Delhi District Court
State vs . 1. Haji Hamid Khan on 22 December, 2010
IN THE COURT OF MS. ANJU BAJAJ CHANDNA
ADDITIONAL SESSIONS JUDGE / SPECIAL JUDGE NDPS,
DISTRICT NORTH, DELHI
Unique Identification No. 02401R1184922007
State Vs. 1. Haji Hamid Khan
S/o Shri Ummed Khan
R/o. H. No. 949, Gali Chashreen,
Farashkhana, Delhi110006.
2. Samir Khan
S/o Shri Haji Hamid Khan
R/o. H. No. 949, Gali Chashreen,
Farashkhana, Delhi110006.
3. Mohd. Sami @ Samiullah
S/o Shri Amanullah
R/o H. No. 6222, Pakki Gali,
Bara Hindu Rao, Delhi
FIR No. : 371/07
Under Section: 302/34 IPC
Police Station : Lahori Gate
Sessions Case No. : 40/07
Session Case No.40/07 1/34
Date of Committal : 30.11.2007
Judgment reserved on : 13.12.2010
Date of Judgment : 20.12.2010
JUDGMENT
1. Accused persons Haji Hamid Khan, Samir Khan and Mohd. Samiullah @ Sami have been facing trial for having committed the offence of murder u/s. 302 read with Section 34 IPC vide FIR No. 371/07, PS Lahori Gate.
2. The case FIR was registered on the basis of complaint lodged by Mohd. Sajid, wherein he specifically named above accused persons for having committed the murder of his brother Mohd. Rashid. According to the complainant on 22.08.2007 at 6:00 pm at Gali Chashrin, accused Haji Hamid Khan had held Mohd. Rashid by his shoulders and accused Sami had kept his foot on Rashid and accused Samir khan stabbed him by means of knife. He took his injured brother in PCR Van to the hospital where Rashid scumbed to the injuries. Accused Samir Khan was married to Azra Parveen, sister of complainant and deceased and FIR was registered at PSLahori Gate Session Case No.40/07 2/34 as inlaws of Azra Parveen attempted to kill her. Azra Parveen was residing with her parents and brothers at the time of incident. After registration of present case FIR, accused Haji Hamid Khan and Samir Khan were arrested, whereas accused Mohd. Samiullah could not be arrested. Charge sheet was filed against accused Haji Hamid Khan and Samir Khan after completion of investigation and accused Mohd. Samiullah was declared proclaimed offender.
3. The case was committed to the Court of Sessions by Ld. M.M. On 02.04.2008 accused Haji Hamid Khan and Samir Khan were charged for having committed an offence u/s. 302/34 IPC to which they pleaded not guilty and claimed trial.
4. During pendency of the trial, accused Mohd. Samiullah was also arrested and supplementary charge sheet was filed against him. On 19.03.2009, accused Mohd. Samiullah was also charged for having committed an offence u/s. 302/34 IPC to which he pleaded not guilty and claimed trial. The chargsheets were consolidated vide order dt. 03.07.2009.
5. Prosecution examined 24 witnesses in all to bring home Session Case No.40/07 3/34 the guilt of the accused persons.
6. PW1 Mohd. Shahid, is the brother of deceased Mohd. Rashid and according to him on 22.08.2007 at about 6:00 P.M., he was sitting at his home with his mother Firdos Begum, sister Azra Parveen, and brothers Mohd. Sajid, Mohd. Wajid and Mohd. Nasir. One boy came to them and informed that their brother Mohd. Rashid was being beaten at Gali Chashrin, on which they rushed to Gali Chashrin and saw that Mohd. Rashid was lying on the street, accused Haji Hamid Khan was holding him from shoulders and accused Sami had put his foot on Mohd. Rashid and accused Samir Khan was stabbing Mohd. Rashid. On seeing them all accused persons ran away and knife held by accused Samir Khan fell down at the spot. PW1 called the PCR, which came at the spot within 23 minutes and his brother Mohd. Rashid was removed to the hospital. Within 2 minutes of arrival of PCR, accused Haji Hamid Khan returned to the spot after injuring his hand and second PCR Van also came and took him to the hospital. Later, his brother Mohd. Rashid expired in the hospital. PW1 has been cross examined at length on behalf of accused persons, during Session Case No.40/07 4/34 which he denied that he and his family members have not witnessed the incident or that he is deposing falsely due to enmity with the accused persons. PW1Mohd. Shahid, was again examined after the arrest of accused Mohd. Samiullah. During which, he denied that accused present in the Court is the same person who had put his foot on his brother Mohd. Rashid at the time of incident. Despite cross examination on behalf of Ld. APP , he denied that accused Mohd. Samiullah arrested in this case is the same person involved in the commission of offence. He however, clarified that accused Haji Hamid Khan and Samir Khan were present there.
7. PW2 - HC Satender, proved DD No. 24A vide Ex. PW2/A recorded about the departure of Addl. SHO and other police officials on 22.08.2007. He also recorded DD No. 26A vide Ex. PW2/B and at about 9:30 P.M. recorded FIR of this case vide Ex. PW2/C being Duty Officer. He also proved DD No. 28A and DD No. 29A vide Ex. PW2/D and PW2/E respectively and endorsement made by him on Rukka Ex. PW2/F.
8. PW3 Firdos Begum, is mother of deceased Mohd. Rashid. Session Case No.40/07 5/34 She has also given the details of occurrence and deposed about dispute between her daughter Azra Parveen and her inlaws and narrated about the incident that on 22.08.2007, her son Mohd. Rashid was assaulted by Haji Hamid Khan, Sami and Samir Khan. She has also been cross examined on behalf of accused persons. She was again examined after the arrest of accused Mohd. Sami during which she also denied the identification of accused Mohd. Sami, who was involved in the killing of his son.
9. PW4 Inspector Subey Singh, who was Incharge, Mobile Crime Team reached the spot on 22.8.2007 itself. On inspection, he prepared his report Ex. PW4/A.
10. PW5 Ct. Swatantar Kumar, joined the investigation of the present case and reached the spot on receipt of DD No. 29A. He has given the details of investigation and proved the sketch of knife Ex. PW5/A, seizure memo Ex. PW5/B, seizure memo of blood sample Ex. PW5/C and blood stained earth Ex. PW5/D. The knife was produced and correctly identified by witness as Ex.P1 and also exhibits lifted from the spot and blood gauze etc. Ex. P2 to P9.
Session Case No.40/07 6/34
11. PW6 HC Subhash, was working as MHC(M) PSLahori Gate and deposed about deposition of case property and exhibits in Malkhana and sending of the same to FSL and proved relevant entries and record in Register No. 19 vide Ex. PW6/A to D.
12. PW7 - SI Mahesh Kumar, prepared the scaled site plan of the spot of occurrence at the instance of complainant vide Ex. PW7/A.
13. PW8 - Ct. Shyam Dutt, delivered FIR of this case to the residence of Ld. MM, Joint C.P., DCP and Addl. DCP & ACP etc.
14. PW9 - ASI Babu Ram, carried twelve sealed parcels, FSL Form and two sample seals to FSL, Rohini, Delhi and deposited the same and returned with the receipt. The parcels in his custody remained intact.
15. PW10 - HC Ram Kishan, collected MLC of accused Haji Hamid Khan from LNJP Hospital, Delhi and handed over the same to the IO.
16. PW11 - HC Hukam Singh, proved the FIR bearing No. 75/07, U/s. 498A/406/307/34 IPC, PSLahori Gate dated 31.01.2007 EXPW11/A. Session Case No.40/07 7/34
17. PW12 - Dr. M. K. Panigrahi, conducted postmortem of the dead body of Mohd. Rashid and has given the details of injuries. The cause of death has been mentioned as hemorrhage and shock consequent to the injuries. External injury No. 1 & 2 could have been caused by forceful thrust of a sharp and pointed weapon/object and injury No. 1 is fatal in nature and sufficient to cause death in ordinary course of nature.. Time since death is about 16 Hrs. and 5 Minutes at the time of postmortem. He proved his report Ex. PW12/A.
18. PW13 - Dr. Kumud Bharti, examined Mohd. Rashid on being brought to the Aruna Asaf Ali Hospital, Delhi on 22.08.2007 and proved MLC Ex. PW13/A.
19. PW14 Azra Parveen, is the sister of deceased Mohd. Rashid. She deposed about dowry demands raised by her husband accused Samir Khan and his father accused Haji Hamid Khan and also by motherinlaw and sisterinlaw. She lodged FIR at PSLahori Gate that her inlaws tried to kill her by burning. She also deposed about incident of 22.08.2007 as she also reached the spot on receipt of information at her home and found that her brother Mohd. Rashid was Session Case No.40/07 8/34 being assaulted by her husband, fatherinlaw and one Mohd. Samiullah at gali Chasrin. She was cross examined by Ld. APP on the aspect of accused Haji Hamid Khan injuring himself but she denied that she has given any such statement to the police and was accordingly confronted with her previous statement Mark PW14/A. She denied the suggestion that accused Haji Hamid Khan returned to the spot in her presence with self inflicted injury on his hand. She also has been cross examined on behalf of accused persons. she was again examined after arrest of accused Mohd. Samiullah during which she also failed to identify the person arrested was accused Mohd. Samiullah who had put his foot on deceased Mohd. Rashid at the time of injuries.
20. PW15 - ASI Mohd. Razik, also reached the spot on receipt of DD No. 26A and found blood and blood stained knife at the spot. He went to Aruna Asaf Ali Hospital, Delhi and obtained MLC of injured. The injured was referred to Hindu Rao Hospital. He was given sealed parcel by duty Constable containing one pant of injured which he seized vide Ex. PW15/A. He reached Hindu Rao Hospital and found Session Case No.40/07 9/34 injured Mohd. Rashid declared as dead. He also got the case FIR registered on the basis of Rukka prepared by IO. Thereafter, they reached the spot and summoned the Crime Team. Blood samples were lifted from the spot and seized vide seizure memo Ex. PW5/B and blood stained earth vide Ex. PW5/C, blood stained knife was sealed and taken into possession vide seizure memo Ex. PW5/B and sketch of knife Ex. PW5/A was prepared. On 23.08.2007, he again joined the investigation of the present case and accused Haji Hamid Khan and Samir Khan were arrested. Disclosure statement of accused Samir Khan has been proved as Ex. PW15/B, his Arrest memo as Ex. PW15/C and personal search memo as Ex. PW15/D. The disclosure statement of accused Haji Hamid Khan has been proved as Ex. PW15/E, his arrest memo as Ex. PW15/F and personal search memo as Ex. PW15/G. The postmortem of dead body was got done and autopsy surgeon had given two sealed parcels and sample seal of the hospital which was seized vide seizure memo Ex. PW15/H by the IO. Exhibits were produced and correctly identified by the witness. He has also been cross examined.
Session Case No.40/07 10/34
21.PW16 HC. Raj Pal Singh, had taken photographs of the spot vide Ex. PW16/1A to Ex. PW16/9A.
22. PW17 - SI Yashveer Singh, took over the further investigation of the case on 29.08.2007. He obtained PCR Form of this case, recorded statements of concerned police officials, duty Constable Ashwani Kumar, HC Ramphal and statement of ASI Rajender. On his directions case exhibits were sent to FSL, Rohini, Delhi. On 03.09.2007, the case file was handed over to Inspector Suraj Prasad for further investigation.
22. PW18 - Mohd. Wajid, younger brother of the deceased Mohd. Rashid was also present at home when information about assault of Mohd. Rashid was received. He also reached the spot Gali Chashrin alongwith other family members and found that Mohd. Rashid was being stabbed by accused Samir Khan while accused Haji Hamid Khan had caught him from his shoulders and accused Mohd. Samiullah had put his foot on Mohd. Rashid. He further stated that PCR Van removed injured Mohd. Rasihd to the hospital. The accused persons ran away from the spot, but accused Haji Session Case No.40/07 11/34 Hamid Khan again returned with self inflicted injury on his left hand. The statement of witnesses were recorded by the police. This witness was again examined after arrest of accused Mohd. Samiullah during which he also failed to identify the person so arrested as Mohd. Samiullah who had put his foot on deceased Mohd. Rashid at the time of incident.
23. PW19 - Mohd. Nasir, is also the brother of the deceased Mohd. Rashid and has supported the prosecution case by confirming that accused Mohd. Rashid was stabbed by Samir Khan and Haji Hamid, but he failed to identify accused Samiullah despite cross examination by Ld. APP.
24. PW20 Mohd. Sajid, is also the brother of deceased Mohd. Rashid and has supported the prosecution case and proved the complaint/statement Ex. PW20/A. He also stated that investigation was joined by him alongwith police officials and proved memos Ex PW5/A to Ex. PW5/D, which bears his signatures and stated about arrest of accused persons and their disclosure statements Ex. PW5/F and Ex. PW5/G. He also identified knife, as Ex. P1. However, he also Session Case No.40/07 12/34 did not identify accused Mohd. Samiullah and clearly stated that the person present in the court is not the same person who was involved in the killing of his brother Mohd. Rashid. He also stated that he knew the person who assaulted his brother as he used to meet him in Carrom Club. The witness was also cross examined on behalf of accused persons.
25. PW21 - Inspector Suraj Prasad, was posted as Additional SHO PSLahori Gate and on receipt of information, he reached the spot i.e. Gali Chasrin. Ct. Swatantra Kumar was also present there. He came to know about the injured having been removed to the hospital and went to the hospital and came to know that injured has been declared dead. He recorded the statement of Mohd. Sajid Ex. PW20/A and prepared Rukka Ex. PW21/A and got the case FIR registered. This witness has further given the details of investigation conducted by him like seizure of articles from the spot, arrest of accused persons and seizure memo of knife etc. He recorded statements of witnesses U/s. 161 Cr.PC, obtained postmortem report and conducted proceedings U/s. 82 Cr.PC Session Case No.40/07 13/34 against accused Mohd. Samiullah. He got scaled site plan prepared and after completion of investigation filed the charge sheet. He identified exhibits in the Court. PW21 has also been cross examined on behalf of accused persons, during which he denied that he did not investigate the case properly.
27. PW22 - Anita Chhari, Senior scientific Assistant, FSL proved the scientific analysis reports vide Ex. PW22/A and PW22/B.
28. PW23 - Ct. Babar Ali, deposed about the arrest of accused Mohd. Samiullah on 04.02.09 by Inspector Raj Kumar from the Court.
29. PW24 - Inspector Raj Kumar, arrested accused Mohd. Samiullah after he surrendered in the Court of Metropolitan Magistrate vide arrest memo Ex. PW24/A and personal search memo Ex. PW24/B.
30. Thereafter, prosecution evidence was closed.
31. Statements of accused persons were recorded U/s. 313 Cr.PC wherein entire incriminating evidence has been put and explained to them. Accused Haji Hamid Khan pleaded innocence and stated that he was removed from the spot by PCR to the hospital after Session Case No.40/07 14/34 Mohd. Rashid inflicted stab injuries on his neck, both arms and right leg. According to him, he has been falsely implicated in the present case due to previous enmity by the family of Mohd. Rashid.
32. Accused Samir Khan also pleaded innocence and false implication due to previous enmity by family of deceased. He also stated that deceased Mohd. Rashid stabbed his father who was removed by PCR to the hospital. He was not even present at the spot as at that time he was present at Shrimaan Showroom in Kharibawli, Delhi.
33. The statement of accused Mohd. Samiullah was dispensed with as no incriminating evidence have been found against him.
34. Both the accused Haji Hamid Khan and Samir Khan did not lead any evidence in their defence despite opportunity afforded. However, the application for examination of the concerned doctor who examined accused Haji Hamid Khan was moved. Since, MLC was admitted and lying on record was Ex. PW21/DA, the request was declined.
35. I have heard Ld. APP and Shri Mohar Singh and Shri Session Case No.40/07 15/34 Rajender Singh counsels for accused Haji Hamid Khan and Samir Khan and counsel Sh. Mohd. Khurshid for accused Mohd. Samiullah and given due consideration to the facts and circumstances of the case, evidence, documents and the record.
36. Ld. APP in his arguments raised following points:
i) The incident has taken place during day time in the open public place. The family member of deceased Mohd. Rashid reached the spot and witnessed the offence being committed by accused persons.
ii) The case of the prosecution is established by way of direct evidence as against accused Haji Hamid Khan and Samir Khan. There is nothing to disbelieve any of the witnesses so produced by the prosecution.
iii) The FIR was registered on the basis of deposition of the eye witnesses about the occurrence and thereafter investigation was properly conducted by the police officials.
iv) Although, witnesses failed to identify accused Session Case No.40/07 16/34 Mohd. Samiullah, but the presence of third person alongwith accused Haji Hamid and Samir is not disputed. Accused Mohd. Samiullah is related to other two accused and participated in the crime, but could not be arrested at the relevant time. He himself surrendered vide application before the Court, which is sufficient to indicate that he was also involved in the offence.
v) The motive to kill the deceased Mohd. Rashid was old enmity and also case FIR No. 45/07 was pending against the accused persons at instance of sister of deceased. The accused persons wanted the said case to be withdrawn and therefore caused this incident.
37. On the other hand, Shri Mohar Singh, Ld. Defence Counsel for accused Haji Hamid Khan and Samir Khan raised following points.
i) The witnesses examined by the prosecution concerning occurrence can not be relied upon since they Session Case No.40/07 17/34 are family members of the deceased and interested witnesses.
ii) The relations between the family of the accused and deceased have been enimical.
iii) Prosecution has failed to explain the injuries sustained by accused Haji Hamid Khan during the incident. The version of PW14, is different on this aspect and she has failed to support the version of other prosecution witnesses on this aspect.
iv) It is argued that due to enimical relations accused Haji Hamid Khan and Samir Khan have been falsely implicated in the present case.
38. Arguing on behalf of accused Mohd. Samiullah, counsel Mohd. Khurshid, raised following points.
i) All the witnesses of the prosecution have failed to identify Mohd. Samiullah as the person who was involved or participated in the commission of the offence. Session Case No.40/07 18/34
ii) It is clearly stated by all the witnesses that accused Mohd. Samiullah is not the same person who had put his foot on Mohd. Rashid at the time of occurrence.
iii) Since no incriminating evidence is appearing against accused Mohd. Samiullah, there are no ground to convict him. Acquittal of accused be recorded forthwith.
39. On consideriation of facts and circumstances of the present case, depositions of witnesses, documentary evidence and rival contentions, I am of the opinion that the case of the prosecution is sufficiently proved as against accused Haji Hamid Khan and Samir Khan.
40. The incident in the present case is of 22.08.2007. The occurrence has taken place near House No. 903, Gali Chashrin, which is a public place residentialcumcommercial area. The case of the prosecution is based on direct evidence about the occurrence. PW1, PW3, PW14, PW18, PW19, and PW20 have been examined as eye witnesses of the occurrence. It is no doubt true that all these witnesses Session Case No.40/07 19/34 are family members of deceased Mohd. Rashid. But this itself is not sufficient to discard their testimony. It is evident from the testimony of prosecution witnesses that spot of occurrence is situated at walking distance of two minutes from their house. The family members of Mohd. Rashid on receipt of information, immediately rushed to the spot Gali Chashrin and found that Mohd. Rashid was being assaulted by accused Samir Khan by means of knife while accused Haji Hamid Khan caught hold him by his shoulders. The above mentioned prosecution witnesses are immediate family members of deceased Mohd. Rashid and they have put forth clear and categorical version of the incident in their testimony. Despite cross examination on behalf of accused, all the witnesses remained consistent and no contradictions have come out of their statements. These witnesses are natural and probable witnesses of the occurrence and cannot be discredited or disbelieved merely for the reason that they are related to deceased Mohd. Rashid. The cross examination conducted on behalf of accused has been on the point that they are deposing falsely due to enmity or that they were not present at the spot. The defence has also Session Case No.40/07 20/34 tried to put on record that deceased and his family members have various criminal involvements. It has been specially suggested to PW20 Mohd. Sahid that someone else had killed deceased Mohd. Rashid due to enmity. PW20 Mohd. Sahid, who has been complainant in the present case and real brother of the deceased Mohd. Rashid, categorically stated that 'IF SOMEONE ELSE HAD KILLED, I WOULD NOT HAVE SPARED HIM AND LODGED COMPLAINT AGAINST ACCUSED PERSONS".
41. On evaluation of testimony of these witnesses, I am convinced that they are truthful witnesses and their statements inspire confidence. The version of occurrence as put forth by these witnesses has also been consistent with medical evidence and FSL report. It is clearly stated that accused Samir Khan stabbed deceased Mohd. Rashid on his thigh and during postmortem two stab wounds were found on the thigh of deceased. According to PW12 - Dr. M. K. Panigrahi, these injuries could have been caused by forceful thrust of a sharp and pointed weapon/object. Stab wound of 8 Cm. X 2 Cm. on the left thigh was fatal in nature and was sufficient to cause death in Session Case No.40/07 21/34 ordinary course of nature. The death of deceased Mohd. Rashid was due to hemorrhage and shock consequent to injuries so sustained. Similarly, according to FSL report, the cut marks appearing on the trousers/pant of the deceased Mohd. Rashid could have been caused by knife allegedly fell on the ground from hands of accused Samir Khan and seized from the spot. The timings of occurrence as alleged by the witnesses is consistent with the timings mentioned in the MLC and postmortem report. The occurrence has taken place at about 6:00 p.m. and deceased Mohd. Rashid was first received in Aruna Asaf Ali Hospital, Delhi at about 6:40 p.m. from there he was referred to Hindu Rao Hospital, Delhi, where he ultimately died at about 7:40 p.m. For the aforesaid reasons, I hold that witnesses so examined by prosecution are trustworthy and their evidence is clear and cogent with respect to the occurrence. There is nothing to affect their credibility.
It has been held by Hon'ble Supreme Court in DALIP SINGH & OTHERS Vs. THE STATE OF PUNJAB (AIR 1953 SC 364) that :
"A witness is normally to be considered independent unless he or she springs from Session Case No.40/07 22/34 sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is a personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prodence. There is no such general rule. Each case must be limited to and be governed by its own facts."
42. It has also been held by Hon'ble Supreme Court in Sucha Singh and Anr. Vs. State of Punjab [AIR 2003 SUPREME COURT 3617(1)], that :
"Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent perosn.
Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse Session Case No.40/07 23/34 evidence to find out whether it is cogent and credible. It cannot be said that the witness being a close relative and consequently being a parisan witness should not be relied upon."
43.In view of the above mentioned judgments and considering the testimony of the prosecution witnesses, I find no ground to reject their testimony merely for the reason that they are related to the deceased.
44. The next contention raised by Ld. Defence counsel is that accused Haji Hamid Khan sustained injuries and MLC Ex. PW21/DA and OPD Slip Ex. PW20/D1 to Ex. PWD3 are appearing on the record. The prosecution has failed to explain as to how these injuries resulted to accused Haji Hamid Khan. I have given due consideration and examined testimony of prosecution witnesses on this aspect. MLC of accused Haji Hamid Khan shows that he was brought to Aruna Asaf Ali Hospital, Delhi on 22.08.2007 at about 6:50 p.m. with injury in his left hand and left side of his neck. It is stated by PW1, PW3, PW18 and PW19 that after the occurrence, PCR Van came to the spot wherein injured Mohd. Rashid was taken to the hospital and meanwhile second PCR Van also came and accused Session Case No.40/07 24/34 Haji Hamid Khan returned to the spot with injury in his hand and accordingly he was taken to the hospital by PCR. It is categorically stated by prosecution witnesses except PW14 Azra Parveen that accused Haji Hamid Khan inflicted injury on himself and returned to the spot. Despite this categorical statement by the witnesses, no questions or suggestions have been put to them on this aspect meaning thereby that accused persons have not to dispute them. In this way, it cannot be said that prosecution witnesses have failed to explain the injury so sustained by accused Haji Hamid Khan. It has been pleaded by accused Haji Hamid Khan in his statement U/s. 313 Cr.PC that Mohd. Rashid (Deceased) inflicted stab injuries on his neck, both arms and right leg and therefore he was removed from the spot to the hospital by the PCR. However, during cross examination of witnesses, this defence plea was not dealt with as no questions or suggestions were put on this aspect. It appears to be an afterthought only. It has been suggested to PW21 Inspector Suraj Prasad that accused Haji Hamid Khan was picked up from some other place much before the incident .This defence plea of accused Session Case No.40/07 25/34 is contradictory as he himself admitted in his statement U/s. 313 Cr. PC that he was taken by PCR to the hospital from the spot. In view of the circumstances, I conclude that prosecution has been able to explain injuries of accused Haji Hamid Khan and no ground exits for rejecting the prosecution case on this aspect.
45. It has also been held by Hon'ble Supreme Court in SUCHA SINGH AND ANR. Vs. STATE OF PUNJAB [AIR 2003 SUPREME COURT 3617(1)] that :
It cannot be said that in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case should automatically be rejected, without any further probe.
Nonexplanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested. So probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused.Session Case No.40/07 26/34
46 It has also been argued by Ld. Defence Counsel that report of Crime Team Ex. PW4/A creates doubt about the prosecution case. The timings mentioned in the report are 7:00 a.m. to 8:00 a.m. on 22.08.2007, whereas the incident has taken place in the evening of 22.08.2007. It is stressed that Crime Team Inspection Report is fabricated. On considering this argument, I am of the opinion that this cannot help the accused in any manner. No doubt wrong timings have been mentioned in Ex. PW4/A, but this could be an inadvertent lapse on the part of member of Crime Team. It is clearly stated by PW15 ASI Mohd. Razik that Crime Team was present at the spot at about 10:45 p.m. It has also been stated by PW16 HC Rajpal Singh that photographs were taken from the spot between 7:00 p.m. to 8:00 p.m.. No specific suggestions were given on behalf of accused persons to PW4 Inspector Subey Singh that his report is fabricated or that he did not visit the spot. In these circumstances, I find no merit or substance in this contention of Ld. Defence Counsel. Otherwise, also present case is based on direct evidence and Crime Team Report is only a part of investigation. The Crime Team Inspection Report itself can not Session Case No.40/07 27/34 prove or disprove anything about the actual incident and therefore, cannot be of any assistance to the defence.
47. The motive in the present case is clearly established as it is an admitted case that family of deceased Mohd. Rashid and accused persons were having rivalry. The sister of deceased PW14 Azra Parveen was married to accused Samir Khan and on account of dowry demand FIR was registered at PSLahori Gate bearing No. 45/07 U/s. 498A/406/307/34 IPC. It is stated by witnesses that after the registration of FIR PW14Azra Parveen came to reside at her parental home. Since, accused persons had to go to jail in said FIR, they were having grudge against her family and wanted the pending case to be withdrawn. PW20 while taking injured Rashid to hospital was told by Rashid that accused assaulted him for this reason. The occurrence has been witnessed by the family members of deceased and they have remained consistent and unshaken during their evidence on this point. It is clear that accused persons had strong motive to kill the deceased and therefore assaulted him with full intention and knowledge by means of knife and also shared common intention and Session Case No.40/07 28/34 participated actively in the incident.
48. I find no justification in the contentions that accused persons have been falsely implicated due to enmity. The defence taken on behalf of accused persons during cross examination is inconsistent with the pleas raised by accused persons in their statements u/s. 313 Cr.PC. According to accused Haji Hamid Khan, he has been stabbed by deceased Mohd. Rashid and therefore was removed to hospital by PCR Van from the spot. In this way, he has admitted his presence at the spot and his altercation with the deceased. Accused has however failed to explain as to how deceased got fatal injuries on his person. The nature of injuries sustained by accused Haji Hamid Khan have been simple. According to prosecution witnesses while the deceased Mohd. Rashid was being lifted in first PCR Van, accused Haji Hamid Khan returned with self inflicted injury and was taken away by second PCR Van. The eye witnesses of the occurrence have not been questioned on this aspect nor any suggestion has been putforth in their testimony.
48. It has been pleaded by accused Samir Khan that he has Session Case No.40/07 29/34 been falsely implicated due to enmity and at the relevant time he was at Shrimaan Showroom at Kharibawli, Delhi. However, he has failed to bring any independent evidence to prove that he was not present at the spot or that at the relevant time he was present at Shrimaan Showroom, Kharibawli, Delhi. I therefore conclude that accused persons have no plausible or reasonable defence in their favour.
49. On consideration of deposition of eye witnesses, testimony of police officials, who investigated the case and documentary evidence so prepared during the investigation, I am of the opinion that prosecution has successfully proved its case beyond reasonable doubt as against accused Haji Hamid Khan and Samir Khan. I therefore, convict both these accused persons U/s. 302/34 IPC.
50. So far as case of the prosecution against accused Mohd. Samiullah is concerned, I find that it has not been proved. All the prosecution witnesses, who witnessed the occurrence, have failed to identify accused Mohd. Samiullah and clearly stated that he is not the same person who participated in the crime along with other two Session Case No.40/07 30/34 accused Haji Hamid Khan and Samir Khan. Accused Samiullah could not be arrested at the relevant time and chargesheet was filed without arresting him. He was declared proclaimed offender, but later he moved an application for surrender and even applied for participation in Test Identification Parade, but his application was dismissed by Ld. Metropolitan Magistrate. It is categorically stated by eye witnesses that accused Mohd. Samiullah arrested in this case is not the same person, who joined other two accused persons in the occurrence. No incriminating evidence could come against accused Mohd. Samiullah and therefore his statement U/s. 313 Cr.PC was dispensed with. Also there has been no rivalry between accused Mohd. Samiullah and family of deceased Mohd. Rashid. In these circumstances, I hold that the case of the prosecution has not been proved as against accused Mohd. Samiullah and therefore he is acquitted from the charge U/s. 302/34 IPC.
ANNOUNCED IN THE OPEN COURT ON 20.12.2010.
(ANJU BAJAJ CHANDNA) Session Case No.40/07 31/34 ADDL. SESSIONS JUDGE DELHI Session Case No.40/07 32/34 IN THE COURT OF MS. ANJU BAJAJ CHANDNA ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS (NORTH) DELHI.
FIR No. 371/07 PS Lahori Gate US 302/34 IPC S/V 1. Haji Hamid Khan
2. Samir Khan 22.12.2010 ORDER ON SENTENCE PRE: APP for State.
Both convicts from J.C. Counsel Sh Mohar Singh for both the convicts.
Heard on the point of sentence and also perused the file. Accused persons have been convicted vide separate Judgment dt. 20.12.2010 u/s 302 read with section 34 IPC.
It is submitted on behalf of convict Haji Hamid that he is 74 years of age and is suffering from various ailments. He is responsible to look after his wife and unmarried daughter in the family. He is not a previous convict. In view of his family circumstances, lenient view is prayed for.
With respect to convict Samir Khan, it is submitted that he is 24 years of age and is sole bread winner of the family consisting of aged parents and unmarried sister. He is not a previous convict Lenient view is prayed for.
Session Case No.40/07 33/34
Ld defence counsel has further submitted that murder was not gruesome or diabolic and does not fall within the category of rarest of rare cases.
On the other hand, Ld APP has submitted that severest punishment be awarded to the convicts as they have killed a young man to settle their personal scores.
On consideration of facts and circumstances, I find that present case does not fall in the category of rarest of rare cases as per the guidelines laid down by Hon'ble Supreme Court, therefore the present case does not call for capital punishment. Accordingly, I sentence both the convicts to rigorous imprisonment for life and fine of Rs 10,000/ each, in default of payment of fine to undergo further simple imprisonment for 3 months each.
Copy of the judgment as well as order on sentence be given to both the convicts. File be consigned to Record Room. ANNOUNCED IN THE OPEN COURT ON 21.12. 2010 (ANJU BAJAJ CHANDNA) ADDL. SESSIONS JUDGE DELHI Session Case No.40/07 34/34