Delhi District Court
State vs Mohd. Faizan on 29 July, 2024
IN THE COURT OF SH. VISHAL SINGH, ADDITIONAL
SESSIONS JUDGE-05: SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI
CNR No. DLSE01-004856-2021
SC No. 228/2021
FIR No. 295/2020
U/S. 302/34 IPC
PS : SHAHEEN BAGH
STATE Vs. MOHD. FAIZAN & ORS.
JUDGMENT
1. Sr. No. of the case : 228/2021. 2. Date of Committal to Sessions : 11.06.2021. 3. Name of the complainant : Mohd. Nadeem Ali.
4. Date of Commission of Offence : 26.11.2020.
5. Name and Parentage of Accused : (i) Mohd. Faizan S/o. Umar Mohd.
R/o. N-125/B, Abul Fazal Enclave-I, Delhi.
: (ii) Mohd. Usman S/o. Mohd. Khalid R/o. N-147, Abul Fazal Enclave-1, Delhi.
: (iii) Jaheer Mansoori S/o. Javed Mansoori R/o. FA-11, Abul Fazal Enclave-1, Delhi.
SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.1 of 34
6. Offence Complained of : U/s. 302/34 IPC.
7. Offence Charged : U/s. 302/34 IPC.
8. Plea of Guilt : Not guilty.
9. Final Order : Acquitted.
10. Date on which Order Reserved : 02.07.2024.
11. Date on which Order Announced : 29.07.2024.
BRIEF FACTS AND REASONS FOR DECISION:
1. The case against accused Mohd. Faizan, Mohd.Usman and Jaheer Mansoori is that on 26/11/2020, at about 08:00PM, near Thokar No.06, Shaheen Bagh, New Delhi, all of them, in furtherance of their common intention, murdered victim Siddik Sekh by inflicting multiple injuries on his head, chest and abdomen as well as other body parts with brick and iron rod (skewer). On the statement of complainant Mohd. Nadeem Ali, accused Mohd. Faizan, Mohd. Usman and Jaheer Mansoori were arrested on 27/11/2020. On completion of investigation, the charge sheet was filed for offence U/s. 302/34 IPC.
2. Detailed arguments on charge were heard from Ld. Defence Counsel and Ld. Addl. PP for State. Vide order dated 02/12/2021, the Court charged the accused persons for offence U/s. 302/34 IPC, for which they pleaded not guilty to the charge and preferred trial.
3. The prosecution led evidence and examined 08 witnesses to bring home the charged offence against the accused persons.
SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
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4.(a) PW1 Mohd. Shamshad deposed that he used to run a paan-
bidi rehri near corner of footpath at Thokar No.6, Shaheen Bagh, New Delhi, since 2019. He deposed that he did not remember the date, however, the incident happened in November-2020 when customers were standing at his shop and he heard noise ' mobile cheena hai, mobile cheena hai'. He deposed that there was crowd and a scuffle was going on towards the place of noise. He deposed that while scuffling with each other, the crowd came near to his shop and one Nadeem, whom he knew, asked him for help, however, he did not get down from his shop. He deposed that the public persons helped Nadeem, and, thereafter, Nadeem and the crowd proceeded towards Al-Yamin Restaurant. He deposed that after five minutes, the crowd was seen disbursing, whereas, the persons who were quarreling with Nadeem went towards gali no.5. He deposed that police inquired from him at police station in evening and showed him some persons, whom he identified as the persons who were quarreling with Nadeem. However, PW1 did not identify the said persons in Court and stated that police showed him some persons at police station and told him that they were the same persons who were quarreling with Nadeem. Since PW1 resiled from his statement recorded U/s. 161 CrPC, Ld. Addl. PP cross examined him.
4.(b) In cross-examination by Ld. Addl. PP, PW1 admitted that the incident occurred on 26/11/2020, at about 08:15PM. He admitted that one boy was pulling a person towards Thokar No.6, whereas, three boys were pulling the said person towards Yamuna Pushta and, thereafter, they came near to his shop. He SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.3 of 34 admitted that Nadeem was pulling one aged person to help him, whereas, one person who wore a black jacket and black pant was pulling the said aged person towards him and was assaulting him. He admitted that Nadeem took the aged person towards Al- Yamin Restaurant. He denied the suggestion that the person who wore black jacket and pant alongwith his two associates brought two iron rods (skewer that is used to hold pieces of meat or vegetables) from Kabab Bhatti and went towards Al-Yamin Restaurant. He denied the suggestion that he saw them arguing with the owner of Kabab Bhatti. He voluntarily stated that he saw them while they were returning from the restaurant side having iron sticks and were going towards gali no.5. He denied the suggestion that he identified the said persons at police station as the same persons who assaulted the aged person and a boy near his shop. He voluntarily stated that the police officials told him about the said persons at police station. He denied the suggestion that he identified the clothes of said persons as the same that they wore on the day of incident. He denied the suggestion that he identified accused Faizan as the person who picked iron sticks (skewer) from Kabab Bhatti. He admitted that he came to know the names of accused Jaheer Mansoori and Mohd. Usman from police. On being pointed out towards the accused persons by Ld. Addl. PP, PW1 identified accused Mohd. Faizan, Mohd. Usman and Jaheer Mansoori as the same persons whom he saw with the crowd returning from Al-Yamin Restaurant and going towards gali no.5. He replied that he did not see any iron rod in their hands at that time. He denied the suggestion that he saw the accused persons quarreling and assaulting Nadeem as well as one SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.4 of 34 aged person. He denied the suggestion that he intentionally did not identify the accused persons and deposed falsely being won over by them.
4.(c) In cross-examination by Ld. Defence Counsel, PW1 admitted that he did not see the persons who were quarreling and only saw the crowd consisting of about 250 people. He replied that except Nadeem, he could not identify any person who accompanied the crowd.
5.(a) PW2/complainant Mohd. Nadeem deposed that on 26/11/2020, at about 07:30PM - 08:00PM, when he alongwith Siddik, who used to work as labourer and resided in Shaheen Public School, was sitting in front of Thokar No.6 situated within premises of Yamuna River, three persons came there. Because of darkness, they got afraid and tried to leave from there. He deposed that the offenders tried to catch him but he rescued himself, reached near the gate and shouted for helped. He stated that in the darkness he saw the said three persons assaulting Siddik on his head with bricks, and on seeing him shouting, the offenders left Siddik. He deposed that when he and Siddik crossed the road, all three offenders started troubling them by catching hold of them. He deposed that the public persons helped them and they went from there. However, when they reached near Al-Yamin Restaurant, they came to know that the said three offenders were following them, he went in the street where the restaurant was situated. One of the offenders followed him, however, he hid himself in a toilet. He deposed that after 40-50 seconds he came out of the toilet and saw that public persons SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.5 of 34 were helping Siddik. He deposed that he took Siddik to his room and went out for taking pain killer (medicine) and biryani for him, but when he returned Siddik had gone to his room at Shaheen Public School. He deposed that he went inside and saw that Siddik was suffering from lot of pain. He deposed that he alongwith driver of Shaheen Public School took Siddik to a doctor at Cribs Hospital, however, the doctor asked them to go to some big hospital and, thereafter, they called ambulance, but it did not come. Thereafter, he hired a rickshaw and took Siddik to Alshifa Hospital, where the doctor declared Siddik as brought dead. He deposed that police visited Alshifa Hospital, made inquiry from him, recorded his statement Ex. PW1/A and obtained his signature on few blank papers, however, he did not remember if police obtained his signatures on blank papers or on his statement that he gave to police. He deposed that police took him to the spot, where police found slippers of Siddik, however, he did not remember if they were seized by police or not. He deposed that on next day he handed over his clothes that were having blood stains of Siddik to police. He deposed that police apprehended the said three persons, however, they were not apprehended in his presence. He admitted his signatures at point 'A' on documents Ex. PW1/C to Ex. PW1/G, but denied having knowledge of their contents. He stated that his signatures might have come on documents Ex. PW1/C to PW1/G as police obtained his signatures on some blank papers. He did not identify the accused persons as the offenders. He identified the blue and white T-shirt as well as light green colour sweater Ex. P-1 (Colly.) as having belonged to him and that he handed over to SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.6 of 34 police. One pair of slipper, sealed in a pullanda with the seal of RC, Ex. P-2, was also produced by MHC(M), however, PW1 stated that he could not say if it belonged to Siddik or not.
5.(b) The CCTV footage kept in Pen Drive Ex. P-1 in Folder Number of CH-11, having video No. CH11_26-11- 2020_193147_26-11-2020_203854_ID10634 was played on computer of the Court from 20:29 onwards, on seeing which the witness stated that some boys were running one after the another and were returning, however, he did not identify anyone.
5.(c) The Court observed that in CCTV footage few persons were seen running with their back being visible. At around 20:32 onwards, two persons, alleged to be accused Mohd. Faizan and Jaheer Mansoori were seen with rods in their hands, whereas, another person, alleged to be accused Mohd. Usman was seen following them. In footage, other persons were also seen alongwith the accused persons. After seeing the footage, the witness failed to identify the persons seen in video footage as accused Mohd. Faizan, Jaheer Mansoori and Mohd. Usman.
5.(d) Since PW2 resiled from his statement recorded U/s. 161 CrPC, he was cross examined by Ld. Addl. PP. In cross- examination by Ld. Addl. PP, PW2 denied the suggestion that when he and deceased/victim Siddik were going to their house through the gali of Al-Yamin Restaurant, they saw that the accused persons were following them, having some steel type rod in their hands. He denied the suggestion that when they tried to save themselves, the accused persons caught hold of the victim in SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.7 of 34 gali and hit with the rod on victim's back. He denied the suggestion that one accused having steel rod in his hand, followed him. He denied the suggestion that when he raised alarm, the accused persons fled away from the spot, after seeing the public persons. He denied the suggestion that he intentionally did not depose the true facts to save the accused persons as they as well as their relatives won him over. He denied the suggestion that in CCTV video footage played 20.30 onwards, the accused persons could be seen running behind him and the deceased. He denied the suggestion that he deliberately did not identify himself, deceased Siddik as well as the accused persons in CCTV footage, to save the accused persons. He denied the suggestion that accused Mohd. Faizan, Jaheer Mansoori and Mohd. Usman were arrested in his presence. He admitted his signatures at point 'A' on documents Ex. PW2/H to Ex. PW2/M, however, stated that he did not know their contents and he signed them at the instance of IO. Despite being pointed out by Ld. Addl. PP towards the accused persons, PW2 failed to identify them as the offenders. He denied the suggestion that he intentionally did not identify the accused persons, who were involved in commission of offence and were arrested in his presence.
6. PW3 Salman, an independent public witness, deposed that in year 2020, he had a restaurant in the name of AD Food Corner at Thokar No.6, Abul Fazal Enclave, Okhla, New Delhi, outside of which one Naushad used to run a hearth (Bhatti) of Kabab. He deposed that he did not remember the date and month of the incident, however, it occurred in the year 2020, between 08:00PM and 08:30PM, when Naushad was making Kabab, SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.8 of 34 whereas, he was present at his shop and was sitting at cash counter. He deposed that he saw that many persons had gathered near park in front of his restaurant and a lot of noise was coming from there, and few people were running. He deposed that since there were a large number of customers in his restaurant, he was busy attending them. He deposed that he did not know anything else about the present matter, neither did police record his statement.
7.(a) PW4 Naushad, independent public witness, deposed that on 26/11/2020 he used to work at AD Food Corner, situated at Thokar No.6, Shaheen Bagh, Delhi. He stated that he had no knowledge about the present case, neither did he know if police had recorded his statement.
7.(b) Since PW3 Salman and PW4 Naushad resiled from their statements recorded U/s. 161 CrPC, they were cross examined by Ld. Addl. PP. In cross-examination by Ld. Addl. PP, statements recorded U/s. 161 CrPC, Mark 'X' and Mark 'Y', were read over to PW3 and PW4, however, they denied having made any such statement. They denied the suggestion that they gave statement Mark 'X' and Mark 'Y' to police. They denied the suggestion that on 26/11/2020, three persons, aged around 20-25 years, visited the hearth (Bhatti of Kabab) i.e. AD Food Corner, out of whom one was having a bag and was wearing a white shirt, another was wearing wearing jacket and black colour pant, whereas, the third was wearing a blue colour hood, T-shirt and blue colour jeans. They denied the suggestion that the boy who wore black colour jacket tried to snatch iron seekh (skewer) but SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.9 of 34 PW4 caught hold of it and, thereafter, the offenders took two seekhs (skewer that is used to hold chicken tikka) and went towards gali of Al-Yamin Restaurant. They denied the suggestion that after five minutes all three offenders, out of whom two were having the steel rods (skewer), came to his shop. They denied the suggestion that the boy who wore black colour jacket was having bent steel rod, whereas, the boy who wore white shirt put the steel rods on counter of their shop. They denied the suggestion that on being asked by Naushad to offenders as to why they took the rods, the boy wearing black jacket moved towards Naushad and the remaining two boys picked the rods again. They denied the suggestion that the person who wore white shirt told that his shop was situated in gali no.3 and the rods could be collected from there, on which they got scared and did not chase the offenders. They denied the suggestion that on next day they went to police station, where they identified all three offenders and told the police that the clothes worn by the offenders were the same clothes that they wore on the day of incident.
7.(c) Accused Mohd. Faizan and Jaheer Mansoori were shown to PW3 on computer screen, through video conferencing, however, he failed to identify them as the offenders. Despite being pointed out by Ld. Addl. PP towards accused Mohd. Usman, PW3 failed to identify him as one of the offender. Despite being pointed out by Ld. Addl. PP towards the accused persons, PW4 failed to identify them as the offenders. They denied the suggestion that they deliberately did not identify the accused persons and deposed falsely being won over by them.
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8. PW5 Mohd. Yaseem, photographer, deposed that on 28/11/2020 on receipt of a telephonic call from police station Shaheen Bagh, he reached there and met Inspector Vijay Pal Singh. He deposed that at police station he took digital photographs of three persons from his digital camera and handed them over to Inspector Vijay Pal Singh. He identified 24 photographs Ex. PW5/A (Colly.) as having been clicked by him.
In cross-examination, PW5 admitted that he gave no certificate U/s. 65B of Indian Evidence Act, neither did IO ask him about it. He admitted that IO did not prepare any seizure memo when he handed the digital photographs to him. He replied that IO recorded his statement on the same day, in evening hours.
9.(a) PW6 Safwan Makrani, owner of Al-Yamin Restaurant, deposed that a CCTV camera was installed in his restaurant, from which the police officials took CCTV footage of date 26/11/2020 in a pen drive as well as original DVR of the restaurant and seized them vide memos Ex. PW6/A (Pen Driver) and Ex. PW6/B (DVR), respectively. He identified his signature at point 'A' on Certificate U/s. 65-B of Indian Evidence Act, Ex. PW6/C, but denied having issued it to the police. Police recorded his statement.
9.(b) One white colour DVR bearing No. SFSLDLH/182/CO/ 37/21, Ext. DIRI (HDD), make Hikvision was produced by MHC(M) in a sealed cloth pullanda and was shown to PW6, however, after seeing which, PW6 failed to identify the same.
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9.(c) MHC(M) also produced one red and black colour pen drive make Scandisk, Ex. P-1, from which CCTV footage of CH- 11 having video No. CH11_26-11-2020_193147_26-11- 2020_ID10634 was played on computer of the Court from 20:29 onwards, after seeing which PW6 stated that it was the footage of CCTV camera installed in his restaurant, that covered the road outside his restaurant.
9.(d) The Court observed that in CCTV footage few persons were seen running with their back being visible. At around 20:32 onwards, two persons, alleged to be accused Mohd. Faizan and Jaheer Mansoori were seen with steel rods in their hands, whereas, another person, alleged to be accused Mohd. Usman was seen following them. In footage, other persons were also seen alongwith the accused persons. Since PW6 resiled from his statement recorded U/s. 161 CrPC, he was cross examined by Ld. Addl. PP.
9.(e) In cross-examination by Ld. Addl. PP, PW6 denied the suggestion that as per seizure memo Ex. PW6/A, the pen drive Ex. P-1, DVR Ex. P-2 as well as Certificate U/s. 65-B Indian Evidence Act that was issued in respect of CCTV footage, were given by him to police and were seized by police. He denied the suggestion that he intentionally did not identify the DVR and Pen Drive in Court.
9.(f) In cross-examination by Ld. Defence Counsel, PW6 replied that police did not give any notice to him for producing the DVR and Pen Drive. He admitted that the police officials had SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.12 of 34 collected the CCTV footage of their own from his restaurant. He admitted that the name of his restaurant was not visible in the CCTV footage.
10.(a) PW7 Inspector Vijay Pal deposed that on 26/11/2020 he was posted as SHO of PS Shaheen Bagh and, on that day, at about 11:52PM, the duty officer informed him about death of one person during fight. He deposed that the duty officer received the said information from Alshifa Hospital, Abdul Fazal Enclave, and marked it to SI Ravinder Chander. He deposed that he went to Alshifa Hospital, where he met SI Ravinder with Ct. Nitin. He deposed that one person namely Siddik was declared as brought dead in the hospital. He deposed that complainant Nadeem Ali, who, reportedly, brought the victim to hospital, was also present there. He deposed that he inspected the body of deceased and found injuries on its head and back side. He deposed that after calling District Crime Team through Control Room, South-East, he alongwith SI Ravinder and the complainant went to the spot i.e. Thokar No.6, Shaheen Bagh. In the meantime, crime team also reached the spot. He deposed that he inspected the spot at the instance of complainant, whereas, the crime team photographed the spot. He deposed that they found pair of red colour slippers at the spot and the complainant told that they belonged to deceased Siddik. Thereafter, they alongwith crime team returned to hospital and photographed the body of deceased. He deposed that alongwith MLC of deceased, SI Ravinder also received Aadhaar Card, clothes, Voter ID Card, passport and cash of Rs.530/-, from Alshifa Hospital and seized SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.13 of 34 them, and, thereafter, they came to police station Shaheen Bagh. He deposed that SI Ravinder recorded statement of complainant Mohd. Nadeem and got the FIR registered.
10.(b) PW7 deposed that on 27/11/2020 the present case FIR was assigned to him for investigation and, thereafter, at about 06:00AM, he alongwith complainant, SI Ravinder and other staff went to the spot, where he prepared site plan Ex. PW7/A at the instance of complainant. He deposed that during investigation he checked CCTV camera that was installed in Al-Yamin Restaurant, in footage of which three persons were seen running after complainant Nadeem Ali and deceased Siddik. He deposed that on the basis of CCTV footage, they activated their sources to nab the accused persons and on the same day i.e. 27/11/2020, at about 04:00PM, they apprehended accused Mohd. Faizan, Jaheer Mansoori and Mohd. Usman from Thokar No.8, near Yamuna River, at the instance of secret informer including other police staff i.e. Inspector Sanjay Neolia, SI Pawan Kumar, HC Ravinder, Ct. Surender and Ct. Manoj. He deposed that he interrogated all three accused persons, arrested them vide arrest memos Ex. PW2/H to Ex. PW2/J respectively, got their personal search conducted vide memos Ex. PW2/K to Ex. PW2/M respectively, brought them to police station and recorded their disclosure statement Ex. 7/B to Ex. PW7/D respectively, in which they disclosed that the weapon that they used in commission of offence was lying in house of accused Mohd. Faizan. Thereafter, the accused persons led them to house of accused Mohd. Faizan i.e. H. No. N-125/B, Ground Floor, Abul Fazal Enclave, New SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.14 of 34 Delhi, where accused Mohd. Faizan pointed out towards roof of bathroom of his home and took out two iron rods that were used to prepare 'seekh kabab' from there. He deposed that he measured the size of recovered iron rods, kept them in a cloth pullanda and, after sealing the pullanda with seal of VPS, seized the same vide seizure memo Ex. PW7/E. He also prepared site plan of place of recovery of weapon of offence vide memo Ex. PW7/F. He deposed that, thereafter, the accused persons led them to place of incident, where, he, at their instance, prepared pointing out memo Ex. PW7/G of place of incident. Thereafter, they returned to police station, where complainant Nadeem Ali met them and handed over his blood stained clothes that he wore at the time of incident, while rushing victim Siddik to hospital, to him, and he seized them vide memo Ex. PW7/H. He deposed that he also seized the clothes that accused persons wore at the time of incident, vide seizure memos Ex. PW7/I to Ex. PW7/K respectively. He deposed that, in the meantime, eye-witnesses Naushad, Shamshad and Salman also came to police station and identified all three accused persons as the offenders who were involved in the incident. He recorded their statements as well as supplementary statement of the complainant, who accompanied them at the time of apprehension of accused persons and also identified them as the offenders. He deposed that he deposited the seized articles in Malkhana, recorded statement of police witnesses and sent the accused persons to lock-up, after getting them medically examined, and, on 28/11/2020, produced them before the Court, from where they were to sent to judicial custody.
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10.(c) PW7 deposed that on 29/11/2020, he prepared inquest papers and the body of deceased Siddik was identified by his daughter and son-in-law vide memo Ex. A-9. Thereafter, he moved application Ex. PW7/L for conducting postmortem examination of deceased Siddik. After postmortem examination, the body was handed over to daughter of deceased, vide handing over memo Ex. AD-4. He deposed that after postmortem, the doctors handed over 04 exhibits to him in sealed condition alongwith sample seal, that he seized vide memo Ex. PW7/M and deposited the exhibits in Malkhana. He deposed that, during investigation, he obtained CCTV footage from Mr. Safwan Makrani, owner of Al-Yamin Restaurant, in a pen drive and seized the same vide memo Ex. PW6/A. He also obtained DVR of CCTV camera alongwith Certificate U/s. 65B Indian Evidence Act from the owner and seized the same vide memo Ex. PW6/B. He deposed that, during investigation, he collected postmortem report and sent the DVR, exhibits, clothes of the accused persons, deceased and the complainant alongwith iron rods to FSL, Rohini, for forensic examination. He also got prepared the scaled site plan Ex. A-4 through draftsman Inspector Mukesh Kumar Jain, obtained the crime team report and, on completion of investigation, filed the charge-sheet in Court.
10.(d) PW7 identified 33 photographs Ex. A-6 (Colly.) as having been clicked at the spot by crime team, in his presence. He identified 08 photographs Ex. A-7 (Colly.) of dead body of deceased Siddik as having been clicked by crime team at hospital, in his presence. He identified 24 photographs Ex.
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PW5/A (Colly.) of the accused persons as having been clicked in his presence at police station, after their arrest. The Pen Drive make Scandisk, Ex. P-1 was opened, from which CCTV footage contained in folder No. CH-11, having video No. CH11_26-11- 2020_193147_26-11-2020_203854_ID10634 was played on computer of the Court from 20:29 onwards and, on seeing which, PW7 stated that they were the same footages, that he seized during investigation.
10.(e) PW7 identified one dark blue colour lower/trouser, one light green colour sweater and one blue and white check T-shirt, Ex. P-1 (Colly.) as the clothes of complainant that were stained with blood when he seized them. He identified two bent iron rods (skewer), Ex. PX-1 (Colly.) as having been recovered from house of accused Mohd. Faizan at the instance of accused persons. He identified one torn black colour jacket, one blue colour torn pant, one gree colour T-shirt and one pair of red colour shoes, Ex. PX- 2 (Colly.) as the clothes of accused Mohd. Faizan and were seized by him. He identified one navy blue sweat shirt/jacket, one blue jeans pant and one pair of slippers, Ex. PX-3 (Colly.) as the clothes of accused Mohd. Usman and were seized by him. He also identified one pair of red colour slippers, Ex. P-2 (Colly.) as belonged to deceased Siddik and were seized by him. He identified the white colour DVR make Hikvision, bearing No. FSFLDLH/182/CO/37/21, having Model No. DS-6016-HDHI- F1, Ex. PX-1 as the same that he obtained from Safwan Makrani, owner of Al-Yamin Restaurant. He identified one pair of shoes (Y-8), one shoulder bag make liberty, one shirt printed with white SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.17 of 34 and blue colour and one jeans pant, Ex. PX-5 (Colly.) as the clothes and shoes of accused Jaheer Mansoori and were seized by him at the time of his arrest.
10.(f) In cross-examination by Ld. Defence Counsels, PW7 admitted that he made no departure entry before proceeded to spot on 27/11/2020. He voluntarily stated that he had already gone to hospital and, thereafter, to the spot after receiving the call from Alshifa Hospital. He replied that he made no public person as a witness to proceedings conducted by him. He voluntarily stated that no public person was present there at that time. He admitted that he examined no doctor at Cribs Hospital, Shaheen Bagh, regarding the injuries sustained by victim Siddik. He admitted that he visited Cribs Hospital but prepared no document. He replied that he did not send photographs of the accused persons to FSL for matching with the CCTV footage. He replied that no chance print or fingerprint were collected from the place of recovery of alleged iron rods (skewer). He admitted that the place from where the skewer were recovered, was a highly populated area, however, he did not make the public persons as witnesses to recovery proceedings. He voluntarily stated that he tried to join the public persons as witness, however, none agreed. He replied that no photograph of place of recovery was taken. He replied that he did not record statement of owner of the house from where the recovery was effected. He replied that he did not remember on which floor the house of accused, from where the recovery was effected, was situated.
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10.(g) PW7 replied that on 27/11/2020 he saw CCTV footage of Al-Yamin Restaurant with regard to the incident, whereas, the DVR of the footage was seized later on. He denied the suggestion that he obtained the DVR of CCTV footages on 27/11/2020. He replied that no public person was made a witness for watching the CCTV footages. He denied the suggestion that no CCTV footages were handed over to him by owner of Al- Yamin Restaurant, neither was any Certificate U/s. 65-B Indian Evidence Act issued by the owner. He denied the suggestion that the incident was not captured in CCTV footages and only public persons were seen passing through the spot in the footages. He denied the suggestion that all proceedings were conducted while sitting at police station and, therefore, no public person was joined. He denied the suggestion that accused Mohd. Usman was falsely implicated in present case and, therefore, his photograph was not sent to FSL to match with the CCTV footages. He denied the suggestion that nothing was recovered from the accused persons and, since the recovery was planted upon them, no crime team or public persons were joined. He replied that he took the crime team to Thokar No.6, Yamuna River, however, no chance print/blood stains were found there, neither did they find the brick that was used to commit the offence. He denied the suggestion that the accused persons were not seen in CCTV footage. He denied the suggestion that accused Mohd. Faizan and Jaheer Mansoori were falsely implicated in present case, neither did they make any disclosure statement and their signatures were obtained on blank papers that were, later on, converted into their disclosure statement.
SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
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11.(a) PW8 SI Ravinder deposed that in the intervening night of 26-27/11/2020, at about 11:52PM, on receipt of DD No.57A regarding admission of one injured in Alshifa Multi Specialty Hospital, Abul Fazal Enclave-I, Jamia Nagar, he alongwith Ct. Nitin reached the said hospital, where he came to know that injured Siddik was brought dead in hospital. In hospital, he met complainant Mohd. Nadeem Ali, who brought the victim, and obtained MLC of the deceased. He deposed that he saw that body of deceased Siddique @ Siddik had sustained multiple injuries on its head, thumb and multiple puncture wounds on its back. He deposed that he gave information about death of deceased Siddik as well as injuries sustained on his body to the duty officer, on which Inspector Vijay Pal Singh, SHO PS Shaheen Bagh, came to Alshifa Hospital and inspected the body of deceased. He deposed that the doctor handed over one bag, Aadhaar Card, Voter ID Card, Passport size photo of deceased and cash of Rs.530/- to him and he seized all the articles vide seizure memo Ex. PW8/A. Thereafter, he alongwith complainant Nadeem and Inspector Vijay Pal Singh returned to the spot i.e. Thokar No.6, Yamuna Bank, Shaheen Bagh. He deposed that he called crime team at the spot, which, on reaching the spot, inspected and photographed the spot. He deposed that one red colour slipper was lying at spot, near Kikar tree, and the complainant identified them as the deceased's slippers. Thereafter, they went outside Yamuna Bank, where, near a paan shop, they found one red colour slipper and the complainant identified it as another slipper of the deceased. He seized both the slippers vide seizure memo Ex. PW8/B. He deposed that, thereafter, complainant led them to SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.20 of 34 gali near Al-Yamin Restaurant and told that the accused persons chased him and the deceased in that gali and attacked them.
11.(b) PW8 deposed that, thereafter, he alongwith crime team went to Alshifa Hospital, where crime team took photographs of body of deceased and, through Ct. Nitin, sent it to Mortuary, AIIMS hospital, for preservation. Thereafter, he came back to police station, where he recorded statement of complainant Nadeem, prepared tehrir Ex. PW8/C, handed over the tehrir to duty officer for getting the FIR registered, and, after registration of FIR, the case was marked to Inspector Vijay Pal, for investigation. He deposed that complainant Nadeem handed over his blood stained clothes to IO Inspector Vijay Pal Singh and stated that blood of deceased was smeared on his clothes while he was rushing him to hospital. IO seized the clothes of complainant vide seizure memo Ex. PW7/H. He deposed that, thereafter, they went to Al-Yamin Restaurant, where they checked CCTV footages, in which they found that the complainant and deceased were being chased by three persons, having iron seek (Kabaab sticks) in their hands. They took screenshots of faces of the said three persons, who were chasing the complainant and deceased, and circulated them with sources/secret informer to identify them.
11.(c) PW8 deposed that he alongwith IO Inspector Vijay Pal Singh, ATO Sanjay Neolia, SI Pawan Kumar, HC Ravinder, Ct. Surender, Ct. Manoj and Ct. Kapil went to Thokar No.3, near Yamuna Bank, in search of the accused persons, where one secret informer met the IO and informed about presence of the SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.21 of 34 assailants, who were involved in present case, at Thokar No.8 and were planning to flee from there. Complainant Nadeem was also accompanying them, at that time. Thereafter, all of them including secret informer went towards Thokar No.8, where they found three persons near tree at Yamuna Bank and he alongwith Ct. Surender and HC Ravinder apprehended them, as per directions of IO Inspector Vijay Pal Singh. He deposed that complainant Nadeem identified all three persons as the offenders who first quarreled with him and deceased Siddik, thereafter, chased them and attacked deceased with iron seekh. He deposed that on interrogation, they disclosed their names as Mohd. Faizan, Jaheer Mansoor and Mohd. Usman.
11.(d) PW8 further deposed about arrest of accused persons, conducting of their personal search, recording of their disclosure statement after returning to police station, recovery of weapon of offence i.e. iron seekh (Kabab skewers) from house of accused Mohd. Faizan, at his instance, seizure of recovered weapon, preparation of site plan of place of recovery of weapon of offence, preparation of pointing out memo of place of incident at the instance of accused persons, taking photographs of the accused persons at police station through some private photographs, identification of the photographs Ex. PW5/A (Colly.) by the witness and the seizure of wearing clothes of accused persons that they stated to have worn at the time of incident. He deposed that on 29/11/2020 body of deceased Siddik was identified by his daughter Mashooda Khatun and her husband Mushtayak at Mortuary, AIIMS Hospital, and IO SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.22 of 34 recorded their statement regarding identification of body and, after postmortem examination, the body of deceased was handed over to his daughter and son-in-law. He deposed that after postmortem examination, the doctor handed over exhibits i.e. blood in gauze, viscera, nail clipping and clothes of deceased Siddik @ Siddique to IO, who seized them vide seizure memo Ex. PW7/M. He identified the accused persons in Court as well as 28 photographs Ex. P-6 (Colly.) as the same that were clicked at the spot of incident and from where the slippers were recovered and 08 photographs Ex. A-7 (Colly.) of the deceased as the same that were clicked by crime team at Alshifa Hospital.
11.(e) In cross-examination, PW8 replied that he received DD No.57A at police station and reached the hospital at about 12:05AM (midnight) of 26-27/11/2020. He replied that neither did he nor the IO record statement of complainant Nadeem in hospital; complainant's statement was recorded at police station. He admitted that complainant was not made a witness of site plan. He replied that he joined the whole investigation with IO. He replied that he did not find any entry/admission document of deceased in Cribs Hospital, neither did he examine any doctor of the said hospital. He denied the suggestion that he intentionally and deliberately recorded the statement of complainant later on, to fill up the lacunae to prosecution case and falsely implicated the accused persons as complainant was not eye-witness to the incident. He replied that no public person was made a witness regarding the fact of watching the CCTV footage at Al-Yamin Restaurant. He replied that he did not know if the IO sent SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.23 of 34 photographs of the accused persons to FSL for comparison with CCTV footage. He admitted that many public persons used to pass at the place of arrest of accused persons, however, no public person was joined in investigation. He admitted that the house from which the kabab seekh was recovered, was situated in a highly populated area. He admitted that the family members of accused Faizan were present at the house at the time of alleged recovery, however, their statements were not recorded by IO, in his presence, neither any videography was done by IO during recovery of weapon. He denied the suggestion that the incident was not captured in CCTV footage seized by IO. He denied the suggestion that the accused persons were not seen in CCTV footage. He replied that the DVR of CCTV footage was seized by IO. He denied the suggestion that the accused persons were called at police station and were falsely implicated in present case. He denied the suggestion that the accused persons did not make any disclosure statement and their signatures were obtained on blank papers, that were, later, converted into their disclosure statements. He denied the suggestion that nothing was recovered at the instance of accused persons and the recovery was planted upon them.
12. Since all three accused persons, through their separate statements recorded U/s. 294 CrPC r/w Section 313 CrPC on dated 08/02/2023 and 25/04/2023, admitted contents and genuineness of the following documents, therefore, the requirement to prove the said documents through concerned PWs was obviated:
SC No. 228/2021 State Vs. Mohd. Faizan & Ors. FIR No. 295/2020 PS : Shaheen Bagh Page No.24 of 34 i) Ex. A-1 : FIR alongwith Certificate U/s. 65-B Indian Evidence Act (Colly.); ii) Ex. A-2 : DD No.57-A, dated 26/11/2020; iii) Ex. A-3 : DD No. 5A & 6A, both dated 27/11/2020 (Colly.). iii) Ex. A-4 : Scaled Site Plan; iv) Ex. A-5 : Crime scene report dated 27/11/2020; v) Ex. A-6 : 42 photographs (Colly.) of crime scene and the dead body; vi) Ex. A-7 : Postmortem Report; vii) Ex. A-8 : MLC of the deceased; viii) Ex. A-9 : Dead body identification statements of Masooda Khatoon and Mukhtiyar Singh (Colly.); ix) Ex. A-10 : Acknowledgment of case acceptance dated 22/12/2020, 23/12/2020 and 06/01/2021 (Colly.); x) Ex. A-11 : Viscera Report dated 19/02/2021; xi) Ex. AD-1 : FSL report (06 pages) dated 13/04/2022; xii) Ex. AD-2 : FSL report alongwith Certificate U/s. 65-B Indian Evidence Act dated 31/03/2022; xiii) Ex. AD-3 : FSL report dated 01/08/2022; & SC No. 228/2021 State Vs. Mohd. Faizan & Ors. FIR No. 295/2020 PS : Shaheen Bagh Page No.25 of 34 xiv) Ex. AD-4 : Handing over memo of body of deceased.
13. All the incriminating evidence that came on record in the deposition of prosecution witnesses was put in detail to the accused persons and their separate statement was recorded U/s. 313 CrPC. The accused persons denied all incriminating evidence and asserted that they were falsely implicated in the present case. They stated that the video footage was fake and had no connection to present incident. They stated that they made no disclosure statement and the police obtained their signatures on blank papers, that police later converted into their disclosure statements. They asserted that the recovery was planted upon them by the IO.
The accused persons did not avail of the opportunity to lead evidence in defence. I have heard the elaborate final arguments from both sides. The evidence is analyzed as under:-
Complainant/eye witness hostile to prosecution case :
14.(a) PW2 Mohd. Nadeem Ali deposed that he and deceased Siddik @ Siddique were sitting together in front of Thokar No.6, on the bank of Yamuna River when three offenders accosted them on 26/11/2020, at about 07:30PM - 08:00PM. PW2 and deceased Siddik tried to avoid them and proceeded to leave from there. It was dark but PW2 saw the three offenders assaulting Siddik on his head with brick. When PW2 started screaming and shouting, the offenders left Siddik.
14.(b) As PW2 and Siddik crossed the road, the three offenders against started following them and caught hold of them. In the SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.26 of 34 meantime, some public persons gathered and pacified the matter. When PW2 and Siddik reached near Al-Yamin Restaurant, they realized that the three offenders were again coming towards them, upon which they started running in the street. PW2 Nadeem stated that he hid himself in a toilet and came outside after around 40-50 seconds. When he came outside, he saw that public persons were helping Siddik. Siddik requested PW2 to take him to his house. PW2 brought a pair of slippers for Siddik as he had lost his slippers in the incident, took him to his room and gave him coconut water. Since Siddik was in pain, PW2 gave him pain killer and biryani to eat.
14.(c) When PW2 realized that Siddik was in lot of pain, he alongwith driver of Shaheen Public School took him to Cribs Hospital, where PW2 was asked to take Siddik to some big hospital. PW2 rushed Siddik in an e-rickshaw to Alshifa Hospital, where he was declared brought dead.
14.(d) PW2 deposed that police had arrested the three offenders, although, not in his presence. He deposed that he could identify the three offenders, however, on looking at the accused persons during his deposition, PW2 failed to identify them as the offenders who assaulted and injured victim Siddik @ Siddique. PW2 saw the offenders holding steel rods in their hands in CCTV footage contained in pen drive Ex. P-1 in the Court but failed to identify them as the accused persons. Ld. Addl. PP cross examined PW2 as a hostile witness, but could not elicit an answer favourable to prosecution case.
SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
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Other Public Witnesses hostile to prosecution case :
15.(a) PW1 Mohd. Shamshad deposed that he runs a paan-bidi rehri near the corner of footpath at Thokar No.6, Shaheen Bagh, near Yamuna River. He deposed that in November-2020 he was attending to some customers at his shop and heard some noise. He saw some scuffling was going on between public persons and crowd came near to his shop while scuffling with each other. One Nadeem, whom he knew, requested PW1 to save him but PW1 did not get down from his shop. Some public persons helped Nadeem, on which Nadeem and remaining crowd started proceeded towards Al-Yamin Restaurant. After 05 minutes, PW1 saw the crowd dispersing and the persons who were quarreling with Nadeem went towards gali no.5. In the evening, PW1 was called to police station and shown some persons whom the police had apprehended as the ones who quarreled with Nadeem. PW1 stated that he did not see the persons who were quarreling with Nadeem.
15.(b) PW1 was cross examined as a hostile witness by Ld. Addl. PP but he did not support the prosecution case. In cross- examination by Ld. Addl. PP, PW1 denied the suggestion that he saw the offenders picking two iron rods (used for making kababs) from Kabab Bhatti and going towards Al-Yamin Restaurant. He denied the suggestion that he saw the offenders arguing with Kabab Bhatti owner. He denied that he identified the offenders in police station as the ones who assaulted an aged person and a boy near his shop. He denied that he identified a person named Faizan (accused) as the one who picked iron rods from Kabab SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.28 of 34 Bhatti. PW1 stated that he saw the accused persons while they were returning from Al-Yamin Restaurant and going towards gali no.5. He denied the suggestion that he saw accused persons quarreling with and assaulting Nadeem and one aged person.
15.(c) PW3 Salman deposed that he used to run a restaurant in the name of AD Food Corner at Thokar No.6, Shaheen Bagh, whereas, one Naushad used to run a Kabab Bhatti outside his restaurant. He stated that one day in year 2020, between 08:00PM and 08:30PM, he was present at his shop, whereas, Naushad was making kabab in the bhatti. PW3 saw that a crowd of people had gathered near the park in front of his restaurant and a lot of noise was coming. PW3 stated that he was busy attending the customers at his restaurant. He saw a few people running but did not know anything about the incident.
PW3 was cross examined as a hostile witness by Ld. Addl. PP. In cross-examination, he denied the suggestion that there were three offenders, who, on 26/11/2020, picked up two steel rods from Kabab Bhatti of Naushad and went towards Al-Yamin Restaurant gali. He denied that after five minutes, the three offenders returned to his shop to return the steel rods, out of which one got bent. He denied that when Naushad asked the offenders the reason for taking away the iron rods, the offenders took away the rods again. He denied the suggestion that on the next day he went to police station and identified the three offenders as well as the clothes worn by them at the time of incident. He did not identify the accused persons as offenders, in his deposition.
SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
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15.(d) PW4 Naushad deposed that he worked at AD Food Corner, Thokar No.6, Shaheen Bagh, on 26/11/2020. He stated that he had no knowledge of present case. PW4 was cross examined as a hostile witness by Ld. Addl. PP. In cross-examination, he denied all the suggestions pertaining to the incident and did not identify accused persons as the offenders.
Photographs not admissible in evidence :
16.(a) PW5 Mohd. Yaseem, a professional photographer, deposed that on 28/11/2020 on instruction of police officials of PS Shaheen Bagh, he went to PS Shaheen Bagh, where he took photographs of three persons from his digital camera and handed over 24 digital photographs Ex. PW5/A (Colly.) to Inspector Vijay Pal Singh.
16.(b) In cross-examination, PW5 admitted that he had not given Certificate U/s. 65-B of Indian Evidence Act to IO in respect of the digital photographs, neither did IO ask him for the same. He admitted that no seizure memo was prepared by IO when he handed over the digital photographs to him.
16.(c) It is observed that digital photographs handed over by PW5 to the IO were electronic record and required due Certificate U/s. 65-B Indian Evidence Act from PW5 to be admissible in evidence. In absence of said certificate, the digital photographs Ex. PW5/A (Colly.) remained inadmissible in evidence. Anyhow, even if the said photographs were supported by Certificate U/s. 65-B of Indian Evidence Act of PW5, they SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.30 of 34 would be of limited probative value, as having been taken in police station upon arrest of accused persons.
CCTV Footage not proved :
17.(a) PW6 Safwan Makrani, owner of Al-Yamin Restaurant at Thokar No.6, Shaheen Bagh, deposed that there was a CCTV camera installed at his restaurant. Police officials of PS Shaheen Bagh asked him for CCTV footage of date 26/11/2020 and collected it in a pen drive vide seizure memo Ex. PW6/A. The police officials also took away DVR of the CCTV camera vide seizure memo Ex. PW6/B. PW6 identified his signature on the certificate U/s. 65-B Indian Evidence Act but stated that he did not give the said certificate to police. He also did not identify the seized DVR.
17.(b) PW6 was also cross examined as a hostile witness by Ld. Addl. PP. In cross-examination, he denied the suggestion that he gave CCTV footage in pen drive Ex. P-1 and original DVR Ex. P-2 to police, that were seized by police. He denied the suggestion that he gave Certificate U/s. 65-B Indian Evidence Act to police in respect of CCTV footage. In cross-examination conducted by the accused persons, PW6 admitted that police officials collected the CCTV footage of their own from his restaurant.
17.(c) It was incumbent upon the prosecution to prove that the CCTV footage contained in pen drive Ex. P-1 was provided to police by PW6, who was owner and operator of the CCTV camera, and PW6 gave requisite Certificate U/s. 65-B Indian SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.31 of 34 Evidence Act in support of the CCTV footage. The CCTV footage played in the Court was not prepared from DVR Ex. P-2 and required support of proper Certificate U/s. 65-B Indian Evidence Act to be admissible. In view of testimony of PW6, there is reasonable doubt about genuineness of Certificate U/s. 65-B Indian Evidence Act, on account of which the CCTV footage contained in pen drive Ex. P-1 remained inadmissible. Anyhow, the incident of assault on victim Siddik was not captured by the CCTV footage, whereas, the prosecution witnesses did not identify the persons holding iron rods (Kabab skewers) in CCTV footage as the accused persons.
Recovery & Identification of weapon doubtful :
18.(a) PW8 SI Ravinder deposed that after his arrest accused Mohd. Faizan disclosed that he could get the weapon of offence i.e. iron seekh recovered from his house. On 27/11/2020, accused Mohd. Faizan led police officials including Inspector Vijay Pal Singh, HC Ravinder, Ct. Surender as well as two co-accused persons to his house, from where he got the two iron seekh recovered from roof of washroom of his house, located at the right side of entry gate; IO seized it vide seizure memo Ex. PW7/E.
18.(b) In cross-examination, PW8 admitted that the house from where the iron seekhs were recovered, was situated in a highly populated area. No statement of family members of accused Mohd. Faizan was recorded by the IO, although, they were present at the house at the time of alleged recovery.
SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
FIR No. 295/2020 PS : Shaheen Bagh Page No.32 of 34
18.(c) It was rightly argued by Ld. Defence Counsel that, although available, public witnesses were not joined in investigation by the IO at the time of recovery of weapon of offence and planting of the same on accused Mohd. Faizan could not be ruled out. No public witnesses identified the recovered iron seekh as the same that were used by the offenders to cause puncture wounds to victim Siddik. Therefore, the recovered iron rods / seekh were not identified as weapon of offence.
Forensic Report inclusive :
19. The recovered iron rods / seekh, amongst other exhibits, were subjected to forensic DNA examination at FSL and forensic DNA report Ex. AD-1 dated 13/04/2022 was received to the effect that no DNA profile could be generated from the source of exhibit '5' (iron rods) which may be due to degradation / inhibition. Similarly, as per the said report, blood could not be detected on the seized clothes of accused Mohd. Faizan, Mohd. Usman and Jaheer Mansoori (Ex. '6a', '6b', '6c', '7a', '7b', '7c', '8a', '8b', '8c' & '8d'). There is no forensic evidence to connect the accused persons with murder of deceased/victim Siddik.
20. As a result of foregoing observation and analysis, the charge remained unproved against the accused persons. Accused Mohd. Faizan, Mohd. Usman and Jaheer Mansoori are acquitted of the charged offence U/s. 302/34 IPC. However, they shall furnish fresh bail bonds U/s. 437-A CrPC.
SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
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21. File be consigned to record room after completion of all necessary formalities.
Digitally
signed by
VISHAL
Announced in the open Court VISHAL SINGH
SINGH Date:
dated: 29.07.2024 2024.07.29
14:55:45
+0530
(VISHAL SINGH)
ADDL. SESSIONS JUDGE-05,
SOUTH-EAST, SAKET COURT
NEW DELHI
SC No. 228/2021 State Vs. Mohd. Faizan & Ors.
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