Vakeel vs State Of Delhi
2011 Latest Caselaw 1447 Del

                   HIGH COURT OF DELHI AT NEW DELHI

                            (1)    Crl.A. No. 581/2010


                                        Date of Decision: 11.3.2011

       VAKEEL                                            ... Appellant

                                   Through: Mr. K.B. Andely, Sr. Adv. with
                                   Mr. M.L. Yadav, Advocate.

                                   Versus
       STATE OF DELHI.                                    ...Respondent
                                   Through: Mr. Lovkesh Sawhney, APP
                                   for the State.


                            (2)    Crl.A. No. 709/2010


       MOHD. ALAM                                        ... Appellant

                                   Through: Mr. Vikram Panwar with Mr.
                                   Shivam Batra, Advocates.

                                   Versus
       STATE (N.C.T OF DELHI)                             ...Respondent
                                   Through: Mr. Lovkesh Sawhney, APP
                                   for the State.

                            (3)    Crl.A. No. 715/2010


       MOHD. IRFAN                                       ... Appellant

                                   Through: Mr. S. Azad, Advocate.

                                   Versus
       STATE OF DELHI                                     ...Respondent
                                   Through: Mr. Lovkesh Sawhney, APP
                                   for the State.

       CORAM:
       HON'BLE MR. JUSTICE ANIL KUMAR
       HON'BLE MR. JUSTICE S.L. BHAYANA

       1.     Whether reporters of local paper may be allowed
              to see the judgment?                    Yes

       2.     To be referred to the reporter or not?       Yes
       3.     Whether the judgment should be referred in the
              Digest?                              Yes




[Crl. A. Nos. 581/2010, 709/2010 & 715/2010]                     Page 1 of 16
 S.L. Bhayana, J.

By this common judgment, we dispose of the appeals of all

the three appellants/accused persons, which arise out of the

judgment and order of the trial Court dated 12.4.2010 and

15.4.2010.

2. The appellants/accused persons by the impugned judgment

dated 12.4.2010 stand convicted under section 302/34 of Indian

Penal Code, 1860. By the order on sentence, dated 15.4.2010, all

the three appellants have been sentenced to undego Rigorous

Imprisonment for life and also to pay a fine of Rs.5000/- each and in

default of payment of fine to further undergo RI for another six

months each for the offence punishable under section 302/34 of

Indian Penal Code.

3. Process of criminal law was set into motion when on 2.5.2003

on receiving DD No.21A, SI Amul Tyagi along with Constable Satpal

rushed to the place of occurrence, which was near Nala Road

opposite shop of Akhtar, near Gali No.10, Mustafabad, where he

found blood was lying on Kachcha Road and some blood was also

scattered at some distance in the side of the Gali towards West

direction. SI Amul Tyagi came to know that the injured had been

removed to GTB Hospital with the help of his friends and neighbors.

SI Amul Tyagi left one constable at the spot and he went to GTB

Hospital, where he obtained MLC of injured Mohd. Irfan who was

declared brought dead.

4. In the hospital, Mohd. Arshad was found present there, who

got recorded his statement. In his statement, he stated that he was

living at the address given by him with his maternal grandfather

and was studying in 8th standard. He came to Delhi about three days

ago. He was roaming along with Mohd. Irfan who lived in their street

for the last 2/3 days. On 02.05.2003 at about 7-7.30 PM, he was

present at the corner of the Gali No. 10 at the shop of Akhtar where

he was playing video games and after completing the game he as

well as deceased Mohd. Irfan sat on the boundary wall of the drain

in front of the shop. Meanwhile accused Vakeel came there along

with two other accused persons and accused Vakeel asked them not

to sit there and not stare in the opposite direction towards left side

where houses are situated and further told them that his girl friend

was living in one of the house. Accused Vakeel further threatened

them that if they looked towards those houses, he would kill them.

He further stated that accused Vakeel started abusing them and

when they asked the accused Vakeel and his associates for not

doing so, accused Vakeel and his associates went away by saying

that "agar asal ke ho to yahi baithe rahna, abhi aakar tumhe maja

chakhate hai". Mohd. Arshad and the deceased Mohd. Irfan kept

sitting on the wall of the drain. After about 10 minutes, Vakeel

returned along with both of his associates and said "Tum bahut ban

rahe ho" and now he will kill both of them. Mohd. Vakeel and his

associates dragged Mohd. Irfan towards the corner of the gali.

Accused Vakeel took out a knife from his pant and both the other

accused persons caught hold his hands and when he tried to save

him, they threatened him to get aside otherwise they would also

kill him. Accused Vakeel gave several knife blows on the chest, face

and other parts of the body of Mohd. Irfan. After receiving injuries,

Mohd. Irfan fell down, when he raised noise all the three accused

persons ran away from there. He picked up Mohd. Irfan but he fell

down after taking few steps. In the meanwhile, Mohd. Shafik who is

the neighbor of Irfan also reached there and they took him to GTB

Hospital where he was declared brought dead. Further he stated

that he can identify all the three appellants/accused persons on

seeing them. On the statement of Mohd. Arshad, SI Amul Tyagi

made his endorsement and sent tehrir to the P.S. for registration of

the case through Ct. Satpal and got registered a case under section

302/34of Indian Penal Code. Crime team also reached at the spot.

Further investigation was handed over to Inspector Sumer Singh.

During the investigation, Inspector Sumer Singh prepared the site

plan and inspected the spot. Crime team also inspected the spot

and took photographs of the scene of crime. Earth control and blood

stained earth were taken into possession by keeping the same in

two separate vials which were sealed with the seal of SS and were

taken into possession by preparing seizure memo. Statements of

the witnesses were recorded by Inspector Sumer Singh. Post

mortem on the body of the deceased was got conducted. After the

post mortem, the dead body was handed over to his relatives for

cremation. Doctor handed over clothes of the deceased and one

gouge piece to IO which was taken into possession by the I.O.

5. From the information received and on the basis of

investigation, appellants (Vakeel and Alam) were apprehended and

they were interrogated. Appellants/accused persons made

disclosure statements regarding the commission of the offence.

During the investigation, accused Vakeel got recovered his blood

stained clothes from inside the room of his house and also got

recovered one blood stained knife. The sketch of knife was prepared

by the IO. The blood stained clothes were kept in a cloth pullanda.

The knife and the clothes were kept into separate pullandas which

were sealed with the seal of SS and the same were taken into

possession by the police.

6. Thereafter, both the appellants/accused persons pointed out

the place of occurrence for which separate pointing out memos

were prepared. Later on at the pointing out of secret informer, third

accused namely Irfan was arrested by the IO. He too made a

disclosure statement, regarding the commission of offence. He was

medically examined in GTB Hospital and thereafter he was

produced before the court in muffled face where an application for

TIP was moved but appellant/accused Irfan refused to participate in

TIP proceedings. On the transfer of SHO Sumer Singh, further

investigation was carried out by Sub-Inspector Satpal Singh. SI

Satpal got prepared the scaled site plan from the draftsman SI

Mukesh Jain. The exhibits were sent to FSL Malviya Nagar, Delhi.

After Completion of investigation the challan was filed in the court

of learned MM. concerned. Since the offence under section 302/34

of Indian Penal Code was exclusively triable by the Court of

Sessions, the case was committed to the court of learned District &

Sessions Judge. Charge under section 302/34 of Indian Penal Code

was framed against the appellants to which the appellants pleaded

not guilty and claimed trial.

7. During the trial, the prosecution examined 20 witnesses. The

statements of appellants were recorded under section 313 of

Criminal Procedure Code in which they denied their involvement

and stated that they have been falsely implicated.

8. The Sessions Court after considering the pleas and

contentions of both the parties and the evidence on record of the

case convicted and sentenced all the accused with imprisonment for

life and also to pay a fine of Rs. 5,000/- each for the offence

punishable under section 302/34 of Indian Penal Code. In default of

payment of fine, the convicts shall further undergo for six months

rigorous imprisonment by the judgment dated 12.4.2010 and order

dated 15.4.2010 which are challenged by the appellants/accused

persons in the present appeal.

9. Learned counsel for the appellants/accused persons relied on

depositions of various witnesses on record and have contended that

the prosecution has failed to establish its case against the

appellants/accused persons. They have further submitted that

there are contradictions in the statements of PW-4 Mohd. Arshad,

PW-7 Mohd. Abid and PW-9 Mohd. Shafik and their statements are

liable to be rejected on account of contradictions. He has further

submitted that the statement given by PW-7 Mohd. Abid has not

been put to the appellant/accused Mohd. Alam, while recording his

statement under Section 313 of Criminal Procedure Code and thus

the appellant/accused Mohd. Alam is liable to be acquitted. Learned

counsel for the appellant further contends that PW-4 Mohd. Arshad

in his statement had not mentioned about the presence of PW-7

Mohd. Abid at the place of incident and PW-7 Mohd. Abid had also

not deposed about the presence of PW-4 Mohd. Arshad at the place

of occurrence. Thus, from the statements of both the witnesses, it is

clear that both of them were not present at the time of incident and

they are falsely implicating the appellants in this case.

10. Learned counsel for the appellants/accused persons have

strenuously argued that there is delay in lodging the FIR which

clearly suggests that FIR was registered after manipulation and

consultation which cast serious doubt in the prosecution case. They

have further submitted that according to the prosecution case, the

alleged occurrence took place at about 7.30 p.m. whereas FIR was

registered at 11.00 p.m. which clearly shows fabrication of

documents and falsity of the prosecution case. It has been further

argued that PW-4 Mohd. Arshad has not witnessed the occurrence

which is clear from the cross examination of PW-7 Mohd. Abid

wherein he has clearly stated that Mohd. Arshad and Mohd Shafiq

came at the spot after 5-10 minutes. It has been further argued that

PW-4 Arshad has been introduced as an eye-witness of the

occurrence later on, whereas, he has not witnessed the occurrence.

PW-4 Mohd. Arshad being the friend of deceased is an interested

witness hence his testimony should not be relied upon.

11. Learned counsel for the appellants/accused persons has

further submitted that the Test Identification Parade (TIP) of the

accused persons has not been conducted by the prosecution and

they have been identified by the witnesses for the first time in the

Court and thus the appellants are liable to be acquitted on this

ground alone.

12. In support of his case, learned counsel for the

appellants/accused persons has relied on Sheikh Umar Ahmad and

Anr Vs. State of Maharashtra, 1998 SCC (Cri) 1276, in which it was

held as under:

"Once the accused was already shown to the witnesses, their identification in the court by the witnesses was meaningless. The statement of witnesses in the Court identifying the accused in the court lost its value and could not be made the basis for recording conviction against the accused".

13. Learned counsel for the appellants/accused persons have

further placed reliance on Ganpat Singh and Ors. Vs. State of

Rajasthan, 1998 SCC (Crl.) 201, wherein it has been held as under:

"The appellants shown to the sole eye-witness in the police station who later identified them in TIP and it was held that no reliance can be placed on such identification and consequently his evidence regarding identification in court after one year cannot be relied upon."

14. Learned counsel for the appellants/accused persons has

further submitted that as per the statement of PW-2, Dr. S Lal the

incident must have taken place in the morning hours of 02.05.2003,

whereas, the witnesses have deposed that the incident took place

at 7-7.30 PM on 02.05.2003 indicating a difference of almost 12

hours which hits at root of the prosecution story and thus the ocular

evidence does not match with the medical evidence.

15. In support of his case learned counsel for the

appellants/accused persons has relied on Ram Narain v/s State of

Punjab, AIR 1975 SCC 1727, wherein it has been held as under:

"that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence ballistic expert this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case.

XXX XXX XXX XXX

It is obvious that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. While appreciating the evidence of the witnesses, the High Court does not appear to have considered this important aspect, but readily accepted the prosecution case without noticing that the evidence of the eye-witnesses in the Court was a belated attempt to improve their testimony and bring the same in line with the doctor‟s evidence with a view to support an incorrect case."

16. Learned counsel for the appellants/accused persons further

argued that the PW-4 Mohd. Arshad did not take injured Irfan to the

hospital and the injured was taken to the hospital by Mohd. Shafik.

Thus, the presence of both the witnesses, Mohd. Arshad and Mohd.

Abid are doubtful at the time of incident. He further submits that

the complainant/PW-4 Mohd. Arshad did not give the details of the

appellants/accused persons to the doctors and also the story of the

prosecution is not given in the MLC prepared by the doctor. The

police have also not seized the blood stained clothes of PW-4 Mohd.

Arshad. Thus, his presence at the spot of incident has become

doubtful.

17. Learned counsel for the appellants/accused persons further

contended that Mohd. Iqbal and Alimuddin, who identified the dead

body, were not produced in the Court. Further, it is submitted that

the story of the prosecution becomes doubtful by not placing on

record the statement of Sh. Akhtar, who was the owner of the shop

near which the incident took place and whose shop was open at the

relevant time and as per statement of Ct. Satpal, PW 11, statement

of Akhtar was recorded in his presence by the IO after coming back

from the hospital on the date of incident, therefore, it raises

suspicion that his statement was deliberately withheld from the

court, which could have put the correct picture before the trial

court.

18. Learned counsel for the appellants/accused persons have

relied on Hem Raj & Ors. Vs. State of Haryana, AIR 2005 SC 2110,

wherein the Supreme Court has held as under:

"No independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case having regard to the indisputable facts of this case.

XXX XXX XXX

It is a case of blind murder which might not have been witnessed by anybody and the version of P.Ws. 4 and 5 the alleged eye witnesses and close relations of the deceased is unnatural and unbelievable. No explanation was forthcoming for not examining the independent witnesses who would have been available at the place of occurrence which is in a busy locality."

19. Learned counsel for the appellants/accused persons further

asserted that as per PW-4, the injured Irfan was taken to the Mohan

Nursing Home and from there the injured Mohd. Irfan was taken to

the GTB Hospital in the RTV, whereas, PW-7 and PW-9 stated that

the injured was taken to the GTB Hospital and there is no mention

about Mohan Nursing Home. Thus, the presence of the witnesses

becomes doubtful at the spot.

20. Learned counsel for the appellants/accused persons have

further contended that according to prosecution story, it was

appellants/accused persons Irfan and Alam, who allegedly caught

hold of the deceased and appellant/accused Vakeel allegedly

stabbed the deceased. He has further stated that if the story of the

prosecution is believed that appellants/accused persons Irfan and

Alam had caught hold of deceased from his arms then it is not

possible that deceased could have received the injuries on his arms.

He has submitted that they have been falsely implicated in the

present case.

21. Per contra, learned Additional Public Prosecutor has submitted

that PW-7 Mohd. Abid has specifically named Mohd. Alam in his

statement recorded by the police and before the Court as one of the

assailants who caught hold of the hands of the deceased, so there is

no question of conducting TIP of appellant Mohd. Alam. He has

further deposed that PW-7 Mohd. Abid has identified Mohd. Irfan,

when he was brought in the Court by the police. Accused Mohd.

Irfan was known to PW-7 Mohd. Abid from before and he has

therefore named him in his statement as one of the assailants.

22. Learned counsel for the prosecution has relied on Suresh

Chandra Bahri Vs. State of Bihar, 1995 Supp (1) SCC 80, wherein it

was held as under:

"substantive evidence of the witness is his evidence in the Court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines on addition to furnishing corroboration of the evidence to be given by the witness later in Court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards were effectively taken so that the investigation proceeds on correct lines for

punishing the real culprit. But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of a TI parade."

23. Refuting the plea of the counsel for the appellants/accused

persons that as per the version of PW-2 the learned Additional

Public Prosecutor, Mr. Lovkesh Sawhney, has contended that PW-2

Dr. S. Lal has stated before the Court, that time since death is 27-28

hours. He concedes that there is a variation of 7-8 hours between

the time of incident and the time since death. This variation is a

natural variation and the time since death by the doctor is only

approximate and not exact. This variation of time is quite natural

as this was only an approximate time given by the doctor and if

there is a contradiction between ocular evidence and medical

evidence, then the ocular evidence is to be believed by the Court.

24. Learned Additional Public Prosecutor, Mr. Lovkesh Sawhney

has relied upon Mangu Khan and Ors Vs. State of Rajasthan, (2005)

10 SCC 374, wherein it was held as under:

"On forensic medicine to show the time within which rigor mortis develops all over the body also has no factual basis. It depends on various factors such as constitution of the deceased, season of the year, the temperature in the region and the condition under which the body has been preserved."

25. Also the learned counsel for the prosecution has relied upon

Solanki Chimanbhai Ukabhai Vs. State of Gujarat, (1983) 2 SCC 174,

wherein it was held as under:

"Ordinarily, the value of the medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitness. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on

the ground of alleged inconsistency between it and the medical evidence."

26. Learned Additional Public Prosecutor has vehemently argued

that when stabbing of the deceased Irfan was going on, PW-4 Mohd.

Arshad who was present there might have not seen PW-7 Mohd.

Abid as this is quite natural that, at that time PW-4 Mohd. Arshad

would be very much tense and he was more concerned for calling

help to save the injured Irfan. When he tried to save the deceased

Mohd. Irfan, Mohd. Vakeel threatened him to get aside otherwise he

would also be killed. It is also possible that Mohd. Abid was present

on one corner of the gali, while PW-4 was present on the other

corner of the gali when the incident took place and they might not

have seen each other. So it cannot be said that PW-7 Mohd. Abid

was not present at the time of occurrence. Whereas, it was stated

by PW-9 Mohd. Shafiq in his statement that when he reached at the

place of occurrence he saw that deceased Irfan was lying on the

ground in the pool of blood and PW-7 Mohd. Abid was also standing

there.

27. Learned Additional Public Prosecutor has further contended

that prosecution has successfully proved its case against the

appellants/accused persons, hence they have been rightly convicted

by the Trial Court. Learned counsel has further submitted that

complainant i.e. PW-4 Mohd. Arshad and PW-7 Mohd. Abid who are

eye witnesses of the occurrence have fully supported the case of

prosecution and learned counsel for appellants/accused have failed

to shatter their testimonies despite lengthy cross-examination. He

has submitted that there is no delay in lodging FIR and that the FIR

was registered promptly. He has further submitted that

contradictions pointed out by learned counsel for the

appellants/accused persons are minor in nature and are bound to

occur due to lapse of time and can be safely ignored. Therefore, the

appellants/accused persons are liable to be convicted.

28. Regarding the plea of the appellants/accused that there are

contradictions in the statements of PW-4, PW-7 and PW-9 therefore,

their statements are liable to be rejected on account of

contradictions. The learned APP has submitted that from the

testimonies of said witnesses their presence is established at the

spot and the contradictions which are minor can be ignored. PW-4

has deposed in his statement that he was present along with

deceased Mohd. Irfan at the time of occurrence when

appellant/accused Mohd. Vakeel came along with other two

appellants/accused and dragged the deceased Mohd. Irfan towards

the corner of the gali. Mohd. Vakeel took out knife from his pant and

both the other accused persons caught hold of Mohd.Irfan. When he

tried to save the deceased, Mohd. Vakeel threatened him to get

aside otherwise he would also be killed. The appellant/accused

Mohd. Vakeel gave several knife blows on the chest, face and other

parts of the body of the deceased. Thereafter, he cried for help and

Mohd. Shafiq came there and both of them took Mohd. Irfan to GTB

Hospital. Whereas, PW-7 also stated injured Mohd. Irfan was taken

by PW-4 and PW-9 to the hospital. Another witness i.e. PW-9 also

deposed that he was informed by Mohd.Arshad that Mohd. Vakeel

stabbed Mohd. Irfan. When he reached at the place of occurrence

he saw Mohd. Irfan was lying on the ground in a pool of blood and

Mohd. Abid was also standing there. Mohd. Shafiq with the help of

Mohd. Arshad took the deceased Mohd. Irfan to the hospital in RTV.

Mohd. Abid did not accompany them to hospital but he helped them

in removing the deceased Mohd. Irfan.

29. Regarding the plea raised by learned counsels for the

appellants/accused that as per the statement of PW-2, Dr. S Lal the

incident must have taken place in the morning hours of 02.05.2003,

whereas, the eye witnesses have deposed that the incident took

place at 7-7.30 PM on 02.05.2003 indicating a difference of almost

7-8 hours in the medical evidence and ocular evidence. Whereas, it

is a well settled law laid down held by the Supreme Court in many

cases and also in Solanki Chimanbhai Ukabhai(supra) that the value

of the medical evidence is only corroborative. It proves that the

injuries could have been caused in the manner alleged and nothing

more. In the present case the post-mortem conducted by PW-2 had

also corroborated the statements given by the witnesses regarding

injuries inflicted to the deceased by knife. So, the ocular evidence

has been corroborated by medical evidence. Post-mortem report of

PW 2, Dr. S.Lal, who conducted the post mortem, has clearly stated

that the death of Mohd. Irfan was due to hemorrhage shock and due

to ante- mortem stab injuries to lungs and abdomen. As per the FSL

report, Ex. PW 15/B (re Ex. as PW 19/D) human blood was found on

the knife which was got recovered at the instance of by the

appellant/accused Mohd. Vakeel and there is no explanation on the

part of the appellant/accused as to how human blood was detected

on the knife. Further human blood of „B‟ group which was group of

deceased has been found on the pant of appellant/accused Vakeel

which he was wearing at the time of occurrence. After going

through the statements of both the eye-witnesses i.e. PW 4 Mohd.

Arshad and PW 7 Mohd. Abid, we have come to the conclusion that

it was the appellants/accused persons and none else who

committed the murder of Mohd. Irfan. Therefore, these facts lead to

a legitimate inference that it was the appellants/accused persons

who in furtherance of their common intention caused the death of

the deceased Mohd. Irfan.

30. In our opinion, the prosecution has established its case

beyond any doubt that the appellant/accused Mohd. Vakeel had

given knife blows to Mohd. Irfan while accused Alam and Irfan

caught hold of him and that he died as a result of the injuries

received at the hands of accused/appellants. This occurrence was

witnessed by Mohd. Arshad who has clearly stated in his statement

that all the appellants/accused persons dragged the deceased

Mohd. Irfan towards the corner of the gali. Mohd. Vakeel took out a

knife from his pant while both the other appellants/accused persons

caught hold the hands of Mohd. Irfan. When he tried to save the

deceased Mohd. Vakeel threatened him to get aside otherwise he

would also be killed by them. The stab injuries caused to lung and

abdomen were sufficient in the ordinary course of nature to cause

death, and the evidence also discloses that the appellant/accused

Mohd. Vakeel had motive to kill the deceased Mohd. Irfan.

31. Learned counsel for the appellants/accused persons has not

been able to show that the findings of the Trial Court are

unsustainable, illegal or perverse. This court, on perusal of the

evidence on record and the documents, is of the opinion that the

prosecution has successfully proved that the appellants/accused

persons Alam and Mohd. Irfan caught hold of deceased Irfan while

accused Mohd. Vakeel stabbed the deceased on his face, chest and

other parts of the body and therefore, the appellants/accused

persons have been rightly convicted and sentenced by the Trial

Court under Section 302/34 of Indian Penal Code. We, therefore,

uphold the conviction and sentence of the appellants.

32. The appeals are without any merit and are, therefore,

dismissed. Since the appellants are in jail, a copy of this judgment

be sent to them, through, the Superintendent, Central Jail, Tihar.

S.L. BHAYANA, J.

ANIL KUMAR, J.

March 11, 2011 KA