW-9 outside
the place of the wedding for about an hour or so and when PW-
9 left the place of the wedding, they followed PW-9 up to the
Dharamshala, evidences the extreme level of hatred of the
accused towards PW-9 and their determination to take
revenge from him. It shows that since the time PW-9 had
objected to the accused dancing with the barat of his relative,
the accused were searching for an opportunity to teach PW-9 a
lesson.
22. From said fact, it can reasonably be inferred that
when all the accused followed PW-9 to Dharamshala, they
shared a common intention of taking revenge from PW-9 and
of teaching him a lesson. When Balwant, Ram Phal and Ram
Singh intervened while the accused were inflicting fist blows
and slaps upon PW-9, on the exhortation of Mohd.Yunus @
Channa, each of the accused caught hold of one of the three
i.e. Balwant, Ram Phal and Ram Singh, and Chhota Khan took
out a knife from his pocket and inflicted stabs upon Balwant
and Ram Phal, from said part of the incident, it is clear that all
the accused shared a common intention not only to teach a
lesson to Suresh PW-9, but also to overcome any resistance to
save PW-9. The fact that Mohd.Yunus exhorted by saying
"Chhote ye aise nahi maanenge, inko chaakoo maar"
evidences the knowledge of Mohd.Yunus about appellant
Chhote being in possession of a knife. It is true that Suresh
was the target and death caused is of 2 other persons. But
from the evidence we can safely gather the intention of the
group was to not only assault Suresh but overcome resistance
if any offered and to achieve their common intention, as an
integral component thereof, to use a knife. That the group
preyed upon Suresh shows their determination.
23. Thus, we can safely gather that all the accused
shared a common intention to do away with PW-9 and if
anyone tried to resist the attack on PW-9, to overcome the
resistance. Appellant Mohd.Yunus may not be the one to have
yielded the knife blows upon the deceased, but inasmuch as
he has participated in the offence to the fullest, by firstly
assaulting PW-9, then exhorting appellant Chhota to yield knife
blows to those who came to the rescue of PW-9 and then lastly
by immobilizing Ram Singh father of the deceased and thereby
preventing him from interfering with the assault upon Balwant
and Ram Phal, he is liable for the deaths of the deceased, in
the same manner as appellant Chhota Khan would be liable
and Section 34 IPC would apply to him.
24. True, that accused Babu Ram and Sagir Ahmed
have been given benefit of doubt by the learned Trial Judge
and have been acquitted in the instant case. We have noted
the reasoning given by the learned Trial Judge in acquitting the
said accused in para 10 above. We wish to clarify that the
learned Trial Judge has not acquitted Babu Ram and Sagir
Ahmed on basis of a finding that the witnesses PW-1, PW-9 and
PW-11 were not creditworthy. Accused Babu Ram was given
benefit of doubt on the grounds that no concrete role emerged
qua him in the commission of the murders, from the testimony
of the eye-witnesses, save and except that he helped accused
Sagir Ahmed flee from the spot when Sagir Ahmed had got
injured. Such a passive role in the incident was insufficient to
infer a common intention on part of Babu Ram with the other
accused to commit murder of Balwant and Ram Phal. Accused
Sagir Ahmed was acquitted on the grounds that his presence
at the spot at the time of the offence was not sufficiently
established by the prosecution. Learned Trial Judge relied
upon the testimony of Rais DW-1 and held that the same
established that the stab injury upon the person of Sagir
Ahmed was a result of a quarrel with two boys who attempted
to rob Sagir Ahmed and DW-1. Learned Trial Judge held that
the testimony of DW-1 sufficiently cast a doubt on the
presence of accused Sagir Ahmed at the place of occurrence
at the time of the incident and therefore acquitted him. This
being so, the contention of the counsel for the appellant that
the learned Trial Judge has erred in believing the testimonies
of the eye-witnesses with respect to the appellants, but
disbelieving the same with respect to accused Babu Ram and
Sagir Ahmed, is devoid of any merit. The reason being,
learned Trial Judge has not disbelieved the testimonies of the
eye-witnesses qua any of the accused. The testimonies of the
eye-witnesses have been held to be trustworthy. The learned
Trial Judge has merely followed the Rule of Prudence and has
given benefit of doubt to Babu Ram and Sagir Ahmed, on basis
of the other evidence on record.
25. Here, we wish to state that we are not in agreement
with the acquittal of accused Sagir Ahmed on the basis of the
testimony of Rais DW-1. Rais DW-1 is the brother of Sagir
Ahmed and we do not find his testimony worthy of any
credence. Having thoroughly perused the evidence on record,
we find that the testimonies of PW-1, PW-9 and PW-11
conclusively established the presence of Sagir Ahmed at the
spot at the time of offence, his active involvement in the
offence and his sharing a common intention with the other
accused to cause death of the deceased.
26. The decision reported as AIR 1962 SC 1211 Sunder
& Ors. Vs. State of Punjab guides us that if in dealing with the
case presented before it on behalf of the appellants, it
becomes necessary for the High Court to deal indirectly or
incidentally with the case against the accused who was
acquitted, there is no legal bar at all for the High Court to
consider evidence as a whole and come to a conclusion that
the evidence against the accused who was acquitted was
wrongly appreciated by the Trial Court.
27. Learned counsel for the appellants had urged that
only a single stab wound having been inflicted upon each of
the deceased it cannot be said that the accused had intention
to cause death or to cause injury sufficient in the ordinary
course to cause death of the deceased.
28. We need not note a host of decisions wherein a
single stab wound inflicted on the vital parts of the body of the
deceased have been held to attract Section 302 IPC and not
Section 304 IPC. We may emphasize here that the stab on
both the deceased have been inflicted upon vital parts being
the chest and the abdomen. Further, from the testimony of
PW-9 and PW-11 it emerges that Chhota Khan was ready to
inflict another stab upon Balwant, but when the same
inadvertently hit Sagir Ahmed and Sagir Ahmed fell on the
ground, the accused lost their enthusiasm and preferred to flee.
29. The conviction of appellant Chhota Khan for the
offence of murder is sustained and Crl.A.No.419/2000 filed by
him is dismissed.
30. The conviction of appellant Mohd.Yunus @ Channa
for the offences punishable under Section 323 for voluntarily
causing hurt upon PW-9 and under Section 302/34 for acting in
concert with appellant Chhota Khan to commit murder of the
deceased, is also sustained. Crl.A.No.784/2001 filed by
appellant Mohd.Yunus @ Channa is also dismissed.
31. Appellants are on bail. Their bail bonds and surety
bonds are cancelled. They are directed to surrender forthwith
and suffer the remaining sentence.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
March 03, 2010
mm
