* IN THE HIGH COURT OF DELHI AT New Delhi Judgment Reserved on: July 10 , 2014 Judgment Delivered on: July 15 , 2014 % + CRL.A. 532/1998 MOHD. ANIS & ANR Represented by: ..... Appellant Mr.M.L.Yadav, Adv. versus NCT OF DELHI Represented by: ..... Respondent Mr.Lovkesh Sawhney, APP for State. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE MUKTA GUPTA MUKTA GUPTA, J.
1. By the present appeal, the appellants had challenged the judgment dated August 13, 1998 convicting them for offences under Sections 302/307/34 IPC and the order on sentence dated August 18, 1998 directing them to undergo imprisonment for life and fine of `3000/- each for offences under Sections 302/34 IPC and rigorous imprisonment for 5 years and to pay a fine of `5000/- for offence punishable under Section 307/34 IPC. During the pendency of the present appeal, appellant No.1 passed away and thus the appeal qua him stood abated. Thus, the present appeal is now confined to appellant No.2 Mohd.Khalid S/o Mohd.Anis only.
2. As per the prosecution, the incident took place due to rivalry between Mohd.Anis and Mohd.Salim, the two brothers and Shafiq ur Rehman, the deceased, who was married to the sister of Mohd.Anis and Mohd.Salim. The differences started after Shafiq ur Rehman contracted a second marriage. Mohd.Salim had purchased a built up house admeasuring 103 Sq. Yds for consideration in February, 1992. However when Mohd.Anis started running a guest house in a portion of the house in his occupation, frequent quarrels took place between wife of Mohd.Anis and the second wife of deceased Shafiq ur Rehman. Kalandra under Section 107/151 Cr.P.C. was registered between the parties on February 15, 1993 besides a civil suit filed by Shafiq ur Rehman.
3. On July 14, 1993 at about 11.11 PM, PW-4 Mohd.Salim received a letter from his sister. Since he was illiterate, he went to his maternal uncle for getting the said letter read over to him. While, he was entering the house of his maternal uncle, he was way laid by Mohd.Anis and his son Mohd.Khalid who started abusing him. Mohd.Anis was carrying one ‘seek’ (rod used for roasting Kabab) while Mohd.Khalid was carrying Chhuri. Both of them attacked Mohd.Salim, as a result he received multiple injuries on his person. He saved himself and ran towards Police post Turkman Gate from where he was taken by PW-10 Constable Sufal Ram to JNP hospital. Immediately after this incident, on the same night at about 12 O’clock while Shafiq ur Rehman was watching TV along with his daughters and sons, there was a noise of some quarrel in the gali. The witnesses saw Mohd.Anis and Mohd.Khalid armed entering the house with blood stained clothes and shouting asking for Shaffo (Shafiq ur Rehman). The deceased Shafiq ur Rehman who was on the first floor tried to shut the door but was not successful. Both came rushing towards him in the room and stabbed Shafiq ur Rehman. The deceased rushed out to save himself and went downstairs from the staircase where Johra Begum W/o Mohd.Anis and her second son Khurram (proclaimed offender) were also present. Khurram was also carrying a ‘seek’ (rod used for making Kabab) in his hands. They caught hold of the deceased and he fell down. Thereafter, Mohd.Anis and Khalid gave him stab wounds with chhuris in their hands. Shafiq ur Rehman was bleeding profusely, however the four accused dragged him in their room. Daughter of the deceased rushed to the house of Aman-Ullah-Khan @ Daddy who on seeing, informed the Police.
4. S.I.Krishan Lal PW-27 reached on information and found Shafiq ur Rehman in injured condition and Johra Begum and Mohd.Khalid standing near him. Deceased had multiple wounds and Johra Begum had one incised wound on her left forearm. Both Shafiq ur Rehman and Mohd.Salim were declared unfit for statement. The investigating officer went to the spot and recorded the statement of PW-1 Shabana vide Ex.PW-1/A and the rukka was sent for registration of FIR. Shafiq ur Rehman succumbed to his injuries at the hospital on July 15, 1993 at about 5.00 PM and thus Section 302 IPC was added to the FIR.
5. Learned counsel for appellant no.2 contends that the learned Trial Court failed to appreciate that the material witnesses have given different versions of the incidents. Prosecution witnesses PW-6 Inayat Hussain and PW-7 Aman-Ullah-Khan were declared hostile as they stated that there was darkness due to which there was no clear visibility. As per the death report Ex.PW-33/D, the history of alleged injuries was by assault while deceased was sleeping. Thus, the prosecution version of the eye-witnesses is belied by this fact. Further, the deceased was taken to the hospital by the Police and thus the eye-witnesses are all planted. In the MLC Ex.PW-32/A, it is mentioned that assault was by sword and knives, however there was no recovery of any sword at the pointing out of appellant no.2. Thus, the weapon of offence has been planted on appellant no.2. Further, there was no motive of the appellants committing the murder of Shafiq ur Rehman as the house was owned by Mohd.Salim and not the appellants. Though Mohd.Salim stated that appellants Anis and Khalid were armed with ‘seek’ and ‘churri’respectively, however PW-1 stated that both of them were armed with chhuris. Further, all the material witnesses have turned hostile and have not supported the prosecution case. Hence, appellant no.2 is entitled to acquittal.
6. Learned APP for the State on the other hand contends that on all material aspects, the prosecution witnesses have supported the case of prosecution. The incident being at the night, the presence of the witnesses cannot be doubted and their testimony cannot be washed away because there are some variations in their statements, which are natural and bound to occur in such a melee.
7. Heard learned counsel for the parties. PW-1, the complainant Shabana, daughter of deceased Shafiq ur Rehman in her examination-inchief stated that on July 14, 1993 she and her father were watching the television at about 12.00 mid-night when she heard noise in the Gali. She and her father looked outside the window of the kitchen and there was a quarrel going on amongst some persons. Her father withdrew saying that such quarrels keep on taking place in that area. Thereafter she saw Anis and Khalid who live on the ground floor coming with chhuris in their hands and their clothes were stained with blood. Anis and Khalid called out her father. Her father got up and peeped from the door opening towards the staircase. Her father tried to shut the door, however Anis and Khalid pushed the same and her father fell down. They came inside the room and hit her father with chhuri two-three times. Her father tried to run out of the house in order to save himself and came down from the stairs. Khurram (PO) and Johra Begum (acquitted accused) were present in the courtyard on the ground floor. They pushed her father on the floor. Khurram was having a ‘seek’ used for roasting Kabab. In the meantime Anis and Khalid also came down. Khurram and Johra Begum exhorted Anis and Khalid to kill her father saying “Maro Saile Ko, Yeh Bach Na Paye”. All the four accused started beating her father and continued to stab him with chhuries number of times. Her father was bleeding profusely. They dragged him inside the room on the ground floor. She went to one Amin-Ullah-Khan whom she called Daddy and revealed the incident, who came to their house and informed the police. The police took her father to the hospital. She further stated that accused persons wanted her father to vacate the house which her father was not willing to do.
8. Examination-in-chief of the PW-1 was conducted on 7th February, 1996. However, this witness repeatedly appeared for cross-examination but no cross-examination was done and adjournments were sought by learned counsel for the accused. Finally, when she was cross-examined on January 04, 1997, February 01, 1997 and March 26, 1997 she turned hostile and did not support the prosecution case. Similarly, PW-2 the brother of PW-1 also deposed on February 07, 1996 about the incident and that Anis and Khalid stabbed his father with chhuris. However, this witness also turned hostile. PW-5 Khalid Hussain is a neighbourer, who on hearing noise came to the house, saw lot of crowd had gathered. He also saw that Shafiq ur Rehman was lying on the floor of the house and was being stabbed by Mohd.Khalid and Mohd.Anis. However, this witness says that Mohd.Khalid had a chhura in his hand and Mohd.Anis a ‘seek’. PW-5 and PW-7 the neighbours also came out on hearing the noise, saw the crowd and saw these people stabbing Shafiq ur Rehman. PW-7 Aman-Ullah-Khan @ Daddy is a witness to whom PW-1 ran to and informed. He supports the version of PW-1 that she came to him and informed about stabbing of his father by his maternal uncle Mohd.Anis. Then he saw Shafiq ur Rehman lying on the floor of courtyard, and blood and water was spread there. He telephoned the Police and the Police removed Shafiq ur Rehman to the hospital.
9. Thus, from the testimony of these witnesses, it is clear that appellant No.2 inflicted injuries on the deceased with chhuri a number of times. It is well settled that even the testimony of a hostile witness is not washed out and the same can be believed to the extent it stands corroborated. The rule of prudence followed by the Courts is to carefully sieve the testimony of such witnesses and to separate grain from chaff and if corroborated on material particulars, on other aspects of the testimony, to accept the same.
10. Despite the fact that eye-witnesses have turned hostile, especially PW-1 and PW-2, however their evidence is corroborated on all material aspects from the other evidence. As per the post-mortem report Ex.PW-38/A death was a result of haemorrhage and shock consequent upon multiple injuries. Injuries no.41 and 47 were sufficient to cause death in the ordinary course of nature individually. All other injuries were sufficient to cause death in the ordinary course of nature collectively. The deceased had received 79 injuries which are as under:
1. Incised wound 5 x 0. 8 x 1.5 cm over top of skull, 11 cm from left ear.
2) Incised wound 4 x 0.5 x 0.5 cm over top of head 5 cm, behind injury No.1 and 9 cm, above left ear.
3) Stitched incised wound vertically placed over front of forehead slightly to right side 3.5 x 0.2 x 0.5 cm x 1 cm from the mid line. The lower end is 2.5 cm above inner and of right eyeball.
4) Stitched incised wound 5 x 0.5 x 0.8 cm skull deep obliquely placed over middle front of forehead on right upper end 2.2 cm above right eye-brow. The left inner end showed tailing.
5) Scratched abrasion 2 cm, over right side of forehead obliquely placed the lower end being 1 cm above middle of right eyebrow.
6) Superficial incised wound 5 x 0.2 cm over right side of forehead with tailing over upper end
7) Stitched incised wound 3 x 0.7 x 0.7 cm over right side of forehead obliquely placed upper inner end 2.5 cm below outer end of right eye.
8) Y-shaped stitched incised wound 8 x 0.4 x 11.5 cm transversally placed over right side of face and right ala of nose with smaller limb measuring 2.5 cm extending to right upper part of the nose.
9) Multiple scratch of abrasion 4 x 2 cm over right side of face just below injury no.7
10) Stitched incised wound 3.5 x 0.5 x 0.4 cm over right side of face just below outer right angle of mouth inner end being 0.5 cm below right lower limb.
11) Perforating wound 1.5 x 0.7 cm slightly obliquely placed over the middle of lower lip through and through the lower lip causing superficial incised wound over mucosal surface of upper lip.
12) Incised wound 0.7 x 0.4 cm over right angle of mouth.
13) Incised wound 3.7 x 0.7 x 0.3 cm over inner aspect of lower lip.
14) Incised wound 1.5 x 0.5 x 0.3 cm over the inner aspect of left lower lip extending to left angle of mouth.
15) Stitched incised wound 13 x 1 cm x bone deep placed above chin almost transverse, extending to left side of neck with tailing of left end
16) Superficial incised wound 7.5 x 0.2 x 0.2 cm over left cheek obliquely placed, the lower inner end being 5 cm from left ala of nose.
17) Stitched incised wound 3.5 x 1 cm x bone deep over left cheek 3 cm from left ear.
18) Superficial incised wound 5 x 0.2 cm over left cheek just above injury No.17.
19) Incised wound 1.8 x 0.2 x 0.4 cm and over tragus of left ear.
20) Scratch abrasion 3.5 cm over left temple.
21) V- Shaped incised wound over left cheek with its tip over root of nose, upper limb measuring 8 x 0.2 x 0.5 cm and lower limb measuring 7 x 0.2 x 0.5 cm.
22) Incised wound 3.5 x 1 x 0.4 cm over left side of the neck, 2 cm below left angle of the jaw.
23) Superficial incised wound 4.5 x 2 cm over left side of the neck 1 cm below injury No.22 with flap of skin over the upper margin.
24) Incised stab wound 1.8 x 0.5 x 3 cm over right lower neck 8 cm from mid line just above outer end of right clavicle.
25) Two scratches of abrasion 2.5 x 1.5 cm over top of right shoulder.
26) Superficial incised wound 32 x 0.2 cm obliquely placed over right front of shoulder, right chest and lower part of left chest. The upper outer edge of incised wound is slightly expanded measuring 2 x 1 cm. The upper outer angle starts just at right shoulder. The lower end is just 3 cm above and to the left tip of xiphisternum.
27) Linear contusion 11 x 0.3 cm over right over right upper front of chest.
28) Superficial incised wound 10 x 0.7 x 0.2 cm over upper front of right chest placed obliquely. The upper end is 13 cm from right clavicle and shows tailing.
29) Stitched incised wound 2.8 x 0.7 x 2.5 cm over upper front of right side chest 4.5 cm above the injury No.28.
30) Stitched incised wound 1.5 x 0.5 x 05 cm over right upper front of chest, 0.5 cm outer to previous injury (injury No.29)
31) Scratched abrasion 6 cm over middle front of right side chest obliquely placed inner end being 3 cm front the mid line.
32) Incised wound 1.8 x 1 x 0.5 cm over middle front of right side chest 9 cm inner to right nipple.
33) Superficial incised wound obliquely placed 27.5 x 1 x 0.2 cm over left upper front of chest extending to middle front of right chest with tailing at lower end.
34) Superficial incised wound 9.5 x 0.5 x 0.2 cm over left upper front of chest, crossing the injury No.33.
35) Scratched abrasion 6 cm over upper front of left side chest crossing injury No.34 at its lower outer end.
36) Scratched abrasion 8 cm over middle front of left side chest crossing injury No.35 at its inner end.
37) Stab wound 3.5 x 1.2 cm x chest cavity deep over upper left front of chest almost transversally placed.
38) Scratched abrasion 7 x 0.2 cm and horizontally placed over right front of chest 5 cm below right nipple.
39) Three abrasions each measuring 2 x 2 cm in an area of 6.5 cm over right side front of chest near the lower rib border.
40) Stab wound 3 x 1 cm x chest cavity deep horizontally placed over right side chest in anterior axillary line.
41) Stab wound 1.5 x 1 cm x abdominal cavity deep placed over right front of abdomen, 2.5 cm above anterior superior iliac spine.
42) Scratched abrasion in the shape of x the front of abdomen 1 limb is 7 cm and the other limb is 10 cm.
43) Scratched abrasion 10 x 0.2 cm oblique over right front of abdomen middle end is 3 cm away from umbilicus.
44) Stitched surgical wound 25 cm in length starting 5 cm below the tip of xiphisternum (lower end of rest bone).
45) Superficial incised wound oblique 6 x 0.5 x 0.5 cm over left front of abdomen, the medial angle is just to the left of umbilicus.
46) Stitched incised wound 2 x 1 x 2.5 cm horizontal over pubic area and is 4 cm above, the root of penis.
47) Stab would 5 x 1 cm abdominal cavity deep horizontal over left upper end of abdomen. A loop of large intestine (transverse colon) has been axte-riorized through the wound surgically and is held in place by a rubber catheter. Transverse colon is showing a cut through which faecal matter is coming out.
48) Superficial incised wound 5 x 0.2 cm over outer aspect of left inguinal ligament.
49) Stab wound 3 x 1 x 6 cm over upper outer of left hip. The track is going downwards and forwards.
50) Multiple superficial incised wound in an area of 5 x 2 cm over upper outer of left hip just below injury No.49.
51) Superficial incised wound 7 x 0.5 cm x 0.2 cm horizontal over outer aspect of left chest.
52) Contusion 16 x 1.5 cm oblique over left back.
53) Punctured wound 0.5 x 0.5 x 2 cm over right back of chest.
54) Superficial incised wound 3 x 0.5 oblique over left back of lumber region.
55) Punctured wound 1.5 x 1 x 2.5 cm over upper outer of right buttock.
56) Incised wound 13.5 x 0.5 x 0.5 cm over upper outer of right arm with tailing on lower anterior border.
57) Incised wound 7 x 3 x 0.5 cm over upper outer of right arm 1.5 cm below injury No.56 with tailing on anterior angle.
58) Incised wound 8 x 2.5 x 3.5 cm over upper outer of right arm 1.5 cm below injury No.57.
59) Superficial incised wound 8.5 x 0.5 cm over upper outer of right arm, 0.5 cm below injury No.58.
60) Incised wound 4 x 0.5 x 0.3 cm, upper outer of right arms 1.5 cm below injury No.59.
61) Multiple incised wound each measuring roughly 5 x 0.5 cm over middle front of right arm in an area of 15 x 8 cm
62) Incised wound 7.5 x 3 x 3 cm on the lower outer of right arm 4 cm below injury No.60.
63) Incised wound 6.5 x 0.5 x 1 cm over lower outer of right arm, 2 cm below injury No.62.
64) Incised wound 5 x 0.5 x 0.5 cm lower outer of right arm 2 cm below injury No.63.
65) Incised wound 5 x 0.5 x 0.5 cm outer aspect of right elbow.
66) Five superficial incised wound ranging from 2 cm to 19 cm in length, 0.5 to 1 cm in width over back of right upper arm.
67) Multiple incised wound ranging from 2 to 8 cm in length, 0.5 to 1 cm in width and 0.5 to 1 cm in depth over front of right forearm.
68) Multiple scratched abrasion ranging in length from 5 to 11 cm over back of right forearm.
69) Incised wound 5 x 2 x 2 cm over right palm (defence wound).
70) Incised wound 5 x 0.5 x 0.5 cm over right palm (defence wound)
71) Incised wound 2 x 0.5 x 0.5 cm over back of right little finger (defence wound)
72) Multiple incised wound 21 in number some of them stitched ranging in length from 2 to 18 cm, 0.5 x 2 cm in width, 0.5 to 2 cm in depth place over right lower limb.
73) Multiple incised wound 23 in number, some of them stitched ringing in length from 2 to 18 cm, 0.5 to 1.5 cm in width and 0.5 to 1.5 cm in depth placed over left lower limb.
11.
74) Incised wound 6 x 2 x 3 cm over tip of left shoulder.
75) Incised would 8 x 3 x 4 cm over middle outer of left arm. The lower margins bevelled and upper margin is under mind.
76) Multiple scratch abrasion ringing from 5 to 11 cm over upper outer of left arm.
77) Multiple incised wound with some of them stitched ranging in length from 3-8 cm over back of forearm.
78) Stitched incised wound 9 x 0.5 x 0.5 cm over palm of left hand. (defence wound)
79) Multiple incised wound ranging in length from 1 to 3 cm over palmar aspect of left hand (defence wound). Further, the evidence of hostile eye-witness is also corroborated by the testimony of PW-3 Rais-ur-Rehman who is the brother of the deceased. This witness is a witness to the recovery of blood from the room of the deceased and the accused, from the verandah, two blood stained chadars from the room of Mohd.Anis, blood stained Safari suit and vest of Mohd.Anis, blood stained shirt and pant of Mohd.Khalid, recovery of two chhuris and one ‘seek’ from the machaan of the house. This witness has not been cross-examined. Thus, the recoveries made have been duly proved by the prosecution. As per the CFSL report Ex.PW-15/A, 15/B, 40/C and 40/D, the clothes of Mohd.Anis, Mohd.Khalid, kurta of Mohd.Salim, one knife and iron rod were having human blood on it. The clothes of both Mohd.Anis and Mohd.Khalid, the knife and iron rod were found to be stained with human blood, thus, corroborating the version of the eye-witnesses.
12. At the instance of appellant no.1 Mohd.Anis two daggers and one ‘seek’ (pointed iron rod) from the machaan of the house. As per the opinion of the post mortem doctor Ex.PW-38/B, injuries no.1 to 10, 12 to 26, 28 to 40, 42 to 51, 54, 56 to 79 were produced by the two churries and injuries No.27 and 52 are highly likely to be produced by the ‘seek’ if struck in an oblique manner.
13. Further, PW-4 Mohd.Salim the younger brother of Mohd.Anis has also deposed that on July 14, 1993 Shafiq ur Rehman attended the date in Tis-Hazari in a suit filed by him against Mohd.Anis. On coming back Shafiq ur Rehman informed him that Mohd.Anis had threatened to kill him on which he told him not to take those threats seriously, as Mohd.Anis was in the habit of saying such things. This witness further stated that he had received a letter from his sister and since he was illiterate he went to the house of his maternal uncle for the letter to be read over to him, where Mohd.Anis and Khalid inflicted injuries on him. Thus, he is a witness, who was injured by the appellants just prior to the injuries inflicted to Shafiq ur Rehman and proves the motive behind the commission of offence. This witness has proved on record that the property in question where Mohd.Anis and Shafiq ur Rehman were residing was owned by him. He has also proved the documents relating to the civil suit pending before Tis-Hazari. He has also exhibited his blood stained kurta on which blood group ‘A’ was found as per the FSL result. As per the MLC Ex.PW-20/A of Mohd.Salim, the injuries received by him, were grievous in nature. PW-4 has not been crossexamined on the injuries and the suggestion given is that he had animosity and civil and criminal disputes with many other people. Thus, this witness has proved beyond reasonable doubt the commission of offence punishable under Sections 307/34 IPC by appellant no.2. Though in a case of eyewitness account, the prosecution is not required to prove the motive, however in the present case PW-4 had proved beyond reasonable doubt the motive behind the commission of the offence of murder of Shafiq ur Rehman.
14. The defence of the appellants is that on July 14, 1993 there was no light in the area and there was darkness in their house. On the night some quarrel took place between Shafiq ur Rehman and his workers who used to work in his karkhana. While quarrelling they had come on the ground floor. The appellants and Johra Begum tried to save Shafiq ur Rehman and in that process they received injuries. No doubt appellant no.2 and Johra Begum, the acquitted accused, had received injuries which were not explained. The opinion of the doctor on the MLC of Johra Begum Ex.PW-32/B with regard to one incised wound on the left forearm is that the said injury appears to be self-inflicted. Further, the non-explanation of one simple injury on the appellant could not dent the prosecution case.
15. Brutality and the vengeance with which the deceased was bleeded to death are apparent from the number of injuries on all parts of the body of the deceased. Considering the evidence on record, we find no merit in the present appeal. Hence, the same is dismissed. The bail bond and surety bond of the appellant No.2 stand cancelled. Appellant No.2 would surrender to custody within two weeks.
16. TCR be returned. (MUKTA GUPTA) JUDGE (PRADEEP NANDRAJOG) JUDGE JULY15 2014/ga’