CRL.A.--243/2009. Case: Mohd. Fazal Vs. State. High Court of Delhi (India)
| Case Number | CRL.A.--243/2009 |
| Citation | NA |
| Judgement Date | May 19, 2014 |
| Court | High Court of Delhi (India) |
+ Crl. Appeal No. 243/2009
Reserved on: 25th February, 2014 % Date of Decision : 19th May, 2014
Mohd. Fazal ....Appellant
Through Mr. R.M. Tufail, Amicus Curiae with
Mr. Anwar A. Khan, Mr. Farooq Chaudhary and Mr. Vishal Raj Sehijpal, Advs.
Versus
State …Respondent
Through Ms. Rajdipa Behura, APP.
Crl. Appeal 230/2009
Suraiya ....Appellant
Through Mr. R.M. Tufail, Amicus Curiae with
Mr. Anwar A. Khan, Mr. Farooq Chaudhary And Mr. Vishal Raj Sehijpal, Advs.
Versus
State …Respondent
Through Ms. Rajdipa Behura, APP.
Crl. Rev. Petition 361/2009
Naseem Bano ....Appellant
Through Mohd. Saleem, Advocate.
Versus
State …Respondent
Through Ms. Rajdipa Behura, APP.
Crl.Appeals 243, 230/09, 1231/10 & Crl. Rev.P. 361/09 Page 1 of 48
Mohan Seth ....Appellant
Through Mr. R.M. Tufail, Amicus Curiae with
Mr. Anwar A. Khan, Mr. Farooq Chaudhary And Mr. Vishal Raj Sehijpal, Advs.
Versus
State …Respondent
Through Ms. Rajdipa Behura, APP.
Crl. Appeal 1231/2010
State Govt. of NCT of Delhi ....Appellant
Through Ms. Rajdipa Behura, APP.
Versus
Noor Ahmed Anjum and Ors. …Respondents
Through Mr. R.M. Tufail, Amicus Curiae with
Mr. Anwar A. Khan, Mr. Farooq Chaudhary And Mr. Vishal Raj Sehijpal, Advs.
CORAM:
HON’BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE G. P. MITTAL
SANJIV KHANNA, J.
These appeals including Crl. Revision Petition filed by Naseem Bano arise out of a common judgment dated 17th March, 2009 in Session Case No. 70/2003, relating to FIR No. 167/2003 P.S. Hazrat Nizamuddin. By the said judgment, Suraiya and Mohd. Fazal have been convicted under Section 302 read with Section 120-B of the Indian Penal Code, 1860 (IPC, for short) and Mohd. Fazal and Mohan
Crl.Appeals 243, 230/09, 1231/10 & Crl. Rev.P. 361/09 Page 2 of 48
Rahil and Mohan Seth have been acquitted for offences under Section 302 read with Section 120B IPC and the State has filed Crl. Appeal No. 1231/2010 seeking reversal. Criminal Revision Petition No. 361/2009 is with a similar prayer i.e. it seek conviction of Noor Ahmed, Rahil and Mohan Seth under Section 302 read with Section 120B IPC.
2. Suraiya is wife of Noor Ahmed and Rahil is their son. Mohd. Fazal is brother of Suraiya. Mohan Seth, it is claimed is their friend.
3. The deceased Shakeel ur Rehman was a neighbour of Suraiya and Noor Ahmed and was residing in property number 15/1 Jaipur Estate, Nizamuddin, New Delhi. It is an undisputed and accepted position that there were disputes and differences between Shakeel ur Rehman and Suraiya and her family regarding the said property. A suit for specific performance, CS No. 2151/1999 was filed by Shakeel ur Rehman against Fazal, Suraiya and ors. which was pending before the High Court and interim order had been passed. In fact on 7th
April, 2003, FIR No. 169/2003 (Ex. PW8/DG) was registered on a complaint made by the appellant Suraiya with P.S. Nizamuddin.
4. There is also evidence that on 6th April, 2003, the deceased along with others had tried to raise a boundary wall on the disputed
Crl.Appeals 243, 230/09, 1231/10 & Crl. Rev.P. 361/09 Page 3 of 48
a result, complaints were made to the police, which were recorded as DD entries no. 10A (Ex PW 3/A/Ex.PW8/D) and 16A. Noor Ahmed in reply to question Nos. 5, 6 and 7, in his statement recorded under Section 313 Criminal Procedure Code, 1973 (Cr.P.C., for short) had accepted the aforesaid factual position and had accepted that he was called to the police station on 6th April, 2003. Police officers had advised the parties to patch up and resolve their disputes. Suraiya in response to question No. 5, in her statement under Section 313 Cr.P.C., accepted that there was a transaction for sale and purchase of plot No. 15/1, Jaipur Estate, Nizamuddin between her and Shakeel ur Rehman but, denied having received Rs.1 crore. Similarly, appellant Mohd. Fazal had stated that there was a transaction between Suraiya and Shakeel ur Rehman for purchase of property but denied payment of Rs.1 crore to Suraiya by Shakeel ur Rehman. Rahil, son of Noor Ahmed and Suraiya, however, in his statement under Section 313 Cr.P.C. stated that „this was incorrect‟ and „he had no knowledge‟. Similar stand has been taken by Mohan Seth in his statement under Section 313 Cr.P.C.
5. Aniq ur Rehman (PW3) brother of the deceased, Lubna Habib (PW4) sister of the deceased and Naseem Bano (PW6) wife of the
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2003. They have uniformly deposed that Shakeel ur Rehman and Aniq ur Rehman (PW3) were getting the boundary wall constructed, but this was objected to. It thus, led to disputes between them and Suraiya and others regarding the property and abuses were hurled. Aniq ur Rehman (PW3) had deposed about attempt or threat of physical violence. The two sides went to the police station and were advised to resolve their differences. In the evening, the deceased Shakeel ur Rehman was called to the house/ residence of Suraiya and Noor Ahmed for settlement. In his statement under Section 313 Cr.P.C. while replying to question No. 7, Noor Ahmed had accepted that Shakeel ur Rehman had come to their house after the police officers had advised them to patch up, though this has been denied and not accepted as correct by Suraiya and others.
6. Aniq ur Rehman (PW3), Ms. Lubna (PW4) and Ms. Nasim Bano (PW6) have asserted that Shakeel ur Rehman returned to his residence at about 7/7.30 PM, but soon thereafter he received a telephone call from Suraiya. He left for Suraiya‟s residence informing that he would come back after some time. Earlier, Shakeel ur Rehman had stated that the matter had been settled. Aniq ur Rehman (PW3) claimed that he had accompanied the deceased
Crl.Appeals 243, 230/09, 1231/10 & Crl. Rev.P. 361/09 Page 5 of 48
remained at 15/1 Jaipur Estate till about 10.30 PM. By that time Shakeel ur Rehman had not returned. Similar assertions have been made by Ms. Lubna (PW4) and Naseem Bano (PW6). When Shakeel ur Rehman did not return till 12 midnight, Lubna (PW4) made a call to Aniq ur Rehman (PW3), who was residing at 161/52 Jogabai Nagar, Delhi. Thereupon Aniq ur Rehman came to the residence of Shakeel ur Rehman. Attempts were made to speak to Shakeel ur Rehman on his mobile phones , but in vain. At 4.40 AM, Aniq ur Rehman (PW3) rang up No. 100 and made a complaint that his brother Shakeel ur Rehman had left for the house of Noor Ahmed/Suraiya @ Anjum and had not returned. DD entry No. 25A (Ex. PW16/A) was recorded. This was followed by another DD entry No. 27/A (Ex. PW 3/B) recorded at 7.15 AM on 7th April, 2003 at Police Station, Hazrat Nizamuddin. In Ex. PW3/B, it stands recorded that on 6th April, 2003, Shakeel ur Rehman had parked his vehicle and stated that he was proceeding to meet Anjum. Shakeel ur Rehman‟s two mobile phones with numbers 31078285 and 56023910 remained switched off and inspite of efforts, he could not be located. Shakeel ur Rehman aged 38 years, height 5‟10”, wheatish complexion, was wearing white shirt, grey pant and black shoes.
Crl.Appeals 243, 230/09, 1231/10 & Crl. Rev.P. 361/09 Page 6 of 48
and FIR in question 167/2003 under Section 365/34 IPC (Ex. PW8/A) was recorded at 5.30 PM on 7th April, 2003. DD entry No. 10/A (Ex. PW8/DA) was also recorded. The complaint, on the basis of which FIR was recorded, no doubt, was written after taking professional help from a person well conversant with law and is in legal language, but this is not sufficient to disregard or disbelieve the factual contents thereof. The complaint/FIR is in accord and in consonance with the court testimonies of Aniq ur Rehman (PW3), Lubna (PW4) and Naseem Bano (PW6) that Shakeel ur Rehman had left for the residence of Noor Ahmed and Suraiya at about 7/7.30 PM on 6th
April, 2003.
7. At this stage, we would like to repel the contentions raised by the convicted appellants, Noor Ahmed and Rahil that there is discrepancy as to the time mentioned in the FIR (Ex. PW8/A) i.e.
7.30 PM and the time as mentioned in DD entry No. 27/A (Ex. PW3/B) i.e. 10.30 PM and this goes to the root of the prosecution version and therefore, the charge should not be accepted. Aniq ur Rehman (PW3), Lubna (PW4) and Naseem Bano (PW6) have deposed that Aniq ur Rehman had remained at 15/1 Jaipur Estate till about 10.30 PM on 6th April, 2003 before going to his residence.
Crl.Appeals 243, 230/09, 1231/10 & Crl. Rev.P. 361/09 Page 7 of 48
recorded at about 7.30 AM on 7 April, 2003. The time 10.30 PM mentioned in DD Entry NO. 27/A, Ex. PW3/B, we do not think should be given undue importance and credence, contrary to the written complaint (Ex. PW3/A) made at 5.30 PM on 7.4.2003, which resulted in registration of the FIR (Ex. PW8/A). The ocular depositions clearly supports the time mentioned in the FIR ( Ex PW 8/A). Even if there was difference or error in the time, the same was corrected shortly and without undue delay. The FIR was initially registered under Section 365/34 IPC on 7th April 2003 at 5.30 PM. Till 5.30 PM on 7th April, 2003, no one had any clue and family members of Shakeel ur Rehman were neither aware nor had the slightest idea as to what had happened. The complainants were not aware or conscious of the timing with reference to call details of Mohd. Fazal and Rahil. The difference in the timing is not relevant and material. What is material and relevant is that in DD entry No. 27/A (Ex. PW 3/B) as well as FIR (Ex. PW8/A), it was mentioned and recorded that Shakeel ur Rehman had gone to the house of Anjum and thereafter he was not traceable. His mobile phones were switched off. Thus, the court depositions of Aniq ur Rehman (PW3), Lubna (PW4) and Naseem Bano (PW6) support the initial complaint
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that the deceased Shakeel ur Rehman had gone to the residence of Suraiya/Noor Ahmed and thereafter went missing.
8. There is ample evidence and material to show that after registration of FIR, Suraiya, Noor Ahmed, Rahil and others were interrogated...
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