Afsar & Anwar vs State
2012 Latest Caselaw 2567 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    RESERVED ON : 12th March, 2012
                                     DECIDED ON : 20th April, 2012
+                             Crl.A. 473/1997
       AFSAR AND ANWAR                            ....Appellants
               Through : Ms.Meena Choudhary Sharma, Advocate
                         with Mr.Hirein Sharma, Advocate for
                         Appellant Anwar and Amicus Curiae on
                         behalf of Appellant Afsar.
                         versus
       STATE                                      ....Respondent
               Through : Ms.Richa Kapoor, APP.
       CORAM:
       HON'BLE MR. JUSTICE S. RAVINDRA BHAT
       HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.

1. In this appeal by Afsar (A-1) and Anwar (A-2), the judgment dated 19.09.1997 and order on sentence dated 22.09.1997 of Ld.ASJ in SC No. 73/1996 has been impugned. They were convicted in the said judgment for committing offences punishable under Section 302/34 IPC and were sentenced to undergo imprisonment for life with fine of ` 1,000/- each. A-1 was further convicted for committing the offence under Section 27 of the Arms Act and sentenced to undergo Rigorous Imprisonment for two years with fine of ` 500/-. Both sentences were to operate concurrently.

2. The criminal law was set into motion at around 7.15 P.M. on 20.09.1994 when Daily Diary (DD) No.15-A (Ex.PW-6/C) was recorded by HC Nasruddin (PW-6) at PS Welcome on getting information from duty Constable Jitender posted at GTB Hospital that Zulfikar brought by

his father Irshad in injured condition was declared 'dead'. The investigation was assigned to SI Rakesh Kumar who with Const.Shakil reached the hospital and collected the MLC (Ex.PW-4/B). Irshad, the deceased's father, met him at the hospital and both returned to the spot. Mohd.Irshad (PW-1) made statement to SI Rakesh Kumar and stated that on that day, at about 6.15 P.M. he and his son Askar were present at his factory. A-1 and A-2 who were running furniture shop in their neighbourhood were also present. A-1 after going to the first floor removed iron nails from the wall and broke some wires as a result of which their machines (installed in the factory) stopped functioning. When his son Askar objected to that, A-1 started abusing him and hit him (Askar) with an iron rod (Saria) on his head as a result of which he (Askar) fell down. In the meantime, his other son Zulfikar (since deceased) reached there on a scooter and enquired the cause of quarrel. A- 2 caught hold of Zulfikar on the exhortation of A-1, who brought a churi from his shop and stabbed him on the chest and abdomen. When he rushed to save his son, A-1 and A-2 fled the spot. He took his son to GTB Hospital where the doctor declared him 'dead'.

3. SI Rakesh Kumar made an endorsement on the statement and sent the rukka through Const.Shakil for registering a case under Section 302/34 IPC. Further investigation was taken over by Insp.Babu Singh, SHO, PS Welcome. He summoned the crime team and got the place of incident photographed; he seized blood stained earth, earth control, three small bottles and prepared a rough site plan. Since PW-1 (Mohd. Irshad) had indicted the accused, the police set out to apprehend them.

4. A-2 was arrested at about 10.30 P.M. from Kachi Colony, Kabir Nagar and the IO seized a blood stained shirt which he was wearing at that time. On 21.09.1994, the investigating officer (IO) conducted inquest proceedings; prepared brief facts and sent the dead body for post- mortem. Dr.A.K.Tyagi conducted the post-mortem on the dead body. On 22.09.1994, A-1 was arrested from Kachi Colony side. He was interrogated and pursuant to his disclosure statement A-1 lead the police to his shop No.17, Purani Kothi, Welcome and recovered churi (Ex.P-4) which was lying beneath the cash box. The IO prepared sketch of the churi and seized it by preparing a seizure memo. During the investigation, the IO sent exhibits to Forensic Laboratory (FSL) and collected its report subsequently. He recorded the statements of the witnesses conversant with the facts and after completion of the investigations, filed a charge-sheet against A-1 and A-2 for committing the aforesaid offence. Both the accused were duly charged and brought to trial.

5. To prove the charges, the prosecution examined seventeen witnesses. Statements of the accused were recorded under Section 313 Cr.P.C. to afford them an opportunity to explain the incriminating circumstance. They denied their complicity in the crime and pleaded that they were falsely implicated. They further stated that the real culprit was Askar who committed murder of his brother Zulfikar who was a bad character and was in love with a girl Sitara @ Sattoo. His father and brothers opposed the relationship, and their relations were strained on that account. On the day of incident, there were exchange of hot words between Zulfikar and his borther Askar over payment of money and in the process Zulfikar snatched money from Askar and hit him with an iron rod

on his head. When Zulfikar attempted to flee, Askar and his brother inflicted knife blows to him causing his death. The accused examined Sushil Kumar in their defence as DW-1.

6. After appreciating the evidence on record and considering the rival contentions of the parties, the Trial Court convicted both accused for the aforesaid offences.

7. Learned counsel for the Appellants assailed the findings of the Trial Court and urged that it did not appreciate the evidence in its true and proper perspective and fell into grave error in relying upon the ocular testimonies of PW-1 (Mohd.Irshad) and PW-9 (Askar), who were related to the deceased and whose presence at the spot was highly doubtful; their chances of deposing falsely could not be ruled out. She further contended that all these witnesses were close relatives of the deceased and were interested witnesses and the Trial Court failed to examine their depositions with due care and caution, instead blindly placed reliance on it. PW-3 (Abdul Rehman) and PW-5 (Mohd.Farooq) were introduced subsequently to buttress the prosecution case. The Trial Court did not consider the cogent testimony of DW-1 (Sushil Kumar) and unduly preferred the depositions of prosecution witnesses. No overt act was attributed to A-2. The prosecution witnesses had given contradictory versions about exhortation catching hold of Zulfikar. The plausible defence version put forward by the accused in their statements under Section 313 Cr.P.C. was not considered at all. PW-9 left the hospital against medical advice and his conduct, urged the counsel, lends credence to the defence version that after committing the crime, he fled the spot and went to his village. In order to save his son (PW-9 Askar) PW-1

(Mohd.Irshad) falsely implicated the accused because they had objected to relations of his daughter with one 'pahari' boy who used to send love letters to her. The Trial Court, urged the counsel, ignored the vital discrepancies emerging from testimonies of the prosecution witnesses. The counsel further argued that even if the prosecution case is taken at its face value, Section 302 IPC was not attracted. The stabbing incident happened suddenly without premeditation and A-1 in a fit of rage allegedly inflicted the blows.

8. Ld.APP supported the findings of the Trial Court and urged that the testimonies of PW-1, 3, 5 and 9 were categorical and proved the accused's guilt and their evidence cannot be ignored merely because they were interested witnesses. Close relationship is not a factor to discard their otherwise credible version. The accused's name was reflected in the FIR lodged by PW-1 (Mohd. Irshad). He narrated the sequence of the events in detail at the earliest point of time. There was no possibility of fabrication of a false story during that short period. Ld. APP further urged that both accused shared common intention to cause fatal blow with churi on the vital parts of deceased's body. A-2 facilitated the crime and caught hold of the deceased while A-1 inflicted fatal blows. The recovery of the weapon of offence pursuant to A-1's disclosure statement is a material incriminating circumstance. PW-9 had to rush to the village after the incident to inform the relatives and his credible deposition cannot be disbelieved because he left the hospital on his own. The defence version accusing PW-9 of murder of his brother has no substance.

9. We have considered the submissions made by the learned counsel for the parties and perused the Trial Court records.

10. Before we enter into the merits of the case, it is desirable to highlight that the homicidal death of Zulfikar is not under challenge. The deposition of Dr.A.K.Tyagi (PW-8) who conducted the post-mortem of the dead body of the victim leaves no manner of doubt that he suffered a homicidal death.

(A) Involvement of A-2 :

11. Allegations against A-2 are that he caught hold of Zulfikar and A-1 stabbed him with a churi and shared common intention with A-1 to commit the crime. We find no cogent, clinching, trustworthy evidence on this score. Undoubtedly, it was A-1who had gone up-stairs to remove the nails from the wall causing disruption in the running of the machines. A-2 was not in picture at that time and was not instrumental in removing the nails from the wall. The initial altercation took place between A-1 and PW-9 (Askar) upon his objection to the removal of the nails. It was A-1 who started abusing PW-9 and hit an iron rod on his head. No witness assigned any role to A-2 in the initial altercation. A-2 did not intervene in that quarrel or exhort A-1 to inflict injuries to PW-9. Apparently, A-2 did not participate in the quarrel in any manner. When Zulfikar (since deceased) happened to reach the spot on scooter and enquired the cause of quarrel, the prosecution alleged exhortation. However, contradictory and inconsistent versions have emerged as to who exhorted whom. In the statement Ex.PW-1/A (which formed the basis of rukka/FIR) PW-1 (Mohd. Irshad) stated that Afsar (A-1) exhorted A-2 to catch hold of Zulfikar, but he deviated from his earlier statement in the Court deposing that A-2 exhorted A-1 to catch hold of Zulfikar. The prosecution did not explain the variation and Ld.APP did not confront the witness with his

statement Ex.PW-1/A. PW-9 Askar contradicted PW-1 and deposed that A-1 exhorted by saying „pakar lo ise bhi‟ and A-2 caught hold of Zulfikar from behind. PW-9 was confronted with his statement Ex.PW-9/DA recorded under Section 161 Cr.P.C. is silent about whether A-2 had caught hold of Zulfikar from behind. PW-9 did not explain the material improvements in his deposition before the Court.

12. The precise role attributed to A-2 is only of catching hold of Zulfikar and it is alleged that he continued to do so till A-1 brought the churi from his shop and stabbed him. Apparently, A-1 was unarmed when Zulfikar emereged on the scene. Even while leaving the spot, A-1 did not exhibit intention to procure the churi from the shop. Apparently there was no purpose of 'exhortation' on the mere making of inquiry about the cause of trouble especially when the deceased had not given any threat to retaliate. No knowledge can be imputed to A-2 that A-1 would rush to the shop to bring the churi. It seems highly improbable that A-2 continued to catch hold of Zulfikar from behind for such a long time awaiting arrival of A-1 with the churi, because the close relatives (PW-1, 3, 5 and 9), were present there. They would not have been mute spectators would have intervened to release him from the clutches of A-2. Curiously, the servants working in the factory also exhibited unnatural conduct and did not intervene in the incident. The mere presence of A-2 at the spot was not sufficient to conclude that he shared common intention with A-1 to murder Zulfikar. The prosecution has failed to prove the role assigned to A-2 in the incident.

13. It is well settled that although a man may be present when a crime is committed, if he takes no part in it and does not act in concert

with those who commit it, he will not be held liable merely because he did not endeavour to prevent it, or to apprehend the offender. All those present do not necessarily assist or participate by their presence in every act which is done in their presence, nor are they consequently liable to be punished as offenders. There must be community of design to make the person present liable. The facts that the accused were together at the time of the incident and ran away together is not conclusive evidence of common intention in the absence of any more positive evidence. The mere circumstance of a person being present on an unlawful occasion does not, therefore, raise a presumption of that person's complicity in an offence then committed.

14. Observations of the Supreme Court in „Nagaraja vs. State of Karnatka‟ (2008)17 SCC 277 reflected the law on this aspect as under :

"18. For invoking the provisions of Section 34 IPC, at least two factors must be established; (1) common intention, and (2) participation of the accused in the commission of an offence. For the aforementioned purpose although no overt act is required to be attributed to the individual accused but then before a person is convicted by applying the doctrine of vicarious liability not only his participation in the crime must be proved but presence of common intention must be established. It is true that for proving formation of common intention, direct evidence may not be available but then there cannot be any doubt whatsoever that to attract the said provision, prosecution is under a bounden duty to prove that the participants had shared a common intention. It is also well settled that only the presence of the accused by itself would not attract the provisions of Section 34 IPC. Other factors should also be taken into consideration for arriving at the said conclusion. The accused persons were not related to each other; they did not have any family connection; they have

different vocations. It has not been established that they held any common animosity towards the deceased."

15. Similarly in another case 'Suresh and another vs. State of UP' (2001) 3 SCC 673the Supreme Court laid down :

"31. It is difficult to conclude that a person, merely because he was present at or near the scene, without doing anything more, without even carrying a weapon and without even marching along with the other assailants, could also be convicted with the aid of Section 34 IPC for the offence committed by the other accused. In the present case, the FIR shows that A-3 Pavitri Devi was standing on the road when the incident happened. Either she would have reached on the road on hearing the sound of the commotion because her house is situated very close to the scene, or she would have merely followed her husband and brother out of curiously since they were going armed with axe and choppers during the wee hours of the night. It is not a necessary conclusion that she too would have accompanied the other accused in furtherance of the common intention of all the three."

(B) Involvement of A-1 :

16. Allegations against A-1 are that in the initial altercation, he injured PW-9 (Askar) and when Zulfikar reached the spot, he inflicted multiple stab injuries upon him. The accused did not challenge the injuries on PW-9 (Askar) and the deceased Zulfikar. He however, gave his own version in the statement under Section 313 Cr.P.C. stating that Askar was injured by the deceased Zulfikar and when he (Zulfikar) attempted to flee, PW-9 and his brother stabbed him on his chest and abdomen. He denied that he was the perpetrator of the crime.

17. To ascertain the culpability of A-1 the statement (Ex.PW- 1/A) made by PW-1 (Mohd. Irshad) to the police soon after the

occurrence is crucial. In his statement, PW-1 (Mohd. Irshad) gave graphic details and the sequence of events and named A-1 as having stabbed Zulfikar. PW-1 also disclosed the genesis of the quarrel i.e. removal of iron nails from the wall causing disruption in the running of the machines. The occurrence took place at 6.15 P.M; the Rukka Ex.PW-15/A was sent promptly without any delay at about 8.35 P.M. for registering the FIR. An FIR recorded without any loss of time is likely to be free from embroideries, exaggerations and without any body intermeddling with, to introduce a false story. Trustworthiness of the prosecution story can be judged from the FIR.

18. Appearing as PW-1 before the Court, PW-1 proved A-1's role narrated to the police at the first instance without variation. He categorically testified that A-1 caused injuries to his son Askar and stabbed Zulfikar on his chest and abdomen after bringing a churi from his shop. Despite searching cross-examination, A-1 failed to elicit any vital discrepancies to discard his testimony. No suggestion was put to the witness denying his presence at the spot. MLC Ex.PW-4/B corroborates PW-1's version that he took Zulfikar to the GTB Hospital as his name finds mention in it ensuring his presence at the spot. PW-1 used to reside in the factory premises itself as disclosed in his cross-examination, on that count also, his presence at the shop/factory was quite reasonable and natural.

19. PW-9 (Askar) corroborated PW-1 in all material facts and was categorical that A-1 stabbed Zulfikar. He denied the suggestion that he and his brother had stabbed Zulfikar. No material inconsistency emerged in his cross-examination to impeach his credibility. PW-9 was

also medically examined and MLC Ex.PW-4/A was prepared at GTB Hospital. He was taken to GTB Hospital at 7.15 P.M. and was declared fit to make statement. The injuries sustained by PW-9 in the occurrence ensure his presence at the spot.

20. PW-5 (Mohd. Farooq) claimed himself to be an eye witness. However, on scrutinizing his deposition thoroughly, we find him not to be trustworthy to place implicit reliance on his testimony. He is a chance witness who happened to reach at the shop of the injured (Askar). PW-1 (Mohd. Irshad) in the fag end of his statement Ex.PW-1/A spoke of his presence. The conduct of PW-5 (Mohd. Farooq) in not intervening to save the injured and the deceased; in not reporting the incident to the police and not removing the deceased to the hospital is unreasonable and casts serious doubt about his presence at the spot. Similarly, the presence of PW-3 (Abdul Rehman) as a witness to the incident seems doubtful. PW-1 in the statement (Ex.PW-1/A) did not depose about presence of PW-3. He claimed to have gone to answer the call of nature and on his return, he saw the incident from a distance. The witness made various improvements and was duly confronted with his statement Ex.PW-3/DA recorded under Section 161 Cr.P.C. His conduct at the time of incident is unnatural as he too did not intervene to save the deceased or take him to the hospital. Relationship of this witness with the deceased for the last 10/12 years puts the Court on guard to appreciate his evidence in its true perspective. We are not inclined to place reliance on his version.

21. Perusal of the clinching and convincing statements of PW-1 and PW-9 reveals that they are categorical about the role played by A-1 in the incident. Exclusion of depositions of PW-3 and PW-5 would not dilute

the prosecution case. PW-9 (Askar) himself is an injured witness and his testimony cannot be ignored without good reasons.

22. Mere contradictions/improvements on trivial matters cannot render an injured witness's deposition untrustworthy. The law on this aspect has been detailed in the latest judgment State of Uttar Pradesh vs. Naresh and ors. (2011) 4 SCC 324 as under :

"27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.)"

23. Similarly in another case Abdul Sayed vs. State of Madhya Pradesh (2010) 10 SCC 259, the Supreme Court observed that :

"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the

crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) "28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below."

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the

injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.

24. Undoubtedly, PW-1 and PW-9 are closely related to the deceased. Ordinarily a close relative would not intend to screen the real culprit as he would be interested to see that the real offender is brought to book. In this context, it was held, by the Supreme Court, in Anvaruddin v V. Shakur 1990 (3) SCC 266, that:

"It is well settled law that evidence of witnesses to the occurrence cannot be thrown overboard merely because they are interested and partisan witnesses. All that the law demands is that their evidence should be scrutinised with great care and caution to safeguard against the normal temptation to falsely implicate others."

25. In a similar vein, the Supreme Court had ruled, in Dilip Singh and others v. The State of Punjab AIR 1953 SC 364 that:

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any

sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

26. Vivien Bose, J, put the matter even more clearly, as follows:

"We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hands on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - 'Rameshwar v. State of Rajasthan' (AIR 1952 SC 54 at p. 59) (1952 Cri LJ

547). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."

27. The above decision was followed in Guli Chand and others v. State of Rajasthan AIR 1974 SC 276.

28. Ocular testimony of PW-1 and PW-9 has been corroborated by medical evidence and there is no conflict between the two. PW-4 (Dr.Kishan Kant) proved PW-9 (Askar)'s MLC i.e. Ex.PW-4/A and that of deceased Zulfikar (Ex.PW-4/B). The accused did not opt to cross- examine him. PW-8 (Dr.A.K.Tyagi) conducted the post-mortem on the body of the deceased Zulfikar and found six incised stab wounds of various dimensions on various body parts of the deceased including over lower front of chest, outer front of left-side abdomen. The cause of death was opined to be shock as a result of haemmohrage caused by injuries to internal organs (heart and lung). PW-1 and PW-9 spoke about the injuries

mentioned in the post-mortem report. PW-9 sustained simple injuries and there was no history of unconsciousness, vomiting etc. The doctor concerned did not ask for admission in the hospital. He was merely referred to some other branch. PW-9 explained that he had to go to his village to inform the relations of Zulfikar's death. By no stretch of imagination, his departure to village can be considered 'incriminating'.

29. The defence version accusing PW-9 for Zulfikar's murder does not inspire confidence. There is no material on record to conclude that the relations between the family members of deceased were hostile or that PW-9 and his brother stabbed Zulfikar. DW-1 (Sushil Kumar) is a chance witness. No suggestion was put to PW-1 and PW-9 in their cross- examination that DW-1 was present at the time of occurrence. He neither intervened in the alleged quarrel nor reported the incident to the police. In the examination-in-chief itself he stated that he did not see anyone inflicting any injury. DW-1 did not prove the defence pleaded by the accused in their statements recorded under Section 313 Cr.P.C.

30. In the light of above discussion, we are of the considered view that the prosecution has established beyond doubt that the injuries were inflicted by A-1 on the head of PW-9 (Askar) in the initial quarrel and subsequently he stabbed Zulfikar.

31. This takes us to the alternative plea taken by the counsel that even assuming the case to be true, the matter would still not fall within the definition of murder but would be culpable homicide not amounting to murder. The initial quarrel took place with A-1 on his removal of iron nails from the wall. When Zulfikar reached the spot and enquired from A- 1 the cause of quarrel, he went to his shop, brought a churi and inflicted

several stab blows on chest and abdomen of the deceased. The post- mortem report (Ex.PW-8/A) discloses six incised stab wounds of various dimensions on the vital organs of the body of the deceased. Injuries Nos.2 to 6 were caused by sharp single edged weapon. Injury Nos.2 and 3 were sufficient to cause death in the ordinary course of nature. The deceased died due to shock as a result of haemmohrage caused by injuries on two internal organs i.e. heart and lung. The deceased Zulfikar was unarmed at that time. There was no immediate provocation to force A-1 to brutally stab him repeatedly on vital parts of the body causing instant death of a 25 year old young man. After causing fatal blows, A-1 absconded from the spot. He had a motive to initiate the quarrel, because without the complainant's permission, he removed the iron nails causing disruption in the functioning of the machines in the factory. All these facts unmistakably prove A-1's intention to commit murder of the deceased by inflicting bodily injuries sufficient to cause death in the ordinary course of nature. Earlier A-1 was unarmed and when Zulfikar, on reaching the spot enquired the cause of quarrel, he rushed to his shop and brought the sharp edged weapon i.e. churi; it ruled out that the incident occurred 'suddenly' in a fit of rage. The accused acted in a cruel manner and took undue advantage by inflicting repeated stab blows with force without any resistance from the deceased.

32. The law on this aspect has been detailed by the Supreme Court in the judgment 'Bhagwan Bahadure vs. State of Maharashtra‟ (2007) 14 SCC 728 where single blow was considered to prove intention to commit murder as under :

"XXXX XXXX XXXX

Keeping the aforesaid legal principles in view, the factual position is to be examined. It cannot be said as a rule of universal application that whenever one blow is given Section 302 IPC is ruled out. It would depend upon the facts of each case. The weapon used, size of weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered."

33. In another case 'State of Rajasthan vs. Dhool Singh‟ (2004) 12 SCC 546, Supreme Court observed :

"XXXX XXXX XXXX

13. In regard to the finding of the High Court that the prosecution has not even established that the respondent herein had acted with an intention of causing death of the deceased, we must note that the same is based on the fact that the respondent had dealt a single blow which according to the High Court took the act of the respondent totally outside the scope of Exception I to Section 300 IPC. Here again we cannot agree with the finding of the High Court. The number of injuries is irrelevant. It is not always the determining factor in ascertaining the intention. It is the nature of injury, the part of body where it is caused, the weapon used in causing such injury which are the indicators of the fact whether the respondent caused the death of the deceased with an intention of causing death or not. In the instant case it is true that the respondent had dealt one single blow with a sword which is a sharp-edged weapon measuring about 3 ft in length on a vital part of the body, namely, the neck. This act of the respondent though solitary in number had severed sternocleidal muscle, external jugular vein, internal jugular vein and common carotid artery completely leading to almost instantaneous death. Any reasonable person with any stretch of imagination can come to the conclusion that such injury on such a vital part of the body with a sharp-edged weapon would cause death. Such an injury in our opinion not only exhibits the intention of the attacker in causing the death of the victim but

also the knowledge of the attacker as to the likely consequence of such attack which could be none other than causing the death of the victim. The reasoning of the High Court as to the intention and knowledge of the respondent in attacking and causing death of the victim, therefore, is wholly erroneous and cannot be sustained."

(C) Conclusion :

34. In view of the above discussion, we are of the view that the impugned judgment convicting A-2 (Anwar) cannot be sustained and is set aside and his appeal is allowed.

35. Regarding A-1, we find no illegality or irregularity in the impugned judgment the appeal filed by A-1 (Afsar) lacks merit and is dismissed.

36. We are informed that A-1 (Afsar) is absconding and is untraceable. The Registry shall transmit the Trial Court records forthwith to issue coercive process to ensure A-1's arrest to serve the remainder of his sentence.

(S.P.GARG) JUDGE

(S. RAVINDRA BHAT) JUDGE APRIL 20, 2012/tr