Delhi District Court
State vs . Jakam @ Nazmul Hussain S/O Samsud ... on 15 September, 2011
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IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGECUM
ADDITIONAL SESSIONS JUDGE : INCHARGENE DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 41/11
Unique Case ID No. 02402R0158562011
State Vs. Jakam @ Nazmul Hussain S/o Samsud Hussain, R/o
C217, Gali No.9/5, Akhare Wale Gali, Maujpur,
Jafrabad, Delhi.
FIR No. 11/11
PS New Usmanpur
U/s 326/34 IPC & 27 Arms Act.
Date of Institution : 18.07.2011
Date of Reserving for Order : 15.09.2011
Date of Pronouncement : 15.09.2011
J U D G E M E N T : Prosecution's case emanates from the fact that on 14.01.2011 at about 8 or 8.30pm, Harish Chand was sitting outside his shop, that is, X9/57, opposite Moni Baba Mandir, Brahampuri, Delhi. Two boys came in front of him and directed him not to move and asked him to took out whatever he had with him. One of the boys was holding revolver in his hands, fired at Harish, as a result of which latter sustained bullet injuries on left side of the chest. On hearing the bang of gun shot, Chand an employee of Harish came out from the shop and found Harish in injured condition. Harish was removed to GTB Hospital. On this S.C. No. 41/11 Page 1/11 2 information, DD No.79B was recorded. SI Vikrant made endorsement on the same and got the case registered. Investigation was taken up. During the course of investigation, accused Jakam and Jafar Abbas were arrested. However, accused Jafar Abbas was found to be juvenile and as such was sent to Juvenile Justice Board. Investigation culminated into a charge sheet against accused Jakam.
2. Charge for offence punishable under section 307 read with section 34 IPC was framed against the accused, to which charge he pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Harish Chand Jain (PW1), Dr. Sushma (PW2), Chand (PW3), HC Pratap Singh (PW4) and SI Vikrant (PW5) in the case.
4. PW1 Harish Chand Jain is the injured himself. He deposed that on 14.01.2011 at about 8 or 8.30pm, he was sitting outside his shop at X9/57, opposite Moni Baba Mandir, Brahampuri, Delhi. Two boys came in front of him. One of them pointed out revolver towards him and directed him not to move and to take out whatever he had. The other boy put his hand in the pocket of his shirt and took out money and some papers. The boy who was holding revolver in his hand fired at him and he sustained bullet injury on left side of his chest. Thereafter, they ran away on the motorcycle. He could not identify the accused as he could not see him. He S.C. No. 41/11 Page 2/11 3 was taken to Govt. Hospital at Shastri Park, Gautampuri, Delhi by his son on his reaching at his house. Police officials had come at the aforesaid hospital. They took him to GTB Hospital as his condition was serious. He remained admitted in the hospital for about five days. His wearing clothes having blood stains and gun shot were taken in the hospital. He identified his sweater Ex.P1, shirt Ex.P2 and baniyan Ex.P3 to be the same which were worn by him at the time of incident. He had also participated in TIP proceedings, but could not identify the accused among 1012 boys standing in the queue. However, when this witness did not divulge true facts, then he was grilled by ld. public prosecutor.
PW2 Dr. Sushma deposed that on 14.01.2011 at about 9.25pm, injured Harish Chand Jain was brought by SI Sidh Nath with alleged history of fire arm injury. She medically examined him. She recorded general condition of the patient, who was oriented and conscious. Injured was unfit to make his statement. On local examination two inverted wounds wee found on the person of injured. Details of injuries were mentioned in MLC Ex.PW2/A. Injured was immediately referred and handed over to SR Surgery after giving first aid. Four clothes of injured having blood stains were taken, sealed and handed over to duty constable along with sample seal.
PW3 Chand unfolds that during those days when incident took S.C. No. 41/11 Page 3/11 4 place, he was doing his job at the shop of PW1 Harish Chand Jain. He did not remember the date and month. However, the incident had taken place in the year, 2011 itself. On the day of incident at about 8.30pm, he was present inside the shop of PW1 i.e. X9/57, opposite Moni Baba Mandir, Brahampuri, Delhi. He had heard bang of gun shot and he came out from his shop. He found his employer was lying on road in front of their shop in injured condition. He had not seen any assailant. He did not know the other facts of the case. This witness too was grilled by ld. Prosecutor for not giving true account of the incident.
PW4 HC Pratap Singh was working as duty officer from 12 mid night to 8am on 14.01.2011. During his duty, at about 12.40 in the night, rukka recorded by SI Vikrant Sharma Ex.PW4/A was presented before him through Constable Pankaj. Upon which he got typed FIR of the case through computer operator, which was checked and tallied by him. On being found correct, he put his signature on FIR Ex.PW4/B at point A. Investigation of the case was assigned to SI Vikrant Sharma. Rukka along with copy of FIR was sent to him through Constable Pankaj. He had also recorded DD No.25A regarding registration of FIR.
PW5 SI Vikrant conducted investigation of the case. On the intervening night of 14/15.01.2011 he was posted as SI at PS New Usmanpur. On that day at about 8.55pm, duty officer entrusted him DD S.C. No. 41/11 Page 4/11 5 No.79B Ex.PW5/A regarding the fact that three persons who had come on a motorcycle fired gun shot to a person at Block, Moni Baba Madir, Brahampuri, Delhi. On receiving of the aforesaid DD, he along with Constable Pankaj went to the aforesaid spot andon reaching there, he came to know that two persons had fired towards a person, namely, Harish Chand Jain, who was having a grocery shop in his house and he also came to know that injured had been removed to hospital. No eye witness met him at the spot. No blood was lying at the spot. No empty case or bullet were lying at the spot. Meanwhile beat constable Ved Prakash and mobile 22 motorcycle also reached at the spot. He instructed them to remain at the spot for safeguards. He along with Constable Pankaj went to GTB Hospital where one Harish was found admitted vide MLC No.C168/11. The injured was unfit for statement and there was wound on the left side below the shoulder towards chest. No eye witness met him in the hospital. He waited for injured for gaining his consciousness. After that he made endorsement Ex.PW5/B on DD No. 79B and he prepared the rukka and same was handed over to Constable Pankaj for getting the FIR registered, who took it to the PS and came back to GTB Hospital with copy of FIR Ex.PW4/B with original rukka and the same was handed over to Constable Pankaj for getting the FIR registered, who took it to the PS and came back to GTB Hospital with copy of FIR S.C. No. 41/11 Page 5/11 6 Ex.PW4/B with original rukka and same was handed over to him. After that he went to spot, that is, house No. X9/57, opposite Moni Baba Mandir, Brahampuri, Delhi. Till that time injured was unconscious. After reaching at the spot, he came to know that Inspector Arjun Singh had called the crime team and they had inspected the spot and had left the spot after inspecting the same. He made interrogation from Chand employee of injured. He prepared site plan Ex.PW5/C at the instance of chand. He recorded statement of Chand. He made interrogation from the nearby persons. After that they came back to PS and he recorded statement of witnesses.
On 16.01.2011 he along with Constable Pankaj went to GTB Hospital where the duty Constable handed over him three sealed pullandas sealed with the seal of GTB hospital, having blood stained sweater of injured, blood stained shirt and blood stained vest and underwear of injured along with its sample seal. He took the aforesaid articles into possession vide memo Ex.PW5/D. He recorded the statement of injured Harish. He deposited the case property with the MHC(M). He recorded the statements of witnesses. On 19.01.11 SI Sunil handed over him the disclosure statement of Jaffar Abbas, who was arrested in FIR No. 15/11, u/s Arms Act at PS New Usmanpur in which he disclosed regarding involvement in this case along with his coaccused Jakam and his friend. S.C. No. 41/11 Page 6/11
7 He made interrogation from accused Jafar. He arrested him vide his arrest memo mark B. He prepared his personal search memo Mark C. He also recorded the disclosure statement of accused Jafar Mark D. Accused Jafar Abbas was produced before the Court concerned where mothero f accused produced a birth certificate and on the basis of this certificate he was produced before the JJB. He also prepared pointing out memo at the instance of accused Jafar Abbas. On 21.01.11, he moved an application for conducting judicial TIP of accused Jafar Abbas. On 17.02.2011, accused Jafar Abbas did not want to join TIP proceedings. On 07.03.2011 he got issued NBW of accused Jakam @ Nazmul Hussain. On 12.03.2011 on the secret information, accused Jakam @ Nazul Hussain was apprehended from zero pusta Usmanpur. Accused Jakam was arrested vide arrest memo Ex.PW5/E and his personal search memo was prepared vide memo Ex.PW5/F. He made interrogation from accused Jakam. He recorded his disclosure statement Ex.PW5/G and pointing out memo Ex.PW5/H was also prepared at his instance. On 15.03.2011, he moved an application Ex.PW5/A before Sh. Jitender Singh, ld. Metropolitan Magistrate, for TIP of accused Jakam and same was marked to Ms. Suchi Laler, ld. Metropolitan Magistrate, who fixed the said application for 21.03.2011. On 21.03.2011 he along with complainant went to Tihar Jail, where TIP proceedings Ex.PW5/J of accused Jakam was conducted by S.C. No. 41/11 Page 7/11 8 Ms. Suchi Laler. He also obtained copy of TIP proceedings. He searched for accused Gulfam, but he could not be arrested. He also obtained final opinion regarding the nature of injuries on MLC Ex.W2/A. He completed investigation, prepared the challan and same was filed before the Court.
5. In order to afford an opportunity to explain circumstances appearing in evidence against the accused, he was examined under section 313 Cr.P.C. He had denied all the allegations levelled against him. His case has been of denial simpliciter. He claimed himself to be innocent. However, he opted not to lead any evidence in his defence.
6. I have heard Sh. Ravinder Khandelwal, ld. Public Prosecutor for the State, and Sh. Ravinder Kumar, Advocate, for the accused and have perused the record.
7. From testimony of Sh. Harish Chand Jain, it stands established beyond reasonable doubt that on 14.01.11, he was sitting outside his shop at X9/57, opposite Moni Baba Mandir, Brahampuri, Delhi. Two boys came in front of him. One of the boy pointed revolver towards him directing him not to move. The other boy put hand in his shirt's pocket and took out money and some papers. Thereafter, the boy who was holding revolver in his hand fired at him, as a result of which he sustained injuries on left side of his chest. He was taken to a government hospital at Shastri Park, Gautampuri, Delhi by his son, and thereafter to GTB Hospital. At GTB S.C. No. 41/11 Page 8/11 9 Hospital, he was medically examined by Dr. Sushma (PW2), who on medical examination found two inverted wounds and then she referred him to SR surgery.
8. The crucial question for consideration, however, is as to who fired bullet on the person of Harish Chand Jain. In this regard, the material witness was Harish Chand Jain himself. However, testimony of this witness is quite shaky in regard to identity of the assailants, inasmuch as, in examinationinchief he deposed that he cannot identify the accused as he could not see him. Thereafter, he was crossexamined by the ld. Public Prosecutor and in crossexamination he could not say with certainty whether accused was the same person, who pointed country made katta towards him, and thereafter fired at him. He further deposed that although he had joined the TIP proceedings, however, even at that time he had stated that he was not sure about the identity of the accused. Despite crossexamination, nothing favourable to the prosecution could be culled out from testimony of this witness in order to fasten liability on the part of the accused.
9. The other witness was Chand (PW3), an employee of Harish Chand Jain. However, this witness has also not supported the case of prosecution by deposing that at the time of incident he was inside the shop and on hearing bang of gun shot, he came out of the shop and found S.C. No. 41/11 Page 9/11 10 his employer lying on the road in injured condition. He could not see the assailants. This witness was also crossexamined by the ld. Public Prosecutor and in crossexamination he denied that he had seen accused along with one other assailant grappling with his employer Harish Chand Jain or that accused had fired at Harish Chand Jain, and thereafter he ran away from the spot.
10. According to SI Vikrant, during the course of investigation, he had moved an application Ex.PW5/A for conducting Test Identification Parade of the accused before Sh. Jitender Singh, ld. Metropolitan Magistrate. TIP of the accused was conducted by Ms. Suchi Laler, ld. Metropolitan Magistrate, and as per TIP proceedings Ex.PW5/J even at that time accused was not sure as to whether accused standing at Sr. No.2 from left side was the person, who had fired at him, inasmuch as, he stated that he saw that boy for one and half minute, therefore he could not confirm whether that boy was standing at Sr. No.2 from the left side. Meaning thereby, neither in TIP proceedings nor before the Court the witness could with certainty point out his finger towards accused being the culprit. Besides that there is no other incriminating piece of evidence against the accused, inasmuch as, it was admitted by the investigating officer of the case in crossexamination that no recovery was effected from this accused.
S.C. No. 41/11 Page 10/11
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11. Result of the aforesaid discussion is that identity of the accused being assailant of the crime is not established beyond reasonable doubt. It is settled principle of criminal jurisprudence that onus to prove its case beyond reasonable doubt lies upon the prosecution only. In case of any doubt, the accused is entitled to benefit of the same. Keeping in view the fact that in the instant case identity of the accused is not proved beyond shadow of reasonable doubt, prosecution cannot be said to bring home guilt of the accused beyond reasonable doubt. That being so, accused is entitled to benefit of the doubt. He is, accordingly, acquitted of the charge. He be set at liberty, if not wanted in any other case. However, in compliance of provisions of section 437A Cr.P.C., he is directed to furnish a personal bond in the sum of Rs.7,000/ with one surety of the like amount, which shall remain in force for a period of six months. File be consigned to Record Room.
Announced in the Open Court (Sunita Gupta)
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On this 15 day of September, 2011. District JudgecumASJ, InchargeNE, Karkardooma Courts, Delhi.
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