Delhi District Court
State vs Mohd Ubesh @Sharukh And Ors on 19 July, 2025
IN THE COURT OF MS. TWINKLE WADHWA
ADDL. SESSIONS JUDGE-02 (NORTH EAST)
KARKARDOOMA COURTS : DELHI
SESSIONS CASE No. 180/2019
FIR No. 68/2019
PS. Dayalpur
U/s. 302/34 of IPC
Instituted on 07.06.2019
Argued on 26.04.2025
Decided on 19.07.2025
Final Order Convicted
State Vs. 1. Mohd. Ubesh @ Shahrukh
S/o Ashkar Hussain, R/o 179, Gali No. 3, Munga
Nagar, Karawal Nagar, Delhi.
2. Saddam @ Ataur Rehman S/o Nawaz Islam
R/o H.No. 203, Gali No. 3, Munga Nagar,
Karawal Nagar, Delhi.
JUDGMENT
1. By way of this Judgment, this Court shall decide the charges leveled against the accused persons namely Mohd. Ubesh @ Sharukh and Saddam @ Ataur Rehman.
2. In brief, the facts of the present case are that on 28.02.2019 at 00.42 am at H.No. 180, Gali No. 3, Munga Nagar, Delhi, within the jurisdiction of PS Dayalpur, accused Digitally signed by TWINKLE TWINKLE WADHWA WADHWA Date:
2025.07.19 14:33:17 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 1/32 Saddam caught hold Smt. Hamidan and accused Mohd. Ubesh @ Sharukh gave beatings to Smt. Hamidan with sharp edged weapon whereas one Salma gave slaps to Smt. Hamidan with an intention to kill as a result which she sustained injuries. She was taken to GTB Hospital where she died during treatment on 07.03.2019 at about 06.30 am.
3. IO recorded statements of witnesses, completed the investigation and filed chargesheet against two accused persons namely Mohd. Ubesh @ Sharukh and Saddam @ Ataur Rehman. It is mentioned in the charge sheet that accused Salma is not traceable and charge sheet shall be filed against her later.
Charge
4. Vide order dated 29.07.2019, charge for committing offences U/s. 302/34 was framed against both the accused persons to which they pleaded not guilty.
Prosecution Evidence.
Prosecution has examined 16 witnesses in this case.
5. PW1 Shahzad @ Sazid deposed that on the intervening night of 27th and 28th February 2019, at about 12:00 midnight, he heard a noise coming from the roof of his house. He got up and went to the roof, where he saw the accused Mohd. Ubesh @ Shahrukh was beating his grandmother with a sharp object. His mother was slapping his grandmother, and Saddam, who is the son of his Mausi (Khala), had caught hold of his grandmother at that time. TWINKLE WADHWA Digitally signed by TWINKLE WADHWA Date:
2025.07.19 14:33:20 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 2/32 When he tried to intervene to save his grandmother, the accused persons attempted to assault him and ran away, stating, "Aaj toh chhod diya hai, agle baar jaan se maar denge."
6. He then made a call to 100 on (police emergency number), and his grandmother was taken to the hospital. On 03.03.2019, the police came to his house and inquired about the incident. PW1 further stated that on 07.03.2019, the police conducted the postmortem of his grandmother, and at that time, he identified her dead body, vide memo Ex.PW1/A. After the postmortem, he received her body vide memo Ex.PW1/8. On the next day, i.e., 08.03.2019, he handed over the clothes of his grandmother i.e. salwar, suit, and one shawl, which she was wearing at the time of the incident to IO Inspector Tarkeshwar Singh. The IO sealed the clothes and took them into possession vide seizure memo Ex.PW1/C.
7. MHC(M) had produced envelope parcel No.3 of FSL sealed with the seal of FSL. Same was opened ( suit salwar suit par Safed Rang ke bundi Bunni hai ) having blood stains and cutting, sweater of black colour having cut mark (Kale Rang Cardian) and shawl of carrot colour ( barang Gajari Jisek Kinare Par Kali Dhari Ka Border banana hai ) were taken out and shown to the witness, the same is collectively Ex. P1. MHC(M) had also produced one broken danda same is Ex. P2.
8. PW 1 has deposed in his cross examination that Digitally signed by TWINKLE TWINKLE WADHWA WADHWA Date:
2025.07.19 14:33:23 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 3/32 his house was built in the area of 50 square yards and it is built up to three storeys including ground floor. There were 12 members residing at the time of incident excluding his grand-mother (deceased). The tenant namely Rizwan along with his family was residing at the top floor of the house. At the time of incident, tenant Rizwan was not present at the house. His grand mother was residing at the first floor of the house. He was also residing at the first floor of the house. He alone went to the roof on hearing noise. He deposed that the walls of his house and walls of the accused are adjacent. The boundary wall of the roof was constructed for about four feet. The accused persons were beating his grand mother at the roof of the house. There was light at the place of incident. The site plan was prepared at his instance. He had brought his grand mother from the spot in his lap, after the incident. Accused persons had attempted to assault him at the time of incident. His grand mother was killed by a sharp edged pointed danda from one side and that side was made of wood itself. The danda was in the hand of accused Ubesh @ Shahrukh. The length of the danda was approximately 1½ feet. He had visited GTB Hospital three times during 28.02.2019 to 03.03.2019, but the police did not meet him in the hospital during this period. His grand mother was shifted to the hospital by his Tau namely Hanif along with his three to four persons. On 03.03.2019, the police met him for the first time. The police recorded his statement on that day. He handed over the clothes of his grand mother on 08.03.2019 in evening, to the police. His mother had changed the clothes Digitally signed by TWINKLE TWINKLE WADHWA WADHWA Date:
2025.07.19 14:33:25 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 4/32 of his grand mother in the hospital and she (his mother) gave clothes to him. He had taken the same to his house and later on, he had handed over it to the police. He does not know if his grand mother was suffering from B.P and sugar. He made a call at 100 number and stated the name of the assailants. He went to the roof and saw his grand mother being beaten by the accused persons. He intervened and accused persons attempted to assault him, on this, he shouted. His parents, brother and sister came there after hearing his shouting. At that time, accused persons had fled away. The neighbours started peeping. He made a call at 100 number from his mobile No.987XXXX706. He further deposed that 10-15 neighbours gathered in the gali. His grand mother was shifted to the hospital in an ambulance. The ambulance arrived within 30-40 minutes. He had noticed his grand mother from a distance of 5-6 feet while standing on the second stairs of second floor of his house.
9. PW2 ASI Surender deposed that on 07.03.2019, he was posted at PS Dayalpur and was working as a DD writer, with duty hours from 8:00 AM to 8:00 PM. He received a call from GTB Hospital, and HC Karanvir informed him that one Hamidan had been admitted to the hospital. He recorded this information vide DD No. 17B, a copy of which is Ex.PW2/A, and the same is in his handwriting.
10. PW3 Retired SI Naresh Kumar deposed that on 28.02.2019, at about 12:42 hours, he received a call from the Digitally signed by Control Room regarding a quarrel at Munga Nagar, within TWINKLE TWINKLE WADHWA WADHWA Date:
2025.07.19 14:33:28 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 5/32 the jurisdiction of PS Dayalpur. He marked the said call to ASI Surender telephonically, and the information was recorded vide DD No. 4A. He brought the original register, in which the said call is duly recorded.
11. PW4 Sh. Shahid deposed that on the intervening night of 27th/28th February 2019, at about 12:00-12:15 AM, he heard someone shouting "Bachao-Bachao" from the roof of his house. He went up to the roof and saw that the accused Ubesh, along with co-accused Saddam and Smt. Salma, were beating his mother with dandas and fists. He called the police at 100 from his mobile number XXXXX7828. A PCR van arrived at their house along with an ambulance, and his mother was shifted to GTB Hospital.
12. PW 4 deposed in his cross examination that his statement was recorded by the IO on 03.03.2019. IO had recorded his statement in his presence. He deposed that H.No. 180 is built up to 2 ½ floors. His mother was aged about 65 years.
13. PW5 Sh. Shabir Ali deposed that on 07.03.2019, he identified the dead body of his mother, namely Hamidan, in the mortuary of GTB Hospital, Delhi. The dead body identification memo is Ex.PW5/A. After the postmortem, he received the body of his mother, Hamidan, vide receipt Ex.PW5/B.
14. PW6 Dr. Sandeep Kumar deposed that on 28.02.2019, one patient, Hamidan W/o Late Allahnoor, was brought by Wajim, with an alleged history of physical assault Digitally signed by TWINKLE TWINKLE WADHWA WADHWA Date:
2025.07.19 14:33:31 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 6/32 at the address mentioned in the MLC. According to the MLC, a local examination following injuries were found:-
i. Lacerated wound of size 2x0.5 cm on the right eyebrow.
ii. Lacerated wound of size 1x0.5 cm on the upper lip.
iii. Abrasion on the forehead.
iv. Puncture wound at nose.
v. Swelling on occipital region.
15. In cross examination of PW6, a question i.e. can the injuries mentioned in the MLC be possible if a person fall from stairs. PW 6 answered that possibility cannot be ruled out. The aforesaid injuries may be possible if a person rolled down from the stairs.
16. PW7 Wasil deposed that on the intervening night of 27th/28th February 2019, he was present at GTB Hospital. Meanwhile, an ambulance arrived at the hospital, from which his friend Imran got down. Upon inquiry, Imran informed him that he had brought his grandmother (Dadi), as she had been beaten by their neighbors. Her condition was serious. While Imran stayed with his grandmother, Wasil went inside for documentation and got Hamidan admitted to GTB Hospital.
17. PW 7 deposed in his cross examination that he was present in GTB Hospital since last 2-3 days as his younger brother was admitted there. His statement was recorded on the next day in the hospital by the police. He Digitally signed by TWINKLE TWINKLE WADHWA had told the police in his statement that he had found blood WADHWA Date:
2025.07.19 14:33:33 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 7/32 oozing out from the wound of Hamidan and her condition was serious.
18. PW8 HC Shankar deposed that on 01.03.2019, at about 11:20 PM, he received a tehrir handed over to him by ASI Surender Pal Singh. On the basis of the said tehrir, the present FIR was registered. He also made an endorsement on the rukka, which is Ex. PW8/B and FIR is Ex.PW8/C.
19. PW9 ACP Mahesh Kumar deposed that he visited the place of incident, i.e., the second floor and second floor roof of House No. A-179 and 180, Moonga Nagar, Delhi. There, at the instance of Mohd. Shahzad and Inspector Tarkeshwar, he took measurements of the spot and prepared rough notes. On 25.04.2019, based on those measurements and rough notes, he prepared a scaled site plan and handed it over to the IO. The scaled site plan is Ex.
PW9/A.
20. PW 9 deposed in his cross examination that he had not inspected the first and second floor of H.No. 180. He further deposed that it was at the roof of the second floor of H.No. 179 as told by the witness. The height of the second floor roof was around 10 feet from the floor of the second storey. He had not mentioned about the source of light at the place of incident in the scaled site plan.
21. PW10 Dr. Ajay Kumar deposed that he had been assigned to verify the death certificate no. 17677 of the deceased, which was in the handwriting of Dr. Shashank Digitally signed by TWINKLE TWINKLE WADHWA WADHWA Date:
Nahal. He identified the signature of Dr. Shashank.
2025.07.19 14:33:36 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 8/32
22. PW11 Constable Saudan deposed that on 02.04.2019, he reached Gali No. 3, Moonga Nagar, Dayalpur with his staff. Accused Saddam was apprehended from his house. He was interrogated, arrested, and his disclosure statement was recorded. PW11 signed the documents prepared by the IO regarding the arrest and disclosure statement of the accused. The arrest memo of accused Saddam is Ex.PW11/A, the personal search memo is Ex.PW11/B, and his disclosure statement is Ex.PW11/C.
23. PW12 Dr. Shilpa Singh deposed that on examination, the dead body was of an adult female, wrapped in a white plastic sheet, and wearing a pink kurta, pink pajami, white sweater, and seven glass bangles. The eyes appeared blackish, and postmortem rigidity had developed throughout the body.
24. On examination of external injuries, multiple injuries were noted on the face, which were antemortem in nature.
External injuries are following:-
(1) Yellow colour contusion of size 8 cm x 5 cm present on the right side of the neck, touching the lower lobe of right ear and 3 cm away from the midline.
(ii) Suture wound with one suture present in right forehead touching right eyebrow.
(iii) Dark brown scabbed abrasion present on Digitally signed by TWINKLE TWINKLE WADHWA right upper lip of size 2 cm x 1 cm and 0.5 cm WADHWA Date:
2025.07.19 14:33:38 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 9/32 away from midlline.
(iv) Yellow colour contusion of size 12 cm x 7 cm present on the left side of the face on forehead.
(v) Yellow colour contusion of size 5 cm x 4 cm prese on left side of chin, 0.5 away from midline.
(vi) Dark brown scabbed abrasion present on right side of forehead of size 1 cm x 0.5 cm and is 3 cm above right eyebrow.
(vii) Yellow colour contusion of size 2 cm x 2 cm present at the base of frenulum in mouth at right lower lip. Frenulum is intact.
25. On examination of internal injuries following, Internal injuries were found:-
(1) On head sub-scalp heametoma present over right parital-temporo- occipital region.
(ii) Brain was congested weighing 1360 grams.
Multiple haemorrages contusion present in left front and right inter cereberal region. Sub dural haemorrage present over right parital lobe and sub arachnoid haemorrage present over bilateral frontal and right parital as well over base of brain.
(iii) Both lungs congested and edematous with Digitally signed by TWINKLE TWINKLE WADHWA thick mucoid material present in bronchi. Lungs WADHWA Date:
2025.07.19 14:33:41 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 10/32 were adherent to anterior and posterior chest wall. Pleura was thickened and grayish at the site of attachment on cut section, pinkish frothy fluid oozing out.
(iv) Liver, spleen and kidneys were softened and congested with pasty mass appearance of kidneys and spleen.
26. Opinion:- Time since death- about ¼ of the day. Cause of death- septicemic shock consequent upon antemortem injuries to head as a result of blunt force impact. She prepared detailed PM report running into 4 pages and the same is now Ex.PW12/A and she had also signed all the inquest papers i.e. 13 in numbers forwarded by the IO. The documents i.e. inquest papers are Ex.PW12/B.
27. PW13 Retired IO/ASI Surender Pal deposed that he was telephonically informed by the Duty Officer about the contents of DD No. 4A. He, along with Ct. Kushal, reached the spot. At the location, no eyewitness or injured person was found, nor was any quarrel taking place. Upon local inquiry, they learned that the injured person had already been shifted to GTB Hospital. They then went to GTB Hospital and collected the MLC of injured Hamidan. He made an endorsement on DD No. 4A, which is Ex.PW13/A.
28. PW13 further deposed that on 03.03.2019, he visited the place of incident and conducted inquiries from TWINKLE Digitally signed by TWINKLE WADHWA WADHWA Date:
2025.07.19 14:33:44 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 11/32 Shahid and Shahzad, grandsons of Allahnoor. He recorded their statements under Section 161 Cr.P.C. On 07.03.2019, he received information from the hospital that Hamidan had passed away. The body was identified at the mortuary by Shabir Ali and Mohd. Shahzad, and their identification statements are Ex.PW5/A and Ex.PW1/A, respectively. The postmortem request form and Form No. 25:35 (1)(B), filled by him, are Ex.PW13/B and Ex.PW13/C.
29. PW13 further deposed that after the postmortem, the concerned doctor handed over two sealed exhibits, which he took into police possession after preparing the seizure memo. The same is Ex.PW13/D. He then returned to the police station, and the sealed exhibits were deposited in the Malkhana. Further investigation of the case was carried out by SHO Inspector Tarkeshwar. Accused Ubesh was arrested in the present case. The IO prepared the documents relating to his arrest, which are Ex.PW13/E, and his personal search was conducted vide memo Ex.PW13/F. During interrogation, accused Ubesh made a disclosure statement, which is Ex.PW13/G.
30. PW 13 further deposed that on 08.03.2019, he again joined the investigation of the present case with the IO. The accused Ubesh was taken out from the lockup and they visited the spot i.e. H.No.180, Munga Nagar, Chand Bagh, Delhi again with him. The accused got recovered one danda approximately 1 ½ feet in length from the roof of his house ie H.No. 179, Munga Nagar, Chand Bagh, Delhi. The Digitally signed by danda was taken into police possession by the IO after TWINKLE TWINKLE WADHWA WADHWA Date:
2025.07.19 14:33:46 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 12/32 preparing seizure memo vide Ex. PW13/H. The recovered danda was converted into pullanda with the help of cloth and sealed with the seal of TS and taken into police possession vide seizure memo. On the same day, Mohd. Shajid (grandson of the deceased) produced the clothes of deceased which she was wearing at the time of incident. The same were taken into police possession after converting it into a pullanda with help of cloth and sealed with the seal of TS. Seizure memo of the same is already Ex.PW1/C.
31. PW 13 further deposed that MHC(M) had produced one sealed envelope with court seal. Parcel no. 4 is written on the same. FSL number and Bio number are also mentioned on it. With the permission of the court, seal was broken. Inside the envelope, there was one danda (one side is pointed) and already cut cloth pullanda was wrapped on the aforesaid danda. FSL slip was also affixed on the same. The white cloth was removed and the danda was shown to the witness and witness identifies the same which was recovered at the instance of accused.
32. MHC(M) had produced envelope parcel number of FSL sealed with the court seal. Same was opened and suit salwar (suit par safed rang ke bundi bunni hai) having blood stains and cutting, sweater of black colour having cutting mark (kale rang cardian) and shawl of carrot colour (barang Gajari Jiske kinare par kali dhari ka border bana hai) were taken out and shown to the witness. After seeing the same, the witness correctly identifies the same which were Digitally signed by TWINKLE TWINKLE WADHWA Date: WADHWA 2025.07.19 14:33:49 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 13/32 produced by Mohd. Shajid and seized the same by the IO. Clothes are already Ex.P1.
33. PW 13 deposed in his cross examination that he did not make any departure entry when he left for the spot after receiving information about DD No.4A. He remained at the spot till 2.00 am. The house where the incident had taken place was built up to three storied and it was a small area. Many public persons were present there but since the injured had been removed to hospital and no eyewitness was present, he did not inquire as to how many people from the public persons present there were family members of the deceased. Her family members were present there. They did not tell him as to how the deceased had suffered injuries. At that time, he tried to inquire from the persons present there about the incident but nothing was disclosed by anyone except that the injured was taken to hospital. He did not see any blood lying at the spot i.e. the roof where the incident had taken place. He did not find any relevant/incriminating substance at the spot at that time. He made endorsement on DD No.4A on 01.03.2019. No endorsement was made by him thereafter. A computer recorded GD contains day, time and date when it is printed. He deposed that it is correct that on the print out of DD No.4A, at the endorsement it is mentioned that the same was printed only on 07th March, 2019 and not on 28.02.2019. He met accused Ubesh @ Shahrukh on 07.03.2019 for the first time, in the presence of IO and he did not meet him prior to 07.03.2019. Computer print out of the same DD No.4A dated 28.02.2019 was Digitally signed by TWINKLE TWINKLE WADHWA WADHWA Date:
2025.07.19 14:33:52 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 14/32 shown to the witness. His attention has been specifically invited to typing at the right side bottom of page on which the DD is printed. The same is now exhibit Ex.PW13/D1. It is typed as "Friday 01 March 2019 01:36 PM".
34. PW 13 further deposed in his cross examination that in the present charge-sheet, there is no mention of the kalandra u/s.107/151 Cr.P.C nor any document related to the kalandra have been placed on record of chargesheet in the present case. He did not remember when accused Ubesh @ Shahrukh was taken by him to PS on 28.02.2019. He stated that A DD entry must have been made in the record of PS regarding arrest of accused Ubesh @ Shahrukh on 28.02.2019. He had visited the property bearing No.180, Munga Nagar on the intervening night of 27/28.02.2019, 01.03.2019, 07.03.2018 and 08.03.2019. He further stated that nothing had been recovered from the property No. 180, Munga Nagar on 27/28.02.2019 & 01.03.2019 and he had inspected the whole of the property.
35. PW 13 produced accused Ubesh before the SEM on 28.02.2019. He did not know when the accused Ubesh was released on bail. When he visited the hospital first time to meet the injured, he did not know where the accused Ubesh was there at that time. He visited the hospital for the first time in the night of 27.02.2019/28.02.2019. He further stated that it was about 1:30-1:45 am. Before he visited the hospital, he had gone to the spot.
36. PW 13 further deposed that first time, he did not arrest anybody from the spot. he remained at hospital upto Digitally signed by TWINKLE TWINKLE WADHWA WADHWA Date:
2025.07.19 14:33:54 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 15/32 4:00 am. When he visited the spot, then he inspected the property bearing no. 180, Gali no. 3, Moonga Nagar, Delhi. Nothing was recovered from the spot when he had visited there for the first time. He got prepared the site plan on 03.03.2019 at about 01:00pm at the instance of witness Shajid.
37. PW 13 further deposed that in his earlier statement regarding the place of incident, he mentioned that the property no. as 180. He stated that H. No. 179 and 180 are different properties owned by different people and H. No. 180 is constructed up to three floors but he was not sure about 179. Both houses are separated by a wall. PW 13 had visited the house No. 179 on 3rd, 7th & 8th March 2019, He did not find anything incriminating from H.No. 179 on 03.03.2019. He had made entry in case diary regarding these three visits.
38. PW 13 further deposed in his cross examination that Sajid told him that victim was taken to hospital. Again said, public persons firstly told him that victim was taken to the hospital. He had not recorded the statement of any of the public persons in this regard. He had not mentioned the word 'swelling' in the endorsement made by him before the registration of FIR. He did not remember, from which floor he had apprehended accused Ubesh. Property No.180 belongs to accused Ubesh. He stated that on 27-28.02.2019, accused Ubesh was apprehended from property no.180. He had taken permission from SHO prior to arresting the accused in a Kalendra. DO had informed him on 07.03.2019 Digitally signed by TWINKLE TWINKLE WADHWA WADHWA Date:
2025.07.19 14:33:57 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 16/32 regarding death of Hamida. He had not recorded statement in this regard of Duty Officer. No public person had accompanied them during recovery of danda. He had not inspected the scene of crime in the presence of public witnesses. He had not sent exhibits to FSL.
39. PW14 Inspector Tarkeshwar Singh deposed that he personally inspected the crime scene and verified the facts. At House No. 179, Gali No. 3, Munga Nagar, both accused were present. He initially interrogated them, but as the crowd gradually increased and there was commotion, he, along with accused Ubesh and ASI Surender, left the spot and went to the police station. At the police station, both accused were further interrogated, and their disclosure statements were recorded.
40. PW14 further deposed that on 08.03.2019, accused Ubesh was taken to the spot in police custody along with ASI Surender. On the terrace of House No. 179/3, Munga Nagar, accused Ubesh led them to the recovery of the weapon i.e. a 1½ ft wooden danda, broken on one side. A pulanda (bundle) was prepared with the help of cloth and sealed with the seal of the police station. The weapon was taken into possession as evidence. The seizure memo of the danda is Ex.PW13/H. Accused Ubesh was then produced before the Learned Metropolitan Magistrate and was subsequently sent to judicial custody.
Digitally
signed by
TWINKLE
TWINKLE WADHWA
WADHWA Date:
2025.07.19
14:34:00
+0530
FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 17/32
41. PW14 further deposed that in the evening of the same day, Mohd. Sajid, grandson of the deceased Hamidan, came to the police station along with the clothes which the deceased was wearing at the time of the incident. Upon inspection, the clothes were found to be old. All the clothes were taken into police possession and seized vide seizure memo already exhibited as Ex.PW1/C. On 02.04.2019, secret information was received at the police station that one of the accused was present at House No. 203, Gali No. 3, Munga Nagar. He, along with Constable Saudan, reached the location and apprehended accused Saddam at the spot. The disclosure statement of accused Saddam is already exhibited as Ex.PW11/C. After having sufficient evidence on file, accused Saddam was arrested vide arrest memo Ex.PW11/A. His personal search was conducted vide memo Ex.PW11/B.
42. PW14 further deposed that a search for accused Salma was continuously carried out at her residential address and native place, but she could not be arrested. Proclamation proceedings were initiated against her, and the search continued. During the course of investigation, he got a scaled site plan prepared through Inspector Mahesh (Draughtsman). He also obtained an expert opinion on the weapon of offence and recorded the statements of all relevant witnesses. Thereafter, he collected the postmortem report and, after having sufficient evidence on file, prepared the charge sheet and filed it before the Court of the concerned Learned Metropolitan Magistrate. TWINKLE Digitally signed by TWINKLE WADHWA WADHWA Date:
2025.07.19 14:34:03 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 18/32
43. PW15 Ms. Amita Raghav deposed that in the present case, on 17.09.2019, she received three sealed parcels and one sealed paper envelope along with a forwarding letter and sample seal from the Investigating Agency. The parcels were opened, and the description of the exhibits found inside is mentioned in her report dated 27.10.2020.
44. Upon biological examination, blood was detected on the following exhibits:
Exhibit 2: two pieces of gauze cloth from the deceased Exhibit 3a: one lady's shirt with dirty stains Exhibit 3b: one salwar with dirty stains Exhibit 3c: one full-sleeve sweater with dirty stains Exhibit 3d: one shawl with dirty stains However, blood was not detected on:
Exhibit 1a: one full-sleeve lady's shirt Exhibit 1b: one salwar Exhibit 1c: one full-sleeve sweater Exhibit 4: one broken stick
45. On DNA examination, she found that the DNA profile generated from Exhibit 2 (gauze cloth of the deceased) matched the DNA profiles generated from Exhibits 3a (lady's shirt), 3b (salwar), 3c (sweater), and 3d (shawl) all belonging to the deceased. Her detailed report dated 27.10.2020 along with the Allelic Data is exhibited as Ex.PW15/A. Digitally signed by TWINKLE TWINKLE WADHWA Date:
WADHWA 2025.07.19 14:34:06 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 19/32
46. PW16 Inspector Hukam Singh deposed that in the year 2021, the charge sheet in the case had already been filed, while the FSL result for some exhibits was still awaited. After the main charge sheet was filed, the FSL result was received. He then submitted the FSL result by way of a supplementary charge sheet. The FSL result is exhibited as Ex.PW15/A.
47. After examination of all the witnesses, statements of accused persons under section 313 of Cr.P.C. have been recorded to which accused persons did not wish to lead any defence evidence.
Findings
48. The eye witness in this case is PW-1 Shahzad, deceased Hamidan was his grand mother. He alongwith his family members including deceased was residing on the first floor of three storey house. On 27/28-02-2019 while he was sleeping in his house on the first floor, at around 12.00 am, he heard a shout coming from the roof of his house. He got up and saw that his grand mother was not in the house, then he went on the roof of the house where he saw that his grand mother was on the terrace of their house and their neighbour Shahrukh @ Ubesh was beating his grand mother with some sharp object, mother of Shahrukh @ Ubesh was giving slaps to his grand daughter. Saddam who is cousin of Shahrukh @ Ubesh was holding his grand mother at that time. When he tried to save his grand mother, they attempted to assault him Digitally signed by TWINKLE TWINKLE WADHWA WADHWA Date:
2025.07.19 as well. However, immediately raised alarm after which all 14:34:09 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 20/32 the accused persons ran away. While running they were saying "aaj to chhor diya hai agli baar jaan se maar denge ". After that, his other family members had also come on the roof and made call on 100 number. One ambulance came and took his grand mother to the hospital. However, he did not accompany his grand mother to the hospital. On 03.03.2019, police came to his house and recorded his statement. On 07.03.2019, his grand mother died.
49. This witness has deposed thereby supporting the case of the prosecution. The witness has been cross examined in detail, there is nothing in his cross examination which raises doubt on the credibility of this eye witness.
50. When an eye witness consistently supports the case of prosecution and successfully withstand the rigour of cross examination, it indicates that his testimony is truthful and trustworthy. If the defence fails to elicit any contradiction, inconsistency or reason to doubt the witness, then his testimony has high probative value. The testimony of such witness, even if uncorroborated by other evidence, can form sole basis for conviction. Only because he is a family member, his testimony cannot be doubted as his presence at the spot is explained in the charge sheet. It is explained that as he heard the noise, he went to the terrace where he witnessed this incident.
51. This witness has been cross examined in detail on 05.03.2021 and he has taken the test of cross examination, there is nothing in his testimony to raise issue regarding Digitally signed by TWINKLE TWINKLE WADHWA WADHWA Date:
2025.07.19 14:34:12 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 21/32 credibility of this witness namely Sazid @ Shahzad. His testimony inspires complete confidence.
Credibility of PW 4
52. PW 4 Shahid is son of deceased Hamidan. He also deposed that on the intervening night of 27-28.02.2019, he heard the noise coming from the roof "bachao bachao".
As he went on the terrace, he saw that Shahrukh @ Ubesh, Saddam and Salma were beating his mother with dandas, fist and blows.
53. However, statement u/s 161 of Cr.P.C. Shahid was recorded on 03.03.2019 wherein he had stated that when he reached at the terrace of his house, his bhatija Shahzad was present there who told him about the incident. It is not mentioned in Section 161 statement that he had witnessed the incident of giving beatings. It is contended that this witness had made improvement over his section 161 statement.
54. Perusal of statement of PW1 Shahzad @ Sazid would show that he had also stated that after he had witnessed the incident and accused persons had gone, other family members had come. Hence as per the testimony of PW1 also, PW 4 reached at the spot after other accused persons had gone. It appears that PW4 had made improvement over his earlier statement but he is not an eye witness. Hence his statement is not credible.
Digitally signed by TWINKLETWINKLE WADHWA Date: WADHWA 2025.07.19 14:34:15 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 22/32 Argument of six feet wall between two houses.
55. It is vehemently contended that there was a 6 feet wall between the terrace of accused and terrace of the complainant, and it was not possible for an old aged lady to have climbed such height of wall to reach the terrace of accused persons. Hence, this suggestion has been given to PW-1 and PW4 during cross examination.
56. It is defence being set up by accused persons that the wall was 6 feet in height and it was not possible for Hamidan to climb the same. However, accused persons had led no evidence to substantiate their claim except giving bare suggestions to the prosecution witnesses, needless to say their suggestions have been denied. Accused persons have not led defence evidence to prove their case, nothing is filed to show the height of the wall between their terraces or that incident could not have happened there, there is no photograph to substantiate their claim, no witness is examined regarding height of the wall. It is a bare oral defence unsupported with anything material on record.
Delay in registration of FIR.
57. It is contended that there is a substantial delay in registration of FIR in this case. The incident allegedly happened on the night of 27/28-02-2019 while statement of PW 1 was recorded on 03.03.2019. FIR was registered on 01.03.2019.
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TWINKLE WADHWA
WADHWA Date:
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FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 23/32
58. It is settled law that when the delay in registration of FIR is prolonged or unexplained, it can cast doubt on the prosecution case, suggesting a lack of urgency or seriousness in the allegations besides tampering with facts of the case. Delays can create opportunities for embellishments or fabrication of facts making the FIR less credible when unexplained. While a delay alone is not necessarily fatal, it can raise doubts about the truthfulness of the reported incident. However, if the delay is satisfactorily explained, it may not significantly impact the prosecution case. Each case is to be analyzed on the basis of its own facts.
59. In Lalit Kumari Vs. State of U.P. and Ors. (Writ Petition Criminal No. 68/2008), Hon'ble Supreme Court observed that:-
"89) In Thulia Kali vs. State of Tamil Nadu (1972) 3 SCC 393, this Court held as under:-
12...First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 24/32 version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained..."
60. In the case at hand, the delay has been satisfactorily explained by the IO. It is stated by IO PW 13 SI Surender Pal that when he reached GTB Hospital and collected MLC, deceased was declared fit for statement (which is mentioned in MLC also). But she being an old lady who had suffered injuries, had swelling on her mouth and face, and hence she was not in a position to give her statement, therefore, DD was kept pending. He again went to the hospital and made efforts to record the statement of injured Hamidan but in vain, then he made the rukka and got the FIR registered on 01.03.2019. On 03.03.2019, he visited the place of incident and recorded the statement of Sahid who is an eye witness, hence, the delay in recording the statement is duly explained by the IO and the reasons given are very genuine. As Hamidan was injured, he found that she was not fit to give statement after 3 days even, he recorded statement of PW1 who is an eye witness.
61. Further, the testimony of PW 1 is corroborated by the words mentioned on the MLC which is duly exhibited, it is mentioned on the MLC that 'it is a case of assault as stated by patient herself', hence, patient herself had stated to the doctor regarding injuries and no ulterior motive can be imputed to the doctor for recording such statement. No question pertaining to this remark is asked Digitally signed by TWINKLE TWINKLE WADHWA WADHWA Date:
2025.07.19 14:34:26 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 25/32 from doctor who exhibited this MLC.
Motive
62. It is argued by counsel for accused and is also mentioned in written argument that prosecution failed to establish a clear motive behind the alleged incident.
63. However, the defense has themselves given suggestions to public witnesses i.e. PW1 Shahzad and PW 4 Shahid that there was previous enmity between both sides due to throwing of garbage due to which they have been falsely implicated. PW1 and PW 4 have denied the suggestion. Hence, it is the defence who is imputing a motive to complainant. If there was any such animosity between both the sides, then accused also had motive to commit such offence. Further, PW 1 also stated in the cross examination that relationship between accused and my family were not good.
64. In criminal law, motive plays an important role but it is not a required element to prove a crime. A motive supports the prosecution case and makes it more believable. However, motive alone is not enough nor absence of motive means that the offence cannot be committed. However, in those cases where direct evidence is available, absence of motive may not weaken the case of prosecution nor does it mean ipso facto innocence.
65. In Khurshid Ahmed Vs. State of Jammu and Kashmir (Criminal Appeal No. 872 of 2015), Hon'ble Digitally signed by TWINKLE TWINKLE WADHWA Supreme Court observed that:-
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"16. Another argument advanced is that there was no motive to commit the offence and in the absence of strong motive, the appellant cannot be held guilty under Section 302, IPC. In the present case, motive can be traced from the evidences produced by the prosecution with regard to the prior incident that took place between the deceased and accused in connection with payment of money over a transaction where the accused stood as a guarantor. Because of the earlier scuffle, the subsequent incident has occurred in which the accused hit the deceased with an iron rod due to which the deceased lost his life. It is appropriate to observe that in Halsbury's Laws of England, 3rd Edition, with regard to 'motive', it is stated that "the prosecution may prove, but it is not bound to prove the motive for a crime". 'Motive' is an emotion which compels the person to do a particular act. But in all the cases, it will be very difficult for the prosecution to prove the real motive. Motive is a double edged weapon when there is a direct and reliable evidence available on record, motive loses its importance. In a case of circumstantial evidence, motive assumes greater importance than in the case of direct evidence. In a case of direct and compelling evidence, even assuming that no motive is attributed, still the prosecution version has to be examined. As regards to the importance of existence of motive in a criminal case, here it is worthwhile to look at the ratio laid down by this Court in Shivaji Genu Mohite v. State of Maharashtra, AIR 1973 SC 55:
"In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that TWINKLE Digitally signed by TWINKLE WADHWA would not be so in cases where there are eye- WADHWA Date:
2025.07.19 14:34:32 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 27/32 witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy".
66. Coming to the facts at hand, defence has given suggestion to PW 1 and PW 4 that relations were not good due to issue of garbage. It is also deposed by PW 1 that relations between both the family were not good. Hence, it appears that there was something between the families due to which relations were strained. Those facts which are admitted need not be proved.
Absence of source of light at spot.
67. It is contended that the incident allegedly took place at night, and as per meteorological records, the night of 27/28.02.2019 was cold and foggy, reducing visibility and the temperature was around 10 degree celsius, meaning thereby that it was a cold foggy winter night. The site plan does not mention any source of light which would have enabled PW1 (eye witness) to identify the assailants and the weapon. This omission gravely affects the credibility of the prosecution version.
68. However, question regarding light at the spot was asked from PW1 in cross examination to which he replied as follows "it is correct that accused persons were beating my grand mother at the roof of their house. There TWINKLE Digitally signed by TWINKLE WADHWA WADHWA Date:
2025.07.19 14:34:35 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 28/32 was light at the place of incident. The site plan was prepared at my instance. I did not tell IO about the light bulb".
69. Hence it is explained by PW1 that there was a light bulb at the roof and he did not tell IO about the same. While narrating about an incident or offence, it is obvious that only the facts related to the offence would be narrated. If there was light bulb, fan, furniture or other things at the roof, seem irrelevant to any person. Hence PW 1 did not state the same to IO nor IO asked about the same.
Tampering with DD Entry / Rukka
70. It is argued that perusal of DD no. 4A reveals that the IO has made a hand written endorsement on it and signed the same on 01.03.2019. However, printed copy of this general diary which is Ex.PW13/A ( on which rukka is written), the date is printed as 7th March, 2019 04:40 pm at the bottom of the page. Hence it is submitted that there is tampering in the documents and rukka was written after 07 th March 04:40 pm. It is submitted that this Ex.PW13/A is not the rukka on the basis of which this FIR could have been written.
71. I have heard the counsel and gone through the record carefully.
72. The FIR in this case was registered on 01.03.2019 under Section 323 & 341 of IPC. The FIR is uploaded on the system and cannot be tampered with. A perusal of FIR would show that it bears the contents of the Digitally signed by TWINKLE TWINKLE WADHWA WADHWA Date:
2025.07.19 14:34:39 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 29/32 entire rukka. Hence from the perusal of the FIR 68/2019 dt. 01.03.2019, it comes to the forth that a rukka was certainly made on the basis of which FIR was registered.
Injuries consistent with a fall
73. It is argued that PW 6 Dr. Sandeep Kumar and PW 12 Dr. Shilpa deposed during their cross examination that these injuries on body of deceased were possible due to fall from stairs. It is submitted that it provides a plausible alternative cause of death, creating reasonable doubt about the assault theory.
74. However, only because it is opined by the doctors that such injuries are possible due to fall from stairs, does not imply that the injuries have actually been caused due to a fall from stairs. The onus to prove a fact is on a person or party who asserts the said facts. The onus to prove this fact was on accused but accused led no cogent evidence to substantiate their arguments. Accused has only given suggestions to the prosecution witnesses which were denied. Accused himself did not come to the witness box nor led any other type of evidence in support of his contention. It is a bare argument unsupported with any evidence on record.
Other arguments
75. It is further contended that PW1 stated in his examination in chief that his grand mother was beaten with sharp object, while in cross examination, it is mentioned that Digitally signed by TWINKLE TWINKLE WADHWA WADHWA Date:
2025.07.19 14:34:42 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 30/32 his grand mother was killed by sharp edged pointed danda. Whereas it is mentioned in his Section 161 Cr.P.C. statement that a nukili cheez was used.
76. However, there is no material inconsistency in his statement. PW 1 stated in examination in chief that sharp object was used and it is clarified in cross examination that it was a sharp edged danda. A danda can be sharp edged from a side, hence there is no inconsistency in his statement.
77. It is contended that PW 1 in his cross examination claimed to have made the the PCR call from his mobile no. 9871XX8706, but DD entry No. 4A shows the call was made by someone else from mobile number 9650XX7858. However, it is an immaterial inconsistency. A PCR call was made which is duly proved and thereafter police reached at the spot which is established by way of testimony of public and police witnesses.
78. It is contended and is also mentioned in written submissions also that accused was arrested in a kalandra initially under Section 107/151 of Cr.P.C. but this kalandra is suppressed in the present charge sheet. However, if a kalandra was made, it is separate proceeding and has nothing to do with the present case.
79. As per the post mortem report, the cause of death is Septicemic shock consequent upon antemortem injury to head as a result of blunt force impact and as per subsequent opinion, it was opined by doctor that injuries are antemortem in nature and sufficient to cause of death in ordinary course TWINKLE by Digitally signed TWINKLE WADHWA WADHWA Date: 2025.07.19 14:34:45 +0530 FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 31/32 of nature.
80. In view of the above discussion, it is proved that both the accused persons in furtherance of their common intention deliberately gave beatings to deceased Hamidan who was their neighbour, with sharp object danda with the intention of causing such bodily injury as the accused knew likely to cause death of Hamidan due to her old age and hence caused her death. And both are found guilty for the offence of committing murder of deceased Hamidan.
Conclusion:-
81. In view of above discussion, observations and findings, accused persons Mohd. Ubesh @ Sharukh and Saddam @ Ataur Rehman are hereby convicted for offence u/s 302/34 of IPC.
Announced in Open Court
Digitally
signed by
TWINKLE
TWINKLE WADHWA
WADHWA Date:
as on 19.07.2025 2025.07.19
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(Twinkle Wadhwa )
Addl. Sessions Judge-02/North East Karkardooma Courts, Delhi FIR No. 68/2019 State Vs. Mohd. Ubesh and Anr. page 32/32