Crl. Appeal Nos. 484,485 &487/ 09 Page 1 of 22 * HIGH COURT OF DELHI : NEW DELHI Crl. Appeal No. 484/2009, 485/09 & 487/2009 % Judgment reserved on: 2nd February, 2010 Judgment delivered on: 10th February, 2010 1. Crl. Appeal No. 484/2009 Mohd. Arafin, S/o Sh. Mohd. Rafiq, Old Address- A/35-a, DDA Flats, Inder Lok, Delhi- 110 035 Present Address- R/o Village Seekri Khurd, Modi Nagar, Distt. Ghaziabad, U. P. (at present confined at Central Tihar Jail, Delhi) …Appellant. Through: Mohd. Nasir and Mohd. Saleem, Adv. Versus The State (Delhi Admn.) Delhi. …Respondent Through: Mr. Arvind Kumar Gupta, APP for the State 2. Crl. Appeal No. 485/2009 Mohd. Mukeem S/o Sh. Mohd. Babban, Old Address- A/13/99-C, DDA Flats, Inder Lok, Delhi- 110 035 Crl. Appeal Nos. 484,485 &487/ 09 Page 2 of 22 Present Address- R/o C-9/3, Gali No. 7, Chauhan Banger, Jamalu Ki Dairy Ke Pass, New Seelampur, Delhi. (at present confined at Central Tihar Jail, Delhi) …Appellant. Through: Mohd. Nasir and Mohd. Saleem Adv. Versus The State (Delhi Admn.) Delhi. …Respondent Through: Mr. Arvind Kumar Gupta, APP for the State 3. Crl. Appeal No. 487/2009 (i) Mohd. Babban S/o Sh. Mohd. Rafiq, (ii) Mushrafeen. S/o Sh. Mohd. Babban. (iii) Mohd. Nadeem. S/o Sh. Mohd. Babban. All resident of- C-9/3, Gali No. 7, Chauhan Banger, Jamalu Ki Dairy Ke Pass, New Seelampur, Delhi. (at present confined at Central Tihar Jail, Delhi) …Appellants . Through: Mohd. Nasir and Mohd. Saleem Adv. Versus Crl. Appeal Nos. 484,485 &487/ 09 Page 3 of 22 The State (Delhi Admn.) Delhi. …Respondent Through: Mr. Arvind Kumar Gupta, APP for the State Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. By this common judgment, above three appeals are being disposed of. Above named appellants were convicted under Section 304 (1)/34 IPC by common judgment dated 27th May, 2009 passed by Additional Sessions Judge, Delhi. 2. Vide order dated 28th May, 2009, appellants were sentenced to undergo RI for seven years apart from fine of Rs. One Lakh each and in default of payment of fine to undergo further SI for six months. Out of this cumulative fine of Rs.5 lacs, a sum of Rs. 4.75 lacs were ordered to be paid to PW-2 Smt. Parveen (widow of deceased) and children as token compensation. Crl. Appeal Nos. 484,485 &487/ 09 Page 4 of 22 3. Prosecution case in nutshell is that on 21.09.04, at around 9.00 P.M. Mohd. Tasleem (complainant) was present at his house A14/109, DDA Flats, Inder Lok. Appellant Babban came outside the house and started hurling fifty abuses and called him out by shouting that his son has been beaten up by them. Complainant tried to calm him down but Babban called on his sons and they all started beating the complainant. When PW-2 Smt. Parveen (wife of complainant), PW-3 Mohd. Anees (nephew of the complainant) and PW-9 Raju (brother of complainant) came to his rescue, they were also beaten up. Appellant Mukeem was carrying a knife with which he attacked the complainant causing injury on his right hand and left thigh. Appellant Nadeem attacked PW-3 with a knife and PW-9 tried to help him but he was also injured. Appellants Mushrafeen and Babban gave fists and leg blows to PW-10 Rahisa Begum (mother of complainant). All the injured somehow tried to save themselves by running towards close by police post. Appellants exhorted that “SALOON AAJ TO BACH GAYE LAKEIN HUM TUMHEIN JINDA NAHIN CHODENGE.” 4. Meanwhile Police staff at Police Post Inder Lok also received a PCR call qua this fight. While they were in the process of leaving the spot, they found complainant and PW-3 outside the chowki who were drenched in blood. They were bleeding and were writhing in pain. Both of them were removed to Hindu Rao Hospital. Statement of complaint which is Ex. PW Crl. Appeal Nos. 484,485 &487/ 09 Page 5 of 22 27/A was recorded by PW-27 (H. C Madan Lal). MLC’s of injured were collected. Appellant Babban and two other persons namely Shabnam and Rani from their side, also received injury. 5. On the basis of statement of the complainant, FIR under section 324/323/506/34 IPC was registered. 6. On 23.09.04, at around 10.30 am, complainant died due to the injuries received by him. The FIR was converted under Section 302 IPC. Death Summary was collected and body was got post mortemed. Blood sample of deceased was collected. As per post mortem report, deceased died of anti mortem sharp injuries. 7. On the same day, Mukeem and Nadeem were arrested. Their disclosure statements were recorded. On their pointing out, weapon of offence i.e. two knives were recovered. MLC of other injured were collected. Scaled site plan was prepared and seized exhibits were sent for forensic science lab. Appellant Arafin who is brother of Babban and whose involvement was later on disclosed in the supplementary statements was also made as on accused. After conclusion of investigation charge sheet was filed. 8. It is contended by learned counsel for the appellants that there are material contradictions and serious infirmities in the prosecution case. The Crl. Appeal Nos. 484,485 &487/ 09 Page 6 of 22 evidence of prosecution witnesses i.e. PW-2, PW-3, PW-9, PW-10 and PW-13 clearly shows that appellants have been falsely implicated in this case by the family of the deceased. All the eye witnesses belonged to one family. No independent witness has been examined by the prosecution in this case with regard to the main incident or with regard to the alleged recovery of knife, though as per prosecution case public witnesses were available at that time. MLC of the appellants has not been placed on record by the prosecution, though it has been mentioned in the report under Section 173 Cr. P. C. 9. Other contention is that, name of Arafin is not mentioned in the FIR Ex. PW 1/A. This clearly shows that the genesis of the prosecution case is not true and is based upon falsehood. Entire story of prosecution is concocted one, as from the very beginning if the statement of the deceased as per prosecution case is to be believed, there is no mention of the name of Arafin. There is no exhortation in the entire statement of the deceased, who died next day after giving his statement. If the statement of deceased is admissible as per law and his statement is read in its entirety, then no case is made out against the appellants. As per his statement, there is no common intention or prior meeting of mind. There has been improvement by the witnesses in the court on the point of exhortation and introducing of Crl. Appeal Nos. 484,485 &487/ 09 Page 7 of 22 a new story that, Arafin overpowered the deceased from his back. Thus Section 34 IPC is not at all attracted in this case. 10. Lastly, it is contended that from the facts and circumstances of the case, no case is made out under Section 304 (1) of IPC against the appellants. Trial court in the impugned judgment also held that; “There was no knowledge and intention to inflict the said injury, which resulted into death of the deceased.” 11. This clearly shows that no case is made out under Section 304 (1) IPC. 12. On the other hand, it is contended by learned counsel for the State that a fight has taken place on the day of incident. Appellants in their statement under Section 313 Cr. P. C. have admitted that there was a fight between the deceased/prosecution witnesses and a group of Madrasis and injuries have been sustained by deceased in the fight which took place with some Madrasis. But, appellants have not produced any evidence to show that there was a fight between the injured and the Madrasis. 13. As far as eye witnesses are concerned, it is contended by learned counsel for the State that though eye witnesses are relatives of the deceased but there is no bar that relatives of victim cannot appear as a witness. All the eye witnesses have fully supported the prosecution case. Crl. Appeal Nos. 484,485 &487/ 09 Page 8 of 22 14. Another contention is that though the name of Arafin has come in the supplementary statement later on, but all the prosecution witnesses have clearly mentioned about his role in causing injuries to the injured. Since, all the appellants were present at the spot, the common intention was there and as such offence under Section 34 IPC is clearly made out. 15. As far as ingredient of Section 304 (1) IPC are concerned, it is contended by learned APP that as per statement of Doctor, these injuries were sufficient enough to cause death. Hence, there is no ambiguity and infirmity in the impugned judgment. 16. Present case was registered on the statement of Mohd. Tasleem (since deceased). His statement is Ex. PW 27/A which was given to PW-27 on 21st September, 2004. This statement was given within couple of hours of the incident. Complainant died on 23rd September, 2004 in the hospital. Thus, statement Ex. PW 27/A is admissible by virtue of Section 32 of the Indian Evidence Act, 1872 and is to be treated as a dying declaration. Relevant portion of this Section read as under; “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an Crl. Appeal Nos. 484,485 &487/ 09 Page 9 of 22 amount of delay or expenses which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases;- (1)When it relates to cause of death- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in case in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. x x xx x x x x x x x x 17. As per averment made in the dying declaration Ex. PW 27/A, the initiation of quarrel was a verbal duel between Babban and the complainant. It was on the issue that, complainant and his family had beaten up son of Appellant Babban. When the passions rose, Babban called on his sons and that verbal duel turned into a physical assault and all of them started beating the complainant. PW-2, PW-3 and PW-9 tried to intervene but appellants even started beating them. Mukeem was having a knife in his hand with which he attacked the complainant. The complainant received injuries on his right hand and left thigh. Beside this, Nadeem attacked PW-3 at his back with knife. In order to save his brother, PW-9 Crl. Appeal Nos. 484,485 &487/ 09 Page 10 of 22 came and in the process he sustained injuries on his right elbow. Mushrafeen and Babban gave fists and leg blows to complainant’s mother- PW-10. All the injured somehow tried to save themselves by running towards close by police post and appellants exhorted that “SALOON AAJ TO BACH GAYE LAKEIN HUM TUMHEIN JINDA NAHIN CHODENGE.”. This version of the complainant mentioned in his dying declaration Ex. PW 27/A, has been corroborated by other eye witnesses i.e. PW-2, PW-3, PW-9, PW-10 and PW-13. 18. Though there are certain contradictions in the statements of the prosecution witnesses but the question to be seen is as to what is the affect of these contradictions and whether these go to the root of the prosecution case or not and how appraisal of evidence is to be done. In State of U. P. Vs. M. K. Anthony AIR 1985 SC 48- the court observed; “While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matter not touching the core of the case, Crl. Appeal Nos. 484,485 &487/ 09 Page 11 of 22 hyper technical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of evidence as a whole. In the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor or evidence given by the witness, the appellate court which had not this benefit will attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Cross- examination is an unequal dual between the rustic and refined lawyer.” 19. In Bharuda Broginbhai Harjibhai Vs. State of Gujrat, AIR 1983, S.C. 753- it was observed that over much importance cannot be attached to minor discrepancies and the reasons are obvious; 1. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video type is replayed on the mental screen. 2. Ordinarily it so happens that a witness is over taken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. Thus mental faculties, therefore, cannot be expected to be attuned to absorb the details. 3. The powers or observations differ from person to person, what one may notice another may not. An Crl. Appeal Nos. 484,485 &487/ 09 Page 12 of 22 object or movement might emboss image of one person’s mind, whereas it might go unnoticed on the part of another. 4. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. 5. In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimates by guess work on spur of moment at the time of interrogation and one cannot expect peoples make very precise or reliable estimates in such matters. Again, it depends upon the time- sense of individuals which varies from person to person. 6. Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. 7. A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details of imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological moment.” 20. In the present case, the contradictions are of minor nature and on all the material points there is corroboration by the prosecution witnesses Though all eye witnesses in this case are related to each other, but the mere Crl. Appeal Nos. 484,485 &487/ 09 Page 13 of 22 fact that they are relatives of the deceased, will not mean that their evidence should be discarded. In State of U. P. Vs. Atul Singh etc. AIR 2009 SC 2713, it was observed; “Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is an allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person”. 21. Hence, there is no reason to discard the statement of the eye witnesses with regard to alleged incident which has taken place as per the FIR. As per defence of the Appellants also, they admits that on the given date and time, a fight has taken place. But the case of the appellants is that fight took place between complainant/injured and a group of Madrasis. All the appellants in their statement under Section 313 Cr. P. C, have taken a common defence that they are innocent. Their version is, “that actually it was Tasleem who worked as washerman at Dhobighat situated at M Block Shastri Crl. Appeal Nos. 484,485 &487/ 09 Page 14 of 22 Nagar, Delhi, where Madrasis reside on the other side of Dhobighat at JJ Colony. On 21.9.04 Madrasis attacked Tasleem and his companions to take revenge as Tasleem and his companion had given beatings to Madrasis about one week prior to 21.9.2004 and Tasleem, Parveen, Raju, Anees, Ilyas, Hameed and others had attacked on Babban and his family members under the impression that Babban and his family members had instigated the Madrasis to beat Tasleem and his companions. Babban, Mushafreen, Fidos, Rani, Shabnam, Mukeem etc. received injuries at the hand of Tasleem and his companions in this incident. Babban and his family members went to PP Inderlok from where they were removed to hospital and treated there, but later on they were falsely implicated in this case”. 22. However, to PW-13, different defence was put as a suggestion was given, Crl. Appeal Nos. 484,485 &487/ 09 Page 15 of 22 “that his father and other family members entered in the house of Babban and gave beating to inmates including ladies”. 23. This version is entirely different from the defence taken in statements under Section 313 Cr. P. C. 24. Appellants have not led any defence evidence in support of their version that on the day of incident Madrasis had attacked the complainant and his companions to take revenge, as they had given beatings to Madrasis about one week prior to 21.9.2004. Appellants have not produced any evidence nor examined any witnesses of the locality to prove their defence about the incident which took place one week prior to 21st September, 2009, in which complainant and his companions gave beating to Madrasis. Had such an incident taken place as alleged by the appellants, then they could have summoned the police records to prove their version. There is nothing on record to show that any such incident between the complainant/his companions and Madrasis ever took place. 25. Thus, from the entire evidence on record it is stand proved beyond any shadow of doubt that on 21st September, 2004 the incident as reported by complainant in his complaint Ex. PW 27/A has taken place, in which he sustained fatal injuries. Crl. Appeal Nos. 484,485 &487/ 09 Page 16 of 22 26. As far as role of Arafin is concerned, though the complainant was severely injured but he narrated the entire incident to PW-27. Complainant specifically attributed the role of each of the appellant in his statement Ex. PW 27/A. There is no mention of the name of Arafin in Ex. PW 27/A nor any role has been attributed to him. Name of Arafin was introduced later on in the statement under Section 161 Cr. P. C. of the other witnesses. Since complainant was in his full senses when he gave statement Ex. PW 27/A and has specifically mentioned the role of other appellants, there was no reason why he should have omitted the name and role of Arafin. This shows that name of Arafin was introduced later on. Under these circumstances, no reliance can be placed on the statement of other eye witnesses, qua appellant Arafin. 27. Now coming to the question as to whether appellants have been rightly convicted under section 304 (1) IPC, or not. This Section read as under: “Section 304 . Punishment of culpable homicide not amounting to murder: Whoever commits culpable homicide not amounting murder shall be punished with (imprisonment of life), or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of Crl. Appeal Nos. 484,485 &487/ 09 Page 17 of 22 causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death.” 28. The first paragraph of this section is normally referred to as Part I whereas the second paragraph as Part II. Part I applies where the accused causes bodily injury with intention to cause death; or with intention to cause such bodily injury as is likely to cause death. Part II, on the other hand, comes into play when death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death.” 29. In Afrhim Sheikh and Others Vs. State of West Bengal; (AIR 1964, Supreme Court, 1263) Supreme Court considered the question of legality and validity of a conviction under section 304, Part II read with section 34. It observed: “The second part no doubt speaks of knowledge and does not refer to intention which has been segregated in the first part. But knowledge is the knowledge of the likelihood of death. Can it be said that when three or four persons start beating a man with heavy lathis each hitting his blow with the common intention of severely Crl. Appeal Nos. 484,485 &487/ 09 Page 18 of 22 beating him and each possessing the knowledge that death was the likely result of the beating, that the requirements of section 304, Part II are not satisfied in the case of each of them? If it could be said that knowledge of this type was possible in the case of each one of the assailants, there is no reason why section 304, Part II cannot be read with section 34. The common intention is with regard to