CRL.A. 518/2010 MOBIN & ANR ..... Appellants versus STATE & ANR ..... Respondents Through : Mr. Imtiaz Ahmed, counsel for the appellants in Crl.Mr. M.N. Dudeja, APP on behalf of the State CORAM:The appellants Mobin and Moin impugn a judgment and order of Learned Ms. Mamta Tayal, Additional Sessions Judge, Dwarka Court, Delhi, dated 21.02.2010 in SC No. 64/ 2009, by which they were convicted of the offence punishable under Sections 302/34 IPC.They were sentenced to undergo life imprisonment and fined a sum of `10,000 each.In default of payment of fine the convicts would further undergo simple imprisonment for 6 months each.For the offence under Section 323/34 IPC, they were further sentenced to undergo simple imprisonment Crl.A. Nos.142/2004 & 518/2010 Page 1 for three months each.Mohsin impugns an earlier judgment dated 02-1-2002, in the same Sessions case, by which he was convicted for the same offences, in respect of the same incident.It may be noticed that the prosecution took the matter to trial in two stages.Accused Moin and Mobin could not be arrested, and were declared proclaimed offenders.The Prosecution's story is that one Amir Ahmed used to reside in H. No. 109, Pocket- 8, Durga Park, Dabri, New Delhi, and his son Naeem used to reside at H. No. 120, in the same locality.One Lukman was a tenant in Naeem's House.Mobin, Moin, Mohsin, Rukshana, and Bashir (the accused) were also residents of the same colony.The accused and the family had requested Amir Ahmed to get the matter compromised, but he had refused, and this had led to animosity between the two families and the accused used to frequently threaten Amir Ahmed's family.The prosecution alleged that on 28.8.1998, at about 5.00 PM, Naeem Ahmed and his tenant Lukman had bought an asbestos sheet from the Masjid, to repair the leaking roof of their house, and were keeping it outside their house, when Mobin went to them asking why they had brought the sheet.On being countered by Naeem Ahmed, he threatened him and left the place.In a short while, just after a few minutes, he returned with his other family members- Rukshana, Bashir, Mohsin (all three convicts) and Yasin @ Asim (JCL).Moin had a churra in his hand and Mobin had an iron rod.Moin attacked Naeem Ahmed with the churra and caused a stab injury on his forehead.Mobin attacked Naeem Ahmed and his father Amir Ahmed with the iron rod.Rukshana, her husband Munna, and her brothers Mohsin and Asim kicked and punched Naeem Ahmed, his father, Amir Ahmed and his wife Shammi.Amir Ahmed was injured on his head, Crl.A. Nos.142/2004 & 518/2010 Page 2 face and other parts of his body and was bleeding profusely.He ran from the spot to make a call to the police, but fell down on the way.All the accused persons fled from the place of occurrence.The police were informed and the injured were taken to the hospital, where Amir Ahmed was declared brought dead.PW-5 Naeem Ahmed the complainant stated that on 28.08.1998, at about 05.00 PM., he had brought some cement sheets from a Masjid, to his house with the help of his tenant Mohd. Lukman (PW- 9), to repair of the roof.Mobin, who was also a resident of the Colony, went and inquired why he had bought cement sheets.He replied asking him why he was asking him about it.Mobin went away and returned with his brother Moin, Mohsin, Rukshana, Asim, and Bashir @ Munna.Mobin was carrying an iron rod and Moin had a churra with him.All of them attacked him, and then Mobin attacked him and his father with the iron rod.His father suffered an injury on his head.All this happened outside his house.They again caught hold of his father and attacked him with the rod and the churra.On hearing cries, his wife came out.She too was beaten by all of them and suffered injuries on her back.PW-5 was injured on his forehead and shoulder with the iron rod.The police arrived and they were taken to Safdarjung Hospital.His father had died at the spot due to injuries.The assailants fled from the spot.In cross examination, he correctly identified Mobin and Moin in Court.He also spoke about Anwar, the brother in law of the two accused, who had been arrested on charges of rape.He said that the two accused and their family members had asked his father Amir Ahmed, the deceased, to compromise the matter with their neighbour, (whose daughter, he had allegedly raped).But his father had refused, and this had led to them nursing a grudge against his father.PW-15 Shammi, the second eye-witness is the complainant's wife.08.1998, her husband had bought a concrete sheet from a mosque.Mobin @ Guddu saw the sheet at their house, objected to it, and started quarrelling with her husband at about 5.00 pm.Her father-in-law was also present there at that time.Then he left, but returned just a few minutes later with co-accused Moin and other members of his family, namely, Mohsin, Rukshana, Bashir, Munna and Asim.Mobin had an iron rod and Moin had a churra and they attacked her father in law, who sustained injuries on his head.They assaulted her husband and her as well.She said that two-three days before the incident, the accused's family members Crl.A. Nos.142/2004 & 518/2010 Page 5 sought the deceased's help, to arrive at a compromise with his neighbour, Panditji, whose daughter, Anwar, the brother-in-law of the two accused had allegedly raped.But he had refused, due to which they bore ill- will against them.In the cross- examination, she stated that she went to the immediate vicinity of the incident only after hearing the cries.She said that she was assaulted by Rukshana and the others, and could not remember who had actually hit her as they were all together.She stated that she was attacked by a wooden danda.PW-8 Mohd. Shamshad, a mason by profession, was, on the day of the incident, called by Naeem (PW-5), to install a concrete sheet at his house.He reached there at about 4.15 PM.He met Naeem and Lukman (PW-9).In his presence, the two accused Mobin and Moin came there, and asked Naeem and Lukman as to with whose permission, they had taken the concrete sheet from the Masjid.An altercation took place between them and in the meanwhile other family members of the accused came there armed with danda and Churri.Amir Ahmed, father of Naeem also came there.He was also attacked, and sustained serious injuries on his head and face.Charges were framed against the other accused, Ruksana, Mohsin, and Bashir.Yasin, being a juvenile, was referred to the Juvenile Justice Board.By judgment and order dated 4-1-2002, Ruksana and Bashir were acquitted of the charges of having committed the offence under Sections 302 IPC; they were convicted for the offences under Sections 323/34 IPC and given probation.Mohsin was however, convicted for the offence punishable under Section 302/34 IPC.Later, after arrest of the other accused, Moin and Mobin, they were sent to trial.The learned Additional Sessions Judge, by another judgment dated 20-01-2010, convicted them of the offences under Sections 302/323/34 IPC and sentenced them inter alia, to undergo life imprisonment, besides other prison terms and fine.Rukshana, Mohsin, Bashir and Yasin were arrested immediately and sent for trial.A separate trial was initiated against the Juvenile Yasin and he was acquitted by the juvenile board.Mobin and Moin evaded arrest for five years.They were declared PO, but were subsequently arrested, charge sheeted and their case was committed to Sessions.A separate trial SC No. 64/09 was initiated against them.They were charged under Sections 302/323/ 34 IPC, they pleaded not guilty and claimed trial.Over the course of the trial 19 witnesses were produced by the Prosecution.The Trial Court relied on testimonies of the two injured witnesses PW-5 Naeem Ahmed and PW-15 on the basis that not only were they injured witnesses, (which added a special credence to their testimonies as it conclusively proved that they were eye-witnesses to the entire incident, as per the Supreme Court in Jarnail Singh v. State of Punjab (SC) 2009 (4) R.C.R Criminal 253); but also because they had been consistent in their statements, and had withstood the rigours of cross examination.They had deposed in the trial of Rukshana, Mohsin and Munna, and had been consistent there as well.He had also deposed that his clothes had been blood-stained.It was argued that the Trial Court failed to consider the fact that in the trial against Mohsin, Rukshana and Bashir, PW-5 had deposed that Mohsin had been holding the churra, but in this trial he had deposed that Moin had been wielding the churra.The Trial Court, says counsel, failed to appreciate the fact that PW-5 had stolen the asbestos sheet from the mosque, and hence an angry mob from the mosque had attacked PW-5, PW-15 and the deceased, and that when Amir Ahmed ran away to make a call to the police, he slipped on the stairs and hurt himself.This aspect was material during the trial.It was argued that the Trial Court had failed to appreciate that Mobin had been in Aligarh at the time of the incident as was deposed by DW-1, a police officer who stated that he had come to the Police Station to report that this purse was missing.It was argued that there were three eyewitnesses, who had spoken about the attack, and the surrounding facts, during the investigation.The deceased's son and daughter in law too supported this version.This was backed by the evidence of PW-9; and so, the accused's effort to discredit such ocular testimonies was unsuccessful.The attack on the deceased, as well as the injured eyewitnesses was corroborated by independent documentary evidence.It was next submitted that though the incident was the result of a quarrel, which took place between the deceased and the Appellants, the further circumstance that the latter used dangerous or deadly weapons, proved their intention which was to murder the deceased.The police were informed; they arrived at the scene and took the injured to the hospital.He made a statement to the Police.He also stated that Mobin had an iron rod and Mohsin had a churra.In his cross examination, he stated that his statement was recorded after fifteen daysPW-9 Mohd. Lukman was a tenant in the complainant's (PW-5's) house.At 4/4.15 PM, Naeem and PW-9 had bought a cement sheet from a nearby Masjid and placed it outside their house.Naeem had also called a mason to install the sheets.When they were fixing the sheets Mobin came; there was a verbal dispute between him and Amir Ahmed (the deceased, father of Naeem).Supporters from both sides started pelting stones at each other.Amir Ahmed sustained injuries on his head, Naeem sustained injuries above his eye.By this time, the police arrived and Naeem and Amir Ahmed were taken to the hospital.This witness could not recall the weapons carried by Mobin and the other accused persons.He was cross- examined as he partly resiled from his Section 161 statement.He was questioned on whether Mobin had been carrying an iron rod and whether Naeem and Amir Ahmed, (the deceased) had been attacked with a knife and a rod.He said he could not remember such details as the incident had taken place about eleven years back.But he did state that on the day of the incident, he had told the police whatever he had seen.It is settled law that where the prosecution case is based on the evidence of eye witnesses, the existence or non-existence of motive, sufficiency, or its insufficiency will not play Crl.A. Nos.142/2004 & 518/2010 Page 6 a major role as it would, in a case which is based on circumstantial evidence.If the prosecution is able to prove its case on motive it will be a corroborative piece of evidence.But even if the prosecution has not been able to prove its case on motive, that will not be a ground to throw overboard the prosecution case because merits of the prosecution will have to be decided on the basis of the merits of the evidence of such witnesses ((1993 Cri LJ 1656)Jarnail Singh v. State of Haryana).Moin reached there, and a quarrel between him and the deceased (father of PW-5) took place.Moin went away, and reached the spot, this time with other accused.A fight or altercation appears to have occurred, in the course of which the deceased received fatal injuries.This is corroborated by PW-8, the mason called in to fix the asbestos sheet, and PW-15, the deceased's daughter in law.The use of a churri or sharp edged weapon, and also of a danda (stick) is proved independently, through the testimony of PW-11, the postmortem doctor, who in his report listed five injuries on the deceased.Interestingly, PW-9 also mentioned that when the attack took place, both sides were attacking each other and pelting stones.The injuries on the eyewitnesses Naeem and others was corroborated by the MLCs placed on the record.The testimony of Naeem (PW-5) is that Mobin had an iron rod; Moin had a churra (dagger).However, the testimonies of PW-8 and PW-9, the other two eyewitness, are unclear as to who was armed with what weapon.The injuries - testified to by PW-16, which caused the death of Amir Ahmed, were the result of rod, or danda blows (Injury Nos. 2 and 5).The doctor also stated that Injury Nos. 3 and 4 could have been caused by a fall on the ground.The question, in these circumstances, is as to what was the intention of the accused, and whether all of them would be guilty of the same offence.It would now be necessary to consider whether the prosecution, which has successfully proved the presence and identity of the Appellants before the court, was able to prove that they had the common intention with the aggressor, so as to be criminally responsible Crl.A. Nos.142/2004 & 518/2010 Page 7 for murder.A lacerated wound on the left side of scalp was found.The appellant went to him (the deceased) to question as to why he had transferred his lands.The appellants on bail are directed to surrender to the Trial Court and undergo remainder of their sentences.The matter Crl.

Sections cited: Section 34 in The Indian Penal Code, Section 302 in The Indian Penal Code, Section 323 in The Indian Penal Code, Section 304 in The Indian Penal Code, Section 326 in The Indian Penal Code, Section 300 in The Indian Penal Code, Section 161 in The Indian Penal Code