Delhi High Court
Abid vs State (Nct Of Delhi) on 7 September, 2015
Author: R. K. Gauba
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 12th August, 2015
% Date of Decision: 7th September, 2015
+ CRL.A. 129/2015
ABID ..... Appellant
Through Mr. Jitendra Sethi and Mr.
Hemendra Jailiya, Advocates.
versus
STATE (NCT OF DELHI) ..... Respondent
Through Ms. Aashaa Tiwari, APP.
CRL.A. 133/2015
BABU ..... Appellant
Through Mr. Jitendra Sethi and Mr.
Hemendra Jailiya, Advocates.
versus
STATE (NCT OF DELHI) ..... Respondent
Through Ms. Aashaa Tiwari, APP.
CRL.A. 135/2015
NASEEM ..... Appellant
Through Mr. Jitendra Sethi and Mr.
Hemendra Jailiya, Advocates.
versus
STATE (NCT OF DELHI) ..... Respondent
Through Ms. Aashaa Tiwari, APP.
CRL.A. 137/2015
JONNY ..... Appellant
Through Mr. Jitendra Sethi and Mr.
Hemendra Jailiya, Advocates.
versus
STATE (NCT OF DELHI) ..... Respondent
Through Ms. Aashaa Tiwari, APP.
CRL.A. 491/2015
SHAMEEM ..... Appellant
Through Ms. Rakhi Dubey, Advocate.
versus
STATE (NCT OF DELHI) ..... Respondent
Through Ms. Aashaa Tiwari, APP.
CRL.A. 536/2015
RABI-UL-ISLAM ..... Appellant
Through Mr. Jitendra Sethi and Mr.
Hemendra Jailiya, Advocates.
versus
STATE (NCT OF DELHI) ..... Respondent
Through Ms. Aashaa Tiwari, APP.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K.GAUBA
R. K. GAUBA, J:
1. The six appellants before us stood trial in Sessions Case No.32/14
arising out of FIR 427/08 of Police Station, New Friends Colony on the
charge for offences punishable under Sections 302/34 Indian Penal Code,
1860 (IPC) for the murder of Mohd. Anwar son of Mohd. Shahid, under
Sections 307/34 IPC for attempted murder of Mohd. Bilal and Mohd.
Aslam (PW-15) and under Sections 323/34 IPC for voluntarily causing
injuries to Joshna Begum (PW-3) and Shilpi (PW-12) in the course of an
incident that statedly occurred at about 8.30 PM on 01.07.2008 in front of
shop of Bilal, Indira Gandhi Camp, Taimur Nagar, New Delhi. By
judgment dated 07.11.2014 of the Additional Sessions Judge, 02-South
East, Saket Courts, New Delhi, they have been held guilty and convicted,
as charged. By order dated 20.11.2014 of the learned trial judge, they
have been awarded imprisonment for life with fine of Rs.10,000/-, in
default simple imprisonment for one year for the offence under Section
302/34 IPC, rigorous imprisonment for seven years with fine of
Rs.5,000/- each, in default simple imprisonment for six months for the
offence under Section 307/34 IPC and rigorous imprisonment for one
year each for the offence under Section 323 IPC, with set off in terms of
Section 428 of the Code of Criminal Procedure, 1973 (Cr.P.C.).
2. The trial judge returned the findings of guilty, primarily believing
the eye witness account of Joshna Begum (PW-3) against the appellants
Rabi-Ul-Islam (Crl.A.No.536/2015) accused No.1 (A-1), Abid
(Crl.A.No.129/2015) accused No.2 (A-2), Babu (Crl.A.No.133/2015)
accused No.3 (A-3), Jonny (Crl.A.No.137/2015) accused No.4 (A-4),
Naseem (Crl.A.No.135/2015) accused No.5 (A-5) and Shamim
(Crl.A.No.491/2015) accused No.6 (A-6). Feeling aggrieved, each of the
convicted persons has come up with appeal seeking to assail the
impugned judgment and order on sentence.
3. Before we proceed to consider the contentious issues, it would be
advantageous to take note of certain introductory, or indisputable, facts.
4. Joshna Begum (PW-3), aged 30 years at the relevant point of time,
is the wife of Mohd. Aslam (PW-15), both residents of Jhuggi No.90,
Indira Gandhi Camp, Pahari No.1, Taimur Nagar, New Friends Colony.
Mohd. Anwar son of Mohd. Shahid, the person stated to have suffered the
homicidal death in the incident alleged in this case (and so hereinafter
referred to variously as "the victim" or "the deceased") and Bilal (also
described by PW-3 as "Cobra Bilal"), since deceased, one of the several
persons who were injured in the same incident, were real brothers of
Joshna Begum (PW-3). It may be mentioned here that Bilal was cited as
witness for the prosecution but he died on 12.1.2012, before his testimony
could be recorded.
5. In the rukka (Ex.PW-16/A), of which the statement of Joshna
Begum (Ex.PW-3/A) is a part, and which was the basis of the First
Information Report (FIR) (Ex.PW-4/A), the place of occurrence is
described as one in front of shop of Bilal. It appears initially the name
"Dulal" had been mentioned as the owner of the shop but the same was
later corrected. Joshna Begum (PW-3) in her evidence clarified that
Dulal is the name of her son-in-law. The correction in the name of the
shop owner, initially recorded as Dulal, changed to the name of Bilal, is
of no import.
6. Shilpi Begum (PW-12) is the niece of Joshna Begum (PW-3), she
also being a resident of a nearby house in the same locality. The
prosecution alleged that she was also assaulted and injured in the incident.
7. Mohd. Aslam (PW-15) has had criminal antecedents. He faced
trial in a case under NDPS Act and admittedly was convicted and had
remained in jail on such account. In fact, when his turn came for being
examined as a witness in this case, he was produced on 11.09.2013 before
the trial court, on production warrant, from Central jail No.5, Tihar,
where he had been lodged for the preceding 40 months. Joshna Begum
(PW-3) has conceded that PW-15 had faced a number of criminal cases
including three involving offences of theft, one under Arms Act, another
under Section 324 IPC for causing hurt to one Shahida with knife, and yet
another for attacking Parul Begum, mother of the appellant Rabi-Ul-Islam
(A-1) with a weapon.
8. The deceased Mohd. Anwar also had a questionable history.
Joshna Begum (PW-3) admitted that he was initially married to a lady
named Lakhi. He had contracted a second marriage with another woman
named Suki, at a time when she (Suki) was married to another person
named Ravi Teli, on which count, the relationship of Anwar and Ravi
Teli, resident of Pahari No.2 in same area, had been strained. Ravi Teli
had shifted to Kashmir, some time after the incident of this case, and
settled there, having contracted another marriage.
9. According to the FIR, the incident had occurred at 8.30 PM on
01.07.2008, in the course of which seven persons from the side of the
assailants had participated, they including the six appellants and another
named Shaheen son of Almeen. The said Shaheen could not be arrested.
He was eventually declared proclaimed offender (PO). Shaheen
concededly was married to Babli, daughter of Joshna Begum (PW-3). All
the appellants, except Jonny son of Roop Chand (Crl.A.137/2015) are
related to Shaheen (PO). The prosecution case has been that, on account
of differences between Shaheen (PO) and his wife Babli, the relationship
between the first informant and those related to her, on one hand, and the
appellants, on the other, had been strained. It is, however, conceded that
both sides lived in the same area and would know each other by names
and faces.
10. On 01.07.2008 at 9.10 PM Mohd. Anwar (the victim) was brought
to Holy Family Hospital, New Delhi by his relative named Aash Mohd.,
resident of House No.265/161, Indira Gandhi Camp, Pahari No.1, Taimur
Nagar (mobile phone No.9868357326) with history of assault suffered at
8.30 PM earlier on the same date. Aash Mohd. himself has not been
examined as a witness by either side. Joshna Begum (PW-3) described
him as her "Devar" (younger brother of her husband). Mohd. Anwar was
examined by Dr. Rajiv Kant Shastri against medico legal report (MLC)
prepared vide Ex.PW-5/DA. As per the document, the victim was
conscious and had himself given the history of the injuries suffered at the
hands of assailants, four to five in number, they having used "a sharp
bladed weapon". He had a cut on his left hand besides multiple puncture
wounds over the chest and upper back. The MLC of the victim (Ex.PW-
5/A) indicates that Holy Family Hospital informed the local police at
11.05 PM on the same night. This fact is corroborated by DD No.52
(Ex.PW-9/A).
11. It may be noted here itself that Mohd. Anwar died during treatment
in the Holy Family Hospital, half past midnight of the night intervening
1st and 2nd July, 2008. The medical certificate of the cause of death
(Ex.PW-16/DA) issued by the Holy Family Hospital stands testimony to
this fact. After the needful formal proceedings, including preparation of
the death report (Ex.PW-22/C) by Inspector M.A.Khan (PW-22), the then
Investigating Officer (IO), the dead body was subjected to post-mortem
examination conducted in the mortuary of All India Institute of Medical
Sciences (AIIMS) by Dr. Puneet Setia, senior resident of the Department
of Forensic Medicine on 02.07.2008. The post mortem examination
report (Ex.PW-19/DA) was formally proved, in absence of the author (he
having left the services of the hospital and being no longer available) by
Dr. Adarsh Kumar (PW-21), Additional Professor, Forensic Medicine,
AIIMS.
12. The autopsy report noted ante mortem injuries on the dead body as
under :
"1. Stab wound 1.6 x 0.4cm x cavity deep present over back
of right side of chest, 27 cm below right shoulder, 5.5 cm
away from midline and 114 cm above right heel. The wound
is vertically placed, with upper margin sharp and lower
margin blunt. It enters the chest cavity producing an entry
wound of 2 cm in the space between 6th & 7th rib and then
enters the middle lobe of right lung, producing a wound of
size 1.4 x 0.5 cm and depth 1 cm. Total length of the wound
is 5 cm. The direction is upward, inward and forward.
2. Stab wound 0.9 x 0.5 x 1.5 cm present over back of left
side of chest 15 cm to the left of midline, 113 cm above left
heel and 31 cm below left shoulder. The wound is
horizontally placed, with both margins acute and
undermining of right edge. The direction is inward, upward
and forward.
3. Scratch Abrasion 13 x 0.2 cm present over back of left
shoulder, inner end is 3.5 cm away from midline and 13 cm
below the tip of shoulder horizontally placed.
4. Scratch abrasion 12 x 0.2 cm present over back of left
shoulder, 6 cm above and parallel to injury No.3.
5. Reddish blue contusion in an area 8.5 x 4 cm present in
the area between injury No.3 & 4.
6. Abrasion 3 x 2 cm present over back of left elbow.
7. Reddish contusion in an area 1.5 x 1.5 cm present over
back of right elbow.
8. Reddish blue contusion in an area 4 x 3 cm present over
back of right leg.
9. Bluish contusion in an area 5 x 0.5 cm present over inner
side of left elbow.
10. Stab wound 1.5 x 0.6 cm x cavity deep present over left
side of front of chest, 3.5 cm away from midline, 6 cm below
and to the right of left nipple and 120 cm above the left heel.
It pierces the intercostal space between 6th & 7th rib
producing a wound of size 3 cm. It pierces the pericardium
making a cut of 1.5 cm and then goes into the right ventrical,
making a wound of 1.5 cm and then going through the right
ventricular cavity it comes out of the posterior wall of right
ventricle, producing a wound of size 0.3 x 0.3 cm. The entry
wound shows undermining of right edge and both the
margins are acute. Total length of the wound is 6 cm and
direction is backward, downward and toward right.
11. Abrasion 1 x 0.4 cm present over front of left side of
chest, 6 cm above the nipple and 10.5 cm away from midline.
12. Stab wound, vertically placed, 1.9 x 0.5 x 10.5 cm
present over front of left shoulder, 5.5 cm below tip of
acromian, 14 cm away from midline and 20.5 cm above the
elbow joint. The wound travels in the subcutaneous tissue in
its entire length. The upper margin is acute and lower
obtuse with undermining of right edge. The direction is
inward, downward and backward.
13. Incised wound 1.5 x 0.2 cm, horizontally placed, present
over nose.
14. Incised wound 1.5 x 0.1 cm, horizontally placed, present
over left upper eyelid.
15. Incised wound 6 x 3 x 4 cm present in webspace between
thumb and index finger of left hand with fracture and
dislocation of carpometa carpal joint."
13. In the opinion of the autopsy doctor, the death had occurred due to
cardio respiratory failure consequent upon injuries inflicted to the heart
and lung. The injury nos.1 and 12 mentioned above had been produced
by single edged stabbing weapon, while injury nos.2 and 10 had been
inflicted by double edged stabbing weapon. The injury nos.3 and 4, in
contrast, had been caused by sharp pointed object and injury nos.13 to 15
by sharp edged weapon. The rest of the injuries had been produced by
some blunt object. In the opinion of autopsy doctor injury nos.1 and 10,
individually and collectively, were sufficient to cause death in ordinary
course of nature.
14. During the course of investigation SI Kailash Chand Meena, PW-
16, the initial Investigating Officer (IO), after having got the FIR
registered on the basis of his rukka (Ex.PW-16/A) and Inspector
M.A.Khan (PW-22), who took over the investigation in the wake of the
FIR had taken the necessary preliminary investigative steps at the scene
of incident, inter alia, by preparing the site plan (Ex.PW-16/DB), later
followed up by preparation of scaled site plan (Ex.PW-1/A) through SI
Mahesh Kumar (PW-1) and getting the scene photographed through
Constable Girdhar (PW-13), the result of his efforts being photographs
Ex.P1 to P5 and inspection by the crime team led by SI Nafe Singh (PW-
2) leading to crime team report (Ex.PW-2/A). The Investigating Officer
had also seized, from the scene of incident, certain exhibits which bore
testimony to the gory incident in the form of blood stains, including
plastic container (Ex.P1), plastic katta (cement bag) (Ex.P2), pieces of
concrete (rodi) (Ex.P3), blood stained earth (Ex.P4) and blood stained
brick (Ex.P5), formally seized vide seizure memo (Ex.PW-3/Z). The
Investigating Officer also seized the blood stained clothes (one jeans
trousers, one shirt and one vest) besides a maala (necklace) of the
deceased Mohd. Anwar, as had been handed over in a sealed parcel by the
Holy Family Hospital, vide seizure memo Ex.PW-16/D. It may be
mentioned that all the exhibits, including certain others to which we shall
make a reference later, were sent, in due course, to forensic science
laboratory, Govt. of NCT of Delhi (FSL) which issued its reports
(Ex.PW-19/A and B) only to confirm that the blood group of the deceased
being "A" and his clothes bearing his blood stains.
15. From the abundant material on record, summarized as above, there
can be no two opinions about the fact that Mohd. Anwar had suffered the
vicious assault at about 8.30 PM on 01.07.2008 at the hands of a number
of persons at the place mentioned earlier. Given the nature of injuries,
and the sheer number of them, there can be no disputing the fact that the
assailants intended to either cause his death or inflict such bodily injuries
as were likely to cause death. Since Mohd. Anwar died in a matter of few
hours after being brought to the hospital in such gravely injured state, it
stands established beyond pale of any controversy, that his death was a
case of culpable homicide within the meaning of Section 299 IPC.
16. The prosecution had relied upon material showing that four persons
on the side of the first informant Joshna Begum (PW-3), including
herself, had also suffered injuries at the same time as Mohd. Anwar had
been assaulted. While Mohd. Anwar (the deceased) had been taken to the
Holy Family Hospital, which is close by, by his relative Aash Mohd., the
other four injured - Joshna Begum (PW-3), Mohd. Aslam (PW-15),
Shilpi Begum (PW-12) and Bilal (since deceased), had been transported
by Head Constable Nathi Ram of PCR to the trauma Centre of AIIMS.
17. The MLCs of Shilpi Begum (PW-12) and Bilal (the deceased) have
not been formally proved during the trial. Reference to the MLC
(Ex.PW-14/DA) of Mohd. Aslam (PW-15) did come in the course of
statement of Constable George Kutti (PW14), during cross-examination,
only to bring home the fact that he was one of the injured persons brought
to the hospital on 01.07.2008 and given treatment there. Head constable
Nathi Ram of PCR who is stated to have accompanied these four injured
persons to AIIMS has not been examined.
18. The MLC (Ex.PW-3/DA) of Joshna Begum (PW-3), however, was
formally proved by the examining medical officer, Dr. Dhananjay Prasad
(PW-17). This evidence has proved, with no dispute raised by the
defence, that Joshna Begum had been brought to trauma centre of AIIMS
at 9.48 PM on 01.07.2008 with history of assault suffered at 8.30 PM on
the same date, her injuries including lacerated wounds over right thumb
and right middle finger.
19. The information about the incident had come to the notice of the
police station vide DD No.26A, a copy of which was made over to SI
Kailash Chand Meena (PW-16) at 9.05 PM. The evidence of PW-16,
unchallenged to this extent, brought out that he accompanied by
Constable Amar Singh, had reached the spot to find tell-tale signs of the
incident (blood stains near the shop, in the street in front of Baital Noor
Masjid and on its wall etc.). He was joined there, amongst others, by
Head Constable (later ASI) Ram Prasad (PW-18) who was on patrolling
duty in the area. These police officials learnt that some injured persons
had already been removed by a PCR van to trauma centre AIIMS and
another to a private hospital. PW-16, thus, proceeded with Constable
Amar Singh to trauma centre, AIIMS. The rukka (Ex.PW-16/A) which
was later sent to the Police Station at 0230 hours on 02.07.2008 reveals
that he had found MLCs of five persons recorded, including those of
Joshna Begum (PW-3) and Mohd. Aslam (PW-15)). According to the
rukka, at that stage, Mohd. Aslam (PW-15) was unfit for statement, while
Joshna Begum (PW-3) was declared fit for statement. The assertion of
PW-16 in this regard is confirmed by a certificate to such effect endorsed
on MLC (Ex.PW-3/DA) of Joshna Begum (PW-3).
20. Interestingly, in the rukka (Ex.PW-16/A), the three other MLCs
referred were MLC Nos. 126612 of Babu (A-3), 126613 of Jonny (A-4)
and 126614 of Abid (A-2). It was brought out during the hearing on these
appeals that the three MLCs of the said three appellants, though collected
by the Investigating Officer, were not submitted with the reports under
Sections 173 Cr.P.C. to the Court. Reference to these MLCs came to be
made during the trial at the stage of evidence of the witnesses Constable
Amar Singh (PW-11) and SI Kailash Chand Meena (PW-16), relating to
the investigation but no effort was made, by either side, to adduce formal
evidence in their regard.
21. Initially, arguments were raised on behalf of above three
appellants that the rukka (Ex.PW-16/A) wrongly showed that they had
left the hospital after medical aid in the wake of MLCs whereas the fact
was (as per defence) that they had actually been detained and arrested
from the hospital, thereby not allowed to leave, only to be falsely shown
arrested at 7 PM on 02.07.2008 at another place. In response to such
submissions, the learned counsel for the State, however, pointed out the
conflicting stand taken by the said three appellants in their respective
statements under Section 313 Cr.P.C. (specifically in answer to question
nos.25 and 26) wherein it was claimed that they had been picked up from
their respective houses on 02.07.2008 to be taken to the police station.
22. Against the above backdrop, though having initially submitted
disinclination to rely on the MLCs of the appellants, the learned counsel
representing Abid (A-2), Babu (A-3) and Jonny (A-4) eventually
submitted before us on 12.08.2015 that the MLCs be taken on record and
treated as exhibits (duly proved). Thus, with the consent of the
Additional Public Prosecutor for respondent-State, the MLCs of Abid (A-
2) vide Ex.DY, Babu (A-3) vide Ex.DX and Jonny (A-4) vide Ex.DZ
were taken on record, as per proceedings recorded on 12.08.2015. These
documents have been referred to in the course of arguments by both sides.
23. The aforementioned three MLCs (Ex.DX, Ex.DY and Ex.DZ)
show that Babu (A-3), Jonny (A-4) and Abid (A-2) were examined in
trauma centre of AIIMS at 10.53 PM, 10.55 PM and 10.57 PM
respectively on 01.07.2008. They were accompanied by a person named
Shahid (or Shahida as appearing in the latter two documents). They
appear to have come to AIIMS, on their own, with history of assault
about two hours prior to their arrival in the hospital. Babu (A-3), as per
MLC (Ex.DX) had a clean lacerated wound of the size 3cm and 1cm on
the scalp besides swelling on left parietal region. Jonny (A-4) was found
to have suffered a lacerated wound of the size of 2cm., 1cm. on right
temporal region. Abid (A-2), on the other hand (his name is wrongly
mentioned as Aaved), had suffered abrasion on the forehead and a
lacerated wound over dorsum of right hand.
24. We may now examine the case for the prosecution against each
appellant, as indeed the evidence adduced in support.
25. As mentioned earlier, the case primarily rests on the testimony of
Joshna Begum (PW-3), one of the persons who suffered injuries in the
same incident. Bilal, one of the injured persons could not be examined
since he died before his testimony could be recorded. Shilpi Begum
(PW-12) had initially given evidence, by and large, corroborating the
statement of PW-3 Joshna Begum. But, she turned hostile during cross-
examination (w.e.f. 31.05.2013). Mohd. Aslam (PW-15) was totally non-
supportive of the prosecution case denying the involvement of the
appellants in the incident. It has been the argument of the respondent-
State that Shilpi (PW-12) and Mohd. Aslam (PW-15) have been hesitant
to support the prosecution case on account of duress exerted by, or at the
instance of, the appellants.
26. Before we examine the arguments to such effect, it would be
appropriate to see the prosecution story from the perspective of Joshna
Begum (PW-3) whose statement (Ex.PW-3/A) was recorded by SI
Kailash Chand Meena (PW-16) in the trauma centre of AIIMS. The
document would reflect that there had been some quarrel between the two
sides, two days before the date of incident wherein Farooq, brother of
Rabi-Ul-Islam (A-1) had been assaulted. Formal evidence to confirm the
said background is not available. Be that as it may, according to PW-3, in
the FIR, she with her husband PW-15 had gone out for some shopping
and when they had reached near the shop of Bilal at about 8.30 PM, Rabi-
Ul-Islam (A-1), Abid (A-2), Shaheen (PO) and Jonny (A-4) had appeared
on the scene. Rabi-Ul-Islam (A-1) carrying a knife, Abid (A-2) also
carrying a knife, Shaheen (PO) and Jonny (A-4) both carrying iron rods
(sariyas) were joined immediately after by Babu (A-3), Naseem (A-5)
and Shameem (A-6), each carrying wooden sticks (dandas). PW-3
reported in the FIR that A-1 had challenged her husband PW-15 by
referring to the incident of assault on the person of Faruq and saying that
he would not leave him alive. She alleged that Rabi-Ul-Islam (A-1) had
assaulted on the head of PW-15 with knife and when the latter tried to
evade by raising his left hand, he suffered an injury on the left thumb.
She claimed that when she had tried to come to rescue of her husband
raising alarm, the said assailants (the appellants and the PO) had started
assaulting her in which course Abid (A-2) hit her with knife on her left
hand. She stated that Babu (A-3) and Shaheen (PO) had caught hold of
husband and Abid (A-2) had stabbed him in the waist with knife.
According to her, she had raised alarm for help on hearing which her
brothers Anwar (the deceased) and Bilal (since deceased) came on the
scene. PW-3 further alleged in the FIR that the seven assailants had then
started assaulting her said brothers in the course of which Rabi-Ul-Islam
(A-1) and Abid (A-2) inflicted several wounds on their persons. She also
spoke about the assault by others with wooden sticks and iron rods.
According to her, Shilpi (PW-12) had tried to come to their rescue but
was inflicted injuries. She stated that upon someone informing the police,
PCR van had come and she with her husband, having been brought to
trauma centre AIIMS, had heard that her brother Anwar had died in the
Holy Family Hospital.
27. At the trial, Joshna Begum (PW-3) narrated the sequences of events
broadly confirming her initial version in the FIR.
28. Shipli Begum (PW-12) is the daughter of the sister of Joshna
Begum (PW-3). In her examination-in-chief, she affirmed that on
01.07.2008 at about 8.30/9 PM when she had reached the shop of Bilal,
she had heard Joshna crying for help. She went there running and saw the
appellants along with Shaheen (PO) beating Joshna, Bilal, Aslam and
Anwar with knives, sariyas (iron rods) and dandas (wooden sticks). She
confirmed the word of PW-3 that it was Rabi-Ul-Islam (A-1) and Abid
(A-2), who were armed with knives, while Jonny (A-4) and Shaheen (PO)
were armed with iron rods, the rest wielding wooden sticks. She claimed
that she had tried to intervene but was also beaten up with wooden sticks.
She stated that she had run away to save herself. She spoke about the
PCR van coming taking the injured persons including herself and Anwar
dying in the Holy Family Hospital.
29. Shilpi Begum (PW-12), having been examined on 22.12.2012, was
cross-examined partly on 14.02.2013, then on 31.05.2013 and finally on
24.10.2013. Till her statement under cross-examination on 14.02.2013,
she was fully supportive to the case for the prosecution affirming what
was testified by her in the examination-in-chief. She, however, made an
about-turn on 31.05.2013. Under continued cross-examination by
counsel for A-1 and A-2, she stated (on 31.05.2013), inter alia, that on
02.07.2008, she had seen Joshna Begum (PW-3) crying with her family at
about 11 AM sitting outside her house, though she did not have any
conversation with her. She denied that she had accompanied the police
officials in connection with any of the investigative steps including for
purposes of preparation of the site plan or identifying the assailants. A
part of her statement, under cross-examination on 31.05.2013 needs to be
extracted in extenso. It reads as under :
"It is correct that on 22.12.12 I had identified the accused
persons, present in the court today at the asking of the police
officials, who had shown their faces outside the court room.
Vol. The police officials told me that they have recorded my
statement to this effect and that I will have to give statement
as per them and identify the accused. I did so under their
pressure. My today statement that I had not seen them
committing any crime on 1.7.08 is correct. They were not
present at the spot on 1.7.08. It is wrong to suggest that Ravi
Teli and his associates had committed the crime on 1.7.08.
vol. I had not seen anyone on 1.7.08.
xxx
It is correct that my statement u/s 161 CrPC which was
recorded by the police officers was not read over to me. It is
correct that 1am not aware about the contents and the names
of the assailants mentioned in the statement."
(emphasis supplied)
30. To say the least, we do not approve of the manner in which record
of deposition of the witness, quoted above, has been recorded. It
indicates disconnect. We notice that the victim had not stated that she had
not seen the accused person committing the crime on 01.07.2008 before
the suggestion resulting in the response noted in portion underlined by us
above was allowed. This was most improper. The learned trial Court
should have taken care to note if the suggestion given actually stemmed
from the statement made by the witness or not.
31. Be that as it may, PW-12 was re-examined by the Additional
Public Prosecutor, five months after the U-turn made by her, only to find
that the witness (PW-12) would reiterate that her statement on 22.12.2012
identifying the appellants as the assailants was under the hands of the
police.
32. Mohd. Aslam (PW-15) was called for evidence on 11.09.2013,
after Shilpi (PW-12) had made the somersault. As noted earlier, PW-15
was in jail for more than three years, corresponding to the time spent by
the appellants also in jail on account of the case at hand. PW-15 gave a
new twist to the tale by stating that, on 01.07.2008 at about 8 - 8.30 PM,
when he along with his wife Joshna Begum (PW-3) had gone to the shop
of Mohd. Bilal for making some purchase and having left the wife at the
said place when he was on way back to his house, he was attacked by
Ravi Teli assisted by 5 - 6 boys (whose names he was not aware of) with
knife. He attributed the assault by Ravi Teli on account of grudge
harboured by the latter due to the reason that he had arranged the
marriage of Mohd. Anwar (the deceased) with Suki, wife of Ravi Teli.
He stated that he had also been assaulted with wooden sticks and injured
on his head, shoulder, left palm and right wrist and was taken to trauma
centre, AIIMS. He deposed that he had learnt about the murder of Mohd.
Anwar on being discharged from the trauma centre on 07.07.2008, but
would not know who had committed the said offence. He absolved the
appellants from any role in the assault on his own person. Mohd. Aslam
(PW-15) was cross-examined by the learned Additional Public
Prosecutor, but to no avail.
33. The learned trial judge found the evidence of Joshna Begum (PW-
3) worthy of reliance and accepted the prosecution case primarily on its
basis. It has been argued on behalf of the appellants that PW-3 cannot be
trusted as her version is replete with contradictions and inconsistencies.
The defence argued that PW-3 is prone to exaggeration and has indulged
in shifting stands withholding, at times, certain material information. It is
the submission of the counsel for the appellants that PW-3, being
inimically placed, had motive to falsely implicate and that this is shown
by her insistence at one stage that Babu (A-3), who was initially
suspected to be a juvenile, be treated as an adult and sent to regular jail
("Bada jail"). The defence also argues that it was PW-3, who falsely
floated the theory of Abid (A-2), Babu (A-3), Jonny (A-4), Naseem (A-5)
and Shameem (A-6) having gone into hiding in the wooded area behind
CRRI flats, close to the locality where they were residing. It was
submitted that the Investigating Officer, in a partisan manner, had
indulged PW-3 in such theory and had falsely shown the arrest of these
appellants from the said place, followed by planting of clothes allegedly
worn by each of these persons, showing them as dumped at one place. It
was submitted that the Investigating Officer had also planted evidence as
to recovery of the weapons including knife allegedly at the instance of
Abid (A-2), wooden stick at the instance of Babu (A-3) and iron rod at
the instance of Jonny (A-4) vide seizure memos Ex.3/P, 3/R, 3/N
respectively.
34. The learned counsel further argued that the knife recovered from
Abid (A-2) could not possibly have been the weapon of offence used in
inflicting the fatal injuries on the person of the deceased, this having
regard to the nature of weapon indicated by the autopsy doctor also for
the reason that subsequent opinion (Ex.PW-5/A) on the subject in this
regard is not confirmatory. The defence pointed out that no weapon of
offence (knife) is shown recovered from Rabi-Ul-Islam (A-1) or for that
matter, from Naseem (A-5) or Shameem (A-6).
35. The appellants argued that the wavering stand of Shilpi (PW-12)
and non-corroboration by Mohd. Aslam (PW-15) isolates Joshna Begum
(PW-3) as the solitary witness rendering her version highly suspect. It
was argued that the deposition of Mohd. Aslam (PW-15) throws up the
possibility that there may have been two different incidents one occurring
near the house of Mohd. Aslam (PW-15) where he was assaulted by Ravi
Teli and his associates out of vendetta for his role in arranging the second
marriage of Suki and the other in which Mohd. Anwar (the victim)
suffered homicidal death. The argument developed is that Joshna Begum
(PW-3) has tried to mix up the two incidents and show them as one
episode falsely setting herself up as the eye-witness. It is argued that the
word of prime witness (PW-3) having been belied by another witness for
the prosecution (PW-15), the charge against the appellants respecting the
alleged role in the injuries of Mohd. Anwar (the deceased) cannot be held
brought home.
36. It was further submitted that there has been unexplained delay in
lodging of the FIR and in arranging the inquest under Section 174 Cr.P.C.
The learned counsel argued that the evidence as to the place where the
rukka was prepared is inherently contradictory in as much as Joshna
Begum (PW-3) took a decision that she had not gone to the Holy Family
Hospital where SI Kailash Chand Meena (PW-16), insist he had recorded
her statement after reaching the said hospital from where he sent the
rukka for registration of the FIR.
37. As noted by us in earlier part of this judgment (para 23) Babu (A-
3), Jonny (A-4) and Abid (A-2) had also come to AIIMS on 01.07.2008
and had been medically examined against MLCs (Ex.DX, Ex.DY and
Ex.DZ respectively) in the night of 01.07.2008. Initially, the defence plea
was that these three appellants had been detained by the police in the
hospital itself and later falsely shown arrested on 02.07.2008 from the
wooded area behind CRRI flats as per arrest memos (Ex.PW-3/D,
Ex.PW-3/F and Ex.PW-3/C respectively) on 02.07.2008. As noted in the
proceedings dated 12.08.2015, this argument was given up in the face of
contradictory stand taken by these three appellants in their statements
under Section 313 Cr.P.C. The defence now relies on the MLCs (Ex.DZ,
Ex.DX and Ex.DY respectively) to submit that Abid (A-2), Babu (A-3)
and Jonny (A-4) had suffered injuries in the course of the incident which
is the subject matter of the present prosecution, at the hands of the
opposite party referring, by implication, to the deceased (Mohd. Anwar)
and others on his side as the aggressors. The submission is that the
investigating police was not fair in as much as no investigation was made
into the injuries suffered by the persons sent up for trial. In this line of
argument, without it being explicitly submitted, there is a hint of claim to
"self defence".
38. We have given our anxious consideration to the above noted
submissions on behalf of the appellants. We, however, find these
arguments to be devoid of substance.
39. Before we set out our reasons for not accepting the arguments of
the defence, we must note the wholly unfair manner in which the
proceedings concerning the recording of evidence of material witnesses
were conducted. Joshna Begum (PW-3) was indeed the most crucial
witness in as much as it was on her statement that the FIR had been
registered. She was called to the witness box for the first time on
07.05.2010. Her statement would continue till 11.05.2012. It is indeed
shocking that it took two years for the trial Court to complete the
evidence of just one witness. Her examination-in-chief was recorded
piecemeal and she had to come to the court for this purpose on three dates
of hearing (07.05.2010, 21.12.2010 and 04.08.2011). Her cross-
examination required appearance in Court on eight dates (25.08.2011,
27.08.2011, 29.10.2011, 17.03.2012, 23.03.2012, 02.04.2012, 21.04.2012
and 11.05.2012). We could appreciate the lengthy cross-examination
since she was the most crucial witness but for the fact that it was highly
repetitive and replete with enquiries into even unnecessary aspects.
Clearly, the underlying object appears to have been to tire out the witness
and in this process somehow secure contradictory statements, as were
likely to occur with the passage of time. This allows ample time and
opportunity to put pressure, give inducements or threats to the witness
under deposition by adopting all kinds of tricks and manoeuvrings. The
caution of the law, per section 309 Cr.P.C., that the proceedings be
continued "from day-to-day until all the witnesses in attendance have
been examined" seems to have been thrown to winds.
40. Shilpi Begum (PW-12) appeared on 22.12.2012 and as already
noted earlier, was also compelled to come again and again. The bits and
pieces in which her statement was recorded smacks of intention to create
openings to win her over. The fact that she, having supported the
prosecution case on the first two appearances, made an unmistakable
somersault on the third hearing only reinforces such impression. Mohd.
Aslam (PW-15), himself in jail as an under-trial prisoner, albeit in
another case, would have been privy to what was going on in the court.
No wonder, he refused to support the word of his wife (PW-3). After all
he, with his own criminal antecedents, and trials in other cases to face,
was most the vulnerable.
41. The case at hand reminds us of the way trial proceeded in the case
of Khujji v. State (1991) 3 SCC 627. The prime witness for prosecution,
who had supported the charge against the accused in that case, had turned
hostile upon being recalled for cross-examination after a long gap of time.
The Supreme Court upheld the conviction on the basis of evidence for the
prosecution ruling, inter alia, that the evidence of such hostile witness, to
the extent it was corroborated by other evidence, could be acted upon. It
was observed thus :
"the evidence of a prosecution witness cannot be rejected in
toto merely because the prosecution chose to treat him as
hostile and cross-examined him. The evidence of such
witnesses cannot be treated as effaced or washed off the
record altogether but the same can be accepted to the extent
their version is found to be dependable on a careful scrutiny
thereof..."
42. It is not correct to contend that Joshna Begum (PW-3) had a motive
to falsely implicate. She did have her set of grievances on account of
matrimonial dispute concerning her daughter (Babli) with her husband
Shaheen (PO). This would necessitate a meticulous scrutiny and study of
her deposition, but not its ex facie rejection. It seems that her daughter
(Babli) had buried the differences with her matrimonial family. But, that
does not necessarily mean that peace had been restored between the
families. Noticeably, the defence only confirmed the strained relations by
bringing up that Mohd. Aslam (PW-15) also faced the criminal charge of
assaulting the mother of Rabi-Ul-Islam (A-1). If relations had improved,
PW-3 would not be inclined to incriminate the members of the family of
her son-in-law by false accusation. Her brother Mohd. Anwar having
been killed, it was only natural for Joshna Begum (PW-3) to feel
concerned about how the assailants were treated. Therefore, we read
nothing into her insistence that Babu (A-3) be treated as an adult. We
proceed to examine the alleged discrepancies in Joshna Begum's (PW-3)
testimony.
43. Going by the sequence narrated in the FIR, PW-3 and her husband
had been accosted first by Rabi-Ul-Islam (A-1), Abid (A-2), Shaheen
(PO) and Jonny (A-4). Immediately thereafter, they were joined by the
other three including Babu (A-3). PW-3 did state on 25.08.2011 that on
reaching near the shop of her brother, it was Jonny (A-4) and Babu (A-3),
who had met them. In our view, this small mix up by the witness in the
chronology of the arrival of the assailants must be ignored. She is an
illiterate woman, who had narrated the sequence of events correctly in her
examination-in-chief and may have become confused in the extensive
cross-examination conducted over several dates. The fact remains that
her consistent stand has been that the seven assailants had converged,
though in two separate groups around the same time.
44. Joshna Begum (PW-3) did mention at one stage that thumb of her
husband had been chopped off. This is an exaggeration. Neither the MLC
of Mohd. Aslam (PW-15), nor the injured himself, support this version.
In our view, however, this cannot disturb the larger picture as the
statement of the witness about PW-15 being injured is corroborated by
the testimony of the latter.
45. We find no contradiction in the police proceedings about the place
where statement of Joshna Begum (PW-3) was recorded by SI Kailash
Chand Meena (PW-16). The rukka (Ex.PW-16/A), contemporaneously
prepared, shows that SI Kailash Chand Meena (PW-16) had met Joshna
Begum (PW-3) in the trauma centre of AIIMS. The police official had
gone to the said hospital fully aware that another injured had been
transported to the Holy Family Hospital. At that stage, he had no way of
knowing that the injured taken to the private hospital was in a critical
condition. In the trauma centre AIIMS, PW-16 found Joshna Begum
(PW-3) fit for giving statement. He recorded her version and by the time
he completed the exercise he had learnt that Mohd. Anwar, who had been
taken by a relative through private arrangement to the Holy Family
Hospital, had died. The fact that this information had reached while PW-
16 was with Joshna Begum (PW-3) and Mohd. Aslam (PW-15) in the
trauma centre AIIMS is reflected even in the statement (Ex.PW-3/A) of
the first informant. The endorsement (Ex.PW-16/A) narrates that after
recording the statement of Joshna Begum (PW-3), upon receipt of
information vide DD No.52B, he had rushed to the Holy Family Hospital
from where he would dispatch the rukka at 0203 hours on 02.07.2008.
46. The above facts are sufficient to also reject the argument of delay
in registration of FIR. In our judgment, the police proceedings were as
prompt as the circumstances would have permitted. The first intimation
about the incident had come vide DD No.26A. PW-16 testified that he
had received a copy of the said DD entry at 9.05 PM. Then stationed in
police station (New Friends Colony), he had first set out to the place of
occurrence (Taimur Nagar Pahari). Having inspected the said place, and
having made local enquiries, finding no eye-witness or injured at the spot,
upon learning that the injured had been shifted to hospitals he had opted
to first to go to the trauma centre, AIIMS. In the trauma centre, he
collected the MLCs, recorded the statement of Joshna Begum (PW-3) and
upon intimation about the developments at the Holy Family Hospital he
proceeded there. This entire sequence would obviously have consumed
time. The DD No.29A (Ex.PW-4/C) regarding registration of the FIR at
2.45 AM on 02.07.2008 and DD No.30A (Ex.PW-4/D), followed by DD
No.32A (Ex.PW-4/E), about the dispatch of the special reports under
Section 157 Cr.P.C. at 3.30 AM on 02.07.2008 and return of the special
messenger by 6.35 AM on 02.07.2008 give us further assurance as to the
prompt registration of the FIR and there being no inordinate delay.
47. We also repel the submissions concerning delay in the inquest
proceedings. It has to be borne in mind that death had occurred in the
Holy Family Hospital, late in the night. The record shows that the dead
body was released only the next morning. The postmortem examination
was conducted at 2.30 PM on 02.07.2008. The autopsy report (Ex. PW-
19/DA) certifies that the inquest papers had been received at 1.35 PM.
The reliance on Balwant Singh Vs State of Delhi 1976 CLR (Delhi) 43
and Shyam Sunder Vs State 1996 JCC 35 (Delhi) is thus misplaced.
48. We find the evidence as to the circumstances in which A-2 to A-6
are stated to have been arrested consistent and, thus, reliable. The
evidence of Inspector M.A.Khan (PW-22) on this score finds
corroboration from the testimony of SI Kailash Chand Meena (PW-16).
Joshna Begum (PW-3), who is shown as an attesting witness to the
documents prepared at the time of arrest (arrest memos and personal
search memos) created some confusion by stating that by the time she
was called, the accused persons had already been apprehended. She
claimed that the documents relating to arrest had been prepared in the
police station where she was asked to sign. The two police officials
would have the court believe their version that the proceedings were
recorded in the forest area where the appellants had gone into hiding. In
our view, even if the paper work in such regard was completed upon
return to the police station, a claim on different lines by the police
witnesses would not distract one from the fact that the appellants were
actually arrested on 02.07.2008. As already noted, the appellants have
abandoned the plea initially taken that they were detained during the night
of 01.07.2008 from trauma centre AIIMS. They have now reverted to
stick to their version in statements under Section 313 Cr.P.C. that they
were picked up from their respective houses on 02.07.2008. It is only the
place of arrest on which they seek to contradict the prosecution story.
They, thus, accept the prosecution evidence that they were arrested on
02.07.2008.
49. The prosecution case about recovery of the clothes of the
appellants A-2 to A-6 from the forest area, however, is not very
convincing. Inspector M.A.Khan (PW-22) and SI Kailash Chand Meena
(PW-16) would have us believe that after their arrests, in the wake of their
disclosure statements and at their pointing out, the said appellants got
recovered the clothes which were on their respective person at the time of
the incident, and that the same were seized vide formal seizure memos
(Ex.PW-3/U to Y), inter alia, in the presence of Joshna Begum (PW-3).
We reject this part of the evidence of the prosecution for the reason it is
per se inadmissible. Going by the proceedings recorded, at the time of
alleged recovery, the clothes were lying in a dump, close to the boundary
wall of the forest area. The Investigating Officer attributes each apparel
as the clothes of a particular accused on the basis of information given by
the latter. Such statement to the police officer by a suspect in custody
cannot be allowed to be introduced in evidence, particularly in absence of
any material showing discovery of any further fact confirming the said
connection. This recovery is inconsequential since examination of the
clothes of these five persons by FSL has not evinced any conclusive result
as to presence of blood of human origin matching with that of any of the
victims.
50. Joshna Begum (PW-3) did speak about she coming to know of the
fact that the accused persons had hidden themselves in jungle behind
Meera Bai College, Taimur Nagar and having informed the police in such
regard around noon time on 02.07.2008. But, it appears, she was trying to
assume for herself a role larger than life. The police records do not credit
this information to her. Inspector M.A.Khan (PW-22) clarified that he had
developed this information through his secret sources whereupon the
forest area was searched, though after joining Joshna Begum (PW-3) as a
witness. In our view, this cannot totally discredit Joshna Begum (PW-3).
The fact remains that these appellants were arrested on 02.07.2008, a fact
not disputed. The plea of the appellants that they were picked up from
their respective houses on the said day has remained unsubstantiated. In
any case, this aspect would not be of much consequence and
determinative factor to decide this appeal.
51. We do not find any reason to disbelieve the evidence of the
prosecution about the recovery of knife (Ex.P-17) pursuant to the
disclosure and at the instance of Abid (A-2), from beneath his bed in his
jhuggi No.S-265/125, Pahari No.1, Indira Gandhi Camp, Taimur Nagar,
Delhi in the presence of SI Kailash Chand Meena (PW-16) and Joshna
Begum (PW-3) vide seizure memo (Ex.PW-3/P). It is proved by these
witnesses that recovery was made in the wake of information gathered
from the said appellant during interrogation, as reduced into writing in
disclosure memo (Ex.PW-3/O). The knife was found to be bearing blood
stains. Its measurement had been taken and sketch was prepared vide
Ex.PW-16/B. The knife was sent, in due course, with other exhibits, to
FSL. The reports of analysis (Ex.PW-19/A) in FSL, coupled with that of
its biology division (Ex.PW-19/B) show that the knife was found bearing
blood stains of human origin, though the grouping could not be
established. The fact that the knife had blood stains of human origin adds
to the incriminating circumstances for which Abid (A-2) owed some
explanation. Since Abid (A-2) would come up only with bald denial, this
circumstance only reinforces the effect of ocular evidence adduced
[Khujji (supra)].
52. In addition to the blood stains, the prosecution has also relied on
confirmation as to the probable use of the knife (Ex.P-17), recovered
from the possession of Abid (A-2), for causing the stab injuries on the
person of the deceased, in the form of opinion of Dr.Shalini Girdhar (PW-
5) of the Department of Forensic Medicine and Toxicology, AIIMS. The
exhibit (P-17) was sent to her for opinion in the light, inter alia, of the
autopsy report, on 28.08.2008. She had prepared a sketch (Ex.PW-5/B)
and after considering the post-mortem report given her opinion vide
Ex.PW-5/A. In her view, this cutting instrument could have been used
for causing injury nos. 1, 2, 3, 4, 10, 12, 13, 14 and 15 (as noted in the
autopsy report, Ex.PW-19/DA).
53. The appellants have raised two questions in the context of opinion
given by Dr. Shalini Girdhar (PW-5). One grievance is that the weapon
was not taken to the autopsy doctor. This must be rejected for the simple
reason the autopsy doctor was not available which is why the prosecution
had to bring in another doctor (PW-21) to prove the post-mortem
examination report. The second criticism, which has been pressed more
vigorously, is that this knife (Ex.P-17) is a single edged weapon which
could not have produced injury nos. 2 and 10 in as much as the opinion
(of PW-5) in its regard is in conflict with the earlier opinion (of the
autopsy doctor) that the said two injuries had been caused by a double
edged stabbing weapon. Similarly, the autopsy doctor had opined injury
nos. 3 and 4 to have been suffered by the deceased by a sharp pointed
object whereas Dr. Shalini Girdhar (PW-5) opined that they had been
caused by a single edged weapon (Ex.P-17).
54. PW-5 was called upon, under cross-examination, to explain the
above differences in her opinion vis-à-vis the opinion in the autopsy
report. She conceded that the thickness of the blade of the knife may
demonstrate the size of the wound it can cause. She stood by her opinion
(Ex.PW-5/A), inter alia stating that even a punctured wound can be
caused by a sharp pointed object. In her submission, even an injury
caused by such single edged weapon may be termed as punctured wound.
55. The ocular evidence shows that Rabi-Ul-Islam (A-1) and Abid (A-
2) had used knives to cause injuries on the person of the deceased. It is
only one of the said two cutting instruments which has been recovered
during investigation. Some of the injuries suffered by the deceased were
actually caused by a single edged weapon. We are not prepared to discard
the evidence about possible use of the knife (Ex.P-17) recovered from the
possession of Abid (A-2) only because PW-5's opinion for the same is
based on examination of injuries and possible weapon of offence used.
Such opinion per se has an element of hypothesizing and approximation,
and would give way to ocular evidence of the eye witnesses.
56. In absence of any discrepancies in the evidence respecting the
seizure of iron rod (Ex.P-10) and wooden stick (Ex.P-9) pursuant to
disclosures (vide Ex.PW-3/M and Ex.PW-3/Q respectively) and on the
pointing out of Jonny (A-4) and Babu (A-3) respectively, also must be
believed. It must, however, be added that these weapons are not shown to
be bearing any tell-tale signs (in the form of blood stains etc.) to confirm
their specific use in the assault.
57. In our view, the non-recovery of the weapon used by Rabi-Ul-
Islam (A-1) is of no consequence. The recovery, if made, would
undoubtedly have reinforced the case against him. Even in the face of
failure of the investigating agency to recover the said knife, there is
abundant material to believe the ocular evidence, particularly of Joshna
Begum (PW-3), as to his involvement and use of knife. It must be
remembered that Rabi-Ul-Islam (A-1) had absconded and had to be
declared proclaimed offender. He was arrested only on 05.02.2009, vide
proceedings Ex.25/B.
58. For reasons further elaborated hereinafter, we reject the contention
that the testimony of Shilpi (PW-12) and Mohd. Aslam (PW-15) should
result in the evidence of Joshna Begum (PW-3) being disbelieved.
59. As noted earlier, Shilpi Begum (PW-12) had supported the
prosecution case in entirety during her examination-in-chief. She stuck to
that version even when she had been called for the second time, for cross-
examination. Her cross-examination remained inconclusive and by the
time she stepped into the witness box on the next date she had suppurated
and turned hostile. We have already recorded our disapproval of the
manner in which her deposition was recorded on 31.05.2013. It seems
words were being put in her mouth without she saying so willingly. She
did try to wriggle out of what was her stand on the previous two dates but
apparently something had happened during the interregnum to make her
shift from her previous position. We reject the version given by her on
31.05.2013 for the simple reason the explanation that she had identified
the appellants on 22.12.2012 under pressure because their faces had been
shown her outside the court room is frivolous. It has been nobody's case
that the two sides involved in the incident did not know each other from
before. On the contrary, they were fully familiar and acquainted, not only
on account of they being residents of same neighbourhood but also
because Babli, the daughter of Joshna Begum (PW-3), who is an aunt of
Shilpi Begum (PW-12) is married to Shaheen (PO), a member of the clan
to which most of the assailants belonged.
60. We find resonance of what was noticed (concerning the trial of
similarly placed case) in Khujji (supra). In the case at hand, witnesses
seem to have been brow-beaten or forced and made to change their
version. Following the view taken in Khujji (supra), we accept the version
of Shilpi Begum (PW-12), as given during her examination-in-chief to be
the correct one. The said part of her testimony, treated as one not effaced
on account of the hesitation later shown by her, provides full
corroboration to the word of Joshna Begum (PW-3) and, thus, can be
acted upon.
61. It seems to us that Mohd. Aslam (PW-15) had also lost heart
over the period or for other reasons refused to affirm the prosecution case.
He is indeed a witness hostile to the case for which the appellants were
prosecuted. A close scrutiny of his testimony, however, shows that he has
not entirely negated the version of Joshna Begum (PW-3), not the least
with regard to the fatal stabbing of Mohd. Anwar. Noticeably, he was
reluctant only to support the prosecution charge about the appellants
being the author of his own injuries. He spoke about he having left Joshna
Begum (PW-3) alone near the shop of Bilal and himself being assaulted
elsewhere by another group (led by Ravi Teli).
62. In our judgment, Mohd. Aslam (PW-15) has only feebly resumed
the defence theory which was developed during the protracted cross-
examination of Joshna Begum (PW-3). The name of Ravi Teli had not
cropped up during investigation. A role was attributed to Ravi Teli by the
defence only during the deposition of Joshna Begum (PW-3) without it
being clarified as to what was the basis on which such assumption was
being claimed. The story concerning Ravi Teli, in fact, has no legs to
stand on. The version gets torpedoed now by the alternative plea of "self-
defence" propounded during hearing on these appeals, on the basis of
MLCs (Ex. DZ, DX and DY) of Abid (A-2), Babu (A-3) and Jonny (A-4).
If the said three appellants had actually suffered injuries in self-defence,
at the hands of those on the side of Joshna Begum, the suggestions
concerning involvement of Ravi Teli are nothing but fiction.
63. It is common that the witnesses tend to exaggerate. Improvements
or variations in the ocular version only puts the Court to caution requiring
a closer scrutiny of the eye-witness account. A witness who is related to
the victim does not per se become suspect. Allowance has to be given for
exaggerations or embellishments and the evidence of even an "interested"
witness may be accepted and acted upon, provided the contradictions,
inconsistencies, exaggerations or embellishments do not convert the
prosecution case altogether into a new story or render it impossible for
grain to be separated from chaff or be such as to make the truth and
falsehood inextricably mixed up [Subal Ghorai Vs State of West Bengal
JT 2013 (4) SC 527 and Sheesh Ram Vs State of Rajasthan (2014) 3 SCC
689].
64. In our assessment, Joshna Begum (PW-3), though closely related to
the victim and other injured persons, has stood the test of cross-
examination well, even though it was tormentingly lengthy, repetitive
protracted and, as in Subal Ghorai (supra) "rambling". The fact that she
herself was injured in the same incident further confirms her presence at
the scene.
65. The evidence of Joshna Begum (PW-3), in our assessment, is
consistent and worthy of reliance. There are no such contradictions or
inconsistencies in her deposition as could render her version implausible.
Her testimony inspires confidence, notwithstanding small variations or
stray exaggerations, inasmuch as they do not go to the root. Some wear
and tear, on account of passage of time, particularly cannot render her
word incredible, particularly when it is corroborated in material
particulars by other ocular testimonies and supported by the medical
evidence. Thus, we find the cases of Bhagirath Vs The State of Madhya
Pradesh, 1976 C.L.R. (S.C.) 116 and Mukhwant Singh & Ors. Vs State of
Delhi, 1991(2) C.C. Cases 1(HC) distinguishable on facts.
66. It has been the argument of the appellants that the investigation has
been tainted. Reliance is placed on Laxmi Singh & Ors. Vs State of Bihar,
AIR 1976 SC 2263 to argue that adverse inference be drawn since the
prosecution has not explained the injuries sustained by Abid (A-2), Babu
(A-3) and Jonny (A-4). We are not impressed with this line of argument.
In our view, the shifting stand taken vis-à-vis the MLCs of these
appellants shows that the theory "self-defence" has been set-up as an
afterthought. It is inherent in this defence that the two sides had actually
clashed with each other. The core issue in such scenario is as to which
side was the aggressor. Having regard to the fact that the injuries suffered
by Abid (A-2), Babu (A-3) and Jonny (A-4) were trivial in nature, as
compared to the extensive injuries inflicted on the person of Mohd.
Anwar, with deadly weapons in active use, resulting in his death, there
can be no doubt that the appellants were the aggressors and the other side
at the receiving end. In these facts and circumstances, the injuries of the
three appellants stand explained and the theory of self-defence raised
rather hesitatingly must be rejected.
67. The case of Samadhan Dhudaka Koli Vs State of Maharashtra
2009 [I] CAR (SC) 140 has no relevance since the non-production of
record concerning immediate reports made by the SI Kailash Chand (PW-
16) to the police station does not create any doubts. It was not even
proved that DD entry was recorded contemporaneous to such reports. The
argument of partisan prosecution does not impress us.
68. In the forgoing facts and circumstances, we have no hesitation in
affirming the findings recorded by the learned trial court that the
appellants, along with Shaheen (PO), had collectively assaulted on the
person of Mohd. Aslam (PW-15) and Joshna Begum (PW-3) near the
shop of Bilal, sometime around 8.30 PM on 01.07.2008 and when Bilal
(since deceased), Mohd. Anwar (deceased) and Shilpi (PW-12) had come
to their rescue, they were also attacked and injured by the appellants. We
also affirm the findings that in this assault, Rabi-ul-Islam (A-1) and Abid
(A-2) were armed with knives which were actually put to use in inflicting
injuries on the person of Mohd. Anwar (deceased). We further find that
the other appellants were also armed, Shaheen (PO) and Jonny (A-4)
carrying iron rods and others carrying wooden sticks. These weapons
were used also for inflicting injuries on the persons of Joshna Begum
(PW-3), Shilpi Begum (PW-12), Mohd. Aslam (PW-15) and Bilal (since
deceased).
69. The appellants refer to Subhash & Anr. Vs State of U.P. 1976 SCC
(Crl.) 483 and Ram Narain Vs State of Punjab AIR 1975 SC 1727 to
argue that from the use of iron rod and wooden stick the intention to kill
cannot be gathered. We do not find any merit in this submission for the
reason the evidence also shows use of knife by two assailants.
70. It has been argued that since only Rabi-ul-Islam (A-1) and Abid
(A-2) were carrying knives, common intention for inflicting the fatal stab
wounds cannot be attributed, under Section 34 of IPC, to the other
appellants. Reliance is placed on Kripal Vs State of U.P., AIR 1954 SC
706 and Ishaque and Ors Vs State of West Bengal and Ors, (2013)14
SCC 581, to argue that sharing of common intention or intention to kill
cannot be inferred. In our judgment, the argument lacks merit. Seven
persons, each armed with weapon, two of them with stabbing instruments,
had converged, almost together, and collectively attacked Mohd. Aslam
(PW-15) and Joshna Begum (PW-3). When Bilal (since deceased) and
Mohd. Anwar (deceased), both brothers of Joshna Begum (PW-3), tried
to intervene, the appellants diverted their collective wrath towards them.
What followed thereafter was absolute mayhem. A vicious attack was
launched on the person of Mohd. Anwar (victim). The autopsy report
shows that he was subjected to assault with all kinds of weapons, sharp-
edged cutting instruments and blunt included. The attack was all over his
body including on the vital parts. Two specific injuries, both in the chest
region, individually and collectively, were sufficient to cause death in the
ordinary course of nature. It is clear from the evidence that the appellants
intended to cause these injuries.
71. In the face of proof that deadly weapons were used by the seven
assailants, collectively focusing their attention on one individual, causing
extensive damage to his body, there is no scope for entertaining the plea
that the intention was anything but to cause death. When all the seven
assailants, including the appellants before us, were active participants in
the attack on the person of Mohd. Anwar, there can be no doubt that they
were so engaged since they shared the common intention to cause his
death. Thus, the death of Mohd. Anwar must be held a case of culpable
homicide amounting to murder.
72. In above view of the matter, we hold that the learned trial Court has
correctly appreciated the evidence on record to find the appellants guilty
on the charge of murder under Section 302/34 of IPC.
73. As noted earlier, the MLC of Mohd. Aslam (PW-15) has not been
proved in accordance with law. The document (Ex. PW-14/DA) was
referred in the evidence in some other context. The author of this MLC
has not been examined. In these circumstances, the prosecution did not
prove the extent or nature of injuries suffered by him. Thus, we find it
difficult to uphold the conclusion reached by the learned trial Court that
the injuries suffered by Mohd. Aslam (PW-15) were such as were likely
to result in his death. The conviction of the appellants for the offence
under Section 307/34 of IPC on this account, therefore, cannot be
sustained.
74. The evidence of Joshna Begum (PW-3) and Shilpi Begum (PW-12)
has collectively brought out that both of them and Bilal (since deceased)
had also been injured in the attack, at the hands of the appellants. We,
thus, affirm the findings of the learned trial Court holding the appellants
guilty on the charge for offences under Section 323/34 of IPC for the
injuries suffered by Joshna Begum (PW-3), Shilpi Begum (PW-12), Bilal
(since deceased) and additionally for the hurt caused to Mohd. Aslam
(PW-15).
75. Before concluding, against the backdrop of what we have noticed
in earlier part of this judgment we feel it necessary to remind the trial
Courts of their duty in light of the following observations of the Supreme
Court in Vinod Kumar Vs State of Punjab, (2015) 3 SCC 220:
57.1. Adjournments are sought on the drop of a hat by
the counsel, even though the witness is present in court,
contrary to all principals of holding a trial. That apart,
after the examination-in-chief of a witness is over,
adjournment is sought for cross-examination and the
disquieting feature is that the trial Courts grant time.
The law requires special reasons to be recorded for
grant of time but the same is not taken note of.
57.2. As has been noticed earlier, in the instant case the
cross-examination has taken place after a year and 8
months allowing ample time to pressurize the witness
and to gain over him by adopting all kinds of tactics.
57.3. There is no cavil over the proposition that there
has to be a fair and proper trial but the duty of the
court while conducting the trial is to be guided by the
mandate of law, the conceptual fairness and above all
bearing in mind its sacrosanct duty to arrive at the
truth on the basis of the material brought on record. If
an accused for his benefit takes the trial on the path of
total mockery, it cannot be countenanced. The court has
a sacred duty to see that the trial is conducted as per
law. If adjournments are granted in this manner it
would tantamount to violation of the rule of law and
eventually turn such trials to a farce. It is legally
impermissible and jurisprudentially abominable. The
trial courts are expected in law to follow the command
of the procedure relating to trial and not yield to the
request of the counsel to grant adjournment for non-
acceptable reasons.
57.4. In fact, it is not at all appreciable to call a witness
for cross-examination after such a long span of time. It
is imperative if the examination-in-chief is over, the
cross examination should be completed on the same
day. If the examination of a witness continues till late
hours the trial can be adjourned to the next day for
cross-examination. It is inconceivable in law that the
cross-examination should be deferred for such a long
time. It is anathema to the concept of proper and fair
trial.
57.5. The duty of the court is to see that not only the
interest of the accused as per law is protected but also
the societal and collective interest is safeguarded. It is
distressing to note that despite series of judgments of
this Court, the habit of granting adjournment, really an
ailment, continues. How long shall we say, "Awake!
Arise!". There is a constant discomfort. Therefore, we
think it appropriate that the copies of the judgment be
sent to the learned Chief Justices of all the High Courts
for circulating the same among the learned trial Judges
with a command to follow the principles relating to
trial in a requisite manner and not to defer the cross-
examination of a witness at their pleasure or at the
leisure of the defence counsel, for it eventually makes
the trial an apology for trial and compels the whole
society to suffer chicanery. Let it be remembered that
law cannot allowed to be lonely; a destitute.
76. In the result, we partly allow the appeals by setting aside the
conviction of the appellants, and the sentence awarded to each of them,
for the offence under Section 307/34 of IPC. The findings of guilty and
conviction for offences under Section 302/34 of IPC and under Section
323/34 of IPC, as indeed the sentences awarded for the same, are
maintained.
77. The appeals are disposed of in above terms. The appellants be
informed through Superintendent, Central Jail with copy of this judgment
being made available to each of them.
(R. K. GAUBA)
Judge
(SANJIV KHANNA)
Judge
SEPTEMBER 07, 2015/vld /afa
