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Delhi District Court

State vs Amir on 4 October, 2023

     IN THE COURT OF SH. PANKAJ ARORA-04: ADDL.
           SESSIONS JUDGE-04: NORTH-EAST:
                KARKARDOOMA:DELHI

SESSIONS CASE NO. 59/17

CNR No. DLNE01-005903-2016
FIR No. 150/14
P.S. Khajuri Khas
U/s : 302/323/174A/34 IPC

STATE

                                  Versus

1. AMIR
S/o Sh. Mehmood
R/o Village - Sherpur,
PS Bahadurgarg,
District - Hapur, UP.

2. IMRAN
S/o Sh. Mehmood
R/o Village - Sherpur,
PS Bahadurgarg,
District - Hapur, UP.

3. AZIM
S/o Sh. Mehmood
R/o Village - Sherpur,
PS Bahadurgarg,
District - Hapur, UP.


Date of Institution :     14.03.2017
Date of Argument :        28.08.2023
Date of Judgment :        04.10.2023


JUDGMENT

1. Brief facts of this case are that on 13.02.2014 at about FIR No. 150/14 State Vs. Amir & Ors. Page 1 of 62 10:00 pm in the street of H.No. D-153, Gali No. 7, Dayalpur, Delhi, accused Ahmed Saeed alongwith his associates namely Imran, Azim and Amir attacked upon one Yunus and Afzal with lathies and dandas. Due to the injuries caused to Yunus, he ultimately expired. However, Afzal survived with injuries.

2. The FIR in this case was registered on the basis of statement of said Afzal. He alleged that his Bua Shahana was married with accused Ahmed Saeed for the last 17-18 years. However, some disputes arose between them and his Bua was living alone in the house i.e. H.No. D-153, Gali No. 7. Dayalpur, Delhi. He also stated that due to birth of son to Shahana, she had come to, and stayed at, Aurangabad for the last one month. He informed that on 13.02.2014 at about 5:00 pm, he alongwith his uncle Yunus, Bua Shahana and her child had left for Delhi and reached to the said flat at about 9:30 pm. They found that the lock of the flat was lying broken. He made call to 100 number but the police did not arrive. Leaving Shahana in the flat, Afzal and Yunus came downstairs. They found that accused Ahmed Saeed alongwith his relatives Imran, Azim and Amir were standing there. Afzal alleged that seeing him and Yunus, all these persons started beating them. He also told that elder brother of Ahmed Saeed namely Maksood was also there. Both Afzal and Yunus raised alarm. Some neighbours came there. Yunus became unconscious. Ahmed Saeed and his associates fled away. PCR came there and took both of them to the hospital. At the hospital Yunus was declared brought dead. On these allegations FIR No. 150/2014 was registered at PS Khajuri Khas u/s 304/323/34 IPC. Investigation was started.

3. During investigation accused Ahmed Saeed was arrested FIR No. 150/14 State Vs. Amir & Ors. Page 2 of 62 on 14.02.2014. Accused Ahmed Saeed got recovered the danda also which was used in commission of the offence. Postmortem was got conducted. Sec. 304 IPC was changed to 302 IPC. Subsequent opinion was also obtained regarding the danda. Co- accused Imran, Azim and Amir absconded and could not be arrested. Charge-sheet was initially filed only against accused Ahmed Saeed u/s 302/323/34 IPC. Trial 'qua' ahmad saeed was conducted. Vide judgment dated 19.07.2017 and order on sentence dated 17.08.2017 the accused Ahmed Saeed was convicted for the offence punishable u/s 302/323/34 IPC, and was sentenced to undergo imprisonment for life and to pay fine of Rs.1,00,000/- for committing offence punishable u/s 302 IPC; he was also sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs. 1,000/- for committing offence punishable u/s 323/34 IPC. Since accused Imran, Azim and Amir were absconding, therefore, they were declared Proclaimed Offender vide order dated 09.07.2015 by Sh. Sharad Gupta, Ld. ACMM after execution of process u/s 82 Cr.P.C. Subsequently, on 24.04.2016, the accused Imran, Azim and Amir were arrested by SI Ravinder Teotia, SER Crime Branch. They were produced in the Court of Sh. Sharad Gupta, Ld. ACMM, their PC remand was obtained. However, during PC remand, no weapon of offence was recovered from their possession.

COMMITTAL

4. After completion of necessary formalities, supplementary chargesheet 'qua' accused Imran, Azim and Amir was filed in the Court of Ld. Ilaqa MM. After taking cognizance, compliance of FIR No. 150/14 State Vs. Amir & Ors. Page 3 of 62 section 207 of Cr.P.C., the present case was committed to the Courts of Sessions vide order dated 10.06.2016. The same was allocated by the then Ld. District and Sessions Judge to the Ld. Predecessor of this Court.

CHARGE

5. After hearing the arguments and finding that prima facie case is made out against the accused persons for the offence punishable u/s 302/323/34 IPC, charge was framed vide order dated 21.09.2016 by ld. Predecessor against accused persons, to which accused persons pleaded not guilty and claimed trial. With regard to trial of accused persons for the offence u/s 174A of IPC, the Ld. Predecessor of this Court had given an option to the IO to register a separate case and present challan before the concerned court of Magistrate vide order dated 21.09.2016. Thereafter, prosecution got examined as many as 29 witnesses.

PROSECUTION EVIDENCE

6. PUBLIC WITNESSES/ EYE WITNESSES

(i) PW2 Mohd. Afzal is the complainant as well as injured. He deposed that the incident took place on 13.02.2014. At that time, he was doing the stitching work of jeans pants in Gandhi Nagar, Delhi. At that time, he was residing at the house of his Bua in Vijay Nagar, Ghaziabad, UP and he used to do up and down from the house of his Bua (paternal aunt) and his work place in Gandhi Nagar, Delhi. On 09.02.2014, he had gone to his native house at Aurangabad. Shahna is his Bua and she was FIR No. 150/14 State Vs. Amir & Ors. Page 4 of 62 married with Ahmed Saeed about 17-18 years back from the date of incident and after marriage, she started living at her matrimonial home i.e. H. No. D-153, Gali No. 7, Dayal Pur, Delhi. Before 2-2 ½ years of the incident, domestic dispute was going on between his Bua Shahna and her husband Ahmed Saeed. About 10 months prior to the date of incident, Ahmed Saeed left the house and his Bua Shahna was residing alone in the said house. His Bua Shahna had given birth to a child about 1-12 months back prior to the date of incident. As no one was there at the house of his Bua to lookafter her after delivery of the child, his Bua Shahna went to Aurangabad at her parental house. He further deposed that on 13.02.2014 at about 5:00 pm, he alongwith his Chacha/uncle Yunus, his Bua Shahna alongwith her child and his Grandmother Zaibuinisha proceeded from their house Aurangabad for Delhi and reached at the house of his Bua i.e. H. No. D-153, 3rd floor, Gali No. 7. Dayal Pur, Delhi at about 9:30 pm. There they saw that the lock of the door was broken and the lock was hanging with kunda. After opening the door, they went inside the house and they noticed that household articles were scattered here and there. On checking the house, his Bua stated to them that some articles including money were missing. Thereafter, on the asking of his Bua Shahna, he made a PCR call at 100 number from his mobile phone no. 9716656910 immediately regarding the theft in the said house. After waiting for about 10-15 minutes, police did not come there. Thereafter, he alongwith Chucha Yunus came down on the road to see whether police came or not. As soon as they came on the road, they had seen Imran, Amir, Azim and Ahmed Saeed were standing there armed with lathis and dandas. Suddenly, Ahmed FIR No. 150/14 State Vs. Amir & Ors. Page 5 of 62 Saeed had given a danda blow on the head of his Chacha Yunus from behind. After receiving the danda blow, his Chacha Yunus sat down and felt giddiness. Thereafter, all the four assailants Imran, Amir, Azim and Ahmed Saeed started giving beating his Chacha Yunus with lathis and dandas indiscriminately. During the course of incident, he intervened, on this Imran had given danda blow on his forehead above eyebrow. As soon as the assailants started giving beating to his Chacha Yunus, he raised alarm on which some neighbors, his Bua Shahna and his grandmother also reached at the spot. Thereafter, all the four assailants fled away from the spot. When the accused persons started giving beatings to him and his Chacha Yunus, they asked them the reason for beating them but they did not give any chance to them. After receiving injuries, his Chacha Yunus became unconscious. At some distance, the brother of Ahmed Saeed namely Maqsood was also standing at the time of incident. One Sabir whom he knew prior to the incident also came there. After about 10-15 minutes, when accused persons had fled away from the spot, the police of PCR came at the spot and police took him and his Chacha Yunus in GTB hospital. After examining his Chacha Yunus, the doctor declared him brought dead. He was medically examined by the doctor. The local police also came at the hospital and his statement was recorded there by the police. Photocopy of his said statement is Ex.PW2/A. He deposed that this is the correct photocopy of his original statement lying in file of SC No. 44905/15 (OSR). He correctly identified accused persons Amir, Imran and Azim in court. He stated that he knew all the three accused persons prior to the incident as they are sons of his Fuffi. He further deposed that from the hospital, he came at FIR No. 150/14 State Vs. Amir & Ors. Page 6 of 62 the place of incident, there police prepared rough site plan at his instance and at that time his supplementary statement was also recorded by the IO. In the month of May 2014, he was again called at the spot by the IO. There the police took the measurements and some sketch was prepared and at that time also his statement was recorded by the police. In the year 2016, he came in Karkardooma Court about 5-6-7 months ago but he do not recollect the exact date and month, he had seen accused persons Imran, Amir and Azim in the court and at that time they were in muffled face. Thereafter, they were made unmuffled and he identified all the three accused persons. At that time in the court, accused Imran, Amir and Azim were arrested vide memos Ex.PW2/B, C and D respectively and their personal search was conducted vide memos Ex.PW2/E, F and G respectively. He correctly identified the danda which was used by accused Ahmed Saeed at the time of incident as Ex.P-1. He also correctly identified jeans pants alongwith belt, one half sleeve T-shirt, two sweaters, one cloth piece, one pair of socks as the clothes which were wearing by his Chacha Yunus at the time of incident. All these articles are Ex. P-2 (colly.).

In his cross-examination, he deposed that he had not stated to the police in his statement Ex.PW2/A that as soon as they came on the road, they had seen Imran, Amir, Azim and Ahmed Saeed were standing there armed with lathis and dandas. Again said, he had so stated in the said statement. He had also stated in his statement Ex.PW2/A to the police that co-accused Ahmed Saeed had given a danda blow on the head of his Chacha Yunus from behind and that after receiving the danda blow, his Chacha Yunus sat down and felt giddiness. He affirmed that he had made FIR No. 150/14 State Vs. Amir & Ors. Page 7 of 62 calls to the police from his mobile number 9716656910 many times after the incident. He had not informed the police from his mobile phone at 10:44:19 pm that 'Jija Sale ka plot ke kabje per jhagda hai, two injured, hospital le ja rahe hai'. He denied the suggestion that he did not tell names of any other accused persons except accused Ahmed Saeed in his phone calls to the police. He also affirmed that he had not furnished any documentary proof to the police regarding earlier disputes between accused Ahmed Saeed and his wife Shahana. He deposed that he did not have any such proof even today. He denied the suggestion that it was dispute between deceased Yunus and Ahmed Saeed alone regarding possession of a plot. He was carrying his mobile phone number 9716656910 with him throughout the journey. He denied the suggestion that he none of them had come to Delhi from Aurangabad on that day. He also denied the suggestion that his Bua Shahana was living happily with co-accused Ahmed Saeed at Flat No. D-153, Gali No. 7, Dayal Pur, Delhi. He denied the suggestion that it took 2-3 hours to reach Bulandsheher from Aurangabad by bus. They did not take any photographs of the broken locks or the articles inside the flat. He further deposed that Point A in the site plan is around 30- 35 steps away from the flat D-153. It had rained on that day but after the incident. There was only one room in flat No. D-153. The gate was having two locks one was fixed and one was hanging. Both the locks were broken. He did not know whether the CCTV cameras were installed near the place of incident or not. He denied the suggestion that accused Imran, Amir and Azim were not present at the spot at the time of incident. No neighbours and shopkeepers had seen the incident but they had FIR No. 150/14 State Vs. Amir & Ors. Page 8 of 62 gathered after accused persons fled away from the spot. He denied the suggestion that various neighbours and shopkeepers had seen the incident or that they did not become witnesses for the reason that they falsely implicated the present accused persons. He denied the suggestion that his Bua Shahana or his grandmother did not see the incident. They had seen it from the window of the room. His Bua Shahana had not reached the hospital but his Chacha Idrish and his Fufa Yusuf had reached the hospital to see him. He denied the suggestion that all these three accused had been falsely implicated due to enmity of his Bua with accused persons. He also denied the suggestion that his Bua and co-accused Ahmed Saeed were living happily or that both of them had enmity with these accused persons. He was not aware if the present accused persons had given beatings to Ahmed Saeed or in this connection, police had taken them in this connection. He denied the suggestion that the present three accused persons could not be with co-accused Ahmed Saeed as there was enmity between them. He affirmed that police had apprehended the present three accused persons in the morning after the incident. He volunteered that they had left them off. He did not know address of Sabir. He denied the suggestion that he received the injury due to fall at some other place or in any other manner or that his injury was self inflicted.

(ii) PW3 Mohd. Yusuf deposed that on 14.02.2014, after receiving the information regaridng the incident, he came at GTB Hosiptal and there he came to know that Yunus, who was his brother-in-law (Sala), was already dead. He was informed about the cause of his death by Afzal. In the mortuary of GTB hospital, he identified the dead body of Yunus. After post-mortem FIR No. 150/14 State Vs. Amir & Ors. Page 9 of 62 examination, the dead body of Yunus was handed over to them through handing over memo. The handing over memo as Ex. PW3/A. In his cross-examination, he deposed that he reached GTB hospital at about 8:00/9:00 am. It was heavy rain on that dya. He affirmed that none of these persons namely, Salim, Idrish, Mehfooz and Afzal had any injuries. Again said, Afzal was having some injuries.

(iii) PW4 Idrish Ahmad deposed that Shahna is his younger sister who married with Ahmed Saeed 17-18 years ago from the date of incident. She did not deliver any child for about 16 years after her marriage. Due to non delivery of any child, Ahmed Saeed used to torture his sister Shahna. Ahmed Saeed left the matrimonial house of his sister Shahna about 10 months prior to the date of incident. His sister started living alone for some time. Thereafter their Bhanji Kausar started living with his sister. When Ahmed Saeed left alone his sister Shahna, at that time, she was pregnant. Thereafter, she gave birth to a child after about 8 months of leaving by Ahmed Saeed. After delivery, his sister Shahna went to her parental house in Kasba Aurangabad, District Bulandshahr, UP as there was no one to lookafter her after delivery of the child. On 13.02.2014, she returned to her matrimonial house with Yunus (since deceased), Afzal, his mother Jaibunisha and the son of Shahna. At about 10:30 pm of 13.02.2014, he received a phone call from Afzal. He told him that Ahmed Saeed alongwith Imran, Amir and Azim had attacked upon Yunus and himself. He also told him that Yunus was still unconscious but he had regained consciousness. Immediately, he left for the spot. He found that Afzal and Yunus were not there.

FIR No. 150/14 State Vs. Amir & Ors. Page 10 of 62

Some public persons told me that police officials had taken them to GTB hospital. He also reached there. He found Afzal under treatment. He also came to know that Yunus had been declared dead. On 14.02.2014, he identified the dead body of his younger brother Yunus. After postmortem examination, the dead body of Yunus was handed over to him vide handing over memo already Ex.PW3/A. He correctly identified accused Amir, Imran and Azim.

In his cross-examination, he deposed that he had told to the police that Afzal had also accompanied Shahna from Aurangabad to Delhi on the date of incident. Shahna gave birth to her child at LNJP Hospital, Delhi. It was around 40-45 feet away from the house of his sister. It was raining on that day. When he had reached the sot, it was light drizzle but it rained heavily thereafter. He was not aware if any Jum-e-Raat Bazar was also existing there.

(iv) PW6 Arif deposed that on 13.02.2014, he had come to Delhi from Pilkhuwa to distribute the marriage cards of the marriage of his niece Gulista to his relatives. When he reached Gali No.7, Dayal Pur, Delhi at about 10:00/10:15 pm, he saw that Ahmed Saeed and his Bhanjas namely Imran, Amir and Azim were giving beatings to Yunus and Afzal with lathis and dandas. He had also seen that Ahmed Saeed had given danda blows at the head of Yunus. After receiving injuries, Yunus fell down. Afzal who was also there tried to save Yunus but Imran gave danda blow on his forehead above left eyebrow. Ahmed Saeed exhorted others i.e. his nephews not to spare Yunus and thereafter all the four accused gave danda blows on the chest of the Yunus. When he raised alarm, 10-12 neighbours came there.

FIR No. 150/14 State Vs. Amir & Ors. Page 11 of 62

In his cross-examination, he deposed that his statement was not read over to him which was recorded by the police. He left for Aurangabad with Shahna and Zaibunnisha. On 14.02.2014, he was present in Delhi throughout the day as he did not return to his home town after the incident. After the incident, he went to the hospital and he remained there only till his statement was recorded. He received the dead body of deceased Yunus at about 1:30 pm on 14.02.2014. His statement was not recorded by the police in the intervening night of 13.02.2014 and on the following day in the hospital. From the hospital, the dead body was directly taken to Aurangabad in Ambulance. He firstly purchased mobile phone only 6-7 months back. He denied the suggestion that he was carrying this mobile number on that day. He volunteered that Asif was carrying the same and was with him on that day. He had participated in the burial of deceased Yunus. They reached Aurangabad about 30-45 minutes before his burial in Kabristan. Firstly, they reached at the house of deceased. The deceased was the son of his Bua. He had told to the police about his relationship with the deceased. He had not stated to the police that he and public persons had tried to save Afzal and Yunus. He did not know who made PCR call at 100 number. He denied the suggestion that he, Shahna and Zaibunnisha were not present at the spot or for this reason none of them accompanied PCR officials to hospital. He had stayed for 10-15 minutes at the spot after PCR had taken Yunus and Afzal to hospital. Therafter, he went to hospital. He could not tell how many floors were there in the house of Shahna as she had never seen it. It had rained on that day before and after the incident. He affirmed that he had come to the Court for evidence with Idrish, real brother of deceased.

FIR No. 150/14 State Vs. Amir & Ors. Page 12 of 62

(v) PW16 Saleem Ahmad deposed that Deceased Younus was his Bhanja (nephew) being son of his sister namely Zaibunisha. On 14.02.2014, his sister Zaibunisha called him on his phone and told him that Ahmad Saeed along with Amir and his two brothers had killed his nephew Younus by beating him by lathis and dandas. Thereafter, he along with Yusuf (son-in-law of his sister). Mahfuz (son of Tau of Younus) and Arif (cousin brother of Younus) reached Mortuary of GTB hospital after picking them from their residences. At the mortuary, he identified the dead body of Yunus. He had signed the request paper prepared by IO i.e. form no. 25.35(1)(B) as Ex.PW9/B. He had also signed on the request for postmortem as Ex.PW9/A. After postmortem, dead body of Yunus handed over to his brother Idrish vide dead body handing over memo as Ex.PW3/A. Later on, IO had called him at the PS on 18.05.2016 and recorded his statement.

In his cross-examination, he deposed that Zaibunisha had called him at about 8:30 pm on 14.02.2014.

In his re-examination by Ld. Addl. PP, he deposed that his sister had called him on 13.02.2014 at about 8:30 pm. Earlier, he got confused as postmortem was conducted on 14.02.2014.

(vi) PW20 Shahana is the sister of the deceased younus. She deposed that she was married to the accused Ahmed Saeed before 18-19 years. Since marriage, she was residing with him at H. No. D-153, 3" floor, Gali No. 7. Dayal Pur, Delhi. They were blessed with a son namely Mohd. Ubed. He was about 3 years old. The accused Ahmed Saeed began quarreling with her 2-3 years prior to the incident. He left her and her child 10 months in matrimonial house before the date of incident. After the accused left her in her matrimonial house, she gave birth to Mohd. Ubed FIR No. 150/14 State Vs. Amir & Ors. Page 13 of 62 on 01.12.2013. On 01.02.2014. she went to her parents in Aurangabad as there was no one in her matrimonial house to take care of her. In response to Court Question, she admitted that when the accused Ahmed Saeed left her in her matrimonial house, she was in family way. She further deposed that on 13.02.2014, she received a telephone call from her neighbor Nazma that the accused Ahmed Saeed and his nephews (bhanje) Imran. Amir and Azim broken lock of his house/room of Dayalpur. Thereafter, she immediately alongwith her newly born child Mohd. Ubed, brother Yunus, mother Zaibunisha and nephew Afzal came to her husband's house at about 09.30 p.m. on 13.02.2014. She found that a lock which was in broken condition was hanging on the latch and the door lock fixed in the door was lying inside in broken condition. Some of her articles were lying in scattered condition inside the room and some articles were missing. She asked her nephew Afzal to make call at 100. He made call at 100 number. They waited for about 10 minutes. Police did not come. Her brother Yunus and nephew Afzal came down when police did not come. She and her mother stayed in her room. When she heard noise of quarrel from the side of gali, she and her mother seen through window of her room that Ahmed Saeed and his nephews Imran. Amir and Azim were beating her brother Yunus with dandas. The accused Ahmed Saeed hit a danda on back side of head of Yunus. The accused Ahmed Saeed, Amir, Imran and Azim were carrying dandas/lathies. When her nephew Afzal intervened to save Yunus, Imran hit a danda on right side of forehead of Afzal and he became unconscious. The accused Ahmed Saeed given two danda blows on forehead of Yunus. All the four accused persons FIR No. 150/14 State Vs. Amir & Ors. Page 14 of 62 were beating Yunus with dandas/ lathies. She alongwith her mother came down. The accused Ahmed Saeed was stating that 'in dono ko jaan se maar do, ye bachne na paaye'. All the accused persons ran away after seeing them. Public persons had already gathered before they reached at the place of incident. They did not intervene. After half an hour, PCR Van came. It had taken Yunus and Afzal to GTB Hospital. She and her mother did not accompany them in PCR Van. She came to know after one hour that her brother Yunus had expired. Police officials made enquiry from her and recorded her statement on the next day. Witness has correctly identified accused Imran, Amir and Azim. She has correctly identified the danda as Ex.P1 stated that it is the same danda which was in the hands of the accused Ahmed Saeed. She had also correctly identified one blue jeans pant with white belt, one half sleeve blue T-shirt, gray knitted sweater, dark brown ready-made sweater, one cloth piece/ anghochha, one pair of socks and one pair of blue canvas shows as Ex.P2 (colly) stated that these are the clothes and shoes which her brother Yunus was wearing at the time of incident.

In her cross-examination, she deposed that her statement was recorded by the police on the next day of the incident at around 3:30 pm. She had not told in her statement that accused Ahmed Saeed, Imran were having dandas in their hand and accused Azim and Amir were beating Yunus with fist and leg blows. (Statement Ex.PW20/DX-1 was shown to the witness wherein it was mentioned that Azim and Amir were beating Yunus with fist and leg blows). I had told to the police in her statement that accused Ahmed Saeed, Azim, Amir and Imran were carrying dandas and lathis. She did not remember whether FIR No. 150/14 State Vs. Amir & Ors. Page 15 of 62 she had told to the police in her statement that when her nephew Afzal intervened to save Yunus, accused Imran hit a danda on the right side of forehead of Afzal and he became unconscious. She denied the suggestion that she also lived in the house of accused persons Azim, Amir and Imran as a tenant in the intervening period. She denied the suggestion that she and her husband accused Ahmed Saeed used to quarrel with these three accused in the said house. On 27.04.2013, she made a phone call at 100 number against the accused persons that they had beaten him and misbehaved with him. Thereupon, the police apprehended them and taken away from their house. She denied the suggestion that the call was made on 28.04.2013. She denied the suggestion that she used to make several complaints against the accused persons. She volunteered that complained against them only twice. She did not remember the mobile phone number of Nazma. Nazma resides on 4th floor in the same building of Flat No. D-153, Dayal Pur, Delhi. At the relevant time i.e. during the days near to 13.02.2014 and thereafter till some time, she was not having and using any mobile phone. She deposed that the house situated at Dayal Pur has three floors and ground floor. Her house is at 2 floor. There were tenants in the ground and first floors at the relevant time. The persons living at the 3 floor had purchased the said floor. She did not remember the names of the tenants. The disputes between her and Ahmed Saeed were going on about 2-2 ½ years prior to the incident. She affirmed that she had not filed any written complaint against her husband regarding torture and harassment. She affirmed that her husband used to live in the same house with her. She volunteered that he had left the house 10 months prior to the incident. She did not send any legal notice FIR No. 150/14 State Vs. Amir & Ors. Page 16 of 62 to her husband for not paying any expenses to her. She denied the suggestion that she did not send any such notice for the reason that her husband was living with her or living happily and was paying expenses. It took around four hours to reach Aurangabad from Delhi. When she reached in the house in Delhi, no one was present there at that time. At that time, she was not carrying any mobile phone. Her brother Yunus and her nephew Afzal were carrying the mobile phones at that time. Police also did not take any such photographs in her presence. She did not remember whether she had handed over the broken locks to the police or not. PW Arif is son of her maternal uncle. She do not know the name of the resident of the house located in front of her house. When they went from her house to the spot, there were about 6-7 houses including two shops in both sides of the gali. She denied the suggestion that nothing was visible on the road/gali from her house. The approaching stairs to her house were covered. Her house was single room house. There was separate bathroom but there was no separate kitchen. She affirmed that there was no balcony in the house but she denied the suggestion that there was no window. She further denied the suggestion that from the said window, no one could be identified if he stood at the spot. She denied the suggestion that the spot of incident was opposite shop of N S Tailor. She volunteered that it was near the said shop. When they saw the incident, the faces of accused persons and her brother Yunus and nephew Afzal were in front of each other. When she saw from the window, the faces of accused persons were towards him. When they saw the incident from their room, they also noticed that 10-15 persons were already gathered at the place of incident after hearing the noise. They came down in the FIR No. 150/14 State Vs. Amir & Ors. Page 17 of 62 street while crying. She did not remember the description and colour of the clothes of accused persons. The accused persons were having different sizes of dandas some big and some small and all danda were of wooden and similar colour. The residents of entire gali had gathered at the place of incident. They might have also seen the incident. She affirmed that she had not gone to the hospital. She also affirmed that on that night, she had not visited the PS. On that night, police had not recorded her statement. She affirmed that the present three accused were apprehended by the police after the incident and were let off in the evening. She volunteered that she came to know that they were let off as they had paid money to the police. She denied the suggestion that there was heavy rain at the time of incident. She volunteered that there was no rain on that night either prior or after the incident. The rain had occurred at about 1:00 am in the midnight. She denied the suggestion that since she was not present in Delhi on the night of incident or that due to the same reason she was not able to tell about the whether condition i.e. rain on that night. Her statement was recorded by the police on the next date at about 3:00/3:30 pm at her house but she did not know the name of police official. It took about 10 minutes in recording her statement. Her statement was recorded by the police only once. Statement of Arif son of her Mama was also recorded by the police in her presence. The dead body of her deceased brother was buried in Aurangabad at about 7:00 pm on 14.02.2014. She reached Aurangabad about half an hour prior to the dead body was brought there. Before burial, Namaz of Magrib and thereafter Namaz-e-Janaza was also performed. She affirmed that Namaz-e-Magrib was performed at about 6:00 pm FIR No. 150/14 State Vs. Amir & Ors. Page 18 of 62 in the month of February. She affirmed that supplication of Namaz-e-Magrib took around 20-25 minutes and thereafter Namaz-e-Janaza also took around 15-20 minutes.

7. INVESTIGATION WITNESSES

(i) PW1 ASI Deepak was performing duty in the PCR Van from 8:00 pm to 8:00 am in the intervening night of 13/14.01.2014. He deposed that at about 9:30 pm, he was present at Chowk, 25 Foota Road, D-Block, Dayal Pur, Delhi on a call. In the meantime, he received call about quarrel in Gali No. 7, D- Block, Dayal Pur. He alongwith staff members reached there and found persons. Out of them, one was unconscious and he was also injured and another was in injured condition. The name of the injured was revealed as Afzal and the person who was unconscious was Yunus. He immediately shifted both the injured and took them to GTB Hospital where Yunus was declared brought dead. Afzal was admitted for treatment.

In his cross-examination, he deposed that injured was having injury on his arm and the persons who was lying unconscious was having injury on his head.

(ii) PW8 Insp. Ravi Kumar was the I/C Crime Team, North- East District in the intervening night of 13/14.02.2014. He alongwith ASI Rajender Singh, Finger Print Proficient and Ct. Sanjay Kumar, Photographer had visited 25 Foota Road, Gali No. 7, Dayal Pur near Noorullah Masjid opposite N. S. Tailor at about 12:15 of 14.02.2014. He noticed blood at the spot at two places. Ct. Sanjay took photographs of the spot. He prepared the Crime Team Report as Ex.PW8/A. Later on, he handed over the crime FIR No. 150/14 State Vs. Amir & Ors. Page 19 of 62 team report to the IO.

In his cross-examination, he deposed that he noticed blood just on the pavement situated in front of N.S. Tailor.

(iii) PW9 SI Ajay Tomar had reached GTB Hospital, Mortuary for getting conducted the postmortem examination on the dead body of Yunus on 14.02.2014 on the instructions of SHO. He had submitted an application for postmortem examination before the doctor alongwith filled up Form No. 25.35(1)(B) PPR as Ex.PW9/B. The photocopy of application as Ex.PW9/A. After the postmortem, he handed over the dead body of deceased Yunus to his elder brother Mohd. Idrish vide receipt. The photocopy of the same as Ex.PW3/A. Witness was cross-examined but nothing material came out in his cross-examination.

(iv) PW10 Ct. Subodh is the police official, who joined investigation on 14.02.2014. He had reached GTB Hospital alongwith SI Ajay Tomar for getting conducted the postmortem of body of deceased Yunus. SI Ajay Tomar had prepared postmortem papers and got conducted the postmortem on the body of deceased. After postmortem, dead body was handed over to the brother of deceased, namely, Idrish.

Witness was cross-examined but nothing material came out in his cross-examination.

(v) PW11 HC Chhetra Pal is the investigating police official, who had collected exhibits from GTB Hospital and handed over the same to the IO, which were seized by the IO vide seizure memo Ex.PW11/A. Witness was cross-examined but nothing material came out in his cross-examination.

FIR No. 150/14 State Vs. Amir & Ors. Page 20 of 62

(vi) PW13 HC Naresh Veer is the investigating police official who had accompanied the IO/SI Naveen Rathi (PW25) at the spot on the date of incident i.e. 13.02.2014. He has deposed on the same lines on which IO/SI Naveen Rathi has deposed.

Witness was cross-examined but nothing material came out in his cross-examination.

(vii) PW18 Ct. Ravit is the investigating police official who had accompanied IO/Insp. Sanwar Mal to Karkardooma Courts at the time of surrender accused persons in the Court. He has deposed on the same lines on which Insp. Sanwar Mal has deposed.

Witness was cross-examined but nothing material came out in his cross-examination.

(viii) PW19 HC Rajesh Kumar is the investigating police official. He deposed that on 29.04.2014, he was posted as Constable at PS Khajuri Khas, Delhi. On that day, as per directions of the IO/Insp Shailender Tomar, he had taken one sealed pullanda of danda from MHC(M) to be deposited at GTB Hospital for subsequent opinion vide RC no. 135/21/14. IO had also handed over him the application for subsequent opinion. Accordingly, he had deposited the same at GTB hospital in the concerned department. He had obtained the acknowledgment receipt on the photocopy of the said application. Photocopy of the acknowledgment receipt as Ex.PW19/A. Photocopy of RC as Ex.PW19/B. Witness was not cross-examined despite having given the opportunity.

(ix) PW22 SI Pravesh Kumar is the investigating police official. He deposed that on 28.04.2013, he was posted as SI at FIR No. 150/14 State Vs. Amir & Ors. Page 21 of 62 PS Khajuri Khas. In the intervening night of 27/28.04.2013, when he was on emergency duties at the PS at about 12:35 am, one transferred PCR call which was received from PS Karawal Nagar at PS Khajuri Khas vide DD No. 5A was marked to him. The said call was regarding beating of a lady who was alone in the house in Gali no. 7, New Mustafabad, in front of Gali No. 22, near A-B Gold Property Dealer. The call was from mobile no. 9311561888. On receiving the said call, he had reached at H. No. D-153, Gali No. 6 ½, Dayalpur, Delhi where one lady who told her name as Shahna W/o Ahmad Saeed met him. He made inquiries from her. She told that her husband had gone outside in Zamat. She had kept her niece (Bhanji) at her house. She had further told that Imran, Azim and Amir who were sons of her Nanad had come in her house and they started arguing with her on family issues (parivarik bahas) at which she made 100 number call. She also told that she had not received any injury and due to family matter, she did not want any action. After making inquiries from the said lady, he came back to the PS and made entry in DD register regarding proceedings carried out by hi, in connection with DD No. 5A. On 26.05.2016, when he was posted at PS Jait Pur, on being called by IO/Insp. Sanwar Mal, he had reached PS Khakuri Khas where IO made inquiries from him and recorded his statement to whom he had stated the aforesaid facts.

Witness was cross-examined but nothing material came out in his cross-examination.

(x) PW25 SI Naveen Rathi is the IO of the present case. He deposed that on 13.02.2014, he was posted as SI at PS Khajuri Khas. On the intervening night of 13/14.02.2014, he was on emergency duty at the PS since 8:00 pm to 8:00 am. At about FIR No. 150/14 State Vs. Amir & Ors. Page 22 of 62 10:25 pm, Duty Officer telephonically informed him about assignment and contents of DD No. 58B which was regarding a quarrel in Gali no. 7½ near Narola Masjid, Dayal Pur Village. On receipt of the said information, he alongwith Ct. Nareshveer reached in gali no. 7. Dayalpur, where blood was lying at the spot near H. No. D-153. On inquiry, he came to know that injured persons had been removed to GTB hospital by the PCR van Baker-19. He called HC Ashok at the spot and he came at the spot. He deputed him to guard the spot. He alongwith Ct. Nareshveer left from there and reached GTB hospital where he collected MLC of injured Yunus and Afzal. On the MLC of Yunus, doctor had opined him brought dead. On the MLC of Afzal, doctor had opined him fit for statement. Injured Afzal was found admitted in Emergency Ward. He made inquiries from him and recorded his statement as Ex.PW2/A. Thereafter, he made rukka on the same as Ex.PW25/A. He gave rukka to Ct. Nareshveer and sent him to PS for registration of the case. After treatment, injured Afzal was discharged from the hospital. Thereafter, he alongwith Afzal had reached at the spot where HC Ashok had told him that Crime Team had arrived at the spot and inspected the scene of crime and also taken photographs of the scene of crime. He prepared rough site plan at the pointing out of Afzal as Ex.PW25/B. In the meantime, Ct. Nareshveer had come at the spot and he handed over to him copy of FIR and original rukka. Thereafter, he mentioned the details of FIR on the site plan. Thereafter, he recorded statement of HC Ashok Kumar and he was relieved. After that he had recorded supplementary statement of complainant Afzal and he was also relieved. After that he had lifted blood on gauze and kept the same in a plastic FIR No. 150/14 State Vs. Amir & Ors. Page 23 of 62 container and sealed the same with seal of NR and took the same into possession vide seizure memo Ex.PW25/C. After that he had lifted blood stained concrete from the spot which was also kept in a plastic container and after sealing the same with seal of NR, it was taken into possession by him vide seizure memo Ex.PW25/D. After that he had lifted earth control from the spot which was also kept in a plastic container and after sealing the same with seal of NR, it was taken into possession by him vide seizure memo Ex.PW25/E. In the meantime, one Shahana had also come at the spot. He made inquiries from her and recorded her statement u/s 161 Cr.P.C and she was relieved. After that he made efforts to find out the accused persons who were named in the FIR. While searching them, one secret informer met him and he told him that one of the accused namely Ahmed Saeed would pass through Old Police Post after some time. After that he alongwith Ct. Naresh and secret informer reached Old Police Chowki, 33 Foota Road, Karawal Nagar. At about 3:45 am, on seeing a person coming from the side of Karwal Nagar, secret informer had pointed out towards him as Ahmed Saeed. He was apprehended by them. On inquiry, he revealed his name as Ahmed Saeed. After interrogation, he was arrested by him in this case vide arrest memo Ex.PW13/D. His personal search was also conducted vide memo Ex.PW13/E. At that time, he had also recorded disclosure statement of accused Ahmed Saeed. He further deposed that the disclosure statement of accused Ahmed Saeed as Ex.PW25/F. Pursuant upon his disclosure statement, accused Ahmed Saeed had taken them to a vacant shop in front of a medical store i.e. Sharma Medicos at 33 Foota Road, Dayalpur. From there, he got recovered one danda which was FIR No. 150/14 State Vs. Amir & Ors. Page 24 of 62 used by him in the incident. He had measured the said danda. Length of the danda was 3 feet 2.4 inch. After that he had prepared pullanda of the said and after sealing the same with seal of NR, it was taken into possession by him vide seizure memo Ex.PW13/A. He had also prepared rough site plan of the place of recovery of the said danda which is Ex.PW25/G. After effecting the recovery, they came at the PS where case property was deposited in the malkhana. He also recorded statement of Ct. Nareshveer. Accused was put in the lock up. He further deposed that on 14.02.2014, he had handed over the case file to SI Ajay for conducting postmortem on the body of deceased Yunus at GTB hospital. On the same day, in the noon time, SI Ajay Tomar had handed over the case file to him after getting the postmortem on the body of deceased Yunus. After that he had taken accused Ahmed Saeed to JPC hospital where he was got medically examined. After that he was produced before the concerned court from where he was sent to JC. After some time he left the PS in search of the other accused but no other accused could be found. Thereafter, he had again reached at the spot in search of other eyewitness. At that time, one Arif met him there who told himself to be the eyewitness of the incident. He recorded his statement u/s 161 CrPC. After that he came back to the PS where he recorded statement of SI Ajay Tomar and Ct. Subodh. On 15.02.2014, Sec. 302 IPC was added. Hence, he handed over the case file to MHC(R). Witness correctly identified accused Ahmed Saeed has already been convicted in the present case. Witness correctly identified the danda, stone pieces with blood and some stone pieces which were got recovered by accused Ahmed Saeed. Danda as Ex. P-1, Ex.P-2 and Ex.P-3.

FIR No. 150/14 State Vs. Amir & Ors. Page 25 of 62

In his cross-examination, he deposed that he could not say if there was a quarrel in between Ahmed Saeed and Mohd. Yunus alone over the dispute of possession of a plot. It may be correct that the aforesaid mobile number 8375974728 belongs to Afzal and that he made a complaint vide DD No. 58B about a dispute in between Ahmed Saeed and Yunus alone regarding possession of a plot. He denied the suggestion that when he reached the spot, two persons namely Kalam S/o Abdul Karim R/o H. No. 1143, Gall No. 13, Rajiv Gandhi Nagar, Mustafabad, North East, Delhi and Amjad Khan S/o Jalish Ansari R/o 153, Gall No. 7D, Block Dayalpur, Delhi met him. It may be correct that aforesaid Kalam runs a par shop at the spot of quarrel and that Amjad Khan lives at a nearby house. He had not knowledge if there was any weekly market called Jumerat Bazar at the place of incident. When he reached GTB hospital only Afzal met him and deceased Yunus had already died. On the night of the incident, it was some rain at about 3:00-4:00 am in the morning. He did not remember in his statement Afzal had stated about their solitary dispute with Ahmed Saeed with Yunus over the plot of land and had not alleged anything else. No other public witness was present at the spot when site plan was prepared. Statement of Shahna was also recorded in the same night at about 3:00 / 3:15 am. After supplementary statement of Afzal, he went to his home and then he might have sent Shahna for recording of her statement. Shahna was alone. It might have taken about 15 minutes in recording statement of Shahna. He affirmed that Arif did not meet him either at the time when he reached the spot for the first time or thereafter when reached the spot again or in the hospital. He had no personal knowledge as to how Afzal got injured. He FIR No. 150/14 State Vs. Amir & Ors. Page 26 of 62 denied the suggestion that Afzal was not a witness of incident or that he was not injured in the incident or that he is also a false witness.

(xi) PW26 ASI Ashok Kumar is the investigating police official. He deposed that on 13.02.2014, he was posted as Head Constable at PS Khajuri Khas, Delhi. On that day, on being called by SI Navin Rathi in connection with DD No. 58B, he had reached the spot i.e. in front of H. NO. 153. Gali No.7, Dayal Pur, Delhi where SI Navin Rathi alongwith Ct. Nareshvir found present. Blood was lying at the spot. After leaving him for guarding me at the spot, SI Navin and Ct. Nareshvir left for GTB hospital. After that Crime Team had reached at the spot. I/C SI Ravi Kumar had inspected the scene of crime and crime team photographer had taken photographs of scene of crime from different angles. After that crime team had left from there. After some time, SI Navin and Ct. Nareshvir alongwith one Afzal had come at the spot SI Navin had prepared rough site plan of the place of occurrence at the instance of Afzal. His statement was also recorded by SI Navin. Prior to his reaching at the spot, DD No. 54-B was marked to him regarding incident of theft on 13.02.2014. On receipt of the same, he alongwith Ct. Dharampal had reached at H. No. D-153, Gali No.8, D-Block, Dayalpur, Delhi but incident of theft was found there. Thereafter, he filed the said DD entry. His supplementary statement was also recorded by IO/Insp. Sanwar Mal.

In his cross-examination, he deposed that on receiving DD No. 54-B, he had reached at the place mentioned therein at about 9:30/10:00 pm. He had gone upstairs where one lady was weeping and immediately SI Navin Rathi had also come there.

FIR No. 150/14 State Vs. Amir & Ors. Page 27 of 62

He could not tell the name of said lady. Afzal was looking nervous when he had come at the spot with St Navin. However, he had not seen any injury on the person of Afzal.

(xii) PW27 Insp. Shailender Tomar is the investigating police official. He deposed that on 12.03.2014, he was posted as SHO PS Khajuri Khas. On that day, further investigation of this case was taken up by him as Insp. Rajesh Vijay who was SHO and IO of the said case was transferred from the said PS. He had gone through the case file and came to know that three accused persons namely Amir, Imran and Azim who were named in FIR, were yet to be arrested. On 28.03.2014, he had collected crime team report from I/C crime team SI Ravi and also collected photographs of scene of crime from him. At that time, he had recorded statement of SI Ravi u/s. 161 CrPC. On 04.04.2014, as per his directions, HC Chattra Pal had collected PM report of deceased Yunus and sealed pullanda of clothes of deceased alongwith sample seal from GTB hospital and which were taken into possession by him vide seizure memo Ex.PW11/A. The said exhibits were deposited in the malkhana. He had recorded statement of HC Chattra Pal in this regard. On 29.04.2014, he sent Ct. Rajesh to GTB hospital with his request letter and sealed pullanda of danda for obtaining subsequent opinion with regard to weapon of offence i.e. danda. Photocopy of said request letter as Ex.PW27/A. He had also handed over one application to CL Rajesh for obtaining opinion on MLC No. A-514/14. Photocopy of the said application as Ex.PW27/B. Ct. Rajesh had deposed the sealed pullanda and request letter and sample seal in GTB hospital for obtaining opinion. He had also recorded statement of Ct. Rajesh u/s. 161 CrPC to this effect. On 05.05.2014, he had FIR No. 150/14 State Vs. Amir & Ors. Page 28 of 62 called Draftsman Insp. Mahesh Kumar at the PS. He had also informed complainant Afzal to reach at the spot. From the PS, he had taken Insp. Mahesh Kumar to the spot where Afzal was already present there. At that time, Insp. Mahesh Kumar had taken measurements of scene of crime at the pointing of Afzal and prepared rough notes. He had recorded statement of Insp. Mahesh Kumar and Afzal to this effect. On 06.05.2014, he had sent the exhibits to FSL, Rohini through Ct. Gajender, after taking the same from malkhana and the same were deposited by him there. He had also recorded statements of Ct. Gajender and MHC(M) in this regard. On 07.05.2014, he had recorded statement of I/C PCR Van who had attended PCR call on the day of incident. During investigation, he had made efforts to find out the remaining accused persons namely Amir, Azim and Imran. He had also obtained NBWs against them for effect their arrest but they could not be found. He further deposed that after completing investigation, he had prepared the charge-sheet against accused Ahmad Saeed who has already been convicted from this court and appeal filed by him, is still pending before Hon'ble High Court of Delhi.

In his cross-examination, he denied the suggestion that he never visited the house no. H-60, Old. Mustafabad, Delhi of accused persons at any point of time or that he had deliberately concealed H block while moving the application for issuance of NBWS against the accused persons in order to get them declared as proclaimed offenders in this case. He further denied the suggestion that H. No. 60 or Street no. 22 was situated in each and every block of Old Mustafabad. He denied the suggestion that he did not conduct proper or fair investigation or that he had FIR No. 150/14 State Vs. Amir & Ors. Page 29 of 62 deposed falsely being IO of this case.

(xiii) PW28 Insp. Sanwar Mal is the investigating police official. He deposed that on 07.01.2016, he was posted at PS Khajuri Khas as Inspector Investigation. On that day, investigation of this case was entrusted to him by the directions of concerned SHO, on receipt of intimation regarding surrender of accused persons namely Amir, Imran and Azim before the concerned court of PS Khajuri Khas. Accordingly, on 08.01.2016, he alongwith three police officials. whose names he do not recollect now, went to the court of Ld. ACMM of PS Khajuri Khas, where the aforesaid accused persons did not surrender themselves and consequently, their application for surrender was dismissed by the said court. On 10.01.2016, he had moved an application/request for declaration of reward for arrest of aforesaid three accused persons to Commissioner of Police through proper channel, on which reward of Rs. 25.000/- each was declared on 18.02.2016. On 26.04.2016, intimation regarding arrest of aforesaid three accused persons by police officials including SI Ravitnder Tewatia of SER Zone, Crime Branch, was received in PS Khajuri Khas vide DD No. 19B. Attested copy of DD No.19B as Ex.PW28/A. Accordingly, he alongwith HC Sunil, Ct. Ravit and Ct. Sachin went to the Court of Sh. Sharad Gupta, the then Ld. ACMM, North-East on 26.04.2016, where the aforesaid three accused were produced by the team of SI Ravitnder Tewatia in muffled faces. Public witnesses namely Afzal and Arif had also reached the Court as they were asked by him to do so. He collected the copy of kallandara and other relevant documents from SI Ravinder. Copies of said kallandara and relevant documents are collectively FIR No. 150/14 State Vs. Amir & Ors. Page 30 of 62 marked as Mark PX. Thereafter, he moved an application seeking permission to interrogate the said accused persons. After grant of permission by the concerned Court, he interrogated the said three accused persons in the presence of aforesaid two public witnesses and the police officials. During said interrogation, the faces of all these three accused persons were uncovered and all these three accused persons were identified by public witnesses namely Afzal and Arif to be amongst the assailants who had committed the offences involved in this case. The accused persons also confessed their involvement in the commission of crime of this case during police interrogation conducted by him. Accordingly, he formally arrested them. The arrest memo of accused Imran as Ex.PW2/B, the arrest memo of accused Amit exhibited as ExPW2/C and the arrest memo of accused Azim exhibited as Ex.PW2/D. He had also conducted personal search of said three accused and prepared personal search memos which are exhibited as Ex.PW2/E to ExPW2/G respectively. He had also recorded their disclosure statements, which are exhibited as Ex.PW18/A. Ex.PW18/B and Ex.PW18/C. After formal arrest of aforesaid accused, they were produced before the Court of Ld. ACMM. He applied for grant of two days PC remand and same was accordingly granted by the Court. Thereafter, he had recorded statements u/s 161 CrPC of public witnesses namely Afzal and Arif as well as that of SI Ravinder Tewatia and thereafter, all three of them left from there. He alongwith police officials namely HC Sunil and Ct. Ravit and Ct. Sachin and the aforesaid three accused persons went to JPC hospital where accused were got medically examined and thereafter, they all went to PS Khajuri Khas, where accused were put behind the FIR No. 150/14 State Vs. Amir & Ors. Page 31 of 62 lock up. He had recorded statement of HC Ashok in PS Khajuri Khas on 26.04.2016 with regard to PCR call recorded vide DD No. 54B dated 13.02.2014 received by him for necessary action. Attested copy of said DD entry as Ex.PW12/A. On the next day i.e. 27.04.2016, the accused persons were taken out from lock up and they took the police team consisting of himself. Ct. Ravit and other staff members whose names he did not recollect now, to the spot where accused persons pointed out the place of occurrence. He had prepared separate pointing out memos in this regard, which are exhibited as Ex.PW18/D, Ex.PW18/E and Ex.PW18/F. They also made efforts to find out the dandas used in the commission of crime but same Could not be recovered. Thereafter, they returned back to PS Khajur Khas and accused were again put up behind the lock up. He had recorded the statement of Ct. Ravit in this regard in the PS. They were subsequently produced before the concerned Court and were sent to JC. On 16.05.2016 and 18.05.2016, he had recorded statements u/s 161 CIPC of public persons namely Yusuf, Mohd. Idrish, Saleem Ahmad and Mehfooz Khan. In his statement, Mohd. Idrish had stated that accused persons namely Amir, Imran and Azim had a quarrel with wife of co-accused Ahmed Saeed on 27/28.04.2013 and PCR call was made in that regard. Accordingly, he collected the copies of relevant DD entries from roznamcha of PS Khajuri Khas in that regard. Attested copies of said DD entries are exhibited as Ex.PW20/DX-2 and Ex.PW20/DX-3. After 3-4 days thereof, he had also made enquiries from Sub Inspector who had attended the said PCR call and had recorded his statement u/s. 161 CrPC. Insp. Arvind Pratap had already filed subsequent opinion with regard to FIR No. 150/14 State Vs. Amir & Ors. Page 32 of 62 weapon of offence alongwith main chargesheet filed against accused Ahmad Saeed and he filed copy thereof alongwith supplementary chargesheet prepared against aforesaid three accused persons and filed the same before the Court concerned. Witness correctly identified all the three accused persons.

In his cross-examination, he denied the suggestion that Afzal and Arif came into his contact on 08.01.2016 itself or that they were constantly in his touch between 08.01.2016 till 26.04.2016. He denied the suggestion that he had visited the place of occurrence with Afzal and Arif several time during the said period. He denied the suggestion that the disclosure statements of accused persons were later on prepared by him in the police station. He denied the suggestion that no disclosure statements were made by the accused persons or that their signatures were obtained on some blank papers or that same were converted into their disclosure statements as per his own convenience. He denied the suggestion that accused persons had not pointed out the place of occurrence as being IO and in touch with Afzal and Arif, he was already aware of the place of occurrence. He had not called any public persons for preparation of pointing out memo. He denied the suggestion that pointing out memos were prepared in the police station or that the accused persons never pointed out the place of occurrence. He further denied the suggestion that since no pointing out of place of occurrence was made by the accused persons, therefore, no public person was joined in the investigation. He denied the suggestion that when they had visited the place of occurrence, several witnesses including Amjad and Kalam had met him or had told him that it was dispute between Ahmed Saeed and FIR No. 150/14 State Vs. Amir & Ors. Page 33 of 62 deceased, both being Jija and Sala or that there was no involvement of accused Amir, Azim and Imran in the commission of crime or that he intentionally or deliberately did not record their statements in that regard.

(xiv) PW29 SI Ravinder Teotia is the investigation police official. He deposed that on 26.04.2016, he was posted as SI at Crime Branch Office, R. K. Puram, New Delhi. On that day, he had arrested three proclaimed and rewarded offenders namely Amir, Azim and Imran u/s 41.1 Cr.P.C. vide DD No. 2 dated 26.04.2016 recorded at the office of Crime Branch, SER, Sector- 8, R. K. Puram. On the same day, he had also informed about their arrest at PS Khajuri Khas vide DD No. 19B. After that all the aforesaid three accused persons were produced by him before the Court of Sh. Sharad Gupta, Ld. ACMM, Karkardooma Courts, Delhi through kalandara. When accused persons were produced before the Court, IO of the present case namely Insp. Sanwar Mal had also come there. He handed over the photocopy of kalandara alongwith relevant documents to Insp. Sanwar Mal. Thereafter, after seeking permission from the Court, all the aforesaid three accused persons were formally arrested by Insp. Sanwar Mal in the present case. His statement was also recorded by the IO. After that I had left from there. Today, he had seen original kalandara u/s. 41.1 CrPC alongwith DD No.26, DD No.2, arrest memos of all the aforesaid three accused persons, their personal search memos and disclosure statements and their conviction slips and MLCs i.e. medical examination reports of all the three accused persons, these are the same which were prepared by him. Same alongwith copy of FIR No. 150/14 PS Khajuri Khas, are collectively exhibited as Ex.PW29/A (running FIR No. 150/14 State Vs. Amir & Ors. Page 34 of 62 into 27 pages). Photocopy of aforesaid kalandara which is marked as Mark PX (colly.) is the same which was handed over by him to Insp. Sanwar Mal. Witness correctly identified all the three accused persons.

In his cross-examination, he denied the suggestion that the accused were not apprehended from the aforesaid places or in the aforesaid manner or that is why, no effort was made by him to join any public person in the proceedings. He denied the suggestion that accused persons did not make any such disclosure statements or that he had forcibly obtained their signature on blank/typed forms during police custody or that he had subsequently got the same converted into various memos including their disclosure statements as per my own convenience. He denied the suggestion that Insp. Sanwar Mal alongwith two other public persons had visited the office of Crime Branch on 26.04.2016, before accused were actually produced before the Court of Ld. ACMM on that day or that the accused persons were shown to those public persons by him at the instance of Insp. Sanwar Mal. He denied the suggestion that he was deposing falsely being police official.

8. FORMAL WITNESSES

(i) PW5 ASI Pradeep Kumar was the duty officer at the relevant time. He received rukka from Ct. Nareshveer at about 1:25 am on 14.02.2014. He recorded FIR on the basis of rukka. He also made kayami DD No. 5-A and endorsement regarding the same as Ex.PW5/B. Copy of FIR as Ex.PW6/B. Witness was not cross-examined despite having given the opportunity.

FIR No. 150/14 State Vs. Amir & Ors. Page 35 of 62

(ii) PW7 Ct. Sanjay Kumar is photographer of Mobile Crime Team. He had taken the photograph on 14.02.2014 at about 12:15 am. Photographs are Ex.PW7/A-1 to A-6. He deposed that on 28.03.2014, IO/Insp. Shailder Tomar had come to the office of Crime Team and at that time, I/C Crime team had submitted his report and six photographs to him.

Witness was cross-examined, but nothing material came out in his cross-examination.

(iii) PW12 HC Ashok Kumar was working as DD writer on 13.02.2014 from 4:00 pm till 12 midnight. He deposed that at about 9:55 pm, he received information from Wireless Operator of PS regarding an incident of theft in House NO. 153, Gali No. 8, Dayalpur, D-Block. He recorded the same vide DD No. 54-B. The original register containing DD No. 54-B as Ex.PW12/A(OSR). At about 10:25 pm, he received information from wireless operator regarding quarrel and possession of plot in gali No. 7½, Narola Masjid, Dayalpur Village, 25 foota road, Delhi. He recorded the DD No. 58-B. The original DD register containing DD No. 58-B as Ex.PW12/B (OSR).

Witness was not cross-examined despite having given the opportunity.

(iv) PW14 HC Man Singh is the MHC(M) posted at PS Khajuri Khas. He produced register No. 19 regarding deposit and transfer of case exhibits, original road certificate and acknowledgment receipt of FSL which were proved as Ex.PW14/A, Ex.PW14/B, Ex.PW14/C and Ex.PW14/D. Witness was not cross-examined despite having given the opportunity.

(v) PW17 Ct. Gajender Singh deposed that on 06.05.2014, FIR No. 150/14 State Vs. Amir & Ors. Page 36 of 62 he had taken four sealed parcels alongwith sample seal to FSL, Rohini and deposited the parcels there. He had also obtained acknowledgment receipt from the office of FSL and same was also handed over the MHC(M) after coming to PS. In his cross-examination, he deposed that he had taken pullands vide RC number but he did not remember the RC number. Again said, he had taken the same vide RC No. 02/21/14. He denied the suggestion that he had told the RC number after looking into the file of Ld. Addl. PP.

(vi) PW21 W/Ct. Indu Bharti is the police official posted as Wireless Constable in CPCR, PHQ, New Delhi. She has proved the PCR Form as Ex.PW21/A with regard to the call at 100 number regarding theft in House No. 153, Gali No. 8, D-Block, Dayalpur, Delhi.

Witness was not cross-examined despite having given the opportunity.

9. MEDICAL/ EXPERT WITNESSES

(i) PW15 Dr. Neha Gupta had conducted the postmortem examination of the dead body of Yunus on 14.02.2014. The postmortem report bearing No. 175/14 as Ex.PW15/A. On 29.04.2014, she received an application for subsequent opinion from Insp. Shailender Tomar alongwith sealed parcel. After seeing the danda, she gave subsequent opinion Ex.PW15/A. As per the subsequent opinion injuries No. 1 to 6 as mentioned in the postmortem report were possible by the given danda for examination. She correctly identified the Danda. The danda is Ex.P-1. She correctly identified the clothes i.e. one jeans FIR No. 150/14 State Vs. Amir & Ors. Page 37 of 62 pant alongwith belt, one half sleeves T-shirt, two sweaters, one cloth piece, one pair of socks and one pair of shoes as the samse which were sealed after postmortem of the deceased. Same are Ex.P-2 collectively.

Witness was cross-examined but nothing material came out in his cross-examination.

(ii) PW23 Shashi Bala Pahuja is an expert from FSL, Rohini, who had conducted serological and biological examination of clothes of decease. Her report were proved as Ex.PW23/A and Ex.PW23/B. Witness was not cross-examined despite having given the opportunity.

(iii) PW24 Dr. Parmeshwar Ram is the doctor who has proved the MLC of injured Afzal as Ex.PW24/A by identifying the signatures of Dr. Garima. As per his observation, injured Afzal has received laceration of size 1 * 0.5 cm on left side of left eye.

In his cross-examination, he affirmed that name of assailant was not mentioned in the MLC. As per record, the patient was admitted in the hospital at about 11:10 pm on 13.02.2014. He had not personal knowledge of this MLC.

STATEMENT OF ACCUSED

10. After completion of prosecution evidence, the statement of accused persons was recorded under Section 313 Cr.P.C. wherein incriminating facts were put to the accused persons, which were denied by him. Accused Imran stated that he is totally innocent and has been falsely implicated in this case. He deposed that in FIR No. 150/14 State Vs. Amir & Ors. Page 38 of 62 the year 2011, his father had let out ground floor of H. NO. 60, H-Block, Gali No. 22, Old Mustafabad to Ahmed Saeed (already convicted) and his wife Shahna. Subsequent, the tenanted premises was got evicted from them by his father, due to which both of them had started having enmity with their family. Even at the time of vacating the premises, Shahna had extended threat to see them and had also used filthy language. Shahna had also lodged false complaints against him and his both brothers namely Azim and Amir at PS Khajuri Khas in the year 2012 and 2013 but said complaints were closed by the police as they were found to be false. During intervening night of 13/14.02.2014 at about 3:00 am 4-5 police officials had visited his house and forcibly took him and his brothers namely Amir and Azim to PS Khajuri Khas on the pretext of making some enquiry. They were illegally detained the PS throughout the day and during evening hours, they were allowed to go. Somewhere in the year 2016 they came to know that they had been declared proclaimed offenders in the present case and had moved an application for surrender before concerned Court but they were forcibly lifted by police officials of Crime Branch and they were produced before the concerned Court. He had nothing to do with the murder of Mohd. Yunus. He was not at all present at or near the place of incident on the alleged date and time. Accused Azim stated that he is totally innocent and have been falsely implicated in this case. In the year 2011, his father had let out ground floor of H. NO. 60, H-Block. Gali No. 22, Old Mustafabad to Ahmed Saeed (already convicted) and his wife Shahna. Subsequent, the tenanted premises was got evicted from them by his father, due to which both of them had started having enmity with their family. Even at FIR No. 150/14 State Vs. Amir & Ors. Page 39 of 62 the time of vacating the premises, Shahna had extended threat to see them and had also used filthy language. Shahna had also lodged false complaints against him and his both brothers namely Imran and Amir at PS Khajuri Khas in the year 2012 and 2013 but said complaints were closed by the police as they were found to be false. During intervening night of 13/14.02.2014 at about 3:00 am 4-5 police officials had visited his house and forcibly took him and his brothers namely Amir and Imran to PS Khajuri Khas on the pretext of making some enquiry. They were illegally detained the PS throughout the day and during evening hours, they were allowed to go. Somewhere in the year 2016 they came to know that they had been declared proclaimed offenders in the present case and had moved an application for surrender before concerned Court but they were forcibly lifted by police officials of Crime Branch and they were produced before the concerned Court. He had nothing to do with the murder of Mohd. Yunus. He was not at all present at or near the place of incident on the alleged date and time. Accused Amir stated that he is totally innocent and have been falsely implicated in this case. During intervening night of 13/14.02.2014 at about 3:00 am 4-5 police officials had visited his house and forcibly took him and his brothers namely Imran and Azim to PS Khajuri Khas on the pretext of making some enquiry. They were illegally detained at the PS throughout the day and during evening hours, they were allowed to go. Somewhere in the year 2016 they came to know that they had been declared proclaimed offenders in the present case and had moved an application for surrender before concerned Court but they were forcibly lifted by police officials of Crime Branch and they were produced before the concerned FIR No. 150/14 State Vs. Amir & Ors. Page 40 of 62 Court. He had nothing to do with the murder of Mohd. Yunus. He was not at all present at or near the place of incident on the alleged date and time. Accused persons also preferred to lead evidence in defence.

11. Accused has examined Sh. Kalam S/o Late Sh. Kalam as DW-1 and Sh. Saddam Husain S/o Sh. Iqbal Ali as DW2.

DEFENCE EVIDENCE

12. (i) DW1 Sh. Kalam deposed that on he was running a paan shop at main Road Dayalpur, 25-Foota at the corner of Gali No.22. On 13.02.2014, near his shop, a dual had taken place in which one old man having beard had hit a young man with danda blow on his head and pursuant to one single blow, that young man had fallen on the road and thereupon the said old man having beard gave 4-5 more danda blows on the person of said young man. He was sitting at my paan shop when the incident had taken place just opposite my pan shop. The incident took place in between two persons only i.e. the one old man having beard who had attacked and the young man who was attacked by the said old man. He had not seen these two persons never before or thereafter. Many persons had gathered at the place of incident. The incident is of about 8:00/8:15 pm. It was the day of Jumme Raat and Bazar was there and the same is called Jumme Raat ka bazar. None of these three accused present in the court room today, was present at the time of said incident.

In his cross-examination by Ld. Addl. PP, he deposed that the said shop is owned by Hazi Iqbal and he is tenant thereof and give Rs. 4500/- per month as rent. He has not any documentary FIR No. 150/14 State Vs. Amir & Ors. Page 41 of 62 proof i.e. rent agreement or rent receipt to show that the said pan shop is being run by him for last about 8-9 years. There were about 100-150 public persons gathered. On the day of incident or after that, he never gave any complaint/representation in writing to the police or before any other authority claiming that he was witness of the said incident. After about 1- 1 ½ months of the said incident, he came to know that accused persons were booked in the present case and were in custody. He affirmed that before 17.07.2019, he never appeared before any court of law or gave any complaint to the police or any other authority claiming that accused persons were not present at the place of incident. He denied the suggestion that no such representation/complaint was given by him as he was not present at the place of incident. He did not know any person by the name of Ahmed Saeed or who is cousin brother of the accused persons. He did not know if the said Ahmed Saeed was facing trial in this case. He denied the suggestion that Ahmed Saeed alongwith accused Amir, Imran and Azim had caused death of Mohd. Yunus and caused injuries to Mohd. Afzal.

(ii) DW2 Sh. Saddam Hussain deposed that he had been doing the business of building material from the ground floor at H.No. 157, D-Block, Gali No. 7, Dayalpur, Delhi. On 13.02.2014, he was present outside his shop. He saw one person giving danda blow to other person. The faces of both the assailant as well as the victim were towards me. The assailant had hit the victim on back side of his head. The assailant was having small beard and he was probably like Mulla. There was only one aforesaid assailant involved in the incident. Several public persons had gathered there. It was Jumme Raat Bazar which was FIR No. 150/14 State Vs. Amir & Ors. Page 42 of 62 held at the said place on that day. None of these three accused present in the court room today, was present at the time of said incident.

In his cross-examination by Ld. Addl. PP, he deposed that he started running building material shop from the ground floor of said house in the year 2010 and before that his father was running the said shop. He has not any documentary proof i.e. ITR or Sales Tax receipt or any other document showing that he is running the said shop. He denied the suggestion that no such shop was run by him in the year 2014 and this is the reason, he could not produce any document in this regard. He affirmed that since the day he came to know that accused have been booked in this case, he neither visited the PS nor gave any representation to the police or before any court of law claiming that accused persons were not present at the place of incident. He denied the suggestion that no such complaint/representation was made by him as he was not present at the place of incident. He volunteered that Police ke chakkaro se bachne ki wajah se mai police se nahi mila. He affirmed that before 17.07.2019, he never gave any statement or representation before the court claiming false implication of accused in this case. He volunteered that he wanted to avoid unnecessary appearance before the court which he has been facing even now. He affirmed that he is not a summoned witness. The relatives of Amir had come to his home to depose truth before this Hon'ble Court. He did not know any person by the name of Ahmed Saeed. He denied the suggestion that all the three accused persons alongwith their co-accused Ahmad Saeed were armed with dandas and they gave 4- 5 danda blows on the head of deceased Mohd. Yunus and also gave danda FIR No. 150/14 State Vs. Amir & Ors. Page 43 of 62 blows on the other parts of his body.

FINAL ARGUMENTS

13. This court has heard the arguments and perused the record. Ld. Addl. PP for the State submits that the testimony of all the prosecution witnesses is sufficient to bring home the guilt for the offences punishable u/s 302/3023/34 of IPC of accused persons beyond reasonable doubts. He laid emphasis on the testimony of PW2 Afzal, PW6 Arif and PW20 Shahana, who are the eyewitnesses got examined in the present case. It is submitted that there is no major contradiction or discrepancy in the testimony of prosecution witnesses.

14. On the other hand, it is submitted by Sh. Shahid Ali, ld. Counsel for all three accused persons that there are many contradictions and discrepancies in the statement of prosecution witnesses. There is no evidence on record to show that there were disputes between Ahmed Saeed and his wife. It is submitted that there are contradictions in the statement between Afzal and Shahana regarding the manner they reached at Delhi on 13.02.2014, this shows that they story of bringing Shahana to Delhi was false and setup. There is doubt regarding presence of PW6 Arif at the spot as PW25 Naveen Rathi stated in his cross- examination that Arif did not meet him either at the time when they he reached the spot for the first time or thereafter, when he reached the spot again or in the hospital. Even PW4 Idress Ahmad did not say anything that PW6 Arif was present at all during the fateful night or at the time of incident. Discrepancy in the version of PW6 Arif regarding the time at which the dead FIR No. 150/14 State Vs. Amir & Ors. Page 44 of 62 body was handed over. As per version of PW9, the dead body was handed over at 12:30 pm whereas PW6 Arif stated that the dead body was handed over at 1:30 pm. The prosecution has also not placed on record any documentary evidence like bus fare tickets, mobile location of PW Arif, the marriage cards which were being received by him. All these facts shows that Arif was not present at the time of incident. The name of Arif did not find in the testimony of Afzal, Shahna, Idress or Yunus or any police official to the effect that he was present in Delhi on the date of incident. As per the version of PW16, after receiving the information of death of Yunus, PW16 after picking Arif from his residence reached Mortuary at GTB Hospital. PW20 stated that her statement was recorded on 14.02.2014 at 3 to 3:30 pm at her house. However, PW24 Naveen Rathi stated that statement of Shahna was recorded on the same night at about 3 - 3:15 am. The version of PW Shahna regarding the time at which her statement has been recorded is believed to be proved that is is not possible for her to reach Aurangabad at the time of cremation of deceased Yunus as the dead body had been prepared for burial before Namaz-e-Maghrib at 6 pm.

15. It is submitted that both Shahna and Afzal have made contradictory statement as regards to their journey from Aurangabad to Delhi. Afzal says that he took 3 buses from Aurangabad till Delhi and started their journey at 4:45-5:00 Pm, whereas, Shahna Says that they started their journey at 5:00 Pm and 15 minutes time was taken to reach bus stop and they took the bus from there and de-boarded at Bhajanpura at 9:00-9:15 Pm and that it took around 3-3% hours in reaching Bhajanpura from Bulandshehar and that they waited for 15-20 minutes at FIR No. 150/14 State Vs. Amir & Ors. Page 45 of 62 Bulandshehar and- thereafter, for 5-10 minutes at Ghaziabad and that Shahna and her mother were sitting at back side of the bus from Bulandshehar to Ghaziabad and in front side from Ghaziabad to. Bhajanpura. Whereas, PW-2 Afzal says that Shahna and her mother were sitting in the bus in front side from Aurangabad to Bulandshahar and in the middle from Bulandshahar to Ghaziabad and that when to Delhi all were sitting in front portion of the bus. Therefore, there were major contradictions. As pet Shahna 15 minutes were taken for reaching to bus stop, there they waited for 10-15 minutes and thereafter, it took 45-60 Minutes to reach Bulandshahar. It took around 3-3% hours from Bulandshahar to Bhajanpura and they waited for 15- 20 minutes at Bulandshahar bus stand and waited for 5-10 minutes at Ghaziabad. PW-2 says that from Bhajanpura to their home it took 15 minutes from E-rickshaw. The timings difference is also there in the statement of these 2 witnesses. If the total time as per Shahna is calculated then Shahna must have reached Delhi at 10:45 Pm. Whereas, the complaint of theft was made at 9:55 pm from a mobile no. 9716656910, which later on was claimet to be of Afzal, in order to show that he was accompanying deceased Yusuf and he was also injured, whereas, the same is not possible even as per this statement when he had epme to Delhi at 10:45 Pm. The incident had taken place before 8:30 pm as has been said by PW-16 Saleem who says that he was informed about the death by his sister at 8:30 pm. So is stated by DW-1 & DW-2 who had stated that the incident had taken place at 8:00- 8:15/8:30 Pm on 13.02.2014.

16. It is further submitted that as per the prosecution case, there was rain at the place of incident at about 3:00 - 3:30 am in FIR No. 150/14 State Vs. Amir & Ors. Page 46 of 62 the intervening night of 13/14.02.2014. Perusal of photographs shows that even the concrete or the bloodstains on concrete are not fat which proves that the photographs must have been taken well before 10 am when the rain started. Hence, the incident had taken place much prior to 8:00 - 8:30 pm. It is further submitted that no blood-stains have been detected on the weapon of offence which was recovered from the possession of accused Ahmed Saeed. It is, therefore, urged that benefit of doubt be conferred upon the accused persons and they are entitled to be acquitted from all the charges.

FINDINGS OF THE COURT

17. Before analyzing the evidence led by the Prosecution in the present case, this court deems it proper to refer to some provisions of law and citations of Superior courts, which are found to be applicable to the facts of the present case.

Section 299 IPC Culpable homicide - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Section 300 IPC 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--

2ndly.--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--

3rdly.--If it is done with the intention of causing FIR No. 150/14 State Vs. Amir & Ors. Page 47 of 62 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--

4thly.--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.

Section 302 Punishment for murder - Whoever commits murder shall be punished with death or [imprisonment for life], and shall also be liable to fine.

Section 304 Punishment for culpable homicide not amounting to murder - Whoever commits culpable homicide not amounting to murder, shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

Section 319 Hurt - Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.

Section 323 Punishment for voluntarily causing hurt - Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

18. In the case of Chenda @ Chanda Ram vs. State of Chhatisgarh, reported as (2013) 12 SCC 110, Hon'ble Supreme Court considered the difference between 'murder' and 'culpable homicide not amounting to murder and has once again thrown light on this issue. It observed as under:

FIR No. 150/14 State Vs. Amir & Ors. Page 48 of 62

2. "Homicide', as derived from Latin, literally means the act of killing a human being. Under Section 299 of the Indian Penal Code (hereinafter referred to as the Code'), homicide becomes culpable when a human being terminates the life of another in a blameworthy manner. Culpability depends on the knowledge, motive and the manner of the act of the accused. The offence is punishable under either Section 302, or Section 304 which consists of two parts........."

19. In the same judgment, the Hon'ble Apex Court further referred to famous case of Virsa Singh vs. State of Punjab, (1958) 1 SCR 1495. It observed:

"11. The landmark judgment in Virsa Singh vs. State of Punjab draws a distinction between "Thirdly" of Section 300 and Exception 4 thereunder. The following are the four steps of inquiry involved:

i. first, whether bodily injury is present;

ii. second, what is the nature of the injury;

iii. third, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and iv. fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature."

20. Thereafter, it also took note of another landmark judgment in the case of State of Andhra Pradesh vs. Rayavarapu Punnayya and Another, (1976) 4 SCC 382, and observed:

"16. In State of Andhra Pradesh vs. Rayavarapu Punnayya and Another, it was held that culpable homicide without the special characteristics of murder is culpable homicide not amounting to murder, falling under Section 304 of the Code. It was further held that there are three degrees of culpable homicide. The first is murder under Section 300; second, culpable homicide not amounting to murder falling under the first part of Section 304, and third is culpable homicide not amounting to murder falling FIR No. 150/14 State Vs. Amir & Ors. Page 49 of 62 under the second part of Section 304. To quote:

"12. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder its specie. All murder is 'culpable homicide but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder, is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree'. This is the greatest form of culpable homicide which is defined in Section 300 as 'murder. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304,"

21. The present case is primarily based upon the testimony of three eye-witnesses got examined by the prosecution, namely, PW2 Afzal, PW6 Arif and PW20 Shahana. All the three above- stated eye witnesses have correctly identified all the accused persons at the time of recording of their respective depositions in the Court. They have deposed correctly about the manner in which the injured afzal and deceased younus were assaulted by the accused persons , and also about the body part in which injured Afzal has sustained injury. In the present case, PW2 Afzal is the eye witness as well as the injured. The evidence of an injured witness commands greater respect and weightage under the law. In several decisions, such as Jarnail Singh v. State of Punjab. (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6SCC 673; and Abdul Sayed v. State of Madhya Pradesh. (2010) 10 SCC 259.

FIR No. 150/14 State Vs. Amir & Ors. Page 50 of 62

22. Hon'ble Supreme Court has time and again reiterated the value of an injured witness and has observed:

"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or I want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein".

23. PW2 Mohd. Afzal has categorically deposed that on 13.02.2014 at about 5:00 pm, he alongwith his Chacha/uncle Yunus, his Bua Shahna alongwith her child and his Grandmother Zaibulnisha proceeded from their house Aurangabad for Delhi and reached at the house of his Bua i.e. H. No. D-153, 3rd floor, Gali No. 7. Dayal Pur, Delhi at about 9:30 pm. There they saw that the lock of the door was broken and the lock was hanging with kunda. After opening the door, they went inside the house and they noticed that household articles were scattered here and there. On checking the house, his Bua stated to them that some articles including money were missing. Thereafter on the asking of his Bua Shahna, he made a PCR call at 100 number from his mobile phone no. 9716656910 immediately regarding the theft in the said house. After writing for about 10-15 minutes, police did not come there. Thereafter, he alongwith Chacha Yunus came FIR No. 150/14 State Vs. Amir & Ors. Page 51 of 62 down on the road to see whether police came or not. As soon as they came on the road, they had seen Imran, Amir, Azim and Ahmed Saeed were standing there armed with lathis and dandas. Suddenly, Ahmed Saeed had given a danda blow on the head of his Chacha Yunus from behind. After receiving the danda blow, his Chacha Yunus sat down and felt giddiness. Thereafter, all the four assailants Imran, Amir, Azim and Ahmed Saeed started giving beating his Chacha Yunus with lathis and dandas indiscriminately. During the course of incident, he intervened, on this Imran had given danda blow on my forehead above eyebrow. As soon as the assailants started giving beating to his Chacha Yunus, he raised alarm on which some neighbours, his Bua Shahna and his grandmother also reached at the spot. Thereafter, all the four assailants fled away from the spot. When the accused persons started giving beatings to him and his Chacha Yunus, they asked them the reason for beating them but they did not give any chance to them. After receiving injuries, her Chacha Yunus became unconscious.

24. PW20 Shahana, another eye-witness of the incident, has fully supported the version of PW2 Afzal by categorically deposing that on 13.02.2014, she received a telephone call from her neighbour Nazma that the accused Ahmed Saeed and his nephews (bhanje) Imran. Amir and Azim broken lock of her house/room of Dayalpur. Thereafter, she immediately alongwith her newly born child Mohd. Ubed, brother Yunus mother Zaibunisha and nephew Afzal came to her husband's house at about 09.30 p.m. on 13.02.2014. She found that a lock which was in broken condition was hanging on the latch and the door lock fixed in the door was lying inside in broken condition. Some of FIR No. 150/14 State Vs. Amir & Ors. Page 52 of 62 her articles were lying in scattered condition inside the room and some articles were missing. She asked her nephew Afzal to make call at 100 number. He made call at 100 number. They waited for about 10 minutes. Police did not come. Her brother Yunus and nephew Afzal came down when police did not come. She and her mother stayed in my room. When she heard noise of quarrel from the side of gali, she and her mother seen through window of her room that Ahmed Saeed and his nephews Imran, Amir and Azim were beating her brother Yunus with dandas. The accused Ahmed Saeed hit a danda on back side of head of Yunus. The accused Ahmed Saeed, Amir, Imran and Azim were carrying dandas/ lathies. When her nephew Afzal intervened to save Yunus, Imran hit a danda on right side of forehead of Afzal and he became unconscious. The accused Ahmed Saeed given two danda blows on forehead of Yunus. All the four accused persons were beating Yunus with dandas/lathies. She alongwith her mother came down. The accused Ahmed Saeed was stating that 'in dono ko jaan se maar do, ye bachne na paaye'. All the accused persons ran away after seeing them.

25. The testimonies of both PW2 and PW20 are consistent with their respective statement recorded by the IO during the investigation. Both PW2 and PW20 have stood by their respective version which were recorded during the trial of accused Ahmed Saeed. There is no reason to doubt the presence of said witnesses at the spot as their names find mention in the testimony of investigating police officials, namely, PW1 ASI Deepak and PW25 SI Naveen Rathi, when they visited the place of incident. The post-mortem report Ex.PW15/A of deceased Yunus and MLC Ex.PW24/A of injured Afzal corroborates the FIR No. 150/14 State Vs. Amir & Ors. Page 53 of 62 version of eyewitnesses PW2 and PW20. As per the MLC Ex.PW24/A, PW2 Afzal has received laceration of size 1 * 0.5 cm on left side of left eye. As per the post-mortem report Ex.PW15/A, the cause of death of deceased Yunus was opined as shock as a result of ante-mortem injury to head produced by blunt force impact. It is established from the PM report that deceased Yunus had received multiple injuries on his body and as per the subsequent opinion Ex.PW15/B, all the six injuries mentioned in the post-mortem report were opined to have been possibly caused by the danda (Ex.P1) which was given for examination. It is proved that the accused persons Amir, Imran and Azim had shared common intention with co-accused Ahmed Saeed (already convicted) in committing the alleged offence.

26. Learned defence counsel argued that there was no blood- stain on the recovered danda and, therefore, this recovery should not be believed.

27. However, we cannot lose sight of the eyewitness account. It is settled position in law that testimony of an eyewitness is to be preferred to that of a medical witness. Reference may be made to State of U.P. v. Hari Chand (2009) 13 SCC 542, wherein the Hon'ble Apex Court told the position of law thus:

"In any event, unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy."

28. The danda is a possible weapon of offence. Though no blood spots were found on the danda, but the eyewitnesses have duly identified the said danda. In view of the law on the issue, the testimony of the eyewitnesses will be preferred. It might be that the blood was dried or it might have been wiped out by the FIR No. 150/14 State Vs. Amir & Ors. Page 54 of 62 accused. There can be many reasons for blood not being found on the danda. But clear and categorical evidence of eyewitnesses establish that this danda was used in the offence.

29. Both PW2 Afzal and PW20 Shahana have correctly identified the recovered weapon of offence, which was exhibited as Ex.P1, which is a possible weapon of offence. Though no blood spots were found on the danda, but the eyewitnesses have duly identified the said danda. In view of the law on the issue, the testimony of the eyewitnesses will be preferred. It might be that the blood was dried or it might have been wiped out by the accused. There can be many reasons for blood not being found on the danda. But clear and categorical evidence of eyewitnesses establish that this danda was used in the offence.

30. In the present case, co-accused Ahmed Saeed has already been convicted vide order dated 19.07.2017 for the offences punishable u/s 302 and u/s 323 of IPC. However, convict Ahmed Saeed had preferred an appeal against the said judgment and order on sentence dated 17.08.2017. In Criminal Appeal No. 998/17, the Hon'ble High Court of Delhi vide judgment dated 24.01.2023 had modified the conviction of convict Ahmed Saeed, from the offence punishable u/s 302 IPC to section 304-I IPC while observing as follows:

"Further despite the fact that no blood was found by the Doctor on the danda, the danda as a weapon of offence is connected to the offence as witnesses have identified the same in the Court and an opinion has been rendered by the post-mortem Doctor that the injury to the deceased was possible by the said weapon. Based on the fact that the danda used for inflicting injuries to the deceased was a very heavy danda with nodes therein, the learned Trial Court has convicted the appellant for offence punishable under Section 302 IPC. However, learned Trial Court failed to appreciate the fact that the alleged FIR No. 150/14 State Vs. Amir & Ors. Page 55 of 62 offence was not committed by pre-meditation. It is the case of the prosecution itself that when Shahna came to know from the neigbour that her husband was breaking open the lock of the house where she was residing with her son prior to coming to her parents house, she along with her mother, brother and nephew left for Delhi and reached there at about 9.30 p.m. At the main gate of the house, the broken kunda was lying hanging and some goods were scattered. They made a call at 100 number, however, the police did not arrive. The offence has not taken place at the house of Shahna but slightly away from there on the road as even Shahna stated that she saw the beatings going on at the road. As per the statement of the appellant, he was not found at the house and rather, the complainant and her family came to him. In view of the fact that the appellant had no knowledge that Shahna and her family members were coming to Delhi, the case of the appellant squarely falls in the exception 4 to Section 300 IPC, thereby, the offence alleged against the appellant would fall in the category of one under Section 304-1 IPC and not under Section 302 IPC in view of the nature of danda. Further, it was not a single blow given on the head of the deceased but three blows were given on his head as also the back, resulting in fracture and extravasation of blood in the skull as also fracture of the body of sternum. Therefore the decisions relied upon to show that in case of a single injury, offence punishable under Section 304-11 IPC is made out are not applicable.

31. It is contended by ld. Defence counsel that presence of PW6 Arif at the spot is doubtful. This Court has perused the testimony of PW6 Arif. Though the version of PW6 appears to be similar to the version of other eyewitnesses, namely PW2 and PW20 yet his presence at the spot appears to be doubtful as his name did not find mentioned in the testimony of PW2 and PW20. Even PW25 SI Naveen Rathi had stated in his cross-examination dated 31.01.2019 that Arif did not meet him either at the time when he reached the spot for the first time or thereafter, when he reached the spot again or in the hospital. Thus, on this aspect this FIR No. 150/14 State Vs. Amir & Ors. Page 56 of 62 Court is an agreement with the contention raised by ld. Defence Counsel and therefore, the testimony of PW6 Arif cannot be relied upon. Nevertheless, it is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court.

32. In Lallu Manjil Vs. State of Jharkhand, AIR 2003 SC 854 it has bee held that, "The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony of a single witness, the court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court as to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness".

33. It is further contended on behalf of accused persons that there are material contradictions and discrepancies in the version of PW2 and PW20 with regard to the timings of their reaching at Delhi on the date of incident, the mode of transportation, sitting place of witnesses at the time of their arrival in Delhi. Several contradictions with regard to timing of their reaching at Aurangabad for the purpose of cremation of deceased Yunus which make the prosecution case doubtful and therefore, the accused be given benefit of doubt on that account.

34. I have heard arguments on this aspect addressed by the Ld. Senior PP as well as the Ld. Defence Counsel and after going though their arguments as well as the testimony of the material FIR No. 150/14 State Vs. Amir & Ors. Page 57 of 62 witnesses I do not find any discrepancy which either discredits the substantial testimony of the material witnesses and goes to the root of the charged offence or makes the case of prosecution doubtful. It is pertinent to note that all the discrepancies and contradictions as pointed out by the ld. Defence Counsel are, in the opinion of this court, trivial in nature and doesn't pertain to the main incident with regard to the place, time and the manner of assault upon the victims in the present case. and are thus not fatal to the prosecution case.

35. As observed in the case of State of Rajasthan Vs. Smt. Kalki and Anr. {1981 (2) SCC 752}, "normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however, honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."

36. In the case of State of H.P. v. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Supreme Court of India as that, "In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........

.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."

37. Further, in the case of Surender Singh v. State of FIR No. 150/14 State Vs. Amir & Ors. Page 58 of 62 Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under;

"It is well-established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."

38. As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v. State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Honm'ble Supreme Court has held that when the discrepancies were comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions.

39. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981) 2 SCC 752 it has been held that, "in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person".

40. Even otherwise, 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 details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But FIR No. 150/14 State Vs. Amir & Ors. Page 59 of 62 Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

41. The Hon'ble Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1), the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses:

(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the FIR No. 150/14 State Vs. Amir & Ors. Page 60 of 62 time sense of individuals which varies from person to person.

(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.

42. Thus, the contention with regard to the discrepancies and contradictions in the testimony of prosecution witnesses, as pointed out by Ld. Defence counsel during the course of final arguments, also fails to inspire the confidence of this Court.

43. In the present case, it is noted that there is nothing on record that the accused persons had committed any prior meeting or planning before committing the alleged offence. Vide judgment dated 24.01.2023, the Hon'ble High Court of Delhi had also noted that the alleged offence was not committed by pre- meditation and inter-alia on this ground, the conviction of the convict/ appellant Ahmed Saeed was modified from under section 302 IPC to section 304 part I of IPC. This court of the opinion that the case of the prosecution falls squarely in the exception 4 to section 300 of IPC. Even though, the accused persons have been charged with an offence punishable u/s 302 of IPC yet they can be convicted for minor offence if the facts are proved which reduces it to a minor offence in view of section 222 FIR No. 150/14 State Vs. Amir & Ors. Page 61 of 62 of Cr.P.C.

44. The testimony of defence witnesses, namely, DW1 Sh. Kalam and DW2 Saddam fails to inspire the confidence of this Court as during their cross-examination by ld. Addl. PP for the State, they failed to give cogent explanation with regard to their presence at the spot. Nor they have produced any documentary proof to show that they were running their shop near to the place of incident and at the time of incident. Nor they give any plausible explanation for not filing any complaint before any authority with regard to the false implication of accused persons.

DECISION OF THE COURT

45. In the opinion of this court, the testimony of prosecution witnesses comes out to be clear, convincing, trustworthy and inspires confidence of this court. Nothing material came out in their respective cross-examination. There is no reason to disbelieve the version of prosecution witnesses. All the ingredients of section u/s 304 part I of IPC and section 323 of IPC are satisfied. The prosecution has successfully proved beyond reasonable doubt its case against the accused persons Amir, Imran and Azim. Accordingly, accused Amir, Imran and Azim are hereby convicted for the offences punishable under section 304 part I of IPC and section 323 of IPC read with section 34 of IPC. Let the convicts be heard on the quantum of sentence and grant of compensation on the next date of hearing.

                                                    Digitally signed
                                         PANKAJ by PANKAJ
ANNOUNCED IN THE OPEN COURT                     ARORA
                                         ARORA Date: 2023.10.06
 ON 04.10.2023                                  17:02:31 +0530


                              (PANKAJ ARORA)
                 ADDL. SESSIONS JUDGE-04: NORTH-EAST/
                             KARKARDOOMA/04.10.2023


FIR No. 150/14          State Vs. Amir & Ors.                   Page 62 of 62