AHMED SAEED  Vs STATE -Judgment by Delhi High Court

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 5th January, 2023
Decided on: 24th January, 2023

+ CRL. A. 998/2017

AHMED SAEED ….. Appellant
Represented by: Mr. Samar Singh Kachwaha, Ms. Shivangi Nanda, Ms. Kavita Vinayak, Ms.Rini Mehra and Mr. Anmol Agarwal, Advs.
versus

STATE ….. Respondent
Represented by: Mr. Laksh Khanna, APP for State with SI Abhishek and Insp. Shailendra.
CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA
HON’BLE MS. JUSTICE POONAM A. BAMBA

MUKTA GUPTA, J.

1. By way of this appeal, the appellant challenges the judgment of learned Trial Court dated 19th July, 2017 whereby the appellant was convicted for committing murder of one Yunus (�deceased�) and causing injury to one Afzal (PW-5/injured eye-witness); and also the order on sentence dated 17th August, 2017 whereby the appellant was directed to undergo rigorous imprisonment for life alongwith fine of ?1,00,000/- and in default whereof, rigorous imprisonment for two years for offence punishable under Section 302 of Indian Penal Code, 1860 (�IPC�), as also rigorous imprisonment for six months alongwith fine of ?1,000/- in default whereof, simple imprisonment for one month for offence punishable under Sections 323/34 IPC. Three other persons namely Imran, Amir and Azeem were absconding but on being apprehended later, they are presently facing separate trial.
2. In nutshell, facts of the case are that appellant was married to one Shahna (PW-20). For the last ten months, appellant was not staying with Shahna and their child at the matrimonial home i.e. H.No. D-153, Gali No. 7, Dayal Pur. On 1st February, 2014, Shahna along with her minor child went to live with her parents at Aurangabad. On 13th February, one neighbor called up Shahna to inform her that the appellant was breaking open the lock of her house. Thus, on 13th February, 2014 at about 9:30 PM, Afzal (PW-5) alongwith his bua Shahna and his uncle/deceased Yunus reached H. No. D-153, Gali No.7, Dayal Pur and on reaching the third floor, the lock of the main gate was found broken and hanging in the Kunda. On entering the house, some goods were found missing while others were found scattered and accordingly, Afzal made a call at number 100. Thereafter, Afzal and deceased came outside the house and on the road, the appellant and his nephews Imran, Amir and Azeem were found standing. On seeing Afzal and deceased, the appellant and the three boys started beating Afzal and deceased with lathis and danda. On hearing the cries of Afzal and the deceased, neighbours gathered at the spot as also Shahna (PW-20) and Zaboon Nisha (Afzal�s grandmother) and thereafter, the accused persons ran away while threatening to kill the victim and the deceased. The deceased became unconscious and on the PCR vehicle arriving, it took the deceased and Afzal to the GTB Hospital where the deceased was declared �brought dead� while treatment was provided to Afzal. Thereafter, Afzal was declared fit for statement and his statement/rukka (Ex. PW-5/A) was recorded, on which FIR No.150/2014 dated 14th February, 2014 under Sections 304/323/34 IPC was registered at Police Station Khajuri Khas. Afzal was taken to the spot by I.O. SI Naveen Rathi (PW-22), where crime team was also called and the crime scene was inspected. After collecting the relevant exhibits from the crime scene, upon a secret information, I.O. alongwith Ct. Naresh Veer (PW-23) reached old Police Chowki, 33 foota road, Karawal Nagar and at about 3:45 AM, the appellant was seen coming from the Karawal Nagar side. On identification by the secret informer, the appellant was arrested vide arrest memo Ex. PW-22/F and his disclosure statement (Ex. PW-22/H) was recorded.
3. On 14th February, 2013, post mortem examination of the deceased was conducted by Dr. Neha Gupta (PW-9) at GTB Hospital, who tendered her report (Ex. PW-9/A). It was opined:

�General Observations: It was a dead body of an adult Male, average built wrapped in white cotton sheet wearing green and black check Angochha, green sweater, blue jeans, white cotton belt, blue shoes, brown shocks and blue half T-shirt. Bilateral black eye present. Bilateral nasal and ear bleed present. Eyes and mouth were closed. Rigormortis present in well developed
stage all over the body. Post-mortem staining present at the back and fixed.
Cornea opaque.
External Antemortem Injuries:
1. Lacerated wound obliquely present of size 9 x 0.5 cm. x bone deep present over right side forehead, 1.5 cm from midline, 1.5 cm above eyebrow. Margins of wound were irregular, reddish abraded and contused.
2. Lacerated wound measuring 0.7 x 0.2 cm x bone deep present over right side forehead, 3 cm from midline and just above eyebrow. Margins of wound were irregular, reddish abraded and contused.
3. Lacerated wound of size 4 cm 0.3 cm x bone deep present over left occipital region, 3 cm below occipital protuberance and 3.5 cm from midline. Margins of the wound were reddish abraded and irregular.
4. Reddish abrasion measuring 2.5 x L5 cm present over left side forehead, 5 cm above eyebrow, 7 cm from midline.
5. Reddish contusion measuring 8 x 7 cm present over left side back, 5 cm below shoulder top, 10 cm from midline.
6. Reddish contusion measuring 1.4 x 8 cm present over left side chest just lateral to midline and just above nipple.
Internal Examination :
Scalp: Extravasation of blood present over bilateral frontal, left parieto, temporo- occipital region.
Skull : Linear fissured fracture present over the vault and base of skull.
Brain : Weight was 1250 grams, congested, dura matter lacerated from front.
Diffuse sub-dural haemorragage present over bilateral cerebral hemisphere and diffuse subarachnoid Haemorrahage present on both cerebral hemisphere. Haemorragic contusions present both temporal lobe.
Neck : NAD
Ribcage : Fracture of the body of sternum present in the middle horizontally alongwith extravasation of blood in the surrounding tissues.
Lungs; Right 380 grams and left 340 grams. Both were congested.
Heart: 340 grams. NAD. Coronaries NAD.
Stomach contains 20 ml of yellowish fluid present. Walls NAD.
Intestines: Distended due to gases.
Liver: 1200 grams, Spleen 80 grams Congested.
Kidneys: Right 110 grams, left 100 grams Congested.
Pelvis NAD.
Urinary Bladder: Empty, Walls NAD.
Time since death: about 12 hours.
Cause of death: Shock as a result of ante-mortem injury to head produced
by blunt force impact.
Articles preserved and handed over to IO:
1. Sealed pulanda containing clothes of the deceased.
2. Sealed envelope containing blood on gauze.
3. Sample seal of NG.�

4. Upon completion of investigation, charge-sheet was filed against the appellant only as his associates/nephews Imran, Amir and Azeem were absconding. Charges under Sections 302/34 IPC for committing murder of Md. Yunus and under Sections 323/34 IPC for causing simple injuries to Md. Afzal were framed, and to establish its case, the prosecution examined 27 witnesses. To counter the prosecution�s case, defence evidence in form of one defence witness was also led.
5. Learned counsel for the appellant contended that there are lapses in the case of the prosecution, the benefit of which must go to the appellant and, thus, the impugned judgment be set aside and the appellant be acquitted. It was contended that despite the specific averment by the prosecution witnesses that public had gathered at the spot, no public witness was examined by the prosecution rather only interested witnesses were examined. Reliance was placed on the decision reported as (2001) 3 SCC 147 State of Rajasthan v. Teja Singh & ors. on the impact of non examination of the independent witness despite being present. It was further contended that the police officers who were witnesses to the recovery of danda i.e. IO (PW-22) and Ct. Naresh Veer (PW-23), stated that blood was present on the recovered danda, however, as per the doctor (PW-9), no blood was found on the danda. It was opined by the doctor that in terms of the nature of injury, blood should have been present on the danda. It was pointed out by the counsel for the appellant that the recovered weapon i.e. the danda was never sent for forensic examination, and, thus, there looms doubt on the reliability said weapon. It was further contended that the learned Trial Court was in error in taking into consideration the weight of the danda for convicting the appellant for offence punishable under Section 302 IPC instead of Section 304 IPC. The genesis of the fight between the deceased and the appellant was the breaking open of the lock at the third floor of H.No.D-153, Gali No.7, Dayal Pur. If the appellant wanted to take the possession at 3:30 PM, why would the lock be hanging till 9:30 PM. There was no premeditation by the appellant as the appellant had no knowledge that his wife and her family members will be coming to the said place. Further, the neighbour who had informed about the appellant breaking the lock of the house was never examined. The appellant cannot be attributed knowledge or intention of the highest degree so as to be held guilty for the charge of murder. Thus, in alternative, even if the prosecution case is believed in totality, an offence under Section 304 IPC is made out and thus, the appellant be released on the period already undergone. Reliance was placed on the decisions reported as (1983) 2 SCC 342 Jagtar Singh v. State of Punjab and 2022 SCC OnLine SC 1443 Major Singh v. State of Punjab & Anr.
6. On the other hand, learned APP for the State submitted that the prosecution was able to successfully establish the chain of circumstantial evidence against the appellant and that the impugned judgment is based on proper appreciation of evidence and, thus, the impugned judgment be upheld and the present appeal be dismissed. To substantiate the contentions, learned APP relied upon the following:
i. There were three eye-witnesses in the present case i.e. Afzal (PW-5), Shahna (PW-20) and Arif (PW-15) who have categorically deposed that the appellant and his associates had beaten the deceased and Afzal with lathis and dandas and that the appellant had struck the deceased on his head. The presence of these eye-witnesses at the scene of crime is undisputed. The MLC of Afzal (PW-5) established the injuries sustained by him and ASI Deepak Kumar (PW-3) clearly deposed that he found Afzal (PW-5) at the spot and thereafter, took him to the hospital. Furthermore, testimony of the sole defence witness Maqsood Ali (DW-1) also proved the presence of the said eye-witnesses at the scene of the crime.
ii. The weapon of offence i.e. the danda was recovered at the instance of the appellant and the same was duly proved by I.O. (PW-22) and Ct. Naresh Veer (PW-23). The danda was identified by the injured eye-witness Afzal (PW-5) before the Trial Court. Even the learned Trial Court observed that the said danda was quite solid and appeared to have a good amount of weight.
iii. The postmortem report (Ex. PW-9/A) clearly opines that the death was caused due to injury on head produced by blunt force impact. And as per the subsequent opinion of Dr. Neha (Ex.PW-9/B) the injuries found on the body of the deceased were opined to be possible by the danda recovered at the instance of the appellant.
7. Qua the minor differences in the testimony of the witnesses, learned APP relied upon the decision in AIR 1994 SC 1187 Navganbhai Somabhai & Ors. v. State of Gujarat. Further, to rebut the contention of the appellant qua the non-examination of independent witnesses, reliance was placed by learned APP on the decision in (2004) 3 SCC 654 Dhanraj Singh & Ors. v. State of Punjab.
8. Having heard both the parties at length and perusing the record, the following evidence emerges.
9. Afzal (PW-5) stated that on 13th February, 2014, he alongwith his bua Shahna, uncle Yunus and child of Shahna came from Aurangabad and reached at H. No. D-153, Gali No.7, Dayal Pur at about 9:30 PM. On reaching the house on the third floor, the lock of the main gate was found broken and hanging in the kunda. Upon entering the house, some goods were found scattered and some were missing. Thereafter, he made a call at number 100 but the police did not arrive and thereafter, he alongwith his uncle came outside the house and reached the road where the appellant alongwith his nephews Imran, Amir and Azeem, who were already known to him were standing there and on seeing him and his uncle, they started beating him and his uncle with lathis and danda. Appellant hit danda on the head and other body parts of his uncle/deceased and Imran, Amir and Azeem also inflicted injuries to Yunus. When he tried to save his uncle/deceased, Imran gave a danda blow on his left eye-lid. Elder brother of the appellant Maqsood was standing at the spot and his bua Shahna and grandmother Zaboon Nisha also reached the spot. On hearing their cries, neighbors also gathered at the spot, after which, the appellant and other accused persons ran away while threatening to kill him and his uncle. His uncle/deceased became unconscious. After sometime, the PCR vehicle arrived at the spot and took him and his uncle to GTB Hospital where his uncle/deceased was declared �brought dead� and treatment was provided to him. Thereafter, police officers took him to the spot. He collected the dead body of his uncle from the hospital after the postmortem on 14th February, 2014. He identified the danda before the learned Trial Court, which also observed �the Court has seen danda (stick). The danda is quite solid not hallow and also appear to have good amount of weight��. In his cross-examination, he stated that he informed the police from his mobile phone number 9716656910 regarding the broken lock. He had seen Imran, Amir and Azeem before the date of incident at his cloth shop near the house of his bua Shahna and Imran was residing in the same locality. He further stated that on the day of incident, he and his uncle/deceased had come down to see whether the police had arrived. He further stated that there were several shops in the street all of which were closed as it was 10 PM. He stated that the key of the lock of the house was with his bua Shahna. He further stated that the first blow of lathi was inflicted by the appellant on the backside of the head of his uncle/deceased. He further stated that after the first blow by the appellant, the appellant stated that �inko jaan se mar do�. He further stated that the accused did not give any threat to kill while escaping from the spot and that he had received only one danda blow on his left eye-lid which was given by Imran. He stated that the police did not visit H.No. D-153 to verify whether the locks were broken. He also stated that there were no identification marks on the danda.
10. Arif (PW-15) stated that on the day of the incident at about 10:15 PM, he was present at Dayal Pur in front of Gali No.7 to distribute the marriage card of his niece, where at some distance he saw four persons namely Ahmed Saeed, Imran, Amir and Azeem carrying lathis and dandas in their hands and beating Yunus and Afzal with the same. The appellant was uttering to his associates that both should not be spared today. Thereafter, Yunus fell and became unconscious and Afzal was given lathi blow on his left eye by Imran. Even after Yunus fell on the ground all four accused continued beating him with lathis and dandas and after causing injuries to both, the accused persons ran away from the spot alongwith their weapons. PCR reached after sometime, and removed the injured to the GTB Hospital. He further stated that on 14th February, 2014, he received the dead body of Yunus after postmortem (Ex. PW-8/B). In his cross-examination, he stated that the deceased was the son of his uncle (phoopha) and that he had witnessed the incident before he could reach to the house of Shahna for delivering the invitation card. He stated to have known Imran, Amir and Azeem since his childhood and that he used to meet them frequently. He stated that the appellant hit danda on the head of Yunus from behind and that he did not try to save Yunus as he was afraid. He stated that there was sufficient light at the spot and that 10-12 persons had gathered at the spot. He further stated that there was an identification mark on the danda and that the danda was having nooses and red lining in zig zag manner.
11. Shahna (PW-20) stated that the appellant was her husband and that she was residing at H.No.D-153, 3rd Floor, Gali No.7, Dayal Pur alongwith the appellant and her child Md. Ubed. About ten months prior to the incident, the appellant left the matrimonial home and she was living alongwith her child, with no other person to take care of herself and the child. She had gone to her parents� house at Aurangabad on 1st February, 2014. She stated that on 13th February, 2014, she received a telephonic call of her neighbor that her husband/appellant and his nephew Imran, Amir and Azeem had broken the lock of her house, on hearing which, she alongwith her brother/deceased and nephew Afzal reached her matrimonial house at Dayal Pur and found the lock of her house broken and hanging on the kundi. She asked her nephew to make a call at number 100, but as the police did not arrive, the deceased and Afzal went to the Gali and after some time, she heard noise of quarrel and crying. She and her mother Jabunisa saw from the window of her house that the appellant hit a danda on the backside of the head of her brother/deceased and that her husband/appellant was accompanied by his nephew Imran, Amir and Azeem, who were also armed with lathis and dandas. When Afzal tried to save the deceased, Imran hit danda on Afzal forehead, after which, she came down from her house to the spot where the appellant was stating that �ye dono aaj bachne na paye�. After the first hit on the backside of his head, her brother/deceased became unconscious and fell on the ground and thereafter the appellant hit danda three time on the forehead of her brother/deceased. Public persons gathered there and all the four accused persons ran away. After some time, PCR van arrived and took Yunus and Afzal to GTB Hospital. In her cross-examination, she stated that her neighbour Nazma informed her that the accused had broken the lock at about 3:30 PM and that the police officials inspected the broken lock when they arrived after the occurrence. She further stated that the elder brother of the appellant Maqsood was present at the spot at the time of the incident.
12. ASI Deepak Kumar (PW-3) deposed that on the day of the incident, he was on duty at PCR van and at about 10 PM he received a call about quarrel at Gali No.7, D Block, Dayal Pur. On reaching the spot, he found two persons, of which one person was unconscious and the other one was in injured condition who disclosed his name as Afzal and the name of unconscious person as Yunus. With the help of the staff and a few public persons, he shifted Yunus in his vehicle and took him to GTB Hospital alongwith injured Afzal and at the hospital, Yunus was declared �brought dead�.
13. SI Naveen Rathi (PW-22) was the investigating officer in the present case who stated that on the day of the incident at about 10:25 PM he received the information regarding quarrel from the duty officer vide DD No.58B. He alongwith Ct. Naresh Veer reached the spot near H. No. D-153, Gali No.7, Dayal Pur and found blood at the spot. He called HC Ashok to guard the scene of crime while he left for GTB Hospital. He recorded the statement of injured Afzal (rukka Ex. PW-22/A) and handed over the rukka to Ct. Naresh Veer for registration of FIR. Thereafter, he alongwith the complainant Afzal reached at the spot where HC Ashok informed him that the crime team had left the spot after inspecting the scene of crime. He prepared the site plan (Ex. PW-22/B). He lifted blood on gauze (Ex. PW-22/C), blood-stained concrete (Ex. PW-22/D) and earth control (Ex. PW-22/E). Thereafter, a secret informer informed him that the appellant would pass from the old police post after some time, upon which, he alongwith Ct. Naresh Veer and the secret informer reached old police chowki, 33 foota road, Karawal Nagar. At about 3:45 AM, the appellant was seen coming from Karawal Nagar side and he was apprehended upon identification by the secret informer. The appellant was arrested vide arrest memo Ex. PW-22/F and his disclosure statement Ex. PW-22/H was recorded, pursuant to which, the weapon of offence i.e. danda was recovered from a vacant shop which was under construction in front of Sharma Medicos, 33 foota road, Dayal Pur. The said danda was seized vide seizure memo Ex. PW-22/J. The sealed parcels were deposited in the malkhana and on 14th February, 2014, the case file was handed over to SI Ajay at 9 AM and sent him to mortuary at GTB Hospital for getting the postmortem of the deceased conducted. At about 1:30 PM, SI Ajay produced the case file after getting the postmortem done and got the accused medically examined at Jag Pravesh Chandra Hospital. On 15th February, 2014, Section 302 IPC was added. In his cross-examination, he stated that the recovered danda was having five nodes and there was lining marks on it. There were blood stains on the danda.
14. Ct. Naresh Veer (PW-23) corroborated the version of SI Naveen Rathi and in his cross-examination stated that there were lining on the recovered danda because of which he can identify the danda and that there were blood stains on the danda when it was recovered.
15. Insp. Shalender Tomar (PW-24) stated that on 12th March, 2014, he was posted as the SHO of P.S. Khajuri Khas when he took over the investigation. He made search for the remaining accused persons but they were not found. On 29th April, 2014, he sent Ct. Rajesh to GTB Hospital for obtaining subsequent opinion of the danda. On 5th May, 2014, he called draftsman Insp. Mahesh Kumar for preparing the scale site plan (Ex. PW-19/A).
16. Dr. Garima Gautam (PW-18) deposed that on 13th February, 2014 at about 11:15 PM, Afzal was brought by ASI Deepak with alleged history of physical assault in Mustafabad at 10 PM. She observed that the patient was conscious and oriented. He suffered a laceration measuring 1 c.m. X 0.5 c.m. on left side of left eye.
17. Dr. Priyanka Dahiya (PW-26) stated that on 2nd May, 2014, she opined the nature of injuries on Afzal as �simple� on the basis of ophthalmology record as he was having a laceration of 1 x 0.1cm on outer side of left eye-lid. She endorsed her opinion on the I.O�s. application (Ex. PW-26/A).
18. In his statement under Section 313 of the Code of Criminal Procedure, 1973 (�Cr.P.C.�), the appellant stated that he was married to Shahna (PW-20) and was residing with her and his one year�s old child Md. Ubed at third floor of H.No.D-153, Gali No.7, Dayal Pur. He further stated that Shahna (PW-20) was residing with her parents at Ourangabad, Bulandshahar, U.P. for the past 10 months. He further stated that he made a call to the police and when he came from the factory, Yunus and Afzal alongwith two-three persons came to his house. He further stated that he went to the police station where he was arrested and denied having made any disclosure statement. He further stated that no danda was recovered at his instance and he stated that he was innocent and was falsely implicated in the present case and led one defence witness in his favour.
19. Maqsood Ali (DW-1) stated that on 13th February, 2014 at about 7 PM, when he was going to purchase vegetables, near the appellant�s house, Shahna, Jaibul, deceased and Afzal alongwith two-three persons asked him about the whereabouts of the appellant. He alongwith these persons went to the house of the appellant which was found locked. The deceased broke the lock of the house of the appellant and while the deceased was pulling the lock, his foot slipped on the staircase, pursuant to which, the deceased sustained some injuries on his head. After this, some neighbourers gathered there and someone made call at number 100. In his cross-examination, he stated that the appellant was his younger brother and that he did not inform ACP or any other senior police officer when the appellant was arrested or produced before the Court regarding the breaking of lock by the deceased and that the deceased had slipped on the staircase.
20. One of the main contention of the learned counsel for the appellant is that despite the fact that witnesses have stated that public persons collected when the quarrel was going on, no public witness was examined and only interested witnesses were examined. The prosecution has examined three eye-witnesses including the injured eye-witness. As stated by Afzal, it is only on hearing of the cries, neighbours also gathered at the spot when the appellant and the other accused ran away. Thus, even if during the course of incident or thereafter, public persons gathered, it is not necessary that all of them are eye witnesses and need to be examined. It is trite law that it is the quality of the witnesses and not the quantity of witness(es). Besides the other eye-witness, Afzal is an injured eye witness who was taken by the PCR to the hospital along with the deceased and while he was trying to save his uncle, he was given a danda blow on his left eye-lid by Imran. Hence, his testimony cannot be discarded merely for the reason that other public witnesses were not examined.
21. Further despite the fact that no blood was found by the Doctor on the danda, the danda as a weapon of offence is connected to the offence as witnesses have identified the same in the Court and an opinion has been rendered by the post-mortem Doctor that the injury to the deceased was possible by the said weapon. Based on the fact that the danda used for inflicting injuries to the deceased was a very heavy danda with nodes therein, the learned Trial Court has convicted the appellant for offence punishable under Section 302 IPC. However, learned Trial Court failed to appreciate the fact that the alleged offence was not committed by pre-meditation. It is the case of the prosecution itself that when Shahna came to know from the neigbour that her husband was breaking open the lock of the house where she was residing with her son prior to coming to her parents house, she along with her mother, brother and nephew left for Delhi and reached there at about 9.30 p.m. At the main gate of the house, the broken kunda was lying hanging and some goods were scattered. They made a call at 100 number, however, the police did not arrive. The offence has not taken place at the house of Shahna but slightly away from there on the road as even Shahna stated that she saw the beatings going on at the road. As per the statement of the appellant, he was not found at the house and rather, the complainant and her family came to him. In view of the fact that the appellant had no knowledge that Shahna and her family members were coming to Delhi, the case of the appellant squarely falls in the exception 4 to Section 300 IPC, thereby, the offence alleged against the appellant would fall in the category of one under Section 304-I IPC and not under Section 302 IPC in view of the nature of danda. Further, it was not a single blow given on the head of the deceased but three blows were given on his head as also the back, resulting in fracture and extravasation of blood in the skull as also fracture of the body of sternum. Therefore the decisions relied upon to show that in case of a single injury, offence punishable under Section 304-II IPC is made out are not applicable.
22. Consequently, the conviction of the appellant is modified from one under Section 302 IPC to Section 304-I IPC.
23. As per the nominal roll, the appellant had undergone sentence of 10 years 7 months 3 days including remissions. The appellant is thus directed to be released on the period already undergone.
24. Appeal is accordingly disposed of.
25. Superintendent, Tihar Jail is directed to release the appellant forthwith, if not required in any other case.
26. Copy of the order be sent to the appellant through Superintendent, Jail for updation of record and intimation to the appellant.
27. Order be uploaded on the website of this Court.

(MUKTA GUPTA)
JUDGE

(POONAM A. BAMBA)
JUDGE

JANUARY 24, 2023/akb

N.C.No.2023/DHC/000508

CRL. A. 998/2017 Page 1 of 17