Delhi High Court
State Govt. Of Nct Of Delhi vs Tahir @ Yamin & Anr. on 6 April, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 6th April, 2010
+ Crl.L.P.No.60/2010
STATE GOVT. OF NCT OF DELHI ..... Petitioner
Through: Mr.M.N.Dudeja, APP
versus
TAHIR @ YAMIN & ANR. ..... Respondents
Through: None.
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 Reporter or not?
3. Whether the judgment should be reported in the Digest?Yes
PRADEEP NANDRAJOG, J. (Oral)
Crl.L.P.No.60/2010 & Crl.M.A.No.2620/2010
1. Vide Crl.M.A.No.2620/2010, delay of 62 days in
seeking Leave To Appeal against the judgment and order
dated 03.10.2009 has been prayed for.
2. Needless to state, if cause being pursued by the
State is a worthy cause, delay in seeking Leave To Appeal
needs to be condoned. Thus, we have proceeded to consider
the cause advanced by the State in seeking Leave To Appeal.
3. As per the prosecution, one Ajam (PO) had
developed illicit relationship with one Sanjida, who was the
sister-in-law of the mother of the deceased boy named
Nanhey. Nanhey had become a thorn in the eyes of Ajam, who
hatched a conspiracy to get rid of Nanhey. In furtherance of
the conspiracy Shahnawaj @ Sonu, Tahir @ Yamin, Wasim @
Munna enticed away Nanhey on 21.05.2004 and murdered
him.
4. Whereas Ajam fled from justice Shahnawaj, Tahir
and Wasim were put up for trial.
5. Vide impugned judgment and order dated
03.10.2009, Shahnawaj @ Sonu has been convicted on
account of the fact that the learned trial judge has held that as
regards him the chain of circumstantial evidence was complete
wherefrom his guilt could be inferred.
6. Co-accused Tahir and Wasim have been acquitted.
The State has sought Leave To Appeal in so far as Tahir and
Wasim have been acquitted.
7. Incriminating evidence sought to be led against
Tahir and Wasim was through the testimony of Mohd.Nasir PW-
6, who deposed that on 18.05.2004 at about 7:00 PM he heard
in the public street Ajam telling Shahnawaj, Tahir and Wasim
that Nanhey was proving to be a thorn in his plans and should
be removed. He claimed that accused Tahir and Shahnawaj
told Ajam in his presence that needful would be done.
8. Another piece of incriminating evidence sought to
be led against Tahir and Wasim was through the testimony of
Ahmad Ali PW-2 who claimed that on 21.05.2004 at about 8:00
PM he had seen Nanhey holding the hand of Shahnawaj, both
were proceeding towards Janta Colony and at that time he saw
Tahir and Wasim walking behind.
9. Lastly, Farida PW-1 mother of Nanhey deposed that
about 8 months prior to the date of incident a quarrel had
ensued between her sons Sunny and Nanhey with Tahir, who
had threatened to finish her sons.
10. With respect to the testimony of Farida PW-1, in so
far she referred to a fight which had taken place between her
sons and Tahir about eight months ago, finding returned is
that it is too distant in the past for holding against Tahir that
he had a motive to kill Nanhey.
11. As regards the testimony of Ahmad Ali, learned trial
judge has held that the mere fact that Tahir and Wasim were
walking on the street and in front of them Shahnawaj and
Nanhey were walking, would not lead to any inference of guilt
against Tahir and Wasim.
12. As regards the testimony of Mohd.Nasim, the
learned trial judge has discussed the same in para 32 of the
judgment as under:-
"This witness had heard the conversation on 18.05.04
and he came to know on 22.05.04 that a dead body of
the child has been found and that child was Nanhey
despite that he came on 27.05.04 and told Farida about
this fact. Further, in his cross-examination, he denies
this fact and stated that he does not know on 22.05.04
that Nanhey was the son of Farida. He came to know
this fact on 25.05.04. On 25.05.04, he does not go to
her or to the police. PW Mohd. Nasir is a property
dealer living in the same Mohalla. He knows the
accused persons who are the residents of the same
mohalla and also the deceased is the resident of the
same mohalla, despite, that he does not attended the
last rites of the deceased and despite living in the same
mohalla, he does not know that Nanhey was the son of
Farida. The conduct of this witness is very unnatural
and his testimony does not inspire confidence. It is also
highly unlikely that the persons conspiring together will
speak at a public place in a street which is used by the
public as a thorough-fare to discuss the plan to get rid
off child that to in a normal voice audible to others. In
the manner, his statement was recorded by the police
after a gap of 5 days, I am of the opinion that his
testimony cannot be relied upon to hold that the
witness had heard Ajam, Sahnawaj and Tahir conspiring
together to finish the minor child Nanhey."
13. In our opinion the appreciation of the testimony of the
three witnesses of the prosecution by the learned trial judge does
not suffer from any infirmity.
14. Indeed, Mohd.Nasir PW-6 is a most uninspiring
witness. We reiterate the sound reasoning advanced by the
learned trial judge to hold that Mohd.Nasir is a witness of no
worthy credits.
15. We also concur with the view taken by the learned
trial judge with respect to the appreciation of the testimony of
PW-1 and PW-2.
16. Suffice would it be record that where the view taken
by the learned trial judge is a reasonable and probable view,
merely because some other view is also a possible view, would
not justify inference by the Appellate Court.
17. We conclude by holding that the State has not been
able to show to us that there is any infirmity in the reasoning of
the learned trial judge in so far as Tahir and Wasim have been
acquitted.
18. The petition seeking Leave To Appeal as also
Crl.M.A.No.2620/2010 are dismissed.
PRADEEP NANDRAJOG, J
SURESH KAIT, J
APRIL 06, 2010
'mr'
