Delhi High Court
Faizal Khan vs State Nct Of Delhi on 17 September, 2014
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: September 17, 2014
+ CRL.A. 55/2012
FIAZAL KHAN ..... Appellant
Represented by: Mr.S.B.Dandapani, Advocate
with Ms.Shyama, Advocate
versus
STATE NCT OF DELHI ..... Respondent
Represented by: Mr.Varun Goswami, APP for
the State with SI S.K.Gupta
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J. (Oral)
1. Mr. S.B.Dandapani, a lawyer on the panel of the Delhi High Court
Legal Services Committee has been representing the appellant because
appeal was filed by the appellant through the Delhi High Court Legal
Services Committee.
2. Granted bail upon the condition that the appellant shall every six
month report to the concerned police station on November 01 and May 01
each year, the appeal was listed before the Court since its turn for hearing
matured on April 29, 2014, when it was detected that the appellant had not
been complying with the condition of the bail granted.
3. Attempts made to secure the appellant's presence have been
frustrated. That appellant knows of the appeal being likely to be heard is
evidenced from the fact that he engaged a private counsel Ms.Shama who
filed her power of attorney executed by the appellant on July 30, 2014.
4. On September 12, 2014, Ms.Shama informed us that the appellant is
in touch with her through his mobile No.9716926080 but is refusing to come
to the Court.
5. We had directed the appeal to be listed today hoping that the appellant
would see reason and appear in Court.
6. Learned counsel for the State states that the mobile No.9716926080 is
not reachable for the last five days. Ms.Shama Advocate states that the
appellant has not been in touch with her since last five days.
7. Accordingly, we proceeded to hear arguments in the appeal. We have
heard Mr.S.B.Dandapani and Ms.Shama Advocates.
8. Vide decision dated February 26, 2010, the appellant has been
convicted for the offence of having murdered Jamal. The conviction is
rested on the testimony of Danish PW-1, Tofiq PW-6 and Rashid PW-15,
the three eyewitnesses. Vide order on sentence dated March 10, 2010 the
appellant has been sentenced to undergo imprisonment for life and pay fine
in the sum of `15,000/-, in default of payment of fine to undergo RI for six
months.
9. When examined under Section 313 Cr.P.C the appellant claimed
innocence and stated that Danish, Rashid and Tofiq have falsely implicated
him.
10. We have perused the testimony of three eye witnesses and succinctly
all three have deposed that after playing they along with Jamal were
returning home at 7.30 P.M on June 17, 2007; as they reached Kucha
Rehman the appellant met them and put his arm around the neck of Jamal.
The two started walking ahead. After walking some steps the appellant
asked Jamal to let him know the address of his wife and children (those of
the appellant) and threatened Jamal with dire consequences on his failure to
do so. Suddenly appellant took out a knife and stabbed Jamal who shouted
'Pakdo'. The appellant started running. The three overpowered him. There
was a Masjid nearby. People gathered at the spot as they were coming out
after offering Namaz. Police came and took Jamal to the hospital.
Appellant's custody was handed over to the police.
11. The testimony of SI Brij Mohan PW-18, would reveal that at the time
of the incident he was on patrolling duty at Ballimaran. He was in the
company of Ct. Rajbir PW-8. As they reached Kucha Rehman during
patrolling at around 7.45 P.M they saw a crowd. Danish, Rashid and Tofiq
met them and handed over appellant and produced one knife informing that
appellant had stabbed Jamal with the knife.
12. There is irrefutable evidence that the appellant was armed with a knife
Ex P-1 having blade of 20 cm length and handle of 12.5 cm. The sketch of
the knife Ex PW-1/B evidences the same to be a Butcher's knife.
13. We have perused the cross-examination of the three eye witnesses.
Learned counsel for the appellant has not been able to point out anything
which discredits the three witnesses.
14. The only argument which is advanced is that no blood was picked up
from the scene of the crime and on the knife no blood was detected.
15. As regards no blood being picked up from the scene of the crime, the
testimony of the three eye witnesses would establish that as the deceased fell
on being injured worshipers offering Namaz were coming out from the
Masjid and the crowd gathered. It is possible that the movement of the
crowd at the spot defaced the place where drops of blood fell.
16. The other reason could be, a fact evidenced from the post-mortem
report ExPW5/A of the deceased. The stab blow was directed at the
stomach. Blood did not ooze out. It got accumulated in the stomach cavity.
The post-mortem report would show that 300 ml of fluid and clotted blood
and 1500 ml of fluid and clotted blood in the retroperitonium was detected.
17. Be that as it may, the fact that the appellant was apprehended on the
spot and was handed over to SI Brij Mohan and three eye witnesses having
withstood the test of cross-examination, establishes the fact that the
appellant stabbed Jamal on being angry that Jamal did not disclose where
appellant's wife and children were staying. From the testimony of the three
eye witnesses it is apparent that the appellant was misbehaving with his wife
who had left his company and had taken along with her the children. The
appellant wanted the deceased to tell him where his wife and children were
staying. The deceased did not volunteer the information.
18. That the appellant was armed with a Butcher's knife shows that he
had a premeditated intention. The intention was that come with me I shall
make Jamal speak about the presence of my wife and children, and if he
would not do so, I shall stab him.
19. It may be true that a solitary blow was inflicted but the weapon of the
offence Ex P-1, dimensions whereof we have already noted above, shows
that any person who would use the same to stab the human being on the
stomach would know that death would result.
20. The post-mortem report Ex PW5/A shows that the intestines, stomach
and liver were cut. The knife had travelled 20 cms inside the abdomen. The
blade of the knife, as noted above, had the length of 20 cms. So hard was
the blow stroke that the entire blade pierced the stomach.
21. Knowledge has to be attributed to the appellant that by the act
committed by him death of Rashid would inevitably result.
22. The appeal is dismissed. The appellant shall suffer the sentence
imposed upon him.
23. TCR be returned.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
SEPTEMBER 17, 2014
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