Delhi High Court
Abdul Wasim @ Majnu vs State on 29 August, 2014
Author: Pradeep Nandrajog
$~9 to 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: August 29, 2014
+ CRL.A. 79/2012
ABDUL WASIM @ MAJNU ..... Appellant
Represented by: Mr.Jatin Rajput, Advocate
versus
STATE ..... Respondent
Represented by: Mr.Varun Goswami, APP
Insp.Ashok Kumar, P.S. I.P.Estate
CRL.A. 315/2012
NURUDDIN @ BUNDUL ..... Appellant
Represented by: Mr.Avninder Singh, Advocate
versus
STATE (GOVT OF NCT) DELHI ..... Respondent
Represented by: Mr.Varun Goswami, APP
Insp.Ashok Kumar, P.S. I.P.Estate
CRL.A. 772/2014
VIKRANT @ CHELA ..... Appellant
Represented by: Ms.Inderjeet Sidhu, Advocate with
Ms.Priyanka Jaiswal, Advocate
versus
STATE ..... Respondent
Represented by: Mr.Varun Goswami, APP
Insp.Ashok Kumar, P.S. I.P.Estate
Crl.A.No.79/2012 & conn.matters Page 1 of 9
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J. (Oral)
Crl.M.A.No.10032/2014 in Crl.A.No.772/2014
Delay of 1025 days in filing Crl.A.No.772/2014 is condoned for the
reason appellant thereof has been convicted for an offence punishable under
Section 302/34 IPC and has been sentenced to undergo imprisonment for
life.
Crl.M.B.No.1077/2014 in Crl.A.No.315/2012
Crl.M.B.No.9945/2014 in Crl.A.No.772/2014
Since learned counsel for the parties in all the three appeals and
learned counsel for the State say that the appeals may be heard today itself,
which we do, the two applications which seek suspension of sentence
pending final hearing of the two appeals are dismissed.
Crl.A.Nos.79/2012, 315/2012 & 772/2014
1. Abdul Wasim appellant in Crl.A.No.79/2012 has been produced in
Court today by the Superintendent Central Jail Tihar pursuant to the
production warrants issued in terms of the order dated August 19, 2014. His
presence was required in Court because counsel engaged by him was not
appearing on the dates fixed. On August 19, 2014, applications seeking
suspension of sentence filed by co-convicts in Crl.A.No.315/2012 and
Crl.A.No.772/2014 were listed and after hearing learned counsel for the two
appellants on said date we had thought it proper to dispose of the appeals
themselves, but were handicapped on account of counsel for Abdul Wasim
not appearing.
2. Since counsel for Abdul Wasim appears today, and along with co-
counsel in the other two connected appeals has argued on behalf of Abdul
Wasim, we proceed to judgment.
3. The success or failure would depend, as learned counsel for the
appellants and the State concede, on an appreciation of the testimony of
Nadeem PW-1 and Mohd.Salim PW-2, the two stated eye witnesses to the
incident in which deceased Mohd.Wasim, son of Mohd.Salim and brother of
Nadeem died.
4. The site plan to scale Ex.PW-19/A would guide us that Mohd.Wasim
was stabbed at the crossing of Mata Sunderi Road and Meer Dard Road.
5. DD 27, Ex.PW-12/A would evidence that information pertaining to
the crime was conveyed by the police control room to PS IP Estate at 5:05 in
the evening of September 22, 2009 when an unknown caller rang up the
number 100 to inform of a person being stabbed on the crossing of Mata
Sunderi Road and Meer Dard Road.
6. Testimony of ASI Yashpal Singh PW-12 tells us that he was entrusted
with a copy of DD No.27 at 5:10 in the evening and accompanied by HC
Naresh PW-11 he reached the crossing only to learn that the injured had
been taken to Lok Nayak Jai Prakash Hospital. The testimony of
Insp.Naresh Khanka PW-20 tells us that he was patrolling in the area when
through wireless he received a message in the evening of September 22,
2009 that a person was lying unconscious at Meer Dard Road crossing and
he too reached the place where he met ASI Yashpal Singh and HC Naresh.
The testimony of ASI Yashpal Singh, HC Naresh and Insp.Naresh Khanka
tell us that leaving behind HC Naresh at the spot, ASI Yashpal Singh and
Insp.Naresh Khanka proceeded to Lok Nayak Jai Prakash Hospital where
they learnt that a boy named Wasim was admitted in the casualty at 5:12 PM
as recorded in the MLC Ex.PW-5/A of Wasim by Dr.Hitkishore and after
primary medicine was referred to the emergency surgery department of the
hospital. Mohd.Nadeem son of Mohd.Salim, as noted in the MLC was the
person who had brought Wasim to the casualty. They learnt that Wasim had
died by the time he was brought in the emergency surgery wing of the
hospital. The testimony of ASI Yashpal and Insp.Naresh Khanka further
tells us that Nadeem's statement Ex.PW-1/A was recorded by Insp.Naresh
Khanka. He made the endorsement Ex.PW-20/A beneath the statement and
dispatched the same from the hospital at 7:00 PM for FIR Ex.PW-16/B to be
registered for an offence punishable under Section 302/34 IPC.
7. None of the witnesses have been cross examined with respect to the
time 5:05 PM noted in DD No.27, 5:12 PM noted in the MLC and 7:00 PM
on Ex.PW-20/A. No witness has been cross examined on the claim of ASI
Yashpal Singh and Insp.Naresh Khanka that Mohd.Nadeem met them at the
hospital. Mohd.Nadeem's claim that he took his brother to the hospital has
not been challenged.
8. Thus, there is no scope for any argument that Mohd.Nadeem was
planted. From the fact that the crime was reported to the police control
room at about 5:00 PM and by 5:12 PM Mohd.Nadeem had removed his
brother to Lok Nayak Jai Prakash Hospital, which is hardly 2 kilometers
from the place of the crime the only inference possible is that Nadeem was
present at the spot where his brother suffered the injuries.
9. We look to what Nadeem said to Insp.Naresh Khanka and as recorded
in his statement Ex.PW-1/A. The statement is in vernacular and loosely
translated it reads:-
"I reside at C-4A/558 LNJP Colony, Ranjeet Singh Marg. I am
a painter by profession. Today I accompanied my father to
purchase house-hold goods and when at around 5:00 PM we
reached the crossing of Mata Sunderi Road and Meer Dard
Road, from the side of Kale Khan Masjid adjoining the old
grave yard, we saw my brother Mohd.Wasim running on the
road chased by Bundul, Chela @ Vikrant and Majnu who were
residents of the Basti Takiya Kale Khan and were known to
him, because his brother had a fight with them in the past.(i)
Chela @ Vikrant managed to catch my brother.(ii) He took out
a knife from his pocket.(iii) He handed over the knife to Bundul
and exhorted to finish off his brother.(iv) Bundul stabbed his
brother, who in spite of receiving injuries continued to run.(v)
Majnu kicked and gave fist blows to his brother. He and his
father ran to save Mohd.Wasim who fell on the road. The three
assailants ran away. His father flagged down a three wheeler
scooter and both of them took the injured to the hospital."
(NB: We have put serial No.(i) to (v) and underline five sentences in
the statement of Mohd.Nadeem for facility of reference and discussion
hereinafter.)
10. Examined as PW-1 Nadeem, albeit with the usual change of
expressions and different choice of words, which is natural when a person
recapitulates an event after a few months, has deposed in sync with his
narrative made soon after the incident to Insp.Naresh Khanka. His father
Mohd.Salim PW-2 has also deposed in sync.
11. Learned counsel for the appellants do not dispute that the two
witnesses have successfully withstood the test of cross-examination.
12. Thus, the incident seen by Nadeem and Mohd.Salim, contours
whereof are in Nadeem's statement Ex.PW-1/A is established.
13. A word of explanation. Chela @ Vikrant - is Vikrant the appellant
of Crl.A.No.772/2014, Bundul referred to in Nadeem's statement Ex.PW-
1/A is Nuruddin - the appellant of Crl.A.No.315/2012. Majnu is Abdul
Wasim - the appellant of Crl.A.No.79/2012.
14. From the statement Ex.PW-1/A of Nadeem, which found its reflection
in his and his father's testimony in Court, the following emerges:-
(a) Deceased Mohd.Wasim was running and was being chased by
Vikrant, Nuruddin and Abdul Wasim when Nadeem and his father
Mohd.Salim captured the incident.
(b) During the chase neither pursuer was having a knife in his hand.
(c) Vikrant was the first one to out-pace Mohd.Wasim and caught him.
(d) Thereafter Vikrant took out a knife and gave it to Nuruddin, exhorting
simultaneously that Mohd.Wasim should be finished.
(e) Handed over the knife and excited by the exhortation, Nuruddin
stabbed Mohd.Wasim.
(f) In spite of being stabbed Mohd.Wasim managed to break free but
could hardly run a yard or two before Abdul Wasim could catch up to him
and inflict fist blows and kicked him.
15. Now, what triggered the chase is not known. It could be a verbal
altercation. It could be that Vikrant, Nuruddin and Abdul Wasim saw
Mohd.Wasim and because of past animosity with him, decided on the spur
of the moment to teach him a lesson. Mohd.Wasim ran for his life. Vikrant,
Nuruddin and Abdul Wasim in hot pursuit.
16. But, from the fact that when the chase was on, neither accused had a
knife in his hand and that when Vikrant managed to catch hold of
Mohd.Wasim he took out the knife from his pant pocket, we get a clue : it
cannot be said that while chasing the deceased the three accused had any
definite intention to cause injuries with a knife to the deceased, much less to
kill him. In the absence of any other evidence, from the mere fact that the
three accused chased the deceased and during the chase neither accused had
a knife in the hand, no common intention can be attributed to either accused
to cause injury to the deceased with a knife or to kill him.
17. It is true that a common intention can spring at the spur of the
moment, but for which percipient facts must be seen by the Courts, to infer
one.
18. The events after Vikrant managed to catch Mohd.Wasim are, he
taking out a knife and handing over the same to Nuruddin exhorting that
Mohd.Wasim should be finished off. Nuruddin to whom the knife was
handed over by Vikrant inflicted the stab wounds. As the injured
Mohd.Wasim made a last attempt to run free, Abdul Wasim kicked him and
inflicted fist blows.
19. The common intention which has surfaced is only that of Nuruddin
and Vikrant. The offending act constituting the crime of homicide was
committed by the joint venture of Nuruddin and Vikrant in which
Mohd.Wasim had no role. It is only thereafter his intervention commenced
when he kicked and inflicted fist blows on the deceased.
20. From the evidence on record it would be difficult to infer any
common intention attributable to Abdul Wasim. As regards Nuruddin and
Vikrant, from their acts and words spoken, a common intention springing at
the spur of the moment can be inferred. The common intention being to
inflict injuries on the deceased with the knife handed over by Vikrant to
Nuruddin.
21. The post mortem report Ex.PW-7/A of Mohd.Wasim shows that he
had one incised wound on the right side of the neck and three stab wounds,
two on the right side of the chest and one in the abdomen. The two stab
wounds on the chest traversed the thoracic cavity and the third stab wound
traversed the peritoneal cavity, perforating the mesenteric border of jejunem
and root of mesentry. The intestines came protruding out. It was the third
stab injury which proved fatal due to haemorrhagic shock consequent to
excessive sudden loss of blood. It was opined as being sufficient in the
ordinary course to cause death.
22. Nuruddin and Vikrant have to be held liable for their acts. Stabbing a
person twice in the chest and once in the stomach with a knife having blade
length 10.5 cm and a handle of 13.5 cm (which is as per sketch of the knife
Ex.PW-10/E got recovered by Nuruddin and was opined to be capable of
inflicting the injuries on the person of the deceased) requires intention to be
imputed to those who caused the injury to inflict such injuries as they knew
would result in the death of the injured. Their acts constitute the offence of
murder.
23. As regards Abdul Wasim he cannot be fastened with liability under
Section 34 IPC for the acts of Nuruddin and Vikrant. He having inflicted
fist blows and kicks on the deceased after the deceased was stabbed would
render him liable to be convicted for the offence punishable under Section
323 IPC.
24. We dismiss Crl.A.No.315/2012 filed by Nuruddin and
Crl.A.No.772/2014 filed by Vikrant.
25. We dispose of Crl.A.No.79/2012 filed by Abdul Wasim setting aside
his conviction for the offence of murdering Mohd.Wasim. We set aside the
sentence imposed upon him to undergo imprisonment for life. We hold him
guilty of causing simple injuries to Mohd.Wasim, an offence punishable
under Section 323 IPC for which the maximum sentence can be
imprisonment for one year. We note that Abdul Wasim is in custody for
more than three years and thus we direct that unless wanted in any other
case he should be set free forthwith.
26. TCR be returned.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
AUGUST 29, 2014
mamta
