* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Hearing : 26th April, 2011
Date of decision : 10th May, 2011
+ CRL.A. 50/1998
NIZAMUDDIN & ORS. ..... APPELLANTS
Through: Mr.Keshav Kaushik with Ms.Kanica and
Mr.Govind Narayan Kaushik, Advocate.
Versus
STATE OF DELHI .....RESPONDENT.
Through : Mr.Jaideep Malik, APP for the State.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE G. P. MITTAL
1. Whether reporters of local papers may be
allowed to see the Order? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Order should be reported
in the Digest? Yes
JUDGMENT
G.P.MITTAL
1. This appeal is directed against the judgment dated 26.11.1997 and the order of
sentence dated 28.11.1997 passed by the learned Additional Sessions Judge (Trial
Court) whereby the three Appellants (Nizamuddin, Sirajuddin and Riazuddin)
were convicted for the offence punishable under Section 302 read with Section 34
Indian Penal Code (IPC) and sentenced to undergo imprisonment for life and to
pay a fine of ` 1,000/ each. In default of payment of fine they were further
directed to undergo RI for two months each.
2. During the pendency of this appeal Appellant-Riazuddin died on 29.08.2010. His
Crl.A.No. 50/1998 Page 1 of 16
death certificate was filed; verification in respect of his death was made and
proceedings against him were ordered to have abated by the order of this Court on
14.03.2011.
3. This case was registered on a statement Ex.PW7/A made by PW-7 Sahajuddin. It
is alleged that the families of Appellant Nizamuddin and deceased Jafruddin were
not having cordial relations. On 02.03.1995 at about 8:30 p.m. Sahajuddin (PW-
7) was on his way back home from the tailor’s shop where he had gone to collect
his shirt due to the Eid festival next day. When PW-7 reached near his house he
met his father (the deceased) outside the house. The deceased inquired from him
if he had quarreled with the sons of Nizamuddin on that day as Nizamuddin’s
wife had complained against him (PW-7). PW-7 replied in the negative and
informed the deceased that he was just returning from the tailor’s shop. While
this conversation was on between father and the son (the deceased and PW-7),
Nizamuddin came running from his house, holding a big Chhuri in his right hand.
Nizamuddin while hurling abuses at him gave a Chhuri blow at the deceased’s
back. In the meantime Riazuddin and Sirajuddin, brothers of Appellant
Nizamuddin also reached the spot. Riazuddin was armed with a big Chhuri. On
seeing them the deceased ran towards the gali but Appellant Sirajuddin over
powered him, and caught hold of his hands, whereas Nizamuddin and Riazuddin
repeatedly inflicted injuries with Chhuries. The deceased and PW-7 raised an
alarm, attracting PW-9 (Rahimuddin) and some other persons from the street to
the spot. The Appellants fled the spot. The deceased fell down on the ground in a
pool of blood. Rahimuddin (PW-9) removed the deceased to Jaipur Golden
Hospital in a TSR where Dr. Archna Varshneya (PW-6) declared him “brought
dead”.
4. DD No. 22/A Ex.PW4/B recorded in police station Mangolpuri, on receipt of
information from the PCR operator (that some persons had given knife blows to a
man at House No.139, Gali No.3, Mangolpuri) was assigned to PW-10 SI Ishwar
Singh who proceeded to the spot. In the meanwhile another information was
Crl.A.No. 50/1998 Page 2 of 16
received at the police station that the stabbing incident may also be checked at
house No. F-2/150 at Mangolpuri. This was recorded in the police station by DD
No.23/A marked as Ex.PW-4/C and forwarded to SI Ishwar Singh (PW-10)
through PW- 8 Constable Sushil. The additional SHO was also intimated about
this DD entry; he left for F-2/150, Mangolpuri.
5. Another DD Entry No. 24/A was recorded in the police station at 9:35 p.m. that
Jafruddin son of Ashraf Ali R/o F-2/150, Mangolpuri had been admitted as
“brought dead” in the hospital by his brother Rahimuddin. A copy of this DD
entry was forwarded to PW-10 SI Ishwar Singh through constable Somnath. The
SHO of the police station was also informed about the information recorded by
DD Entry No. 24/A Ex.PW-4/D.
6. PW-10 SI Ishwar Singh while proceeding to F-2/150 Mangolpuri noticed blood
lying in front of house no. F-2/185-186 Mangolpuri. A crowd had also collected
there. On enquiry it was revealed that the injured was taken to Jaipur Golden
Hospital. In the meanwhile PW-18 Insp. Arun Sharma also reached the spot. SI
Ishwar Singh and Insp.Arun Sharma along with some police constables reached
Jaipur Golden Hospital. Insp. Arun Sharma collected MLC Ex. PW 6/A of
deceased Jafruddin where he was declared “brought dead”.
7. Sahajuddin son of the deceased Jafruddin was available in the hospital. Inspector
Arun Sharma (IO) recorded his statement Ex. PW-7/A and made his endorsement
for registration of the case. PW-18 Insp. Arun Sharma accompanied by PW-10 SI
Ishwar Singh reached the hospital mortuary and conducted inquest proceedings.
SI Ishwar Singh and Inspector Arun Sharma returned to the spot. Constable
Sushil Kumar returned to the hospital along with a copy of the FIR which was
handed over to Inspector Arun Sharma. The scene of incident was photographed,
a blood sample with the help of cotton wool/swab, blood stained earth and control
earth were lifted from the spot and sealed separately with the seal of AK.
8. At about 3:00 a.m. the police party, led by PW-18 Inspector Arun Sharma reached
the police picket at Outer Ring Road, Mangolpuri in search of the culprits. On the
Crl.A.No. 50/1998 Page 3 of 16
basis of secret information the Appellants Nizamuddin and Sirajuddin were
arrested when they were sitting at the DESU Office, Mangopuri Industrial Area.
Appellant Nizamuddin made a disclosure statement Ex.PW-10/C and in
pursuance of the statement two Chhuries Exs.P-1 and P-2 were recovered from
junk in the workshop situated at F-2/18 Mangolpuri. They were photographed
(Ex.PW/11/6 to Ex.PW/11/10). The two Chhuries were recovered and their
sketches Exs.PW-9/D and PW-9/E were prepared. Both the Chhuries were blood
stained. The blades of the Chhuri were wrapped with cotton wool and the
Chhuries seized by the IO. Appellant Riazuddin since deceased surrendered in
the Court.
9. Appellant Riazuddin was arrested. He too made a disclosure statement Ex.PW-
12/A and got recovered his blood stained shirt and pant from his house, marked as
Exs.P-7 and P-8 respectively. After completion of the investigation a challan was
filed in Court.
10. The Appellants pleaded not guilty to the charge for the offence punishable under
Section 302 read with Section 34 IPC.
11. In order to bring home the guilt of the Appellants, the prosecution examined 18
witnesses. PW-5 Dr. L.K. Barua, PW-6 Dr. Archna Varshneya, PW-7
Sahajuddin, PW-9 Rahimuddin, PW-10 SI Ishwar Singh, PW-15 Constable
Ramesh Chand and PW-18 Inspector Arun Kumar are important witnesses for the
purpose of disposal of this appeal.
12. PW-7 Sahajuddin is an eye witness of the occurrence. Since this witness was
aged only about 15 years at the time of incident, the Trial Court after satisfying
itself that he was mature enough to understand the questions and give intelligible
answers examined him on oath. He gave a detailed account as to how the
deceased was attacked firstly by Nizamuddin and followed by all the three
together.
13. PW-9 Rahimuddin deposed that on 02.03.1995 at about 8:30 p.m. he was present
at his house. He heard a noise from the gali. He went out and saw that
Crl.A.No. 50/1998 Page 4 of 16
Appellants Sirajuddin had caught hold of his brother Jafruddin and the two other
Appellants were attacking him with Chhuries. He proceeded towards the ramp.
All the three Appellants left his brother and escaped from the spot. He took
Jafruddin to Jaipur Golden Hospital in a three wheeler scooter where he was
declared “brought dead”. The witness also deposed about the arrest of
Appellants Nizamuddin and Sirajuddin, the disclosure statements made by them,
recovery of Chhuries Exs.P-1 and P-2 at the instance of Appellant Nizammudin.
14. PW-5 Dr. L.K. Barua performed autopsy on the dead body of Jafruddin. He
found 15 injuries on the dead body of Jafruddin. He deposed that injury No.1 had
entered the right side chest cavity through the 1st intercostals space and had cut
the right lung on its upper lobe. Injury No.2 had entered the chest cavity to the
second inter-costal space. Injury No.3, 4 and 5 all had entered the chest cavity
(left) through the 1st, 2nd and 4th inter costal space and had cut the lung and also
the heart. The depth of all these injuries could be approximately 5 to 6 cms. on
the skin surface. The both sides chest cavity were full of liquid and clotted blood.
Out of three injuries of external injury no.11, two had entered the chest cavity,
one between the 5th and 6th and other between 6th and 7th rib. Both the injuries
had cut the lungs from the back. He opined that injuries No. 1,2,3,4,5 and 11
were individually sufficient to cause death in the ordinary course of nature.
15. PW-6 Dr. Archna Varshneya from Jaipur Golden Hospital, Rohini deposed that
on 02.03.1995 at about 9:15 p.m. Jafruddin son of Ashraf Ali was brought to the
hospital by his brother Rahimuddin with the history of stab wounds on the chest
and on the whole body. After examination the patient was declared “brought
dead” by her.
16. PW-10 SI Ishwar Singh had been assigned DD No.23-A Ex.PW-4/C. He reached
the spot F-2/185-186 Mangolpuri, and noticed the blood lying there. He along
with PW-18 Inspector Arun Sharma (who had also reached the spot in the
meanwhile) went to Jaipur Golden Hospital. The SI obtained the MLC of the
injured. He deposed about the recording of the statement of the complainant PW-
Crl.A.No. 50/1998 Page 5 of 16
7 and forwarding it to the police station for registration of the FIR. He also
deposed about the arrest of the three Appellants including deceased Riazuddin,
making of the disclosure statements and recoveries of blood stained clothes and
Chhuries.
17. To the same effect is the testimony of PW-18 Inspector Arun Sharma.
18. The Appellants were examined under Section 313 Cr.P.C. They denied the
prosecution’s allegations and claimed innocence. They took the plea that deceased
Jafruddin owed a sum of ` 5,000/- to the Appellant Nizamuddin. They stated that
Nizamuddin had also rejected the proposal of marriage of Jafruddin’s sister with
his (Nizamuddin) brother Appellant Sirajuddin. The deceased and his family
members were annoyed with the Appellants and therefore they were falsely
implicated in the case. The Appellants did not produce any evidence in their
defence.
19. By the impugned judgment the Trial Court repelled the contentions made on
behalf of the Appellants that Sahajuddin’s testimony could not be relied upon as
he was a child and an interested witness and that the conduct of PWs 7 and 9 was
unnatural in not intervening and saving the deceased. The Trial Court found the
testimony of PW-7 to be credible and reliable. Delay in the special report
reaching the residence of the learned Metropolitan Magistrate was found to be
inconsequential and the Appellants were convicted, as stated earlier.
20. We have heard Mr.Keshav Kaushik learned counsel for the Appellants, Mr.
Jaideep Malik, learned Additional Public Prosecutor (APP) for the State and have
perused the record.
21. It is urged by the learned counsel for the Appellants that they (Appellants) have
been falsely implicated on mere suspicion in a blind murder case. Following
contentions have been raised:
(i) The prosecution has examined just one eye witness i.e. PW-7 who is of a
tender age; he could have been tutored to blow trumpet in favour of the
prosecution. PW-9, who is alleged to have reached the spot immediately
Crl.A.No. 50/1998 Page 6 of 16
after the first part of the incident, is completely silent about the presence
of PW-7 at the time of the incident. In fact PWs 7 and 9 do not talk about
the presence of each other which makes their presence at the spot at the
time of the incident or immediately after the incident doubtful. It is urged
that no independent witness has been produced though according to PW-7
some public persons had gathered on hearing the alarm raised by him and
his father (the deceased). The houses of the deceased and PW-9 were close
by, if any alarm was really raised as claimed by PW-7, then other relations
of the deceased and PW-9 would have been attracted to the spot.
(ii) The FIR was anti-timed, though it is shown to have been recorded at 11:30
p.m on 02.03.1995, its copy was received by the Illaqa Magistrate only at
7:30 a.m. on 03.03.1995. There is no mention of the FIR number on the
inquest form sent for holding the post mortem examination. Name of the
assailants do not find mention in the MLC Ex.PW-6/A; thus there was
scope for embellishment and introduction of coloured version and false
implication of the accused persons.
(iii) According to Section 174 Cr.P.C the inquest proceedings were required to
be held in presence of a Magistrate which has not been complied with.
There is animosity between Appellant Nizamuddin and his brothers (other
Appellants) on the one hand and the deceased; they have been falsely
implicated on mere suspicion.
22. On the other hand, it is argued by the learned APP that PW-7 was aged about 15
years at the time of incident. He was mature enough to understand the incident.
He has stood the test of cross-examination and has been corroborated on material
points by PW-9. Another independent witness PW-16 Dariyai Lal was produced
but he did not support the prosecution version and, therefore, the defence plea that
no independent witness had been examined by the prosecution, is not tenable. It
is urged that the FIR was quickly recorded and was delivered at the residence of
the Illaqa Magistrate at 12:45 in the night. On mere endorsement of receipt of the
Crl.A.No. 50/1998 Page 7 of 16
copy of the FIR at 7:30 a.m. on 03.03.1995, it cannot be said that the FIR was
anti-timed. It is submitted that the prosecution has established its case beyond
shadow of all reasonable doubts and the order of the Trial Court, therefore, does
not call for interference.
23. We have given our thoughtful consideration to the contentions raised on behalf of
the parties.
NON EXAMINATION OF INDEPENDENT WITNESS AND TESTIMONY
OF TWO RELATION WITNESSES.
24. In addition to PW-7 and PW-9, prosecution witness Daryai Lal who was the
resident of the area where the incident took place was produced as PW-16.
According to the prosecution he was attracted to the spot after hearing the alarm
“bachao bachao” from the side of the park. He, however, did not support the
prosecution case in Court thus if the prosecution made an effort to join an
independent witness who turns hostile, the prosecution cannot be blamed for non-
joining of an independent witness. It has also to be kept in mind that many a times
the neighbours avoid appearing as a witness. In such circumstances, the
testimonies of other witnesses have to be analysed to reach a conclusion whether
the prosecution case is proved or not.
25. The testimony of PW-7 is quite natural. He deposed that on 02.03.1995 he was
returning from the tailor’s shop. He reached his house at about 8:30 p.m. His
father (the deceased) met him outside the house. He was having a word with his
father when he noticed that Appellant Nizamuddin come running towards them
with a Chhuri in his right hand. He (Nizamuddin) hurled abuses on his father and
gave him a Chhuri blow. He then deposed about the appearance of accused
Riazuddin, who also arrived with a Chhuri and Sirajuddin who was empty handed
at the scene of the incident. PW-7 deposed that on seeing them, his father started
running towards the gali. He was overpowered by Appellant Sirajuddin and
Appellants Nizamuddin and Riazuddin gave him several blows with the Chhuries.
He and his father raised alarm Bachao Bachao attracting his uncle Rahimuddin
Crl.A.No. 50/1998 Page 8 of 16
(PW-9) and some other persons from the gali. He stated that on seeing them the
accused persons took to their heels.
26. PW-9 corroborated PW-7 as per the second part of the incident and deposed that
on 02.03.1995 at about 8:30 p.m. he was present at his house. He heard a noise
from the gali. He came out and saw Sirajuddin had caught hold of his brother
Jafruddin whereas Nizamuddin and Riazuddin were attacking him with the
respective Chhuries in their hands.
27. PW-7 testified that he and his chacha Rahimuddin (PW-9) took the deceased to
Jaipur Golden Hospital where the deceased was declared “brought dead”, whereas
PW-9 simply speaks about the carrying of the deceased to the hospital by him. Of
course PW-9 Rahimuddin had not specifically mentioned about the presence of
PW-7 at the spot at the time of the incident but we are not inclined to attach much
importance to the same for the reason that sometimes a witness is interested in
deposing only about his own part. Moreover PW-7 was cross-examined at length
as to the location of the houses of the deceased and the accused, location of the
market, location of the tailor shop, reasons for the enmity and removal of the
deceased to Jaipur Golden Hospital. He boldly stood the test of cross-
examination. If a witness of such an age i.e 15 years gives plausible explanation
and replies to the questions put in cross examination then he becomes the most
reliable witness. We are convinced that PW-7 was mature enough to understand
and reply to the questions put to him. He though aged only 15 years at the time of
the incident cannot be really said to be a child. Moreover, his testimony stands
corroborated on material aspects by PW-9.
28. PW-7 has been corroborated with regard to the second part of the incident i.e. the
holding of the deceased by Appellant Sirajuddin and infliction of injuries by
Appellants Nizammuddin and Riazuddin. PW-9 in his examination-in-chief
deposed that on 02.03.1995 at 8:30 p.m. he was present in his house. He came
out on hearing some noise and found that Appellant Sirajuddin had caught hold of
the deceased and the other two Appellants i.e. Nizamuddin and Riazuddin (since
Crl.A.No. 50/1998 Page 9 of 16
deceased) were attacking him with Chhuries. The Trial Court relied upon Kailash
& Anr.v. State of Uttar Pradesh, 1997 (5) AD SC 331 and Shankar Lal & Ors.
v.State of M.P., JT 1996 (5) SC 523 in support of the proposition that the
testimony of a relation witness cannot be rejected merely only on the ground that
he or she is a close relation of the victim. What has to be seen is, if the testimony
of such witness inspires confidence after a careful and conscious scrutiny. We are
in agreement with the reasoning adopted by the Trial Court and hold that the
presence of PW-7 and PW-9 at the spot as deposed by them was natural. PW-7
had seen the entire incident whereas PW-9 had seen the later part of the incident
when the Appellant Sirajuddin had caught hold of the deceased whereas the other
two Appellants inflicted several injuries. In the circumstances the plea raised on
behalf of the Appellants that relation witnesses should not be believed in the
absence of any independent witnesses cannot be accepted.
29. According to the prosecution, PW-9 brother of the deceased was attracted to the
spot on hearing the alarm “bachao bachao”. Some other persons had also
gathered there. PW-16 (alleged to be an eye witness) examined by the
prosecution as stated above has not supported the prosecution version. It is true
that the houses of deceased and PW-9 were near to the spot but it has not been
brought on record as to who were the other family members and if they really
reached the sport later or not. The non-examination of other family members of
the deceased and of PW-9 does not effect the prosecution case because had they
been produced the criticism would have been that all the relation witnesses have
been produced. The prosecution cited three witnesses to the occurrence including
an independent witness PW-16. As stated earlier PW-16 did not support the
prosecution. In the circumstances the plea that other witnesses have not been
cited/examined is of no avail.
DELAY IN FIR
30. Ex.PW-4/B DD No.22/A which was recorded in the police station at 9:23 p.m.
shows that the information was passed on by the wireless operator that a person
Crl.A.No. 50/1998 Page 10 of 16
had stabbed another with a knife in House No.139, Gali No.3 Mangolpuri.
31. The second information DD No. 23/A (Ex.PW 4/C) was recorded at 9:30 p.m. in
respect of stabbing incident at premises F-2/150 Mangolpuri. Many a times such
information is passed on to the control room by any person who may not be aware
of the details of the incident. The absence of the name of the assailants in the DD
and the manner of assault is immaterial. Initially SI Ishwar Singh reached the
spot followed by Inspector Arun Kumar, Additional SHO of the police station.
Since injured was reported to have been removed to Jaipur Golden Hospital
Inspector Arun Kumar and SI Ishwar Singh reached Jaipur Golden Hospital.
Inspector Arun Kumar recorded the statement Ex.PW-7/A of Sahajuddin which
was completed at about 11:10 p.m. and the rukka Ex.PW-10/A was sent to the
police station for registration of the case with instructions to the duty officer to
send the FIR through special messenger and to send the photographer to the spot.
We have perused the MLC Ex.PW-6/A prepared by Dr.Archna Varshneya, name
of the assailant has not been mentioned in the MLC though it is recorded that
injured/deceased was brought to the hospital by Rahimuddin (brother).
32. Learned counsel for the Appellants referred to the request Ex.PW-18/E through
which the dead body was sent for post mortem examination. The dead body and
the papers for post mortem examination were received in the civil hospital on
03.03.1995 at 12:30 p.m. It is argued that the absence of the FIR number in
Ex.PW-18/E coupled with a receipt of the special report by the Illaqa Magistrate
on 7:30 a.m. would show that the FIR was anti-timed. We do not agree. Request
for post mortem examination Ex.PW-18/E is a printed performa where certain
details are required to be mentioned. As per Ex.PW-18/E the dead body was
received at 12:30 p.m. on 03.03.1995. Admittedly the copy of the FIR was
received by the learned Illaqa Magistrate at 7:30 a.m. on 03.03.1995, therefore, it
cannot be said that the FIR had not come into existence by the time the dead body
was sent. It may be noticed that in column No.2 relating to the date and time of
the incident the date and time of incident as mentioned on 02.03.1996 was 8:45
Crl.A.No. 50/1998 Page 11 of 16
p.m. and date and time of death has been mentioned in DD No. 24/A dated
02.03.1995 as 9:35 p.m., PS Mangolpuri. This DD relates to the recording of the
information in respect of the death of Jafruddin. It seems that in the absence of
any column in this performa, the FIR number was not mentioned. Along with this
request for post mortem information, another application for post mortem
examination Ex.PW-18/D, brief facts Ex. PW-18/C and inquest report Ex.PW-
18/B were sent which do contain FIR number in the relevant column.
33. FIR Ex.PW-4/A has an endorsement of Illaqa Magistrate which shows that it was
received by him on 03.03.1995 at 7:30 a.m. Testimonies of PW-4, PW-7, PW-15,
and PW-18 are relevant in this regard. PW-7 deposed that his father was declared
dead in hospital. Police reached there and recorded his statement. According to
the prosecution version Ex.PW-7/A was recorded by Inspector Arun Sharma and
after making an endorsement it was sent to the police station at 11:10 p.m. When
cross-examined, PW-18 deposed that he reached the hospital (from the spot) at
about 10:00 p.m. He went to the emergency ward and met the doctor on duty and
inquired about the deceased. He deposed that he met Sahajuddin (son of the
deceased) after obtaining MLC of the deceased, proceeded to record the statement
of Sahajuddin and sent the same to the police station at 11:10 p.m.
34. PW-4 HC Omkar Singh deposed that on the night of 02.03.1995 at 11:35 p.m.
Constable Sushil Kumar brought a rukka from Additional SHO Inspector Arun
Sharma on the basis of which he recorded FIR No.131/1995. He proved copy of
the FIR Ex.PW-4/A and sent the special report through Constable Ramesh Chand
to the Metropolitan Magistrate and higher police officers. In cross examination
he denied the suggestion that the IO had prepared the rukka in the police station
itself.
35. PW-15 Ramesh Chand deposed that he took the copy of the FIR from the duty
officer at about 11:55 p.m. and delivered the envelope at the residence of the
Magistrate at Gulabi Bagh at about 12:45 in the night. When cross-examined, he
deposed that as per the instructions from inside the house (of learned Magistrate)
Crl.A.No. 50/1998 Page 12 of 16
by some lady he slipped the special report through the closed door of the
residence of the Magistrate and thereafter he went to the residences of Additional
C.P. and the D.C.P.
36. It is possible that as per the instructions from inside the house of the Illaqa
Magistrate the Special Report may have been pushed inside the door and
endorsement might have been made by the Illaqa Magisterate in the morning at
7:30 a.m. on 03.03.1995.
37. Even if it is assumed that the FIR was received at the residence of the Magistrate
at 7:30 a.m. on 03.03.1995 the question for consideration is whether this delay is
fatal to the prosecution case. The Trial Court relied upon Subhash @ Bassi v.
State (Delhi Admn.), 1997 VI AD Delhi 345. A division bench of this Court held
that delay in sending the report to the Magistrate as required under Section 157
Cr.P.C. would not necessarily mean that the FIR was anti-timed. It was held that
where from clinching evidence, by way of recording the DD, recording of
statement of the complainant, sending of rukka to the police station, registration
of the FIR are proved, all such recordings settle the time and date of FIR.
38. In Alla China Apparao v. State of A. P., (2002) 8 SCC 440 it was held that if any
delay is caused in sending the FIR to the Magistrate which the prosecution fails to
explain by furnishing reasonable explanation that by itself cannot be taken to be a
ground for throwing out the prosecution case if the same is otherwise trustworthy
upon appreciation of evidence which is found to be credible. In Sunil Kumar v.
State of Rajasthan, (2005) 9 SCC 283, the Supreme Court observed as under:
“If any delay is caused in sending the FIR to the Magistrate, which
the prosecution fails to explain by furnishing reasonable explanation,
ipso facto the same cannot be taken to be a ground for throwing out
the prosecution case if the same is otherwise trustworthy upon
appreciation of evidence which is found to be credible. However, if it
is otherwise, an adverse inference may be drawn against the
prosecution and the same may affect the veracity of the prosecution
case, more so when there are circumstances from which an inference
can be drawn that there were chances of manipulation in the FIR by
falsely roping the accused persons after due deliberations.
Crl.A.No. 50/1998 Page 13 of 16
39. It is true that name of the assailant has not been mentioned in MLC Ex.PW-6/A
prepared by Dr.Archna Varshneya. The Trial Court relied upon Sunil Kumar v.
State of Rajasthan (supra) and held that it was not necessary for the brother of the
deceased to have disclosed the names of the assailants to the doctors who
medically examined the deceased. To the same effect are the observations of this
Court in Yudhvir Singh & Ors.v. State (Delhi Administration), 1994 III AD
(Delhi) 617 and Laxmi Narain v.State, (2006) 91 DRJ 393. We have to keep in
mind that the investigating officer acted very quickly and promptly immediately
after recording the FIR and completion of the inquest proceedings at 11:50 p.m.
as there was immediate police action for apprehension of culprits. Two of the
assailants Nizammuddin and Sirajuddin were apprehended on the basis of secret
information at about 3:00 a.m. near DESU office. Therefore, delay, if any, in
sending the special report to the Illaqa Magistrate and non-mention of the names
of the assailants on the MLC Ex.PW-6/A do not affect the prosecution case.
VIOLATION OF SECTION 174 Cr.P.C. IN HOLDING INQUEST
40. It was argued by the learned counsel for the Appellants that the inquest
proceedings as per Section 174 Cr.P.C. ought to have been conducted by the
Magistrate though the same were held by Inspector Arun Sharma, Additional
SHO of PS Mangolpuri and thus, the provisions of Section 174 Cr.P.C. have been
violated. This contention raised on behalf of the Appellants is misconceived.
What is required under Section 174 Cr.P.C. is that intimation of any suicide or
killing has to be sent to the nearest Executive Magistrate. The inquest
proceedings are to be conducted by the police officer unless otherwise directed by
a rule prescribed by the State Government or by a general or special order of the
district or Sub Divisional Magistrate. No such order passed by the District
Magistrate has been brought to our notice. Thus there was no defect in holding of
the inquest by Inspector Arun Sharma.
41. It is argued by the learned counsel for the Appellants that blood stained clothes of
PWs 7 and 9 were not seized by the IO which casts doubt on the presence of PWs
Crl.A.No. 50/1998 Page 14 of 16
7 and 9 at the spot at the time of the incident. We do not agree. It is proved on
record (from testimony of PW-5 L.K. Barua, Autopsy Surgeon) that there were as
many as 15 stab injuries. Admittedly, the deceased must have bled profusely. He
was taken to the hospital by PWs 7 and 9. Name of PW-9 is recorded in the MLC
Ex.PW-6/A prepared in the hospital at the time of admission of the deceased.
Thus, there is no doubt that the clothes of PWs 7 and 9 must have been stained
with blood. Non-seizure of the clothes of these two witnesses is a lapse on the part
of the prosecution. It, however, does not affect the prosecution case because of
the facts stated earlier in this para.
ENMITY BETWEEN THE DECEASED AND NIZAMUDDIN
42. It is argued by the learned counsel for the Appellants that there was enmity
between the Appellant Nizamuddin and the deceased which led to the false
implication of Nizamuddin and his two brothers. Enmity is a double edged
weapon. It cuts both ways. It gives a motive for commission of an offence. It
may also be a reason for false implication. PWs 1 and 2 produced by the
prosecution seem to suggest that there was some enmity between Appellant
Nizamuddin and the deceased. PW-7 when cross-examined admitted that a
quarrel had taken place between Rahijuddin (son of Appellant Nizamuddin) and
him three or four days before festival of Eid and in that quarrel he (PW-7) had
beaten Rahijuddin (son of Nizamuddin). This suggestion given on behalf of the
Appellants in fact corroborates the prosecution version. According to PW-7 on
the day of the incident his father (Jafruddin) met him outside the house to inquire
if he had quarreled with the sons of Nizamuddin. It appears that Nizamuddin had
a grievance because of the beatings given by PW-7 to his (Nizamuddin) sons.
Thus we are not inclined to believe that the Appellants were implicated in this
case falsely because of enmity between the Appellant Nizamuddin and the
deceased. Rather the circumstances indicate that it was a motive for causing fatal
injuries on the person of the deceased.
43. As stated earlier PW-5 Dr.L.K.Barua found 15 injuries on the person of the
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deceased. Injuries No.1,2,3,4,5 and 11 were individually sufficient to cause
death in the ordinary course of nature. Appellant Nizamuddin came out of his
house armed with a Chhuri. He gave one blow at the back of the Appellant.
Then he was joined by Riazuddin (since deceased) and Sirajuddin. Proceedings
against Riazuddin have already been ordered to have abated (order dated
14.3.2011). The number and nature of injuries on the vital parts of the body
which were very serious show that the Appellants shared a common intention to
cause death. They also had the common intention to cause injuries on the person
of the deceased which were sufficient in the ordinary course of nature to cause
death. Appellants Nizamuddin and Riazuddin were, therefore rightly convicted
by the Trial Court under Section 302 read with Section 34 IPC.
44. There is no error or infirmity in the impugned order. The appeal is without any
merit; it is accordingly dismissed. The Appellants shall surrender before the
Trial Court on 23rd May, 2011 to serve the remainder of their sentence. The
Registry shall transmit the Trial Court records and this judgment, forthwith, to
ensure compliance.
G. P. MITTAL, J.
S. RAVINDRA BHAT, J.
MAY 10, 2011
sa
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