Dr. S. Muralidhar, J.

Introduction

1. 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.

2. 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.

3. 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

4. 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.

5. 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.

6. 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 gali kuppe wali 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.

7. 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 tum jao mujhe is se akele main aakhri baar baat karni hai’. 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 t