Delhi District Court
State vs . 1. Akbar on 14 February, 2014
IN THE COURT OF SH RAJENDER KUMAR SHASTRI
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: ID No. 02403R0312372009
SC No. 308/09
FIR No. 53/09
PS Jamia Nagar
State Vs. 1. Akbar
S/o Md. Zarif @ Latif
R/o Mohalla Basawan Ganj
PS Kotwali Amroha
Distt. J. P. Nagar, U.P.
2. Anwar
S/o Md. Zarif @ Latif
R/o Mohalla Basawan Ganj
PS Kotwali Amroha
Distt. J. P. Nagar, U.P.
3. ZahirulHussain
(Discharged)
S/o TamijulHussain
R/o Vill. Khichhari Pur,
PS Kalayan Puri, Delhi.
4. Shaukat Pasha
S/o Jarar Hussain
R/o Vill. Fatehpur, Distt. Amroha
U.P.
SC No. 308/09 1 of 22
__________________________________________________________
Date of Institution : 07.10.2009
Date of arguments : 11.11.2013
Date of judgment : 14.02.2014
JUDGMENT
As per case of prosecution, on 21.03.2009 at 6.00 pm, an information was received in PS Jamia Nagar about a person having been injured in firing and lying at N68, Batla House, near Khalilullah mosque, New Delhi. The information was recorded as DD no. 21A. It was sent to SI Ramjeet through Ct. Raj Kumar. At the same time, Insp. Amrit Raj was also present in police station along with other officials as it was time of evening briefing. Copy of DD 21A was given to said Insp. Amrit Raj for further action. The latter along with SI Kameshwar Prasad, HC Qurban Ali, HC Virpal, Ct. Dhir Singh and Ct. Harender reached at spot, in an official vehicle no. DL1CH5469, being driven by Ct. Krishan Pal. They found SI Ramjeet Singh and Ct. Raj Kumar at spot. Some public persons were gathered there. One person drenched in blood was lying in a vacant plot, in front of property no. N85. He was having bullet injuries on his person. The wounds were bleeding. A lot of blood had spread on ground. One used cartridge, on the bottom of which KF 8 mm was engraved was lying at some distance of injured. IO sent injured to Holy Family Hospital, in official gypsy mentioned above through HC Qurban Ali and driver Ct. Krishan Pal.
SC No. 308/09 2 of 22 IO interrogated persons gathered there. None from those persons claimed himself to be eyewitness of incident. The injured was known as Abdul Hafeez Khan, who lived in a nearby house no. N84 (fourth floor) about 1 ½ years back but shifted from said house after selling it. In between, SHO of PS Jamia Nagar reached there along with some staff and went away after giving some directions to the IO. IO left for Holy Family Hospital and deputed SI Kameshwar Prasad, Ct. Virpal and Ct. Harender to protect the spot.
IO collected MLC of injured Abdul Hafeez Khan. The latter was shifted to ICU Ward of that hospital. Treating doctor declared him "unfit for giving statement". No eyewitness of incident was found in hospital also. HC Qurban Ali told to IO about injured having disclosed to him that Shaukat Pasha, Akbar Amroha, Rizwan and Anwar had fired at him. This conversation was heard by driver Ct. Krishan Pal also. Abdul Hafeez Khan succumbed to injuries.
During investigation, all of accused were apprehended. They gave disclosure statements admitting their guilty. After completion of investigation, police filed chargesheet indicting all of accused for offences punishable under Section 302/34, 212 and 216 IPC as well as under Section 27/54/59 Act.
Accused Zahir was discharged while accused Akbar, Anwar and Shaukat Pasha were charged for offence punishable under SC No. 308/09 3 of 22 Section 120B/302 IPC or alternatively under Section 302/34 IPC vide order of this court dated 03.08.2010. All of them pleaded not guilty and claimed trial, when charge was read over and explained to them.
In order to substantiate its case, prosecution examined HC Satyaveer Singh as PW1, SI Mahesh Kumar as PW2, Dr. Amit as PW3, SI Jitender Kumar as PW4, Farid Khan as PW5, Nayeem Khan as PW6, Smt. Mehar as PW7, Dr. Juneed Mohmed Lanker as PW8, Ct. Girdhar Singh as PW9, Dr. Anjana Kharbanda as PW10, Rahish Hasan as PW11, Dr. Sunay Mahesh as PW12, Smt. Asma as PW13, HC Baldhari as PW14, Ct. Roopender Singh as PW15, Sh. Anuj Bhatia as PW16, Ct. Dhir Singh as PW17, HC Qurban Ali as PW18, Ct. Krishan Pal as PW19, HC Raj Kumar as PW20, HC Joginder as PW21, Ct. Ramphal as PW22, Retd. SI Ramjeet Singh as PW23, Sh. R. K. Singh as PW24, Retd. SI Kameshwar Prasad as PW25, HC Mahender Singh as PW26, ASI Kuldeep Singh as PW27, Insp. Amrit Raj as PW28, Ct. Vikal Singh as PW29 and SI Rajinder Kumar as PW30.
The accused in their statements recorded under Section 313 Cr.P.C. when incriminating material was put to them denied the same as incorrect. Accused Akbar and Anwar did not opt to examine any witness in defence while accused Shaukat Pasha told that he will give list of his witnesses within two days (of statement under Section SC No. 308/09 4 of 22 313 Cr.P.C.). No such list was given by accused and he did not examine any witness.
I heard Ld. Addl. PP for State and Ld. Counsels appearing on behalf of accused.
Rahish Hasan is stated to be the person, who gave information to police control room about the incident, first of all. He was examined as PW11. As per this witness, he was working as a constable in Delhi Police. On 21.03.2009, he was going towards Khalil ullah mosque from his house. When he reached in front of N85, Batla House, he noticed that a person was lying in injured condition and was bleeding. He gave information to police control room at no. 100.
SI Ramjeet Singh (PW23) deposed in court that on 21.03.2009, he was posted in PS Jamia Nagar. On that day, he was on emergency duty from 8.00 am to 8.00 pm. At about 6.00 pm, on receipt of DD no. 21A through Ct. Raj Kumar, he along with said constable reached at spot i.e. in front of house no. N85, in gali opposite vacant plot, Batla House. One person having suffered injuries was lying on ground in a pool of blood. He appeared having bullet injuries on left side of his forehead and right side of chest. Blood was oozing out from wounds. In between, Insp. Amrit Raj along with staff i.e. SI Kameshwar Prasad, HC Qurban Ali, HC Vir Pal, Ct. Harender, Ct. Dhir Singh, driver Ct. Krishan Pal reached there in an official vehicle. Injured was SC No. 308/09 5 of 22 sent to Holy Family Hospital through HC Qurban Ali and driver Ct. Krishan Pal. One used cartridge was found lying at spot near H. No. N85, a place where injured was lying. Apart from it, one piece of cloth (printed) having been imbued in blood was also lying there. IO Insp. Amrit Raj along with Ct. Dhir Singh went to hospital. Crime team reached there and inspected the spot. At about 9.15 pm, Insp. Amrit Raj returned to spot alone. Used cartridge was seized by him from spot. It was kept in a plastic jar and sealed by seal of RJS. Similarly, cloth piece as well as blood were picked by IO and kept in separate jars, which were sealed by same seal i.e. RJS. IO also seized blood smeared earth and earth sample, and kept the same in different jars.
All this is verified by Insp. Amrit Raj (IO of the case), who was examined as PW28. According to this witness, some public persons gathered at spot. He came to know that injured was Abdul Hafeez @ Nausi s/o Abdul Wahid r/o H. No. N84A but left the same about 1 ½ years back. He went to Holy Family Hospital along with Ct. Dhir Singh after leaving other police staff to protect the spot. He collected MLC of injured. The latter was declared as unfit for statement. Injured was shifted to ICU Unit of said hospital where he was declared as dead. He made endorsement Ex.PW28/A and gave it to Ct. Dhir Singh for registration of FIR.
Treating doctor gave him clothes of deceased including SC No. 308/09 6 of 22 a belt as well as personal belongings in two separate pulandas sealed with the seal of Holy Family Hospital, New Delhi. He returned to spot. Ct. Dhir Singh gave him copy of FIR and asal tehreer. Crime team had reached at spot. Photographer took photos from different angles. He found two wives of deceased in hospital and recorded their statements. He also examined SI Jitender Kumar and HC Girdhari and prepared site plan of spot. He seized cartridge case from spot and seized the same by keeping it in a bottle and sealed by seal of RJS. Cloth piece from spot was also seized by him. Apart from all this, he picked up blood sample, blood stained soil and earth control. All these were kept in different pulandas and sealed by same seal i.e. RJS. He recorded statements of Ct. Dhir Singh, Ct. Harender, SI Ramjeet Singh, SI Kameshwar Prasad, HC Vir Pal, Ct. Raj Kumar, Ct. Krishan Pal and Ct. Rupender. He deputed HC Qurban Ali to protect dead body. A raid was conducted by SHO Insp. Mohd. Iqbal along with other police staff in Budhisadan Guest House, Vill. Dongsheel near Bhimtal Market, Distt. Nanital on 27.04.2009 to arrest accused Shaukat Pasha but said accused managed to fled away. On 14.05.2009, accused Akbar and Anwar were arrested by HC Kuldeep Singh of SOS (Crime Branch), where he interrogated both of said accused and arrested formally in this case. Similarly, accused Shaukat Pasha was known to have been arrested by HC Ragender of SOS (Crime Branch), Sunlight Colony. IO arrested accused SC No. 308/09 7 of 22 in this case on 30.08.2009. This accused gave disclosure statement on being interrogated by him.
The facts as disclosed by Insp. Amrit Raj are verified by Ct. Dhir Singh (PW17), HC Qurban Ali (PW18), Ct. Krishan Pal (PW19), Ct. Ramphal (PW22) and SI Kameshwar Prasad (PW25).
HC Qurban Ali (PW18) also told to the court that when he along with driver Ct. Krishan Pal was taking injured to Holy Family Hospital in official gypsy, on the way to hospital, the injured told his name as Abdul Hafiz s/o Abdul Wahid Khan and that one Akbar Amroha, Shaukat Pasha, Rizwan and Anwar had shot him. This fact is also corroborated by Ct. Krishan Pal, who was driving official gypsy no. DL1CH5469 in which injured was taken to hospital. As per both of these witnesses, the injured died after he was admitted in hospital.
Smt. Asma (PW13) and Smt. Mehar (PW7) are two wives of deceased Abdul Hafiz Khan. Smt. Asma (PW13) deposed on oath that on 21.03.2009 at around 66.15 pm, she received a call from her husband. The latter told that he was shot by one Akbar and Rizwan at Batla House, New Delhi and suffered three bullet injuries. He was unable to speak properly. They left for Batla House. Meanwhile, another call was received by one lady, who told that she was Hena, a resident of Okhla and asked her to come to hospital instead of coming to Batla House. She along with Mst. Mehar and her brother went to Holy Family SC No. 308/09 8 of 22 Hospital. After sometimes, she was told that her husband had already died. Smt. Mehar, who was examined as PW7 also supported the fact of Smt. Asma having received phone call of their husband on the phone of Asma, who disclosed to her that their husband had suffered three bullet injuries at Batla House. They reached Holy Family Hospital. Their husband was unconscious at that time. After about one hour, information was received that Abdul Hafiz had expired.
Dr. Amit (PW3) was working as Junior Resident at Holy Family Hospital on 21.03.2009. As per this witness, patient Abdul Hafeez was brought by police to their hospital on that day i.e. 21.03.2009 at about 6.18 pm having gun shot injuries. This witness noticed fire arm injuries on the person of victim on his right side chest, left mandible and left lumbar region. Patient was shifted to ICU from casualty.
Dr. Anjana Kharbanda (PW10) stated to have examined injured Abdul Hafeez Khan. According to this witness, on 21.03.2009, she was working as CMO in Holy Family Hospital. One person namely Abdul Hafeez was brought to hospital with gun shot injury. She prepared MLC with details of injuries i.e. Ex.PW8/DC and noticed following injuries :
(i) punctured wound over occipital region, left side of cheek (mandibular region).
SC No. 308/09 9 of 22
(ii) punctured wound on right side of back with splinter hemorrhages over right side lower chest. The injuries were gun shot injuries.
Dr. Sunay Mahesh (PW12) conducted post mortem on the dead body of Abdul Hafeez Khan on 23.03.2009. As per this witness, he noticed five injuries on the dead body i.e. (i) an entry wound of firearm bullet on right side of back of thoracoabdomen region, (ii) an entry wound of firearm bullet on left side of back of head, posterior most aspect of scalp above back of the neck, (iii) an entry wound of firearm bullet on right side of upper abdomen, (iv) an exit wound on left cheek cresentic in shape and (v) contusion abrasion of size 2.5 cm x 3 cm on left upper chest. Two bullets were found stuck in the body. In the opinion of said witness, cause of death in this case was shock, due to haemorrhage as a result of aforesaid ante mortem injuries, caused by fire arm weapon. Injury no. 1, 2 and 3 described above were sufficient to cause death of a person in the ordinary course of nature. Post mortem report prepared by this witness is Ex.PW12/A. Dr. Juneed Mohmed Lanker (PW8) stated to have given opinion regarding cause of death of deceased Abdul Hafeez. Medical certificate in this regard given by this witness is Ex.PW8/A. According to this witness, cause of death of victim in this case was haemorrhagic shock due to fire arm injuries.
HC Satyaveer Singh (PW1) was duty officer in PS SC No. 308/09 10 of 22 Jamia Nagar on 21.03.2009 and stated about registration of FIR in this case on the basis of a rukka sent by Insp. Amrit Raj through Ct. Dhir Singh. Copy of FIR is Ex.PW1/A. SI Mahesh Kumar (PW2) was a draftsman and stated about preparation of rough notes at spot i.e. N85, Batla House on the pointing of IO Insp. Amrit Raj on the basis of which he prepared scaled site plan Ex.PW2/A. SI Jitender Kumar (PW4) was Incharge, Mobile Crime Team. As per him, on 21.03.2009, he along with HC Girdhar (photographer) and proficient fingerprint ASI Aman reached at spot. IO Ramjit and Amrit Raj met them there. He examined the spot and prepared report Ex.PW4/A. Farid Khan (PW5) and Nayeem Khan (PW6) were brotherinlaw and brother respectively of deceased Abdul Hafeez Khan and told about identification of dead body of said Abdul Hafeez Khan on 23.03.2009 in mortuary of AIIMS hospital.
HC Baldhari (PW14) was posted as DD Writer in PS Jamia Nagar on 21.03.2009 and told to have recorded DD No. 48B by him on that day i.e. 21.03.2009 at around 8.15 pm and again recording of DD No. 52B on same day at about 9.10 pm. Sh. Anuj Bhatia (PW16) was Nodal Officer, Vodafone Essar Mobile Services Ltd. He was examined as PW16 and told about SC No. 308/09 11 of 22 customer application form about phone no. 9654631380 in the name of Sarwat Jamal wife of Sabir Hasan. Copy of customer application form is Ex.PW16/A. Sh. R. K. Singh (PW24) was Nodal Officer in Bharti Airtel Ltd. This witness brought copy of application form about phone no. 9971439181 which was in the name of Shahnawaz Ali. Copy of customer application form is Ex.PW24/A. PW24 also brought customer application form about mobile no. 9810795398 which was in the name of Farid Khan. Copy of said application is Ex.PW24/C. Call details about said phone from 15.03.2009 to 01.05.2009 were Ex.PW24/E. This witness was also brought call details of mobile phone no. 9810795398 from 15.03.2009 to 01.04.2009. Same were Ex.PW24/F. HC Rajkumar (PW20) was duty officer in PS Crime Branch on 29.08.2009 and stated about registration of FIR no. 145/09 in that police station.
Ct. Vikal Singh (PW29) stated that on 14.05.2009, he was posted in SOS, Crime Branch, Sunlight Colony. On that day, accused Anwar and Akbar were arrested by HC Kuldeep Singh in his presence. On being interrogated, both of said accused gave disclosure statements which are Ex.PW27/D (of Akbar) and Ex.PW27/E (of Anwar). Again, as per this witness, on 29.08.2009, accused Shaukat Pasha was apprehended by him i.e. PW29, SI Rajinder, Insp. K. P. SC No. 308/09 12 of 22 Singh and other police staff from parking of Kalindi Kunj, New Delhi. A revolver and three cartridges were recovered from his possession. A separate case was registered for offence punishable under Section 25/54/59 Act. On being interrogated, this accused gave disclosure statement which is Ex.PW29/A. ASI Kuldeep Singh (PW27) also verified arrest of accused Akbar and Anwar on 14.05.2009 and both of said accused gave disclosure statements after being interrogated by the police.
Other witnesses examined by prosecution were not so material and hence their depositions are not discussed here.
It is contended by Ld. defence counsels that case of prosecution hinges on the testimony of HC Kurban Ali (PW18) and Ct. Krishan Pal (PW19), who deposed to have heard the victim, disclosing the name of accused persons as offenders. As per Ld. Counsel, aforesaid are not reliable witnesses. Statement of HC Kurban Ali was recorded on next day. No reason is explained as why said witness, before whom the injured has disclosed the names of assailants, did not inform said fact to the IO or police control room immediately, when vans of police control room are fitted with wireless sets. According to Ld. Counsel, the injured had already died at spot or at least he was not able to speak, otherwise there was no reason that he i.e. injured did not tell anything to Rahish Hasan, who first of all saw the victim lying in SC No. 308/09 13 of 22 injured condition. It is admitted by said Rahish Hasan (PW11) in his cross examination that he stayed for about five minutes and injured did not tell anything to him, as how he had sustained injuries. Said witness was not an ordinary person but a constable, serving Delhi Police. Similarly, the injured did not tell to Dr. Anjana Kharbanada, who attended him after his admission in the Holy Family Hospital, as how he suffered injury. In the opinion of Ld. Counsel, the version of PW18 and PW19 cannot be treated as dying declaration, as police did not try to call Executive Magistrate of that area despite having enough time with it. As per record, IO reached at spot at about 6.00 pm on the fateful day i.e. 21.03.2009, while according to postmortem report, the injured died at 8.00 pm on same day.
It is told by SI Ramjeet (PW23), initial IO of the case that he did not request public persons present at spot to take injured to the hospital and did not talk to the injured. Ld. defence counsel questioned as why the IO did not think it proper to talk to injured, if he was able to speak.
According to case of prosecution, injured after the incident, talked to his wife Smt. Asma (PW13) on phone. As per Ld. Counsel, according to PW13, her husband informed that he was shot by one Akbar and Rizwan. Said witness did not mention the names of other accused. Moreover, the admission of said witness that her SC No. 308/09 14 of 22 husband never discussed anything about Akbar or Rizwan. In such a circumstance, according to Ld. defence counsel, it was improbable that the victim would have named Akbar or Rizwan to his wife, who was not known to any such person.
It is also the plea of Ld. defence counsel that HC Kurban Ali has been introduced only to buttress the case of prosecution, otherwise he did not take the injured to hospital. It is admitted by IO Inspector Amrit Raj (PW28) that wearing clothes of HC Kurban Ali were not blood stained. If HC Kurban Ali had actually put the injured in the van, it was natural that some blood would have fallen on his wearing clothes. Even as per case of prosecution, there was profuse bleeding from the wounds of injured.
As per Ms. Hena Shah Advocate representing accused Akbar, the latter has been falsely implicated in the case, simply being a resident of Ajamgarh.
Dr. Anjana Kharbanda (PW10), who attended the patient Abdul Hafeez Khan in Holy Family Hospital told to the court in her crossexamination that patient was brought to her hospital by PCR constable.
Rahish Hasan (PW11) told the court to have seen victim lying in injured condition in front of H. No. N85, Batla House and gave information to police control room. According to DD 21A which is SC No. 308/09 15 of 22 proved from statement of HC Satyaveer Singh (PW1), some anti social elements had shot one person at N68, Batla House, near Khalilullah mosque. After receipt of said information, SI Ramjeet Singh (PW23) reached said spot along with Ct. Raj Kumar and verified that a person having suffered bullet injuries was found lying there in a pool of blood. Insp. Amrit Raj along with staff including HC Qurban Ali and driver Ct. Krishan Pal reached there. Injured was sent to Holy Family Hospital through HC Qurban Ali and driver Ct. Krishan Pal.
The sending of injured to hospital through HC Qurban Ali and driver Ct. Krishan Pal is also well established from the statement of IO Insp. Amrit Raj (PW28), SI Kameshwar Prasad (PW25), Ct. Dhir Singh (PW17) apart from HC Qurban Ali (PW18) and Ct. Krishan Pal (PW19). In this way, there remains no doubt in coming to conclusion that the injured was taken to hospital by HC Qurban Ali in an official vehicle being driven by Ct. Krishan Pal.
According to HC Qurban Ali (PW18), on the way, the injured told his name as Abdul Hafeez Khan and disclosed that one Akbar Amroha, Shaukat Pasha, Rizwan and Anwar had shot him. Ct. Krishan Pal (PW19) also verified the fact that on the way, the injured told to HC Qurban Ali that one Shaukat Pasha, Rizwan, Anwar and Akbar had shot him. On being crossexamined by Ld. Defence counsel it is clarified by PW19 that while driving he had heard the conversation SC No. 308/09 16 of 22 between HC Qurban Ali and injured. Moreover, HC Qurban Ali disclosed to him whatever was told by injured to him. It is not the plea of Ld. Defence counsels even that any of said witnesses i.e. HC Qurban Ali or Ct. Krishan Pal had any grudge against any of accused.
Apart from these two witnesses, wife of deceased Smt. Asma (PW13) told that she received a phone call of her husband on her mobile phone no. 9810795398. He informed that he was shot by one Akbar and Rizwan at Batla House. The fact that Smt. Asma had received such a phone call is verified by other wife of deceased namely Smt. Mehar (PW7).
A statement written or verbal of relevant facts made by a person, who is dead is admissible under Section 32 of Indian Evidence Act, 1872, when it relates to cause of his death. As mentioned above, the victim told about the accused having shot at him and bullet injuries resulted in his death. In this way, the statements given by the victim to said HC Qurban Ali and also to his wife Smt. Asma may be oral become relevant according to Section 32.
It was held by Apex court in case Vallabh Vs. State 1962 (2) Criminal Law Journal 540 that a dying declaration need not be in writing and an oral dying declaration could be proved by oral evidence. Where a person stated that accused had caused her injuries, though it appeared from the evidence that her statement was not in SC No. 308/09 17 of 22 response to any leading question, in such a circumstance it was held by Calcutta High Court in case Sital Chandra Vs. State AIR 1956 Calcutta 82 that such evidence amounted to a dying declaration, even if it was not reduced in writing, same could not be rejected. In a case titled as Ananta Mohanto Vs. State of Orissa AIR 1979 SC 1433, two relatives of deceased were present, when the latter was attacked and the deceased shouted the names of assailants, in such circumstances it was held by the Apex Court that evidence of those relatives cannot be discarded simply because that statement was not recorded. According to the court, such statements can be taken as oral dying declaration. In a case of murder, deceased made oral dying declaration to a witness. The father of deceased, who lodged FIR after admitting him to hospital, mentioned about the dying declaration and also gave necessary details. The doctor did not categorically say in his evidence that the deceased was not in a fit condition to make dying declaration. In these circumstances, the Supreme Court of India in case Vishram Vs. State of Madhya Pradesh AIR 1993 SC 250 did not find possibility of false implication and upheld the conviction, on the basis of deposition of father of deceased.
So far as plea of Ld. Defence counsels that HC Qurban Ali is not a reliable person as he did not inform the IO or police control room after said facts were disclosed to him by the victim, is concerned SC No. 308/09 18 of 22 no doubt it could have been expected from a police officer like HC Qurban Ali that he had promptly informed the IO of the case or police control room if any such disclosure was made by the victim but simply for this reason testimony of said witness cannot be discarded like waif. Different persons react differently in similar circumstances.
It is not plea of Ld. Defence counsels even that HC Qurban Ali (PW18) or Ct. Krishan Pal (PW19) had any enmity against the accused persons or same had any interest in their implication in this case.
True, wife of deceased Smt. Asma mentioned only the names of accused Akbar and Rizwan having told by her husband as the assailant. It is contended by Ld. Addl. PP that same witness i.e. Smt. Asma in her statement given to the IO disclosed the name of all accused persons having told by her husband but she withheld the name of other accused i.e. Shaukat Pasha and Anwar as she was threatened by those accused through her father, not do disclose their names. PW13 admitted in her crossexamination by Ld. Addl. PP that her father had received a call in which he was asked that names of those accused i.e. Anwar and Shaukat Pasha be not given to the court. I find weight in the submission of Ld. Addl. PP in this regard.
There is no gainsaying that victim did not disclose said fact either to Rahish Hasan (PW11), who met him at spot first of all or SC No. 308/09 19 of 22 the IO SI Ramjeet Singh (PW23), who sent him to hospital or to the Dr. Anjana Kharbanda (PW10), who attended him in Holy Family Hospital. It is admitted by SI Ramjeet Singh (PW23) that he did not talk to the injured though the latter was in a position to talk at that time. He was writhing in pain. Inspite of enquiring about the assailants or asking the injured to give a statement, it was not unwise if IO SI Ramjeet (PW23) opted to send the injured immediately to hospital for treatment. Dr. Anjana Kharbanda (PW10) disclosed in her crossexamination by Ld. Defence counsel that the patient was unfit for giving statement because of his injuries and condition. In such circumstances, if neither said doctor nor the initial IO of the case i.e. SI Ramjeet did not record the statement of injured, it is not fatal to the case of prosecution.
I do not find much substance in the plea of Ld. Defence counsels alleging that HC Qurban Ali was a planted witness as his wearing clothes were not blood stained, when he put the injured in his vehicle. Even if the injured was bleeding, it is not necessary that the wearing clothes of a person who put the injured in a vehicle particularly when he had assistance of someone else get blood stained.
It is absurd to claim that any of accused has been implicated in this case simply because he was resident of Azamgarh. Every resident of Azamgarh is not a criminal person.
Dr. Anjana Kharbanda (PW10) found punctured wound SC No. 308/09 20 of 22 over occipital region, left side of cheek, another punctured wound on right said of back with splinter haemorrhages over right side lower chest and all these injuries were gun shot injuries. Dr. Sunay Mahesh (PW12), who conducted post mortem on the dead body of deceased also found three entry wounds of bullets and one exit wound on the person of victim apart from contusion abrasion on left upper chest of same. This witness also recovered two bullets from the body of victim. All this proves that victim suffered bullet injuries and succumbed to the same.
It is well established that a person can be convicted on the basis of dying declaration if same is reliable and corroborated from other evidence. As mentioned above, the statement given by victim to HC Qurban Ali (PW18) is well corroborated from the other evidence i.e. statement of Ct. Krishan Pal (PW19). Similar statement given by the victim to his wife Smt. Asma (PW13) is verified from the statement of other wife of deceased Smt. Mehar (PW7).
Though it has not established from the record as who from accused caused each of those injuries separately but from the fact discussed above, it is well established that the victim was shot at by all of accused. Common intention of all those accused is thus evident from this fact. All of accused are thus convicted for offence punishable under Section 302/34 IPC. It is not proved that accused persons had hatched SC No. 308/09 21 of 22 any criminal conspiracy among them. No offence punishable under Section 120B IPC is made out.
Announced in open court (RAJENDER KUMAR SHASTRI)
today i.e. 14th February 2014 Addl. Sessions Judge02:South East
Saket Court: New Delhi
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