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DELHI HIGH COURT
S. RANGARAJAN AND R. N. AGGARWAL, JJ.
BHOLA NATH
VERSUS
THE STATE
Criminal Appeals Nos. 197 and 102 of 1974,
Decided on : 28-1-1976.
CRIMINAL APPEAL - MURDER - [SECTION 302, I.P.C.] - CONVICTION - EVIDENCE - WITNESSES - HOSTILE WITNESSES - SECTION 288, CRIMINAL PROCEDURE CODE - TRANSFER OF STATEMENT - REQUIREMENTS - CORROBORATION - FIRST INFORMATION REPORT (F.I.R.) - SECTION 157, EVIDENCE ACT - SUFFICIENCY OF EVIDENCE - COMMON INTENTION - SECTION 34, I.P.C.
Fact of the Case:
Two appellants, Bhola Nath and Gopi Kishan, were convicted under Section 302, I.P.C. read with Section 34, I.P.C. for the murder of Mohd. Sayeed. The prosecution's case was that on the day of the incident, there was a quarrel between Bhola Nath and the deceased at a public water tap. Later that evening, Gopi Kishan and Raj Kumar (who was acquitted) caught hold of the deceased while Bhola Nath stabbed him with a knife. The deceased succumbed to his injuries at the hospital.
Finding of the Court:
The court found that the evidence of Abdul Hamid (P.W. 4), an eye-witness, was credible and reliable. His statement in the ruqa (first information report) given to the police shortly after the incident, in which he named Bhola Nath as the assailant, was corroborated by his testimony in court. The court also found that the recovery of the knife from Bhola Nath was not sufficient to establish his guilt as it did not contain any blood stains.
Issues: 1. Whether the evidence of Abdul Hamid (P.W. 4) was credible and reliable? 2. Whether the recovery of the knife from Bhola Nath was sufficient to establish his guilt? 3. Whether there was sufficient evidence to convict Gopi Kishan under Section 302/34, I.P.C.?
Ratio Decidendi: 1. The court held that the evidence of Abdul Hamid (P.W. 4) was credible and reliable. His statement in the ruqa given to the police shortly after the incident, in which he named Bhola Nath as the assailant, was corroborated by his testimony in court. The court also found that the recovery of the knife from Bhola Nath was not sufficient to establish his guilt as it did not contain any blood stains. 2. The court held that there was sufficient evidence to convict Bhola Nath under Section 302, I.P.C. The testimony of Abdul Hamid (P.W. 4) was corroborated by the post-mortem report, which showed that the deceased had died as a result of a stab wound to the chest. The court also found that there was no evidence of any prior concert or common intention between Bhola Nath and Gopi Kishan to murder the deceased. 3. The court held that there was insufficient evidence to convict Gopi Kishan under Section 302/34, I.P.C. The statement in the ruqa given by Abdul Hamid (P.W. 4) was that Gopi and Raj had caught hold of the deceased and Gopi said to Bhola "Dekhta Kaya Hai, saaley Ko jaan se maar do". Before the committing Court Abdul Hamid only said he heard those words; he did not identify Gopi as the person who uttered them. At the trial he pointed to Gopi and said "he is perhaps that Gopi". Having regard to the petty nature of the quarrel in the morning no inference could be drawn that there was any prior concert to murder the deceased; nor could it be said that any common intention on the part of Bhola Nath and Gopi Kishan to murder the deceased was found at the scene of murder.
Final Decision: The court convicted Bhola Nath under Section 302, I.P.C. and sentenced him to life imprisonment. The conviction and sentence imposed on Gopi Kishan were set aside, and he was directed to be set at liberty.
S. Rangarajan, J. :- The judgment in this appeal in, which Bhola Nath is the appellant, will also dispose of Criminal Appeal No. 102 of 1974, in which Gopi Kishan is the appellant. Both the appellants have been convicted under S.302, I.P.C. read with S.34, I.P.C. each of them has been sentenced to imprisonment for life by the learned Additional Sessions Judge (Shri M.K. Chawla) by his judgment dated 19-3-1974.
2. The case of the prosecution is that, on the morning of 13-5-1973 there was a quarrel at the public water tap between Bhola Nath (aged 20 years) and Mohd. Sayeed deceased (aged 25 years). Some persons including Abdul Hamid (P.W. 4) separated them. But Bhola Nath threatened to kill Mohd. Sayeed before he went away.
3. At about 5 p.m. that very evening when he was going to his house Abdul Hamid (P.W. 4) saw Gopi Kishan (appellant in Cr. A. 102/74) and Raj Kumar (accused who has been acquitted) catching hold of the deceased. Raj Kumar had a chain in his hand and Gopi Kishan was abusing the deceased Bhola Nath, who was having an open knife in his hand stabbed the deceased and all the three accused ran away. The occurrence is said to have been witnessed by Mohd. Hamid (P.W. 4), Moin Uddin (P.W. 5) and Jamal Mohd. (P.W. 6). The deceased had fallen down in the Patli Galli at Chowk Bara Dari (where he was stabbed). The deceased placed a handkerchief on his wound and went towards Jagdish's dairy but fell down. Not only blood stains but also the said handkerchief were removed from the scene of occurrence.
4. The deceased was taken in a cycle rickshaw to the Irwin Hospital by Mohd. Sultan (P.W. 8), uncle of the deceased. Mohd. Sayeed (P.W. 9). son of P.W. 4, rushed to the Police Station and made a statement as per Ex. P.W. 1/A at 5.05 p.m. that "a serious quarrel was going on in Bara Dari"; no detail of the incident or names of persons involved therein were mentioned. Rajpal Singh (P.W. 1) the duty officer at the Police Station Hauz Qazi, which is only one furlong away from the scence of occurrence, recorded the statement of P.W. 9 (Exhibit P.W. 1/A). Soon thereafter, at 5.25 p.m. a telephonic call was received by him from a Constable at Irwin Hospital about the deceased having been admitted in injured condition.
5. P.W. 8 had accompanied the deceased to the hospital. The deceased was admitted at 5.20 p.m. in the hospital. His general condition was poor. There was a stab on the left side of his chest 1.5 c.m. long obliquely placed; he was bleeding profusely and there was peripheral circulatory failure. The injured was gasping; his pulse was feeble. He was sent immediately for resuscitation but life ebbed out at 5.40 p.m. On receipt of another telephonic massage from the hospital at 6.30 p.m. P.W. 1 converted the offence previously registered under Section 307/34, I.P.C. into Section 302/34, I.P.C.
6. Immediately after recording Ex. P.W. 1/A S.I. Rajpal Singh (P.W. 1) had sent ASI Ranbir Singh to the spot for inquiry, who completed recording the statement of Abdul Hamid (P.W. 4) by 5.35 p.m.; the same (marked as P.W. 1/D) was received at the police Station by P.W. 1 at 5.45 p.m., who recorded a formal F.I.R. on that basis.
7. According to the post-mortem report (Ex. P.W. 13/A) the following injuries were noticed :
(1) Incised wound superficial partial skin deep 1 X 03 c.m. in the back and upper part of rt. forearm oblique in direction.
(2) Abrasion as if caused by a show object 0.8 X 0.3 c.m. in the inner and middle part of rt. forearm.
(3) Small, transverse, linear abrasions, 4.0 c.m. and 3.5 c.m. one over other, 2.5 c.m. apart, situated at the rt. side part of chest just inside and below rt. nipple.
(4) Incised punctured wound, 2 X 0.6 c.m. oblique, in the left outer surface of chest, midaxillary line over 6th inter costal space X chest cavity deep, directed upwards slightly and medially in chest cavity. The upper outer angle is acute, while inner lower angle is rounded."
Death was due to haemorrhage and shock consequent on stab i
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