Mohd. Wazir and Anr v. The State

1. Both these appeals arise out of a common judgment dated 14.07.2000 passed by the learned Trial Court in Sessions Case No.142/98, FIR No.49/96, Police Station Kalyan Puri and the order on sentence dated 20.07.2000, by which all the appellants have been held guilty for the offence punishable under Section 452 and 302 of the Indian Penal 2017:DHC:3680-DB Code (hereinafter referred to as ‘IPC’). Appellant Abdul Karim has been sentenced to imprisonment for life for the offence punishable under Section 302 IPC with a fine of Rs.5000/-, in default of payment of fine to further undergo rigorous imprisonment for one year. Appellants Zi-Ul-Haq and Mohd. Wazir have been sentenced to imprisonment for life for the offence punishable under Section 302 read with Section 34 IPC with a fine of Rs.5000/- each, in default of payment of fine to further undergo rigorous imprisonment for one year each. All the three appellants have been further sentenced to undergo rigorous imprisonment for three years each for the offence punishable under Section 452 IPC with a fine of Rs.2000/- each, in default of payment of fine, to further undergo rigorous imprisonment for six months each. Both the sentences were ordered to run concurrently.

2. Since both the appeals arise out of the common judgment and order on sentence, the same are being disposed of by a common judgment.

3. Before the rival submissions of learned counsel for the parties can be noticed, we deem it appropriate to state the case of the prosecution as noticed by the learned Trial Court, which is reproduced as under: “On 9.2.96 Shri Kalicharan lodged a report with the police, alleging therein that he resides at House No.E-40, Gali No.2, East Vinod Nagar, Delhi, alongwith his family and runs a shop at premises No.12/66, Kalyan Puri, Delhi. He deals in threads and buttons at the aforesaid shop. From the last 5-6 months he was purchasing threads from a factory located at Basti Chunot, Ram Nagar, Paharganj, Delhi. Zia-Ul-Haque, Abdul Karim @ Gulab and Mohd. Wazir, who are the brothers, have been dealing with him and they used to supply threads to him almost every week. In their dealings they used to supply goods on credit also. A sum of Rs.8500/- became due from him to the aforesaid three brothers. On 2.2.96, Abdul Karim and his brother Wazir came to his shop and supplied goods worth Rs.1550/to him. They demanded their balance amount too. On 8.2.96, at about 5 p.m. Abdul Karim and Zia-Ul-Haque came to his shop and demanded their money. They said that they were in great need of money. He replied that at that time, he was not in a position to pay and would arrange for their money within a day or two. At that juncture, they pressed for payment of their money, otherwise it would result into a serious consequence. They raised an altercation and left while extending threats to him. On 9.2.96, at 6.45 p.m., he was present at his home alongwith his wife and children. Zia-Ul-Haque, Abdul Karim and Mohd. Wazir came to his house and raised the demand for their money. They insisted that they would collect their money on that very day. In the meantime, his son Devender Kumar aged about 7 years went upstairs to toilet to ease himself. On the pretext of urinating, Abdul Karim also went upstairs. After a few moments, Zia-Ul-Haque and Wazir followed him. He became suspicious and went upstairs, where he saw that Zia-Ul-Haque had gagged the mouth of his son Devender from his right hand and Abdul Karim was stabbing his son with a knife. Mohd. Wazir was exhorting him to inflict more blows on his person. He went ahead to save his son and at that juncture, Wazir gave him a push and they threw his son Devender inside the toilet and went away. It was heavy rain at that time. He got up and raised an alarm “catch, catch, his son has been stabbed”. He also ran downstairs following them. They were seen while running by his wife and children. When they had run away then he alongwith his wife had lifted his child and took him to Saxena Nursing Home with the help of a jeep driver, who met them in the street perchance. There doctor told them that it was a police case and they should take the victim to a Govt. hospital. They had taken their son to AIIMS, where he was declared brought dead by the doctors. His son Devender Kumar had stab injuries on his abdomen, chest, left ribs, back and on the right ribs. His son was killed by Abdul Karim, Zia-Ul-Haque and Mohd. Waizir, after having a common intention in this regard. Action be initiated against them.”

4. The appellants were charged for the offence punishable under Sections 120-B, 452 and 302 read with Section 34 of IPC, to which they pleaded not guilty and claimed to be tried. To bring home the guilt of the appellants, the prosecution examined 22 witnesses in all. The statements of the appellants were recorded under Section 313 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’) wherein the appellant Zia-Ul-Haq admitted that he had supplied threads and buttons to PW[8] Kali Charan 6 months prior to the incident. However, he denied supply of goods to PW[8] Kali Charan in the month of February, 1996. Other allegations were denied by him and pleaded to be innocent and claims to be falsely implicated in the present case. The appellant Abdul Kareem stated that he had been falsely implicated in the present case as he was in love with Hira (daughter of Kali Charan). The appellant Mohd. Wazir reiterated the same as deposed by the appellant Abdul Kareem that his brother Abdul Kareem was in love with Hira and on that account he was also falsely implicated in the present case. The appellants examined two witnesses in their defence.

5. Learned counsel for the appellants submits that the learned Trial Court has erred in law in convicting the appellants under Section 302/452 of IPC. It is contended that the judgment of the learned Trial Court is contrary to law and facts. The learned Trial Court has failed to take into account that the witnesses were interested witnesses and despite neighbours and other public witnesses being available, no evidence was led. It is contended that the testimony of PW-8 Kali Charan is not reliable as he was not an eye witness. It is also contended that the learned Trial Court has heavily relied upon the testimonies of both PW-5 Rajneesh and PW-8 Kali Charan, whereas they were planted witnesses. It is also the contention of the learned counsel for the appellants that PW-6 Munni Devi, mother of the deceased, is also an interested witness; her testimony is unreliable and unworthy of reliance. The presence of PWs 6 and 8 is doubted having regard to the fact that despite the stand of the prosecution that the deceased was removed in an injured condition with ten injuries in a jeep, while he was in the lap of his parents, their blood-stained clothes were not seized, which would show that PWs 6 and 8 were not present at the place of the incident. Learned counsel further submits that since the alleged recovery of the weapon of offence from Nizamuddin has not been believed by the learned Trial Court and Nizamuddin stands acquitted, this factor alone would be sufficient to doubt the entire case of the prosecution against the appellants as well. Learned counsel has also very strenuously urged before this Court that the copy of the Special Report was not sent to the local Magistrate expeditiously.

6. It is contended that the FIR was ante-dated and time was taken to falsely implicate the appellants on account of the fact that appellant Abdul Karim had an affair with the daughter of PW-8 (sister of the deceased), which was not approved by the family and it is for this reason that the appellants have been falsely implicated. Reliance is placed on the judgment in the case of Meharaj Singh (L/Nk.) v. State of U.P., reported at (1994) 5 SCC 188, more particularly paragraph

12. Counsel further contends that that neither any public witnesses were examined nor public witnesses examined at the time of the arrest of the appellants. It is contended that the case of the prosecution would be unbelievable and improbable as according to the prosecution the appellant Abdul Karim was arrested while he was wearing the same blood-stained clothes as worn by him at the time of the alleged offence. Counsel contends that the weapon of offence was not believed by the learned Trial Court, which fact gains importance as the Doctor was not examined as to whether the injuries could have been caused by the said weapon.

7. The learned counsel contends that the driver of the jeep in which the injured was taken to the Hospital was not examined and despite the fact that PW-8 admitted in his cross-examination that neighbours were present, yet statement of none of the neighbours were recorded. Counsel also submits that since appellant Abdul Karim had an affair with the daughter of PW-8, it is for this reason that Hira was not examined despite the fact that she was available. Attention of the Court is drawn to the cross-examination of the mother of the deceased, wherein she has stated that her children were present and awake in the house. Additionally, counsel appearing for the appellants Mohd. Wazir and Zia-Ul-Haque have contended that there are no sufficient grounds in holding these appellants guilty or being party to the heinous crime of murder of child 07 years of age. Learned counsel further submits that the story of the prosecution is highly improbable and unbelievable as it is not possible for three persons to have escaped after murdering a 07 years old child in the presence of the entire family, human conduct is such that the parents of the child including the brother and sister would have made efforts to nab the culprits at the spot considering this fact that only one, out of the three persons were armed with the knife.

8. Per contra, Ms. Radhika Kolluru, learned counsel appearing for the State submits that the State has been able to establish its case beyond any shadow of doubt. The testimonies of the eye witnesses are truthful and reliable, including the testimony of child witness. It is further contended that the presence of the appellants stand duly established, the motive stands duly established, the weapon of offence has been recovered and as per the FSL report, blood of the deceased was found on the clothes of the appellant Abdul Karim. Blood group AB of the deceased was also matched on the clothes of the appellant Abdul Karim. Testimonies of all the witnesses being PW-5 Rajneesh, PW-6 Munni Devi, PW-8 Kali Charan, PW-12 Sanjay and PW-14 Prabha have been consistent and have deposed on identical lines as to the time and place of incident. The scientific evidence also connects the appellants with the murder of the deceased. The appellants were named and arrested at the shortest possible time. It is disputed that the learned Trial Court has not believed the recovery of the weapon of offence from the testimony of PW-11 Deepak Sharma. Counsel explains that as far as jeep driver is concerned, his statement was recorded under Section 161 Cr.P.C., thereafter he became unavailable. Serious steps were taken to trace him and on this account, he had to be dropped as the trial was getting delayed.

9. Ms. Radhika has also contended that Hira was not examined as she had become unconscious and was not fit to give the statement, which is evident upon reading of the testimonies of PW-12 Sanjay and PW-14 Prabha. She further explains that merely because PW-6 has stated that all her children were present in the house cannot imply that Hira was fit to make a statement to the police. Counsel submits that PW-12 has also clarified that ground floor portion of the house was lying vacant and, thus no tenant was there to make a statement. She submits that Courts have taken judicial notice of the fact that neighbours and public witnesses are often reluctant to give statements. Thus, for this reason together with the fact that since the prosecution had taken the statement of the mother, father, two brothers and one sister, it was not necessary to record the statement of other persons. While relying upon the judgments in the cases of Kartik Malhar vs. State of Bihar reported at (1996) 1 SCC 614, Durg Pal vs. State reported at 221 (2015) DLT 683 and Jite vs. State reported at MANU/DE/1791/2017, where it has been repeatedly held that it is not the number of witnesses which is important, but it is the quality of witnesses which is to be considered.

10. We have heard the learned counsel for the parties and considered their rival submissions and given thoughtful consideration to the matter. In order to deal with the contentions of both the parties, it would be appropriate to examine the testimonies of the material witnesses.

11. The first question which arises for our consideration is as to whether the testimonies of PW[8] Kali Charan and PW[5] Rajneesh are reliable and trustworthy.

12. The main evidence against the appellants consisted of the evidence of the eyewitnesses namely PW[8] Kali Charan and PW[5] Rajneesh. It is true that both the two eyewitnesses were close relations of the deceased but the occurrence had taken place inside the house, PW[8] and PW[5] were the natural witnesses and were in fact were present at the ground floor when the occurrence took place. The testimonies of PW[8] Kali Charan and PW[5] Rajneesh cannot be ignored and discarded merely because they happen to be the family members of the deceased. The incident took place at about 06.45 PM and the relatives of the deceased were the most natural witnesses.

13. The evidence of the eyewitnesses is sought to be corroborated by the evidence of PW[6] Munni Devi and PW14 Prabha (sister of the deceased) who reached the spot immediately after the appellants killed the deceased. Undoubtedly, the testimony of the interested witness can be relied upon if found to be reliable and trustworthy. However, there is a duty on the Court to scrutinise the evidence available on record carefully and the same can be relied upon in case the evidence is truthful and reliable. No enmity has been ascribed to the family members of the deceased to discredit their testimonies.

14. In the case of Piara Singh and others vs. State of Punjab reported at (1977) 4 SCC 452, it was held by the Hon’ble Supreme Court that if the evidence of the interested witness is credit-worthy then there is no bar to convict the accused on the basis of it. Relevant part of Para 4 reads as under: “4..... It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the court is satisfied that the evidence is credit-worthy there is no bar in the Court relying on the said evidence. The High Court was fully alive to these principles and has in fact found that the evidence of these three witnesses has a ring of truth. After having perused the evidence ourselves also we fully agree with the view taken by the High Court......” (Emphasis Supplied)