Delhi High Court
State N.C.T Of Delhi vs Nazir @ Nanhe & Anr on 8 September, 2016
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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
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
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
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
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.
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
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