Delhi High Court
Irfan Badshah & Anr. vs State on 24 March, 2015
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRIMINAL APPEAL No.1365/2014
% Judgment dated March 24th , 2015
IRFAN BADSHAH & ANR. ..... Appellants
Through : Mr.Abhishek Singh and
Mr.Amit Bhalla, Advocates
versus
STATE ..... Respondents
Through : Mr.Feroz Khan Ghazi, APP for State
CORAM :
HON'BLE MR. JUSTICE G. S. SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G. S. SISTANI, J.
1. Present appeal has been filed by the appellants under Section 374 of the
Code of Criminal Procedure against the judgment dated 16.4.2014 and
order on sentence dated 21.4.2014, by which appellants have been
convicted under Sections 302/323/34 IPC and sentenced to undergo
imprisonment for life for the offence punishable under Section 302 IPC
read with Section 34 IPC; and also sentenced to undergo rigorous
imprisonment for a period of one year and to pay fine of Rs.1,000/- each
for the offence punishable under Sections 323/34 of the Indian Penal
Code and in default thereof further simple imprisonment for two months.
The sentences were to run concurrently.
2. The case of the prosecution, as noticed by the trial court in its judgment
dated 16.4.2014, is as under:
"1...... It so happened that Irfan Badshah noticed some
persons laughing and looking towards his direction when he
was passing from there. He felt offended and approached
them and questioned them as to why they were looking and
laughing at him. The concern, according to the on lookers,
was unfounded as they were not concerned with him nor they
were laughing and looking at him. Irfan still could not
reconcile with the situation and did not trust them, thus, left
the place threatening to come back and teach them a lesson.
The threat was translated into reality when Irfan resurfaced
at the scene alongwith two of his associates and started
pelting stones on the door of the complainant. As an obvious
reaction, the complainant and his associates came out
questioning the assailants. However, at this stage, Irfan
Badshah and two of his associates caused injuries to the
victim and his associates and dragged Roshan towards the
railway tracks. The intervention by Xavier and Smt.Grace,
wife of Roshan, could not succeed to save Roshan from being
dragged and injuries which later on proved fatal, apparently
on account of excessive bleeding as the victim could not be
removed to the hospital for 25-30 minutes. The matter was
brought to the notice of police authority. The victim was
taken to the hospital where he was declared brought dead.
The statement given by Smt.Grace led to the registration of
FIR 161/2008 and as Irfan Badshah was from the same
vicinity, familiar by face to the victim and his family,
therefore, he was apprehended within 24 hours which led to
the apprehension and arrest of his two associates. After the
necessary formalities of the investigation in the matter, a
chargesheet was filed under Section 173 Cr.P.C.
2. One of the three accused persons turned out to be
juvenile and his matter went before Juvenile Justice Board.
After compliance of section 207 Cr.P.C. matter was
committed to the court of sessions. On the basis of material
placed on record a charge was framed against accused Irfan
and Mohd. Imran under Section 302, 323 read with section
34 IPC, to which, on being read over and explained, they
pleaded not guilty."
3. Counsel for the appellants submits that the appellants have been convicted
by the trial court without there being any evidence against them; and they
have been convicted only on the basis of conjectures and surmises, and
without there being any material to support the conviction. Counsel for
the appellants also submits that the names of the appellants do not find
mention in the report of the crime team which would show that the
appellants had not been named by the eye witnesses. It is contended that
the prosecution in the present case has failed to establish the place of
occurrence, the time of occurrence, the manner of occurrence, the identity
of the accused and the recovery alleged to have been made at the instance
of the appellants. It is the case of the appellants that the appellants have
been falsely implicated in this case. It is strongly urged before this court
that the prosecution case is based upon the statement of Mrs.Grace, wife
of the deceased, whose statement was supposed to have been recorded on
the date of the incident i.e. 12.5.2008 at the hospital. During cross-
examination this witness (Mrs.Grace) has categorically admitted that
when she was in the hospital she did not know the name of the accused
and thus she could not have named the appellant no.1 in the hospital
whereas surprisingly the name of the appellant no.1 figures in her
statement, which was supposed to have been recorded at the hospital.
4. Another ground sought to be urged by counsel for the appellants is that
although the name of appellant no.1 figures in the statement of Mrs.Grace
(PW-4) and Xavier (PW-5), however, in the cross examination both the
witnesses categorically admitted that they did not know appellant no.1
prior to the incident. It is also canvassed before this court that there was
complete failure on the part of the investigating officer to get a Test
Identification Parade (TIP) conducted. The witnesses to the recovery did
not support the case of the prosecution during cross-examination.
Another witness, Prem was not a witness to the incident, but in fact had
been planted by the police instead of the original Prem, whose statement
was alleged to have been recorded by the I.O. under Section 161 Cr.P.C.
5. It is also contended by Mr.Singh, counsel for the appellant that the
material witnesses have not supported the case of the prosecution and
further there are material contradictions in the testimonies of the witnesses
of the prosecution. It is also contended that the prosecution has not been
able to establish the motive for the crime having been committed. It is
also submitted that based on the testimonies of the witnesses two view are
possible and thus the benefit of doubt should be given to the appellants. It
has also been strongly urged before this court that the statement of
Mrs.Grace cannot be treated as an FIR but it was a mere statement under
Section 161 Cr.Pl.C., as the State machinery was set into motion by a
telephone call received from one Capt. Sinha, who had seen the incident
from the backside of his house of Friends Colony; and it was Capt. Sinha,
who called the police control room, which information was reduced into
writing as DD No.10 dated 12.5.2008 (Ex.PW-13/B), however, the same
was not treated as an FIR. It is thus the argument of counsel for the
appellant that it is this information which should have been treated as the
first information with regard to the incident and should have been
recorded as an FIR and not the statement of the wife of the deceased i.e
Ex. PW-4/A.
6. It is also the case of the appellants that the statement of Smt.Grace should
not have been signed by her and was not to be used for any other purpose
except as provided in the proviso to Section 162 Cr.P.C.
7. In support of his submission that a telephonic information recorded in the
daily diary book should have been treated as an FIR, as the information
given on the telephone disclosed a cognizable offence and it is on the
basis of such information recorded in the daily diary being DD No.10 the
police started the investigation and not on the basis of the statement made
by Mrs.Grace, counsel for the appellants has placed reliance on Sunil
Kumar and Ors. Vs. State of M.P. reported at (1997) 10 SCC 570 and
more particularly paragraph 20, which reads as under:
20. While on this point we wish to mention however that the
High Court erred in not treating the telephonic information that
P.W.3 gave to the police station as the F.I.R. It is not disputed that
P.W.3 did give an information to the police station wherein he
stated that one person had been killed and another person had been
dismembered and it was recorded accordingly in the daily diary
book (Ex.P/17). The same entry discloses, notwithstanding the
absence of the names of the assailants therein, a cognizable offence
an indeed it is on the basis thereof that P.W.6 initially started their
investigation. Ext.P/17 will therefore be the F.I.R and the statement
of Ramesh (Ext.P.2) which was recorded by him in course of the
investigation is to treated as one recorded under Section 161
Cr.P.C. This conclusion of ours, however, does not in any way
affect the merits of the prosecution case for we find that
immediately after P.W.1 was taken to the hospital his statement
was recorded by a recorded as a dying declaration which,
consequent upon his survival, is to be treated only as a statement
recorded under Section 164 Cr.P.C. and can be used for
corroboration or contradiction. This statement recorded by the
Magistrate at the earliest available opportunity clearly discloses the
substratum of the prosecution case including the names of the
appellants as the assailants and there is not an iota of materials on
record to show that this was the upshot of his tutoring. On the
contrary, this statement was made at a point of time when P.W.1
was in a critical condition and it is difficult to believe that he would
falsely implicate the appellants leaving aside the real culprits. In
view of the observation of the trial Court that his evidence was
discrepant we carefully looked into the same and found that there
was only some minor inconsequential contradictions which did not
at all impair his evidence. Then again, as already noticed, the
evidence of the doctors fully supports his version of the incident.
Another related aspect of the matter is the lodging of the complaint
by P.W.I and his brother before the Superintendent of Police
(Ex.P.1) (which we have earlier referred to) wherein they sought
for police action against the threat meted out by the appellant that
they would cut them to pieces a threat which was brutally (and
literally) translated into action."
8. Reliance is also placed by counsel for the appellant in the case of Muthu
Vs. State of Karnataka reported at (2002) 9 SCC 158, wherein the
evidence of the informant was found to be not consistent with two other
witnesses. The Apex Court also took into account naming of the accused
in FIR as a mystery as the informant had categorically stated that she did
not know the name of the accused, thus the Apex Court did not find the
evidence of the two witnesses inspiring confidence. Relevant paragraphs
of the judgment read as under:
"12. Two things are worth noticing. Though the informant
categorically stated that she did not know the appellant and had
seen him for the first time at the time of the incident, in the FIR
lodged by her the accused has been named as Muthu. The witness
has nowhere stated that she came to know the name of the assailant
from any of the persons who had assembled at the place of
occurrence. She also made a very categorical statement that the
assailant threw away the knife at the spot and ran away after two
persons attempted to apprehend him.
21. How the name of the appellant came to be mentioned in the
FIR is a mystery. The informant, PW- 10, has clearly and
categorically stated that she did not know the appellant and that she
saw him for the first time only on the date of incident. She does not
even claim that she came to know of his name from any other
person, and yet in the FIR the accused has been named. From the
deposition of PWs 5 and 6, it does not appear that they had
disclosed the name of the accused to the informant, PW-10. It is
interesting to note that even these witnesses in the course of their
deposition have no where mentioned the name of the accused
though they claimed to know him.
22. PW- 5 also stated that when he reached the place of
occurrence, he found the informant weeping naming the accused.
Obviously, PW- 5 was not speaking the truth, because if the
informant did not know the accused and had seen him for the first
time at the time of occurrence, there was no question of her naming
the accused."
9. Counsel for the appellants has also submitted that the trial court has
incorrectly placed reliance on the testimony of PW-19, without taking into
account that this witness was asked leading questions and thus the
evidence of this witness would have little or no value.
10. In the alternate, counsel for the appellants has submitted that by no stretch
of imagination case under Section 302 IPC would be made out against the
appellants. The incident took place at the spur of the moment and the
injuries which were inflicted on the thigh, which was not a vital organ,
turned out to be fatal, and thus the appellants should be convicted under
Section 304 Part-II IPC on the period already undergone.
11. Mr.Ghazi, learned APP for the State submits that the prosecution has been
able to establish its case beyond any shadow of doubt. Three witnesses
have supported the case of the prosecution, including the wife of the
deceased (Smt.Grace), Xavier and Prem. Learned APP for the State also
submits that the FIR has been rightly recorded on the basis of the
statement of Smt.Grace, who was the eye witness and not on the basis of
the statement of Capt. Sinha, who had only informed the police by making
a phone call.
12. Learned APP for the State also contends that the testimonies of the wife
of the deceased (Mrs.Grace), Prem, Xavier, leave no room for doubt that
the appellants committed the crime and inflicted as many as 18 knife
blows on the deceased, ruthlessly dragged him to the railway tracks and
left him to die. The vein of the wrist of the deceased was cut; the victim
was stabbed in the neck, besides the other parts of his body. It is
submitted that the prosecution has been able to establish the motive that a
small issue was blown out of proportion, the appellant no.1 had left the
place of incident and threatened the deceased that he would be back soon
and settle the score. Subsequently he arrived at the spot of the incident
with two associates armed and prepared to kill the victim. It is contended
that the testimony of the eye witnesses stand duly corroborated with the
medical evidence; and the doctor has opined that the death could have
been caused with the knife which was recovered at the instance of the
appellants, moreover the clothes of appellant no.1 had human blood of B
group, which was the blood group of the deceased.
13. Learned APP for the State also submits that in case there are any
omissions and commissions by the investigating officer, the benefit
cannot accrue to the appellants and the appellants cannot be acquitted
solely on account of any technical defect.
14. We have heard counsel for the appellants as also learned APP for the
State and considered their rival submissions. The counsel have also taken
us through the record of the trial court and the testimonies of the
witnesses. In order to prove their case, the prosecution has examined 24
witnesses; and statements of the accused were also recorded under Section
313 Cr.P.C., the accused claimed themselves to be innocent and stated
that they have been falsely implicated in this case. PW-1 (Dr. Sanjeev
Lalwani), Assistant Professor AIIMS Hospital, New Delhi, testified that
he had conducted the post-mortem examination on the body of the
deceased who was a 28 year old male. As per the testimony of PW-1 the
cause of death was shock and haemorrhage due to ante mortem injury
no.18 as mentioned caused by sharp edged weapon and was sufficient to
cause death in ordinary course of nature. Injuries No.5, 6, 7, 8, 12, 13, 17
& 18 were caused by sharp weapon and injuries No.1, 2, 3, 4, 9, 10, 11,
14, 15 & 16 were caused by blunt force. Injuries No.1 to 17 were not
sufficient to cause death individually as well as collectively.
15. This witness also testified that he had examined the weapon and after
examining the post mortem report and knife he opined that injuries No. 5
to 8, 12, 13, 17 and 18 could be possible with the given weapon.
16. PW-4, Mrs.Grace is the star witness; she has testified that she is a house-
wife and her husband was an electrician. On 12.5.2008 at about 2:30 p.m.
she and her husband were sitting at the gate of the jhuggi of her cousin
brother, Xavier. Her brother-in-law, Prem, and her cousin brother,
Xavier, were also sitting on the cot inside the jhuggi. Irfan Badshah, who
was going towards Okhla Railway Station, looked towards them and
asked her husband as to why he was staring at him. Her husband had
stated that "Mein to railway line ki tarf dekhte hi rehta hun, isme kya baat
hein". Appellant no.1 thereafter started abusing them. PW-4 tried to
intervene. Irfan Badshah left the spot and said that "he would see us and
that he would return after sometime". After about half an hour appellant
no.1 along with two associates came and started pelting stones at their
house. Xavier asked appellant no.1 as to why he was pelting stones at
their house. At this Irfan Badshah caught hold of the hand of Xavier,
dragged him and started beating Xavier. Her husband came to the rescue
of Xavier. One of the appellants gave a stone blow on the forehead of
Xavier and appellant no.1 gave a knife blow above knee of the left leg.
Thereafter all the three persons dragged her husband towards the railway
line. PW-4 and Xavier went towards the railway line to save her husband.
One of the appellants caught hold of PW-4‟s husband from the back side
and the other one caught hold of the hands of her husband while appellant
no.1 gave a knife blow on the neck as well as on the wrist of left hand of
her husband. Thereafter they pushed her husband near the railway line and
ran away from the spot. PW-4 has further testified that someone made a
call at No.100. The Police reached the spot. PW-4 and her brother,
Xavier, removed her husband to the hospital in the PCR van where the
Doctor declared her husband dead. The Police recorded her statement
(Exhibit P-4/A). She also testified that she identified all the three accused
persons in the Court. PW-4 has also testified that she came to know the
names of the other two accused persons as Mohd.Imran and
Mohd.Shahzad. She identified the two appellants, who were present.
17. In her cross-examination, PW-4 has testified that Prem did not intervene
in the quarrel and remained in the house. She had sustained injuries while
snatching knife from Irfan Badshah, but she had not shown the injury to
the Doctor in the hospital. PW-4 has also testified that she did not know
Irfan Badshah prior to the incident, neither she had previous enmity with
him nor her husband and Prem knew Irfan Badshah prior to the incident.
It is only later on the identity of Irfan Badshah was disclosed to her by the
locality people when she returned from the hospital (Baad Me Logo Ne
Uska Naam Irfan Badshah Bataya). She had volunteered that she had
disclosed the name of Irfan Badshah to the Police. She also denied the
suggestion that the Police did not tell that Irfan Badshah had committed
murder of her husband. In the later part of the cross-examination, this
witness had testified that she did not remember as to what time she came
back to the house from the hospital. She was shown the statement made
under Section 161 of the Code of Criminal Procedure by the defence
counsel from the judicial file. She then stated that this statement was
given by her to the Police and earlier she could not understand therefore
she had stated that she did not give any statement to the Police on
12.5.2008. She also stated that on 12.5.2008 she had gone to the hospital
with the Police and she was not aware if she had told the name of Irfan
Badshah to the Police while going to the hospital. She denied the
suggestion that the incident did not take place in her presence. She
admitted as correct that she came to know the name of Irfan Badshah as
the assailant after her husband died due to injuries caused in the incident.
18. PW-5, Xavier, cousin brother of PW-4, is also an eye-witness. He has
testified that he was present at his house on 12.5.2008. The deceased,
Roshan, and Grace were sitting on the door of the house and they were
talking to each other. At about 2.30 p.m., appellant, Irfan Badshah, was
going towards Okhla station and on seeing Roshan, Irfan Badshah came to
them and asked as to why Roshan was staring at him. Roshan stated that
he was not staring at him and was looking towards the railway line. Irfan
Badshah, who was under the influence of liquor, started abusing Roshan.
Mrs.Grace had tried to pacify the matter at which Irfan Badshah said he
would return after sometime and would teach them a lesson. After about
half an hour, Irfan Badshah along with two associates came to the spot
and started pelting stones. PW-5 questioned Irfan Badshah as to why he
was pelting stones at their house. Irfan Badshah caught hold of his hand
and dragged him. Deceased, Roshan, came to his rescue. PW-5 was given
a stone blow on his forehead. Irfan Badshah, who was having a knife in
his hand, gave a knife blow on the thigh above the knee of the right leg of
Roshan. Thereafter all the three appellants took Roshan towards the
Railway line by dragging him. He wrapped his longi on his forehead as he
was bleeding. He along with Mrs.Grace went to railway line in order to
save Roshan. One appellant caught hold of Roshan from the back side, the
other appellant caught hold of his hands and Irfan Badshah gave a knife
blow on the wrist of the left hand as well as on the neck of Roshan.
Thereafter they pushed Roshan near the railway line and ran away. While
running, the appellant, Irfan Badshah, fell down on the stones by the side
of the railway line due to which he also sustained injuries. Someone made
a call to No.100. PW-5 and Mrs.Grace removed Roshan to the Trauma
Centre in the PCR van where Roshan was declared dead. He was treated
in the Trauma Centre for his forehead injury. The Police recorded the
statement of Mrs.Grace. He had accompanied the Police to the spot where
the site plan was prepared. Thereafter they went in search of Irfan
Badshah, who was apprehended while coming on the road of Lotus
Temple. He immediately identified him and told the Police. Irfan Badshah
was arrested vide Arrest Memo Exhibit PW-5/A. His personal search was
conducted. The Police collected the stones and the blood from the spot.
Hawai chappal of the deceased, Roshan, was also seized. On 13.5.2008,
PW-5 accompanied the Police and Irfan Badshah to the spot from where
Irfan Badshah got recovered the knife from the bushes between the
railway line near the spot. The blade of the knife was curved. He also got
recovered blood stained shirt and cream coloured pant, which he was
wearing at the time of the murder. He identified his signatures on the
seizure memos. He also identified all the three accused persons. He also
identified the case properties including knife, pink coloured shirt and
cream coloured pant being P-2 and P-3 respectively. Hawai Chapal was
identified as Exhibit P-4.
19. During cross-examination, PW-5 stated that at the time of the incident
five persons were present at his house i.e. his cousin brother, deceased
Roshan and his wife Mrs.Grace, his nephew Jacqurious and his Jija
(brother-in-law) Prem. He also testified that at the time of the incident, he
did not know the name of Irfan Badshah.
20. During cross-examination, PW-5 has testified that on the date of the
incident he did not go to the place of the incident along with the Police
but had gone on the next day and the site plan was prepared at his
instance. He denied that Irfan Badshah was arrested in his presence, but
he identified his signatures on the arrest memo, Exhibit PW-5/A. PW-5
has further testified that the distance between his house and the point at
which the dead body was found on the railway track is about 20 meters.
PW-5 has further testified that on 12.5.2008 after the arrest of appellant,
Irfan Badshah, he had not gone to the railway track from where the dead
body was recovered. PW-5 has volunteered that Roshan had not died at
that time when he saw him on the railway track, however, Roshan was
profusely bleeding and he became unconscious but he could not say
whether he died on the way to the hospital or in the hospital. It is further
testified that Roshan was brought to the house from the railway track and
was kept there for about 20 to 25 minutes as they had called the Police.
On 12.5.2008 Police did not lift anything in his presence at that time from
the railway track. The distance between the place from where the knife
was recovered by the Police and the point from where Roshan was found
lying was about 5-6 meters. It is further testified by PW-5 that he could
not tell the name of the person, who had taken out the knife from the
bushes but he was the Police Officer. The Police had lifted blood stained
stones from the railway track on 13.5.2008. The chappals were lying at a
distance of 2 or 2 ½ feet from the place where Roshan was found lying. In
the morning, the chappals of Roshan were lifted by the Police while he
was standing outside his house. He also testified that he could read
Exhibit PW-5/C but did not remember whether he had signed Exhibit
PW-5/C on 12.5.2008 or some other day. The same was his answer with
regard to Exhibit PW-5/D. He also testified that he did not meet the
appellant, Irfan Badshah on 13.5.2008. The Police had not brought the
appellant, Irfan Badshah, to the railway track on 13.5.2008 in his
presence. In fact, the Police had never brought the appellant, Irfan
Badshah, to the railway track in his presence. He had signed on Exhibit
PW-5/E after reading the same but probably did not sign the same on
13.5.2008. It is also testified by PW-5 that the contents of Exhibit PW-5/E
were incorrect. The contents of Exhibit PW-5/C were correct but the
articles mentioned in the said memo were lifted on 13.5.2008. The articles
were lifted in his presence however Exhibit PW-5/C was not prepared in
his presence. He signed this memo in the Police Station. He has also
testified that the contents of Exhibit PW-5/D are correct but he had not
sign it on 12.5.2008. He had signed it in the Police Station. He had signed
the memo, Exhibit PW-5/E, in the Police Station. He had not signed the
memo, Exhibit PW-5/G, in the Police Station. He had seen the Police at
his house on 13.5.2008 but did not see the appellant, Irfan Badshah, who
had not come with the Police. He has testified that whatever was written
in Exhibit PW-5/G in respect of the visit of Irfan Badshah along with
Police in his house was incorrect. He had not signed Exhibit PW-5/F on
13.5.2008. He had not signed the same in the Police Station. He has also
testified that the contents of Exhibit PW-5/F to the effect that the
appellant, Irfan Badshah, got recovered his blood stained clothes in his
presence was incorrect.
21. PW-6, SI Nafe Singh, has testified that on 12.5.2008 he was posted with
Mobile Crime Team, South District and he had visited the spot of the
incident.
22. PW-7, HC Amit, has testified that on 12.5.2008 he was posted with Police
Station Amar Colony. On the said date the Duty Officer gave him one
envelope containing the copies of FIR of this case with the instructions to
deliver the said copies of FIR at the residences of the ilaka Magistrate,
DCP and the Joint Commissioner of Police, Southern Range, and as per
the instructions he had delivered copies of the FIR to the said officials.
23. PCR form dated 12.5.2008 has been proved by PW-12 (woman constable
Neetu) wherein it has been recorded that at 15:10:36 hours an intimation
was received to the effect that someone had been stabbed by knife at
Gandhi Camp, Sriniwaspuri near house of Chameli Munshi. PW-14 (S.I.
Gajraj Singh) has deposed that the appellants were arrested vide arrest
memo Ex.PW-14/C. PW-14 had identified his signatures at point „A‟.
PW-14 recorded disclosure of the appellant as Ex.PW-14/D; place of
incident was pointed out by the appellant and the pointing out memo was
exhibited as Ex.PW-14/E. PW-15 (ASI Ved Prakash) has testified with
regard to arrest of the appellant and with regard to the recoveries.
24. The first argument of learned counsel for the appellants is that the FIR
should have been on the basis of the telephonic information received
through Capt. Sinha, however, the statement of the said person was not
recorded and, thus, in the absence of any FIR the case of the prosecution
must fail. In support of this submission, reliance is placed by counsel for
the appellants in the case of Sunil Kumar and Ors (Supra).
25. There is no force in the submission of counsel for the appellants. In the
case of Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi)
reported at AIR 2010 SC 2352, it has been held that cryptic telephonic
messages cannot be treated as an FIR as the aim and purpose of such a
phone call was only to get the police to the scene of the offence and not to
register the FIR. Relevant paragraph of the judgment reads as under:
"What constitutes the First Information Report
35) Let us consider whether the three telephonic messages
received by the Police at around 2:25 a.m. on 30.04.1999 or
the statement made by Shyan Munshi recorded at Ashlok
Hospital constitute the FIR. It is the submission of the
learned senior counsel for the appellant-Manu Sharma that
the statement of Rohit Bal PW-70 ought to have been used
for the purpose of registration of FIR instead of Shyan
Munshi PW-2. It was demonstrated that Rohit Bal had made
two calls on `100' on coming to know by other persons that
Jessica Lal has been shot inside the cafi. As against this,
Shyan Munshi PW-2 was very much within the vicinity of
the place of occurrence and, therefore, the statement of
Shyan Munshi was used for the purpose of registration of
FIR. It is relevant to point out that PW-70 has never claimed
to have witnessed the incident. He confirmed his presence on
the spot and having seen PW-20 accosting a man."
After discussing the case law, the Apex Court has held as under:
"41) The information about the commission of a cognizable
offence given "in person at the Police Station" and the
information about a cognizable offence given "on telephone"
have forever been treated by this Court on different
pedestals. The rationale for the said differential treatment to
the two situations is, that the information given by any
individual on telephone to the police is not for the purpose of
lodging a First Information Report, but rather to request the
police to reach the place of occurrence; whereas the
information about the commission of an offence given in
person by a witness or anybody else to the police is for the
purpose of lodging a First Information Report. Identifying
the said objective difference between the two situations, this
Court has categorically held in a plethora of judgments that a
cryptic telephonic message of a cognizable offence cannot be
treated as a First Information Report under the Code. It has
also been held in a number of judgments by this Court that
merely because the information given on phone was prior in
time would not mean that the same would be treated as the
First Information Report, as understood under the Code. This
view has been reiterated in Ramesh Baburao Devaskar and
Others vs. State of Maharashtra (2007) 13 SCC 501, that a
cryptic message given on telephone by somebody who does
not disclose his identity may not satisfy the requirement of
Section 154 of the Code of Criminal Procedure.
42) In view of the above discussion, the three telephonic
messages received by the police around 2.25 a.m. on
30.04.1999 did not constitute the FIR under Section 154 of
the Code and the statement of Shyan Munshi PW-2 was
rightly registered as the FIR."
26. In the present case one Capt. Sinha, who had seen the incident from the
backside of his house of Friends Colony had called the police; the
information was reduced into writing being DD No.10 dated 12.5.2008
(Ex.PW-13/B). Capt. Sinha, had informed that one person has been
stabbed. In our view the call was simple information to get the police at
the scene of the crime and the prosecution rightly registered the FIR based
on the statement made by Mrs. Grace, who was present at the spot of the
incident and an eye witness.
27. The second submission of learned counsel for the appellant is that PW-4
and PW-5, being the wife of the deceased and cousin of the wife of
deceased, respectively, are interested witnesses; their testimonies are not
reliable and trustworthy because both the witnesses have testified that
prior to the incident they did not know Irfan Badshah and after incident as
per PW-4 the people of the area had informed her about the name of Irfan
Badsha. It is sought to be urged before this Court that PW-4 had learnt
about the name of the person after she returned from the hospital but
surprisingly she had named Irfan Badshah in the hospital itself. On this
ground alone her testimony should be discarded.
28. There is no quarrel to the proposition that the evidence of interested or
partisan witnesses is to be examined with great care and caution and
require great scrutiny. It would be worthwhile to note herein the
observations of this Court in Crl.A.No.470/2003 Harish Vs. The State
and more particularly paragraphs 41, 42, 43 and 44, which reads as under:
"41. It has been consistently held by the Apex Court that
Courts must be cautious and careful while weighing such
evidence given by witnesses who are partisan or interested,
but such evidence should not be mechanically discarded. It
will be useful to refer to the judgment of Masalte v. State of
Uttar Pradesh, reported at AIR 1965 Supreme Court 202,
relevant portion of which is reproduced below:
"14. Mr. Sawhney has then argued that where
witnesses giving evidence in a murder trial like the
present are shown to belong to the faction of victims,
their evidence should not be accepted, because they
are prone to involve falsely members of the rival
faction out of enmity and partisan feeling. There is no
doubt that when a criminal court has to appreciate
evidence given by witnesses who are partisan or
interested, it has to be very careful in weighing such
evidence. Whether or not there are discrepancies in the
evidence; whether or not evidence strikes the court as
genuine whether or not the story disclosed by the
evidence is probable, are all matters which must be
taken into account. But it would, we think, be
unreasonable to contend that evidence given by
witnesses should be discarded only on the ground that
it is evidence of partisan or interested witnesses; Often
enough, where factions prevail in villages and murders
are committed as a result of enmity between such
factions, criminal courts have to deal with evidence of
a partisan type. The mechanical rejection of such
evidence on the sole ground that it is partisan would
invariably lead to, failure of justice. No hard and fast
rule can be laid down as to how much evidence should
be appreciated. Judicial approach has to be cautious in
dealing with such evidence; but the plea that such
evidence should be rejected because it is partisan
cannot be accepted as correct."
42. Similar view has also been expressed in the case of State
of Punjab v. Karnail Singh, reported at AIR 2003 Sc 3613:
8. We may also observe that the ground that the
witnesses being close relatives and consequently being
partisan witnesses, should not be relied upon, has no
substance. This theory was repelled by this Court as
early as in Dalip Singh and Ors. v. The State of
Punjab (AIR 1953 SC 364) in which surprise was
expressed over the impression which prevailed in the
minds of the Members of the Bar that relatives were
not independent witnesses. Speaking through Vivian
Bose, J. it was observed:
"We are unable to agree with the learned Judges of the
High Court that the testimony of the two eye-witnesses
requires corroboration. If the foundation for such an
observation is based on the fact that the witnesses are
women and that the fate of seven men hangs on their
testimony, we know of no such rule. If it is grounded
on the reason that they are closely related to the
deceased we are unable to concur. This is a fallacy
common to many criminal cases and one which
another Bench of this Court endeavoured to dispel in -
Rajasthan' AIR 1952 SC 54 at p.59. We find, however,
that it unfortunately still persists, if not in the
judgments of the Courts, at any rate in the arguments
of counsel.
9. Again in Masalte and Ors. v. The State of U.P. AIR
1965 SC 202 this Court observed : (pp. 209-210 para
14):
"But it would, we think, be unreasonable to contend
that evidence given by witnesses should be discarded
only on the ground that it is evidence of partisan or
interested witnesses..... The mechanical rejection of
such evidence on the sole ground that it is partisan
would invariably lead to failure of justice. No hard and
fast rule can be laid down as to how much evidence
should be appreciated. Judicial approach has to be
cautious in dealing with such evidence; but the plea
that such evidence should be rejected because it is
partisan cannot be accepted as correct."
10. To the same effect is the decision in State of
Punjab v. Jagbir Singh : AIR 1973 SC 2407 and Lehna
v. State of Haryana: 2002 (3) SCC 76. As observed by
this Court in State of Rajasthan v. Smt. Kalki and
Anr. : AIR 1981 SC 1390, normal discrepancies in
evidence are those who are due to normal errors of
observation, normal errors of memory due to lapse of
time, due to mental disposition such as shock and
horror at the time of occurrence and those are always
there, however, honest and truthful a witness may be.
Material discrepancies are those who are not normal,
and not expected of a normal person. Courts have to
lable the category to which a discrepancy may be
categorized. While normal discrepancies do so. These
aspects were highlighted in Krishna Mochi and Ors. v.
State of Bihar etc. : JT 2002 (4) SC 186."
43. This view has again been reiterated in the case of State of
NCT of Delhi v. Rani Kant Sharma and Ors. reported at :
2007 (3) JT 501, relevant portion is reproduced below:
11. In some cases persons may not like to come and
depose as witnesses and in some other cases the
prosecution may carry the impression that their
evidence would not help it as there is likelihood of
partisan approach so far as one of the parties is
concerned. In such a case mere non- examination
would not affect the prosecution version. But at the
same time if the relatives or interested witnesses are
examined, the court has a duty to analyse the evidence
with deeper scrutiny and then come to a conclusion as
to whether it has a ring of truth or there is reason for
holding that the evidence was biased. Whenever a plea
is taken that the witness is partisan or had any hostility
towards the accused, foundation for the same has to be
laid. If the materials show that there is partisan
approach, as indicated above, the court has to analyse
the evidence with care and caution. Additionally, the
accused persons always have the option of examining
the left out persons as defence witnesses.
44. Again in the case of Manoj v. State of Tamil Nadu,
reported at JT 2007(5) Sc 145.
9. In regard to the interestedness of the witnesses for
furthering the prosecution version, relationship is not a
factor to affect the credibility of a witness. It is more
often than not that a relation would not conceal the
actual culprit and make allegations against an innocent
person. Foundation has to be laid if a plea of false
implication is made. In such cases, the court has to
adopt a careful approach and analyse evidence to find
out whether it is cogent and credible.
10. In Dalip Singh and Ors. v. The State of Punjab it
has been laid down as under:
A witness is normally to be a considered independent
unless he or she springs from sources which are likely
to be tainted and that usually means unless the witness
has cause, such as enmity against the accused, to wish
to implicate him falsely. Ordinarily a close relation
would be the last to screen the real culprit and falsely
implicate an innocent person. It is true, when feelings
run high and there is personal cause for enmity, that
there is a tendency to drag in an innocent person
against whom a witness has a grudge along with the
guilty, but foundation must be laid for such a criticism
and the mere fact of relationship far from being a
foundation is often a sure guarantee of truth. However,
we are not attempting any sweeping generalization.
Each case must be judged on its own facts. Our
observations are only made to combat what is so often
put forward in cases before us as a general rule of
prudence. There is no such general rue. Each case must
be limited to and be governed by its own facts.
11. The above decision has since been followed in Guli
Chand and Ors. v. State of Rajasthan in which
Vadivelu Thevar v. State of Madras was also relied
upon."
29. We find the above submission of learned counsel for the appellants also
without any force for the reason that we have carefully examined the
testimonies of PW-4 and PW-5 and find the same to be truthful and
reliable. The description of the incident by both the witnesses is almost
identical. The time, place and the manner in which the incident took place
are also identical. In their testimonies, both the witnesses have given a
correct description as to how appellant no.1 had first inflicted a knife
blow and on which portion of the body of the deceased; the manner the
deceased was dragged; how PW-5 sustained head injury; the manner in
which stones were pelted, the manner in which somebody called the
Police; and the identification of the appellants by PW-4 and PW-5.
These testimonies stand corroborated by the post mortem report Ex PW-
1/A and the opinion of the doctors.
30. Some contradictions have been pointed out by counsel for the appellants
in relation to the evidence of PW-4, PW-5 and PW-20. It has been
submitted by counsel for the appellants that evidence of PW-5 Xavier is
not trustworthy, as he has stated that he was not present at the time of the
arrest, and neither blood stained clothes were recovered at his instance. In
the examination-in-chief, this witness has testified that he accompanied
the police to the spot where the police prepared the site plan; thereafter he
accompanied the police for search of appellant no.1 and the appellant no.1
was apprehended while he was coming on the road of lotus temple. PW-5
has also deposed that he identified the appellant no.1 and told the police.
The appellant no.1 was arrested, the arrest memo was prepared as Ex.PW-
5/A; his personal search was conducted as Ex.PW-5/B, which was signed
by him at point „A‟. PW-5 has also deposed that the stone and blood from
the spot was collected vide seizure memo PW-5/C bearing his signatures
at point „A‟; and Hawai Chappal of the deceased was seized vide Ex.PW-
5/D. PW-5 has also testified that on 13.5.2008 police took him and the
appellant no.1 to the spot from where the appellant no.1 got recovered
blood stained knife from the bushes between railway lines. The blade of
the knife was curved. He pointed out his signatures at point „A‟ Ex.PW-
5/E. PW-5 also testified that the appellant no.1 led them to Okhla market
infront of one bank and on his pointing out from the bushes near the wall
one polythene containing blood stained shirt and cream coloured pant was
recovered, Ex. PW-5/F; he identified his signatures at point „A‟. The
examination-in-chief of this witness was conducted on 17.3.2011; and he
was partly cross-examined on 21.2.2012 almost after a gap of one year
and further cross-examination was conducted on 3.3.2012 when this
witness stated that he had not gone to the lotus temple and accused was
not arrested in his presence. Although he identified his signatures on the
arrest memo, he denied that search of the appellant no.1 was conducted in
his presence; he also denied that he had not gone to the railway track from
where the dead body was recovered. We may notice that the incident took
place in the month of May, 2008; the statement of this witness (PW-5)
was recorded in Court for the first time on 17.3.2011; he was cross-
examined partly on 21.2.2012 and thereafter on 3.3.2012. This witness
has not denied his signatures either on the arrest memo or on the seizure
memos. In fact during the cross-examination on 3.3.2012 PW-5 has
testified that he could not tell the exact location of arrest of the appellant
no.1 but it was a road of lotus temple near Subzi Mandi on 12.5.2008. He
also reiterated that in his presence police had taken photographs and lifted
stones; and the police had also recovered knife from the bushes. The
discrepancies in our view are on account of the passage of time between
the date of the incident i.e. 12.5.2008 and the date when the statement of
PW-5 was recorded in court i.e. on 17.3.2011 and further passage of time
in recording further cross-examination i.e. on 21.2.2012 and on 3.3.2012.
31. At this stage, we may notice that the Supreme Court of India has held that
the minor contradictions and improvements, which do not touch the core
issue, cannot be a ground to discredit the testimony of a witness.
However, in the present case there are hardly any contradictions in the
testimonies of these two witnesses.
32. The Apex Court in the case of Mritunjoy Biswas Vs. Pranab @ Kuti
Biswas and anr. reported at 2013, Vol. 12 SCC 796 has held as under:
"As is evincible, the High Court has also taken note of certain
omissions and discrepancies treating them to be material omissions
and irreconcilable discrepancies. It is worthy to note that the High
Court has referred to the some discrepancies which we find are
absolutely in the realm of minor discrepancies. It is well settled in
law that the minor discrepancies are not to be given undue
emphasis and the evidence is to be considered from the point of
view of trustworthiness. The test is whether the same inspires
confidence in the mind of the court. If the evidence is incredible
and cannot be accepted by the test of prudence, then it may create a
dent in the prosecution version. If an omission or discrepancy goes
to the root of the matter and ushers in incongruities, the defence can
take advantage of such inconsistencies. It needs no special
emphasis to state that every omission cannot take place of a
material omission and, therefore, minor contradictions,
inconsistencies or insignificant embellishments do not affect the
core of the prosecution case and should not be taken to be a ground
to reject the prosecution evidence. The omission should create a
serious doubt about the truthfulness or creditworthiness of a
witness. It is only the serious contradictions and omissions which
materially affect the case of the prosecution but not every
contradiction or omission (See Leela Ram vs. State of Haryana and
another, Rammi alias Rameshwar v. State of M.P. and Shyamal
Ghosh v. State of West Bengal."
33. The submission of learned counsel for the appellants that statement of
PW-4 was recorded at the hospital where she named Irfan Badshah but as
per her testimony she learnt the name of Irfan Badshah after she returned
from the hospital, in our view can also be of no benefit to the appellant as
during cross-examination this witness clarified that "on 12.5.2008 I had
gone to the hospital with police. I was not aware however, if I had to tell
the name of Irfan Badsha to Police while going to hospital".
34. The testimony of a witness is to be read as a whole and on complete
reading of the testimonies of PW-4 and PW-5 we are unable to agree with
the submissions made by learned counsel for the appellants that the name
of the appellants was given by PW-4 and PW-5 on the asking of the
Police. The presence of PW-5 stands corroborated by the fact that PW-5
Xavier received a head injury, which stands established from his MLC,
Exhibit PW-22/L, which would clearly establish his presence at the spot
of the incident and would also substantiate his testimony with regard to
the manner the incident took place and stones were pelted.
35. The knife used was recovered at the instance of appellant no.1 and as per
Dr.Sanjeev Lalwani, PW-1, the cause of death was shock and
haemorrhage due to ante-mortem injury no.18 as mentioned caused by
sharp edged weapon and was sufficient to cause death in ordinary course
of nature. Injuries No.5, 6, 7, 8, 12, 13, 17 & 18 were caused by sharp
weapon and injuries No.1, 2, 3, 4, 9, 10, 11, 14, 15 & 16 were caused by
blunt force. Injuries No.1 to 17 were not sufficient to cause death
individually as well as collectively.
36. Blood stained clothes of appellant no.1 were also recovered on his
pointing out. The clothes contained human blood and as per the FSL
report the clothes worn by him at the time of the incident contained the
same blood group B as that of the deceased.
37. Learned counsel for the appellant has labored hard to show that the
person, Prem, whose statement was recorded under Section 161 of the
Code of Criminal Procedure was different than the person, Prem, who
entered into the witness box. Counsel has drawn attention of the court
that it is unclear from the evidence as to whether the statement of Prem
Singh son of Hari Singh was recorded or statement of Prem Singh son of
Kuzru was recorded. The statement of Prem (PW-20) in our view is
reliable and trustworthy. He has deposed on the lines of PW-4 and PW-5;
and he was also present at the spot of the incident. Another submission
made by counsel for the appellant was that in any case the offence under
Section 302 IPC would not be made out and at best it would be an offence
under Section 304 Part-I.
Whether the offence falls under the purview of Section 304 Part-I
38. In Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh
(2006) 11 SCC 444 the Supreme Court enumerated some of the
circumstances relevant to find out whether there was any intention to
cause death on the part of the accused. The Court observed:
...Therefore, the court should proceed to decide the pivotal
question of intention, with care and caution, as that will
decide whether the case falls Under Section 302 or 304
Part I or 304 Part II. Many petty or insignificant matters -
plucking of a fruit, straying of cattle, quarrel of children,
utterance of a rude word or even an objectionable glance,
may lead to altercations and group clashes culminating in
deaths. Usual motives like revenge, greed, jealousy or
suspicion may be totally absent in such cases. There may
be no intention. There may be no premeditation. In fact,
there may not even be criminality. At the other end of the
spectrum, there may be cases of murder where the accused
attempts to avoid the penalty for murder by attempting to
put forth a case that there was no intention to cause death.
It is for the courts to ensure that the cases of murder
punishable Under Section 302, are not converted into
offences punishable Under Section 304 Part I/II, or cases
of culpable homicide not amounting to murder, are treated
as murder punishable Under Section 302. The intention to
cause death can be gathered generally from a
combination of a few or several of the following, among
other, circumstances: (i) nature of the weapon used; (ii)
whether the weapon was carried by the accused or was
picked up from the spot; (iii) whether the blow is aimed at
a vital part of the body; (iv) the amount of force employed
in causing injury; (v) whether the act was in the course
of sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether
there was any pre-meditation; (vii) whether there was any
prior enmity or whether the deceased was a stranger;
(viii) whether there was any grave and sudden
provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion; (x) whether the
person inflicting the injury has taken undue advantage
or has acted in a cruel and unusual manner; (xi) whether
the accused dealt a single blow or several blows. The
above list of circumstances is, of course, not exhaustive
and there may be several other special circumstances with
reference to individual cases which may throw light on the
question of intention...
39. In Chacko @ Aniyan Kunju and Ors. Vs. State of Kerala (2004) 12
SCC 269 it was held that :
All "murder" is "culpable homicide" but not vice versa.
Speaking generally, "culpable homicide" sans "special
characteristics of murder is culpable homicide not
amounting to murder". For the purpose of fixing
punishment, proportionate to the gravity of the generic
offence, IPC practically recognizes three degrees of
culpable homicide. The first is, what may be called,
"culpable homicide of the first degree". This is the gravest
form of culpable homicide, which is defined in Section
300 as "murder". The second may be termed as "culpable
homicide of the second degree". This is punishable under
the first part of Section 304. Then, there is "culpable
homicide of the third degree". This is the lowest type
10. The academic of culpable homicide and the
punishment provided for it is also the lowest among the
punishments provided for the three grades. Culpable
homicide of this degree is punishable under the second
part of Section 304. Distinction between "murder" and
"culpable homicide not amounting to murder" has always
vexed the courts. The confusion is caused, if courts losing
sight of the true scope and meaning of the terms used by
the legislature in these sections, allow themselves to be
drawn into minute abstractions. The safest way of
approach to the interpretation and application of these
provisions seems to be to keep in focus the keywords used
in the various clauses of Sections 299 and 300. The
following comparative table will be helpful in
appreciating the points of distinction between the two
offences:
1. Clause (b) of Section 299 corresponds with Clauses (2)
and (3) of Section 300. The distinguishing feature of the
mens rea requisite under Clause (2) is the knowledge
possessed by the offender regarding the particular victim
being in such a peculiar condition or state of health that
the internal harm caused to him is likely to be fatal,
notwithstanding the fact that such harm would not in the
ordinary way of nature be sufficient to cause death of a
person in normal health or condition. It is noteworthy
that the "intention to cause death" is not an essential
requirement of Clause (2). Only the intention of causing
the bodily injury coupled with the offender's knowledge of
the likelihood of such injury causing the death of the
particular victim is sufficient to bring the killing within
the ambit of this clause.
2. Clause (b) of Section 299 does not postulate any such
knowledge on the part of the offender. Instances of cases
falling under Clause (2) of Section 300 can be where the
assailant causes death by a fist-blow intentionally given
knowing that the victim is suffering from an enlarged
liver, or enlarged spleen or diseased heart and such blow
is likely to cause death of that particular person as a
result of the rupture of the liver, or spleen or the failure of
the heart, as the case may be. If the assailant had no such
knowledge about the disease or special frailty of the
victim, nor an intention to cause death or bodily injury
sufficient in the ordinary course of nature to cause death,
the offence will not be murder, even if the injury which
caused the death, was intentionally given. In Clause (3) of
Section 300, instead of the words "likely to cause death"
occurring in the corresponding Clause (b) of Section 299,
the words "sufficient in the ordinary course of nature"
have been used. Obviously, the distinction lies between a
bodily injury likely to cause death and a bodily injury
sufficient in the ordinary course of nature to cause death.
The distinction is fine but real and if overlooked, may
result in miscarriage of justice. The difference between
Clause (b) of Section 299 and Clause (3) of Section 300 is
one of degree of probability of death resulting from the
intended bodily injury. To put it more broadly, it is the
degree of probability of death which determines whether
a culpable homicide is of the gravest, medium or the
lowest degree. The word "likely" in Clause (b) of Section
299 conveys the sense of probability as distinguished
from a mere possibility. The words "bodily injury ...
sufficient in the ordinary course of nature to cause death"
mean that death will be the "most probable" result of the
injury, having regard to the ordinary course of nature.
40. For cases to fall under Clause (3) it is not necessary that the offender
intended to cause death so long as the death ensues from the intentional
bodily injury or injuries sufficient to cause death in the ordinary course
of nature. Rajwant Singh v. State of Kerala AIR 1966 SC 1874 is an
apt illustration of this point. In Virsa Singh v. State of Punjab
1958CriLJ818 Vivian Bose, J. speaking for the Court, explained the
meaning and scope of Clause (3). It was observed that the prosecution
must prove the following facts before it can bring a case under Section
300 "thirdly". First, it must establish quite objectively, that a bodily
injury is present; secondly, the nature of the injury must be proved.
These are purely objective investigations. Thirdly, it must be proved
that there was an intention to inflict that particular injury, that is to say,
that it was not accidental or unintentional or that some other kind of
injury was intended. Once these three elements are proved to be present,
the enquiry proceeds further, and fourthly, it must be proved that the
injury of the type just described made up of the three elements set out
above was sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential and has
nothing to do with the intention of the offender.
41. In Shiv Kumar Vs. State (NCT) of Delhi 2014(2) JCC1 282, it was
held that in dealing with Exception 4 to section 300 in Mahesh
Balmiki versus State of Madhya Pradesh, (2000) 1 SCC 310, it has been
observed:-
"7. Now Exception 4 to Section 300 IPC is in the following
terms:
Exception 4.--Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in
the heat of passion upon a sudden quarrel and without
the offender's having taken undue advantage or acted in
a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party
offers the provocation or commits the first assault.
The requirements of this exception are:
(a) without premeditation in a sudden fight;
(b) in the heat of passion upon a sudden quarrel;
(c) the offender has not taken undue advantage;
and
(d) the offender has not acted in a cruel or
unusual manner.
Where these requirements are satisfied, culpable
homicide would not be murder."
42. The submission of counsel for the appellant is to be considered on the
touchstone of law which has been laid down. In our view all the
requirements of exceptions as extracted hereinabove are not met. The act
of the appellants was not in the heat of passion or upon a sudden quarrel.
After the quarrel the appellant no.1 had gone back to his house only to
come back with appellant no.2, armed with a knife; the appellants acted in
a cruel and unusual manner. Helplessness of the victim is writ large on
the face of the record, as he was stabbed so many times and then dragged
and taken to the railway lines and left there which shows that the
appellants acted in a cruel manner.
43. Based on the evidence of PW-4 and PW-5, wherein the role of the
appellants was described and the scientific evidence i.e. the blood of „B‟
group on the clothes worn by the appellant no.1 at the time of commission
of the offence, leaves no room for doubt that appellant no.1 had inflicted
injuries on the deceased, which resulted in his death. The evidence would
also show that initially appellant no.1 had questioned the deceased as to
why he was staring at him; thereafter appellant no.1 threatened the
deceased and told him that he would return to teach him a lesson. After
half an hour the appellant no.1 came back with two other accomplices.
The appellant no.1 was carrying a knife; and out of the two other persons,
one person gave a knife blow on the thigh above knee of the left leg of the
deceased; thereafter deceased was dragged by all the three persons
towards the Railway line. One person caught hold of hands of the
deceased and the other person caught hold of the deceased from the
backside and appellant no.1 gave a knife blow on the neck as well as on
the wrist of the left hand of the deceased; and thereafter all three pushed
the deceased near the Railway line and ran from the spot, which would
show that the appellant no.1 had returned to the spot of the incident along
with two of his accomplices, pre-determined to teach the deceased a
lesson, as he had stated prior to the incident. Thus both the appellants
have rightly been held guilty by the trial court for the offence punishable
under Sections 302/323/34 of the Indian Penal Code. We find no merit in
the appeal and the same is accordingly dismissed.
G. S. SISTANI
(JUDGE)
SANGITA DHINGRA SEHGAL
(JUDGE)
MARCH 24th, 2015
ssn/msr
