AMIRUDDIN Vs. STATE DELHI ADMINISTRATION

JUDGEMENT

(1.) A movie was going on in the Neelkanth Community Centre in the afternoon of 12. 01. 1991. Ashok Kumar and Manoj Kumar were watching the movie. One Zahid was also watching the movie and had some altercation with Ashok Kumar (PW-5)and a blow was delivered by Zahid on the nose of Manoj Kumar. Manoj Kumar left the Community Centre leaving behind Ashok Kumar (PW-5) and while going to his house met Raju (PW-1), Ghanshyam (PW-3), Chanderpal (PW-4), Mukesh Kumar (PW-15) and one Rajender (deceased) and told them about the incident. All these persons went to the community Centre and the matter was apparently sorted out. The said persons were thereafter returning back when at about 3. 45 p. m. , the appellant (the brother of Zahid) came from behind and struck Rajender at his back with a knife. A PCR van came to the site and ASI Dev Dutt (PW-16) removed the deceased to the hospital where he was declared brought dead at 4. 25 p. m.

(2.) THE appellant was subsequently apprehended and charged with the offence of murder under Section 302 of the Indian Penal Code, 1860 (for short, IPC ). The appellant pleaded not guilty and after trial in terms of the judgment dated 23. 03. 1996 was held guilty for the offence under Section 302 of the IPC and sentenced to undergo life imprisonment and pay a fine of Rs. 1,000/- in default of which, he was to further undergo RI for six months. This has resulted in the present appeal. It may be noticed at the inception itself that the case of the prosecution is really based on ocular evidence and the eye-witnesses have deposed in favour of the prosecution. The trial court has found that the prosecution failed to prove recovery of weapon of offence on account of the fact that the post-mortem report showed that the injury could not have been caused by the knife recovered. However, in view of the direct evidence available, non-recovery of weapon was held to be not material and the contradictions, discrepancies and improvements in the statements of the witnesses were found to be of a minor nature, which did not go to the root of the matter.

(3.) THE prosecution examined 23 witnesses, but the entire case revolves around the testimony of 6 witnesses, who are stated to have witnessed the crime. These are PW-1, PW-3, PW-4, PW-5, PW-10 and PW-15. Apart from them, pw-16 is the ASI, who took the deceased to the hospital while PW-22 is the doctor who carried out the post-mortem. The testimony of PW-1 relates the facts as setout hereinbefore, which resulted in the incident. The appellant is stated to have taken out chura saying, "yeh roj roj ki larai khatam kar deta hoon" and stabbed the victim in the back whereafter he ran away along with the chura (knife ). The PCR van came thereafter and the victim was taken to All India institute of Medical Sciences (AIIMS ). The said witness also deposed that he knew the accused earlier and that the appellant and the deceased earlier had disputes over some petty matter. This witness has also stated that he went to the hospital in the PCR and his statement was recorded by the police. The testimony of PW-3 is almost identical. The only difference in the testimony of pw-4 is that while stabbing, the appellant is stated to have said, "roz roz ke jhagre ko hamesha ke liya khatam kar deta hoon". PW-4 states that he went to the hospital with PW-15 on 13. 01. 1991 and S. I. Lal Chand, PW-23 asked them to accompany him to the house of the appellant. The appellant was not found whereafter they went to the house of one Nizam in Kalu Sarai. The appellant was apprehended on the pointing of the said PW-4 and thereafter disclosed that the knife had been kept by him at the house of one Feroz at Hauz Khas. The disclosure statement Ex. PW-4/b was recorded and thereafter the appellant, PW-4, PW-15 were taken to Hauz Khas from where the recovery of the knife took place, which was sealed in a parcel. The draftsman visited the site on 21. 02. 1991 and took measurement and rough notes on the site being pointing by PW-4. The scaled site-plan (Ex. PW-6/a) was prepared in his office on 11. 03. 1991.