Mohd. Shamim v. State (Govt. of NCT of Delhi)

(viii) The police did not preserve any fingerprints, if any, found on the recovered knife in order to match the same with those of the Appellant; and it therefore seems that the knife was planted by the police to falsely implicate the Appellant in the crime.

(ix) The FSL Examination Report (Ex.PW-32/A) states that no cut mark was caused by the knife on the shirt of the deceased, and thus, it is beyond imagination as to how the deceased could have been stabbed on his chest without there being any cut marks on his shirt.

(x) The prosecution has failed to establish that the blood found on the handkerchief matched with the blood of the deceased. It has been further canvassed that since the handkerchief was recovered from a public place, and the blood was not matched with that of the deceased, the prosecution story in this regard cannot be believed.

(xi) It is also submitted that the prosecution has failed to establish a motive for the commission of the crime by the Appellant.

7. We have carefully considered the submissions made by learned counsel for the Appellant and the learned APP; have closely examined the evidence marshalled by the prosecution; and have perused the impugned judgment and sentencing order.

8. The homicidal death of the deceased is not under dispute. It was specifically stated by PW-19 (Dr. S. Lal) in the Postmortem Report (Ex.PW-19/A) prepared by him as well as in his testimony before the learned Trial Court that the injuries upon the deceased were sufficient to cause death in the ordinary course of nature. The postmortem on the dead body of the deceased was conducted by PW-19, who by his testimony proved the Post Mortem Report. It was stated by PW-19 that the cause of death was “hemorrhagic shock due to ante-mortem stabbed injuries to chest vessels. Injury No.1 was stated to have been caused by single, pointed, sharp edged weapon and was fatal. Injury No.2 was stated to have been possibly caused by an unevenly sharp weapon (glass)”. It was also stated therein that the injury could have been caused by the weapon i.e., the knife, that had been produced for examination before PW-19. Furthermore, PW-12 (Dr. Naveen Kumar Agarwal), in the death summary (Ex.PW-12/A), stated that the cause of death was “Myocardial Pump failure in a c/o stab injury to rt. side of chest with hemothorax in a post-op c/o Thoracotomy with circulatory shock...... ”; and further stated that the deceased also suffered acute renal shut down with hypoxic brain injury. Further, a reading of the testimonies of PW-6, PW-7 and PW-8, would reveal that the deceased had approached the PCR van and stated that some boys had stabbed him with a sharp object. These prosecution witnesses have also deposed that the deceased was bleeding from his chest and his shirt was also covered with blood. The deposition of PW-5, Duty Constable at Hindu Rao Hospital, where the deceased was taken by PW-6, PW-7 and PW-8, corroborates the deposition made by PW-6, PW-7 and PW-8 with regard to the condition of the deceased. The testimony of PW-3, who recorded DD No.33 (Ex.PW-4/A) with regard to the incident, further corroborated the prosecution case of the injury being on the chest. He deposed that he was informed telephonically by PW-9 that the deceased had a wound on the right side of his chest.

9. In his statement under Section 313 of the CrPC, the Appellant abjured his guilt and pleaded that had been falsely implicated. He also said in his Section 313 Cr.P.C. statement that he did not want to lead any evidence in his defence.

10. The only question which thus subsists is, whether the Appellant is responsible for causing the death of the deceased by inflicting stab injuries on his person.

OCULAR TESTIMONIES

11. The prosecution story rests on the ocular evidence of PW-1, PW-13, and PW-18. The prosecution has also canvassed that the crime was committed owing to a grudge that the deceased gave information about the Appellant and his absconding accomplice to the police. The prosecution has also relied upon the recovery of the blood-stained handkerchief as well as a knife at the instance of the Appellant.

12. PW-1 had stated in his testimony that he had seen the Appellant hit the deceased with a fist blow on his chest which caused bleeding through his chest, and further that the Appellant may have been carrying a sharp object. He further stated that the Appellant’s co-perpetrator hit the deceased with a broken glass bottle; after which both, the Appellant and his co-perpetrator dragged the deceased to the railway tracks. PW-1 also identified the Appellant before the Trial Court. In his testimony, PW-1 also stated that he heard the Appellant and his co-perpetrator say that the deceased had passed on information to the police, before committing the crime. In his cross-examination, PW-1 reiterated that he had heard the Appellant say that Mukesh was passing on information about the Appellant to the police. He also clearly deposed about there being a quarrel between the deceased and the Appellant and his co-perpetrator, in his crossexamination. He also stated that PW-15, PW-18 and PW-14 were also present there at the time of the commission of the crime.

13. The testimony of PW-18 is corroborative of the statement of PW-1, to the effect that the Appellant gave fist blows to the deceased on his chest holding a sharp object. Further, the testimony of PW-18 reveals that the Appellant asked the deceased whether the deceased had given information about the Appellant to the police and immediately thereafter inflicted injuries upon him. PW-18 also stated that there was blood lying on the ground where the crime was committed.

14. A reading of the testimony of PW-13 would make it clear that he saw the Appellant and his co-perpetrator inflict injuries upon the deceased’s chest with a sharp weapon, seemingly a knife and a broken glass bottle. PW-13 also stated that right before committing the crime upon the deceased, he heard the Appellant say to his brother that the Appellant would teach the deceased a lesson for getting him arrested by informing the police about him.

15. In view of the above, contrary to the contentions raised on behalf of the Appellant, there appear to be no contradictions between the eyewitness accounts of PW-1, PW-18 and that of PW-13; which would render the evidence led by the prosecution unreliable or make it lose or efface its credibility; thereby belying the case of the prosecution. The questions raised on behalf of the Appellant, as to why PW-13 did not inform the police or take him to the hospital, do not have the effect of casting a shadow on the testimony of PW-13. It was stated by PW-13 in his testimony that he ran away from the spot due to the fear and shock of having witnessed the heinous crime committed against his elder brother. The statement made by PW-13 corroborates the prosecution case as well as the testimony of the other eyewitnesses to the crime i.e. PW-1 and PW-18. Thus, the mere fact that he did not inform the police or did not intervene to save his brother from persons armed with deadly weapons, does not make his testimony unworthy of credit.

16. Further, it is sufficiently clear from the above discussion that the contention made on behalf of the Appellant that it was improbable for the eyewitnesses to have seen or heard anything, in the absence of cogent evidence, holds no water and is thus, rejected.

17. It is also pertinent to note that the only contradiction that occurs in the testimony of PW-1 and PW-18, both eyewitnesses to the crime, is with regards to the manner in which the deceased was carried to the railway tracks after he had been inflicted with injuries by the Appellant and his co-perpetrator. PW-1 has stated that the Appellant and his co-perpetrator dragged the deceased, whereas PW-18 deposed that he was carried by them on their shoulders. However, the testimonies of PW-1, PW-18 as well as PW-13 corroborate the prosecution story with respect to, (i) the manner in which the injuries were inflicted i.e. fist blow with a sharp object, seemingly a knife, which led to bleeding alongwith injuries inflicted with a broken glass bottle;

(ii) the weapons used in the crime i.e. a sharp object, seemingly a knife and a broken glass bottle; (iii) the remarks made by the Appellant to the deceased which were immediately followed with the violent blows; (iv) and the place on the person of the deceased where injuries were inflicted i.e. right side of the chest of the deceased. Therefore, a contradiction that does not go to the root of the matter, cannot shatter the prosecution’s case or taint the overwhelming ocular evidence which has been completely supported by medical opinion, the FSL results as well as by way of the recoveries made in the case. [ref: State v. Saravanan, reported as (2008) 17 SCC 587] RECOVERIES MADE PURSUANT TO THE DISCLOSURE STATEMENT

18. A perusal of the statement of PW-30, the Investigating Officer (I.O.) of the matter, would reveal that the Appellant informed the police that a handkerchief was used by the Appellant to wipe-off the blood from the knife, which was the weapon of offence. The handkerchief was subsequently recovered upon pointing-out by the Appellant from near the spot of the crime. The testimony of PW-22 (Head Constable Narain Dass), is corroborative of the fact that recovery of the blood-stained handkerchief was made upon the pointing-out of the Appellant; and further of the fact that he had wiped-off the blood from the knife using the handkerchief. The statement of PW-22 would also reveal that the Appellant stated that he used the knife to commit the crime. The FSL results have corroborated the fact that the blood found on the handkerchief was, in fact, human blood. Further, the testimony of PW-17, is also corroborative of the fact that the Appellant stated that he had used the knife to commit the crime and thereafter wiped the blood off it with a handkerchief. Further, the testimony of PW-17 also supports the fact that at the pointing-out of the Appellant, recovery of handkerchief was made, with which the Appellant had statedly cleaned the blood.

19. The I.O.’s statement would further reveal that, upon the pointing-out by the Appellant, the police also recovered the knife from the Bawana Canal. The statement made by PW-30 with regard to the recovery of the knife being made at the instance of the Appellant is also corroborated by the statement made by PW-23 (Constable Gajender Singh), as well as by the deposition of PW-22. The statements of PW-23 as well as PW- 22 would also reveal that some dried blood/blood stains were found on the blade of the knife.

20. The contention of learned Counsel for the Appellant that there was no blood found on the knife and therefore the prosecution story ought to be disbelieved, cannot resultantly be accepted. It is clear from the evidence led by the prosecution, specifically by the statements of PW-23 and PW-30, that the Appellant had wiped-off the blood from the knife with the recovered handkerchief and thus only some dried blood was found on the knife. As a consequence thereof, no conclusive FSL results could be returned for presence of blood on the knife.

21. The statement made by PW-19, would further reveal that in his opinion, the cause of death was hemorrhagic shock due to antemortem stab injuries to chest vessels. He also opined that Injury No.1 was caused by a single, pointed, sharp-edged weapon and was fatal in nature. He further deposed that Injury No.1 as mentioned in the Post Mortem Report could have possibly been caused by the knife produced before him in Court.

22. The report of the Chemical Analyser exhibited as Ex.PW-32/A also demonstrates that human blood was detected on the shirt of the deceased, and was also found on the cement pieces obtained from the crime spot.

23. It would also be relevant to point-out that the evidence would reveal that the police had requested public persons to join the investigation whilst the police was trying to make the recoveries pursuant to the disclosure statement of the Appellant but no public person was willing to do so. Even otherwise, it is the settled position of law that recoveries cannot be mistrusted solely for the reason that no independent, public persons were joined during the making of such recoveries. Therefore, the contention made on behalf of the Appellant assailing the recoveries on that count, cannot be accepted. [ref: Lekhraj vs. The State, Criminal Appeal No.16/2002, decided on 21.08.2019, reported as 2019 VIII AD (Delhi) 1]

24. The contention on behalf of the Appellant that since the shirt of the deceased had no cut marks as found in the Ex.PW-32/A, the prosecution story of the deceased having been stabbed in the chest could not be believed, cannot be accepted in the face of the entire countervailing evidence which proves the nature and place of the injury as well as the weapon used to inflict the same upon the deceased.

25. Furthermore, in view of the FSL reports read in conjunction with the testimony of the police officials with regard to the recovered handkerchief, it is sufficiently clear that blood was found on the handkerchief. The fact that fingerprints on the knife were not preserved and that the FSL examination returned results stating that there was no reaction regarding the blood on the knife, does not outweigh or diminish the value of the clinching ocular evidence led by the prosecution in the present case. [ref: Abdul Sayeed vs. State of Madhya Pradesh, reported as (2010) 10 SCC 254] MOTIVE OF THE CRIME

26. It is trite law that the issue of motive becomes irrelevant when there is direct evidence of a trustworthy witness regarding the commission of the crime. [ref: Sunder Lal vs. State, reported as 2019 (3) JCC 3411 and Bipin Kumar Mondal v. State of West Bengal, decided by the Hon’ble Supreme Court on 26.07.2010 in Criminal Appeal No.1247 of 2008, reported as (2010) 12 SCC 91]. However, the present case is one where substantial evidence establishing motive for the commission of the crime has been led by the prosecution. The case of the prosecution is that the Appellant alongwith his co-perpetrator, murdered the deceased believing him to be an informer of the police. Thus, the motive behind killing the deceased was that, according to the Appellant, the deceased had provided information about him to the police which had led to his arrest in the recent past.

27. The ocular evidence led in the instant case would make it abundantly clear that PW-1, PW-16 and PW-18 had heard the Appellant making remarks to the deceased about the latter informing the police about him, right before committing the crime upon the latter’s person. In his testimony, PW-13, the younger brother of the deceased, stated that he heard the Appellant say to the deceased that, “Sale tune meri mukhbiri kar ke police me pakdhwaya tha aaj tujhe iska sabak sikhata hu”. (You informed the police about me to get me arrested, and so today, I will teach you a lesson for that.)

28. Further, PW-14 stated in his testimony that he saw the Appellant after the incident at Lallu Park, Dayabasti where he asked the Appellant why he had quarrelled with the deceased and inflicted blow injuries upon him. PW-14 further deposed that answering his question, the Appellant told him that the deceased was a secret informer of the police and had given information about him to the police.

29. Furthermore, a perusal of the testimony of PW-30, would reveal that when the Appellant was apprehended, he informed the police that he killed the deceased because the latter had given information to the police (P.S.: Anand Parbat) about him that led to his arrest. PW-30 has also testified that he confirmed this information from P.S.: Anand Parbat, and it was found that the Appellant had, in fact, been arrested by the police under Section 110(g) read with Section 111 of the Cr.P.C. The factum of the prior arrest of the Appellant on the intervening night of 19/20.07.2011 was also testified by PW-29 (Sub-Inspector Bal Mukund Rai), in his testimony.

30. Therefore, in view of the above, it can be reasonably concluded that the prosecution has successfully proved that the Appellant believed the deceased to be a secret informer of the police; and that the deceased was the one who informed the police about the Appellant, which ultimately led to the Appellant’s arrest. Thus, owing to spite, the Appellant intentionally inflicted fatal injuries on the vital body parts of the deceased with a knife, alongwith his co-perpetrator who inflicted injuries upon the deceased with a broken glass bottle, which led to the unfortunate death of the deceased.

31. In view of the discussion above, there is overwhelming ocular evidence in the case pointing towards the guilt of the Appellant beyond reasonable doubt, when coupled with (i) recoveries made pursuant to the disclosure statement of the Appellant, of the weapon of the crime i.e. the knife, and the blood-stained handkerchief which was used to wipe-off the blood from the knife; (ii) FSL reports regarding the presence of blood on the handkerchief; (iii) the medical evidence with regards to the stab injuries which were opined to have been caused by the knife, which were fatal in nature, and likely to cause death in the ordinary course of nature; (iv) motive for the commission of the crime i.e. Appellant’s belief that the deceased provided information to the police that led to his arrest.

32. Thus, in our considered opinion, there is no merit in the appeal and the decision of the learned Trial Court warrants no interference or modification. Judgment dated 24.04.2019 convicting the Appellant as well as the order on sentence dated 30.04.2019, passed by the learned Trial Court, are accordingly upheld.

33. The present Appeal is therefore dismissed. Pending applications, if any, are also disposed of.

34. There shall however, be no order as to costs.

35. A copy of this judgment be communicated to the Appellant through the Superintendent, Central Jail, Tihar, New Delhi and be also uploaded on the website of this Court forthwith.

SIDDHARTH MRIDUL (JUDGE)

ANUP JAIRAM BHAMBHANI (JUDGE) OCTOBER 12, 2021 Click here to check corrigendum, if any