Crl.Appeals 576/01 & 590/01 Page 1 of 40 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 08th October, 2009 Judgment Delivered on: 05th November, 2009 + CRL.APPEAL NO.576/2001 NAUSHAD & ORS. ………..Appellants Through: Mr.S.Khan, Mr.Ajay Sharma and Mr.Sunil Goyal, Advocates. versus STATE (NCT OF DELHI) ……..…Respondent Through: Mr.M.N.Dudeja, A.P.P. CRL.APPEAL NO.590/2001 MOHD. IRFAN ………..Appellant Through: Mr.Bahar U. Barqi, Advocate. versus STATE (NCT OF DELHI) ……..…Respondent Through: Mr.M.N.Dudeja, A.P.P. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes. 2. To be referred to the Reporter or not? Yes. 3. Whether the judgment should be reported in the Digest? Yes. PRADEEP NANDRAJOG, J. 1. Vide impugned judgment and order dated 06.08.2001, the appellants, Mohd.Irfan, Naushad Ahmad, Shamshad Ahmad and Ibban Ali have been convicted for the offences (two) of having murdered Mohd.Qayyum and Crl.Appeals 576/01 & 590/01 Page 2 of 40 Mohd.Furkan, for which offences they have been sentenced to undergo imprisonment for life and pay a fine in sum of Rs.2,000/-; in default to undergo RI for 3 months. Additionally, the appellants have also been convicted for the offence of having attempted to murder Mohd.Farman, for which offence they have been sentenced to undergo RI for 4 years and pay a fine in sum of Rs.1,000/-; in default to undergo RI for 1 month. 2. The case of the prosecution is that criminal law was set into motion when at around 6.17 P.M. on 09.10.1988, DD entry No.14A, Ex.PW-23/B, was recorded by ASI Ram Singh PW- 23, to the effect that an unknown person has informed over the telephone that a man who has been stabbed with knife is lying near Chauhan Bangar Pulia. 3. On receipt of the information contained in the afore- noted DD entry, HC Balraj Singh PW-16 and HC Swaran Singh PW-24, reached Chauhan Bangar Pulia, where they saw Mohd. Qayyum, lying injured on the road. HC Balraj Singh and HC Swaran Singh removed Mohd. Qayyum in a PCR van to GTB Hospital. 4. In the meantime, Inspector Harshvardhan PW-26, also reached Chauhan Bangar Pulia where he learnt that Mohd. Qayyum has been removed to GTB Hospital and that another incident of stabbing had taken place at the premises bearing Crl.Appeals 576/01 & 590/01 Page 3 of 40 Municipal No.A/14/9, Chauhan Bangar. On learning about the same, Inspector Harshvardhan proceeded to the house in question where he learnt that two persons; namely, Mohd. Furkan and Mohd.Farman have been stabbed by the same persons who have injured Mohd. Qayyum and that Furkan and Farman have been removed to Swami Dayanand Hospital. 5. Inspector Harshvardhan proceeded to GTB Hospital, where he learnt that Mohd. Qayyum has been declared brought dead as noted in the MLC Ex.PW-25/A of Mohd. Qayyum. After collecting the MLC Ex.PW-25/A of Mohd. Qayyum, Inspector Harshvardhan went to Swami Dayanand Hospital where he learnt that at around 6.40 P.M. the doctor has declared Mohd.Furkan to be fit to give a statement, as noted in the MLC Ex.PW-1/C of Mohd. Furkan. Accordingly, Inspector Harshvardhan recorded the statement Ex.PW-26/B of Mohd. Furkan. It may be noted here that Inspector Harshvardhan completed recording the statement Ex.PW-26/B of Mohd. Furkan at 07.00 P.M. on 09.10.1988, as evident from the endorsement Ex.PW-1/D made by Dr.Suresh Kumar PW-1, on the said statement. It is the claim of the prosecution that Inspector Harshvardhan recorded the statement Ex.PW-26/B of Mohd. Furkan in the presence of Dr.Suresh Kumar PW-1. It is further the claim of the prosecution that Mohd. Furkan affixed his thumb impressions on his statement Ex.PW-26/B. Crl.Appeals 576/01 & 590/01 Page 4 of 40 6. In his statement, Ex.PW-26/B, Mohd. Furkan stated that today evening he was making tea at his shop when all of a sudden Irfan, Naushad, Shamshad and Ibban came there and caught hold of him. Irfan, Ibban and Shamshad continued to hold him while Naushad gave knife blows on his chest. His brother Mohd. Furkan and his father freed him from the clutches of the said persons. The said persons also inflicted knife injuries on the person of his brother. That yesterday, a quarrel had taken place between them and their neighbour Hanif and that the persons who attacked him are the family members of Hanif. 7. After conducting the medical examination of Mohd. Furkan, the doctor handed over the clothes of Mohd. Qayyum to Inspector Harshvardhan who seized the same vide memo Ex.PW- 26/C. 8. Thereafter Inspector Harshvardhan recorded the statement Ex.PW-4/A of Mohd. Farman and made an endorsement Ex.PW-26/A thereon, and at around 07.45 P.M. forwarded the same through Const.Bhagwati Prasad for registration of an FIR. Const.Bhagwati Prasad took Ex.PW-26/A to the police station and handed over the same to SI Kadam Singh PW-14, who recorded the FIR No.347/1988, Ex.PW-14/A. 9. In his statement Ex.PW-4/A, Mohd. Farman stated that he along with his family resides in premises bearing Crl.Appeals 576/01 & 590/01 Page 5 of 40 Municipal No.A-14/9, Chauhan Bangar, New Delhi as also runs a tea shop in the said premises. Yesterday a quarrel had taken place between them and their neighbour Hanif, and with the intervention of the neighbours the quarrel was quenched. A settlement agreement was entered into between them and Hanif but the appellants who are the sons of Hanif were not happy with the said agreement. Today, at around 5.30 P.M. he along with his brother Furkan and servant Noorudin was present in his shop when all of a sudden the appellants came there. Naushad was having a blood stained knife in his hand and that the clothes of Naushad and Shamshad were stained with blood. The appellants caught hold of Furkan and pulled him out from the shop. Thereafter Irfan said to his brother Furkan that they have killed his friend Qayyum with the said knife and now it is his turn. On hearing the same Furkan got scared and started running towards their house but Naushad inflicted several knife blows on the person of Furkan. Naushad also gave a knife blow on his head when he tried to save Furkan. Thereafter the appellants fled from there. When he and his brother were being removed to hospital he saw that their friend Mohd. Qayyum was smeared with blood and lying at a pulia near their house. Today Qayyum had counselled Naushad and his brothers to not to quarrel with them. Crl.Appeals 576/01 & 590/01 Page 6 of 40 10. After collecting the MLCs of Mohd. Furkan and Mohd. Farman, Inspector Harshvardhan PW-26, proceeded to Chauhan Bangar pulia i.e. the place of the murder of Mohd. Furkan where he prepared the site plan Ex.PW-26/A. Thereafter Inspector Harshvardhan went to the premises bearing Municipal No.A- 14/9, Chauhan Bangar i.e. the place where Mohd. Furkan and Mohd. Farman were attacked and prepared the site plan Ex.26/E. Since the ground at the said spots appeared to be stained with blood, Inspector Harshvardhan lifted a portion of the grounds in question and seized the same vide memos Ex.PW-2/A and Ex.PW-3/A. It is the claim of the prosecution that Mohd.Zaleel PW-2 and Mohd. Israr PW-3, witnessed the preparation of the seizure memos Ex.PW-2/A and Ex.PW-3/A respectively. 11. In the meantime, Mohd. Furkan was shifted to Jai Prakash Narayan Hospital where he succumbed to his injuries at 12.30 A.M. on 10.10.1988. The body of Mohd. Furkan was sent to the mortuary at Maulana Azad Medical College where Dr.P.C.Dixit PW-18, conducted the post-mortem at about 2.30 P.M. on 10.10.1988 and gave his report Ex.PW-18/A, which records following 16 external ante-mortem injuries on the person of Mohd. Furkan:- “1. Abrasion 1.5 x 1 cm over deep of right shoulder. Crl.Appeals 576/01 & 590/01 Page 7 of 40 2. Two multiple abrasion upper 3 cms and lower one 2.5 cms semi circular bite mark by teeth over middle and outer aspect of right arm. 3. Incised wound 3.5 x 1.1 x bone deep on inner back aspect of rt forearm, 2 cms above the wrist joint. 4. Abrasion 2.5 x 1 cms over medial aspect of rt forearm near the wrist joint. 5. Abrasion 0.8 x 0.5 cm over medial aspect of rt elbow joint. 6. Incised wound 2 x 0.4 cm x bone deep over inferior lateral aspect of rt knee joint. 7. Stitched incised wound 5.5 cms over inner aspect of left wrist joint and upper part of palm. 8. Incised wound 2 x 0.8 cm x 0.3 cm between lt thumb and fore finger. 9. Incised wound 1 x 0.8 x 0.3 cm over the inner aspect of middle phalanx of left little finger. 10. Incised stitched wound 9 cm over outer aspect of left forearm and elbow. 11. Stitched incised wound 6 cm vertically placed in front of left shoulder joint region and 3 cm below the tip of acronion process. 12. Stitched incised stab wound 2 cm over the left lower chest obliquely placed, 7 cm below and lateral to left nipple and 9 cms below anterior axillary fold. On removing the stitches the margins were regular, both angles were acute. The wound was going upwards, backwards and medially entering the chest cavity. The lower angle was 112 cms above the left heel. 13. Stitched incised stab wound 4.5 cm over left side lower chest, obliquely placed, 6 cms below and lateral to left nipple, 8 cm left to mid line and 2 cms medial to injury no.12. On removing the stitches the margins were regular. Both angles were acute. The wound was going downwards, medially and backward to enter into chest cavity and then abdomen cavity. The lower angle was 108 cms above the left heel. 14. Stitched incised stab wound 2.5 cm over left iliac fossa, obliquely placed 2 cms and left to mid line and 6.5 cms lateral and below to the umbilical. On Crl.Appeals 576/01 & 590/01 Page 8 of 40 removing the stitches the margins were regular. Both angles were acute. The wound was going upward, backwards and medially to enter the abdominal cavity. The lower angle was 87 cms above the left heel. 15. Incised stitched wound (Operative wound) 42 cms L shaped starting from symphasis pubis upto xyphisternum and then towards left below the nipple upto interior axillary fold. 16. Incised stab wound 2.5 x 1 cm over middle back near the midline. The lower angle was on the midline and the upper angle 1.5 cm right to midline. The upper angle is 16 cms below and medial to inferior angle of left scapula. The wound was spindle shaped. Both the angles were acute and margins were regular. The inferior angle was 109 cm above the right heel.” 12. He opined that the cause of the death of Mohd. Furkan was haemorrhage and shock consequent upon stab injuries to lung, diaphragm, stomach and intestine. Injuries nos.1, 4 and 5 found on the person of Mohd. Furkan could have been caused by a blunt force whereas injury no.2 was caused by teeth bite. Injuries nos.3, 6, 7, 8, 9 10 and 11 could have been caused by single or doubled edged sharp weapon whereas injuries 12, 13, 14 and 16 were most probably caused by doubled edged weapon. Injury no.15 was caused by operative procedure. Injuries nos.12, 13 and 14 found on person of Mohd Furkan were sufficient to cause his death in the ordinary course of nature. 13. Since Mohd.Qayyum was brought dead at the hospital, his body was sent to the mortuary of DDU Hospital where Dr.L.K.Barua PW-19, conducted the post-mortem at about 4.00 P.M. on 10.10.1988 and gave his report Ex.PW-19/A, which Crl.Appeals 576/01 & 590/01 Page 9 of 40 records following 28 external ante-mortem injuries on the person of Mohd. Qayyum:- “1. Abrasion size 3 cm x 1 cm on left forehead 1 cm above the left eyebrow. 2. Abrasion size 3 cm x 0.5 cm on bridge of nose placed vertically. 3. Abrasion on tip of nose size 1 cm x 0.5 cm. 4. Incised and lacerated wound on medial aspect of rt thumb & avulsion (illegible) 3.5 cm x 1 cm extending to the middle phalynx. 5. Abrasion on post aspect of rt elbow of size 2 cm x 1 cm. 6. Incised wound on rt upper chest placed vertically 2 cm above and medial to the rt nipple. The size of wound is 3 cm x 2 cm x ?. The lower end is 9 cm lateral to mid line. The lower end of the wound is acute. 7. Incised wound on rt side of chest placed obliquely vertical. The lower inner end is 2.5 cm rt to the mid line. Size of wound is 3 cm x 1.5 cm x ? Both the ends are acute and the upper and outer end is tailing. The upper end of wound is 10 cm below the mid clevicular line (illegible) 8. Incised wound placed almost transversely on the lower part of chest of size 10.5 cm x 5 cm x ? A part of .....illegible is seen coming out of the wound. The medial end is touching the mid line on 16.5 cm below the stereo clevicular joint. 9. Incised wound placed oblique/vertically on left epigastric area of size 5 cm x 3 cm x abdominal cavity deep. It has not cut any of the abdominal tissues. This wound is separated from injury no.8 .....illegible 10. Incised wound on rt lower chest placed transversely placed 2.5 cm above the injury no.9 of size 2.5 cm x 1 cm x ....illegible Crl.Appeals 576/01 & 590/01 Page 10 of 40 11. Incised wound on left upper chest placed obliquely, the lower inner end is 4 cm lateral to mid line. Size of wound is 6 cm x 1 cm x ? The wound is 22 cm below lt mid clevicular line. 12. Incised wound placed obliquely on left upper part of chest. The upper end is 2 cm below the mid clevicular line and 6 cm lateral to mid line, size of wound is 2 cm x 1.3 cm x ? 13. Incised wound on left upper part of chest placed obliquely. The lower end is placed medially and 13 cm lateral to mid line, size of wound 4 cm x 1.5 cm x middle deep. 14. Incised wound placed vertically on left mid axilly line 13 cm below the anterior axillary fold. Size of wound is 3 cm x 1 cm x muscle deep. This wound is 2 cm lateral to injury no. 13. 15. Incised wound placed vertically on left ant axilly fold. Size 3 cm x 1 cm x muscle deep. 16. Incised wound placed slightly obliquely on cut port axillay fold 8 cm below in left arm of size 2 cm x 1 cm x ? 17. Incised wound placed almost transversely 4.5 cm below the left arm of size 5 cm x 2 cm x ? 18. Incised wound on left side middle of abdomen placed transversely, the medial end is 5 cm left to midline.....Illegible 19. Incised wound placed vertically on lateral aspect of left arm size 9 cm x 1 cm x ?. The lower end of 2.5 cm....Illegible 20. Incised wound on vertical aspect of left arm placed vertically of size 2.5 cm x 1 cm x ?. .....Illegible 21. Incised wound lateral aspect of left knee placed vertically on lateral aspect of rt knee of size 8 cm x 0.5 cm x muscle deep 22. Incised wound placed vertically on lateral aspect of rt knee of size 8 cm x 0.5 cm x muscle deep Crl.Appeals 576/01 & 590/01 Page 11 of 40 23. Incised wound on rt side of back of chest 21 cm below the rap of neck and 3 cm lateral to midline of size 1.5 cm x 1 cm x muscle deep. The medial end is tailed and transversely placed. 24. Incised wound on rt side of back of abdomen placed transversely 17 cm below the injury no. 23. Size of wound is 4 cm x 1 cm x muscle deep 25. One linear scratch on back of lower abdomen placed transversely 4 cm below the injury no.24. Size is 8 cm x 0.2 cm 26. Incised wound on rt side of abdominal wall placed transversely size 5 cm x 2.5 cm x muscle deep 27. Incised wound placed transversely on rt side abdominal wall placed almost horizontal to injury no.26. This injury is 3 cm below the injury no.26. Size of wound 4.5 cm x 1.5 cm x muscle deep 28. Incised wound on rt buttock 3 cm above the rt .... illegible fold of size 2.5 cm x 1 cm x muscle deep” 14. The doctor opined that the cause of death of Mohd. Qayyum was shock and haemorrhage resulting from the ante- mortem injuries found on his person. Injuries nos. 8, 11, 16 and 17 found on the person of Mohd. Qayyum were individually sufficient to cause his death in the ordinary course of nature. 15. After the post-mortem, the doctor handed over the clothes and blood sample of Mohd. Qayyum on a gauze to Const.Balraj Singh PW-16, who in turn handed over the same to Inspector Harshvardhan PW-26, as recorded in the memo Ex.PW- 16/A. 16. Since Mohd. Furkan and Mohd. Farman had indicted the appellants as the assailants, the police set out to apprehend Crl.Appeals 576/01 & 590/01 Page 12 of 40 them. On the basis of a secret information, a police party consisting of Inspector Harshvardhan PW-26, HC Iqbal Ahmad PW-17 and HC Bhagwati Prasad PW-22, apprehended appellant Irfan at his residence on 13.10.1988. On being interrogated by Inspector Harshvardhan PW-26, in the presence of HC Iqbal Ahmad PW-17 and HC Bhagwati Prasad PW-22, appellant Irfan made a disclosure statement Ex.PW-22/A (Ex.PW-26/A) wherein he stated that he can get recover the clothes worn by him at the time of the occurrence. Pursuant thereto, he led the aforesaid police officers to the bushes near a fish pond and got recovered a safari suit from a gunny bag lying hidden in the said bushes. The said safari suit was seized vide memo Ex.PW-17/A. 17. Thereafter appellant Irfan led the aforesaid officers to a slum dwelling wherefrom the other appellants were arrested. On being interrogated by Inspector Harshvardhan PW-26, in the presence of HC Iqbal Ahmad PW-17 and HC Bhagwati Prasad PW-22, appellant Naushad made a disclosure statement Ex.PW- 22/B wherein he stated that he can get recover the clothes worn by him at the time of the occurrence as also the knife used by him for stabbing Mohd. Qayyum and Mohd. Furkan. Pursuant thereto, he led the aforesaid police officers to the bushes near Yamuna bridge and pointed out a newspaper lying hidden in the said bushes. On checking the newspaper, a knife and shirt were found wrapped therein. The said knife and shirt were seized vide Crl.Appeals 576/01 & 590/01 Page 13 of 40 memo Ex.PW-17/F. Inspector Harshvardhan PW-26, prepared the sketch of the said knife; being Ex.PW-17/H. 18. On the same day i.e. 13.10.1988 HC Iqbal Ahmad PW- 17, took appellants Mohd. Irfan and Naushad to Swami Dayanand Hospital for their medical examination. It be noted here that the MLC Ex.PW-1/A of Naushad records that 4 injuries were found on his person and that the MLC Ex.PW-1/B of appellant Mohd. Irfan records that 6 injuries were found on his person. After conducting the medical examination of appellants Mohd. Irfan and Naushad, the doctor handed over their blood samples to HC Iqbal Ahmad PW-17, who in turn handed over the same to Inspector Harshvardhan PW-26, as recorded in the memo Ex.PW-17/G. 19. On 04.01.1989 Inspector Dalvinder Singh PW-12, draftsman, prepared the site plans to scale of the place of the murder of Mohd. Qayyum and the place where Mohd. Furkan and Mohd. Farman were attacked; being Ex.PW-12/A and Ex.PW- 12/B. 20. The seized materials; earth lifted from the place of the murder of Mohd. Qayyum and the place where Mohd. Furkan and Mohd. Farman were attacked; the clothes of Mohd. Furkan; the clothes and the blood sample of Mohd. Qayyum; the knife and shirt recovered at the instance of appellant Naushad; the clothes and gunny bag recovered at the instance of appellant Crl.Appeals 576/01 & 590/01 Page 14 of 40 Mohd. Irfan and the blood samples of Mohd. Qayyum and Mohd. Irfan were sent to CFSL for serological examination. 21. Vide CFSL report Ex.PW-21/J it was opined that blood was detected on the clothes of Mohd. Qayyum and Mohd. Furkan; the earth lifted from the place of the murder of Mohd. Qayyum and the place where Mohd. Furkan and Mohd. Farman were attacked; knife and shirt recovered at the instance of appellant Naushad and the clothes recovered at the instance of appellant Mohd. Ifran. Vide CFSL report Ex.PW-21/K it was opined that the blood detected on the earth lifted from the place of the murder of Mohd. Qayyum and the place where Mohd. Furkan and Mohd. Farman were attacked; the clothes of Mohd Qayyum and Mohd Furkan; the knife and shirt recovered at the instance of appellant Naushad and the shirt recovered at the instance of appellant Mohd. Irfan was having O group. The report further opined that the blood group of Mohd Qayyum was O and that no opinion could be given about the group of blood sample of appellants Mohd. Irfan and Naushad as the same had putrefied. 22. During the course of the investigation, the police officers recorded the statements of Mohd Zaleel PW-2, Layeeq Ahmad PW-7 and Mohd. Chand PW-8, under Section 161 Cr.P.C. It be noted here that Mohd. Zaleel and Layeeq Ahmad stated in their respective statements under Section 161 Cr.P.C. that they Crl.Appeals 576/01 & 590/01 Page 15 of 40 had witnessed appellants Naushad and Irfan murdering the deceased whereas Mohd Chand, the father of Mohd Furkan and Mohd Farman, stated that he had witnessed the appellants attacking his sons Mohd Furkan and Mohd Farman. 23. Armed with the aforesaid materials, a charge sheet was filed against the appellants. Following charges were framed against the appellants:- S. No. Charge Offence 1. Section 302 read with Causing death of Mohd. Section 34 IPC Qayyum 2. Section 302 read with Causing death of Mohd. Section 34 IPC Furkan 3. Section 307 read with Attempting to murder Section 34 IPC Mohd. Farman 24. At the trial, the prosecution examined 26 witnesses. We need not note the testimony of various police officers for the reason they have narrated the facts noted herein above by us pertaining to the seizures effected, the arrest of the appellants, the disclosure statements made by the appellants and the recoveries effected pursuant to the said disclosure statements. 25. Dr.Suresh Kumar PW-1, deposed that he had prepared the MLCs Ex.PW-1/A, Ex.PW-1/B and Ex.PW-1/C of appellants Naushad, Mohd. Irfan and Mohd. Furkan; that the statement Ex.PW-26/B of Mohd. Furkan was recorded in his presence and that the endorsement Ex.PW-1/D on the statement Crl.Appeals 576/01 & 590/01 Page 16 of 40 Ex.PW-26/B of Mohd. Furkan was made by him. Dr.R.K.Nagar PW-25, deposed that he had prepared the MLC Ex.PW-25/A of Mohd. Qayyum. (It may be noted here that the prosecution did not prove the MLC of Mohd Farman) 26. Mohd Zaleel PW-2 and Layeeq Ahmad PW-7, turned hostile and did not support the case of the prosecution that they had witnessed appellants Naushad and Irfam murdering the deceased. They denied having made any statement to the police in said regard. Mohd Chand PW-8, the father of Mohd. Furkan and Mohd. Farman also turned hostile and did not support the case of the prosecution that he had witnessed the appellants attacking his sons Mohd. Furkan and Mohd. Farman. He further deposed that Mohd. Furkan used to sign in Urdu language and never used to put his thumb impressions on any document. Mohd. Jeeshan PW-11, the brother of Mohd. Furkan and Mohd. Farman, deposed that there was no dispute between his family