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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. 162/2016 & Crl.M.A. No.4246/2016
Date of Decision : 8th, September, 2016
STATE N.C.T OF DELHI ..... Petitioner
Through Mr.Varun Goswami, APP for the
State.
SI Yujvendra Singh, PS Jafrabad.
versus
NAZIR @ NANHE & ANR ..... Respondent
Through Mr.M.L. Yadav, Adv. for R-1.
Mr.Akram Khan, Adv. for R-2.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE P.S.TEJI GITA MITTAL, J (Oral) Crl.L.P. No.4246/2016 (for condonation of delay)
1. This application has been filed by the State seeking condonation of 98 days delay in filing the present appeal.
2. For the reasons stated, we are satisfied that the appellant was prevented by just and bona fide reasons in filing the present appeal within the statutory period of limitation. Delay in filing the appeal is, hereby, condoned.
This application is allowed.
Crl.L.P. No.162/2016 Page 1 of 6 Crl.L.P. No.162/2016
3. The record of the lower court has been received. We have heard learned counsel for the parties and been taken through the record by Mr.Varun Goswami, learned APP for the State as well as by Mr.M.L. Yadav, Adv. for respondent no.1 and Mr.Akram Khan, Adv. for respondent no.2.
4. The present petition has been filed under Section 378 (1) of the Code of Criminal Procedure (Cr.P.C.) praying for leave to appeal against the judgment dated 2nd September, 2015 passed by the Special Judge (NDPS)/ASJ (North-East), Karkardooma Courts, Delhi, acquitting the respondents from the charged offences.
5. The case relates to an alleged incident which occurred on 12th April, 2010 for which the Police Station Jafrabad had registered an FIR No.93/2010 under Section 324/34 of the Indian Penal Code (IPC). It is in evidence that PW 4 Head Constable Rampal, who was the duty officer at Police Station Jafrabad, received a PCR call at 7.40 p.m. to the effect that one boy had been knifed at the Akhare Wali Gali, Sandhya Public School, Seemapuri, Brahmpuri, Jhagda in a scuffle. This information was noted as DD No.18A (Exh.PW 4-A) which was brought to the Crl.L.P. No.162/2016 Page 2 of 6 notice of SI Satender Pal Singh (PW 14) on the telephone.
6. On receipt of DD No.18A, SI Satender Pal Singh (PW 14) accompanied by Ct. Mukesh Kumar (PW 10) reached the place of incidence wherein, based on a statement made by Smt. Nagina (eye witness and mother of the deceased Mutalib), the rukka (Exh.PW 5/A) was recorded. Smt.Nagina had stated that on hearing a noise in the street at about 7.00 p.m. on that date, she had rushed to the street where she witnessed one boy holding and stabbing her son with a knife. On seeing her, one Rahis who was residing in the neighbourhood, had taken the knife from the said boy and thrown into a drain.
7. Smt.Nagina had categorically stated in Exh PW 5/A, that she had caught the boy who was stabbing her son with the knife and that Rahis tried to get the said boy released from her grip. On enquiry, Ms.Nagina had clearly given the name and identity of 'N'- a Juvenile (name, parentage and address withheld and so referred by the Trial Court) who had stabbed the deceased. This juvenile, along with the knife, was handed over to SI Satender Pal Singh at the spot itself.
It has been urged by Mr.Varun Goswami, learned APP for Crl.L.P. No.162/2016 Page 3 of 6 the State, Mr.M.L.Yadav, Adv. for respondent no.1 and Mr. Akram Khan, Adv. for respondent no.2 that this statement completely exonerates the respondents- Nazir @ Nanhe (respondent no.1) and Rahisuddin @ Rahis (respondent no.2) before this Court so far as Mutalib's murder is concerned.
8. On the other hand, Mr.Varun Goswami, learned APP would rely on the oral testimony of Smt. Nagina (PW 5) in Court wherein she has given a graphic account implicating the respondent no.2 [email protected] as the person who inflicted the assault on Mutalib. No role has been assigned to respondent no.1 [email protected] in the Court testimony as well.
9. Mr.Goswami, learned APP has drawn our attention to the evidence of PW 11 Aas Mohd wherein he has attributed the stabbing to [email protected], respondent no.2. This witness has also stated that [email protected] was the person who had caught hold of the deceased Mutalib.
10. The Trial Court has disbelieved the testimony of PWs 5 and 11 finding them not to be reliable witnesses.
11. The record discloses that Aas Mohd. PW 11 was nowhere in the picture on t he date of occurrence. He was also nowhere in the Crl.L.P. No.162/2016 Page 4 of 6 picture after registration of the FIR. PW 11 emerges during investigation for the first time on 23rd June, 2010 i.e. more than two months after the incident when his statement (Exh.11/D) was recorded under Section 161 of the Cr.P.C. There is not a whit of explanation for this period of two months, especially given the fact that PW 11 purports to give an eye witness account of the unfolding of the crime on the 12th of April 2010.
12. We find that Smt. Nagina has even changed the identity of her son's assailant and also assigned roles to the respondents which was not her stand on 12th April 2010 when Exh. PW 5/A was penned down. So far as PW 11 is concerned, we agree with learned counsel for the respondents that he seems to be a planted witness and deserves to be completely disbelieved.
13. We, therefore, agree with the submissions made by Mr. M.L. Yadav, learned counsel for the respondent no.1 that PW 5 Smt. Nagina has made gross improvement in all material particulars in the court testimony. In fact she has embellished upon the statement given by her to the police immediately after the incident (Exh.PW 5/A) and her court testimony deserves to be disbelieved on this short ground alone.
Crl.L.P. No.162/2016 Page 5 of 6
For all these reasons, we find that this petition is completely devoid of any merit. The petition is hereby dismissed.
(GITA MITTAL) JUDGE (P.S.TEJI) JUDGE SEPTEMBER 08, 2016 aa Crl.L.P. No.162/2016 Page 6 of 6