Jamil vs State
2010 Latest Caselaw 2338 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment Reserved on: 27th April, 2010
                              Judgment Pronounced on: 3rd May, 2010

+                              CRL.APPEAL No.1015/2008

         JAMIL                                     ..... Appellant
                        Through:     Mr.Sumeet Verma, Advocate

                                     versus

         STATE                                      ..... Respondent
                        Through:     Ms.Richa Kapoor, Advocate

                               CRL.APPEAL No.258/2009

         SUDHIR @ SONU                               ..... Appellant
                  Through:           Ms.Anu 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?

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

PRADEEP NANDRAJOG, J.

1. The case of the prosecution is that on 28.06.2003

Ct.Rohtash PW-12 and HC Subh Ram PW-28 were on patrolling

duty near Ghata Masjid Service Road, Delhi. At about 7:25 AM

when they were proceeding from Shantivan towards Rajghat

on their motorcycle, they saw a three-wheeler scooter bearing

No.DL 1RF 4379 moving towards Shantivan from Rajghat and

simultaneously heard cries of 'bachao bachao' coming from

the said TSR vehicle. They started chasing the TSR and during

the chase saw a person being thrown out from the TSR when it

reached near Urdu Academy. Const.Rohtash PW-12 left HC

Subh Ram with the injured who was thrown out and continued

the chase. He managed to stop the TSR near Shantivan and

as the TSR came to a halt 3 persons got down and started to

flee. A PCR van happened to be nearby. The police personnel

therein being Const.Anil Kumar PW-2 and HC Vijender PW-3, as

deposed to by the two, helped Const.Rohtash to chase and

apprehend 1 out of the 3 persons in the TSR who disclosed his

name as Sudhir @ Sonu (appellant of Crl.Appeal No.258/2009).

2. The injured named Mamchand who was thrown out

of the TSR in the meanwhile was taken to LNJP Hospital where

he died within 15 to 20 minutes of being admitted as recorded

on the MLC Ex.PW-13/A proved at the trial by Dr.Hanender

Sahni PW-13 the doctor who had treated Mamchand recording

on the MLC that the right writ joint had a fracture and there

were abrasions on the body.

3. A personnel in the PCR van informed PS Darya Ganj

about the incident, where ASI Mool Chand PW-8 recorded DD

No.6A, Ex.PW-8/A, at 7:30 AM which was marked to SI

Manmohan Kumar PW-30 who accompanied by HC Krishna PW-

23 proceeded to the segment of Ring Road between Shantivan

and Rajghat and met Const.Rohtash and HC Subh Ram who

handed over the appellant Sudhir @ Sonu to them. SI

Manmohan Kumar recorded the statement Ex.PW-12/A of

Const.Rohtash in which he disclosed the facts of the incident.

On learning that the injured had been removed to LNJP

Hospital SI Manmohan Kumar proceeded towards the hospital

where at 8:05 AM the injured was declared dead. SI

Manmohan Kumar collected the MLC Ex.PW-13/A of the injured

who had died and after making an endorsement Ex.PW-30/A

under the statement Ex.PW-12/A of Const.Rohtash, at 8:30 AM

sent the same through HC Krishna Chand PW-23 for FIR to be

registered.

4. FIR was registered at the police station for the

offence of murder as it was noted on the MLC of the deceased

that he had been stabbed. Information pertaining to FIR being

registered was given to Insp.Dharambir Joshi PW-31 who

reached the hospital and seized the body of Mamchand and

sent it to the mortuary with a request that the body be

preserved as by then it had yet to be identified. From the

hospital SI Manmohan Kumar and Insp.Dharambir Joshi

returned to the spot where appellant Sonu had been

apprehended and had been left in the custody of

Const.Rohtash and HC Subh Ram. As deposed to by

Insp.Dharambir Joshi he interrogated appellant Sudhir @ Sonu

and recorded his disclosure statement Ex.PW-23/A in which he

disclosed that appellant Jamil and juvenile co-accused Sudhir

@ Sanju were his accomplices. His clothes i.e. the pant Ex.P-2

and the shirt Ex.P-1 were found having blood stains thereon

and hence were seized as recorded in the memo Ex.PW-23/D.

As deposed to by him, Insp.Dharambir Joshi seized the TSR

bearing No.DL 1RF 4379 from the spot vide seizure memo

Ex.PW-23/F. Thereafter as deposed to by Insp.Dharambir he

formed a raiding team to be headed by SI Manmohan Kumar

PW-30 and consisting of Const.Rohtash PW-12, Const.Lekhraj

PW-25 and Const.Om Prakash PW-24 to apprehend the

appellant and the juvenile co-accused Sudhir @ Sanju.

5. With the information provided by appellant Sudhir

@ Sonu the raiding party, as deposed to in harmony with each

other by the members thereof reached House No.CPJ-63, New

Seelampur, New Delhi and found appellant Jamil who was

immediately apprehended and interrogated by SI Manmohan

Kumar and who made a disclosure statement Ex.PW-12/B not

only admitting to the crime but stating that he could get

recovered a knife, Rs.200/- cash being the money which was

robbed and a slip of paper belonging to the deceased. He

produced a slip of paper Ex.PW-12/1 on which two telephone

numbers 23945258 and 23933778 were written with names

Chatrapal Khari and Goyal Gopal as also Rs.200/- and a knife

which were seized vide memos Ex.PW-12/D, Ex.PW-12/E and

Ex.PW-12/F. Jamil led the raiding party to the adjoining house

No.CPJ-65 New Seelampur from where accused Sudhir @ Sanju

was arrested who pursuant to his disclosure statement got

recovered a razor (ustra) stated to be the weapon used by

him. The same was seized vide memo Ex.PW-12/M.

6. Jamil and Sudhir @ Sonu were brought before

Insp.Dharamvir Joshi along with the various exhibits which

were recovered and as afore-noted. As deposed to by

Insp.Dharamvir Joshi with reference to the slip Ex.PW-12/1 he

rang up Chatarpal at the number immediately below his name

on the slip in question and through him managed to get hold

of the family members of the deceased. Bhopal Singh PW-4

the brother of the deceased and Balister PW-5 the son of the

deceased reached the police station and there from taken to

the mortuary of Maulana Azad Medical College and Hospital

where they identified the dead body as that of Mamchand.

Thereafter, Insp.Dharambir Joshi filled up the inquest papers

and on 29.6.2003 post-mortem was conducted on the dead

body of Mamchand by Dr.Avneesh Gupta who prepared the

post-mortem report Ex.PW-29/A, proved at the trial by Dr.Rohit

PW-29 who was familiar with the writing and signatures of

Dr.Avneesh Gupta. The post-mortem report Ex.PW-29/A

records 11 injuries out of which 8 were incised injuries,

obviously caused by a sharp-edged weapon. 3 injuries were

abrasions. It was opined on the report that injury No.1 and 11

which are incised wounds were sufficient in the ordinary

course of nature to cause death. It was noted that injury No.1

entered the chest cavity at the 10th rib and pierced the right

lung lobe. Injury No.1 was deep over right neck cutting not

only the neck muscles but even the carotid vessels and

nerves. It was opined therein that the 3 abrasion injuries could

be produced by blunt force or surface impact.

7. It is apparent that every investigating officer would

have gathered evidence to connect the ownership and

possession of the TSR DL 1RF 4379 to either all or any one of

the accused. Bahadur Gupta PW-7 and Karan Singh PW-9 are

the two persons who threw light on the issue and whose

statements were recorded by the investigating officer under

Section 161 Cr.P.C. The TSR in question, as deposed to by

Bahadur Gupta PW-7 was under his ownership and he was the

registered owner thereof, a fact proved through the medium of

the permit Ex.PW-9/C issued by the Transport Department for

contract carriage recording therein that TSR No.DL 1RF 4379

stands registered in the name of Bahadur Gupta for plying in

the National Capital Territory of Delhi, which certificate was

seized by the investigating officer vide seizure memo Ex.PW-

9/A. Bahadur Gupta had informed the investigating officer that

he had handed over possession of the TSR to Karan Singh PW-

9, who in turn, as deposed to by him had informed the

investigating officer had handed over possession thereof to

Jamil for plying the same for a consideration of Rs.200/- per

day.

8. The knife got recovered by appellant Jamil and the

shirt and the pant of Sudhir @ Sonu which were seized when

he was apprehended were sent for serological examination

along with the blood sample of the deceased, vide FSL report

Ex.PW-31/C all three were found to be having human blood of

the same group as that of the deceased i.e. group 'O'.

9. Needless to state at the trial at which appellants

were the accused (trial of juvenile co-accused being referred to

the Juvenile Court) the incriminating evidence which had to be

established against appellant Sudhir @ Sonu was his being

apprehended as aforenoted at the spot. Incriminating

evidence which had to be established against appellant Jamil

was his being proved to be running away from the spot; his

being in possession of the TSR No.DL 1RF 4379; the recovery

of a knife at his instance on which human blood of the same

group as that of the deceased was detected and that the knife

in question could be the possible weapon of offence. Further,

the slip Ex.PW-12/1 being recovered from him.

10. At the trial the various police officers and the public

persons noted hereinabove while noting the events as they

unfolded during investigation, which we have intermingled

with the deposition of the witnesses for sake of brevity,

deposed to prove the respective fact as noted hereinabove

and relatable to the concerned witness. Having gone through

the cross-examination of all the witnesses, we record that no

blemish has surfaced which dents the testimony of any

witness.

11. Thus, in view of the evidence led the learned Trial

Judge has convicted the appellants for the offence of having

murdered Mamchand as also for the offence punishable under

Section 394 IPC, needless to state with the aid of Section 34

IPC.

12. Obviously, it was difficult to prove robbery for the

reason only Rs.200/- could be recovered from Jamil and it

would be extremely difficult to prove that the same belonged

to the deceased.

13. It was conceded by learned counsel for the

appellant for Sudhir @ Sonu that she had no case to argue to

disprove his being arrested at the spot as claimed by

Const.Rohtash PW-12, Const.Anil Kumar PW-2 and HC Vijender

PW-3. The only submission urged was that it was apparent

that the intention of the accused was to only rob the deceased

and not to murder him. Unfortunately for the accused, urged

the counsel, the deceased cried for help which attracted the

attention of Const.Rohtash and HC Subh Ram who started

chasing the TSR on their motorcycle. In panic, the accused

caused injuries to the deceased and since the fatal injury was

directed towards the neck, at best the intention which could be

attributed would be to injure the deceased and keeping in view

the place where the injury was inflicted knowledge could be

imputed that there was likelihood of the deceased dying and

hence the offence made out would be for the offence of

culpable homicide not amounting to murder and hence

punishable under Section 304 Part II IPC.

14. The argument has to be rejected for the simple

reason it is settled law that intention can be developed even at

the spur of the moment. There are two sources wherefrom an

intention of a person can be gathered. The first is evidenced

to show the mental condition of a person excluding his acts

and the second is to gather the intention from the acts. The

principle behind gathering intention of a person with reference

to his acts is that every person is presumed to intend the

consequences of his act. More often than not evidence of the

first category is difficult to gather and hence Courts have

attempted to gather the intention from the acts committed.

Surely, a man who holds a pistol at the temple of the victim

and shoots cannot claim that he was fooling around. The

intention which is writ large is to shoot the victim with a

firearm and damaged the brain i.e. the intention to kill is writ

large.

15. If robbers find themselves in an uncomfortable

situation of the cries of a victim attracting the police and an

attempt is made to flee, and while so doing the neck of the

victim is slit, it is apparent that the intention is not to leave

behind an eye witness who could be damaging to the interest

of the robbers and hence the act of silencing the victim by

cutting his neck.

16. In para 6 above we have noted that of the 11

injuries caused upon the deceased, 8 were the result of a

sharp edged cutting weapon. Injury No.1 had pierced the right

lung lobe. Injury No.1 was a deep cut on the neck cutting not

only the neck muscles but even the carotid vessels and

nerves. The Evidence Act requires it to be treated that a fact

is proved when on the evidence before the trier of the fact any

prudent person would believe the fact to exist or proceed on

the supposition that the fact exists. Given the injuries caused

upon the deceased any prudent person would conclude that

the intention of the accused was to silence the victim i.e. kill

him.

17. Pertaining to appellant Jamil it was stated that the

person who identified him while deposing was Const.Rohtash

PW12. It was urged that dock identification of an accused by a

witness who had a chance encounter with an accused is

suspect unless preceded by test identification proceedings in

which the witness has been able to identify the accused. It

was urged that Jamil was not subjected to any such test

identification proceedings. Extending the argument a little

further it was urged that as per Const.Rohtash he had chased

the accused and hence it was apparent that he had a glimpse

of the accused from their back and hence could not have

noted the features of the accused from the front, further, a

fleeting glance at the accused was the maximum which

Rohtash could have had had and thus his testimony of

identifying Jamil did not inspire confidence.

18. On the issue of test identification proceedings, as

held in the decision reported as AIR 1988 SC 345 Hari Nath Vs.

State of UP, where a witness has otherwise had sufficient

opportunity to see and identify an accused the test

identification proceedings of said accused can be dispensed

with and are not a necessary requisite.

19. Thus, one out of the three limbs of the submission

aforenoted has no legal basis to stand for. Const.Rohtash

was associated in the further proceedings and being a police

officer he had to be associated and thus in the instant case to

conduct or hold test identification proceedings was a useless

formality. Now, Const.Rohtash had chased the TSR from

Shantivan towards Rajghat and had successfully intercepted

the TSR near Urdu Academy. This chase obviously lasted for a

few minutes. It is true that during this chase the motorcycle of

Const.Rohtash was behind the TSR, but Const.Rohtash could

have successfully stopped the TSR only after he overtook the

same and by bringing his motorcycle in front compelled the

occupants of the TSR to also stop and flee. This gave

sufficient opportunity to Const.Rohtash to have a good look at

the features of the accused from the front. The chase took

place at 7:30 AM in the month of June by which time it is bright

sun light in the city of Delhi. Thus, in the facts as they have

emerged in the instant case we do not find it a case to hold

that Const.Rohtash has not to be believed.

20. That there is no documentary proof of the TSR

being in the ownership or possession of Jamil is neither here

nor there. The reason being, this is not a civil trial where the

issue in dispute is the ownership of the TSR. What was

required to be proved at the trial was that Jamil had the

possession of the TSR which was abandoned near Urdu

Academy on Ring Road and on proof thereof unless Jamil

rendered a satisfactory explanation as to how the TSR reached

the spot wherefrom it was recovered other than the manner in

which the prosecution claimed it did, guilt qua him as the TSR

was used in the commission of the crime, was plain.

21. Bahadur Gupta PW-7 and Karan Singh PW-9 have

co-jointly proved the fact that possession of the TSR was with

Jamil and nothing has been brought out in the cross-

examination of the said two witnesses which discredits them.

Thus, the prosecution has successfully established that Jamil

was in possession of the TSR when the same was used when

the crime was committed.

22. It is no doubt true that the slip Ex.PW-12/1 on which

telephone numbers 23945258 and 23933778 were written

with names of Chatrapal Khari and Goyal Gopal has not been

proved to be in the handwriting of the deceased, but the said

slip of paper having concerned with the deceased and no

concern with Jamil stands proved by the fact that

Insp.Dharambir Joshi could contact Chatrapal Khari on the

number 23945258 and this establishes that the said slip of

paper was with deceased Mamchand. It assumes significance

that till said slip was recovered and Chatrapal Khari contacted

and only thereafter name of Mamchand surfaced, in every

document preceding said event the victim has been referred

to as unknown. The argument that why Jamil would retain with

him a useless slip of paper is for Jamil to answer as he only

knows why he did so. The fact of the matter remains that the

recovery of the said slip has been duly proved and the slip

could not be planted for the reason how did Insp.Dharambir

Joshi know that there exists a person by the name of Chatrapal

Khari having a telephone No.23945258. So strong is the

subsequent fact discovered with relation to said slip that it

renders its recovery most creditworthy.

23. The fact that the knife on which human blood of the

same group as that of the deceased was detected has been

got recovered by Jamil is further incriminating evidence

against him.

24. We find no merits in the appeals which are

dismissed.

25. Since the appellants are in jail we direct that a copy

of this decision in each appeal be sent to Superintendent

Central Jail Tihar to be made available to the appellants.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE

MAY 03, 2010 mm