Delhi District Court
State vs . Farooq Etc. on 20 May, 2011
State Vs. Farooq etc.
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 80/2008
State Vs. : 1. Farooq
S/o Mohd Umar
R/o Kot Mohalla, Khurja,
Bullandshahar (UP).
2. Mukaram @ Janu
S/o Sh Shamshad Khan
R/o Village Til Begumpur,
P.S Sikandrabad,
DistrictBullandshahar (UP).
3. Mohd Arif
S/o Sh Jumma Khan
R/o Mohalla Sarai Qazi,
Neecha Kot Shahar Kotwali,
Bullandshahar (UP).
4. Safiq@ Peer
S/o Sh Hazi Abdul Karim
R/o Kot Mohalla,
Bullandshahar, Khurja (UP).
SC No. 80/08 1/34
State Vs. Farooq etc.
FIR No. 71/2001
P.S. Sri Niwas Puri
U/s 307/452/34 IPC & 27 Arms Act
Date of Institution : 06/09/2001
Date when arguments
were heard : 04/05/2011
Date of Judgment : 20/05/2011
JUDGMENT
BRIEF FACTS:
Brief resume of the facts of the prosecution case is as follows:
At 10.50 pm on 16/02/2001 wireless message was received at police station Sri Niwas Puri and recorded in DD No. 61 B that at Gandhi Camp, Okhla Depot, house no. 234, a bullet had been fired, a person is injured, from ASI Nageen Bhai. Copy of said daily diary was entrusted to PW21 then ASI C.B Upadhyay who alongwith Ct Hoder, PW11 went to the place of occurrence at Hut No. S53/231, Gandhi Camp II, Sri Niwas Puri where they met Mohd Hakeek who SC No. 80/08 2/34 State Vs. Farooq etc. gave his statement as follows:
First informant Mohd Hakeek stated that he was residing at the given address with his family, engaged in selling vegetables at Subji Mandi, Okhla. At 10.45 pm when he was coming from opposite Subji Mandi to his house and had reached in front of the street of his hut then from the side of mosque the accused namely Farooq, Safiq, Mukrar @ Janu whom he was knowing previously and another person wearing red shirt whom he was not knowing came. Farooq took out a countrymade pistol from pocket of his pant and fired upon Mohd Hakik. As soon as bullet struck Mohd Hakik he ran towards his house in the street raising noise and saw the door of his house closed and entered in the house of his brotherinlaw Rafiq, shouted BachaoBachao upon which his brother in law Rafiq and sister Shakeela came out to save him. Then the four assailants, the chasers, went inside the house, accused Safiq fired bullet upon Mohd Hakik and in order to save Mohd Hakik, his brotherinlaw Rafiq came in front of Hakik and the bullet hit Rafiq. On hearing noise of the bullet and noise of Hakik, people of neighborhood came but the four assailants ran away from the side of mosque. First informant also SC No. 80/08 3/34 State Vs. Farooq etc. stated that about four years ago he had got apprehended accused Farooq and Safiq Peer to police of Khurja and due to said enmity assailants had fired bullet upon him to kill him. First informant stated that his brotherinlaw Rafiq was hit by bullet on forehead and was taken to hospital by the police while on account of the coin being in his pocket, the bullet had skid over the coin and hit him below left chest. PW21 scribed tehrir Ex PW21/C, seized empty cartridge; bullet led from the spot and got case FIR No. 71/01, under Sections 452/307/34 IPC and 27 Arms Act registered at police station Sri Niwas Puri.
On completion of investigation, charge sheet was filed against the accused persons for the offences punishable under Sections 452/307/34 IPC and 25/27 Arms Act.
2. Due to absence of accused Mohd Arif initially his warrants and then proclamation process was issued and he was declared proclaimed offender on 07/03/2003 by the Metropolitan Magistrate.
SC No. 80/08 4/34
State Vs. Farooq etc.
3. On completing the requirements of Section 207 IPC, the case was committed to the Court of Sessions.
CHARGE:
4. Charges for offences under Sections 307/34 IPC and 452/34 IPC against the accused Farooq, Mukram and Safiq @ Peer and for offence under Section 27 Arms Act against accused Farooq were framed by my Ld. Predecessor in terms of order dated 25/03/2004 to which accused persons pleaded not guilty and claimed trial.
5. Pursuant to arrest of accused Mohd Arif, supplementary charge sheet was filed and after compliance of Section 207 Cr.P.C, the same was committed in the court of my Ld. Predecessor. Vide order dated 30/09/2004 charge for offence under Sections 307 read with Section 34 IPC and 452 read with Section 34 IPC was framed against the accused Mohd Arif by my ld. Predecessor to which he pleaded not guilty and claimed trial.
SC No. 80/08 5/34
State Vs. Farooq etc. WITNESSES:
6. To connect the accused with the offences charged, the prosecution has examined in all 22 witnesses. OFFICIAL WITNESSES:
6A(i). PW4 SI Anil Malik in part investigation had arrested accused Safiq on 02/04/2001, prepared his personal search memo Ex PW4/A. 6A(ii). PW5 HC Azad Vir Singh is the duty officer who proved his scribed FIR No. 71/2001 as Ex PW5/A. 6A(iii). PW7 Ct Shiv Dutt accompanied PW9 SI Parveen Kumar on 26/03/2001 and is witness of the arrest of accused Mukram Ali. 6A(iv). PW8 HC Jaiveer Singh accompanied IO PW21 SI C.B Upadhayay on 19/02/2001 to Okhla Mandi where PWs 1,2 and 15 handed over accused Arif to them; accused Arif was arrested and his personal search was conducted vide memo Ex PW2/B. PW8 is also witness to the arrest of accused Safiq @ Peer on 02/04/2001 and his personal search was conducted vide memo Ex PW4/A. PW8 is witness also to alleged disclosure statement Ex PW8/B of accused SC No. 80/08 6/34 State Vs. Farooq etc. Farooq on 09/06/2001 and of alleged recovery of country made pistol Ex PW8/P1 containing cartridge from closed shop no. 218 at Okhla Mandi which shop was got opened by accused Farooq and which countrymade pistol and cartridge were seized vide memo Ex PW8/D. 6A(v). PW10 Ct Ishwar Singh took copy of DD No. 66 B on 16/02/2001 from police station Sri Niwas Puri to spot, gave it to IO where IO recorded statement of Hakik, then prepared rukka which PW10 took to police station for getting the FIR registered and returned back to spot, gave copy of FIR and rukka to IO, where SHO also came. PW10 remained at the spot and IO left for AIIMS. At the spot Crime Team and photographer came. After coming back IO collected the blood sample, bullet lead Ex P3, one empty cartridge Ex P2 and broken bangles Ex P1 from the spot which were seized vide seizure memos Exts PW1/A, PW1/B, PW1/C and PW1/D respectively. Also sketch Ex PW10/A of the empty cartridge and bullet lead was prepared.
6A(vi). PW11 HC Hoder and PW12 SI Kailash Chand were given up by Ld. Addl PP before my Ld. Predecessor as other witnesses qua similar facts were already examined. SC No. 80/08 7/34
State Vs. Farooq etc. 6A(vii) PW13 Ct Yoginder was the photographer in Crime Team who had proved the positives of the photographs of spot as Ex PW13/P4 to P6 and negatives as Ex PW13/P1 to P3. 6A(viii) PW14 Ct Narender Singh accompanied IO PW21 SI C.B Upadhayay on 19/02/2001 to Okhla Mandi and is witness to arrest of accused Arif, his alleged disclosure statement Ex PW8/A and alleged consequential recovery of blood stained shirt Ex PW14/P1 from bush at jungle near Okhla Subji Mandi at instance of accused Arif. 6A(ix) PW16 Ct Surender was posted at PP AIIMS where in the intervening night of 16/17.2.2001 injured Mohd Hakik came to casualty with the alleged history of fire arm injury whose clothes were collected by doctor, kept in a pullanda, sealed with the seal of CMO AIIMS and later on handed over to IO and seized vide memo Ex PW16/A. 6A(x) PW17 SI Kunwar Sahab was the Incharge Crime Team and on direction of IO with his team had visited the place of incident i.e Jhuggi no. S53/231, Gandhi Camp, Sri Niwas Puri in the intervening night of 16/17.02.2001, inspected the site, found blood spots, fired cartridge, fire lead, broken bangles at the spot regarding SC No. 80/08 8/34 State Vs. Farooq etc. which he directed the IO to seize them.
6A(xi) PW19 Inspector Ram Phool, the then SI on 09/06/2001 accompanied IO/ PW21 Inspector C.B Upadhauyay and accused Farooq to Okhla Mandi at shop no. 218 which was closed and which was got opened by accused and from there accused Farooq allegedly got recovered a loaded country made pistol Ex PW8/P1 having live cartridge whose sketch Ex PW8/C was prepared and were sealed in a pullanda and seized vide memo Ex PW8/D. 6A(xii) PW 20 HC Shramanand was posted in PCR South Zone on 16/02/2001 and with other staff had gone to Gandhi Camp, Jhuggi II, Sri Niwas Puri on receipt of information regarding firing, found Mohd Rafiq having fire arm injuries on his head and shifted him to AIIMS Hospital, got him admitted there.
6A(xiii) PW 21 is the investigating officer, now retired SI C.B Upadhayay. PW21 had also tendered FSL report Ex PX in the course of evidence.
MEDICAL EVIDENCE:
6B(i) PW3 Dr. Chitranjan Bahara, Senior Resident, AIIMS, had SC No. 80/08 9/34 State Vs. Farooq etc. proved MLC Ex PW3/A of Rafiq prepared by Dr. Atul Samaiya who had left the hospital and his present whereabouts were not known but his writing and signatures were identified by PW3. The nature of injuries of Rafiq were opined as dangerous as it was observed that bullet was lying just medial to right eyebrow, pierced the skin and just one end of bullet was visible.
6B(ii) PW6 Dr. Vijay Sharma, Assistant Professor, Department of Orthopedics, AIIMS testified of having examined Shakeela, PW1, on 17/02/2001 while working as CMO and had proved his prepared MLC Ex PW6/A opining the injuries i.e multiple pellets seen on dorsum of lower forearm, wrist and right hand which were opined as grievous in nature.
6B(iii) PW18 Dr Mahavir Singh had proved the MLC Ex PW18/A of Hakik who was examined by Dr Thameen on 17/02/2001 in casualty of AIIMS with the alleged history of assault and being shot by a gun at about 10.35 pm while PW18 stated that he identified the writings and signatures of Dr Thameen and was deputed by Medical Superintendent to testify. PW18 also stated that there was abrasion of the dimension of 3 cms X 1.5 cms over the left side of chest of the SC No. 80/08 10/34 State Vs. Farooq etc. patient i.e 2.5 cms below the left nipple, with contusion wound and the injuries were simple in nature. PW18 stated that the MLC was recorded on the basis of information given by patient himself or the person who had brought him and if the history given in MLC is ignored, it is not possible for him to say that the said injuries of abrasion and contusion were suffered by the injured/patient by gun shot, for which only forensic expert can tell.
6B(iv) PW22 Dr. T. Millo testified that he was Senior Resident in Department of Forensic Medicine on 01/05/2001 and MLC dated 17/02/2001 was referred to him by CMO, Casualty for expert opinion on nature of weapon. The patient and the weapon were not brought to PW22 and PW22 gave opinion Ex PW22/A on Ex PW18/A only on examination of MLC that the kind of weapon used was fire arm which was dangerous weapon.
7. The case of prosecution hinges on the material though interested testimonies of PW1 Shakeela; PW2 Mohd Hakik and PW15 Rafiq. Their evidence shall be appreciated in the course of the judgment later.
SC No. 80/08 11/34
State Vs. Farooq etc. STATEMENT OF ACCUSED:
8. The incriminating evidence in the statement of witnesses was explained to the accused persons when they were examined under Section 313 Cr.P.C . The accused persons pleaded innocence and false implication.
8(i) Accused Mukaram @ Janu stated that Hakik was in the habit of demanding money and when it was not paid, he implicated others in false cases.
8(ii) Accused Mohd Arif stated that Hakik was used to consuming liquor and was in the habit of demanding money from him. Accused Mohd Arif stated that he refused to give money to him; Hakik used to take money from the vendors who used to sell vegetables on the side of the road. Accused Mohd Arif also stated that he was also road side vendor, initially he gave Hakik money sometimes but later accused Mohd Arif had refused to pay any money to Hakik and Hakik became inimical and falsely implicated him in this case.
8(iii) Accused Safiq @ Peer stated that Hakik had got bullet injury at Khurja, UP but he did not know who had done so and Hakik SC No. 80/08 12/34 State Vs. Farooq etc. also got false case registered against him and Abdul Hakim and accused Safiq @ Peer was acquitted in that case 8/9 months ago. Accused Safiq further stated that since he had not given any money to Hakik, he falsely implicated Safiq to extract money. DEFENCE EVIDENCE:
8A. Accused persons entered upon into their defence and examined Mohd Umar, father of accused Farooq as DW1, accused Safiq himself as DW2 and accused Farooq himself as DW3. 8A(i) DW1 Mohd Umar testified that the officials of special staff wrongly lifted his son accused Farooq on 25/05/2001, foisted upon him several cases for which he had sent telegrams inter alia to Commissioner of Police, copy Ex DW1/A (colly). 8A(ii) DW2 accused Safiq, under Section 315 Cr.P.C, testified that the complainant Hakik being a man of criminal background; used to threat him if he refuses to pay money, he would get him sent to jail and would falsely implicate accused Safiq in false case. DW2 stated that PW2 had already implicated him in a false case in Delhi as well as in Khurja, U.P while in the case at Khurja he had been SC No. 80/08 13/34 State Vs. Farooq etc. acquitted. DW2 has placed on record and proved the certified copy of the judgment in case FIR No. 411/97, under Section 324 IPC, police station Khurja Nagar, District Bullandshaher. DW2 stated that PW2 had lodged this false case against him. DW2 further stated that complainant Hakik was involved in more than eight cases and had been convicted in case FIR No. 453/03, police station Sarita Vihar, under Sections 458/380/398/342/120B IPC and sentenced for seven years.
8A(iii) DW3 accused Farooq has testified under Section 315 Cr.P.C in corroboration with DW2.
ARGUMENTS:
9. I have heard the arguments of Ld. Addl. PP for the State, Ld. Counsel for the accused and the accused and have perused the record including the evidence and given my thoughts to the rival contentions put forth.
9(i) Ld. Addl. PP argued that in furtherance of their common intention accused after making preparation to cause hurt to Hakik and Rafiq had committed house trespass at the house of Rafiq, PW15 SC No. 80/08 14/34 State Vs. Farooq etc. and caused bullet injuries with intention or knowledge that death of these persons could be caused by their such acts. It was submitted that though PW15 had resiled but it did not directly effect the case of prosecution since on record there is version of PWs 1 and 2, the material witnesses, which in itself proves the commission of offences committed by the accused. Though the cartridge recovered from the scene of crime could not be matched as one fired with the recovered pistol at the instance of accused Farooq but yet the case of prosecution will not be effected as the doctor witnesses have corroborated the fact of injuries on the person of injured and accused are liable to be convicted.
9(ii) Ld. Defence Counsel argued that in terms of lodged report accused Arif was not known and if he was known then there is no reason explained why he was not named in the lodged report; the versions of PWs 1,2 and 15 are different and in contradiction inter se as well as with the presented case of prosecution; PW15 saying two assailants being in muffled face, which was a new version not said by other material witnesses i.e PWs 1 and 2; though material witnesses were knowing accused Mukram previously but accused SC No. 80/08 15/34 State Vs. Farooq etc. Mukram was not identified by PWs 2 and 15; no blood stains or lead was recovered from inside of house of Rafiq though as per the case of prosecution the second shot was fired inside the house of PW15; PWs 1 and 15 are not eye witnesses of the firing of the first shot; PW15 was silent about the injuries sustained by any other person excepting him but says he was fired upon from close range while putting pellet at right eye was not probable in given facts and if he was fired upon from close range, there was no probability of the gun powder from fired bullet having reached the hand of PW1, burning her hand, breaking her bangles; In MLC Ex PW6/A there is mention of presence of multiple pellets, while PW2 is silent about any pellet or any surgery; PW2 alleged that the coin in his pocket saved him from the bullet first fired upon his chest but such coin was not seized and if the version of PW2 would have been correct then such coin must be having gun powder over it and valuable piece in evidence has not been collected which could have been a tool to prove or disprove the version of prosecution or defence; the country made pistol alleged to have been recovered at the instance of accused Farooq did not have characteristics matching with the characteristics of the bullet alleged SC No. 80/08 16/34 State Vs. Farooq etc. to have been recovered from the spot; owner of the place of the recovery of pistol was not examined and accused were not having exclusive access to such place; accused have been falsely implicated with concocted version to settle old scores.
Ld. Defence Counsel prayed for acquittal of the accused as prosecution has miserably failed to prove its case against the accused.
APPRECIATION OF EVIDENCE:
10. PW1 and PW15 are the husband and wife, while PW2 is the brother of PW1. In the absence of corroboration in material particulars from the testimonies of independent witnesses, these interested testimonies are to be scrutinized with utmost care, caution and circumspection, should be free from severe infirmities and material contradictions going to the root of the matter to check the basic version and core of the prosecution case, so as to base conviction of the accused upon them.
11. On scrutiny of these material testimonies, with utmost SC No. 80/08 17/34 State Vs. Farooq etc. care and caution reveals that these material interested witnesses are telling versions differently, in contradiction with each other and inconsistent with the present case of the prosecution.
12. PW1 testified that on 16/02/2001 at 10.30 pm, she was in her home with her husband and child. Then her brother Hakik, PW2 entered in her house shouting BachaoBachao. Behind Hakik four persons entered in their house. Amongst them PW1 was knowing two persons and was not knowing other two persons. PW1 stated that accused Farooq and Safiq were those two persons to whom she was previously knowing. PW1 stated that the other third person who entered her house was also present in the court and she pointed her finger toward accused Mukram Ali. Later, when accused Arif was arrested and then on recall PW1 identified accused Arif. PW1 stated that accused Arif had apprehended her husband, accused Mukram had apprehended PW2 Hakik, accused Farooq apprehended PW1 Shakeela and then accused Safiq said, " Choro Mat Hakik Ko Jaan Se Maar Do." Upon that accused Safiq Peer took out country made pistol, aimed on Hakik, PW1 but in the meanwhile husband of PW1 SC No. 80/08 18/34 State Vs. Farooq etc. got himself separated from the accused wearing red shirt and came in front of PW2 Hakik but till then accused Safiq had fired the shot which hit near eye of husband of PW1 namely PW15 Rafiq. PW1 stated from the gun powder her right hand was burnt and her bangles were broken. PW1 stated that after said assault all the accused ran away from there and Hakik made call to police which arrived at the spot and took PW1 and her husband PW15 to AIIMS. On the next day from the house of PW1 police seized empty cartridge, Ex P2, bullet lead, Ex P3, broken bangles, Ex P1 (colly) and blood sample vide memos Exts PW1/A to PW1/D. Later accused Arif was arrested who was wearing red shirt on the day of occurrence. PW1 also stated that she had heard the sound of first fire and it was thereafter her brother had come inside the house but she could not get any occasion to move outside the house. PW1 elaborated that firstly the accused had apprehended them and then fired shot in the room.
13. PW2 Mohd Hakik deposed that on 16/02/2001 at 10.35 pm when he was returning from Okhla Subji Mandi after closing his shop to his house and had reached near the street of his house then SC No. 80/08 19/34 State Vs. Farooq etc. four arrayed accused came before him; then accused Farooq took out a countrymade pistol, fired at his chest but since he was having some change (money) i.e coin so the lead slipped. As the door of PW2 was closed, so he ran towards the house of his sister PW1 and entered inside it. PW2 immediately told his sister, PW1 and brother in law, PW15, that Farooq had fired at him. Immediately all the four accused persons followed PW2 outside the house, entered inside the house and gave beatings to PW1 and PW15. PW2 stated that accused Safiq told other persons to kill all of them and then immediately accused Safiq took out a country made pistol and aimed it at PW2. In the meanwhile PW15 came in front of PW2 to save him but the bullet hit the forehead of PW2 near his eye. Hearing the sound of fire, neighbors gathered there and on seeing the crowd, all the four accused fled away from the spot. PW2 stated that he came out of the house and informed the police at 100 number. Police came and recorded statement Ex PW2/A of PW2. Police seized the blood lying over the floor, one bullet lead, Ex P3, one empty cartridge, Ex P2 and broken bangles, Ex P1, vide memos Exts PW1/A to PW1/D. PW2 stated that his brother in law PW15 and sister were shifted to hospital by the IO SC No. 80/08 20/34 State Vs. Farooq etc. and he also was shifted to hospital where doctor took his clothes.
PW2 stated that on 19/02/2001 when he was present at Okhla Mandi, police was searching for the accused person wearing red shirt at the time of occurrence then he identified accused Arif who was arrested and his personal search was conducted vide memo Ex PW2/B. PW2 stated that accused fired at him from the distance of one step and the accused had come inside the house within two minutes and had stayed there for three minutes. As per PW2, all accused had entered the house of PW1 simultaneously and before the fire was shot, accused Safiq had said, " Maaro Salon Ko". As per PW2, the shot was fired at the distance of one or two steps and Hathapai i.e grappling had taken place. PW2 stated that PCR had taken him to the hospital while when he had raised the alarm the people of locality had not reached the spot.
14. PW15 Rafiq testified that on 16/02/2001 at about 10.30 pm PW2 Hakik came inside the jhuggi calling save me - save me upon which PW15 came out and one person having red shirt caught hold of PW15, exhorted to kill them. The accused Peerji had fired at SC No. 80/08 21/34 State Vs. Farooq etc. them; fire shot hit PW15 and PW15 fell down on the ground and become unconscious. PW15 stated that there were four persons in all including accused Farooq. As per PW15, he could not identify the other two assailants as they had muffled their faces. Despite cross examination by Ld. Addl. PP, PW15 could not say that accused Arif was the person who was wearing red colour shirt that day. PW15 in the course of his cross examination clarified that pistol was not fired from the distance of four or five feet but it was kept above his right eye below his right eyebrow and fired. PW15 stated that though he had seen the person who fired bullet at him but he had told the name of such person as Peer as said name was told to him by PW2 Mohd Hakik. PW15 stated that the names of the offenders were given to the police by Hakik. PW15 was also not knowing whether police recovered any empty case of bullet or anything else on next day of the occurrence from his home.
15. PW2 admitted of knowing the accused persons since last 20 years and also alleged that previously also the accused persons had fired at him. In the course of defence evidence DW2 SC No. 80/08 22/34 State Vs. Farooq etc. Safiq @ Peer, accused, had proved the certified copy of the judgment of case FIR No. 411/97, under Section 324 IPC, police station Khurja Nagar, District Bullandshaher as Ex DW2/A whose bare perusal reveals of PW2 alongwith his brother Abdul Hamid having got registered the case against accused Safiq @ Peer and one Hakim.
16. Proof of motive by itself may not be a ground to hold the accused guilty. Enmity, as is well known, is a double edged weapon. Whereas existence of a motive on the part of accused may be held to be the reason for committing crime, the same may also lead to false implication. Suspicion against the accused on the basis of their motive to commit the crime cannot by itself lead to a judgment of conviction.
17. In the backdrop of the existence of previous criminal litigation, enmity amongst the accused and the injured party, the narration of sequence of occurrence by the aforesaid material witnesses in contradiction with each other and at variance from the prosecution case bring in existence element of suspicion over the SC No. 80/08 23/34 State Vs. Farooq etc. presented case of prosecution.
18. On one hand, PW1 alleges all the three accused namely Arif, Mukram and Farooq having apprehended PW15, PW2 and PW1 respectively immediately after entering the house of PW1 and PW15. PW15 simply says the person having red shirt had caught hold of him and he did not say as to any other intruder/assailant had caught hold of either PW1 or PW2. Even PW15 does not say of any or all accused having assaulted, given beatings to PW1, PW2 or PW15. PW2 says immediately after the accused persons entered into the house of PW1 and PW15 then they gave beatings to PW2 and PW15. PW1 speaks of accused Safiq having stated at the spot viz her house as, "Choro Mat Hakik Ko Jaan Se Maar Do". PW2 says accused Safiq told other person to kill all of them ie PWs 1,2 and 15. PW15 says the person having red shirt after catching hold of him had exhorted to kill them ie PWs 1,2 and 15. It is the case of the prosecution that at the time of alleged occurrence it was accused Arif who was wearing said red coloured shirt. PW15 did not say of accused Safiq having exhorted any or all other accused to kill or to SC No. 80/08 24/34 State Vs. Farooq etc. cause hurt to PWs1,2 or 15 or all of them. PW15 had stated the pistol was kept above his right eye below his right eyebrow and then fired. PW15 has been categorical by saying the pistol was not fired from distance of four or five feet. MLC Ex PW3/A of PW15 finds mention of alleged history of gun shot wound fired by country made gun from distance of approximately four feet as stated by the patient and the bullet was lying just medial to right eyebrow, pierced the skin and just one end of bullet visible. The name of the assailant is not mentioned in the said MLC Ex PW3/A.
19. In terms of version of PW2, the first shot was fired at his chest by the country made pistol by accused Farooq when he was in the street. PW1 and PW15 are admittedly not the witnesses of said first shot fired. PW2 says that he was having some change (money) viz., the coin, upon which the lead struck and slipped. PW2 had stated that the accused had fired at him from the distance of one step. On the clothes, viz. shirt, sweater, inner T shirt and banian Ex P4/1 to 4 there was only a cut mark and admittedly there were no marks of burning. In terms of the version of PW2 it was the coin in his pocket SC No. 80/08 25/34 State Vs. Farooq etc. which was the object which saved his life from the bullet injuries, so said coin must have got on it some gun powder marks. No such coin had been seized in the course of investigation nor has been produced in the prosecution evidence. Even PW18 Dr. Mahavir Singh admitted that if the history given by patient in the MLC was ignored, it was not possible for him to say that the injuries of abrasion and contusion on the person of PW2 Hakik were suffered by a gun shot. PW22 Dr. T. Millo without examining the patient and the weapon, on mere scrutiny of MLC Ex PW18/A had given the opinion about the kind of weapon used as fire arm. PW2 Hakik testified of the PCR having taken him to the hospital. MLC Ex PW18/A of PW2 Hakik finds mention of Ct Hoder Singh to be the said police official who had taken PW2 to hospital. Said Ct Hodel Singh was not working in PCR but had accompanied PW21 at the spot.
20. As per the version of PWs 1,2 and 15 , the second shot was fired inside the house of PW1 and PW15. As per PWs 1 and 2, accused Safiq had aimed at PW2 Hakik with the country made pistol and before he could fire, PW15 had come in front of PW2 and then SC No. 80/08 26/34 State Vs. Farooq etc. on fire the bullet had hit forehead of PW15 near his eye. PW15 in his entire testimony did not whisper a word that accused Safiq @ Peer had aimed at PW2 upon which he had come in front of PW2 to save him and then the bullet had hit PW15. While PW15 speaks of the two assailants were in muffled faces at the time of occurrence but none of other material eye witnesses ie PW1 or PW2 say so. PW15 did not utter a word of any injury sustained by either PW1 or PW2 or any bangles of PW1 having broken, fallen down on the spot or later having been seized. While PW15 claims that the pistol was kept above his right eye below his right eyebrow and fired but on the other hand PW1 says upon such fire from the gun powder her right hand was burnt and her bangles were broken. If the pistol was fired from a close range, as claimed by PW15, then there was no probability of gun powder reaching right hand of PW1, causing burn injuries on her hand. PW1 was knowing two of the accused previously, PW2 was knowing the accused persons for last 20 years and PW15 was also knowing two of the accused persons prior to occurrence. Yet none amongst the alleged assailants/accused have been named before the doctor conducting the medical examination of PWs 1,2 and 15. SC No. 80/08 27/34
State Vs. Farooq etc.
21. PW1 says that before neighbors arrived at the spot, all the four accused had ran away. PW2 testified that upon hearing the sound of fire, the neighbors gathered there and on having seen such crowd then all the accused fled away from the spot. None amongst any neighbor of PWs 1,2 and 15 was joined in investigation, at the time of occurrence or at the time of alleged recovery of ammunition or broken bangles from the alleged scene of crime. In terms of the testimonies of these material witnesses of occurrence, the scene of crime where the second shot was fired was inside the house of PW1 and PW15. Adverting to the site plan Ex PW21/D reveals of the places mentioned there as Marks C,D and E to be places where empty cartridge, bullet lead were recovered and blood stains were found. These depicted places Marks C,D and E were not inside the house of PW1 and PW15. Mark C was in the street while Mark D and E were outside the house of PW15 and PW1. Though PW1 and PW15 claim having sustained injuries by gun powder and gun shot respectively inside their house in the room but yet inside the house of PW1 and PW15, as per the site plan Ex PW21/D, no blood stains were found. SC No. 80/08 28/34
State Vs. Farooq etc.
22. Recovery of the stated country made pistol Ex PW8/P1 having cartridge Ex P2 is alleged by PW21, PW19 and PW8 to have been effected at the instance of accused Farooq from a closed shop no. 218 at Okhla Mandi. These PWs 8, 19 and 21 alleged that accused Farooq had led them on 09/06/2001 to said closed placed where the accused got opened the said hotel/shop. It is no where explained in the prosecution evidence as to how the accused had got opened the said closed place from where the said arm and ammunition were recovered. For search of the said closed place for recovery of the arm and ammunition at the instance of accused Farooq pursuant to his alleged disclosure statement Ex PW8/B, no independent witness of the locality or any other public person has been joined in said search and seizure of the said case property. These aforesaid witnesses of recovery viz. PWs 8,19 and 21 have testified that the accused had got opened the said shop and they have not deposed of the said shop having any broken window or by entering into said broken window by accused followed by these PWs such recovery of said arm and ammunition was effected. The seizure memo Ex PW8/D finds mention of accused Farooq in police custody having led these SC No. 80/08 29/34 State Vs. Farooq etc. PWs 8,19 and 21 inside the said shop from the broken window and having got recovered the said case property from a polythene buried under waste material.
23. On examination of the alleged recovered country made pistol Ex PW8/P1 and cartridge Ex P2, it was opined by the forensic expert in the report Ex PX that the individual characteristics marks of test fired cartridge from the countrymade pistol Ex PW8/P1 when compared with the individual characteristics, marks of the cartridge case, allegedly recovered from the spot were not found identical and so opinion was that the cartridge Ex P2 allegedly recovered from the spot was not fired through the country made pistol .315 bore Ex PW8/P1.
24. In the case of Durbal vs State of U.P, 2011 (I) JCC 475, it was held that for the purpose of evaluating and appreciating the evidence, the sequence of events can not be ignored.
25. In case of Mohan Lal @ Tony & Ors. vs. State (NCT SC No. 80/08 30/34 State Vs. Farooq etc. of Delhi) , 2009 (4) JCC 2824, it was held that "It is no doubt true that a great weight is to be given to the testimony of an injured witness. The reason being that such a witness would not ordinarily screen the real offender and involve in his place an innocent person. But this principle, that a person can be convicted on the basis of the sole testimony of an injured witness, would apply to a witness whose testimony is trustworthy and wholly reliable. If it is shown that there is material infirmity and falsehood impregnated in the evidence of such a witness, it would not be safe to convict an accused solely on the evidence of an injured witness without independent corroboration by material evidence.
Reliance was also placed upon observations in Hari Har vs State of UP, 1971 Cri.L.J. 1578 (All.) paragraph 5 at page 1580; Vijai Shanker Misra vs. State 1984 All. L.J. 1316 paragraph 22 at page 1323; L.L Kale vs. State of Maharashtra & Ors. (2000) 1 SCC 295 paragraph 8 & 9 at page 298300 and Desraj vs State 1969, ALJ 784.
26. From the material on record including the MLC of PW2 Hakik and his medical treatment papers and clothes, it was observed that there were no burn injuries noticed upon the clothes of PW2 which were only finding cut marks while he alleged of the coin in his SC No. 80/08 31/34 State Vs. Farooq etc. pocket had come in the way of bullet fired at him and the bullet having grazed his chest portion causing abrasions.
27. In case of Sumersinh Umedsinh Rajput @ Sumersinh vs. State of Gujarat, 2008 (1) JCC 262, it was inter alia observed that when the bullet injuries are caused on the person of injured and the bullet pierces the clothes of the injured then there is every likelihood of presence of burn injuries on the clothes.
28. From material contradictions and infirmities emanating out of testimonies of material interested witnesses PWs 1,2 and 15, their narrating versions not only inconsistent with each other but at variance with the prosecution case, bring them into the category of neither wholly reliable witnesses nor wholly unreliable witnesses as categorized in the case of Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614.
29. In "Ugar Ahir v. State of Bihar,"AIR 1965 SUPREME COURT 277, it was held that SC No. 80/08 32/34 State Vs. Farooq etc. ''It is the duty of the Court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.'' The substratum of the prosecution case has several holes which cannot be plugged. No new story can be reconstructed by this court.
The elicited intrinsic circumstances speak volumes against the prosecution case and raise considerable amount of suspicion in mind regarding the complicity of the accused in the commission of alleged offences.
Even falsehood is sometimes given an adroit appearance of truth, so that truth disappears and falsehood comes on the surface. This appears to be one of those cases.
The aforesaid infirmities in the background of admitted animosity between the parties renders the prosecution version unacceptable.
30. Relying upon the law laid and elicited in the preceding SC No. 80/08 33/34 State Vs. Farooq etc. paragraphs, there is every likelihood of framing of the accused persons and falsely implicating them by the complainant party on account of previous enmity and on the evidence adduced one of the view possible is of the innocence of the accused. In view of above discussion, I am of the considered opinion that the prosecution has not been able to prove its case against the accused beyond reasonable doubt. Accused are given benefit of doubt and are acquitted for the offences charged. Bail bonds of accused who are on bail are cancelled, sureties are discharged. Superintendent Jail Bullandshahar is directed to release the accused Farooq if not required in any other case. Superintendent Jail Meerut is directed to release the accused Mohd Arif if not required in any other case. File be consigned to the record room.
Announced in the open court (GURVINDER PAL SINGH)
on dated 20/05/2011 ASJ (FTC)/SD/ NEW DELHI.
SC No. 80/08 34/34