RASHID Vs. STATE

JUDGEMENT

(1.) These appeals are directed against the common judgment passed by the learned Additional Sessions Judge, Delhi in Sessions Case No. 67/2009 on 25.09.2009. The case arose out of FIR No. 368/2005 registered under Sections 302/120B/34 IPC and Sections 25 and 27 of the Arms Act, 1959 at police station Bhajanpura on 03.09.2005. By virtue of the impugned judgment, the appellants Nasir and Rashid in these two appeals were found guilty of committing the offence punishable under Section 302/120B IPC and the appellant Rashid was additionally convicted for the offence punishable under Section 302/120B/34 IPC read with Sections 25 and 27 of the Arms Act, 1959. The appellants were also aggrieved by the order on sentence passed by the learned Additional Sessions Judge, Delhi on 30.09.2009, whereby the appellant Nasir was sentenced to a term of imprisonment for life and to also pay a fine of 5,000/- and in default thereof, to further undergo simple imprisonment for six months in respect of the offence punishable under Sections 302/120B IPC. The appellant Rashid was similarly sentenced to a term of imprisonment for life and was also directed to pay a fine of 5,000/- in default of which, he was to undergo simple imprisonment for six months in respect of the offence punishable under Section 302/120B/34 IPC. The appellant Rashid was further sentenced to undergo rigorous imprisonment for three years and also to pay a fine of 3,000/- and in default of such payment, he was to further undergo simple imprisonment for three months for the offence punishable under Sections 25 and 27 of the Arms Act, 1959. The benefit of Section 428 Cr. P.C was given to the appellants.

(2.) The prosecution s case is that on 02.09.2005 an information had been received by DD No. 25-A through lady constable Babita that a man was lying dead in main Gali No. 1, Noor-E-Elahi Colony. On receipt of the said information, Sub-Inspector Beghraj, Head Constable Jagbir Singh and Constable Bhim Singh reached the spot. Inspector Ombir Singh with driver Kiran Pal and Constable Digamber are also stated to have arrived at the spot. There they found a red motorcycle of the make Hero Honda Splendor bearing registration No. DL-7SL-7186 in front of house No. 95. They also found blood at the spot and a chappal of the left foot lying there. They noticed an empty cartridge lying at some distance. On their arrival at the spot, the police party learnt that the injured had been taken to GTB hospital by a PCR van. Head Constable Jagbir Singh was directed to guard the spot and Inspector Ombir Singh along with other police officials reached at GTB hospital in a government vehicle and obtained the MLC bearing No. B-3262/05 of an unknown person wherein it was stated that the patient was brought dead with an alleged history of a gunshot wound.

(3.) The prosecution s case further is that at GTB hospital, one Smt. Hasiba met the police party and she identified the deceased as her husband. Her statement was allegedly recorded wherein she stated that shortly after 10 pm on 02.09.2005, her husband had received a call on his mobile and on receiving the said call, he immediately left the house on his motorcycle bearing No. DL-7SL-7186. When her husband (Mazhar Hussain) did not return, she made enquiries from her brother-in-law Azhar Hussain, who apparently told her that near Gali No. 1, Noor-E-Elahi Colony, one rider of a red motorcycle has been shot. Thereafter, she along with her brother-in-law (Azhar Hussain) reached the spot and saw the said motorcycle bearing No. DL-7SL-7186 and a chappal of the left foot belonging to her husband lying there. She also came to learn that her husband had already been taken to GTB Hospital and on reaching there she came to know that her husband Mazhar Hussain had died due to receiving gunshot injuries.