Delhi District Court
State vs Mohd Waseem@Bhura Etc on 6 September, 2025
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 28476/2016)
FIR No. 224/2015
Police Station Darya Ganj
Charge-sheet filed under Sections Sec. 302/34 IPC.
Charges framed against accused Sec. 302/34 IPC & Sec. 302
persons namely Mohd. Waseem read with Sec. 149 IPC.
@ Bhura, Mohd. Shadab, Mohd.
Atif Malik @ Lala, Saleemuddin
@ Salim & Sheikh Ameenuddin
@ Ameenuddin Pehlwan.
State Versus 1. Mohd. Waseem @ Bhura,
S/o Sh. Mohd. Swaleen,
R/o H. No. 2968, 1st Floor,
Kala Masjid, Turkman Gate,
Delhi-110006.
2. Mohd. Shadab,
S/o Sh. Ameenuddin @ Ameen
Pehlwan,
R/o H. No. 2984, Gali Asif,
Kala Masjid, Turkman Gate,
Delhi-110006.
3. Mohd. Atif Malik @ Lala,
S/o Mohd. Yaseen Malik,
R/o H. No. 1154, Gali Sayyed
Walim Kucha Faulad Khan,
Kala Mahal, Delhi-110006.
FIR No. 224/2015, PS: Darya Ganj, Page No. 1 of 101
State Vs. Mohd. Waseem @ Bhura & Ors.
4. Saleemuddin @ Salim,
S/o Sh. Salauddin,
R/o H. No. 2987, Gali Asif,
Kala Masjid, Turkman Gate,
Delhi-110006.
...Accused Persons.
Date of Institution of case 25.07.2015
Date of Arguments 29.08.2025 & previous dates
Judgment reserved on 29.08.2025
Judgment pronounced on 06.09.2025
Decision Convicted
JUDGMENT
1. Accused persons namely Mohd. Waseem @ Bhura, Mohd. Shadab, Mohd. Atif Malik @ Lala, Saleemuddin @ Salim are facing trial for the offences punishable under Sec. 302/34 IPC & Sec. 302 read with Sec. 149 IPC. The case of the prosecution is that on 05.04.2015 at about 11:20-11:30 pm, at Asaf Ali Road, near Turkman Gate, Darya Ganj, Delhi all the aforesaid four accused persons along with co-accused Sheikh Ameenuddin @ Ameenuddin Pehlwan (since deceased) in furtherance of their common intention, committed murder of Shahnawaz. Further on the aforesaid date, time and place all the aforesaid four accused persons along with co-accused Sheikh Ameenuddin @ Ameenuddin Pehlwan (since deceased) formed an unlawful assembly and in prosecution of the common object committed murder of Shahnawaz.
FIR No. 224/2015, PS: Darya Ganj, Page No. 2 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
2. The brief facts which are borne out from the record of the case are that on 06.04.2015 on receiving DD No. 2A, regarding quarrel near Dargah, Turkman Gate, Delhi, PW-11 SI Ved Pal along with PW-22 Ct. Girivar went to the spot of incident where he found an agitated crowd and on inquiry, they came to know that it was a case of touching of a motorcycle with car, which led to a quarrel and occupants of car had beaten the motorcycle rider and the injured/motorcycle rider had been taken to LNJP Hospital. Thereafter, IO left PW-22 Ct. Girivar at the spot to protect the scene of crime and motorcycle bearing registration no. DL-1SR-5852 which was stationed there and went to LNJP Hospital along with PW-27 HC Munni Lal (the then Constable) where he met with Duty Ct. Ajay who informed that injured had been declared dead by the doctor and the dead body was shifted to MAMC Mortuary for postmortem. IO also received information regarding death of injured from PS vide DD No. 3A. During investigation, IO seized clothes of deceased from duty Ct. Ajay vide seizure memo Ex. PW-11/A, in the hospital and he also collected MLC of deceased, Ex. PW-4/A from MAMC Mortuary. Thereafter IO prepared tehrir, Ex. PW-11/B and same was handed over to Ct. Munni Lal for registration of FIR. After registration of FIR, further investigation of this case was entrusted to PW-39 ACP Amrit Raj (the then Inspector) and thereafter IO got inspected the spot of incident through Crime team, collected pullanda of clothes of deceased and MLC of deceased from PW-11 SI Ved Pal.
FIR No. 224/2015, PS: Darya Ganj, Page No. 3 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
3. During investigation, IO met with brothers of deceased namely Wasimuddin and Suhail and sons of deceased namely Mohd. Fahad and Mohd. Kaif and inquired them about the incident and recorded statements of brothers of deceased Wasimuddin and Suhail and son of deceased Mohd. Fahad. IO could not record the statement of Mohd. Kaif, minor son of deceased as he was in state of shock at that time. IO also tried to inquire from public persons/residents of the area but none of them came forward as they were afraid from accused persons. Thereafter, IO prepared site plan, Ex. PW-8/DA of the spot of incident, at instance of brother of deceased Wasimuddin and inspected the spot of incident but no blood was found at the spot. During investigation, IO along with Mohd. Fahad and Wasimuddin reached near wall of Dargah, Faiz Illahi and from there he seized the damaged motorcycle make Honda CBZ Extreme bearing registration no. DL-1SR-5852 of deceased and one Honda Activa Scooty bearing registration no. DL-9SAP-8057. During investigation, IO along with SI Ved Pal went to MAMC Mortuary and got conducted postmortem on the body of deceased, recorded dead body identification statement of witness and after postmortem handed over the dead body to Wasimuddin, brother of deceased. IO also seized blood sample of deceased along with sample seal, sample of tissue for histopathology and viscera of deceased from concerned doctor at MAMC Mortuary.
4. During investigation, on 06.04.2015, IO received secret FIR No. 224/2015, PS: Darya Ganj, Page No. 4 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
information regarding accused Mohd. Waseem @ Bhura and thereafter he along with SI Ved Pal and Wasimuddin went to Jama Masjid Bus Stand and from there he apprehended accused Mohd. Waseem @ Bhura at instance of Wasimuddin and on interrogation, he confessed his involvement in the present case. Thereafter IO, arrested accused Mohd. Waseem @ Bhura, conducted his personal search and recorded his disclosure statement. During investigation, on 07.04.2015, IO also arrested accused Mohd. Atif @ Lala and Mhod. Shadab from Pul Mithai, Peeli Kothi, Lahori Gate, on the basis of secret information and on interrogation, they also confessed their involvement in the present case. Thereafter IO, arrested accused Mohd. Atif @ Lala and Mhod. Shadab, conducted their personal search and recorded their disclosure statements. On same day, IO also arrested accused Salimuddin @ Salim from Shanti Van Red Light, on the basis of secret information, conducted his personal search and recorded his disclosure statement.
5. During investigation, IO seized the offending car make Hundai I-20 Magna bearing registration no. DL-2CAE-8426 from MCD Parking, in front of Delight Cinema at instance of accused Mohd. Shadab, got mechanical inspection of car of accused persons as well as motorcycle of deceased and seized exhibits i.e. one small container containing 'control paint taken from bumper of car' and one small container containing 'paint taken from silencer of motorcycle'. During investigation, on 08.04.2015, IO arrested accused Shiekh Aminuddin @ FIR No. 224/2015, PS: Darya Ganj, Page No. 5 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
Aminuddin Pehalwan from ISBT Anand Vihar. IO also conducted his personal search and recorded his disclosure statement. Thereafter IO filed applications for TIP of accused persons except accused Mohd. Waseem @ Bhura but they refused to participate in the TIP proceedings.
6. During investigation, IO recorded statement of Mohd. Kaif, minor son of deceased, collected PCR forms, collected ownership details of motorcycle bearing registration no. DL-1SR-5852 of deceased, car bearing registration no. DL-2CAE-8426 of accused persons and Activa Scooty bearing registration no. DL-9SAP-8057, collected photographs from Crime Team and obtained previous involvement details of accused persons from CRO Kamla Market. IO also collected postmortem report of deceased, inspection report of vehicles from Physics division of FSL Rohini, deposited tissue of deceased for histopathology test and sent the exhibits to FSL for expert opinion. During investigation, IO also got prepared the scaled site plan of the spot of incident at the instance of Wasimuddin, seized log book containing conversation regarding PCR call vide DD No. 2A, seized documents of offending car and motorcycle as well as Activa Scooty from its registered owners, collected CDRs of accused persons as well as Wasimuddin and recorded statements of witnesses. On completion of investigation, charge-sheet was filed by the IO before the Court through the SHO. After obtaining FSL result and FIR No. 224/2015, PS: Darya Ganj, Page No. 6 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
viscera report, supplementary charge-sheet was also filed before the court.
7. Vide order dated 0 6 . 0 7 . 2 0 1 5 copy of the charge-sheet was supplied to accused persons under Section 207 Cr.P.C and v i d e o r d e r d a t e d 2 0 . 0 7 . 2 0 1 5 the case was committed to the Court of Sessions under Sec. 209 Cr.P.C.
8. Vide order dated 04.12.2015, the Ld. Predecessor Court was pleased to frame charges under Sec 302/34 IPC & Sec. 302 read with 149 IPC against all the five accused persons to which they pleaded not guilty and claimed trial.
9. During the trial of this case, accused Sheikh Ameenuddin @ Ameenuddin Pehlwan had expired and proceedings against him stood abated vide order dated 04.05.2024.
10. To prove its case, prosecution has examined 41 witnesses. The testimonies of presecution witnesses along with its nature has been discussed briefly in the following paragraphs:-
11. PW-1 HC Nathu Ram, was the duty officer who proved copy of present FIR, his endorsement on rukka and certificate under Section 65B Evidence Act with respect to the the above- said FIR as Ex. PW-1/A to Ex. PW-1/C. He also proved copy of Kayami register containing DD No. 4A & 5A as Ex. PW-1/D. In his cross-examination, he deposed that IO did not record his statement under Sec. 161 Cr.PC. He denied the suggestion that FIR was ante-dated and ante-timed.
FIR No. 224/2015, PS: Darya Ganj, Page No. 7 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
12. PW-2 Mohd. Fahad was the son of deceased as well as one of the eyewitness of alleged incident. He deposed that on 05.04.2015, he and his younger brother Mohd. Kaif along with their father Sh. Shahnawaj (since deceased) were coming back to their house from the house of their grandmother on their motorcycle bearing registration no. DL-1SR-5852. He further deposed that at about 11:30 pm, when they reached near Turkman Gate, there was traffic jam on the road. He also deposed that at that point of time, one i-20 car of sliver grey colour bearing registration no. DL-2CAE-8426 came from the side of Ramleela ground in their direction. He also deposed that as his father was trying to take out his motorcycle from the jam, the motorcycle slightly got struck with the said car. He also deposed that accused Shadab was driving the car and accused Ameen was sitting on the side seat and few ladies were sitting on the back seat of the car. He also deposed that when their motorcycle touched the car, accused Shahdab started abusing them in filthy language, then he came outside the car and started beating his father. He also deposed that accused Ameen also abused them. He also deposed that in the meantime, one red colour Activa scooty bearing registration no. DL-2SAP-8057 on which three boys were sitting also reached there and they also started beating his father. He also deposed that accused Ameen Pahalwan came out of the car and started threatening by saying kill him and he should also know that he was the dada/don of the area.' He further deposed that in the meantime, his uncle Wasim also came there, however, accused Shadab, Wasim @ Bhura, Salim and Atif @ Lala were FIR No. 224/2015, PS: Darya Ganj, Page No. 8 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
continuously beating his father and accused Ameen Pahalwan was continuously shouting time and again, saying that 'saale ko jaan se maar do'. He further deposed that in the meantime, his younger uncle Suhail also arrived at the spot and on seeing him, accused persons who had came on scooty, left the scooty at the spot and ran away on foot from there whereas other accused persons left by car itself. He also deposed that his uncle Suhail removed his father in a rickshaw to LNJP Hospital and he left to the house of his grandparents to inform them about the incident. He also deposed that after sometime, he came to know that his father had expired. On putting a leading question by Ld. Addl. PP for the State, witness stated that it might be correct that the registration number of the scooty was DL 9SAP 8057. This witness was cross-examined at length on behalf of accused persons. In his cross-examination, he deposed that while his father was driving motorcycle and returning from the house of their grandmother, his younger brother Mohd. Kaif was sitting behind his father and he was sitting on the last on the motorcycle. He also deposed that the offending car had come to the place of occurrence from the side of Ramleela Maidan. He also deposed that the persons siting in the car had got down from the car first. He also deposed that Ameen Pahalwan at the time of touching of the car, was sitting on the front seat beside the driver seat. He also deposed that the persons occupying the car had started abusing his father while sitting in the car. He also deposed that after abusing his father the persons occupying the car slapped his father. He also deposed that his father was slapped on his face by FIR No. 224/2015, PS: Darya Ganj, Page No. 9 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
accused Shahdab. He also deposed that accused Ameenuddin after coming out of the car exhorted 'mar do saale ko aur isey bhi pta lage is main ilake ka dada hu'. He also deposed that he did not approach the nearby police post for help of his father. He also deposed that three accused persons on scooty reached the spot after five minutes when quarrel started. He also deposed that his father did not counter attack the accused persons as they were five. He also deposed that he did not tell the police about the fact that 4-5 persons had tried to intervene and they were also threatened by accused Ameenuddin. He admitted that spot was surrounded with shops having CCTV cameras. He also deposed that he knew the names of all the accused persons even prior to the date of occurrence. He also deposed that he had also intervened in the quarrel and he was also beaten by them. He also deposed that his uncles were not called by his father at the spot. He also deposed that at the time of occurrence, his father was wearing black colour shirt of without buttons and this shirt thereafter was seen by him in the hospital after 5 or 10 minutes after his father reached the hospital. He also deposed that the shirt of his father was lying at Turkman Gate and he had seen it there only and not in the hospital. He denied the suggestion that all the accused persons were shown to him in the police station itself. He also denied the suggestion that none of the accused was involved in the alleged incident. He also deposed that he had come to know about the death of his father after 15-20 minutes of his death. He also deposed that the shirt worn by his father was got completely teared in the incident. He also deposed that police FIR No. 224/2015, PS: Darya Ganj, Page No. 10 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
met first time same night after the incident and he had not gone to the police chowki Turkman Gate. Again said, after the incident he had gone there at 06:00 am, next day, when his statement was recorded. He denied the suggestion that he was not an eyewitness to the incident. He also denied the suggestion that later on he was tutored by his family members and IO at the instance of ex-MLA Shoaib Iqbal and SHO Anil Sharma.
13. PW-3 Mohd. Kaif, was younger son of the deceased as well as one of the eyewitness of the alleged incident. He deposed that on 15.04.2015 at about 11:20 pm, he along with his brother Fahad and his father Shahnawaj were coming back from the house of their grandmother at Shankar Gali, Turkman Gate, on the motorcycle of their father. He also deposed that when they reached near Haj Manzil, there was a traffic jam on road and at that time at about 11:30 pm, his father tried to take out his motorcycle from the traffic jam and their motorcycle got struck slightly with i-20 car of sliver grey colour bearing registration no. DL-2CAE-8426. He further deposed that after their motorcycle touched the car, accused Shahdab started abusing his father and he also came out of the car and started beating his father. He also deposed that in the meantime, accused Ameen Pahalwan also came out of the car and he also joined Shahdab in giving beatings to his father. He further deposed that in the meantime, three other persons also arrived there on a red colour scooty bearing registration no. DL-9SAP-8057 and those three persons also gave beatings to his father. He also deposed that accused Ameen was FIR No. 224/2015, PS: Darya Ganj, Page No. 11 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
shouting that he was dada of the area and kill his father. He also deposed that his father fell on the road and became unconscious and all the five persons continued beating his father. He further deposed that first of all, his elder chacha namely Wasim reached at the spot and tried to intervene but accused persons kept on beating his father and after sometime his younger chacha Suhail reached there. He also deposed that on seeing his two uncles, all the five accused persons ran away from there. He also deposed that accused Ameen and Shahdab left the spot in i-20 car whereas other three accused persons namely Salim, Atif @ Lala and Waseem @ Bhura, who had come on scooty, ran away from the spot on foot. He also deposed that his younger chacha Suhail removed his father to LNJP Hospital and later on he came to know about the death of his father. This witness was cross- examined at length on behalf of accused persons. In his cross- examination, he deposed that the car was coming from the side of Ramleela Maidan and their motorcycle was coming from the side of Asaf Ali Road. He also deposed that there were two police persons who were present at the police post at that time. He deposed that accused Shahdab had come out first from the car. He also deposed that his elder uncle reached the spot within 7-8 minutes of the incident and thereafter his younger uncle came within 2-3 minutes at the spot. He also deposed that his father was bleeding because of injuries sustained by him and the blood had fallen on the road but he did not know how much blood had fallen on the road. He also deposed that accused Ameen had uttered the words to kill his father. He also deposed that he FIR No. 224/2015, PS: Darya Ganj, Page No. 12 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
reached the house of his grandmother on foot by running within 10 minutes. He also deposed that the silencer of the motorcycle driven by his father got touched with the bumper of the car of accused persons. He also deposed that he was sitting in the middle of the motorcycle at that point of time. He also deposed that he came to know about the name of the accused persons next day from the posters and similar was the case with his brother Fahad. He further deposed that the posters were shown to the police same day when his statement was recorded. He further deposed that he did not give the physical description of the accused persons to the police in his statement. He also deposed that he did not know, which of the assailants was driving the scooty and which one were sitting at the back and he also did not know what type of dress or the colour were being worn by the accused persons who came on the scooty. He admitted that about 40-50 persons had gathered at the spot in a circle around the spot at the time of incident. He denied the suggestion that he had implicated the accused falsely by taking their names at the instance of ex-MLA Shoeb Iqbal due to previous enmity of Shoeb Iqbal with the accused persons. He also denied the suggestion that he had not seen even the offending car and the accused persons and they had been shown to him later on by the police officials.
14. PW-4 Dr. Kapil, CMO, LNJP Hospital has proved the MLC of deceased Shahnawaz, prepared by Dr. Nitin as Ex. PW-4/A. In his cross-examination, he deposed that it might be a FIR No. 224/2015, PS: Darya Ganj, Page No. 13 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
chance that the patient might have remained in the casualty for about 30 minutes.
15. PW-5 Sh. Asha Ram, Record Keeper, IP Estate Transport Department has proved the detailed particulars of offending vehicle i.e. i-20 Magna car bearing registration no. DL-2CAE-8426, attested by Sh. Nand Gopal, MLO, as Ex. PW-5/A. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
16. PW-6 Sh. Ranbir Singh, Record Keeper, Transport Department, Mall Road has proved the detailed particulars of motorcycle of deceased bearing registration no. DL-1SR-5852, attested by Sh. Arvind Dutt, MLO, as Ex. PW-6/A. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
17. PW-7 Sh. Suhail was the younger brother of deceased as well as one of the eyewitness of the alleged incident. He deposed that on 05.04.2015 at about 11:20-11:25 pm he was accompanying the baraat of his friend namely Anas which was proceeding towards Turkman Gate. He further deposed that when he reached near Haj Manjil, he saw that a quarrel was taking place near said place. He also deposed that he went near the crowd and saw that his elder brother Waseem was trying to intervene while his another elder brother namely Shahnawaz was being badly beaten by Ameen Pahalwal, Waseem @ Bhura, Atif @ Lala, Shahdab and Saleem, who were already known to him. He also deposed that the said persons were giving merciless FIR No. 224/2015, PS: Darya Ganj, Page No. 14 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
beatings to his brother Shahnawaz with fist and leg blows while he was lying on the road in unconscious state. He also deposed that he immediately tried to rescue Shahnawaj but the accused persons continued beating him. He also deposed that accused Ameen Pahalwan was loudly saying to kill his brother and was also saying that he was dada of the area. He also deposed that after giving beatings to Shahnawaz, they all went away from the spot along with car. He further deposed that he took his brother Shahnawaz in a rickshaw to LNJP Hospital where he was declared dead. He further deposed that that he had also seen his nephews namely Fahad and Kaif at the spot who were crying for help for their father. He also deposed that in the morning at about 04:30 am, police met him at the spot and made inquiry from him and he had told the names of all the accused persons to the police. He proved his statement regarding identification of dead body as Ex. PW-7/A. This witness was cross-examined at length. In his cross-examination, he deposed that he was the witness to the incident for about 5-7 minutes. He also deposed that he had first seen his brother Waseem at the place of occurrence and some quarrel was going on at the spot. He also deposed that on having seen his brother Waseem, he reached there and no baraati accompanied him to the place of incident nor he had called anyone of them. He also deposed that he tried to intervene in the quarrel but could not succeed. He further deposed that he did not call PCR from his mobile as he was busy in removing his brother to the hospital in the rickshaw. He also deposed that he reached the hospital at about 11:45 pm and his brother was examined in FIR No. 224/2015, PS: Darya Ganj, Page No. 15 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
the hospital in his presence. He further deposed that there was no blood stain at the spot and motorcycle of his brother and scooty were parked at the spot. He also deposed that police was also present at the spot and his both nephews were also present there at spot. He also deposed that he did not know that on 06.04.2015, at what point of time dispute arose before his arrival to the spot. He admitted that near the footpath from the spot, there was a police picket at a distance less than 20 steps. He further deposed that he had not talked with his nephews Fahad & Kaif and his brother Wasim between his reaching to spot and taking his brother Shahnawaz to the hospital. He also deposed that he did not know at what time and on what reason, the quarrel had taken place, when he reached to the hospital. He denied the suggestion that none of the accused had participated in the alleged incident as claimed by him. He denied the suggestion that since he was never present at the spot or went to the hospital, that is why, he did not make any call at 100 number. He also denied the suggestion that even Fahad and Kaif were not the witness of the alleged incident and they were also planted as a witness by the police.
18. PW-8 ASI Om Prakash, was the Duty Officer at PS Kamla Market. He proved DD No. 47B, regarding non-functioning of CCTV camera installed on GB Road as Ex. PW-8/A. In his cross- examination, he admitted that the footpath adjacent to Dargah Faiz Illahi came under the jurisdiction of PS Kamla Market. He also admitted that the footpath adjacent to Haj Manjil came under FIR No. 224/2015, PS: Darya Ganj, Page No. 16 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
the jurisdiction of PS Chandani Mahal. He also admitted that on road of Turkman Gate Chauraha falls under the jurisdiction of PS Chandni Mahal, another road falls under the jurisdiction of PS Daryaganj and third road falls under the jurisdiction of PS Kamla Market. He also admitted that the road which leads towards Haj Manjil from Turkman Gate chauraha comes under the jurisdiction of PS Chandni Mahal and Dargah Faiz Illahi was situated at the backside of Ramleela Maidan.
19. PW-9 Sh. Waseemuddin, was the brother of deceased as well as one of the eyewitness of alleged incident. He deposed that on 05.04.2015 at around 11:10/11:15 pm, he left his house for going in the area of Ganj Meer Khan to attend a party. He also deposed that at about 11:20 pm when he reached Meer Haj Manjil, Dargah Faiz Illahi, he saw that there was crowd and thereafter he entered into crowd and saw that Ameen Pahalwan and his son Shahdab, his nephew Salim and his two associates Atif Lala and Bhura were beating brutally his brother Shahnawaz. He further deposed that they were kicking and fisting his brother and his two nephews namely Fahad and Kaif were crying for help and at that time Ameen Pehlwan was saying that 'maar do isko jaan se taki sabko pata chal jaye ki main illake ka dada hu'. He further deposed that after seeing that incident, he made call to the police at 100 number and thereafter he intervened into the matter and found that his brother became unconscious and despite that, all the aforesaid persons kept on beating his brother Shahnawaz. He further deposed that in the FIR No. 224/2015, PS: Darya Ganj, Page No. 17 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
meantime, his younger brother Suhail arrived there and thereafter two of the accused persons fled away from there in grey colour i-20 car and remaining offenders had also ran away but he could not say if they ran away in some vehicle or not. He also deposed that his brother Suhail took Shahnawaz to the LNJP Hospital in a rickshaw and he also reached there and came to know that his brother had been declared 'dead' by the doctor. He further deposed that motorcycle of his brother Shahnawaz bearing registration no. DL-1SR-5852 was seized by the police in his presence vide seizure memo Ex. PW-9/A and one red colour scooty make Activa was also seized by the police in his presence vide seizure memo Ex. PW-9/B. He also deposed that at around 04:30 am on 06.04.2015, he met with IO who made inquiry from him and his nephew Mohd. Fahad and his brother Suhail. He also deposed that thereafter he went to the spot and pointed out the spot of incident and IO prepared site plan, Ex. PW-8/DA at his instance. He proved his statement regarding dead body identification as Ex. PW-9/C and dead body handing over memo Ex. PW-9/D. He narrated about apprehension of accused Waseem @ Bhura on his identification and proved his arrest memo Ex. PW-9/E. This witness was cross-examined at length on behalf of accused persons. In his cross-examination, he deposed that his statement was recorded on six occasions by the police during investigation of this case which were on 05.04.2015, however, he did not remember the dates and months of recording of statements by the police on other occasions but his last statement was recorded on 11.06.2015. He admitted that very near to the FIR No. 224/2015, PS: Darya Ganj, Page No. 18 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
spot of incident, there was a police post at Turkman Gate. He also deposed that none of the accused persons gave any beatings to him and there were no verbal abuses between him and the assailants. He also deposed that he himself and his brother Suhail did not try to approach the officials at the Police Post. He also deposed that no blood was oozing out of the body of his deceased brother and his clothes were not blood stained. He also deposed that he reached the hospital along with his brother Suhail and his brother Suhail had got admitted his deceased brother Shahnawaz. He denied the suggestion that his family was having cordial relations with local ex-MLA Sh. Shoaib Iqbal. He also denied the suggestion that Shoaib Iqbal had tutored them to falsely implicate the accused persons. He also deposed that his statement was first recorded at around 06:30 am at PP Turkman Gate on 06.04.2015. He denied the suggestion that he never knew accused persons prior to the date of incident and he just named him at the instance of Shoaib Iqbal and the then SHO Anil Sharma of PS Chandni Mahal. He also denied the suggestion that none including himself, Fahad, Kaif or Suhail had ever witnessed the quarrel, if any, that had taken place with Shahnawaz on 05.04.2015.
20. PW-10 Dr. Jyoti Barwa, Assistant Professor, Department of Forensic Medicine had conducted the postmortem on the dead body of deceased Shahnawaj. She proved her detailed postmortem report as Ex. PW-10/A. She also deposed that during postmortem, she observed that the deceased was having severe coronary artery disease, however, there were also multiple FIR No. 224/2015, PS: Darya Ganj, Page No. 19 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
internal and external injuries on the body which were ante- mortem in nature, fresh prior to death in duration and caused by blunt force. This witness was cross-examined at length on behalf of accused persons. In her cross-examination, she admitted that she had not mentioned in her postmortem report, Ex. PW-10/A that the external or internal injuries were reflected between points A to A and B to B were either sufficient to cause death or were likely to cause death. She also admitted that the deceased was having 80% blockage in the left anterior artery and 100% blockage in the lumen of right anterior artery. She also deposed that she did not write the injuries being responsible for causing death because she wanted to know whether there was any additional acute cardiac contribution to the injuries. She also deposed that in postmortem report, she did not opine the nature of injuries and therefore, she had not written in postmortem report as to whether the injuries were simple or grievous. She denied the suggestion that the complainant's side and concerned DCP had pressurized her to give report in a particular fashion to their liking.
21. PW-11 SI Ved Pal was the first IO in the present case. He deposed that on 06.04.2015 on receiving DD No. 2A, regarding quarrel near Dargah, Turkman Gate, Delhi, he along with Ct. Girivar went to the spot of incident where he found an agitated crowd and on inquiry, they came to know that it was a case of touching of a motorcycle with car, which led to the quarrel and they also came to know that occupants of car had beaten the FIR No. 224/2015, PS: Darya Ganj, Page No. 20 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
motorcycle rider and the injured/motorcycle rider had been taken to LNJP Hospital. He further deposed that in the meantime, Ct. Munni Lal came at the spot along with DD No. 2A and handed over the same to him. He further deposed that he left Ct. Girivar at the spot to protect the scene of crime and motorcycle bearing registration no. DL-1SR-5852 which was stationed there and he went to LNJP Hospital along with Ct Munni Lal where he met with Duty Ct. Ajay who informed that injured had been declared dead by the doctor and the dead body was shifted to MAMC Mortuary for postmortem. He further deposed that he also received information regarding death of injured from PS vide DD No. 3A. He further deposed that he seized clothes of deceased from duty Ct. Ajay vide seizure memo Ex. PW-11/A, in the hospital and he also collected MLC of deceased, Ex. PW-4/A from MAMC Mortuary. He further deposed that he prepared tehrir, Ex. PW-11/B and same was handed over to Ct. Munni Lal for registration of FIR. After registration of FIR, further investigation of this case was entrusted to Inspector Amrit Raj. He narrated about the proceedings conducted by the IO at the spot of incident viz. inspection of spot of incident through Mobile Crime Team, seizure of motorcycle of deceased as well as scooty of accused persons and recording of statements of brothers and son of deceased. He also narrated about identification of dead body by brothers of deceased, conducting of postmortem on the dead body, handing over the dead body of deceased to his brother Waseemuddin after postmortem and seizure of exhibits from mortuary by IO vide seizure memo Ex.
FIR No. 224/2015, PS: Darya Ganj, Page No. 21 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
PW-11/C. He also narrated about apprehension of accused Waseem @ Bhura by the IO on the basis of secret information and proved his arrest memo, Ex. PW-9/E and disclosure statement, Ex. PW-11/D. In his cross-examination, he deposed that after reaching at the spot, he did not make any inquiry as to whom mobile no. 9212387674 belonged. He also deposed that he made inquires from public persons who were found available at the spot, who disclosed that there was a quarrel on account of touching of motorcycle with a car and they also disclosed that 3- 4 occupats of the car had beaten the motorcycle rider. He admitted that during the time he stayed at the spot, no eyewitness of the incident was found. He also deposed that while he was available at the spot, no scooty was found lying or parked at the spot. He also deposed that he did not observe any scooty at the spot even after returning from the hospital. He also deposed that he did not interact with Fahad and Kaif personally at the spot but he had only seen them there. He also deposed that he was unable to identify accused Wasim @ Bhura. He denied the suggestion that accused Waseem @ Bhura was not arrested from the bus stand Jama Masjid in his presence as stated by him. He denied the suggestion that the confessional statement Ex. PW-11/D was not made by accused Waseem @ Bhura and IO had written it on his own and that IO had taken his signature on blank paper which was converted into confessional statement.
22. PW-12 Dr. Amandeep Kaur, Associate Professor, MAMC, Delhi has proved her opinion regarding cause of death as Ex.
FIR No. 224/2015, PS: Darya Ganj, Page No. 22 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
PW-12/A. She also deposed that death in this case occurred as a result of the combined effect of brain damage and shock consequent upon blunt force trauma to the head and trunk respectively. She also deposed that brain damage, shock and liver laceration were individually and collectively sufficient to cause death in ordinary course of nature. She also deposed that all the injuries were antemortem in nature, fresh in duration prior to death and were caused by blunt force. In her cross-examination, she admitted that sub-arachnoid haemorrhage can occur because of hypertension also. She also admitted that from the postmortem report and histopathology report of deceased, it can be said that the deceased had a compromised heart condition. She also deposed that though the patient was suffering from heart disease but he could not have died of it. She denied the suggestion that her report was not based upon any scientific findings or that sheer guess work and given under the pressure of local DCP. She admitted that had deceased survived for some more time, the heart could have shown finding of infarct, in case of his death on account of heart attack.
23. PW-13 Dr. Nidhi Mahajan, Assistant Professor, has proved the histopathology report of deceased as Ex. PW-13/A. In her cross-examination, she admitted that histopathology report, Ex. PW-13/A did not bear any date, month or year of giving the said report. She also deposed that an autopsy surgeon while submitting his postmortem report must give reasons as to FIR No. 224/2015, PS: Darya Ganj, Page No. 23 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
whether the injuries reflected in the postmortem report were either sufficient to cause death or likely to cause death.
24. PW-14 Sh. Parshuram Singh, Assistant Director (Physics) had inspected the offending vehicles i.e. i-20 car bearing registration no. DL-2CAE-8426 and Hero Honda Motorcycle bearing registration no. DL-1SR-5852 and he proved his report in this regard as Ex. PW-14/A. In his cross-examination, he admitted that his report did not contain the measurement of the scratch marks found on the bumper. He also admitted that his report did not contain the colour of motorcycle and car which were inspected by him. He also deposed that he had not checked the chasis number of the car or motorcycle. He denied the suggestion that he had given false report at the instance of IO.
25. PW-15 Sh. Arvinder Singh, deposed that on 07.04.2015 on direction of IO, he inspected the offending vehicles i.e. Hyundai i-20 Magna Silver grey car bearing registration no. DL-2CAE-8426 and Hero Honda CBZ Extreme Motorcycle bearing registration no. DL-1SR-5852 and proved his reports in this regard as Ex. PW-15/A & Ex. PW-15/B. In his cross- examination, he admitted that front bumper from both sides of the car were scratched. He also deposed that there were fresh scratches on rear right side door and front left side door of the car. He admitted that he cannot tell if the scratches on the car were received with the motorcycle in question or by some other vehicle/object.
FIR No. 224/2015, PS: Darya Ganj, Page No. 24 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
26. PW-17 HC Ram Pal, was the MHC(M) at PS Daryaganj. He proved entries made by him in register no. 19 & 21 regarding deposit and movement of case properties as Ex. PW-17/A to Ex. PW-17/E & Ex. PW-17/E-1 to Ex. PW-17/E-3. In his cross- examination, he admitted that no time of deposit of case property had been mentioned in register no. 19. He denied the suggestion that all the entries reflected in register no. 19 had been manipulated and fabricated by colluding with the IO or that no such case property was deposited in Malkhana or sent to FSL.
27. PW-18 SI Praveen Badsara, deposed that on 07.04.2015, he joined the investigation in the present case along with IO. He narrated about apprehension of accused persons namely Mohd. Shadab and Mohd. Atif on the basis of secret information by the IO from Pul Mithai and proved their arrest memos, personal search memos and disclosure statement as Ex. PW-18/A to Ex. PW-18/F. He also narrated about apprehension of accused Salimuddin @ Salim by the IO on the basis of secret information from Shanti Van red light proved his arrest memo, personal search memo and disclosure statement as Ex. PW-18/G, Ex. PW-18/H & Ex. PW-18/J. He also narrated about seizure of Hyundai I-20 car bearing registration no. DL-2CAE-8426 from MCD parking in front of Delight Cinema at instance of accused Shahdab vide seizure memo Ex. PW-18/K, pointing out of spot of incident by accused persons namely Waseem, Mohd. Shahdab, Atif Malik and Salimuddin vide memos Ex. PW-18/K1 to Ex. PW-18/K4, inspection of car as well as motorcycle of deceased FIR No. 224/2015, PS: Darya Ganj, Page No. 25 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
and proved seizure memo of control paint for the front bumper of car as well as control paint from the sliencer of motorcycle as Ex. PW-18/K5. He also narrated about apprehension of accused Aminuddin Pahlwan (since deceased) on the basis of secret information, by the IO from Anand Vihar bus terminal and proved his arrest memo, personal search memo, disclosure statement and pointing out memo as Ex. PW-18/K6 to Ex. PW-18/K9. This witness correctly identified the accused persons during his deposition before the court. In his cross-examination, he deposed that something had been recovered from the personal possession of accused Atif but nothing was recovered from the possession of accused Shahdab. He admitted that the alleged place of apprehension was thickly populated area but he could not say if IO called any public person to join the proceedings of arrest/apprehension. He denied the suggestion that none of the accused person was arrested from the place, manner, time and date as deposed by him in his examination-in-chief. He also denied the suggestion that he had signed all the memos in one go while sitting in the Police Station on later date. He admitted that he had not mentioned the fact of identification of the car by accused Shahdab in his statement recorded under Sec. 161 Cr.PC. He denied the suggestion that the said car was already taken by the police officials on 06.04.2015 from near the house of accused Shahdab. He also denied the suggestion that no inspection whatsoever had taken place in his presence and he had just signed the memos on ante-date and time. He deposed that they received information of whereabouts of accused Aminuddin FIR No. 224/2015, PS: Darya Ganj, Page No. 26 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
when they were in Tis Hazari Court at about 03:30 pm. He admitted that no ID, purse or mobile phone had been seized from accused Aminuddin. He also deposed that IO did not call any public person to witness the proceedings of arrest. He denied the suggestion that accused Salimuddin was not arrested on the date, time and manner in which he had deposed.
28. PW-19 Nizamuddin, deposed that he had purchased Honda Activa Scooty bearing registration no. DL-9SAP-8057 in February, 2015 from one Salma, daughter of Alimuddin. He further deposed that he did not hand over the vehicle to Waseem @ Bhura in the night of 05.04.2015. This witness was cross- examined by Ld. Addl. PP for the State in which he admitted his signature on the seizure memo of aforesaid scooty, Ex. PW-19/A. He deposed that police did not record his statement at any point of time. He also deposed that he knew accused Mohd. Waseem @ Bhura prior to the incident. He denied the suggestion that he had stated to the police that on 05.04.2015, he had given the abovementioned scooty to accused Mohd. Waseem and in the night of 05.04.2015, the abovementioned scooty was in his possession. He denied the suggestion that he was deposing falsely in this respect to save accused Waseem @ Bhura being having cordial relations with him. In his cross-examination on behalf of accused persons, he admitted that 05.04.2015 was scheduled for the marriage of his uncle's daughter at Community Centre, Seelampur and he had also gone to attend the said ceremony. He also deposed that accused Shahdab, Saleem and FIR No. 224/2015, PS: Darya Ganj, Page No. 27 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
Aminuddin had also gone to attend the said marriage ceremony. He also deposed that he was present there between 10:00 pm to 12:30 pm and the abovesaid three accused persons were also present during the said time. He also deposed that during the abovesaid period, the said scooty was parked at his residence at Kala Masjid, Turkman Gate in locked condition. He also deposed that after two days, on 07.04.2015, police officials called him to produce the said scooty at PS Darya Ganj and he had produced the same on 07.04.2015 and since then the scooty was lying at the PS itself. This witness was re-examined by Ld. Addl. PP for the State in which he denied the suggestion that accused Waseem @ Bhura was not known to him. He also denied the suggestion that he used to give his scooty to accused Waseem @ Bhura now and then. This witness was not again cross-examined on behalf of accused persons despite opportunity given to them.
29. PW-20 HC Ravinder Kumar, was the Photographer at Mobile Crime Team. He proved the photographs (12 nos.), Ex. P-1 to Ex. P12 and their negatives, Ex. PW-20/A of the the spot of incident from different angles. In his cross-examination, he admitted that during his stay at the spot, he did not meet any eyewitness. He also deposed that when he reached there, no vehicle with respect to that incident was available at the spot.
30. PW-21 Ct. Rajender, deposed that in the intervening night of 05-06.04.2015, he delivered the copy of FIR to Ld. MM, Joint Commissioner and DCP. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
FIR No. 224/2015, PS: Darya Ganj, Page No. 28 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
31. PW-22 Ct. Girwar Singh, deposed that in the intervening night of 05-06.04.2015, at about 12:20 am, on receiving a telephonic information regarding quarrel at Turkman Gate, he along with SI Ved Pal went to the spot of incident. He deposed on the lines of PW-11 SI Ved Pal and narrated about the proceedings conducted by SI Ved Pal and IO/ACP Amit Raj at the spot. In his cross-examination, he deposed that no eyewitness had been found at the spot despite making efforts. He also deposed that the seizure memo of motorcycle was prepared by Inspector Amrit Raj but he did not remember the time. He also deposed that the car involved in the accident was also seized in the intervening night but he did not remember as to who had prepared the seizure memo of car. He also deposed that he did not remember whether the CCTV cameras installed at Dargah Faiz Illahi and Haz Manzil were checked or not. He admitted that during the intervening night, the names of the assailants were not revealed. He also deposed that when they reached at the spot, it came into their notice about the name of the injured and the injured was shifted to the hospital by the public persons. He deposed that the names of public persons did not come into their notice during the inquiry in the intervening night.
32. PW-23 Ct. Ajay Chowdhary, was the duty constable at LNJP Hospital. He deposed that on the intervening night of 05/06.04.2015, at around 11:50 pm, one Suhail had brougth his injured brother Shahnawaz in the hospital and he got admitted the injured. He further deposed that doctor had prepared MLC FIR No. 224/2015, PS: Darya Ganj, Page No. 29 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
No. ECD-3732/15 and during treatment, injured Shahnawaz had been declared as dead. He also deposed that after receiving said information, he conveyed the same to PS Darya Ganj. He also deposed that doctor had given one sealed parcel containing the clothes of deceased and sample seal, which was seized by the IO vide seizure memo Ex. PW-11/A. In his cross-examination, he deposed that injured was admitted in the hospital at around 11:55 pm. He also deposed that IO did not record the statement of Suhail, brother of deceased, in his presence. He also deposed that he did not remember if the brother of deceased was present at the time of preparation of seizure memo Ex. PW-11/A.
33. PW-24 W/HC Santosh, deposed that on 13.06.2015, she along with IO went to the house no. 1423/1, Gali Goodni wali, Kala Mahal, Delhi where he met with Mohd. Aarish Khan, who was asked about Salma. She further deposed that Mohd. Aarish Khan informed that Salma had shifted to H. No. 2192, Second Floor, Chatta Momgran, Turkman Gate, Delhi therefore, they went the abovesaid house no. 2192 where they found Salma who was asked about the ownership of Scooty bearing registration no. DL-9SAP-8057. She further deposed that Salma informed that in the month of August, 2014, she had purchased the abovementioned scooty in her name and in the month of February, 2015, she sold the same to Nizamuddin. She further deposed that Salma also told that she gave relevant documents regarding ownership of scooty to Nizamuddin and a sale deed in this regard was also executed. She further deposed that Salma FIR No. 224/2015, PS: Darya Ganj, Page No. 30 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
gave photocopies of the relevant documents to the IO which was seized vide seizure memos Ex. PW-24/A. In her cross- examination, she denied the suggestion that she did not join the investigation at any point of time or that she signed the seizure memo in the PS.
34. PW-25 Ct. Gaurav, deposed that on 09.06.2015 on the directions of IO, he took five pullandas in sealed condition from MHC(M) and deposited the same at FSL, Rohini and after depositing the same, he handed over acknowledgment of FSL to MHC(M). In his cross-examination, he denied the suggestion that he tempered with the above mentioned exhibits at instance of IO.
35. PW-26 ASI Hazari Lal, was the In-charge of the PCR Van Oscar 25. He deposed that on the intervening night of 05/06.04.2015, at about 11:43 pm, he received a call from Control Room regarding quarrel at Turkman Gate. He further deposed that on receiving the said call, he reached at Dargah, Turkman Gate where public persons had gathered and Waseem son of Sallauddin met him who informed him that some known persons had quarreled with his brother Shahnawaz and his brother was taken to LNJP hospital. In his cross-examination, he deposed that when he reached at the spot, 20-25 persons were found present there and they were saying 'maar diya-maar diya' and the public persons did not name any person. He also deposed that even the caller Waseem told him that some known persons had beaten his brother. He admitted that he asked the names of the assailants from Waseem but he did not tell the names of the FIR No. 224/2015, PS: Darya Ganj, Page No. 31 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
said assailants. He also deposed that caller Waseem did not tell the name of the person who shifted the injured from the spot to hospital.
36. PW-27 HC Munni Lal, deposed that on the intervening night of 05/06.04.2015 at around 12:20 am, on direction of Duty Officer he handed over DD No. 2A to SI Ved Pal. He further deposed that there was crowd and one motorcycle bearing registration no. DL-1SR-5852 make Hero Honda, CBZ was lying there in accidental condition. He further deposed that he along with SI Ved Pal went to LNJP hosptial where SI Ved Pal made inquiries from Duty Ct. Ajay with respect to injured who informed them that injured was declared brought dead by the doctor and the dead body was sent to Mortuary, Maulana Azad Medical college. He further deposed that SI Ved Pal collected the MLC of deceased Shahnawaz and made search of the eyewitness but no one was found there and thereafter SI Ved Pal prepared tehrir. He further deposed that Duty Ct. Ajay also handed over one sealed pullanda containing the clothes of the deceased with sample seal which was seized by SI Ved Pal vide seizure memo, Ex. PW-11/A. He further deposed that he took the tehrir from the hospital to PS Darya Ganj and handed over the tehrir to duty officer for registration of FIR. He further deposed that after registration of FIR, he went to Turkman gate and handed over the copy of FIR and original rukka to Inspector Amrit Raj. He also deposed that on instruction of Inspector Amrit Raj, he sent SI Ved Pal from Mortuary to spot and he remained at Mortuary till 10:00 FIR No. 224/2015, PS: Darya Ganj, Page No. 32 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
am. He narrated about identification of dead body of Shahnawaz by the his family members, postmortem on dead body, handing over of dead body to its relative after postmortem and seizure of exhibits given by the docotor by the IO. In his cross-examination, he deposed that he came to know from the duty officer that the deceased was brought by his brother Suhail. He also deposed that the said Suhail was not available in the hospital, however, SI Ved Pal made search for him in the hospital. He also deposed that he could not say, if the family members of the deceased came before 10:00 am. He denied the suggestion that no seizure memo was prepared in his presence or that no statement of any witness was recorded by the IO in his presence.
37. PW-28 HC Jitender, has proved Call Book Register of Central Zone pertaining to PCR Van Oscar 25 w.e.f. 23.01.2015 to 01.05.2015 as Ex. PW-28/A (running into 7 pages). He also proved PCR forms as Ex. PW-28/B to Ex. PW-28/G. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
38. PW-29 Inspector Rupesh Kumar Khatri, was the In-charge of Mobile Crime Team. He visited the spot of incident along with HC Hari Kishan (fingerprint proficient) and Ct. Ravinder (photographer). He proved his detailed report regarding inspection of spot of incident as Ex. PW-29/A. In his cross- examination, he deposed that the place of incident was near the police booth situated toward Haj Manzil side, however, the FIR No. 224/2015, PS: Darya Ganj, Page No. 33 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
incident had taken place at Asaf Ali Road itself. He also deposed that he had not seen any accidental motorcycle.
39. PW-30 Mohd. Faisal was the brother of deceased who identified the dead body of deceased Shahnawaz at Mortuary, Maulana Azad Medical College vide his statement Ex. PW-30/A. In his cross-examination, he admitted that the photograph Ex. PW-9/DC was of his brother. He also deposed that he could not say, whether the photograph Ex. PW-9/DC was taken in the hospital or not. He denied the suggestion that he was deliberately not stating the true facts about the photograph Ex. PW-9/DC as the same was of his late brother Shahnawaz, which was taken in the hospital, on the intervening night of 05/06.04.2015.
40. PW-31 Ct. Nemi Chand, deposed that on 07.04.2015 he joined the investigation of the present case along with IO/Inspector Amrit Raj. He deposed on the lines of PW-18 Praveen Badsara. On putting leading question by Ld. Addl. PP for the State, he admitted that IO inspected the car at the parking and they found scratches of the tyre on the front left and right side bumper. He also admitted that there were scratches on the back side left door also. He also deposed that he could not say, if there was scratches on the back side bumper. In his cross- examination, he deposed that he could not say, if they reached at the aforesaid parking before 06:00 pm or after 06:00 pm. He also deposed that the aforesaid car was not shifted by the beat officer in his presence. He also deposed that the place of incident was at the cut of the street of Haj Manzil but he could not say, if the said FIR No. 224/2015, PS: Darya Ganj, Page No. 34 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
street goes towards Kali Masjid. He admitted that the place of arrest was a crowded place but he did not remember if the IO had called any shopkeeper or traffic police officials to join the investigation, at or before the arrest of accused Shahdab and Atif. He also deposed that he had not signed any paper at the time of arrest of accused Salimuddin @ Salim. He denied the suggestion accused Salimuddin was not arrested in the manner as deposed by him. He also denied the suggestion that he never joined the investigation at any point of time, in the present case.
41. PW-32 Sh. Mahavir Prasad, Record Keeper, Motor Licencing Office, Dwarka Authority, has proved the record of vehicle bearing registration no. DL-9SAP-8057 (new Activa DLX), registered in name of one Salma, D/o Sh. Allimuddin, R/o 1423/1, Kala Mahal, Gali Guddi wali, Delhi-110002, as Ex. PW-32/A. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
42. PW-33 Sh. Deepak Babu, was the parking attendant. He deposed that in the month of April 2015, he was working as a Parking Attendant at MCD Parking, Asaf Ali Road, Daryaganj. He further deposed that he did not remember the date, month, however, in the year 2015, police officials came to the parking and asked him to come PS Daryaganj, where his particulars were asked and he was discharged. This witness was cross-examined by Ld. Addl. PP for the State in which he denied the suggestion that on 07.04.2015, in the evening hours, police officials along with police personnels came to the parking where he used to FIR No. 224/2015, PS: Darya Ganj, Page No. 35 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
work. He also denied the suggestion that on 07.04.2015, police officials came with one Mohd. Shahdab, who got parked his Hyundai i20 Magna car bearing registration no. DL-2CAE-84226, in the MCD parking and that accused Mohd. Shahdab pointed out the said car which was standing on the first floor between pillar no. F24 and F25 and that he further told that on 05.04.2015 at around 11:30 pm, the said car touched with the motorcycle and that on the left and right side near the tyre of front bumper and back gate of the car, right side front door of the car and on the back side, there were scratches. This witness was confronted with his statement recorded under Sec. 161 Cr.PC, Ex. PW-33/A. He admitted that, at that time, cameras of the CCTV at the entry gate, was not functioning. He admitted his signature on Ex. PW-18/K. He denied the suggestion that when police officials seized the aforesaid car, he put his signature at point 'B' on Ex. PW-18/K. Voluntarily he deposed that when he was brought to PS Daryaganj, his signature was obtained on the blank paper. In his cross-examination on behalf of accused persons, he deposed that at the relevant time, the CCTV cameras were installed at entry and on the exit gate. He also deposed that the CCTV camera installed at the exit gate might had been working condition, at the relevant time.
43. PW-34 Mohd. Shadab, deposed that a car make i20 of sliver bearing registration no. DL-2CAE-8426 was purchased by his father late Sh. Saleem Ahmed in the year 2010, however, his father expired in the month of June, 2010. He further deposed FIR No. 224/2015, PS: Darya Ganj, Page No. 36 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
that the said car was used either by his brother namely Shahnawaz or by him. He also deposed that on 06.04.2015, some police officials came and took the said car and on that day the said car was parked near his house. He also deposed that on the same day, he handed over the death certificate of his father, Mark PW-34/A, voter i-card of his father, Mark PW-34/B, his voter i- card, Mark PW-34/C and photocopy of RC of aforesaid car, Mark PW-34/D to the police which was seized vide seizure memo Ex. PW-34/E. This witness was cross-examined by Ld. Addl. PP for the State in which he admitted that his younger sister namely Asma had been married with accused Shahdab son of Aminuddin Pehalwan, near Kala Masjid, Turkman Gate, Delhi-06. He denied the suggestion that his father had given the said car to accused Shahdab for his use. He also denied the suggestion that after the engagment of his sister Asma, the said car was being used by accused Mohd. Shadab and he possessed the same but he did not get it transferred in his name. He admitted that the said car was still in the name of his father. This witness was confronted with his statement recorded under Sec. 161 Cr.PC, Ex. PW-34/F. In his cross-examination on behalf of accused persons, he admitted that police did not record his statement.
44. PW-35 Inspector Mahesh Kumar, Draughtman, Crime Branch has proved scaled site plan, prepared by him at instance of Waseemuddin and Inspector Amrit Raj as Ex. PW-35/A. In his cross-examination, he deposed that he had not taken the signature of Waseemuddin on the rough notes. He denied the suggestion FIR No. 224/2015, PS: Darya Ganj, Page No. 37 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
that he had not visited the spot or met Waseemuddin at any point of time in relation to this case. He also denied the suggestion that he prepared the scaled site plan, Ex. PW-35/A at the instance of IO.
45. PW-36 SI M. K. Manoj, deposed that on 13.06.2015 he joined the investigation in the present case along with IO. He further deposed that on that day, IO made inquiry from Mohd. Shadab, S/o Saleem Ahmed (registered owner of offending car). He further deposed that Mohd. Shadab informed that his father had purchased the offending car bearing registration no. DL-2CAE-8426 in March, 2010 and the said car was gifted to accused Shahdab by his father, before this death. He also deposed that accused Mohd. Shadab, son of Aminuddin was husband of the sister of witness Shadab. He also deposed that since the car was in possession of accused Shahdab, witness Mohd. Shadab handed over photocopy of death certificate of his father, voter id card of his father, RC of car and his voter id card to the IO and same were seized by IO vide seizure memo Ex. PW-34/E. In his cross-examination, he denied the suggestion that witness Mohd. Shadab was not inquired in his presence on 13.06.2015. He also denied the suggestion that Mohd. Shadab had not handed over any of the document as claimed by him on 13.06.2015, in his presence.
46. PW-37 ASI Devender Kumar, has proved the previous conviction/involvement reports of accused persons namely Mohd. Waseem @ Bhura, Mohd. Shadab, Sheikh Ameenuddin @ FIR No. 224/2015, PS: Darya Ganj, Page No. 38 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
Ameenuddin Pehlwan, Shahjada Atif @ Mohd. Atif and Salimuddin @ Salim as Ex. PW-37/A to Ex. PW-37/E. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
47. PW-38 HC Vinod Kumar, has also proved the previous conviction/involvement reports of accused persons namely Mohd. Waseem @ Bhura, Mohd. Shadab, Sheikh Ameenuddin @ Ameenuddin Pehlwan, Shahjada Atif @ Mohd. Atif and Salimuddin @ Salim as Ex. PW-38/A to Ex. PW-38/E. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
48. PW-39 ACP Amrit Raj, was the Investigating Officer in the present case. He deposed that on 06.04.2015, on receiving DD No. 3A regarding admission of injured Shahnawaz at LNJPN hospital, who was declared dead by the doctor, he reached LNJPN Hospital where SI Ved Pal was found present on assignment of call regarding quarrel vide DD No. 2A. He further deposed that thereafter he proceeded for spot of incident where a aggressive crowd was found gathered. He further deposed that after registration of FIR, further investigation of this case was entrusted to him. He narrated about proceedings conducted by him at the spot viz. inspection of the spot of incident through Mobile Crime Team, seizure of clothes and MLC of deceased from SI Ved Pal, recording statements of brothers of deceased Wasimuddin and Suhail and Mohd. Fahad, son of deceased. He also narrated about preparation of site plan, Ex. PW-8/DA at FIR No. 224/2015, PS: Darya Ganj, Page No. 39 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
instance of brother of deceased Wasimuddin and seizure of damaged motorcycle make Honda CBZ Extreme bearing registration no. DL-1SR-5852 of deceased vide seizure memo Ex. PW-9/A and one Honda Activa Scooty bearing registration no. DL-9SAP-8057 vide seizure memo Ex. PW-9/B from near wall of Dargah, Faiz Illahi. He also narrated about conducting of postmortem on the body of deceased, recording of dead body identification statement of witness and handing over the dead body of deceased to his brother Wasimuddin. He also narrated about seizure of blood sample of deceased along with sample seal, sample of tissue for histopathology and viscera of deceased from concerned doctor at MAMC Mortuary. He also narrated about arrest of accused Mohd. Waseem @ Bhura on the basis of secret information from Bus Stand, Jama Masjid and proved his arrest memo, personal search memo and disclosure statement. He also narrated about arrest of accused persons namely Mohd. Atif @ Lala and Mhod. Shadab from Pul Mithai, Peeli Kothi, Lahori Gate, on the basis of secret information and proved their arrest memos, personal search memos and disclosure statements. He also narrated about arrest of accused Salimuddin @ Salim from Shanti Van Red Light, on the basis of secret information and proved his arrest memo, personal search memo and disclosure statement. He also narrated about seizure of car make Hyundai I-20 Magna bearing registration no. DL-2CAE-8426 from MCD Parking, in front of Delight Cinema at instance of accused Mohd. Shadab, mechanical inspection of car of accused persons as well as motorcycle of deceased and seizure of exhibits FIR No. 224/2015, PS: Darya Ganj, Page No. 40 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
i.e. one small container containing 'control paint taken from bumper of car' and one small container containing 'paint taken from silencer of motorcycle. He also narrated about arrest of accused Shiekh Aminuddin @ Aminuddin Pehalwan from ISBT Anand Vihar and proved his arrest memo, personal search memo and disclosure statement. He also narrated about recording of statement of Mohd. Kaif, minor son of deceased, seizure of PCR forms, seizure of ownership details of motorcycle bearing registration no. DL-1SR-5852 of deceased, seizure of ownership details of car bearing registration no. DL-2CAE-8426 of accused persons and seizure of ownership details of Activa Scooty bearing registration no. DL-9SAP-8057. He also narrated about obtaining of previous involvement details of accused persons from CRO Kamla Market, collection of postmortem report of deceased, collection of inspection report of vehicles from Physics division of FSL Rohini, deposit of tissue of deceased for histopathology test and sending the exhibits to FSL for expert opinion. He also narrated about preparation of scaled site plan of the spot of incident at the instance of Wasimuddin, seizure of log book containing conversation regarding PCR call vide DD No. 2A, seizure of documents of vehicles i.e. car and motorcycle as well as Activa Scooty from its registered owners and collection of CDRs of accused persons as well as Wasimuddin. He also narrated about collection of viscera report, Ex. PW-39/B from FSL, collection of copies or relevant DDs i.e. 3A, 4A, 5A & 7A vide seizure memo Ex. PW-39/C, application for conduction postmortem as Ex. PW-39/E, FSL report from biology division, FIR No. 224/2015, PS: Darya Ganj, Page No. 41 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
Ex. PW-39/F, FSL report from physic division as Ex. PW-39/G. He correctly identified accused persons during his deposition before the court. This witness was cross-examined at length on behalf of accused persons. In his cross-examination, he admitted that relatives of deceased were resident of same area. He also admitted that aggressive crowd had blocked the road. He also deposed that scooty was found about 30-40 feet away from the spot where incident of beating took place. He also deposed that he came to know about alleged scooty around 04:00 am from Fahad and Wasimuddin. He also deposed that no public person from the crowd agreed to join the investigation and he did not serve notice to those public persons who refused to join the investigation. He also deposed that no CCTV footage could be obtained covering the spot/incident since none of the cameras was working. He admitted that during his visit to the hospital, he did not meet any eyewitness. He also admitted that even no eyewitness met to SI Ved Pal in the hospital who reached to the hospital prior to him. He also deposed that he did not check the CCTV of the route which leads from Kamla Market to spot, to find the said scooty and the assailant sitting over it. He admitted that he did not procure the CDR of the mobile number of the Sohail to know his exact location at the time of incident and corroborate his story being the witness of the incident. He also deposed that he did not remember whether there was any CCTV camera installed in the parking from where the car in question had been recovered. He admitted that he did not conduct any videography or photography of the inspection of the car and FIR No. 224/2015, PS: Darya Ganj, Page No. 42 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
motorcycle. He admitted that he had not inquired from the Fahad and Kaif as to how they came to knew the name of assailant. He also deposed that he did not find any poster of accused Aminuddin during investigation. He also admitted that he did not inquired from the witnesses about the direction in which the assailants fled away from the spot by car. He denied the suggestion that he had recorded the false statement of public witnesses at his own in connivance with the then MLA Shoaib Iqbal and the then SHO PS Chandni Mahal to falsely implicate the accused persons in this case. He admitted that the rukka did not find mention of any scooty. He also admitted that no weapon had been used in the abovementioned crime. He denied the suggestion that since very inception of the investigation of this case, he knew that neither Waseem nor Sohail or the sons of the deceased were present at the spot and due to this reason, he did not brought this fact on the record to sustain the false case against the accused persons.
49. PW-40 Dr. Nitin, CMO, Lok Nayak Hospital deposed that on 04.04.2015 at about 11:55 pm, one patient namely Shahnawaz, aged about 40 years/male was brought to the hospital with alleged history of physical assault. He further deposed that necessary medical aid was given, CPCR was also given but the patient could not be revived. He proved MLC of deceased Shahnawaz as Ex. PW-4/A. In his cross-examination he admitted that there were visible injuries on the face and body of FIR No. 224/2015, PS: Darya Ganj, Page No. 43 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
patient. He also deposed that the MLC was prepared on the basis of casualty paper.
50. PW-41 Sh. Rajeev Ranjan, Nodal Officer, Tata Teleservices Ltd. proved CAF, voter id card & CDR for the period from 04.04.2015 to 06.04.2015 of mobile phone no. 9212189996 issued in name of Shahrukh Khan as Ex. PW-41/A to Ex. PW-41/A-2. He also proved CAF, PAN card and driving license & CDR for the period from 04.04.2015 to 06.04.2015 of mobile phone no. 9250679909 issued in name of Shahdab Khan as Ex. PW-41/B to Ex. PW-41/B-2. He also proved CAF, driving license & CDR for the period from 04.04.2015 to 06.04.2015 of mobile phone no. 3212387674 issued in name of Waseemuddin as Ex. PW-41/C to Ex. PW-41/C-2. He also proved certificate under Sec. 65B of The Indian Evidence Act with respect to abovesaid CDRs as Ex. PW-41/D. In his cross-examination, he admitted that the investigating agency did not call for the location chart of aforesaid mobile numbers. He also proved cell ID chart of Delhi circle as Ex. PW-41/DA (running into 55 pages).
51. After closing of prosecution evidence, separate statements of accused persons were recorded under Sec. 313 Cr.PC, wherein they denied all the charges against them. Accused persons claimed that they were innocent and were falsely implicated in this case. They further claimed that the four alleged eyewitnesses were the family members of the deceased and they deliberately deposed falsely under the influence of the then SHO Chandni FIR No. 224/2015, PS: Darya Ganj, Page No. 44 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
Mahal, Anil Sharma and ex-MLA Shoaib Iqbal as Anil Sharma and Shoaib Iqbal was having long enmity with their family due to this reason, they had been roped in this case. They further claimed that apart from these witnesses, other witnesses had deposed falsely at the behest of IO. They also claimed that alleged eyewitnesses namely Kaif, Fahad, Waseemuddin and Sohail were not the witnesses of the incident.
52. Accused persons have examined one defence witness. The nature and testimony of the sole defence witness has been briefly discussed as under:-
53. DW-1 Sh. Gyasuddin deposed that Nazra was his sister and she got married on 05.04.2015 and her marriage ceremony was celebrated in Community Centre, K-Block, Seelampur. He further deposed that accused Aminuddin was the son of his elder uncle and Shahdab was his son. He also deposed that accused Salimuddin was also his nephew. He further deposed that accused Aminuddin, Shahdab and Salimuddin attended marriage of his sister on 05.04.2015 and they reached at the Community Centre at around 09:00-09:30 pm and they left the community centre at around 01:00 am on intervening night of 05/06.04.2015. He proved nikahnama of his sister as well as true translation of the said nikahnama as Ex. DW-1/A & Mark DW-1/B. In his cross- examination, he deposed that no videography/photography of the aforementioned nikah ceremony was conducted. He admitted that he had no documentary evidence to show that accused Ameen, Shahdab and Salim attended the said wedding at Seelampur on FIR No. 224/2015, PS: Darya Ganj, Page No. 45 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
05.04.2015. He denied the suggestion that accused Ameen, Shahdab and Salim did not attend the wedding ceremony at Seelampur.
54. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State, Sh. Manish Kumar, Ld. Counsel for accused persons namely Waseem @ Bhura, Shahdab and Atif @ Lala and Sh. Sarfraz Asif, Ld. Counsel for accused Salimuddin @ Salim.
55. Ld. Addl. PP for the State argued that the prosecution has proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his submissions, he argued that all the four eye witnesses i.e. PW-2 Mohd. Fahad, PW-3 Mohd. Kaif, PW-7 Suhail and PW-9 Waseemudin have supported the case of the prosecution and they have corroborated each other's version. He also argued that all the four eye witnesses have also correctly identified the accused persons during the trial. He further argued that the paint of the car which was being driven by accused Mohd. Shadab has been found on the silencer of the motorcycle which was being driven by the deceased. He further argued that the eye witnesses had no enmity with the accused persons and hence there is no question of their false implication in the present case. He further argued that all the four eye witnesses are of sterling quality. He further argued that the defences taken by the accused persons are vague in nature. He further argued that PW-10 Dr. Jyoti Barwa, PW-12 FIR No. 224/2015, PS: Darya Ganj, Page No. 46 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
Dr. Amandeep Kaur and PW-13 Dr. Nidhi Mahajan have duly proved that the injuries caused to the deceased were sufficient to cause death in ordinary course of nature. He also argued that accused persons namely Shahdab, Atif Malik @ Lala and Saleemuddin @ Salim had refused to participate in the TIP proceedings. He also argued that there are only minor contradictions in the testimonies of prosecution witnesses which are bound to happen in a criminal trial and same shall not affect the case of the prosecution on merits. He further argued that the IO as well as the other police officials have duly proved the proceedings conducted by them. He also argued that since the prosecution has proved its case against all the accused persons beyond reasonable doubt, all the accused persons should be convicted for the offences under which charges have been framed against them.
56. Per Contra Ld. Defence Counsels for accused persons argued that the prosecution has miserably failed to prove its case against accused persons beyond reasonable doubt. To substantiate their points, they argued that the investigation in the present case has been conducted in an arbitrary manner. They argued that accused persons have been falsely implicated in the present case at the instance of the then SHO PS Chandni Mahal, Insp. Anil Sharma and the then MLA Shoaib Iqbal. They further argued that all the four alleged eye witnesses were not present at the spot of incident at the time of incident and they being family members of deceased, have been planted as eye witnesses later on. They also FIR No. 224/2015, PS: Darya Ganj, Page No. 47 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
argued that all the alleged four eye witnesses are tutored one and their testimonies are suffering from material contradictions. They further argued that IO has specifically deposed that no eye witness was found at the spot of incident as well as in the hospital and the FIR in the present case was registered on the basis of DD entry only. They also argued that PW-2 Mohd. Fahad has deposed that T-shirt of deceased was torn but it was not so. They also argued that identification of accused persons by PW-2 Mohd. Fahad and PW-3 Mohd. Kaif through their posters is doubtful as PW-39 IO ACP Amrit Raj and other police witnesses have specifically deposed that they never saw the posters of accused persons in the area. They also argued that PW-22 Ct. Girwar Singh deposed that the car was seized on the night of incident but it was not so. They also argued that PW-33 Deepak Babu and PW-34 Mohd. Shadab have turned hostile with respect to recovery of alleged car. They also argued that no CCTV footage of the area was collected by the IO. They also argued that the alleged incident took place in a crowded area where the traffic jam had taken place but IO has not examined any independent eyewitness to corroborate the prosecution story. They also argued that since the prosecution has failed to prove its case against the accused persons beyond the reasonable doubt, all the accused persons should be acquitted under all the sections of law under which charges have been framed against them.
57. In the present case, charges under Sec. 302/34 IPC & Sec. 302 IPC read with Sec. 149 IPC have been framed against all FIR No. 224/2015, PS: Darya Ganj, Page No. 48 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
accused persons. These Sections have been defined as follows:-
Section 302 IPC provides punishment for the commission of offence of murder which has been defined U/s 300 IPC.
300 Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1 When culpable homicide is not murder. Culpable homicide is not murder if the offendor, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person my mistake or accident.
The above exception is subject to the following provisos:-
First-That the provocation is not sought or voluntarily provoked by the offendor as an excuse for killing or doing harm to any person.
Secondly- That the provocation is not given by anything done in obedience to the law, or by a public FIR No. 224/2015, PS: Darya Ganj, Page No. 49 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
servant in the lawful exercise of the powers of the public servant.
Thirdly-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanations: Whether the provocation was grave and sudden enough to prevent the offence amounting to murder is a question of fact.
Exception 2: Culpable homicide is not murder if the offendor, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm then is necessary for the purpose of such defence.
Exception 3: Culpable homicide is not murder if the offendor, being a public servant or adding a public servant acting for the advancement of public justice, exceeds the power given to him by law and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4: Culpable homicide is not murder if it is committed without pre meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offendor's having taken undue advantage or acted in a cruel or unusual manner.
Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5: Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years suffers death or takes the risk of death with his own consent.
FIR No. 224/2015, PS: Darya Ganj, Page No. 50 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
149. Every member of unlawful assembly guilty of offence committed in prosecution of common object:-
If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
34. Acts done by several persons in furtherance of common intention When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
58. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. I have also considered the judgments relied upon by the Ld. Addl. PP for the State as well as Ld. Counsels for accused persons.
59. The present case is based on ocular evidence. PW-2 Mohd.
Fahad, PW-3 Mohd. Kaif, PW-7 Suhail & PW-9 Wasimuddin are the star witnesses of the prosecution as they are the eyewitnesses of the alleged incident, as per prosecution story. The testimonies of PW-2 Mohd. Fahad, PW-3 Mohd. Kaif, PW-7 Suhail & PW-9 Wasimuddin are to be appreciated as per established principles of law.
FIR No. 224/2015, PS: Darya Ganj, Page No. 51 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
60. PW-2 Mohd. Fahad and PW-3 Mohd. Kaif were aged about 13 years and 9 years respectively at the time of incident and at the time of recording of their testimonies their age was about 14 years and 10 years respectively and hence they were child witnesses. The testimonies of child witnesses are to be read in accordance with law laid down by Hon'ble High Court of Delhi and Hon'ble Supreme Court of India.
61. The Hon'ble Apex Court in case of Rakesh Kumar Vs. State, CRL. A. 513/1998 decided on 30.05.2014, the Hon'ble High Court, following the observations of the Hon'ble Apex Court in case Nivrutti Pandurang Korkte & Ors. Vs. State of Maharashtra, AIR 2008 SC 1460, has observed that:
"The testimony of the child witness has to be carefully scrutinized, before the same is believed by the court and if the court comes to a conclusion that the testimony of the child is reliable, trustworthy and truthful, then the same cannot be discarded, on the mere premise that the witness happened to be child witness.
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The only precaution, which the courts are required to take, is to ensure that the said child witness is free from any kind of tutoring or influence and his/her testimony also finds adequate corroboration. Once the testimony of the child witness is supported by other evidence on FIR No. 224/2015, PS: Darya Ganj, Page No. 52 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
record, then the same can be accepted without any kind of obstacle or hesitation."
62. In Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341, the Hon'ble Apex Court has held that:
" A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanor must be like any other competent witness and there is no likelihood of being tutored."
63. Thus, while appreciating the testimonies of PW-2 Mohd. Fahad & PW-3 Mohd. Kaif, this court has to ensure that their testimonies were free from any kind of tutoring or influence and their testimonies are corroborated by other prosecution witness and material evidence on record.
64. The first and foremost contention of the Ld. Counsels for accused person is that all the four alleged eyewitnesses were not present at the spot of incident at the time of incident and they are planted witnesses. Thus, first of all, this court has to decide FIR No. 224/2015, PS: Darya Ganj, Page No. 53 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
whether the said witnesses were present at the spot of incident at the time of incident or not and in order to ascertain this fact, this court has to consider the surrounding evidence on record.
65. In the present case, the first call at 100 number regarding the incident/quarrel was made by PW-9 Sh. Wasimuddin at 11:37:12 pm on 05.04.2015, on the basis of which PW-11 IO/SI Ved Pal reached at the spot of incident and after returning from the spot of incident, he made his arrival entry/DD entry 2A, recorded at 00:20 on 06.04.2015, Ex. PW-9/DA. As per location chart of mobile phone of PW-9 Sh. Wasimuddin, Ex. PW-41/DA, his location was at the spot of incident at the time of making call as well as at the time when PW-26 ASI Hazari Lal met him at 11:58 pm. Moreover, PW-26 ASI Hazari Lal has specifically deposed that he met PW-9 Sh. Wasimuddin at the spot of incident. Thus, PW-9 Sh. Wasimuddin was present at the spot of incident at the time of alleged quarrel/incident. On the basis of his visit at the spot of incident in pursuance of DD No. 2A, PW-11/IO SI Ved Pal prepared rukka in which he specifically mentioned that at about 11:30 pm, a touching had taken place between a car and a motorcycle and the motorcyclist (deceased) was with his family. Till that time, PW-11 IO/SI Ved Pal had not met with any of the eyewitness but from the public persons present at the spot, he came to know that family members of deceased were with him. Generally a family includes, parents, wife and children. In the present case, PW-2 Mohd. Fahad and PW-3 Mohd. Kaif are sons of deceased Shahnawaz who was the FIR No. 224/2015, PS: Darya Ganj, Page No. 54 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
motorcyclist and they have claimed themselves to be present with their deceased father at the time of incident. Thus, it has come on record that PW-2 Mohd. Fahad and PW-3 Mohd. Kaif were present at the spot of incident at the time of incident. As per the case of prosecution, deceased was taken to the hospital by PW-7 Sh. Suhail who was brother of deceased Shahnawaz. As per contents of MLC of deceased, Ex. PW-4/A, deceased was brought to the hospital with alleged history of physical assault at Dargah, Turkman Gate at about 11:20 pm by Sh. Suhail, brother of deceased. Thus, PW-7 Sh. Suhail was also present at the spot of incident at the time of incident. Thus, through the abovesaid facts and documents, prosecution has successfully proved that PW-2 Mohd. Fahad, PW-3 Mohd. Kaif, PW-7 Suhail & PW-9 Wasimuddin were present at the spot of incident at the time of incident and the accused persons have failed to put any dent on this aspect.
66. PW-2 Mohd. Fahad deposed that on 05.04.2015, he along with his younger brother PW-3 Mohd. Kaif and his father was coming back to their house from house of their grandmother on their motorcycle bearing registration no. DL-1SR-5852 which was being driven by their father deceased Shahnawaz. He further deposed that at about 11:30 pm when they reached near Turkman Gate, there was traffic jam on the road and at that time, one i-20 car of silver grey colour bearing registration no. DL-2CAE-8426 came from side of Ramleela ground and when his father was trying to take out the motorcycle from the jam, the motorcycle FIR No. 224/2015, PS: Darya Ganj, Page No. 55 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
slightly got struck with the said car. Similarly, PW-3 Mohd. Kaif corroborated the version of PW-2 Mohd. Fahad by deposing that on 15.04.2015, he along with his brother Fahad and his father was coming back from the house of their grandmother on motorcycle of their father and when they reached near Haj Manjil, there was traffic jam on the road. He further deposed that at that time his father trying to take out his motorcycle from the traffic jam and motorcycle got struck slightly with one i-20 car of silver grey colour bearing registration no. DL-2CAE-8426. Thus, there is complete consistency in the testimonies of PW-2 Mohd. Fahad & PW-3 Mohd. Kaif with respect to same set of facts and accused persons have failed to put any dent on the facts deposed by these witnesses.
67. PW-2 Mohd. Fahad deposed that accused Shahdab was driving the i-20 car while accused Ameen (since deceased) was sitting on the side seat of the car while few ladies were sitting on the back seat of the car. He further deposed that accused Shahdab started abusing in filthy language and thereafter he came out of the car and started beating his father. He further deposed that accused Ameen also abused them. PW-3 Mohd. Kaif corroborated the version of PW-2 Mohd. Fahad by deposing that after their motorcycle touched the car, accused Shahdab started abusing his father and thereafter he came out of the car and started beating his father. He further deposed that in the meantime Ameen Pahalwan (since deceased) also came out of the car and he joined Shahdab in giving beatings to his father. Thus, FIR No. 224/2015, PS: Darya Ganj, Page No. 56 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
there is complete consistency in the testimonies of PW-2 Mohd. Fahad & PW-3 Mohd. Kaif and they have corroborated each other's version. Accused persons have failed to put any dent on their veracity.
68. PW-2 Mohd. Fahad deposed that in the meantime, one red colour Activa scooty bearing registration no. DL-2SAP-8057 on which three boys were sitting also came there and all those three boys also started beating his father. He also deposed that accused Ameen Pahalwan (since deceased) came out of the car and started threatening to kill his father and said that 'he should know that he was the dada/don of the area'. Similarly, PW-3 Mohd. Kaif also deposed that in the meantime, three other persons also arrived there on red colour scooty bearing registration no. DL-9SAP-8057 and those three persons also gave beatings to their father. He further deposed that accused Ameen was shouting that he was the dada of the area and will kill his father. The scooty bearing registration no. DL-9SAP-8057 was seized from a spot adjacent to the spot of incident by PW-39/IO ACP Amrit Raj vide seizure memo, Ex. PW-9/B. Thus, there is complete consistency in the testimonies of PW-2 Mohd. Fahad & PW-3 Mohd. Kaif with respect to arrival of three accused persons at the spot on scooty and joining the other accused persons in the commission of offence by them and they have corroborated each other's version. Accused persons have failed to explain the availability of scooty bearing registration no. DL-9SAP-8057 at the spot of incident.
FIR No. 224/2015, PS: Darya Ganj, Page No. 57 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
69. PW-2 Mohd. Fahad deposed that in the meantime, his uncle PW-9 Wasim/Wasimuddin came there but the accused persons continued beating his father. He further deposed that accused Shahdab, Waseem @ Bhura and Atif @ Lala were continuously beating their father and accused Ameen Pahalwan was continuously shouting 'saale ko jaan se maar do'. Similarly, PW-3 Mohd. Kaif deposed that his father fell on the road and became unconscious and all the five persons continued beating his father and at that time his elder Chacha namely Wasim reached at the spot and tried to intervene but accused kept to beating him. At that stage, PW-3 Mohd. Kaif also started weeping. PW-9 Sh. Wasimuddin also deposed that at about 11:20 pm, he reached near Haj Manjil, Dargah Faiz Illahi, where he saw crowd and he stopped his motorcycle and parked it. He further deposed that when he entered the crowd, he saw that accused Ameen Pahalwal (since deceased), his son Shahdab, his nephew Saleem and his two associates Atif Lala and Bhura were beating his brother Shahnawaz brutally. He further deposed that they were kicking and fisting deceased Shahnawaz. He also deposed that his two nephews namely Fahad and Kaif were crying for help and accused Ameen Pahalwan was saying that 'maar do isko jaan se taki sabko pta chal jaye ki mai iss illake ka dada hu'. Thus, there is complete consistency in the testimonies of PW-2 Mohd. Fahad, PW-3 Mohd. Kaif & PW-9 Wasimuddin regarding the same set of fact and they have corroborated each other's versions. Accused persons have failed to put any dent on their veracity with respect to the abovesaid facts.
FIR No. 224/2015, PS: Darya Ganj, Page No. 58 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
70. PW-9 Wasimuddin deposed that after seeing the incident, he made a call to the police at 100 number and intervened in the matter and found that his brother had become unconscious and despite that all the abovesaid persons kept on beating his brother Shahnawaz. PW-41 Sh. Rajeev Ranjan, Nodal Officer, Tata Tele Services Ltd. has proved the CAF, CDR and location chart of mobile phone no. 9212387674 issued in name of PW-9 Sh. Wasimuddin. As per the CDR of said mobile phone number, Ex. PW-41/C-2, a call was made by Wasimuddin from his mobile phone at 100 number at 23:37:12 on 05.04.2015 and at that time his location was at point 18800 & 18802. As per the location chart of abovesaid mobile number, Ex. PW-41/DA, the points no. 18800 & 18802 are at the spot of incident. As per the PCR Form, Ex. PW-28/B, the call regarding quarrel was received at PCR Control Room at 23:38:53 hours, which was made by one Wasimuddin and the incident information was recorded as quarrel + injured. PW-26 ASI Hazari Lal, In-charge PCR Van Oscar-25 deposed that on the intervening night of 05/06.04.2015, on receiving call from Control Room at about 11:43 pm, he reached at the spot of incident i.e. Dargah, Turkman Gate where he found gathering of public persons and he met the caller Waseem, S/o Salauddin i.e. PW-9 Wasimuddin. Thus, through the testimony of PW-41 Sh. Rajeev Ranjan, through scientific evidence in form of CAF, CDR and location chart and testimony of PW-26 ASI Hazari Lal, prosecution has successfully proved that PW-9 Wasimuddin was present at the spot of incident at the time of making call as well as at the time of reaching of PCR Van FIR No. 224/2015, PS: Darya Ganj, Page No. 59 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
at the spot of incident. There is complete consistency in the testimony of PW-9 Wasimuddin with respect to his reaching at the spot of incident, making call to the Police at 100 number and his meeting with PW-26 ASI Hazari Lal at the spot of incident. Accused persons have failed to put any dent on his version through cross-examination.
71. PW-2 Mohd. Fahad deposed that in the meantime his younger uncle Suhail also reached at the spot and on seeing him, accused who had come on scooty, ran away leaving the scooty at the spot of incident while other accused left in the car. He also deposed that his uncle PW-7 Sh. Suhail removed his father to LNJP Hospital through rickshaw and he left to his grandparents house for informing them about the incident. Similarly, PW-3 Mohd. Kaif also deposed that after sometime his younger Chacha Suhail also reached there and on seeing his two uncles, all the five accused persons ran away from there. He also deposed that accused Ameen Pahalwan and Shahdab left the spot in i-20 car whereas three accused persons namely Saleem, Atif @ Lala and Waseem @ Bhura left the spot on foot. He also deposed that his younger Chacha removed his father to LNJP Hospital and he went to his grandmother's house to inform the incident. Similarly, PW-7 Suhail deposed that on 05.04.2015 at about 11:40-11:45 pm, he was accompanying baarat of his friend namely Anas and when he reached near Haj Manjil, he saw a quarrel near said place. He further deposed that he went near the crowd and saw that his elder brother Wasim was trying to FIR No. 224/2015, PS: Darya Ganj, Page No. 60 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
intervene while his another elder brother namely Shahnawaz was being badly beaten by accused Ameen Pahalwal (since deceased), Waseem @ Bhura, Atif @ Lala, Shahdab and Seleem who were already known to him. He further deposed that despite Shahnawaz had become unconscious, accused persons continued beating him. He also deposed that thereafter accused persons left the spot and he took his brother Shahnawaz to LNJP Hospital in a rickshaw where his brother was declared dead. He also deposed that he had seen his nephews namely Fahad and Kaif at the spot of incident, who were crying for help. Similarly, PW-9 Wasimuddin deposed that in the meantime his younger brother Suhail arrived there and thereafter two accused persons fled away from there in grey colour i-20 car and remaining offenders also ran away. He also deposed that his brother Suhail took Shahnawaz to LNJP Hospital in rickshaw. As per MLC, Ex. PW-4/A, deceased Shahnawaz was taken to hospital on 05.04.2015 at about 11:55 pm by his brother Suhail. Thus, there is complete consistency in the testimonies of PW-2 Mohd. Fahad, PW-3 Mohd. Kaif, PW-7 Suhail & PW-9 Sh. Wasimuddin with respect to same set of facts and they have corroborated each other's versions. There is also complete consistency with respect to the time of start of the quarrel, reaching of PW-7 Suhail and PW-9 Sh. Wasimuddin at the spot of incident, making of call at 100 number by PW-9 Sh. Wasimuddin and reaching to hospital at about 11:55 pm by PW-7 Suhail along with deceased Shahnawaz. Accused persons have failed to put any dent on the veracity and FIR No. 224/2015, PS: Darya Ganj, Page No. 61 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
versions of PW-2 Mohd. Fahad, PW-3 Mohd. Kaif, PW-7 Suhail & PW-9 Sh. Wasimuddin.
72. Ld. Counsels for accused persons have argued that the child witnesses i.e. PW-2 Mohd. Fahad & PW-3 Mohd. Kaif have failed to withstood the test of cross-examination as they have given contradictory answers to some of the questions. At the time of incident, the age of PW-2 Mohd. Fahad and PW-3 Mohd. Kaif was about 13 years and 9 years respectively and at the time of recording of their testimonies, their age were 14 years and 10 years respectively. Both the children had lost their father in front of their eyes and they cannot be expected to observe each and everything around the spot of incident. On the analysis of the testimonies of PW-2 Mohd. Fahad and PW-3 Mohd. Kaif, this court is of considered opinion that both the witnesses are competent witnesses and their testimonies are not suffering from any kind of tutoring and influence. Applying the law laid down by the Hon'ble Apex Court in 'Rakesh Kumar (supra) & 'Dattu Ram Sakhare (supra)', this court is of considered opinion that testimonies of both the children i.e. PW-2 Mohd. Fahad & PW-3 Mohd. Kaif are reliable and truthful and same cannot be discarded only on the ground that they are child witnesses.
73. Ld. Counsels for accused persons have argued that there was no eyewitness of the alleged incident and hence the FIR in the present case was registered on DD No. 2A. In the preceding paragraphs, the prosecution has already proved that the call at 100 number was made by PW-9 Sh. Wasimuddin and the FIR No. 224/2015, PS: Darya Ganj, Page No. 62 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
deceased was taken to LNJP Hospital by his brother PW-7 Suhail. PW-23 Ct. Ajay who was posted as Duty Constable at LNJP Hospital has also specifically deposed that the deceased was brought to the hospital on 05.04.2015 at about 11:50 pm by his brother Suhail. Thus, before 12:00 am, the IO/PW-11 SI Ved Pal had the knowledge that call at 100 number was made by PW-9 Sh. Wasimuddin who had met with PW-26 ASI Hazari Lal at about 11:58 pm on 05.04.2015 as per call log, Ex. PW-28/A and deceased was admitted to LNJP Hospital by PW-7 Suhail as per MLC of deceased, Ex. PW-4/A. PW-11 SI Ved Pal deposed that neither in the hospital nor in the mortuary any eyewitness was found and thereafter he prepared tehrir, Ex. PW-11/B. PW-11 SI Ved Pal has not explained as to why he did not make call to PW-9 Wasimuddin whose phone number was available with the PCR officials and the PCR Form and why he did not try to trace PW-7 Suhail whose presence was confirmed through MLC of deceased, Ex. PW-4/A as well as by PW-23 Ct. Ajay Chaudhary in the hospital. PW-7 Suhail has specifically deposed that due to death of his brother Shahnawaz, he had become unconscious in the hospital. The dead body of deceased Shahnawaz was not kept in the waiting area where PW-7 Suhail may have become unconscious and hence he could not have met the IO. On the perusal of charge-sheet, it is revealed that when SI Ved Pal went to the spot of incident in pursuance of call received with respect to the incident, he saw that the crowd was aggressive and serious law and order problem had arisen and the crowd was about to attack and to control the said crowd, the police staff from nearby FIR No. 224/2015, PS: Darya Ganj, Page No. 63 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
police stations was also called. PW-39 ACP Amrit Raj in his cross-examination also admitted that there was heavy crowd at the spot which was aggressive. From the facts and circumstances, it can be safely be inferred that since the crowd had become aggressive at the spot of incident and in order to pacify the crowd, the registration of FIR was necessary at the earliest and hence IO did not make much efforts to contact PW-7 Suhail and PW-9 Sh. Wasimuddin and IO prepared the rukka on the basis of DD No. 2A, Ex. PW-9/DA and got the present FIR registered. In these circumstances, the registration of FIR on the basis of DD entry does not indicate that there were no eyewitness of the alleged incident.
74. The FIR in the present case was registered at 02:30 am on 06.04.2015. PW-2 Mohd. Fahad deposed that on 06.04.2015 at about 04:30 am, he met with the police at Turkman Gate i.e. after about two hours of the registration of FIR. PW-3 Mohd. Kaif in his cross-examination also deposed that police officer made inquiry from him at about 04:30 am on 06.04.2015. PW-7 Suhail and PW-9 Wasimuddin have also deposed that at about 04:30 am on 06.04.2015, police met them at the spot of incident for inquiry. PW-39 IO/ACP Amrit Raj in his cross-examination also deposed that he met with the eyewitnesses for the first time at around 05:00 am on 06.04.2015. Thus, the eyewitnesses were found by the IO within two hours of registration of FIR, who fixed the identity of accused persons as well as of offending i-20 car within two hours of registration of FIR and keeping in view FIR No. 224/2015, PS: Darya Ganj, Page No. 64 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
the circumstances under which the present FIR was registered, it cannot be said that police planted the false eyewitnesses just within two hours of registration of FIR without any ground. Thus, the defence taken by the accused persons that PW-2 Mohd. Fahad, PW-3 Mohd. Kaif, PW-7 Suhail & PW-9 Sh. Wasimuddin are planted witnesses is vague in nature.
75. PW-2 Mohd. Fahad, PW-3 Mohd. Kaif and PW-9 Wasimuddin deposed that deceased was taken to hospital by PW-7 Suhail. PW-7 Suhail has also deposed that he took the deceased to hospital and later on his brother PW-9 Wasimuddin also came to the hospital. PW-9 Wasimuddin also deposed that he also reached hospital later on. PW-26 ASI Hazari Lal has recorded his call log, Ex. PW-28/A that he met PW-9 Wasimuddin at the spot of incident. Ld. Counsels for accused persons have argued that behaviour of PW-9 Wasimuddin is not natural as he had not accompanied PW-7 Suhail to the hospital for taking his brother and why he stayed at the spot of incident. Ld. Counsels for accused persons have also argued that why PW-7 Suhail and PW-9 Wasimuddin had not attacked the accused persons to save their brother. It is established principle of psychology that different persons may behave differently in a given situation. Hon'ble Supreme Court of India in judgment titled as 'Dilawar Singh Vs. State of Haryana, cited as (2015) 1 SCC 737' has observed as under:-
"We find no merit in the submission that Chanda Singh (PW-6) is to be disbelieved on FIR No. 224/2015, PS: Darya Ganj, Page No. 65 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
the ground that he has not acted in a particular manner to save his son. Every person who witnesses a murder reacts in his own way. On seeing Narinder Singh being attacked, PW-6 and Hakam Singh might have been shocked and stunned. Being two together, PW-6 and Hakam Singh might have perhaps thought of catching of assailants and appear to have chased them by following them in the car.
76. In Rana Pratap and Ors. Vs. State of Haryana, MANU/SC/0137/1983 : (1983) 3 SCC327, while dealing with the behaviour of the witnesses, this court opined thus:-
"6...Every person who witnesses a murder reacts in his own way. Same are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start for shouting help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter- attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. FIR No. 224/2015, PS: Darya Ganj, Page No. 66 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
77. In State of H. P. Vs. Mast Ram, MANU/SC/0746/2004 :
(2004) 8 SCC 660, it has been stated that there is no set rule that one must react in a particular way, for the natural reaction of man is unpredictable. Everyone reacts in his own way and, hence, natural human behaviour is difficult to prove by credible evidence. It has to be appreciated in the context of given facts and circumstances of the case. Similar view has been reiterated in 'Lahu Kamlakar Patil and Anr. Vs. State of Maharashtra, MANU/SC/1099/2012 : (2013) 6 SCC 417.
"17. Behaviour of the witnesses or their reaction would differ from situation to situation and individual to individual. Expectation of uniformity in the reaction of witnesses would be unrealistic and no hard and fast rule can be laid down as to the uniformity of the human reaction. The evidence of PW-6 is not to be disbelieved simply because he did not react in a particular manner. PW-6 explained how he happened to be there in the place of occurrence and cogently spoken about the occurrence and his evidence remained unscathed despite searching cross-examination".
78. In the present case, as per the testimonies of PW-9 Wasimuddin, he tried to intervene and save his brother and on reaching of PW-7 Suhail, accused persons ran away from the spot of incident. PW-9 Wasimuddin was not aware that his brother FIR No. 224/2015, PS: Darya Ganj, Page No. 67 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
Shahnawaz had expired while he was being taken to the hospital by PW-7 Suhail and he waited for the police at the spot of incident. Applying the law laid down by the Hon'ble Supreme Court of India in 'Dilawar Singh (supra), Rana Pratap (supra) & Mast Ram (supra)', this court is of considered opinion that different persons may behave differently in a given situation and non-attacking or not following the accused persons by PW-7 Suhail and PW-9 Wasimuddin cannot be said to unnatural and from their behaviour, it cannot be concluded that they were not present at the spot of incident. Moreover, minor nephews of PW-7 Suhail and PW-9 Wasimuddin namely PW-2 Mohd. Fahad and PW-3 Mohd. Kaif were also present at the spot of incident and in that situation, they may not have acted in a particular manner.
79. PW-2 Mohd. Fahad, PW-3 Mohd. Kaif, PW-7 Suhail and PW-9 Wasimuddin have correctly identified all the four accused persons in the court. Accused Mohd. Waseem @ Bhura was arrested on the identification of PW-9 Wasimuddin vide arrest memo, Ex. PW-9/E. Other accused persons namely Mohd. Shahdab, Atif @ Lala, Saleemuddin @ Saleem had refused to participate in the TIP proceedings and hence an adverse inference can be drawn against them under Sec. 114 of The Indian Evidence Act. PW-9 Wasimuddin deposed that on 22.09.2015, he came to Tis Hazari Court to know about the status of this case where he met with IO and identified accused persons who were present before the court. PW-7 Suhail also deposed on FIR No. 224/2015, PS: Darya Ganj, Page No. 68 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
22.04.2015, he along with his friend came to Tis Hazari Court and reached near court room no. 354A, he saw all the accused persons in police custody and identified them and told the same to the IO. IO has also recorded supplementary statement of PW-7 Suhail and PW-9 Wasimuddin with respect to identification of accused persons in the court. After refusal to participate in the TIP proceedings by the accused persons, identification by the witnesses in this manner is not barred by law. PW-2 Mohd. Fahad and PW-3 Mohd. Kaif have deposed that they had seen the posters of accused persons which does not seem to be probable as the police witnesses have denied any such posters of accused persons in the area. However, since the incident took place in presence of PW-2 Mohd. Fahad and PW-3 Mohd. Kaif, which lasted for several minutes and resulted in death of their father, the identification of accused persons by them in the court does not seem to be doubtful. This court is of considered opinion that the identity of accused persons have been established by the prosecution through the testimonies of PW-2 Mohd. Fahad, PW-3 Mohd. Kaif, PW-7 Suhail and PW-9 Wasimuddin.
80. As per prosecution story, the offending car bearing registration no. DL-2CAE-8426 was recovered from MCD Parking at instance of accused Shahdab. The recovery of the case property has to be proved by the prosecution beyond reasonable doubt in compliance with the law laid down in this regard by Hon'ble Supreme Court of India. Section 27 of Indian Evidence Act is an exception to Section 25 and Section 26 of the said Act.
FIR No. 224/2015, PS: Darya Ganj, Page No. 69 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
Section 27 is based on the doctrine of confirmation by subsequent events. The principle under Sec. 27 of Indian Evidence Act is based on the principle that if any fact is discovered on the basis of disclosure statement of accused, the discovery of said fact is a guarantee that the information given by the accused in his disclosure statement is true. Such information may be confessional or non-inculpating in nature but if any new fact is discovered from such information it will be considered as a reliable information.
81. The fact discovered on the basis of disclosure of statement of accused must be relevant facts. Such information must be given by the person who is accused of an offence and the recovery of article or discovery of fact must be based upon the information given by such accused. The identity of offending vehicle i.e. i-20 car bearing registration no. DL-2CAE-8426 along with its colour, make and model was fixed by PW-2 Mohd. Fahad, PW-3 Mohd. Kaif, PW-7 Suhail and PW-9 Wasimuddin on 06.04.2015 at about 04:30 am, when their statements under Sec. 161 Cr.PC was recorded by the IO. Accused Shahdab was arrested by the IO on 07.04.2015, vide arrest memo, Ex. PW-18/A and his disclosure statement, Ex. PW-18/E was also recorded by the IO in which he disclosed that he had parked the offending car bearing registration no. DL-2CAE-8426 at MCD multi level parking, in front of Delight Cinema, Asaf Ali Road, Delhi. On the basis of disclosure statement of accused Shahdab, IO seized the abovesaid car vide seizure memo Ex. PW-18/K, FIR No. 224/2015, PS: Darya Ganj, Page No. 70 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
from the MCD, multi-level parking, in front of Delight Cinema, Asaf Ali Road, Delhi at the instance of accused Shahdab. PW-39 IO/ACP Amrit Raj and PW-18 SI Praveen Badsara have duly proved the recovery of the abovesaid car vide seizure memo Ex. PW-18/K. PW-33 Sh. Deepak Babu, who was the parking attendant has turned hostile and did not support the said recovery. PW-34 Mohd. Shahdab (brother in-law of accused Shahdab), son of the owner of the car deposed that the said car was purchased by his father late Sh. Salim Ahmad. He deposed that on 06.04.2015, some police official came and took his car which was parked near his house. PW-34 Mohd. Shahdab had not made any complaint with respect to taking of his car by the police official and hence his turning of hostile does not affect the case of prosecution. Moreover, the abovesaid car was deposited in the Malkhana on 07.04.2015 and not on 06.04.2015 as deposed by PW-34 Mohd. Shahdab. PW-17 HC Ram Pal has duly proved the entry of register no. 19, Ex. PW-17/B with respect to deposit of car in the Malkhana on 07.04.2015. Thus, the prosecution has successfully proved the recovery of offending car bearing registration no. DL-2CAE-8426 at instance of accused Mohd. Shahdab.
82. The offending car bearing registration no. DL-2CAE-8426 was recovered at instance of accused Mohd. Shahdab and same was seized by IO vide seizure memo, Ex. PW-18/K. IO also seized the motorcycle of deceased bearing registration no. DL-1SR-5852, vide seizure memo Ex. PW-9/A. As per the FIR No. 224/2015, PS: Darya Ganj, Page No. 71 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
testimony of PW-2 Mohd. Fahad & PW-3 Mohd. Kaif, the motorcycle of deceased had struck with the abovesaid car and due to the same reason, the alleged incident had taken place. PW-14 Sh. Purushottam Singh, Assistant Director (Physic), FSL Rohini deposed that on 08.04.2015, he visited PS Daryaganj and inspected i-20 car bearing registration no. DL-2CAE-8426 and Hero Honda motorcycle bearing registration no. DL-1SR-5852. He also proved Crime Scene Report, Ex. PW-14/A. He also deposed that he collected the sample of paint smear from the silencer of the motorcycle bearing registration no. DL-1SR-5852 and from bumper of car bearing registration no. DL-2CAE-8426 and handed over the same to the IO with the suggestion to sent the same to laboratory for detailed examination. The abovesaid paint samples were sent by the IO to FSL Rohini and PW-14 Sh. Purushottam Singh prepared his detailed report, Ex. PW-39/G which is per-se admissible under Sec. 293 Cr.PC. As per the FSL Report, Ex. PW-39/G, paint sample Ex. 'C' and Ex. 'D' were examined physically under microscope, VISPEC and by using micro chemical test, it was found that they were similar in respect of colour, texture, microscopic appearance, appearance under UV light and solubility behaviour. Thus, the prosecution has successfully proved that the scratched paint of car bearing registration no. DL-2CAE-8426 was found on the silencer of motorcycle bearing registration no. DL-1SR-5852. Accused persons have failed to put any dent on the scientific evidence adduced by the prosecution in this regard.
FIR No. 224/2015, PS: Darya Ganj, Page No. 72 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
83. It has been argued on behalf of accused persons that no CCTV footage of spot of incident or the area was collected by the IO. IO had made efforts to collect the CCTV footage of the spot of incident and of the nearby area but the CCTV cameras were found inoperative. The number of CCTV cameras which were found inoperative as well as their details has been duly mentioned by the IO in DD No. 47B dated 05.04.2015, Ex. PW-8/A. Thus, since the CCTV cameras were not found in working condition and hence it does not affect the case of prosecution on merits.
84. Ld. Defence counsels for accused persons have argued that prosecution has failed to prove the motive of commission of offence and the benefit of same should be given to accused persons. Per contra, Ld. Addl. PP for the State has argued that PW-2 Mohd. Fahad & PW-3 Mohd. Kaif have specifically deposed that motorcycle of their father had touched with the car of accused persons due to which accused persons started abusing and beating their father and hence motive for the commission of the offence has been duly proved by the prosecution.
85. Motive is relevant under Sec. 8 of Indian Evidence Act. Motive is the force that moves a man to do a particular work. Generally there can be no action without any motive. Under Section 8 of Evidence Act, several factors including preparation, previous threat, previous altercation, previous litigation between the accused and the victim becomes relevant. The mere existence of motive is by itself is not an incriminating circumstance.
FIR No. 224/2015, PS: Darya Ganj, Page No. 73 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
Motive cannot be a substitute of proof, however, it is an corroborating factor in proving the case of the prosecution. The motive for the commission of offence is of vital importance in a criminal trial and in cases based on circumstantial evidence motive itself will be a circumstance which the Court has to consider deeply. The existence of motive which operates in the mind of perpetrator may not be known to others and hence it has to be inferred from the facts and circumstances of this case.
86. Hon'ble Supreme Court of India in judgment titled as Sheo Shankar Singh Vs. State of Jharkhand and Anr cited as (2011) 3 SCC 654 observed as under:-
"15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of accused is fairly well settle by a long line of decision of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon the circumstantial evidence on one hand and those were relies upon the testimonies of the eye witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into background in cases where the prosecution relies upon and eye witness account of the occurrence. That is because if the Court upon FIR No. 224/2015, PS: Darya Ganj, Page No. 74 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
a proper appraisal of the deposition of the eye witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye witnesses is found unreliable or unworthy of credit, existence of motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye witness account does not lend strength to the prosecution case or fortify the Court in its ultimate conclusion proof of motive in such a situation certainly helps the prosecution and supports the eye witnesses."
87. Hon'ble Supreme Court of India in Judgment tilted as Raghubir Singh Vs. State of Punjab cited as (1996) 9 SCC 233 observed as under:-
"7.... The motives may be minor but nonetheless they did provide occasion for attack on the deceased by the appellants. That apart, even in absence of motive, the guilt of culprit can be established in a given case if the other evidence on record is trustworthy in the absence of proof of FIR No. 224/2015, PS: Darya Ganj, Page No. 75 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
motive has never been considered as fatal to the prosecution case where the ocular evidence is found reliable".
88. In the present case, PW-2 Mohd. Fahad & PW-3 Mohd. Kaif have specifically explained the motive for the commission of offence. The alleged incident took place due to touching of motorcycle of deceased with the car of accused persons namely Mohd. Shahdab and Aminuddin @ Aminuddin Pahalwan (since deceased) and other accused persons being their relative/known joined them in the commission of offence. Thus, the prosecution has successfully proved the factum of quarrel between the accused persons and deceased as well as the motive for the commission of offence. The testimonies of PW-2 Mohd. Fahad & PW-3 Mohd. Kaif with respect to motive for commission of offence are clear, cogent and trustworthy. Applying the law laid down by the Hon'ble Supreme Court of India in judgment titled as Sheo Shankar Singh (supra) and Raghubir Singh (supra), this court is of considered opinion that accused persons got angry due to hitting of motorcycle of deceased with their car and same was sufficient to constitute motive for the commission of offence in the present case.
89. As per the case of prosecution, the alleged incident took place on 05.04.2015 between 11:20 to 11:30 pm at Asaf Ali Road, near Turkman Gate, Daryaganj, Delhi and as per MLC of deceased Shahnawaz, Ex. PW-4/A, he was taken to hospital by his brother PW-7 Suhail at about 11:55 pm on 05.04.2015, where FIR No. 224/2015, PS: Darya Ganj, Page No. 76 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
he was declared brought dead. PW-10 Dr. Jyoti Barwa has proved the postmortem report of deceased, Ex. PW-10/A. In the postmortem report, Ex. PW-10/A, PW-10 Dr. Jyoti Barwa has mentioned total 11 external injuries of different sizes on different parts of the body of deceased. In the postmortem report, Ex. PW-10/A, PW-10 Dr. Jyoti Barwa has also mentioned about the internal injuries. As per the postmortem report, Ex. PW-10/A, the scalp of deceased showed extravasation of blood in area of 2.2 cm x 1.4 cm and 1 cm x 0.5 cm corresponding to injury no. 5 & 6 respectively. Brain weight was 1316 gm. Subarachnoid hammorage was present over the right parietal region. Brain was found to be oedematous with flattening of gyri/obliteration of sulci. The viscera was preserved by Dr. Jyoti Barwa and was handed over to the IO. At the time of preparation of postmortem report, Ex. PW-10/A, PW-10 Dr. Jyoti Barwa had not given her final opinion regarding cause of death as viscera and relevant sample tissues were preserved for further examination.
90. Accused persons have taken the defence that deceased had died of heart attack and not due to the injuries allegedly caused by accused persons and accused persons are not responsible for the death of deceased. PW-10 Dr. Jyoti Barwa deposed that she observed that the deceased was having severe coronary artery disease, however, there were also multiple internal and external injuries on the body which were ante-mortem in nature, fresh prior to death in duration and caused by blunt force. In her cross- examination, PW-10 Dr. Jyoti Barwa denied the suggestion that the complainant side and the concerned DCP had pressurized her FIR No. 224/2015, PS: Darya Ganj, Page No. 77 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
to give report in a particular fashion to their liking. PW-12 Dr. Amandeep Kaur, Associate Professor, Maulana Azad Medical College, Delhi has proved her subsequent opinion regarding cause of death of deceased Shahnawaz, Ex. PW-12/A. She specifically deposed that death in this case occurred as a result of combined effect of brain damage and shock consequent upon blunt force trauma to the head and trunk respectively. Brain damage, shock and liver laceration were individually and collectively sufficient to cause death in ordinary course of nature. She also deposed that all injuries were ante-mortem in nature, fresh in duration prior to death and were caused by blunt force. The injuries on the body of deceased were consistent with having produced in an assault (as already mentioned in postmortem report). PW-13 Dr. Nidhi Mahajan has proved her report Ex. PW-13/A regarding examination of tissues of deceased. In her cross-examination, PW-13 Dr. Nidhi Mahajan deposed that if plaque ruptures in case of partial/complete blockage, one can have heart attack. However, PW-13 Dr. Nidhi Mahajan has not deposed that heart attack has taken place in the present case. Accused persons through the cross-examination of PW-10 Dr. Jyoti Barwa, PW-12 Dr. Amandeep Kaur and PW-13 Dr. Nidhi Mahanjan have failed to establish that the death of deceased took place due to heart attack. Prosecution through the testimonies of PW-10 Dr. Jyoti Barwa, PW-12 Dr. Amandeep Kaur and PW-13 Dr. Nidhi Mahanjan has successfully proved that cause of death in the present case was combined effect of brain damage and shock consequent upon blunt force trauma to the head and trunk FIR No. 224/2015, PS: Darya Ganj, Page No. 78 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
respectively and the brain damage, shock and liver laceration were individually and collectively sufficient to cause death in ordinary course of nature. The injuries mentioned in the postmortem report were consistent with the assault cause upon the deceased. Thus, the case of the prosecution squarely falls within the purview of clause 'thirdly' of Section 300 IPC.
91. Ld. Counsels for accused have argued that motorcycle of accused bearing registration no. DL-1SR-5852 and alleged Activa scooty bearing registration no. DL-9SAP-8057 were not found at the spot of incident and same were planted by the IO later on. They argued that PW-20 HC Ravinder Kumar, Photographer has specifically deposed that both the vehicles (car and motorcycle) were not present at the spot while PW-29 Inspector Rupesh Kumar Khatri has specifically deposed that he had not seen any accidental motorcycle at the spot of incident. PW-39 IO/ACP Amrit Raj has proved the seizure memos of motorcycle bearing registration no. DL-1SR-5852 & Activa scooty bearing registration no. DL-9SAP-8057 Ex. PW-9/A & Ex. PW-9/B respectively and the said seizure memos have been signed by PW-9 Sh. Wasimuddin and PW-22 Ct. Giravar Singh and both the witnesses have also deposed about the availability of motorcycle bearing registration no. DL-1SR-5852 & Activa scooty bearing registration no. DL-9SAP-8057 at the spot of incident. Moreover, PW-2 Mohd. Fahad and PW-3 Mohd. Kaif have also deposed about the availability of motorcycle bearing registration no. DL-1SR-5852 & Activa scooty bearing registration no. DL-9SAP-8057 at the spot of incident. PW-17 FIR No. 224/2015, PS: Darya Ganj, Page No. 79 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
HC Rampal the then MHC(M) has also specifically deposed that on 06.04.2015, one motorcycle bearing registration no. DL-1SR-5852 make Hero Honda CBZ and Activa scooty bearing registration no. DL-9SAP-8057 along with six sealed pullandas were deposited at Malkhana by the IO and he made entries in this regard at serial no. 2210 in register no. 19, Ex. PW-17/A. Now the question arises as to how PW-20 HC Ravinder Kumar and PW-29 Inspector Rupesh Kumar Khatri could not see the motorcycle bearing registration no. DL-1SR-5852 & Activa scooty bearing registration no. DL-9SAP-8057 at the spot of incident. PW-20 HC Ravinder has proved the 12 photographs clicked by him exhibited as P-1 to P-12 along with its negatives Ex. PW-20/A. The said photographs were clicked during night time and in the said photographs, electric pole lights, road where circles/signs had been made by the police with chalk and board of Turkman Gate are visible. PW-35 Inspector Mahesh Kumar has proved scaled site plan, Ex. PW-35/A, prepared by him. On the perusal of scaled site plan, Ex. PW-35/A it is revealed that the alleged incident of touching of motorcycle and car took place at point 'A' while at point 'B' deceased Shahnawaz was assaulted by the accused persons. It seems that PW-20 HC Ravinder has clicked the photographs of point 'A' & 'B' and he has completely ignored point 'C' & 'D'. As per the scaled site plan, Ex. PW-35/A, motorcycle bearing registration no. DL-1SR-5852 was found at point 'C' on the Pucka road side (on the footpath) which was situated at a distance of about 2125 cm from point 'A' & 'B'. The FIR No. 224/2015, PS: Darya Ganj, Page No. 80 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
Activa scooty bearing registration no. DL-9SAP-8057 was found on Pucka road at point 'C' which was situated at a distance of about 1420 cm in a different direction from point 'A' & 'B'. In view of the testimonies of PW-2 Mohd. Fahad, PW-3 Mohd. Kaif, PW-9 Sh. Wasimuddin & PW-39 ACP Amrit Raj coupled with the proving of entries of register no. 19 by PW-19 HC Ram Lal, this court is of considered opinion that the motorcycle bearing registration no. DL-1SR-5852 as well as Activa scooty bearing registration no. DL-9SAP-8057 were available at some distance from the spot of incident as mentioned in the scaled site plan, Ex. PW-35/A and testimonies of PW-20 HC Ravinder and PW-29 Inspector Rupesh Khatri have not affected the case of prosecution on merits.
92. Accused persons have taken the defence that they have been falsely implicated in the present case by the family members of deceased at instance of the then SHO PS Chandni Mahal namely Anil Sharma and ex-MLA Shoaib Iqbal. However, accused persons have not led any evidence through the testimony of any witness nor they have produced any document to show that accused persons had enmity with the then SHO PS Chandni Mahal namely Anil Sharma and ex-MLA Shoaib Iqbal. Even if, it is presumed that accused persons had enmity with then SHO PS Chandni Mahal namely Anil Sharma and ex-MLA Shoaib Iqbal, it cannot presumed that the sons and brothers of deceased will falsely implicate the accused persons at their instance and they will allow the real culprit to go un-punished. Thus, the defence taken by the accused persons is without any substance and vague FIR No. 224/2015, PS: Darya Ganj, Page No. 81 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
in nature and accused persons have failed to put any dent on the prosecution story through this defence.
93. Accused persons namely Shahdab, Salimuddin and Aminuddin (since deceased) have taken the plea of alibi. The plea of alibi under Sec. 11 of The Indian Evidence Act, 1872 is to be proved beyond reasonable doubt by the accused person in the same manner as the case is to be proved by the prosecution. DW-1 Sh. Gyasuddin deposed that on 05.04.2015 his sister Nazra got married at Community Centre, Seelampur and accused Shahdab, Salimuddin and Aminuddin (since deceased) had reached the Community Centre to attend the marriage at around 09:00-09:30 pm and they left the Community Centre at about 01:00 am on the intervening night of 05/06.04.2015. He also proved Nikahnama of his sister as Ex. DW-1/A along with its true translation Ex. DW-1/B. The said Nikahnama, Ex. DW-1/A does not bear the signature of any of accused as witness of said Nikah. The said marriage took place on the intervening night of 05/06.04.2015 at Seelampur, Delhi. Since the marriage had taken place at Delhi and that too in the year 2015, the videography/photography of the said marriage must have taken place. DW-1 Sh. Gyasuddin has not proved any of the photographs or the video footage of the marriage showing the presence of accused persons namely Shahdab, Salimuddin and Aminuddin at Community Centre, Seelampur, Delhi. Accused persons have also not produced any other relevant admissible evidence to prove that they were not present at the spot of incident at the time of incident or that they were present at FIR No. 224/2015, PS: Darya Ganj, Page No. 82 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
Community Centre, Seelampur, Delhi at the time of incident. Thus, accused persons namely Shahdab, Salimuddin @ Salim and Aminuddin have failed to prove plea of alibi in their favour.
94. Ld. Defence counsels for accused persons have argued that there are material contradictions in the testimonies of PWs regarding the time for which the deceased was assaulted, tearing of the clothes of deceased and oozing of blood from the body of deceased etc. and hence the testimonies of PW-2 Mohd. Fahad, PW-3 Mohd. Kaif, PW-7 Sh. Suhail & PW-9 Sh. Wasimuddin cannot be relied upon. Ld. Addl. PP for the State has argued that some minor omissions/contradictions with respect to the facts/proceedings are bound to happen in any case and these cannot be considered fatal to the case of the prosecution as per the law laid down by the Hon'ble Supreme Court of India.
95. In Hon'ble Supreme Court of India in Judgement titled as Rammi @ Rameshwar Vs. State of Madhya Pradesh cited as (1999) 8 SCC 649 observed as under:-
" 24. When an eye witness is examined at length, it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant detail. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non- discrepant. But Court should bear in mind that it is only when the discrepancy in the evidence of witness are so incompatible with the credibility of FIR No. 224/2015, PS: Darya Ganj, Page No. 83 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
version that the Court is justify in Jettisoning his evidence. But true serious view to be adopted on mere variations falling in the narration of any incident (either as within the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
25. It is common practice in the Trial Courts to make out contradictions from a previous statement of a witness for confronting him during cross-
examination. Merely because there is inconsistency in the evidence, it is not sufficient to impair the credit of the witness. No doubt Section 155 of Evidence Act provides for impeaching the credit of evidence by proof of an inconsistent former statement. But a reading of Section would indicate that all inconsistent statements are not sufficient to impeach the credit of witness."
96. Similarly Hon'ble Supreme Court of India in Judgement titled as Achara Parambath Pradeepan and Ors. Vs. State of Kerala 2007 (1) Crimes 54 SC has held that "it would be too much to expect to any person to say anything in his statement before the police. To see a person by face is one thing but to know him FIR No. 224/2015, PS: Darya Ganj, Page No. 84 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
by name is a different. Some improvements in the testimony of witness could not lead to rejection thereof in its entity".
97. Similary Hon'ble Supreme Court of India in Judgement titled as Waman Vs. State of Maharashtra 2011 Cr.L.J 4827 (SC) has held that "the testimony of the witness cannot be disbelieved merely because of some omission in the statement u/s 161 Cr.P.C and the evidence before the Court".
98. In the present case, PW-2 Mohd. Fahad & PW-3 Mohd. Kaif were minor at the time of incident as well as at the time of recording of their testimonies in the court. The alleged incident took place at night time. The trauma of minor witnesses i.e. PW-2 Mohd. Fahad & PW-3 Mohd. Kaif can be understood. PW-7 Sh. Suhail & PW-9 Sh. Wasimuddin reached at the spot while the incident was going on. There are only some minor contradiction in the testimonies of witnesses and there are no material contradictions in their testimonies. Applying the law laid down by Hon'ble Supreme Court of India to the facts of this case in judgments titled as 'Rammi @ Rameshwar (Supra), Achara Parambath Pradeepan and Ors. (Supra) & Waman (Supra)', this court is of considered opinion that such minor contradictions as argued by the Ld. Defence counsels are bound to happen in a criminal trial and hence such minor contradictions do not affect the case of the prosecution.
FIR No. 224/2015, PS: Darya Ganj, Page No. 85 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
99. Ld. Defence counsels have argued that the alleged incident took place at a public place where traffic jam had taken place and the incident must have been witnessed by a number of persons but the IO had not joined any independent eyewitness in the investigation. They also argued that PW-2 Mohd. Fahad & PW-3 Mohd. Kaif are the sons of deceased Shahnawaz while PW-7 Sh. Suhail & PW-9 Sh. Wasimuddin are the brothers of deceased and since they are interested witnesses, their testimonies cannot be relied upon.
100. It is true that the alleged incident took place at a public place and as per the contents of FIR as well as the testimony of PW-11 IO/SI Ved Pal, PW-23 ASI Hazari Lal & PW-39 IO/ACP Amrit Raj, a number of public persons were found present at the spot of incident. However, it is also true that it is always not possible to join public witnesses in the investigation as the public witnesses are reluctant to join the investigation as they have to appear before the IO and Courts in future dates if they join the investigation.
101. Hon'ble Supreme Court of India in Judgement titled as Ikram Ansari Vs. State of (NCT of Delhi) has observed as under:-
"33. It was contended by Ld. Counsel for the appellant Mehfooz, Farid and Nadim that no public witness was joined in the police team before alleged recovery of stolen cash and articles from the house of appellants. As noted earlier, the recovery from the aforesaid appellants was made pursuant to the FIR No. 224/2015, PS: Darya Ganj, Page No. 86 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
disclosure statements made by them, while in police custody.
It is true that no public witness was joined in the police party before the blood stained knife was recovered. We cannot be oblivious to the reluctance of a common man to join such raiding parties organized by the police, lest they are compelled to attend Police Station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit. Hence, no adverse inference on account non-joining of public witnesses in such raids can be drawn in the instant case."
102. Similarly Hon'ble Supreme Court of India in Judgment titled as State of NCT of Delhi Vs. Sunil & Another cited as 2000 VIII AD (SC) 613 observed as under:-
"Hence it is fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down as a proposition of law that the documents FIR No. 224/2015, PS: Darya Ganj, Page No. 87 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
so prepared by the Police Officer must be treated as tainted and the recovery evidence unreliable. The Court has to consider the evidence of the Investigating Officer to depose to the fact of recovery based on the statement elicited from accused on its own worth".
103. PW-37 ASI Devender Kumar & PW-38 HC Vinod Kumar have proved the previous involvement record of accused Mohd. Waseem @ Bhura, Mohd. Shahdab, Salimuddin @ Salim Aminuddin @ Aminuddin Pahalwan (since deceased), Mohd. Atif @ Lala, exhibited as Ex. PW-37/A to Ex. PW-37/E and PW-38/A to Ex. PW-38/F. Keeping in view the previous involvement record of accused persons, the public persons present at the spot may not have joined the investigation. IO has specifically deposed that he had made efforts to join the public persons in the investigation but none agreed. Applying the law laid down by the Hon'ble Supreme Court of India in 'Ikram Ansari (supra) & Sunil & Another (supra)', this court is of considered opinion that non-joining of any independent eyewitness in the present is not fatal to the case of the prosecution.
104. It is true that PW-2 Mohd. Fahad & PW-3 Mohd. Kaif are the sons of deceased while PW-7 Sh. Suhail & PW-9 Sh. Wasimuddin are the brothers of deceased Shahnawaz. No independent eyewitness joined the investigation despite efforts made by the IO. The testimonies of such witnesses are to be read FIR No. 224/2015, PS: Darya Ganj, Page No. 88 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
in accordance with the law laid down by the Hon'ble Supreme Court of India in this regard.
105. The Hon'ble Apex court in Kulesh Mondal Vs. State of W.B. reported in (2007) 8 SCC 578 has held as follows:
" 10. We may also observe that the ground that the (witnesses being close relatives and consequently being partisan witnesses) should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh Vs. State of Punjab (AIR 1953 SC
364) in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose. J. it was observed : (AIR p. 366, para 25) '25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses required corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fact that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur.
This is a fallacy common to many criminal FIR No. 224/2015, PS: Darya Ganj, Page No. 89 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
cases and one which another Bench of this Court endeavoured to dispel in Rameshwar Vs. State of Rajasthan (AIR 1952 SC 54). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.' Again in Masalti Vs. State of U.P. (AIR 1965 SC 202) Hon'ble Apex Court observed as under :
" 14. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence : but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
106. It has already been proved by the prosecution that PW-2 Mohd. Fahad, PW-3 Mohd. Kaif, PW-7 Sh. Suhail & PW-9 Sh. Wasimuddin were present at the spot of incident at the time of incident. It has also been brought on record that though public FIR No. 224/2015, PS: Darya Ganj, Page No. 90 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
persons were present at the spot but none agreed to join the investigation. It has also been brought on record by the prosecution that the abovesaid eyewitnesses and the accused persons had no previous enmity. The abovesaid witnesses had lost their relative and in these circumstances, they will depose against only those persons who were responsible for the commission of offence. The abovesaid witnesses were not going to get any benefit by false implication of accused persons. In these circumstances, applying the law laid down by Hon'ble Supreme Court of India in 'Kulesh Mondal (supra) & Masalti (supra)' this court is of considered opinion that testimonies of PW-2 Mohd. Fahad, PW-3 Mohd. Kaif, PW-7 Sh. Suhail & PW-9 Sh. Wasimuddin are clear, cogent and trustworthy and same cannot be discarded only on the ground that they are the relatives of deceased.
107. Charges under Sec. 302/34 IPC as well as Sec. 302 IPC read with Sec. 149 IPC have been framed against the accused persons. In the present case, as per the testimonies of PW-2 Mohd. Fahad & PW-3 Mohd. Kaif, first of all accused Mohd. Shahdab started abusing and beating deceased Shahnawaz and thereafter accused Aminuddin @ Aminuddin Pahalwan (since deceased) also joined him and he also exhorted for killing Shahnawaz. As per testimonies of PW-2 Mohd. Fahad & PW-3 Mohd. Kaif, accused persons namely Mohd. Waseem @ Bhura, Salimuddin @ Salim & Mohd. Atif @ Lala also reached there and started beating deceased, which shows that there was meeting of mind of all the five accused persons and they had FIR No. 224/2015, PS: Darya Ganj, Page No. 91 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
shared common intention. An unlawful assembly has always an object for achieving which some act is to be done by the members of unlawful assembly. Since earlier only two accused persons i.e. Mohd. Shahdab and Aminuddin @ Aminuddin Pahalwan were already beating the deceased and other three accused persons joined them thereafter, it cannot be said that it was an unlawful assembly, which had an object to be achieved. However, prosecution has successfully proved that there was meeting of mind of all the five accused persons and they had shared common intention to commit the offence. Thus, prosecution has successfully proved the ingredients of offence punishable under Sec. 302/34 IPC against accused persons but prosecution could not prove the offence punishable under Sec. 302 IPC read with Sec. 149 IPC.
108. The basic purpose of recording of statement of accused under Sec. 313 Cr.P.C is to put in the incriminating evidence brought on record against him by the prosecution and to accord him an opportunity to explain the circumstances appearing against him.
109. Hon'ble Supreme Court of India in Judgment titled as 'Neel Kumar Vs. State of Haryana cited as (2012) 5 SCC 766' has held that:-
it was the duty of the accused to explain incriminating circumstances proved against him while making statement u/s 313 Cr.P.C. Keeping silent and not furnishing any explanation for such FIR No. 224/2015, PS: Darya Ganj, Page No. 92 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
circumstance was an additional link in chain of circumstances to sustain charges against you.
110. Similary Hon'ble Supreme Court of India in Judgment titled as Phula Singh Vs. State of Himachal Pradesh AIR 2014 SC 1256 has held that:-
if the accused remains silent or in complete denial, the Court can take adverse intense against you.
111. Hon'ble Supreme Court of India in judgment titled as Sidhartha Vashisht Vs. State (NCT of Delhi) cited as (2010) 6 SCC 1 while convicting the accused and taking adverse inference against him with respect to the false answers given by him u/s 313 Cr.P.C observed as under:-
"130. This Court has time and again held that where an accused furnishes false answers as regards proved facts, the Court ought to draw an adverse inference qua him and such an inference shall become an additional circumstance to prove the guilt of the accused in the present case, the appellant Manu Sharma has inter alia has taken false pleas in reply to question no. 50, 54, 55, 56,57,64, 65,67,72,75 and 201 put to him under Section 313 of the Code."
112. In the present case, the statements of accused persons under Sec. 313 Cr.PC were recorded and in reply to the most of the questions put to them they have stated either 'I do not know', 'It is incorrect' or 'It is matter of record'. In answers, they have FIR No. 224/2015, PS: Darya Ganj, Page No. 93 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
also stated that they have been falsely implicated in the present case by the family members of deceased at instance of the then SHO PS Chandni Mahal Anil Sharma and ex-MLA Shoaib Iqbal but they have failed to prove the said defence. Except the plea of false implication by the then SHO PS Chandni Mahal Anil Sharma and ex-MLA Shoaib Iqbal, accused persons have not taken any specific defence either in the cross examination of prosecution witnesses or in their statements recorded under Sec. 313 Cr.PC and the defence of alibi taken by accused persons namely Aminuddin @ Aminuddin Pahalwan (since deceased), Mohd. Shahdab & Salimuddin @ Salim through examination of DW-1 Sh. Gyasuddin has not been proved by them, as per established principles of law. The answers given by the accused persons are evasive in nature and they have not explained as to why, the prosecution witnesses have deposed against them. In these circumstances, applying the law laid down by Hon'ble Supreme Court of India in 'Neel Kumar (supra), Phula Singh (Supra and Sidharth Vashisth (supra)' this court is of considred opinion that accused persons have not furnished any explanations for these circumstances hence these circumstances are additional link in the chain of circumstancial evidence against them.
113. Ld. Defence counsels have argued that the prosecution has failed to prove its case beyond resonable doubts and the accused persons have been successful in creating doubts on the prosecution story, therefore, the benefit should be given to the accused persons. Proving a case beyond resonable doubts does not mean that all the facts should be established perfectly. The FIR No. 224/2015, PS: Darya Ganj, Page No. 94 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
concept of beyond resonable doubts is to be seen from the point view of a rational person who will resonably and honestly analyse and examine the facts before him.
114. The Hon'ble Apex Court in Inder Singh & Anr. Vs. The State (Delhi Administration) reported in (1978) 4 SCC 161 (page 162 para 2) has held as follows:
" 2. Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rate innocent from being punished, many, guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction. Why fake up ? Because the court asks for manufacture to make truth look true ? No, we must be realistic."
FIR No. 224/2015, PS: Darya Ganj, Page No. 95 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
115. Similarly Hon'ble Supreme Court of India in judgment titled as Himachal Pradesh Administration Vs. Om Prakash cited as AIR 1972 SC 975 observed as under:-
".........The benefit of doubt to which the accused is entitled is a reasonable doubt- the doubt which a rational thinking man will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy-though unwittingly it may be or is afraid of the logical consequences, if the benefit was not given or as one great Judge said " it is not the doubt of the vacillating mind that has not the moral courage to decide by shelter itself in a vain and the ideal scepticism". It does not mean that the evidence must be so strong to exclude even a remote possibility that the accused has not committed the offence. If that were so, the law would fail to protect the society as in no case such a possibility be excluded. It will give room for fanciful conjectures or untenable doubt and will result in deflecting the course of justice if not thwarting altogether........The mere fact that there is remote possibility in favour of accused is itself sufficient to establish the case beyond reasonable doubts. This then is approach"
116. Applying the law laid down by Hon'ble Supreme Court of India in 'Inder Singh & Anr. (supra) & Om Prakash (supra), this FIR No. 224/2015, PS: Darya Ganj, Page No. 96 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
court is of considered opinion that prosecution has proved its case against accused persons beyond reasonable doubt.
117. To prove the prosecution case, the testimony of the prosecution witnesses must be reliable. It is not the quantity but the quality of the testimony of the witness that helps a court in arriving at a conclusion in any case. The test in this regard is that the evidence adduced by the parties must have a ring of truth. In a criminal trial, the prosecution has to prove the case beyond reasonable doubt and it is possible only when the testimony of prosecution witnesses is cogent, trustworthy and credible. To secure a conviction of accused, the testimony of the prosecution witness must be of sterling quality.
118. In case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21', it is held that :
"22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the FIR No. 224/2015, PS: Darya Ganj, Page No. 97 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstances should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of very other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only, if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness' whose version can be accepted by the court without any corroboration and based on which the FIR No. 224/2015, PS: Darya Ganj, Page No. 98 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
119. Similarly, in case of Ramdas Vs. State of Maharashtra, (2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with cast of shadow of doubt over her veracity. It the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not fine her evidence to be of such quality."
120. Thus, from the above said judgments, it is clear that the version of the witness should be natural one and it must corroborate the prosecution case. Such version must match with FIR No. 224/2015, PS: Darya Ganj, Page No. 99 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
the testimony of other prosecution witnesses. It should be of such a quality that there should not be any shadow of doubt upon it.
121. Applying the law laid down by the Hon'ble Apex Court in Rai Sandeep (supra) and Ramdas (Supra), this court is of the considered opinion that PW-2 Mohd. Fahad, PW-3 Mohd. Kaif, PW-7 Sh. Suhail & PW-9 Sh. Wasimuddin are witnesses of sterling quality as their versions are natural and they have also withstood the test of cross examination. This court is of the considered opinion that the testimonies of eyewitnesses PW-2 Mohd. Fahad, PW-3 Mohd. Kaif, PW-7 Sh. Suhail & PW-9 Sh. Wasimuddin are clear, cogent, credible, trustworthy and consistent and have been corroborated by the other prosecution witnesses, medical & scientific evidence on record and the circumstances.
122. Since accused Aminuddin @ Aminuddin Pahalwan exhorated other accused persons to kill deceased Shahnawaz and the other accused persons assaulted deceased in pursuance of said exhoration as all the accused persons shared common intention, the prosecution has successfully proved that the accused persons intended to kill deceased Shahnawaz who was killed by the accused persons and hence the case of the prosecution squarely falls within the purview of clause 'firstly' of Sec. 300 IPC. Secondly, as per the opinion of PW-12 Dr. Amandeep Kaur, the death in the present case occurred as a result of combined effect of brain damage and shock consequent upon blunt force trauma to the head and trunk respectively and brain damage, shock and FIR No. 224/2015, PS: Darya Ganj, Page No. 100 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.
liver laceration were individually and collectively sufficient to cause death in ordinary course of nature, the case of the prosecution also falls within the purview of clause 'thirdly' of Sec. 300 IPC. Thus the prosecution has successfully proved the ingredients of offence punishable under Sec. 302/34 IPC against accused persons namely Aminuddin @ Aminuddin Pahalwan (since deceased), Mohd. Waseem @ Bhura, Mohd. Shadab, Mohd. Atif Malik @ Lala, Saleemuddin @ Salim, beyond reasonable doubt.
123. Accordingly, accused persons namely Mohd. Waseem @ Bhura, Mohd. Shadab, Mohd. Atif Malik @ Lala, Saleemuddin @ Salim are hereby convicted for the offence punishable under Sec. 302/34 IPC.
Digitally signed by VIRENDER VIRENDER KUMAR KUMAR KHARTA Announced in the open court KHARTA Date: 2025.09.06 on 6th day of September, 2025 15:15:03 +0530 (Virender Kumar Kharta) ASJ/FTC-02(CENTRAL) TIS HAZARI COURTS:DELHI:06.09.2025 FIR No. 224/2015, PS: Darya Ganj, Page No. 101 of 101 State Vs. Mohd. Waseem @ Bhura & Ors.