Dilshad vs State
2014 Latest Caselaw 3530 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                     Date of Decision: August 05 , 2014

+                        CRL.A. 412/1999
DILSHAD                                                 ..... Appellant
                   Represented by:    Mr. K.B. Andlay, Sr. Adv. instructed
                                      by Mr. M. Shamikh, Adv.

                                      versus

STATE                                                   .... Respondent
                   Represented by:    Ms. Aashaa Tiwari, APP for the State
                                      with Inspector M.C. Pandey, PS
                                      Seelampur.

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1. Dilshad has been held guilty of murder of Mohd.Akram on the strength of statements of eye-witnesses Hazi Hamidar Khan PW-8, Mohd.Iqbal PW-11 and Mohd.Arshad PW-12, recovery of knife, the weapon of offence at his instance and the post-mortem report corroborating the version of the eye-witnesses vide the impugned judgment dated 20th July 20, 1999. Vide order dated July 24, 1999, Dilshad has been directed to undergo imprisonment for life and to pay a fine of `10,000/- and in default of payment of fine, to undergo further rigorous imprisonment for one year.

2. Dilshad assails the conviction on the ground that the witnesses are planted and inimical to him. There is delay in registration of FIR. He was

neither named in the FIR nor arrested at the spot and thus he is entitled to be acquitted. In the alternative, it is contended that at best even believing the prosecution witnesses, the fight took place on the spur of moment and hence offence punishable under Section 304 IPC is only made out.

3. Dilshad had also taken the plea of juvenility claiming that he was below 16 years of age on the date of alleged incident and thus could not be tried by the Court concerned. A report was called from the Medical Board of the AIIMS which opined the age of Dilshad to be between 40-45 years on the date of examination i.e. May 13, 2014. In light of this opinion of the Medical Board, this Court has already held that he was not a juvenile on the date of commission of the offence.

4. The defence of Dilshad is that of denial and false implication. No specific plea has been taken nor any defence evidence led.

5. Shorn of unnecessary details, the prosecution case is that Inspector Bhagwant Singh, SHO, PS Seelampur PW-20 while on patrolling duty at Yamuna Pusta near ISBT Road on May 13, 1993 received a wireless message that an altercation was going on at a place near Jamal Hotel, Chauhan Bangar, Delhi. He reached at the spot where ASI Ishwar Singh PW-13 along with other police officials had already reached. They informed him that one boy had been stabbed and removed to GTB Hospital by ambulance. SI Amar Nath was posted to guard the spot and Inspector Bhagwant Singh went to the hospital. He obtained the MLC of Mohd.Akram declaring him brought dead. He met Mohd.Arshad PW-12 in the hospital and recorded his statement Ex.PW-12/A on the basis of which FIR was registered.

6. Mohd.Arshad stated that he resided at H.No.5412, Kucha Rehman,

Town Hall, Delhi and was a student of 12th standard. His elder brothers Mohd.Akram and Mohd.Aslam PW-5 were doing business of embroidery and sewing at premises bearing No.C-5/1131, Gali No.7, Chauhan Bangar, Delhi under the name and style of S.K.Exports and S.K.Fabrications. They reached the factory premises at about 1.00 PM. 'S' a juvenile, who resided in their neighbourhood and his associate, who also resided in the same street, were present in the factory premise and were beating their employees. Mohd.Imtiaz, the father of 'S' was present in the street. He was having a danda in his hands and was hurling filthy abuses. His brother Akram protested saying that in case Imtiaz had any complaint against his employees, he ought to have brought the matter to his notice. On this, those boys came in the street and alleged that their employee was peeping in their house and encroaching upon their privacy and they will not leave Akram and pounced upon him. Mohd.Imtiaz attacked Akram with Danda. He also exhorted "Maro Sale Ko". On this exhortation, 'S' caught hold of his brother from his hands and his friend stabbed him in his chest. Friend of 'S' was having small moustaches and long hair over his head. He combed his hairs on the back. His height was about 5'8" and his complexion was wheatish. When he tried to overpower the assailant, he wielded a blow on his neck but he turned on one side and saved himself. Thereafter, he ran away with the help of Imtiaz. Imtiaz and his son also ran way from there. His brother walked upto 4-5 paces and fell on the ground. He lifted his brother with the help of employee and tried to remove him on a scooter but his brother fell down before boarding it. He made his brother to board a rickshaw however in the meantime police gypsy followed by an ambulance came. Akram was taken to hospital in the ambulance where Akram was

declared brought dead.

7. Post-mortem of the deceased was got conducted by Dr.N.K.Aggarwal PW-4 who exhibited the report vide Ex.PW-4/A. On external examination of the deceased he found one stab wound of 4 x 1.8 cm into cavity deep which was present over outer middle back of left side of chest, lower angle of the wound was more acute than the upper angle. The wound had gone upwards, inwards lacerating the muscles of sixth and seventh inter costal space in the back and then entered the chest cavity in the post auxiliary line where it entered the left lung on the posterior surface of lower wall making a stab wound 4.2 x 0.5 cm into lung deep and then went obliquely downwards in front and came out from the front of left lung by making an exist of 2.5 x .5 cm. The injury was ante-mortem. Cause of death was shock as a result of haemorrhage produced from injury to left lung. The above injury was sufficient to cause death in the ordinary course of nature. Time since death was about 22 hours.

8. The assailant was later identified to be Dilshad. Thus Dilshad and Mohd.Imtiaz were sent for facing trial. 'S'faced proceedings before the Juvenile Justice Board. The appellant surrendered before the Court on May 22, 1993 and thus after permission from the Court he was formally arrested and police remand taken. He made a disclosure that he could get the knife recovered from a drain at 66 foota road vide Ex.PW-14/A and got the knife recovered from there. During the course of investigation Imtiaz also got recovered the danda. The appeal of Mohd.Imtiaz already stands disposed of vide order dated December 17, 2009. However, since neither the opinion was taken from the doctor whether the injury was possible with the said knife nor the knife was shown to the witnesses to be the one by which injury

was caused in our opinion the recovery of the knife is not connected with the injury caused.

9. Thus the prosecution case rests on the testimony of eye witness PW- 12 Mohd.Arshad and the two other witnesses PW-8 Hazi Hamidar Khan and PW-11 Mohd.Iqbal. Mohd.Arshad had deposed on the lines of his statement on the basis of which FIR was registered. Nothing has been elicited in the cross-examination of Mohd.Arshad. Hazi Hamidar Khan has also deposed that he used to work with Akram as a tailor. He had one more tailor with him and the underwear of the said tailor had fallen in the adjoining house of Mohd.Imtiaz. The said tailor was peeping inside the house of Mohd.Imtiaz to see whether the underwear had fallen down or not. In the meantime, Mohd.Imtiaz came in the factory premises and had altercation with the said tailor. He abused and beat the said person. Thereafter Mohd.Imtiaz left the factory. After some time when Mohd.Akram came and the employees informed him. Mohd.Akram along with 4-5 employees went to the house of Mohd.Imtiaz and asked him as to why he had beaten his employee and he could complain to him if he had any grievance. In the meantime, Mohd.Imtiaz came along with the danda and beat Mohd.Akram. Crowd collected and Dilashad along with the juvenile came there. Mohd. Imtiaz exhorted Mohd.Akram "MARO SALEY KOO" on which Dilshand took out a churi used for gutting goats and gave a blow to Mohd.Akram. Thereafter they all ran away. Even Mohd.Iqbal who had joined the factory as a worker has also deposed on the lines of Mohd.Arshad and Hazi Hamidar Khan.

10. In view of the testimony of the three eye witnesses duly corroborated by the post-mortem report in our opinion the prosecution has proved beyond reasonable doubt the offence of stabbing committed by Dilshad on

exhortation of Mohd.Imtiaz. This brings us to the main question as to whether the offence committed by the appellant falls under Section 302 IPC or 304 IPC. From the facts noted above it is amply clearly that Dilshad came with no premeditation. The verbal altercation took place between Mohd.Imtiaz and Mohd.Akram, the deceased due to one of the tailors peeping in the house of Mohd.Imtiaz. Dilshad reached the spot later and on exhortation gave single knife blow which proved to be fatal. However, the single fatal blow was given on the vital part of the body. Thus the act of Dilshad being on the spur of moment theoffence committed by him is punishable under Section 304 Part-I IPC.

11. Consequently, the conviction of Dilshad is altered to one under Section 304 Part-I IPC. As per the nominal roll Dilshad has already undergone more than 9½ years of imprisonment. We modify the sentence to the period already undergone.

12. Appeal is disposed of.

13. The appellant is already on bail. The bail bond and the surety bond of the appellant stand discharged.

14. TCR be sent back.

(MUKTA GUPTA) JUDGE

(PRADEEP NANDRAJOG) JUDGE AUGUST 05, 2014 'v mittal'