Crl. A. 152/2004 Page 1 of 37 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on 13th April, 2009. + + CRL. Appeal No.152/2004 # ISHTKAR & ANR ..... Appellant Through : Mr. K.B. Andley, Sr. Adv. with Mr. M.L. Yadav and Mr. C.L. Dhawan, Advocate for the petitioners Versus STATE OF DELHI .... Respondents Through : Mr. Sunil Sharma, APP for the State. CORAM: HON'BLE MR. JUSTICE B.N. CHATURVEDI HON'BLE MR. JUSTICE G.S.SISTANI 1. Whether 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 G.S. SISTANI, J. 1. This appeal has been filed against the Judgment dated 24.01.2004 and the Order on Sentence dated 29.01.2004, passed by the learned Additional Sessions Judge, Delhi in the Session's case No. 74/2000, FIR No. 103/2000 of Police Station Moti Nagar. The Trial Court had held Ishtkhar, s/o Mohd. Hussain and Miraj @ Mehraj s/o Mohd. Daud, guilty of the offence under section 302/34 of the Indian Penal Code, 1860 (hereinafter, IPC) and were sentenced to Rigorous Imprisonment (hereinafter, RI) for life and a fine of Rs. 10,000/- under section 302/34 of the IPC. In default of the payment of fine, the appellants were directed to Crl. A. 152/2004 Page 2 of 37 further undergo RI for a period of one (1) year. The appellants were also sentenced to RI for a period of five years and a fine of Rs. 5,000/- under sections 27/54/59 of the Arms Act. In default whereof the appellants were to undergo a further RI for a period of six months. Appellant Miraj was further sentenced to RI for a period of three years and fine of Rs. 5,000/- under section 25 of the Arms Act. In default whereof, the appellant was directed to undergo RI for a further period of six months. All the sentences were to run concurrently and the period already undergone by the appellants during the trial was to be set off under section 428 of the Code of Criminal Procedure, 1973 (hereinafter, CrPC). 2. The brief facts of the case as noticed by the Learned Trial Court are. On 08.03.2000 at about 8:00 PM, opposite Jhuggi No. 482, Rakhi Market under Zakhira Flyover and within the jurisdiction of PS Moti Nagar, the appellants, namely, Ishtkhar; and Miraj @ Mehraj in furtherance of their common intention alongwith their associates namely Mohd. Ladoo @ Nishad; Chottu @ Sadar E Alam; and Irfan (since Proclaimed Offenders) committed murder of Rattan Lal s/o Sh. Ram Lakhan by causing injuries on his person with knives. On the statement of Smt. Munni Devi (mother of the deceased) a case was registered under section 302/34 of the IPC. 3. The case was investigated by Gurdip Singh, Inspector. During investigation the IO got the scene of the crime photographed and a site plan was prepared at the instance of Smt. Meena Devi. One broken watch, blood stained earth, earth control, a chappal, Crl. A. 152/2004 Page 3 of 37 pieces of blood stained bench were also taken into possession by the IO. The appellants Ishtkhar and Miraj were apprehended on 15.03.2000, who made disclosure statements regarding the commission of crime. Appellant Miraj also got recovered one knife from a Railway Cabin. Since the remaining accused persons were untraceable, Ishtkhar; and Miraj @ Mehraj were tried for the alleged commission of the killing of Rattan Lal and were found guilty of the said offence. 4. The prosecution in support of its case examined 23 witnesses. Three witnesses were examined by the defence. It would be useful to discuss the evidence of some of the material witnesses in detail. 5. PW 2, Jagjit Singh, Inspector has deposed that on 08.03.2000 on receipt of D.D. No.21, he alongwith SI Ram Avtar reached Jeewan Mala Hospital, New Rohtak Road, where Sunder (brother) and Ram Lakhan (father) of the deceased told him that the incident had taken place in the area of P.S. Moti Nagar and accordingly District Control Room, North was informed. Thereafter, SHO of Police Station Moti Nagar along with the staff reached the hospital and then all of them went to the spot of the incident at Rakhi Market, Zakhira Flyover. 6. PW 4, Smt. Meena Devi (mother of the deceased) has deposed that she had been running a dhaba by the name of “Meena” at jhuggi No. 482, Rakhi Market under Zakhira Bridge, Delhi. On 08.03.2000 at about 8.00 p.m., she along with her husband and her son Rattan Lal were present at the dhaba, when appellants Crl. A. 152/2004 Page 4 of 37 Ishtkhar; Miraj; Mohd. Ladoo; Chottu; and Irfan arrived at the dhaba. PW 4 deposed that at that time her son, Rattan Lal was standing at the shop of Bhola, who sells Masale opposite to her Dhaba. All the accused persons were in an angry mood and asked about the whereabouts of her elder son, Sunder Lal. And to which Meena Devi responded that Sunder Lal had gone to attend a marriage party. Thereafter they asked about her younger son, Rattan Lal and after that the accused persons and their associates started stabbing Rattan Lal with knives. She raised an alarm and after which all the assailants ran away towards Inderlok through the jhuggis. 7. Thereafter PW-4 deposed that she; her husband; Abdul Rubb; Bhola masale wala and some others took Rattan Lal to Jiwan Hospital in a tempo. After about half an hour, Rattan Lal was declared dead. PW 4 deposed that the Police met her in the hospital and where her statement Ex.PW3/B was recorded. Thereafter she came back to the spot of the crime along with the police and from where the police took into possession sample- blood, earth control, a blood stained chappal, pieces of wood of the bench that were stained with blood and one watch. PW 4 further deposed that she knew the assailants prior to the incident and that on 15.03.2000, the police had brought the two appellants, Ishtkhar and Miraj at her dhabha and where she identified them. Further that on 03.05.2000, at her instance/ pointing out the draftsman took rough notes and the measurement of the place of occurrence. Crl. A. 152/2004 Page 5 of 37 8. In her cross-examination by the learned counsel for the appellants, PW 4 deposed that three days prior to the incident, she had lodged a report with the police against the assailants as there had been a quarrel between her son Rattan Lal (deceased) and the assailants. The police officials did not write the complaint but had met the assailants and reprimanded them, however no further action was taken in this regard. This witness also deposed that it was correct that there were three shops of doctors if one moves from her dhaba towards the small railway line. PW 4 further deposed that the shop of Abdul Rubb is opposite to her hotel at a distance of two-three hands. The shop of Munna meat wala was at a distance of about 15-20 yards from her hotel. The shop of Munna Meetwala was closed on that day. And deposed that it was correct to say that there was a shop of a subziwala, Alludin in between her dhaba and Munna meatwala and that the shop of Alludin subziwala was open at the time of the incident. However PW 4 could not tell whether Alludin had witnessed the incident or not. PW 4 further deposed that it was correct to say that doctor is available in the area to any person who is injured and for giving treatment/ medical facilities/ first aid facilities of glucose drip are also available with the doctors in that area. PW-4, further deposed that she did not receive any injuries on 08.03.2000. She had also tried to intervene and threw a stone at the assailants, whereafter they fled away as they were hit by the stone. That when she along with her husband picked up their son, then their clothes were smeared with blood, but the police did not ask them to deposit the clothes. She did not take Crl. A. 152/2004 Page 6 of 37 her injured son to the doctor in the locality as he was in a critical condition. PW-4 stated that it was wrong to suggest that her son Sunder Lal had a meat shop in the market or that he was in possession of any cutting instruments. 9. PW 4 further deposed in her cross-examination that at the hospital Rattan Lal had a chat with the doctor for about 7-8 minutes and after his talk to the doctor, he was declared dead by the doctor. Bhola had not accompanied her to the hospital but Abdul Rubb had. PW-4 further deposed that although the shop of Alluddin was open but he was not present there and some of his relations were sitting whose names she did not know. She stated that it was wrong to suggest that there was no electricity on the day of the incident. She stated that there was light at the shop of Bhola, Abdul Rubb and Alluddin. PW-4 deposed that Sunder Lal reached Jeewan Mala Hospital later on and that he was not with them. She and her husband had taken Rattan Lal to the hospital in a tempo and none else had gone with them in the tempo. PW-4 also deposed that Alluddin and Sabir had also witnessed the incident. 10. PW 5 Sunder Lal (brother of the deceased), s/o Ram Lakhan deposed that on 08.03.2000 he had gone to attend a marriage party and after attending the party, when he came back to his house he found a crowd gathered outside his house and was informed by the crowd that his brother Rattan Lal had been stabbed and had been taken to Jeewan Mala hospital. After that he went to the hospital and where the doctor informed him that Crl. A. 152/2004 Page 7 of 37 his brother, Rattan Lal had expired. This witness also deposed that the same day/night he went along with the police officials and identified one of the assailants Ishtkhar and whereafter the said assailant was arrested and also got recovered one knife from the bushes near railway lines in the area of Inderlok. 11. PW 5 further deposed that on 03.03.2000, his maternal-uncle Ram Chander (mama) was beaten by four/five boys under the Zakhira Bridge. His younger brother, Rattan Lal reached there and tried to rescue his maternal uncle. The names of those four/five boys were Laddu, Irfan, Chhotu, Miraj and Ishtkhar. On 05.03.2000 there was an altercation between Chhotu and Rattan Lal. Yet again at around 9:00 AM, in the morning of 08.03.2000 there was an altercation between Rattan Lal and Chhotu and the latter had threatened the former that he would kill him within 12 hours. 12. Learned APP objected and stated that PW 5 is resiling from his statement made to the police and was cross-examined by the learned APP. In his cross-examination PW 5 stated that it was incorrect to suggest that after returning from the marriage he saw that his parents were attending to Rattan Lal and along with Abdul Rubb were making him sit in the tempo and that he had not stated so before the police. 13. PW-5 further deposed that it was incorrect to suggest that on the way to the hospital his mother/father told him that the assailants had stabbed Rattan Lal with knives. On being cross-examined by the learned APP, PW-5 denied the suggestion that appellants Crl. A. 152/2004 Page 8 of 37 Ishtkhar and Miraj were arrested by the police from the bus stand near Inderlok opposite Masjid. In cross-examination by the learned counsel for the appellants, PW-5 deposed that on 08.03.2000 he was not present at the place when the altercation took place between his brother and the assailants at the Zakhira Market. And further that the police had never met him after 08.03.2000 and never obtained his signatures on any paper. 14. PW 6, Abdul Rubb, s/o Abdul Subhan, r/o JJ Colony, Wazir Pur, B 271 deposed that he also has a jhuggi where he is running a shop of selling tea at Zakhira Bridge. On 08.03.2000 after coming from his business of selling cloth as a hawker, he saw a large crowd gathered near the shop of Bhola Masalewala. On enquiry he came to know that the son of Meena had been stabbed by someone. This witness deposed that apart from this he did not know anything. The witness was cross-examined by the learned APP. In his cross-examination by the learned APP, PW 6 denied to have known anything with regard to the case. He denied the suggestion that he was the one who took Rattan Lal to the hospital along with others. This witness denied having made any statement to the police with regard to this case. 15. PW 7, Bhola Singh, s/o Chandrika, r/o B- 1/312, Nehru Nagar, Delhi deposed that he sells Masale under Zakhira Bridge and that the hotel of “Meena” was just opposite to the place from where he sells Masale. PW 7 deposed that on 08.03.200, which was a Wednesday, he was present at his shop and had customers to attend to. There was no electricity on that day and Crl. A. 152/2004 Page 9 of 37 he was working under candle light. At some distance from his shop, a stabbing incident took place and Rattan Lal, s/o Meena sustained stab injuries. However this witness stated that he did not know as to who caused the stab injuries. Thereafter he got so scared that he left his shop and went to his home and sent his brother to wrap up the shop. In his cross-examination by the learned APP, PW 7 denied having seen anything. 16. PW 8, Dr. Ashok Jaiswal, CMO Subzi Mandi, Delhi deposed that on 09.03.2000 while working as CMO in Subzi Mandi mortuary he conducted examination on the body of Rattan Lal. PW 8 opined that all the injuries were ante-mortem in nature and were caused by a sharp edged weapon and that the death was due to hemorrhagic shock consequent to the injuries. He further opined that the injuries were possible by the alleged weapon of offence, a knife. Also that the injuries on the body were consonant with the cuts and tears on the clothes brought as those which were worn by the deceased before the incident of stabbing. 17. PW 9, Dr. Rakesh Sharma, Jiwan Hospital, New Rohtak Road, deposed that on 08.03.2000 he was attending as a doctor at the said hospital. On that day, patient Rattan Lal, s/o Ram Rattan was brought by Ram Rattan and Abdul Rubb, with the alleged history of sustaining multiple stab injuries. The patient was brought in gasping condition; BP and pulse were not recordable; pupil of both sides were dilated at the time of arrival of the patient. Pulmonary resuscitation was done but the patient could not be revived and was declared dead at 8:40 PM. On being Crl. A. 152/2004 Page 10 of 37 cross-examined by the learned counsel for the appellants, PW 9 deposed that he had examined the patient at about 8:30 PM. PW-9 further deposed that Ram Lakhan and Abdul Rubb had brought the injured to the hospital and who had told him that the injured had been assaulted by five persons with knives. However, they did not disclose the names of the assailants. And further that it was not to his notice that any lady had come at the hospital in connection with the injured. 18. PW 10, SI Babu Lal, PS Moti Nagar deposed that on 08.03.2000 he was posted at P.S. Moti Nagar and on that day on receipt of D.D.No.35-A through Constable M. Oran and on receipt of this D.D., he reached the Zakhira Flyover. The D.D. was regarding an accident but on reaching the spot he did not find any accident or the accident site. Thereafter he along with HC Ranbir and Const. M. Oran came to Jeevan Mala Hospital and where PW Meena Devi met him. On 15.03.2000 he joined the SHO and other staff in the investigation of the case and reached Zakhira Jhuggis in search of the appellants. During this search operation, a secret informer and also Sunder Lal, brother of the deceased were with them. The secret informer apprised the police officials that Ishtkhar and Miraj wanted in connection with a case were sitting at that time at a bus stand in front of the Inder Lok Masjid and could be apprehended. On receipt of this information, the SHO along with Sunder Lal immediately proceeded to the informed place. The SHO left his vehicle at some distance from the informed place. On reaching there the appellants were identified by the secret Crl. A. 152/2004 Page 11 of 37 informer as well as by Sunder Lal and thereafter both were apprehended. During interrogation the appellant Ishtkhar besides giving other details also gave information regarding his companions namely, Miraj, Ladoo, Chhotu and Irfan. He also disclosed that he had given his knife to Ladoo and that Ladoo resides in Meerut. The disclosure statement of appellant Ishtkhar is marked as Ex-PW-5/C. Appellant Miraj was also interrogated and he disclosed that he had thrown his knife in the bushes near the railway line in Inder Lok and that he could get the same recovered. Thereafter they all proceeded to the said place and from where appellant Miraj got recovered a knife. The knife was taken into possession vide memo Ex. PW-5/F. Both the appellants also pointed out the place of occurrence. PWs Meena and Ram Lakhan also identified the two appellants, Ishtkhar and Miraj. 19. PW 10 was cross-examined by the learned counsel for the appellants and he deposed that at the hospital Smt. Meena Devi, her son Sunder Lal and some persons from the locality of the deceased were found present. Meena Devi had come to know about the death of the son. PW 10 also deposed to have recorded the statement of Meena Devi at the hospital and of nobody else. Further he met the father of the deceased for the first time at the spot of the incident around 12:05 A.M. 20. PW 11, Ram Lakhan (father of the deceased) deposed that he has a jhuggi under Zakhira bridge, Delhi, from where he was running a hotel in the name of “Meena Hotel” along with his wife Meena and two sons Sunder Lal and Rattan Lal (deceased). PW- Crl. A. 152/2004 Page 12 of 37 11 deposed that on 08.03.2000 at about 8:00 PM he was sitting alongwith his wife at the above said hotel, five persons came and asked about the whereabouts of his elder son Sunder Lal, and at which he told them that Sunder Lal had gone to attend some marriage function. They said that if Sunder Lal was unavailable then they would teach a lesson to his younger son, Rattan Lal, who was standing at the shop of Bhola Masale wala opposite their hotel. The five persons who had come to the shop were Ishtkhar; Miraj; Laddoo; Irfan; and Chhotu. All these persons asked his son about his elder brother and saying so, all those persons started stabbing his son with knives in their hands and by the time they could reach near their son, all the five persons ran away towards Western Side Jhuggis. Thereafter he alongwith Abdul Rubb and 3/4 persons lifted Rattan Lal in an injured condition and took him near the chhoti lines from where they hired a „Matador‟ and took Rattan Lal to the Jiwan Mala hospital. After some time Rattan Lal was declared dead. In cross- examination by the learned counsel for the appellants, PW 11 deposed that “(t)he accused persons never had business dealings with us nor we had any quarrel with each other prior to this incident. We had never moved any application against the accused persons prior to this occurrence. This market remains open for all the seven days of the week….Abdul Rub was running a tea shop at that time and he was running the shop himself. At that time of incident, Abdul Rub had not come but he came to the spot thereafter. The incident took place in the presence of Bhola masalewala. There was one Alludin vegetable vendor at Crl. A. 152/2004 Page 13 of 37 the spot, he was present on his shop at the time of incident. Alludin did not come to the spot after incident or at the time of incident.” “There was light on the hotel on that day. Light had gone off in the day after the incident….There are shops of doctor in that market.” PW 13 further deposed in his cross- examination that he did not throw any stone or brick on the persons who came at his hotel nor did he make any efforts to intervene in the said incident nor did his wife (Meena) intervene. He also deposed that Alluddin was present at his shop when the incident took place but he did come to the spot at the time of the incident or after the incident. His wife had accompanied him at the time of taking their injured son, Rattan Lal to the hospital. His wife also did not raise any alarm. They did not pick up any palta, or mirchi, nor hurled any stone or brick at the assailants as they had immediately ran away after the incident and by the time they reached the spot, the assailants had already fled. 21. PW 13, HC Rajinder Singh, deposed that on 08.03.2000 at about 8:50 PM, he received a telephonic call from Dr. Rakesh from JiwanMala Nursing Home that one Rattan Lal, s/o Ram Lakhan, had been admitted to the hospital by his brother Sunder Lal in injured condition having stab injuries and had expired. This information was recorded by him in the roznamcha vide D.D. No.21-A. 22. PW 14, Constable M. Oram deposed that on 08.03.2000, he was posted at PS Moti Nagar. In his cross-examination by the learned counsel for the appellants he deposed that he received DD Crl. A. 152/2004 Page 14 of 37 no.25-A at PS Moti Nagar at 8:50 PM and reached at the spot within 15 minutes by bus. He stated that he found 40-50 persons present there. SI did not interrogate any person out of those persons. PW-14 deposed that he did not find any close relatives of the deceased nor his parents. PW-14 further deposed that he reached the hospital but could not tell the time. It might have been 12 or 12:30 in the night and that only Smt. Meena had met the IO in the hospital. 23. PW 21, HC Sunil Kumar deposed that on 22.04.2000 he went to the house of Ladoo, s/o Mayudin, r/o Pandolwala, PS Shakri, to the house of Chhotu r/o village Pathan Kaval, to the house of Irfan, but they were not found at the given addresses. On 29.04.2000 he returned back and handed over the NBWs with his report. He alongwith IO and the complainant Meena Devi went to Budh Vihar to see Irfan s/o Jaffrul-Haq, r/o Kachoi colony, Mange Ram Park, however the complainant Meena Devi on seeing him refused and stated that he was not the person involved in this case as according to her Irfan/accused had a cut on his cheek and the person to whom they had gone to meet did not have the said cut on his cheek and thus he was not the assailant. 24. PW 22, HC Ranbir Singh, PS Rajouri garden deposed that on 08.03.2000 he alongwith SI babu Lal were present at Zakhira Picket. In the hospital Smt. Meena Devi, mother of the deceased met them and gave her statement to the IO. SI prepared the rukka and sent