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2018 Supreme(Del) 1284
IN THE HIGH COURT OF DELHI AT NEW DELHI
S. MURALIDHAR, I.S. MEHTA, JJ.
MOHD.SHAHID & ORS. - Appellant
Versus
THE STATE & ORS. - Respondent
CRL.A. 370, 404, 507, 529, 716 of 2002
Decided On : 24-05-2018
For the Appellant :Mr. Sumer Kumar Sethi, Advocate.
For the Respondent: Mr Hirein Sharma, APP.
Headnote:
Penal Code, 1860 - Section 302, 307, 506, 34 - Murder - Independent witness - Recovery of knife - Scope of - Witness turned hostile - Nothing much has been elicited from the testimony of police witnesses to discredit their testimony with regard to the recoveries made - Knife recovered did not show the presence of blood - This will not exonerate A-2 since his presence and role have been clearly spoken about by the eye witnesses whose testimonies are consistent - A-2 and A-5 were shown as having participated in the crime - Their presence are given a number of stab injuries caused to the deceased - A-3 deserves acquittal.
Penal Code, 1860 - Section 302, 307, 506, 34 - Murder - Grievous hurt - Motive - Commission of crime - Direct evidence with three eye witnesses speaking consistently - Motive by itself is not as significant a factor as it would be in a case of circumstantial evidence - Motive for involvement of A-1 and A-4 in the commission of crime has been explained - Previous enmity is a factor that will require the testimony of the PWs cautiously and not discard them altogether - Mere existence of enmity when it is alleged as a motive for the commission of the crime cannot be made a basis to discard or reject the testimony of the eye-witnesses.
Penal Code, 1860 - Section 302, 307, 506, 34 - Murder - Recovery - Proof of - Recovery of the blood stained clothes and dagger at the instance of A-1 and A-2 on 30th April, 1997 has sought to be proved by the police witnesses - Nothing was recovered at the instance of A-3 - His presence has not been confirmed.
S. MURALIDHAR, J.
1. These five appeals are directed against the judgment dated 2nd April, 2002 passed by the Additional Sessions Judge, New Delhi (“ASJ”) in Sessions Case No.52/1998 arising out of FIR No.229/1997 registered at Police Station (“PS”) Mehrauli convicting Rafiq Ahmed @ Chottu (Accused No.1 –“A-1”) (Appellant in Crl.A.529/2002); Bijender (“A-2”) (Appellant in Crl. A.404/2002); Mohd. Shahid (“A-3”) (Appellant in Crl. A.370/2002); Mohd. Hanif @ Monti (“A-4”) (Appellant in Crl. A.507/2002); and Hashim Siddiqui (“A-5”) (Appellant in Crl. A.716/2002) for the offences under Sections 302 read with Section 34 of the Indian Penal Code (“IPC”); Section 307 read with Section 34 IPC and Section 506 read with Section 34 IPC.
2. The appeals are also directed against the order on sentence dated 5th April, 2002 whereby each of the Appellants was sentenced by the trial Court as under:
(i) For the offence under Section 302/34 IPC, to undergo imprisonment for life with a fine of Rs.500/- each; and in default of payment of fine to undergo rigorous imprisonment (“RI”) for six months.
(ii) For the offence under Section 307/34 IPC, to undergo RI for four years with a fine of Rs.500/- each; and in default of payment of fine to undergo RI for three months.
(iii) For the offence under Section 506/34 IPC, to undergo RI for a period of two years. All sentences were directed to run concurrently.
Charges
3. The Appellants along with Shakil (proclaimed offender) were charged with committing the murder of Dinesh (“deceased”) on 28th April, 1997 at around 1.30 pm near the Kalra Flour Mill, Gali Sabzi Mandi, Mehrauli. By the impugned judgment, three of the accused, i.e., A-6, A-7 and A-8, were acquitted of the said offence.
4. The further charge was that all the Appellants along with a proclaimed offender (PO’) Shakil in furtherance of their common intention caused grievous injuries to Puneet (PW-2) with a sharp object and thereby committing an offence punishable under Section 307 read with Section 34 IPC.
5. The third charge was that in furtherance of their common intention, the Appellants along with PO Shakil criminally intimidated PW-2 and Ashok Kumar (PW-6) with injuries and with intention to cause alarm of dire consequences to these persons thereby committing an offence punishable under Section 506/34 IPC.
The incident
6. The criminal justice process was set in motion with PW-2 reaching PS Mehrauli and meeting Sub Inspector (“SI”) R.P. Sharma (PW-17) at the front gate of the PS and informing him that his friend (deceased) had been stabbed with knives. This fact was mentioned in the rukka (Ex.PW2/A).
7. On receiving the above information, PW-17 along with Constable Vijender (PW-23) left for the spot along with PW-2, who was himself in an injured condition. On reaching the spot, they found the deceased in an unconscious condition with knife injuries. He along with PW-2 was taken by PW-23 in a three-wheeler scooter rickshaw (“TSR”) to the All India Institute of Medical Sciences (“AIIMS”). Meanwhile, PW-17 stayed back at the spot.
8. There were two MLCs prepared at AIIMS – one concerning the deceased (Ex.PW24/A) and the other concerning PW-2 (Ex.PW24/B). The MLC of the deceased showed that he was brought there by PW-23 and brother Suresh Mehta (PW-1) at 2:12 pm. It was recorded there that he was brought dead.
9. As far as the MLC of PW-2 was concerned, it showed that he was brought to AIIMS by PW-23 at 2:14 pm. He was examined by Dr. N. Mohan, whose handwriting was later identified at the trial by Dr. S Roy (PW-24). It was noted in the MLC: “allegedly stabbed by some person one hour ago”. There were two cut injuries noted in the MLC. The first was a 4.5 cm injury in the palm, which was a linear cut started just below the wrist line. The second was a horizontal clear cut over the dorsal aspect of the left index finger above the “MP Joint”. The nature of injuries were noted as “grievous”.
10. Meanwhile at 2.02 pm, another information recorded as DD No.1
