Liyakat Ali & Anr. v. State N.C.T. of Delhi

1. The instant Appeal has been preferred by the Appellants herein challenging the Impugned Judgment and Order of Sentence dated 18.02.2003 and 20.01.2003 respectively passed by the Ld. Additional Sessions Judge, Tis Hazari, New Delhi (hereinafter referred to as “Trial Court”), convicting the Appellants for offences under Section 302/34 of the Indian Penal Code, 1860 (“IPC”) in SC No.113/1996 arising out of FIR No.284/96 registered at Police Station Patel Nagar, Delhi. Vide Order of Sentence dated 20.01.2003, the Trial Court sentenced the Appellants herein, to undergo simple imprisonment for life and to pay a fine of Rs.10,000/each and in case of default in payment of the fine, to undergo further simple imprisonment of 2 (two) years.

2. Shorn of unnecessary details, the facts leading to the filing of the instant Appeal are as follows – a. That a public call made by an unknown person on 02.05.1996 at about 10:50PM was recorded about a quarrel going on at Z Block, near Mosque at Police Station Patel Nagar, Delhi. b. As such, SI Satbir Singh (PW-18) along with Constable Satbir Singh (PW-3) reached at the spot and came to know that one Karamatullah, the injured was taken to the Humble Nursing Home, near Project Nagar. c. Thereafter, SI Satbir Singh (PW-18) along with Constable Satbir Singh (PW-3) reached the Humble Nursing Home, where they came to know that the injured was further taken to Khera Hospital. d. Pursuant thereto, SI Satbir Singh (PW-18) along with HC Hari Parkash and Constable Satbir Singh (PW-3) reached Khera Hospital, wherein, they found the injured admitted there. e. On getting to know that the injured was at the Hospital, SI Satbir Singh (PW-18) sent HC Hari Prakash to the spot, where they met one Sharafatullah (PW-13), brother of the injured, whose statement was recorded by HC Hari Prakash. f. Thereafter, SI Satbir Singh (PW-18) attested the signatures of Sharafatullah (PW-13) and made endorsement on the same and handed it over to Constable Satbir Singh (PW-3), whereafter FIR was registered bearing No. 284/1996 on 02.05.1996 under Sections 307 & 34 of the IPC. g. Pursuant thereto, SI Satbir Singh (PW-18) left for the spot where he met with Asgar Mehmood (PW-7) and Iftekhar Ahmed (PW-19), friends of the injured. After that, SI Satbir Singh (PW-18) called the photographer and the crime team. The crime team inspected the spot, prepared the site plan, collected the MLS of the injured, seized blood stained earth, blood stained cotton and earth control and prepared three parcels and affixed the seal of SS in each of the said parcels and seized them. h. SI Satbir Singh (PW-18) then recorded the statements of Asgar Mehmood (PW-7), Iftekhar Ahmed (PW-19) and Constable Satbir Singh (PW-3) and deposited the case property with the MHC(M) in the Malkhana at the Police Station, Patel Nagar, Delhi. i. In the meanwhile, PW-18 received DD No.39-A, and was apprised about the death of the injured Karamatullah. Further investigation was handed over to SHO Sh. Mahender Singh (PW- 15), Police Station, Patel Nagar, Delhi. Thereafter, Section 302 of the IPC was added to the FIR No. 284/1996. j. On 03.05.1996, after hearing about the death of Karamatullah, SHO Mahinder Singh (PW-15), along with SI Satbir Singh (PW-18), Constable Gandharav and Constable Devinder, reached the Khera Hospital and collected the death summary of the deceased and further recorded the additional statement of Sharafatullah (PW-13). Thereafter, the dead body of the deceased Karamatullah was sent for post mortem. k. The police arrested one of the three accused persons Nazakat Ali from the bus stand, Ranjeet Nagar on 04.05.1996 and the further investigation was handed over to Additional SHO Ved Prakash. However, since Additional SHO Ved Prakash was on leave, the same was handed over to SI Manzar Khan (PW-20), who arrested the other accused persons Liyakat Ali (Accused No.1) and Riyasat Ali (Accused No.2). l. During further investigation, the knife and weapon of the offence were taken into possession after it was pointed out by the accused Riyasat Ali on 25.05.1996. Thereafter, the post mortem report and exhibits were sent to the CFSL, Chandigarh for its opinion. m. All the accused persons after being charged under Sections 302/34 of the IPC, pleaded not guilty and chose to be put on trial. However, one of the accused persons namely Nazakat Ali was delinquent, therefore he was tried before Learned Juvenile Justice Board. n. Vide Impugned Judgment and Order of Sentence dated 18.02.2003 and 20.01.2003, respectively the Trial Court convicted the Appellants herein i.e. Liyakat Ali and Riyasat Ali for offences under Sections 302/34 of the IPC and were sentenced to simple imprisonment for life along with a fine of Rs.10,000/- each and in case of default in payment of the fine, each of the convict to undergo further simple imprisonment of 2 (two) years. o. It is these Judgment and Order of Sentence, which are under challenge in the instant Appeal.

3. Learned Counsel for the Appellants submitted that the Trial Court has gone wrong in not appreciating: (i) the material contradictions in the statements of the witnesses; (ii) the interests of the witnesses; (iii) the required degree of proof so far as the records/documents relied upon by the prosecution are concerened; and (iv) the non-availability of the motive against the appellants. He also submitted that the Impugned Judgment and Order of Sentence are based on hypothetical approach and are full of surmises and conjectures.

4. It is contended by the Learned Counsel for the Appellants that the entire case of the prosecution is solely based and depends upon the testimony of only three alleged eye-witnesses i.e. PW-7, PW-13 and PW-19 and that there are serious discrepancies in the statements of the said witnesses. It is also stated that the testimony of PW-13 is not supported by testimonies of PW-7 and PW-19.

5. For the sake of convenience, the list of discrepancies in the testimonies of witnesses as contended by the Learned Counsel for the Appellants in the case of prosecution are as follows – a. As per PW-13, on 05.05.2000, stated that the deceased was taken from the crime scene to Humble Nursing Home on foot, whereas, on 06.11.2000, he changed his stance by stating that the deceased was taken by hand-cart instead on foot. The said statement of PW-13 cannot be corroborated by the statements of PW-7 and PW-19, since they stated that the deceased was taken on foot and by hand-cart respectively. b. As per PW-7, there was no presence of Doctor at Humble Nursing Home. However, this is contrary to the statement of PW-13, who stated that the Doctor was present but did not mention the specific place and the statement of PW-19, who stated that the Doctor was present at the reception. However, PW-8, Dr. Ansar Ahmed, on 03.06.2000, deposed that he was eating dinner at his residence on the 2nd Floor of Humble Nursing Home and his son informed him about the deceased, who had been brought to his Nursing Home by PW-13 and some other public person. c. As per PW-7, the deceased was transferred from Humble Nursing Home to Khera Hospital in Maruti car of the Doctor. He was accompanied by the Doctor, PW-19 and one more person whose name he didn’t remember. Whereas, PW-13, stated that he had taken the deceased to Khera Hospital either in a Maruti car of PW-8 or in a three wheeler scooter, but he was not definite about it. He also stated that he did not remember who else except PW-8 accompanied him to Khera Hospital. However, PW-19, stated he had returned home from Humble Nursing Home. It is pertinent to mention that PW-8 stated that he immediately took the deceased to Khera Hospital on his arriving at the Humble Nursing Home, in a TSR along with the brother of the deceased, PW-13. d. PW-7, on 29.11.1999, stated that his clothes got stains of blood but they were not seized by the police. He also stated that he did not know whether the other public person had blood stains on their clothes or not. However, PW-7, on 06.11.2000, stated that he lifted the deceased in his arms and there were no stains of blood on his clothes, whereas, PW-13 stated that there were blood stains on his clothes while he lifted his brother and that neither did he handover the blood stained clothes to the police nor the police asked him for it. PW-19 also stated that he had no stains of blood on his clothes. e. As per PW-7, the persons present at the Khera Hospital were Mukhtiar Ahmed, PW-13, PW-19 and police, whereas, PW-13 stated that he does not know whether PW-7 and PW-19 were present at Khera Hospital. f. PW-7’s elder brother Ansar Akhtar is son-in-law of maternal uncle of the deceased. Whereas, PW-13 is the brother of the deceased and PW-19 is the son of the maternal uncle of the deceased. It is submitted by Learned Counsel for the Appellants that PW-13 and PW-19 were mere spectators without trying to rescue the deceased or intervene. g. Further, PW-13 stated that he cannot tell what clothes were worn by the deceased at the time of his stabbing, whereas, PW-19 stated that the deceased was wearing pant and shirt. On the contrary, Dr. K. Goel, (PW-16) stated that the deceased was in lungi/tehmat. h. Thereafter, PW-7 stated that there was a police booth present adjoining to the place of incident, whereas, PW-13 stated that there was no police booth present. i. PW-7, on 29.11.1999, stated that police had reached Humble Nursing Home from where they left for Khera Hospital together. However, on 06.11.2000, the same PW-7 stated that he met with the police for the first time at Khera Hospital. PW-13 stated that he saw the police for the first time at Khera Hospital and PW-19 stated that he could not tell when and where the police came in connection with this case. j. PW-13 and PW-19 both stated that they were not present at the time of recovery/seizure of the weapon – knife. k. PW-7 stated that his statement was recorded in police station and that his statement was not recorded by the police in Khera Hospital, whereas, PW-13 stated that his statement was recorded by the I.O. in police station about mid-night. PW-19 stated that his statement was recorded by the police at around 1-1:30 AM at the crime scene itself and that he cannot tell when and where his statement was recorded by the police.

6. Per contra, the learned APP for the State submitted that the statement of PW-13, had been recorded in Khera Hospital by PW-18 on the basis of which an FIR was recorded. The said statement of PW-13 was recorded within the period of two hours from the time of the incident. Also, the accused persons have not disputed the time of the incident. He further submitted that during the cross-examination of the eye-witnesses, the accused persons did not cross-examine the eye-witnesses about the reasons and instances for their false implication in the present case.

7. Furthermore, learned APP for the State submitted that the testimony of witnesses cannot be disregarded merely on the basis that they are interested/related witnesses. Although PW-13 is an interested/related witness, he was in a position that he was a witness to commission of the offence and was able to identify the accused persons. Therefore, the Trial Court had evaluated the evidence appropriately and the prosecution also proved the case against the Appellants herein beyond reasonable doubt, and hence, were rightly convicted under Sections 302/34 of the IPC.

8. Heard learned counsel for the parties and perused the material on record.

9. Before adverting to the merits of the case, it is apposite for this Court to examine and evaluate the testimonies of the witnesses given before the Trial Court.

10. Sharafatullah, (PW-13) deposed that on 02.09.1996 at about 9:30PM after taking his dinner when he was going to the beetle shop near a mosque, he saw his deceased brother Karamatullah was sitting along with his friends PW-7 and PW-19 on a bench which was lying outside the tea shop. Meanwhile, the accused persons Liyakat Ali and Riyasat Ali, who were known to him even prior to this incident and accused Nazakat Ali, facing trial in Juvenile Court was also known to him prior to the incident, also happened to be there. The accused Liyakat Ali asked his deceased brother, Karamatullah that he had been demanding an amount of Rs.5000/- again and again which he had given as a loan to the accused Liyakat Ali. As such the accused Liyakat Ali used to feel humiliated and further told his deceased brother that he will teach him a lesson. He further deposed that immediately thereafter, accused Riyasat Ali caught hold of his deceased brother from the back and accused Liyakat Ali gave repeated knife blows on his deceased brother and went on giving knife blows. He further stated that accused Nazakat Ali also started giving knife blows on his deceased brother. Upon this, he, PW-7 and PW-19 raised an alarm, whereafter the accused persons left the spot leaving his then alive brother in pool of blood. He with the help of some public person took his deceased brother to Humble Nursing Home. Meanwhile, police came to the Hospital and recorded his statement, which bears his signatures at Point A.

11. In his cross-examination PW-13 stated that PW-19 was his real maternal uncle and that he was not aware whether the witness PW-7 was the younger brother of son-in-law of his maternal uncle. He admitted that there was a shop of cold drink and also hotel adjoining the pan shop. The shop of cold drink was run in the name and style of Pammi Cold drink. The Hotel used to be run by Salim. He also admitted that the tea shop was a corner shop having opening on two sides of the road and that all the four iron benches were lying towards main road side which leads to Mosque. His deceased brother was lying in resting position on second bench from the side and both the witnesses cited by the prosecution were sitting on the bench from the shop side and they both were talking to the deceased at that time. The entire incident took place in approximately two minutes and he could not reach to the place of the occurrence. He was quite close to the place of the occurrence at the time of the occurrence. He took his brother to the nursing home. There was a trail of blood from the side up to the Humber Nursing Home. The Doctor was called from upstairs when they reached there. He saw police for the first time in Khera Nursing Home. His brother Karamatullah was alive till he was taken to Khera Hospital. He came to know about the death of his brother on the next day of his brother’s demise. He was not present at the time of recovery of knife used in the incident. He identified the knife in the Court as he had seen the accused persons stabbing his brother with the same on the date of the incident. He denied the suggestion that at the time of the incident neither he nor the prosecution witnesses at the spot. He further denied that none of the accused persons borrowed any money from this brother or that there was no dispute between him and the accused persons regarding the return of Rs.5,000/- as alleged by him in his chief. He further denied the suggestions that he had not disclosed the name of murderers of his brother or that he had falsely implicated the accused in the present case.

12. The prosecution has also examined Asgar Mahmood, (PW-7) who stated that he, PW-19 and the deceased Karamatullah were friends prior to 02.05.1996 and that on the date of the incident at about 09:00 PM, he along with his friends reached the tea shop owned by one Mr. Ismail. They sat on the benches outside the tea shop and started talking. After about 15-20 minutes, the accused persons Liyakat Ali and Riyasat Ali along with another accused Nazakat Ali who was known to him came to the spot. The accused Liyakat Ali and the other co-accused persons started abusing the deceased Karamatullah and also told that every time he was asking for the refund of Rs.5,000/- and that they would teach him a lesson on that day. The accused persons Liyakat Ali and Nazakat Ali, thereafter, started giving knife blows to the deceased Karamatullah, who thereafter, got up and started running towards his house. While running towards his house he fell down on the table near Slim Hotel. The accused persons Liyakat Ali and Nazakat Ali once again gave knife blows to him. When the deceased Karamatullah was running, the accused persons were chasing him and they got frightened as they had never seen such type of incident prior to this. Thereafter, sufficient blood had oozed out from the body of the deceased Karamatullah and he started raising an alarm. Pursuant thereto, people started gathering at the spot. His brother PW-13, who was standing in front of the Pan Shop situated near the Masjid also came to the spot after hearing the said alarm. The deceased Karamatullah fell on the ground and he almost became dead and people also started gathering there. On seeing public persons being gathered at spot, the accused persons Liyakat Ali and Nazakat Ali ran away from the spot. He further stated that he along with PW-13 and some other public person took the then injured Karamatullah to Humble Nursing Home, New Ranjit Nagar, where on seeing his condition, he was referred to be taken to Khera Hospital. He was then taken to Khera Hospital, where he was declared dead. On 02.05.1996/03.05.1996 at about 1/1:30 AM, the photographer reached the spot and took photographs of the same. The police lifted the blood samples from the ground with the help of cotton and they also lifted blood stained earth samples. The said blood stained cotton sample, blood stained earth samples and earth control sample were taken into possession by the IO after the three pulandas of the same were prepared and affixed the seal on each of the pulandas, but he does not remember the initials on the seal. At the same time, the blood stained earth and earth control samples from the spot were kept in a different vial and three pulandas were prepared and duly sealed with the same seal and seized vide memo (Ex. PW-7/B) which bears his signatures. After this, his statement was recorded. On the next date i.e., 04.05.1996, he was with the police when they searched for the accused persons and his presence on his pointing out the accused Nazakat Ali was arrested.

13. During the cross-examination, Asgar Mahmood, (PW-7), he stated that the name of the deceased’s father was Hashmatullah and the name of his mother was Naseem Begum. He admitted that Abdul Satar is the brother of Naseem Begum. He denied the suggestion that his wife is the daughter of Abdul Satar. He admitted that at the place of occurrence there were shops and multi-story buildings. He reached the place of occurrence about 30 minutes prior to the incident. He along with PW-19 were sitting on the bench lying adjacent to the wall. The deceased Karamatullah was lying on the third bench and they were facing towards him. He admitted that PW-19 was the cousin of the deceased Karamatullah and was the son of the maternal uncle of the deceased Karamatullah. There was one tube light which was lit at the time of occurrence of the incident and was situated near the hand pump. It took only about 15/20 seconds between the warning and the assault by the accused persons on the deceased. He could not tell as to how many knife blows were given by each of the accused on the deceased Karamatullah. Thereafter, he admitted that there was a shop of cold drink adjoining the Pan Shop and that there was a Salim Indian Restaurant adjoining the shop of the cold drink. He also admitted that the police booth was also adjoining the place of the incident. On seeing the accused persons Liyakat Ali and Nazakat Ali stabbing the deceased Karamatullah at the time of the occurrence of the incident, he ran towards Bhundu Bakery and stood there near the staircase. He admitted that the place of incident was not visible from the house of PW-13. After raising of alarm by the said PW-13, a large crowd had gathered there. He did not know whether shopkeepers were also present in the crowd or not. He admitted that the financial condition of the deceased Karamatullah was not appropriate. One accused person ran from one side and the other two accused persons ran away together from another side after the incident was over. Thereafter, while taking the deceased to Humble Nursing Home, their clothes got blood stained at that point of time. However, police did not seize their blood stained clothes. He further submitted that he remained outside the Nursing Home at that time. He further denied the suggestion that he was not a witness to the incident or that he did not inform the police about the incident.

14. Iftikhar Ahmed, (PW-19) deposed that on 02.05.1996, at about 09:30 PM, he along with PW-7 and deceased Karamatullah were sitting outside the shop of Ismail and talking to each other. The said shop was closed at that time and they were sitting on the bench. Meanwhile, accused persons Liyakat Ali and Riyasat Ali, who were present in Court that day, and the third accused Nazakat Ali who was facing trial in Juvenile Court came to the spot. The said accused persons were known to him prior to this incident. Further, the accused Liyakat Ali gave a Lalkara to the deceased by saying that he had felt insulted for the repayment of Rs.5,000/- and he would finish this matter the same day itself. Another accused Riyasat Ali caught hold of the deceased from the back side while the accused Liyakat Ali gave knife blows to the deceased Karamatullah. Thereafter, the accused Nazakat Ali who was also armed with knife also gave knife blows to the deceased Karamatullah. The said accused persons gave several knife blows to the deceased Karamatullah. He submitted that the deceased tried to save himself by running from the spot but the accused persons continued to give knife blows to him. Meanwhile, as the PW-7 raised an alarm of bachao bachao, on hearing it many people gathered there. Thereafter, he along with public persons, took the deceased to Humble Nursing Home, New Ranjit Nagar where PW-8 referred the deceased to be taken to Khera Hospital. Thereafter, he was accompanied by public persons and PW-8 who took the deceased Karamatullah to Khera Hospital and got him admitted there. When they reached Khera Hospital, the police also reached there. He stated that he identified the knife (Ex. PW-20) to be the same weapon with which the deceased Karamatullah was assaulted by the accused persons.

15. In the cross-examination, PW-19 stated that he had seen the knife which was in the hand of accused Nazakat Ali. Further, the stabbing incident continued for about 5 minutes and when the first knife blow was given to the deceased Karamatullah by the accused Liyakat Ali, he immediately got up from the bench and thereafter, the deceased Karamatullah was caught hold by the other accused Riyasat Ali from behind and the remaining two accused persons gave repeated knife blows to him.