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2014 Supreme(Del) 1069
High Court of Delhi
KAILASH GAMBHIR & SUNITA GUPTA, JJ.
Allauddin
Versus
State (NCT of Delhi)
CRL.A. No. 1441 of 2011
Decided on: 04-04-2014
For the Appellant:Anita Abraham, Advocate.
For the Respondent: Sunil Sharma, APP.
The failure of the prosecution to prove the exact spot of the incident, to explain the delay in sending the pullandas to FSL and the non-detection of the blood group on the knife on account of disintegration of the blood with the lapse of time, and to prove the intention or motive of the accused to cause death of the deceased does not absolve the accused of the crime if the prosecution has proved that the accused was armed with a knife and that the injury caused by the knife was sufficient to cause death of the deceased.
Headnote:
CRIMINAL APPEAL - SECTION 302 IPC - [KEYWORD] - [SUBJECT] - [ACT SECTION LIST] - [SUMMARY]
Fact of the Case:
On 10.04.2010, DD No. 58A was lodged regarding a person getting stabbed at Murga mandi at PS Kalyan Puri. PW3, HC Rajesh Kumar reached at the spot. He met Ct. Javed (PW9) and Ct. Sudesh (PW4), beat constables of that area. Accused Allaudin was in their custody. They told him that injured Mohd. Vakil was sent to hospital through PCR. Leaving the accused Allaudin in the custody of PW-4, PW-3 went to LBS hospital. PW-3 then collected the MLC of Mohd. Vakil. Doctor handed over two pulandas containing clothes of the injured to him. Since injured was declared not fit for statement, PW-3 recorded statement of PW-4, prepared rukka and through PW-4, got the FIR registered. He later returned at the spot. Inspector Sudhir Sharma (PW-18) also reached at the spot and further investigation was conducted by him. IO, PW-18 arrested the accused. During the interrogation the accused made a disclosure statement and led the IO PW-18 to Murga Mandi. He got recovered the weapon of offence i.e. the knife, from the dry drain adjoining the boundary wall of Murga Mandi. IO seized the same in one pulanda. IO prepared a site plan and got the scene of crime photographed. Injured Mohd. Vakil died in the hospital. IO further collected the death summary and did inquest proceedings. After the post-mortem, he handed over the dead body to the relatives of the deceased . Charge u/s 302 was framed against the accused to which he pleaded not guilty and claimed trial.
Finding of the Court:
The court found that the prosecution had failed to prove the exact spot of the incident as neither any blood nor any earth control was lifted from the spot and even the site plan does not show any blood lying on the spot. The court also found that the prosecution had failed to explain the delay in sending the pullandas to FSL and the non-detection of the blood group on the knife on account of disintegration of the blood with the lapse of time. The court further found that the accused had no intention or motive to cause death of the deceased. The court, however, found that the accused was armed with a knife and that the injury caused by the knife was sufficient to cause death of the deceased. The court, therefore, convicted the accused under Section 304 Part I IPC and sentenced him to imprisonment for a period of ten years.
Issues: 1. Whether the prosecution had proved the exact spot of the incident? 2. Whether the prosecution had explained the delay in sending the pullandas to FSL and the non-detection of the blood group on the knife on account of disintegration of the blood with the lapse of time? 3. Whether the accused had any intention or motive to cause death of the deceased? 4. Whether the accused was armed with a knife and whether the injury caused by the knife was sufficient to cause death of the deceased?
Ratio Decidendi: 1. The prosecution has failed to prove the exact spot of the incident as neither any blood nor any earth control was lifted from the spot and even the site plan does not show any blood lying on the spot. 2. The prosecution has failed to explain the delay in sending the pullandas to FSL and the non-detection of the blood group on the knife on account of disintegration of the blood with the lapse of time. 3. The accused had no intention or motive to cause death of the deceased. 4. The accused was armed with a knife and the injury caused by the knife was sufficient to cause death of the deceased.
Final Decision: The court convicted the accused under Section 304 Part I IPC and sentenced him to imprisonment for a period of ten years.
Kailash Gambhir, J.
1. Challenge in the present criminal appeal is to the impugned judgment dated 01.06.2011 and order on sentence dated 04.06.2011 whereby the Appellant–Allaudin was convicted for committing an offence punishable under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and sentenced to undergo life imprisonment along with the payment of fine of Rs.1,000/- and in default thereof to undergo simple imprisonment for a period of one month.
2. In brief the case of the prosecution is as under:-
On 10.04.2010, DD No. 58A was lodged regarding a person getting stabbed at Murga mandi at PS Kalyan Puri. PW3, HC Rajesh Kumar reached at the spot. He met Ct. Javed (PW9) and Ct. Sudesh (PW4), beat constables of that area. Accused Allaudin was in their custody. They told him that injured Mohd. Vakil was sent to hospital through PCR. Leaving the accused Allaudin in the custody of PW-4, PW-3 went to LBS hospital. PW-3 then collected the MLC of Mohd. Vakil. Doctor handed over two pulandas containing clothes of the injured to him. Since injured was declared not fit for statement, PW-3 recorded statement of PW-4, prepared rukka and through PW-4, got the FIR registered. He later returned at the spot. Inspector Sudhir Sharma (PW-18) also reached at the spot and further investigation was conducted by him. IO, PW-18 arrested the accused. During the interrogation the accused made a disclosure statement and led the IO PW-18 to Murga Mandi. He got recovered the weapon of offence i.e. the knife, from the dry drain adjoining the boundary wall of Murga Mandi. IO seized the same in one pulanda. IO prepared a site plan and got the scene of crime photographed. Injured Mohd. Vakil died in the hospital. IO further collected the death summary and did inquest proceedings. After the post-mortem, he handed over the dead body to the relatives of the deceased . Charge u/s 302 was framed against the accused to which he pleaded not guilty and claimed trial.
3. To prove its case, prosecution in all examined eighteen witnesses. The statement of the accused was recorded under Section 313 of Cr.P.C., wherein he pleaded innocence and false implication. He stated that he used to drive Tata ACE of Lalit Mohan and at the time of the incident, after parking his vehicle in Murga Mandi, when he was just standing there, police caught him and took him to the Police Station, Kalyan Puri. He stated that he neither got any knife recovered nor did he make any disclosure statement to the police. He also stated that the police had arrested 2-3 other persons along with him, but as the family members of those persons came to the police station, they were released. Since no one came at his rescue, he was falsely implicated in the present case. He also stated that he was beaten by the police. He, however, did not lead any evidence in his defence.
4. Addressing arguments on behalf of the appellant, Ms. Anita Abraham, Advocate, submitted that the impugned judgment and order on sentence passed by the learned Trial Court are erroneous both on law and facts. Counsel further argued that the testimony of the alleged eye witness PW-1 is totally unbelievable because of inherent inconsistencies in his deposition before the court. Pointing out the inconsistencies, counsel submitted that PW-1 in his examination-in-chief stated that he saw that when Mohd. Vakil was putting the phone back on the box in the STD booth, accused Allauddin stabbed Mohd. Vakil, three times on his neck, once on his back and once in his abdomen but in his cross-examination he stated that he did not see the accused stabbing Mohd. Vakil. Counsel further submitted that in the first statement i.e. rukka nothing has been mentioned about the presence of PW-1 at the scene of crime. Further PW-1 was not able to state as to who all constituted the police party that was present at the time of recovery of the knife. Counsel further pointed out that PW-1 in his cross-examination stated that Beat C
