Delhi District Court
State vs Shammi @ Somnath Etc on 25 October, 2023
IN THE COURT OF MS. SHEFALI SHARMA:
ADDL. SESSIONS JUDGE-02( NORTH ):
ROHINI DISTRICT COURTS : DELHI
In the matter of:-
(Sessions Case No. 70/2020)
FIR No. 546/2019
Police Station Jahangir Puri
Charge sheet filed 307/34 IPC & 25/27Arms
Under Section Act
Charge framed Under 307/34 IPC & 25/27 Arms
Section Arms Act
State Vs. (1) Shammi @ Somnath
S/o Suresh Kumar
R/o G-626, Jahangir Puri,
Delhi.
(2) Sonkar Paras
S/o Rajinder
R/o G-578, Jahangir Puri,
Delhi.
(3) Sagar
S/o Mithanchand Sonkar
R/o G-671, Jahangir Puri,
Delhi.
...Accused Persons
Date of institution 05.02.2020
Arguments concluded on 12.10.2023
Judgment Pronounced on 25.10.2023
Decision Acquittal
SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri
State Vs. Shammi @ Somnath & Ors.
Page 1 of 33
JUDGMENT
BRIEF FACTS
1. Events which set the prosecution machinery into motion are that on 03.11.2019 at about 8.30 to 9.00 p.m. the injured persons namely Dilshad, Shammim and Moinuddin were sitting in a park near a gali, Jahangir Puri, when they heard a noise of quarrel and saw 20 to 25 boys quarreling with each and abusing loudly when suddenly the accused persons fired a shot at and one Shammim and even his other friends Moinuddin and Dilshad sustained fire shot injuries. DD No.76A was received soon thereafter from BJRM Hospital upon which Ct.Joginder and SI Manish, who were on emergency night duty that day, reached the hospital and collected the MLCs of the injured and they came to know that injured persons have been referred to a higher centre, LNJP Hospital. On reaching there, they recorded the statement of one of the injured Dilshad and the IO SI Manish prepared the rukka and handed over the same to HC Joginder, who went to the PS and eventually the present FIR had been registered. Thereafter, investigation was carried out and the police party visited the place of occurrence i.e. G Block, Gali Jahangir Puri, where live cartridges and empty cartridges were found and seized and sent for further investigation and the accused Shammi @ Somnath was apprehended and upon his disclosure, other accused were arrested.
2. During investigation, the IO recorded statement of SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 2 of 33the witnesses and after completion of investigation, charge sheet for the offence under Section 307/34 IPC & 25/27 Arms Act was filed in the court.
CHARGE
3. On committal of the case to the Court of Sessions, vide order dated 05.07.2022 charge under Section 307/34 IPC was found to be made out against all accused persons. In addition charge under Section 25/27 Arms was also found to be made out against accused Shammi @ Somnath. The formal charge under Section 307/34 IPC was framed against all accused persons and charge under Section 25/27 Arms Act was framed only against Shammi @ Somnath, on the said date. Accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. Thereafter, prosecution in support of its case have examined 09 witnesses in all.
PW1 Dilshad, is the injured whose deposition is as under:
"On 03.11.2019 at about 08:30 PM I alongwith Moinuddin and Shammim were sitting in a pahadi park, one number gali, Jahangir Puri, Delhi. We heard a noise of quarrel in gali No. 200-300. After hearing the noise we came out of park and went to the side of said gali. There were 25-30 persons/boys were quarrelling with each other and abusing loudly. Some one fired a shot which hit on my right thigh. I had not seen the person who fired shot. My friends Moinuddin and Shammim also sustained fire SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.Page 3 of 33
shots injury which was hit by some person out of those 25-30 person/boy. We all three sustained bullet injury but we had not seen the face of the person who fired a shot in the said 25-30 boys. Some of my other friends namely Sadam, Shahid who were roaming in the said area came there and took all of us to BJRM Hospital in battery rickshaw. In the BJRM Hospital I alongwith my friends Moinuddin and Shammim were medically examined. I alongwith my friends referred to other hospital i.e. LNJP Hospital where we were medically examined. Police officials of PS Jahangir Puri met us in BJRM Hospital and they obtained my signature as well as signature of my other friends on some papers. Nothing was written on those papers. Police official assured us that they would take illegal against those persons who fired shot on us. Police also assured us that they would trace/find out those persons who fired shot on us. I stayed for 4 days in LNJP Hospital thereafter I was discharged. I went to my house. I do not want to say anything else.
Witness is asked to identify if he had seen any persons/boys who were present in gali 200-300 wali, in those 25-30 boys on the date of incident. Witness look around in the court and he stated that no person present in the court who was in the group of 25-30 boys quarrelling in gali No. 200-300 wali on the date of incident."
He has identified one black colour T-shirt having holes, jeans pant having holes and white colour cut cloth piece, which he was wearing at the time of incident as Ex.P1 (colly). He was also cross examined by the Ld. Additional PP for the State as he was resiling from his earlier statement.
PW2 Shammim, is also the injured whose deposition is as under:
"On 03.11.2019 at about 08:30-09:00 PM I alongwith Moinuddin and Dilshad were SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.Page 4 of 33
sitting in a pahadi wala park, one number gali, Jahangir Puri, Delhi. We heard a noise of quarrel in gali No. 200-300. After hearing the noise we came out of park and went to the side of said gali. There were 20- 25 persons/boys were quarrelling with each other and abusing loudly. Some one fired a shot which hit on right elbow. I had not seen the person who fired shot. My friends Moinuddin and Dilshad also sustained fire shots injuries which was hit by some person out of those 20-25 person/boy. We all three sustained bullet injury but we had not seen the face of those persons who fired a shot. Some e-rickshaw driver reached there and we boarded in their rickshaw and reached in BJRM Hospital. In the BJRM Hospital I alongwith my friends were medically examined. I alongwith my friends referred to other hospital i.e. LNJP Hospital where we were medically examined. Police officials of PS Jahangir Puri met us in BJRM Hospital and they made inquiries from us. I narrated the same facts to the police which I deposed today. I stayed for 14-15 days in LNJP Hospital thereafter I was discharged. I went to my house.
I do not want to say anything else. Witness is asked to identify if he had seen any persons/boys who were present in gali 200-300 wali, in those 20-25 boys on the date of incident. Witness look around in the court and he stated that no person present in the court who was in the group of 20-25 boys quarrelling in gali No. 200-300 wali on the date of incident and fired on me. "
He has identified one jeans pant having cuts and one half sleeve shirt having brown stains with cut, which he was wearing at the time of incident, as Ex.P2 (colly).
He was also cross examined by the Ld. Additional PP for the State as he was resiling from his earlier statement.
SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 5 of 33PW3 Moinuddin, is also one of the injured whose deposition is as under:
"On 03.11.2019 at about 08:30-09:00 PM I alongwith Shammim and Dilshad were sitting in a pahadi wala park, one number gali, Jahangir Puri, Delhi. We heard a noise outside the park. After hearing the noise we came out of park and went to the side of said place from where the noise was coming. There were 30-35 persons/boys were quarrelling with each other and grappling. Someone fired a shot which hit on my left thigh. I had not seen the person who fired shot. My friends Shammim and Dilshad also sustained fire shots injuries which was hit by some person out of those 30-35 person/boy. We all three sustained bullet injury but we had not seen the face of those persons who fired a shot. My relative/father in law Kasim Ali came there and we were taken in e-rickshaw and reached in BJRM Hospital. In the BJRM Hospital I alongwith my friends were medically examined. I alongwith my friends referred to other hospital i.e. LNJP Hospital where we were medically examined. Police officials of PS Jahangir Puri met us in BJRM Hospital and they made inquiries from us. I narrated the same facts to the police which I deposed today. I stayed for 8- 10 days in LNJP Hospital thereafter I was discharged.
I do not want to say anything else. Witness is asked to identify if he had seen any persons/boys who were present in gali 200-300 wali, in those 30-35 boys on the date of incident. Witness look around in the court and he stated that no person present in the court who was in the group of 30-35 boys quarrelling in gali No. 200-300 wali on the date of incident and fired on me. "
SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 6 of 33He has identified one lower having cuts and one shirt having cuts and open cut piece of cloth, which he was wearing at the time of incident, as Ex.P3 (colly).
He was also cross examined by the Ld. Additional PP for the State as he was resiling from his earlier statement.
PW4 is ASI Ijaj Ali. He has deposed that on 04.11.2019 he was posted as HC at PS Jahangir Puri and on that day while he was present in the area he received telephonic call from the then SHO who directed him to reach G Block, Gali 200 wali, near MCD Park, Jahangir Puri and search the case property i.e. fired cartridge on the spot and he reached at the spot where HC Vishnu Dutt met him. He further deposed that he and HC Vishnu Dutt tried to search the case property i.e. fired cartridge and on search he found one empty cartridge and HC Vishnu Dutt found one live cartridge from the spot. That IO SI Manish also reached at the spot and they handed over the cartridges to him. That IO prepared sketch of the empty and live cartridges Ex.PW4/A. He further deposed that IO kept both the cartridge in a small plastic container and sealed the same with the seal of MT and took in possession vide seizure memo Ex. PW4/B. He further deposed that IO SI Manish called Ct. Jogender and Ct. Mukesh on the spot and they tried to search the accused Shammi @ Somnath, who was found in the street of the house No. G-426, Jahangir Puri and they apprehended him. He further deposed that they alongwith accused Shammi @ Somnath came back to PS and on interrogation accused Shammi @ Somnath disclosed that he alongwith accused Shonkar Paras and Sagar had committed SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 7 of 33the offence and he also disclosed that he could get recovered the pistol by which he had fired and he could also get arrested the other accused persons Paras and Sagar.
He further deposed that IO arrested the accused Shammi @ Somnath vide arrest memo Ex. PW4/C and his personal search was conducted vide memo Ex. PW4/D. That IO recorded his disclosure statement Ex. PW4/E. He further deposed that accused led them to the place of occurrence i.e. G Block, Gali 200 wali, near Park, Jahangir Puri and at his instance IO prepared pointing out memo Ex. PW4/F. He further deposed that thereafter accused Shammi @ Somnath took them to his house i.e. H. No. G-426, Jahangir Puri and he took out one pistol and five live cartridges from the bed of room of his house and produced before the IO. That IO prepared the sketch of the pistol and five live cartridges Ex. PW4/G and kept the same in a transparent plastic container and sealed the same with the seal of MT and took in possession vide seizure memo Ex. PW4/H. He further deposed that thereafter accused Shammi @ Somnath got apprehended the accused Sagar and Sonkar Paras who were standing in the street of 600 wali gali, G-Block, Jahangir Puri and they came back to PS alongwith all the three accused persons. That on interrogation accused Sagar and Sonkar Paras, they confessed their guilt and IO arrested both the accused Sagar and Sonkar Paras vide arrest memo Ex. PW4/I and Ex. PW4/J. That their personal search were conducted vide memo Ex. PW4/K and Ex. PW4/L and IO recorded their disclosure statement Ex. PW4/M Ex. PW4/N. He further deposed that both SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 8 of 33the accused persons led them to the place of occurrence and IO prepared pointing out memo at their instance vide pointing out memo Ex. PW4/O and Ex. PW4/P. Thereafter, they came back to PS. He has identified the case property i.e. one empty cartridge (written EC1 on it) as Ex.P4, one empty cartridge (written A1 on it) as Ex.P5, four live cartridges and one empty cartridge (written A2 to A6 on it) and one pistol as Ex.P6 (colly).
PW5 is HC Joginder. He has deposed that on 03.11.2019 he was posted as HC at PS Jahangir Puri. That in the intervening night of 03-04/11.2019 he alongwith SI Manish was on night emergency duty and on that day on receipt of DD No. 76A from BJRM Hospital they reached there and IO SI Manish collected the MLCs of injured Moinuddin, Shamim and Dilshad and they came to know that all the injured were referred to higher center. He further deposed that the concerned doctor of BJRM Hospital handed over the sealed parcel of clothes of all the three injured persons alongwith sample seal which were seized by the IO vide seizure memo Ex. PW5/A, Ex. PW5/B and Ex. PW5/C. He further deposed that they tried to search the eyewitnesses in the hospital but could not found. Thereafter, they went to LNJP Hospital and found that all the three injured were admitted in the hospital. That IO recorded statement of injured Dilshad who was declared fit for statement and prepared rukka and handed over the same to him for registration of the case. That IO went to the place of occurrence and asked him to reach at the place of occurrence. He further deposed that after getting the case SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 9 of 33registered they went to place of occurrence i.e. G-Block, 200 wali gali, Jahangir Puri where IO SI Manish alongwith HC Ijaj Ali, Ct. Mukesh were already present. He further deposed that he handed over the copy of FIR and original tehrir to IO. He further deposed that HC Ijaj Ali handed over one live cartridge and one empty cartridge to IO SI Manish and IO prepared sketch of the empty and live cartridges and kept both the cartridge in a small plastic container and sealed the same with the seal of MT and took in possession. He further deposed that they tried to search the accused Shammi @ Somnath, who was found in the street of the house No. G-426, Jahangir Puri and they apprehended him. He further deposed that they alongwith accused Shammi @ Somnath came back to PS and on interrogation accused Shammi @ Somnath disclosed that he alongwith accused Shonkar Paras and Sagar had committed the offence and he also disclosed that he could get recovered the pistol by which he had fired and he could also get arrested the other accused persons Paras and Sagar. He further deposed that IO arrested the accused Shammi @ Somnath and his personal search was conducted and also recorded his disclosure statement. He further deposed that accused led them to the place of occurrence I.e G Block, Gali 200 wali, near Park, Jahangir Puri and at his instance IO prepared pointing out memo. He further deposed that thereafter accused Shammi @ Somnath took them to his house i.e. H. No. G-426, Jahangir Puri and took out one pistol and five live cartridges from the bed of room of his house and produced before the IO. That IO prepared the sketch of the SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 10 of 33pistol and five live cartridges and kept the same in a transparent plastic container and sealed the same with the seal of MT and took in possession vide seizure memo. That thereafter accused Shammi @ Somnath got apprehended the accused Sagar and Sonkar Paras who were standing in the street of 600 wali gali, G- Block, Jahangir Puri and thereafter they came back to PS alongwith all the three accused persons. He further deposed that on interrogation accused Sagar and Sonkar Paras, they confessed their guilt. That IO arrested both the accused Sagar and Sonkar, their personal search were conducted and IO recorded their disclosure statement. He further deposed that both the accused persons led them to the place of occurrence and IO prepared pointing out memo at their instance. That thereafter they came back to PS and both the accused persons were lodged in lockup after their medical examination.
He has also identified the case property Ex.P1 to Ex.P6.
PW6 is SI Manish. He has deposed that on the intervening night of 03-04/11.2019 he alongwith Ct. Jogender were on night emergency duty and on that day on receipt of DD No. 76A Ex. P3 from BJRM Hospital they reached there and he collected the MLCs of injured Moinuddin, Shamim and Dilshad and they came to know that all the injured were referred to higher center. That the concerned doctor of BJRM Hospital handed over the sealed parcel of clothes and normal saline gauze of all the three injured persons alongwith sample seal which were seized by him. He further deposed that they tried to search the SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 11 of 33eyewitnesses in the hospital but could not found. Thereafter, they went to LNJP Hospital and found that all the three injured were admitted in the hospital. He recorded statement of injured Dilshad who was declared fit for statement. He further deposed that he made endorsement Ex. PW6/A and prepared rukka and handed over the same to Ct. Jogender who was sent to PS for registration of the case. That he went to the place of occurrence i.e. G-Block, 200 wali gali, Jahangir Puri where Beat HC Ijaj Ali and Ct. Mukesh also reached at the spot and handed over him one empty cartridge and one live cartridge. He further deposed that Ct. Jogender came to the spot and handed over him the copy of FIR and original rukka further investigation. He further deposed that he put the empty and live cartridges on a paper and prepared its sketch after measuring the same and prepared the sketch of cartridges.
He further deposed that he kept both the cartridge in a small plastic container and sealed the same with the seal of MT and took the same in possession vide seizure memo. He further deposed that they tried to search the accused Shammi @ Somnath and who was found in the street of the house No. G- 626, Jahangir Puri. They apprehended him and they alongwith accused Shammi @ Somnath came back to PS and on interrogation accused Shammi @ Somnath disclosed that he alongwith accused Shonkar Paras and Sagar had committed the offence and he also disclosed that he could get recovered the pistol by which he had fired and he could also get arrested the other accused persons Paras and Sagar. He further deposed that SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 12 of 33he arrested the accused Shammi @ Somnath vide arrest memo Ex. PW4/C, conducted his personal search vide memo Ex.PW4/D and recorded his disclosure statement Ex.PW4/E.He further deposed that accused led them to the place of occurrence i.e. G Block, Gali 200 wali, near Park, Jahangir Puri and at his instance he prepared pointing out memo which Ex.PW4/F. That thereafter accused Shammi @ Somnath took them to his house i.e. H. No. G-626, Jahangir Puri and took out one pistol and five live cartridges from the bed of room of his house and produced before him. PW6 further deposed that he prepared the sketch of the pistol and five live cartridges Ex. PW4/G and the pistol and cartridges were put on a paper and its sketch was prepared after measuring the same. He further deposed that he kept the same in a transparent plastic container and sealed the same with the seal of MT and took in possession vide seizure memo Ex.PW4/H Thereafter accused Shammi @ Somnath got apprehended the accused Sagar and Sonkar Paras who were standing in the street of 600 wali gali, G-Block, Jahangir Puri. Thereafter, they came back to PS alongwith all the three accused persons and on interrogation accused Sagar and Sonkar Paras, they confessed their guilt. He further deposed that he arrested both the accused Sagar and Sonkar Paras vide arrest memo Ex. PW4/I and Ex.PW4/J, conducted their personal search vide memo Ex.PW4/K and Ex. PW4/L and also recorded their disclosure statement Ex. PW4/M & Ex. PW4/N. He further deposed that both the accused persons led them to the place of occurrence and he prepared pointing out SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 13 of 33memo at their instance vide pointing out memo Ex.PW4/O and Ex. PW4/P. Thereafter, they came back to PS and both the accused persons were lodged in lockup after their medical examination. I recorded statement of witnesses and deposited the case property with MHC(M).
He further deposed that on 06.11.2019 I recorded statement of Shamim U/s 161 Cr.P.C. That on 07.11.2019, he alongwith Dilshad went to the scene of crime and prepared site plan Ex.PW1/C at the instance of Dilshad and recorded supplementary statement of Dilshad.
He further deposed that on 25.11.2019 he went to BJRM Hospital where he obtained the opinion of doctor on the MLC of injured persons and in the hospital, doctor/hospital handed over him one sealed box/dibbi duly sealed with the seal of LNH New Delhi with sample seal which he seized vide seizure memo Ex. PW6/B. He further deposed that on 26.11.2019 he recorded statement of Moinudeen U/s 161 Cr.P.C and Section 307 IPC was attracted in the present case.
He further deposed that on 23.12.2019 on his direction Ct. Neeraj took the exhibits from HC Rajesh MHC(M) for depositing the same in FSL vide RC No. 294/21/2019. That he deposited the same and obtained the acknowledgement of FSL and copy of RC which he handed over to MHC(M) on his return to PS. He further deposed that on 03.01.2020 on his direction Ct. Neeraj took the exhibits from HC Pritam MHC(M) for SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 14 of 33depositing the same in FSL vide RC No. 8/21/2020. That he deposited the same and obtained the acknowledgement of FSL and copy of RC which he handed over to MHC(M) on his return to PS. He has also identified the case property Ex.P4 to Ex.P6.
PW7 is Dr. Puneet Puri. He has deposed as under:
"On 03.01.2020, thirteen sealed parcels, parcel No. 1, 2 and 3 were sealed with the seal of MT, parcel No. 4 was sealed with the seal of LNH NEW DELHI and parcel No. 5 to 13 were sealed with the seal of SEAL-1, CASUALTY BJRM HOSPITAL DELHI of this present case were received in FSL through Ct. Neeraj and same were marked to me for examination. The seals on the parcels were intact and as per the specimen seals provided with the FSL Form. On opening the first parcel one 7.65 mm cartridge case was taken out and marked as Ex. EC1 by me.
On opening the second parcel one 7.65 mm cartridge was taken out and marked as Ex. A1 by me.
On opening the third parcel one improvised pistol of 7.65 mm bore and five 7.65 mm cartridges were taken out and marked as Ex. F1 and A2 to A6 respectively by me. On opening the fourth parcel one bullet was taken out and marked as Ex. EB1 by me. On opening the fifth parcel one swab said to be taken from the wound of injured Shamim was taken out and marked as Ex. S1 by me. On opening the sixth parcel one swab said to be taken from the left hand of injured Shamim was taken out and marked as Ex. S2 by me.
On opening the seventh parcel one swab said to be taken from the right hand of injured Shamim was taken out and marked as Ex. S3 by me.
SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.Page 15 of 33
On opening the eighth parcel one control swab said to be taken from injured Shamim was taken out and marked as Ex. C1 by me. On opening the ninth parcel one swab said to be taken from the wound of No. 1 of injured Moinunddin was taken out and marked as Ex. S4 by me.
On opening the tenth parcel one swab said to be taken from the wound of No. 2 of injured Moinunddin was taken out and marked as Ex. S5 by me.
On opening the eleventh parcel one swab said to be taken from left hand of injured Moinunddin was taken out and marked as Ex. S6 by me.
On opening the twelfth parcel one swab said to be taken from the right hand of injured Moinunddin was taken out and marked as Ex. S7 by me.
On opening the thirteenth parcel one control swab said to be taken from injured Moinunddin was taken out and marked as Ex. C2 by me.
On examination I found that one swab was taken from the barrel of improvised pistol before test firing marked Ex. F1 showed sign of discharge.
The improvise pistol marked Ex. F1 was in working order. Test fired was conducted successfully by using the cartridges marked Ex. A1, A2 and the test fired cartridges cases were marked as TC1, TC2 and the two recovered test fired bullets were marked as TB1 and TB2.
The cartridge case marked Ex. EC1 was a fired empty cartridge and had been fired through the improvised pistol marked Ex. F1 as the individual characteristics of firing pin marks and breech face marks present on evidence cartridge case marked Ex. EC1 and on test fired cartridge cases marked TC1 and TC2 were found identical when examined under the comparison microscope.
The bullet marked Ex. EB1 was corresponding to the bullet of 7.65 mm cartridge and had been discharged through SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.Page 16 of 33
the improvised pistol marked Ex. F1 as the individual characteristics of striations present evidence bullet marked Ex. EB1 and test fired bullets marked as TB1 and TB2 were found identical when examined under the comparison microscope.
The swabs marked Ex. S1 to S3 alongwith control swab marked C1 were analyzed for the detection of gun shot residue particles. As a result of analyses no opinion could be given on the swabs marked S1 to S3 due to insufficient data.
The swabs marked Ex. S4 to S7 alongwith control swab marked C2 were analyzed for the detection of gun shot residue particles. As a result of analyses no opinion could be given on the swabs marked S4 to S7 due to insufficient data.
The improvised pistol marked Ex. F1 was a firearm, the cartridges marked Ex. A1 to A6, cartridge case marked Ex. EC1 and the bullet marked Ex. EB1 were ammunition as defined in Arms Act 1959. The exhibits were re-sealed with the seal of PP FSL DELHI. My detailed report in this regard is Ex. PW7/A bearing my signature at point A running into 4 pages."
PW8 is SI Bhupesh. He has deposed that on 15.01.2022 the FSL result was handed over to him by the MHC(M) for further investigation. That he moved an application for obtaining Sanction U/s 39 Arms Act before the concerned DCP, North West District. He further deposed that on 11.03.2022 he received sanction U/s 39 Arms Act and on 08.04.2022 he filed the supplementary chargesheet.
PW9 is HC Mukesh. He has deposed that on 04.11.2019 he was posted at PS Jahangir Puri and on that day he was patrolling in the area being a beat constable. That on the directions of the SHO he reached outside the house of the SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 17 of 33accused Shammi @ Somnath. Where he met SI Manish and Ijaj Ali and Ct. Jogender who had caught accused Shammi @ Somnath. That SI Manish interrogated accused Shammi @ Somnath but he was misleading. He further deposed that they alongwith accused Shammi @ Somnath came back to PS and on interrogation accused Shammi @ Somnath disclosed that he alongwith accused Shonkar Paras and Sagar had committed the offence and he also disclosed that he could get recovered the pistol by which he had fired and he could also get arrested the other accused persons Paras and Sagar. PW9 further deposed that IO arrested the accused Shammi @ Somnath vide arrest memo Ex. PW4/C, conducted his personal search vide memo Ex.PW4/D and also recorded his disclosure statement Ex.PW4/E. He further deposed that accused led them to the place of occurrence i.e. G Block, Gali 200 wali, near Park, Jahangir Puri and at his instance IO prepared pointing out memo Ex. PW4/F. That thereafter accused Shammi @ Somnath took them to his house i.e. H. No. G-626, Jahangir Puri and took out one pistol and five live cartridges from the bed of room of his house and produced before the IO, who prepared the sketch of the pistol and five live cartridges and kept the same in a transparent plastic container and sealed the same with the seal of MT and took in possession vide seizure memo Ex.PW4/H. He further deposed that thereafter accused Shammi @ Somnath got apprehended the accused Sagar and Sonkar Paras who were standing in the street of 600 wali gali, G-Block, Jahangir Puri. That thereafter they came back to PS alongwith all the three accused persons and on SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 18 of 33interrogation accused Sagar and Sonkar Paras, they confessed their guilt. That thereafter IO arrested both the accused Sagar and Sonkar Paras vide arrest memo Ex. PW4/I and Ex. PW4/J, conducted their personal search vide memo Ex. PW4/K and Ex.PW4/L and recorded their disclosure statement Ex.PW4/M and Ex.PW4/N. He further deposed that both the accused persons led them to the place of occurrence and IO prepared pointing out memo at their instance vide pointing out memo Ex.PW4/O and Ex. PW4/P. That thereafter, they came back to PS and accused persons were lodged in lockup after their medical examination.
He has identified the case property Ex.P6, as recovered at the instance of accused Shammi @ Somnath.
STATEMENT UNDER SECTION 294 Cr.P.C.
5. Vide a separate joint statement under Section 294 Cr.P.C. recorded on 22.09.2022, accused persons admitted the following documents:
1 General Diary no. 076A dated 03.11.2019 Ex.P1 2 Certificate U/s 65B of Evidence Act Ex.P2 3 General Diary no. 070A dated 28.11.2019 Ex. P3.
4. General Diary no. 078A dated 04.11.2019 Ex.P-4
5. MLC of Moinuddin bearing no. E-265829 dated Ex.P-5 03.11.2019 prepared at BJRM Hospital
6. MLC of Shamim bearing no. E-265831 dated P-6 03.11.2019 prepared at BJRM Hospital
7. MLC of Dilshad bearing no. E-265832 dated Ex.P-7 03.11.2019 prepared at BJRM Hospital
8. Crime Report dated 04.11.2019 Ex.P-8
9. 05 photographs Ex.P-9 (colly SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 19 of 3310 Statement of HC Rajesh regarding factum of sending Ex.P-10 the seized exhibits to FSL 11 Statement of Ct Neeraj dated 23.12.19 regarding deposit Ex.P-11 of seized exhibits to FSL 12 Statement of HC Pritem regarding factum of sending Ex.P-12 the seized exhibits to FSL 13 Statement of Ct Neeraj dated 03.01.2020 regarding Ex.P13. deposit of seized exhibits to FSL 14 Statement of HC Rajiv Punia, duty constable at BJRM Ex.P14 Hospital dated 19.01.2020 STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
6. After closure of PE, the statement of the accused persons was recorded u/s 313 Cr.P.C. on 25.08.2023, wherein they denied all the evidence put to them and stated that they have been falsely implicated in the present case by the complainant, who have personal grudges against them.
Accused persons chose not to lead any defence evidence.
7. Thereafter, matter was fixed for final arguments.
ARGUMENTS
8. I have heard Sh. Harvinder Nar, Ld. Addl. PP for the State and Mr. Vijay Kumar, Ld. Counsel for all accused persons and perused the entire record.
9. It was argued by Ld. Addl. PP that the allegations SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 20 of 33levelled against the accused persons are of serious nature. It was further argued that all the witnesses have clearly proved the chain and the manner of offence and prosecution has proved the guilt of the accused persons beyond reasonable doubt.
10. Per contra, Mr. Vijay Kumar, Ld. Counsel for the accused persons has argued that accused persons have been falsely implicated. It was further argued that prime prosecution witnesses had not supported the case of the prosecution and denied all the allegations levelled against the accused persons and there was no incriminating evidence against them and the prosecution has failed to prove the case beyond reasonable doubt. Accordingly, accused persons deserve acquittal.
FINDINGS
11. The accused Shammi @ Somnath, Sonkar Paras and Sagar had been charged for the commission of offence punishable under Section 307/34 IPC. In addition, accused Shammi @ Somnath has also been charged for the offence punishable under Section 25/27 Arms Act.
12. The relevant Section is reproduced as under for the sake of clarity:
SECTION 307 IPC "Whoever does any act with such intention or knowledge, and under any circumstances that, if he by that SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.Page 21 of 33
act caused death, 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."
SECTION 34 IPC "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone".
SECTION 25 ARMS ACT "....... Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine".
13. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the European Convention for the Protection of SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 22 of 33Human Rights in Article 6 Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........
Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
14. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.
MATERIAL WITNESS/INJURED
15. The prosecution has heavily relied upon the testimony of PW1 Dilshad, PW2 Shammim and PW3 SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 23 of 33Moinuddin, who were the injured persons. At the very outset it is important to note the relevancy of the testimony of the injured.
There is settled law as stated in Abdul Sayad Vs. State of M.P. 2010 AIR SCW 5701 and also in State of U.P. Vs. Naresh and Ors. (2011) 4SCC 324 the testimony of injured witness as his own relevancy and efficacy as he has sustained injuries at the time of incident and it is unlikely that he would spare the actual assailants in order to falsely implicate someone else.
In the backdrop of aforesaid case law, I proceed to delve upon the testimony of the injured PW1, PW2 and PW3 in the present case.
PW1 Dilshad had deposed as under:
"On 03.11.2019 at about 08:30 PM I alongwith Moinuddin and Shammim were sitting in a pahadi park, one number gali, Jahangir Puri, Delhi. We heard a noise of quarrel in gali No. 200-300. After hearing the noise we came out of park and went to the side of said gali. There were 25-30 persons/boys were quarrelling with each other and abusing loudly. Some one fired a shot which hit on my right thigh. I had not seen the person who fired shot. My friends Moinuddin and Shammim also sustained fire shots injury which was hit by some person out of those 25-30 person/boy. We all three sustained bullet injury but we had not seen the face of the person who fired a shot in the said 25-30 boys. Some of my other friends namely Sadam, Shahid who were roaming in the said area came there and took all of us to BJRM Hospital in battery rickshaw. In the BJRM Hospital I alongwith my friends Moinuddin and Shammim were medically examined. I alongwith my friends referred to other hospital i.e. LNJP Hospital where we were medically examined. Police officials of PS Jahangir Puri SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.Page 24 of 33
met us in BJRM Hospital and they obtained my signature as well as signature of my other friends on some papers. Nothing was written on those papers. Police official assured us that they would take illegal against those persons who fired shot on us. Police also assured us that they would trace/find out those persons who fired shot on us. I stayed for 4 days in LNJP Hospital thereafter I was discharged. I went to my house. I do not want to say anything else.
Witness is asked to identify if he had seen any persons/boys who were present in gali 200-300 wali, in those 25-30 boys on the date of incident. Witness look around in the court and he stated that no person present in the court who was in the group of 25-30 boys quarrelling in gali No. 200-300 wali on the date of incident."
PW2 Shammim, is also the injured whose deposition is as under:
"On 03.11.2019 at about 08:30-09:00 PM I alongwith Moinuddin and Dilshad were sitting in a pahadi wala park, one number gali, Jahangir Puri, Delhi. We heard a noise of quarrel in gali No. 200-300. After hearing the noise we came out of park and went to the side of said gali. There were 20- 25 persons/boys were quarrelling with each other and abusing loudly. Some one fired a shot which hit on right elbow. I had not seen the person who fired shot. My friends Moinuddin and Dilshad also sustained fire shots injuries which was hit by some person out of those 20-25 person/boy. We all three sustained bullet injury but we had not seen the face of those persons who fired a shot. Some e-rickshaw driver reached there and we boarded in their rickshaw and reached in BJRM Hospital. In the BJRM Hospital I alongwith my friends were medically examined. I alongwith my friends referred to other hospital i.e. LNJP Hospital where we were medically examined. Police officials of SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.Page 25 of 33
PS Jahangir Puri met us in BJRM Hospital and they made inquiries from us. I narrated the same facts to the police which I deposed today. I stayed for 14-15 days in LNJP Hospital thereafter I was discharged. I went to my house.
I do not want to say anything else. Witness is asked to identify if he had seen any persons/boys who were present in gali 200-300 wali, in those 20-25 boys on the date of incident. Witness look around in the court and he stated that no person present in the court who was in the group of 20-25 boys quarrelling in gali No. 200-300 wali on the date of incident and fired on me. "
PW3 Moinuddin, is also one of the injured whose deposition is as under:
"On 03.11.2019 at about 08:30-09:00 PM I alongwith Shammim and Dilshad were sitting in a pahadi wala park, one number gali, Jahangir Puri, Delhi. We heard a noise outside the park. After hearing the noise we came out of park and went to the side of said place from where the noise was coming. There were 30-35 persons/boys were quarrelling with each other and grappling. Someone fired a shot which hit on my left thigh. I had not seen the person who fired shot. My friends Shammim and Dilshad also sustained fire shots injuries which was hit by some person out of those 30-35 person/boy. We all three sustained bullet injury but we had not seen the face of those persons who fired a shot. My relative/father in law Kasim Ali came there and we were taken in e-rickshaw and reached in BJRM Hospital. In the BJRM Hospital I alongwith my friends were medically examined. I alongwith my friends referred to other hospital i.e. LNJP Hospital where we were medically examined. Police officials of PS Jahangir Puri met us in BJRM Hospital and they made inquiries from us. I narrated the same facts to the SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.Page 26 of 33
police which I deposed today. I stayed for 8- 10 days in LNJP Hospital thereafter I was discharged.
I do not want to say anything else. Witness is asked to identify if he had seen any persons/boys who were present in gali 200-300 wali, in those 30-35 boys on the date of incident. Witness look around in the court and he stated that no person present in the court who was in the group of 30-35 boys quarrelling in gali No. 200-300 wali on the date of incident and fired on me. "
Despite a lengthy cross examination by the Ld. Additional PP for the State, as the said witnesses resiled from their earlier respective statements, they still categorically denied that the boys who were present in the gali on the date of incident included the accused persons. On a specific suggestion by Ld. Addl. PP for the State, the witnesses categorically denied that it was the accused Shammi @ Somnath, Sonkar Paras and Sagar, who had come to the park on the date of incident and started abusing the witnesses or that accused Sagar slapped PW1 Dilshad or that PW Moinuddin objected and on his objection accused Paras hit Moinuddin with a stone or that soon thereafter, all three accused persons along with their associates started chasing the injured with weapon in their hands and started firing shots due to which the witnesses got injured. The said witnesses have categorically denied and resiled from their earlier statements recorded by the police.
Thus, the very injured persons PW2 and PW3 including the complainant PW1 Dilshad have themselves not supported the case of the prosecution and have categorically denied any injury being caused to them by accused persons.
SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 27 of 33OTHER MATERIAL WITNESS
16. There is no other public witness, who could have been material to the case of the prosecution. The alleged incident took placed in the populated area in a gali near park at Jahangir Puri at around 8.30 p.m. when most of the person must have been present around and facts and circumstances of the case also suggest that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments:-
(a) In case law reported as "Anoop Joshi Vs. State"
1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
(b) In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.Page 28 of 33
parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner". "4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
MEDICAL EVIDENCE
17. The accused persons vide their joint statement under Section 294 Cr.P.C. admitted the MLC Ex.P-5 of Moinuddin SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 29 of 33bearing no. E-265829 dated 03.11.2019 prepared at BJRM Hospital, MLC of Shamim Ex.P-6 bearing no. E-265831 dated 03.11.2019 prepared at BJRM Hospital and MLC of Dilshad bearing no. E-265832 dated 03.11.2019 Ex.P7 prepared at BJRM Hospital.
At most the prosecution could prove that the injury were sustained by the witnesses but has miserably failed to prove that the said injury if any were inflicted by the accused persons.
25/27 ARMS ACT
18. There were allegations against accused Shammi @ Somnath on the date of incident i.e. 04.11.2019, he used a country made pistol and cartridges were found in his possession which were without any permit or licence in contravention of notice issued by Delhi Administration.
To prove the same, the prosecution has adduced the testimony of PW7 Dr.Puneet Puri who deposed regarding the seizure of the various parcels containing cartridges and bullet which was taken out Ex.EB1 and the swabs of wound of the injured Shammim Ex.S1 to S3 but upon an analysis for the detection of gunshot residue particles, no opinion could be given due to insufficient data. Likewise, the swabs of the injured Moinduddin Ex.S4 to S7 were analysis but upon an analysis for the detection of gunshot residue particles, no opinion could be given due to insufficient data.
The prosecution has also relied upon the testimony SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 30 of 33of PW4, who deposed that as he reached the spot he along with HC Vishnu Dutt searched the spot for finding the case property and found one empty cartridge and one live cartridge. The same were sealed with seizure memo Ex.PW4/B. It is pertinent to mention that no such recovery of any cartridge was made from the person of the accused Shammi @ Somnath. It is further deposed by PW4 that on the basis of the disclosure of the accused, they went to his house and he pointed out one pistol and 05 live cartridges from the bed of a room of his house which was seized vide seizure memo Ex.PW4/H. However, PW4 infact in his cross examination admitted that no videography or photography was conducted at the time of recovery of pistol from the accused. He further admitted that no site pan of the place of recovery of the pistol was prepared. No public person was joined at the time of recovery and no notice was also given to join the investigation.
PW5 HC Joginder also admitted that the house of accused Shammi @ Somnath is in residential area but no site plan of the place of recovery prepared nor any public person was asked to join the investigation. He further admitted no videography or photography was conducted at the time of recovery of pistol from the accused. Similar is the admission of PW6 SI Manish and PW9 HC Mukesh.
I have perused the seizure memo of the live and empty cartridge Ex.PW4/B and the seizure memo of the pistol and five cartridges from the house of the accused Ex.P6, but none of them bears signature of any independent witness. Even from SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 31 of 33the personal search of accused Shammi @ Somnath Ex.PW4/D, nothing was found from his possession. Thus, the argument raised by ld. Counsel for the accused that the weapon of offence has been falsely planted upon the accused does not seem to be unfounded and moreso in the wake of the testimony of injured persons, PW1, PW2 and PW3 denying if any of the accused had fired on them or caused injuries, the prosecution has failed to prove its case beyond reasonable doubt that the accused Shammi @ Somnath was found in possession of an illegal pistol without licence or that he used the same to cause injury to the injured.
CONCLUSION
19. The other witnesses were police officials who deposed regarding the manner of investigation but the material prosecution witnesses i.e. PW1 Dilshad, PW2 Shammim and PW3 Moinuddin have not supported the case of the prosecution and categorically denied that the accused persons inflicted the injury. There is no other public witness to the incident or any other incriminating evidence found against the accused persons and benefit of doubt has to be granted to the accused persons.
Thus, in view of the aforesaid discussions and findings, accused Shammi @ Somnath, Sonkar Paras and Sagar stand acquitted of the charges levelled against them.
20. File be consigned to record room after due compliance.
SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 32 of 3321. Needless to say, that in view of Section 357A Cr.P.C. the victim would be entitled to compensation even though the accused persons have been acquitted, if not awarded so far by the Delhi State Legal Authority, as may be permissible, as per subsisting rules and in accordance with law.
Dictated and announced in the open (Shefali Sharma) Court on 25.10.2023 Addl. Session Judge-02 (running into 33 pages) (North), Rohini Courts/Delhi SC No. 70/2020, FIR No. 546/2019, PS Jahangir Puri State Vs. Shammi @ Somnath & Ors.
Page 33 of 33