Delhi High Court

Imran vs State on 19 October, 2012

Author: Sanjiv Khanna

19 $~
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Date of decision: 19th October, 2012

%                  CRIMINAL APPEAL NO. 488/2011



      IMRAN                                           ..... Appellant
                         Through:       Mr. S.B.Dandapani, Advocate.

                               versus

      STATE                                           ... Respondent
                         Through:       Ms. Richa Sharma, APP.

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

SANJIV KHANNA, J. (ORAL)

1. Imran has filed this appeal impugning judgment dated

25.05.2009, passed by Additional Sessions Judge, convicting him for

murder of Ravi u/s 302 read with Section 34 of the Indian Penal Code,

1860 (IPC). The appellant has also been convicted u/s 307/34 IPC for

having attempted to cause murder of Jagdish who has appeared as PW-

2. The appellant has been, by order of sentence dated 27.05.2009,

sentenced to life imprisonment for the offence u/s 302 IPC with fine of

Rs.30,000/-. In default of payment of fine, he has to undergo S.I for

a period of one year. For the offence u/s 307 IPC, the appellant

has been sentenced to R.I of ten years and fine of Rs.20,000/-.

In default of payment of fine he has to undergo S.I for six

months. The fine, if recovered, has to be paid as compensation to the

dependents of deceased Ravi and injured Jagdish, in equal proportion.

2. We have heard Mr. S.B. Dandapani, Advocate who has appeared

as amicus curiae in this appeal. He has submitted that the impugned

judgment suffers from various infirmities. Firstly, injured Jagdish

(PW-2) was not an eye witness as he did not see who actually gave the

alleged fatal blow/injuries, to the deceased Ravi. Secondly, there is no

evidence to establish common intention u/s 34 IPC. Thirdly, he argued

that Jagdish (PW-2) and the deceased Ravi, both had consumed alcohol

and probably this led to a sudden quarrel, causing injuries. Lastly, no

motive has been established and the alleged motive, referred to in the

impugned judgment, is weak for conviction.

3. At the outset, it is to be noticed that other two co-

accused,namely, Abhishek and Niranjan are juveniles and are being

tried before the Juvenile Justice Board, in accordance with the

provisions of the Juvenile Justice (Care and Protection of Children)

Act, 2000. The appellant Imran alone was tried before the Additional

Sessions Judge and has been convicted by the impugned decision.

4. It has been proved by Dr. K.K.Banerjee (PW-20) who conducted

Ravi‟s post mortem, beyond doubt, that he had a homicidal death, Dr.

V.K.Jain (PW-22) proved medical examination of the deceased Ravi

vide MLC Exhibit PW-22/A. Dr. D. Mohanty (PW-25) gave his

opinion before operation. Ravi, aged about 20 years, was brought to

G.T.B hospital, Delhi at about 9.25 P.M. and was examined by Dr.

S.K. Gupta who had written the said MLC. The MLC (Ex. PW-22/A)

records that Ravi had four injuries, including incised wound on the left

lung, left chest and left abdomen. There was an injury on the left

forearm also. These injuries were caused by a sharp weapon. Smell of

alcohol was present. Ravi was referred for surgery and for further

management and opinion. Dr. S.K.Gupta had left the services of the

hospital and the MLC, including the handwriting of Dr. S.K.Gupta,

were proved by Dr. V.K.Jain (PW-22). The Post Mortem Report (Ex.

PW-20/A) records that Ravi had bled profusely, due to the stab wound

on the left lumber region. Packing of the wound was done but Ravi

expired, at around 11 P.M. on 26th October 2005 on the operation

theatre table, before any surgery could be conducted. The cause of

death, as recorded in the Post Mortem Report, is shock due to ante

mortem injuries to major blood vessels and internal organs, caused by

a pointed single edged weapon. Injury No.5, it has been opined, was

sufficient to cause death in ordinary course of nature. The post mortem

was conducted on 27.10.2005 at 12.10 P.M.

5. The prosecution primarily relies upon the statement of the

injured witness Jagdish (PW-2). PW-2 has averred that he was a friend

of Ravi and they used to sell toys, together, on a patri shop. Four to

five days before Diwali, one Niranjan had come to their shop and had

picked up a toy. When Niranjan was asked to pay for the toy, he had

threatened them that they did not know him and he would teach them a

lesson. He asked, both of them, to not to meddle with him, broke the

toy and went away. Next day, Jagdish and Ravi, at about 11.30 A.M.,

started for village Farukh Nagar to purchase crackers and reached there

at about 2.30/3.00 P.M. Around 8.30 P.M., the two were returning to

Chamunda Mandir, without purchasing crackers. On Jail Road, at the

corner of Harsh Vihar, near the kiosk „pan‟ shop, the appellant, along

with Niranjan and Abhishek, was standing. Three of them approached

Jagdish and Ravi and Niranjan, in a threatening manner questioned

them why they had asked for the cost of the toy. Niranjan took out an

iron gupti and attacked Ravi. Ravi and Jagdish tried to save

themselves. A scuffle followed. Abhishek took out a churra and the

appellant Imran took out a button operated knife. The three attacked

them and, as a result, both of them received injuries. Jagdish fell down

on the spot and became unconscious. Ravi tried to escape but the

appellant Imran and others started chasing him. PW-2 saw the three,

chasing Ravi before he became unconscious. PW-2 regained

consciousness after four days, in G.T.B hospital, where he came to

know that Ravi had died. PW-2‟s relatives met him and the police

recorded his statement.

6. Next month, on the 14th day, the police came to his house and

asked him to join investigation and, despite his serious condition, he

agreed. The appellant Imran and the other two accused, Niranjan and

Abhishek were found standing on a vacant plot and, on seeing them,

the three accused started running. The police apprehended them, after

a chase to some distance. PW-2 identified the three assailants who had

caused injuries to him and Ravi, on the date of the incident.

Thereafter, he came back to his house.

7. The Additional Public Prosecutor examined PW-2 on certain

aspects. In the examination by the APP, PW-2 admitted that Niranjan

had taken the toy forcibly, from the shop, on 25.10.2005 and the

stabbing incident had occurred on 26.10.2005. He admitted that he

knew the appellants Imran, Abhishek and Niranjan from before. He

accepted the position that the three appellants, including Imran, were

apprehended not in front of a vacant plot but a plot which was not

properly constructed. PW-2 further clarified that he had tried to run, to

save himself, but he fell down at some distance, on a slab in front of a

shop, while the deceased Ravi ran towards Subhash Kansal Marg. He

stated that the appellant Imran had chased him and Ravi with an

intention to kill them. The place of occurrence was inspected by the

police, in his presence, on 2.01.2006. He submitted that, in the earlier

portion of his statement-in-chief, he has not stated these facts as he

was an illiterate. On further examination, PW-2 stated that Niranjan

had taken out a gupti from his possession and had attacked him and

Ravi. Both of them started running. Thereafter, the appellant Imran

took out a knife and Abhishek took out a churri and the two were

attacked, repeatedly.

8. PW-2 was cross examined at length but no facts came forth

which could cast doubt on his testimony. In the cross examination,

PW-2 accepted that his statement was recorded, on several occasions,

by the police. He admitted that there was a case, u/s 304 IPC, pending

in the Karkardooma Courts, against him. Some minor contradictions

in the statements made by PW-2, u/s 161, were put to him, in the cross

examination, but these do not materially effect the credibility or

truthfulness of his statement. PW-2 has stated that Ravi was wearing a

pant and shirt at the time of the incident but he did not remember the

colour. PW-2 was wearing blue colour jeans and T-shirt but he did

not remember the colour of his T- shirt. He recollected that the police

apprehended the three assailants, at about 10 A.M, but not the day on

which arrest was made or names of the police officers who were with

him. He could only reveal that there were shops near the place of

occurrence, including residential houses and rehriwalas and

khomchawalas were standing there. It was a crowded area but there

was no street light. However, there was light from the shops, as well

as, the khomchawalas. Ravi was about 5 steps ahead of him, when

PW-2 fell down. No grappling took place amongst the three accused

and them, before the incident. He denied the suggestion that the

appellant Imran had not caused any injury to him or Ravi. He denied

that Imran was on his duty somewhere else, at the time of the incident,

and had been falsely implicated. He voluntarily stated that on seeing

the incident of stabbing, the public started running away. He admitted

that there was a police booth, near the corner towards Harsh Vihar, Jail

Road but the said booth was established about 1 or 1-1/2 years back

and was not there on the date of the occurrence. After the arrest of the

appellant, PW-2 was brought to his house by SI Ajay Singh Negi (PW-

26), one of the police officers. Two more police officers were with

him. He denied a suggestion that the accused were not arrested in his

presence.

9. In the impugned judgment, the trial court has doubted the arrest

of the appellant and the recovery of the knife, thereafter. We agree

with the findings recorded by the trial court. SI Ajay Singh Negi (PW-

26) has testified that, on 14.11.2005, at about 9.00-9.15 P.M, a secret

informer revealed that three accused were seen in Nand Nagiri area and

could be found in the appellant Imran‟s relative house. D.D entry

Ex.18/A was recorded and a raiding team was formed. After making

recce of the area, they went to PW-2‟s residence and requested him to

join the investigation. Thereafter, they returned and the injured PW-2

was shown the accused, from an open window. PW-26 knocked on the

house door and when the door was opened, the three assailants,

including the appellant Imran, were apprehended. PW-2 identified

Imran by his name. They also interrogated Niranjan and Abhishek,

who were arrested. Disclosure statements were recorded and, on the

basis of disclosure statement (Ex. PW-11/D), the appellant Imran took

out a button actuated knife from the tand of the house. He took out

one pant of saleti colour along with a shirt of white colour. PW-26 has

stated that both the knife and the clothes were blood stained. H.C.

Sohanbir (PW-21), allegedly part of the raiding team, could not state

number of storeys of the house but stated that the house was

constructed in an area of 25 sq.yds. He did not remember number of

rooms in the house or whether any family members were present at the

spot. Similarly, Const. Ramesh Kumar (PW-17) has averred that the

button actuated knife was recovered from the tand of the house.

Clothes were recovered too. He joined investigation, at 9.25 P.M.

from the police post, and they raided the house of PW-2, appellant‟s,

maternal uncle at 10.00 P.M. He has stated that SI Ajay Singh Negi

(PW-26) had got the door opened and, on interrogation, the appellant

told them about the knife and clothes. He did not remember who took

out the knife from the tand. Similarly, ASI Jagbir Singh (PW-11) has

stated that the police team had reached the house of Imran‟s maternal

uncle, at 10.00 P.M. 6-7 persons were present, including Imran‟s

uncle, his aunt and 4-5 children. The knife was recovered from a tand,

at the instance of the appellant Imran.

10. The Trial Court has rightly pointed out that while PW-2 had

stated that they entered the house in Sunder Nagri at 10 A.M., the

entire police team has stated that they reached the spot at 10 P.M.

Some police witnesses stated that the knife was recovered from the

tand on the pointing out of the accused. However, Const. Ramesh

Kumar (PW-17) has stated that the knife was wrapped in a cloth and

was found when they searched the house. He did not remember who

had taken out the knife from the tand. It was noticed that H.C.

Sohanvir (PW-21) did not know, whether the house, in question, was

single or double storeyed and was fully constructed or partially

constructed. As noticed above, PW-2 has stated that the house was not

fully constructed. The Trial Court has further recorded that public

witnesses were not joined. However, this by itself, does not mean that

we cannot rely upon the oral statement of Jagdish (PW-2), regarding

the actual incident which resulted in injuries caused to him and led to

Ravi‟s death. PW-2‟s statement is corroborated by the medical

evidence relating to the deceased Ravi, which has been placed on

record, in the form of MLC (Ex. PW-22/A), the Post Mortem Report

(Ex. PW-20/A) and the Death Report (Ex. 24/F). Medical evidence

regarding injuries suffered by PW-2 also corroborates, his statement.

11. Mohanlal (PW-1), deceased Ravi‟s father, stated that in the

night, intervening 26th /27th October 2005, he was on duty at Old Delhi

Railway Station, as a booking clerk. He received a telephone call that

some boys had injured his son Ravi and his friend Jagdish and they

were admitted in G.T.B hospital. When he reached the hospital, his

son had expired and Jagdish was admitted in the ICU. He identified

the dead body of his son, preserved in the mortuary, vide memo

Ex.PW-1/A. Naresh (PW-3), Jagdish‟s brother, has stated that, at

about 9 P.M on 26.10.2005, he came to know that Jagdish and his

friend Ravi were lying injured, on the corner of Bhopura Theka, Jail

Road. He informed the PCR, called an ambulance and reached Jail

Road. When he reached there, he found Jagdish lying unconscious.

Ravi was lying at 23 ft road. PCR Van took Ravi to the hospital and

Jagdish was taken in CAT ambulance to GTB Hospital. When PW-3

reached the Emergency Ward Room of G.T.B Hospital, Jagdish and

Ravi were unconscious. Police also met him in the hospital. Ravi

expired in the hospital on the same night. Thereafter, police brought

him to the crime spot, where the blood was still lying, and

investigation was conducted. ASI Jalbir Singh (PW-11) has stated that,

on receipt of DD Entry 24, he, along with Constable Arjun, reached the

crime spot but found that the injured had been taken to the hospital.

They went to G.T.B hospital and collected the MLC of Ravi. He was

later a party to the raiding team which arrested the assailants. In the

cross-examination, he has stated that no eye witness could be found, at

the spot. He collected the MLC of the injured Jagdish (PW-2). The

injured PW-2, as well as, Ravi were declared unfit for statement, when

he had visited the hospital. Const.Manoj (PW-13) avers that, on

26.10.2006 at 09.30 P.M., while patrolling they reached at Subhash

Kansal Marg, Gali No.2, Harsh Vihar and found blood spots there. On

verification, PW-13 came to know that one Ravi had been stabbed.

From the spot, blood and earth sample were lifted and sealed.

Const.Arjun (PW-14) has stated that, at about 09.05 P.M., DD No.24

was received by ASI Jalbir and thereafter, both of them went to Jail

Road, Bhopura Theka, Harsh Vihar and found the blood lying. On

inquiry, they came to know that two persons had been stabbed and one

injured was taken by PCR van while other injured was taken by CAT

ambulance. The injured were Jagdish and Ravi. Photographer took

pictures of the crime spot from different angles. Blood and blood

control earth was lifted and sealed for forensic examination. Later on,

they came to know that Ravi had expired and post-mortem of the dead

body was conducted. ASI Maha Singh (PW-15) has stated that he was

in charge of PCR Van No.14 and, on 26.10.2005 at about 09.00 P.M.,

he reached the site in question and from there had taken a boy, named

Ravi, in injured condition to GTB Hospital. SI Mukesh Kumar Jain

(PW-23) is a draftman who had visited the spot and, after taking

measurement, prepared rough notes of the spot. The scaled site plan

(Ex.PW-23/A) was prepared by him. In the cross-examination, he has

stated that he prepared site plan with the directions of public witness

Jagdish (PW-2). SI Ajay Singh Negi (PW-26), incharge of PP Harsh

Vihar, PS Nand Nagri, was on patrolling duty. He reached the spot and

found that Const. Arjun (PW-14) was present. Blood was lying on the

slab of the shop at Amar Hardware, Bhopur Road, Jail Road Corner,

Harsh Vihar, Delhi. He was informed by Const. Arjun (PW-14) that an

injured had been removed to the Hospital and that there was another

injured lying at Subhash Marg, outside Gents Beauty Parlour. He

reached and noticed that blood, in substantial quantity, was spread, in

front of Gents Beauty Parlour, on the road. Const. Manoj (PW-13)

informed that injured had been removed to the hospital in a PCR van.

Later on, an old man named Satpal came and informed that the names

of the two injured were Jagdish and Ravi. The crime team reached

there, inspected the spot, and took photographs. PW-26 went to the

GTB Hospital and met Naresh (PW-3) brother of injured Jagdish (PW-

2). The injured were under treatment and MLC had already been

collected by ASI Jalbir (PW-11). PW-26 came back to the spot for

inspection where blood and earth control sample were sealed, for

chemical examination. After Ravi expired, Section 302 was added to

the FIR and investigation was conducted by Insp.Veer Singh Tyagi

(PW-24), SHO, PS Nand Nagri and SI Ajay Singh Negi (PW-26)

assisted him in the investigation. On 30th Oct 2005, he along with PW-

24 went to GTB Hospital and recorded the statement of Jagdish (PW-

2), who was by then declared fit for statement. PW-2 named Niranjan,

Abhishek and Imran as the assailants. Thereafter, attempts were made

to arrest the assailants. They were later on arrested.

12. We have already referred to the statement of Dr. K.K.Banerjee

(PW-20) who conducted the post-mortem on Ravi‟s body. He had

seven ante mortem injuries and injuries No.4 and No.5 were stabbed

injuries, caused by sharp edge weapon. He has stated that injury No.5

was sufficient to cause death in the ordinary course of nature and when

shown the weapon of offence i.e. button dar knife, he further deposed

that injuries No.4 and 5 were possibly caused by sharp edge weapon.

13. Injuries, as recorded in the Post Mortem Report, are as under :

" Ante mortem injuries :

1. Abrasion 4x3 cm reddish present over tip of left shoulder.

2. Abrasion 2x1.5 cm reddish present over front of left shoulder.

3. Incised would 3 cm x 0.5 cm x 2 cm with one angle more acute than the other, muscle deep present over the outer aspect of L upper arm oblignely placed 19 cm below the tip of L shoulder and 10 cm above the tip of L elbow.

4. Stab wound 1 cm x 0.5 x 2 cm present on the outer aspect of L side of chest 6.5 cm below the L posterior ancillary fold, 22.5 cm above the L anterior sngrerior iliac spine on the posterior ancillary line directed upward muscle deep, one end is acute and other end blunt.

5. Stab would 3.5 cm x 1 cm x cavity deep present on the outer aspect of back of lower part of L side of abdomen 8 cm lateral to the mid line, 2 cm below the L costal margin, the lower angle was acute and the upper angle was blunt being wedge shaped, on probing the would was directed inwards and upwards into the abdominal cavity. On opening the abdomen the would was found to have cut

tangentially the posterior surface of L kidney, the blood vessels around L kidney and abdominal position. The length of the track was 12 cm.

6. Incised wound 2.5 cm x 0.5 cm x S.C tissue deep present on back of L forearm 7.5 below tip of L elbow, 16.5 cm above the L wrist.

7. Small abrasions, reddish present over knuckles and middle fingers."

14. Dr. V.K. Jain (PW-22) has proved the MLC Ex. PW-22/A. He

has, as noticed above, referred to the injuries suffered by the deceased,

and as recorded in the MLC Ex. PW-22/A, which are:

1. Incised wound 3x1 cm left loin

2. Left forearm 4x1 cm

3. Left chest third intercostals space 3 cm

4. Left abdomen 6x4 cm

15. Jagdish (PW-2), the injured witness, had suffered extensive

injuries too. His MLC (Ex.PW-12/A) shows that he had deep

penetrating wound of 4 cm length on left lumber region; 3 cm

penetrating wound on mid sternal region; 3 cm penetrating wound on

right hypocondrial; 2 cm deep penetrating wound of 1.5 cm on mid

sterna region.

16. The MLC mentions that PW-2 smelled of alcohol but this does

not justify the nature and extent of injuries suffered by the deceased

Ravi and PW-2. These injuries cannot be caused by one single edged

weapon as these are large in number and several injuries are grievous

and serious in nature. PW-2, the injured witness, is clear and

categorical that the three assailants including Imran, who had knife,

Gupti and chhura with them, had attacked him and then he saw them

attacking Ravi. Both of them tried to run away. In the process, he fell

down outside a shop, on the floor. At that time, he saw Imran and

others chasing the deceased Ravi. He had indicated the reason or

motive for the occurrence, as earlier i.e. one day before, Niranjan had

come to their shop, on the patri near Chamunda Mandir, Bhopura theka

Moad, Delhi and there was an altercation between them since Niranjan

wanted to take away a toy, without paying. At that time, Niranjan had

threatened them that he would see them and they do not know what he

could do and they should not make up any quarrel or protest or

question his action. It is further apparent that the appellant was one of

the persons who had attacked both, PW-2 and the deceased Ravi.

Statement of injured witness is entitled to considerable weight and is

generally considered to be reliable. The injuries suffered by witness

PW-2 shows that there is a guarantee of his presence, at the crime spot

and that he and the deceased were unprepared when the assailants

attacked them. In the facts, it is not possible to hold that the injured

witness PW-2 would falsely implicate the appellant. In „In Abdul

Saeed vs. State of M.P.‟ 290 (10) SCC 259, in which several decisions

have been referred to, it has been held that:

"26. 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 and Ors. v. State of Bihar : AIR 1972 SC 2593; Malkhan Singh and Anr. v. State of Uttar Pradesh : AIR 1975 SC 12; Machhi Singh and Ors. v. State of Punjab : AIR 1983 SC 957; Appabhai and Anr. v. State of Gujarat : AIR 1988 SC 696; Bonkya alias Bharat Shivaji Mane and Ors. v. State of Maharashtra : (1995) 6 SCC 447; Bhag Singh and Ors. (supra); Mohar and Anr. v. State of Uttar Pradesh : (2002) 7 SCC 606; Dinesh Kumar v. State of Rajasthan : (2008) 8 SCC 270; Vishnu and Ors. v. State of Rajasthan(2009) 10 SCC 477; Annareddy Sambasiva Reddy and Ors. v. State of Andhra Pradesh AIR 2009 SC 2261; Balraje alias Trimbak v. State of Maharashtra : (2010) 6 SCC

673).

27. While deciding this issue, a similar view was taken in, Jarnail Singh v. State of Punjab : (2009) 9 SCC 719, 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:

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: 1994 Supp (3) SCC 235, 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.

In State of U.P. v. Kishan Chand: (2004) 7 SCC 629, 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 (2006) 12 SCC 459). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.

28. The law on the point can be summarized 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 in-built 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."

17. Dr. D. Mohanti (PW-25), GTB Hospital, Lecturer in Department

of Surgery had examined and operated on PW-2. The operative

findings were laceration over the right lobe of liver, perforation over

anterior wall of stomach, perforation of transverse colon, with

hemoperitoneum.

18. We may note that the MLC Ex. PW-12/A mentions that injuries

were caused by sharp edged weapon and it is also recorded that the

nature of injuries suffered were grievous. In view of the injuries

suffered by PW-2 (Jagdish), we are satisfied that the Trial Court has

rightly recorded the findings that offence under Section 307 IPC have

been established and made out.

19. Keeping in view the nature and extent of injuries suffered by