JUDGMENT
P.K. Bhasin, J.
1. In this appeal the appellant assails the judgment dated 4-12-2000 passed by the learned Additional Sessions Judge, New Delhi in Sessions Case No. 266/97/89 whereby he has been held guilty of the offence of murder.
2. The prosecution case is noticed by the learned Trial Judge in para no. 1 of the impugned judgment and the same is as follows:
On 24.6.89 at about 9 PM Akbar Khan (the deceased) and Qayun Khan (PW 10) were going on foot after taking dinner in a hotel. Asgar and Tinu @ Suhail (PW 9) were following Akbar and Qayum. They (Asgar and Tinu @ Suhail) were about 10/12 paces behind Akbar and Qayum. When they were in front of house No. 684/7, Govindpuri within the jurisdiction of PS Kalkaji, accused Jitender @ Jitu who was known to the witnesses as he was resident of house No. 782/7, Govindpuri came there. He stopped Akbar and abused him. He remarked as to why he (Akbar) moves in his gali after lifting the lungi and he (Akbar) considers himself to be Badmash. The actual words were Sale Tu Hamari Gali Main Lungi Uppar Utha Kar Gali Main Ghoomta Hai Aur Apne Aap Ko Badmash Samjhta Hai. It was objected to by Akbar. He asked Jitu not to abuse him. On this accused told Akbar that he will teach a lesson to him and will finish him just then. (Abhi Tujhe Maza Chakhata Huin Aur Abhi Tere Kaam Tamam Karta Huin). The accused then took out a razor (Ustra) Ex.P-1 from the right side pocket of his pant and gave a deadly blow on the neck of Akbar. Akbar sustained a deep injury. Asgar, Tinu @ Suhail and Qayum tried to apprehend the accused but the accused fled away waiving the razor. Akbar was removed to hospital where he was declared brought dead. Statement of Ex.PW15/A of Asgar was recorded. It was sent to the police station for registration of a case. The FIR Ex.PW 3/B was registered. The place of occurrence was got photographed vide photograph Ex.PW2/A to Ex.PW 2/C. Site plan Ex.PW19/1 was prepared. Report Ex.PW19/2 Under Section 174 Cr.P.C. was prepared. The blood stained clothes ( a shirt, a banian and a lungi) of the deceased were taken into possession vide memo Ex.PW 19/3. The post mortem report is Ex. PW17/A. Blood stained earth as well as sample earth were also lifted vide memo Ex. PW 11/A. The site plan on scale was got prepared. The same is Ex. PW1/A. On 29.6.89, the accused was arrested. His disclosure statement Ex. PW 8/B was recorded. On the basis of his disclosure statement the Ustra (Razor) Ex. P-1 was recovered vide memo Ex. PW8/D. The accused also got recovered his blood stained pant Ex. P-2 and shirt Ex. P-3. These were taken into police possession vide memo Ex. PW 8/E. These were sent to CFSL vide report Ex. PW 19/10 and Ex. PW 19/11. The Banian and lungi of the deceased were found to contain stains of human blood of O Group. The ustra Ex. P-1 was found to contain human blood. However, the group could not be detected. An application for seeking opinion was moved by the I.O. on 5.9.89. The same is Ex. PW19/7. It was opined by Dr. R.K. Sharma (PW 17) vide Ex. PW17/B that the injuries on the person of the deceased could have been caused by the weapon i.e. Ustra Ex.P-1. After completion of the investigation the accused was challaned.
3. The prosecution had examined nineteen witnesses in support of its case against the accused but primarily it had sought to establish the charge against the appellant accused on the basis of ocular version of the incident given by the two eye witnesses and the recovery of the razor at the instance of the accused pursuant to his disclosure statement. When examined under Section 313 Cr.P.C. the appellant accused denied the prosecution case in its entirety and pleaded false implication. However, he did not adduce any evidence in defense. After examining the prosecution evidence the learned trial Court did not rely upon the evidence of recovery of weapon of offence at the instance of the accused but held the prosecution case fully established from the evidence of the two eye witnesses and accordingly convicted the appellant accused under Section 302 IPC vide impugned judgment dated 4-12-2000 and vide order dated 7-12-2000 sentenced him to life imprisonment and also to pay fine of Rs. 100/-, in default of payment of which the accused was ordered to undergo further rigorous imprisonment for a period of one month. Feeling aggrieved, the convicted accused has come up in appeal.
4. We have heard the learned Counsel for the appellant and the learned additional public prosecutor for the State and with their assistance we have also gone through the evidence of material witnesses examined by the prosecution.
5. Learned Counsel for the appellant did not dispute before us the fact that the deceased Akbar Khan had met with a homicidal death. That fact is even otherwise duly established from the evidence of the autopsy surgeon PW-17 Dr. R.K. Sharma who had noticed the following injuries on the dead body of the deceased at the time of post-mortem examination:
Large incised wound present on left side of neck 16 x 5 cms ear lobule cut. Distance from sternum 7 cms. 8 cms. From left yee brow, 4 cm from chin. All underlying vessels cut. Trachea, thyroid, cricoids, hyoid, bone cut all big vessels cut. Internal carotids vessels cut.
The cause of death of the deceased opined by the autopsy surgeon was to be shock as a result of aforesaid anti-mortem injury to the neck caused by sharp weapon which was sufficient in the ordinary course of nature to cause death.
6. Learned Counsel for the appellant had, however, strongly challenged the correctness of the findings of the learned trial Court holding the appellant guilty for the murder of the deceased Akbar Khan. It was contended by the learned Counsel for the appellant that the prosecution case was liable to be disbelieved because of non-examination of the first informant Asghar on whose first information statement Ex. PW-15/A the present crime came to be registered and that there is no explanation whatsoever for his non-examination. It was further contended that there were many contradictions in the statements of various prosecution witnesses including that of the two eye witnesses examined by the prosecution but learned trial Court has brushed them aside very casually holding that they were not material contradictions. Learned Counsel in this regard drew our attention to the statement of PW-10 Qayum in his examination-in-chief where he had claimed that at the time of incident the accused was accompanied by his friend and both of them had beaten the deceased after the deceased had protested to the accused that he was unnecessarily getting annoyed because of his folding his lungi. However, the other eye witness PW-9 Suhel did not claim that the deceased was beaten by the accused and his friend. In any case, learned Counsel contended that the prosecution having not booked that friend of the accused who had also according to PW-10 beaten the deceased it becomes clear that, in fact, that other person was the culprit and not the appellant accused. Learned Counsel also submitted that PW-9 has claimed in chief-examination that he had accompanied the police and the deceased to the hospital but has not claimed that the other eye witness PW-10 Qayum had also accompanied them to the hospital while PW-10 Qayum has deposed that he had accompanied the police to the hospital along with the injured and he also has not claimed that PW-9 Suhel Akhtar had gone with them. It was also pointed out from the statement of PW-10 in cross-examination that PW-10 had denied that he had gone to the hospital along with Suhel(PW-9) and he claimed that, in fact, Asghar and Suhel had gone to the hospital along with the police and he himself had remained at the spot as he had become nervous. It was also contended that PW-9 has deposed that after the deceased had been stabbed and the accused had fled away from the place of occurrence their colleagues had rung up the police and then the police had come to the place of occurrence and from there had removed the deceased while PW-10 has claimed in cross-examination that after the deceased had been assaulted they took him towards the factory and when they had covered a distance of about 20-25 paces from the place of occurrence towards the factory the police had met them there and from that place the police took the deceased to the hospital. Another contradiction in the evidence of PWs 9 and 10 pointed out by the learned Counsel was that PW-10 had claimed in cross-examination that as soon as the deceased was attacked he along with Suhel and Asghar had run away from the spot while PW-9 had claimed in cross-examination that he and Qayum had remained at the spot after the assault on the deceased. Learned Counsel also submitted that the presence of both the eye witnesses at the time of occurrence becomes highly doubtful because of their unnatural and abnormal conduct at the time of incident in not raising any alarm or making any effort to save their colleague from the assault at the hands of the accused. Another submission of the learned Counsel for the appellant was that the prosecution case becomes doubtful also for the reason that PW-6 HC Sangita, who was posted at the Police Control Room on the day of the incident, has claimed that information about the incident was given on telephone by one Akhtar Ahmed but that Akhtar Ahmed has not been produced by the prosecution and further that according to PW-7 HC Ajit Singh when he had reached the place of incident he had taken the injured to AIIMS and at that time two public persons had also accompanied them to the hospital but those two persons have also not been examined by the prosecution and their non-examination also makes the prosecution case highly doubtful. Learned Counsel had also contended that in view of the said infirmities in the prosecution case and also considering the fact that admittedly it is a case of no enmity between the accused and the deceased which could have provided a motive to the accused for killing the deceased as also the fact that the trial Court has disbelieved the evidence of recovery of the weapon of offence at the instance of the appellant accused the prosecution case is liable to be rejected and this appeal deserves to be allowed and the conviction of the appellant should be set aside. An alternative submission was also advanced to the effect that even if evidence of the eye witnesses is accepted in toto still the conviction of the appellant for the offence under Section 302 IPC would not be made out and at the most he could be held guilty under Part II of Section 304 IPC by giving him the benefit of fourth exception to Section 300 IPC.
7. Learned additional public prosecutor for the State, on the other hand, fully supported the impugned judgment of the trial Court and submitted that this appeal should be dismissed as the prosecution case has been established from the evidence of the two eye witnesses and also that benefit of exception 4 to Section 300 IPC is not available to the appellant and the same has been rightly rejected even by the trial Court.
8. The prosecution case is that the occurrence leading to the death of the deceased Akbar Khan was witnessed by three persons out of whom one was Asghar on whose statement Ex. PW-15/A FIR of this case was registered. He has, however, not been examined by the prosecution and learned Counsel for the appellant had contended that his non-examination is fatal for the prosecution. However, we do not find any force in this argument. As just now noticed, the incident in question was witnessed by three persons out of whom two have been examined by the prosecution and they are PW-9 Suhel Akhtar @ Tinu and PW-10 Qayum. Non-examination of the first informant in these circumstances when prosecution has examined two other eye witnesses cannot be said to be fatal. It is well settled that FIR in a criminal case can be used for the purposes of contradicting the first informant or for seeking corroboration to his testimony in Court. However, if the first informant is not examined it cannot be said that prosecution case is doubtful. When a similar argument was advanced before the Honble Supreme Court in one criminal appeal reported as , Krishna Mochi and Ors. v. State of Bihar it was held in para no. 35 of the judgment that non-examination of the first informant of an incident is no ground for the acquittal of the accused and the prosecution case has to be considered on the basis of the evidence which is adduced. So, in the present case this court has to analyze the evidence of the eye witnesses who have been examined by the prosecution and then to arrive at the conclusion whether from their evidence the guilt of the appellant accused stood established or not.
9. Now we come to the evidence of the two eye witnesses examined by the prosecution and after narrating their evidence we shall consider if there is any merit in the criticism of the learned Counsel for the appellant regarding the worth of their evidence.
10. PW-9 Suhel Akhtar is the first eye witness examined by the prosecution. He was examined in Court after about seven years of the incident. He deposed that he knew deceased Akbar Khan being his co-worker in a garment factory at 662, Gobindpuri. On 25-6-89 at about 9 p.m. he along with Akbar Khan (the deceased), Asghar as well as Qayum was returning after taking meals in gali no. 8 Gobindpuri. At that time Akbar and Qayum were walking ahead while he and Asghar were following them. He further deposed that when they reached gali no. 7 in front of house no. 684 accused Jitender @ Jitu came there and told Akbar Sale Lungi uthakar chalte ho or badmash banthe ho on which Akbar Khan asked him not to abuse him but accused Jitender said that he would finish him off (Abhi tumahra kam karta hun) and that he would teach him a lesson (maza chakhata hun) and while saying so accused took out a razor from his pocket and waived it and thereafter gave blow on the neck of Akbar Khan as a result of which Akbar got injured and fell down. He thereafter deposed that they raised alarm and the accused fled away waiving the razor. Their colleagues rang up the police which reached there and removed Akbar Khan in the vehicle to AIIMS and he also accompanied them to the hospital where the doctor declared Akbar Khan as brought dead. In cross-examination PW-9 stated that the deceased Akbar Khan was his friend. He also stated that Qayum had also accompanied him to the hospital. It was asked from PW-9 if he had told the police that after the incident they were trying to take the deceased towards the factory and the witness denied having claimed so before the police. He was confronted with his police statement Ex. PW-9/DA where it was found to be so recorded. This witness claim that the police had removed Akbar Khan from the place where he had fallen down after being injured. PW-9 also stated in cross-examination that the accused had straightaway attacked the deceased with the razor and that there was no scuffle between them. He also stated that it was a sudden quarrel on that day. He also stated they had not raised any alarm before the attack on the deceased nor did he give any help to the injured. PW-9 also stated that the injured was kept in the police jeep by Yakub and Afaq who were working in the factory and that he, Asghar and Qayum had accompanied the injured in the police jeep to the hospital. The witness denied the suggestion that he had deposed falsely being the friend of the deceased or that he had not seen the incident or that the accused had not injured the deceased with a razor.
11. PW-10 Qayum is the other eye witness and he has deposed that deceased Akbar Khan was working with them in a garment factory at 662, Gobindpuri. On 25th June, the year he did not remember, he along with Asghar, Teenu and Akbar Khan had gone to take meal at about 8.15 p.m. and when they were returning after taking meals and reached a pan shop located in gali no. 7, Gobindpuri Asgar and Suhel went to take paan while he and Akbar Khan proceeded further. He also deposed that at that time Akbar was wearing a lungi which he had folded up and in the meantime accused Jitender accompanied by his friend came there and abused Akbar Khan saying Sale lungi uthakar chalet ho, lungi neeche karo on which Akbar told him (the accused) as to why he was getting annoyed since it was warm he was wearing the lungi in folded form but accused Jitender again abused Akbar saying Sale lungi uthakar chalet ho. Benchuth. Tum dadagiri karte ho. Akbar Khan protested and said that he was not doing dadagiri on which accused Jitender and his friend started beating Akbar Khan and took him towards a wall where Akbar Khan challenged the accused saying Tum dadagiri karte ho on which accused Jitender took out a razor from his pocket and within no time(baton baton mein) gave blow on the neck of Akbar Khan with the razor. He then deposed that they rushed towards the accused to apprehend him and to intervene but the accused fled away waiving the razor in the air. He also deposed that one of their companions rang up the police which reached there and after making enquiries from them removed Akbar Khan to Safderjung/Medical Hospital where the doctor declared him as dead. He also deposed that he had also accompanied the police to the hospital along with the injured.
12. On an independent analysis of the evidence of these two eye witnesses we have also come to the conclusion that their evidence is reliable and trustworthy and it cannot be doubted for the reasons put forth by learned Counsel for the appellant. Their credibility could not be shattered in their cross-examination on behalf of the accused. Both of them have supported each others version on material aspects and particularly the assault on the deceased by the appellant accused with a razor which resulted in the death of the deceased. Both these witnesses despite gruelling cross-examination could not be discredited. No contradictions or improvements on any material aspect in respect of the main occurrence could be brought on record. The inter-se inconsistencies highlighted by the learned Counsel for the appellant in the evidence of the two eye witnesses are absolutely insignificant. As far as the main incident is concerned both of them have corroborated each other and that is what is expected from truthful witnesses of an occurrence.
13. The prosecution case can also not be doubted because of non-examination of the person who as per the testimony of PW-10 Qayum was accompanying the accused. Learned Counsel for the appellant had contended that since PW-10 has deposed that the companion of the accused had also beaten the deceased which fact has not been challenged by the prosecution it becomes clear that the prosecution case is that there were two assailants and the police has let off one of them without any justification and that fact makes the entire prosecution case against the appellant accused highly suspect and, in fact, there is every possibility of that other person to be the real culprit. However, in our view this submission of the learned Counsel for the appellant is only conjectural. On this aspect the cross-examination of PW-10 was not directed nor is it even the case of the accused himself that at the time of the incident he was accompanied by any of his friends. His case is of total denial of the prosecution allegations against him and, therefore, it cannot be contended on his behalf that the real culprit was someone else. In any case, even if at the time of the incident the accused was accompanied by a friend and he has also beaten the deceased and that person has not been prosecuted by the police the appellant accused cannot derive any benefit from that because his involvement in the incident is to be judged from whatever evidence the prosecution has adduced against him and we have already observed that the evidence of both the eye witnesses is cogent and trustworthy. The prosecution case was also challenged on the ground that PW-7 HC Ajit Singh has claimed in his evidence that when he had reached the spot he had taken the injured to AIIMS and at that time two public persons had accompanied him but none of those two persons has been examined by the prosecution. In our view, for this reason also the prosecution case cannot be viewed with suspicion. There is no doubt that PW-7 has claimed that from the spot he had taken the injured to AIIMS and at that time two public persons had accompanied them. However, this witness was not cross-examined, and therefore, it cannot be said whether those two persons were also the eye witnesses of the incident and in these circumstances their non-examination is of no consequence. Similarly, the prosecution case cannot be doubted because of non-examination of one Akhtar who as per the evidence of PW-6 HC Sangita was the person who had informed the Police Control Room about the stabbing incident. In fact, it appears to us that PW-6 had perhaps wrongly noted down the name of the informant as Akhtar Ahmed instead of writing the name of PW-11 Aftab Ahmed. PW-11 has deposed that after coming to know that a person by the name of Jitender had killed Akbar Khan he had informed the police on telephone No. 100. In his cross-examination it was not disputed that he had not informed the Police Control Room about the stabbing incident. Therefore, the prosecution case does not get affected because of the non-examination of the person Akhtar Ahmed as stated by PW-6. In any case, since the prosecution has examined two persons as eye witnesses of the incident and their evidence has been found to be reliable even if any person by the name of Akhtar Ahmed had given the information of the incident to the Police Control Room his non-examination is of no consequence because it is now well settled that if there are many eye witnesses of an occurrence it is not necessary that all of them should be examined by the prosecution. In the matter of appreciation of evidence it is the quality of evidence and not the number of witnesses which matters in a criminal trial and that is what has been said even by the Law makers in Section 134 of the Evidence Act. Section 134 says that no particular number of witnesses shall in any case be required for the proof of any fact.
14. Learned Counsel for the appellant had also argued that the prosecution case should not be accepted because it is sought to be established from the evidence of interested witnesses only inasmuch as both the eye witnesses examined by the prosecution were working with the deceased in a garment factory and were also his friends. There is no doubt that both the eye witnesses have claimed that both of them were working in a garment factory where the deceased was also working but that fact does not make them interested witnesses. They had no reason to implicate the accused falsely nor any motive was attributed to anyone of them in cross-examination on behalf of the accused for falsely implicating the accused. In any case, even if some witness can be said to be an interested witness that by itself is not sufficient to reject the evidence of that witness mechanically. All that is required is to scrutinize the evidence of that witness more cautiously. In this regard we may make a useful reference to the views of the Honble Supreme Court expressed in Masalti and Ors. v. State of UP wherein also an argument was raised that evidence of interested witnesses should be discarded only for the reason that they were interested witnesses. Repelling that argument it was held by the Honble Supreme Court that:
But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses…. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.
So, even if we were to hold that PWs 9 and 10 were interested witnesses we would not have rejected their testimonies on that ground alone and since we have not found any flaw in their evidence and have found both of them to be wholly reliable the same is sufficient to hold the appellant accused guilty.
15. Another reason put forth by the learned Counsel for the appellant for rejecting the prosecution case was that even though the prosecution had sought to rely upon the evidence of recovery of the weapon of offence at the instance of the accused but the learned trial Court has categorically held in the impugned judgment that it was not taking into account the recovery of razor Ex. P-1 as an incriminating fact against the accused on the ground that none of the witnesses of the disclosure statement of the accused had deposed as to what was actually disclosed by the accused before getting the razor recovered. There is no doubt that the learned trial Court has not relied upon this piece of evidence adduced by the prosecution but at the same time it had also been held that despite the exclusion of that evidence the prosecution case did not get affected. We would also assume that there was no recovery of the weapon of offence but non-recovery of weapon of offence or any other incriminating article at the instance of the accused has no adverse effect on the prosecution case. It was held by the Honble Supreme Court in Krishna Mochis case (supra) that non-recovery of any incriminating material from an accused cannot be taken as a ground to exonerate the accused when his participation in the crime is unfolded in the ocular account of the occurrence given by the witnesses whose evidence is found to be unimpeachable. In the present case since we have found the evidence of the both the eye witnesses to be wholly reliable the accused, therefore, cannot get any advantage from the fact that the learned trial Court has not relied upon the evidence of recovery of razor at his instance while holding him guilty.
16. From the fore-going discussion regarding the prosecution evidence we have come to the conclusion that it stands established beyond any doubt that the appellant accused had caused injury on the neck of the deceased with a razor as has been deposed to by the two eye witnesses of the occurrence. The medical evidence also corroborates their version of the incident. The injury caused to the deceased was found to be sufficient to cause death in the ordinary course of nature and , in fact, the same only had caused the death of the deceased. The appellant accused was, therefore, responsible for his death.
17. Now we come to the argument of the learned Counsel for the appellant that even if the evidence of the eye witnesses is accepted in entirety and it is held that the incident did take place in the manner as deposed by them still the conviction of the appellant accused under Section 302 IPC would not be sustainable as this is a case where the accused would be entitled to the benefit of Exception 4 to Section 300 IPC and all that can be said against the appellant accused is that he had the knowledge that the injury caused by him was likely to cause the death of the deceased and consequently he can be convicted only under Section 304, Part II, IPC. In this regard the learned Counsel drew our attention to the statement of eye witness PW-9 Suhel Akhtar in his cross-examination to the effect that it was a sudden quarrel between the accused and the deceased. He also drew our attention to that part of the cross-examination of the other eye witnesses PW-10 Qayum where he claimed that there was a scuffle between the accused and Akbar (deceased) which had lasted for about 5-10 minutes and that the accused had not straightaway attacked the deceased. Learned Counsel contended that this is a case of sudden fight and the accused without any premeditation and in the heat of passion only had caused injury to the deceased. We are, however, unable to persuade ourselves to accept this argument also of the learned Counsel for the appellant. There is no doubt that PW-9 had stated in his cross-examination that there was a sudden quarrel between the deceased and the accused and PW-10 had also claimed that there was an altercation between the two for about 5 10 minutes and that the accused had not straightaway attacked the deceased but still exception 4 to Section 300 IPC would not get attracted since it cannot be said that the accused had not taken undue advantage of the situation or had not acted in a cruel manner. He had a razor with him and with that razor he caused fatal injury on the neck of the deceased. We have already noticed the extent of damage caused by the injury inflicted by the accused which was noticed by the autopsy surgeon at the time of post-mortem examination. From the type of weapon used by the accused for causing injury to the deceased and the part of body where injury was actually caused by him it is clear that the accused had acted in a cruel manner and had also taken undue advantage of the fact that the deceased was unarmed. To invoke this exception clause four requirements must be satisfied by the accused. He should be able to show that there was a sudden fight; (ii) there was no premeditation on the part of the accused; (iii) the act of the accused resulting in the death of the victim was done in a heat of passion; and (iv) the assailant should not have taken any undue advantage of the situation and should not have acted in a cruel manner. Unless all these requirements are fulfillled an accused cannot get the benefit of exception 4 to Section 300 IPC. Since, in the present case we have found that the appellant accused had acted in a cruel manner while causing injury to the deceased on a vital part of his body and had taken undue advantage of the deceased being unarmed at the time of the incident we are not inclined to give benefit of exception 4 to Section 300 IPC to the appellant – accused.
18. As a result of our fore-going conclusions, we do not find any infirmity in the findings of the learned trial Court on any aspect of the matter and, therefore, Criminal appeal no. 790 of 2000 is hereby dismissed and the impugned judgment of conviction dated 4-12-2000 is affirmed.