Delhi District Court
State vs . on 30 January, 2010
1
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS:DELHI
State
Vs.
1. Nafees Ahmed
S/o Sh. Zamil Ahmad
R/o H.No.283 Janta Colony,
Welcome, Delhi.
2. Shakil @ Ghanti
S/o Rahisuddin.
R/o H. No. 808,
Gali No. 10/5, Chauhan Bangar,
Jafrabad, Delhi.
FIR No.111/2004
P.S. : Seelamapur
U/s : 302/34 IPC
and 27 Arms Act.
Sessions Case No. : 108/2008
Date of Institution of case : 08.02.2005
Date on which reserved for Judgment : 16.01.2010
Date of Judgment : 30.01.2010
2
JUDGMENT:
In brief the case of the prosecution is that on 6.3.2004 on receipt of DD No. 4-A S.I. Nitin Kumar along with Constable Sanjay went to opposite Gali No.10 Brahampuri and at Mohan Nursing Home, he came to know that a person was shot and had been taken to GTB Hospital. Thereafter, they went to GTB Hospital and obtained the MLC of injured Shamshul Hassan, on which doctor had declared the injured brought dead with gun shot injury. In the hospital, eye witness of incident namely Aga Zafar Mirza met SI Nitin Kumar, who made his statement to SI Nitin Kumar, on which SI Nitin Kumar made his endorsement and got the present case registered through Constable Sanjay in the Police Station Seelampur.
The complainant Aga Jafar Mirza has stated 3 that he has a factory under the name and style of Beauty Metal Works and used to prepare monograms for TATA, in Street No. 48, Jafrabad, Delhi. On 6.3.2004 at about 9.30. a.m. he was going to his in-laws house. When he reached a little ahead from the corner of street No. 48/2, he saw that his father-in-law Shamshul Hassan were talking to three persons. One person other than those three persons was standing at a distance of 2-3 meter from those persons. After few seconds, those three persons grappled with his father-in-law. He further alleged in the complaint that one of those persons aged 25-30 years who was short hight & medium built caught hold of his father-in-law from his back and the other person aged 28-30 years (height 5'.7'') medium built was pulling his feet downwards and the third one i.e. Nafees Ahmed, who was residing at Janta Colony, Welcome and was doing the work of ''Satta'' to whom he knew, put a 4 country made pistol on the mouth of his father-in-law and fired a shot on the chin and in armpit of his father- in-law. His father-in-law run away towards Khajurwali Masjid after crying Mar diya Mar diya & while running away, the other person fired a shot on the back of his father-in-law as a result of which, his father-in-law fell down at some distance. Nafees and one other boy ran away towards Khajurwali Masjid and other two ran towards the opposite side. They were also saying that in case any one follows them, then he will be shot. In the meantime, his brother-in-law Mirza Gulshan Beg reached there, who also saw the accused persons running from there. Saffar Abbas also reached at the spot. His father-in-law was removed to Mohan Nursing Home by Mirza Gulshan Beg and Sabbar Abbas on a two wheeler scooter. He went to the said Nursing Home on 5 foot. Doctor of the Mohan Nursing Home advised them to take the patient to GTB Hospital. Thereafter, his father-in-law was taken to GTB Hospital where doctor declared his father-in-law dead.
On this statement FIR was registered and investigation was carried out. Thereafter a charge sheet against the accused Nafees was filed by SHO PS Seelamapur showing the name of accused Nafees in Column no.2. Thereafter accused Nafees surrendered in the court and he was arrested in this case and supplementary charge sheet was filed against him.
Ld.M.M after supply of copies etc. to the accused Nafees Ahmad committed the case to the court of Sessions.
Vide orders dated 7.04.2005, my Ld. Predecessor framed a charge for offence punishable under section 302/34 IPC against the accused Nafees 6 Ahmad to which he pleaded not guilty and claimed trial.
Thereafter, on 7.7.2005 while S.I. Nitin Kumar was posted at Police Station Seelampur received information from Special Staff of South District regarding the arrest of accused Shakeel @ Ghanti in a case pertaining to Special Staff, who made his disclosure statement about his involvement in the present case. After permission of the court, accused Shakeel was arrested on 14.7.2005 he went to Tihar Jail for interrogation of the accused in the present case. After completion of the investigation supplementary charge sheet was filed the accused Shakeel @ Ghanti.
Vide orders dated 21.02.2006, my Ld. Predecessor framed a charge for offence punishable under section 302/34 IPC against the accused Shakeel @ Ghanti to which he pleaded not guilty and claimed trial. 7
In support of its case, the prosecution has examined 19 witnesses. Thereafter the statements of the accused were recorded U/s 313 Cr.P.C. wherein they denied the allegations against them. They have stated that they were falsely implicated in this case.
PW-1 is Head Constable Ajeet Singh.
He deposed that on 6.3.2004 he was working as Mohrer Malkhana at Police Station Seelampur, Delhi. On that day, Inspector Data Ram deposited four parcels with him duly sealed with the seal of DR. He recorded an entry at serial No. 4102 of Register no. 19 in this regard. On 16.3.2004 again Insp. Data Ram deposited six parcels, duly sealed with the seal of GTB Hospital vide entry at Serial No. 4118 of Register No. 19. On 29.4.2004, he handed over all the aforesaid parcels to Constable Bhupender for depositing the same in FSL Rohini vide RC No. 8/21 in intact condition, who handed over the 8 road certificate to him after depositing the case property in FSL Rohini on the same day. The copies of the entries recorded by him in Register No. 19 are Ex. PW-1/A and Ex. PW-1/B. PW-2 is the complainant Sh. Aga Jafar Mirza. He deposed that he used to prepare monograms for TATA Six Wheeler Vehicles and his factory was located at premises No. 1466, Street No. 48, Jafrabad, Delhi.
PW-2 further deposed that on 6.3.2004 at about 9.30. a.m. he was going to his in-laws house from his factory. When he reached a little ahead of the corner of street going towards his in laws house, he saw his father-in-law and three persons exchanging hot words. One person other than those three persons was present at a distance of 1½ meter from those persons. Those persons grappled with his father-in-law. He 9 further deposed that one of those persons caught hold of his father-in-law from his neck and the other started pulling his leg and accused Nafees Ahmed fired one shot just below the chin and the other shot in the armpit of his father-in-law. His father-in-law tried to run away and could speak killed killed ( Mar diya mar diya ) and thereafter he could not speak at all.
PW-2 further deposed that his father-in- law ran towards Khajur Wali Masjid and accused Shakil Ghanti fired a shot at the back of his father-in-law. Shakil Ghanti was standing at a distance of 1½ meter from the aforesaid three persons. His father-in-law moved to a distance of 20 paces and fell down in the street. After firing shots at his father-in-law, the offenders ran away. In the meantime, his brother-in-law Mirza Gulshan Beg reached there, who also saw the 10 accused persons running from there. Saffar Abbas also reached at the spot. His father-in-law was removed to Mohan Nursing Home by Mirza Gulshan Beg and Sabbar Abbas on a two wheeler scooter, which was being driven by Mirza Gulshan Beg. He went to the said Nursing Home on foot. Doctor of the Mohan Nursing Home advised them to take the patient to GTB Hospital. Thereafter, his father-in-law was taken to GTB Hospital in a Vikram Tempo. On examination, the doctors of GTB Hospital declared his father-in-law dead.
PW-2 has further deposed that police reached there and recorded his statement, which is Ex. PW-2/A. Accused Nafees was known to him since he used to visit his father-in-law. Other three offenders were not known to him on the date of incident. Police had not reached at the spot. From the hospital, police had taken him to the spot. Police had lifted blood from 11 the spot as well as from the place in front of Mohan Nursing Home.
PW-2 has further deposed that accused Shakil @ Ghanti was arrested somewhere in South Delhi. His photograph was shown to him and I.O. requested him to accompany him to jail for TIP proceedings. On seeing the photograph, he had confirmed that he was the offender. When he went to jail for TIP, Shakil @ Ghanti refused to participate to join the TIP. Accused was taken on police remand and at that time, he was got identified by him. He identified accused Shakil @ Ghanti in the Police Station.
PW-3 is Constable Babu Lal. He deposed that on 6.3.2004 while he was posted at Police Station Seelampur, on receipt of special reports from Duty Officer for onward transmission to the Magistrate of the area and Senior Police Officers, he gave the 12 special reports at the residence of Ld. Magistrate of the Area and Senior Police Officers.
PW-4 ASI Subhash Chand was given up being unnecessary.
PW-5 Smt. Khursheed is the wife of deceased Shamshul Hassan. She deposed that it was the day of Holi. It was at about 9.00 or 9.15 a.m., she was present in her room. His husband was also present in that very room. She heard Tahir calling his husband. She called her husband to tea and he went down stairs saying that he was being called by Tahir. After about five minutres, he heard bang of gun shot. Her son and her son-in-law ran down stairs and she also followed them. She heard persons crying in the street that her husband had received bullet injuries. Her husband was removed to hospital.
PW-5 Smt. Khursheed further deposed 13 that police had not met her at all. She had not detailed facts before police. PCR officials reached at the spot and she had not narrated facts before them. She further deposed that she went down stairs and told PCR officials that her husband was shot at by Tahir. She again said that her husband was called down stairs by Tahir and thereafter some one shot at him. She had not stated to PCR that Tahir had shot at her husband.
PW-6 is Saffar Abbas. He deposed that on 6.4.2004 at about 9.30 or 9.45 a.m., he was present at his in laws house at Zafrabad, Delhi. He heard noise of bang thrice and he immediately went down stairs. His co-brother (sadu), namely Zaffar, brother-in-law Gulshan and mother-in-law had gone down stairs prior to him. Shamshul Bhai was lying in the street, in front of his in laws house and Gulshan and Zafar were standing at the corner of the street. Gulshan and Zafar removed 14 Shamshul Bhai to hospital in a three wheeler scooter. He followed them. He was taken to Mohan Nursing Home, Brahmpuri and from there he was taken to GTB Hospital on the asking of Doctors as his condition was critical. Doctors of GTB Hospital declared him dead. At that time he was having no mobile phone with him. He had not given any information to police from phone of any one.
PW-7 is Constable Maina Wati. She deposed that on 6.3.2004 she was posted at Police Control Room, Delhi. On that day, at about 9.45 a.m., she received a telephone call to the effect that one person has been shot shot at Khajur Wali Masjid Gali, Zafrabad, Delhi and on this information, she filled the PCR Form, the photo copy of the same is mark PW-7/A. The message was transmitted on PCR Net for further action.
PW-8 ASI Sheela was duty officer, who 15 stated that on 6.3.2004 at 9.40 a.m., on receipt of a call to the effect that one person has been shot at in front of Street No. 10, Bhrampuri, Delhi, she recorded DD Entry No.4-A, copy of which is Ex. PW-8/A. PW-8 ASI Sheela further deposed that on that day, at about 9.50 a.m. on receipt of another call to the effect that one person was shot at in front of Street No. 38, Khajur Wali Masjid, Jafrabad, Delhi she recorded DD No. 5-A, copy of which is Ex. PW-8/B. Both the said DDs were given to SI Nitin Kumar for action in the matter.
PW-8 ASI Sheela further stated that on that day at 11.50 a.m. on receipt of rukka from Constable Sanjay sent by SI Nitin Kumar, she recorded FIR in this case, copy of which is Ex. PW-8/C. After registration of the case, she recorded DD No. 9-A, DD No. 10-A, copies of the same are Ex. PW-8/D and Ex.
16
PW-8/E.
PW-9 is S.I. Mukesh Kumar Jain
Draftsman, North East District, Seelampur, Delhi. He deposed that on 19.4.2004, he along with Insp. Data Ram Kumar reached at the spot i.e. Gali No.48, Jafrabad. SI Nitin Kumar also reached there. On the pointing out of public witness Aga Jafar Mirza and SI Nitin Kumar, he took rough notes and measurements of the spot. On 23.4.2004 on the basis of rough notes and measurements,he prepared scaled site plan of the spot, which is Ex. PW-9/A. PW-10 Gulshan Beg is the son of deceased Shamshul Hasan. He deposed that on 6.3.2004 at about 9.30 a.m. he was present on first floor of his house and was doing his breakfast with his wife. His mother and younger brother-in-law ( jija) namely Safar Abbas were on the second floor of the house. He heard 17 three noise of bang (as produced when a bomb is exploded or a cracker is fired or a gun shot is fired ). After a few seconds, he heard a noise of commotion, some one was saying ''a shot has been fired'', ''a shot has been fired''. When he reached on the ground floor, outside his house, I found his brother-in-law ( jija) Zafar standing there. He saw that accused persons were running away in the street having country made pistols in their hands. He saw that his father was lying at a distance of about 8-10 paces away. Accused persons and their other two associates were saying that who would chase them, would be shot at.
PW-10 Gulshan Beg further deposed that his brother-in-law ( jija) told him that the aforesaid four persons had shot at his father. His younger brother-in- law Safar Abbas had also reached there and they removed him to Mohan Nursing Home on a two wheeler 18 scooter. On examination. doctors advised them to remove his father to GTB Hospital. His brother-in-law Zafar also reached there. They hired a Viktram Three Wheeler Scooter and removed his father to GTB Hospital, where doctors declared him brought dead. He further deposed that one Sikh gentleman in civil dress met them, who was ACP and he recorded his statement. Thereafter, he recorded the statement of Zafar. After postmortem, he identified the dead body of his father and his statement was recorded by the police in this regard which is Ex. PW-10/A. Dead body was released to him vide memo Ex. PW-10/B. PW-11 is Head Constable Kanahiaya Lal. He deposed that on 6.3.2004 he was posted at Police Control Room, PHQ, Delhi from 8.00 a.m. to 2.00 p.m. On that day at about 9.34 a.m., he received information through mobile phone No. 9811033838 that 19 one person was shot near Mohan Nursing Home, Street No. 10, Main Road, Bhrampuri and the name of informant was Safar. He recorded this information in PCR Form and conveyed the information on the Net. He further deposed that the photo copy of PCR Form is Ex. PW-11/A and the same was filled in his handwriting. The record of this case has been destroyed vide order No. 2554 /Record Branch/PCR dated 01.09.2006.
PW-12 is Dr. Arvind Kumar from UCMS & GTB Hospital, who conducted the postmortem on the dead body of deceased Shamsul Hassan on 7.3.2004 and gave his report, which is Ex. PW-12/A. After postmortem, he opined that time since death was one day and cause of death was haemorrhagic shock due to antemortem injuries to internal organs produced by projectile of a firearm. Injury No.2 and 3 were sufficient to cause death in ordinary course of nature individually 20 and collectively.
PW-13 is Constable Devender Kumar, who joined the investigation with SHO Data Ram on 7.3.2004 and remained with the dead body of deceased Shamshul Hassan at Mortuary till the time of taking the same for postmortem.
PW-14 is Constable Bhupender Singh, who has deposited the parcles at FSL Rohini in intact condition on 29.4.2004.
PW-15 Constable Sunder Lal is the Photographer. He has deposed that on 6.3.2004 he along with crime team oficials of North East District reached in Street No.48, Jafrabad around 11.00 a.m. as they were called by the I.O. On the directions of the I.O., he took snaps of the spot. He was taken to Mohan Nursing Home, Brahmpuri. A blood stained cloth and blood were lying near Mohan Nursing Home. He took 21 snaps of spot at the instance of the I.O. He proved the positive photographs of the spot as Ex.PW-15/A-1 to A- 10 and negatives of the photographs are Ex.PW15/B-1 to B-10.
PW-17 is Dr. Parmeshwar Ram CMO, GTB Hospital, Shahdara, Delhi, who proved the MLC No.C-607/04 in respect of Shmsul Hassan,which was prepared by Dr.Rahul Verma, which is Ex. PW-17A, which bears the signatures of Dr. Rahul Verma at point A. He deposed that he identified the handwriting and signatures of Dr.Rahul Verma on the MLC as he has seen him writing and signing during the course of his duties in the hospital.
PW-18 is Head Constable Rajesh. He deposed that on 6.7.2005 he was posted with Special Staff South Distt. On that day, he along with S.I.Vijay Kumar and other staff were on patrolling duty in a 22 government vehicle and were present in the area of Police Station New Friends Colony. On a secret information received by SI Vijay Singh that two boys would be coming on Hero Honda Motor Cycle of red colour from Okhla. They did ''nakabandi'' at opposite Surya Hotel, Okhla Road. At 7.30 p.m.a Hero Honda Motor Cycle came and on seeing the barricade, the motor cycle rider attempted to run backwards and also attempted to fire on them. However, they apprehended and the name of one of them was Sakil @ Bunty. He further deposed that on interrogation, the accused Sakil @ Bunty disclosed his involvement in the present case. The copy of disclosure statement is Ex.PW-18/A. PW-16 ACP Data Ram is the Investigating Officer. He deposed that on 6.03.2004 he was posted at Police Station Seelampur as SHO. On that day, around 9.40 or 9.50 a.m., on receipt of two call 23 vide Ex. PW-8/A and Ex. PW-8/B regarding shotting incident at Jafrabad and main road Bharampuri, S.I. Nitin Kumar was deputed to attend the call and he also reached at the spot along with his staff, where he came to know that injured had been removed to GTB Hospital. He went to GTB Hospital, there SI Nitin Kumar was already present, who had already recorded the statement of Aga Jafar Mirza.
PW-16 ACP Data Ram has further deposed that after registration of the case, he took up the investigating of this case. During investigation, he recorded the statement of Gulshan Mirza in the hospital, sent the dead body of Shamsul Hassan to mortuary GTB Hospital. Gulshan Mirza and Aga Jafar Mirza identified the dead body of Shamshul Hassan and their statements Ex. PW-2/B and Ex. PW-10/A were recorded in this regard, filed the Inquest Form Ex. PW-16/A, recorded 24 brief facts Ex. PW-16/B, made a request for postmortem of the dead body vide Ex. PW-16/C. Being holiday, the postmortem on the dead body could not be conducted and thereafter, he proceeded for the spot. At the spot, inspected the spot in the presence of Aga Jafar Mirza, prepared rough site plan which is Ex. PW2/DA3. Safar Abbas informed him that he along with Gulshan Mirza had removed the injured to Mohan Nursing Home by a two wheeler scooter and blood was lying near Mohan Nursing Home. He summoned the crime team & photographer. They reached Mohan Nursing Home and he got the spot photographed. Crime team had also inspected the spot. He lifted the blood samples from the spot. He also lifted blood stained earth and earth control and seized the same vide memo Ex. PW-2/C after converting the same into the parcels, recorded statement of Abbas and S.I Nitin Kumar. He made efforts 25 to search the accused persons at their residential addresses in the presence of SI Nitin Kumar and Aga Jafar Mirza but they were not present at their addresses. Thereafter, they returned to the Police Station and deposited the exhibits in malkhana.
PW-16 ACP Data Ram has further deposed that on 16.3.2004 Constable Devender Kumar handed over three parcels duly sealed with the seal of GTB Hospital to him, which were seized vide memo Ex. PW-16/D. He got the scaled site plan Ex. PW-9/A prepared from SI Mukesh Kumar Jain. During investigation, he sent the exhibits to FSL through Constable Bhupinder, recorded statements of SI Mukesh Kumar Jain, Constable Bhupinder and Malkhana Moharar & supplementary statement of SI Nitin Kumar. He made efforts to nab the accused Nafis and got him declared proclaimed offender on 4.6.2004. Accused 26 Nafis had surrendered before the court and after permission of the court, he arrested the accused in this case vide arrest memo Ex. PW-16/E. No recovery was effected from the Nafis. On his transfer, he handed over the record to Moharar Record.
PW-19 is S.I. Nitin Kumar is also Investigating Officer of the case. He deposed that on 6.3.2004 he was posted at Police Station Seelampur. On that day, on receipt of DD No.4-A ( Ex.PW-8/A), he along with Constable Sanjay went to opposite Gali No. 10 Brahampuri and from Mohan Nursing Home, he came to know that a person was shot and he had been taken to GTB Hospital. Thereafter, they went to GTB Hospital and obtained the MLC of injured Shamshul Hassan, on which doctors had declared the injured brought dead with gun shot injury. In the hospital, eye witness of incident namely Aga Zafar Mirza met him, 27 who made his statement Ex. PW-2/A to him on which he made his endorsement Ex. PW-19/A and handed over the same to Constable Sanajay for registration of the case with the request for transferring the investigation to some senior officer. He got the dead body preserved in Mortuary and deployed Consgtable Devender for its safeguard.
He further deposed that the further investigation of this case was handed over to Insp. Data Ram. He joined the further investigation with Insp. Data Ram ( PW-16). He also deposed on the similar lines of PW-16 ACP Data Ram regarding the investigation conducted by Insp. Data Ram in his presence.
PW-19 S.I. Nitin Kumar has further deposed on 7.7.2005 while he was posted at Police Station Seelampur, Special Staff of South Disitt. had informed vide DD lodged at the Police Station 28 regarding arrest of accused Shakeel @ Ghanti in a case pertaining to Special Staff, who made his disclosure statement about his involvement in the present case. After permission of the court, on 14.7.2005 he went to Tihar Jail for interrogation of the accused and formally arrested him vide memo Ex.PW-19/B and instructed the accused to keep himself in muffled face as he was to be put for TIP. He obtained the copy of the disclosure statement of accused Shakeel @ Ghanti which is Ex. PW- 18/A from the I.O. of the Special Staff. On 23.7.2005 the accused Shakeel was put to TIP but he refused to join the same. He obtained one day police custody of accused Shakeel and during the police custody, accused pointed out the place of incident in the presence of Aga Zafar Mirza and Mirza Gulshan Begh and he prepared pointing out memo which is Ex. PW-19/C. He recorded the disclosure statement of accused Shakeel, which is Ex. 29 PW-19/D. He recorded the statement of witnesses and after completion of the investigation filed the challan.
In defence, accused Nafees has examined one Sh. Laiek Ahmed as DW1, who has deposed that the accused is resident of his village. On 5th and 6th March 2004, accused Nafees was present in their village. On 5.3.2004 he along with accused Nafees went to Court at Hassanpur. On 6.3.2004 they remained at village Hassanpur from morning to night. The accused was having a ''Bidi'' factory at village Hassapur under the name and style of Nafees No.1 Bidi. On 6.3.2004 accused Nafees was not present in the area of Jafrabad nor he committed any offence. Lateron, he came to know that the police has falsely implicated the accused in the present case.
The accused Shakeel led no evidence in defence.
30
I have heard Shri Ashok Kumar Addl. P.P. for the State, Shri Rakesh Kochar Counsel for accused Nafees and Shri Bhu Dutt Sharma Counsel for accused Shakeel. I have also gone through the file.
In this case the prosecution has examined as many as 19 witnesses out of which PW-2 Aga Jafar Mirza is the only eye witness of the incident as per prosecution and therefore, the case of the prosecution rests upon the testimony of PW-2 Aga Jafar Mirza. The perusal of the file further reveals that PW-5 Smt. Khursheed, PW-6 Saffar Abbas and PW-10 Gulshan Beg are also the material witnesses. The scrutiny of their statements reveal that they reached at the spot after the incident.
It was submitted by Ld. Addl. P.P. for the State that the prosecution case stands proved from the statements of witnesses. It was submitted that all the 31 prosecution witnesses have supported the prosecution case.
It was submitted by Ld. Addl. P.P. for the State that PW-2 Aga Jafar Mirza who was the eye witness of the incident has fully supported the case of the prosecution.
On the other hand it was submitted by Ld. Counsels for the accused persons that the accused have been falsely implicated. It was submitted that There are material contradictions in the statements of the prosecution witnesses with regard to the place of incident.
It was further contended by Ld. Defence Counsels that in this case there are three places of occurrence. As per DD No. 4-A recorded at 9.40 a.m., the place of occurrence was Street No. 10 Brahampuri, Delhi, as per DD DD no.5-A recorded at 9.50 a.m. the 32 place of incident was Street no. 38, Khajuri Wali Masjid, Jafrabad and as per rukka the 3rd place of occurrence was Street no. 48, Jafrabad.
It was contended by Ld. Counsels for the accused persons that at the time of recording the said DDs PW-2 Aga Jafar Mirza was not in picture because neither the complainant PW-2 Aga Jafar Mirza informed at No. 100 nor informed to any authorities about the murder of deceased Shamshul Hassan, who was his father-in-law.
As per the version of PW-2 Aga Jafar Mirza the place of incident was the corner of street going towards the house of his in-laws house. As per version of PW-2 he reached a little ahead of the corner of street going towards his in laws house, he saw his father-in-law and three persons exchanging hot words and one person other than those three persons was present at a distance 33 of 1½ meter from those persons. Those persons grappled with his father-in-law. As per the version of PW-2 one of those persons caught hold of his father-in-law from his neck and the other started pulling his leg and accused Nafees Ahmed fired one shot just below the chin and the other shot in the armpit of his father-in-law. As per the version of PW-2, when deceased ran towards Khajur Wali Masjid, accused Shakeel @ Ghanti fired a shot at the back of deceased Shamshul Hassan. On the other hand PW-5 Smt. Khursheed who is the wife of deceased Shamshul Hassan, made a different story by saying that her husband was called by Tahir while they were present in a room at their house. After about five minutes, she heard bang of gun shot PW-5 Smt. Khursheed has further stated that she heard persons crying in the street that her husband had received bullet injuries. She further deposed that PCR officials reached at the spot 34 and sahe had anot narrated facts before them. She further deposed that she went down stairs and told PCR officials that her husband was shot at by Tahir. She again stated that she told PCR Officials that her husband was called down stairs by Tahir and thereafter some one shot at him. She further stated that she had not stated that Tahir had shot at her husband.
The Hon'ble Supreme Court in a case reported as 2006(3) RCR ( Criminal ) -864 has held that in a murder case discrepancy in the statement of sole witness with regard to place of murder, when the place of occurrence itself has not been established it would not be proper to accept the prosecution version.
In the present case PW-2 Aga Jafar Mirza is son-in-law of deceased and as per prosecution case he is the sole eye witness, but he did not try to save his deceased father-in-law. PW-2 Aga Jafar Mirza did not 35 inform the police at 100 number nor he admitted the deceased to the hospital. He did not accompny the deceased to the hospital. No blood was found on his cloths.
The Hon'ble Supreme Court in a case reported as 2001 (2) Apex Court Journal 392 (SC) has held that the conduct of one eye-witnesses is not making any attempt to save deceased who was his grand-mother and with whom he was living, not natural.
The Hon'ble Supreme Court in a case reported as ''1994(1) RCR-571'' has held that wife of deceased alleged to have witnesses the occurrence. Her behavior found to be unnatural as she being wife did not try to nurse the deceased or offered any help.
The Hon'ble Supreme Court in a case reported as 2009 (1) JCC-681 has observed that the conduct of the witness is un-natural unbelievable and their 36 presence at the time of occurrence is doubtful and the testimonies of the witnesses cannot be accepted where they did not inform about the occurrence to any body till they were asked by the police.
The Hon'ble High Court of Delhi in a case reported as 2008(1) CC Cases- (HC)-140 has observed that presence of eye witness does not inspire confidence where the presence is not corroborated by any witness or by any contemporaneous document.
In the presence case, as per the version of prosecution, PW-2 Aga Jafar Mirza was an eye witness. In view of the above discussion and in view of the case law discussed above, in my view the presence of PW-2 Aga Jafar Mirza at the spot is doubtful and therefore, his testimony cannot be believed.
The perusal of the prosecution evidence shows that there are contradictory statements with 37 regard to the vehicle of taking the deceased to the hospital. PW-2 Aga Jafar Mirza has stated that Mirza Gulshan Beg reached at the spot, who saw the accused persons running from the spot and his father his-father- in-law was was removed to Mohan Nursing Home by Mirza Gulshan Beg and Sabbar Abbas on a two wheeler scooter whereas PW-6 Safar Abbas has stated that Gulshan and Zafar removed Shamshul Bhai to hospital by a three wheeler scooter. PW-13 Constable Devender Kumar has stated that he took the dead body from the spot to the mortuary. Therefore, it is clear that there is material contradiction with regard to the taking of the deceased/dead body to the hospital.
The perusal of the file further reveals that as per the version of PW-11 Head Constable Kanahiya Lal, he received information through mobile phone No. 9811033838 that one person was shot near Mohan 38 Nursing Home Street No. 10, Main Road Brahampuri and name of informant was Safar whereas Safar Abbas was examined by the prosecution as PW-6 and in his statement he has stated that at that time he was having no mobile phone and he had not given any information to police from phone of any one.
It was conducted by Ld. Defence Counsel for the accused that accused Shakeel was falsely implicated in this case as he was arrested by the later on. It was further contended by Ld. Defence Counsel that the accused Shakeel had refused to participate in the TIP because his photograph was shown to PW-2 Aga Jafar Mirza who is stated to an alleged eye witness of the incident who has to identify the accused in the TIP.
The perusal of the file reveals that the accused Shakeel @ Ghanti was arrested by the police in a case pertaining to a special staff on 7.7.2005 and 39 thereafter he was arrested in this case by SI Nitin Kumar on 14.7.2005. PW-2 Aga Jafar Mirza has stated that accused Shakil @ Ghanti was arrested somewhere in South Delhi and his photograph was shown to him. From the statement of PW-2 Aga Jafar Mirza it is clear that the photograph of accused Shakil @ Ghanti was shown to PW-2 before the TIP and therefore, the refusal of the accused to participate the TIP is justified.
The Hon'ble High Court of Delhi in a case reported as 2009 (4) JCC-2615 has observed that Test Identification Parade of the accused cannot be accepted when the witness had seen the photographs of accused persons before arranging the TIP Proceedings.
As per the version of PW-2 Aga Jafar Mirza accused Nafees and Shakil @ Ghanti shot at his father-in-law whereas PW-5 Smt. Khursheed has stated that Tahir had shot at her husband and this fact was 40 narrated by her to PCR. Admittedly it has been admitted that the place of incident as deposed by PW-2 Aga Jafar Mirza is not visible from the house of PW-5 Smt. Khurshed. Therefore, from the statements of PW-2 Aga Jafar Mirza and PW-5 Smt. Khursheed, it is clear that there are material contradictions in their statements and therefore, their testimony cannot be believed.
In view of the above discussion, in my view the prosecution case becomes doubtful. After giving benefit of doubt to the accused person, both the accused persons are acquitted for the offences charged with. They be released from the custody, if not wanted in any other case.
The file be consigned to Record Room.
Announced in open Court on 30th January' 2010 (Surinder Kumar Sharma) Additional Sessions Judge (North East) 41 Karkardooma Courts, Delhi 42