Dilshad Khan vs State Nct Of Delhi
2014 Latest Caselaw 861 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Judgment reserved on: 11.02.2014
                                                 Date of Decision: 17.02.2014
+                                CRL.A. 846/2013


HAMEED KHAN                                                    ..... Appellant
                                 Through:    Mr. Riaz Mohd, Adv
                                        versus
STATE NCT OF DELHI                                             ..... Respondent
                                 Through:    Mr. Feroz Khan Ghazi, APP for
                                 State
+                                CRL.A. 991/2013


NAUSHAD @ SONU                                                 ..... Appellant
                                 Through:    Mr. Riaz Mohd, Adv.
                                        versus
STATE NCT OF DELHI                                             ..... Respondent
                                 Through:    Mr. Feroz Khan Ghazi, APP for
                                             State
+                                CRL.A. 1162/2013
DILSHAD KHAN                                                   ..... Appellant
                                 Through:    Mr. Riaz Mohd, Adv.
                                        versus
STATE NCT OF DELHI                                             ..... Respondent
                                 Through:    Mr. Feroz Khan Ghazi, APP for
                                             State
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN


Crl.Appeal No 846, 991, 1162 of 2013                               Page 1 of 19
                                        JUDGMENT

V.K.JAIN, J.

On 02.09.2008, at about 4.56 PM, Police Station Seema Puri

received information with respect to quarrel and injury near fish market.

The information was recorded vide DD No. 65B and its copy was handed

over to ASI Harbhajan for necessary action. On receipt of the information,

the aforesaid police officer reached the place of incident, opposite Khan

Tailor near police booth, New Seema Puri. He found lot of blood on the

road. The injured had already been taken to Guru Teg Bahadur Hospital by

Police Control Room official. On reaching the hospital, the police officer

obtained MLC of the injured Rajiv and Babar. Rajiv was unfit for

statement, whereas Babar was fit for making a statement. In his statement,

Babar Khan told the police officer that on the aforesaid date, he was

purchasing fruit in New Seema Puri Market, whereas his brother Rajiv was

parking his auto-rickshaw on the side of the road. The auto rickshaw of his

brother accidentally hit a bicycle which led to a scuffle between his brother

Rajiv and one Dilshad who was present on the shop of Khan Tailor at that

time. He further stated that when he intervened, Naushad, brother of

Dilshad, came out of the shop of Khan Tailor with a knife (Chhura) in his

hand, whereas his father Hamid came out with a scissor in his hand.

Hamid handed over the scissor to Dilshad. Naushad gave a blow at the

neck of Rajiv using the knife for the purpose, whereas Dilshad struck his

brother with the scissor he was carrying. He further stated that Hamid

while handing over the scissor to Dilshad had asked him to kill them. He

also claimed that when he tried to save his brother, Dilshad gave scissor

blow on his back as a result of which he also sustained injures. Rajiv

succumbed to his injures on the same date.

2. This is also the case of the prosecution that on receipt of a secret

information that Hamid was present on the roundabout of old Seema Puri,

police officers reached there and apprehended him at 9.00 PM. Dilshad,

son of Hamid, reached the police station on the same date in injured

condition and was arrested. The scissor used in causing injuries to Rajiv

and Babar is alleged to have been got recovered by the appellant Dilshad

from the roof of his house.

3. On 03.11.2008, information was received at Police Station Seema

Puri with respect to arrest of Naushad in the jurisdiction of Police Station

Krishna Nagar under Section 41 of the Code of Civil Procedure. He was

arrested in this case and his police remand was taken. During the course of

investigation, he got recovered a knife (chhura) lying in rags near Shalimar

Bagh Garden drain and the aforesaid knife was seized after it had been

duly sealed.

4. After completion of investigation, all the three accused, i.e., Hamid,

Naushad, Dilshad were charge-sheeted under Section 302 of IPC read with

Section 34 thereof. Since the appellants are pleaded not guilty to the

charges against them as many as 21 witnesses were examined by the

prosecution to prove its case. One witness was examined in defence.

5. Vide impugned judgment dated 24.05.2013 and Order on Sentence

dated 28.05.2013, all the three appellants were convicted under Section

304 (Part I) as well as under Section 308 of IPC read with Section 34

thereof. The appellants Dilshad and Naushad were sentenced to undergo

RI for eight years each and to pay a fine of Rs 50,000/- or to undergo RI

for two years each in default under Section 304 (Part-I). The appellant

Hamid was sentenced to undergo RI for seven years and to pay a fine of Rs

40,000/- or to undergo RI for 1 ½ years in default under Section 304 (Part-

I) of IPC. The appellants Dilshad and Naushad were sentenced to undergo

RI for six years each and to pay a fine of Rs 30,000/- each or to undergo RI

for two years each under Section 308 IPC. The appellant Hamid was

sentenced to undergo RI for five years and to pay a fine of Rs 25,000/- or

to undergo RI for 1 ½ years in default under Section 308 of IPC. Being

aggrieved from their conviction and sentence awarded to them, the

appellants are before this Court by way of these appeals.

6. PW-1 Babar is the star witness of this case, he being the only eye-

witness. He stated that on 02.09.2008, he along with his family members

had gone to meet his uncle at New Seema Puri. At about 4.30 PM, he went

to fruit market to purchase fruit so as to break the fast he was observing

during Ramzan. His brother Rajiv Khan also came there in three-wheeler.

When his brother was parking the three-wheeler on a side in front of Khan

Tailor, his auto-rickshaw hit a cycle, which fell on the ground. This led to

grappling between his brother Rajiv and the appellant Dilshad who had

come from inside the shop of Khan Tailors. According to the witness he

tried to intervene, but in the meanwhile Naushad, brother of Dilshad, came

out of the shop with a knife in his hand, whereas his father came out with a

scissor in his hand. Hamid handed over the scissor to Dilshad. Naushad

stabbed his brother with the knife, on his neck, whereas Dilshad stabbed

him on his head with scissor. He also claimed at the time of handing over

the scissor to Dilshad, Hamid was exhorting his sons to kill them. He

further stated that when he tried to save his brother, Dilshad stabbed him

on the back near his neck and below his armpit, using the scissor for the

purpose. When the witness was examined in Court, he also showed his

injury marks to the learned Trial Judge. The witness identified all the three

appellants who are present in the Court.

7. PW-3 Chaudhary Nawab is the uncle of PW-1 Babar. He stated that

on 02.09.2008, he had accompanied the Investigating Officer and the

appellant Dilshad to the house of Dilshad bearing No.F-237, New Seema

Puri. They went to the roof of the second floor, where Dilshad took out a

scissor lying near boundary of the water tank and handed over the same to

the IO, who prepared its sketch and seized it after it was duly sealed. He

also identified the scissor Ex.PW-1/Article 1 which he claimed to have

been found on the roof of the house of the appellants. PW-14 Constable

Naveen Kumar deposed with respect to the appellant Dilshad taking them

to the upper floor of house No.F-237, New Seema Puri, picking up the

scissor, lying near water tank and handing it over to the IO of the case.

PW-17 Inspector Pankaj Sharma deposed with respect to the disclosure

statement Ex.PW-17/A-2 made by the appellant Dilshad while in police

custody and recovery of scissor Ex.PW-1/Article 1 from the third floor

terrace of house No. F-237, New Seema Puri, at his instance.

PW-18 Inspector Netra Pal Singh deposed with respect to the formal

arrest of the appellant Nausahd in this case and recovery of one Chhura

Ex.PW-1/D-1 at his instance from near Shalimar Garden drain, Sahibabad,

U.P.

PW9 Dr. Sumit Tellewar, who conducted postmortem on the dead

body of deceased Rajiv Khan noticed the following wounds on the dead

body:

"1. Incised stabbed wound measuring 3.3 cm X 0.5 cm present over the left temporal scalp, 4 cm above left ear and 6.5 cm above left eyebrow (outer end), its anterior angle is blunt and posterior angle is acute, track of the wound goes slightly inwards and downwards cutting the soft tissues of the scalp to a depth of 4.2 cm.

2. Lacerated wound measuring 4.3 cm X 0.4 cm bone deep present over the left frontal scalp, its lower end is 6.5 cm above lateral end of left eyebrow and upper end is 3 cm from midline, margins are contused.

3. Lacerated wound measuring 2 cm x 0.3 cm x bone deep present on the left parietal scalp, is lateral end is 8.5 cm above left ear and upper medial end is 3 cm from midline, margins are contused.

4. Lacerated wound measuring 5.4 cm x 0.3 cm x bone deep present on the posterior parietal scalp, its left end is 10 cm medial to left ear and right end is 13.5 cm from right ear.

5. Lacerated wound measuring 5.2 cm x 0.3 cm x bone deep present on the left occipital scalp, 9.5 cm behind left ear and 3 cm

6. Reddish abrasion 0.5 cm x 0.3 cm present on left forehead, 2 cm above mid of left eyebrow, 9.5 cm medial to left ear.

7. Reddish bruise 2 cm x 1 cm present on right side face, 2 cm lateral to lateral canthus of right eye.

8. Reddish bruise 2 cm x 2.5 cm on right shoulder joint area.

9. Reddish abrasion 1 cm x 1 cm on right side neck, 10 cm below right ear lobule and 8 cm from mid line.

10. Multiple scratch abrasions ranging in size from 1.7 cm x 0.1 cm to 0.4 cm x 0.1 cm present on left sides of a face in an area of 8 cm x 3.5 cm.

11. Reddish bruise 4 cm x 3 cm present on mid line lower neck, just above supra sterna notch.

12. Incises stabbed wound measuring 6.5 cm x 0.2 cm on surface present horizontally over the posterior aspect of left shoulder blade, 1.5 cm lateral to base of neck. Its both the angles are acute. The track of the wound goes forwards, downwards and medically cutting the soft tissues and muscles of the left side of the neck, going forward it cuts the left jugular vein and internal carotid artery and ends by cutting the soft tissues in the mid line of the neck anteriorly, thus making a total depth of 9.5 cm. Entire track is haemorrhagic."

8. In their statements under Section 313 of Cr.P.C., the appellants

denied the allegations against them and claimed that in fact there was a

quarrel between the deceased between and injured PW-1 Babar in front of

their shop. Hamid Khan intervened in the quarrel and tried to pacify both

of them. Thereupon, deceased Rajiv caused injury to Hamid Khan using a

broken bottle. On seeing the injury when Dilshad tried to save him, the

deceased caused injury to him on his dorsal region and then both the

deceased and the complainant ran away from the spot.

9. DW-1 Nawab Ali is the neighbour of the appellants. He stated that

on the first day of Ramzan in the year 2008, two boys were quarreling in

front of his shop at about 4.00 PM. The appellant Hamid tried to pacify

them and in the process, Hamid and Dilshad sustained injuries on their

person. Thereafter, the boys, who were quarreling with each other, left the

spot.

10. The impugned judgment was assailed by the learned counsel for the

appellants primarily on the following grounds:

i. Admittedly, none of the appellants was previously known to PW- 1.

Therefore, he could not have identified them. No attempt was made to get

the appellants identified in a judicial TIP;

ii. According to PW-1 only one scissor blow was given to the

deceased, whereas the post mortem report of the deceased shows that he

had one incised wound and four lacerated wounds besides one incised stab

wound near his neck;

iii. The lacerated wounds could not have been caused either by scissor

or with knife (chhura), both of which are sharp weapons;

iv. The knife alleged to have been recovered at the instance of the

appellant Naushad was not sent to the doctor to take opinion as to whether

injury No. 12 which is a stab wound near the neck of the deceased could

have been caused by that knife or not.

v. No one from the neighbourhood was joined in the recovery of the

scissor or the knife and therefore the recovery is doubtful;

vi. The prosecution has not explained the injuries sustained by the

appellants Dilshad and Hamid.

11. Coming to the first contention, I find that it has come in the

deposition of PW-1 Babar that his uncle who lives nearby, at a distance of

about 100 metres from the place of occurrence, had told him the name of

Khan Tailor and his sons. He also stated that his uncle, his aunt and his

mother reached the spot after the incident. According to him, all his

relatives were present on the spot when the police arrived. It is thus evident

that the identity of the appellants came to be revealed to this witness

through his uncle who had come to the spot immediately after the incident.

The names of all the three appellants were disclosed by PW-1 in the FIR

Ex.PW-1/A which was recorded at about 6.00 PM on the same date. More

importantly, this is appellant's own case in their statement under Section

313 of Cr.P.C. that the appellant Haimd, who is the father of the other

appellants had intervened in the quarrel between the deceased and his

brother and he got an injury on his palm. This is also their case that on

seeing the injury on the palm of his father, the appellant Dilshad tried to

save him and in the process sustained injury on his dorsal region on the left

hand. The case of the appellant Naushad in his statement under Section

313 Cr.P.C. is that on Dilshad getting injured he also came to the spot, but

by that time people had gathered there and they separated the deceased and

his brother. Thus, he also admits his presence on the spot.

The medical examination report of Hamid is Ex.PW-20/A, whereas

the MLC of Dilshad is Ex.PW-20/B. The OPD treatment card of the

appellant Dilshad is Ex.PW-21/A, which clearly show their involvement in

the incident.

It has also come in the deposition of PW-1 that the incident took

place in front of the shop of Khan Tailor. Blood was found by the police in

front of the shop of Khan Tailor and was seized vide memo Ex.PW-8/B.

The blood lifted from in front of the shop of Khan Tailor when examined

in FSL was found to be human blood. This is not the case of the appellants

that some other incident had taken placed in front of their shop on that date

and someone other than deceased Rajiv was injured during that incident.

This is yet another circumstance, which shows their involvement in the

incident in which Rajiv Khan lost his life.

12. As regards the number of injuries caused to the deceased by scissor

though PW-1 did not specifically say that multiple blows were given to his

brother deceased Rajiv Khan, the post mortem report Ex.PW-9/A, coupled

with the deposition of PW-9 Dr. Sumit Tellewar would show that the

injuries No. 1,2,3,4,5,7,8 and 11 were possible with the scissor which the

police had sent to him while seeking his opinion. Injury No. 1, as noted

earlier, is an incised stab wound measuring 3.3 centimeter X 0.5 centimeter

which was present over the left temporal scalp, 4 centimeter above left

year and 6.5 centimeter above left eye-brow (outer end), whereas injuries

No. 2 to 5 were lacerated wounds and injuries No. 7,8,11 were reddish

bruises. Ex.PW-9/C is a sketch of the scissor which was recovered at the

instance of the appellant Dilshad. This would show that the steel arm of the

scissor was about 0.5-0.7 centimeter thick and the side of the scissor was

blunt. The lacerated wounds as well as the reddish bruises are quite

plausible from the blunt side of the arm of the scissor. That precisely is the

reason why the doctor opined that the injuries No. 1,2,3,4,5,7,8, and 11 are

possible from the scissor which the police had sent to him, while seeking

his opinion.

13. Coming to recovery of the scissor, it has come in the deposition of

PW-3 Chaudhary Nawab that it was recovered in his presence and was

seized vide memo Ex.PW-3/C which bears his signature. The sketch of the

scissor Ex.PW-3/C was also prepared in the presence of this witness. The

scissor was having stains at the time it was recovered. A perusal of the

report of FSL would show that stains of human blood were found on the

aforesaid scissor when it was examined in the laboratory.

It is true that PW-3 Chaudhary Nawab is related to the deceased, but

the Court cannot be oblivious to the reluctance of a common man,

including the neighbours to join efforts organized by the police lest they

are compelled to attend first the police station and then the Courts umpteen

times at the cost of considerable inconvenience to them, without any

benefit. Moreover, being related to the deceased, PW-3 Chaudhary Nawab

would not like an innocent person to be convicted and the real culprit to get

scot free and, therefore, is not likely to connive with the police officer in

planting a weapon upon an innocent person.

Moreover, there is no legal requirement to join independent

witnesses when a recovery is sought to be made pursuant to a disclosure

statement made by an accused while in police custody. In State of NCT

of Delhi v. Sunil and Anr. 2000 VIII AD (SC) 613, a plea was taken that

there was no independent witness of the recovery made by the police

pursuant to the statement of the accused while in police custody. The

following observations made by the Hon'ble Supreme Court in this regard

are pertinent:

"Hence, it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witness. Of course, if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signatures of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the Investigating Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth."

14. Coming to the injuries sustained by the appellant Dilshad and his

father Hamid, a perusal of Ex.PW-20/A, which is the medical

examination report of the appellant Hamid, would show that he had

sustained only gaping injuries on the palm side of his right hand besides

abrasions over his right chin. Five stitches were given to seal the injury

on the palm side of his hand. A perusal of the MLC of the appellant

Dilshad would show that he had a cut wound on the left hand dorsal

region which was 2 centimeter long. Neither Hamid nor Dilshad required

admission in the hospital for treatment of the said injuries. The injuries

sustained by them were minor and it is by now settled legal proposition

that the prosecution does not need to explain the minor injuries suffered

by the accused during the course of an incident.

In Bai Fatima (1975) 2 SCC 7, the Supreme Court specifically held

that there may be cases where the non-explanation of injuries by the

prosecution may not affect the prosecution case. This principle would

apply to cases where the injuries sustained by the accused are minor and

superficial or where the evidence is so clear and cogent, witnesses are

independent and disinterested, and their testimony is so probable,

consistent and creditworthy that it far outweighs the effect of the

omission on the part of the prosecution to explain the injuries.

In State of Madhya Pradesh v. Sardar 2001 (v) AD (SC) 566, the

Supreme Court held that where the evidence is clear, cogent and

creditworthy, a reasonable inference which can be drawn is that the

accused received injuries during the course of occurrence and some

members of the prosecution party inflicted such injuries.

In Rajender Singh v. State of Bihar, AIR 2000 SC 1779, the

Supreme Court reiterated that ordinarily the prosecution is not obliged to

explain each injury on an accused even though the injuries may have

been caused in the course of the occurrence, provided that the injuries are

minor in nature. But if the prosecution fails to explain a grievous injury to

one of the accused persons, which is admitted to have been caused in the

course of the same occurrence, then certainly the court looks at the

prosecution evidence with a little suspicion on the ground that the

prosecution has suppressed true version of the incident.

15. Though no attempt was made by the Investigating Officer to send

the knife (Chhura), alleged to have been recovered at the instance of the

appellant Naushad, to the doctor, to obtain his opinion as to whether injury

No. 12 could have been caused by that knife (Chhura) or not, that, to my

mind, would not be fatal to the case of the prosecution since in the absence

of opinion of the doctor in this regard, the Court could proceed on the

assumption that the knife (chhura), alleged to have been recovered at the

instance of the appellant Naushad was not used by him for causing injury

to the deceased. However, since it has come in evidence that Naushad had

given a blow to the deceased with a knife (chhura), near his neck, the

appellant Hamid, while handing over the scissor to the appellant Dilshad,

had exhorted his sons to kill PW-1 and his brother and the injury No. 12

being an incised stab wound could have been caused by a sharp edged

weapon, such as a knife (chhura) though the knife alleged to have been

recovered at the instance of the appellant Naushad, may not be that very

knife which was used for causing the said injury, it is quite apparent that

all the three appellants shared a common intention to cause culpable

homicide not amounting to murder.

16. The defence taken by the appellants is that deceased Rajiv and PW-

1 Babar had quarreled with each other in front of their shop and during the

course of the said quarrel, PW-1 caused injuries to the deceased. However,

neither the said defence could be substantiated during trial nor does it

otherwise appear to be plausible. There is no evidence of PW-1 and PW-2

having any dispute with each other. Therefore, there could be no reason to

them to start quarreling with each other all of a sudden, in a market place.

Moreover, this is not the case of the appellants that PW-1 was armed with

some weapon which could have caused the injuries which were found on

the dead body of the deceased Rajiv.

Had a broken bottle of glass been used by the deceased, the pieces

of glass would have been found scattered on the spot. However, no glass

pieces were found when the spot was inspected by the IO. This is yet

another circumstance which negates the version given by the appellants

noted earlier, deceased Rajiv had a number of lacerated wounds on his

body. This is not the case of the appellants that PW1 Babar was armed

with a weapon. Therefore, the version given by the appellants does not

explain the lacerated wounds found on the body of the deceased. I,

therefore, find no merit in the defence set up by the appellants.

17. For the reasons stated hereinabove, no fault can be found with the

conviction of the appellants under Section 304 Part I and 308 of IPC read

with Section 34 thereof. However, in the facts & circumstances of the

case, the sentence awarded to the appellants is modified as under:

Under Section 304 Part I of IPC read with Section 34 thereof, the

appellants Dilshad and Naushad are sentenced to undergo RI for seven (7)

years each and to pay fine of Rs.40,000/- each or to undergo SI for six (6)

months each in default; under Section 304 Part I of IPC read with Section

34 thereof, the appellant Hamid Khan is sentenced to undergo RI for five

(5) years and to pay fine of Rs.40,000/- or to undergo SI for six (6) months

in default.

Under Section 308/34 IPC, the appellants Dilshad & Naushad are

sentenced to undergo RI for three (3) years each and to pay fine of

Rs.20,000/- each or to undergo SI for three (3) months each in default.

Under Section 308/34 of IPC, the appellant Hamid Khan is sentenced to

undergo RI for three (3) years and to pay fine of Rs.20,000/- or to undergo

SI for three (3) months in default.

Out of fine, if realized from the appellants, Rs.1.25 lakh be paid to

the legal heirs of deceased Rajiv Khan whereas Rs.25,000/- be paid to the

injured Babar.

The appeals stand disposed of accordingly.

One copy of this order be sent to the concerned Jail Superintendent.

LCR be sent back along with a copy of this order.

FEBRUARY 17, 2014                                            V.K. JAIN, J.
BG