Delhi District Court
Sc No.45105/2015: Fir No.903/2015: Ps ... vs Sagir Ahmad & Ors. on 18 August, 2021
SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors. IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE-03: (NORTH-EAST): KARKARDOOMA DISTRICT COURTS: NEW DELHI SIX YEARS' OLD CASE (Sessions Case No.45105/2015) State V/s Sagir Ahmad @ Kallu & Ors. FIR No. : 903/2015 U/s : 452/307/34 IPC P.S. : Khajuri Khas 1. Sagir Ahmad @ Kallu, S/o Shri Khalil Ahmad, R/o House No.371, F-Block, Gali No.15, Suleman Ka Makaan, Khajuri Khas, Delhi. Presently R/o: House No.485, Gali Baharwali, Chhatta Lal Miyan (Behind Delight Cinema), Dariyaganj, New Delhi-110002. State V/s (Represented through Shri Ayub Arshad Qureshi, Advocate) 2. Ilyas, S/o Shri Fakruddin, R/o House No.368, F-Block, Gali No.15, Khajuri Khas, Delhi. (Represented through Shri Kapil Payla, Advocate) 3. Shakil @ Jaj, S/o Fakruddin, R/o House No.366, F-Block, Gali No.15, Khajuri Khas, Delhi. 4. Aashif @ Raja, S/o Shakil @ Jaj, R/o House No.366, F-Block, Gali No.15, Khajuri Khas, Delhi. (A-3 & A-4 represented through Shri S.K Ahluwalia, Advocate with Shri Mohsin Khan, Advocate) Date of institution of case : 17.12.2015 Date of hearing of final arguments : 13.08.2021 Date of pronouncement of judgment : 18.08.2021 All Accused persons "Convicted" Page 1 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors. JUDGMENT
BRIEF FACTS OF THE CASE:
The facts of the case in brief, as borne out from the record are that on 21.08.2015 at about 9.42 PM, pursuant to receipt of DD No.101-B (which was regarding a quarrel behind Taj Hotel, Khajuri Khas), ASI Chandra Vir Singh and Constable Lalit Kumar went to the spot, i.e roof(s) of House Nos.F-536-537, Gali No.20, Khajuri Khas, where they came to know that a quarrel had taken place there between accused persons on one side and complainant Tausif (Tosin) and his brother Suhail on the other side and all the injured persons having being removed to Jag Parvesh Hospital (JP Hospital) by public persons. IO, ASI Chandra Vir Singh also noticed broken pieces of bricks lying scattered on the roofs of both the said houses.
Thereafter, ASI Chandra Vir Singh alongwith Constable Lalit Kumar rushed to JP Hospital, where they met HC Karan Pal, who was already present there in pursuance of DD No.105-B. HC Karan Pal handed over MLCs of complainant Tausif (Tosin), his brother Suhail, accused Sagir Ahmad, Ms.Yasmeen and Smt.Razia (daughter and wife respectively of accused Sagir Ahmad) to ASI Chandra Vir Singh. At JP Hospital, IO ASI Chandra Vir Singh came to know that two injured persons namely Tausif (Tosin) and his brother Suhail had been referred to Guru Teg Bahadur Hospital (GTB Hospital) for further treatment. Accordingly, leaving HC Karan Pal at JP Hospital, ASI Chandra Vir Singh alongwith Constable Lalit Kumar marched to GTB Hospital where they met both the aforesaid injured persons, both of whom were declared fit for recording of their statement(s) by the treating doctor(s). IO, ASI Chandra Vir Singh firstly recorded the statement of Tausif (Tosin), who in his statement stated that at about 9.30 PM on 21.08.2015, all the four accused persons namely Sagir Ahmad @ Kallu, Illiyas, Shakil @ Jaj and his son Aashif @ Raja at the instance of one Sulemaan had assaulted and inflicted knife blows upon him and All Accused persons "Convicted" Page 2 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
his brother Suhail. On the basis of aforesaid statement of complainant Tausif (Tosin), IO ASI Chandra Vir Singh prepared rukka and got the case FIR in the matter registered through Constable Lalit Kumar. In the meantime, IO also recorded the statement of injured Suhail. After medical treatment, both the said injured persons were discharged from GTB Hospital on the same day. Thereafter, IO ASI Chandra Veer Singh alongwith the said injured persons reached at the spot, inspected the same, took photographs thereof from his mobile phone and prepared site plan.
2. During the course of investigation, on the next day, i.e on 22.08.2015 IO, ASI Chandra Vir Singh arrested accused Sagir Ahmad @ Kallu from JP Hospital, conducted his personal search and recorded his disclosure statement. Pursuant to his disclosure statement, accused Sagir Ahmad @ Kallu got recovered one knife (churri) used in the crime from the ground floor of his house bearing No.F-537, Gali No.20, Khajuri Khas. IO, ASI Chandra Vir Singh prepared sketch of the said knife, sealed and seized the same and thereafter deposited the same in malkhana while accused Sagir Ahmad @ Kallu was remanded to judicial custody.
3. Further, during the course of investigation, two other accused persons namely Illiyas and Shakil @ Jaj were arrested in the matter on 04.11.2015. After obtaining the medical opinion and discussion with senior police officers, Sections 452 and 326 IPC r/w Section 34 IPC were added in the matter. During this entire period, accused Aashif @ Raja remained absconding and could not be arrested in the matter. After completion of investigation, all the accused persons (except accused Aashif @ Raja) stood chargesheeted for offences punishable under Section 452/307/326/174-A/34 IPC.
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4. The offence under Section 307 IPC being exclusively triable by the Court of Sessions, the, learned Additional Chief Metropolitan Magistrate (North- East) vide his order dated 04.12.2015 committed the case to this Court. After hearing arguments on the point of charge and finding prima facie material against the accused persons, this Court vide order dated 09.02.2016 framed charge under Sections 452/307/34 IPC against all the accused persons (except accused Ashif @ Raja as by that time he remained absconding in the matter), to which they pleaded not guilty and claimed trial.
5. Thereafter, during trial of the case, on 17.04.2016 accused Aashif @ Raja surrendered before the concerned Court of learned ACMM (North-East). He was accordingly arrested in the matter on 17.04.2016 itself and thereafter supplementary chargesheet against him was filed, which also stood committed to this Court vide order of learned ACMM (North-East) dated 20.12.2016. After hearing arguments on the point of charge and finding prima facie material against accused Aashif @ Raja, this Court vide order dated 10.01.2017 framed charge under Sections 452/307/34 IPC against him also, to which he pleaded not guilty and claimed trial.
6. In order to bring home the guilt of accused persons, prosecution examined as many as sixteen (16) witnesses, whereafter PE in the matter was closed and statements of all the accused persons under Section 313 Cr.P.C were recorded, wherein all of them claimed to be innocent and having been falsely implicated in the matter by the investigating agency. Accused Sagir Ahmad @ Kallu chose not to lead any defence evidence, however, he took a categorical plea that he had been falsely implicated in the matter at the instance of owner of his tenanted house as well as the complainant and his relatives. Remaining three accused persons All Accused persons "Convicted" Page 4 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
expressed their willingness to lead defence evidence in the matter. Accused Aashif @ Raja and Illiyas took a categorical plea that on the date and time of incident they were not present at the spot and instead had gone to graveyard (Qabristaan) Khajuri Khas for attending the last rites of their relative Mohd. Ishaq. In support of their aforesaid contention, they examined two witnesses namely Mohd. Sarfaraz and Asgar Ali as DW-1 and DW-2 respectively in the matter.
7. I have heard arguments advanced at bar by learned Additional PP, Shri S.K Tripathi; Shri Ayub Ahmed Qureshi, Advocate, learned counsel for accused Sagir Ahmad @ Kallu; Shri Kapil Payla, Advocate, learned counsel for accused Illiyas; and Shri S.K Ahluwalia, Advocate assisted by Shri Mohsin Khan, Advocate learned counsel(s) for accused persons Shakil @ Jaj and Aashif @ Raja. I have also gone through the written synopsis filed on behalf of accused Illiyas as well as Shakil @ Jaj and Aashif @ Raja. Before adverting to adjudication upon the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter which is as under.
Evidence recorded in the matter
8. The evidence recorded in the matter/witnesses examined can be broadly classified under four categories, i.e:
(a) Public witnesses;
(b) Witnesses of investigation;
(c) Witnesses of medical evidence and;
(c) Formal witnesses.
Public witnesses
9. (i) PW-5, Tosin, S/o Shri Shokat Ali @ Shokat, who is the star witness
of the prosecution, in his evidence stated that on 21.08.2015 at about 9.30/9.45 PM, he had returned to his house after finishing off the day's work, when he saw his children and children of his brother quarreling with the children of accused Sagir All Accused persons "Convicted" Page 5 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
Ahmad @ Kallu on the roof of his house and all the four accused persons were already present there. He further stated that he rushed to the roof of his house to save his younger sister Sana when all the four accused persons (who were already known to him being his neighbours) caught hold of him from behind and accused Sagir Ahmad @ Kallu attacked him with a "chhuri", as a result of which he sustained injuries on his left arm and abdomen. He raised an alarm, pursuant whereto his brother Suhail (PW-6) rushed to the roof to save him, who in turn was also attacked by accused Illiyas due to which his brother sustained injuries on his face and nose. He further stated that accused Sagir Ahmed @ Kallu was the tenant of his maternal uncle (mama) Sulemaan. He further stated that thereafter he became unconscious. He further stated that his friend Farman took him and his brother Suhail (PW-6) to JP Hospital from where they were referred to GTB Hospital where he was medically examined and remained lying admitted till 28.08.2015. He further stated that his statement in the matter was recorded by the police, which has been proved on record as Ex.PW5/A whereupon this witness identified his thumb impression at point A. This witness categorically stated that at the time of incident, accused persons namely Sagir Ahmad @ Kallu and Illiyas were carrying "churris" in their hands. This witness identified the "churri" which was used by accused Sagir Ahmad in the incident in question as Ex.P1.
(ii) Thereafter, this witness was declared hostile by the prosecution and thoroughly cross-examined by learned Additional PP. In his cross-examination by learned Additional PP, this witness denied the suggestion that he had mentioned his residential address as F-537, Gali No.20 to the police. He further denied the suggestion that he had mentioned his name as Tosif to the police. He further denied the suggestion that while inflicting knife blows upon him, accused Sagir Ahmad @ Kallu and Illiyas had uttered, "Kal to tu bach gaya, aaj tujhe nahi chodenge". As such, this witness was confronted with portion(s) A to A, B to B and C to C of his All Accused persons "Convicted" Page 6 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
statement Ex.PW5/A.
(iii) He, however, categorically stated that he was given beatings by accused Sagir Ahmad @ Kallu and Illiyas with the intention to kill him and his brother Suhail (PW-6). He further categorically stated that during the incident in question, he was caught hold of by accused Shakil @ Jaj and his son Aashif @ Raja. He further stated that his wife Smt.Ujma (PW-9) and his mother-in-law Smt.Najma (PW-8) had also witnessed the incident in question.
(iv) He, however, denied the suggestion that besides his friend Farmaan, one Khalid had also accompanied him and his injured brother Suhail (PW-6) to hospital. In this regard, he was confronted with portion A to A of his supplementary statement recorded by the police on 07.11.2015, which has been proved on record as Ex.PW5/B.
(v) This witness was thoroughly cross-examined by learned counsels for all the accused persons. In his cross-examination by learned defence counsels, this witness stated that he had not made any complaint to the police on 20.08.2015 as no incident of quarrel on the said date had taken place in his presence. As regards the incident in question, this witness categorically stated that on 21.08.2015, he had returned to his house at or around 7/7.30 PM when he noticed a quarrel going on and all the accused persons being present on the roof of house of accused Sagir Ahmad @ Kallu. He further stated that he lost his consciousness within five minutes of reaching at the roof of the house of accused Sagir Ahmad @ Kallu. This witness could not tell as to who had informed the police about the incident. He stated his house number to be 536. He further stated that he knew accused Shakil @ Jaj and his son Aashif @ Raja prior to the date of incident as his cousins used to work with them. He further stated that his statement was recorded only once by the police at GTB Hospital, but he could not tell the date of recording thereof. He clarified that the quarrel had continued for about 1-1½ hours and during this period All Accused persons "Convicted" Page 7 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
no family member had informed the police.
(vi) He further stated that his statement was not recorded by the IO on 07.11.2015. He denied the suggestion that he used to go to the house of his uncle Mehmood after passing through the house of accused Sagir Ahmad @ Kallu against his wishes and that accused Sagir Ahmad and his family members used to strongly object to his such action by extending threats that accused Sagir Ahmad @ Kallu was merely a tenant and he should live within the limitations of a tenant. He further categorically stated that on the date of incident he had gone to the roof of the house of accused Sagir Ahmad @ Kallu at about 9.30 PM and at that time accused Sagir Ahmad and Illiyas were already present there, while the other two accused persons reached thereafter. He again stated that he was dragged upon the roof of the house of accused Sagir Ahmad @ Kallu by both the aforesaid accused persons and his wife (PW-9) and sister Ms.Sanna had witnessed the said dragging. On this aspect, this witness was confronted with his statement Ex.PW5/A. He further stated that his brother Suhail (PW-6) reached at the roof of the house of accused Sagir Ahmad @ Kallu to save him at about 9.30/9.45 PM. Though, this witness could not tell the colour and type of clothes worn by the accused persons at the time of incident in question, however, he categorically stated that at that time accused persons Illiyas and Sagir Ahmad @ Kallu were carrying "chhurries" in their hands.
(vii) He could not tell as to who had made the PCR call. He further could not tell about the mobile number being lying mentioned in DD No.101, dated 21.08.2015. He even could not tell as to by whom said DD No.101 was lodged.
(viii) He categorically stated that on the date of incident he had firstly noticed accused Sagir Ahmad @ Kallu and Illiyas present on the roof of the house of accused Sagir Ahmad @ Kallu and when both the aforesaid accused persons dragged him on the roof, accused Shakil @ Jaj and his son Aashif @ Raja also reached there within 2-3 minutes. He further stated that no neighbour came to SOC All Accused persons "Convicted" Page 8 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
to rescue him.
(ix) He denied the suggestion that he and his brother Suhail (PW-6) had self-inflicted the injuries upon themselves with a razor after fetching the same from a hair cutting saloon which was situated at the corner of the street and thereafter falsely implicated the accused persons with the help of his friends Farmaan and Khalid.
(x) He further stated that the police did not take him to the spot/SOC for preparing site plan. He feigned ignorance to the fact that on the date of incident accused Illiyas had gone to Qabristan (burial ground) to attend the last rites of one Mohd. Ishaq Ansari, who was the father of Sarfaraz (DW-1).
(xi) He categorically denied the suggestion that accused persons were not present at the SOC on the date of incident or that they have been falsely implicated by him in the matter. He further denied the suggestion that accused Illiyas had been falsely implicated by him in the matter as the said accused used to financially support one Smt.Sajida (who is stated to be the widow of deceased brother of father- in-law of this witness), much against the wishes of his family.
10. (i) PW-6 Suhail, S/o Shri Shokat Ali @ Shokat (who is real younger brother of PW-5 Tosin) in his evidence stated that on 21.08.2015 he was present at his house, when he heard the noise of "bachao-bachao" coming from the roof and when he reached there he saw accused Shakil and Aashif holding his brother Tosin (PW-5) while accused Sagir Ahmad and Illiyas inflicting stab injuries upon him. He further stated that when he tried to save his brother Tosin, accused Sagir Ahmad and Aashif caught hold of him while accused Illiyas attacked him with a "churri", as a result of which he sustained injuries upon his nose while his brother sustained injuries upon his arm and abdomen. He further stated that the aforesaid incident was result of a quarrel which had taken place a day prior to All Accused persons "Convicted" Page 9 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
21.08.2015 between their children and children of accused Sagir Ahmad, Illiyas and Shakil. This witness could not tell as to who had informed the police about the incident in question. He further stated that his neighbour namely Farman took him and his injured brother Tosin to Shastri Park Hospital (JP Hospital) by auto from where they were referred to GTB Hospital and his brother Tosin remained admitted in GTB Hospital for eight days. This witness correctly identified all the accused persons in Court.
(ii) Thereafter, this witness was declared hostile by the prosecution and thoroughly cross-examined by learned Additional PP. In his cross-examination by learned Additional PP, he stated that IO had recorded his statement in the matter on 22.08.2015. This witness voluntarily stated that the entire incident in question had taken place on the roof of the house of accused Sagir Ahmad @ Kallu, however, he admitted the suggestion of learned Additional PP that the roof of their house and accused Sagir Ahmad's house are adjacent to each other and there is a boundary wall of very little height lying erected in between.
(iii) He denied the suggestion of learned Additional PP that accused persons had attacked him and his brother Tosin with "churri" on 21.08.2015 with an intention to liquidate them. As such, he was confronted with portions A to A and B to B of his statement Ex.PW6/A, recorded by the IO on 22.08.2015. In this regard, this witness volunteered to state as under:
"Vol. Chot hamey bachho ke jhagde ki wajah se pahuchayi gai thi. Mujhe nahi pata ki inki niyat jaan se maar dene ki thi".
(iv) He further denied the suggestion of learned Additional PP that accused persons had run away from spot saying, "kal to tum dono bach gaye, aaj nahi bach payoge, aaj tumhe jaan se maar denge". He was accordingly confronted with portion C to C of his statement Ex.PW6/A.
(v) He stated that the incident in question had taken place at the instance of All Accused persons "Convicted" Page 10 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
one Sulemaan, who is the house owner of accused Sagir Ahmad @ Kallu. He, however, denied the suggestion that Smt.Nazma (PW-8) and Smt.Ujma (PW-9) had witnessed the incident in question.
(vi) He admitted the suggestion of learned Additional PP that police had inspected the place of incident and prepared site plan in his presence. However, he denied the suggestion that scene of crime (SOC) was photographed by the police in his presence. On this account, this witness was confronted with portion D to D of his statement Ex.PW6/A.
(vii) He denied the suggestion that police had recorded his supplementary statement on 18.04.2016 and that on the same day he had identified accused Aashif @ Raja in Karkardooma District Courts being one of the assailants. As such, this witness was confronted with portion A to A of his supplementary statement Ex.PW6/B.
(viii) He further denied the suggestion that on 07.11.2015 IO had recorded his supplementary statement in the matter, whereby he had stated that Khalid and Farman had taken him and his injured brother Tosin (PW-5) to JP Hospital. This witness was accordingly confronted with portion A to A of his supplementary statement Ex.PW6/C.
(ix) He denied the suggestion that accused persons had entered their house bearing No.F-537, Gali No.20, Khajuri Khas or that they had dragged his brother Tosin (PW-5). However, he volunteered to state that accused persons had entered their house No.F-536, Gali No.21, Khajuri Khas and they had been residing in the said house on the date of incident. He categorically denied the suggestion that he and his family had been residing in house No.F-537, Gali No.20, Khajuri Khas on the date of alleged incident.
(x) This witness was thoroughly cross-examined by the defence. In his cross-examination by learned defence counsel(s), he stated that police did not All Accused persons "Convicted" Page 11 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
record his statement(s) either on 22.08.2015 or on 07.11.2015 and police even did not record statements of his mother, his brother and wife of his brother. He further stated that police neither prepared site plan of SOC in his presence nor took any photographs thereof. He, however, categorically stated that he had heard the noise of "bachao-bachao" between 9.00/9.30 PM and when he reached at the roof of his house, he found all the four accused persons present there. He categorically denied the suggestion that he was not present at SOC on the date and time of incident. He further stated that he was discharged from the hospital on the same day, while his brother Tosin (PW-5) was discharged after one week. He denied the suggestion that his family members had been using the roof of accused Sagir Ahmad @ Kallu to go to the house of their aunt. He vehemently denied the suggestion that he and his brother Tosin (PW-5) had self-inflicted the injuries upon themselves by a razor after fetching the same from a hair cutting saloon which was situated at the corner of their street and thereafter falsely implicated the accused persons with the help of his friends Farmaan and Khalid.
(xi) He further stated that on 21.08.2015 his brother Tosin/PW-5 had come back home from his job at about 7.30 PM. He further stated that police did not meet him on the date of incident and instead met him after about 1½ month of the incident and the police did not seize his blood stained clothes despite he informing the IO to this effect. He vehemently denied the suggestion that accused persons namely Illiyas, Shakil @ Jaj and his son Aashif @ Raja were not present at the spot/SOC on the date and time of incident and instead they had gone to Allah Rasuq Masjid (mosque) to attend the last rites of one Mohd. Ishaq, who was father of Sarfaraz (DW-1). He further denied the suggestion that accused Illiyas had been falsely implicated in the matter as the said accused used to financially support Smt.Sajida (who is stated to be the widow of deceased brother of father-in-law of PW-5), much against the wishes of his family.
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11. (i) PW-8, Smt.Najma, W/o Shri Mohd. Rafi is the mother-in-law of complainant Tosin/PW-5. She in her evidence could not tell the date of incident, however, she stated that about one year back (from the date of recording of her evidence in the Court) during summer season at about 9.00/9.30 PM she was present at her home when she heard the noise of her daughter Ujma (PW-9) and when she went upstairs she saw all the accused persons running from the roof of house of Sulemaan and at that time his son-in-law Tosin/PW-5 was lying in an injured condition at the roof of house belonging to accused Sagir Ahmad @ Kallu. She further stated that she had also seen Suhail/PW-6 in injured condition on the said day and blood was oozing out from his nose on account of he having sustained stab injury. She further stated that she with the help of injured Suhail/PW-6 brought Tosin/PW-5 to the ground floor of their house and her niece (bhatiji) Sabba made a call at number 100, pursuant to which police came to their house after about one hour. She further stated that she alongwith Suhail/PW-6 took injured Tosin/PW-5 to Shastri Park Hospital and her son Haider also met them in the gali who also accompanied them to the hospital. She further stated that thereafter both the injured persons were referred to GTB Hospital. Injured Suhail was discharged on the same day from GTB Hospital; whereas, injured Tosin/PW-6 remained lying admitted there for about 10-15 days.
(ii) She categorically stated that Suhail/PW-6 had reached at the SOC to save his brother Tosin/PW-5 from the hands of accused persons who were giving beatings to him. Thereafter, this witness was declared hostile and cross-examined by learned Additional PP. In her cross-examination by learned Additional PP, this witness stated that her statement was recorded by the police on 07.11.2015. She categorically stated that the incident in question had taken place at the roof of house of accused Sagir Ahmad @ Kallu on 21.08.2015. However, she denied the suggestion that incident of 21.08.2015 was the result of quarrel which had taken All Accused persons "Convicted" Page 13 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
place on 20.08.2015 between the children of accused Sagir Ahmad @ Kallu and children of the sister of injured Tosin. On this account, this witness was confronted with portion A to A of her statement Ex.PW8/A.
(iii) She further denied the suggestion that accused persons had dragged Tosin/PW-5 and took him to the roof of adjacent house. She was confronted on this account from portion B to B of her statement Ex.PW8/A. However, she volunteered to state that accused persons had pulled Ms.Sana @ Sajia (sister of Tosin), so Tosin reached at the roof of adjacent house where the incident in question took place. She admitted the suggestion of learned Additional PP that both the injured persons had told her that they had sustained injuries at the hands of accused persons by "churri". However, she denied the suggestion that she was putting up at house No.F-537, Gali No.20. On this account, this witness was confronted from portion C to C of her statement Ex.PW8/A.
(iv) This witness was thoroughly cross-examined by the learned defence counsels. In her cross-examination by learned defence counsels, she stated that on 21.08.2015, Tosin/PW-5 had come back to home from job at about 7.30 PM. She categorically admitted that Tosin/PW-5 and Suhail/PW-6 did not sustain any injuries in her presence and that no quarrel had taken place in her presence. She further categorically stated that she did not accompany the injured persons to hospital. However, in the next breath, she stated that injured Tosin/PW-5 was removed to hospital by her and Suhail in a TSR. She categorically denied the suggestion that she had not seen accused persons namely Illiyas, Shakil @ Jaj and his son Aashif @ Raja on the date of incident or that all three of them had gone to attend the last rites of one Ishaq on the date and time of incident.
(v) She further stated that police had not recorded her statement in the matter. She denied the suggestion that Tosin and Suhail had inflicted injuries upon each other just to falsely implicate the accused persons in the matter. She All Accused persons "Convicted" Page 14 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
categorically denied the suggestion that accused Illiyas had been falsely implicated in the matter as he used to give financial assistance to her sister-in-law namely Smt.Sajida.
12. (i) PW-9, Smt.Ujma is the wife of complainant Tosin/PW-5. This witness could not tell the date of incident, however, she stated that it was about 7.00 PM in the month of August' 2015 when her sister-in-law namely Sanna @ Sajia was pulled by accused Sagir Ahmad @ Kallu and when her husband Tosin/PW-5 rushed to save her, accused Shakil @ Jaj and Aashif @ Raja attacked him with their knives thereby causing injuries to her husband. She further stated that on hearing this commotion, her devar Suhail/PW-6 also came to SOC where accused Illiyas and Sagir Ahmad @ Kallu inflicted stab injuries upon him on his nose. She categorically stated that accused persons had used four knives (chaaku) in the incident. She further stated that thereafter she raised an alarm and her mother Smt.Najma/PW-8 and her father also came at the spot/SOC and her father took both PW-5 and PW-6 to the ground floor of their house. She further stated that thereafter she made a call on number 100 and one boy namely Chochu, who was residing in their neighbourhood also made a call at number 100. She further stated that her devar Suhail and one of his friends namely Mogali S/o Shri Bhure had taken her injured husband to hospital.
(ii) Thereafter, this witness was declared hostile by the prosecution and thoroughly cross-examined by the learned Additional PP. In her cross-examination by learned Additional PP, this witness stated that her statement Ex.PW9/A was recorded by the IO on 07.11.2015, however, she denied the suggestion that she had disclosed her address to be House No.F-537, Gali No.20 to the police. On this aspect, she was confronted from portion A to A of her statement Ex.PW9/A.
(iii) In her cross-examination, she admitted the suggestion of prosecution that the incident in question was the outcome of a quarrel which had taken place on All Accused persons "Convicted" Page 15 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
20.08.2020 between the children of accused Sagir Ahmad @ Kallu and the children of the sister of her husband. She further admitted that the incident in question had occurred at the roof of the rented house of accused Sagir Ahmad @ Kallu. She categorically stated that accused Sagir Ahmad @ Kallu and Illiyas had caused injuries to her husband/PW-5 by using "churries" while injuries to her devar Suhail/PW-6 was caused by accused Illiyas with "churri". She further categorically stated that all the four accused persons had come in their room, dragged her husband Tosin/PW-5 to the roof of house belonging to accused Sagir Ahmad @ Kallu, accused Shakil @ Jaj and Aashif @ Raja caught hold of him while accused Sagir and Illiyas inflicted knife injuries upon him.
(iv) This witness was thoroughly cross-examined by the learned defence counsels. In her cross-examination by learned defence counsels, this witness stated that her statement was not recorded by the police in the matter. She categorically denied the suggestion that her devar Suhail/PW-6 used to tease and harras the daughters of accused Sagir Ahmad @ Kallu namely Shehnaz and Yasmin, however, she admitted that her devar Suhail used to come to their house after climbing the roof from the side of house of accused Sagir Ahmad @ Kallu.
(v) Since, this witness stated in her cross-examination by learned Additional PP that her statement was recorded by the police on 07.11.2015; whereas during her cross-examination by learned defence counsel(s) this witness stated that her statement was not recorded by the police. As such, this Court put a question to her which is as under:
Court Question: Under whose fear you made statement during cross-examination by Ld.APP for State thereby admitting that you made a statement before police? Ans.: I have come to court first time due to which I was under fear.
(vi) She further stated that incident of August' 2015 had taken place place at the first floor of house No..F-536. She admitted that neither she witnessed accused All Accused persons "Convicted" Page 16 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
Sagir Ahmad @ Kallu stabbing her husband Tosin nor she witnessed accused Shakil and Aashif catching holding of him. She categorically denied the suggestion that she alongwith her husband Tosin/PW-5, Suhail/PW-6, Shaukat, Rafiq @ Rafu and Najma/PW-8 had forcibly entered the house of accused Sagir Ahmad @ Kallu and pelted stones as the said accused objected to using the roof of his house for crossing over. She further denied the suggestion that accused Illiyas was not present at SOC on the date and time of incident as he had gone to Qabristan (burial ground) for attending the last rites of one Mohd. Ishaq. She further categorically denied the suggestion that accused Illiyas had been falsely implicated in the matter as the said accused used to financially support her widow aunt Smt.Sajida, much against the wishes of her family.
13. (i) PW-12, Farman S/o Shri Ayub in his evidence stated that on the date of incident (he did not specifically mention the date) he came to his house at about 7.00 PM after finishing off the day's work. After taking meal, when he was walking in the gali outside his house, his friend Sarik met him, who told him about the incident in question. He further stated that thereafter he reached in front of house of his unle Noor Ahmed in Gali No.21, Khajuri Khas, where he saw both the injured persons (PW-5 and PW-6) and thereafter he alongwith his friend Khalid took them to JP Hospital for medical examination in a TSR. He further stated that police did not meet him.
(ii) Thereafter, this witness was declared hostile and thoroughly cross- examined by learned Additional PP. In his cross-examination by learned Additonal PP, this witness denied the suggestion that police had visited his house 07.1.2015 and recorded his statement. He denied the suggestion that on 21.08.2015 he had come to know about Tosin and Suhail having sustained stab injuries at the hands of accused persons. On this aspect, this witness was confronted from All Accused persons "Convicted" Page 17 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
portion(s) A to A and B to B of his statement Ex.PW12/A.
(iii) In his cross-examination by learned defence counsels, this witness stated that he alongwith both the injured persons had reached at JP Hospital at about 8.15 PM and he had stayed at the said hospital for about 30 minutes. He further stated that on way to hospital, both the injured persons had not told the names of assailants to him.
Witnesses of investigation
14. Before taking up the evidence under this Head, it is pertinent to mention here that PW-2 HC Karan Pal and PW-3 Lalit Kumar were initially examined in the Court on 28.04.2016, however, by that time supplementary chargesheet against accused Aashif @ Raja (who was initially absconding in the matter) had not been field. Accused Aashif @ Raja was arrested in the matter on 18.04.2016 and supplementary chargesheet against him was committed to this Court vide order of learned ACMM (North-East) dated 20.12.2016. Pursuant to arrest of accused Aashif @ Raja, defence moved an application under Section 311 Cr.P.C for recalling of PW-2 and PW-3, which was duly allowed by this Court vide order dated 04.08.2017, of course subject to the availability of aforesaid witnesses.
15. (i) PW-2, HC Karan Pal in his evidence stated that on the intervening night of 21/22.08.2015 he was lying posted at PS Khajuri Khas. On that day, at about 10.15 PM one call was assigned to him vide DD No.105B (Ex.PW2/A) which was regarding an incident of stabbing at Chand Bagh puliya. He further stated that pursuant to receipt of aforesaid DD he alongwith Constable Ajay Malik went to Chand Bagh puliya, where he found ASI Chandra Vir Singh, Constable Lalit and some public persons already present there. He further stated that thereafter he alongwith ASI Chandra Vir Singh and Constable Lalit went to hospital, leaving Constable Ajay Malik to guard the spot and in the hospital they collected MLCs of All Accused persons "Convicted" Page 18 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
injured persons namely Razia Begum, Yashmeen, Sagir Ahmad, Tosif and Suhail, out of whom two injured persons were referred to GTB Hospital for further medical treatment. He further stated that thereafter ASI Chandra Vir Singh alongwith Constable Lalit Kumar proceeded for GTB Hospital while he remained at JP Hospital; injured Sagir Ahmad was discharged by the doctor on the same day and he informed this factum to ASI Chander Vir Singh. He further stated that after some time ASI Chandra Vir Singh returned back to JP Hospital, interrogated accused Sagir Ahmad @ Kallu, arrested him, conducted his personal search and recorded his disclosure statement vide memos Ex.PW2/B, Ex.PW2/C and Ex.PW2/D respectively. He further stated that pursuant to his disclosure statement accused Sagir Ahmad @ Kallu led them to the scene of crime (SOC), i.e roof of house bearing No.F-537, Gali No.15, Khajuri Khas and at his instance IO prepared pointing out memo Ex.PW2/E and thereafter the said accused got recovered one "churri" from a room on the ground floor of his house, whose sketch was prepared by IO ASI Chandra Vir Singh vide memo Ex.PW2/F and thereafter the same was kept in a cloth pulanda, sealed with the seal of CVSP and seized vide seizure memo Ex.PW2/G. This witness identified his signatures upon all the aforesaid memos at point A. He further stated that the total length of said knife (churri) was found to be 22 cms while length of its blade was 12 cms. This witness identified the said knife as Ex.P1.
(ii) In his cross-examination by the learned defence counsel(s), this witness could not tell the number of public persons present at the spot/SOC on the date of incident. However, in the next breath he stated that no public person was available at the spot/SOC. He also could not tell the time of arrest of accused Sagir Ahmad @ Kallu, but clarified that said accused was arrested after 1.00 AM. He denied the suggestion that he did not visit the spot/SOC.
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16. (i) PW-3, HC Lalit Kumar in his evidence stated that on the intervening night of 21/22.08.2015 he was on night emergency duty at PS Khajuri Khas and pursuant to receipt of DD No.101B (Ex.PW3/A) he alongwith ASI Chandra Vir Singh (PW-16) went to the spot/SOC where they came to know that injured persons had already been removed to JP Hospital. In the meantime, HC Karan Pal/PW-2 with Constable Ajay Malik also reached at the spot/SOC. He further stated that thereafter he alongwith ASI Chandra Vir Singh/PW-16 and HC Karan Pal (PW-2) reached at JP Hospital, where they met five injured persons and collected their MLCs. They further came to know that out of the said five injured persons, two injured persons namely Tosin (PW-5) and Suhail (PW-6) have been referred to GTB Hospital for further medical treatment. He further stated that thereafter he alongwith ASI Chandra Vir Singh went to GTB Hospital, leaving HC Karan Pal at JP Hospital. In GTB Hospital ASI Chandra Vir Singh made enquiries from injured Tosin and Suhail and recorded statement of Tosin (Mark PW3/1), prepared rukka, he took the same to PS and got the case FIR registered in the matter and thereafter came back at the spot and handed over copy of FIR and rukka to IO. He further stated that thereafter he alongwith ASI Chandra Vir Singh went to JP Hospital, where IO arrested accused Sagir Ahmad @ Kallu, conducted his personal search and recorded his disclosure statement vide memos Ex.PW2/B, Ex.PW2/C and Ex.PW2/D respectively. He further stated that pursuant to the disclosure statement made by accused Sagir Ahmad @ Kallu, he led them to the spot/SOC and pointed out the place of incident, IO accordingly prepared pointing out memo Ex.PW2/E; accused got recovered one "churri" from the washing machine lying at the ground floor of his house, IO took its measurements and prepared sketch thereof vide memo Ex.PW2/F and thereafter sealed the same with the seal of CVSP and seized vide seizure memo Ex.PW2/G. This witness identified his signatures on all the aforesaid memos at point B. All Accused persons "Convicted" Page 20 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
(ii) In his cross-examination by the learned defence counsel(s), this witness stated that he did not participate in the investigation conducted by IO qua accused Aashif @ Raja. He further stated that pursuant to receipt of DD No.101B (Ex.PW3/A), he alongwith IO had reached at the spot/SOC on motorcycle, but he could not tell the registration number thereof. He further stated that HC Karan Pal (PW-2) and Constable Ajay Malik had arrived at the spot/SOC after 15-20 minutes of their reaching the spot. He further stated that they remained at JP Hospital for about 1-1½ hours, while they remained at GTB Hospital for about 10-15 minutes. He further stated that he reached at the spot/SOC with copy of FIR and rukka at about 2.20 AM and at that time Suhail (PW-6) and some other public persons were present there. He admitted that the site plan do not bear his signatures. He further stated that arrest papers of accused Sagir Ahmad @ Kallu were prepared at JP Hospital. He further stated that seal after use was handed over to him by the IO which he had deposited with MCH(M) on the next morning. This witness denied the suggestion that he did not go to the house of accused Sagir Ahmad @ Kallu with IO or nothing was recovered from the possession of said accused.
17. (i) PW-7, SI Prem Pal in his evidence stated that pursuant to the directions of SHO, on 17.04.2016 he had formally arrested accused Aashif @ Raja in court premises vide arrest memo Ex.PW7/A and thereafter recorded his disclosure statement vide memo Ex.PW7/B. He further stated that on the same day, complainant came to the Court of PS Khajuri Khas and identified the said accused outside court room. He further stated that thereafter on the directions of SHO concerned, he prepared supplementary chargesheet against accused Aashif @ Raja and sent the same for trial.
(ii) In his cross-examination by learned defence counsel(s), this witness stated that he arrested accused Aashif @ Raja at about 2.35 PM and his personal All Accused persons "Convicted" Page 21 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
search memo was not prepared by him. He further stated father of said accused was informed about his arrest. He further stated that at the time effecting arrest of accused Aashif @ Raja, Constable Netra Pal was also present with him and he had recorded his statement under Section 161 Cr.P.C at about 3.00 PM. He denied the suggestion that no proceedings qua accused Aashif @ Raja was conducted by him.
18. (i) PW-15, HC Deepak Kumar in his evidence stated that on 04.11.2015 he joined the investigation with ASI Chander Vir Singh and Constable Sudhir Kumar and at the instance of secret informer, IO arrested accused persons namely Illiyas and Shakil @ Jaj from near Church F-Block, Gali No.16, Khajuri Khas. He further stated that IO also recorded the disclosure statements of aforesaid accused persons. He has proved on record the documents of arrest of both the said accused persons and their disclosure statements as Ex.PW15/A-1, Ex.PW15/A-2, Ex.PW15/B-1, Ex.PW15/B-2, Ex.PW15/C and Ex.PW15/D respectively. He further stated that thereafter both the accused persons led to them spot/SOC, where IO prepared pointing out memo at their instance vide Ex.PW15/E and Ex.PW15/F respectively.
(ii) In his cross-examination by learned defence counsel(s), this witness stated the public persons refused to join the raiding party, however, no written notice was served upon them and he even could not tell the names and addresses of those public persons. He denied the suggestion that he had not joined the investigation in the matter at any point of time.
19. (i) PW-16, ASI Chander Vir Singh is the main IO of the case. He in his evidence stated that on the intervening night of 21/22.08.2015 at about 9.45 PM, pursuant to receipt of copy of DD No.101B (Ex.PW3/A), which was regarding a quarrel behind Taj Hotel, he alongwith Constable Lalit Kumar/PW-3 reached at the All Accused persons "Convicted" Page 22 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
spot, i.e House No.F-536-537, Gali No.20, Khajuri Khas where he came to know that a quarrel had taken place on the roof(s) of both the aforesaid houses and injured persons had been removed to hospital by the mohalla people. He further stated that he noticed some blood stains on the roof(s) of both the said houses and pieces of bricks were also lying there. He further stated that thereafter he alongwith Constable Lalit Kumar/PW-3 went to JP Hospital, where he met HC Karan Pal/PW- 2, who had reached the said hospital pursuant to receipt of DD No.105B (Ex.PW2/A) and HC Karan Pal handed over him the MLCs of Tosin, Suhail, Sagir Ahmad @ Kallu, Yasmeen and Smt.Razia Begum. He further stated that thereafter he came to know that two injured persons namely Tosin/PW-5 and Suhail/PW-6 had been referred to GTB Hospital for further medical treatment and as such leaving HC Karan Pal behind, he alongwith Constable Lalit reached at GTB Hospital where he met both the aforesaid injured persons, who were found fit for making their statements. He further stated that firstly he met injured Tosin/PW-5 and recorded his statement (Ex.PW5/A), wherein he named all the four accused persons and thereafter he prepared rukka Ex.PW16/A and got the case FIR in the matter registered through Constable Lalit Kumar. He further stated that thereafter he recorded the statement of another injured Suhail/PW-6 vide Ex.PW16/B and after discharge of injureds from the hospital he prepared unscaled site plan Ex.PW16/C at their instance. He further stated that in the meantime Constable Lalit Kumar reached at the spot and handed over to him the copy of FIR and original rukka and thereafter he took four photographs (Mark PW16/1 to Mark PW16/4) from his mobile phone and also recorded the supplementary statement(s) of both the said injured persons.
(ii) He further stated that thereafter he alongwith Constable Lalit Kumar/PW-3 again went to JP Hospital, where he interrogated and arrested accused Sagir Ahmad @ Kallu, conducted his personal search, recorded his disclosure All Accused persons "Convicted" Page 23 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
statement vide memos already Ex.PW2/B, Ex.PW2/C and Ex.PW2/D respectively. He further stated that thereafter accused Sagir Ahmad @ Kallu led them to the spot/SOC and at his instance he prepared pointing out memo Ex.PW2/E and pursuant to his disclosure statement said accused got recovered one "churri" from the top of washing machine, whose total length was found to be 22 cms, while length of blade was found to be 12 cms and he prepared sketch of said weapon vide Ex.PW2/F and thereafter converted it into a cloth pulanda, sealed with seal of CVSP and seized the same vide seizure memo Ex.PW2/G and after completion of recovery proceedings deposited the same in malkhana.
(iii) He further stated that between 23.08.2015 to 03.11.2015 he carried out search of remaining three accused persons and in this process on 04.11.2015 accused Illiyas and Shakil @ Jaj were arrested by him at the instance of secret informer. He has proved on record documents regarding interrogation, arrest, recording of disclosure statement(s) qua aforesaid accused persons and pointing memos as Ex.PW15/A-1, Ex..PW15/A-2, Ex.PW15/B-1, Ex.PW15/B-2, Ex.PW15/C, Ex.PW15/D, Ex.PW15/E and Ex.PW15/F respectively. He further stated that during the course of investigation he had recorded statements of various witnesses in the matter. He further stated that injuries upon Tosin were opined as "simple" while injuries upon the person of Suhail were opined as "grievous" and as such after discussing with senior officers he added sections 452/326/34 IPC in the matter. He has further proved on record Certificate under Section 65-B of Indian Evidence Act qua correctness of FIR as Ex.PW1/D and copy of DD No.105B as Ex.PW2/A.
(iv) He further stated that after completion of investigation in the matter, he prepared chargesheet and sent the same to Court. He has identified the knife ("churri") recovered at the instance of accused Sagir Ahmad @ Kallu as Ex.P-1.
(v) This witness was thoroughly cross-examined by defence in the All Accused persons "Convicted" Page 24 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
matter. In his cross-examination by learned defence counsel(s), he stated that the house of accused persons namely Shakil and Asif is situated at a distance of about 15-20 yards from the spot/SOC. He further stated that he alongwith Constable Lalit Kumar/PW-3 had reached at SOC on his motorcycle bearing Registration No.DL5SZ/7655. He further stated that he had not noted down the names of those public persons who had told him about the place of incident being House No(s).F- 536-537 and injured persons being removed to Hospital. He categorically stated that nothing was seized by from SOC when he reached there for the first time. He vehemently denied the suggestion that he never visited the SOC. He further stated that after reaching at GTB Hospital firstly he had recorded the statement of Tosin/PW-5 and at that time neither the relatives of Tosin nor of Suhail were present in the said hospital. He further stated that he had taken injureds Tosin and Suhail to SOC from GTB Hospital at about 3.30 AM, where he had prepared site plan and clicked photographs from his mobile phone. He further stated that when he had arrested accused Sagir Ahmad @ Kallu at JP Hospital, some public persons were present there, but he did not join them in the arrest proceedings qua the said accused. He further stated that at the time of seizure of knife (churri) (Ex.P-1) at the instance of accused Sagir Ahmad @ Kallu from his house, only his wife and daughter were present there, however, their signatures were obtained by him on seizure memo and he also did not call any neighbour to join the recovery proceedings qua the said knife/churri. He categorically stated that he did not prepare site plan of the place of recovery of said knife. He vehemently denied the suggestion that he had not taken any action on the complaint of accused Sagir Ahmad @ Kallu and that he had falsely implicated the accused persons in connivance with injureds Tosin/PW-5 and Suhail/PW-6.
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Witnesses of medical evidence
20. (i) PW-11, Dr.Faizul, SR, GTB Hospital in his evidence has proved on record the MLC (dated 21.08.2015) of injured Tosin/PW-5 as Ex.PW10/A. On 17.10.2015, he had opined the nature of injury on the said MLC as "simple".
(ii) In his cross-examination by learned defence counsel(s), this witness categorically stated that he had only given his opinion about the nature of injuries as "simple" and he could not comment whether the injuries sustained by injured were possible due to sudden fall or were they self-inflicted. He also could not tell as to by which weapon the injuries were sustained by the injured.
21. (i) PW-14, Dr.Meghali Kelkar, CMO, Jag Parvesh Chandra Hospital in her evidence stated that on 21.08.2015 she had prepared MLCs of patients namely Tosin/PW-5; Suhail/PW-6; Sagir Ahmad @ Kallu (accused herein); Ms.Yasmeen and Razia Begum (daughter and wife respectively of accused Sagir Ahmad) and the MLCs of said patients have been proved on record as Ex.PW14/A, Ex..PW14/B; Ex.PW14/C; Ex.PW14/D and Ex.PW14/E respectively.
(ii) A brief gist of the observations made by the said witness in the aforesaid MLCs is as under:
MLC Ex.PW14/A (a) Incised wound measuring 15 cm x 4 cm on left lower chest (Tosin) and left hipochondrium exposing underlining muscles and postal cartilage.
(b) Incised wound with soft tissue defect measuring 6 x 4 cm on left arm.
(c) Incised wound 4 x 1 cm into muscle deep on left wrist ventral aspect.
Injuries were fresh in nature and caused by sharp edged weapon.
MLC Ex.PW14/B Incised wound nasal cavity deep resulting in avulsion of left (Suhail) side of nose upto the nasal septum. The wound measured 3 x 1 cm with active bleeding present at the time of examination.
Injury was fresh and caused by sharp edged weapon.
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MLC Ex.PW14/C (i) Incised wound left thumb web space measuring 2.5x0.5 cm (Sagir Ahmad) and 0.5 cm deep.
(ii) Incised wound on left index finger measuring 2x0.5cm and 0.5cm deep.
(iii) Lacerated wound on left parietal region of scalp, superficial in nature measuring 3x0.5cm.
Injuries No.(i) and (ii) caused by sharp edged weapon while injury No.(iii) caused by blunt weapon/impact.
MLC Ex.PW14/D No fresh external injury present at the time of examination.
(Yasmeen) Patient found fit for statement. MLC Ex.PW14/E (i) Red abrasion 2x1cm on right side of forehead. (Razia Begum)
(iii) In her cross-examination, she stated that no concrete opinion could be given whether single or more weapons were used.
Formal witnesses
22. (i) PW-1, ASI Shanti Lal was lying posted as Duty Officer at PS Khajuri Khas in the intervening night of 21/22.08.2015 and he has proved on record rukka (prepared by PW-16 ASI Chandra Vir Singh) as Ex.PW1/A; endorsement made by him upon the said rukka (which was produced before him by Constable Lalit Kumar/PW-13) as Ex.PW1/B; copy of FIR recorded by him in the matter as Ex.PW1/C; and Certificate under Section 65-B of Indian Evidence Act regarding correctness of FIR and computer system as Ex.PW1/D.
(ii) Despite being accorded opportunity, this witness was not cross- examined by the defence.
23. (i) PW-4, ASI Kunwar Singh was working as MHC(M) at PS Gokalpuri at the relevant time and he has proved on record Entry made by him at S.No.2548 in Register No.19 regarding deposition of one sealed parcel containing exhibit of the case in Malkahana as Ex.PW4/A. All Accused persons "Convicted" Page 27 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
(ii) In his cross-examination by learned defence counsel(s), he stated that there is no provision of getting entry made in Register No.19 endorsed from SHO concerned. He further stated that the aforesaid entry was recorded in Register No.19 by Munshi Constable Anil upon his dictation. He further stated that his statement under Section 161 Cr.P.C was recorded by the IO in the evening hours of 22.08.2015 and at that time he had not stated about the initial impression of seal. He denied the suggestion that at the time of depositing in malkahana, the parcel was lying unsealed.
24. (i) PW-11, HC Ved Praksh was lying posted as DD Writer in PS Khajuri Khas at the relevant time and has proved on record true copy of DD No.101-B as Ex.PW3/A and copy of DD No.105-B as Ex.PW2/A (OSR). He further stated that DD No.101-B was assigned to ASI Chandra Vir Singh/PW-16 while DD No.105-B was assigned to HC Karan Pal/PW-2.
(ii) Despite being accorded opportunity, this witness was not cross- examined by the defence.
25. (i) PW-13, HC Netra Pal in his evidence stated that on 18.04.2016 accused Aashif @ Raja was formally arrested by IO SI Prem Pal vide arrest memo Ex.PW7/A and thereafter his disclosure statement was also recorded vide Ex..PW7/B. He has proved on record his signatures on both the aforesaid documents at point B.
(ii) In his cross-examination by learned defence counsel(s), this witness admitted that number of public persons were present outside the Court room at the time of effecting arrest of aforesaid accused, but IO did not ask any of them to join the proceedings.
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26. This is all as far as prosecution evidence in the matter is concerned. Thereafter, statements of all the accused persons under Section 313 Cr.P.C was recorded, wherein all of them claimed to be innocent and having been falsely implicated in the matter by the investigating agency at the instance of injured persons. Accused Sagir Ahmad @ Kallu chose not to lead any defence evidence, however, he took a categorical plea that he has been falsely implicated in the matter at the instance of owner of his tenanted house as well as the complainant and his relatives. On the other hand, remaining three accused persons expressed their willingness to lead defence evidence in the matter. Accused Aashif @ Raja and Illiyas while taking shelter under the plea of alibi categorically pleaded that on the date and time of incident they were not present at the spot/SOC as they had gone to graveyard (Qabristaan), Khajuri Khas for attending the last rites of their relative namely Mohd. Ishaq, who incidentally left for heavenly abode on 21.08.2015 itself. In support of their aforesaid contentions, they examined two independent public witnesses namely Mohd. Sarfaraz and Asgar Ali as DW-1 and DW-2 respectively in the matter. Now, let us see as to what the said witnesses have stated in the defence of aforesaid accused persons.
Defence Evidence
27. (i) DW-1 Mohd. Sarfaraz in his evidence stated that his father Mohd. Ishaq had expired on 21.08.2015 at about 3.00 PM. On that that day accused Illiyas was in market and came to his residence at about 5.00 PM and made arrangements for funeral material for the last rites. He further stated that the dead body (janaza) of his father was taken to Qabristan (grave yard) at about 9/9.15 PM and till that time accused Illiyas had remained with him. He further stated that after burying the dead body, they reached home at about 11.30 PM and till that time accused Illiyas was with him and he had also offered food to his relatives and family members. He further stated that at about 12.00 midnight accused Illiyas took All Accused persons "Convicted" Page 29 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
permission from him for leaving for his house. He categorically stated that accused on 21.08.2015 accused Illiyas had remained with him from 5.00 PM till 12.00 midnight. He has proved on record copy of his Aadhar Card, Death Certificate of his father and photocopy of duplicate burial receipt issued by the Qabristas as Ex.DW1/A, Ex.DW1/B and Mark DW1/X respectively.
(ii) In his cross-examination by learned Additional PP, he could not tell the name(s) of particular relative and mohalla people who had attended the "Janaza" of his father from his house to the burial ground. He denied the suggestion that accused persons namely Illiyas, Shakil and his son Aashif @ Raja had not come to his house or that they had not joined the burial proceedings of his father either at his house, mosque and graveyard. This witness admitted that he had not made any complaint to higher police officer regarding false implication of aforesaid accused persons in the matter by the police.
28. (i) DW-2, Asgar Ali, S/o Shri Haji Nanne Khan in his evidence stated that on 21.08.2015 father of Sarfaraz/DW-1 had expired and he accordingly went to the house of DW-1 on the said day at about 4.30 PM, where family members and friends were also present and accused Illiyas reached there at about 5.30 PM. He further stated that at the time of taking "Janaza" of father of DW-1, accused persons namely Illiyas, Shakil and son of Shakil (whose name he could not tell) also participated in the burial ceremony. He further stated that they remained together from 5.30 PM till 12.30 AM. He has proved on record copy of his Aadhar Card in respect of his identity as Ex.DW2/A.
(ii) In his cross-examination by learned Additional PP, this witness could not tell as to which particular relative and mohalla people had attended the "Janaza" of deceased on the way from their house to the burial ground. He denied the suggestion that accused persons namely Illiyas, Shakil and his son had not joined All Accused persons "Convicted" Page 30 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
the burial proceedings of deceased Mohd. Ishaq. He admitted that all the aforesaid three accused persons were known to him prior to death of Mohd. Ishaq. He further admitted that he had not made any complaint to higher police officer regarding false implication of the aforesaid accused persons in the matter by the police.
Arguments advanced at bar
29. While opening the arguments, learned Additional PP for the State very vehemently argued that both the injured persons namely Tosin/PW-5 and his brother Suhail/PW-6 have not only categorically identified all the four accused persons as assailants who had brutally attacked upon them on the fateful evening of 21.08.2015, but they have also categorically described the role played by each of them. In this regard, learned Addl. PP has taken me extensively through the evidence of PW-5 and PW-6 and argued that PW-5 in very categorical terms stated that in the evening of 21.08.2015 accused Shakil @ Jaj and his son Aashif @ Raja had caught hold of him while accused Sagir Ahmad @ Kallu and Illiyas inflicted knife blows upon him and his version in this regard finds due corroboration from the evidence of PW-6/Suhail, who had come to the spot/SOC pursuant upon hearing screams of his brother/PW-5 and he/PW-6 in the process was also attacked by the accused persons. It is further argued that PW-8 Smt.Najma (mother-in-law of PW-5) and PW-9 Smt.Ujma (wife of PW-5) have also categorically identified all the accused persons and they both have also corroborated the version of PW-5 in material particulars. It is next argued that even the weapon of offence, i.e. the knife (churri) has also been duly identified by both the injured persons which has been proved on record as Ex.P-1. It is further argued that from the MLCs of PW-5 and PW-6 (Ex.PW14/A & Ex.PW14/B respectively), it is quite apparent that both of them had sustained life threatening injuries through sharp-edged weapons and as such, there is ample material on record to convict all the accused persons in the All Accused persons "Convicted" Page 31 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
matter. It is very vehemently argued that accused persons have failed to prove their varied defences taken in the matter.
30. On the other hand, besides arguing orally the learned defence counsel(s) have also tendered written arguments. I have gone through the same. It is very vehemently argued in unison that all the four accused persons have been falsely implicated in the matter by the investigating agency in connivance with both the injured persons. The second point of resistance put forth by the learned defence counsel(s) is that both the injured persons, who are also star witnesses of the prosecution namely PW-5/Tosin, his brother PW6/Suhail as well as PW8/Smt.Nazma (mother-in-law of PW-5) and PW9/Smt.Ujma (wife of PW-5) have failed to support prosecution case in material particulars and that is the reason prosecution was forced to declare them "hostile" and cross-examined by learned Additional PP. The said witnesses made material improvements in their examination-in-chief and as such, they were thoroughly confronted with their earlier statements recorded by the police during the course of investigation. As a corollary to the aforesaid contention, it is submitted that the evidence tendered by all the aforesaid four public witnesses is wholly unreliable and untrustworthy as all of them have miserably failed to withstand the rigors of cross-examination conducted by the defence. A strong pitch has been made that the testimonies of aforesaid public witnesses is inundated with "contradictions and confrontations" with regard to the occurrence of alleged incident; the role played by the accused persons in the alleged incident as well as there is "humungous ambiguity" about the scene of crime (SOC) in the matter. It is argued that said "contradictions and confrontations" are material ones which go to the root of the matter, thereby completely demolishing the foundation of prosecution case and as such, the benefit thereof should be accorded to the accused persons. The "contradictions and confrontations", so pointed out All Accused persons "Convicted" Page 32 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
by the learned counsel(s) are detailed as under.
(A) Contradictions:
PW-5/Tosin his Whereas, PW-5/Tosin in PW-5/Tosin his complaint examination-in-chief his complaint/statement (Ex.PW5/A) has stated recorded in the Court on (Ex.PW5/A) (on the basis that the alleged incident 27.03.2017 mentioned his of which case FIR in the had taken place on the house number as F-536, matter was registered) roof of his house No.F-
Gali No.21, Khajuri Khas, categorically mentioned 536; whereas, as per site Delhi. Even in his cross- his house number to be F- plan (Ex.PW16/C) the examination by defence, 537, Gali No.20, Khajuri place of alleged incident he reiterated his house Khas, Delhi. has been shown as roof of number to be F-536. house No.F-537.
It was argued that even
from a bare perusal of
rukka (Ex.PW16/A), there
appears to be clear
overwriting by IO while
mentioning "Jaay
Bakua", as initially F-536
was written by him, which
later on was corrected to
F-537.
PW-9/Smt.Ujma (wife of Whereas, PW-9 in her
PW-5) in her examination- statement recorded under
in-chief recorded in the Section 161 Cr.P.C by the
Court on 28.03.2017 IO on 07.11.2015
categorically mentioned (Ex.PW9/A) had
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her house number as F- categorically mentioned
536, Gali No.21, Khajuri her house number to be F-
Khas, Delhi. 537, Gali No.20, Khajuri
Khas.
PW-6/Suhail categorically stated in his PW-5/Tosin on the other hand stated that cross-examination conducted by learned the alleged incident had taken place on Addl. PP that the entire incident had the roof of house belonging to his taken place on the roof of house brother PW-6.
belonging to accused Sagir Ahmad @ Kallu.
PW-5/Tosin in his cross-examination by Whereas, PW-6/Suhail categorically defence categorically stated that he was denied the suggestion of learned Addl. dragged upon the roof of the house PP that accused persons had ever belonging to accused Sagir Ahmad by dragged his brother/PW-5. accused Sagir Ahamd and Illiyas.
PW-6/Suhail during the course of his However, PW-6 during his cross- cross-examination by learned Addl. PP examination by the defence, categorically stated that police had categorically stated that police never inspected the spot and prepared site plan recorded his statements either on (Ex.PW16/C) in his presence, upon 22.08.2015 or on 07.11.2015 and further which this witness also identified his the police neither prepared any site plan signatures at point B. of SOC nor took any photographs of SOC in his presence.
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PW-6 admitted in his cross-examination PW-14/Dr.Meghali Kelkar, who had conducted by defence that he had never prepared the MLCs of PW-5 and PW-6 told the treating doctor(s) at hospital that had also mentioned the spot/SOC to be the alleged incident had taken place at Chand Bagh Puliya. Even in her Chand Bagh puliya. However, it is a evidence recorded in the Court on matter of record that the spot/SOC as 25.05.2017, this witness had lying mentioned in the MLC categorically stated that patient had (Ex.PW14/A) of PW-5 is Chand Bagh alleged history of physical assault at Puliya. Khajuri Khas, near Chand Bagh Puliya.
On the strength of aforesaid, it is argued that naturally PW-14 would have written about the spot/SOC only after confirming the same from injured/PW-5. It is emphasized that the said contradiction qua the spot/SOC goes on to prove that no such incident had actually taken place and rather both the injured persons had a quarrel with some other person(s) at Chand Bagh puliya and thereafter they got the accused persons falsely implicated in the matter.
PW-5/Tosin in his Whereas, as per the Even PW-12/Farmaan, examination-in-chief as evidence of PW-14 and who had allegedly taken well as in his cross- MLC/Ex.PW1/4A, PW-5 both the injureds to JP examination by the was fully conscious at the Hospital categorically defence categorically time of his medical stated that both the injured stated that he lost his examination. persons were fully consciousness within five conscious and had even minutes of sustaining talked with him.
knife blows at the hands of accused persons.
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It is emphasized that that aforesaid contradiction completely negates the averments of PW-5 and PW-6 that while going to JP Hospital, one of the injured was unconscious.
PW-5/Tosin in his examination-in-chief Whereas, as per the evidence of PW-14 as well as in his cross-examination by and MLC/Ex.PW1/4A, PW-5 was fully the defence categorically stated that he conscious at the time of his medical lost his consciousness within five examination.
minutes of sustaining knife blows at the hands of accused persons.
PW-9/Smt.Ujma (wife of PW-5) stated in Whereas, PW-8/Smt.Najma (mother-in- her examination-in-chief that on the day law of PW-5) stated in her examination- of alleged incident she had made a call at in-chief that call at number 100 was number 100 and thereafter one boy made by her niece (bhatiji) namely Chochu (who is stated to be residing in Kumari Sabba.
the neighbourhood) also made a call at number 100.
PW-8 during her cross-examination by Whereas, in the next breath during her defence stated that she had not cross-examination by defence, PW-8 accompanied the injured persons to categorically stated that injured/PW-5 hospital. was removed to hospital by her and PW-
6 in a TSR.
PW-12, Farmaan in his examination-in- Whereas, PW-5 during his cross- chief stated that he alongwith one of his examination by learned Addl. PP All Accused persons "Convicted" Page 36 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
friend Khalid had taken the injureds to categorically denied the suggestion that UP Hospital for medical examination in one Khalid had also taken him and PW-6 a TSR. to hospital.
It is submitted that this witness did not Even PW-6 did not mention about the mention that PW-8 had also name of Khalid having taken them to accompanied them in the TSR. hospital.
PW-5/Tosin during his PW-6/Suhail during the PW-8, Smt.Najma cross-examination by course of his cross- (mother-in-law of PW-5) learned Addl. PP examination by learned categorically admitted in categorically admitted Addl. PP categorically her cross-examination by that his wife (PW-9) and denied the suggestion that defence that both the mother-in-law (PW-8) had PW-8 and PW-9 had injureds had not sustained witnessed the alleged witnessed the alleged any injuries in her incident in question. incident in question. presence and no quarrel had taken place in her presence.
PW-9/Smt.Ujma (wife of
PW-5) in one breath
during her examination-in-
chief stated the nitty-gritty
of the act(s)/roles played
by accused persons in the
alleged incident; while in
the next breath during her
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cross-examination by
defence she categorically
admitted that neither she
witnessed accused Sagir
Ahmad stabbing PW-5 nor
she witnessed accused
Shakil and Aashif holding
him.
PW-9/ Smt.Ujma However, PW-9 in her Whereas, both the
categorically stated in her cross-examination injureds, i.e PW-5 and his
examination-in-chief that categorically stated that brother PW-6 have never accused persons had used accused persons namely stated that four knives four knives (chaaku) in the Shakil @ Jaj and his son were used by the accused alleged incident. Aashif @ Rajaj had persons in the alleged caught hold of PW-5, incident.
while accused Sagir
Ahmad @ Kallu and
Illiyas had inflicted knife
blows upon him.
It was submitted that thus PW-9 in her evidence has given two aspects qua the number of knives, which in itself are self-contradictory to each other. Even her said version contradicts the theory propounded by PW-5 and PW-6 regarding the number of knives used in the alleged incident, meaning thereby that no such incident had ever taken place.
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PW-9/Smt.Ujma categorically stated in However, PW-9 in her cross-examination her examination-in-chief that accused categorically stated that accused persons persons had used four knives (chaaku) in namely Shakil @ Jaj and his son Aashif the alleged incident. @ Rajaj had caught hold of PW-5, while accused Sagir Ahmad @ Kallu and Illiyas had inflicted knife blows upon him.
PW-6 and PW-8 both stated in their Whereas, PW-5 in his examination-in- cross-examination by the defence that on chief stated that on 21.08.2015 he had the date of alleged incident (i.e on returned home after finishing off day's 21.08.2015), PW-5 had returned home at work at about 9.30/9.45 PM. about 7.30 PM.
On account of the aforesaid contradiction(s), it was emphasized by the defence that there is humongous ambiguity in the statements of aforesaid public witnesses with regard to the place of alleged incident/SOC, which signifies that the alleged incident had never taken place and the injuries appears to be self-inflicted by the injured persons just to falsely implicate the accused persons.
(B) Confrontations:
Confrontation of PW-5/Tosin Learned Defence Counsels pointed out However, while referring to the cross- that PW-5/Tosin during the recording of examination of PW-5/Tosin conducted his examination-in-chief categorically by learned Additional PP, it has been stated that, to quote: pointed out that this witness All Accused persons "Convicted" Page 39 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
xxxx categorically denied the suggestion of Muljimo ne kuch nahi bola hamla karte prosecution to the effect, to quote:
waqt. xxxxx
Kal to tu bach gaya, aaj nahi
xxxxx
chodenge"
xxxxx
It was submitted that on account of aforesaid reason this witness was confronted with his statement (Ex.PW5/A), recorded by the IO. It was further submitted that this witness not confronted once, but was confronted as many as quintuple times with his aforesaid statement Ex.PW5/A, which signifies that he is not a trustworthy witness.
Confrontation of PW-6/Suhail It was pointed out that during his cross- However, while referring to the cross- examination by learned Addl. PP this this examination of this witness conducted by witness categorically denied the learned Additional PP, it has been suggestion that he and his brother/PW-5 pointed out that this witness were attacked by the accused persons categorically denied the suggestion of with "churri" on 21.08.2015 with the prosecution to the effect, to quote:
purpose of liquidating them. Instead,
this witness had volunteered to state as xxxxx
"Kal to tum dono bach gaye, aaj nahi
under. To quote:
bach payoge, aaj tumhe jaan se maar
xxxxx
"Vol. Chot hamey bachho ke jhagde ki denge".
wajah se pahuchayi gai thi. Mujhe xxxxx
nahi pata ki inki niyat jaan se maar
dene ki thi".
xxxxx
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It was further pointed out that this witness categorically denied the suggestion of learned Additional PP that the scene of crime (SOC) was photographed by the police in his presence.
It was submitted that on account of aforesaid reason this witness was confronted with his statement (Ex.PW6/A), recorded by the IO. It was further submitted that this witness not confronted once, but was confronted as many as quadruple times with his aforesaid statement. It was emphasized that this witness even denied recording of his supplementary statements dated 18.04.2016 (Ex.PW6/B) and 07.11.2015 (Ex.PW6/C) and he was accordingly confronted with his aforesaid statements also in entirety. It was argued that confrontation of an eye witness with his statements recorded by the police that too on line to line basis signifies that he is not a reliable witness and conviction of accused persons cannot be based upon such a shaky material.
Confrontation of PW-8/Smt.Najma Confrontation of PW-9/Smt.Ujma It was pointed out that this witness It was pointed out that this witness during her cross-examination by learned during her cross-examination by learned Addl. PP denied the suggestion(s) of Addl. PP denied the suggestion of prosecution that the alleged incident of prosecution that that she had disclosed 21.08.2015 was result of the quarrel that her address to be House No.F-537, Gali had taken place on 20.08.2015 between No.20 to the IO at the time of recording f the children of accused Sagir Ahmad @ her statement under Section 161 Cr.P.C All Accused persons "Convicted" Page 41 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
Kallu and children of the sister of injured by him on 07.11.2015. Tosin and that accused persons had dragged Tosin/PW-5 and taken him to As such, this witness was confronted the roof of adjacent house. with her statement, recorded by the IO under Section 161 Cr.P.C on 07.11.2015 As such, this witness was confronted (Ex.PW9/A).
with her statement, recorded by the IO under Section 161 Cr.P.C on 07.11.2015 (Ex.PW8/A).
31. Plea of alibi:
The learned counsel for accused Illiyas while taking shelter under the "plea of alibi" very vehemently argued that the said accused was not present at the spot/SOC on the date and time of alleged incident, as he was busy in attending the last rites of one Mohd. Ishaq, who incidentally had expired on 21.08.2015 at about 3.00 PM. It was argued that upon coming to know about the death of Mohd. Ishaq, accused Illiyas went to his house on 21.08.2015 at about 5.00 PM and remained occupied there till about 12.00 midnight. To bolster his aforesaid contention, the learned counsel has extensively read over to me "defence" taken by accused Illiyas during the course of cross-examination of material witnesses and his statement recorded under Section 313 Cr.P.C. In this regard, the learned counsel has also taken me through the evidence of DW-1 Mohd. Sarfaraz (son of said Mohd. Ishaq.
who expired on 21.08.2015) and DW-2 Shri Asgar Ali, both of whom have categorically stated about the presence of accused Illiyas with them on 21.08.2015 from 5.30 PM till 12.00 midnight.
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32. Besides harping upon the "plea of alibi", it was further contended on behalf of accused Illiyas that he has been falsely implicated in the matter by the accused persons on account of the fact that he/Illiyas used to financially support Smt.Sajida (who is stated to be aunt of PW-5/PW-6), much against the wishes of their family members.
33. It is pertinent to mention here that besides taking the general defence(s) as discussed aforesaid, accused persons namely Shakil @ Jaj and his son Aashif @ Rajay also took the "plea of alibi" by arguing that on the date and time of incident, i.e on 21.08.2015 they were also not present at the spot/SOC as they had gone to attend the last rites of deceased Mohd. Ishaq. In support of their aforesaid contentions, both of them also very heavily relied upon the evidence of DW- 1/Mohd. Sarfaraz and DW-2/Asgar Ali.
34. Lastly, it was contended that even if for the sake of argument it is believed that the alleged injuries upon both the injured persons were caused by the accused persons, then also, as per MLCs Ex.PW14/A and Ex.PW14/B the said injuries were not grievous to the extent that the same can be termed as life threatening injuries by any stretch of imagination and as such, the investigating agency committed a factual blunder by invoking the provisions of Section 307 IPC. It was contended that considering the nature and type of injuries sustained by the injured persons, it was simply a case of 324 IPC and nothing more.
Conclusion
35. I have given my thoughtful consideration to the arguments advanced at bar and carefully gone through the entire material on record, including the evidence recorded in the matter. I have also noted down the "contradictions and All Accused persons "Convicted" Page 43 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
confrontations" pointed by the learned defence counsel(s) in the statements of all the four public witnesses, as discussed in detail in preceding paragraphs.
36. Before proceeding further to discuss the rival contentions, it is pertinent to mention here that Hon'ble Supreme Court of India in case reported as, "(2015) 11 SCC 366", titled as, "Jage Ram V/s State of Haryana" has been pleased to hold as under:
xxxxx "12. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given etc."
xxxxx (emphasis supplied)
37. Now, reverting back to the case in hand. I have carefully gone through all the "contradictions and confrontations" pointed out by the learned defence counsels and set out in detail in the preceding paragraphs. It is a matter of record that despite the said "contradictions and confrontations" all the four public witnesses, i.e PW-5, PW-6, PW-8 and PW-9 during the course of their evidence All Accused persons "Convicted" Page 44 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
recorded in the Court have categorically named and identified all the accused persons to be assailants on the date of incident. None of the said public witness ever blinked for second in naming and identifying the accused persons in Court as the assailants in the matter. It is further a matter of record that injureds PW-5/Tosin and his brother PW-6/Suhail have not only categorically named and identified the accused persons, but they have also distinctly enumerated the role played out by each of the accused while inflicting knife injuries upon them. There is not an iota of contradiction or confrontation in the evidence of PW-5 and PW-6 with regard to identification of accused persons being assailants and the role played by each of them while inflicting injuries upon them with knife. PW-5 while identifying the accused persons categorically stated in his evidence that accused Shakil @ Jaj and his son Aashif had caught hold of him, while accused Sagir Ahmad @ Kallu attacked him with a knife (churri) and accused Illiyas also helped the other accused persons in the process, as a result of which he sustained injuries on his left arm and abdomen. The version/evidence of PW-5 in this regard duly finds corroboration from the evidence of PW-6, whereby he/PW-6 also stated in categorical terms that when he reached at the roof pursuant to hearing the noise of "bachao-bachao", he saw accused persons Shakil and Aashif holding his brother/PW-5, while accused Sagir Ahmad and Illiyas were inflicting stab injuries upon him. PW-5, PW-6, PW- 8 and PW-9 have even duly identified the knife (churri) as Ex.P-1 which was used by the accused persons during the assault. It is also a matter of record that all the accused persons had firstly dragged PW-5 upon the roof of the house of accused Sagir Ahmad and thereafter all of them attacked PW-5 simultaneously and when PW-6 came to save his brother/PW-5, they also attacked him like wild dogs, which clearly goes on to show that they had come prepared and their said act also loudly speaks of their intention in this regard.
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38. A strong objection was taken by the defence that there is ambiguity about the scene of crime(SOC) in the matter in as much as PW-5/Tosin in his complaint Ex.PW5/A categorically mentioned SOC to be roof of House No.F-536, but in site plan (Ex.PW16/C) the SOC has been shown to be F-537. It was further argued that PW-5 even mentioned his house number as F-536 during the course of recording of his examination-in-chief in the Court on 27.03.2017, while in his complaint Ex.PW5/A, he mentioned his house to be F-536. Even PW-9 in her examination-in-chief mentioned her house number as F-536, while in her statement Ex..PW9/A, she stated her house number as F-537. In this regard, I have gone through the site plan Ex.PW16/C. Admittedly, it has come on record that the house(s) of complaint/injured and accused persons are situated in F-Block and they are adjacent to each other in the sense that roofs of their respective houses are lying joint with each other and merely separated by a small wall. Thus, it is quite possible that on account of the said reason the aforesaid error might have crept in, however, that is not so major that the entire prosecution case can be thrown out of the window. This Court cannot be oblivious to the fact that the area/locality where the incident in question had taken place is thickly populated with congested/narrow lanes with roof(s) of houses merging into each other and mostly inhabited by people belonging to economically weaker section and not so educated. So, the aforesaid contention is not of much help to the accused persons.
39. Though, it is a matter of record that all the four public witnesses examined in the matter were declared "hostile" by prosecution at one point of time or another, but that doesn't mean that their evidence can be thrown out of the window en bloc on this sole count. The law relating to evidentiary value of hostile witness is no longer res-integra. It is the settled position that the testimony of hostile witnesses cannot be rejected en bloc and Court can consider evidence of All Accused persons "Convicted" Page 46 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
hostile witness to corroborate other evidence on record. It is also clearly well settled that mere fact that a witness is declared hostile does not make him unreliable witness so as to exclude his evidence from consideration altogether but the said evidence remains admissible in the trial and there is no legal bar to base conviction or acquittal upon testimony of hostile witness if corroborated by other reliable evidence. Hon' ble Supreme Court in case reported as, "(2016) 10 SCC 506", titled as, "Raja & Others V/s State of Karnataka", has been pleased to hold as under:
xxxxx
32. That the evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu @ Chintu (supra) by drawing sustenance of the proposition amongst others from Khujii V/s State of M.P. (1991) 3 SCC 627 and Koli Lakhman Bhai Chanabhai V/s State of Gujarat (1999) 8 SCC 624.
xxxxx
40. Thus, as discussed in preceding paragraph No.37, from the conjoint reading of the evidence of PW-5, PW-6, PW-8 and PW-9, the fact which is getting clearly established is that there is no ambiguity about the identification of accused persons to be the assailants in the matter and the role played by each of them while inflicting injuries upon the person of PW-5 and PW-6 in the evening of 21.08.2015. The defence has not been able to make any dent in the evidence of PW-5 and PW-6 in this regard. Their evidence in this respect is trustworthy and inspires confidence.
41. As regards the "plea of alibi" pressed into service by accused Illiyas, Shakil and his son Aashif @ Raja, it is relevant to note here that the said plea has to be proved beyond reasonable doubt unlike other defences falling under general exception. It is also well settled that "plea of alibi" is to be established by the accused who takes it and in case "plea of alibi" taken by an accused is accepted by All Accused persons "Convicted" Page 47 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
the Court then evidence of even the eye witnesses of some incident will have to be discarded. As regards the case in hand, aforesaid three accused persons while taking shelter under the said plea took a categorical defence that on the date of alleged incident they were not present at the spot/SOC as they had gone to attend the last rites of one Mohd. Ishaq, who incidentally had expired on 21.08.2015. In order to establish the said plea they have examined two defence witnesses namely DW-1 Mohd. Sarfaraz (who is the son of deceased Mohd. Ishaq) and DW-2 Asgar Ali. I have gone through the evidence of both the aforesaid witnesses. Though, it is a matter of record that father of DW-1 Mohd. Ishaq had indeed expired on 21.08.2015 and both the DWs stated that the said accused persons remained present with them on the said date from 5/5.30 PM till 12.00 midnight, however, it does not appeal to the senses that both the aforesaid DWs did not approach the higher police officials with their complaint(s) when the said three accused persons were implicated by the IO in the instant case. If both the said DWs were so worried about the false implication of aforesaid accused persons in the instant case, then it was all the more incumbent upon them to have approached the higher police officers to show their bonafides in this respect. Both the aforesaid D.Ws have categorically admitted in their cross-examination by learned Additional PP that they did not make any complaint to higher police officer with regard to false implication of accused Illiyas, Shakil @ Jaj and his son Aashif @ Raja in the matter by the Investigating Officer. Thus, the evidence of DW-1 and DW-2 do not inspire any confidence, firstly for their failure to report the matter to higher police officer on the first available opportunity and secondly in view of the categorical naming and identification of all the accused persons by PW-5, PW-6, PW-8 and PW-9. Thus, I am of the considered opinion that the said accused persons have miserably failed in establishing the plea of alibi and even the evidence of DW-1 and DW-2 cannot sail them through in this regard.
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42. (i) As regards the contention of defence that the injuries suffered by PW-5 and PW-6 were not so grievous so as to term them "life threatening injuries" and as such Section 307 IPC has been wrongly invoked by the investigating agency, it is noted that the Hon'ble Supreme Court in Criminal Appeal No.1589/2018 (decided on 04.02.2019), titled as, "State of M.P V/s Kanha @ Omprakash" has been pleased to lay down as under:
xxxxx "The above judgements of this Court lead us to the conclusion that proof of grievous or life-threatening hurt is not a sine qua non for the offence under Section 307 of the Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent."
xxxxx (emphasis supplied)
(ii) So, even the aforesaid contention is also of no help to the accused persons.
43. The evidence produced on record by the prosecution clearly establishes that the injuries to PW-5 and PW-6 were inflicted by accused persons (after making due preparation) with sharp edged weapon/knife. The multiplicity of wounds as per MLC(s) Ex.PW14/A and Ex.PW14/B duly proves that they had sustained stab injuries. The fact that said assault/attack had been carried out by the accused persons after making due preparation is sufficiently proven. In the present case, the nature of injuries shows that injureds PW-5 and PW-6 had received incised wounds (as mentioned in detail in paragraph No.21). The weapon of offence was a knife (Ex.P-1). The timing, manner and the circumstances in which the assault was carried out by the accused persons clearly indicate that there was an intention to All Accused persons "Convicted" Page 49 of 50 SC No.45105/2015: FIR No.903/2015: PS Khajuri Khas: U/s 452/307/34 IPC: State V/s Sagir Ahmad & Ors.
murder. The presence of incised wounds measuring 15 cm x 4 cm on left lower chest and left hipochondrium exposing underlining muscles and postal cartiege upon the person of PW-5 (as per MLC Ex.PW14/A) and presence of incised wound measuring 3x1cm in nasal cavity deep resulting in avulsion of left side of nose of PW-6 (as per MLC Ex.PW14/B) by a sharp edge weapon, i.e knife (Ex.P-1) leaves no doubt that there was an intention to murder on the part of the accused persons.
44. In view of the aforesaid discussion, I am of the considered opinion that the prosecution has been successful in bringing home the guilt of accused persons beyond reasonable shadow of doubt. Accordingly, all the four accused persons in the matter namely (i) Sagir Ahmad @ Kallu; (ii) Illiyas; (iii) Shakil @ Jaj; and (iv) Aashif @ Raja are hereby convicted for offences punishable under Section 452/307/34 IPC. Let they be heard on the quantum of sentence on ________________.
45. A copy of this judgment be given free of cost to all the convicts forthwith.
Announced in the Court on 18.08.2021 VINOD Digitally signed
by VINOD YADAV
YADAV
Date: 2021.08.18
(Through Webex Video Conferencing) 10:42:37 +05'30'
(Vinod Yadav)
Addl. Sessions Judge-03 (North-East):
Karkardooma District Courts: New Delhi
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