Delhi District Court
State vs Naushad on 8 May, 2025
IN THE COURT OF SH. PANKAJ ARORA: ADDL.
SESSIONS JUDGE-04: NORTH-EAST DISTRICT:
KARKARDOOMA COURTS: DELHI
SESSIONS CASE No. 44812/15
CNR No. DLNE01-000330-2014
FIR No. 613/13
P.S.: Khajuri Khas
U/s : 324/307/302/34 of IPC
STATE
Versus
(1) NAUSHAD (declared PO vide order
s/o Sh. Shamshad dt. 17/04/2023)
r/o A-850, Gali no. 20, Shri Ram Colony,
Khajuri Khas, Delhi-110094
(2) MUSTAQ
s/o Sh. Salauddin
r/o A-311, Gali no. 8, Shri Ram Colony,
Khajuri Khas, Delhi-110094
(3) WAMIK
s/o Sh. Mohd. Kameel
r/o A-323, Gali no. 20, Shri Ram Colony,
Khajuri Khas, Delhi-110094
Date of Institution : 03-04-2014
Date of Argument : 26-04-2025
Date of Judgment : 08-05-2025
JUDGMENT
1. Brief facts of the case are that on 06-11-2013, at about
7:28 pm, an information was received at PS Khajuri Khas
regarding quarrel at Gali no. 8, Rajiv Nagar, Shri Ram Colony,
Khajuri Khas, Delhi. The information was reduced into writing
FIR No. 613/13 State Vs. Naushad Etc. Page 1 of 51
vide 29A (Ex. PW1/C) and the same was marked to SI Naveen
Rathi, (hereinafter referred to as IO/Investigating Officer).
Thereafter, IO along with Ct. Sanjay reached at the spot i.e. B-
320, Gali no. 8, Shri Ram Colony, Delhi where they came to
know that victims had already been taken to JPC hospital. They
noticed broken glass bottle and blood at the spot. The IO passed
directions for calling the Crime Team and left Ct. Sanjay at the
spot for guarding the scene of crime. Thereafter, IO proceeded
towards JPC hospital and collected MLCs of patients namely
Zakir, Sazid Hussain, Guddu, Saleem, Naushad, and Mustaq
wherein the doctor concerned had endorsed, “alleged history of
physical assault, type of injuries U/O sharp”. Thereafter, the IO
came to know that the victims of the present case had been sent
to GTB hospital. The IO went to GTB hospital where the above-
stated victims were found to be under treatment. During inquiry,
the IO came to know that a fierce scuffle took place between four
brothers namely Mohd. Guddu, Sabir, Zakir, Salim on one side
and Mustaq & Naushad on the other side. Thereafter, the IO
proceeded to record statement of Mohd. Guddu, who stated that
he was residing at H. No. B-320, Gali no. 8, Shri Ram Colony
and doing the work of jeans stitching. He had three brothers and
two sisters. He was residing at the above-stated address along
with his three brothers namely Sabid, Zakir, Salim and parents.
Zakir was already married and his family was residing with him.
They were running grocery shop where their mother namely
Momina Begum used to sit. At about 7:10 pm, he was watching
TV along with his brothers Salim and Zakir at his home. Upon
hearing noise in the street, he came out of the house and saw that
one boy namely Mustaq and 2-3 more boys were having heated
FIR No. 613/13 State Vs. Naushad Etc. Page 2 of 51
exchange of words with his mother. Immediately, Mustaq started
manhandling with his mother. Meanwhile, his brothers Salim
and Zakir also came out. Mustaq attacked Salim with knife.
When he tried to rescue his brother Salim, all the above-stated
boys started beating him. Meanwhile, his brother Sabir, who was
doing the work of footwear in the street, came to rescue them.
Then one boy amongst above-stated assailants namely Naushad
too had started beating them. One boy Wamik, previously
known to him, also started beating them. Mustaq took out one
knife and assaulted his four brothers. Meanwhile, public
gathered at the spot and assailants got dispersed. Mustaq and his
associates had attacked his brothers including himself with
intention to kill them. On the basis of above-stated statement of
complainant Mohd. Guddu, the present FIR came to be registered
for the offences punishable u/s 324/307/34 of IPC.
Thereafter, the IO went to the spot and prepared unscaled
site plan. The IO then went to the house of accused Mustaq, who
was residing in the neighbourhood and started interrogated him.
During interrogation, he confessed about committing assault
upon Guddu, Salim and Zakir along with his associates Naushad
and Wamik. His disclosure statement was recorded and he was
arrested. Accused Naushad was also arrested. On 06-11-2013, at
the instance of accused Naushad, weapon of offence i.e. one
knife was recovered from a vacant park at Gali no. 8, E-Block.
During investigation, vide DD no. 5B, an information was
received regarding death of victim Sabir Hussain at GTB
hospital. The IO collected dead body of Sabir from the hospital
and transported the same to mortuary of GTB hospital for
postmortem. Thereafter, co-accused Wamik Raza was arrested
FIR No. 613/13 State Vs. Naushad Etc. Page 3 of 51
on the basis of secret information. During interrogation, accused
Wamik confessed about committing the alleged offence. His
disclosure statement was recorded. Postmortem on the body of
deceased was conducted wherein the cause of death was opined
as septicemic shock as a result of antemortem injury to internal
abdominal organs caused by sharp weapon. Thereafter,
subsequent opinion regarding use of offence of offence was
obtained from the autopsy surgeon wherein the it was opined that
“injury no. 2 and 3 mentioned in PM report no. 1514/13 dated
12-11-2013 could be possible by weapon under examination”.
The clothes of victims were taken into police possession. The IO
got prepared scaled site plan of the spot, collected photographs
from the Crime Team, and PCR form from PHQ. PCR officials
and Crime Team officials were interrogated and their statements
u/s 161 Cr.P.C. were recorded. Bone age test of accused Mustaq
was got conducted from GTB hospital wherein it was opined that
age of accused Mustaq is between 19-21 years. After completion
of necessary formalities, charge-sheet was filed in the court of
Ld. Ilaqa MM.
COMMITTAL
2. After taking cognizance and compliance of section 207 of
Cr.P.C., the present case was committed to the Courts of
Sessions vide order dated 27-03-2014 by the Ld.
ACMM/NE/KKD. The same was allocated by the then Ld.
District and Sessions Judge to the Ld. Predecessor of this Court.
CHARGE
3. After hearing the arguments and finding that prima facie
case was made out against the accused persons for the offence
FIR No. 613/13 State Vs. Naushad Etc. Page 4 of 51
punishable u/s 302/307/326/324/34 of IPC, charges were framed
by ld. Predecessor against the accused persons, to which they
pleaded not guilty and claimed trial. Thereafter, prosecution got
examined as many as 30 witnesses.
PROSECUTION EVIDENCE
4. PW1 ASI Shanti Lal deposed that on the intervening night
of 6-7/11/2013, he was posted at PS Khajuri Khas as ASI. On
that night, he was working as a duty officer from 12 midnight to
8 am. On that day at about 12.05 am, he recorded FIR no. 613/13
u/s 324/307/34 IPC through computer operator on the basis of
rukka which was sent by SI Naveen Rathi through Ct. Sanjay.
After registration of the case, he handed over copy of FIR and
original rukka to Ct. Sanjay for handing over the same to SI
Naveen Rathi. Computer copy of the said FIR Ex. PWI/A. He
made endorsement Ex. PW1/B on the rukka regarding
registration of the case.
He had brought original rojnamcha register. As per record,
at 7.27 pm on 06.11.2013, an information was received in the
police station from PCR regarding a quarrel at B-Block, Gali No.
8, Rajeev Nagar, Sri Ram Colony, Khajuri Khas. The said
information was received in control room from a mobile phone
no. 8588030501. The information was conveyed to HC Subhash
and later on, on the direction of SHO concerned, the information
was conveyed to SI Naveen Rathi for inquiry. The said
information was recorded vide DD no. 29 in rojnamcha register.
The said information is Ex. PW1/C.
On 12.11.2013 at 2.10 midnight, an information was
received in PS from Ct. Mahesh of GTB Hospital that Sabir
Hussain who was admitted in Jag Pravesh Hospital after a quarrel
FIR No. 613/13 State Vs. Naushad Etc. Page 5 of 51
on 06.11.2013 and who was referred to GTB Hospital, had
expired in GTB Hospital. On this information, DD NO. 5A was
recorded on 12.11.2013 vide Ex. PWI/D. The information
regarding death of Sabir Hussain was conveyed to SI Naveen
Rathi.
The witness was cross-examined by Ld. Defence counsel
but nothing material came out therein.
2. PW2 Dr. Neha Gupta, Assistant Professor, Department of
Forensic Medicine, Hindu Rao Hospital, Delhi deposed that on
dated 12.11.2013, she was posted as Senior Demonstrator at
Mortuary, GTB Hospital. On that day, Inspector Rajesh Vijay of
PS Khajuri Khas gave her request to conduct postmortem on the
body of Sabir S/o Nanhe, aged 22 years old with alleged history
physical assault (stab) following which he was brought to Jag
Parvesh Chandra Hospital Casualty under MLC No. 888 dated
6.11.13 at 8:41 p.m. from where he was shifted to GTB Hospital
where he expired on 11.11.13 at 11.30 p.m. during the course of
treatment. Body was identified by Shafique S/o Nanhe and Nisar
Alı S/o Azeen Khan.
On General Observation:
PW2 found dead body of adult male, average built,
wrapped in white cotton sheet wearing black colour tract pant
and black colour shirt. Surgical bandage present over the
abdomen. Colostomy bag present over right side abdomen. Eyes
and mouth partially open. Rigor mortis present in well developed
stage all over the body. Post mortem staining present at back and
fixed. Cornea opaque Greenish discoloration present over right
iliac fossa. Blackish discoloration present over skin, over both
flanks and whole lower back alongwith peeling off skinFIR No. 613/13 State Vs. Naushad Etc. Page 6 of 51
(necrotizing fasciitis).
Surgically created drainage wound of size 1 X 1 cm.
present over left lumbar region with one stitch in situ surgically
created colostomy wound present over right side abdomen 6 cm
lateral to midline and 10 cm above right anterior superior iliac
spine.
External Antemortem Injuries:
She found 6 antemortem injuries as follows:
1. Surgically created laparotomy wound of size 23.5 cm present
vertically over midline abdomen with 19 stitches in situ, lower
end 7 cm above pubic symphysis.
2. Incised wound of size 4 x 02 cm x 0.4 cm present over ventral
aspect of left arm, 3 cm below axilla, horizontally present with
tailing present medially.
3. Brown scabbed abrasion present over tip and left ala of nose of
size 2 x 1 cm.
4 Surgically altered incised stab wound of size 5 x 0.3 cm. x 9
cm present obliquely over left side back with upper lateral angle
sharp, of 1.7 cm lateral to midline and 20 cm above natal cleft
directed forwards, upwards and laterally with gauze packing
present along with repair of muscles of back present. The tract of
the wound goes cutting the skin, subcutaneous tissues, muscles of
back, entering peritoneal cavity where left colon absent with
evidence of surgical repair present in intestine and evidence of
surgical repair present in left renal bed with left kidney absent
(removed surgically). Extravasation of blood present throughout
the tract.
5. Incised wound of size 2.2 cm. x 01 cm. x 0.3 cm with two
stitches in situ present vertically over left back, 15 cm lateral toFIR No. 613/13 State Vs. Naushad Etc. Page 7 of 51
midline and 17 cm below shoulder top.
6 Brown scabbed abrasion 1 x 1 cm present over dorsal aspect of
right elbow joint.
On Internal Examination:
Scalp: NAD(No abnormality detected)
Skull: NAD
Brain: 1310 grams, congested with yellowish discoloration and
thickening of dura present.
Neck – NAD
Ribcage- NAD
Lungs- Right 841 gm. Left 700 gm. Both lungs heavy and boggy.
On cut section, both lungs were congested and edematous. Blood
tinged fluid was present in bilateral pleural cavity. Consolidation
was present in both the lungs.
Heart – 300 gm, NAD
Stomach-empty, Walls – NAD
Intestines-All the loops of intestines were congested and matted
together, with foul smelling slough present over it. Evidence of
surgical repair present as mentioned earlier.
Liver-1652 gm, congested, capsule thickened with adherent to
surrounding tissues.
Spleen-200 gm, congested.
Kidneys: Right 132 gm-congested. Left-Absent.
Urinary Bladder-Empty, Walls- NAD
Pelvis and Vertebrae – NAD.
Articles Preserved:
Sealed envelope containing blood on gauze of deceased
alongwith sample seal. Unsealed clothes handed over to IO.
Time Since Death : about one day.
FIR No. 613/13 State Vs. Naushad Etc. Page 8 of 51
Cause Of Death: Septicemic shock as a result of Antemortem
injury to internal abdominal organs caused by sharp edged
weapon. Injury No. 4 was sufficient to cause death in ordinary
course of nature.
PW2 proved her detailed postmortem report bearing no.
1514/13 dated 12.11.2013 (running in four pages) as Ex.PW2/A.
Subsequent Opinion:
On 16.01.2014, Inspector Rajesh Vijay of PS Khajuri Khas
gave her request for subsequent opinion alongwith sealed parcel
said to be containing a dagger. The said parcel was duly sealed
with the seal of RV and two seals of NR.
On opening the parcel having one seal of RV and two seals
of NR, one dagger was present having one silver colour metallic
handle and one silver colour single edge metallic blade. The
blade had reddish brown stains one both the surface whitish
feathery type material sticking to one surface of blade. The blade
had painted end and one sharp and one blunt edge. The total
length of dagger was 27.8 cm; length of blade was 17.5 cm. and
length of handle was 10.3 cm. The maximum width of blade at
bottom end was 5.5 cm. Thickness of blunt edge of blade was 0.1
cm. Reddish brown stains present on lower end of handle also.
She prepared the sketch of dagger as Ex.PW2/B. After going
through her PM report and examination of dagger, she opined
that injuries no. 2 & 3 mentioned in her PM report No. 1514/13
dated 12.11.2013 could be possible by the weapon (dagger)
under examination. The details of the subsequent opinion is
Ex.PW2/C. After examination of the dagger, it was sealed with
the seal of ‘NG’ after making an initial on handle and handed over
to the police alongwith the subsequent opinion.
FIR No. 613/13 State Vs. Naushad Etc. Page 9 of 51
The MHCM produced envelope parcel no. 4 sealed with
the seal of court. On opening the parcel, churi/dagger Ex. P1 was
taken out and shown to the witness and she identified her
signature on the handle of dagger and stated that it was the
dagger which was examined by her for giving subsequent
opinion. PW2 also stated that she prepared sketch of the
dagger/churı Ex. PW2/B.
In her cross-examination by Sh. S.K. Gupta, Ld. Counsel
for accused Mustaq, PW2 stated that the words mentioned in
injury no. 4 in her postmortem report Ex. PW2/A i.e. “surgically
altered incised stab wounds” means wound altered surgically by
the operating doctor. She denied the suggestion that the injury at
no 4 was received by the patient at the time of treatment.
The words “Septicemic shock” mentioned on cause of
death in Ex. PW2/A means infection.
PW-3 SI M.P Singh deposed that on 06-11-2013, he was
on duty at PCR Baker-22 as IC van at about 7 pm, he received a
call about quarrel from PCR and thereafter, he reached at the spot
i.e D-320 gali no. 8, Shri Ram Colony where they found one
injured person. They took him to Jag Pravesh Chand hospital and
admitted him there. It was also informed to them that other
injured were already removed in the hospital by the ERV vehicle.
His statement was recorded by the IO.
The witness was cross-examined by Ld. Defence counsel
but nothing material came out therein.
PW4 HC Tejpal deposed that on 06.11.2013, he was on
duty at Baker 26 vehicle of PCR. On that day, on receipt of call,
they reached the spot in Shri Ram Colony where they came to
know that injured persons were already removed to hospital byFIR No. 613/13 State Vs. Naushad Etc. Page 10 of 51
other vehicles of PCR and ERV. Police officials of PS Khajuri
Khas were present at the spot. Later on, his statement was
recorded by the IO in this case.
The witness was cross-examined by Ld. Defence counsel
but nothing material came out therein.
PW5 ASI Bijender deposed that on 06.11.2013, he was on
duty at Baker 15 vehicle of PCR. On that day at about 07.15 pm,
on receipt of call, they reached the spot in Shri Ram Colony
where there came to know that injured persons were already
removed to hospital by other vehicles of PCR and ERV. Police
officials of PS Khajuri Khas were present at the spot. Later on,
his statement was recorded by the IO in this case.
The witness was cross-examined by Ld. Defence counsel
but nothing material came out therein.
PW6 ASI Satender deposed that on 06.11.2013, he was on
duty at Baker 26 vehicle of PCR. On that day at about 07.05 pm,
on receipt of a call, they reached the spot in Shri Ram Colony
where they came to know that injured persons were already
removed to hospital by other vehicles of PCR and ERV. Police
officials of PS Khajuri Khas were present at the spot. Later on,
his statement was recorded by the IO in this case
The witness was cross-examined by Ld. Defence counsel
but nothing material came out therein.
PW7 SI E.S Yadav, was the Incharge of the crime team,
which inspected the spot. He has proved scene of crime report
prepared by him as Ex.PW7/A.
He was cross examined by the Ld. Defence counsel but
nothing material came out therein.
PW8 Ct. Ajeet Singh was the Photographer of the mobile
FIR No. 613/13 State Vs. Naushad Etc. Page 11 of 51
crime team. He has proved the photographs of the spot clicked by
him as Ex. PW8/P-1 to Ex. PW8/P-10 and negatives thereof as
Ex. PW8/P-11 to Ex. PW8/P-20.
He was cross examined by the Ld. Defence counsel but
nothing material came out therein.
PW9 Ct. Vikram deposed that on 12.11.2013, he along
with IO/Insp. Rajesh Vijay had gone to GTB Hospital. IO had
seized an envelope containing blood on gauze along with sample
seal through seizure memo Ex. PW9/A.
The witness was cross-examined by Ld. Defence counsel
but nothing material came out therein.
PW10 Mohd. Safik Siddiqui was the brother of deceased
Shabir Hussain. He claimed that he identified the dead body of
his brother at mortuary GTB hospital on 12.11.2013. He has
proved his statement recorded by the IO in this connection as
Ex.PW10/A, and receipt of dead body as Ex.PW10/B.
He was not cross-examined by Ld. defence counsel despite
given opportunity.
PW11 Dr. Debashish Mukherjee deposed that on
06.11.2013, he was posted as CMO, Jag Parvesh Chandra
Hospital, Shashtri Park, Delhi. On that day, at about 09.05 p.m.,
he examined Saleem, aged 18 years, male with alleged history of
assault.
On General examination, patient was conscious and
oriented. There was no history of loss of consciousness (LOC),
vomiting, seizure and ENT bleeding. Chest and Cardio-Vascular
System (CVS) was normal (NAD)
On local examination, PW11 observed (1) multiple incised
wound on left side of chest and back, (2) Incised wound on left
FIR No. 613/13 State Vs. Naushad Etc. Page 12 of 51
thigh. As per his advice, injection tetanus toxoid was given and
injection voveran was given besides tablet. The patient was
referred to Surgery Department. The case was again seen by
Senior Resident, Surgery Department. As per his notes, the
nature of injury was simple. He prepared MLC of the patient
Saleem vide MLC No. 092, Ex.PW11/A.
On 06.11.2013 at about 08.41 p.m., he examined Sabir
Hussain, aged 22 years, male with alleged history of assault.
Patient was brought by PCR.
On General examination, patient was conscious and
oriented. BP was 110/90mm of HG, pulses 90 per minute. On
local examination, PW11 observed (1) 4 X 2 cm wound with
clean cut margins over the back, 2 cm below the left costal
region. As per his advice, IVF RL in jet, IVF hemaceal, IV jet
injection tetanus toxoid was given and injection voveran was
given. The patient was referred to Surgery Department. He
prepared MLC of the patient Sabir Hussain vide MLC No. 088,
Ex.PW11/B.
On 06.11.2013 at about 08.39 p.m., he examined Zakir,
aged 25 years, male with alleged history of assault. On General
examination, patient was conscious and oriented. BP 100/60mm
of hg, pulses 92 per minute.
On local examination, he observed 4 cm X 1 cm tangential
depth occupied by heamatoma on right side of the abdomen. As
per his advice, IVF RL iv in jet, injection tetanus toxoid was
given and injection voveran was given. The patient was referred
to Surgery Department. The case was again seen by Senior
Resident, Surgery Department. He prepared MLC of the patient
Zakir vide MLC No. 089, Ex.PW11/C.
FIR No. 613/13 State Vs. Naushad Etc. Page 13 of 51
On 06.11.2013 at about 8.59 p.m., he examined Guddu,
aged 20 years, male with alleged history of assault.
On General examination, patient was conscious and oriented.
Chest and Cardio-Vascular System (CVS) was normal (NAD),
BP 114/60 mm of hg, pulses 96 per minute.
On local examination, he observed (1) incised wound on left
buttock, (2) Incised wound on right of back. As per his advice,
IVF RL iv hemaceal in jet, injection tetanus toxoid was given
and injection voveran was given. The patient was referred to
Surgery Department. The case was again seen by Senior
Resident. Surgery Department. He prepared MLC of the patient
Guddu vide MLC No. 091, Ex.PW11/D.
He was cross examined by the Ld. Defence counsel but
nothing material came out therein.
PW12 Dr. Irfan Amad was the Doctor who had examined
the X-ray of victim Guddu vide MLC no. 91/13. He proved
report prepared by him as Ex.PW-12/A.
The witness was cross-examined by Ld. Defence counsel
but nothing material came out therein.
PW13 Guddu is one of the victim of the case. He deposed
that he along with his parents and brothers namely Sabir, Zakir,
Salim used to reside at B-320, Gali no. 8, Shriram Colony,
Khajuri Khas, Delhi. They are having kirana shop in their house.
His mother Smt. Mobina Begum used to sit on the said shop. On
06.11.2013 at about 07.00/ 07.15 p.m., he along with his brothers
namely Salim and Zakir were watching TV inside their house.
On hearing cries, he came out of his house. He saw that accused
Mustaq. Wamik and Naushad along with two other persons
namely Shamshad and Sadil were abusing his mother Smt.
FIR No. 613/13 State Vs. Naushad Etc. Page 14 of 51
Mobina Begum. His brothers Salim and Zakir also came out from
the house. Accused persons started beating them. Accused
Mustaq stabbed Salim with chhuri. He tried to save Salim. On
this, accused persons started beating him. In the meantime, his
another brother Sabir who used to prepare slippers in the gali also
reached at the spot and when he tried to save them, accused
Mustaq attacked Sabir with chhuri. Other accused namely
Naushad and Wamik also gave beatings to Sabir and them.
Accused Mustaq also caused injuries to Salim with knife. Public
had gathered there and on seeing the public, accused persons had
escaped from the spot. Police officials had arrived at the spot and
took all of them to hospital at Shastri Park. Treatment was
provided to them in the hospital and thereafter they were shifted
to GTB Hospital. Treatment was also provided to them in GTB
hospital. Police officer met him and recorded his statement after
making queries from him vide Ex.PW13/A. Accused Mustaq,
Naushad and Wamik were correctly identified by him. He
claimed that his clothes which he was wearing at the time of
incident were given to the police officers later on.
PW3 identified the chhuri as Ex.P-1, produced by the
MHC(M) as the same which was used by accused Mustaq at the
time of incident. PW3 identified his clothes which he was
wearing at the time of incident i.e. pant as Ex. P-2 and shirt as
Ex.P-3.
In his cross-examination by Sh. Narveer Dabas, Advocate
for accused Mustaq, PW3 stated that police recorded his
statement in this case only once but he did not remember the date
of such statement. His statement was not read over to him by the
police. He himself had not read that statement. He had told to the
FIR No. 613/13 State Vs. Naushad Etc. Page 15 of 51
police in his statement that Shamshad and Sadil were abusing his
mother. He had told to the police in his statement that accused
Mustaq attacked Sabir with chhuri. During the incident, 20-25
public persons assembled there. Police took him and his 3
brothers to hospital in their vehicle. Naushad was among them.
He did not know why Naushad was taken to hospital by the
police. They were initially taken to a hospital at Zero Pushta. He
did not remember whether Mustaq was present in Zero Pustha
Hospital when he was taken there by the police. He did not
remember whether Mustaq came to the Zero Pustha hospital till
the time he stayed in hospital. They all four brothers were taken
to GTB hospital by the police from Zero Pushtha Hospital. He
did not know whether Naushad was also taken to the GTB
hospital by the police. His blood stained clothes were taken by
the police in GTB hospital on the date of incident.
He denied the suggestion that his brother Zakir had taken
out a knife from their house. He denied the suggestion that at that
time, he was under the influence of smack and he started
inflicting injuries over the person of the accused persons. With a
knife or that during this, he also caused injuries to his other
brothers. He denied the suggestion that his other family members
had thrown empty glass bottles on Naushad and Mustaq. He
denied the suggestion that accused Mustaq was taken to Jag
Parvesh hospital by the police from the spot. He denied the
suggestion that the accused Mustaq and Naushad did not abuse
his mother Smt. Mobina Begum. He denied the suggestion that
accused Mustaq was not having any knife /chhuri with him. He
denied the suggestion that accused Mustaq did not stab his
brother Salim or Sabir with chhuri. He denied the suggestion
FIR No. 613/13 State Vs. Naushad Etc. Page 16 of 51
that accused Mustaq did not cause any injury to him or any of his
brother with knife. He denied the suggestion that accused
Mustaq and Naushad did not escape from the spot.
PW14 Smt. Mobina Begum is the mother of victims. She
deposed that they were residing at B-320, Gali no. 8, Shriram
Colony, Khajuri Khas, Delhi from last 28 years with their family.
She was having kirana shop at her house. On 06.11.2013, at
about 07.00/07.15 p.m., she was present at her shop. Accused
Mustaq and Naushad, who were already known to her, came to
her shop. Mustaq asked her for cigarette and she gave the same to
him. After taking cigarette, accused persons started leaving her
shop. She asked them to give the money. On this, accused
Mustaq and Naushad told that how she dared to demand the
money and refused to give the same. Thereafter, they had left her
shop and returned in a short period alongwith Wamik, Shamshad
and Sadil. They started abusing her and also threatened her. On
hearing the noises, her sons namely Salim, Zakir and Guddu
came out from inside the house. On seeing them, accused
Mustaq stabbed Salim with knife. Accused Mustaq also attacked
her son Zakir with knife. Accused persons also gave beatings to
her sons. Her another son namely Sabir, who works in slippers
making unit in the gali, also arrived at the spot. Accused persons
also attacked on Sabir. She raised alarm. Her grand daughter
Mahinoor made the call to the police by mobile of his father.
After sometime, police officials came to the spot and removed
her injured sons to hospital. During treatment, her son Sabir had
died. Police officer recorded her statement. Accused Naushad,
Wamik and Mtustaq were correctly identified by PW14.
In her cross examination by Ld. Defence counsel, she
FIR No. 613/13 State Vs. Naushad Etc. Page 17 of 51
deposed that about 20-25 persons gathered at the time of
incident. She did not remember whether police had taken
statement of any public person who were gathered at the spot. No
one from the above said 20-25 persons had come to rescue of his
sons. She did not remember whether any police photographer had
visited the spot or not to take photographs.
Police had not read over her statement to her after
recording it. Police recorded her statement after about 1 or 1¼
months of the incident. She did not know whether Mustaq and
Naushad had also sustained injuries in the present incident. She
has not seen accused Mustaq and Naushad in the GTB hospital.
Police had not enquired him about the incident at GTB hospital.
She did not remember whether her son Guddu had given any
statement to the police about the present incident at GTB
hospital. She received injuries during the incident. All the five
accused were having knives. No other person besides her sons
was taken to the hospital by the police vehicle. She did not state
to the police in her statement that some other persons were also
taken to the hospital by the police vehicle.
She denied the suggestion that her son Guddu is a drug
addict or that he had gone to borrow money from accused
Nausad prior to the incident or that accused Mustaq and Nausad
came to his shop to make a complaint against his son Guddu in
this regard. She also denied that she became annoyed and
shouted on Mustaq and Nausad. She denied the suggestion that
during this, her son Sabır also arrived at the spot and brought
lathi from the house and started beating accused Mustaq and
Nausad. She denied the suggestion that her son Guddu took
danda from Sabır and hit on the head of Nausad while her son
FIR No. 613/13 State Vs. Naushad Etc. Page 18 of 51
Jakır had caught hold of accused Mustaq and Nausad. She
denied the suggestion that her son Jakir brought a knife from her
house and caused injury to Mustaq and Nausad.
Prior to the incident, Naushad and Mustaq did not come to
her shop to purchase any article. She denied the suggestion that
her son Guddu used to demand money from accused Naushad or
that one day before the incident, Guddu brought mobile phone of
Naushad and hardly returned the same.
PW-15 Sh. Nishar Ahmad was the nephew of deceased
Sabir Hussain. He claimed that he had identified the dead body
of his nephew at GTB hospital on 12.11.2013. He has proved the
statement recorded by IO in this connection as Ex.PW15/A.
He was not cross-examined by Ld. defence counsel despite
given opportunity.
PW-16 Ct. Sanjay Singh was the police official who
accompanied IO /SI Naveen Rathi at the spot on 06.11.2013. He
deposed on the same lines on which SI Naveen Rathi had
deposed regarding the proceedings conducted at the spot on
06.11.2013 and subsequently on 08.11.2013, at the time of arrest
of accused Mustak and Naushad. The testimony of SI Naveen
Rathis shall be dealt with later on.
The witness was cross-examined by Ld. Defence counsel
but nothing material came out therein.
PW17 Jakir is the victim of the case. He deposed that he
alongwith his parents brothers namely Mohd. Guddu, Sabir and
Saleem used to reside at B-320, Gali no. 8, Shri Ram Colony,
Delhi. They are also having grocery shop in the same at which
his mother used to sit. On 06.11.2013, he was present in his
house. At about 07.00/07.15 p.m., after hearing the noises (shor),
FIR No. 613/13 State Vs. Naushad Etc. Page 19 of 51
he alongwith his brothers Guddu and Saleem came out from their
house and saw that accused Mustaq, Naushad, Shamshad, Sadil
and Wamik were present there and having knives in their hands.
They were abusing their mother. On seeing them, accused
Mustaq and Naushad attacked on Saleem with knife. When his
brother Guddu tried to save Saleem, accused Shamshad and Sadil
attacked on him with knives. Accused Wamik stabbed on his
stomach with his knife. His another brother Sabir who works in
slipper factory in the gali also arrived at the spot. All the accused
persons also stabbed Sabir with knives. His niece had called on
number 100. All the accused persons had run away from the spot
after causing injuries to them. After sometime, two police
officers arrived at the spot and made enquiries. After some more
time, one another police gypsy came to the spot and removed all
of them to Jag Pravesh Chandra Hospital. They remained there
for about 1½ hours but no treatment was provided to them.
Thereafter, they were shifted to GTB Hospital where treatment
was provided to them. They were remained admitted there upto
12.11.2013. In the intervening night of 11/12.11.2013, his
brother Sabir Hussain had died in the hospital. Accused Mustaq,
Naushad and Wamik were correctly identified by the witness.
In his cross examination by Ld. Defence counsel he stated
that Police never took his statement regarding the present
incident. When he had gone to give his statement to the IO he
told him that he had already recorded his statement. He made
statement in this case against the accused persons first time in the
Court. He disclosed the fact that ‘all the accused persons were
having knives’ first time in the Court.
The knives which accused persons were having were of
FIR No. 613/13 State Vs. Naushad Etc. Page 20 of 51
iron. His brothers namely Guddu and Saleem were shifted
separately. He denied the suggestion that his brother Guddu is a
drug addict.
He denied the suggestion that after hearing the noises on
that issue, he alongwith his brother came out of the house and
starting giving beatings to accused Mustaq and Naushad. He
denied the suggestion that during this, his brother Sabir also
arrived at the spot and brought lathi from the house and started
beatings to the accused persons. He denied the suggestion that
his brother Guddu had taken the danda from Sabır and hit on the
head of Naushad while he alongwith his other brother had caught
hold accused Mustaq and Naushad. He denied the suggestion that
he had also brought a knife from his house and caused injury to
Mustaq and Naushad. He denied the suggestion that his brother
Zaffar Ahmed made the call on 100 number from his mobile or
that he had concocted the false story of making call by Mohinoor
to save his brother Zaffar Ahmed as he was also present at the
spot.
He denied the suggestion that his brother Guddu was
under the influence of smack and he started giving knife blows to
the accused persons and during that process, his brothers and
himself also suffered injuries. He denied the suggestion that
accused Mustaq or Naushad were having any knives on the date
of incident.
He denied the suggestion that accused Shamshad and
Sadil did not attack on Guddu with knives as they were not
present at the spot. He denied the suggestion that accused Wamik
did not stab him on his stomach with knife.
PW18 Dr. Vivek Ranjan Chaubey was the doctor deputed
FIR No. 613/13 State Vs. Naushad Etc. Page 21 of 51
by Medical Superintendent of GTB hospital to depose on behalf
of Doctor Rakesh. He has proved the MLC of patient Zakir
prepared by Doctor Rakesh as Ex. PW11/C. He claimed that Dr.
Rakesh opined the nature of injury sustained by the victim as
grievous.
He was not cross-examined by Ld. defence counsel despite
given opportunity.
PW-19 Dr. Ruchi Sharma was the FSL expert who had
carried out Biological and Serological examination of exhibits
seized in the present case. She has proved her biological report as
Ex. PW19/A and her serological report as Ex. PW19/B.
She was not cross-examined by Ld. defence counsel
despite having given an opportunity.
PW20 Salim Hussain is another victim in the case. He
deposed that alongwith his parents and brothers namely Zakir,
Guddu and Altaf have been residing together since last 20-22
years. Deceased Sabir who was his brother also used to reside
with him.
On 06.11.2013 at about 07.00-07.15 p.m., he was present
in his house alongwith his other brothers Zakir and Guddu. His
mother Mobina Begum was in her grocery shop which was
situated outside their house. At that time, they heard the noise/
shor from the street. He came out from his house and saw that
accused Naushad, Mustaq and 3 other boys were having
altercation with his mother who was present at her shop. Accused
persons started scuffling with his mother. His other brothers
Guddu and Zakir also came out from their house. When he was
enquiring about the matter from his mother, accused Mustaq and
Naushad who were having knives attacked on him. When his
FIR No. 613/13 State Vs. Naushad Etc. Page 22 of 51
brother Guddu tried to save him, accused Shamshad and Sadil
stabbed Guddu with knives. Accused Wamik stabbed Zakir with
a knife.
His another brother Sabir who was carrying the business of
footwear in the street also reached at the spot. All the accused
persons Mustaq, Naushad, Shamshad, Sadil and Wamik also
attacked his brother Sabir with knives. Some public persons
gathered at the spot. Accused persons escaped from the spot. His
niece Mahienoor made a call to police. Police officials arrived at
the spot. He alongwith his brothers Sabir, Guddu and Zakir were
taken to Jag Parvesh Chandra Hospital by the police gypsy. After
one and half hour, his brother Sabir and Zakir were shifted to
GTB Hospital. After sometime, he and his another brother Guddu
was also shifted to GTB Hospital where treatment was provided
to them. On 08.11.2013, he was taken by the police to police
station from GTB Hospital and he was arrested in a false case.
Later on, he came to know that his brother Sabir Hussain died
during treatment in GTB Hospital. His signature was obtained on
some blank papers by the police officials. Accused persons
namely Mustaq, Naushad and Wamik were correctly identified
by the witness.
In his cross examination by Ld. Defence counsel he denied
the suggestion that his brother Guddu is a drug addict or that on
that day, accused Mustaq and Naushad came to his mother to
make the complaint against him or that on this issue, his mother
became annoyed and started shouting on Mustaq and Naushad.
He denied the suggestion that after hearing the noises, he
alongwith his brothers, came out from the house and started
giving beatings to Mustaq and Naushad. He denied the
FIR No. 613/13 State Vs. Naushad Etc. Page 23 of 51
suggestion that during this, his brother Sabır also arrived at the
spot and brother lathi from the house and started beating to
accused Mustaq and Naushad.
PW-21 HC Man Singh was posted as MHC(M) at PS
Khajuri Khas at the relevant time. He has proved the entries
made by him in Register no. 19 with regard to the deposit and
dispatch of exhibits at the malkhana of PS. The relevant entries
proved by him are Ex. PW-21/A to Ex. PW21/G. He has also
proved the road certificate for dispatch of exhibits as Ex.
PW21/H and acknowledgment obtained from FSL as Ex.
PW21/I.
He was cross examined by the Ld. Defence counsel but
nothing material came out therein.
PW22 SI Naveen Rathi is the IO of the case. He deposed
that on 06.11.2013, he was posted as SI in PS Khajuri Khas. On
that day at about 07.27 p.m., DD No. 29A was assigned to him.
Ct. Sanjay produced copy of DD No. 29A before him. He along
with Ct. Sanjay reached the spot ie, in front of H. No. B-320,
Gali No. 8, Shriram Colony, Delhi. He found broken glass pieces
and blood lying in the gali. He came to know that injured persons
were taken to Jag Pravesh Chandra Hospital by ERV-64 vehicle
of police station. He asked Duty Officer through his mobile
phone to all Crime Team. He left Ct. Sanjay at the spot to guard
the same and he went to Jag Pravesh Chandra Hospital. He took
MLCs of deceased Sabir, Zakir, Naushad, Guddu, Salim and
Mustaq. He came to know that all the injured persons were
shifted to GTB Hospital. He reached GTB Hospital where
injured persons were found under treatment. He recorded
statement of complainant Guddu and Naushad separately.
FIR No. 613/13 State Vs. Naushad Etc. Page 24 of 51
Thereafter, he reached at the Spot. Ct. Sanjay informed that
members of the Crime Team inspected the scene of crime and
left from there. He prepared rukka Ex.PW22/A after making
endorsement on the statement of complainant Guddu. He sent
Ct. Sanjay to PS with rukka for registration of FIR, at 11.50 pm.
Ct. Nareshveer reached the spot. He prepared another rukka after
making endorsement on the statement of Naushad and sent Ct.
Nareshveer with rukka for registration of case.
Ct. Sanjay returned the spot and produced copy of FIR of
this case bearing no. 613/13 and rukka. He inspected the spot and
prepared site Ex.PW22/B. He kept broken pieces of glass in a
plastic container which was sealed with seal impression of ‘NR’
and seized vide seizure memo already Ex.PW16/A. He lifted
earth control from the spot and kept in a plastic container which
was sealed with seal impression of ‘NR’ and seized vide seizure
memo already Ex.PW16/B. He lifted blood in gauze from the
spot and kept in a plastic container which was sealed with seal
impression of ‘NR’ and seized vide seizure memo already
Ex.PW16/C. He lifted blood stained earth control from the spot
and kept in a plastic container which was sealed with seal
impression of ‘NR’ and seized vide seizure memo already
Ex.PW16/D. It is 03.10 p.m. He recorded statement of Ct.
Sanjay at the spot. Thereafter, he with Ct. Sanjay reached police
station. He deposited case property in Malkhana. He reached
GTB Hospital and recorded statements under section 161 Cr.P.C.
of injured persons namely Sabir, Salim and Jakir. He returned to
the police station.
On 08.11.2013, he alongwith Ct. Sanjay reached GTB
Hospital. There, he came to know that injured persons except
FIR No. 613/13 State Vs. Naushad Etc. Page 25 of 51
Sabir were discharged. They reached at the house of complainant
Guddu. He made enquiry from Guddu. He informed him that
accused Mustaq and Naushad were available at the house of
Mustaq. He alongwith Ct. Sanjay reached at the house of accused
Mustaq bearing A-311, Gali No. 8, Shriram Colony. Delhi where
accused Mustaq and Naushad were present. He interrogated
accused Mustaq and arrested him in this case vide arrest memo
Ex.PW16/E. Ct. Sanjay conducted search of accused Mustaq vide
memo Ex.PW16/G. He recorded disclosure statement of accused
Mustaq vide memo Ex.PW16/I. He interrogated accused
Naushad and arrested him in this case vide arrest memo
Ex.PW16/F. Ct. Sanjay conducted search of accused Naushad
vide memo Ex.PW16/H. He recorded disclosure statement of
accused Naushad vide memo Ex.PW16/J. He had taken accused
Mustaq and Naushad in Gali No. 8. B-Shriram Colony. There,
accused Mustaq led them to a vacant plot where he had thrown
weapon of offence i.e. knife. They entered into the plot after
jumping the wall. There, accused Mustaq took out a knife and
produced the same before him. There were blood stains on the
knife. He prepared sketch of the knife Ex.PW16/K and
mentioned measurements in the sketch. Total length of the knife
was 28 c.m. and of blade 18 c.m. The width of the blade of the
knife was 5 c.m. He kept knife in a parcel which was sealed with
the seal having impression ‘NR’ and took it into police possession
vide seizure memo vide already Ex.PW16/L. He prepared site
plan already Ex.PW16/M of the place of recovery of knife.
PW22 further claimed that he got both the accused persons
medically examined in Jag Pravesh Chandra Hospital and
produced before the Court of Ld. MM. They were sent to JC. He
FIR No. 613/13 State Vs. Naushad Etc. Page 26 of 51
along with Ct. Sanjay reached to police station and deposited
case property in malkhana. He recorded supplementary statement
of Ct. Sanjay.
On 12.11.2013, an information was received in police
station vide DD No. 5B from GTB Hospital regarding death of
injured Sabir. Therefore, investigation was taken over by Insp.
Rajesh Vijay, SHO PS Khajuri Khas. He handed over case file
alongwith document to him.
On 22.11.2013, he joined investigation of this case along
with Insp. Rajesh Vijay. They were searching accused Wamik.
Insp. Rajesh Vijay received secret information in evening that
accused Wamik would come at Rajiv Vihar pulia to meet
someone. He along with IO Insp. Rajesh Vijay reached Rajiv
Vihar pulia with secret informer. There, they had taken position
by hiding themselves behind the vehicles. After sometime, one
person came there. On seeing him, their informer identified him
as accused Wamik. They apprehended accused. He was
interrogated by IO and arrested vide arrest memo ExPW22/C at
07.45 p.m. His personal search was effected by him vide memo
Ex.PW22/D. IO interrogated accused Wamik and recorded his
disclosure statement Ex.PW22/E. Thereafter, accused Wamik
pointed out place of occurrence. IO informed his mother about
his arrest. They had taken the accused for his medical
examination. Thereafter, he was sent to lockup. IO recorded his
statement.
PW22 added that on 23.12.2013, he had taken a sealed
parcel having seal impression of ‘NR’ containing knife from
MHC (M) on the instruction of IO and deposited in Forensic
Department, GTB Hospital for obtaining subsequent opinion.
FIR No. 613/13 State Vs. Naushad Etc. Page 27 of 51
During his custody, afore-said parcel remained intact and was not
tampered with. On 02.02.2014, he again joined investigation with
IO Insp. Rajesh Vijay. Sh. Jafar along with his daughter
Mahinoor reached police station. IO made enquiry from
Mahinoor and recorded her statement under section 161 of the
Cr.P.C. Sh. Jafar handed over clothes of injured persons namely
Zakir, Saleem and Guddu to IO. IO kept cream T-shirt and black
vest of Zakir in one parcel, green shirt and gray pant of Saleem in
another parcel and black gray shirt and mehandi pant in another
parcel and given mark 1, 2 and 3 to the said parcel which were
sealed with the seal of ‘RV’ and taken into police possession vide
Seizure Memo Ex. PW22/F. Accused Naushad, Mustaq and
Wamik were correctly identified by the witness.
Witness identified the chhuri Ex. P1 as got recovered by
the accused Mustaq. He identified the pieces of glass seized on
the spot as Ex. P-4. He also identified the blood seized from the
spot as Ex. P-5. Witness identified one plastic container having
blood stained earth control as Ex. P-6. Witness identified one
plastic container having earth control as Ex. P-7. Witness
identified one pant mehandi colour as Ex.P2 and black-gray shirt
as Ex.P3 along with cloth of pulanda taken out and shown to the
witness. Witness identified the clothes as produced by Jafar
belonging to injured Guddu. Witness identified one green
checked shirt and one grey pant as the clothes produced by Jafar
belonging to injured Saleem-Shirt as Ex.P8 and pant as Ex.P9.
The witness was cross-examined by Ld. Defence counsel
but nothing material came out therein.
PW23 Lady Constable Aarti Devi was the police official
from Police Control Room, PHQ, New Delhi. She has proved
FIR No. 613/13 State Vs. Naushad Etc. Page 28 of 51
the PCR form in connection of PCR call regarding quarrel
received in the present case as Ex. PW23/A. She has also proved
the certificate U/s 65 B of Indian Evidence Act bearing signature
of SI Anup Kumar as Ex. PW23/B.
Se was cross examined by the Ld. Defence counsel but
nothing material came out therein.
PW-24 HC Sunil Kumar was the duty officer posted at PS
Khajuri Khas on 06.11.2013. He has proved the DD entry no.
29A whereby an information has been received at PS regarding
quarrel at B Block, Rajiv Nagar, Sriram Colony as Ex. PW1/C.
The witness was cross-examined by Ld. Defence counsel
but nothing material came out therein.
PW25 HC Sunil Yadav was the DD writer posted at PS
Khajuri Khas on 12.11.2013. He has proved DD no. 5 regarding
information received from GTB hospital regarding death of
victim Sabir Hussain as Ex. PW1/D.
The witness was cross-examined by Ld. Defence counsel
but nothing material came out therein.
PW26 Ct. Pawan Kumar deposed that 06.11.2013, he was
posted in CPCR, PHQ, New Delhi. On that day, he was working
as Channel Operator on Channel No. 127. At about 19 25:28 hrs.,
he received a call from mobile No. 8750522811 regarding
quarrel at B-320/8, B-Block, Shriram Colony, Delhi. He
mentioned the information in PCR Form-I and transmitted the
call to North-East Control Room. PCR Form-I Ex.PW26/A.
The witness was cross-examined by Ld. Defence counsel
but nothing material came out therein.
PW27 W/Ct. Anita was the police official from CPCR
PHQ. She has proved the PCR form in connection with PCR call
FIR No. 613/13 State Vs. Naushad Etc. Page 29 of 51
received on 06.11.2023 at about 07:28 PM as Ex. PW-27/B. She
has also proved certificate Us/ 65-B of the Indian Evidence Act
issued by SI Devender as Ex. PW27/B.
The witness was cross examined by the Ld. Defence
counsel but nothing material came on record.
PW28 SI Devender Kumar was the police official from
CPCR PHQ, Delhi. He too proved the PCR form Ex. PW27/A in
connection with PCR call received at said police control room on
06.11.2013 at 07:28 PM. He has also proved certificate U/s 65 B
of Indian Evidence Act issued by him as Ex. PW27/B.
He was not cross-examined by Ld. defence counsel despite
having given the opportunity.
PW29 Inspector Rajesh Vijay is the second IO of the
present case. He deposed that on 12 11 2013, he was serving as
SHO PS Khajuri Khas. Delhi. On that day, one information was
received vide DD No 5-B Ex PW29/A regarding death of one
injured namely Sabir Hussain. Thereafter, he along with SI Navin
Rathi, Ct. Vikram went to mortuary of GTB Hospital in a govt.
vehicle and he submitted an application Ex. PW15/B for
conducting the postmortem examination on the dead body of
deceased Sabir Hussain. The dead body was identified by Nisar
Ali and Safiq and he recorded their statements of identification of
dead body vide Ex PW15/A and Ex PW10/A respectively. He
also prepared inquest report Ex. PW29/B.
On his request, Dr. Neha Gupta conducted postmortem
examination on the dead body of deceased vide Ex. PW2/A.
After postmortem examination, the dead body of deceased was
handed over to legal heir of deceased. After postmortem
examination, Dr. Neha Gupta handed over to him one sealed
FIR No. 613/13 State Vs. Naushad Etc. Page 30 of 51
parcel sealed with the seal of hospital and same was seized by
him vide memo Ex. PW9/A. Thereafter, he returned at PS and
case property was deposited with MHC(M).
On 22.11.2013, he along with SI Navin Rathi was on
patrolling duty in the area of PS Khajuri Khas, where he received
a secret information that accused Wamik was likely to come at
his house situated in Shri Ram Colony and if raided, he could be
apprehended. Thereafter, they reached at Shri Ram Pulia situated
in between Shri Ram Colony and Wazirabad Road. They had
hidden the govt. gypsy and took position behind other vehicles
parked there. At about 7.30 pm, one person came from the side of
Wazırabad Road and he was apprehended on the pointing out of
secret informer who stated that he was Wamik. He interrogated
that person and on interrogation, he made disclosure statement
Ex. PW22/E, thereafter he was arrested vide memo Ex. PW22/C.
His personal search was also conducted vide memo Ex. PW22/D.
During the course interrogation, accused Wamik disclosed that
he alongwith co-accused Naushad and Mushtaq committed the
offence and he can pointed out the place of incident i.e. Gali No.
8. Shri Ram Colony, Khajuri Khas. Thereafter, accused Wamik
led them to the disclosed place and at his instance, pointing out
memo Ex. PW29/C was prepared. He had also recorded
statements of witnesses. He also collected PCR Forms Ex.
PW23/C, 26/A and 27/A. He also recorded statements of I/C
PCR Vans.
During investigation, he collected Crime Team report and
photographs and recorded statements of I/C Crime Team SI E. S
Yadav and photographer Ct. Ajit. He also collected the copy of
DD No 29A.
FIR No. 613/13 State Vs. Naushad Etc. Page 31 of 51
PW29 added that on 18-12-2013, on the direction of the
court, he got conducted the ossification test of Mushtaq from
GTB hospital Same was submitted before the court. During
investigation, he obtained subsequent opinion regarding knife
from the doctor. He also collected PM report.
On 02.02 2014, he interrogated PW namely Mobinoor D/o
Jafar and on the same day, Jafar handed over to him clothes of
three injured persons except deceased. The same were kept in
three different parcels sealed with the seal of RV and the parcels
were seized vide seizure memo Ex. PW22/F. On 05.02 2014, he
recorded statement of MHC(M) and chargesheet was prepared by
him and filed the same in the court.
The MHC(M) had produced one sealed parcel no.7 sealed
with the seal of court. It was opened and found containing one
green checked shirt and one grey colour pant, same were shown
to PW29 and he identified the clothes to be the one which were
produced by Jafar stating that same were the clothes of Salim.
The shirt is Ex. P-8 and pant is Ex P-9. MHC(M) then produced
one sealed parcel no. 8 sealed with the seal of court. It was
opened and found containing four dupattas of different colour.
After seeing the same, PW29 stated that he never seized the same
and these were not the case properties in this case. PW29 further
stated that the cream colour T-shirt and black colour vest of
injured Jakir produced by PW- Jafar were seized by him and the
same might have been mixed up at FSL or at malkhana.
The MHC(M) had produced one sealed parcel no 9 sealed
with the seal of court. It was opened and found containing one
black and grey colour shirt and mehandi colour pant. Same were
shown to PW29 who identified the clothes to be the clothes
FIR No. 613/13 State Vs. Naushad Etc. Page 32 of 51
which were produced by Jafar stating that same were the clothes
of his brother Guddu. The mehandi colour pant is Ex. P-2 and
black grey colour shirt is Ex. P-3.
The witness was cross-examined by Ld. Defence counsel
but nothing material came out therein.
PW30 Zafar was the brother of victim. He claimed that on
02.02.2014, he had submitted blood-stained clothes of his brother
namely Zakir Hussain, Guddu & Saleem. He has proved seizure
memo of the aforesaid clothes prepared by the IO in his presence
as Ex. PW22/A. He has correctly identified above-said blood
stained clothes produced by the MHC (M) exhibited as Ex. P-2,
Ex. P-3, Ex.P-8 & Ex.P-9.
The witness was cross-examined by Ld. Defence counsel
but nothing material came out therein.
STATEMENT OF ACCUSED
5. After completion of prosecution evidence, the statement of
accused was recorded under Section 313 Cr.P.C. wherein
incriminating facts were put to the accused persons, which were
denied by them. Accused Naushad stated that he was assaulted
by the informant and his family members after they quarelled
with him. Nothing was recovered on his instance. He was
falsely implicated by the police at the instance of family
members of deceased. Accused Wamik stated that he was not
present at the spot on the alleged date of incident and have been
falsely implicated in the present case by the complainant party in
collusion with police officials. Accused Mustak stated that he
was assaulted by the informant and his family members after
picking up quarrel with Naushad. The knife was never recovered
FIR No. 613/13 State Vs. Naushad Etc. Page 33 of 51
on his instance and his signatures were falsely implicated by the
police and he was falsely implicated by the family members of
the deceased. Accused Naushad and Wamik did not opt to lead
defence evidence. Accused Mustak opted to lead defence
evidence and examined three defence witnesses.
6 DEFENCE EVIDENCE
DW-1 Ankit Kumar Kawatra brought the summoned
record i.e. MLC register containing carbon copies of MLC No.
90 dated 06.11.2013 of patient Naushad and MLC No. 93 dt.
06.11.2013. of patient Mushtak. As record of MLC No. 90,
patient Naushad was brought to the casualty on 06.11.2013 at
9:00 pm with alleged history of physical assault. As per record,
there was no entry in the relevant column as to who had brought
patient Naushad to the casualty. No nature of injury was
mentioned as the same was under observation. The MLC was
prepared by Dr. Debashish Mukherji. There is no mention in the
MLC as to whether the patient was accompanied with any police
official or not. He also brought the photocopies of the MLCs,
whose original MLCs were available in the file of case FIR No.
614/13 PS Khajuri Khas. Photocopy of MLC of patient Naushad
is Ex. DW1/A (Original seen from file of case FIR No. 614/13)
and photocopy of MLC of patient Mushtak is Ex.DW1/B
(Original seen from file of case FIR No. 614/13).
The witness was not cross-examined by ld. Addl. PP for State
despite having given the opportunity.
DW-2 SI Ajay Tomar brought the summoned record i.e. FIR
register containing original FIR No. 614/13 dated 07.11.13 u/s
324/308/34 IPC of PS Khajuri Khas. Injured of case FIR No.
FIR No. 613/13 State Vs. Naushad Etc. Page 34 of 51
614/13 i.e. Naushad and Mushtaq were taken to hospital by ERV.
He had not recorded their statements on that day and recorded
their statements on 08.11.2013 when they handed over to him
their blood stained clothes. He had recorded disclosure
statements of accused persons in that case.
The witness was not cross-examined by ld. Addl. PP for State
despite having given the opportunity.
DW-3 Dr. Debashish Mukherjee, Sr. Registrar (Emergency),
Nayati Hospital, Mathura, UP deposed that on 06.11.2013, he
was working in JPC Hospital as CMO. On that day, at about
9:00 pm, he had examined patient Naushad in emergency and
prepared MLC No. 090 (Original MLC lying in case FIR No.
614/13 PS Khajuri Khas). He referred the patient to Surgery
Department of GTB Hospital.
At about 9:10 pm, he examined patient Mushtaq vide MLC
No. 093 (Original MLC lying in case FIR No. 614/13 PS Khajuri
Khas). He referred the patient to Surgery Department of JPC
Hospital.
The witness was not cross-examined by ld. Addl. PP for State
despite having given the opportunity.
FINAL ARGUMENTS
7. This court has heard the final arguments and perused the
record.
The Ld. Addl. PP for the State submits that the testimonies
of all the prosecution witnesses is sufficient to bring home the
guilt of accused for the offences punishable u/s
302/307/326/324/34 of IPC beyond reasonable doubts. There is
no major discrepancy or contradiction in the testimony of
FIR No. 613/13 State Vs. Naushad Etc. Page 35 of 51
prosecution witnesses. PW13, PW17 and PW20 are the victims
and PW14 is eyewitness got examined by the prosecution and
they have narrated in detail the manner in which injuries have
been inflicted upon the victims due to the assault caused by the
accused persons. The specific roles of the accused persons have
been levelled by them. Their testimonies remained
unimpeached. The date of incident is 06-11-2013 at about 7:20
pm and the date of death of deceased Sabir is 12-11-2013 at GTB
hospital at 2:10. It is established from the postmortem report Ex.
PW2/A that deceased Sabir has died due to injuries inflicted by
the accused persons on his person. The cause of death is opined
as septicemic shock as a result of antemortem injury to internal
abdominal organs caused by sharp-edged weapon. The weapon
of offence i.e. dagger, which was recovered at the instance of
accused Mustaq, has been established to have been used in
inflicting injuries upon the victim. As per subsequent opinion of
autopsy surgeon Ex. PW2/C, it is established that aforesaid
dagger has been used to cause injuries no. 2 and 3 mentioned in
Postmortem report. All the accused persons have taken active
part in inflicting injuries upon the deceased as well as upon the
victim Zakir and Salim. As per cross-examination dated 20-02-
2015 of PW14, all the accused persons were carrying knives at
the time of incident. Apart from the oral testimony of
eyewitnesses, the prosecution has also placed reliance upon
certain discoveries made during investigation of the present case.
There is recovery of weapon of offence i.e. blood-stained dagger
at the instance of accused Mustaq on 08-11-2013. Further, there
is recovery of blood-stained clothes of victims handed over by
PW30 Zakir during investigation and later on, it is confirmed
FIR No. 613/13 State Vs. Naushad Etc. Page 36 of 51
from the FSL report Ex. PW19/A that there was trace of blood on
the clothes.
On the other hand, it is submitted by Ld. Defence counsel
for accused Wamik that there are several discrepancies and
contradictions in the testimonies of prosecution witnesses. The
treatment papers of deceased Sabir were withheld, which ought
to have been produced by the prosecution as deceased Sabir
passed away after four days from the date of incident. No
recovery was effected at the instance of accused Wamik as his
name did not find mention in the statement u/s 161 Cr.P.C. of
deceased Sabir.
It is further submitted by way of written submissions that
three injured witnesses Sabir, Zakir, Salim in their first statement
made to IO Naveen Rathi dated 07.11.2013 did not name Wamik
as one of the participant in the fight or even that he was present
at the spot; that the first I.O Naveen Rathi also did not speak
about his presence or participation in the offence in his
endorsement made in the Rukka send for registration of FIR of
FIR NO 613/2013; that even in the brief facts written by IO
Inspector Rajesh Vijay (2nd 1.0) to doctor for Post Mortem on
12.122013, the name of Wamik was not mentioned amongst the
group of people involved in fight/quarrel; that even in the
statement of accused Naushad which led to registration of cross
case ie FIR No 614/2013 recorded on 06-11-2013 immediately
after incident, he did not say that Wamik was also involved in the
fight or was present at spot at the time of incident; that Wamik
was not even cited as a witness in FIR No. 614/2013 registered in
respect of same incident; that he was neither medically examined
nor his MLC was prepared; that his clothes were not seized like
FIR No. 613/13 State Vs. Naushad Etc. Page 37 of 51
all other participants of incident whose clothes were blood
stained; that no recovery has been affected from him; that all the
eye witnesses have made improvements in their statement made
before the court which makes their credibility doubtful in the
case; that 1st I.O, Naveen Rathi during his cross examination
admitted that witnesses Zakir, Salim & Sabir did not name
Wamiq in their first statement given to him; that no CDR was
collected by the police to show presence of Wamiq at spot on the
date of incident; that his name does not find mentioned in PCR
Form or complaint made at no. 100.
It is submitted on behalf of accused Mustaq that there are
several discrepancies in the case of the prosecution. There is
material improvement in the testimony of star witnesses of the
prosecution as they have not revealed the name of Shamshad and
Sadil in their respective statements recording during investigation
of the present case. The MLC of Mustaq clearly indicates that he
was not arrested in the manner as alleged by the prosecution. As
per prosecution case, recovery of knife was effected at the
instance of accused Mustaq, which is doubtful as one day prior
to the said date in the morning, accused Mustaq, who is victim in
case FIR no. 614/13, had handed over his blood-stained clothes.
Thus, the claim of police that Mustaq had fled from the spot
after committing the alleged offence when his MLC was
conducted in the cross case cannot be believed. There is no
independent witness got examined by the prosecution despite
their availability. No chance prints were lifted from the alleged
knife. While deposing in the court, the victim Guddu has put his
signatures whereas in rukka Ex. PW22/A, he has put his thumb
impression, which creates serious doubt about his testimony.
FIR No. 613/13 State Vs. Naushad Etc. Page 38 of 51
Statement u/s 161 of Cr.P.C. of victim Meenu was recorded after
two months of date of incident. In support of his arguments, Ld.
Counsel for accused has placed upon the judgment of Haider Ali
Vs. State, 2015 SCC 12234.
FINDINGS OF THE COURT
8. Before analyzing the evidence led by the Prosecution in
the present case, this court deems it proper to refer to some
provisions of law, which are found to be applicable to the facts of
the present case.
Sections 302, 307, 326, and 324 of IPC read as under:-
300. Murder–Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused is done
with the intention of causing death, or –
Secondly–If it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause the
death of the person to whom the harm is caused, or–
Thirdly–If it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause
death, or–
Fourthly–If the person committing the act knows that it is
so imminently dangerous that is must, in all probability,
cause death or such bodily injury as is likely to cause death,
and commits such act without any excuse for incurring the
risk of causing death or such injury as aforesaid.
302. Punishment for murder-Whoever commits
murder shall be punished with death, or [imprisonment
for life], and shall also be liable to fine.
307. Attempt to murder.–Whoever does any act with
such intention or knowledge, and under such circumstances
that, if he by that act caused death, he would be guilty of
murder, shall be punished with imprisonment of either
description for a term which may extend to ten years, and
shall also be liable to fine; and if hurt is caused to any person
by such act, the offender shall be liable either to
1[imprisonment for life], or to such punishment as is
hereinbefore mentioned.
324. Voluntarily causing hurt by dangerous weapons
or means.–Whoever, except in the case provided for by
section 334, voluntarily causes hurt by means of any
instrument for shooting, stabbing or cutting, or any
instrument which, used as a weapon of offence, is likely to
cause death, or by means of fire or any heated substance, or
FIR No. 613/13 State Vs. Naushad Etc. Page 39 of 51
by means of any poison or any corrosive substance, or by
means of any explosive substance or by means of any
substance which it is deleterious to the human body to inhale,
to swallow, or to receive into the blood, or by means of any
animal, shall be punished with imprisonment of either
description for a term which may extend to three years, or
with fine, or with both.
326. Voluntarily causing grievous hurt by dangerous
weapons or means.–Whoever, except in the case provided
for by section 335, voluntarily causes grievous hurt by means
of any instrument for shooting, stabbing or cutting, or any
instrument which, used as a weapon of offence, is likely to
cause death, or by means of fire or any heated substance, or
by means of any poison or any corrosive substance, or by
means of any explosive substance, or by means of any
substance which it is deleterious to the human body to inhale,
to swallow, or to receive into the blood, or by means of any
animal, shall be punished with 1[imprisonment for life], or
with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.
9. The present case is cross case of FIR no. 614/13, PS
Khajuri Khas and same had been tried together in accordance
with the judgment of Hon’ble Supreme Court of India titled as
Nathi Lal Vs. State of UP (1990) SCC (Cri.) 638. The date, time
and place of incident in both the cases are same. It appears that
there was brutal scuffle between two groups- Naushad, Mustaq
and Wamik on one side and Saleem, Mohd. Guddu, and Zakir on
the other side. There is nothing on record in both the cases to
indicate as to who initiated the assault or who was exercising the
right of private defence.
10. The present case is primarily based upon the testimonies of
PW13 Guddu, PW17 Zakir, and PW20 Saleem Hussain, who are
the victims as well as the star eyewitnesses of the incident, and
PW14 Mobina Begum, mother of victims as well as an
eyewitness of the incident, got examined by the prosecution in
the present case. PW13, PW14, PW17, and PW20 have correctly
FIR No. 613/13 State Vs. Naushad Etc. Page 40 of 51
identified the accused persons at the time of recording of their
depositions in the Court on 10-11-2014, 10-11-2014, 05-06-2015
and 25-08-2015 respectively. PW13, PW14 and PW17 have
deposed correctly about the manner in which he as well as other
victims have received the injuries on their person by the act of
accused persons. It is well-settled that the evidence of an injured
witness commands greater respect and weightage under the law.
In several decisions, such as Jarnail Singh v. State of Punjab.
(2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra,
(2010) 6SCC 673; and Abdul Sayed v. State of Madhya Pradesh.
(2010) 10 SCC 259, the Hon’ble Supreme Court has time and
again reiterated the value of an injured witness and has observed:
“The evidence of an injured witness must be given
due weightage being a stamped witness, thus, his
presence cannot be doubted. His statement is
generally considered to be very reliable and it is
unlikely that he has spared the actual assailant in
order to falsely implicate someone else. The
testimony of an injured witness has its own
relevancy and efficacy as he has sustained injuries at
the time and place of occurrence and this lends
support to his testimony that he was present during
the occurrence. Thus, the testimony of an injured
witness is accorded a special status in law. The
witness would not like or I want to let his actual
assailant go unpunished merely to implicate a third
person falsely for the commission of the offence.
Thus, the evidence of the injured witness should be
relied upon unless there are grounds for the rejection
of his evidence on the basis of major contradictions
and discrepancies therein”.
11. PW13 Guddu has categorically deposed that on hearing
cries, he came out of his house and saw that accused Mustaq.
Wamik and Naushad along with two other persons namely
Shamshad and Sadil were abusing his mother Smt. Mobina
Begum. His brothers Salim and Zakir also came out from the
FIR No. 613/13 State Vs. Naushad Etc. Page 41 of 51
house. Accused persons started beating them. Accused Mustaq
stabbed Salim with chhuri. He tried to save Salim. On this,
accused persons started beating him. In the meantime, his another
brother Sabir who used to prepare slippers in the gali also
reached at the spot and when he tried to save them, accused
Mustaq attacked Sabir with chhuri. Other accused namely
Naushad and Wamik also gave beatings to Sabir and them.
Accused Mustaq also caused injuries to Salim with knife. Public
had gathered there and on seeing the public, accused persons had
escaped from the spot.
12. The testimony of PW13 is consistent with his statement
Ex. PW13/A recorded by the IO, which forms the basis for
registration of present FIR. Similarly, testimonies of PW14,
PW17 and PW20 are also consistent with their respective
statements u/s 161 of Cr.P.C. recorded by the IO during the
investigation of the present case. There is no reason to doubt the
presence of said witnesses at the spot as PW22 SI Naveen Rathi
had found them admitted in JPC hospital immediately after the
incident, which fact is also not disputed by the accused persons
as reflected from their respective statement u/s 313 Cr.P.C.
13. The MLC Ex. PW11/A of injured Guddu corroborates his
version. As per the MLC Ex. PW11/A, PW13 Guddu has
received following injuries:
1. Incised wound on the left buttock
2. Incised wound on right side of back
14. Similarly, MLCs of other victims namely Zakir, Sabir
Hussain, and Saleem Ex. PW11/C, Ex. PW11/B and Ex. PW11/A
corroborates the version of eyewitnesses i.e. PW13, PW14,
PW17 and PW20.
FIR No. 613/13 State Vs. Naushad Etc. Page 42 of 51
15. As per MLC Ex. PW11/A, victim Saleem has received
following injuries:
1. Multiple incised wound on left side of chest and back
2. Incised wound on left thigh
16. As per MLC Ex. PW11/B, victim Sabir Hussain has
received 4 x 2 cm wound with clean cut margins over the back,
2cm below the left costal region. As per the PM report Ex.
PW2/A as well, the victim Sabir has received an incised wound
of size 5 x 0.3 x 9 cm present obliquely over left side back with
upper lateral angle sharp; it is 1.7 cm lateral to midline and 20
cm above lateral cleft directed forward, upwards and laterally
with gauze packing present along with repair muscle of back. As
per the final opinion, on postmortem report Ex. PW2/A, the
death of victim has been caused on account of this injury. In the
opinion of this court, the injury reflected in the MLC is
consistent with the injury reflected in the postmortem report of
deceased Sabir.
17. As per MLC Ex. PW11/C, the victim Zakir has received
injury i.e. 4 x 1cm tangential death occupied by hematoma on
right side of the abdomen.
18. As per biological report Ex. PW19/A, blood was detected
on the clothes of victims ‘Zakir Hussain, Guddu and Saleem’
which were handed over by PW30 Zafar vide seizure memo Ex.
PW22/F. The said clothes were duly identified by PW30 Zafar
as Ex. P-2, P-8 and P-9, in his deposition dated 08-11-2017.
19. Another incriminating evidence collected during the
investigation of the present case is the recovery of dagger/ knife
FIR No. 613/13 State Vs. Naushad Etc. Page 43 of 51
at the instance of accused Mustaq on 08-11-2013 from a vacant
plot in gali no. 8, B-Block, Shriram Colony. PW22 SI Naveen
Rathi had categorically deposed that he and Ct. Sanjay had
entered into the said plot after jumping the wall, which fact
remained uncontroverted during his cross-examination. The said
knife was taken into police possession vide seizure memo Ex.
PW16/L. Thus, it is established that the weapon of offence i.e.
dagger/ knife was recovered at the instance of accused Mustaq
from an isolated place.
20. As per the subsequent opinion of autopsy surgeon Ex.
PW2/C, the injury no. 2 and 3 mentioned in the PM report could
be possible by the said recovered dagger/ knife.
21. The learned defence counsels argued that there is
significant improvement made by the victims in their ocular
testimonies as they have not revealed the name of accused
Wamik in their respective statement u/s 161 Cr.P.C. recorded
during the investigation of the present case. Perusal of charge-
sheet revealed that role of Wamik in the supplementary statement
dated 08-11-2013 of victim Zakir and Saleem is clearly
mentioned as the assailant.
22. Thus, the contention to the effect that there is significant
improvement in the testimony of victims / star witnesses of the
prosecution fails to inspire confidence of this court. Apart from
the said improvement, other contradictions/discrepancies pointed
out by Ld. Defence counsel in the testimony of PW13, PW14,
PW17 and PW20, in the opinion of this court, are due to normal
errors of observation, normal errors of memory due to lapse of
time, due to mental disposition such as shock and horror at the
FIR No. 613/13 State Vs. Naushad Etc. Page 44 of 51
time of occurrence. No defence evidence has been led by the
accused persons to show as to how the victims have sustained
injuries reflected in their respective MLCs. Even in their
statements u/s 313 of Cr.P.C., nowhere the accused persons have
explained as to how the victims Guddu, Zakir, Saleem and Sabir
had sustained the injuries reported in their MLCs Ex. PW11/A to
Ex. PW11/D.
23. It is settled position in law that testimony of an eyewitness
is to be preferred to that of a medical witness. Reference may be
made to State of U.P. v. Hari Chand (2009) 13 SCC 542, wherein
the Hon’ble Apex Court told the position of law thus:
“In any event, unless the oral evidence is totally
irreconcilable with the medical evidence, it has
primacy.”
24. At this stage, it is pertinent to refer here the case of State of
H.P. v. Lekhraj and another reported in JT 1999 (9) SC 43,
wherein it was observed by the Hon’ble Supreme Court of India
that:-
“In the depositions of witnesses there are always normal
discrepancy, however, honest and truthful they may be. Such
discrepancies are due to normal errors of observation, normal
errors of memory due to lapse of time, due to mental disposition
such as shock and horror at the time of occurrence, and the
like………
…….The traditional dogmatic hyper technical approach has to be
replaced by rational, realistic and genuine approach for
administering justice in a criminal trial.” Further, in the case of
Surender Singh v. State of Haryana reported in JT 2006 (1) SC
645, the Hon’ble Supreme Court of India has observed as
under :- “It is well-established principle of law that every
discrepancy in the witness statement cannot be treated as a fatal
to the prosecution case. The discrepancy, which does not affect
the prosecution case materially, does not create infirmity.”
As far as minor inconsistencies are concerned in the statement
of the witnesses it is held in Ousu Varghese v. State of Kerala,
reported in (1974) 3 SCC 767 that minor variations in the
accounts of the witnesses are often the hallmark of the truth of
their testimony. In the case of Jagdish v. State of Madhya
FIR No. 613/13 State Vs. Naushad Etc. Page 45 of 51
Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has
held that when the discrepancies were comparatively of minor
character and did not go to the root of the prosecution story, they
need not be given undue importance. Mere congruity or
consistency is not the sole test of truth in the depositions. Also
in the case of State of Rajasthan Vs. Kalki, reported in (1981) 2
SCC 752 it has been held that in the depositions of witnesses
there are always normal discrepancy, however, honest and
truthful they may be. Such discrepancies are due to normal
errors of observation, normal errors of memory due to lapse of
time, due to mental disposition such as shock and horror at the
time of occurrence, and the like. Material discrepancies are
those which are not normal, and not expected of a normal
person.
(133) Even otherwise, when an eye witness is examined at
length it is quite possible for him to make some discrepancies.
No true witness can possibly escape from making some
discrepant details. Perhaps an untrue witness who is well tutored
can successfully make his testimony totally non discrepant. But
Courts should bear in mind that it is only when discrepancies in
evidence of witness are so incompatible with the credibility of
his version that the Court is justified in jettisoning his evidence.
But too serious a view to be adopted on mere variations falling
in the narration of incident (either as between the evidence of
two witnesses or as between two statements of the same
witness) is an unrealistic approach for judicial scrutiny.
(134) The Supreme Court had an opportunity to discuss as to
why discrepancies arise in the statements of witnesses. In the
judgment of Bharwada Boginbhai Hijri Bhai Vs. State of
Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC
7453 (1), the Supreme Court pointed out the following reasons
as to why the discrepancies, contradictions and improvements
occur in the testimonies of the witnesses:
(a) By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident. It
is not as if a video tape is replayed on the mental screen.
(b) Ordinarily it so happens that a witness is overtaken by
events. The witness could not have anticipated the occurrence
which so often has an element of surprise. The mental faculties
therefore cannot be expected to be attuned to absorb the details.
(c) The powers of observation differ from person to person.
What one may notice, another may not. An object or movement
might emboss its image on one person’s mind, whereas it might
go unnoticed on the part of another.
(d) By and large people cannot accurately recall a conversation
and reproduce the very words used by them or heard by them.
They can only recall the main purport of the conversation. It is
unrealistic to expect a witness to be a human tape recorder.
(e) In regard to exact time of an incident, or the time duration of
an occurrence, usually people make their estimates by guess
FIR No. 613/13 State Vs. Naushad Etc. Page 46 of 51
work on the spur of the moment at the time of interrogation.
And one cannot expect people to make very precise or reliable
estimates in such matters. Again, it depends on the time sense of
individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately
the sequence of events which take place in rapid succession or in
a short time span. A witness is liable to get confused, or mixed
up when interrogated later on.
(g) A witness, though wholly truthful, is liable to be overawed
by the court atmosphere and the piercing cross-examination
made by counsel and out of nervousness mix up facts, get
confused regarding sequence of events, of fill up details from
imagination on the spur of the moment. The subconscious mind
of the witness sometimes so operates on account of the fear of
looking foolish or being disbelieved though the witness is giving
a truthful and honest account of the occurrence witnessed by
him perhaps it is a sort of psychological defence mechanism
activated on the moment.
25. It has been held by the Hon’ble High Court of Delhi in the
case of Sonu Arora Vs. State on 21 July, 2010 in Crl. A. No.
241/1997 that:-
“If the discrepancies found in the testimony of a witness are
normal and attributable to loss of memory with the passage of
time or they are on matters which are peripheral or trivial, not
forming the core of the case, his testimony cannot be rejected on
account of such minor variations or infirmities. But, where the
contradiction relates to the main incident forming core part of
his testimony, that could depending upon the nature of the
contradiction and other facts and circumstances of the case,
seriously affect the credibility and truthfulness of the witness
since he is not expected to give contradictory version with
respect to the important material parts of the incident which he
claims to have witnessed.”
26. No material contradiction/ discrepancy has been pointed
out by the Ld. Defence counsel in the version of victims PW13,
PW17 and PW20 and eyewitness PW14. In view of the law as
stated above, the contention regarding contradictions and
discrepancies in the version of PW13, PW14, PW17 and PW20
fails to inspire the confidence of this court. Number of injuries
reported in the MLCs clearly reflects the intention of the accused
FIR No. 613/13 State Vs. Naushad Etc. Page 47 of 51
persons in causing assault upon the victims. The other
contentions raised regarding non-recovery of other weapons of
offence are of no help to the accused persons in light of
unimpeached testimony of victims PW13, PW17 and PW20.
Further, it is well settled that non-identification of weapon of
offence is not fatal to the case of the prosecution when the
testimony of victim is otherwise unimpeached and substantially
corroborated.
27. The law to this effect has been laid down by the Hon’ble
Supreme Court of India in case titled Anwarul Haq Vs. State of
UP, (2005) 10 SCC 581 that,:-
“the eyewitnesses have described the knife, and merely because the
knife has not been recovered during the investigation, same cannot a factor
to discard the evidence of PWs. Wounds noticed by the doctor also throw
considerable light on this aspect. The doctor’s opinion about the weapon,
though theoretical, cannot be totally wiped out.”
28. The defence witnesses got examined by the accused
persons are of no help as they have only proved the official
record in connection with registration of cross FIR no. 614/13,
PS Khajuri Khas. No independent evidence has been adduced to
show as to how the victims in the present case had sustained
injuries as reflected in their respective MLCs.
29. It is argued vehemently that no independent witness was
got examined by the IO and therefore, prosecution case cannot be
relied upon. In this regard, it is pertinent to note that in the
present case, PW13 Guddu, PW14 Mobina Begum, PW17 Zakir
and PW20 Saleem Hussain have been cross-examined at length.
There is nothing in their version to indicate that any other
independent witnesses had seen the occurrence i.e. the incident of
assault being caused by the accused persons upon the victims-
FIR No. 613/13 State Vs. Naushad Etc. Page 48 of 51
Guddu, Zakir and Saleem.
30. It is pertinent to mention that on the above-mentioned
aspect, it has been observed by the Hon’ble Delhi High Court in
judgment titled “Jhodha Sahney Vs. State of NCT of Delhi 2011
(1) Crimes 382”, as under:-
“7. The next ground taken by the Counsel for the appellant is
that no public witness was joined at the time of recovery. The
accused had started moving quickly towards the village on the
seeing police party and police party therefore stopped the
accused/appellant and checked his gunny bag. On checking it
was found that gunny bag held by the accused contained charas.
Merely because the police party did not associate public persons
in this “chance recovery” cannot be a ground to disbelieve the
case of prosecution. Moreover, there is normal tendency of
public persons not to associate themselves with police
investigation as the investigation and the trials in this country
are the source of great harassment to the witnesses who are often
not taken care of by the Courts or by the police. The witnesses
are normally scared to join any investigation or give testimony
even of what they have witnessed in broad daylight because of
the repeated summoning in the Courts and sending them
unexamined in a routine and casual manner by the Courts.”
31. Dealing with the aspect of reluctance of the public persons
to join the police proceedings, this Court in Jawahar vs. State
(2007) ILR 2 Delhi 146 observed as under:-
“As far as non association of public witnesses at the time of
recovery is concerned, I consider that this is not an infirmity
sufficient to throw out the case of the prosecution. It is very hard
these days to get association of public witnesses in criminal
investigation. Investigation itself is a tedious process and a
public witness, who is associated, has to spend hours at the spot.
Normally, nobody from public is prepared to suffer any
inconvenience for the sake of society. The other reason for the
public witness not readily agreeing to associate with
investigation is harassment of public witness that takes place in
the courts. Normally a public witness should be called once to
depose in the court and his testimony should be recorded and he
should be discharged. But experience shows that adjournments
are given even in criminal cases on all excuses and if
adjournments are not given, it is considered as a breach of the
right of hearing of the accused. These adjournments are
specifically taken by counsels for accused persons, whenFIR No. 613/13 State Vs. Naushad Etc. Page 49 of 51
witnesses are present, just to see that witnesses get harassed by
calling them time and again. The excuses normally given in the
courts are; the counsel having urgent personal work, left the
court; death of some near relatives etc; the counsel being busy in
arguing other matter in other court or cross examining other
witness in some other court. This attitude of the courts of
sending witness back is a major cause of harassment which
discourages public from associating in the investigation of any
case. Since the police is faced with this handicap, the police
cannot be blamed for not associating public witness. There is no
presumption that the police witnesses are not credible witnesses.
The testimony of every witness, whether from public or police,
has to be judged at its own merits and the court can believe or
disbelieve a police witness considering the intrinsic value of his
testimony. Police witnesses are equally good witnesses and
equally bad witnesses as any other witness and the testimony of
police witness cannot be rejected on the ground that they are
official witnesses”.
32. Thus, the contention regarding non-joining of independent
public witnesses raised by the Ld. Defence counsel fails to
inspire confidence of this court.
33. It is manifest from the testimony of star witness of the
prosecution that initially accused Mustaq and Naushad came at
the shop of victims at B-320, Gali no. 8, Shriram Colony, Delhi
and had an arguments with PW14 Mobina Begum over payment
of money for purchase of cigarette. They went back and came
back at the spot again armed with knives and co-accused Wamik.
Thus, it is apparent that the accused persons had the intention to
carry out murderous assault upon the victims in the present case.
34. The citations relied upon by the Ld. Defence counsel are
not found to be applicable in view of the peculiar facts of the
present case.
DECISION OF THE COURT
35. It is well settled that it is the duty of the prosecution to
prove the guilt of the accused beyond reasonable doubt. There is
FIR No. 613/13 State Vs. Naushad Etc. Page 50 of 51
no reason to disbelieve the version of prosecution witnesses. The
testimony of prosecution witnesses come out to be clear,
convincing, trustworthy and inspires confidence of this court.
Nothing material came out in their respective cross-examination.
All the ingredients of section 302/307/34 of IPC are satisfied.
Accordingly, accused persons namely Mustaq and Wamik are
hereby convicted of the offence punishable u/s 302/307/34 of
IPC. Let the convicts be heard on the quantum of sentence and
grant of compensation on the next date of hearing.
ANNOUNCED IN THE OPEN COURT
ON 08-05-2025
PANKAJ Digitally signed by PANKAJ
ARORA
ARORA Date: 2025.05.08 17:39:18
+0530
(PANKAJ ARORA)
ADDL. SESSIONS JUDGE-04: NORTH-EAST/
KARKARDOOMA/08-05-2025
FIR No. 613/13 State Vs. Naushad Etc. Page 51 of 51