Mohd. Khalid & Anr. vs State (Nct Of Delhi)
2009 Latest Caselaw 4461 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Decision: 4th November, 2009

+                         CRL.APPEAL No.238/2005

       MOHD. KHALID & ANR.                  ...........Appellants
          Through: Ms.Rakhi Nigam, Adv. for appellant No.1.
                     Mr.R.M.Tufail, Adv. for appellant No.2.

                                versus

       STATE (NCT OF DELHI)              ...........Respondent
           Through: Ms.Richa Kapoor, A.P.P.


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?

     3. Whether the judgment should be reported in the
        Digest?


PRADEEP NANDRAJOG, J. (Oral)

1. Appellants Mohd.Khalid and Shahnawaj have filed the

present appeal challenging the judgment and order dated

25.02.2005 passed by the learned Trial Judge convicting both for

the offence punishable under Section 302/34 IPC; and separately

convicting Mohd.Khalid for the offence punishable under Section

27 of the Arms Act. For the offence of murder the appellants

have been sentenced to undergo imprisonment for life. For the

offence under the Arms Act Mohd.Khalid has been sentenced to

undergo rigorous imprisonment for three years.

2. In so doing, the learned Trial Judge believed the

ocular version of Farhan Khan PW-1 and Amna Begum PW-4 to

be true. It may be noted that Farhan Khan is the minor son of

the deceased and Amna Begum is the wife of the deceased. The

reasoning noted by the trial Judge for the conviction of the

appellants reads as under:-

"As such I do not find any deficiency in the statements of PW-1 Farhan Khan and PW-4 Amna Begum. Their presence on the spot soon after the incident has been duly corroborated by PW-3 Shehbaz who is a nearby resident and whose statement has gone unchallenged. This is further corroborated by MLC Ex.PW-9/A as it was she who had removed deceased to hospital. Both witnesses deposed that Md. Khalid fired a shot at Sadruddin and thereafter, ran away in a waiting car driven by accused Shanawaj. The fact that deceased died on account of gun shot injury is corroborated by PW-9 Dr. Sushila Gambhir as well as PW-7 Dr. Komal Singh who conducted post-mortem on the dead body. Injury was sufficient to cause death in ordinary course of nature. Weapon of offence, country-made pistol Ex.P5 along with empty cartridge Ex.P6 was recovered at the instance of accused Md.Khalid on 25.9.00."

3. At the hearing of the appeal, learned counsel for

appellant Mohd.Khalid has made the following submissions:-

(a) That the presence of PW-1 and PW-4, at the spot at the

time of occurrence was doubtful and hence their claim of being

eye-witnesses was false.

(b) That the post-mortem report Ex.PW-7/A of the deceased

records two injuries on the person of the deceased. Counsel

urges that this contradicts the testimonies of PW-1 and PW-4

wherein they deposed that appellant Mohd.Khalid fired a single

shot at the deceased. It is urged that there is discrepancy in the

medical and the ocular evidence.

(c) With reference to photographs Ex.PW-4/DA, Ex.PW-4/DB

and Ex.PW-4/DC, which depict PW-4 with the appellant

Mohd.Khalid and the admission of PW-4 during cross-

examination that she was the lady in the photograph and

Mohd.Khalid was the male, counsel urged that it was a case of a

relationship gone sour and hence the motive of PW-4 to falsely

implicate Mohd.Khalid.

(d) Lastly, PW-1 and PW-4 being the son and the wife of the

deceased were interested witnesses and were not reliable. That

since all the independent witnesses; namely Hanif PW-2,

Shehbaz PW-3 and Feroz PW-14 have not supported the case of

the prosecution, it would not be safe to convict Mohd.Khalid

relying solely on the testimonies of PW-1 and PW-4.

4. Counsel for appellant Shahnawaj has made the

following submissions:-

(a) That the presence of PW-1 and PW-4 at the spot at the time

of the incident was doubtful.

(b) Since Amna Begum PW-4 was inimical towards

Mohd.Khalid, Shahnawaj being a cousin of Mohd.Khalid was also

being falsely implicated by PW-4.

(c) That as per the site plan Ex.PW-21/A, the car bearing

No.DL-3CE-4104 wherein appellant Shahnawaj was sitting, when

PW-4 and PW-1 claim having seen him, had its rear towards PW-

4 and PW-1. In said circumstance, it was impossible for PW-4

and PW-1 to have seen Shahnawaj sitting in the car, much less

to identify him in the Court.

(d) That the prosecution has not produced any proof that the

car bearing No.DL-3CE-4104 involved in the commission of the

offence was owned by Shahnawaj.

(e) That no site plan was prepared from where the car in

question was recovered and hence the claim of the car being

abandoned was false.

(f) Shahid, cited as a witness outside whose shop the

deceased was fired at, was a material witness and the

prosecution deliberately managed to not serve summons upon

him and ultimately dropped him as a witness. It is urged that

non-examination of Shahid has seriously prejudiced the defence.

(g) Lastly, that the only role alleged against Shahnawaj was

that he drove the car in which Mohd.Khalid escaped from the

spot; this does not amount to participation in the murder. In

absence of any participation in the actual offence, it cannot be

said that Shahnawaj shared an intention to murder the deceased

with appellant Mohd.Khalid and hence his conviction with the aid

of Section 34 IPC pertaining to the death of the husband of Amna

Begum PW-4 cannot be sustained.

5. Before dealing with the arguments set forth by the

counsel for the appellants, we broadly note the case of the

prosecution.

6. The case of the prosecution is that at about 7.30 PM

on 20.09.2000, Farhan Khan PW-1 accompanied his father

Sadruddin (deceased) to a General Provisional Store situated

near their house i.e. F-232, Inder Enclave, Phase-II, Sultanpuri,

Delhi. Appellant Mohd.Khalid also reached at said shop and

started abusing Sadruddin, on which Farhan Khan PW-1 rushed

back to inform his mother Amna Begum PW-4. Amna Begum

immediately accompanied Farhan Khan PW-1 back to the

General Provisional Store and when they were at some distance

from said shop, they saw appellant Mohd.Khalid fire a shot at

Sadruddin. At that time, a white coloured car was parked at a

distance of 4/5 paces from where Mohd.Khalid was standing and

appellant Shahnawaj was sitting on the driver‟s seat. After firing

at Sadruddin, Mohd.Khalid sat in said car and both the appellants

fled away. Sadruddin fell on the spot; Amna Begum caught him

and as a result her clothes got stained with blood. She took her

husband to Sanjay Gandhi Hospital, however, Sadruddin expired

on the way.

7. Process of law was set in motion when at 8.10 PM

somebody informed PS Sultanpuri about the incident, where DD

No.70-B Mark-A was recorded and a copy thereof was entrusted

to SI Ajay Solanki PW-19 for investigation. SI Ajay Solanki PW-19

accompanied by Const.Subhash PW-15 went to the spot and on

learning that the injured had been taken to Sanjay Gandhi

Hospital, went to said hospital. At the hospital, they learnt that

Sadruddin was declared brought dead; he collected his MLC

Ex.PW-9/A which records that the patient was brought to the

hospital by his wife Amna. SI Ajay Solanki PW-19 met Amna

Begum in the hospital and recorded her statement Ex.PW-4/A.

He made an endorsement Ex.PW8/A under said statement and

noting therein the brief facts of the case sent it for registration of

an FIR at 11.20 PM. It may be noted that in her statement,

Amna Begum has inculpated both appellants and has narrated

facts which have formed the case of the prosecution and have

been noted by us in the preceding para.

8. After registration of FIR, investigation was transferred

to Insp.Ranbir Singh PW-29 who filled the inquest papers and

sent the dead body for post-mortem. Dr. Komal Singh PW-7

conducted the post-mortem and prepared her report Ex.PW-7/A.

She noted two injuries on the person of the deceased being:-

"1. One gun shot injury, oval in shape present at epigastric area and it was 15 cm from the right nipple and 10 cm from the left nipple.

Rough sketch drawn. It is 4 cm X 3 cm. A black ring was present at its right border and 3 mm on left border. Omental fat was exuding out of it.

2. There was another oval wound 8 mm X 6 mm in size having irregular margins present at the fourth

lumber vertebra level. On the right lateral side it was 10 cm from the midline, margins were everted."

9. Dr. Komal Singh opined that the death was due to

firearm injury to vital organs of the body. She outlined the track

of the bullet in the body, which reads as under:-

"It entered at the epigasteric area (N0.1). After that it went to the anterior surface of the right of the liver and then it went to the omental fact lacerating the small intestine reaching to at L 4 (No.2). From there it was exuded out."

10. Insp.Ranbir Singh seized the blood stained salwar,

kurta and dupatta of Amna Begum as recorded in memo Ex.PW-

4/F. Said clothes along with other articles seized during the

investigation were sent for forensic examination and as per FSL

report Ex.PZ-1, blood of human origin was detected on the

salwar, kurta and dupatta of Amna Begum; however, the blood

group could not be determined.

11. During the course of the investigation, Insp.Ranbir

Singh learnt that on 6.3.2000 Amna Begum had lodged an FIR

being FIR No.222/2000 Ex.PW-13/A for the offence punishable

under section 354/506 IPC against appellant Mohd. Khalid. The

FIR records that on 2.3.2000 when husband of Amna Begum was

not present in the house, Mohd.Khalid entered her house and

misbehaved with her. Insp.Ranbir Singh also learnt that on

4.5.2000, due to the mutual differences and quarrels between

Mohd. Khalid and Amna Begum PW-4, HC Dewan Singh PW-20

had issued a Kalandra Ex.PW-17/A under section 107/150 Cr.P.C.

against both Mohd.Khalid and Amna Begum for maintenance of

piece.

12. The appellants were put to trial. Prosecution

examined 29 witnesses. Eschewing reference to the

testimonies of the formal and procedural witnesses, we note

only the testimonies of the relevant witnesses in respect

whereof submissions have been urged in the appeal.

13. Farhan Khan PW-1 deposed that on 20.9.2000 he

accompanied his father Sadruddin to a General Provisional

Store. Appellant Mohd.Khalid also reached there and started

abusing his father Sadruddin. He went and informed his mother

about the same and when his mother and he were at a short

distance from the General Provisional Store, he saw appellant

Mohd.Khalid fire a gun shot at his father. Appellant Mohd.Khalid

thereafter sat in a white coloured car, parked at an arm‟s length

from the place of occurrence, driven by appellant Shahnawaj

and the two fled away.

14. On being cross-examined by the counsel for accused

Shahnawaj, Farhan Khan PW-1 stated that the car was parked at

a distance of 3 or 4 yards from the place of occurrence. The rear

portion of the car was facing towards him. There were only two

houses between his house and the General Provisional Store in

front of which the incident took place.

15. Amna Begum PW-4 deposed that she was a resident

of house bearing Municipal No.F-232, Inder Enclave, Phase-II,

Sultanpuri, Delhi. The deceased Sadruddin was her husband.

Appellant Mohd.Khalid was residing in her neighbourhood for

1½- 2 years prior to the incident. Appellant Shahnawaj was a

relative of Mohd.Khalid and often used to visit him. About a

year prior to the incident, when she was alone in the house,

appellant Mohd.Khalid had entered her house and molested her

for which, she had lodged an FIR Ex.PW-13/A. On the day of the

incident i.e. 20.09.2000 at about 7 or 7.30 PM her husband

Sadruddin and son Farhan Khan PW-1 went to a nearby General

Provisional Store. Within five minutes of their leaving, her son

returned and informed her about a quarrel between her

husband and appellant Mohd.Khalid. She immediately rushed

towards the spot and when she was at a short distance from the

spot, she saw appellant Mohd.Khalid abuse her husband and

thereafter fire a shot at him. At that time a maruti car was

parked close to the spot and appellant Shahnawaj was sitting on

the driver seat. After firing at her husband, Mohd.Khalid sat in

the car and the two appellants fled away.

16. On being cross-examined she admitted that the

photographs Ex.PW-4/DA, Ex. PW-4/DB and Ex.PW-4/DC depict

her with appellant Mohd.Khalid.

17. Shehbaz PW-3 deposed that the deceased Sadruddin

alongiwth his family resided in his neighbourhood. At around

7.30/7.45 PM on 20.09.2000 he heard a sound of explosion and

immediately rushed out of his house. He saw that deceased

Sadruddin was lying in a pool of blood on the road in front of the

shop of Shahid and his wife Amna Begum and son were present

besides Sadruddin and were weeping. He along with Amna

Begum removed Sadruddin to Sanjay Gandhi Hospital in a TSR.

18. It may be noted that Shehbaz did not claim to have

seen the appellant sped away in any car and to that extent did

not support the case of the prosecution.

19. SI Ajay Solanki PW-19 deposed having recorded the

statement Ex.PW-4/A of Amna Begum at the hospital.

20. It may be noted at the outset that PW-3 has not been

subjected to any cross-examination and thus his testimony that

when he came out of his house on hearing the sound of a fire

cracker, he saw Amna Begum and Farhan Khan near the body of

the deceased has gone unchallenged. Thus, the plea of both

counsel for both appellants that presence of Amna Begum and

Farhan Khan as claimed by them is doubtful has to be repelled

because PW-3, an independent person has deposed of the two

being present, which testimony has gone unchallenged. It may

additionally be noted that whereas Amna Begum and Farhan

Khan claim to be present at the spot before the shot was fired,

PW-3 came out of his house on hearing the sound of the gun

shot (sound of a cracker as deposed to by him) and thus PW-3

not having seen the commission of the crime, is a truthful

deposition by him. What is relevant is that PW-3 saw the

mother and child near the body of the deceased, meaning

thereby that the two were present at the spot before PW-3

arrived at the spot.

21. The MLC Ex.PW-9/A of the deceased records that the

deceased has been brought to the hospital by Amna Begum.

Testimony of SI Ajay Solanki PW-19 establishes presence of

Amna Begum in the hospital. The seizure memo Ex.PW-4/F

evidences that SI Ajay Solanki took possession of the blood

stained salwar, kurta and dupatta of Amna Begum, who

admittedly was not injured and the only explanation of her

clothes being stained with blood is her act of removing her

husband in a TSR to the hospital i.e. her being present at the

spot as claimed by her.

22. A ticklish question, qua appellant Shahnawaj arises

for our consideration. The question arises on account of the fact

that if Amna Begum and her son, whose presence at the spot

stands established by means of independent evidence of

unimpeachable character, why should the two let go the actual

assailant and falsely implicate the accused.

23. Qua appellant Mohd.Khalid, there is no doubt of what

he did as deposed to by Amna Begum and Farhan Khan. He

was seen on the street and picked up a quarrel with the

deceased and shot him in the chest. As deposed to by the

mother and son, Mohd.Khalid was at a distance of an arm‟s

length from the car stated to be driven by Shahnawaj. After

firing the shot, Mohd.Khalid sat in the car which was driven

away.

24. Could Amna Begum and Farhan Khan see the driver

of the car? The answer has to be found in the site plan Ex.PW-

21/A which shows that Amna Begum and her son were standing

on the road at point marked „D‟ in the site plan. The place

where the car was stationed is at point marked „A‟. The

distance between the two points is about 10 metres. The point

„D‟ is on the extreme left of the road. Drawing a straight line

from point „D‟ to the driver‟s seat in the car, it is apparent that

the same would form an angle of about 150.

25. A driver seated on the driver seat in a Maruti car, if

viewed by a person who is at the back of the car at a distance of

10 metres forming an angle of 15 0 from the spot where a person

is standing vis-a-vis the driver‟s seat in the car would get no

more other than a glimpse of the top of the head of the driver.

Under no circumstances can the face of the driver be seen by

the said person. Neither Amna Begum nor Farhan Khan have

stated that the driver of the car was looking back. From the fact

that Amna Begum had a relationship more than platonic with

Mohd.Khalid evidenced by the photographs Ex.PW-4/DA to

Ex.PW-4/DC it can be reasonably inferred that Amna Begum was

aware of the names of some of the friends of Mohd.Khalid and

was probably aware that the car in question belonged to

Shahnawaj and for said reason she stated that Shahnawaj was

the driver of the car. Her son parroted her.

26. In view of the positions shown in the site plan Ex.PW-

21/A and as discussed above, it has to be held that under no

circumstances could Amna Begum and her son have seen the

face of the driver who was driving the car and for said reason

appellant Shahnawaj has to be given the benefit of doubt.

27. Thus, we need not discuss other submissions urged

by learned counsel for Shahnawaj.

28. Pertaining to appellant Mohd.Khalid, evidence shows

that he did become close to Amna Begum but fell foul with her

evidenced by the fact that Amna Begum had lodged an FIR

Ex.PW-13/A against him. The kalandra Ex.PW-17/A shows

quarrels between Mohd.Khalid and Amna Begum. It is thus

apparent that Mohd.Khalid had a motive; the motive being to do

away with the husband of Amna Begum and thereafter regain

her love.

29. Turning to the submissions urged by learned counsel

for Mohd.Khalid that presence of PW-1 and PW-4 at the spot is

doubtful, for the reasons noted herein above, we reject the plea.

Pertaining to the second submission that the witnesses have

deposed of only one shot being fired and the post-mortem

report showing two injuries, suffice would it be to state that the

second firearm injury is an exit wound. The post-mortem report

of the deceased evidences, that he received only one firearm

injury.

30. The third submission of the sour relationship

between Amna Begum and Mohd.Khalid has been dealt by us in

the preceding paragraphs and the motive which emerges there

from. The plea that PW-1 and PW-4 were interested witnesses is

neither here nor there for the reason merely because they were

related to the deceased would not make them interested

witnesses. We see no reason why PW-1 and PW-4 would let go

the real culprit and falsely implicate Mohd.Khalid to satisfy the

hatred of Amna Begum towards Mohd.Khalid, with whom, at

some time in the past she had more than a platonic

relationship.

31. The appeal, insofar it relates to appellant No.2

Shahnawaj is allowed. His conviction for the offence of murder

of Sadruddin is set aside and he is acquitted of the charge

framed against him.

32. The appeal, insofar it relates to appellant No.1

Mohd.Khalid is dismissed.

33. Appellant Shahnawaj is on bail. The bail bond and

surety bond furnished by appellant Shahnawaj are discharged.

34. Since appellant Mohd.Khalid is still in jail, copy of this

order be sent to the Superintendent, Central Jail, Tihar to be

made available to appellant Mohd.Khalid.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE November 04, 2009 Dharmender