Delhi High CourtSajid Khan vs State Nct Of Delhi on 22 August, 2014Author:S.P.GargBench:S.P.Garg*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     RESERVED ON : JULY 07, 2014
                                     DECIDED ON : AUGUST 22, 2014

+                            CRL.A. 1042/2011
       SAJID KHAN
                                                           ..... Appellant
                             Through :    Mr.K.Singhal, Advocate.

                             versus

       STATE NCT OF DELHI
                                                          ..... Respondent
                             Through :    Mr.Lovkesh Sawhney, APP.


+                            CRL.A. 1044/2011
       KHALID
                                                           ..... Appellant
                             Through :    Mr.K.Singhal, Advocate.

                             versus

       STATE
                                                          ..... Respondent
                             Through :    Mr.Lovkesh Sawhney, APP.

AND

+                            CRL.A. 1043/2011
       ATIF
                                                           ..... Appellant
                             Through :    Mr.K.Singhal, Advocate.

                             versus

       STATE                                         .... Respondent
                             Through :    Mr.Lovkesh Sawhney, APP.
Crl.A.Nos.1042/2011 & connected matters                      Page 1 of 12
 CORAM:
HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.1.            Sajid Khan (A-1), Khalid (A-2) and Atif (A-3) impugn a

judgment dated 19.05.2011 of learned Additional Sessions Judge in

Sessions Case No.78/09 arising out of FIR No.19/09 registered at Police

Station Chandni Mahal by which they were held guilty for committing

offence punishable underSection 307/34IPC.         By an order dated

21.05.2011 they were sentenced to undergo Rigorous Imprisonment for

ten years with fine `3,000/- each. Shorn of the details, the prosecution

case is as under:-2.            On the night intervening 3/4.03.2009 at about 02.35 am Daily

Diary (DD) No.2 (Ex.PW-15/A) was recorded at Police Station Chandni

Mahal regarding a quarrel at House No.2820, Turkman Gate.                The

investigation was assigned to SI Prashant Kumar who with Ct.Sri Pal went

to the spot. They came to know that the injured had already been taken to

Lok Nayak Jai Prakash Narayan hospital (in short „LNJP‟). On reaching

LNJP hospital, SI Prashant Kumar collected the MLC of the victim Kasif

who was declared unfit to make statement. The investigating officer

lodged First Information Report after recording statement of victim‟sCrl.A.Nos.1042/2011 & connected matters                   Page 2 of 12brother (Mohd.Danish) (Ex.PW-5/A). The complainant disclosed that

when he and his brother Kasif were returning to their house, the appellants

and their brother Anas (facing trial before Juvenile Justice Board) met

them and they caught hold of Kasif. When he intervened to save his

brother Kasif, (A-2) threatened to kill him by a knife. Thereafter, Kasif

was caught hold by A-1 and Anas. A-3 attacked him with a „pointed

object‟ as a result of which Kasif started bleeding profusely from his right

ear. On seeing Kasif bleeding, the assailants fled the spot with crime

weapons.3.            During investigating, the Investigating Officer prepared site

plan (Ex.PW-14/DA). A-1 and A-2 were arrested and knife was recovered

at the instance of A-2. On 09.03.2009, A-3 was arrested and pursuant to

his disclosure statement a „pointed object‟ (sua) was recovered at his

instance. On 01.05.2009, Kasif succumbed to the injuries in the hospital.Section 302/34was added in the FIR. Post-mortem of the body was

conducted and statements of witnesses conversant with the facts were

recorded. After completion of investigation, a charge-sheet underSection

302/34IPC was filed against the appellants; they were duly charged and

brought to trial.       The prosecution examined eighteen witnesses to

substantiate the charges. In 313 statements, the appellants pleaded falseCrl.A.Nos.1042/2011 & connected matters                    Page 3 of 12implication and denied their complicity in the crime. They examined ASI

Krishan (DW-1), SI Prem Singh (DW-2), Parvez Alam (DW-3) and

Mohd.Yusuf (DW-4) in defence. On appreciating the evidence and after

considering the rival contentions of the parties, the Trial Court by the

impugned judgment convicted the appellants for committing offences

underSection 307/34IPC. It is pertinent to note that the State did not

challenge appellants‟ acquittal underSection 302IPC.4.            I have heard the learned counsel for the parties and have

examined the record. Learned counsel for the appellants urged that the

Trial Court did not appreciate the evidence in its true and proper

perspective. The Trial Court erred in convicting all the appellants on the

sole testimony of PW-5 (Mohd.Danish) whose presence at the spot was

highly doubtful. No independent public witness was associated at any

stage of the investigation. The injuries inflicted to the victim were not

sufficient to base conviction underSection 307IPC. Victims‟s death was

due to medical negligence and he expired after four and a half months

from the date of incident in the hospital. No overt act was attributed to

A-1. In the absence of prior animosity, the appellants who lived in the

neighbourhood of the victim were not expected to inflict fatal injuries.

The prosecution witnesses have given divergent version on material factsCrl.A.Nos.1042/2011 & connected matters                   Page 4 of 12regarding the place of incident and the circumstances in which they

happened to be present at the spot after attending „dawat‟ at the residence

of their Bua. The victim and his family members were facing trial on the

complaint lodged by the accused underSection 308IPC.             Learned

Additional Public Prosecutor urged that the testimony of PW-5

(Mohd.Danish) implicates all the appellants and there are no sound

reasons to disbelieve him.5.            The occurrence in which Kasif sustained grievous injuries

took place in the night intervening 3/4.03.2009 at around 02.15 am. Soon

thereafter, he was taken to LNJP hospital and was medically examined.

MLC (Ex.PW-11/A) reveals that the victim was brought at the hospital at

02.50 am by his brother Danish, with the alleged history of physical

assault at Bulbula Khana Pahari Bhojla, Turkman Gate at around 02.15

am on 04.03.2009. PW-11 (Dr.Vikas Sharma) proved the MLC (Ex.PW-

11/A) prepared by Dr.Raj under his supervision. The patient was declared

unfit to make statement. Number of endorsements on the MLC reflect

that the patient remained unfit to make statement before he succumbed to

the injuries. Crucial document is PCR form (Ex.DW-2/A) which was filed

up on getting information about the occurrence from one Mohd.Asgar at

2:38:58 hours. At 03:01: 54 hours, information was conveyed to PCR thatCrl.A.Nos.1042/2011 & connected matters                   Page 5 of 12Atif (A-3), Khalid (A-2) and Sajid Khan (A-1) had stabbed Kasif and his

family members had taken him to LNJP hospital. FIR was lodged after

recording statement of Mohd.Danish (Ex.PW-5/A) and rukka was sent at

07.30 a.m. on 04.03.2009. In the complaint Danish gave vivid description

of the occurrence and disclosed as to how and under what circumstances

all the appellants and their brother Anas (facing trial before Juvenile

Justice Board) had stabbed his brother Kasif. He attributed specific and

definite role to each of the assailants. Since the FIR was lodged in

promptitude, there was least possibility of the complainant to falsely name

the appellants for the serious injuries inflicted to his brother Kasif.6.            While appearing as PW-5, Danish proved the version given

to the police at first instance without any manor variation. He deposed

that on the night intervening 03/04.05.2009, at about 02.15 a.m. he and his

brother Kasif were returning from the house of their aunt at Pandit

Kuncha, Lal Kua after attending a „dawat‟. When they reached in the gali

and were 15-16 steps away from their house, the appellants and their

brother Anas caught hold of Kasif. They started uttering "Sale tujhe aaj

sabak sikhate hai, tu apne aap ko bahut banta hai". The witness further

revealed that he tried to save his brother but was pushed back. Thereafter,

A-2 took out a knife from his pocket and told him "jyada shor sharabaCrl.A.Nos.1042/2011 & connected matters                       Page 6 of 12kiya to tera kaam tamam kar denge". Thereafter, A-1 and Anas caught

hold Kasif and A-3 pierced the „sharp thing‟ in the ear of his brother as a

result of which he started bleeding profusely.      The assailants fled the

spot. He and his father took Kasif to LNJP hospital where they were

informed that the injuries were serious and required major surgery. The

police arrived at the hospital and recorded his statement (Ex.PW-5/A).

The witness identified knife (Ex.P-1) and „sua‟ (Ex.P-2) as crime

weapons. In the cross-examination, he denied the suggestion that his

brother Kasif had come in an injured condition in a rickshaw and

thereafter he and his father took him to the hospital from their house. He

denied that his brother was given injuries with knife and „sua‟ on many

places of the body. He volunteered to add that the victim was injured only

at one place. The police recorded his statement in the hospital.7.            On scrutinizing the testimony of PW-5, it reveals that despite

in-depth cross-examination, no material discrepancies could be elicited to

disbelieve the version narrated by the witness whose brother sustained

fatal injury on vital organ. No ulterior motive was assigned to this witness

to make false statement to implicate the appellant and to let the real

offenders go scot free. Relationship of the witness with the victim is not a

factor to discredit his testimony. Presence of this witness with the injuredCrl.A.Nos.1042/2011 & connected matters                    Page 7 of 12at the time of occurrence was natural and probable as both had returned

together after attending „dawat‟ at the residence of their Bua (aunt). The

occurrence had taken place near the residence of the appellants who did

not give plausible explanation for their presence in the street at odd hours.

Specific role was assigned to each of the appellants in the crime by this

witness. He was fair enough not to attribute any role to A-2 in inflicting

injuries to the deceased though he was armed with a knife.            Merely

because the witness did not raise an alarm, it does not make him an

unreliable witness. His immediate priority was to take care of the victim.

The occurrence had taken place at night time when raising of alarm would

not have served any purpose. The witness immediately went to his house

to inform his father and they both took him to LNJP hospital without

wasting any time. The fact that the name of this witness finds mention in

the MLC shows that he was available at the spot. There are no sound

reasons to disbelieve the testimony of this witness in the absence of any

material discrepancy or infirmity. All the appellants were named by him

at the first instance in his statement (Ex.PW-5/A) recorded at the hospital

soon after the incident.           PW-6 (Abrar Ahmed), victim‟s father,

corroborates his testimony on vital aspects. On the night intervening 3

/4.03.2009 at about 02.00 am, he was sleeping in his house.            In theCrl.A.Nos.1042/2011 & connected matters                     Page 8 of 12meantime, his son Danish came and informed that A-1, A-2, A-3 and

Anas had assaulted/attacked Kasif in the gali in front of their house. He

accompanied him to the spot and saw Kasif bleeding profusely from his

left ear. The assailants had fled the spot. He and his son took Kasif to

LNJP hospital and his statement was recorded there. Again this witness

had no ulterior motive to falsely implicate the accused persons.8.            The testimony of PWs 5 and 6 is in consonance with the

medical evidence. PW-13 (Dr.Jyoti Garg) identified the handwriting of

Dr.Shri Devi on various endorsements/notes on MLC (Ex.PW-11/A).

PW-1 (Dr.Amit Sharma) conducted post-mortem on the body of the

deceased and found three injuries. As per his opinion (Ex.PW-1/A),

injury No.2 was sufficient to cause death. There is no conflict between

the ocular and medical evidence.9.            It has come on record that a quarrel had taken place earlier

between the parties. It is the case of the appellants that due to complaint

lodged by them against the accused and his family members, they were

falsely implicated. It is true that FIR No.144/08 underSection 308/34IPC

at Police Station Chandni Mahal was registered against the complainant

and his family members for giving beatings to Atif (A-3) and Khalid

(A-2). However, the instant incident had taken place after a long gap inCrl.A.Nos.1042/2011 & connected matters                    Page 9 of 12March 2009. It can be a motive for the appellants to teach a lesson to the

victim for inflicting injuries to them. The assailants had clean and strong

motive to inflict injuries to the victim due to previous incident of quarrel.10.           In 313 statements, the appellants did not give plausible

explanation to the incriminating circumstances appearing against them.

They did not produce on record any evidence to show their presence at

some place other than the spot. The information conveyed to Police

Control Room (Ex.DW-2/A) lends credence to the story presented by the

prosecution about the quarrel in which the names of the appellants

emerged soon after the incident.          It appears that to mislead the

investigating agency, a complaint was lodged with the Police Control

Room (PCR) alleging house-trespass by some individuals who were

armed with churries. The defence version has been discussed in detail and

out-rightly rejected for sound reasons by the Trial Court.          Since the

injuries inflicted were grievous in nature and sufficient to cause death in

the ordinary process of nature, conviction underSection 307/34IPC

recorded by the Trial Court cannot be faulted. The findings of the Trial

Court are sustained and upheld.11.           Regarding sentence order, the appellants were awarded

Rigorous Imprisonment for ten years with fine `3,000/- each. So far asCrl.A.Nos.1042/2011 & connected matters                      Page 10 of 12A-3 is concerned, considering the role attributed to him whereby he

inflicted fatal blow on the vital organ of the victim, he deserves no

leniency. A-1 and A-2 were convicted for sharing common intention with

co-convict A-3.        They are not previous convicts and have clean

antecedents. They have undergone more than six years incarceration.

Though A-2 was armed with a knife, he did not cause any harm either to

the victim or to the complainant. The role assigned to A-1 is that he

caught hold the victim. He was not armed with any weapon. Considering

the role played by them in the incident, the sentence order is modified and

Rigorous Imprisonment for ten years is reduced/altered to RI for seven

years each. However, A-1 and A-2 shall deposit `20,000/- each within

fifteen days in the Trial Court to be paid as compensation to the victim‟s

parents after due notice.12.           In the light of the above discussion, the appeal filed by Atif

(A-3) is dismissed as unmerited. While maintaining conviction qua A-1

and A-2 underSection 307/34IPC, the sentence order is modified in the

above terms. Their appeals are disposed of accordingly.13.           A-2 is directed to surrender before the Trial Court on

29.08.2014 to serve the remaining period of sentence.Crl.A.Nos.1042/2011 & connected matters                    Page 11 of 1214.           Trial Court record along with the copy of this order be sent

back forthwith.(S.P.GARG)
                                                    JUDGE
AUGUST 22, 2014
saCrl.A.Nos.1042/2011 & connected matters                   Page 12 of 12