Aga Jafar Mirza & Anr vs State Of Delhi
2011 Latest Caselaw 2832 Del

        THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment delivered on: May 26, 2011

+ CRL.A. No. 596/2010


AGA JAFAR MIRZA & ANR                                           ..... Appellants

                      versus

STATE OF DELHI                                                  .... Respondent

Advocates who appeared in this case:-

For the Appellants             : Mr Abdul Sattar, Advocate
For the Respondents            : Ms Richa Kapoor, APP for respondent
                                 no. 1.
                                 Ms Jyoti Gupta for respondent nos 2-3.

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MS JUSTICE VEENA BIRBAL

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

2. To be referred to the Reporter or not? Yes

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

VEENA BIRBAL, J

By our order dated 26.05.2011 we had dismissed the present

appeal and had indicated that reasons would follow. These are the

reasons.

Present is an appeal under the proviso to Section 372 of Code of

Criminal Procedure, 1973 on behalf of the victims (namely appellant

no.1 Aga Jafar Mirza & appellant no.2, Smt. Khurshid Begum being

the son-in-law and wife of deceased respectively). The appeal is

directed against the impugned judgment dated 30th January, 2010 in

Session's case no.108/2008 passed by the learned Addl. Sessions

Judge-North East, Karkardooma Courts, whereby both the accused,

namely, Nafees Ahmed and Shakil i.e. respondent nos. 2 & 3 herein,

were acquitted of the charges u/s 302/34 IPC for having committed the

murder of Shamshul Hassan.

2. The case of the prosecution is that on 6th March, 2004 on receipt

of information vide DD No.4-A, SI Nitin Kumar along with Constable

Sanjay went to Gali No.10, Brahampuri and at Mohan Nursing Home

and from there they came to know that a person was shot and had

been taken to GTB Hospital. From there, they went to GTB Hospital

and obtained MLC of injured Shamshul on which the Doctor had

declared the injured as having been brought dead with gun shot injury.

In the hospital, eye witness Aga Jafar Mirza PW-2 met SI Nitin

Kumar and made his statement Ex. PW 2/A wherein he stated that on

6th March, 2004 at about 9.30 am, he was going to the house of his in-

law. When he reached a little ahead from the corner of street no.48/2,

he saw that his father-in-law Shamshul Hassan was talking to three

persons. One more person was standing at a distance of 2-3 meter

from those persons. After few seconds, those three persons grappled

with his father-in-law. One of those persons aged 25-30 years had

caught hold of his father-in-law from his back and the other person

started pulling his feet downwards and the third person put a country

made pistol on the mouth of his father-in-law and fired a shot on the

chin and in the armpit. His father-in-law ran away towards

Khajurwali Masjid after crying 'Mar diya' 'Mar diya' and while

running away, the other person fired a shot on the back of his father-

in-law as a result of which, he fell down at some distance. Two

persons ran towards Khajurwali Masjid and other two ran towards the

opposite side. In the meantime, his brother-in-law Mirza Gulshan Beg

PW-10 reached at the spot. His father-in-law was taken to Mohan

Nursing Home by Mirza Gulshan Beg, PW-10 & Safar Abbas on a

two wheeler scooter where they were advised to take him to GTB

Hospital and thereafter his father-in-law was brought to GTB Hospital

where he was declared as having been brought dead.

On the basis of above statement, SI Nitin Kumar had put

endorsement and got registered FIR Ex.PW8/C and investigation was

carried out.

3. Thereafter, a charge sheet was filed against accused Nafees by

placing him in col. No.2. Subsequent to that, Nafees was arrested in

this case and a supplementary charge sheet was filed against him. On

7th April, 2005, learned Addl. Sessions Judge had framed a charge

against Nafees for the offence u/s 302/34 IPC to which he pleaded not

guilty and claimed trial.

4. On 7th July, 2005, accused Shakeel @ Ghanti was arrested in

some other case wherein he made a disclosure statement about his

involvement in the present case. Shakeel was arrested on 14 th July,

2005. After completion of investigation, supplementary charge sheet

was filed against him. Vide order dated 21st February, 2006 for the

offence punishable u/s 302/34 IPC to which he pleaded not guilty and

claimed trial.

5. During the trial, prosecution in all, had examined 19 witnesses,

out of which, Aga Jafar Mirza, PW-2 is the alleged eye witness to the

occurrence. Smt.Khursheed PW-5, Saffar Abbas PW-6 and Gulshan

Beg PW-10 are also the material witnesses as per prosecution story.

6. The statement of accused persons u/s 313 Cr.P.C was recorded

wherein they denied incriminating evidence against them and stated

that they were falsely implicated.

7. In defence, respondent no.2-Nafees has examined DW.1 Laiek

Ahmed who deposed that on 5th and 6th March, 2004, accused Nafees

was present in their village. On 5th March, 2004, he along with

accused Nafees went to court at Hassanpur. On 6th March, 2004 they

remained at village Hassanpur from morning to night and accused-

Nafees was not present in the area of Jafrabad on the said date.

Accused-Shakeel had not led any evidence in defence.

8. The learned Addl. Sessions Judge in the impugned judgment

has discussed the entire evidence of the material witnesses mentioned

above and has come to the conclusion that presence of eye witness

PW2 at the spot is doubtful and has disbelieved his evidence. Learned

Addl. Sessions Judge has also held that there are contradictory

statements with regard to the vehicle in which deceased was taken to

the hospital. It is also held that there is contradiction as to the place of

occurrence. Considering the material contradictions in the statement

of PW-2 and other material witnesses of the prosecution, it was held

that the case of the prosecution is doubtful and after giving the benefit

of doubt, the learned Addl. Sessions Judge has acquitted both the

accused persons.

9. Learned counsel for the appellants has argued that the eye

witness in the present case is Aga Jafar Mirza PW-2 and he has fully

supported the case of the prosecution and the learned Addl. Sessions

Judge has wrongly held that his presence at the spot and his having

seen the alleged occurrence is doubtful. It is contended that the

learned Addl. Sessions Judge has wrongly disbelieved the said

witness. It is further contended that even other witnesses of the

prosecution i.e., Smt. Khurseed, PW-5, Saffar Abbas, PW-6 and

Gulshan Beg, PW-10 have also supported the case of the prosecution.

It is prayed that the impugned judgment passed by the learned Addl.

Sessions Judge is liable to be set aside.

10. On the other hand, learned counsel for accused/respondent

nos.2 & 3 has contended that the learned Addl. Sessions Judge has

rightly appreciated the evidence of the PW-2, Aga Jafar Mirza as well

as other witnesses as are stated above and has rightly not believed

their evidence. It is contended that the present appeal is liable to be

dismissed.

11. We have considered the submissions made and have gone

through the evidence on record.

12. As per prosecution case, the eye witness to the alleged

occurrence is Aga Jafar Mirza, PW-2, complainant who is the son-in-

law of the deceased. The said witness in his evidence has deposed

that on 6th March, 2004 at 9.30 am he was going to his in-law's house

to meet his wife and children who had gone there a day earlier. When

he had reached a little ahead from the corner of street no.48/2, he saw

that his father-in-law Shamshul Hassan was talking to three persons

and exchanging hot words. Those three persons grappled with his

father-in-law. One of those persons caught hold of his father-in-law

from his back and the other person pulled his feet downwards and the

third person put a country made pistol on the mouth of his father-in-

law and fired a shot on the chin and in armpit. When his father-in-law

tried to ran away, the other person who was standing at a distance

also fired a shot on the back of his father-in-law as a result of which,

he fell down at some distance. Those persons then ran away. In the

meantime, his brother-in-law Mirza Gulshan Beg, PW-10 and co-

brother 'Sadu' Sabbar Abbas, PW-6 also reached there and removed

his father-in-law in a two wheeler scooter to Mohan Nursing Home

whereas he followed them on foot.

13. As per prosecution story, Smt.Khurhseed, PW-5 who is the wife

of deceased had reached the spot immediately after the occurrence.

According to her, at about 9 or 9.15 am, she was present in her house

and her husband i.e deceased was also there. She heard one Tahir

calling her husband. She called her husband to have tea but he went

downstairs saying that he was being called by Tahir. After about five

minutes, she heard bangs of gun shots. Her son and son-in-law ran

down stairs and she also followed them. She told PCR officials that

her husband was shot at by Tahir. In her cross-examination, she has

deposed that she had not met Aga Jafar Mirza, PW-2 at the spot. Her

statement in cross-examination makes the presence of Aga Jafar

Mirza PW-2 at the spot doubtful.

14. The other material witness Saffar Abbas, PW-6 has deposed

that on hearing noise of bang thrice, his co brother-in-law (Sadu) Aga

Jafar Mirza PW-2, brother-in-law Gulshan Beg, PW-10 and mother-

in-law PW-5 had gone down stairs prior to him and Gulshan PW-10

and Jafar PW-2 had removed the deceased to hospital in a three

wheeler scooter and he followed them.

15. All these PWs have made contradictory statements. According

to wife of deceased PW5, her son-in-law i.e. Aga Jafar Mirza PW2 did

not meet her at the spot. According to Saffar Abbas PW-6, Aga Jafar

Mirza PW-2 had gone to the spot from the house of deceased.

16. There are also contradictions with regard to the vehicle by

which deceased was taken to the hospital. According to Saffar Abbas,

PW-6, Gulshan Beg, PW-10 and Aga Jafar Mirza, PW-2 had removed

the deceased on a three wheeler to the hospital whereas according to

Aga Jafar Mirza, PW-2, deceased was removed to the hospital in a two

wheeler scooter by PW-6, Saffar Abbas and PW-10, Gulshan Beg and

he had followed them on foot. Gulshan Beg, PW-10 has deposed that

his father was taken to hospital in a two wheeler scooter by him and

Aga Jafar Mirza (PW2) and Saffar Abbas (PW6) had made his father

board the scooter. PW2 has nowhere deposed that he helped the

deceased in making him sit on the scooter.

17. The contradictions pointed out are material in nature and go to

the root of the matter which makes the presence of alleged eye witness

Aga Jafar Mirza, PW2 doubtful at the spot. The learned Addl.

Sessions Judge has rightly appreciated the evidence and disbelieved

the presence of said witnesses at the spot. The learned Addl. Sessions

Judge has also noticed that the conduct of PW-2, Aga Jafar Mirza,

who is the son-in-law of deceased, was also unnatural as he did not

make any attempt to save the deceased nor had he informed the police

about the incident either from the spot or from the Mohan Nursing

Home where he had allegedly gone. No blood was also found on his

clothes whereas as per Gulshan Beg, PW-10, Aga Jafar Mirza, PW-2

helped the deceased in making him sit on the scooter in an injured

condition.

18. We may also point out that the learned Addl. Sessions Judge

has rightly observed that photograph of respondent no.3-Shakeel @

Ghanti was shown to PW-2 prior to conducting TIP in Delhi as such,

the refusal of said accused to participate in the TIP was justified.

19. After having gone through the impugned judgment and the

evidence on record, we do not find any infirmity in the impugned

judgment. Accordingly, the appeal is dismissed.

VEENA BIRBAL, J

BADAR DURREZ AHMED, J

MAY 26 , 2011 ssb