MOHD AFSAR Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) THE Appellants Mohd. Afsar and Shahid Ahmed (referred to by their names) have been convicted by the learned Additional Sessions Judge, Delhi for offences punishable under Sections 302/34 IPC and sentenced to undergo life imprisonment, and to pay fine.

(2.) THE prosecution allegations, briefly are that on 02.11.2005, one Rakesh along with his brother Monu visited their sister Renu, who was residing with her husband Subhash at C-18, JJ Colony, Khayala, Delhi. About a month prior to that, Subhash and his friend Abdul and his brothers had quarreled with Shahid and Afsar, due to which Shahid sustained injuries; a case was registered in that regard against accused Subhash and his brother. Due to that quarrel, accused Shahid and Afsar harboured a grudge against Subhash and used to threaten to kill him. On the day of the incident, i.e. 02.11.2005 when they were returning, Subhash came to drop them at Keshopur Depot Bus Stand. THEy drank water outside the depot and later went towards Najafgarh drain to relieve themselves. Afterwards, at about 11.00 PM, when they were returning, Mohd. Afsar went near them, riding a motorcycle; Shahid was seated on the pillion. He drove the motorcycle close to Subhash; Shahid attacked Subhash with a knife, on the back. Both thereafter fled the spot. Rakesh and Monu raised an alarm. THEy stopped a car and took Subhash to the nearby Park Hospital. THEy were asked to take the injured to the DDU Hospital; Rakesh took Subhash to the DDU Hospital, in a TSR, and asked Monu to fetch Renu (Subhash's wife) and bring her to the hospital. In the hospital, Subhash was declared "brought dead". THE statement of Rakesh was recorded by the police; it formed the basis for registration of the FIR. On 03.11.2005, both the accused were arrested, when they were riding a motorcycle. THEir disclosure statements were recorded. That led to the recovery of the dagger used by Shahid to kill Subhash.

(3.) IT was argued that as regards PW-4, the witness deposed on 29.03.2007 under the pressure of the police and identified the accused. He clearly stated that police had asked him to identify the accused persons and he identified them. The police obtained his signatures on the blank papers; he was not a witness to the incident. He also deposed that his signatures were obtained on statements which were not read over to him and that there was no light on the spot. Learned Counsel contended that these showed clearly that there was no eye witness in the case and the two alleged eye-witnesses had not supported the prosecution. Therefore, the accused persons had to be acquitted. Instead, the Trial Court discarded the testimony of PW-4 in the cross examination, and chose to rely only on a portion of the examination in chief. IT was not possible for the Court to do so, when the only other witness had turned hostile. The court's approach amounted to resting the entire conviction on the examination in chief evidence of one witness, who had partly not supported the prosecution, particularly when the other witness did not support the prosecution testimony at all.