- (1.) This appeal is directed against the judgment dated 28/9/1979 by the division Bench of Delhi High Court in Criminal appeal No. 113 of 1979 and Murder Reference no. 2 of 1979 by which death sentence awarded against the appellant under Section 302, I. P. C. by the Additional Sessions Judge, Delhi in S. C. No. 32 of 1977 was commuted to life imprisonment and Criminal Appeal No. 113 of 1979 preferred by the appellant against his conviction and sentence u/s 302, I. P. C. and also conviction under Section 326/34 and 324/34 and 452/34, I. P. C. in the said Sessions case was dismissed subject to aforesaid modification of the capital sentence but maintaining the convictions and sentence on other counts.
(2.) The prosecution case in short is that the appellant Zaffar Mohd and the co-accused Mohd. Ismail came to the shop of Dewan Singh, and father of the deceased Navraj alias Rajan on 30/7/1977 at about 8.30 P. M. and both of them purchased half a kilo of 'ghewer' (sweet) and ate the same. The price of Ghewer was Rs. 4.50 but they offered to pay Rs. 4. 00. The deceased told them that the price of Ghewar being Rs. 4.50 they had demanded the said price. Then both the accused picked up 'jelabi' (sweet) from jalebi thali and started eating them. Dewan Singh asked them not to do so. The accused persons thereafter started scuffling with Dewan Singh. Kishan Dev a neighbouring shopkeeper and Rohtas another son of Dewan Singh and deceased Navraj separated the accused who being enraged left the same after threatening that they would deal with them after some time. At about 9.15 P. M. they again came to shop of Dewan Singh holding open knives and after hurling abuses asked Navraj to come out of the shop by saying that he would be done away with. Immediately one of the accused, a short statured person with shaven head entered the shop and inflicted a knife blow to Navraj which struck his abdomen. Navraj's brother Rohtas then caught hold of the hand of the said assailant by which the knife was held. The second accused then gave a knife blow to Rohtas which struck on his right arm. The said two persons were accompanied by another person who moved forward and tried to hit Rohtas with a 'lathi'. Dewan Singh then pulled out a bamboo stick from the tarpaulin fixed in front of his shop and gave a lathi blow to the said third person and in that process could ward off the lathi blow of the third person. Being hit on the arm Rohtas lost the grip of the hand of the assailant who hit Navraj. The said assailant then attacked Babu Ram an employee of the shop and inflicted an injury by the knife on the right buttock of Babu Ram. The said persons then went to the shop of Kishan Dev and inflicted a knife injury on his chest. On alarm being raised by dewan Singh, other persons including Suraj bhan, Fateh and Yash Pal reached the spot and seeing those persons the assailants ran away towards Azad Railway Station. Suraj Bhan and several persons tried to apprehend them but failed. While running the said persons hit Suraj bhan with some object which hit him on the head. On receiving telephone message of the incident the duty officer posted at Police Control Room, recorded the said information and informed the police post Azadpur. The Head Constable on duty to the said Azadpur Police out post recorded the information and asked the A. S. I. Surat Singh to take necessary action. Surat Singh (Public Witness 22) went to the spot along with constable Gian Chand and coming to know that police had arrived by that time and the injured were removed to Hindu Rao hospital he went there and met Dewan Singh. He came to learn that Rajan alias Navraj was declared dead. Dewan Singh was taken to the place of occurrence and his statement was recorded by surat Singh. Such statement is Ex. P. A. and the same was sent to police station for registration of a case. S. I. Kartar Singh (P. W: 16) on receipt of the said report registered F. I. R. The other injured kishan Dev was also declared dead in the hospital and inquests of both the accused were made by the police. Inspector Kulpal Rai (Public Witness 24) took over the investigation of the case. On getting a secret information that assailants were trying to leave delhi the police took Fateh Singh, Yash Pal and suraj Bhan at Inter State Bus Terminus Delhi and being identified by the said persons both the accused were arrested by the police from platform no. 26 of Inter State Bus Terminus along with blood stained clothes. Such clothes were seized by the police.
(3.) The prosecution examined 24 witnesses including Public Witness 1 Dewan Singh, father of the deceased Navraj Public Witness 2 Rohtas the brother of the deceased who also received injury by the knife blow Public Witness 3 Yashpal a resident of village Barole, public Witness 4 Suraj Bhan who received injury while trying to chase the assailants Public Witness 5 Banwari Lal, real brother of deceased Kishan and present at the spot and witnessing the whole occurrence and public Witness 6 Fateh Singh a Government employee who came to take tea at the shop of Dewan Singh and witnessed the occurrence. The eye-witnesses fully corroborated the prosecution case as given by dewan Singh. It may be noted here that the description of physical appearance of both the accused and about their wearing apparel had been given by the eye-witnesses before the police before the arrest of the said accused and at the time of arrest such description tallied. The accused refused to appear at the test identification parade on the plea that they had been shown to the witnesses. But the learned Additional Sessions Judge has indicated in the judgment that although three eyewitnesses were taken by the police to Inter State bus Terminus for identifying the accused, Dewan singh the father of the deceased Navraj and other witnesses had no occasion to see the accused at the time of arrest and there was scope for test identification parade for such witnesses. The learned 'sessions Judge has rightly held that the accused persons deliberately avoided the test identification parade on the apprehension that they would be identified by Dewan Singh and others.;