Shabbir @ Neha vs State Govt. Of Nct Of Delhi
2012 Latest Caselaw 4898 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI
+                      Crl. Appeal No. 580/2009

                                         Reserved on: 8th August, 2012
%                                    Date of Decision:22nd August, 2012

SHABBIR @ NEHA                                    ....Petitioner
             Through              Mr. S.B. Dandapani, Advocate.

                       Versus

STATE GOVT. OF NCT OF DELHI             ...Respondent
              Through  Mr. Sanjay Lao, Advocate.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE S.P. GARG

SANJIV KHANNA, J.

Shabbir @ Neha impugns his conviction under Section 302 of the

Indian Penal Code, 1860 („IPC‟, for short) for murder of Atiq, vide

judgment dated 19th February, 2009. By order of sentence dated 21st

February, 2009 the appellant has been sentenced to Rigorous

Imprisonment for life, to pay fine of Rs.5,000/- and, in default of

payment of fine, to undergo further Simple Imprisonment for six

months.

2. The case of the prosecution is that on the night intervening 26/27 th

April, 2004, the deceased Atiq and Babbu at about 10.30 PM had gone

for a walk and had met two eunuchs at the gate of Woodland Park. Atiq

went inside the park with the smaller eunuch and the taller eunuch

followed them. Thereafter there was a quarrel. Babbu saw the quarrel

and called others. Atiq was stabbed. The two eunuchs were apprehended

by the public and Atiq was taken to the hospital where he was declared

brought dead. The names of the said two eunuchs were disclosed as

Shabbir @ Neha, the appellant who has been convicted and Om Prakash

@ Helan who has been acquitted.

3. Death of Atiq, by way of injury caused due to a sharp weapon like

knife, stands proved and established by the MLC of Deen Dayal

Upadhaya Hospital, Harinagar (Ex. BW13/A). As per the MLC, Atiq

was brought to the casualty of the said hospital at 1.20 AM on 27th April,

2004. He was unconscious and not responding. His pulse and blood

pressure were not palpable and recordable. He was declared brought

dead. The MLC records CIW present over abdomen. The body was

packed and sent to the mortuary for post-mortem. The post mortem

report of Atiq Ex. PW13/B records that the deceased had one stab wound

over mid part of left hypochondrium region just below last rib. It

measured 1.8 cm x 1 cm and deep to peritoneal (sic. peritoneum). The

edges were regular. The cause of death was due to hemorrhagic shock

consequent upon rupture of spleen and abdomen followed by stab injury

inflicted by sharp edged weapon (knife). Thus, the homicidal death of

Atiq is established and proved by the said documents i.e. MLC and post-

mortem report, PW13/A and PW13/B respectively.

4. The next question relates to involvement and whether the

appellant had committed the said murder and had caused the stab injury.

Babbu (PW7), in his testimony in court, had stated that he and Atiq had

gone for a walk after meal at about 10.30 PM. Two eunuchs, in female

clothes, were standing near the gate of Woodland Park. Atiq went to

them stating „let us have fun‟. The two eunuchs demanded Rs.100/- but

the amount was finally settled at Rs.80/-. The taller eunuch proposed

that Atiq should take the shorter eunuch. Atiq and the shorter eunuch

went inside the park. The taller eunuch followed them. PW7 remained

outside the gate and did not go inside. Quarrel took place between Atiq

and the eunuchs and they started grappling with each other. The shorter

eunuch ran towards PW7, on which the said witness ran away and met

Feroz Ahmed (PW2), Shahid (PW6) and Anis (PW4) at some distance.

He told them about the quarrel. PW7 Babbu went to call other

colleagues and when he returned, he saw that crowd had gathered at the

gate of the park. The eunuchs had been apprehended by the public.

Atiq had been stabbed and was taken to the hospital where he died.

PW7 Babbu recognized the two eunuchs as Shabbir and Om Prakash.

Shabbir being the present appellant and the taller eunuch.

5. PW-2 - Firoz Ahmed in his statement has stated that on 26th April,

2004, at about 10.30 PM, he along with Anis and Shahid were walking

towards Woodland Park and they reached near taxi stand, when Babbu

came running to them. Babbu informed them that some persons were

assaulting Atiq in Woodland Park, and on their way there, they stumbled

across a tall person near the gate of Woodland Park. The said tall person

was identified by the said witness as Shabbir. There were blood stains

on his clothes. They could hear faint sounds of groaning coming from

Atiq. PW-2 Feroz went into the park where he found Atiq crying. Atiq

was lifted and brought to the gate of the park, where he told Anis that

Shabbir had stabbed him with a knife. Feroz PW-2 and Chottey Master

(sic. Chottey Miyan) took Atiq in a tempo to Aman Hospital, but on

doctor‟s advise, Atiq was then taken to DDU hospital.

6. PW-4 Anis is the brother of Atiq. In his statement, he has stated

that he along with Feroz went to Woodland Park. At the gate of the park

they met Babbu who came running towards them from inside the park.

He told them that two eunuchs were beating Atiq. Feroz PW-2 and Anis

went inside the park. A tall eunuch collided against him. The tall

eunuch was identified as Shabbir. He caught hold of the tall eunuch.

Shahid was also there and helped in apprehending the eunuch. The

clothes of Shabbir were stained with blood. Feroz (PW2) went inside

the park and brought Atiq. Atiq told PW-4 Anis that the tall eunuch had

stabbed him with a knife. In the meanwhile, other persons gathered and

gave beatings to the appellant. Atiq was taken to the hospital and the

appellant was handed over to the police.

7. PW-6 Shahid has similarly stated that he along with Feroz (PW2)

and Anis (PW4) had gone towards the park on 26th April, 2004 at about

9.00 PM. At the gate of the park Babbu met them and told them about

the quarrel. In the meanwhile a eunuch came from inside the park and

collided with Anis. The said eunuch was identified as the appellant

Shabbir. He was overpowered. Feroz (PW2) went inside the park and

brought Atiq on his shoulder. Feroz (PW2) and Chottey then took Atiq

to the hospital.

8. It is noticeable that the statements of Feroz PW-2, Anis PW-4,

Shahid PW-6 and Babbu PW7 on important material aspects are

identical and similar. The said witnesses clearly indicate that on 26th

April, 2004 at night the deceased Atiq and Babbu (PW7) had gone

towards Woodland Park. Babbu (PW7) came running and informed

them that Atiq had been attacked in a quarrel. PW-2, PW-4 and PW-6

(Feroz, Anis and Shahid) came towards the park where they stumbled

across the tall person, i.e. appellant Shabbir, who was caught. PW-2

Feroz went inside the park and brought Atiq out, who was injured having

a stab wound. The appellant was apprehended at the spot itself.

9. PW-2 Feroz in his statement stated that Atiq told Anis (PW4) that

Shabbir had stabbed him with a knife. PW-4 Anis in his statement had

stated that Atiq told him that a tall eunuch, i.e. the appellant, had stabbed

him with a knife. PW-6 Shahid has stated that Atiq had not told him

anything but when he was cross-examined by the counsel for the

appellant - Shabbir, he admitted that the appellant Shabbir was

overpowered and given beating. He further stated that they had given

beatings to the appellant because Feroz (PW2) had told him that he had

stabbed Atiq. Feroz PW-2 was also cross-examined by the learned

Additional Public Prosecutor on certain aspects. However, what is clear

from the statements of PW-2 Feroz and PW-4 Anis is that Atiq had told

PW-4 Anis that he was stabbed by the appellant. The said statement

made by Atiq would constitute dying declaration and has to be given due

weightage.

10. A dying declaration is essentially a statement made by a person as

to the cause of his death and as to the circumstances resulting in his

death. Section 32 of the Evidence Act, 1872 (Evidence Act, for short)

makes a dying declaration admissible in the Court of Law. The said

Section is an exception to the hearsay rule. The principle incorporated in

the Section is based upon the latin doctrine nemo moriturus praesumitur

mentire, i.e., a man will not meet his maker with a lie in his mouth. The

words of a dying man, as observed by Shakespeare, are

"............scarce, they are seldom spent in vain; they breathe the truth

that breathe their words in pain". Section 32 of the Evidence Act makes

a departure from the English Law whether it is essential that the

declarant must have been entertained a settled or hopeless expectation

of death, death being imminent or impending. In India, for a dying

declaration to be admissible, it need not have been made in expectation

of the immediate death (see Sharad Birdhichand Sarda versus State of

Maharashtra, (1984) 4 SCC 116 and the decisions cited therein and

Kans Raj versus State of Punjab and Others, (2000) 5 SCC 207).

11. That apart, we feel the principle of res gestae is equally applicable.

The said principle gets statutory recognition and is admissible in

Evidence Act under Section 6 thereof. The essence of principle of res

gestae in evidence is that the facts though not in issue are so connected

with the facts in issue of the same transaction that they become relevant.

A statement made contemporaneously with the act or immediately after

it and not after much interval of time assures sanctity to the statement

made as there is no possibility of fabrication. Sarkar on Evidence (15th

Edition Reprint 2004 at page 156, 157) has summarized the principle of

res gestae as applicable to India as under:-

"The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" become relevant by itself. This rule is, roughly speaking an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement on fact admissible under Section 6 of the Evidence Act is on account of spontaneity and immediacy of such statement or fact in

relation to the fact in issue. But, it is necessary that such fact or statement must be part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae [Gentela Vijayavardan Rao v. State of A.P., 1996 SC 2791:1996 Cri LJ 4151, 4154].

xxx

These declarations in order that they may be admissible as res gestae, should be contemporaneous or almost contemporaneous with the transaction in issue, i.e. the interval should not be such as to give time or opportunity for fabrication and they should not amount to a mere narrative of a past occurrence. "The declarations are admitted when they appear to have been made under the immediate influence of some principal transaction, relevant to the issue, and are so connected with it as to characterize or explain it. It should appear that they were made without premeditation or artifice, and without a view to the consequences; that they are the spontaneous utterances, the natural result of the act they characterize or elucidate" [Jones Ev Civil, s 344: see Noor Md v Imtiaz, A 1940 O 130]. "The declarations must be calculated to unfold the nature and quality of the facts which they are intended to explain; they must so harmonise with those facts as to form one transaction. There must be a transaction of which they are considered a part; they must be concomitant with the principal act, and so connect with it as to be regarded as the result and consequence of co-existing motives" [Jones, s 348 citing People v. Vernon, 35 Cal 49 and other American cases]. These accompanying facts and constituent incidents, which reveal the true nature of the fact in issue and disclose the motives of the parties or establish their connection with the fact under inquiry, are admitted as res gestae. The history

of the term res gestae was traced by PROF THAYER in 15 Am Law Review, 5, 81 (see Wig s 1767)."

The said doctrine has been applied by the Supreme Court in several

cases including Sukhar versus State of U.P., (1999) 9 SCC 507 and

Gentela Vijayvardhan Rao versus State of A.P., (1996) 6 SCC 431.

12. The motive is also established by the statement of PW7 (Babbu).

13. The presence of the appellant at the spot and his detention and

beating by the public is clearly established by the statement of Feroz

PW-2, Anis PW-4, Shahid PW-6 and Babbu PW-7. We also have on

record the MLC of the appellant Ex. PW-21/J dated 27th April, 2004 at

6.35 AM issued by the DDU Hospital. In the said MLC, it is recorded

that the appellant was brought for medical examination as he was

allegedly beaten by the public, comprising of around 20-25 persons, as

told by the patient himself. He had multiple bruise and abrasions, as

has been noted in the MLC. In his statement under Section 313 of the

Code of Criminal Procedure 1973 (CrPC, for short), the appellant did not

explain or state that his detention had taken place at a different location,

time or place.

14. Learned amicus curiae appearing for the appellant has submitted

that there is no clear evidence that the knife injury was caused by the

appellant, and not by the second accused, who has been acquitted i.e.

Om Prakash @ Helen. He relied upon the statement of PW-7 Babbu,

who in his cross-examination had stated that he had seen the knife in the

hand of the shorter eunuch i.e. Om Prakash @ Helen. At this stage

itself we may note that PW-7 (Babbu) was confronted with his statement

Ex. PW7/DA, wherein he had stated that he had seen the knife in the

hand of shorter eunuch. The aforesaid statement of Babbu PW-7 does

not help the appellant in the present case in view of the dying declaration

made by Atiq to Anis PW4 that the appellant had stabbed him with a

knife. The said aspect has been admitted and accepted by PW-2 Feroz,

and PW-4 Anis in clear and categorical terms. PW-6 Shahid in his

cross-examination on behalf of the appellant had also stated that they

had given beating to the appellant because PW 2 (Feroz) had told him

that the appellant had stabbed Atiq. The trial court in the impugned

decision has doubted the common intention of the other co-accused Om

Prakash @ Helen and his involvement in the offence in spite of the

statement of PW-7 Babbu, which has been referred to and quoted above.

Presence of Om Prakash has not been mentioned by PW-2 Feroz, PW-4

Anis and PW-6 Shahid. PW-7 Babbu in his statement has mentioned

that there were two eunuchs and during the quarrel both of them were

grappling with Atiq. Thereafter, shorter eunuch ran after him and he ran

out of the gate. The shorter eunuch was holding a knife in his hand. The

said eunuch was not seen by Feroz PW2, Anis PW4 and Shahid PW6

immediately thereafter. They did not support the prosecution‟s case

against Om Prakash. PW7 Babbu had not stated that there was blood on

the knife in the hands of Om Prakash. Probably Om Prakash ran away.

The contention/ plea therefore should be rejected.

15. PW-19 SI Udai Singh, the first police officer who reached the spot

has stated that when he reached at Chawla Band, Titarpur, Najafgarh

Road, several persons had collected and two eunuchs Shabbir @ Neha

and Om Prakash @ Helan, were there. They had been caught by the

public and given beating. He was told that both the eunuchs had

assaulted Atiq with knife. But this is incorrect as Atiq had only suffered

one knife stab. He had also stated that both the accused were sent to

DDU Hospital for medical examination but MLC of Om Prakash @

Helen was not placed on record.

16. Learned counsel for the appellant submitted that Feroz PW-2,

Anis PW-4 and Shahid PW-6 were declared hostile and were

cross-examined by learned Additional Public Prosecutor and therefore,

their testimonies were debatable and doubtful. The ld. Counsel

submitted that the benefit of doubt should be given to the

appellant accused. We considered the said contention but do not

find any merit in the said contention. The testimony of Feroz PW-2,

Anis PW-4 and Shahid PW-6 which have been reproduced above, are

truthful and they have not over stated the case. We have not taken into

account the exaggerations and over statements in their statements under

Section 161, which they refused to accept and admit even when cross-

examined by the learned Additional Public Prosecutor. PW-2 Feroz

refused to accept that he had seen the eunuchs assaulting Atiq in the park

and when they tried to run away they were overpowered. In the cross-

examination by the counsel for the appellant, Feroz PW-2 had reiterated

that Atiq had told Anis PW4 at the gate of the park that he had been

stabbed by the tall eunuch i.e. the appellant.

17. Similarly, PW-4 Anis was cross-examined by the Additional

Public Prosecutor. He denied that he had stated to the police that Babbu

had told him that two eunuchs were beating Atiq because he had not

given money to them after having intercourse with them. He had also

denied that he had seen two eunuchs beating Atiq and they tried to run

but were overpowered.

18. PW-6 Shahid, in the cross-examination by the Additional Public

Prosecutor, stated that Babbu did not tell why the quarrel had taken

place and he had not stated to the police that the quarrel had taken place

because Atiq had not paid the eunuchs. He did not state that he had seen

two eunuchs beating Atiq nor had he stated to the police that on seeing

them, the two eunuchs tried to run away and they overpowered both the

eunuchs. The witnesses, it is apparent, were embarrassed, hesitant and

did not want to state that Atiq had sexual intercourse with any eunuch.

19. In fact, if we read the statements of Feroz PW-2, Anis PW-4 and

Shahid PW-6, who were together and had reached the spot immediately

after the occurrence, they are identical on all material aspects. They

have denied the suggestions given by the Additional Public Prosecutor

that they have gone inside the park and that they had seen the eunuchs

beating Atiq on the pavement. Statement of these witnesses cannot be

ignored only on the ground that they were cross-examined by Additional

Public Prosecutor after being declared hostile on certain aspects that may

be relevant as far as accused Om Prakash is concerned but as far as the

appellant herein is concerned, they are speaking in unison and together

in the same voice and are against the appellant as the person responsible

and who had cause the injury resulting in the death of Atiq.

20. Learned counsel for the appellant submitted that the knife as per

the police was recovered on the basis of disclosure statement next day in

the morning i.e. 27th April, 2004. Our attention is drawn to the

testimony of PW19 SI Udai Singh and PW21 Ram chander who was

also the SHO, Khajoori Khas and the Investigating Officer. PW21, Insp.

Ram Chander has stated that both the accused persons had taken them to

the spot and at the instance of Shabbir, the knife was recovered. Earlier

Shabbir had made disclosure statement Ex. PW19/F. PW-19 had stated

that after disclosure statement PW19/F was made by Shabbir, the knife

was recovered. Shabbir has disclosed that he had thrown the weapon of

offence i.e. knife in a „kyari‟ inside the park near western side of

Woodland Park. In the cross-examination he admitted that knife was

lying in the open space below a tree. The pointing memo (Ex. PW19/J)

was prepared on the recovery of the knife. He had also admitted that

they stayed at the spot for about one and a half hour. Arrest of the

appellant was effected on 28th April, 2004.

21. PW-21 Inspector Ram Chander, on the recovery of knife in the

cross-examination had stated that the knife was found hidden in the

hedge along the path which existed in the middle of the park but no site

plan was prepared. He has further stated that Om Prakash had made

disclosure statement at about 9.00 AM in the police station. However, in

spite of disclosure statement of Shabbir, which PW-21 had stated that he

had recorded in his own hand writing in police station, he claimed to

have reached the spot at 9.00 AM.

22. It is apparent that the story propounded and set up by the PW-19

and PW-21, with regard to the disclosure statement and recovery of

knife, is incorrect and wrong. The alleged story of discovery of knife

hidden somewhere is improbable. This is also clear when we examine

the testimony of PW2 (Feroz) who, when cross-examined by the

Additional Public Prosecutor, had stated that the knife was not recovered

on the pointing of the accused. He voluntarily stated that the knife was

lying at the place of occurrence and it was picked up by them and

handed over to the police. However, even if we completely discard the

disclosure statement and recovery of knife pursuant thereto, there is

ample evidence and material to uphold the conviction of the appellant.

23. Learned counsel for the appellant submitted that there is

discrepancy in the statements of PW-2 Feroz, PW-4 Anis and PW-6

Shahid, whether the clothes of the appellant accused were blood stained.

It is also submitted that the statement of PW-6 Shahid does not support

the case of the prosecution that the clothes of the appellant were blood

stained. PW2 in his examination in chief had stated that there were

blood stains on the clothes of the accused i.e. the appellant. In the cross-

examination by the Additional Public Prosecutor, he had also stated that

the accused was wearing Salwar and Jampath and they were taken into

possession by the police. However, he admitted that he would not be able

to identify the clothes which the accused were wearing. This was possible

and not improbable as the statement of PW2 Feroz was being recorded after

nearly one year in February, 2005. He was being truthful. PW-4, Anis also

stated that the clothes of the appellant accused were stained with blood.

However, in the cross-examination, he expressed ignorance and was

confronted with a statement under Section 161 Ex. PW4/A, wherein it is

not recorded or stated that the clothes of Shabbir were stained with

blood. PW-6 Shahid had stated in the cross-examination that he did not

know if there were blood stains on the clothes of Shabbir. PW-7 Babbu

when cross examined on behalf of the appellant - Shabbir, had stated

that he had not seen blood on the clothes of the accused when he had

returned to the spot. Feroz PW-2, Anis PW-4 and Shahid PW-6, have

stated that they were extremely nervous and were taken aback and

shocked by the incident which had taken place resulting in stabbing of

Atiq. PW-6, Shahid stated that he did not know if there were blood stains

on the clothes of the appellant. However, PW-2 was clear and

categorical that there were blood stains on the clothes of Shabbir. PW-2

had further gone to describe clothes worn by the accused as Salwar and

Jampath. The clothes worn by the appellant were seized by the police

vide seizure memo Ex. PW19/J. These clothes were later on sent to

CFSL for scientific analysis. The report submitted by CFSL dated 18th

August, 2004, refers to packet Exhibit marked 4 which contained of one

salwar and jampath. Both of them tested positive for the presence of

blood. The said report has been marked as Ex. PW11/A. However, the

blood group could not be ascertained conclusively. Knife (Ex.

PW12/A) which was recovered was also sent for CFSL examination.

The CFSL report dated 29th October 2004 states that the vest (baniyan)

was examined and compared with the knife under stereomicroscope. It

was observed that the Knife- Ex. Marked as „1‟- could have caused the

cut which was present on the vest. The cut mark on the vest was sharp

in nature and the edge of the knife was also sharp.

24. It is clear from the aforesaid that the examination of PW-2, PW-4,

PW-6 and PW-7 are reliable and trustworthy. Testimony of PW-7

shows and discloses the motive or the cause of the violence i.e. that there

was dispute with regard to payment. The appellant was working as a sex

worker which is clear and also established from the clothes worn by the

appellant which were seized and then sent for examination. PW-7

establishes that there was a fight and a quarrel. This is also confirmed

by the testimonies of PW-2, PW-4 and PW-6 who reached the spot

immediately after Atiq was stabbed. They in unison and in affirmative

have stated that the appellant was trying to run away when he was

caught. PW-2 has stated that the appellant‟s clothes were blood stained.

PW-2 and PW-4 have stated that the Atiq had told PW-4 Anis that the

appellant had stabbed him. PW-6 had also stated that he started beating

the appellant as Feroz PW-2 had told him that the appellant had stabbed

Atiq. The statement made by the deceased Atiq to PW-4 is dying

declaration and is material and relevant. Principle of res gestae also

apply. We may also note that Anis PW-4 was not cross-examined on the

said aspect. The statement of PW2 that Atiq had told him that stab

wound was given by the appellant, i.e. the tall eunuch remained,

unchallenged. The detention, and thereafter the arrest of the appellant

at the spot itself, is also established.

25. Thus, the prosecution has been able to successfully establish chain

of circumstances which clearly point and implicate the appellant and

exclude anyone else from commission of offence. We may note that the

presence of Om Prakash @ Helen has not been doubted by the learned

trial court. Om Prakash has however, been given benefit on the ground

that he did not share common intention with the appellant. In this

regard, the statements made by PW-2, PW-4 and PW-6 can be referred

to and relied upon.

26. In view of the aforesaid position, we do not find any merit in the

present appeal and the conviction and the sentence awarded to the

appellant is confirmed. The appeal is dismissed.

(SANJIV KHANNA) JUDGE

(S. P. GARG) JUDGE August 22, 2012 kkb