Delhi High Court
Jisan Alias Bittoo vs State on 21 July, 2015
Author: R. K. Gauba
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 07.07.2015
Pronounced on: 21.07.2015
+ CRL.A. 550/2012
JISAN alias BITTOO ..... Appellant
versus
STATE ..... Respondent
+ CRL.A. 967/2012
ASLAM ..... Appellant
versus
STATE ..... Respondent
+ CRL.A. 968/2012
MOHD. RIAZUDDIN alias DING-DING ..... Appellant
versus
STATE ..... Respondent
Presence : Mr. R.M. Tuffail, Mr. Vishal Raj Sehijpal, Mr. Anwar A.
Khan and Mr. Farooq Chaudhry, Advs. for appellant in
Crl.A.550/2012.
Ms. Sahila Lamba, amicus curiae for the appellant in
Crl.A.967/2012.
Mr. S.B. Dandapani, Adv. for the appellant in Crl.A.
968/2012.
Ms. Asha Tiwari, APP for State.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K. GAUBA
MR. JUSTICE R.K. GAUBA
%
1. The three appellants Mohd. Riazuddin @ Ding Ding
(Crl.A.968/2012), Jisan @ Bittu (Crl.A.550/2012) and Aslam
(Crl.A.967/2012) faced prosecution in sessions case No.34/11 on the charge
for the offences of murder of Nazim S/o Salim (hereinafter referred to as
"the deceased") and attempted murder of Shahid S/o Abdul Sattar (PW5), in
furtherance of their common intention as punishable under Sections 302/34
IPC and Section 307/34 IPC respectively, in the course of an incident which
statedly occurred at about 10.35 PM on 20.5.2009 near MCD urinal close to
Basti Chain Sukhdas, Lal Mahal within the jurisdiction of PS Chandni
Mahal. By the impugned judgment dated 23.03.2012, the learned trial court
found the appellants guilty as charged on both counts. By the impugned
order-on-sentence dated 26.03.2012 the trial court awarded imprisonment
for life as the substantive punishment on each count in addition to fine of
`25,000/- for offence under Section 302/34 IPC and `10,000/- for offence
under Section 307/34 IPC to each convicted person. In default the
appellants were ordered to suffer further simple imprisonment for one year
and ten months respectively.
2. The case had arisen out of the report under Section 173 Cr.P.C. filed
on conclusion of investigation into FIR No.51/09 under Sections 302, 307
IPC of Police Station Chandni Mahal. In the trial court record, appellants
Mohd. Riazuddin @ Ding Ding, Jisan @ Bittu and Aslam have been
referred to as accused No.1 (A1), accused No.2 (A2) and accused No.3 (A3)
respectively. For the sake of convenience, they would be referred to
hereinafter accordingly.
3. It may be added that the findings of guilty have been returned by the
learned trial Judge primarily on the basis of eye-witness accounts of PW-5
Shahid (the first informant) and another witness Sarfaraz (PW4), in addition
to reliance on the recovery of the weapon of offence (chhuri) shown effected
at the instance, and pursuant to disclosure, of appellant Jisan @ Bittu (A2) to
whom the act of stabbing with the aid and assistance of other two, is
attributed.
4. By these three appeals the appellants seek to assail their conviction
and sentence.
5. For a critical overview of the prosecution case, following the
chronology in which events occurred would be advantageous.
6. At 10.56 PM on 20.5.2009 Nazim (the deceased), male 22 years, was
brought to the casualty of Lok Nayak Hospital, New Delhi (hereinafter
referred to as "the hospital") by Imran S/o Suleman (PW1) with history of
assault suffered at about 10.40 PM on the same night in an incident that had
occurred at a place described as Kala Mahal, Haveli Azam. He was
smelling of alcohol, was drowsy but arousable and on examination was
found having suffered a clean incised wound of the size of 3-4 cm at right
upper side belly from which intestines were coming out. The medico legal
record (MLC) (Ex.PW 26/B) in his case was prepared at 11 PM by Dr. Raj,
Junior Resident, who was on duty under the supervision of Dr. Pummy
(PW-26), the CMO. After primary treatment, he was admitted to surgery
emergency. It may be noted here itself that Nazim succumbed to said injury
on the same night, in the course of treatment, death having occurred at 02.40
hours of 21.5.2009, per MLC death summary (Ex.PW8/A) prepared by Dr.
Anurag Mishra (medical officer in department of surgery of hospital) (PW-
8). He remained unfit for statement till death.
7. The fact of the admission of the deceased in the hospital in injured
state, against MLC, was brought to the notice of the police station Chandni
Mahal (hereinafter referred to as "the police station") by Head Constable
Kailash (PW-13), on duty in the casualty of the hospital at 11 PM and was
reduced into DD entry No.44B (Ex.PW7/A) by Constable Niraj Kumar
(PW-7), the DD writer on duty. The matter was entrusted for needful action
to ASI Krishan Chander (PW-17) assisted by Constable Siya Ram (PW-11).
When PW-17 accompanied by PW-11, reached the hospital, he found Nazim
under treatment but unfit for statement, as per the opinion of the doctor
attending on him.
8. At 11.50 PM on the same night i.e. 20.5.2009, the police station
received information through police control room (PCR) that an incident of
firing by one Shahid at a person described as Kala had been reported
through telephone No.9212973426 from house No.1867 (or 1267) Gali
Chandwali near Jamunwali gali, Kala Mahal. This information, on the basis
of PCR call, was also reduced into writing by PW7 vide DD No.45B
(Ex.PW7/B) and handed over for needful action to Constable Amit Maurya.
It is the case of the prosecution that this DD entry No.45B (Ex.PW7/B) also
came to be handed over by Constable Amit Maurya to PW-17, who was
attending to the matter arising out of earlier intimation, accompanied by
PW-11. It is stated that when the said police officials went for enquiry to
the area of Pataudi House, Kala Mahal, Gali Jamunwali they were met by
A1, who was having injury in his hand. Under instructions of PW-17, A-1
was taken by PW-11 to the hospital for medical examination and treatment.
9. In the meantime, Shahid (PW5) is also stated to have reached
hospital, in an injured state, on being brought there by Arshad S/o Aslam
(PW-22). Going by the medico legal record, the arrival in the hospital of
PW-5 and A1 was close on the heels of one another. Both are stated to have
been examined by the casualty medical officer, in the case of latter (A1) it
being Dr. Pummy (PW-26), the MLCs and accompanying record indicating
the time of arrival in the hospital of PW-5 being 0018 hours of 21.5.2009
(document Ex.PW24/A) and that of A-1 at 0012 hours of 21.5.2009
(document Ex.PW26/A) respectively.
10. As per the MLC of PW5, he had suffered a clean lacerated wound of
the size of 18 cm x 1.5 cm at lower right back. He was smelling of alcohol,
was conscious and oriented. As per opinion (Ex.PW24/A) recorded later, on
8.8.2009, by Dr. Anuj Chawla (PW-24), the injury suffered by PW-5 was
simple in nature. As per another opinion (at point „X‟ on Ex.PW24/A)
recorded on 24.6.2009 by Dr. Pummy (PW-26), PW-5 was referred for
orthopaedic opinion since x-ray of the left elbow carried out on 21.5.2009
had shown some mal-united fracture suggestive of old trauma. Clearly, the
said old injury has no bearing on the present case.
11. A-1 was found, per MLC (Ex.PW26/A), with clean lacerated wound
on outer side of left forearm with complaint of pain in movement of left
elbow joint. Though the record is silent as to the further course of treatment,
there is an endorsement on the MLC (Ex.26/A) indicating the injury was
opined to be simple in nature. Throughout the trial or in the proceedings on
the appeal(s) there is no claim by A-1 of the injury being graver in nature.
12. It must be noted that the history of the lacerated wound with which
PW-5 was brought to the hospital after midnight at 0018 hours on 21.5.2009,
as stated to be narrated by both PW5 and PW-22, to the examining medical
officer was, assault near Kala Mahal Haveli Azmi Ka Nala in an incident
that had occurred at 11.18 PM (apparently on 20.5.2009). The MLC
(Ex.PW26/A) of A-1, on the other hand, recorded just a couple of minutes
after that of PW-5, related to DD 45B (Ex.PW 7/B) would reflect he had
been injured in an incident that had occurred at 11.45 PM, this as per
information given by PW-11.
13. Noticeably, the defence has not made out, either during trial or in
appeal, a case that A-1 had been injured in the occurrence which was subject
matter of DD No.45-B (Ex.PW7/B). It is not explained by A-1 as to where
or at whose hands he suffered the hurt noted in his MLC. Also, and more
crucially, the defence has chosen not to question PW5 or PW11 about the
time of incident reported to medical officer at the stage of MLC of PW5
(Ex.PW24/A).
14. That the death of Nazim was a case of culpable homicide murder is
proved beyond the pale of all doubts. PW-26 noted in the MLC (Ex.PW-
26/D) that it was a clean incised wound of the size of 3-4 cms at right upper
side belly from which intestines were coming out. The autopsy report
Ex.PW-15/A prepared on the basis of post-mortem examination on the dead
body noted three external injuries; the first of which was a surgical stitched
wound; second injury, which corresponds to injury noted in the MLC is
described in the post-mortem examination report as under:-
"Stitched incised stab wound (3 stitches) aprox. (4.5 x 0.5 x 12-
14) cm, elliptical shape present over right front of abdomen 5.5
cm below costal margin with upper inner angle obtuse and
lower outer angle acute with clean margin."
The third injury was a contusion of the size of 3 x 2 cms present on the right
side of the chest in anterior auxiliary line, effect of which is noted on the
right anterior costal muscle between 9th and 10th ribs.
15. The track of the second injury which proved fatal is noted by the
autopsy doctors as under:-
"Passing through skin, going upward, backward and to the left
(midline), piercing subcutaneous tissue muscle of anterior
abdominal wall, entering the peritoneal cavity, penetrating the
jejunum, then perforating the mesentery and then penetrating
inferior vena cave anterior wall, causing a cut measuring (3 x
0.5) cm. Length of track about 12 cm."
16. Clearly, as a result of the piercing of the subcutaneous tissues and
muscle of the abdominal wall, peritoneal cavity and jejunum, there was
effusion of blood in the muscle layer surrounding the said wound and in the
mesenteric layer besides retroperitoneal bleeding. The stab wound inflicted
may have been only one but the assailant had intended it to cause deep cuts
inside the abdominal area rupturing several organs. The intention behind
inflicting such injury can conceivably be none other than causing the death
of the person subjected to the assault. We, thus, have no hesitation in
confirming the finding of the learned trial judge that the death of Nazim was
a case of culpable homicide.
17. The moot question which, however, needs to be addressed is as to
who was the author of the fatal injury suffered by Nazim and as to in what
circumstances such injury was caused.
18. The case for the prosecution has been that it was A-2 who had stabbed
the deceased in an incident that took place at about 10:35 P.M. on
20.05.2009 near MCD urinal close to Basti Chainsukhdas, Lal Mahal, Police
Station Jama Masjid and in the said assault he was aided and assisted by A-1
and A-2 who shared the common intention for such purposes. It has also
been the case of the prosecution that PW-5 was with the deceased at the time
of the said attack brought about collectively by all the three appellants and
further that, in the course of the happening, when PW-5 had tried to come to
the rescue of the deceased, he was also inflicted stab injury, again by A-2.
On the strength of the MLC of PW-5, the prosecution has alleged that the
assault on his person was intended to also cause his death and, thus, in the
nature of attempted murder. The prosecution relied upon the evidence of
PW-4 as an independent eye-witness to the core incident.
19. Before proceeding further, we may take note of the version of PW-5
in the FIR (Ex.PW-6/A) registered on the basis of rukka Ex.PW-5/A (also
containing endorsement Ex.PW-27/A).
20. PW-5 told the IO in the FIR that about four/five months prior to the
date of incident (20.05.2009), there had been a verbal quarrel between him
and Nazim (the deceased) on one side and the appellants on the other. The
said quarrel, however, had ended into an amicable settlement with the
intervention of elders of the community. On 20.05.2009 at about 10:30
P.M., he (PW-5) was going near the MCD urinal when A-3 was found
urinating in the middle of the street. PW-5 stated in the FIR that the drops
of urine of A-3 had fallen on him and Nazim upon which both of them asked
the former not to indulge in urination in open street in such manner. This
evoked abuses from A-3 who went away extending threats. According to
PW-5, he and Nazim had stood around the said place for smoking when
after some five-seven minutes, A-3 accompanied by A-1 and A-2 had come
on the scene and while uttering "Aaj In Dono Ka Kaam Tamaam Kar Dete
Hain", he inflicted a fist blow on his (PW-5) right eye. PW-5 alleged in the
FIR that when Nazim tried to come to his rescue, he was caught by A-1 and
A-3 when A-2 stabbed Nazim in his abdomen with the help of a long knife
(Chhuri) bringing out his intestines. PW-5 further stated that when he tried
to come to help of Nazim, A-1 and A-3 caught hold of him at which stage,
A-2 used the same weapon of offence to inflict an injury on his waist
("Qamar"). He mentioned in the FIR the arrival of Sarfaraz (PW-4) on
hearing the noise of the quarrel. He also stated that the three appellants (the
assailants) had fled away from the scene. While Nazim was taken to
hospital by Imran @ Farhan (PW-1), he (PW-5) had gone to inform the
family of Nazim and later had reached the hospital accompanied by his
friend Arshad (PW-22).
21. The record indicates that D.D. No. 44-B (Ex.PW-7/A) about
admission for treatment of Nazim against MLC was made over for inquiry
to PW-17. When PW-17, accompanied by PW-11, had reached the hospital,
Nazim was found to be under treatment but unfit for statement. The D.D.
entry No. 45-B (Ex.PW-7/B) came on the close heels of the arrival of PW-
17 in the hospital.
22. Thus, the prosecution version and contemporaneous DD, as recorded,
indicate that the victim (the deceased) was under treatment and unfit for
statement. The second D.D. entry had indicated an incident of firing in the
same area. Thereupon PW-17 returned to the place and found A-1 at the
spot and returned to the hospital with him sometime after midnight. The
record confirms that by that time PW-5 had also come to the hospital with
stab injuries which required medical attention. The condition of Nazim
deteriorated and he eventually died, while under treatment, at 02:40 hours on
21.05.2009. It is against this backdrop that PW-27, who had also arrived in
the hospital, recorded the statement (Ex.PW-5/A) and got the FIR registered
thereupon. During investigation, that followed, statement of Sarfaraz (PW-
4) was recorded wherein he confirmed the word of PW-4 (the first
informant) about the incident in which Nazim had suffered the fatal stab
injury followed by stabbing of PW-5 as also the complicity of the three
appellants therein. The FIR as per record was registered at 0555 hours, after
rukka was recorded and sent by PW-27 at 0540 hours.
23. As per court deposition of PW-4, he was present at the scene from
sometime around 10:30 P.M./10:45 P.M. at the stage when both the victims
were having a smoke. PW-4 is a resident of nearby Bazar Matia Mahal,
Jama Masjid and claims to come to the area to call on his friend Sajid living
in the neighbourhood of Kala Mahal. There is no dispute about the fact that
all the material witnesses, particularly PW-4 and PW-5 are acquainted with
the three appellants and would know each of them by name and face.
Concededly, all these persons live and move around in nearby houses or
localities.
24. According to the prosecution case, A-1 who was brought to the
hospital with injury noted in his MLC (Ex.PW-26/A) on the night of
20.05.2009 was arrested soon after the registration of FIR. Per the evidence
of the IO (PW-27), though search was made, A-2 and A-3 could not be
found. They are shown eventually arrested on 11.08.2009 by ASI Senser
Pal Singh (PW-21), assisted by Head Constable Rakesh Katiyal (PW-20)
both of Special Cell from Anand Vihar Bus Station on the basis of secret
information. The arrest memos Ex.PW-20/A and Ex.PW-20/B along with
personal search memos Ex.PW-20/A-1 and Ex.PW-20/B-1 have been
presented for confirmation.
25. It is the case of the prosecution that after their arrests by the officers
of Special Cell, the custody of both A-2 and A-3 were handed over to the IO
and during police remand, pursuant to the disclosure (Ex.PW-27/H) under
interrogation, amongst others, A-2 got recovered the weapon of offence
(Ex.PW12/P-1), described as Chhuri in the seizure memo (Ex.PW-12/B), as
also in the sketch (Ex.PW-12/A), from under a carrom board kept on the
third floor terrace of his house (no. 1267, Gali Jamunwali, Kala Mahal,
Delhi). It has been further the case of the prosecution that this weapon of
offence had been, thus, kept concealed by A-2 after washing of blood-stains
that had come on its blade post its use against the persons of the deceased
and PW-5. Per the prosecution case, this weapon of offence, after recovery,
was presented before the autopsy doctor (PW-18) who, for purposes of his
proceedings, drew up sketch (Ex.PW-18/B) and opined (vide Ex.PW-18/A)
that the fatal injury (injury no. 2 in the post-mortem examination report)
could possibly have been caused by the said instrument.
26. The learned trial judge has believed the testimony of PW-5 as
corroborated by PW-4 and primarily on that basis held the three appellants
guilty. The appellants question the correctness of the said view by arguing
that the witnesses in question were inimically placed, had criminal
antecedents and, thus, their word ought not be trusted. The appellants also
submit that there has been unexplained delay in the registration of the FIR
and, thus, the possibility of fiction having been added cannot be ruled out.
Questions were also raised in the course of arguments about the possibility
of two separate incidents, one occurring after other, and the injuries suffered
by PW-5 having been inflicted in the latter event. Submitting that it cannot
be said with certainty that PW-5 had suffered the stab wound around the
same time as Nazim was injured, the appellants question the reasoning of the
trial court in accepting the presence of PW-5 at the stage of murderous
assault on the deceased on account of the fact that A-1 himself had been at
similar receiving end. The learned counsel for the appellants further argued
that the account of the events narrated by PW-4 and PW-5 does not jell with
each other and instead several discrepancies come out adversely affecting
their veracity.
27. Per contra, the learned counsel for the respondent State argued that
PW-4 and PW-5 have withstood the cross-examination well and there is no
reason why their evidence should not be disbelieved. It was submitted that
some of the inconsistencies pointed out in the testimony of these witnesses
and the other material is the end result of natural wear and tear of memory
on which account no doubts as to the complicity of the three convicted
appellants should arise.
28. Before we take up the other arguments of the appellants for
examination, it is necessary to mention here that in the course of trial three
of the witnesses for prosecution tried to take upon themselves a role larger
than what was initially indicated. Imran @ Farhan (PW-1) who had taken
the deceased to the hospital on a scooter assisted by PW-4, Wasim (PW-2) a
cousin brother of the deceased who had reached the hospital upon learning
about stabbing incident, and Nadeem (PW-3), the brother of the deceased
who had also similarly rushed to the hospital after news reached him
deposed before the trial court that the victim (Nazim) before death had
disclosed to each of them the involvement of the appellants in the crime.
PW-1 testified that when he had found Nazim sitting in injured condition on
asking he was told by the latter that he had been stabbed by A-1 and A-3.
PW-1 and PW-3 deposed having met Nazim in the hospital and engaged him
in conversation at which stage he told each of them about the complicity of
the three appellants.
29. All the above-mentioned witnesses viz. PW-1, PW-2 and PW-3 had
not given any such account in their respective statements under Section 161
Cr.P.C. For this reason, their deposition about the information given by
Nazim, which is in the nature of dying declaration, has not been acted upon
by the learned trial judge and, in our opinion, rightly so. We would,
therefore, exclude from consideration this part of their testimony.
30. There is material on record to indicate that both the deceased and PW-
5 did not have clean antecedents. PW-5 admittedly was involved in certain
criminal cases including possibly one case of hurt (referred to as a case of
quarrel) and dealing in counterfeit currency. He conceded that the deceased
was also facing trial in some criminal case, though he would explain it away
as a matrimonial dispute. The prosecution, on the other hand, points out
involvement of A-1 and A-2 in FIR No. 335/2006 under Sections
308/323/452/505/34 IPC of Police Station Jama Masjid, and of A-2 in FIR
No. 391/2002 under Section 307/34 IPC of Police Station Jama Masjid.
31. The evidence for the prosecution in the case at hand, for several
reasons noticed above, will have to be subjected to in-depth scrutiny and
careful examination of the individuals involved. At the most, involvement
of the deceased and PW-5 in crime in the past may show that PW-5 and the
deceased might have other persons inimically placed lurking in the
background. The case at hand instead rests on eye-witness account given by
PW-4 and PW-5.
32. It is the argument of the defence that injuries suffered by PW-5 with
which he had come to the hospital past midnight were possibly inflicted not
in the course of incident where the deceased was stabbed but much later.
Reference is made in this context to the history of assault noted in the MLC
Ex.PW-24/A of PW-5.
33. We have carefully examined the above-noted argument, also bearing
in mind the history of assault with which A-1 had come to the hospital
around the same time so as to be examined against MLC Ex.PW-26/A We
are of the opinion that this material does not impeach the testimony of PW-5
about his own injuries. Noticeably, when PW-5 came to the hospital past
midnight, he was accompanied by PW-22. There is ample evidence
available including the testimony of PW-22 which we are inclined to accept
as truthful, to indicate that PW-5 had suffered injuries in the course of
incident that had occurred at or about 10:35 P.M. wherein the deceased was
stabbed. The injury of PW-5, as noted in the MLC, though technically
simple, was also not ignorable. It was a slash of a size of 18 cms given by a
cutting instrument. Since the depth of the injury was seemingly not much, it
did not cause serious harm to the insides. The injury matches with the
narration of the manner in which PW-5 describes it to have been inflicted in
the wake of stabbing of the deceased at a stage when PW-5 was grappling
with the assailants to rescue his friend.
34. It appears that there was some confusion in the casualty section of the
hospital when PW-5 arrived in injured state. The name of the patient came
to be recorded in the emergency card by the clerk at the reception as Farhan
son of Aslam, resident of Kala Mahal, Chandni Mahal. The person named
Farhan son of Aslam would be an individual other than Imran @ Farhan son
of Suleman (PW-1) who was already present in the hospital he having
earlier at 10:56 P.M. on 20.05.2009 accompanied PW-4 to bring the
deceased in the injured state. It appears that friends, kith and kin had
gathered in the hospital in large number. In the melee, the reception clerk in
the emergency ward seems to have understood the description of the person
wrongly. Apparently, the information was given not by PW-5 himself but
by some other person with him at that time. The examining medical officer
later corrected the error in the description not only in the MLC but also in
the emergency card (available at page 263 of trial court record).
35. In the above facts and circumstances, it appears that the history of the
assault at 11:18 P.M. had been given not by PW-5 but by the person
accompanying him. We conclude thus also, rather more so, for the reason
that throughout the trial it was never the case of the defence that two
different incidents had occurred, one at 10:30 P.M. or so and another around
11:18 P.M./11:45 P.M. or so. Though A-1 at the time of his medical
examination against MLC Ex.PW-26/A referred to assault at 11:45 P.M., no
evidence has been led on his behalf to substantiate the said claim.
Noticeably, the injuries with which he had come to the hospital were trivial
(small lacerated wound of insignificant size) as compared to the injuries of
PW-5.
36. It was argued on behalf of the appellants that the conduct of PW-5 has
been unnatural. His close friend (deceased) had suffered a serious stab
injury. Yet, he would not opt to come with him to the hospital and went
somewhere else only to re-surface, past midnight, in the hospital. The
counsel submitted that PW-5 has tried to exaggerate by talking of injury also
suffered on his abdomen which claim is not corroborated by the medical
record. It was argued that PW-1, who took the deceased to the hospital,
does not even talk of the presence of PW-5 at the spot where the former had
found the deceased sitting in injured state. Similarly, it was pointed out,
PW-22 speaks about he finding only PW-5 in injured condition, this, as per
argument, being suggestive of both the deceased and PW-5 having suffered
assaults at two different places and points of time. Further, the counsel
argued that though PW-5 claimed that his clothes had been blood-stained,
the same were not seized.
37. On careful scrutiny, we find the above-noted criticism of PW-5 to be
unacceptable and stretched. The witness has given sufficient reasons as to
why he did not go with the deceased to the hospital. He explained even in
the FIR that he opted to first go to the house of Nazim to inform the family
about the occurrence, inasmuch as Nazim had suffered a life-threatening
assault for the reason the stab wound had cut into and brought out his
intestines. The word of PW-5 about the detour to the house of PW-3 for
giving the information is corroborated in material particulars by PW-22.
Indeed, there is some discrepancy, in that PW-3 contradicts the other two by
denying that he had received the information about stabbing of Nazim
directly from PW-3 and would rather attribute it to telephonic information
from his wife at his shop. This small discrepancy cannot, however, disturb
the larger picture that the information was actually conveyed to the family at
the house of Nazim.
38. As regard the exaggeration as to the injuries, it was pointed out by the
learned prosecutor that in the emergency card (Page 263 of the trial court
record), it is noted by the examining medical officer that there were two
lacerated wounds inflicted on the person of PW-5, first as noted earlier and
the second on right flank of the size of 6 cms. Clearly, this injury was
insignificant as compared to the main injury suffered on the back. Be that as
it may, there is no reason why the word of PW-5 should be doubted only
because the casualty medical officer did not note down the second injury in
the MLC.
39. The seizure of clothes of PW-5, if blood-stained, would undoubtedly
have provided some further corroboration to his word. There is no
explanation given by the IO as to why this exercise was not carried out. It is
not proper to doubt the word of PW-5 about the injuries suffered by him for
such omission on the part of the IO. The factum of injury stands duly
proved even in absence of the blood-stained clothes of PW-5 from his MLC.
40. While on the subject, we may also mention and reject the argument of
the defence based on non-seizure of the clothes of PW-1 and PW-4 which
also would have received some blood-stains inasmuch as they had carried
the fatally injured Nazim as a pillion rider sitting between the two of them
on a scooter to the hospital. Firstly, it is not necessary that blood would
have necessarily come on to the clothes of these two witnesses on the
journey to the hospital. Secondly, the fact that Nazim was stabbed seriously
in his abdominal region does not need any further corroboration since it is
proved beyond doubt by his MLC and the post-mortem report. Thirdly, the
fact that he was taken to the hospital at least in the company of PW-1 is duly
mentioned in the MLC with no dispute raised in such regard. And fourthly,
the omission of the IO on this score as well cannot detract one from the
conclusive finding as to the stabbing of the deceased on the date, time and
place mentioned by the prosecution witnesses.
41. It is the argument of the appellants that PW-4 cannot be trusted as a
truthful witness. The submission is that PW-4 admittedly is a close friend of
the two victims, though he lived elsewhere. The MLC of the deceased does
not name PW-4 as the person accompanying the victim to the hospital. If
his word is to be believed, he was present in the hospital from 11:00 P.M.
onwards and since he claims to be an eye-witness, the IO could have
recorded his statement and registered the FIR. The FIR was intentionally
delayed till early hours of the next morning for reasons not explained.
42. We do not agree with the above submissions. PW-4 has explained in
his testimony, and there was no effort made to discredit him on such count,
as to why he had come to the area in question. He was a chance witness
who appeared on the scene just before the assault after the initial verbal
exchange involving A-3 over the manner of his urination in public street.
PW-4 himself had no means of taking the fatally wounded Nazim to
hospital. The scooter was driven by PW-1. Thus, the two persons assisted
Nazim to the hospital. The examining medical officer would not be
interested in keeping a record of the names and particulars of all who had
come with the injured patient. The mention of the name of PW-1 in the
MLC was sufficient. The presence of PW-4 at that time is confirmed by
PW-1. PW-4 was not privy to the entire background facts as he had come
on the scene moments before the assault took place.
43. Given the information about the firing in the area received vide D.D.
entry no. 45-B (Ex.PW-17/B), apparently a false and misleading
communication since even the defence does not refer to it, the police officers
engaged in the preliminary inquiry had remained pre-occupied. By the time
formal steps could be taken, PW-5 had also arrived in the hospital in injured
state. Thus, the investigating police had available to it a better and more
informed witness than PW-4. By the time PW-5 was medically examined
and given the necessary medical aid, Nazim had succumbed to his injuries
giving to the case a far serious turn.
44. In the above set of circumstances, we find no reasons to doubt the
veracity of PW-4 or to conclude that the FIR is delayed. The events and
happening were taking place at a fast pace.
45. As noted earlier, the prosecution case also rests, for corroboration to
the word of PW-5 and PW-4, on recovery of Chhuri (Ex.PW-12/P-1) from
the possession and at the instance of A-2. At the time of seizure, its sketch
was prepared vide Ex.PW-12/A. When it was taken to autopsy doctor (PW-
18) for his opinion, he prepared another sketch (Ex.PW-18/B). In this
sketch, the autopsy doctor described weapon as double-edged sharp. The
total length of weapon is noted in the said document as 29.5 cms. The
length of the blade on one side is indicated to be 20 cms while the sharp-
edged portion on the other side had the length of 15.3 cms. In the autopsy
report prepared earlier on 21.05.2009, PW-15 and PW-18 had opined that
the second injury, which proved fatal, had been caused by "single sharp-
edged weapon". The learned counsel for the appellants argued that this
opinion is suggestive of the fact that the Chhuri recovered from the
possession of A-3 may not have been the weapon used in the crime.
46. Having carefully examined the material on record, we find that the
above discrepancy is not sufficient to create doubts as to the complicity of
the appellants in the stabbing of Nazim and PW-5. PW-18 has given
sufficient explanation about the tentative opinion in the autopsy report about
the injury having been possibly caused by a single sharp-edged weapon. He
stated under cross-examination that the opinion recorded in the autopsy
report was based on assessment of the angles of the wound and was not a
final conclusion, since that would require scrutiny of the co-relation of the
weapon with the wounds. He further stated that under typical conditions,
the sharp edge of a stabbing weapon would cause a wound with acute angle
while the blunt edge would produce wound with obtuse angle. He pointed
out that the weapon shown in the case at hand is a double-edged sharp
weapon but at the bottom end, roughly lower one-third portion of the blade,
the edges are blunt. Having regard to the nature and dimensions of the
second injury, as appearing from the external examination, and the damage
caused to the insides, noted at length earlier, we uphold the justification
offered by PW-18 in his opinion as to the possible use of weapon (Ex.PW-
12/P-1) in the fatal stabbing of Nazim and, thus, reject the contention of the
defence.
47. Small contradictions by themselves are no reason to throw the case
out. It has been held time and again that discrepancies do not necessarily
demolish the testimony. Proof of guilt can be sustained despite little
infirmities [Narotam Singh Vs. State 1978 Cr. L. J. 1612 (SC)]. No undue
importance can be attached to such discrepancies as do not go to the root of
the matter or do not shake the basic version of witnesses. [Lallan Vs. State
1990 Cr. L. J. 463]. It was ruled in Ramni Vs. State, [JT 1999(6) SC 247]
that all discrepancies are not capable of affecting the credibility of
witnesses. Similarly, all inconsistent statements are not sufficient to impair
the credit of a witness.
48. On evaluation of the evidence on record in entirety, we find no reason
to disbelieve the oral testimony of PW-5, duly supported and corroborated in
all material particulars by the eye-witness account of PW-4, as indeed the
other material on record including the medical evidence. The learned trial
court, in our judgment, has correctly appreciated the evidence and accepted
the version of PW-5 as to the manner and background, in which the assault
took place. There is no reason for us to disturb the findings of fact as to the
role and involvement of the three appellants in the incident resulting in stab
injuries suffered by Nazim (deceased) and PW-5 Shahid.
49. We have already held in earlier part of this judgment that the death of
Nazim is a case of culpable homicide. The stab wound inflicted on the
abdominal region of PW-5, given the manner in which caused soon after
fatally wounding Nazim, also cannot be but with the intent of bringing about
similar result and so, a case of attempted murder. The narration as to
occurrence by the eye-witnesses PW-1, PW-4 and PW-5 affirms that this is a
case of murder. The injury inflicted in the abdomen was intentional and
deliberate.
50. It was, however, also argued that the stabbing of Nazim (deceased)
and PW-5 were acts committed by A-2 Jisan only and that it is unfair to
attribute common intention in such assault to A-1 Mohd. Riyazuddin and A-
3 Aslam. Reliance was placed on Ramesh Singh v. State of MP 2004 (110)
Cr. L.J. 3354 to argue that the evidence is deficient to bring in the
constructive liability under Section 34 IPC or to hold A-1 and A-2
accountable for the consequences of the acts indulged in by A-3. It was
submitted that inferences that A-1 and A-2 may have harboured similar
intentions as A-3 cannot lead necessarily to the conclusion that they shared
the intention of A-3 to cause death by inflicting the stab injuries, this in
absence of evidence to show mutual agreement to commit the offence
conjointly or about meeting of minds.
51. In Ramesh Singh (supra), the Supreme Court held as under:-
"As a general principle in a case of criminal liability it is the
primary responsibility of the person who actually commits the
offence and only that person who has committed the crime can
be held to be guilty. By introducing Section 34 in the penal
code the Legislature laid down the principle of joint liability in
doing a criminal act. The essence of that liability is to be found
in the existence of a common intention connecting the accused
leading to the doing of a criminal act in furtherance of such
intention. Thus, if the act is the result of a common intention
then every person who did the criminal act with that common
intention would be responsible for the offence committed
irrespective of the share which he had in its perpetration.
Section 34 IPC embodies the principles of joint liability in
doing the criminal act based on a common intention. Common
intention essentially being a state of mind it is very difficult to
produce direct evidence to prove such intention. Therefore, in
most cases it has to be inferred from the act like, the conduct of
the accused or other relevant circumstances of the case. The
inference can be gathered by the manner in which the accused
arrived at the scene, mounted the attack, determination and
concert with which the attack was made, from the nature of
injury caused by one or some of them. The contributory acts of
the persons who are not responsible for the injury can further
be inferred from the subsequent conduct after the attack. In
this regard even an illegal omission on the part of such accused
can indicate the sharing of common intention. In other words,
the totality of circumstances must be taken into consideration in
arriving at the conclusion whether the accused had the common
intention to commit an offence of which they could be
convicted. (Noor Mohammad Yusuf Momim, AIR 1971 SC 855)
(1971 Cri LJ 793 : AIR 1971 SC 885)"
52. There can be no quarrel with the proposition that for bringing home
the charge with the aid of "common intention", it is essential that proof is
adduced as to the meeting of minds. The onus in this regard is squarely on
the prosecution. It is, however, also to be borne in mind that state of mind
("mens rea") needs to be gathered from the facts and circumstances, in
general, and acts of commission or omission, in particular. The fatal injury
may be inflicted by one assailant but it is the conduct of the others present at
the scene in providing aid or assistance which may show as to whether they
shared the intention of the actual assailants, and if they did so share, the
extent thereof.
53. The sequence of events has to be kept in mind in entirety. The
unsavory exchange over the manner of urination by A-3 had occurred a few
minutes prior to the incident. The prosecution has proved that A-3 went
away extending threats and came back to the scene thereafter accompanied
by A-1 and A-2 only to immediately start physical assault. It began with the
fist blow on the face of PW-5 by A-3. The evidence has proved that A-2
had come with knife openly held in his hand. When Nazim (the deceased)
tried to help PW-5, the three appellants shifted focus on him. With A-1 and
A-3 assisting by holding on to Nazim, A-2 gave the stab injury in his
abdominal region. These physical acts collectively seen against the
backdrop, inter alia, of the exhortation by A-3 only lead to the irresistible
conclusion that A-1 and A-3 shared the meeting of mind with A-2 for
committing the murder of Nazim. Since A-1 and A-3 were assisting A-2
even when he stabbed PW-5 Shahid, in the course of same transaction, the
common intention on their part for attempted murder of the latter is also
bound to be inferred. Thus, we conclude that the learned trial court rightly
invoked the principle of collective liability under Section 34 IPC to hold all
the three appellants accountable.
54. The appeals are, thus, found devoid of substance. They are dismissed.
55. The appellants be informed of the result of their respective appeals by
the Registry making over a copy of this judgment to be delivered to each of
them through Superintendent, Jail.
R.K.GAUBA
(JUDGE)
SANJIV KHANNA
(JUDGE)
JULY 21, 2015
ik
