Jamir Ahmed @ Jamiruddin vs State
2014 Latest Caselaw 2150 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CRIMINAL APPEAL NO. 367/1998

                                     Reserved on : 28th January, 2014
                                     Date of decision: 30th April, 2014

       JAMIR AHMED @ JAMIRUDDIN                              ..... Appellant

                         Through Mr. A. J. Khan, Advocate.

                         Versus

       STATE                                             ..... Respondent

Through Ms. Rajdipa Behura, APP for the State.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE G.P. MITTAL

SANJIV KHANNA, J. :

Jamir Ahmed @ Jamiruddin has challenged his conviction vide

impugned Judgment dated 29th July, 1998 under Section 302, 452 and 323 of

the Indian Penal Code, 1860 (IPC, for short) by the Additional Sessions

Judge in Sessions Case No. 86/95 arising out of FIR No. 216/1994, Police

Station Jama Masjid. The impugned judgment accepts that the prosecution

has been able to prove that the appellant had stabbed and murdered Mohd.

Asgar on 24th December, 1994 at about 9.30 P.M. in house No. B-42, Gali

Karim Hotel, Matia Mahal, Jama Masjid and had caused injuries to

Khursida, sister of Mohd. Asgar on the same date and time. Appellant had

trespassed into the said dwelling house for the purpose of causing hurt. By

the same impugned judgment, Mohd. Sabir, brother-in-law of the appellant

herein, had been acquitted. State has not preferred any appeal against the

said acquittal. As per the prosecution version, Shah Jahan @ Sajjo was an

equal co-participant, who shared common intention in the said offences.

Shah Jahan, mother-in-law of Mohd. Sabir, has not been arrested and was

declared a Proclaimed Offender (PO).

2. In order to appreciate the prosecution version, undisputed facts may

be noticed. Mohd. Kamil, Akbar Khan and Mohd. Jabbar were three

brothers. Mohd. Kamil had adopted Mohd. Sabir as he did not have any

children. Mohd. Sabir is married to one Noor Jahan, daughter of Shah Jahan

(PO). The appellant-Jamir Ahmed is brother-in-law of Mohd. Sabir.

3. Akbar Khan (PW-12) was residing at house No.42, Gali Kababian,

Jama Masjid along with his seven children, including daughter Khursida

(PW-1), and sons; deceased Mohd. Asgar and Mohd. Aslam (PW-4). There

is dispute whether Mohd. Sabir was also residing at the said property or not,

but as noticed below, the said factual dispute need not be conclusively

answered for decision of the present appeal.

4. There is ample evidence in view of the testimonies of Khursida (PW-

1), her father Akbar Khan (PW-12), Mohd. Aslam (PW-4) and Mohd. Sahid

(PW-10) to show and establish that there were disputes and differences

between Mohd. Sabir and the deceased- Mohd. Asgar and his family on the

entitlement and use of the property No. B-42, Gali Karim Hotel, Jama

Masjid, Matia Mahal, Delhi (the property, for short). Deceased Mohd.

Asgar was to get married in about a month‟s time and he wanted to partition

the said property to make provision for additional accommodation, but this

was not acceptable to Mohd. Sabir. Khursida (PW-1) has deposed that

altercation had taken place between deceased Mohd. Asgar and Mohd. Sabir

and a police report was filed with Police Station Jama Masjid, but the matter

was resolved/compromised with intervention of the family members and

persons from the locality. Noor Jahan, wife of Mohd. Sabir had made a

complaint to the said police station alleging that Mohd. Asgar had outraged

her modesty. Mohd. Aslam (PW-4), brother of the deceased Mohd. Asgar,

has similarly deposed about repeated quarrels between Mohd. Sabir and the

deceased on the issue of partition, raising of the wall, etc. Mohd. Sahid

(PW-10) has equally and affirmatively stated about the tension and quarrel

on the question of partition and division of the house. Akbar Khan (PW-

12), father of the deceased has deposed on identical lines about the quarrel

between the two families, which he had described as a small incident and

had stated that Mohd. Sabir and his wife Noor Jahan had objected to raising

of the wall to divide the house into two portions, etc.

5. Khursida (PW-1), Mohd. Aslam (PW-4), Mohd. Sahid (PW-10) and

Akbar Khan (PW-12) have claimed and deposed that they were present at

the property at the time of occurrence when the appellant along with Mohd.

Sabir and Shah Jahan entered and trespassed into the property. The appellant

inflicted knife blows on Mohd. Asgar at about 9.30 P.M. In the impugned

judgment, the trial court has accepted the presence and eye-witness

testimony of Khursida (PW-1) and the father of deceased Akbar Khan (PW-

12), but has not accepted the testimony of Mohd. Sahid (PW-10), uncle and

Mohd. Aslam (PW-4), brother of Mohd. Asgar, to the effect that they were

eye witnesses to the occurrence. We shall be referring to the reasons given

by the trial court and examine the testimony of the four witnesses, who have

claimed that they were eye witnesses, a position, which is disputed and

under challenge in this appeal.

6. Before we examine their statements, we would like to refer to the

statement of Taj Mohd (PW-5), maternal uncle (mama) of the deceased,

who was residing in the neighbourhood. He has deposed that on 24 th

December, 1994 at about 9.45 to 10 P.M. he was present in his house B-29,

Duzana House, Bazar Matia Mahal, Jama Masjid, when children of his

locality informed him that his nephew Mohd. Asgar has been stabbed. He

reached Irwin Hospital and found that Mohd. Asgar had suffered stab

injuries and the doctor had declared him brought dead. He identified the

dead body. In the cross-examination, PW-5 deposed that when he had

reached the hospital, his nephew was still alive and had spoken to him. The

police arrived after the death of Mohd. Asgar. Dr. Ravi Preet Singh (PW-

25) had examined the deceased Mohd. Asgar in Irwin Hospital on 24th

December, 1994 at 10.15 P.M. vide MLC marked Exhibit PW-25/A. He has

deposed that on 24th December, 1993, he had examined one patient Mohd.

Ajwar (sic Asgar) Khan with alleged history of assault by knife by "Lachi".

On examination, he noticed lacerated wounds on the left shoulder, left leg,

right hip joint and two lacerated wounds on the left elbow. The patient was

admitted for surgical emergency and kept under observations. He has also

proved MLC prepared/written by Dr. Rakesh Dogra for Khursida (PW-1).

The said doctor had left the services of the hospital and the MLC of PW-1

was marked PW-25/B. The deposition of PW-25 in respect of PW-25/A

remained unchallenged in the cross-examination. In the MLC (Exhibit PW-

25/B), it stands recorded that Khursida (PW-1) herself had informed about

history. It is not disputed and under-challenge that the appellant-Mohd.

Jamir Ahmed is also known as "Lachi", a fact deposed to by Khursida (PW-

1) and Mohd Aslam (PW-4). Thus, the MLC (Exhibit PW-25/A) specifically

records that the patient was brought by Taj Mohd. (PW-5). Dr. Ravi Preet

Singh (PW-25) was informed that the patient had been assaulted by knife by

Lachi. The patient i.e. Mohd. Asgar expired on 24th December, 1994 at

10.50 P.M. The MLC of Khursida (PW-1) records alleged history of assault

by someone known to her. The MLC records the date and hour of arrival of

Khursida (PW-1) on 24th December, 1994 at 10.15 P.M. and that she was

declared unfit for statement at 11.46 P.M. Subsequently, she was

discharged after observation on 25th December, 1994. She had simple

injuries. It is, therefore, clear that the appellant had been named as the

perpetrator, who had caused the injuries on Mohd. Asgar immediately after

the occurrence and when the patient was taken to the hospital at 10.15 P.M.

Khursida (PW-1) had also suffered injuries though simple in nature and was

taken to the same hospital at about the same time. Khursida (PW-1) is an

injured witness.

7. Presence of Khursida (PW-1) at the time of occurrence, we feel

should be accepted. She has deposed that at that time she was watching

television when the appellant along with Mohd. Sabir and Sajjo entered their

house and exhorted. The appellant gave knife blows and repeatedly stabbed

Mohd. Asgar. PW-1 tried to save Mohd. Asgar but Sajjo had pushed her

aside, due to which she fell down and became unconscious. Mohd. Asgar

was bleeding and blood was oozing from his body and was taken to Irwin

Hospital. PW-1 was also taken to Irwin Hospital in unconscious state but

regained consciousness after about half an hour. Later on PW-1 came to

know that Mohd. Asgar was declared as brought dead. We do not think

there is anything, which creates debate or doubt about her version as to the

occurrence and that the appellant had caused injuries to Mohd. Asgar. As

noticed above PW1 is an injured eye-witness.

8. Similarly, we are inclined to accept the testimony of Akbar Khan

(PW-12), the father of the deceased and Khursida (PW-1). PW-12 has

deposed that appellant-Jamir, Sajjo and Sabir had suddenly barged into the

house. Upon entering, Mohd. Sabir caught hold of Mohd. Asgar and the

appellant had given knife blows and stabbed him on abdomen, chest, hip,

etc. Khursida (PW-1) rushed to rescue Mohd. Asgar but Sajjo had pushed

her and she fell down. Thereafter, he, Mohd. Aslam and Mohd. Sahid

rushed to save Mohd. Asgar but the appellant and others ran away from the

spot. Mohd. Aslam, Mohd. Sahid along with other residents had taken

Mohd. Asgar to Irwin Hospital. Mohd. Asgar was profusely bleeding from

the injuries sustained by him. He died in the hospital after being examined

by the doctors. Khursida (PW-1) was also rushed to the hospital by Taj

Mohd.

9. Learned counsel for the appellant, drew our attention to the site plan

marked (Exhibit PW-15/A) and submitted that there are discrepancies in the

statements of PWs-1 and 12 and the occurrence could not have been seen by

the said witnesses. It was highlighted that blood at point „C‟ as per Exhibit

PW-15/A was at a distance and in cemented gallery, whereas the alleged

occurrence was in the room. We have considered the said contention but do

not find any merit in the same. Blood is also shown at point „A‟ where the

occurrence had taken place as well as at point „C‟, that is the cemented

passage. The site plan clearly indicates the place from where Mohd. Akbar

Khan (PW-12), Mohd. Aslam and Mohd. Sahid had witnessed the

occurrence. Mere fact that Mohd. Akbar Khan (PW-12) had not suffered

any injury, does not mean that he was not present at the spot on 24th

December, 1994 at about 9 to 9.30 P.M. It was his own house. It is also

apparent that Khursida (PW-1) had immediately rushed to protest/save,

when the occurrence took place and knife blows or stab wounds were given

to Mohd. Asgar. We have noticed the injuries suffered by Mohd. Asgar,

which indicate that there were a number of knife blows and not one. The

property in occupation was a small one with the open area in the middle. It

consisted of one room in front, open courtyard and a veranda on the back

side with two cots. It would have taken only a few seconds to move from

one end to other.

10. Trial court has disbelieved presence of Mohd. Aslam (PW-4) and

Mohd. Sahid (PW-10) at the spot and has observed that they probably

reached the spot after the occurrence for the following reasons: They had not

suffered any injuries and had allowed the appellant and others to run away

from the spot. PWs-4 and 10 were not able to point out how many blows

were given. PW-4 had stated that he was sitting in the interior room of the

house. In the cross-examination he had stated that he was sitting in the

interior room of the house and saw his sister was lying unconscious when he

came out of the room on hearing cries. PW-4 has deposed that his sister

Khursida had told him in detail about the incident, which shows that he may

not have witnessed the actual incidence himself. Clothes of PWs-4 and 10

were not blood stained and both of them had not got the deceased and the

Khursida admitted to the hospital. Inspector Chander Kant (PW-26) had

stated that he had not observed blood stains on the clothes of PWs-4 and 10.

Their clothes if blood stained should have been seized by the police. PW-10

had deposed that Mohd. Asgar had narrated the incident to him, which

almost certainly points to the assertion that PW-10 himself had not

witnessed the occurrence. There were contradictions in the testimony of

PW-10. Mohd. Aslam (PW-4) had deposed that Mohd Sahid and he took

Mohd. Asgar and Khurshida (PW-1) to the hospital, but this was not correct

as per the MLC PW25/A and PW25/B of Mohd. Asgar and Khurshida

respectively.

11. We have considered the said reasoning and examined depositions of

PWs-4 and 10. We have reservations on the reasoning given by the trial

court but it appears that PWs-4 and 10 were in the house and had rushed to

the room where the occurrence had taken place within seconds after the first

stab wound was given. We do not think the failure of the police to collect

the blood stained clothes of PWs-4 and 10 should be read as a ground to

disbelieve their version that they were present in the house. PW-4 has

deposed that he was sitting in the interior room of the house and in fact the

main entrance was not visible from the place where he was sitting and her

sister Khursida was sitting at a place near the entrance door. On hearing

cries, he came out of the room and Mohd. Sahid (PW-10) followed him. He

had rushed Mohd. Asgar along with Mohd. Sahid to the hospital. 30 to 40

people had assembled at the spot. His clothes and that of his uncle (PW-10)

had become blood stained but he did not remember whether they were

seized by the police. The fact that his sister Khursida (PW-1) had told him

details of the incident once she regained consciousness is not a ground to

disbelieve the testimony of PW-4. Even if PW-4 was an eye witness along

with PW-1, the latter could have reiterated and narrated the incident. The

two MLCs (Exhibits PW-25/A and B) record presence of Taj Mohd as the

relative or friend, who had brought the injured PW-1 and deceased-Mohd.

Asgar, but this does not mean that others had not come to the hospital. It is

not mandatory and required that presence of all persons, who had come to

the hospital, or brought the deceased or injured person, should be recorded.

Taj Mohd. (PW-5) in his deposition has affirmed that he had reached the

hospital after being informed that his nephew Mohd. Asgar had been

stabbed by some children of his locality. He did not claim or state that he

had taken Mohd. Asgar to the hospital. Mohd. Sahid (PW-10) has deposed

on more or less on similar lines and identically. He has stated that he and

his brother-in-law were sitting in the inner room and in the first room

Khursida (PW-1) and the nephew Aslam were sitting. There are no material

contradictions in the testimonies as noticed and also elucidated below.

12. On the question of blood, which was splashed over in the house in

question, i.e. house No. 42, Gali Karim Hotel Wali, Matia Mahal, Jama

Masjid, we have evidence that the place was cleaned in form of testimony of

Akbar Khan (PW12), who has stated that Noorjahan wife of accused-Mohd.

Sabir had washed out the floor of the house where blood was lying. Mohd.

Shahid (PW-10) had also proved the seizure memo (Exhibit PW-10/A) dated

25th December, 1994 prepared by Inspector Chander Kant (PW-26). As per

the seizure memo, police had taken into possession, evidence from the place

of occurrence in the form of cutting a corner of the blood stained wooden

table, blood stained wrapper of „Dove Beauty Bar‟soap lying on the floor,

blood stained pieces of floor after dismantling/cutting the same and piece of

floor as earth control sample by cutting/dismantling the same. Blood was

detected on the wood piece, the soap bar and small chips of cement material

but could not be detected on earth control. CFSL report (Exhibit PX) also

records that the earth sample and small piece of cemented material were

similar to each other in respect of general physical characteristics and

density gradient distribution of particles. The blood on the pieces of wood

and wrapper of the soap were found to be of Group „B‟, which matches with

the blood group of the deceased as per serological report (Exhibit PY) on the

basis of blood group on the shirt, sweater, pants, etc. However, blood group

on blood stained earth could not be ascertained because of no reaction.

Photographs of the crime spot marked Exhibit P-2/1 to P-2/6 were taken by

Satya Prakash (PW-2). The blood, which had fallen on floor and other areas

has been indicated in the said photographs.

13. We have also referred to the MLC of Mohd. Asgar and Khurshida

(Exhibits PW-20/A and 20/B) respectively. The post-mortem report of

Mohd. Asgar (Exhibit PW-20/A) was proved by Dr. Basant Lal Sarohiwal

(PW-24). He had conducted the post-mortem on dead body of Mohd. Asgar

and had found four incised stab wounds; first on the chest cavity deep on the

right side of the chest measuring 2.5 x 0.8 cm and the second stab wound

2.6 x 1.2 cm on the outer back of the left elbow perforating the skin and

muscle underneath. The third incised stab wound 1.8 x 0.8 x 2.5 cm on the

upper outer side of the right thigh, back aspect and the fourth incised wound

1.4 x 0.6 x1.8 cm on the middle front of left arm. In addition, Mohd. Asgar

had two abrasions on the lower front of right knee and on the left chest. The

injuries were ante mortem and recent. The four stab wounds were caused by

a single edged sharp cutting and stabbing weapon. Injury No. 1, it was

opined, was sufficient to cause death in the ordinary course of nature.

14. In view of the aforesaid position, the medical evidence and the MLCs

(Exhibits PW-20/A and 20/B) and the post-mortem report (Exhibit PW-

24/A) corroborate and affirm the ocular evidence of the eye witnesses.

15. Inspector Chander Kant (PW-26), who was also the Investigating

Officer, has not contradicted any of the witnesses and has stated that he had

reached JPN Hospital where ASI Udai Veer Singh (PW-18) was already

present and had already obtained the MLC of both the injured.

Subsequently, Mohd. Asgar expired and Khurshida, the doctors opined, was

unfit for making any statement. PW-26 recorded the statement of Mohd.

Akbar Khan (PW-12), father of the deceased (Exhibit PW-12/A), made

endorsement (Exhibit PW-6/A) and sent the rukka for registration of the

case though Const. Ram Prakash was handed over a sealed parcel containing

underwear, vest, pant, shirt and sweater of the deceased-Asgar into

possession. He then went to the spot of crime and got the place of

occurrence photographed. The Crime team was summoned by him but,

they could not lift any chance prints. He had taken into possession samples

of the soap wrapper, piece of the wooden table, etc. Subsequently, at about

2 to 2.15 P.M. on 25th December, 1994, he arrested Mohd. Sabir, who, as

noted above, has been acquitted. The accused/appellant Jamiruddin,

however, was arrested only on 13th January, 1995 at about 6 P.M. outside

the office of Deputy Commissioner of Police (Central), when he was going

to appear before him. The weapon of offence, however, could not be

recovered, but this, to us, is immaterial noticing the fact that there was a

long delay since the occurrence in question happened on 24 th December,

1994 and the accused/appellant was arrested on 13 th January, 1995. In the

cross-examination, he has stated that he had gone to the house of Sajjo(PO),

mother of the present appellant, who is since absconding. At that time, there

was nobody in the house.

16. ASI Udai Veer Singh (PW-18) has deposed identically and that he

was handed over copy of DD No. 22A (Exhibit PW-9/A) which was

recorded at 10.10 P.M. ASI Uday Veer Singh (PW18) along with Const.

Ram Prakash went to the spot and came to know that occurrence had taken

place in house No. 42 and not in 43 and also the factum that the injured has

been removed to J.P.N. Hospital. He then went to house No. 42 and came to

know that the appellant Jamir Ahmed, and Mohd. Sabir (who has been

acquitted) and Sajjo had stabbed Mohd. Ashraf (Asgar). He did not find

any eye-witness there and he along with Ct. Ram Prakash left for the J.P.N.

Hospital. MLC of Ashraf (Asgar) and injured Khurshida were obtained.

Ashraf (Asgar) had expired and Khurshida was declared unfit to make

statement. Insp. Chanderkant along with other police officers reached the

hospital and handed over the MLCs to him i.e. PW18. In the meanwhile,

copy of DD entry No. 41B (Ex. PW18/A) was received in the hospital.

Mohd. Akbar Khan‟s statement marked PW12/A was recorded by Insp.

Chanderkant (PW26) in the presence of PW18. Rukka was sent after

making endorsement through Const. Ram Prakash for recording FIR. Insp.

Chanderkant along with others including PW18 then went to the spot where

further proceedings were conducted. Mohd. Sabir was arrested from his

house No. 1154, Churiwalan Matiya Mahal, Jama Masjid and interrogated.

PW18 had stated in his cross-examiantion that the Investigating Officer had

not got the place of occurrence photographed in his presence. He has also

stated that crime team had not reached the spot though they had been

summoned. He had not made enquiries from Taj Mohd. in the hospital and

only later on came to know that Taj Mohd. had got the injured admitted to

the hospital. He testified that except for Mohd. Akbar and Taj Mohd. he had

not come across any other eye witness. He left after handing over the

investigation of the case to Insp. Chanderkant. He visited the spot for the

second time at 12.45 AM and subsequently again at 3.15 AM. Blood was

lifted from three places from the corridor (gali) and the compound of the

Katra. PW18 also deposed that the blood was lifted from outside the house

No. 42 at different places. Mohd. Sabir, who has been acquitted, was taken

to the hospital for medical examination as he had also suffered injuries. He

was arrested from house No. 1154 from the first floor of the double storey

house.

17. ASI Udai Veer (PW18) had described Mohd. Akbar (PW12) and Taj

Mohd. (PW5) as eye-witnesses. However, Taj Mohd. was not an eye-

witness. Aforesaid statement of ASI Udai Veer Singh (PW18), we do not

think is a good ground or reason to disbelieve the ocular testimony of

Khurshida (PW1), Mohd. Shahid (PW10) and Mohd. Aslam (PW4). It is

apparent from the testimony of PW18 ASI Udai Veer Singh that he was

constantly on move. Further, he was not present when the crime team

visited the spot, and evidence/material from the place of occurrence was

lifted. Moreover, his testimony was recorded on 20th March, 1997 nearly

two and a half years after the occurrence on 24th December, 1994.

18. Const. Ram Prakash (PW6) who was with ASI Udai Veer (PW18),

stated that when they visited the spot they came to know that the injured

Mohd. Asgar‟s condition was serious as he had suffered knife blows and had

been taken to Irwin Hospital. He along with ASI Yudhvir Singh rushed to

the hospital and in the meanwhile Insp. Chanderkant, Addl. SHO reached

there. Statement of Mohd. Akbar was recorded and after the endorsement

was made rukka was given to him for registration of the FIR. He had taken

the rukka (PW6/A) from the hospital to the police station.

19. Looking at the nature of the stab wounds which were on the hand,

back side as well as front, it is apparent that there was a scuffle and the

deceased Mohd. Asgar had resisted the attempt/attack. It would have taken

some time for the appellant to inflict the stab incise wounds which were four

in number. The fact that there were four incised wounds, is indicative that

the occurrence did not take place in split seconds but comparatively and

slightly a longer time. It must also be noted that for a person in the back

room of the same property to walk across required taking 10-20 steps to

reach the place where there was actual occurrence took place. Therefore, as

long as we are satisfied that Mohd. Aslam (PW4) and Mohd Shahid (PW10)

were present in the house of occurrence; it would be unrealistic and wrong

not to accept their testimonies that the appellant was the perpetrator who had

inflicted the knife blows. Although, it is possible that initially all the knife

blows would not have been given in their presence and by the time they

reached, the appellant was already in the process of fleeing from the spot.

Therefore, the statements of Mohd. Aslam (PW4) and Mohd. Shahid

(PW10) should not be completely disregarded or overthrown as unreliable

and untrustworthy. Their versions can be relied upon subject to certain

amount of discounting on account of exaggerations that they were present

when the first stab wound was inflicted. The said discounting perhaps is

necessitated due to the fact that both Mohd. Aslam (PW4) and Mohd.

Shahid (PW10) did not move forward to resist or apprehend the appellant,

rather the said step was taken by Khurshida (PW1). Testimonies of Mohd.

Aslam (PW4) and Mohd. Shahid (PW10) can be relied upon only to a

limited extent i.e. they reached the spot possibly upon the last wound being

inflicted and they managed to see the appellant fleeing from the spot. The

version that they reached the very spot in the house where the offence had

occurred within a short time and they noticed that the appellant had fled and

were aware that the appellant had earlier entered the property is truthful and

creditworthy.

20. As already stated above, the question/issue whether Mohd. Sabir was

residing in the same property i.e. property No. 42 Gali Karim Wali, Jama

Masjid, Delhi is superfluous and inconsequential. Jamir Ahmed @

Jamiruddin, the appellant herein, it is accepted, was not residing in the

property. Mohd. Sabir by the impugned judgment has been acquitted. Thus,

the contention that Khurshida (PW1) has vacillated after initially stating that

her taya Mohd. Kamil (who had adopted Mohd. Sabir) was residing in the

same property, is inconsequential. The issue in question is whether the

appellant had come to the place of occurrence on 24 th December, 1994 at

about 9/9.30 PM and had inflicted stab wounds on the deceased Mohd.

Asgar. Khursida (PW-1) it is apparent got confused on the said aspect. The

appellant-Jamir Ahmed in his statement under Section 313 Cr.P.C. had

accepted police version and evidence that Akbar Khan (PW-12) was

residing in house No. 42, Gali Kababian, Jama Masjid, Delhi and also the

fact that Mohd. Kamil was residing in the same property prior to the

incident. He also accepted that Mohd. Sahid (PW10), was residing at B-29,

Duzana House, Jama Masjid, Matia Mahal, Delhi. Statement of Mohd.

Sabir under Section 313 Cr.P.C., who has been acquitted by the trial court, is

to the same effect.

21. We do not agree with the counsel for the appellant that the

prosecution version and the testimonies of Khurshida (PW1), Akbar Khan

(PW12) and of Mohd. Aslam (PW4) and Mohd. Shahid (PW10) should be

disbelieved as the neighbours and other public persons who possibly may

have seen the occurrence were not cited as witnesses and their testimonies

were not recorded. The reasons being that the actual stabbing occurrence

had taken place in a residential house thus, the possibility of neighbours or

third persons being present was ruled out, unless for fortuitous reasons a

neighbour etc. happened to be present. Even if the occurrence had taken

place in the courtyard, chances of a third person or neighbour being present

at that time, was rather faint and improbable. The neighbours and others

who had come to the place of occurrence thereafter, cannot be treated as eye

witnesses. The Trial Court has rejected the similar plea for identical reasons

and has noted that the occurrence had taken place on a winter night. The

Trial Court has further recorded that people by and large do not like to

interfere in the internal affairs of others especially when there is a quarrel

among family members. No one in the neighbourhood would like to be

involved in an internal family dispute or could have perceived that violence

of the present nature i.e. murder would/could take place. Actual stabbing

may have lasted a minute or slightly less or more, but this time span could

not have been sufficient for the neighbours to come to the spot and witness

the occurrence.

22. Judicial pronouncements are lucid and clear that statements of

relatives of the deceased cannot be disbelieved as such or on the ground that

they are not independent witnesses. The testimonies of the relatives have to

be scrutinized and examined with a degree of care and caution to ensure that

there is no exaggeration or occasion to rope in family members or others

who were not the actual perpetrators. Normally, family members would not

try to implicate a third person to save the actual perpetrator unless there are

grounds and reasons to hold the contrary. Having carefully examined the

testimonies, we are satisfied that the appellant was the perpetrator. The

appellant was named at the very first opportunity i.e. the MLC (Ex.

PW25/A) which was recorded immediately after the occurrence. False

implication of the appellant is ruled out.

23. In view of the aforesaid discussion, we do not find any merit in the

present appeal and the same is dismissed. Order of conviction under

Sections 302, 323 and 452 IPC and sentence are affirmed and upheld. The

appellant was released on bail pursuant to suspension of sentence in this

appeal vide order dated 17th November, 1999. He shall surrender within a

period of one month from today to undergo the remaining sentence. The

appeal is disposed of.

(SANJIV KHANNA) JUDGE

(G.P. MITTAL) JUDGE April 30th, 2014 VKR/kkb