Delhi District Court
State vs 1 Jamil @ Jamir S/O Rashid on 29 July, 2013
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE (EAST), KARKARDOOMA COURTS, DELHI
S.C. No.01/11/10
Unique Case ID No.02402R0274662010
FIR No.306/2010
PS Jyoti Nagar
U/s 302/323/34 IPC
State Versus 1 Jamil @ Jamir S/o Rashid
R/o C80, Gali No.1, Kabir
Nagar, Delhi.
2 Nasir S/o Jamil @ Jamir
R/o C80, Gali No.1, Kabir
Nagar, Delhi.
3 Irshad @ Puchi S/o Mustkim
R/o H.No.56, DDA Flats,
New Seelampur.
4 Yasin S/o Jamil @ Jamir
R/o C80, Gali No.1, Kabir
Nagar, Delhi.
Date of Institution : 13.10.2010
Date of judgment reserved : 16.07.2013
Date of pronouncement : 26.07.2013
SC No.01/11/10 State vs. Jamil etc. Page 1 of 51
JUDGMENT
The present chargesheet has been filed against four accused persons, namely, Jamil @ Jamir, Nasir, Irshad @ Puchi and Yasin by the police of PS Jyoti Nagar in case FIR No.306/10, under sections 302/323/34 IPC.
2 Facts leading to filing of the present chargesheet are that on 29.06.2010, a DD No.20A Ex. PW4/C was received in the police station. A PCR call was also made to the Police Control Room regarding gun shot fireing which was recorded by PW17 Lady Ct. Nimmo vide FIR form Ex.PW17/A. On the receipt of said DD, ASI Bishambar Dayal (PW9) reached the spot i.e. C Block, Gali no. 1, near Hamja Masjid, Kabir Nagar, Delhi where he came to know that the injured had been taken to GTB Hospital by his relatives. Thereafter, ASI Bishambar Dayal (PW9) reached GTB Hospital and collected MLC Ex. PW13/A of deceased Afsar Ali on which the doctor declared the patient brought dead. He also collected MLC Ex. PW20/A of injured Sharafat Ali (PW1) on which doctor mentioned that the patient was brought with the alleged history of assault and he was declared fit for statement. Statement Ex. PW1/A of PW1 Sharafat Ali was recorded.
SC No.01/11/10 State vs. Jamil etc. Page 2 of 51 3 In his statement Ex. PW1/A, injured/complainant Sharafat Ali (PW1) stated that he alongwith his family was residing at C3/30, Kabir Nagar, Delhi and had been doing the work of jeans pant. On 29.06.10, at about 6.30 p.m. he and his younger brother Rafique were feeding pigeons on the terrace. In the meanwhile his wife, Maqsooda came there and told that some persons were beating Afsar Ali @ Yusuf near Hamja Masjid. On hearing this, complainant and his brother Rafiq went to Hamja Masjid, Gali no.1, Kabir Nagar, where they saw that accused Jamil, his two sons namely accused Nasir and Yasin as well as accused Puchi @ Irshad were beating Afsar Ali, the brother of the complainant. Both of them intervened and had been taking there brother to their house. When they reached gali no.4, near STD shop of Guddu CBlock, Kabir Nagar, Delhi, in the meanwhile, all the four accused persons came from behind. Accused Jamil exhorted his coaccused not to spare alive Afsar Ali on which accused Nasir, Yasin and Puchi caught hold of Afsar Ali and pulled him towards them. In the meanwhile, accused Nasir exhorted to shoot him and they would manage the matter, on which accused Puchi caught hold the hand of Afsar Ali and accused Yasin fired a gun shot on the chest of Afsar Ali due to which he fell down. SC No.01/11/10 State vs. Jamil etc. Page 3 of 51 Thereafter, accused Puchi @ Irshad took country made pistol from Yasin and hit on the left ribs of the complainant. Some public persons gathered at the spot and on seeing them accused persons fled away. Complainant lifted his brother and took him to GTB Hospital on the motorcycle of Bittu Cablewala. In the hospital, doctor declared Afsar Ali brought dead. Complainant also stated that all the accused persons were residing in his neighbourhood.
4 On the statement Ex.PW1/A, ASI Bishambar Dayal (PW9) prepared rukka Ex.PW9/A and got the case FIR registered. On the basis of rukka Ex.PW9/A, duty officer SI Vinay Pal registered FIR Ex.PW4/B and made his endorsement Ex.PW4/A. Further investigation of the case was assigned to Inspector B.S. Ahlawat (PW23). He inspected the spot and prepared the site plan Ex.PW23/A. Postmortem on the dead body of deceased was conducted by PW10 Dr. Meghali Kelkar vide report Ex.PW10/A. Clothes of deceased and bullet recovered from his dead body were seized vide memo Ex.PW16/A. Accused Jamil @ Jamil was arrested vide arrest memo Ex.PW16/C and his personal search was conducted vide memo Ex.PW16/D. His disclosure statement Ex.PW16/B was also recorded. Accused Nasir was arrested vide arrest memo SC No.01/11/10 State vs. Jamil etc. Page 4 of 51 Ex.PW16/F and his disclosure statement Ex.PW16/E. During interrogation, accused Nasir disclosed that weapon used in the crime was lying with accused Yasin.
5 Thereafter, accused Irshad @ Puchi was arrested from Raj Ghat vide arrest memo Ex.PW16/H and his personal search was conducted vide memo Ex. PW16/I. His disclosure statement Ex.PW16/G was also recorded. Photographs of the place of incident were taken by Ct. Shyam Lal (PW5) vide photographs Ex. PW5/P2 and their negatives are Ex.PW5/P1. Scaled site plan Ex.PW11/A of the place of incident was prepared by SI Mukesh Jain (PW11). During investigation, PW1 Sharafat Ali produced his blood stained pant Ex.P1 which was seized. During investigation, it revealed that fourth accused Yasin was lying lodged in Aligarh jail in some other case.
6 Accused Yasin was found lying lodged in Aligarh Jail and then he was arrested in the present case vide arrest memo Ex.PW16/K and his disclosure statement Ex. PW16/J was recorded. His another disclosure statement Ex. PW16/L was recorded in which he disclosed that the country made pistol used in the present case was got recovered from him in case FIR No.681/10 PS Hathras, UP. SC No.01/11/10 State vs. Jamil etc. Page 5 of 51 Order Ex.PW23/E for transfer of pistol was obtained and then the pistol was brought to Delhi. Exhibits of the case were sent to FSL. In FSL, the exhibits were examined by PW21 L.Babyto Devi vide reports Ex.PW21/A and Ex.PW21/B. Pistol as well as bullets were examined in FSL by the Ballistics Expert Dr. N.P. Waghmare (PW24) vide reports Ex.PW24/A and Ex.PW24/B. 7 After compliance of provisions of Section 207 Cr.P.C. case was committed to Court of Sessions which in turn assigned the case to this Court for disposal in accordance with law. 8 On 8.3.2011, charges under Section 302/323/34 IPC were framed against the accused persons. Accused persons pleaded not guilty to the charges framed and claimed trial. 9 To prove its case, the prosecution has examined 25 witnesses. PW1 Sharafat Ali, PW2 Mohd. Rafiq, PW3 Ashu, PW14 Smt. Maqsuda and PW15 Arvind Kumar are the public witnesses. PW4 SI Vinay Pal, PW5 Ct. Shyam Lal, PW6 Ct. Ramesh, PW7 HC Pawan, PW8 Ct. Alisabar, PW9 ASI Bishambhar Dayal, PW11 SI Mukesh Jain, PW12 Ct. Jaibir Singh, PW16 SI Rakesh Yadav, PW17 Lady Ct. Nimmo, PW18 HC Fayaz Ahmad, PW19 SI Man Pal Singh and PW23 ACP B.S. Ahlawat are the police witnesses. PW10 Dr. SC No.01/11/10 State vs. Jamil etc. Page 6 of 51 Meghali Kelkar, PW13 Dr. P.K. Phukan, PW20 Dr. Ashesh Kumar Jha, PW21 L. Babyto Devi, PW22 Dr. P.K. Phukan, PW24 Dr. N.P. Waghmare and PW25 Dr.Virendra are either doctors or FSL experts. 10 After completion of prosecution evidence, statements of accused persons recorded under Section 313 Cr.P.C. Accused persons either denied the case of prosecution or showed their ignorance. They stated that they are innocent and have been falsely implicated in the present case. They opted not to lead any evidence in their defence.
11 I have heard Ld. Addl. PP for the State, ld counsel for accused Jamil and Ld. Amicus Curiae for remaining accused persons. I have meticulously gone through their submissions and material available on record.
Prosecution case 12 The motive put forth by the prosecution to commit the murder of deceased is that the he intervened in the incident of giving beatings to PW3 Ashu. When deceased Afsar Ali asked accused Irshad @ Puchi as to why he beat Ashu, he became angry and then all the accused persons gathered at the spot; firstly gave beatings to deceased and thereafter committed his murder. SC No.01/11/10 State vs. Jamil etc. Page 7 of 51 13 It has been argued on behalf of the accused persons that the motive on the part of the accused persons to commit the murder of deceased has not been proved on record and thus the accused persons are entitled for acquittal.
14 In the present case, PW3 Ashu has stated that he was given beatings by accused Irshad @ Puchi when he was present near Hamja Masjid and when he informed the incident to deceased Afsar Ali, deceased made an enquiry from accused Irshad @ Puchi as to why he beat PW3 Ashu. PW3 Ashu also deposed that all the accused persons gathered at the spot and firstly they gave beatings to deceased and then in the presence of his brothers (PW1 & PW2), committed his murder near the STD shop of Guddu. Testimony of PW3 Ashu has duly been corroborated by other eye witnesses PW1 Sharafat Ali and PW2 Mohd. Rafiq.
15 The motive put forth by the prosecution is that the deceased asked accused Irshad as to why he had beaten PW3 Ashu and during the quarrel, accused persons committed the murder of deceased. It is settled legal position that if there is direct trustworthy evidence of witnesses as to the commission of offence, motive part loses its significance. The Hon'ble Apex Court while dealing with SC No.01/11/10 State vs. Jamil etc. Page 8 of 51 similar proposition of law in its recent pronouncement in case of Habib and Ors. s. State of Uttar Pradesh 2013 VI AD (SC) 152 has held that if the genesis of the occurrence is proved, the ocular testimony of the witnesses could not be discarded only by the reason of the absence of motive, if otherwise the evidence is worthy of reliance.
16 In the present case, PW1, PW2 and PW3 have categorically stated in their testimony that they were the eye witnesses of the incident as the accused persons in their presence committed the murder of Afsar Ali. Thus, it has been shown that there was motive with the accused persons to commit the murder of deceased Afsar Ali.
17 The place of occurrence has been proved by site plan. IO of the present case ACP B.S. Ahlawat (PW23) has deposed that on 29.06.2010, he was posted as SHO, PS Jyoti Nagar. The call of the present case was assigned to ASI Bishamber Dayal. PW23 also heard the message on DM Net and rushed to GTB Hospital. ASI Bishamber Dayal collected MLC of injured Afsar @ Yusuf who was declared brought dead. ASI Bishamber Dayal recorded statement of eye witness Sharafat and then made his endorsement for registration SC No.01/11/10 State vs. Jamil etc. Page 9 of 51 of FIR. After registration of FIR, original rukka and copy of FIR was handed over to PW23. He inspected the spot and and prepared the site plan Ex.PW23/A at the instance of complainant Sharafat (PW1). 18 PW11 SI Mukesh Jain, Draughtsman has deposed that on 16.09.2010, Inspector B.S. Ahlawat called him in the police station for inspection of spot. He reached the spot i.e. Gali No.4, C Block, near Guddu STD, Kabir Nagar, Delhi. He inspected the spot, took measurements and prepared rough notes on the pointing out of Inspector B.S. Ahlawat. On the basis of rough notes and measurements, he prepared scaled site plan Ex.PW11/A. 19 Complainant/injured/eye witness Sharafat Ali (PW1) also corroborated the testimony of PW23 ACP B.S. Ahlawat that site plan was prepared at his instance. PW1 has specifically stated that he joined the investigation of the case with police and reached the spot. He pointed out the spot to the police and the site plan was prepared at his instance.
20 From the testimony of PW23 ACP B.S. Ahlawat and the site plan Ex.PW23/A, the place of occurrence has been duly established. The testimony of PW23 has duly been corroborated from the testimony of draughtsman PW11 SI Mukesh Jain who prepared SC No.01/11/10 State vs. Jamil etc. Page 10 of 51 scaled site plan Ex.PW11/A of the place of occurrence. The correctness of preparation of site plan and the place of occurrence has also been corroborated from the testimony of injured eye witness PW1 Sharafat Ali who specifically deposed that the site plan was prepared at his instance.
21 The case of the prosecution is relied upon the testimony of three eye witnesses, namely, Sharafat Ali (PW1), Mohd. Rafiq (PW2) and Ashu (PW3). Case of the prosecution is that on the day of incident i.e. on 29.06.2010, accused persons caught hold of deceased Afsar Ali and then committed his murder. It is also case of the prosecution that incident has been witnessed by PW1 Sharafat Ali, PW2 Mohd. Rafiq and PW3 Ashu.
22 To prove its case, prosecution has examined the complainant Sharafat Ali as PW1. He deposed that he was residing at C3/30, Kabir Nagar, Delhi along with his 4 brothers, namely, Ashraf Ali, Afsar Ali, Mohd. Rafiq and Mohd. Ali and family members. On 29.06.2010 at about 6.30 p.m., PW1 and his younger brother Rafiq were feeding pigeons. Meanwhile his wife Maksuda informed that a quarrel had taken place with Afsar Ali @ Yusuf near Hamja Masjid and some persons were beating him. PW1 along with his brother SC No.01/11/10 State vs. Jamil etc. Page 11 of 51 Rafiq rushed towards Hamja Masjid, Gali No.1, Kabir Nagar and saw that accused Jamil, Yasin, Puchi and Nasir beating his brother Afshar Ali @ Yusuf. PW1 and his brother Rafiq intervened and got Afsar Ali freed from the clutches of accused persons. PW1 along with his brother Rafiq and Afsar Ali were returning to their house and when they reached near STD shop of Guddu at Gali No.4, C Block, Kabir Nagar, all the 4 accused persons chased them from behind. PW1 further deposed that accused Jamil exhorted "Ise jinda mat jane do" (not to spare him alive). Meanwhile, accused Puchi @ Irshad caught hold of Afsar Ali from his hands, dragged him backward, accused Nasir boasted out to accused Yasin "maar goli jo kuch hoga mein dekh lunga" (fire the shot and he would manage the rest). Thereafter, accused Yasin took out countrymade pistol and fired upon the chest of Afsar Ali. Meanwhile, accused Puchi @ Irshad gave blow of countrymade pistol on the left side chest of PW1. He further deposed that his brother Afsar Ali fell down after sustaining bullet injuries. One Bittu who was passing from there on his motorcycle stopped there. PW1 with the help of Rafiq took Afsar Ali to GTB Hospital on the said motorcycle where his brother was declared dead. He further deposed that all the accused persons murdered his brother SC No.01/11/10 State vs. Jamil etc. Page 12 of 51 and assaulted him when he intervened. Someone informed the police and police reached the hospital. His statement Ex.PW1/A was recorded. During investigation, he pointed out the spot and site plan was prepared at his instance. PW1 further deposed that when he took his injured brother Afsar Ali to the hospital, his cloths were stained with blood which he produced to the police and same were seized. He identified his blood stained pant as Ex.P1. He further deposed that on 30.06.2010, he along with his brother and father reached mortuary and identified the dead body of his brother Afsar Ali vide statement Ex.PW1/B. After postmortem, dead body was received by his brother.
23 During cross examination by ld defence counsel, PW1 has stated that on 29.06.2010 at about 6.25 p.m., a boy came from the colony to inform that his brother was being beaten. He voluntarily stated that the said boy informed his wife. His wife immediately informed PW1 about the incident and thereafter he went to the spot which was at a distance of about 150200 steps from his house. The distance could be covered within 23 minutes and he went there on foot. He denies that it takes about 25 minutes to reach the spot. He reached the spot at about 6.276.28 p.m. He admitted that SC No.01/11/10 State vs. Jamil etc. Page 13 of 51 when he reached the spot, he saw 4 boys who were beating his brother and apart from the accused persons, none else was beating. None from the people collected there came forward to rescue his brother. But he and his brother went to save Afsar Ali. He further stated that his brother was being beaten by all the four accused in the gali near Hamja Masjid. His brother was being beaten with kicks/fist blows and was also given slaps. He admitted that when all the four accused were beating his brother, his brother fell down but still they gave kick and fist blows to him. His brother came along with him at the spot. He made statement to the police on the same day. He categorically stated that after beating his brother, accused persons caused injuries to his brother with gun shot. He took his injured brother to the hospital on the bike of one Bittu. His brother Afsar Ali suffered gun shot injury near Guddu STD shop. The distance between Hamja Masjid and Guddu STD shop might be about 100 steps. When accused persons caused gun shot injury to Afsar Ali, PW1 was about 56 steps away from him. The gun shot injury was caused on the chest of Afsar Ali. He further stated that accused Jamil was beating his brother Afsar Ali along with other accused persons and subsequently he was shouting "Isne Hamein Gali di hei, ise jinda mat SC No.01/11/10 State vs. Jamil etc. Page 14 of 51 jane do" (he had abused us, not to spare him alive). He further stated that Yasin had fired from the countrymade pistol. No medicine was given by Hospital Authorities to his brother as he was declared brought dead. He further stated that apart from him,his brother Mohd. Rafiq was present with him when accused Jamil instigated accused Irshad @ Puchi. He knew accused Jamil prior to incident as PW1 used to visit Hamja Masjid where accused Jamil also used to come.
24 PW1 further stated that he was aware of the name of Irshad @ Puchi as he was residing in the vicinity. When he reached the spot, accused Irshad along with other accused persons was beating his deceased brother. All the accused persons chased them when he was taking back his brother home and accused Irshad @ Puchi was leading them. Accused Irshad @ Puchi caught hold hands of his brother and pulled him firstly. Thereafter, accused Nasir caught hold of his brother. Accused Irshad also gave injuries to his brother with kick and fist. He denied that accused Nasir did not instigate accused Yasin to kill his brother.
25 From the testimony of PW1 Sharafat Ali who is the complainant/brother of the deceased as well as also injured in the SC No.01/11/10 State vs. Jamil etc. Page 15 of 51 present case, it has been established that on the day of incident, accused persons were giving beatings to deceased Afsar Ali. It has also been established that when PW1 reached and saved his deceased brother from the clutches of accused, accused persons chased them upto STD shop of Guddu where they killed Afsar Ali by firing a gun shot. PW1 has specifically attributed the role of each and every accused in giving beatings to Afsar Ali and in commission of his murder. PW1 has stated that near STD shop of Guddu, firstly accused Jamil exhorted not to spare Afsar Ali alive; accused Irshad @ Puchi caught hold Afsar Ali from his hands; dragged him backward; accused Nasir exhorted accused Yasin to fire a gun shot and accordingly accused Yasin fired upon the chest of Afsar Ali. Thereafter, PW1 took his brother Afsar Ali to the hospital where he was declared brought dead. During cross examination also, PW1 attributed the role of each and every accused. He stated that he knew the accused persons being the residents of same vicinity. The identity of accused persons being the assailants who firstly gave beatings to the deceased and then committed his murder by firing a gun shot in furtherance of their common intention, has duly been established from the testimony of PW1 made during examination in chief as well SC No.01/11/10 State vs. Jamil etc. Page 16 of 51 as through his cross examination.
26 PW2 Mohd. Rafiq has also deposed that on 29.06.2010 at about 6.30 p.m., he and his brother Sharafat were giving dana to pigeons and in the meanwhile his Bhabhi Smt. Maksuda informed them that some persons had assaulted his brother Afsar ali @ Yusuf near Hamja Masjid, Kabir Nagar. He further deposed that he along with his brother Sharafat immediately rushed towards Hamja Masjid Gali No1. Kabir Nagar and saw that accused Jamil, Yasin, Puchi @ Irshad and Nasir were beating his brother Afsar Ali @ Yusuf. He and his brother Sharafat Ali intervened and got his brother freed from clutches of accused persons. He has identified all the four accused persons in the court. He further deposed that he along with his brothers Sharafat and Afsar Ali were returning to their house and when they reached near STD shop of Guddu, Gali No.4, C Block, Kabir Nagar, all the four accused person chased them from back side. Accused Jamil gave lalkara that "Ise jinda mat jane do" (not to spare him alive). Thereafter, accused Puchi @ Irshad caught hold his brother from his hand and dragged him backward from his hands forcibly. Accused Nasir boasted out to accused Yasin "Maar goli jo kuch hoga dekh lenge" (fire the shot and SC No.01/11/10 State vs. Jamil etc. Page 17 of 51 they would see the rest). Thereafter, Yasin took out countrymade pistol and fired upon the chest of his brother Afsar ali and he fell down after sustaining fire injury. Meanwhile, accused Puchi @ Irshad took out country made pistol from accused Yasin and assaulted with the same on the chest of his brother Sharafat Ali. They raised alarm, neighbours and public persons gathered there. All the accused persons ran away from there. Meanwhile one Bittu cable wala was passing from there on his motorcycle who stopped on seeing his brother in inured condition and thereafter he got sent his brother Afsar Ali to GTB Hospital with Sharafat ali on his motorcycle. He also reached GTB Hospital by auto rickshaw after half an hour. Police had made inquiries from him. His statement was recorded. 27 In his cross examination, he has denied that he had not seen the accused persons beating his brother. He has stated that his brother had sustained injuries at the hands of accused persons. He has also stated that accused Yasin had fired shot upon his brother Afsar. He has also stated that his brother had sustained internal injury on various parts of his body from the hands of accused persons. When he reached at the spot, his brother Afsar Ali was alone. He had not sustained injury during the process of intervention. He has also SC No.01/11/10 State vs. Jamil etc. Page 18 of 51 admitted that no other quarrel took place near the spot among any other person except the quarrel of the present case near Hamja Masjid. He has also stated that his brother Afsar Ali was wearing black shirt and light blue colour jeans pant. He knew accused Jamil prior to the incident as he is also residing in the gali back side of their house. He had formal meetings with the accused before the incident in a routine manner. Accused Yasin had fired shot upon his brother Afsar Ali at the distance of 78 paces. The accused persons were beating his brother Afsar Ali in front of the Hotel and near Hamja Masjid. He has further stated that he knew accused Irshad @ Puchi for last about one and half years prior to the incident. Accused Irshad gave beatings to his brother with kicks and first. He also stated that accused Irshad was leading them and he was followed by Yasin and other two accused persons from backside. In answer to a question, he stated that accused Irshad pulled his brother with his hands. He has also stated that one one shot was fired by accused Yasin upon his brother Afsar Ali. He has also stated that accused persons had committed the second incident within five minutes. 28 PW2 Mohd. Rafiq corroborated the testimony of his brother PW1 Sharafat Ali to the effect that accused persons firstly SC No.01/11/10 State vs. Jamil etc. Page 19 of 51 gave beatings to their brother Afsar Ali and then near the STD shop of Guddu, they all firstly caught hold of Afsar Ali and then accused Yasin fired a gun shot on his chest as a result of which he died. He has also attributed the role of each and every accused by saying that near the STD shop of Guddu, firstly accused Jamil exhorted not to spare Afsar Ali alive and then accused Puchi @ Irshad caught hold his brother from his hand and dragged him backward from his hands forcibly. Thereafter, accused Nasir exhorted his coaccused Yasin to fire the shot and on his exhortation, accused Yasin took out countrymade pistol and fired upon the chest of his brother Afsar Ali and he fell down after sustaining fire injury. The identity of all the accused persons has duly been established as they were identified by PW2 in the Court as the assailants. Their presence at the spot at the time of incident has also been established from the corroborated testimony of PW2.
29 PW3 Ashu, who is another eye witness of the incident has deposed that one girl Ruksar was residing in his neighbourhood and she developed friendship with him. She obtained his contact number. Lateron, he came to know that Ruksar was daughter of one Jamil who is of criminal nature. He further came to SC No.01/11/10 State vs. Jamil etc. Page 20 of 51 know that Jamil's brother Nasir and Yasin were also criminals of the area and thereafter he stopped talking with Ruksar. He used to go to Hamja Masjid where Irshad @ Pichi met him who was seen by him in the house of Ruksar also. Irshad @ Pichi stopped him when he was going to Masjid and told him not to have a talk with Ruksar in future and he also abused him. Accordingly, he stopped talking with Ruksar but he continue visiting Hamja Masjid.
30 PW3 Ashu further deposed that on 29.06.2010 at about 6.30 p.m., he was present near the gate of Hamja Masjid after offering namaj, meanwhile Irshad @ Pichi also reached there and started giving him leg and fist blows. He escaped from there and while he was returning to his house, one Afsar @ Yusuf also reached there and he, on seeing him weeping, asked as to what had happened. He told Afsar that Irshad @ Puchi had beaten him without any reason. Thereafter, Afsar @ Yusuf asked him to go and make enquiry as to why Pichi had given beatings to him. Thereafter, Afsar stopped Irshad @ Pichi near Hamja Masjid and made inquiries about the beatings. Meanwhile, accused Irshad @ Pichi made a call to Jamil, Yasin and Nasir who reached there and an altercation took place. Meanwhile Rafiq and Sharafat also reached there and intervened and SC No.01/11/10 State vs. Jamil etc. Page 21 of 51 got freed Afsar from the clutches of accused persons. He further stated that when they reached near STD of Guddu in gali No.4, accused Yasin, Nasir, Jamil, Irshad @ Pichi came running from back side and Jamil shouted that Afsar has abused them and he should not be spared on which accused Yasin, Nasir, Jamil and Irshad @ Pichi apprehended Afsar @ Yusuf and thereafter they all dragged him. Meanwhile, Nasir gave Lalkara "ise goli maro hum dekh lenge" (fire a shot at him and they would manage the rest). At this, accused Pichi caught hold of Afsar from his and, accused Yasin took out pistol and fired a shot on the chest of Afsar @ Yusuf. After the gun shot injury, Afsar @ Yusuf fell down. Thereafter, accused Irshad @ Pichi took the pistol from Yasin and hit the same on the chest of Sharafat. Public persons gathered there and all the accused persons ran away from there. One Bittu cable wala came on motorcycle and thereafter Afsar @ Yusuf was taken to GTB hospital by Bittu and Sharafat. Thereafter, Police also reached there and they started their proceedings.
31 In his cross examination, he has stated that accused Jamil and Pichi had told him not to meet with Ruksar. Accused persons had told him even not to talk Ruksar on mobile phone. He SC No.01/11/10 State vs. Jamil etc. Page 22 of 51 has also admitted that accused Pichi had assaulted him. He has also stated that he remained at the spot till Yusuf @ Afsar was taken to hospital by Bittu Cablewala. He was shocked due to fire shot upon Afsar @ Yusuf and therefore, he could not make call to the police. He had seen accused persons in the house of Ruksar one or two times. He had seen the accused persons even before the incident of this case. He came to know from accused Pichi that Jamil was father of Ruksar and had shown him. He has also stated that no other accused except accused Pichi gave him beatings. He has also stated that his friendship developed with Ruksar when she took his mobile number and called him.
32 As per testimony of PW3 Ashu, he also witnessed the incident with his own eyes. As per his testimony, he was the bone of contention of the quarrel between the deceased and accused persons on the day of incident. As per PW3, he was friendly with the daughter of accused Jamil and on the day of incident, he was given beatings by accused Puchi @ Irshad. When PW3 reported the matter to deceased Afsar Ali, Afsar Ali confronted the same with accused Irshad and then all the accused persons assembled there and gave beatings to deceased. He has also stated that accused persons chased SC No.01/11/10 State vs. Jamil etc. Page 23 of 51 Afsar Ali, PW1 Sharafat Ali and PW2 Mohd Rafiq uptil the STD shop of Guddu where they all in furtherance of their common intention caught hold of deceased and then accused Yasin fired upon the deceased. During cross examination also, this witness remained firm to his stand and the defence has failed to put any dent to his testimony.
33 PW14 Smt. Maqsuda has also stated that on 29.06.2010, one boy came running to her houe and informed that Jamil and his sons were beating her Devar, namely, Afsar @ Yusuf near Hamja Masjid. She immediately called her husband Sharafat Ali and her dever Mohd Rafiq who were feeding pigeons on the roof and she reached there and informed them that Jamil and his sons were beating Afsar. Her husband along with Mohd. Rafiq immediately rushed towards the site of Hamja Masjid. Later on, she came to know at about 7.30/8.00 p.m. that accused Jamil and his sons had fired hot upon her devar Afsar and he has been taken to hospital by her husband. Thereafter, her mother in law and other family members went to hospital and came to know that he had expired. 34 The testimony of PW14 Maksuda is also corroborative in nature to the effect that she had been informed by a SC No.01/11/10 State vs. Jamil etc. Page 24 of 51 boy of the locality that deceased Afsar was being beaten near Hamja Masjid where her husband PW1 Sharafat Ali and her dever i.e. brother in law Mohd. Rafiq (PW2) went. Later on, she came to know that deceased Afsar Ali has been shot by accused persons and he had expired.
35 The unshaken statement made by injured eye witness i.e. PW1 Sharafat Ali who is also a victim of crime and had suffered at the hands of the accused, alone is sufficient to base conviction if his solitary testimony inspires confidence of the Court. My this view is strengthened by judgments of Hon'ble Apex Court in Machhi Singh vs State of Punjab 1983 Cr. L.J. 1457 in which it has been held that evidence of the victim of the crime alone is sufficient to bring home the guilt of the accused, even if the evidence of other witnesses is excluded from the consideration. But in the present case, his testimony has duly been corroborated by other eye witnesses Mohd. Rafiq (PW2) and Ashu (PW3).
36 The medical evidence also corroborates the case of the prosecution that the deceased died to gun shot injury. The deceased was medically examined in hospital by Dr. P.K. Phukhan (PW13). PW13 has deposed that on 29.06.2010, he was working as a SC No.01/11/10 State vs. Jamil etc. Page 25 of 51 Casualty Medical Officer in GTB Hospital. On that day at about 7.15 p.m., injured Afsar Ali was brought to casualty by his brother in an unconscious state. On examination, BP/ pulse was not recordable, chest was not having breath sound; heart sound was absent; pupils were dilated and fixed and ECG was straightline. The patient was declared brought dead and MLC Ex.PW13/A was prepared. 37 The postmortem report on the dead body of deceased was conducted by PW10 Dr.Meghali Kelkar vide postmortem report Ex.PW10/A. As per her testimony and postmortem report, there was fire arm entry wound present on the left side of chest of deceased. The direction of track of the wound was downwards,backwards and medially passing through skin, subcutaneous tissues, inter costal muscles and fracturing the left third rib in the para sternal line then entering peri cardial sac. The track continued fracturing the body of T5 thoracis vertebrae and one bullet was found lodged in the vertebral columns near the spinal canal. The bullet was removed. Extra vessation of blood was seen throughout the track of the wound. Apart from fire arm injury, there were other injuries on the person of deceased also viz. abrasions on right side of face, contusions on dorsam of nose, contusions on left cheek wound and abrasions on left SC No.01/11/10 State vs. Jamil etc. Page 26 of 51 side of chest. On internal examination, the rib cage was mentioned in injury No.1. As per opinion of Doctor (PW10), cause of death of deceased was shock as a result of ante mortem injury to heart and aorta produced by a projectile of a fire arm. As per her opinion, injury No.1 i.e. fire arm injury was sufficient to cause death in ordinary course of nature.
38 The recovery of weapon of offence i.e. countrymade pistol from accused Yasin has been proved by SI Man Pal Singh (PW19), PS Sasni, Hathras, UP. He deposed that on 31.08.2010, accused Yasin was apprehended while moving suspiciously and on his search, one countrymade pistol of 315 bore and one live cartridge were recovered. A case FIR No.681/2010, under section 25 of the Arms Act was registered and accused Yasin was arrested. 39 It has been argued by Ld. counsel for the accused Yasin that the country made pistol was not recovered from the accused Yasin and that the same has been planted upon him. It is further argued that disclosure statement made by accused can not be read against him.
40 Contention raised by Ld. defence counsel that recovery effected in pursuance of disclosure statement made by SC No.01/11/10 State vs. Jamil etc. Page 27 of 51 accused is doubtful, is not compatible with the facts brought on record. Recovery of an article in pursuance of disclosure statement made by accused is admissible under Section 27 of the Evidence Act. The Hon'ble Apex Court in case titled Dhananjoy Chatterjee Alias Dhana Versus State of West Bengal 1994 (2) SCC 220 has observed that the entire statement made by the accused before the police is inadmissible in evidence being hit by Sections 25 and 26 of the Evidence Act, but that part of his statement which led to the discovery of the articles is clearly admissible under Section 27 of the Act. This view was later reaffirmed in case of Nisar Khan @ Guddu and Others Versus State of Uttaranchal, 2006 (9) SCC 386. 41 In the present case, accused Yasin made disclosure statement Ex.PW16/L that the weapon of offence i.e. country made pistol used in the murder of deceased was seized in FIR No.681/2010 u/s 25 of Arms Act, PS Hathras Gate. In pursuance of disclosure statement Ex.PW16/L made by accused Yasin, country made pistol was seized vide seizure memo Ex.PW16/M from PS Hathras Gate which was lying deposited in case FIR No.681/2010. 42 In view of statement of SI Man Pal Singh (PW19) who had arrested accused Yasin in FIR No.681/2010, PS Hathras SC No.01/11/10 State vs. Jamil etc. Page 28 of 51 Gate, accused Yasin was arrested in that case and from his possession, country made pistol was recovered. Later on, vide seizure memo Ex.PW16/M, the said country made pistol was seized in the present case. There is nothing to disbelieve the testimony of these witnesses. In view of pronouncement by Hon'ble Apex Court in case of Dhananjoy Chatterjee (supra) and Nisar Khan @ Guddu (supra) and in view of above evidence, the recovery of weapon of offence from accused Yasin has duly been established inasmuch as the same was recovered on the basis of disclosure statement and the part of his statement which led to the discovery of the weapon of offence is clearly admissible under Section 27 of the Act.
43 Report of the ballistic expert further corroborates the case of the prosecution that the weapon used in the commission of crime of the present case was the same which was recovered from accused Yasin. After the arrest of accused Yasin in the present case, the recovered pistol and cartridge was taken in possession by the IO of the present case by the order of the Court of ACJM, Hathras dated 26.10.2010 Ex.PW23/E. Same were seized vide seizure memo Ex.PW16/M. The same were sent to FSL along with bullet recovered from the body of deceased. At FSL, the exhibits were examined by SC No.01/11/10 State vs. Jamil etc. Page 29 of 51 Dr. N.P. Waghmare (PW24), Assistant Director, Ballistics vide reports Ex.PW24/A and Ex.PW24/B. 44 The report Ex.PW24/A shows that the countrymade pistol and cartridge recovered from accused Yasin were fire arm and ammunition respectively. The pistol was found in working order as a test fire was conducted through it. As per report Ex.PW24/B, bullet recovered from the body of deceased was an ammunition as defined in Arms Act and was of 8 mm/.315 caliber which was of the same caliber of the recovered countrymade pistol. It further establishes the case of the prosecution that the pistol recovered from accused Yasin was the same with which a gun shot was fired on the person of deceased.
45 Accused persons have also been charged for the offence under section 323/34 IPC. It has been alleged against them that they caused simple hurt on the person of PW1 Sharafat Ali by giving butt blow on his ribs by accused Irshad @ Puchi. 46 There is no necessity to reproduce the entire testimony of PW1 again as the same has already been discussed in earlier part of the judgment. In his testimony, PW1 Sharafat Ali has stated that after firing gun shot on his brother Afsar Ali, accused SC No.01/11/10 State vs. Jamil etc. Page 30 of 51 Puchi @ Irshad gave the blow of country made pistol on the left side of his chest. The testimony of PW1 has duly been corroborated by his brother PW2 Mohd Rafiq who has also stated that after firing on Afsar Ali, accused Puchi @ Irshad took countrymade pistol from accused Yasin and assaulted with the same on the chest of his brother Sharafat Ali (PW1). Similar is the deposition of another eye witness, namely, PW3 Ashu.
47 There is nothing to disbelieve the testimony of these witnesses as the same are natural and trustworthy. Even the accused persons during cross examination have failed to put any dent to their testimony. The role of each and every accused in the incident has duly been ascribed by the above witnesses.
48 MLC Ex.PW20/A of Sharafat Ali (PW1) also corroborates the case of prosecution that PW1 received simple hurt. As per MLC Ex.PW20/A Sharafat Ali (PW1) received tenderness on the left side of chest. As per opinion of PW20 Dr. Ashesh Kumar Jha, nature of injury sustained by Sharafat Ali was simple. 49 In view of unshaken and unrebutted testimony of injured Sharafat Ali which has duly been corroborated from the testimony of PW2 and PW3 and medical evidence as well, it has been SC No.01/11/10 State vs. Jamil etc. Page 31 of 51 established that all the accused persons in furtherance of their common intention caused simple hurt to PW1 Sharafat Ali. 50 From the statement of eye witnesses Sharafat Ali (PW1), Mohd. Rafiq (PW2) and Ashu (PW3), the prosecution has successfully established that on 29.06.2010 near the STD shop of Guddu, Gali No.4, CBlock, Kabir Nagar, Delhi, all the accused persons in furtherance of their common intention committed the murder of deceased Afsar Ali by firing a gun shot on the person of deceased Afsar Ali by accused Yasin which resulted into his death. Testimony of eye witnesses PW1, PW2 and PW3 remained unrebutted and unshaken. The defence has tried its best to doubt the veracity of their version but it fell flat. Medical evidence in the form of postmortem report of deceased establishes that his cause of death was due to firearm injury and injuries were antemortem in nature. The ocular statement of eye witnesses PW1 Sharafat Ali, PW2 Mohd. Rafiq and PW3 Ashu coupled with medical evidence and other incriminating evidence i.e., recovery of weapon i.e. country made pistol in commission of crime, use of said weapon and report of ballistic expert, it clearly goes to prove that accused persons firstly gave beatings to deceased Afsar Ali and then committed his murder. SC No.01/11/10 State vs. Jamil etc. Page 32 of 51 It has also been established that simple hurt was caused to PW1 Sharafat Ali.
Defence 51 The accused persons have taken the defence of alibi. It has been argued on behalf of the accused persons that presence of accused persons at the spot on the day of incident has not been proved. It has been argued that the testimony of the witnesses examined by the prosecution is not sufficient to hold that the accused persons were present at the spot at the time of incident. 52 From the ocular testimony of PW1 Sharafat Ali who is also the victim of crime of the present case, it has duly been established that the accused persons were present at the spot. He has specifically stated that on the day of incident, he along with his brother Mohd. Rafiq went to the spot and saw that accused persons were beating his deceased brother Afsar Ali. They intervened and saved him from the clutches of the accused persons. When they reached near the STD shop of Guddu, accused persons again came from behind; accused Irshad @ Puchi caught hold of Afsar Ali, dragged him backward and on the exhortation of accused Yasin, accused Yasin fired a gun shot on the chest of Afsar Ali which SC No.01/11/10 State vs. Jamil etc. Page 33 of 51 resulted into his death. He categorically stated that all the accused persons were present at the spot and imputed role of each and every accused in the commission of crime. Testimony of PW1 Sharafat Ali has duly been corroborated by other eye witnesses PW2 Mohd. Rafiq and PW3 Ashu. Both these witnesses have also deposed on the similar lines of PW1 Sharafat Ali. The defence cross examined these witnesses at length, but failed to put any dent to their testimony. Their testimony of quite natural and trustworthy and same inspires confidence of the court.
53 The plea of alibi flows from Section 11 of the Indian Evidence Act and is demonstrated by illustration (a). The word "alibi" is a latin word and means "elsewhere". It is a common term used by an accused that when the occurrence took place, he was so far away from the place of occurrence and it was highly improbable for him to participate in the crime. When the prosecution succeeds in proving the commission of offence by the accused, then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence.
54 In order to prove the plea of alibi, accused has to SC No.01/11/10 State vs. Jamil etc. Page 34 of 51 prove that he was elsewhere and not present at the scene of crime. In the present case, it has been argued that the accused persons were not present at the place of occurrence, but no evidence has been adduced by them to show that where they were present at the time of occurrence of incident of the present case and the have even failed to specify the place, distance, period of stay where they were at the time of incident.
55 A similar situation arose before Hon'ble Supreme Court in case titled as Dudh Nath Pandey vs State of UP reported in 1981 AIR SC 911. Facts of the said case were that accused had taken alibi that he was not present at the place of occurrence where murder had taken place rather he was on his duty at his usual place of work. In the said case, the Trial Court as well as Hon'ble High Court had not accepted the alibi set up by the accused. Hon'ble Supreme Court was also of the view that accused had failed to establish the plea of alibi. Relevant para No. 19 of the judgment is reproduced as under :
"Counsel for the appellant pressed hard upon us that the defence evidence establishes the alibi of the appellant. We think not. The evidence led by the appellant to show'' that at the relevant time, he was on duty at his usual place of work at Naini has a certain amount of plausibility but that is about all. The High SC No.01/11/10 State vs. Jamil etc. Page 35 of 51 Court and the Sessions Court have pointed out many a reason why that evidence can not be accepted as true. The appellant's colleagues at the Indian Telephone Industries made a brave bid to save his life by giving suggesting that he was at his desk at or about the time when the murder took place and further, that he was arrested from within the factory. We do not want to attribute motives to them merely because they were examined by the defence. Defence witness are entitled to equal treatment with those of the prosecution. And Court ought to overcome their traditional instinctive disbelief in defence witnesses. Quite often they tell lies but so do the prosecution witnesses. Granting that DWs 1 to 5 are right, their evidence, particularly in the light of evidence of two court witnesses, is insufficient to prove that the appellant could not have been present near the Hathi Park at about 9.00 A.M. when the murder of Pappoo was committed. The plea of alibi postulates the physical impossibility of presence of accused at the scene of offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. The evidence of the defence witnesses, accepting it at its face value is consistent with appellant's presence at the Naini Factory at 8.30 A.M. and at the scene of offence at 9.00 A.M. So short is the distance between the two points. The workers punch their cards when they SC No.01/11/10 State vs. Jamil etc. Page 36 of 51 enter the factory but when they leave the factory they do not have to punch the time of their exit. The appellant, in all probability, went to the factory at the appointed hour, left it immediately and went in search of his prey. He knew when, precisely, Pappoo would return after dropping Ranjana at the school. The appellant appears to have attempted to go back to his work but that involved the risk of the time of his re entry being punched again. That is how he was arrested at about 2.30 p.m. while he was loitering near the Panshop in front of the factory. There is no truth in the claim that he was arrested from inside the factory."
56 Accused persons have not placed any material or evidence to show that they were present elsewhere at the time of incident of the present case. The first available opportunity to prove their plea of alibi was the crossexamination of prosecution witnesses, but no suggestion was given to the eye witnesses that the accused persons were not present at the spot. The second available opportunity was the statements under Section 313 Cr.P.C., in which also the accused persons have not specified where they were present at the time of incident. The third available opportunity was the defence evidence, but the accused persons did not examine any defence witness to show that they were present elsewhere at the time SC No.01/11/10 State vs. Jamil etc. Page 37 of 51 of incident. Those were the best possible opportunity available with the accused persons to explain as to where they were at the time of incident of the present case. In the absence of such explanation and in the absence of any evidence, the persons accused have failed to prove that they had not committed the crime charged against them or that they were not at the place of occurrence at the time of incident. It appears that this plea of alibi has been taken by them for the sake of plea only as there is no basis in support of the same. Therefore, plea of alibi taken by accused persons appears to be false. 57 Accused persons have taken the defence that the public witnesses examined are interested witnessed. It has been argued on behalf of the accused persons that the public witnesses examined in the present case are either the relatives of the deceased or the persons from the same locality where the deceased was residing, so their testimony is unreliable as they were interested in the conviction of accused persons.
58 To deal with the contention with regard to interested witness, I have gone through the judgment in case of Piara Singh and others vs. State of Punjab 1977 AIR 2274 in which it has been held that the evidence of interested or inimical witnesses is to be SC No.01/11/10 State vs. Jamil etc. Page 38 of 51 scrutinized with care but can not be rejected merely on the ground of being a partisan evidence if on a perusal of evidence, the Court is satisfied that the evidence is credit worthy, there is no bar in the court relying the said evidence.
59 I have further gone through the ratio of judgment in case of Rizan & Anr. Vs State of Chattisgarh Through the Chief Secretary, Government of Chattisgarh, Raipur, Chattisgarh, (2003) 2 SCC 661 wherein it has been held that merely because the witnesses were closely related to the deceased persons, their testimonies can not be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness more so, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence.
60 On this point, I have also gone through the judgment in case of Ashok Kumar Chaudhary vs. State of Bihar, 2008 Cr. L.J. 2030 in which it has been held that term "interested" postulates that SC No.01/11/10 State vs. Jamil etc. Page 39 of 51 the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either, because he had some animus with the accused or for some other oblique motive. The only rule of caution the Court may adopt with respect to such a witness is to scrutinize his evidence with care and caution but, if on such scrutiny his evidence is found to be reliable, probable and trustworthy, conviction can be based even on the sole testimony of a witness who is related to the victim of a crime.
61 In the present case, the testimony of public witnesses PW1 Sarafat Ali,, PW2 Mohd. Rafiq, PW14 Smt. Maqsuda and PW3 Ashu is natural and credit worthy. PW1, PW2 and PW3 have deposed that they knew accused persons and the deceased. All these witnesses duly identified the accused persons in the Court as the assailants of the deceased. From the statements of PW1 Sarafat Ali,, PW2 Mohd. Rafiq and PW3 Ashu, it has been established that all the accused persons had a quarrel with the deceased. It has categorically been stated by all these witnesses that in their presence, all the accused persons gave beatings to deceased and then in furtherance of their common intention, they committed the murder of deceased. The testimony of above public witnesses is quite natural and careful SC No.01/11/10 State vs. Jamil etc. Page 40 of 51 scrutiny thereof leaves no doubt that they are credible and reliable witnesses. Mere their relationship or acquaintance with the deceased is not a factor that effects their credibility. Thus, there is no force in the contention of defence that testimony of public witnesses is liable to be discarded being interested witnesses.
62 It has also been argued on behalf of the accused persons that there are several discrepancies in the testimony of the eye witnesses and the same are so material that the same go to the root of the prosecution. It has further been argued that there are discrepancies in the statements of witnesses regarding exhortation by accused persons, carrying of weapon and chase of deceased by the accused persons from behind.
63 The perusal of testimony of PW1 Sharafat Ali shows that he categorically deposed when he along with his brother Mohd. Rafiq (PW2) reached the spot, he saw the accused persons beating their brother Afsar Ali @ Yusuf. They saved their deceased brother from the clutches of accused persons and when they were going towards their house and reached near the STD shop of Guddu, accused persons chased them from behind. Accused Jamil exhorted not to spare Afsar Ali alive; accused Irshad @ Puchi caught hold of SC No.01/11/10 State vs. Jamil etc. Page 41 of 51 his brother from his hand; dragged him backward; accused Nasir exhorted accused Yasin to shot the deceased on which accused Yasin took out country made pistol and fired on the chest of Afsar Ali. Almost similar statement has been made by other two eye witnesses PW2 Mohd. Rafiq and PW3 Ashu. There are minor variations in their testimony which, in my considered opinion, are not such material which could go to the root of the matter and discard their entire testimony.
64 I have gone through the ratio of judgment in case of Prithu @ Prithvi Chand and Another Vs. State of Himachal Pradesh, (2009) 11 SCC 588 in which it has been held that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the court to reject the evidence in its entirety. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is SC No.01/11/10 State vs. Jamil etc. Page 42 of 51 sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be atuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses. 65 In view of strength of judgment in case of Prithvi Chand (supra), I am not convinced with the arguments advanced by the ld. defence counsel that the discrepancies so alleged do not go to the root of the matter and discredit the case set up by the prosecution. The testimony of eye witnesses is quite natural and trustworthy and minor discrepancies on some points do not discard their entire testimony.
Conclusion 66 As discussed above, the prosecution has duly established that on the day of incident i.e. on 29.06.2010, accused Irshad gave beatings to PW3 Ashu who reported the matter to deceased Afsar Ali. When PW3 Ashu reported the matter to Afsar Ali, he confronted with accused Irshad @ Puchi as to why he had beaten Ashu upon which a quarrel ensured which was joined by SC No.01/11/10 State vs. Jamil etc. Page 43 of 51 remaining three accused persons also. In the said quarrel, deceased was given beatings by all the four accused persons. 67 It has further been established that PW1 Sharafat Ali and his brother PW2 Mohd Rafiq reached the spot where their deceased brother Afsar Ali was being beaten and they saved him from the clutches of accused persons. It has further been established that the deceased as well as his brothers were chased by accused persons upto the STD shop of Guddu where on the exhortation of accused Jamil and accused Naseer, accused Irshad @ Puchi caught hold of Afsar Ali and accused Yasin fired a gun shot from the countrymade pistol on the chest of Afsar Ali.
68 PW1 Sharafat Ali who himself is an injured in the present case has duly supported the case of prosecution being the eye witness of the incident. His testimony has duly been corroborated by his another brother PW2 Mohd Rafiq and one Ashu (PW3) who were also the eye witnesses of the incident. The MLC as well as postmortem report of the deceased also corroborates the case of prosecution that deceased was murdered as cause of his death was shock as a result of ante mortem injury to heart and aorta produced by a projectile of fire arm. The fire arm injury was opined to be SC No.01/11/10 State vs. Jamil etc. Page 44 of 51 sufficient to cause death in ordinary course of nature. As per postmortem report, it was a homicidal death caused by fire arm injury.
69 It has further been established that the countrymade pistol used by accused Yasin in firing upon the deceased was recovered from him and as per report of Ballistics Expert, same was found to be in working order. The bullet recovered from the body of deceased was of the same caliber of which caliber the countrymade pistol was.
70 It has further been established that all the accused persons in furtherance of their common intention firstly committed murder of deceased Afsar Ali and then caused simple hurt to PW1 Sharafat Ali as butt blow of country made pistol was given on his person.
71 The motive to commit the murder of deceased has duly been established. It has been established that deceased Afsar Ali had gone to accused Irshad @ Puchi to ask as to why he had beaten PW3 Ashu due to which accused persons became angry with him and with a view to teach him a lesson, he was firstly given beatings and then his murder was committed. The place of occurrence has duly SC No.01/11/10 State vs. Jamil etc. Page 45 of 51 been established from the testimony of IO ACP B.S. Ahlawat (PW23), draughtsman SI Mukesh Jain (PW11) and injured witness PW1 Sharafat Ali. The presence of all the accused persons at the spot at the time of occurrence has also been duly established from the testimony of eye witnesses PW1 Sharafat Ali, PW2 Mohd. Rafiq and PW3 Ashu.
72 In view of above discussion, all the accused persons, namely, Jamil @ Jamir, Nasir, Irshad @ Puchi and Yasin are hereby held guilty for the offences punishable under Sections 302/34 and 323/34 IPC. They are accordingly convicted for the said offences.
Announced in the open Court ( P.S. TEJI )
Dated: 26.07.2013 District & Sessions Judge(East)
Karkardooma Courts : Delhi
SC No.01/11/10 State vs. Jamil etc. Page 46 of 51
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS JUDGE (EAST), KARKARDOOMA COURTS, DELHI.
S.C. No.01/11/10 Unique Case ID No.02402R0274662010 FIR No.306/2010 PS Jyoti Nagar U/s 302/323/34 IPC State Versus 1 Jamil @ Jamir S/o Rashid R/o C80, Gali No.1, Kabir Nagar, Delhi. 2 Nasir S/o Jamil @ Jamir R/o C80, Gali No.1, Kabir Nagar, Delhi. 3 Irshad @ Puchi S/o Mustkim R/o H.No.56, DDA Flats, New Seelampur. 4 Yasin S/o Jamil @ Jamir R/o C80, Gali No.1, Kabir Nagar, Delhi. ORDER ON SENTENCE
Vide my judgment dated 26.07.2013, convicts Jamil @ Jamir, Nasir, Irshad @ Puchi and Yasin have been convicted for SC No.01/11/10 State vs. Jamil etc. Page 47 of 51 the commission of offences punishable under Section 302/34 and 323/34 IPC.
2 I have heard Sh. Ashok Kumar, Ld. Addl. PP for the State; Sh. Sanjeev Kumar, Ld. Counsel for convict Jamil @ Jamir and Sh. Abdul Sattar, Ld. Amicus curiae for remaining convicts on the point of sentence and have gone through their submissions. 3 The learned Addl. PP for the State has argued that convicts have been held guilty for committing the murder of an innocent man. He has further argued that the quarrel between the convicts and deceased had taken place on a petty matter in which all the convicts the murder of deceased Afsar Ali. The convicts have also been held guilty for causing hurt to complainant/injured Sharafat Ali. He has argued that the convicts are habitual offenders. The criminal record of convicts has been placed on record. He has further argued that as per criminal record of the convicts, they are involved in so many criminal cases and no lenience can be shown to them. He has argued that the convicts deserve no leniency and maximum punishment provided under the law may be awarded to them. 4 On the other hand, ld. counsel for convict Jamil @ Jamir has submitted that he is aged about 61 years having 11 children. SC No.01/11/10 State vs. Jamil etc. Page 48 of 51 The younger child of the convict is aged 8 years and he is the first time offender. On behalf of convict Nasir, ld. Amicus curiae has submitted that convict Nasir is aged 38 years. He is having three children aged 11 years, 8 years and 7 years. He is the sole bread earner of the family and entire family is dependent upon him. On behalf of convict Irshad @ Puchi, it has been submitted that he is young boy of 21 years age. He is unmarried and having old aged mother in the family to look after. On behalf of convict Yasin, it has been submitted that he is 28 years old and unmarried. On behalf of convicts, it has been submitted that keeping in view the age and familial circumstances of the convicts, a lenient view may be taken at the time of awarding punishment to them.
5 The criminal record of convict Irshad @ Puchi has been placed on record which shows that he is involved in total six criminal cases. Criminal record of convict Nasir shows that he is involved in total 20 criminal cases. Criminal record of convict Jamil @ Jamir shows that he is involved in total 27 criminal cases. So, as per criminal record of these convicts, it cannot be said that they are the first time offenders.
6 In view of facts and circumstances of the present SC No.01/11/10 State vs. Jamil etc. Page 49 of 51 case, convicts are sentenced as under :
(i)Convict Jamil @ Jamir is awarded life imprisonment and fine of Rs.10,000/ for the offence punishable under Section 302/34 IPC. In default of payment of fine, convict shall further undergo SI for six months. He is also awarded simple imprisonment for one year for the offence punishable under Section 323/34 IPC.
(ii)Convict Nasir is awarded life imprisonment and fine of Rs.10,000/ for the offence punishable under Section 302/34 IPC. In default of payment of fine, convict shall further undergo SI for six months. He is also awarded simple imprisonment for one year for the offence punishable under Section 323/34 IPC.
(iii)Convict Irshad @ Puchi is awarded life imprisonment and fine of Rs.10,000/ for the offence punishable under Section 302/34 IPC. In default of payment of fine, convict shall further undergo SI for six months. He is also awarded simple imprisonment for one year for the offence punishable under Section 323/34 IPC.
(iv)Convict Yasin is awarded life imprisonment and fine of Rs.10,000/ for the offence punishable under Section 302/34 IPC. In default of payment of fine, convict shall further undergo SI for six months. He is also awarded simple imprisonment for one year for the offence punishable under Section 323/34 IPC.
7 All the sentences awarded to the convicts shall run SC No.01/11/10 State vs. Jamil etc. Page 50 of 51 concurrently. The convicts shall be entitled for the benefit of Section 428 of Cr.P.C. Copy of the judgment and order on sentence be given free of cost to the convicts.
File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 29.07.2013 District & Sessions Judge(East)
Karkardooma Courts : Delhi
SC No.01/11/10 State vs. Jamil etc. Page 51 of 51