Crl.L.P.No.60/2010 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : 6th April, 2010 + Crl.L.P.No.60/2010 STATE GOVT. OF NCT OF DELHI ..... Petitioner Through: Mr.M.N.Dudeja, APP versus TAHIR @ YAMIN & ANR. ..... Respondents Through: None. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest?Yes PRADEEP NANDRAJOG, J. (Oral) Crl.L.P.No.60/2010 & Crl.M.A.No.2620/2010 1. Vide Crl.M.A.No.2620/2010, delay of 62 days in seeking Leave To Appeal against the judgment and order dated 03.10.2009 has been prayed for. 2. Needless to state, if cause being pursued by the State is a worthy cause, delay in seeking Leave To Appeal needs to be condoned. Thus, we have proceeded to consider the cause advanced by the State in seeking Leave To Appeal. 3. As per the prosecution, one Ajam (PO) had developed illicit relationship with one Sanjida, who was the Crl.L.P.No.60/2010 Page 2 of 5 sister-in-law of the mother of the deceased boy named Nanhey. Nanhey had become a thorn in the eyes of Ajam, who hatched a conspiracy to get rid of Nanhey. In furtherance of the conspiracy Shahnawaj @ Sonu, Tahir @ Yamin, Wasim @ Munna enticed away Nanhey on 21.05.2004 and murdered him. 4. Whereas Ajam fled from justice Shahnawaj, Tahir and Wasim were put up for trial. 5. Vide impugned judgment and order dated 03.10.2009, Shahnawaj @ Sonu has been convicted on account of the fact that the learned trial judge has held that as regards him the chain of circumstantial evidence was complete wherefrom his guilt could be inferred. 6. Co-accused Tahir and Wasim have been acquitted. The State has sought Leave To Appeal in so far as Tahir and Wasim have been acquitted. 7. Incriminating evidence sought to be led against Tahir and Wasim was through the testimony of Mohd.Nasir PW- 6, who deposed that on 18.05.2004 at about 7:00 PM he heard in the public street Ajam telling Shahnawaj, Tahir and Wasim that Nanhey was proving to be a thorn in his plans and should be removed. He claimed that accused Tahir and Shahnawaj told Ajam in his presence that needful would be done. 8. Another piece of incriminating evidence sought to Crl.L.P.No.60/2010 Page 3 of 5 be led against Tahir and Wasim was through the testimony of Ahmad Ali PW-2 who claimed that on 21.05.2004 at about 8:00 PM he had seen Nanhey holding the hand of Shahnawaj, both were proceeding towards Janta Colony and at that time he saw Tahir and Wasim walking behind. 9. Lastly, Farida PW-1 mother of Nanhey deposed that about 8 months prior to the date of incident a quarrel had ensued between her sons Sunny and Nanhey with Tahir, who had threatened to finish her sons. 10. With respect to the testimony of Farida PW-1, in so far she referred to a fight which had taken place between her sons and Tahir about eight months ago, finding returned is that it is too distant in the past for holding against Tahir that he had a motive to kill Nanhey. 11. As regards the testimony of Ahmad Ali, learned trial judge has held that the mere fact that Tahir and Wasim were walking on the street and in front of them Shahnawaj and Nanhey were walking, would not lead to any inference of guilt against Tahir and Wasim. 12. As regards the testimony of Mohd.Nasim, the learned trial judge has discussed the same in para 32 of the judgment as under:- “This witness had heard the conversation on 18.05.04 and he came to know on 22.05.04 that a dead body of the child has been found and that child was Nanhey despite that he came on 27.05.04 and told Farida about Crl.L.P.No.60/2010 Page 4 of 5 this fact. Further, in his cross-examination, he denies this fact and stated that he does not know on 22.05.04 that Nanhey was the son of Farida. He came to know this fact on 25.05.04. On 25.05.04, he does not go to her or to the police. PW Mohd. Nasir is a property dealer living in the same Mohalla. He knows the accused persons who are the residents of the same mohalla and also the deceased is the resident of the same mohalla, despite, that he does not attended the last rites of the deceased and despite living in the same mohalla, he does not know that Nanhey was the son of Farida. The conduct of this witness is very unnatural and his testimony does not inspire confidence. It is also highly unlikely that the persons conspiring together will speak at a public place in a street which is used by the public as a thorough-fare to discuss the plan to get rid off child that to in a normal voice audible to others. In the manner, his statement was recorded by the police after a gap of 5 days, I am of the opinion that his testimony cannot be relied upon to hold that the witness had heard Ajam, Sahnawaj and Tahir conspiring together to finish the minor child Nanhey.” 13. In our opinion the appreciation of the testimony of the three witnesses of the prosecution by the learned trial judge does not suffer from any infirmity. 14. Indeed, Mohd.Nasir PW-6 is a most uninspiring witness. We reiterate the sound reasoning advanced by the learned trial judge to hold that Mohd.Nasir is a witness of no worthy credits. 15. We also concur with the view taken by the learned trial judge with respect to the appreciation of the testimony of PW-1 and PW-2. 16. Suffice would it be record that where the view taken by the learned trial judge is a reasonable and probable view, merely because some other view is also a possible view, would Crl.L.P.No.60/2010 Page 5 of 5 not justify inference by the Appellate Court. 17. We conclude by holding that the State has not been able to show to us that there is any infirmity in the reasoning of the learned trial judge in so far as Tahir and Wasim have been acquitted. 18. The petition seeking Leave To Appeal as also Crl.M.A.No.2620/2010 are dismissed. PRADEEP NANDRAJOG, J SURESH KAIT, J APRIL 06, 2010 ‘mr’