Delhi District Court
State vs . Naim Khan & Ors. Sc No. 53 Of 2012 1/29 on 13 September, 2012
ID No. 02403R0002762002
IN THE COURT OF SH. VINAY KUMAR KHANNA
ADDITIONAL SESSIONS JUDGE04
SOUTH EAST: SAKET COURTS: DELHI
Sessions Case No. 53/2012
ID No. 02403R0002762002
FIR No. 175/2001
PS : New Friends Colony
U/s. 302/307/34 IPC
State
Versus
Naim Khan,
S/o Sh. Zamil Khan,
R/o Village Gashing Pur,
Post Pardhana Pur, PS Jasratpur,
Aliganj, Etah, UP. ..........Accused No. 1
Shamshul Khan
S/o Sh. Zamil Khan,
R/o Village Gashing Pur,
Post Pardhana Pur, PS Jasrathpur,
Aliganj, Etah, UP. ..........Accused No. 2
Sukhbir
S/o Sh. Lal Mann,
R/o Village Sarseth,
Post Amapur, District Etah, UP. ..........Accused No. 3
Instituted on : 08th April, 2002
Argued on : 06th September, 2012
Decided on : 13th September, 2012
JUDGMENT
Case of the prosecution In brief, case of prosecution is that on 27.03.2011, on receipt of DD No. 5A, IO Inspector Gurmeet Singh alongwith Constable Udaiveer and Constable Ram Bhaj reached at Ashram Chowk Red Light, where they found blood and broken glasses lying on the road. It was revealed that injured had been shifted to AIIMS Hospital. Leaving Constable Digvijay Singh at the spot, IO rushed to AIIMS hospital, where SubInspector Sanjay Kumar met him alongwith MLC No. 25634 of Sayeed State Vs. Naim Khan & Ors. SC No. 53 of 2012 1/29 ID No. 02403R0002762002 Sohail Ahmed, MLC No. 25637 of Dayal Lal, MLC No. 25635 of Dulare Khan and MLC No. 25636 of Govind Prasad. Sayeed Sohail Ahmed was declared 'brought dead' by the doctor. Rest of the injured persons were declared 'fit for statement'. IO recorded statement of injured Dulare Khan, who in his statement (Ex.PW2/A) stated that on 26.03.2001 at about 03.00 am, he alongwith Sayeed Sohail Ahmed (deceased) and Zahid had come from Aligarh in their gypsy vehicle No. UP81H8526 to house No. G56, Saheen Bagh, Abul Fazal Enclave at the residence of Sayeed Sohail Ahmed (deceased) in order to appear in a court at Tis Hazari in case FIR No. 192/98, U/s 302/364/365/34 IPC, Police Station Sabji Mandi pertaining to the murder of Kayum. He stated that as no witness could be examined in that case on 26.03.2001, the case was adjourned to 27.03.2001.
2. On 27.03.2001, complainant Dulare Khan alongwith Sayeed Sohail Ahmed (deceased) and Zahid Chaudhary started from Abul Fazal Enclave, at about 08.30 am for going to Tis Hazari. Sayeed Sohail Ahmed (deceased) was sitting on the front seat alongwith Zahid, who was driving gypsy and the complainant Dulare Khan was sitting on the rear seat, behind the deceased Sayeed Sohail Ahmed. At about 08.45 am, they reached at Ashram Chowk Red Light. They stopped the car due to red light. In the meantime, four boys aged about 2830 years came near their gypsy. Out of them, three boys pointed out and fired a pistol towards Sayeed Sohail Ahmed (deceased). Fourth boy came towards the driver seat and he also fired a shot. Zahid, after hearing the noise of fire ran away. Sayeed Sohail Ahmed (deceased) sustained bullet injuries and blood started oozing out from his body. Complainant ran away from the gypsy by breaking the glass of the driver side window and shouted "maar diya maar diya". A huge crowd gathered there and assailants succeeded in fleeing from the spot. Description of the assailants was given by the complainant. One was stated to bald from the front portion of his head and having flat face, whitish colour height of about 5'7". Other boy was stated to be of thin body, whitish colour and light weight. Two public persons also sustained injuries in the firing. Their names were revealed as Govind Kumar Prasad and Dayal Lal. On the basis of the statement of complainant, FIR No.175/2001 was got registered at Police Station New Friends Colony. Postmortem on the body of State Vs. Naim Khan & Ors. SC No. 53 of 2012 2/29 ID No. 02403R0002762002 deceased was got conducted. Statement of other injured and eye witnesses were recorded by the IO in the hospital. On completion of investigation, charge sheet was filed in the court of Learned Metropolitan Magistrate on 06.08.2001. After compliance of Section 207 Cr.P.C, Learned Metropolitan Magistrate committed the case to the Court of Sessions on 02.04.2002.
Charges
3. Charges U/s 302 r/w 34 IPC was framed by the Learned Predecessor of this Court on 24.09.2002 against Naim Khan, on 02.09.2005 against accused Sukhbir and on 15.03.2008 against accused Shamshul. Accused persons pleaded not guilty and claimed trial.
4. The points which emerges for determination in this case are :
(i) Whether on 27.03.2011 at about 08:45 am at Mathura Road Ashram Chowk, Delhi accused persons namely Naim Khan, Shamshul Khan and Sukbhir in furtherance of their common intention committed murder of Sayed Sohail Ahmed @ Chela ?
(ii) Whether at the aforesaid time and place, accused persons in furtherance of their common intention attempted to kill Dulare Khan and Dayal Lal?
5. It is pertinent to note at the out set, that since three accused persons, who are facing trial in this case were not charge sheeted collectively. Initially, charge sheet was filed against accused Naim Khan and charge against him was framed on 24.09.2002. Thereafter, supplementary charge sheet was filed against accused Sukhbir Singh. Before supplementary charge sheet was filed against accused Sukhbir Singh, certain prosecution witnesses were already examined and thereafter, charge against accused Sukhbir Singh was framed on 02.09.2005. Again some prosecution witnesses were examined, but before all the prosecution witnesses could be examined, third supplementary charge sheet was filed against accused Shamshul and therefore, witness number given to the same witness is more than one and different.
State Vs. Naim Khan & Ors. SC No. 53 of 2012 3/29ID No. 02403R0002762002 Prosecution witnesses
6. Gist of the testimony adduced by the prosecution witnesses is as under :
7. Constable Krishan Kumar (PW1), Duty Constable posted at AIIMS Hospital. He handed over the articles and clothes found on the dead body, which were seized by the IO vide memo Ex.PW1/A and Ex.PW1/B.
8. Sh. Dulare Khan (PW2), the complainant. He placed on record his statement recorded by the police Ex.PW2/A. He could not identify any of the assailants. He was cross examined by Learned Addl. PP for the State. He was confronted with portion of the statement (Ex.PW2/A). This witness was again examined on 02.05.2006 as PW16.
9. Inspector Amrit Kumar, Addl. SHO (PW3) He joined the investigation with Inspector Gurmeet Singh. Autopsy Surgeon handed over two sealed parcels to him, which were seized by the IO vide seizure memo Ex.PW3/A. On 21.07.2001, he got prepared scaled site plan through SubInspector Madan Lal. This witness was again examined on 01.10.2008 as PW22 and on 17.11.2008 as PW7.
10. SubInspector Mandal Pal (PW4), Draftsman. He prepared scaled site plan (Ex.PW4/A) on the pointing out of Inspector Gurmeet Singh. This witness was again examined on 21.11.2005 as PW2 and thereafter, again on 17.11.2008 as PW6.
11. W/SubInspector Tripti (PW5), Duty Officer, recorded FIR No. 175/2001 (Ex.PW15/A). She deposed that the special report of the case was sent to the area Magistrate and the Senior Officials. She also recorded DD No. 5A (Ex.PW5/B), DD No. 8A (Ex.PW5/C) and DD No. 9A (Ex.PW5/D). This witness was again examined on 04.12.2008 as PW24.
12. Mohd. Arif (PW6). He was working at Mechanic Shop at Ashram Chowk. On 27.03.2001 at 08:45 am, he heard a firing shot and he saw people running at the chowk. He could not identify any of the accused. He was cross examined by Learned Addl. PP for the State. He denied all the suggestion put to him in the cross examination by Learned Addl.PP for the State. He was again State Vs. Naim Khan & Ors. SC No. 53 of 2012 4/29 ID No. 02403R0002762002 examined on 10.11.2008 as PW3.
13. Head Constable Hari Charan (PW7). He was posted in PCR. He reached at the spot. He deposed that at 08:50 am, on receipt of a call to reach at Ashram Chowk, where bullets were fired, he reached there and found Gypsy bearing No.UP81H8526 and the driver of the Gypsy told him that two persons were injured. In the meantime, two other injured persons namely Govind and Deen Dayal came near the Gypsy and he shifted them to AIIMS, Hospital.
14. Constable Udaybir (PW8). He joined the investigation with the IO. He reached at the place of occurrence on 27.03.2001. He deposed that at the spot some blood and broken glass pieces were lying and the injured persons had already been shifted to the Hospital. IO left Constable Dig Vijay Singh to guard the spot. He accompanied IO to AIIMS Hospital, where SubInspector Sanjay Kumar met them and handed over MLCs of the injured person. IO recorded statement of complainant Dulare Khan and handed over rukka to him for registration of the case. He went to Police Station and handed over the FIR and came back to the Hospital with copy of FIR and rukka.
15. Mohd. Nizam (PW9), he is an alleged eyewitness. Deceased Sohail @ Chela was maternal uncle of his wife. He was again examined on 11.11.2008 as PW5 and thereafter, examined on 01.04.2009.
16. Sh. Wahid. Ali (PW10), he identified the dead body of Sohail Ahmed. His statement to this effect is Ex.PW10/A. He is witness to the inquest proceedings Ex.PW10/B.
17. Sh. Govind Kumar Parsad (PW11), a passenger of the bus. He deposed that on 27.03.2011, he was going to his office from Meethapur, Badarpur, when bus in which was travelling halted at Ashram Chowk due to red light at Ashram Chowk, he heard noise of firing. All the persons in the bus started hiding inside the bus. He was busy in reading the newspaper. He received injury near his ear. He deposed that one other person, who was present inside the bus also sustained injury. He was taken to the AIIMS Hospital by PCR Van. This witness was again examined on 10.11.2008 as PW4.
18. Sh. Zahid Chaudhary (PW12). He is the alleged eyewitness, who State Vs. Naim Khan & Ors. SC No. 53 of 2012 5/29 ID No. 02403R0002762002 was sitting alongwith Sohail @ Chela and driving the vehicle. He was also cross examined by Learned Addl.PP for the State. He failed to identify the accused persons as the assailants.
19. Sh. Syed Mohd. Fayyaz (PW13). Elder brother of Sayed Sohail Ahmed @ Chaila khan (deceased). He was also an eyewitness as per case of prosecution. He is stated to be driving the scooter, which was following the gypsy in which Sayed Sohail Ahmed @ Chaila khan(deceased), Jahid and Dulare Khan was sitting. He was again examined on 04.11.2008 and on 25.02.2009 as PW1.
20. Constable Yogender Singh (PW14). Deposed that on 27.03.2001, on the direction of SubInspector Amrit Kumar, he took seven photographs of the place of occurrence, Photographs are Ex.PW14/P8 to Ex.PW14/P14 and negatives are Ex.PW14/P1 to Ex.PW14/P7.
21. Sh. Yakub Illahi (PW15). He deposed that in May, 2001, police came with a boy, whom he could not identify due to old age and weak memory. This witness was 75 years of age, when he was appeared in the witness box. He deposed that police asked him, whether he could identify that persons and he told police that he could not identify that person. He deposed that police prepared pointing out memo (Ex.PW15/A) at his instance. In cross examination, this witness admitted that if one comes out from street no. 44, where his residence is situated, there is Ashoka Park and boundary wall of the same is about 10 feet. He admitted that there is no entrance gate of Ashoka Park infront of gali no. 44 and many people of the surrounding colonies visit the park in the morning time and many vehicles are parked outside the park. People come in the morning at about 05:00 am and remain there upto 09:00 pm and many gardners work in the Ashoka Park. He deposed that one round of the park was about 1 ½ km.
22. Doctor Sunil Kumar Sharma (PW17), Specialist Forensic Medicine, Safdarjung Hospital. He conducted postmortem on the dead body of the deceased Sohail Ahmed aged about 40 years. He placed on record postmortem report (Ex.PW7/A) prepared by him. Autopsy Surgeon found following ante mortem injuries on the body of the deceased :
(i) fire arm entry wound over the anterior precordial region in 5th intercostal State Vs. Naim Khan & Ors. SC No. 53 of 2012 6/29 ID No. 02403R0002762002 space 5 cm left to midline and 7 cm from left nipple size 1.5 cm X 1 cm track was going upwards and backwards with exit wound on the left side of the back supra scapular region size 2.5 cm X 1.5 cm. 20 cm left to the midline and 12 cm above injury No. 2 mentioned below.
(ii) Fire arm entry wound over the left back infra scapular region 15 cm left to midline 117 cm above left hell size 1.5 cm X 1 cm tatoo present around the would at a radius of 6 cm. Track going downwards and backwards fracturing left 10th rib piercing left dome of diaphragm, lacerating upper pole of the left kidney from where bullet was recovered.
(iii) fire arm entry wound over the medial surface of the right thigh 55 cm above the medial mealloleus measuring 1.5 X 1 cm. Track was going downwards laterally with exit wound over the left lateral aspect of right leg below knee 42 cm above right lateral meallolcus size of exit wound 1.8 cm X 1.2 cm.
23. PW17 opined that the cause of death was hemorrhagic shock following fire arm injuries and injury no. 2 was sufficient to cause death in the ordinary course of nature. Time since death was 28 hours.
24. Doctor Ram Karan Chaudhary (PW18), CMO, Casualty AIIMS Hospital. He identified signature of Doctor Tamim Saif Ahmad on the MLC No. 25635 (Ex.PW18/A) pertaining to the injured Dulare khan. He deposed that examination of injured Dulare Khan, showed an incised wound over base of first metacarpal left and abrasion over left wrist. He identified signature of Doctor Tamim Saif Ahmad on the MLC No. 25634 pertaining to Syed Sohail Ahmad (deceased), which is Ex.PW18/B. On examination of Syed Sohail Ahmad (deceased), there were six wound i.e. wound over left precordial region 1.5 cm, wound over shoulder region back 1.5 cm, wound over back 1.5 cm, wound over left buttock 1 cm, wound over right thigh medial aspect 1.5 cm and over lateral aspect of knee.
25. Sh. Gulshan Kumar (PW19), the then Metropolitan Magistrate, conducted TIP proceedings as regards accused Naim Khan. He deposed that accused Naim Khan was produced before him on 10.05.2011 in muffled face and the TIP was fixed for 14.05.2011 at Central Jail, Tihar. He deposed that accused State Vs. Naim Khan & Ors. SC No. 53 of 2012 7/29 ID No. 02403R0002762002 Naim Khan refused to join the TIP proceedings. Statement of accused Naim Khan is Ex.PW19/A and certificate is Ex.PW19/B.
26. Head Constable Garib Dass (PW20), deposed that on 27.03.2001, Inspector Gurmeet Singh, SHO, Police Station New Friends Colony deposited one vehicle UP81H8526 and seven pullandas duly sealed with the seal of 'GSP' in the Malkhana. On 10.05.2001, Inspector Gurmeet Singh deposited one pullanda of katta sealed with the seal of 'GSP'. On 13.04.2001, Maruti Gypsy was released to Razia Khan W/o Suhail Ahmad (deceased) on superdari. He placed on record relevant abstract of Register No. 19 (Ex.PW20/A). This witness was also examined as PW20 was again examined as PW29.
27. SubInspector Sunil Bhardwaj (PW21). He joined investigation with SHO and HC Avdesh Kumar. He is a witness to the arrest memo of accused Haim Khan (Ex.PW20/A). He is witness to the disclosure statement (Ex.PW21/B), sketch of the katta (Ex.PW21/C), seizure memo of katta (Ex.PW21/D) and pointing out memos (Ex.PW15/A) of House No.1, Gali No.44, Zakir Nagar house of Yakub Illahi and (Ex.PW21/E) of place of occurrence at Ashram Chowk. He placed on record weapon (Ex.PW21/P1).
28. Head Constable Avdesh Kumar (PW23). He joined investigation with IO. He is a witness to the arrest of memo (Ex.PW21/A) of accused Naim, disclosure statement (Ex.PW21/B) of accused Naim Khan, personal search memo Ex.PW23/A, pointing out memo Ex.PW21/E, sketch of the katta Ex.PW21/C, seizure memo of the katta Ex.PW21/D and pointing out memo Ex.PW15/A. He identified country made pistol Ex.P1.
29. Doctor Hamid Uddin Mansury (PW25), he identified signature of Doctor Guru Prashad on the MLC(Ex.PW25/A). of injured Govind Kumar, who was a passenger in the bus. Doctor opined that nature of injuries as 'simple' caused by blunt object.
30. Head Constable Mohd. Hanif (PW26). He is witness to the disclosure statement (Ex.PW26/A) as regards accused Sukhbir.
31. Constable Subodh Kumar (PW27). He is witness to the arrest of accused Sukhbir vide arrest memo (Ex.PW27/A) and his disclosure statement is State Vs. Naim Khan & Ors. SC No. 53 of 2012 8/29 ID No. 02403R0002762002 (Ex.PW27/B). He deposed that accused pointed out the place of occurrence i.e. Ashram Chowk, Mathura Road, red light vide memo Ex.PW27/C.
32. Head Constable Sukhbinder Singh (PW28), deposed that he received secret information that accused Shamshul Khan, who was declared proclaimed offender has been arrested in the case FIR No. 411/2007, Police Station Civil Line, Aligarh. He went there and moved an application for issuance of production warrant against accused Shamshul Khan and thereafter, accused was produced in the Court of Learned Addl. Sessions Judge.
33. Sh. Dayal Lal (PW30), he was passenger, who was travelling in the bus. He deposed that at about 08:45 am, he was going to his office from Meethapur. He was sitting in the mini chartered bus. The bus was stationary at Ashram Chowk red light. Some object struck him on his right side of neck portion. He deposed that his friend Govind, who was sitting besides him also got injury and blood was coming out from his ear. PW30 deposed that police gypsy took them to the AIIMS and there was no other injured except him and Govind. He was cross examined by Learned Add. PP for the State.
34. SubInspector Devender Kumar (PW31). He is a witness to the arrest memo (Ex.PW27/A) of accused Sukhbir, disclosure statement (Ex.PW27/B) and pointing out memo (Ex.PW27/C). He moved an application for conducting TIP is Ex.PW31/A, supplementary disclosure statement of accused (Ex.PW26/A(. He deposed that the TIP proceedings were conducted by Ms. Illa Rawat, Metropolitan Magistrate, which is Ex.PW31/B and original application for TIP is Ex.PW13/C. He filed supplementary charge sheet as regards accused Sukhbir.
35. IO/Inspector Gurmeet Singh (PW32). He investigated the case and prepared several documents during the course of investigation. He made endorsement (Ex.PW32/A) on the statement of Dulare Khan. He recorded statement of witnesses and prepared site plan Ex.PW32/B at the instance of Dulare Khan. He lifted exhibits i.e. broken glasses, earth control, blood stained concrete and blood samples from the spot vide seizure memo Ex.PW2/C, Ex.PW2/F, Ex.PW2/G, and Ex.PW2/D respectively. He seized Gypsy bearing No. UP81H8526 vide memo Ex.PW2/B. He also seized blood stained seat covers of the Gypsy vide State Vs. Naim Khan & Ors. SC No. 53 of 2012 9/29 ID No. 02403R0002762002 memo Ex.PW2/E. PW32 also took blood samples from the gypsy, he was lifted the same with the help of cotton and kept in plastic container and sealed with the seal of GSP and seized vide seizure memo Ex.PW2/D. He recorded statement of the relatives, who identified the dead body vide memo Ex.PW10/A and Ex.PW13/A. He submit inquest papers including application for conducting postmortem vide memo Ex.PW32/C, brief facts Ex.PW32/D, death report Ex.PW10/B, MLC of deceased Sohail, DD No. 5A Ex.PW5/B. He arrested accused Naim Khan and prepared his arrest memo Ex.PW21/A and conducted personal search Ex.PW21/B/He deposed that accused Naim Khan had also pointed out the place of occurrence vide memo Ex.PW21/C. He obtained the copy of the TIP proceedings of accused Naim Khan vide mark PW32/Y. PW32 deposed that on 16.05.2011, he obtained the police remand of accused Naim Khan vide his application Ex.PW32/D. He deposed that on 05.03.2002, biological report and ballistic reports in respect of the exhibits were received, vide his application Ex.PW32/F. Biological report is Ex.PW32/G and copy of ballistic report is mark PW32/Y1. He identified three small cut pieces Ex.PW32/H1 to Ex.PW32/H3, cut from the seat cover of Gypsy No.UP18H8526. He identified Maruti Gypsy No. UP81H8526 (Ex.PW32/H4) brought by superdar Smt. Razia Khan.
Statement of accused persons
36. On conclusion of prosecution evidence, statement of accused persons were recorded u/s 313 Cr.P.C. Accused persons pleaded innocence and false implication.
37. Accused Naim Khan stated that he was arresed on 07.05.2001 from Police Station Jasratpur, Aliganj, Etah, UP. He stated that Pappu s/o Sh. Nazar Khan and Rais Khan S/o Sh. Nabi Hassan Khan were present at the time of his arrest. He stated that they firstly took him to Udai Guest House, Etah and from there the police party picked up their luggage and even at the Udai Guest House, Sh. Suleman Khan s/o Sh. Munshi Khan met them. He stated that from Udai Guest House, police party brought him to Delhi, late in the evening/night of 07.05.2001. Police wrongly shown him as arrested from Delhi. He had neither made any disclosure statement nor any pistol was recovered at his instance. He was already in State Vs. Naim Khan & Ors. SC No. 53 of 2012 10/29 ID No. 02403R0002762002 the custody of the police since 07.05.2001. He stated that his signatures were obtained on many papers by force and coercion by using third degree methods. Naim Khan stated that he was shown to PWFayyaz and PWNizam in the Police Station and later on, he came to know that some other persons namely Zahid Choudhary, Fayyaz Khan were to identify him. They were not know to him. Therefore, he made an application for holding a TIP. Initially, he was not told the names and details of the witnesses, who were to identify him in the TIP, therefore, under the given impression that Fayyaz and Nizam were to identify him, he refused to join the TIP in the beginning. He stated that on the date of incident, he was not at Delhi and he was present at his Village Gashinpur and were looking after his fields. He had later came to know that Dulare Khan and Zahid Choudhary were detained by the police for many days as suspects. Accused Naim Khan stated that the investigation was tainted and police had falsely introduced and planted many persons as witnesses in this case and the story has been cooked up at the instance of the police and family members of Sayed Sohail Ahmed @ Chaila Khan (deceased). He stated that he lodged an FIR No. 192/98, Police Station Sabzi Mandi, Delhi against Nafis and Javed. Naifs was a member of gang of Syed Sohail Ahmed @ Chailla, which was a case of murder of his real brother Qayyum Khan, who was practicing advocate in Tis Hazari Court at Delhi. Nafis, Javed, Doctor Hasibul Haq, Rakesh and Syed Sohail Ahmed pressurized him to turn hostile in that case and were inimical towards them so they had falsely implicated them.
38. Accused Shamshul stated that he was not present in delhi, he was at his village Gashinpur. He stated that statement of Dulare Khan was not recorded and it was manipulated later on. He stated that police introduced and planted many persons as witnesses in this case. Accused Sukhbir in his statement stated that his signatures were taken on some papers forcibly and coercively by police. TIP was refused by him as he was already shown to the witnesses and also the witnesses were known to him. He stated that witnesses were planted by the Police. He stated that he is innocent and falsely implicated by the police. Accused persons produced Sh. Rais Khan as DW1 and Sh. Suleman Khan as DW2 in their defence.
State Vs. Naim Khan & Ors. SC No. 53 of 2012 11/29
ID No. 02403R0002762002
Defence Witnesses
39. Sh. Rais Khan (DW1). He deposed that on 07.05.2001, he was present at the market at Quila Road, Aliganj, District Etah. He deposed that at that time, accused Naim Khan was also present there and he was getting his thresher serviced/repaired. It was between 09:00/10:00 am, they exchanged greetings with each other, while they were talking each other, a TATA Sumo vehicle came there and stopped in the market. He deposed that six/seven police officials including Station Officer of Police Station Jasrath Pur, District Etah and one Constable from the same Police Station alighted from the vehicle and one of occupant of the vehicle was from their village. DW1 further deposed that after getting down from the vehicle, the said police reason from Station Officer, Police Station Jasrath Pur, why accused Naim was being apprehended. Station Officer, Police Station Jasrath Pur told him that accused Naim was being taken to Police Station Jasrath Pur as some inquiry was to be made from him. Thereafter, he straightaway went to his village and informed the said facts to the family members of accused Naim.
40. Sh. Suleman Khan (DW2). He deposed that on 07.05.2001 in between 12 noon to 01:00 pm, he was present at Mohalla Sindhi Nagar near Udai Guest House and was getting his truck repaired by a mechanic. DW2 deposed that while he was present there, he saw a Tata Sumo vehicle came there and one Inspector of Delhi Police came down from the vehicle and started taking accused Naim towards Guest House. He raised alarm and asked the said Inspector as to why accused Naim was taken by him and he replied that accused Naim was being taken for an inquiry in a case of murder of his elder brother Qayyum, Advocate. Inspector further told him that he would be coming back after 4/5 days. Thereafter, he went to the house of accused Naim and informed the said facts to his father. DW2 further deposed that when accused Naim did not come back after expiry of said period, he alongwith Sh. Jamil, father of accused Naim came to Delhi and met Sh. Alamgir, Advocate and requested him to fine out the whereabouts of accused Naim. He further deposed that on an inquiry, it was found that accused Naim had been falsely implicated in a case of murder of one Sohail @@ Chailla. DW2 was cross examined. In cross examination, he deposed that only one Inspector from Delhi State Vs. Naim Khan & Ors. SC No. 53 of 2012 12/29 ID No. 02403R0002762002 Police was in uniform. They did not make any complaint regarding illegal arrest of accused Naim from the said place. He denied that being acquaintance of accused Naim, he had concocted a story regarding his arrest at his behest and deposing falsely in this regard and this was the reason, they did not make any complaint to any competent authority in respect of the said alleged incident. Submissions advanced
41. I have heard submissions advanced by Sh. Wasi Ur Rehman, Learned Addl. PP for the State and Sh. L. K. Upadhyay and Sh. S. P. Kaushal, Learned Counsels for the accused persons and have perused material on record.
42. There are number of irreconcilable versions and contradictions in material aspects of the case, which throw doubt on the veracity of the evidence tendered by PW9 and PW13. Record shows that deceased Sayed Sohail Ahmed @ Chaila Khan himself was involved in criminal cases, therefore, a number of persons in and around the village were his enemies PW9 is the real brother of deceased and PW13 is Bhanji Damad of the deceased as such they were related witness and required a close scrutiny Prosecution case is mainly based on the testimony of the four witnesses namely Dulare Khan, Jahid Chaudhary, Mohd. Nisam and Mohd. Fiyaz and the circumstance of recovery of country made pistol (katta).
43. Learned Addl. PP for the state submits that Dulare Khan (the complainant as well as the injured) and Zahid Chaudhary have narrated the incident in detail. He submitted that although both these witnesses have failed to identify the assailants, but these witnesses were traveling with the deceased Sayeed Sohail Ahmed. Both these witnesses were cross examined by Learned Addl. PP for the state on the point of identification of accused persons. He submits that other two passengers, who were present in the nearby bus namely Govind Kumar Prasad and Dayal Lal have corroborated the version narrated by Dulare Khan and Zahid Chaudhary regarding occurrence of the incident. He argued that PWFayyaz, brother of the deceased and Mohd. Nizam, soninlaw of the brother of the deceased have fully supported the case of prosecution. Learned Addl. PP submits that, as per the version of Mohd. Nizam and Fayyaz, they were following the gypsy in which deceased was traveling, on a twowheeler scooter. Both these witnesses State Vs. Naim Khan & Ors. SC No. 53 of 2012 13/29 ID No. 02403R0002762002 have not only narrated the entire incident, but also identified the accused persons in the Court. It is stated that they have categorically deposed that when the gypsy stopped at red light Ashram Chowk, four boys namely Naim Khan, Shamshul, Sukhbir and Pushkar, whom they already knew, started firing with the kattas in their hands, at Sayeed Sohail Ahmed (deceased) and all of them ran towards Lajpat Nagar in a TSR and a motorcycle. He argued that accused Naim Khan was arrested on 09.05.2001 and a katta was recovered at his instance on 10.05.2001 and accused Sukhbir was arrested on 22.03.2005.
44. Learned Addl. PP for state submitted that the incident of firing is proved by all the witnesses and two witnesses namely Mohd. Nizam and Fayyaz have identified accused. It is submitted that there is no reason to disbelieve their testimony, even if, they are relatives of the deceased. Simply because these witnesses are related to the deceased, will not make them uncreditworthy. He argued that prosecution has successfully proved the case against the accused persons beyond reasonable doubt. Hence, accused persons are liable to be convicted for the offences charged against them.
45. On the other hand, Sh. L.K. Upadhyay, Learned Defence Counsel submits that the presence of PWMohd. Nizam and PWFayyaz at the spot is highly doubtful. Their deposition is contradictory and their conduct is unnatural. Learned Counsel urged that after seeing their own brother lying in an injured condition at the spot, no attempt was made by these witnesses to take him to the Hospital, who was alive at that time as per the testimony of these witnesses. Their conduct of going to their residence at Saheen Bagh, Abul Fazal Enclave just to inform family members instead of taking him to Hospital is unnatural. It is admitted by them, that there was a landline phone in the house and mobile phone was available with the witnesses and the wife of the deceased namely Razia. The information about the incident could have been given easily on the telephone itself. He submits that arrest of accused Naim Khan at the alleged time, place and recovery from his possession is unbelievable. Recovery witnesses have given a completely contradictory version. Version of IO regarding the disclosure statements, pointing out memo and recovery is contradictory. There are contradictions regarding the State Vs. Naim Khan & Ors. SC No. 53 of 2012 14/29 ID No. 02403R0002762002 place and time of effecting recovery. No public witness was joined at the time of arrest, disclosure and recovery. There are contradictions in the place of the recovery as shown in the seizure memo and the oral testimony. He argued that as such, no reliance can be placed on the alleged recovery. He argued that as far as accused Shamshul is concerned, only evidence against him is regarding the adverse inference for refusing to participate in the TIP. Accused Shamshul was arrested in some other case and was confined at jail at Aligarh. On the basis of production warrant of this court, he was produced from Aligarh. On 22.10.2007, when accused Shamshul was produced from Aligarh. He was interrogated with the permission of the Court and on the said date, after his arrest, an application for TIP of accused was moved and therefore, he refused to participate in TIP. Discussion
46. Before embarking on the discussion of the evidence, the crux of relevant legal position may be noted. Cardinal principle which is always kept in view in our system of administration of justice in a criminal case is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relives itself of that burden, the Courts cannot record a finding of the guilty of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is, not positively proved to be true, the accused would be entitled to acquittal.
47. In Sarad Birdi Chand v. State of Mhashtra 1984 SCC (Cri.) 486, it was observed that a moral conviction, however strong or genuine, cannot amount to a legal conviction supportable in law. The well established rule of criminal justice is that "fouler the crime higher the proof", where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. This principle has special relevance where the guilt of the accused is sought to be established by circumstantial evidence.
State Vs. Naim Khan & Ors. SC No. 53 of 2012 15/29
ID No. 02403R0002762002
48. In Ashish Batham Vs. State of MP, 2002 SCC (Cri.) 1718, Hon'ble Supreme Court observed that the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between "may be true" and "must be true" and this basic and golden rule only helps to maintain the vital distinction between "conjectures" and "sure conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record. Prosecution has failed to establish the exact cause of death.
49. The criminal trial concern itself with the question ,as to whether accused arraigned at the trial are guilty of the crime with which , they are charged and the Court has to test the evidence for its inherent consistency and the inherent probability of the story. Court has to scrutinize the evidence when there are testimonies of a large number of witnesses testifying before the Court, as in this case. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst the witnesses. Court has to consider the manner of giving evidence, surrounding circumstances, probabilities, motive for giving true or false evidence, intrinsic merit of the evidence, how it stands with other evidence adduced. Reliability of witnesses depends upon the accuracy of the witnesses, original observations of the evidence which he described; correctness and extent of what he remembers and his veracity. Court has to consider whether, in the circumstances of the case, it is possible to believe his presence at the scene and whether there is anything inherently State Vs. Naim Khan & Ors. SC No. 53 of 2012 16/29 ID No. 02403R0002762002 improbable or unreliable in his evidence. His conduct during occurrence and subsequently also could be examined. Discrepancies which relate to material points, should not be lightly glossed over but must be assessed seriously. Trifling discrepancies must be ignored as natural discrepancies among honest witnesses. The broad facts of the case and not minor details have to be considered in weighing the evidence. Sometimes contradictions, embellishments, discrepancies can lend assurance to the credibility of prosecution case. Court has to weigh the evidence carefully in measuring its worth or worthlessness.
50. On the touchstone of the aforesaid position of law, now I advert to the discussion of testimonies of the material witnesses.
51. Complainant Dulare Khan (PW2), in his deposition stated that he knew Syed Sohail Ahmed @ Chailla Khan (deceased). He deposed that he alongwith Syed Sohail Ahmed @ Chailla Khan (deceased) and Zahid Chaudhary (PW12), on 27.03.2001, were coming from that house to Tis Hazari Courts in a Gypsy, which was being driven by Zahid Chaudhary (PW12) and Syed Sohail Ahmed @ Chailla Khan (deceased) was sitting at the front seat of Gypsy; Besides driver, while he was sitting at the back seat. PW2 deposed that when they reached at Ashram Chowk, it was a red light and the traffic had stopped. Threefour persons came from their back side and started firing at Syed Sohail Ahmed @ Chella Khan (deceased). He deposed that at that time, they were looking towards the red light; Zahid got down from the Gypsy and ran away. He jumped through the glass window and ran away. PW2 deposed that Syed Sohail Ahmed @ Chailla Khan (deceased) sustained injuries from the firing and due to that firing two passengers in the bus were also injured. According to him incident took place at about 08:45 am and assailants, who fired the shot ran away from the spot. He did not see in which direction they ran away, while they were taking deceased to Hospital in the gypsy, police reached there and accompanied them to the Hospital. Syed Sohail Ahmed @ Chaila Khan (deceased) was declared brought dead. He informed the family members of Sohail on telephone. Police recorded his statement (Ex.PW2/A).
52. Complainant (PW2) could not identify any of the assailants as he did not see them at the time of incident. He was cross examined by Learned Addl. PP. In State Vs. Naim Khan & Ors. SC No. 53 of 2012 17/29 ID No. 02403R0002762002 his cross examination, he denied that he told to the police that on the day of incident four boys of age about 28/30 years came near Gypsy, who were holding pistols and started firing on them. PW2 was confronted with his previous statement (Ex.PW2/A). He denied that in his statement he gave description of assailants to the police. PW2 denied that on 16.05.2001, he and Zahid Khan both had come to police station New Friends Colony, where they identified accused Naim in the Police Station as one of assailants in the incident of 27.03.2011, in which Sohail @ Chailla Khan died. PW2 categorically denied that accused, who was present in the Court on 28.11.2002 was one of the assailants, who fired at Chailla Khan on 27.03.2001. He denied that he identified the accused at the Police Station on 16.05.2001. He stated that he was taken into custody by the police after the incident and was let off by the police only when he and Zahid paid Rs.25,000/ to the police.
53. PW2, in his deposition stated that he knew PWSaiyed Mohd. Fiaz, brother of Chailla and Mohd. Nizam, husband of the daughter of Chailla's sister. Mohd. Faiaz and Mohd. Nizam did not reach at the Hospital. He remained at the hospital for about five to six hours. Fayaz and Md. Nizam specifically stated that they had not accompanied them or in a separate vehicle behind them to Tis Hazari on the date of the incident. PW2 stated that he had signed many documents, which were written by the police officials, but the contents were not read over to him. PW2 testified that Syed Sohail Ahmed @ Chaila Khan (deceased) had contested election from Iglass and his wife had also contested for Mayor. He deposed that Syed Sohail Ahmed @ Chaila Khan (deceased) had enmity with lot of people in the course of his carrier as politician.
54. Zahid Chaudhary (PW12) deposed that in the morning of 27th day, he alongwith Dulare Khan and Sayed Sohail Ahmed @ Chaila Khan (deceased) started from Shaheen Bagh, Okhala house for going to Tis Hazari Court in a gypsy. He was driving gypsy at Ashram Chowk, he stopped his gypsy. After some minutes, he heard noise of fire of shot. On both his sides, he did not see anything. However, he saw that Sayed Sohail Ahmed @ Chaila Khan (deceased), who was sitting on his left side, had received injuries. He came out side from his gypsy and tried to came outside after opening the front door of his gypsy and as soon as his right leg was State Vs. Naim Khan & Ors. SC No. 53 of 2012 18/29 ID No. 02403R0002762002 stopped on divider, he saw one person was standing with a pistol. He jumped from his gypsy and went on the other side of the road of the divider and stood there alongwith other persons standing there. PW12 further stated that no PCR Van standing there till that time and Dulare, who was sitting on the back side seat in his gypsy, raised alarm 'mar diya mar diya'. He deposed that he saw that on his right side Dulare was standing besides him, who had come out of gypsy after breaking glass of the gypsy. He did not find any person and saw that assailants had disappeared. PW12 deposed that he came back to his gypsy to see injured Syed Sohail Ahmed @ Chaila Khan (deceased), he turned his gypsy towards other side and in the meanwhile, PCR Van came there. PW12 disclosed the incident to police officials and told them Syed Sohail Ahmed @ Chaila Khan (deceased) was injured and was taken to AIIMS Hospital, while the PCR Van was leading them. PW12 deposed that he came to know that Syed Sohail Ahmed @ Chaila Khan (deceased) had expired.
55. Zahid Chaudhary (PW12) could not identify the persons, who had fired. He had not seen them firing. He was cross examined by Learned Addl. PP. In cross examination, he deposed that he had disclosed the entire facts to the police officials, but he did not remember, if his statement was recorded by the police. PW12 stated that there were fourfive persons. He denied that he disclosed ages of said persons as 28 to 30 years. He denied that he told to the police that he could identify the person, who were on the side of Syed Sohail Ahmed @ Chaila Khan (deceased), he was confronted with his statement u/s 161 Cr.P.C. (Ex.PW12/A), where the description of said persons is mentioned. PW12 denied that he identified one person, who was sitting in police station and told to police that said person was the same, who was involved in firing on 27.03.2011 on Syed Sohail Ahmed @ Chaila Khan (deceased). He admitted that he was detained in police station for 1213 days for identification of accused persons. PW12 deposed that he alongwith Dulare Khan remained in Hospital till about 02:30 PM. He admitted that Fayaz and Nizam had not come to Hospital in his presence and he did not meet Fayaz and Nizam on 27.03.2001. He did not know, if Nizam also used to live in the house of Sohail Ahmed. PW12 also admitted that Syed Sohail Ahmed @ Chaila Khan State Vs. Naim Khan & Ors. SC No. 53 of 2012 19/29 ID No. 02403R0002762002 (deceased) and his wife were politician. He admitted that wife of Syed Sohail Ahmed @ Chaila Khan (deceased) had contested election for Mayor. PW12 admitted that case which was going on against deceased in Tis Hazari Court was a murder case and there were seveneight other murder case against Syed Sohail Ahmed @ Chaila Khan (deceased). He deposed that there were twothree murder cases were pending against Syed Sohail Ahmed @ Chaila Khan (deceased) in UP.
56. Nizam (PW9) deposed that there were twothree vehicles standing on the red light behind Gypsy and his scooter stopped after said twothree vehicles. His scooter was stopped behind said twothree vehicles and Gypsy. Then, he saw three - four persons came outside from a TSR and he saw one person was on motorcycle of white colour. He deposed that Dulare (PW2) and Zahid Khan (PW12) ran away from there in the crowd. PW9 deposed that he was talking with Dulare Khan as to what happened. He reached near Gypsy of Sayed Sohail Ahmed @ Chaila Khan (deceased). He saw that blood was oozing from the body of Chaila Khan. Gypsy of police was standing on the other side of the road. After sometime, Zahid and Dulare reached near the Gypsy and thereafter police officials also reached there. PW9 deposed that he informed children of Sayed Sohail Ahmed @ Chaila Khan (deceased) about the incident. He stayed at the Ashram Chowk for just about 5/6 minutes after the incident of firing.
57. Nizam (PW9) could not tell the time even by approximation when they left Shaheen Bagh or reached AIIMS. He deposed that he and Fayyaz had gone back to Shaheen Bagh on two wheeler scooter. PW9 deposed that he could not tell now how much time before them, they had left the hospital. He could not tell whether they all had reached Shaheen Bagh before 12 noon. PW9 deposed that he stated to the police in his previous statement U/s 161 Cr.P.C. that when he had stopped his scooter after the Gypsy on the red light, two/three vehicles were standing on the red light behind the Gypsy. He was confronted with his previous statement Ex.PW5/DA wherein it was not so stated. PW9 further deposed that he had not straightway gone to Shaheen Bagh after the firing and first they had gone to the Gypsy and when they had seen that blood was oozing out from the body of Sayed Sohail Ahmed @ Chaila Khan (deceased), then they had gone to Shaheen State Vs. Naim Khan & Ors. SC No. 53 of 2012 20/29 ID No. 02403R0002762002 Bagh to inform his family member. He could not tell the number, colour or make of his scooter at that time. Though there was a space in the Gypsy for them, but they both had gone separately on scooter, as he thought that he will go to his residence at Delite Cinema and Fayyaz (PW13) asked him that they may have also to go to Tis Hazari Court on the date. PW9 deposed that he reached directly to AIIMS Hospital from Shaheen Bagh because either Dulare or Zahid had given a call on the mobile phone of Fayyaz (PW13) stating that Sayed Sohail Ahmed @ Chaila Khan (deceased) was being taken to AIIMS Hospital. PW9 admitted that Razia, wife of deceased started residing with one Irfan in Aligarh, after the death of Sayed Sohail Ahmed @ Chaila Khan (deceased) and he had come to know that they both had married with each other, now. He deposed that it was possible that Sayed Sohail Ahmed @ Chaila Khan (deceased) might have been killed at the instance of his wife Razia and Irfan. PW9 admitted that Sayed Sohail Ahmed @ Chaila Khan (deceased) was involved in many cases and was on enemical terms with many persons.
58. Sayed Fayaz (PW13) deposed that at about 08.30 pm on 27.03.2001, he left his house to attend his date at Tis Hazari. One Dulare and Zahid were also with him in his Gypsy No. UP81H8526, which was being driven by Zahid. He deposed that he was on his scooter beside and at the back side of said gypsy. PW13 deposed that his scooter was immediately behind the gypsy. There was no vehicle between Gypsy of Syed Sohail Ahmed @ Chaila Khan (deceased) and his scooter. He deposed that four persons came and started firing at Syed Sohail Ahmed @ Chaila Khan (deceased) and he could not say from which side said four persons came. He deposed his scooter was stopped on left back side of gypsy. He became nervous after seeing the firing and he rushed to his house to inform the family of Syed Sohail Ahmed @ Chaila Khan (deceased), while he came back at the spot after informing to the wife of Syed Sohail Ahmed @ Chaila Khan (deceased), he came to know that his brother Syed Sohail Ahmed @ Chaila Khan (deceased) had been removed to AIIMS Hospital. PW13 deposed that Police had met him in the hospital and they had inquired from him and had recorded his statement. Learned Addl. PP for the State requested for permission to put a leading question to the witness with State Vs. Naim Khan & Ors. SC No. 53 of 2012 21/29 ID No. 02403R0002762002 regard to the name of one of the companions of the victim/deceased. He deposed that the other person, who was with his brother at the relevant time was named Zahid Chaudhary. He occasionally used to visit his house with his brother.
59. PW13 was cross examined by Learned Defence Counsel. In cross examination, PW13 deposed that he was real brother of Syed Sohail Ahmed @ Chaila Khan (deceased). He deposed that his Syed Sohail Ahmed @ Chaila Khan (deceased), who was working as property dealer and was also leader of Samajwadi Party. He did not know, if there were several criminal cases pending against Syed Sohail Ahmed @ Chaila Khan (deceased) in UP. PW13 deposed that he knew that there was on murder case against Syed Sohail Ahmed @ Chaila Khan (deceased) regarding murder of Kayyum in Delhi. He deposed that Syed Sohail Ahmed @ Chaila Khan (deceased) sometimes use to stay for one or two days and sometimes he use to go back on the same day and the house No.G56, Abul Fazal Enclave was purchased by Chaila Khan (deceased) in 1994 and thereafter, wife and children of Syed Sohail Ahmed @ Chaila Khan (deceased) shifted to said house. PW13 deposed that he knew Dulare Khan and Zahid prior to the incident and whenever Syed Sohail Ahmed @ Chaila Khan (deceased) use to come to Delhi, driver Zahid use to come with him, but Dulare Khan use to come sometimes with Chaila Khan. PW13 deposed that the scooter on which he was going to the date of incident belong to Tanveer Khan, who was residing in his neighbourhood. He and his brother Syed Sohail Ahmed @ Chaila Khan (deceased) had planned to go to Tis Hazari Court in the morning of 27.03.2001 and Syed Sohail Ahmed @ Chaila Khan (deceased) was to be dropped at Tis Hazari Court and he had to go to Kashmiri Gate as he was doing boring work at Metro. He did not know know about occupation of Tanveer Khan. PW13 did not know about occupation or house number of Tanveer Khan, but he was residing after leaving one gali and two plots already from his house. He did not not remember the number of the scooter driven by him at the time of incident. PW13 deposed that he had a two wheeler scooter bearing No. DL3S0139, which was purchased by him in 1994 in his name. His scooter and Gypsy started together and they reached at Ashram Chowk at about 08:45 am on the date of incident. PW13 stated that his scooter was immediately State Vs. Naim Khan & Ors. SC No. 53 of 2012 22/29 ID No. 02403R0002762002 behind the gypsy. There was no vehicle between gypsy of Syed Sohail Ahmed @ Chaila Khan (deceased) and his scooter. PW13 deposed that his scooter was stopped on left back side of gypsy and other scooters also stopped between his scooter and footpath on left side. There was gypsy of Syed Sohail Ahmed @ Chaila Khan (deceased) on right side of his scooter. He did not notice, if there was any other vehicle between gypsy and divider on the road. PW13 deposed that the distance between Red Light Ashram Chowk and said gypsy was about 7/8 feets. There was a car between red light and the gypsy, but he could not say how many Cars were there between red light and said gypsy. PW13 could not say, if there was a police booth after crossing the road on right side of said gypsy. He could not admit or deny, if there was any police booth on the right side as he had not seen the police booth. PW13 deposed that his statement was recorded by police in AIIMS Hospital. He had not told to police in his statement, father's name and name of village of accused. He was confronted with statement u/s 161 Cr.P.C., where the father's name and name of village of accused at Aligarh was mentioned. PW13 stated that he had not disclosed the name of other two persons except Naim and Shamshul, to the police in his statement. He was confronted with statement Ex.PW13/DA, where the name of Sukhbir & Pushkar and their residential address were mentioned. PW13 did not know, other two persons besides Naim and Shamshul prior to that. He did not remember, if he stated to police that he knew other two persons also. He was confronted with the statement (Ex.PW13/DA), where it was so mentioned. According to PW13, he had not disclosed the name of any other persons except Naim and Shamshul. He was Confronted with statement Ex.PW13/DA, where it is not so recorded.
60. PW13 stated that he had stated in his statement U/s 161 Cr.P.C that the accused Naim, Shamsul, Sukhbeer and Pushkar used to visit his brother Suhail. He was confronted with his above statement EXPW13/DA, wherein it is not so recorded. PW13 deposed that he stated in his previous statement recorded in the court on 08.10.2004, that the above named four accused had come at the spot and he could identify them. He was confronted with his above statement dated 08.10.2004, recorded during trial of accused Mohd. Naim, wherein he stated that State Vs. Naim Khan & Ors. SC No. 53 of 2012 23/29 ID No. 02403R0002762002 he could identify only two persons. PW13 could not tell the number of the scooter driven by him at the time of incident. He deposed that he had left the spot after firing just after about fiveseven minutes for his house, though he did not remember it exactly. PW13 deposed that he had not revisited the spot of firing on 27th March, once he had left it for his house. He deposed that Nizam (PW9) had also been with him throughout the day. They had asked the Zahid, Driver of the Gypsy to take Suhail to AIIMS, before leaving the spot. PW13 deposed that his brother Sayed Sohail Ahmed @ Chaila Khan (deceased) was still breathing when they left the spot, that is why he could say that Sayed Sohail Ahmed @ Chaila Khan (deceased) was alive at that time. He deposed that for the first time he met with Police officials around 12:00 noon or 01:00 PM in AIIMS Hospital. He deposed that one telephone connection of MTNL was installed in the name of his brother Sayed Sohail Ahmed @ Chaila Khan (deceased), in their above said house at that time. PW13 further deposed that he did not know if, his brother Sayed Sohail Ahmed @ Chaila Khan (deceased) was involved in Sessions Cases No. 692/93, U/s. 120B/302/34 IPC, No. 338/92 U/S 302 IPC, No. 243/92, U/S 147/148/149/302 IPC, No. 744/93 U/S 147/148/149/307 IPC and No. 590/93, U/s 307 IPC of different police stations of Aligarh, amongst the other case. He did not know if his brother Sayed Sohail Ahmed @ Chaila Khan (deceased) had been arrested in any case. PW13 could not tell the description and colour of the clothes worn by the accused persons at the time of incident. He did not notice when the accused persons had passed, the side of their scooter. He deposed that he had seen the faces of the accused persons for the first time, when they were firing at the gypsy. PW13 admitted that there were some shops on the left side of the gypsy, but were situated re at a distance.
61. As per the case of prosecution, accused Naim was arrested on 09.05.2001 from Batla House chowk. As per defence version Naim was arrested on 07.05.2001 from District Eta (UP). As per the case of prosecution, after arrest and before his production in the court, accused Naim was taken to various places i.e. the place of incident, place of recovery of pistol and the residence of PWYakub Ilahi and various Memos including pointing out Memo were prepared on 10.05.2001. Accused Naim was taken around to various places within the jurisdiction of New State Vs. Naim Khan & Ors. SC No. 53 of 2012 24/29 ID No. 02403R0002762002 Friends Colony and Zakir Nagar near Shahin Bagh etc, where the residence of PW Fayyaz and deceased was situated, moving an application for TIP in such a situation was meaningless. In Tain Singh v. State (Delhi Administration) 1987 CRI. L. J. 53, it has been held by Hon'ble High Court that the accused is not to prove conclusively that he was shown to the prosecution witness before he declined to participate in the identification parade. It is enough, if he brings on record cogent circumstances to show that he was or could have been shown to prosecution witnesses, while he was in police custody or when he was produced before the court for remand. Further he was taken to the locality, where the occurrence took place and where the complainant who was injured was residing. Accused was given benefit of doubt observing that the circumstances proved in the case made the plea plausible.
62. In the present case, prosecution has not proved that accused was kept in unmuffled face from the time of his arrest till he was produced in the court. As a matter of fact, identity of the person as an assailant in the case was not fixed by the Police, till the time they arrested accused Naim. It is only after his arrest, police decided to somehow solve the case by implicating accused Naim & others. Since the accused were not identified and named in the FIR, the identity of the accused was to be fairly fixed and for this reason Police decided to hold TIP. It is on this account, police moved an application for TIP and in the proceedings of TIP, they produced only Zahid Choudhry (PW12) and Dulare (PW2) for identification of accused Naim. They did not produce Fayyaz (PW13) and Nizam (PW9) as witnesses of identification in the TIP proceedings held in jail on 14.05.2001. It was not disclosed that identity of accused Naim had already been established through the statement of Fayyaz (PW13) and Nizam (PW9) U/s 161 Cr.P.C allegedly recorded on 27.03.2001. Inference may be drawn that the statement of these witnesses were not recorded till the holding of TIP and were recorded much later after the arrest of accused Naim and not on 27.03.2001, as projected, and were ante dated. This is clear from the deposition of Fayyaz (PW13) wherein he stated that "he had not told to police in his statement the father's name and name of village of accused. He was confronted with statement Ex.PW13/DA where the father's name and name of village of accused at Aligarh has been mentioned. He had not disclosed the name of State Vs. Naim Khan & Ors. SC No. 53 of 2012 25/29 ID No. 02403R0002762002 other two persons except Naim and Shamsul to the police in his statement. Confronted with statement Ex.PW13/DA from portion A to A where the name of Sukhbir and Pushker and their residential address are mentioned.
63. He did not remember if he stated to police that he knew other two persons also. Confronted with statement Ex.PW13/DA from portion B to B where it is so mentioned. He had not disclosed the name of any other person except Naim and Shamsul. He was confronted with statement u/s 161 Cr.P.C Ex.PW13/DA, where name of Avadesh is mentioned. He did not disclose the relationship between accused and other persons but he had stated that accused ran on motorcycle of his relation. When PW13 Fayyaz admittedly did not disclose all these details to the police, then how could it figure, in his statement U/s 161 Cr.P.C dated 27.03.2001. This clearly indicates, that Fayyaz (PW13) and Nizam (PW9) were later on introduced by the IO.
64. Accused Shamsul was arrested in other case and was confined in Aligarh jail. An application dated 28.02.2005 was moved in the present case, for issuance of production warrants, but there was no request for direction to keep his face Muffled. Accused Shamsul was produced from Aligarh on 25.08.2007, but the IO did not appear and the case was adjourned to 22.10.2007. Accused Shamsul was again produced from Aligarh on 22.10.2007 before this Court and the IO interrogated accused Shamsul with the permission of the Court and arrested him. After obtaining permission from this Court accused Shamsul was produced before Learned MM and an application for TIP was moved in the Court of Metropolitan Magistrate, New Delhi. It is pertinent to mention that the IO could have given the instructions to the accused to keep his face muffled after his arrest or after he was granted permission for interrogation. It is quite obvious that there is neither any evidence on record nor it can be inferred from circumstances that accused Shamsul could not have been seen by any other person. Story of the prosecution of producing the accused in a muffled face is meaningless because he was already produced before this Court on earlier dates in an unmuffled face after being brought from the Aligarh jail to Delhi by the UP police. As such, no adverse inference can be drawn against the accused persons for having refused to State Vs. Naim Khan & Ors. SC No. 53 of 2012 26/29 ID No. 02403R0002762002 participate in the TIP, in the facts and circumstances of the case.
65. The arrest of accused Naim at the pointing out and in presence of secret informer as shown by the prosecution on 09.05.2001 at Batla House Chowk crossing is unbelievable. The defence in the cross examination has impeached the prosecution story in this regard and has brought circumstances on record, which show that it is probable that he was arrested on 07.05.2001 from District Eta (UP). IO has categorically admitted and confirmed after seeing the case diary, that he was present in Etah (Kasganj was also in District Etah) on 07.05.2001. Defence witnesses seems to be reliable on this point. There are cuttings on the date in the Memos indicating fabrication of documents. PWAvadhesh has given a different version regarding the sequence and timings of visits alongwith accused to different places i.e. Batla House Chowk, Ashoka Park, House of Yakub Ilahi (PW15) and at Ashram Chowk i.e. place of incident. As per seizure memo of pistol, it was concealed below the earth and was recovered after digging out the earth, however none of the witnesses have deposed this fact and gave a contrary story that it was recovered from the bushes. Admittedly, Ashoka Park was a common place accessible to all and large number of people used to visit the park strolling from early morning till late evening. Ashoka Park was a big park of about 1 km in length between New Friends Colony and Zakir Nagar. Witnesses do not even know about its topography and prominent landmarks points inside the park. No independent public witness was joined at any point of time during preparation of different memos. Numerous times, witnesses showed ignorance during cross examination. Testimony of witnesses is highly contradictory on material points and therefore, unreliable. Scrutiny of the deposition of the recovery witnesses and the Investigating Officer reveal that entire evidence regarding recovery of pistols not worthy of credence.
66. It is noteworthy that IO/Inspector Gurmreet Singh could not even depose the name of the person who prepared the Rukka. He stated that he got recorded the statement of Dulare Khan by one of his team member, whose name he did not remember. Scribe of rukka, which formed the basis of FIR is not known. In cross examination IO deposed that he could not recollect as to who had written the statement of witness under section 161 Cr.P.C. Ex. PW 21/D, Mark PW16/X of State Vs. Naim Khan & Ors. SC No. 53 of 2012 27/29 ID No. 02403R0002762002 (statement Dulare Khan), Ex. PW30/B exhibited on record. He admitted that statement of witness under section 161 Cr.P.C. namely, HC Avdesh Kumar, Yaqoob IIahi, Wazid AIi, Sayyad Mohd. Fayaj, SI Amit Kumar, Zahid Chaudhary, Photographer Constable Yogender, Anup, Constable Satish, Constable Krishar Kumar, HC Hari Charan, Govind Kumar. Prasad, Dayal Lal, SI Sanja Narwal, Dulare Khan, Constable Zahir, Mohd. Hariff, Mohd. Nizam were not in his hand writing. He could not tell, in whose hand writing these were written. He could not recollect even after seeing the case diary as to who had written these statements. Conclusions
67. On appreciation of the evidence as a whole, this Court finds that prosecution has failed to bring home the guilt of the accused persons beyond reasonable doubt. Dulare Khan (PW2) and Zahid Chaudhary (PW12) were the two star witnesses of the prosecution. These witnesses did not support the case of prosecution and were cross examined by Learned Addl. PP. They failed to identify the accused persons as assailants. Dulare Khan (PW9) and Zahid Chaudhary (PW12) admitted that they were detained and confined for 12 days by the police in this case. Presence of Mohd. Nizam (PW9) and Mohd. Fayyaz (PW13), the alleged eye witnesses at the place of occurrence is highly doubtful. Their conduct was not natural and highly improbable, as they left the spot despite being very close to the victim. They did not accompany deceased to the hospital. According to complainant (PW2), he remained in the Hospital for five to six hours till that time Mohd. Fayyaz and Mohd. Nizam did not reach the Hospital. He further stated that Mohd. Fayyaz and Mohd. Nizam did not accompany them to Tis Hazari Court on the day of alleged incident.
68. PW12 stated that he heard noise of fire shots and did not see anything. According to PW12, Md. Nizam did not meet him on 27.03.2001. Their testimony also shows that PW9 and PW13 were not present at the spot at the time of the alleged incident. Deposition of PW2 stands corroborated by PW12 to establish the absence of PW9 and PW13 at the spot. Furthermore, there are material contradictions and improvement in the testimony of PW9 and PW13, which show that these witnesses are even otherwise not worthy of credence.
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ID No. 02403R0002762002
Admittedly, none of assailants are mentioned in medicolegal certificate (MLC) despite the fact that assailants were known to PW2 and PW12, who took deceased to hospital and had not named assailant. It has already been noticed above that recovery of pistol is highly doubtful.
69. In State Of Maharashtra Vs. Raju Bhaskar Potphode 2007 [3] JCC 2298 (SC), accused was convicted by the Trial Court u/s 302 IPC, placing reliance on the evidence of prosecution witnesses. In appeal accused was acquitted by the Hon'ble High Court observing that his presence at the time of occurrence was highly doubt full and that his conduct was not natural and trustworthy. The Hon'ble Apex Court found that the reason did not suffer from any infirmity to warrant interference. It was observed that several factors cast doubt on evidence of prosecution witnesses. Their conduct was quite unnatural because they did not take the deceased either to the hospital or police station and stated to have been gone to their home directly. Neither did they take him to the hospital which was nearby nor informed the police at the police station which was also situated closeby. Surprisingly, they had left the deceased in an injured condition. In State of U.P Vs. Mushtaq Alam, 2007 (3) JCC 2203 SC, PW1 accepted that he had not accompanied the deceased to the Hospital and waited at the spot for about forty minutes to lodge the FIR. It was observed that the conduct of the witness is unnatural. In normal course, he would have either accompanied the deceased.
70. On overall appreciation of the evidence on record, this Court finds that, prosecution has failed to prove the charges that on 27.03.2011 at about 08:45 am at Mathura Road Ashram Chowk, Delhi accused persons in furtherance of their common intention committed murder of Sayed Sohail Ahmed @ Chela and attempted to kill Dulare Khan and Dayal Lal. In the result, accused persons namely Naim Khan, Shamshul Khan and Sukbir are hereby acquitted from the charges. Case property be confiscated to the State after the expiry of period of revision/appeal, if any. File be consigned to Record Room.
announced in the (VINAY KUMAR KHANNA) open court on Additional Sessions Judge04 13th September, 2012. (SouthEast) Saket/New Delhi State Vs. Naim Khan & Ors. SC No. 53 of 2012 29/29