Criminal Appeal No. 1314 of 2011 and Death Sentence Ref No. 3 of 2011. Case: 1. Mohd. Saleem & Ors., 2. State Vs 1. State, 2. Mohd. Saleem & Ors.. High Court of Delhi (India)
| Case Number | Criminal Appeal No. 1314 of 2011 and Death Sentence Ref No. 3 of 2011 |
| Counsel | For Appellant: Mr. Siddharth Aggarwal, Mr. Hilal Haider, Mr. Adit S. Pujaria, Mr. Vaibhav Sethi, Advocates, Mr. Sanjeev Singh, Advocate and Mr. M.Z. Chaudhary, Advocate and Ms. Aashaa Tiwari, APP and For Respondents: Ms. Aashaa Tiwari, APP, Mr. Siddharth Aggarwal, Mr. Hilal Haider, Mr. Adit S. Pujaria and Mr. Vaibhav Sethi, Advocates, Mr. ... |
| Judges | S. Muralidhar and Mukta Gupta, JJ. |
| Issue | Arms Act, 1959 - Section 27; Code of Criminal Procedure, 1973 (CrPC) - Sections 313, 366(1); Indian Evidence Act, 1872 - Section 27; Indian Penal Code (45 of 1860) (IPC) - Sections 302, 307, 34 |
| Citation | 2014 (IV) AD 49 (Del), 2014 (II) CCR 212 (Del) |
| Judgement Date | March 07, 2014 |
| Court | High Court of Delhi (India) |
Judgment:
S. Muralidhar, J.
Introduction
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By the judgment dated 3rd September 2011 passed by the Additional Sessions Judge-02 (North), Delhi in SC No. 35/11. Mohd. Saleem (Accused No. 1), Shaheen Abbas @ Shanu (Accused No. 2), Sajid Wasim @ Raza (Accused No. 3), Shaheen Zargam Ali (Accused No. 4) and Shabbir Kasim @ Kasim Raja (Accused No. 5) have all been convicted of the offences under Sections 302 and 307 read with 34 IPC and Section 27 of the Arms Act, 1959. By the order on sentence dated 7th September 2011, all five accused were sentenced to death for the offences under Section 302 IPC read with 34 IPC and to fine of Rs. 10,000 and in default to suffer simple imprisonment ('SI') for ten months. For the offence under Section 307 read with 34 IPC all the accused were sentenced to 10 years rigorous imprisonment ('RI') and fine of Rs. 10,000 and in default to suffer SI for five years and to fine of Rs. 5,000 each and in default to suffer SI for five months. Death Sentence Reference No. 3 of 2011 has been preferred by the State seeking confirmation of the death sentence awarded to the convicts under Section 366(1) of CrPC. The accused have preferred Criminal Appeal No. 1314 of 2011 challenging their conviction and sentence.
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The accused have been found guilty of committing the murder of Mohd. Tariq and causing grievous injuries and attempting to murder his younger brother Mohd. Tayyab (PW-21).
The case of the prosecution
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According to the prosecution, Mohd. Sadiq (PW-3), the brother of the deceased Tariq and injured PW-21 married Rubina (PW-10), real sister of Sajid Wasim (A-3) and Shabbir Kasim (A-5). PW-3 belongs to the Sunni community whereas PW-10 and the Appellants belong to Shia community. Shaheen Abbas (A-2) is a cousin of PW-10. Mohd. Saleem (A-1) and Shaheen Zargam Ali (A-4) are the uncles of PW-10. Both families lived in the same area i.e. Ballimaran, which is part of the walled city in Delhi.
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The case of the prosecution is that on account of the marriage of PW-3 and PW-10 against the wishes of the family of PW-10, enmity had developed between the Appellants and the family of PW-3. It is stated that PWs-3 and 10 were living away from the family in order to avoid the wrath of the Appellants. The marriage between PW-3 and PW-10 took place on 1st May 2007, more than one year prior to the date of the incident, i.e. 7th July 2008. About 10 days prior to the date of incident, PW-3 and PW-10 returned to Ballimaran and began residing in the parental home of PW-3.
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What transpired on the evening of 7th July 2008 is elaborated by Mohd. Shariq (PW-8), a brother of the deceased who also lodged the First Information Report ('FIR') (Ex. PW-8/A). PW-8 states that he saw Zargam Ali (A-4) taking Mohd. Sadiq (PW-3) on a motorcycle at around 10:30 pm on 7th July 2008. PW-8 stated to the police in Hindi that 'Aaj raat karib 10:30 pm par maine gali main dekha ki Zargam mere bhai Sadiq Ko m/cy par bitha kar gall kuppe wall main le ja raha tha'. After PW-8 noticed PW-3 being taken away by A-4 on his motorcycle, PW-8 reached Hari Masjid, which is not very far away from the place where he lived i.e. near Punjabi Phatak in Ballimaran, along with his brothers Mohd. Tahir (PW-12), Mohd. Tayyab (PW-21) who was later seriously injured and the deceased Mohd. Tariq.
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PW-8 stated that he saw A-4 had taken PW-3 to one side of the road near Hari Masjid and was talking to him. PW-8 then asked A-4 as to why he had brought PW-3 and A-4 is stated to have replied that he wanted to talk to PW-3 "for the last time". The words in Hindi as told to the police by PW-8 were: 'Zargam ne kaha tumjao mujhe is se akele main aakhri baar baat karni ha'. PW-8 stated that at that place he also saw Mohd. Saleem (A-1) and the nephews of Zargam i.e. Shaheen Abbas @ Shanu (A-2), Sajid Wasim (A-3) and Shabbir Kasim (A-5). The deceased Tariq then told Zargam that whatever he wanted to say to PW-3 should be in their presence but Zargam was adamant that he wanted to talk to PW-3 in private. Meanwhile, Tariq took Zargam to another side to pacify him and PW-8 then told PW-3 to immediately return home and thereupon PW-3 left for Gali Kuppe Wali.
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PW-8 stated that thereafter he along with his brothers Tahir (PW-12), Tayyab (PW-21) and deceased Tariq also returned home through Gali Kuppe Wali. According to PW-8, the five accused started following them and at around 11 pm and when they reached near the chowk at Gali Kuppe Wali, A-4 is stated to have exhorted 'maaro saalo ko, khatam kar do, bachne na payein'. When PW-8 and his brothers turned back they saw that all the five accused had pistols in their hands. A-4 is stated to have fired a shot which hit PW-21 and at the same time the four other accused also fired shots. PW-8 stated that on seeing PW-21 hit by a bullet, all of them ran away to save their lives. He then stated that the five accused surrounded the deceased Tariq in Gali Kahar Wali, Ballimaran and shot him. PW-8 stated that he escaped by running towards Punjabi Phatak. When the sound of the bullets stopped after some time, PW-8 came back to Gali Kahar Wali to see that the deceased Tariq was lying in a pool of blood. With the help of one Mohd. Wasim (PW-7), PW-8 took deceased Tariq to the LNJP Hospital in a rickshaw. He found that PW-21 was already admitted there with bullet injuries.
Events after the incident
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From the police record it transpired that at about 11.15 pm on 7th July 2008, Woman Constable Rekha (PW-15) was posted in the Police Control Room ('PCR'). She received an anonymous call from a Mobile No. 9873839916. The caller disclosed that PW-21 had sustained three bullet injuries and was being taken to LNJP Hospital. The information was recorded as part of DD No. 28A at 11.25 pm on 7th July 2008 at PS: Lahori Gate. The said DD (Mark A1) also recorded the information from another Mobile No. 9911336060 that there was firing going on in Ballimaran. This information was given telephonically to Sub Inspector ('SI') Prakash Chand Sharma (PW-25). Head Constable (HC) Kewal Krishan (PW-23) is stated to have handed over DD No. 28A to PW-25 who then reached the spot i.e. inner circle of Gali Kahar Wali and Gali Kuppe Wali.
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PW-25 states that when he reached the spot he found blood in Gali Kuppe Wali and Gali Kahar Wali and also certain live cartridges lying there. According to PW-25, in the meanwhile Station House Officer ('SHO') Prem Singh Hooda (PW-37) and Constable Samar Pal (PW-5) reached the LNJP Hospital.
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The medico-legal certificate ('MLC') (Ex. PW27/A) of the deceased Mohd. Tariq reveals that he was brought by (B/B) Mohd. Shariq (PW-8) and the date and hour of arrival are shown therein as 7th July 2008 at 11.35 pm. In the column titled 'particulars of injuries' it is written "Alleged H/o physical assault with firearm injury at Gali Patna Wali at around 11.00 pm today as told by B/B and patient. No. H/o LOC/Vomiting/seizure". The 'observation notes' state: "Patient conscious. Pulse Rate 80/min and blood pressure is 110/80." The Junior Resident who signed the MLC at that stage was Dr. Priyanka who was not examined as a prosecution witness. On the said MLC there are endorsements made on 8th July 2008 (X-3), 9th July 2008 (X-2) and 10th July 2008 (X-1) that the patient was not fit for making a statement.
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PW-25 recorded the statement of PW-8 at around 2 am. The rukka was Ex. PW-8/A on which PW-25 made his endorsement (Ex. PW25/AA). He handed over the rukka to PW-5 with direction to register it as an FIR. HC Bhim Singh (PW-1) registered the FIR No. 134 of 2008, PS: Lahori Gate and the FIR was given by PW-5 to PW-34 for investigation. The rukka recorded inter alia the statement of PW-8 naming the five accused as the assailants.
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The MLC of Mohd. Tayyab (Ex. PW-27/B) shows that he was brought in at 11:30 pm on 7th July 2008. The name of the B/B was given as Faeem Ahmed (PW-11). The 'observation notes' state: "Alleged H/o physical assault with firearm near his residence at around 11.15 pm today as told by patient and B/B." The examination notes state: "patient conscious with pulse rate of 100/min and BP 100/70". Then MLC was recorded by Dr. Satya who again was not examined as a prosecution witness. There are endorsements on 8th July 2008, 9th July 2008 and 10th July 2008 that the patient is unfit for making a statement. There is an endorsement of 11th July 2008 which states that "patient is unable to speak but his higher functions are normal, patient is fit for written statement
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On 11th July 2008 PW-34 recorded following statement of PW-21 at the hospital:
On the night of 7th at 10:25 'O' clock I was sitting in my house with my brothers when Shariq came and told that Zargam had taken away Sadiq on his motorcycle whereupon, we, all the brothers, reached Main Road, Ballimaran. (We saw) Sadiq was standing there in the company of Zargam. When we were returning to home, Zargam, Saleem, Shanu, Wasim and Kasim shot fire at me and my brother Tariq in Gali Kuppe Wali"
At the scene of crime
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Meanwhile, to go back to the events of the intervening night of 7th/8th July 2008, the case of the prosecution as elaborated upon by SI Braham Singh (PW-4) and Constable Ramesh (PW-6), Photographer of the Crime Team, is that at around 2.30 am the Mobile Crime Team arrived at the spot. According to PW-25, however, even prior thereto Duty HC Kailash (PW-20) handed over to PW-25 two pullandas sealed with the seal of JPN Hospital stated to be containing blood stained clothes of Mohd. Tariq and Mohd. Tayyab (PW-21). He then took both parcels into his possession by memo Ex. PW-20/A and returned to the spot with PW-37. Meanwhile, PW-5 also reached the spot to hand over the rukka and copy of the FIR to PW-34. According to PW-25, PW-8 also reached the spot.
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PWs-5 and 6 stated that between 2.30 am and 4 am on 8th July 2008, the recoveries took place of the shoes (Ex. PW-5/B), cartridges (Ex. PW-5/C) and blood stained clothes (Ex. PW-5/A). As per the...
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