Delhi High Court
Mohd. Wazir And Anr. vs The State on 18 July, 2017
$~27, 28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 18th July, 2017
+ CRL.A. 457/2000
MOHD. WAZIR AND ANR. ..... Appellants
Through: Mr.K.B.Andley, Senior Advocate
with Mr.Mohd. Shamikh and
Mr.Anurag Andley, Advocates
versus
THE STATE ..... Respondent
Through: Ms.Radhika Kolluru, APP for the
State along with Insp. Narender
Singh, PS Kalyan Puri
+ CRL.A. 493/2000
ABDUL KARIM ..... Appellant
Through: Mr.K.B.Andley, Senior Advocate
with Mr.Mohd. Shamikh and
Mr.Anurag Andley, Advocates
versus
STATE OF DELHI ..... Respondent
Through: Ms.Radhika Kolluru, APP for the
State along with Insp. Narender
Singh, PS Kalyan Puri
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE CHANDER SHEKHAR
G.S.SISTANI, J. (ORAL)
1. Both these appeals arise out of a common judgment dated 14.07.2000
passed by the learned Trial Court in Sessions Case No.142/98, FIR
No.49/96, Police Station Kalyan Puri and the order on sentence dated
20.07.2000, by which all the appellants have been held guilty for the
offence punishable under Section 452 and 302 of the Indian Penal
Code (hereinafter referred to as 'IPC'). Appellant Abdul Karim has
been sentenced to imprisonment for life for the offence punishable
under Section 302 IPC with a fine of Rs.5000/-, in default of payment
of fine to further undergo rigorous imprisonment for one year.
Appellants Zi-Ul-Haq and Mohd. Wazir have been sentenced to
imprisonment for life for the offence punishable under Section 302
read with Section 34 IPC with a fine of Rs.5000/- each, in default of
payment of fine to further undergo rigorous imprisonment for one year
each. All the three appellants have been further sentenced to undergo
rigorous imprisonment for three years each for the offence punishable
under Section 452 IPC with a fine of Rs.2000/- each, in default of
payment of fine, to further undergo rigorous imprisonment for six
months each. Both the sentences were ordered to run concurrently.
2. Since both the appeals arise out of the common judgment and order on
sentence, the same are being disposed of by a common judgment.
3. Before the rival submissions of learned counsel for the parties can be
noticed, we deem it appropriate to state the case of the prosecution as
noticed by the learned Trial Court, which is reproduced as under:
"On 9.2.96 Shri Kalicharan lodged a report with the police,
alleging therein that he resides at House No.E-40, Gali
No.2, East Vinod Nagar, Delhi, alongwith his family and
runs a shop at premises No.12/66, Kalyan Puri, Delhi. He
deals in threads and buttons at the aforesaid shop. From
the last 5-6 months he was purchasing threads from a
factory located at Basti Chunot, Ram Nagar, Paharganj,
Delhi. Zia-Ul-Haque, Abdul Karim @ Gulab and Mohd.
Wazir, who are the brothers, have been dealing with him
and they used to supply threads to him almost every week.
In their dealings they used to supply goods on credit also. A
sum of Rs.8500/- became due from him to the aforesaid
three brothers. On 2.2.96, Abdul Karim and his brother
Wazir came to his shop and supplied goods worth Rs.1550/-
to him. They demanded their balance amount too. On
8.2.96, at about 5 p.m. Abdul Karim and Zia-Ul-Haque
came to his shop and demanded their money. They said that
they were in great need of money. He replied that at that
time, he was not in a position to pay and would arrange for
their money within a day or two. At that juncture, they
pressed for payment of their money, otherwise it would
result into a serious consequence. They raised an
altercation and left while extending threats to him. On
9.2.96, at 6.45 p.m., he was present at his home alongwith
his wife and children. Zia-Ul-Haque, Abdul Karim and
Mohd. Wazir came to his house and raised the demand for
their money. They insisted that they would collect their
money on that very day. In the meantime, his son Devender
Kumar aged about 7 years went upstairs to toilet to ease
himself. On the pretext of urinating, Abdul Karim also went
upstairs. After a few moments, Zia-Ul-Haque and Wazir
followed him. He became suspicious and went upstairs,
where he saw that Zia-Ul-Haque had gagged the mouth of
his son Devender from his right hand and Abdul Karim was
stabbing his son with a knife. Mohd. Wazir was exhorting
him to inflict more blows on his person. He went ahead to
save his son and at that juncture, Wazir gave him a push
and they threw his son Devender inside the toilet and went
away. It was heavy rain at that time. He got up and raised
an alarm "catch, catch, his son has been stabbed". He also
ran downstairs following them. They were seen while
running by his wife and children. When they had run away
then he alongwith his wife had lifted his child and took him
to Saxena Nursing Home with the help of a jeep driver, who
met them in the street perchance. There doctor told them
that it was a police case and they should take the victim to a
Govt. hospital. They had taken their son to AIIMS, where
he was declared brought dead by the doctors. His son
Devender Kumar had stab injuries on his abdomen, chest,
left ribs, back and on the right ribs. His son was killed by
Abdul Karim, Zia-Ul-Haque and Mohd. Waizir, after having
a common intention in this regard. Action be initiated
against them."
4. The appellants were charged for the offence punishable under Sections
120-B, 452 and 302 read with Section 34 of IPC, to which they
pleaded not guilty and claimed to be tried. To bring home the guilt of
the appellants, the prosecution examined 22 witnesses in all. The
statements of the appellants were recorded under Section 313 of the
Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.')
wherein the appellant Zia-Ul-Haq admitted that he had supplied
threads and buttons to PW8 Kali Charan 6 months prior to the
incident. However, he denied supply of goods to PW8 Kali Charan in
the month of February, 1996. Other allegations were denied by him
and pleaded to be innocent and claims to be falsely implicated in the
present case. The appellant Abdul Kareem stated that he had been
falsely implicated in the present case as he was in love with Hira
(daughter of Kali Charan). The appellant Mohd. Wazir reiterated the
same as deposed by the appellant Abdul Kareem that his brother
Abdul Kareem was in love with Hira and on that account he was also
falsely implicated in the present case. The appellants examined two
witnesses in their defence.
5. Learned counsel for the appellants submits that the learned Trial Court
has erred in law in convicting the appellants under Section 302/452 of
IPC. It is contended that the judgment of the learned Trial Court is
contrary to law and facts. The learned Trial Court has failed to take
into account that the witnesses were interested witnesses and despite
neighbours and other public witnesses being available, no evidence
was led. It is contended that the testimony of PW-8 Kali Charan is not
reliable as he was not an eye witness. It is also contended that the
learned Trial Court has heavily relied upon the testimonies of both
PW-5 Rajneesh and PW-8 Kali Charan, whereas they were planted
witnesses. It is also the contention of the learned counsel for the
appellants that PW-6 Munni Devi, mother of the deceased, is also an
interested witness; her testimony is unreliable and unworthy of
reliance. The presence of PWs 6 and 8 is doubted having regard to the
fact that despite the stand of the prosecution that the deceased was
removed in an injured condition with ten injuries in a jeep, while he
was in the lap of his parents, their blood-stained clothes were not
seized, which would show that PWs 6 and 8 were not present at the
place of the incident. Learned counsel further submits that since the
alleged recovery of the weapon of offence from Nizamuddin has not
been believed by the learned Trial Court and Nizamuddin stands
acquitted, this factor alone would be sufficient to doubt the entire case
of the prosecution against the appellants as well. Learned counsel has
also very strenuously urged before this Court that the copy of the
Special Report was not sent to the local Magistrate expeditiously.
6. It is contended that the FIR was ante-dated and time was taken to
falsely implicate the appellants on account of the fact that appellant
Abdul Karim had an affair with the daughter of PW-8 (sister of the
deceased), which was not approved by the family and it is for this
reason that the appellants have been falsely implicated. Reliance is
placed on the judgment in the case of Meharaj Singh (L/Nk.) v. State
of U.P., reported at (1994) 5 SCC 188, more particularly paragraph
12. Counsel further contends that that neither any public witnesses
were examined nor public witnesses examined at the time of the arrest
of the appellants. It is contended that the case of the prosecution
would be unbelievable and improbable as according to the prosecution
the appellant Abdul Karim was arrested while he was wearing the
same blood-stained clothes as worn by him at the time of the alleged
offence. Counsel contends that the weapon of offence was not
believed by the learned Trial Court, which fact gains importance as
the Doctor was not examined as to whether the injuries could have
been caused by the said weapon.
7. The learned counsel contends that the driver of the jeep in which the
injured was taken to the Hospital was not examined and despite the
fact that PW-8 admitted in his cross-examination that neighbours were
present, yet statement of none of the neighbours were recorded.
Counsel also submits that since appellant Abdul Karim had an affair
with the daughter of PW-8, it is for this reason that Hira was not
examined despite the fact that she was available. Attention of the
Court is drawn to the cross-examination of the mother of the deceased,
wherein she has stated that her children were present and awake in the
house. Additionally, counsel appearing for the appellants Mohd.
Wazir and Zia-Ul-Haque have contended that there are no sufficient
grounds in holding these appellants guilty or being party to the
heinous crime of murder of child 07 years of age. Learned counsel
further submits that the story of the prosecution is highly improbable
and unbelievable as it is not possible for three persons to have escaped
after murdering a 07 years old child in the presence of the entire
family, human conduct is such that the parents of the child including
the brother and sister would have made efforts to nab the culprits at
the spot considering this fact that only one, out of the three persons
were armed with the knife.
8. Per contra, Ms. Radhika Kolluru, learned counsel appearing for the
State submits that the State has been able to establish its case beyond
any shadow of doubt. The testimonies of the eye witnesses are
truthful and reliable, including the testimony of child witness. It is
further contended that the presence of the appellants stand duly
established, the motive stands duly established, the weapon of offence
has been recovered and as per the FSL report, blood of the deceased
was found on the clothes of the appellant Abdul Karim. Blood group
AB of the deceased was also matched on the clothes of the appellant
Abdul Karim. Testimonies of all the witnesses being PW-5 Rajneesh,
PW-6 Munni Devi, PW-8 Kali Charan, PW-12 Sanjay and PW-14
Prabha have been consistent and have deposed on identical lines as to
the time and place of incident. The scientific evidence also connects
the appellants with the murder of the deceased. The appellants were
named and arrested at the shortest possible time. It is disputed that the
learned Trial Court has not believed the recovery of the weapon of
offence from the testimony of PW-11 Deepak Sharma. Counsel
explains that as far as jeep driver is concerned, his statement was
recorded under Section 161 Cr.P.C., thereafter he became unavailable.
Serious steps were taken to trace him and on this account, he had to be
dropped as the trial was getting delayed.
9. Ms. Radhika has also contended that Hira was not examined as she
had become unconscious and was not fit to give the statement, which
is evident upon reading of the testimonies of PW-12 Sanjay and
PW-14 Prabha. She further explains that merely because PW-6 has
stated that all her children were present in the house cannot imply that
Hira was fit to make a statement to the police. Counsel submits that
PW-12 has also clarified that ground floor portion of the house was
lying vacant and, thus no tenant was there to make a statement. She
submits that Courts have taken judicial notice of the fact that
neighbours and public witnesses are often reluctant to give statements.
Thus, for this reason together with the fact that since the prosecution
had taken the statement of the mother, father, two brothers and one
sister, it was not necessary to record the statement of other persons.
While relying upon the judgments in the cases of Kartik Malhar vs.
State of Bihar reported at (1996) 1 SCC 614, Durg Pal vs. State
reported at 221 (2015) DLT 683 and Jite vs. State reported at
MANU/DE/1791/2017, where it has been repeatedly held that it is not
the number of witnesses which is important, but it is the quality of
witnesses which is to be considered.
10. We have heard the learned counsel for the parties and considered their
rival submissions and given thoughtful consideration to the matter. In
order to deal with the contentions of both the parties, it would be
appropriate to examine the testimonies of the material witnesses.
11. The first question which arises for our consideration is as to whether
the testimonies of PW8 Kali Charan and PW5 Rajneesh are reliable
and trustworthy.
12. The main evidence against the appellants consisted of the evidence of
the eyewitnesses namely PW8 Kali Charan and PW5 Rajneesh. It is
true that both the two eyewitnesses were close relations of the
deceased but the occurrence had taken place inside the house, PW8
and PW5 were the natural witnesses and were in fact were present at
the ground floor when the occurrence took place. The testimonies of
PW8 Kali Charan and PW5 Rajneesh cannot be ignored and discarded
merely because they happen to be the family members of the
deceased. The incident took place at about 06.45 PM and the relatives
of the deceased were the most natural witnesses.
13. The evidence of the eyewitnesses is sought to be corroborated by the
evidence of PW6 Munni Devi and PW14 Prabha (sister of the
deceased) who reached the spot immediately after the appellants killed
the deceased. Undoubtedly, the testimony of the interested witness can
be relied upon if found to be reliable and trustworthy. However, there
is a duty on the Court to scrutinise the evidence available on record
carefully and the same can be relied upon in case the evidence is
truthful and reliable. No enmity has been ascribed to the family
members of the deceased to discredit their testimonies.
14. In the case of Piara Singh and others vs. State of Punjab reported at
(1977) 4 SCC 452, it was held by the Hon'ble Supreme Court that if
the evidence of the interested witness is credit-worthy then there is no
bar to convict the accused on the basis of it. Relevant part of Para 4
reads as under:
"4..... It is well settled that the evidence of interested or
inimical witnesses is to be scrutinised with care but cannot
be rejected merely on the ground of being a partisan
evidence. If on a perusal of the evidence the court is
satisfied that the evidence is credit-worthy there is no bar in
the Court relying on the said evidence. The High Court was
fully alive to these principles and has in fact found that the
evidence of these three witnesses has a ring of truth. After
having perused the evidence ourselves also we fully agree
with the view taken by the High Court......"
(Emphasis Supplied)
15. In the case of Anil Kumar vs. State reported at ILR (1996) 2 Del 708,
the importance of interested witnesses has been discussed and it was
held that the statement of a witness cannot be discarded and ignored
simply because he happens to be a relation of the deceased. Relevant
para 11 and 14 read as under:
"11. We are sorry we are unable to agree with the
contention of the learned counsel for the appellant. This is
not the correct position of the law. The statement of a
witness cannot be discarded and ignored simply because he
happens to be a relation of the deceased. The relations of
the deceased are the most natural witnesses inasmuch as
man is a gregarious being. He lives and is expected to live
in the company of his relations and friends. Thus if some
calamity befalls a man, naturally it would be his or her
relations only who would witness the same. Admittedly,
there is no dispute with regard to the fact that the deceased
was murdered during the intervening night of 25/26th
February, 1986. The murder is alleged to have been
committed at 2.00 a.m. in the night. Thus who could have
been the other witness other than the wife of the deceased at
such an odd hour of the night. Thus we are of the view that
PW1 Smt. Ram Rati is the most natural witness in the
circumstances of the case. Her testimony as such cannot be
ignored and discarded simply because she happens to be the
wife of the deceased.
......
14. It is manifest from above that there is no such law that
the statement of a particular witness is liable to be flung to
the winds simply because he happens to be a close relation
of the deceased. The correct position of law is that there is
no such bar. However, the Court while relying upon the
statement of a close relation, so called interested witness,
would be on its tiptoe and guard and would scrutinise the
said statement more carefully. However, thereafter if it
comes to the conclusion that the said statement is worth
placing the reliance it would not hesitate from doing so
simply because the witness is an interested one. After a
careful scrutiny of the statement of PW1 Smt. Ram Rati, wife
of the deceased, we are of the view that there is absolutely
no reason whatsoever as to why her statement should not be
relied upon. The learned counsel has failed to point out any
infirmity or weakness whatsoever in her statement.
(Emphasis Supplied)
16. PW8 Kali Charan (father of the deceased) deposed in his examination-
in-chief that on 09.02.1996 at about 6.45 pm, the appellants Abdul
Karim @ Gulaab, Mohd. Wazir and Zia-Ul-Khan came to his house.
He knew them because he used to purchase threads from their factory
situated at Pahar Ganj, Delhi. On 02.02.1996, the appellants had
supplied threads worth Rs. 1500 to him. Thereafter, on 08.02.1996
the appellants Abdul Karim and Zia-Ul-Haq came to his shop and
asked for the money. PW8 showed his inability to pay and asked for
some more time. The appellants started abusing him and left his shop
after threatening him. PW8 further deposed that he owed Rs. 8500 to
the appellants Wazir , Karim and Zia-Ul-Haq. On 09.02.1996 at about
6.45 pm, the appellants Zia-Ul-Haq, Karim and Wazir came to his
home and asked him to pay immediately. The said demand was made
by the appellant Karim. At that time, it was drizzling. In the
meanwhile his son Devender aged about 7 years went upstairs to ease
himself. Thereafter, the appellant Abdul Karim followed Devender
and was subsequently followed by the appellant Wazir and Zia-Ul-
Haq. PW-8 got suspicious, he along with his son Rajneesh aged about
5 years followed all of them upstairs and found appellant Zia-Ul-Haq
gagging his son Devender and the appellant Abdul Karim stabbed him
with a knife which resulted in the protrusion of his intestine. The
appellant Wazir was standing nearby and was exhorting them saying
'Karim Saley Ko Aur Chaku Mar'. PW8 came forward to save his son
but he was pushed aside by the appellant Mohd. Wazir and the
appellants Wazir and Zia-Ul-Haq threw his son in the lavatory. He
raised an alarm to catch the appellants but the appellants fled away
from the spot. His son was removed to the hospital in a jeep. Firstly,
he was taken to Saxena Nursing Home whereupon he was advised to
go to Malhotra Nursing Home. Finally, his son was taken to AIIMS
hospital where his son was declared brought dead.
17. PW8 Kali Charan in his cross-examination stated that at the time of
incident it was raining therefore, neighbours did not reach the spot in
the beginning. Later, after hearing the cries of his son the neighbours
reached the spot whose names he did not remember. The neighbours
were interrogated by the Police in his presence. The testimony of
PW8 remained consistent to the statement made to the police. It was
stated by PW8 that he had found blood on the clothes of the appellant
Abdul Karim. PW8 further stated in his cross-examination that his
son was removed in a jeep. He was aware about the identity of the
driver of the jeep who was named as Dalip. The statement of Dalip
was recorded by the Police on the day of incident.
18. PW5 Rajneesh (brother of the deceased) aged about 5 years at the time
of his deposition testified in his examination-in-chief that on
09.02.1996, he was present at his home when the appellants Zia-Ul-
Haq, Karim and Wazir came there. His brother went up-stairs for
easing himself. The appellants Abdul Karim and Wazir followed the
deceased. It was drizzling at the time of the incident. The appellant
Karim had a knife in his hand and gave fatal blows to his brother
while the appellant Zia-Ul-Haq gagged his mouth with his hand and
the appellant Wazir was exhorting appellant Karim to give more
blows to his brother. His brother had died at the spot. In his cross-
examination the role assigned by him to the appellants remained
consistent and withstood the test of cross-examination. PW5 also
stated that at the time of incident he was the first person who reached
the spot and informed his father about the stab injuries given to his
brother. Thereafter, his father (PW8 Kali Charan) followed him.
19. PW6 Munni Devi (mother of the deceased) deposed on similar lines as
deposed by PW8 with regard to the incident of 02.02.1996 and
08.02.1996 which took place in her presence. She deposed that at the
time of incident she was accompanying her husband at his shop. PW6
deposed that on 09.02.1996 at about 06.45 pm all the appellants came
to her home and asked for an amount of Rs. 8500/-. Her husband
showed his inability to pay and asked a day or two for the payment.
At that time, her son Devender was sleeping but on hearing the noise
he woke up and went upstairs to ease himself. His son Devender was
followed by the appellants Karim, Zia-Ul-Haq and Wazir. Her
husband suspected some foul play and followed the appellants upstairs
and found that the appellant Karim was stabbing Devender and the
appellant Zia-Ul-Haq gagged his mouth while the appellant Wazir
exhorted Karim saying „Or Maro Saley Ko‟. PW6 in her cross-
examination stated that her son was taken to the hospital in a jeep,
which was driven by his neighbour. She carried her son in her lap and
was also accompanied by her husband. She stated that she was not
aware about the presence of blood in jeep however; her clothes were
blood stained while removing his son to the hospital.
20. PW14 Prabha (sister of the deceased) deposed on similar lines as
deposed by PW 8, 5 and 6. PW14 correctly identified all the
appellants in Court. She deposed that on 09.02.1996 at about 6.45 pm
all the appellants Karim, Wazir and Zia-Ul-Haq came to her house and
demanded money from her father. The appellant Karim insisted for
the payment of money immediately. Her father asked if he could pay
in a day or two. In the mean time, her brother Devender woke up and
had gone upstairs. All the three appellants followed his brother.
Thereafter, the appellants were followed by her father and brother
Rajneesh. After sometime she heard the feeble voice of her father and
saw appellant Karim moving down stairs. He saw a knife dripping
with blood in the hands of the appellant Karim. Thereafter, she went
upstairs and her brother was taken to the hospital. PW14 Prabha in her
cross-examination supported the case of prosecution in all material
particulars. She stated that her brother Devender was removed to the
hospital in a jeep driven by Deepak. None of the children or any
neighbour had accompanied her father to the hospital. At the time of
incident she along with Pradeep, Sanjay, Rajneesh, Hira and her
parents were present in the house. She further stated that when Police
came to her house her parents had not returned from the hospital. The
statement of PW14 along with Sanjay, Rajneesh was recorded by the
Police on the day of occurrence. Her sister Hira was not in a position
to make a statement and Pradeep had gone outside the house.
21. Applying the law to the facts of the present case, it is well settled that
the evidence of interested witnesses is not necessarily unreliable. All
that is necessary is that the evidence of the interested witnesses should
be subjected to careful scrutiny and must be accepted with caution. If
on such scrutiny, the testimony is found to be reliable and trustworthy,
it may, by itself, be sufficient, in the circumstances of the particular
case, to base a conviction thereon.
22. In our view, the evidence of PW-5 and PW-8 is consistent on all
material aspects and thus is fully reliable and trustworthy and even if
no independent witness is produced it will not adversely affect the
case of the prosecution. In the backdrop of the above legal
propositions and the facts and circumstances of the case we have
found the testimonies of PW-8 Kali Charan, PW-5 Rajneesh, PW-6
Munni Devi and PW14 Prabha as trustworthy and remained consistent
with the medical evidence.
Medical Evidence:
23. PW-19 Dr. Alpna Sinha conducted the post-mortem of the deceased
(aged 7 years) on 11.02.1996. In her detailed report Ex. PW19/A, she
noted the following ante-mortem external injuries on the deceased:
"1) Incised wound 4.5 cm x 2.5 cm x muscle deep, obliquely
placed on left side of chest, 0.5 cm from mid-line over 5 th
and 6 th and intercostal space.
2) Stab wound 2 cm x 1.5 cm x chest cavity deep, obliquely
placed over left side of chest, cutting 6th rib and 6th inter
costal space, 7 cm from mid-line.
3) Stab wound 2.5 cm x 1 cm x chest cavity deep on left side
of chest, along interior axillary line, 11 cm from mid-line,
cutting 8th rib and 7th and 8th inter costal space.
4) Stab wound 1.5 cm x 1 cm x chest cavity in 5th inter
costal space along mid axillary line, 13 cm from mid-line.
5) Incised wound 1.5 cm x 1 cm muscle deep on left side of
chest, 5 cm from mid-line over costal margin.
6) Stab wound 1.5 cm x 1 cm x 2 cm long, subcutaneous
track on right side of chest, 12 cm from mid-line, along mid-
axillary line in 3rd intercostal space.
7) Stab wound with protruding omentum 2 cm x 1 cm x
peritonial cavity deep, obliquely placed 6 cm from midline,
just below costal margin on left side of abdomen.
8) Stab wound with omentum protruding, vertically placed
1.7 cm x 1 cm x peritoneal cavity on right side of abdomen,
0.5 cm from mid line, 4 cm below costal margin.
9) Incised wound 2.5 cm x 1.5 cm x muscle deep on the left
side of flank, 2 cm below interior superior iliac spine 13 cm
from midline
10) Stab wound 1 cm x 0.5 cm x 2 cm on left side of back 0.5
cm from midline, 8 cm above superior iliac-spine.
.....
On left lung there were three stab wounds 2.5 cm x 0.5 cm x
1 cm x, 1 x 0.5 cm x 0.5 cm and 1 cm x 0.5 cm x 1.5 cm over
lateral surface of lower lobe. Weight was 100 grams. Right
lung was contused having an injury of 1 cm x 1 cm over
lower lobe.
...
There were two stab wounds 1 cm x 1.5 cm x 1.5 cm over
superior surface of right lobe and the weight of liver was
500 grams.
There were three stab wounds over the spleen."
24. With regard to the death of the deceased, PW-19 Dr. Alpna Sinha
opined the cause of death as haemorrhagic shock due to abdominal
and chest injuries No. 2, 3, 4, 6, 7, 8 and 10. The injuries are
collectively and individually fatal and were sufficient to cause death in
the ordinary course of nature. Injuries No. 1 to 10 were caused by
sharp cutting weapon and were fresh in nature.
25. With regard to the weapon of offence, it would be relevant to quote
the Court question put to PW-19 Dr. Alpna Sinha which reads as
under:
"At this stage a sealed parcel duly sealed with the seal of
the court is opened and a dagger Ex. P7 is taken out.
Q. Whether the injuries mentioned in your post mortem
report are possible by this weapon of offence?
Ans. The injuries are possible by this weapon."
FSL Results:
26. PW-22 D. S. Chakotra, Senior Scientific Officer, Chemical Examiner,
FSL, Delhi examined the weapon of offence recovered at the instance
of Nizamuddin i.e. dagger (Ex.6a) and scabbard (Ex.6b). Clothes of
the appellant Karim, including shirt (Ex.9a), sweaters (Ex.9b and 9c),
jeans (Ex.7c) and jacket (Ex.7a) were examined. After examination of
the above mentioned exhibits, blood of AB group was found on all the
exhibits. His detailed report is Ex.PW-22/B.
27. A conjoint reading of the testimonies discussed above, the medical
evidence and FSL results placed on record, it stands established that
the appellants in furtherance of their common intention were involved
in the commission of murder of the deceased Devender. In our view,
contradictions if any are not material in nature and do not go to the
root of the matter.
28. The next submission made by the counsel for the appellants was that
in case PWs 6 and 8 had removed the deceased as claimed by him in
the jeep, there would have been blood on their clothes as PW-6 had
deposed that the deceased was on her lap. However, her clothes were
not taken into possession by the police and not sent for examination.
29. This submission of the learned counsel for the appellants is also liable
to be rejected. Even though the blood stained clothes of PW6 and 8
were not seized but their evidence establishes their presence at the
place of the incident. It is settled law that faulty investigation cannot
come in the way of dispensing justice. Investigating Officer may have
faulted in not collecting the blood stained clothes of the eyewitnesses,
but the benefit of defective investigation cannot accrue to the accused
persons. We need not burden this opinion with judicial
pronouncements in this regard; suffice to mention that one may
usefully refer to Sathi Prasad vs. The State of U.P. reported at AIR
1973 SC 448, State of U.P. v. Anil Singh reported at 1988 Supp SCC
686 (paragraph 17), Mohan Singh v. State of Madhya Pradesh,
reported at (1999) 2 SCC 428 (paragraph 11), Dhanaj Singh alias
Shera & Ors. Vs. State of Punjab reported at (2004) 3 SCC 654
(paragraphs 5 and 8), State of UP v Krishna Master, reported at
(2010) 12 SCC 324 (paragraph 15).
30. We may also notice a judgment of a co-ordinate bench of this Court,
of which one of us (G. S. Sistani, J.) was a member in Babu and
Others vs. State of Delhi reported at MANU/DE/1550/2017, held that
if any defect is found in the investigation, benefit of the same could
not be extended to the accused persons and they could not get any
benefit of the defective investigation until and unless they prove other
cogent evidence in their favour and belie the case of the prosecution.
It was further held that in the case of defective investigation, the court
has to circumspect in evaluating the evidence, but it would not be
right in acquitting the accused persons solely on account of the
defective investigation by the Investigating Agency.
31. In light of the judgments mentioned in aforegoing para, even if we
assume that the clothes of PW-6 and 8 were blood stained and the
Investigating Officer did not seize them, it amounts to a lapse on the
part of the Investigating Agency. It reflects the casual and callous
attitude of the Investigating Agency in carrying out its most solemn
duty of conducting fair, honest, flawless and scientific investigation
into the crime. The discrepancy pointed out by the appellants cannot
be said to be significant enough to create a reasonable doubt in the
case of the prosecution. Any procedural lapse does not dilute the
evidence available on record in the form of the depositions of the eye
witnesses which adequately bring home the guilt of the appellants
beyond all reasonable doubt.
32. With regard to the contention raised by the counsel for the appellants
that the alleged recovery of the weapon of offence from Nizamuddin
was disbelieved by the learned Trial Court which resulted in acquittal
of Nizamuddin and this ground alone would be sufficient to doubt the
entire case of the prosecution against the appellants. This contention
was supported with the fact that the doctor who conducted post-
mortem was not examined with regard to the possibility of the injuries
by the said weapon.
33. However, it was disputed by the learned counsel for the State that the
Trial Court disbelieved the recovery of the dagger. It was contended
by the counsel for the State that merely because Nizamuddin got
acquitted by the Trial Court, that would not ipso facto falsify the case
of prosecution. Therefore, it cannot be a ground to acquit the
appellants. Reliance was placed on para 18 of the impugned judgment
which reads as under:
"18. Vijay Pal Ct. had reached the spot on 09.02.1996
alongwith S. P. Rana Inspector. He was sent with rukka for
registration of the case and thereafter associated in the
investigation. He details that on 10.02.1996 all the four
accused persons were arrested. Accused Nizamuddin was
arrested from Delhi Guest House at the instance of accused
Abdul Karim and from his possession dagger Ex. P-7 was
recovered. Dagger Ex. P-7 was taken into possession vide
memo Ex. PW2/K. Gopi Chand SI had also detailed the
facts in this regard. He deposed that they had gone to
Paharganj but the accused persons were not available
there. Then the Police went to Churriwalan from where
accused Zia-Ul-Haque, Mohd. Wazir and Abdul Karim were
arrested at the instance of Kalicharan. They informed them
that one of their associate was at Delhi Guest House in the
area of Jama Masjid. Accused Nizamuddin was arrested
from Delhi Guest House and on his disclosure statement, a
dagger was recovered from the mezanine of a room at Delhi
Guest House. The said dagger was taken into possession.
Dagger Ex. P-7 is the same which were recovered from the
possession of accused Nizamuddin. S. P. Rana Inspt. also
confirms the facts in this regard. He deposed that accused
Abdul Karim led police party to Delhi Guest House and at
his instance accused Nizamuddin was arrested. Disclosure
statement of accused Nizamuddin was recorded which is Ex.
PW2/J and dagger Ex.P-7 was recovered from there.
Kalicharan was also brought in the witness box to
corroborate the facts in this regard. He unfolds that
disclosure statement of accused Abdul Karim was recorded
and accused persons were taken to Delhi Guest House.
Accused Nizamuddin was arrested from there at the
instance of Abdul Karim. Nizamuddin got recovered dagger
from the mezanine of a room. The said dagger is Ex. P-7.
Shri D. S. Chakotra had given his report Ex.PW22/A
wherein he has opined that on the dagger and raxine
scabbard there was human blood. Thus, the testimony of
these witnesses bring it over the record that accused Abdul
Karim was arrested and on his disclosure statement accused
Nizamuddin was arrested from Delhi Guest House. At the
instance of accused Nizamuddin dagger Ex.P-7 was
recovered on which human blood was found. Dr. Alpna
Sinha opines that injuries found on the body of Devender
Kumar were possible by the said dagger. Question for
consideration comes as to whether this evidence is sufficient
to form an opinion that accused Nizamuddin had conspired
with the remaining accused persons and in furtherance of
the said conspiracy, Devender Kumar was murdered?
Except the arrest of the accused Nizamuddin at the instance
of Abdul Karim and recovery of dagger Ex.P-7, there is no
other circumstance which may suggest the existence of
conspiracy to murder Devender Kumar existing between
Nizamuddin and other accused persons. The evidence may
suggest that accused Abdul Karim had handed over dagger
Ex- P-7 to Nizamuddin who had kept it with him. Blood was
found on the dagger and scabbard. But this fact will not go
to establish that accused Nizamuddin was aware that the
said dagger was used in the murder of Devender Kumar.
Many hypothesis are possible on the point that blood was
there on the dagger when Nizamuddin kept it with him.
Therefore mere recovery of dagger Ex-P-7 from the
possession of accused Nizamuddin, is not sufficient to
attribute accountability to him. There are many loopholes
in evidence as regards the role of accused Nizamuddin is
concerned in commission of the crime. Evidence brought
over the record could establish that accused Abdul Karim,
Zia-Ul-Haque and Mohd. Wazir had gone at the house of
Kalicharan to demand their money back. When payment
was not made, they formed a common intention and
murdered Devender Kumar. This evidence demolishes the
existence of conspiracy between the above three accused
and accused Nizamuddin. Only recovery of dagger at the
instance of accused Nizamuddin has been proved. These
circumstance even do not show that he was an accessory
after the fact, since for that purpose it has to be established
that he was aware that Devender Kumar had been
murdered. Evidence on this count is missing. Hence, it is
clear that the prosecution could not establish the
accountability of accused Nizamuddin. Since the dagger
Ex. P-7 was recovered from the room of Nizamudddin,
notification issued by Delhi Administration under the Arms
Act no where comes into play. Consequently, I am of the
opinion that the prosecution has not been able to establish
conspiracy between accused Nizamuddin and the other
accused persons to commit the murder of Devender Kumar.
Nizamuddin deserves an acquittal."
34. To deal with the submission in relation to the failure to seek medical
opinion with regard to the weapon of offence during investigation, it
would be necessary to discuss the cross-examination of PW-19 Dr.
Alpna Sinha which reads as under:
"It is correct that during the course of investigation, no
opinion was sought from me that the injuries were possible
by dagger Ex. P.7. I was not informed by Surender Rana
Inspt. that weapon of offence was recovered in the case. I
had not mentioned in my post mortem report that the
injuries were caused by a single edged or double edged
weapon. Sometimes the injuries caused by a double edged
weapon look like an injury caused by a single edged
weapon. It is correct that normally injuries caused by a
double edged weapon looked different and distinct then the
injuries caused by a single edged weapon. Ex.P.7 was not
shown to me at any stage except today. It is correct that the
injuries caused by double edged weapon are spindle in
shape. This fact is not mentioned in my report. My opinion
that injuries were possible by Ex.P.7 is only an opinion
which cannot be said to definite. I had mentioned the
duration of injuries in my report. In my report I have
mentioned about the fresh injuries and not about the fresh
body. Opinion regarding duration of injuries may fluctuate
upto 12 hours on either side. Stomach was empty. It is
correct that Ex.P.7 has not been measured by me before
giving the opinion."
35. In view of the above, we are of the considered view that the learned
Trial Court has not disbelieved the recovery of dagger and acquittal of
Nizamuddin has nothing to do with the present appellants as there is
ample evidence on record against them. Therefore, failure of the
investigating agency to seek medical opinion with regard to the
weapon of offence during investigation does not weaken the case of
prosecution. It only amounts to a procedural lapse.
36. With regard to the submission made by the appellants that the copy of
Special Report was not sent to the local Magistrate expeditiously and
there is a considerable delay in sending the copy to the local
magistrate. It was also contended that the FIR was ante-dated and time
was taken to falsely implicate the appellants on account of the fact that
appellant Abdul Karim had an affair with the daughter of PW-8,
which was not approved by the family.
37. In this regard, the counsel for the appellants has relied upon the case
of Meharaj Singh's case (supra), wherein the Hon'ble Supreme Court
discussed the importance of prompt lodging of FIR and the copy of
special report be sent to the local Magistrate promptly in a murder
case to avoid any coloured version or exaggerated story.
38. After perusal of the judgment relied upon, we have found that in the
given case the prosecution led no evidence to show as to when the
copy of the FIR/special report, which was required to be despatched
under the statutory provisions of Section 154 read with Section 157
Cr.P.C promptly, to the Magistrate was actually despatched. There
was no evidence either to show as to when the copy of the FIR was
received by the Magistrate. However, the facts of the present case
differ from the case relied upon. Undoubtedly, delay in lodging the
FIR often results in embellishment, which is a creature of an
afterthought. In the present case, it is evident from the testimony of
Insp. S. P. Rana that FIR No. 49 of 1996 was registered on 10.02.1996
at 12.30 AM and the copy of FIR was sent to the residence of S. S.
Malhotra (then Metropolitan Magistrate) at 7.50 AM on the same day.
Therefore, in our view there is no delay in sending the copy of special
report to the local magistrate and it was sent promptly in accordance
with law.
39. Lastly, it was contended that non-examination of Dalip, driver of the
Jeep in which the deceased was taken to the hospital casts a doubt in
the case of prosecution. In this regard, we agree with the justification
rendered by the learned counsel for the State that the statement of
Dalip was recorded under Section 161 of Cr.P.C. and serious steps
were taken to trace him but as the trial was getting delayed, he was
dropped as a prosecution witness. In our view, non-examination of
Dalip does not affect the case of prosecution. Furthermore, it is
apparent from the evidence that the appellant Abdul Karim was
arrested on 10.02.1996 i.e. the day after the incident and this
strengthens the case of prosecution with regard to the blood stained
clothes as worn by him at the time of arrest and further points out his
involvement in the crime. Therefore, in our view it is not improbable
that the appellant Abdul Karim was wearing the same blood stained
clothes a day after the incident.
40. Taking into consideration the law as laid down by the Apex Court and
circumstances of the present case, we are of the view that the learned
Trial Court has rightly appreciated the evidence on record. The
prosecution has successfully proved the charges levelled against the
appellants. For the reasons stated above, we find no infirmity in the
judgment passed by the learned Trial Court and we see no reason to
interfere with the same. The conviction of the appellants under
Sections 302 read with Section 34 of IPC and under Section 452 of
IPC is upheld.
41. Both the appeals therefore fail and are dismissed. The appellants are
on bail. The appellants shall serve the sentence as imposed by the
learned Trial Court and surrender before the Central Jail, Tihar within
three weeks from today. They shall be taken into custody to serve out
the sentence.
42. The copy of this judgment be sent to the Superintendent Jail.
43. Trial Court record be sent back.
G. S. SISTANI, J.
CHANDER SHEKHAR, J.
JULY 18, 2017
//pst
