Delhi District Court
State vs Mohd Saddam @ Mohd Gauri Etc on 14 February, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-08
WEST DISTRICT TIS HAZARI COURTS, DELHI
Presided by: Hem Raj, DHJS
CNR No. DLWT01-000203-20104
SC No.56082/2016
State vs. Mohd. Saddam
@ Mohd. Gauri & Anr.
FIR No. 321/2014
PS Uttam Nagar
U/s 307/34 IPC
In the matter of:
State
Versus
1. Md. Saddam @ Md. Gauri
S/o Md. Bhura
R/o A-565, Pankha Road, JJ Colony,
Uttam, Nagar, Delhi,
Also at :
Flats no. 58, Chander Vihar,
Main Road, Nilothi, Delhi
&
Village Satla, PS Mawana,
District Meerut, U.P
2. Azad Khan (Since Expired)
S/o Rashid Khan
R/o E-81, Gali no.2, Vikash Nagar,
Som Bazar Road, Uttam Nagar, Delhi.
(Proceedings against accused stood abated
vide order dated 27.03.2019 of the Ld. ASJ).
State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 1/28
Date of Institution of case : 26-09-2014
Date of pronouncement of judgment : 14-02-2024
Appearance:
For the State : Mr. Himanshu Garg, Ld. Addl.
Public Prosecutor.
For accused : Mr. Deepak Sharma, Ld. Counsel.
JUDGMENT
1. The accused persons namely Saddam @ Md. Gauri and Azad Khan faced a trial for the offence u/s 307/34 IPC and 25 Arms Act. A chargesheet was filed against them by SHO PS Uttam Nagar. Accused Azad Khan expired during the trial of the case and proceedings against him stood abated vide order dated 27.03.2019 of the Ld. Predecessor of this court.
The case of the prosecution:
2. The prosecution case, in brief, is that on 29.03.2014 at about 7-7.30 p.m, complainant Dheeraj, his maternal cousin Heera along with one of their friends namely Samarjeet were engaged in a conversation near the gate of a park situated in front of Murli Samose wala in the area of Uttam Nagar. At that time, four persons came from inside the park. Accused Saddam allegedly was one of them. he took out a pistol and tried to fire a State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 2/28 shot on Samarjeet, but Samarjeet ran away from there and the bullet shot by accused Saddam hit in the stomach of injured Heera. Co-accused Azad Khan (since deceased) and other co-
accused ran in pairs in two different directions. Complainant Dheeraj then carried injured Heera to DDU hospital. In the hospital, his statement was recorded. FIR was registered on his statement. During the investigation, accused Saddam and Mohd. Azad were arrested. From the possession of the accused Saddam, one country made pistol and two live cartridges were recovered. The other two co-accused could not be arrested. After the investigation, charge-sheet was filed.
3. The Ld. Magistrate took the cognizance of the offence and after the compliance of 208 Cr.P.C committed the case to the Court of Sessions.
The charge against the accused:
4. After hearing the prosecution and the accused and perusal of the chargesheet along with the documents filed by the prosecution, the charges against accused persons namely Saddam @ Md. Gauri and Azad Khan were framed for the offences u/s 307 IPC r/w 34 IPC. Charge u/s 25 Arms Act was also framed against accused Saddam @ Mohd. Gauri. The accused persons did not plead guilty to the charges framed against them and they claimed trial. However, during the trial accused Azad had expired and proceedings against him stood abated on 27.03.2019.
The evidence by prosecution:
5. To prove the afore-mentioned charge against the accused persons, the prosecution got examined 18 witnesses in all. For State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 3/28 the sake of convenience, a brief description of the testimonies of all the prosecution witnesses in tabular form is as under :-
PWs Name of PWs Nature of testimony of Documentary No. PWs Evidence PW-1 Dr. Naorem He prepared the MLC Ex.PW-1/A i.e. Bobo Singh of patient namely MLC of injured Heera. He also handed Heera (Sr. Resident, over the clothes of DDU Hospital) Heera to the IO.
PW-2 Sh. Dheeraj Cousin brother of Ex.PW-2/A i.e. Mehto, Heera, who deposed statement of the about the incident that complainant (Complainant) happened on Dheeraj Mehto, 29.03.2014. He along Ex.PW-2/B i.e. with his friend took the arrest memo of Heera to the hospital. accused Azad, He identified the Ex.PW-2/C i.e. accused persons in the personal search court. memo of accused Azad, Ex.PW-2/D i.e. endorsement on rukka.
PW-3 Ct. Diwan He was the member
raiding party, who
apprehended accused
Saddam @ Mohd.
Gauri. In his presence,
IO recovered one desi
katta with live
cartridges, conducted
personal search of
accused and recorded
his disclosure
statement.
PW-4 Sh. Heera He being the victim /
injured deposed about
(Injured/ the incident which
victim) happened on
29.03.2014. He could
not identify his
assailants in the court.
State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 4/28 PW-5 HC Rajbir Gulia He deposed about Ex.PW-5/A i.e. recording of DD No. DD No. 40A dated (Duty Officer) 40A on receipt of 29.03.2014.
message received from DDU hospital regarding admission of injured Heera and proved the same in the court.
PW-6 HC Rajesh He deposed about Ex.PW-6/A i.e.
Kumar registration of FIR No. copy of of FIR,
321/14 PS Uttam Ex.PW-6/B i.e.
(Duty Officer) Nagar on the basis of endorsement on
rukka received from Ct. rukka by HC
Ankur sent by SI Rajesh Kumar,
Govind. Ex.PW-6/C i.e.
certificate u/s 65 B
Evidence Act.
PW-7 Ct.Vikramaditya He deposed about
depositing one pullanda
at FSL Rohini vide RC
no. 54/21/14.
PW-8 HC Vijay He deposed about Ex.PW-8/A i.e.
Kumar deposition of case entry in register
(MHC (M) ) properties in the no. 10 at sl. no.
Malkhana on different 4198, Ex.PW-8/B
occasions. i.e. entry in
register no. 10 at
sl. no. 4242,
Ex.PW-8/C i.e.
entry of RC no.
54/21/14 in
register no. 21 and
its
acknowledgment
i.e. Ex.PW-8/D.
PW-9 HC Sanjeev Being the Ex. PW-9/A i.e.
Kumar photographer, Mobile statement u/s 161
Crime Team, he Cr.P.C of
(Photographer/ deposed about taking Samarjeet, Ex.PW-
mobile crime five photographs of the 9/A 1 to PW-9/A5
team) spot on 30.03.2014 and i.e. negatives of
proved the same in the photographs of the
court. spot, Ex.PW- 9/B1
State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 5/28 to Ex.PW-9/B5 i.e. five photographs of the spot.
PW-10 ASI Ajeet Singh Being the crime team Ex.PW-10/A i.e. incharge, he inspected scene of crime (Incharge Crime the spot and prepared report.
Team, West scene of crime report of
District) the spot.
PW-11 Sh. Samarjeet He alongwith
complainant took the
injured to the hospital.
He was cross-examined
by Ld. Prosecutor at
length.
PW-12 ASI Dipender He deposed about the Ex. PW-12/A i.e.
Singh arrest of accused sketch of katta and
Saddam @ Mohd. cartridge, Ex.PW-
Gauri on receipt of a 12/B i.e. seizure
secret information. In memo of katta and
his presence, IO cartridges, Ex.PW-
arrested accused, 12/C i.e. arrest
conducted his personal memo of accused
search, prepared sketch Saddam @ Mohd.
of katta and seized it. Gauri, Ex. PW-
In his presence, IO 12/D i.e. personal
recorded disclosure search memo of
statement of accused. accused Saddam
He identified accused @ Mohd. Gauri,
Saddam @ Mohd. Gaur Ex.PW-12/E i.e.
in the court. disclosure
statement of
accused Saddam
@ Mohd. Gauri,
Ex.PW-12/P-1 i.e.
katta and Ex.PW-
12/P-2 i.e.
cartridges
recovered from the
possession of
accused Saddam
@ Mohd. Gauri.
PW-13 SI Sandeep He deposed about
constituting a raiding
(Incharge, Anti- party for arrest of
State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 6/28 Snatching Cell) accused Saddam @ Mohd. Gauri, on receipt of a secret information. In his presence, IO arrested accused, conducted his personal search, prepared sketch of katta and seized it. In his presence, IO recorded disclosure statement of accused. He identified accused Saddam @ Mohd. Gaur in the court.
PW-14 Ct. Ankur He joined the
investigation with IO
SI Govind. In his
presence, IO collected
the MLC of injured
from DDU hospital,
recorded statement of
brother of injured, got
the FIR registered,
prepared site plan,
arrested accused Azad
Khan, interrogated and
arrested him. Ct. Ankur
identified accused Azad
Khan in the court.
PW-15 Dr. Mukesh, He deposed to prove
his endorsement on
(Sr. Resident MLC of injured i.e. Ex.
DDU Hospital) PW-1/A.
PW-16 Sh. V.R Anand He deposed about Ex. PW-16/A i.e.
examination of one FSL report
(Assistant parcel containing one prepared by Dr.
Director country made pistol V.R Anand,
Ballistic, FSL and two improvised Assistant Director
Rohini) cartridges (Ballistic), FSL,
Rohini.
PW-17 SI Govind He being the IO of the Ex.PW-17/A i.e.
case deposed about the endorsement of IO
(Investigating investigation carried on statement of
State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 7/28 Officer) out in the case such as complainant, recording statement of Ex.PW-17/B i.e. complainant, site plan, Ex. PW-
registration of FIR, 17/C i.e.
preparing site plan, disclosure
arrest of accused statement of
persons and recovery accused Azad
of weapon of offence. Khan, Ex.PW-
After completion of 17/D i.e. seizure
investigation, he memo of clothes
prepared the of injured from
chargesheet and filed DDU hospital,
he same in the court. Ex.PW-17/E i.e.
He also collected FSL sanction u/s 39
result and sanction u/s Arms Act against
39 Arms Act from the accused Mohd.
DCP concerned. Saddam .
PW-18 Sh. Sagar Singh He proved sanction u/s Ex.18/A i.e.
Kalsi 39 Arms Act of accused sanction u/s 39
Mohd. Saddam @ Arms Act of
(DCP/ North Mohd. Gauri. accused Mohd.
District) Saddam @ Mohd.
Gauri.
The statement of accused persons u/s 313 Cr.P.C:
6. The statement of the accused u/s 313 Cr.P.C was recorded.
The incriminating circumstances appearing in evidence against the accused was brought to his notice and his explanation was sought. Accused claimed to be falsely implicated in this case. Accused did not chose to lead any defence evidence.
7. During the course of proceedings, one application u/s 311 Cr.P.C seeking permission to recall PW-2 Dheeraj Mehto and PW-3 Ct. Diwan was moved on behalf of accused Md. Saddam @ Md. Gauri, which was dismissed vide separate order dated 27.03.2023.
8. Thereafter, a revision was preferred by the accused against order dated 27.03.2023 in the Hon'ble High Court. Vide order State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 8/28 dated 21.04.2023, the Hon'ble High Court allowed the petition u/s 482 Cr.P.C of accused and granted him one opportunity to cross-examine PW-2 for two hours on one date and PW-3 for one hour on another date. Accordingly, on 21.07.2023 PW-2 Dheeraj Mehto was recalled for cross-examination. He was cross-examined and discharged. On 23.09.2023, PW-3 HC Diwan was recalled for cross-examination. He was also cross- examined and discharged.
9. Accused failed to lead defence evidence despite the opportunity given.
10. The Ld. Prosecutor and the Ld. Counsel for the accused persons advanced the final arguments.
11. Ld. Prosecutor argued that prosecution has been able to prove the case against the accused beyond reasonable doubt. He relied upon the oral and documentary documents led by the prosecution.
12. On the other hand, Ld. Counsel for accused Saddam argued that the prosecution has miserably failed prove the case against the accused beyond reasonable doubt. He argued that two witnesses namely PW-4 Hira, injured/victim and PW-11 Samarjeet have not supported the prosecution case. He further argued that PW-2 complainant Dheeraj Mehto did not support the case of the prosecution when he was recalled for cross- examination and thus, his testimony when considered as a whole, cannot be relied upon to return a finding of conviction against the accused. He further canvassed that there is no evidence against the accused to connect him with the fire arm used in the commission of offence as the FSL result does not specify if the State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 9/28 same fire arm was used in the offence more so when the alleged bullet fired by the accused has not been recovered. He further argued that the police has not joined the independent public witnesses at the time of the arrest of the accused, which creates a doubt in the credibility of the prosecution case.
13. I have heard the arguments and perused the record carefully.
14. It is well settled principle of criminal jurisprudence that the prosecution has to prove the case against the accused beyond reasonable doubt and the accused has to prove its defence on preponderance of probabilities. What do we mean by the expression 'beyond reasonable doubt'?
15. For our good fortune, the said expression has been defined by the Hon'ble Supreme Court in the various judgments. In the judgment of Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011CRI.L.J.663, Hon'ble Mr. Justice Dr. B. S. Chauhan, elaborated the concept of Standard of Proof in a criminal trial in the following terms:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions."
Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 10/28 jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide:
Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs.State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230).
12. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
16. Furthermore, in the judgment of Sucha Singh and Another Vs. State of Punjab, (2003 ) 7 SCC 643, the Hon'ble Supreme Court explained the term Beyond Reasonable Doubt and observed as under:
21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent.
Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v. Satpal Singh and others, AIR 1990 SC 209 :
1990(1) RCR(Crl.) 297 (SC)]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840 : 1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 11/28 judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
17. Accused has been charged for the offence u/s 307/34 IPC. Section 307 IPC reads as under:-
"Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.
Attempt by life convicts: When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death."
18. Section 307 IPC provides that if a person does any act with such intention or knowledge, and under such circumstances that if he that act caused death he would be guilty of murder. In the judgment State of Maharashtra Vs Kashirao (2003) 10 SCC 434, the Hon'ble Apex Court opined the following ingredients of section 307 IPC:
"20. ............... The essential ingredients required to be proved in the case of an offence under Section 307 are:
(i) that the death of a human being was attempted;
(ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and
(iii) that such act was done with the intention of caus-
ing death; or that it was done with the intention of causing such bodily injury as : (a) the accused knew to be likely to cause death; or (b) was sufficient in the or- dinary course of nature to cause death, or that the ac- cused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 12/28 probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury."
19. Accused has also been charged in section 25 of Arms Act. The relevant portion of Section 25 Arms Act reads as under:
25. Punishment for certain offences:
[ (1) Whoever -
* * * * * * * * * * *
(1B) Whoever -
(a) acquires, has in his possession or carries any firearm or ammunition in contravention of Section 3; or * * * * * * * * * shall be punishable with imprisonment for a term which shall not be less than [two years but which may extend to five years and shall also be liable to fine]:
* * * * * * * * * * *
* * * * * * * * * * *
20. To prove its case, the prosecution has heavily relied upon the testimonies of PW-2 complainant Dheeraj Mehto, PW-4 Heera, injured / victim and PW-11 Samarjeet and the police officials who were involved in the recovery of the fire arm and the cartridges from the accused.
21. However, record reveals that PW-4 Heera and PW-11 Samarjeet did not support the prosecution case in its material particular. Although PW Heera deposed about the incident with him. PW-4 Heera deposed that on 29.03.2014 at about 7/7.30 p.m, his cousin Dheeraj, his friend Samarjeet and he were standing near the gate inside the park opposite Murli Samose wala and he saw four persons came there and one of them fired upon Samarjeet, however he moved aside and bullet hit him on his abdomen. Dheeraj and Samarjeet, who ran away towards the gate hearing he gunshot, came back to him when they saw him in the injured condition and took him to DDU hospital. He deposed State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 13/28 that he could not see the assailants who caused him the gunshot injury. He also stated that he cannot identify the katta if shown to him.
He was declared hostile by the Ld. Prosecutor and cross- examined by him. In his cross-examination, he refused to identify Saddam as the person, who caused gunshot injury to him or that accused Azad Khan (since deceased) was the person with whom accused Saddam came in the park.
Therefore, his deposition shows that he admits the gunshot injury to him, but he did not identify accused Saddam as the person, who caused gunshot injury to him. Hence, the identification of the accused Saddam is not established from the testimony of this witness.
22. PW-11 Samarjeet did not support the case of the prosecution at all. In his examination in chief, he deposed that about two years back, he had gone to a park for a walk and that he had not seen the incident in this case. Later on, he came to know that one Heera sustained injuries.
He was declared hostile by the Ld. Prosecutor who cross- examined him. He denied that on 29.03.2014, at about 7/7.30 p.m, Dheeraj, Heera and he were present in a park near Ashirwad Nursing Home and in the meantime, they heard some noise and saw some persons coming in the park. He further denied that the said persons threatened them and came running towards them and one of them fired upon him, but since he ran away from there, the bullet hit Heera. He also denied that Dheeraj and he took Heera to the nursing home and then to DDU hospital. He also failed to identify accused Saddam and Azad as the offenders State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 14/28 in this case. He was duly confronted with his statement by the Ld. Prosecutor.
Hence, the testimony of this witness also shows that he has not only failed to identify the accused, but also did not deposed anything about the prosecution case. Thus, his testimony is not of any help to the prosecution.
23. Now, we are left with the testimony of PW-2 complainant Dheeraj Mehto. He was examined in chief and cross-examined on behalf of accused Azad Khan (since deceased) on 07.09.2015. In his examination in chief, he supported the prosecution case. He deposed consistently to his complaint Ex.PW-2/A and identified his signature upon it. He correctly identified accused Azad and Saddam. He specifically deposed that accused Saddam caused gunshot injury to his cousin brother Heera. He also deposed that he was not knowing accused persons previously and he had also seen the accused persons in the police station after the incident.
He was cross-examined at length by Ld. Counsel for accused Azad. He stated in the cross-examination that there was previous enmity of Samarjeet with accused persons regarding the issue of Gramin Sewa and he was aware of the same. He further stated that he had seen the accused persons at the distance of about 2 to 4 steps. He further stated that when he was running, he turned around to notice that his brother was sitting in the park saying the he was having pain in his stomach. He further stated that next day of the incident, accused Azad had been shown in the police station.
State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 15/28 On 08.09.2015, the witness again appeared for further cross-examination by accused Saddam, however he was not cross-examined by accused. Thereafter, an application u/s 311 Cr.P.C was moved by accused Saddam which was dismissed vide order dated 27.03.2023. The said order was challenged in the Hon'ble High Court and the Hon'ble High Court allowed the petition of the accused whereby granting further opportunity to accused Saddam subject to the conditions contained in the order.
PW-2 Dheeraj Metho then was recalled for cross- examination on behalf of accused Saddam. In the cross- examination, he stated that when he entered in the park at that time, all the four assailants had already left the spot and were very far away from the place where he was present. He also stated that he did not witness the incident of firing, however, he heard the noise of firing. The police did not show any dossier of any of the suspect nor prepared any sketch. He further stated that he was asked by the IO to identify two persons namely Saddam and Azad in the court during the evidence. He admitted the suggestion that accused Saddam and Azad were not involved in the present case in any manner or that he was not acquainted with the accused as he had never met them at any point of time. He further stated that he saw accused Saddam and Azad for the first time in the court during his evidence and further that first time their faces were shown to him by the instigating officer. He admitted that his examination in chief dated 07.09.2015 and cross-examination dated 08.09.2015 were not based upon the true facts.
State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 16/28 Considering his examination in chief and cross- examination, Ld. Prosecutor re-examined the witness. He denied the suggestion that he was knowing accused Saddam before the incident or that he was deposing in order to save the accused.
24. From the examination in chief and cross-examination of the witness, it is apparent that the witness supported the prosecution case in his examination in chief and also identified the accused as one of the offenders. However, in his cross- examination, he took a somersault and deposed contrary to what he deposed in his examination in chief.
25. Ld. Prosecutor argued that the statement made by the PW-2 in his cross-examination is a futile attempt on his part to wriggle out of his admissions which he made in the examination in chief. He further argued that in such scenario, the court must overlook the statement made by the witness in his cross- examination and can rely upon his deposition in his examination in chief.
26. On the other hand, Ld. Counsel for accused argued that the testimony of the witness is to be seen as a whole and thus, the testimony of PW-2 if considered as a whole, is not reliable. He further argued that there is nothing on record to show that PW-2 has been won over or threatened by the accused before his deposition in cross-examination by accused. Hence, the testimony of PW2 if relied as a whole does not inspire any confidence and accused deserves to be acquitted.
27. Since much emphasis has been laid down by the Ld Prosecutor and the Ld Defence Counsel as to how the testimony of a witness who has turned hostile, should be appreciated, State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 17/28 therefore, it would be apt to discuss the law on the subject of hostile witness. The Hon'ble Supreme Court has in umpteen number of cases enunciated the law on hostile witness.
28. In the case of Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 the Hon'ble Supreme Court held there is no bar to base the conviction of the accused on the testimony of a person who has been declared as hostile by the party calling the witness for his examination:
11. ......... It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. This Court in Bhagwan Singh v. State of Haryana [(1976) 1 SCC 389 :
1976 SCC (Cri) 7 : AIR 1976 SC 202] held that merely because the Court gave permission to the Public Prosecutor to cross- examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base the conviction upon the testimony of such witness...... ."
29. In the case of Sat Paul v. Delhi Admn., (1976) 1 SCC 727 the Hon,ble Apex Court laid down the law in the following words:
"52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-exami- nation and contradiction, the witness stands thoroughly dis- credited or can still be believed in regard to a part of his testi- mony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."
State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 18/28
30. In the judgment of Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233, the Court also laid down the similar proposition in the following words:
'12. It is also clearly well settled that the mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him an unreliable witness so as to exclude his evidence from consideration altogether..."
31. The said approach was again opted by the Hon'ble Apex Court in the case of Khujji v. State of M.P., (1991) 3 SCC 627 in the following manner:
6. ........... But counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this Court -- Bhagwan Singh v. State of Haryana [(1976) 1 SCC 389 : 1976 SCC (Cri) 7 : (1976) 2 SCR 921] , Rabindra Kumar Dey v. State of Orissa [(1976) 4 SCC 233 : 1976 SCC (Cri) 566 : AIR 1977 SC 170] and Syad Akbar v. State of Karnataka [(1980) 1 SCC 30 : 1980 SCC (Cri) 59 : (1980) 1 SCR 95] -- that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."
32. Therefore, in view of the aforesaid judgments of the Hon'ble Apex Court it is settled that the testimony of a hostile witness cannot be effaced altogether from the record. It has also been settled that there is no bar in convicting the accused who has been declared by the prosecution as the term hostile witness is a misnomer. Moreover, there might be a situation where the witness has supported the case of the prosecution in the State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 19/28 examination of chief however for some reason his cross examination is deferred for some time and in his cross examination the witness took another stand which is different what he adopted in the examination of chief. In such a situation how the testimony of the witness should be appreciated was directly for consideration before the Hon'ble Supreme Court in the case of Khujji v. State of M.P., (1991) 3 SCC 627. The relevant observations of the Court are reproduced here as under:-
"7......... The examination-in-chief of this witness was recorded on November 16, 1976 when he identified all the assailants by name ********************************. His cross-examination commenced on December 15, 1978. In his cross-examination he stated that the appellant Khujji and Gudda had their backs towards him and hence he could not see their faces while he could identify the remaining four persons. He stated that he had inferred that the other two persons were the appellant and Gudda. On the basis of this statement Mr Lalit submitted that the evidence regarding the identity of the appellant is rendered highly doubtful and it would be hazardous to convict the appellant solely on the basis of identification by such a wavering witness. The High Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examination-in-chief something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied on a reading of his entire evidence that his statement in cross- examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-
chief.............."( emphasis supplied)
33. In the case of Vinod Kumar v. State of Punjab, (2015) 3 SCC 220, the Hon'ble Supreme Court observed as under:
"57.2. As has been noticed earlier, in the instant case the cross-examination has taken place after a year and 8 months allowing ample time to pressurise the witness and to gain over him by adopting all kinds of tactics."
State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 20/28
34. The Court in Vinod Kumar (supra) penned down a caution that the cross examination of the witness should be conducted as expeditiously as possible and there should not be any undue delay in the same.
"57.4. In fact, it is not at all appreciable to call a witness for cross-examination after such a long span of time. It is imperative if the examination-in-chief is over, the cross- examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial."
35. In the case of Rajesh Yadav v. State of U.P., (2022) 12 SCC 200, on a witness who has supported the case of the party who called him but turned hostile in the cross examination, the following observations of the Court is worth reproduction for the sake of benefit:
"22. The expression "hostile witness" does not find a place in the Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. We must bear it in mind that a witness may depose in favour of a party in whose favour it is meant to be giving through his chief- examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief- examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief- examination could be termed as evidence. Such evidence would become complete after the cross-examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief- examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 21/28 could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion."
36. In view of the aforesaid propositions of law, let us appreci- ate the testimony of PW-2 Dheeraj Mehto and PW-4 Heera. Record reveals that PW- Dheeraj was examined on 07.09.2015. He was cross-examined by accused Azad. However, he was not cross-examined by accused Saddam at all. In his examination-in- chief, he deposed consistently to the case of the prosecution. In his cross-examination by accused Azad, his testimony could not be shaken and he passed the test of cross-examination. The cross- examination by accused Azad shows that he remained consistent to the material particulars of the case of the prosecution. He stated in cross-examination that he was aware of the dispute be- tween the accused and Samarjeet.
As I have already discussed that he was recalled for cross- examination on behalf of accused Saddam as per the direction of Hon'ble High Court, he was cross-examined by the accused on 21.07.2023. Therefore, this cross-examination by accused Sad- dam was conducted almost eight years after his examination-in- chief. In the cross-examination on 21.07.2023, he stated that he did not see the incident of firing. He further stated that Saddam and Azad were not involved in the incident. He further stated that he saw the accused persons for the first time in the court. He fur- ther stated that he had never met accused Saddam and Azad at any point of time and further that he identified the accused at the instance of the IO.
He was re-examined by the Ld. Prosecutor in view of his cross-examination. In the re-examination, he admitted that he and State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 22/28 accused Saddam were currently lodged in the same jail. He fur- ther stated that he did not inform the court on the day when he was examined-in-chief and cross-examined by accused Azad that he was asked by the IO to identify the accused in the court.
37. Therefore, it is apparent that the witness PW-2 supported the case of the prosecution in examination-in-chief and supported the case. However, after a gap of almost eight years, he was cross-examined by the accused where he turned hostile. Hence, in view of the aforesaid propositions of law, this court is of the considered opinion that the testimony of this witness is not ef- faced completely off the record and can be relied upon. It is clearly an attempt on the part of the witness to wriggle out from the admissions he made in his examination-in-chief. His cross- examination by the accused was an effort by him to have a bene- fit from the doubts he proposed to create in the cross-examina- tion, which in considered opinion of this court, is not permissible in law. Therefore, I opine that the testimony of PW-2 if consid- ered as a whole, points out that it was accused Saddam, who shot bullet at PW- Samarjeet, which hit injured Heera.
38. Moreover, PW-4 injured Heera has also deposed about the incident and that he was hit by bullet on his stomach. He deposed that Dheeraj and Samarjeet took him to nursing home and there- after to the DDU hospital. Although, he did not identify the ac- cused Saddam as the person, who caused gun -shot injury to him and accused Azad as the person, who came along with Saddam in the park. He was cross-examined by the Ld. Prosecutor as he did not support the case of prosecution on identification, but he de- nied the involvement of accused Saddam and Azad.
State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 23/28
39. Therefore, the testimony of PW- Heera shows that he de- posed about the incident and he receiving gun- shot injury on his stomach. It is settled principle of law that testimony of a witness, who is hostile in part, can be taken to corroborate the other evi- dence on the record. Hence, he has corroborated the testimony of PW-2 Dheeraj as far as the incident and the injury to him are con- cerned.
40. The incident and the injury received by PW4 Heera also find corroboration from the testimony of PW-1 Dr. Naorem Bobo Singh, PW-15 Dr. Mukesh and the MLC Ex.PW-1/A. PW-1 Dr. Naorem Bobo Singh deposed that on 29.03.2024, at about 8.10 p.m patient namely Heera with gun -shot injury was brought to the hospital by one Dheeraj. He prepared the MLC and sent the patient to the Surgery Department for further management.
41. PW-15 Dr. Mukesh also deposed on the same lines. He also deposed that patient Heera was brought by Dheeraj with gun- shot injury. He deposed that the injury of the patient was dangerous for his life.
42. The MLC Ex.PW-1/A of patient Heera shows that he was brought by his brother in the hospital. Hence, the deposition of doctors PW-1 and PW-15 as well as the MLC corroborate the fact that Heera suffered gun- shot injury and he was brought to the hospital by his brother Dheera. The MLC shows that the doctor opined the injury to be the dangerous to the life of patient. The MLC had shown that there was gun- shot injury over abdomen on the left side flank region.
43. Hence, the testimonies of the doctors and the MLC prove two things beyond reasonable doubt. The first is that the victim State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 24/28 had gunshot injury on his stomach and, secondly he was brought to the hospital by his brother Dheeraj. The medical record is con- temporaneous to the incident in question and corroborate the oral testimonies of the witnesses. Hence, same is sufficient to draw an analogy that it was accused Saddam, who shot Heera in his stom- ach with a firearm and Heera was taken to the hospital by Dheeraj and further that the injury was dangerous to his life.
44. Considering the above discussions, I am of the opinion that the prosecution has proved beyond reasonable doubt that accused Saddam caused gun short injury to injured Heera and accord- ingly, has also proved the commission of offence u/s 307/34 IPC against the accused Saddam.
45. The accused has also been charged for the commission of offence u/s 25 Arms Act. The record reveals that the offence was committed on 29.03.2014. The accused Saddam was arrested on 23.04.2014 and at the time of arrest, he was found in possession of one country made katta with live cartridge in it. He was also found in possession of another live cartridge as well. The prose- cution has relied upon the testimonies of PW-3 Ct. Diwan, PW- 12 ASI Dipender and PW-13 SI Sandeep, who were the part of the team, which apprehended the accused.
46. A question herein arises whether the accused could have been tried for the offence u/s 25 Arms Act alongwith the offence u/s 307/34 IPC. Here the reproduction of section 220 Cr.P.C would be apt to understand the problem. The same is reproduced as under:-
"220. Trial for more than one offence (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are com-
State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 25/28 mitted by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section (2) of section 212 or in sub-section (1) of section 219, is accused of committing, for the purpose of facilitating of concealing of commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.
(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person, accused of them may be charged with, and tried at one trial for, each of such offences.
(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence consti- tuted by such acts when combined, and for any offence consti- tuted by any one, or more, of such acts.
(5) Nothing contained in this section shall affect section 71 of the Indian Penal Code, 1860 (45 of 1860)."
47. A careful reading of sub-section (1) of Section 220 shows that when a person commits more offences than one in one series of acts so connected together, which form part of the same trans- action he may be charged with all of the offences and tried at one trial for every such offence. Therefore, if more than one offence are committed in the same transaction, the law permits the charge and trial of each offence thereto.
48. However, it is necessary that all such offences must have been committed in the course of the same transaction. What do we mean by same transaction? The same has been deliberated and decided by the Hon'ble Supreme Court in the various judg- ments. In the case of Mohan Baitha v. State of Bihar, (2001) 4 SCC 350, the relevant of the Hon'ble Supreme Court in this re- gard is reproduced hereunder:-
State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 26/28 "4........It may be noticed that under Section 220 of the Code of Criminal Procedure, offences more than one committed by the same persons could be tried at one trial, if they can be held to be in one series of acts, so as to form the same transaction.
The expression "same transaction" from its very nature is inca- pable of an exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense and the ordi- nary use of language must decide whether on the facts of a par- ticular case, it can be held to be in one transaction. It is not pos- sible to enunciate any comprehensive formula of universal ap- plication for the purpose of determining whether two or more acts constitute the same transaction. But the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action and community of purpose or design are the factors for deciding whether certain acts form parts of the same transaction or not. Therefore a series of acts whether are so connected together as to form the same transaction is purely a question of fact to be decided on the aforesaid criteria. ....."
49. The judgment of Mohan Baitha (supra), was followed by the Hon'ble Supreme Court in the cases of Anju Chaudhary Vs State of U.P (2013) 6SCC 384 and Ms. P Vs State of Uttrakhand 2022 LiveLaw (SC) 554 wherein the aforementioned legal proposition was approved.
50. In view of the aforesaid proposition of law on Section 220 and especially on the aspect of same transaction, let us discuss the facts of the case if the possession of the fire arm by accused Saddam was the part of same transaction wherein injured Heera suffered gun-shot injury. Admittedly, no bullet was recovered from the spot, nor any bullet was recovered from the body of injured. It is only the fired cartridge which could have connected the fire arm allegedly recovered from accused Saddam. Prosecution knew from the inception that no bullet had been recovered in this case and therefore, the alleged fire arm recovered from accused Saddam, could not have been connected with the incident of causing gunshot injury to victim Heera. Had State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 27/28 it been the case that a bullet had been recovered, which was likely to be connected with the fire arm, the prosecution would have well been within its right to investigate the offence of possession of fire arm in the present FIR. The only logical conclusion which one can arrive into is that the act of accused causing injury to victim by gun-shot and the recovery of the fire arm are not the part of the same transaction. Hence, the offence of section 25 Arms Act could not have been investigated and clubbed in the present FIR. Accordingly, in my considered opinion, the accused could not have been tried in this trial for the offence u/s 25 Arms Act with the offence of Section 307/34 IPC. Hence, accused Saddam is entitled to be acquitted from the offence u/s 25 Arms Act.
Conclusion:
51. In view of the aforesaid discussion, it is held as follows:-
i) Accused Saddam @ Md. Gauri stands convicted for the offence U/s 307/34 IPC.
ii) Accused Saddam @ Md. Gauri stands acquitted for the offence u/s 25 Arms Act.
52. Let the accused be heard on the point of sentence.
Pronounced in the open Court on 14-02-2024. (HEM RAJ) Additional Sessions Judge-08 (West) Tis Hazari Courts Delhi State Vs Saddam @ Md. Gauri & Anr. SC No. 56082/2016 FIR No. 321/2014 28/28