Delhi District Court
Discard His / Her Entire Testimony. It ... vs The State on 26 April, 2011
IN THE COURT OF SH RAJ PAUL SINGH TEJI: ADDL. SESSIONS JUDGE(FAST TRACK COURT) NORTHEAST, KARKARDOOMA COURTS:SHAHDRA:DELHI Case I.D. No. R0000892002 SC No.09/09 State Versus 1.
Mohd Salim @ Salim S/o Mohd Yasin R/o H.No. 121, Gali No. 16, Mustafabad, PS Gokalpuri, Delhi. (Expired on 10.12.08)
2. Mohd. Azad S/o Sh Ali Sher R/o H.No. 20, New Mustafabad.
PS Gokalpuri, Delhi.
FIR No. 121/2001 P.S. Welcome U/s 323/342/506/307/34 IPC Date of Institution : 23.03.2002 Date on which order was reserved : 05.04.2011 Date of decision : 26.04.2011 J U D G M E N T
1. Accused persons were sent to face trial for the commission of offence punishable U/s 323/342/506/307/34 IPC by the police of Welcome. The charge as framed by the then Ld. ASJ Sh O.P.Gupta against the accused persons reads as under:
"that on 16.4.2001 at about 1.30 pm in front of H. No. 1101, Gali No.5, Kabir Nagar, Delhi, you all in SC No.09/09 Page 1/23 furtherence of yor common intention voluntarily caused simple hurt (blunt) to Noor Jahan and thereby committed an offence punishable U/s 323/34 IPC.
Secondly, on the aforesaid date, time and place you both in furtherance of your common intention wrongfully confined Samina and thereby committed an offence punishable U/s 342/34 IPC. Thirdly on the aforesaid date, time and place you all in furtherance of your common intention fired on Inam and Taj Mohd. with such intention or knowledge and under such circumstance that, if by that act, you had caused their death, you would have been guilty of murder and that thereby committed an offence punishable U/s 307/34 IPC. Fourthly on the aforesaid date, time and place you all in furtherance of your common intention criminally intimidated to kill Samina and others and thereby committed an offence punishable U/s 506 (II)/34 IPC and within my cognizance. Separate charges U/s 25 (1B) Arms Act were also framed by the Sh. Mahavir Singhal Ld. ASJ against the accused persons Mohd Azad and Mohd Salim.
2. Accused persons pleaded not guilty to the aforesaid charge and claimed SC No.09/09 Page 2/23 trial.
3. The case of prosecution in brief is that on 16.04.2001 on receipt of DD No. 7 A IO SI Anand Prakash went to Gali No. 5 Kabir Nagar along with Ct. Manohar Lal where he found HC Satbir and motorcycle rider Ct. Harinder Kumar. Accused Mohd. Salim was apprehended by HC Satbir who was having a country made pistol and accused Md. Azad was apprehended by Ct. Harinder who was having a loaded Katta. Both the accused persons were also having injuries and were bleeding. IO SI Anand Prakash took personal search of accused Salim and found two live cartridges from his right side pocket of the pant. Injured persons were sent to the GTB Hospital. After handing over fire arms recovered from the possession of accused persons to Ct. Satbir & Ct. Harinder, SI himself went to the hospital and collected the MLCs of Md. Inam, Md. Salim, Md. Azad & Noor Jahan. Doctor gave his opinion as 'u/o gunshot injury' on the MLC of Md. Inam. SI Anand Prakash recorded the statement of Md. Inam in the hospital. Inam got recorded in his statement that he is running a meat shop and his cousin Rakhan Ali is residing at Kabir Nagar. He further got recorded that on 16.04.2001 at about 1 p.m. he alongwith his cousin Taj, had gone to Kabir Nagar to meet Rakkhan. At about 1.30 pm when he was taking cold drinks in front of gali no. 5 at the shop outside alongwith his cousin Taj Mohd. and Rakkhan , they heard the noise in the gali. On hearing the noise they reached there and saw that two boys who were having pistols in their hands, had caught hold a girl and they were dragging her. They tried to SC No.09/09 Page 3/23 save the said girl, but those boys grappled with them and fired on them with Katta. He further got recorded that he received injury on his left hand and bullet also passed touching the body of Taj Mohammad on his stomach. He further stated that he alongwith Taj Mohd., apprehended those boys at the spot. He further got recorded that one boy disclosed his name as Salim and the other as Md. Azad. He further stated that meanwhile PCR van came at the spot and took him and his friend Taj Mohd. to GTB hospital. He further got recorded that Md. Salim and Md. Azad were forcibly taking away the girl namely Samina and they also threatening her to kill & also fired upon them. On the basis of statement of Mohd. Inam, a case U/s 323/342/506/307/34 IPC & 27/54/59 Arms Act was got registered against both the accused persons. During the investigations IO visited the place of occurrence, prepared site plan, recorded the statement of the witnesses, prepared the seizure memos of Kattas and cartridges and arrested the accused persons. Thereafter investigation of case was handed over to SI Rajesh Dangwal due to transfer of SI Anand Prakash. Kattas and cartridges, recovered from the possession of the accused persons, were got deposited in FSL Malviya Nagar for expert opinion. After completion of investigation, chargesheet was filed against the accused before the concerned court of Ld. M.M. Since the offence committed by accused persons was exclusively triable by the court of Sessions, Ld. M.M. committed the case to the court of Ld. District & Sessions Judge. Thereafter, this case was assigned to this court for trial. SC No.09/09 Page 4/23
4. Prosecution in support of it case has examined as many as 24 witnesses.
5. PW 1 is Dr. Praveen Sodhi who gave opinion about nature of injury on the MLC of Taj Mohd. vide EX PW 1/A. He opined the nature of injury on person of Taj Mohd. as simple.
6. PW 2 SI Anand Prakash is first IO of the case. He has deposed that on 16.04.2001 on receipt of DD No. 7A he went to Gali No. 5 Kabir Nagar alongwith Ct.Manohar Lal where he found HC Satbir alongwith motorcycle rider Ct.Harinder. He has further deposed that HC Satbir produced accused Md. Salim alongwith country made pistol while Ct. Harinder produced accused Azad and both accused were bleeding. He has further deposed that he took personal search of accused Salim and found two live cartridges from his pant pocket. He further deposed that meanwhile Ct. Raj Pal reached the spot on his message and he sent Ct. Raj Pal alongwith both the accused to GTB Hospital as both were injured. He further deposed that after handing over the fire arms recovered from both the accused to Ct. Satbir and Ct. Harinder he left the spot for hospital after instructing both of them to remain at the spot and collected the MLCs and after collecting MLCs of injured persons recorded statement EX PW 2/A. He further deposed that he took country made pistol alongwith an empty cartridge and two live cartridges from HC Satbir Singh and prepared sketch EX PW 2/B of these fire arms and also prepared the sketch of country made pistol and the live cartridges which is EX PW 2/C and the fire arms recovered from accused Md. Azad was seized after sealing in a cloth parcel with SC No.09/09 Page 5/23 the seal of APS vide memo EX PW 2/D and similarly the fire arms recovered from Mohd. Salim was also sealed in a cloth parcel with seall of APS and seized vide memo EX PW 2/E. He further deposed that he prepared rukka EX PW 2/F and the same through constable for the registration of the case. He further deposed that he prepared site plan vide EX PW 2/G and recorded the statement of the witnesses HC Satbir, Ct.Harinder, Ct. Manohar & Ct. Raj Pal and also recorded the statement of companion of Md. Inam who was also admitted in the hospital as the bullet has scratched across his chest and stomach.
7. PW 3 is Sh. Girish Chand , Record Clerk from GTB Hospital. He has deposed that he has worked at GTB Hospital for the last 18 years and during his tenure in the hospital he has seen Dr.P.K Aggarwal and Dr. Praduyut kumar signing and writing a number of times. He further deposed that he has dealt with the documents written by these two doctors so he is conversant with their hand writing and signatures. He further deposed that he has seen the MLC of Mohd.Inam & Mohd. Salim from judicial record and the opinion in EX PW 3/A & EX PW 3/B are in the hand writing of Dr. P.K.Aggarwal and signed by him.
8. PW 4 is Dr. Gopesh who examined the xray plates of Taj Mohd., Mohd. Salim and Mohd Inam and gave his opinion vide EX PW 4/A, B, & C.
9. PW 5 ASI Raghuvar Dayal is a duty officer who has deposed that on 16.04.2001 at about 5 pm he received a tehrir through Ct. Manohar Lal which was sent by SI Anand Prakash and on the basis of which he SC No.09/09 Page 6/23 recorded the FIR No. 121/01 and proved the carbon copy of the FIR as EX PW 5/A.
10. PW 6 is Noor Jahan. She has deposed that in the year 2001 she was residing as tenant at H.No. 1101 Gali No. 5 Kabir Nagar Delhi. She further deposed that she was got married with the accused Mohd. Saleem. She further deposed that accused Mohd Saleem used to beat her under the influence of liquor. She further deposed that she has two female children from the loin of accused Mohd Salim, but he did not maintain her or the children. She further deposed that before the birth of second daughter, accused had thrown her out from house and she started living with her parents. She further deposed that accused Mohd. Salim had evil eye on her younger sister namely Shamina who was aged about 14 year at the time of incident. She has further deposed that now accused Salim has divorced her and she has got remarried with Nizam. She has further deposed that she does not remember the exact date, month and year as she is illiterate but it was about 6 years ago at about 2 pm she was present at her parents' house alongwith her mother Bilkish, her younger sister Shamina and two younger sisters, both accused persons came at her house and started beatings and misbehaving her and also started taking her sister Shamina away forcibly from their house and when they objected, accused persons started giving beatings to them. She further deposed that both accused persons were having pistols in their hands. When accused persons were beating her, Mohd. Inam,Taj Mohd and Rakhan Navi suddenly came there and they SC No.09/09 Page 7/23 tried to convince the accused persons to behave properly at inlaws house upon which accused persons had fired shots from the kattas they were having in their hands. The fire passed through by hitting the palm of Inam and also hit the abdomen of Taj Mohd, as a result, they both received injuries. She has further deposed that on hearing the noise, public persons also gathered there and apprehended the accused persons and gave beatings to both of them. She has further deposed that in the meantime, someone called PCR. When police reached at the spot, accused persons were handed over to the police. Police officials also seized the Kattas recovered from the possession of accused persons. She has further deposed that police took her ,Shamina and other injured persons to GTB Hospital where they were medically examined.
11. PW 7 is Ct. Raj Pal Singh. He has deposed that on 16.04.2001 he was posted at PS Welcome. He has further deposed that at about 1.45 pm on receipt of information regarding the firing which took place at Gali No. 5 Kabir Nagar, he went there. He has further deposed that he accompanied accused persons to GTB Hospital and both of them were medically examined. He has further deposed that IO left the hospital leaving him there for safeguard of the injured persons.
12. PW 8 is ASI Satybir Singh Tyagi. He has deposed that on 16.04.2001 he was on patrolling duty alongwith Ct. Harender in the area of PS Welcome when he had received wireless message that two assailants were firing in Gali No. 5 Kabir Nagar, Welcome. He has further deposed that he alongwith Ct. Harender went there and saw that many persons SC No.09/09 Page 8/23 had gathered there. He has further deposed that public persons had apprehended two assailants namely Mohd. Saleem and Mohd. Azad had already given beatings to them. He has further deposed that from the possession of accused Saleem one Katta was recovered which was unloaded and fired cartridge was removed from it. Two live cartridges were also recovered from the pocket of his wearing pant. He further deposed that sketch of the cartridges as well as country made pistol were prepared vide EX PW 2/B. He has further deposed that from the possession of accused Mohd. another loaded country made pistol was recovered, which was unloaded and the sketch of the same was prepared vide EX PW 2/C. He has further deposed that the kattas with their cartridges were sealed by the IO with the seal of APS and seizure memo in this regard was prepared vide EX PW 2/E and EX PW 2/D. He has further deposed that PCR took the injured persons i.e. Inaam and others to the hospital for their medical examination. He has further deposed that accused persons were also taken to the hospital for their medical examination as they were also given the beatings by public persons.
13. PW 9 is Mohd. Inam. He has deposed that on 16.04.2001 at about 1.30 pm he alongwith his cousin brother Taj Mohd. and Rakhan were taking cold drinks in front of the Gali No. 5 outside the shop when they heard a noise in the gali. He alongwith his cousin brother Taj and Rakhhan reached there and found that there were two boys who were having pistols in their hands and were trying to take away a girl by catching SC No.09/09 Page 9/23 hold of her hands. He has further deposed that one of those boys fired pointing towards him and the bullet hit him on his left hand. He has further deposed that accused Mohd. Salim and Mohd. Azad are not the same boys who were having kattas in their hand and were trying to take away a girl by catching hold of her by her hands. He was declared hostile and was crossexamined by Ld. APP. In crossexamination by Ld. APP he has admitted that he gave statement ex. PW 2/A to the police which bears his signature at point X. He has denied the suggestion of Ld. APP that he has been won over by the accused persons and as such he is not identifying them voluntarily.
14. PW 10 is Ct. Hem Prakash. He has deposed that on 18.04.2001 he was posted at PS Welcome. He has further deposed that Mohd. Salilm was admitted in GTB Hospital and he was present there to guard him.
15. PW 11 is HC Sohanvir. He has deposed that on 06.06.2001 he was posted at PS Welcome. He has further deposed that on that day on the direction of the IO SI Rajesh Gangwal, he took two pullandas from the malkhana in sealed condition to deposit the same in FSL Malviya Nagar. He has further deposed that one pullanda was containing one desi katta, two live cartridges and one fired cartridge and another pullanda was containing one desi katta and one live cartridge. He has further deposed that he took aforesaid two pullandas vide RC 92/21 and after depositing the same he came back to PS and handed over the receipt to the MHC(M).
16. PW 12 is Ct. Vinay Kumar. He has deposed that on 18.04.2001 he was SC No.09/09 Page 10/23 posted at police station Welcome and on that day he alongwith SI Anand Prakash reached at GTB Hospital and SI Anand Prakash arrested one accused Mohd. Salim vide arrest memo EX PW 12/A and personal search of the accused was taken vide memo EX PW 12/B.
17. PW 13 is HC Manohar who deposed that he was posted at PS Welcome and on that day after receiving the DD No. 7A he alongwith SI Anand Prakash reached at Gali No. 5 Kabir Nagar Delhi. He has deposed on the lines of SI Anand Prakash.
18. PW 14 is ASI Major Singh. He has deposed that on 16.04.2001 he was posted in PCR North East Zone and on that day he was on duty at PCR Vehicle. He has deposed that at about 1.30 pm he received information from control room that two assailants had fired gunshot at the house no. 1101 Gali No. 5 Kabir Nagar and they have been apprehended. He has further deposed that he immediately reached there and found that two persons namely Mohd. Inam and Taj Mohd were injured with gunshot injuries. He has further deposed that he took both of them to GTB Hospital and they were handed over to the duty constable for their medical examination.
19. PW 15 is HC Umesh Kumar. He has deposed that on 18.04.2001 he was posted at police station Welcome and he was on duty as duty officer from 8 am to 4 pm. He has further deposed that on that day at about 11.45 am Ct.Hem Prakash informed that Mohd. Saleem who was injured on 16.04.01 and was admitted in GTB Hospital has been discharged from the hospital. He has further deposed that he recorded this SC No.09/09 Page 11/23 information vide DD No. 9A and handed over the DD for further proceedings to SI Anand Prakash.
20. PW 16 is ASI Rishi Pal. He has deposed that on 16.04.01 he was posted in PCR N/E Zone and on that day he was on duty as incharge on PCR Van number B 27 at Durgapuri Chowk. He has further deposed that at about 1.30 pm they received information from control room that two persons who had fired have been apprehended at Kabir Nagar Chota Madarsa. He has further deposed that he immediately reached there and local police from police station welcome was already present there. He has further deposed that he took three injured persons Noorjaha, Mohd. Azad, Mohd Saleem to GTB Hospital under the supervision of Ct. Raj Pal and thereafter, he came back on the place of occurrence where IO recorded his statement.
21. PW 17 is ASI Rajender Kumar. He has deposed that on 16.04.01 he was posted at PS Welcome as MHC(M) and on that day SI AP Sharma deposited two pullandas in sealed condition with the seal of APS containing country made pistol and cartridges. He has further deposed that on 06.06.01 the above said exhibits were sent to FSL Malviya Nagar through Ct. Sohanvir vide RC No. 92/21 and that he made entries to that respect as EX PW 17/A.
22. PW 18 is Ct. Harender. He has deposed that on 16.04.01 he was posted at PS Welcome and on that day he alongwith HC Satveer Singh on patrolling duty in the area of police station from 8 am to 8 pm on motorbike. He has further deposed that at about 1.50 pm HC Satveer SC No.09/09 Page 12/23 received wireless message that some miscreants have fired at Gali NO. 5 Kabir Nagar Welcome. He has further deposed that they immediately reached there and found two miscreants in injured condition there as public persons gave beating to them and produced before them. He has further deposed that Taj Mohd injured produced Mohd. Azad accused with loaded Katta of .315 bore and another injured Inam produced another miscreant Mohd. Saleem before them alongwith Katta of .315 bore and the same was checked and found one fired cartridge and two live cartridges were recovered from right pocket of his wearing pant. He has further deposed that meanwhile SI Anand Prakash Sharma alongwith Ct.Manohar reached at the spot. He has further deposed that they handed over the accused Mohd. Azad and Mohd. Saleem alongwith Katta and cartridges recovered to SI Anand Prakash Sharma.
23. PW 19 Rakhan Navi has not supported the case of prosecution regarding the identify of accused for which he was declared hostile and was cross examined by Ld. APP. In crossexamination he has denied the suggestion of Ld. APP that accused Azad is the same person who was caught by him on the spot.
24. PW 20 is Sh. Punit Puri Sr. Scientific officer (Ballistics) FSL Rohini. He has deposed that on 06.06.01 two sealed parcels sealed with the seal of APS were received in FSL. He has further deposed that the seal on the parcels were intact and on opening the first parcel one country made pistol .315 inch bore, two improvised 8mm/.315 inch cartridges and one improvised 8 mm/.315 inch cartridge case were found and were SC No.09/09 Page 13/23 subsequently marked as EX F2 & A3 by him. He has further deposed that on examination it was found that the country made pistols .315 inch bore marked EX F1 and F2 were in working order. Test fires were conducted successfully. He has further deposed that improvised cartridges marked EX A1 & A2 were test fired through the country made pistol marked EX F1 and test fired cartridge cases were marked as TC 1 & TC 2 by him. He has further deposed that the improvised cartridge marked EX A3 was test fired through the country made pistol marked EX F2 and the test fired cartridge case was marked as TC 3. He has further deposed that no opinion can be given regarding cartridge marked EX EC 1 whether it has been fired through either of the country made pistols marked EX F1 & F2 were firearms and the cartridges marked as EX A1 to A3 and the cartridge case marked as EX EC 1 were ammunition as defined in Arms Act. He has further deposed that his detail report in this regard is EX PW 20/A.
25. PW 21 is Sameena younger sister of PW 6 Noor Jahan. She has deposed on the same line of PW 6 Noor Jahan.
26. PW 22 is Sh. Rupinder Kumar, the then DCP N/E distt Delhi. He has deposed that on that day documents of case FIR No. 121/01 PS Welcome, police report U/s 173 Cr.P.C, ballistic report, copies of seizure memo, statement of the witnesses U/s 161 Cr.P.C were produced before him. He has further deposed that he perused the documents and after his satisfaction he gave sanction U/s 39 Arms Act against accused Mohd. Azad vide detailed report EX PW 22/A. SC No.09/09 Page 14/23
27. PW 23 is SI Rajesh Dangwal. He has deposed that he was posted at PS Welcome and investigation of this case was marked to him. He has further deposed that on 22.05.01 he collected opinion of doctor on the MLC of injured persons. He has further deposed that on 06.06.01 Ct Sohanvir was sent to FSL Malviya Nagar with the exhibits and he recorded the statement of Ct.Sohanvir and MHC(M) HC Rajender. He further deposed that during investigation ballistics expert report was collected and sanction U/s 39 Arms Act was obtained. He has further deposed that after completion of investigation charge sheet was submitted against accused Salim (since expired) and Mohd. Azad.
28. PW 24 is Dr. Banarsi CMO, GTB Hospital Delhi. He has deposed that on 16.04.2001 he was posted at GTB Hospital Shahdara Delhiand on that day he medically examined Md.Inam male 28 years old brought by HC Major Singh and after his medical examination he prepared MLC No. B137/01 vide EX PW 24/A . He has further deposed that on local examination he found lacerated wound on the left hand over hypothenar eminence 1.5 cm with blackening of skin and second injury was laceratinon on posterior aspect of left hand (5 cm X .5 cm.) over hypothenar eminence. He has further deposed that he referred the patient to Ortho Department for further treatment which opined the above said injuries as gun shot injuries. He has further deposed that on the same day he medically examined Noor Jahan wife of Mohd. Saleem female 20 years old who brought by HC Rishipal and after her medical examination he prepared MLC No. B 1371/01, the copy of the MLC is SC No.09/09 Page 15/23 proved as EX PW 24/B. He has further deposed that on local examination he found .5 cm. abrasion on left index finger. He has further deposed that the patient was complaining of pain on left palm and had abrasion of .5 cm on right hand and nature of injuries was simple and caused by blunt object. He has further deposed that he has seen MLC No. B 1372/01 of Mohd. Azad, male, 22 years, who was brought by Ct. Raj Pal dated 16.04.01 which was prepared by Dr. Bhupesh Chandi, who is not working in their hospital at present and his present address is not available in the hospital record. However, he has identied the signature and hand writing of Dr. Bhupesh Chandi. He has further deposed that according to MLC Azad was referred to surgery for stitching. The above said injuries were caused by blunt object and were simple in nature.
29. During the trial, accused Mohd. Saleem expired and proceedings against him were abated vide order dated 14.01.2009.
30. Thereafter statement of accused Mohd. Azad was recorded U/s 313 Cr.P.C. wherein he has denied the allegations against him and stated that he is innocent and has been falsely implicated in the present case.
31. I have heard arguments of Sh Sukhbeer Singh, Ld. APP for the State as well as Sh N.K. Tyagi, Ld. Counsel for accused Mohd. Azad and carefully perused the material available on record.
32. Ld. counsel for accused has strenuously argued that prosecution has failed to prove its case against the accused Mohd. Azad hence he is liable to be acquitted. He has further submitted that case of prosecution SC No.09/09 Page 16/23 is concoctedone as the complainant i.e. PW 9 Mohd. Inaam and PW 19 Rakhan Navi, an alleged eyewitness have not supported the case of prosecution despite crossexamination by Ld. APP. Ld. Counsel has further submitted that complainant in his testimony on oath has specifically deposed that accused Mohd. Azad is not the same boy who alongwith his coaccused Mohd. Saleem(since deceased) were trying to take away the girl. Ld. Counsel for accused has further pointed out that PW 19 Rakhan Navi has too stated in his examination that accused Mohd.Azad was not present at the place of incident. Ld. Counsel for accused has further argued that PW 6 Noor Jahan and PW 21 Smt. Sameena are real sisters and hence they are interested witnesses and their testimonies can not be relied upon. It has been further argued by Ld. Counsel for the accused that Smt. Noor Jahan has not disclosed the names of assailants to the doctor at the very first instance which clearly suggests that accused has been falsely implicated in this case. Ld. Counsel for accused has further submitted that at the time of alleged occurrence, accused Mohd. Azad was taking food in the hotel and he was falsely implicated being the friend of Mohd. Saleem whereas he has nothing to do with the present quarrel. It has been further submitted that there are material contradictions in the testimonies of witnesses which go to the root of the matter and caused serious doubt in the case of prosecution. On these grounds, it has been submitted that accused is liable to be acquitted.
33. On the other hand Ld. APP for the State has submitted that prosecution SC No.09/09 Page 17/23 has successfully proved its case against the accused and hence he is liable to be convicted. He has submitted that PW 6 Noor Jahan and PW 21 Smt. Sameena have fully supported the case of prosecution. Ld. APP has further submitted that PW 6 Smt. Noor Jahan was not cross examined by accused despite opportunity given to him whereas testimony of PW 21 has not been shattered by Ld. Counsel for accused despite lengthy crossexamination. He has further submitted that no doubt PW 9 Mohd. Inam and PW 19 Rakhan Navi have not supported the prosecution case regarding the identity of accused but still they have admitted about the occurrence which took place on the day, time and place in question. He has submitted that identity of accused has been established on record from the testimonies of PW 6, PW 21 and other police officials. He has further submitted that contradictions pointed out by Ld. Defence counsel are minor in nature and do not go to the root of the case of prosecution and the same can be safely ignored. He has submitted that prosecution has successfully proved its case against the accused and he is liable to be convicted.
34. The main contention raised by Ld. Counsel for the accused is that complainant Mohd. Inam(PW 9) and Rakhan Navi(PW 19) have not supported the case of prosecution. I have carefully gone through the testimonies of both these witnesses. It is true that both of them have not identified the accused but at the same time I would like to mention here that both of them have admitted about the incident and have stated that two boys were trying to forcibly take away the girl namely Sameena and SC No.09/09 Page 18/23 when they tried to save the girl from the clutches of those boys, one of them fired towards them as a result of which they received injuries. As regards the identity of accused, prosecution has examined PW 6 Noor Jahan who have specifically deposed that it was the accused Mohd. Azad who alongwith his coaccused namely Saleem(since deceased) came to their house and started taking away her younger sister Sameena and when she objected, both of them started beating her. She has further deposed that both of them were having pistols in their hands. She has further deposed that when she raised alarm, public persons namely Mohd. Inam, Taj Mohd. and Rakhan Navi reached there. She has further deposed that accused persons had fired shots towards them which passed through by hitting the palm of Mohd. Inam and also hit the abdomen of Taj Mohd. She has correctly identified both the accused persons. Similarly PW 21 Sameena has corroborated the testimony of her sister and she too has identified the accused Mohd. Azad. It is well settled that even if a witness is declared as hostile, same is not enough to discard his / her entire testimony. It was held in case Raju Vs The State (Delhi Administration), 1985 (2) Crimes 90 that where a prosecution witness turns hostile that fact does not completely efface his evidence. His evidence still remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. In Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 it was observed that by giving permission to crossexamine nothing SC No.09/09 Page 19/23 adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is crossexamined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of fact to consider in each case whether as a result of such cross examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy.
35. It was also argued by Ld. Counsel for accused that PWs namely Noor Jahan and PW Sameena are related witnesses and hence they are interested witnesses. I do not agree with the contention of Ld. Counsel for accused on this score. For the mere reason that witnesses are related witnesses, they cannot be said to be interested witnesses. It is settled law that testimonies of related witnesses need not be rejected, when the evidence was consistent and the version of the witnesses tallied with each other.
36. Ld. counsel for accused has also contended that PW Noor Jahan has not disclosed the names of assailants to the doctor at the very instance. No doubt injured Noor Jahan(PW 6) had not disclosed the names of assailants at the very instance but her testimony cannot be discarded on SC No.09/09 Page 20/23 this ground alone. There is no rule of law that where witnesses failed to disclose the names of assailants to the doctor, the evidence of these witnesses cannot be accepted. It is settled law that eyewitness's account should not be brushed aside lightly while appraising evidence. While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. After going through the testimony of PW Noor Jahan, I am of the view that contention of Ld. Counsel for accused does not hold any water.
37. Ld. counsel for accused persons has also taken a defence that accused Mohd. Azad was taking food at the hotel at the relevant time and he was falsely implicated. First of all I would like to mention here that no such witness has been produced by the accused in his defence. Even no such complaint was made or proved on record by the accused regarding his false implication in this case. Rather it is the case of prosecution that when PW Noor Jahan raised alarm, public persons gathered there and they apprehended both the accused persons and gave beatings to them. Admittedly accused was got medically examined. Prosecution has proved on record the MLC of accused Mohd. Azad which is ex. PW 4/C. Accused was examined by Dr. Bhupesh Chandi who has found five injuries on his person. No explanation has been given by the accused with regard to the injuries received by them. Hence defence taken by accused cannot be believed at all.
38. As stated above, PW 6 Noor Jahan has fully supported the case of SC No.09/09 Page 21/23 prosecution. She has identified the accused Mohd. Azad as the assailant. She has specifically deposed that it was the accused Mohd. Azad who alongwith his coaccused namely Saleem(since deceased) came to their house and started taking away her younger sister Sameena and when she objected, both of them started beating her. She has further deposed that both of them were having pistols in their hands. She has further deposed that when she raised alarm, public persons namely Mohd. Inam, Taj Mohd. and Rakhan Navi reached there. She has further deposed that accused persons had fired shots towards them which passed through by hitting the palm of Mohd. Inam and also hit the abdomen of Taj Mohd. It is pertinent to mention here that PW 6 was not crossexamined by Ld. Counsel for accused and her testimony has gone unrebutted which amounts to an admission on the part of accused. Further PW 21 Sameena who is the sister of PW 6 Noor Jahana has also fully supported the case of prosecution. It has also come in the testimonies of PW 6 & PW 21 that accused persons had threatened to kill them if they raised alarm. I have also gone through the cross examination of PW Sameena and the counsel for the accused could not make any dent in the crossexamination which could impeach her credibility. Further PW 9 Mohd. Inam and PW 19 Rakhan Navi have also admitted about the incident and the injuries received by them. MLC of Mohd. Inam has been proved on record which is ex. as PW 24/A wherein it has been mentioned that injured has received the gun shot injury in his left hand and the nature of injury has also been opined SC No.09/09 Page 22/23 as grievous injury. I have also gone through the MLCs of injured Noor Jahan and Taj Mohd. which are ex. PW 4/B and PW 1/A respectively wherein the doctor has opined the nature of injury as simple. From the evidence available on record, it has been proved on record that accused persons were not only having the common intention but they were having a set of premeditated designs in what manner they were to act and what object was to be achieved through their acts. Considering the totality of the circumstances, I am of the view that prosecution has successfully proved its case against the accused Mohd. Azad for the offence U/s 323/342/307/506II/34 IPC.
39. So far as the offence U/s 25 Arms Act is concerned, it has come in the testimony of PW 18 Ct. Harender that Taj Mohd produced Mohd. Azad with a loaded katta. Admittedly Taj Mohd. has not been examined by the prosecution. Further PW 21 Sameena in her examination in chief has deposed that kattas which the accused persons were carrying were taken into possession by the police which were lying on the ground at that time. This creates a doubt with regard to the recovery of katta from the possession of accused Mohd. Azad. In my view, prosecution has failed to prove its case for the offence U/s 25 Arms Act beyond reasonable doubt. Consequently, accused Mohd. Azad is acquitted U/s 25 Arms Act.
ANNOUNCED IN OPEN COURT (RAJ PAUL SINGH TEJI)
ON 26.04.2011 ADDL.SESSIONS JUDGE(FTC)
NORTHEAST:KARKARDOOMA COURTS:
SHAHDRA
SC No.09/09 Page 23/23