Delhi District Court
State vs . on 23 September, 2011
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDL. SESSIOS JUDGE02 (NORTH):DELHI.
S.C. No. 35/11
ID No.02401 R426892008
State
Vs.
(i) Mohd. Saleem
S/o Muzaffar Hussain
R/o H. No. 1169, Gali Jamunwali,
Punjabi Phatak
Balimaran, Delhi.
(ii)Shaheen Abbas @ Shanu
S/o Raza Hussain
R/o H.No.1169, Gali Jamunwali,
Punjabi Phatak
Balimaran, Delhi.
(iii)Sajid Wasim @ Raza
S/o Mohram Ali
R/o H.No.1169, Gali Jamunwali,
Punjabi Phatak
Balimaran, Delhi.
(iv) Shaheen Zargam Ali
S/o Muzaffar Hussain
R/o H.No.1169, Gali Jamunwali,
Punjabi Phatak
SC No.35/11 1/48
2
Balimaran, Delhi.
(v)Shabbir Kasim @ Kasim Raja
S/o Mohram Ali
R/o H.No.1169, Gali Jamunwali,
Punjabi Phatak
Balimaran, Delhi.
FIR No.:134/08
PS: Lahori Gate
U/S 302/307 r/w Section 34 IPC &
U/S 27 Arms Act
Date of Institution: 13.10.08
Date of reserving judgment:4.8.11, 29.8.11 & 2.9.11
Date of pronouncement:3.9.11
JUDGMENT
1 In the present case, initially the charge was framed against accused Mohd. Saleem, Shaheen Abbas @ Shanu, Sajid Wasim @ Raza, Shaheen Zargam Ali, and Kasim(was not arrested at that time) in respect of offences U/S 302 & 307 read with Section 34 IPC, by Ld. Predecessor on 4.2.09. The allegation against the accused were that on 7.7.08 at about 11.00 PM at Gali Kaharwali and Gali Kuppeywali, Ballimaran, Delhi, they in furtherance of their common intention committed the murder of Tarik. It had been further alleged that they also caused grievous injury on the person of Tayab with intention to kill them with the fire arm. 2 Separate charge U/S 25/27 Arms Act had also been framed SC No.35/11 2/48 3 by Ld. Predecessor on the same date against accused Mohd. Saleem with the allegations that on 20.7.08 from Village Sakni, House NO. 1169, Gali Jamunwali Punjabi Fatak, Ballimaran, Delhi, one Katta Barrel 15.5 cm, body 10 cm, butt 7.5 cm was recovered from his possession, which he used the same at the time of murder of Tarik.
3 Separate charge U/S 25/27 Arms Act had also been framed by Ld. Predecessor on the same date against accused Shaheen Abbas @ Shanu with the allegations that on 20.7.08 from Village Sakni, House No. 1169, Gali Jamunwali Punjabi Fatak, Ballimaran, Delhi, one Katta Barrel 17.5 cm, body 10.5 cm, butt 7.5 cm was recovered from his possession, which he used the same at the time of murder of Tarik.
4 Separate charge U/S 25/27 Arms Act had also been framed by Ld. Predecessor on the same date against accused Sajid Wasim with the allegations that on 20.7.08 from Village Sakni, House NO. 1169, Gali Jamunwali Punjabi Fatak, Ballimaran, Delhi, one Katta Barrel 22.6 cm, body 10.8 cm, butt 8.3 cm was recovered from his possession, which he used the same at the time of murder of Tarik.
5 Separate charge U/S 25/27 Arms Act had also been framed by Ld. Predecessor on the same date against accused Shaheen Zargam Ali with the allegations that on 27.7.08 from Village Sakni, House NO. 1169, Gali Jamunwali Punjabi Fatak, Ballimaran, Delhi, one Katta Barrel SC No.35/11 3/48 4 14.9 cm, body 10.2 cm, butt 7 cm was recovered from his possession, which he used the same at the time of murder of Tarik.
6 Accused pleaded not guilty to the said charges and claimed trial.
7 After framing of charge, accused Subir Kasim Raja was arrested on 9.2.09 and supplementary challan was also filed against him. A charge in respect of offence U/S 302 & 307 read with Section 34 IPC was framed against him by Ld. Predecessor on 2.6.09. The allegations in the charge were that on 7.7.08 at about 11.00 PM at Gali Kaharwali and Gali Kuppeywali, Ballimaran, Delhi, he in furtherance of his common intention with coaccused Mohd. Saleem, Shahin Abbas, Sajid Wasim and Shahid Jaragam, committed the murder of Tarik with the bullet shot. It had been further alleged he alongwith coaccused also caused grievous injury on the persons of Tayab and Tahir with intention to kill them with the fire arm.
8 Accused Subir Kasim Raja pleaded not guilty to the said charge and claimed trial. After hearing final arguments from Ld. Counsel for accused and Ld. Addl. P.P for State and before pronouncement, of judgment, it came to the notice of court that PW Tahir did not suffer any injury. No MLC of Tahir was placed on record. However, in the charge framed on 4.2.09 by Ld. Predecessor U/S 307 read with Section 34 IPC, SC No.35/11 4/48 5 the name of Tahir was also added alongwith injured Tayyab. Since, PW Tahir did not suffer any injury in the incident, the charge already framed on 4.2.09 was amended on 2.9.11.
9 All accused pleaded not guilty to said charge and claimed trial. Since the alteration in the charge did not cause any prejudice either to prosecution or accused, no PW was recalled by the accused and the prosecution.
10 To prove its case prosecution has examined 38 witnesses. They are HC Bhim Singh(PW1), Mrs. Karuna Arora(PW2), Mohd. Sadiq(PW3), SI Brahm Singh(PW4), Ct. Samar Pal(PW5), Ct. Ramesh (PW6), Mohd. Wasim(PW7), Mohd. Shariq(PW8), Mohd. Nazir(PW9), Mst. Rubina(PW10), Faeem Ahmad(PW11), Mohd. Tahir(PW12), Dr. Shyambir Singh(PW13), Gulshan Beg (PW14), W/Ct. Rekha (PW15), HC Jagbir Singh (PW16), Ct. Davender (PW17), Satish Chander (PW18), HC Arun Kumar (PW19), HC Kailash Kumar (PW20), Mohd. Tayyab (PW21), Dr. Bhim Singh (PW22), HC Kewal Krishan (PW23), Inspector Rajvir Singh (PW24), SI Prakash Chand Sharma (PW25), SI Mahesh Kumar (PW26), Dr. S.N. Basna (PW27), Dr. Ajay Katoch (PW28), Inspector Raj Kumar Goswami (PW29), Ct. Vijay Kumar (PW30), HC Baber Ali (PW31), Ct. Amrish Kumar (PW32), SI Satish Rana (PW33), Inspector Suraj Prasad (PW34), Inspector Karan Singh Rana (PW35), Dr. Dhruw Sharma SC No.35/11 5/48 6 (PW36) , ACP P.S Hooda (PW37), K.C. Varshney (PW38) and HC Surender(PW39).
11 Statements of accused have been recorded U/S 313 Cr.P.C, wherein they denied the allegations of prosecution. They have submitted that they are innocent. Their names have been given by the brother of the deceased on account of the enemity. Rubina (the nice of accused Shaheen Zargam Ali) got married with Sadiq, the brother of deceased Tariq. The complainant and his family were against the marriage. They have further stated that the marriage between Rubina and Sadiq was without the consent of their family. Accused Mohd. Saleem, Sajid Wasim @ Raja, Shabir Kasim and Shaheen Abbas have stated that they have surrendered in the P.S . Accused Saheen Zargam Ali has submitted that he was lifted from his house.
12 Accused Shaheen Zargam has examined one witness in his defence. He is Guljar (DW1) 13 I have heard the arguments from ld. counsel for accused and Ld. Addl. P.P for State.
14 Ld. Counsel for accused has prayed for acquittal of the accused by submitting that PW3 is not an eye witness of the case. I.O did not record the statement of deceased Tarik despite the fact that he was SC No.35/11 6/48 7 conscious at the time of his admission in the hospital. Police was not informed by the PWs. No public witness was joined by the I.O in the investigation. Tasleem, brother of deceased is an hardened criminal and is involved in 20 cases. There are contradictions in the testimonies of PWs. PW12 Mohd. Tahir, who is the real brother of deceased Tarik did not provide help, when he was taken to hospital. Deceased Tarik died on account of septicemia and not on account of gun shot injury. 15 On the other hand, Ld. Addl. P.P has submitted that prosecution has proved its case beyond reasonable doubt. There is no delay in lodging the FIR. PW12 Rubina has proved the motive behind the murder. Complaint Mohd. Sariq has fully supported the prosecution story. The other material witnesses, who are brothers of deceased Tarik have also supported the prosecution case. The testimonies of material witnesses are corroborated with the postmortem report and the FSL result. 16 In the present case, PW22 Dr. Bhim Singh has deposed that on 11.7.08 he had conducted postmortem on the body of Tariq, which was brought by SI Rajbir Singh, P.S Lahori Gate with the alleged history of firearm injury at Gali Patnawali at around 11 PM on 7.7.08. On external examination following external injuries were found:
i. Firearm entry wound, 6.5 cm x 3.5 cm ear canal cavity deep, with multiple tears in ear pinna, tragus with SC No.35/11 7/48 8 blackening and suit deposition.
ii. Firearm entry wound 1 cm x 1 cm x cavity deep present over the left side of abdomen, situated 6 cm above and lateral to the umbilicus surrounded by abrasion collar, more on outside, no blackening or tattoing present.
Iii. Firearm entry wound present in the right flunk of the abdomen just above the illiac crest, 1.5 cm x 1.5 cm cavity deep, no blackening or tattoing present.
iv. Stitched laprotomy wound measuring 26 cm., present in the midline of abdomen with 2 cm x 1.5 cm. Cavity deep wound with irregular margins present left side of umbilicus. v.Colostomy wound 3 cm x 3 cm cavity deep present over the right side of abdomen.
17 He has further deposed that in his opinion the death was due to septicemia and peritonitis consequent upon fire arm injuries. All the injuries were antemortem and could be caused by riffled arm and were sufficient to cause death in the ordinary course of nature. After preparation of his report, he handed over 14 inquest papers alongwith blood sample in gauze piece sealed and one metallic bullet in sealed condition sealed with the seal of department to the I.O. His detailed report is Ex.PW22/A. 18 In crossexamination by ld. Counsel for accusedPW22 has deposed that injuries no.4 & 5 given in his report were surgical in nature caused during the course of treatment. In case septicemia was not developed, the patient could be saved. Septicemia is always due to infection. If SC No.35/11 8/48 9 timely treatment is given, the chances for developing septicemia may be minimized. Injury No.1 could be caused by a bullet shot from a distance of almost three inches. He was not forwarded or shown any other bullet except one which was detected in postmortem. He was not forwarded or shown any weapon of offence. Septicemia takes about 72 hours to develop in the body after the cause of injury. Pus takes about 36 hours to develop.
19 In other words, since the deceased died due to septicemia and peritonitis, which developed due to the fire arm injury, and fire arm injury were sufficient in the ordinary course of nature, I am of the considered view that the present case requires consideration under Clause 'thirdly' of section 300 IPC, which is reproduced here for ready reference: Section 300 IPC defines the provisions of murder, which is reproduced here for ready reference:
"Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or SecondlyIf it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or ThirdlyIf it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is SC No.35/11 9/48 10 sufficient in the ordinary course of nature to cause death, or FourthlyIf the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
20 In Virsa Singh Vs. State of Punjab, 1958 SCR 1495, it was observed by Hon'ble Supreme Court that the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly";
First, it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved; These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
21 Now, the question that arises for consideration is whether all the requirements as are observed by Hon'ble Supreme Court in Virsa Singh's case are existing in the present case or not.
SC No.35/11 10/48 11 22 In the present case, PW13 Dr. Shaymbir Singh has deposed that deceased Mohd. Tariq was admitted in the hospital on 8.7.08 at 12.25 AM with alleged history of fire arm injury at Gali Patnawali at around 11 AM as told by the patient and the person, who brought him. The patient expired on 11.7.08 due to complication arising out of bullet injury, which resulted in septicemia. He prepared death summary Ex.PW13/B in his own hand writing. As per the death summary gun shot injuries were found on the body of deceased on physical examination.
23 In crossexamination by ld. Counsel for accused, PW13 has deposed that patient was conscious and well oriented and he could have given his statement to the police.
24 PW27 Dr. S. N. Basna has deposed that on 7.7.08 injured Tariq and Mohd. Tayyab were brought in injured condition by relative Mohd. Sariq and Faheem Ahmad with alleged history of assault with fire arm. Tariq was medically examined by Dr. Priyanka. Thereafter the patient was referred to Department of General Surgery and Neuro Surgery for further management. Dr. Priyanka has left the hospital and her present whereabouts are not available. He is well acquainted with her writing and signature. The MLC of injured Tariq is Ex.PW27/A. As per MLC puncture wounds were present on the person of deceased.
25 In crossexamination by ld. Counsel for accused PW27 has SC No.35/11 11/48 12 deposed that at the time of admission patient Mohd. Tayyab and Tariq were conscious. The evidnece of PW22, Dr. Bhim Singh (who conducted postmortem)has already been narrated in the earlier part of this judgment. 26 I am of the considered view that from the testimonies of PW13, PW22 and PW27 it is proved on record by the prosecution that the deceased Tariq was having gun shot injuries on his body at the time of admission in hospital. There is nothing in the crossexamination to the contrary. In other words, the first two requirements as are observed by Hon'ble Supreme Court in Virsa Singh's case are existing in present case.
27 Now, I am coming to third ingredient i.e whether the gun shot injury was accidental/or intentional.
28 In the present case, out of 38 witnesses, PW8 Mohd. Sariq is the material witness being the complainant. He has fully supported the prosecution story by deposing on the same lines as those of Rukka. He has deposed that Sadiq is his younger brother. He had married Rubina, who is the niece of accused Jargam Ali, present in court. It was a love marriage. The parents of Rubina were annoyed, as their consent was not taken before the marriage. After their marriage, Sadiq and his wife used to live in Delhi, while concealing themselves, on account of fear of accused Zargam Ali and his family members. Accused Zargam SC No.35/11 12/48 13 Ali and his family members had become inimical to them on that account. On 7.7.08 at about 10.30 PM, he saw that his younger brother Mohd. Sadiq was standing in Gali Patna Wali. Accused Zargam Ali took his brother Sadiq forcibly on his motorcycle and drove him towards Gali Kuppeywali. On seeing that, he (PW8)rushed to his house and told his three brothers about the incident. All four of them rushed towards the main road Ballimaran, through Gali Kuppeywali. There, he (PW8) saw that accused Zargam Ali and his brother Sadiq were standing there. He also saw accused Saleem, who is younger brother of accused Zargam Ali, present in court alongwith other three coaccused persons namely, Wasim, Qasim and Shanu, present in court were also there. They asked accused Zargam Ali as to why he had brought Sadiq there. Accused Zargam replied that he wanted to have some talks with Sadiq, separately. They again requested accused Zargam Ali to talk with Sadiq in their presence but he kept on insisting to talk with Sadiq alone. Accused Zargam Ali was very animated and rather retorted that he wanted to finish the talks on that day itself, which would be for the last time for both of them. He has deposed that 'mujhe akele mein akhiri dafa baat karnai hai'. His elder brother Mohd. Tariq, then took accused Zargam Ali to another side of the road, for some discussions. He told his brother Sadiq to go away. Thereafter, they started walking towards Gali Kupey SC No.35/11 13/48 14 Wali. They were followed by accused Salim, Wasim, Qasim and Shanu. Suddenly, there was an exhortation by accused Zargam Ali stating that "Maro Saalo ko, Khatam Kar do, Bachke na jane payein". As they looked back, they saw that all the accused persons namely, Zargam Ali, Salim, Wasim, Qasim and Shanu were having pistols in their hands. Accused Zargam Ali fired at his brother Mohd. Tayyeb. Other accused also fired at them. They panicked and started running to save their life. He saw that his brother Tayyeb got injured. He(PW8) was being followed by his brother Mohd. Tariq. As he (PW8) looked back, he found that five accused had managed to catch upon his brother. He(his brother Tariq) was fired at, which hit him. He (PW8)ran away from the spot, towards Punjabi Phatak to save his life. When the sound of fire stopped, he came back to the Gali Kahar Wali and he found that his brother Mohd. Tariq was lying injured in a pool of blood. He with the help of one Wasim took his injured brother Tariq in a paddled rickshaw to LNJP hospital, where he also found his other brother Tayyeb admitted in an injured condition. After about 15 minutes, police from PS Lahori Gate reached in the hospital. His statement Ex.PW8/A was recorded. All the accused namely, Zargam Ali, Salim, Wasim, Qasim and Shanu committed this offence in a preplanned manner. His brother Mohd. Tariq, later on, died in the hospital after three days of the incident. SC No.35/11 14/48 15 29 In crossexamination he has deposed that neither Sadiq nor he raised any alarm, when accused Zagram Ali tried to take him forcibly on his motorcycle.. When he saw Sadiq, being taken away, on the motorcycle, he suspected something wrong and therefore, he ran to his house to inform his brothers. The entire episode occurred within half an hour. The incident of shooting occurred within 1015 minutes, of leaving the spot by his brother Mohd. Sadiq.. They (all four brothers) were going back to their house through gali Kuppeywali. He was ahead of his brothers and they were following behind. Accused Zagram Ali and others were at a distance of about 78 feet from him. He had gone about 3035 steps inside gali Kuppewali, when he first heard the fire arm shots. On hearing the fire arm shots, people in gali started running. He also ran to save his life. He has denied that the shop keepers in the gali started putting down their shutters in panic. He has volunteered that most of the shops were already closed by that time. He has denied that there was complete darkness due to load shedding and nonsupply of power. He heard 23 fire arm shots. After 510 minutes of the shots, he went to gali Kaharwali and not gali Kupewali. On hearing the sounds of fire arm, he did not see as to who was firing, who was heading the accused persons and who was behind, as he got frightened and wanted to save his life.
SC No.35/11 15/48 16 30 He has further deposed that Tariq was conscious at the time of admission in the hospital. He does not remember, if it was Tariq, who told his name and other particulars to the doctor. He has denied that he was not present at the spot at the time of incident. He has denied that he reached the hospital after knowing about the injury on the person his brother. He has denied that he did not witness the incident of taking his brother Sajid forcibly by Zagram on motorcycle. He has denied that he was not neither present at Hari Masjid nor at the time of incident. He has denied that he had not seen any of the accused persons at the spot or that none of the accused person had fired. He has denied that the accused persons did not fire at Tayyeb and Tahir. He has denied that he did not run away from the spot, as he was not present and did not come back to the spot after 510 minutes, as deposed by him. He has denied that he did not remove the injured Tariq to hospital. He has denied that his statement Ex.PW8/A was not recorded at 1.30 or 2.00 AM and it was recorded belatedly in the morning at about 8.30. He has denied that whole night, planning was made as to how to implicate all the accused persons and fabricated a story against them.
31 He has deposed that his brother Tasleem has been involved in a number of criminal cases, including murder case. Presently, he is in judicial custody in connection with a murder case. He has denied that he SC No.35/11 16/48 17 had named the accused in this case because of the bitter relations between his family and the family of the accused persons. He has denied that because of the enmity between his brother Tasleem and his enemies, the present murder took place. He has denied that those enemies of his brother Tasleem had murdered his brother Tariq.
32 Another material witness is PW12 Mohd. Tahir. He has deposed on the same lines as those of PW8. He has deposed that his younger brother Sadiq had married with Mrs. Rubina, niece (Bhatiji) of accused Zargam Ali against the wishes of her family members about one and a half years, prior to the incident. Due to the said marriage, family members of Mst. Rubina were annoyed with them and were entertaining grudges against them. After marriage Sadiq started residing separately with his wife Rubina in order to save himself from the wrath of her family members. About 10 days prior to the incident, Sadiq came to their house alongwith Rubina and started living there with them. On 7.7.08 at about 10.30 PM, his younger brother Mohd. Sariq came to the house and told that accused Zagram, present in court, had taken his brother Sadiq towards Gali Kupeywali on a motorcycle. At that time his brothers Mohd. Tariq and Mohd. Tayyeb were also present in the house. All of them immediately, went together towards Gali Kupeywali. When, they approached the main road, through Gali Kupeywali, they saw that their SC No.35/11 17/48 18 brother Sadiq was standing at the corner of Hari Masjid alongwith Zargam Ali. His brother Mohd. Sariq asked accused Zargam Ali, as to why he had brought Sadiq there. On that Zargam Ali replied that he wanted to have some discussion with Sadiq only and they should go back. However, Tariq insisted that whatever talks were to be held, those should be in their presence. Accused Mohd. Saleem, Wasim, Shanu and Qasim were also present there. Accused Jargam Ali was very angry. He stated that all of them should go back. He would talk with Sadiq alone only. His brother Tariq then took accused Jargam Ali aside and tried to pacify him. His brother Sariq asked his brother Sadiq to go home, who went towards gali Kupeywali.
33 Thereafter, they started towards Gali Kupewali Gali for having discussions with the accused persons to pacify them. Due to the narrowness of gali, they followed each other. When he looked back, he saw that all the accused persons were following them. When they reached at Main Chowk, Gali Kupeywali, accused Zargam started shouting that "Maro Salo Ko, Khatam Kar Do, Bachne na payen" As he looked back, he saw that all the accused persons were having pistols in their hands. All the accused started firing upon them at the Main Chowk. His brother Mohd. Tayyab was badly injured with the firing. He (PW12)ran away from the spot to save himself. He hid SC No.35/11 18/48 19 himself in a staircase of a house, falling in gali Kaharwali. While hiding himself in the staircase, he saw that accused persons had encircled his brother Mohd. Tariq. He(Tariq) was also fired at by the accused persons. He was frightened and went up further in the staircase to hide himself. After about 10 minutes, he came out and went to the spot, where his brother Mohd. Tariq was lying. He was being carried by his brother Mohd. Shariq alongwith another boy to the hospital. He reached main chowk, gali Kupewali to see his brother Mohd. Tayyab. He found that he had already been removed by someone to the hospital. Thereafter, he reached JPN hospital. He found his brother Tariq and Tayyab in Emergency Ward. Police met him in the hospital. His statement was recorded on 8.7.08 by the police.
34 In crossexamination by ld. Counsel for accused, PW12 has deposed that he did not see any public person at the spot i.e Gali Kaharwali and Kupeywali. He did not help Mohd. Sariq and the other boy, in carrying the injured Tariq to hospital. He did not inform the police about the incident by calling on 100 number. There is a police picket towards Chandni Chowk side after Ballimaran but it is very far. Mohd. Sariq and the other boy were carrying the injured Tariq in their arms towards Main Road, Ballimaran through the gali Kaharwali and Punjabi Phatak. He did not accompany or follow his brother Mohd. Sariq, while he (Sariq) was SC No.35/11 19/48 20 carrying away Mohd. Tariq to hospital. He had stated to police in his statement that he had hidden himself in stairs of house at Gali Kaharwali to save his life and saw that accused persons had cornered his brother Mohd. Tariq and fired at him. (confronted with statement Ex.PW12/DA, wherein it is not so recorded). He cannot tell as to how many rounds were fired but there were quite many. As he heard the first sound of fire, he immediately looked behind and saw that accused persons had fired at Tayyab and injured him. He cannot say if he was also fired at, as he immediately ran away to save himself. He cannot tell the number of house, where the staircase was located, where he had hidden himself, but it was a corner house just adjacent to K.K. General Store in gali Kaharwali. He was about 1520 steps away from Tayyab, when he was fired at. He has denied that due to narrowness of the gali and as lot of people were moving in the gali, it was not possible for him to see Tariq as well as Tayyab. He cannot tell, who was immediately behind him or who of his brothers was following in what order. Accused Zargam Ali was ahead of the group of the accused but he cannot tell as to who was following him. At the time of incident neither he nor his any of brothers tried to apprehend the accused persons. He has volunteered that it was not possible, as all the accused persons were having pistols in their hands and were firing at them. He reached the hospital immediately on a SC No.35/11 20/48 21 rickshaw but he cannot tell the exact time. Both Sadiq and Sariq were present in the hospital when he reached there. His statement was recorded in the morning on 8.7.08 by the police. He did not show the staircase to the police, where he hid himself on 24.9.08, since it was not asked by the police. He has denied that he was not present at the spot at the time of incident or that he did not see the accused persons firing at his brothers or that he did not hide himself in any stair case or that he is deposing falsely. He has denied that he was not called by his brother Sadiq from his house. He has denied that he did not accompany his other brothers to Hair Masjid. He has denied that nothing happened at Hari Masjid or that any conversation took place between his brothers and accused persons. He has denied that accused persons were not present at the spot Hari Masjid or that they did not fire at his brothers Tayyab and Tariq or that accused Zargam did not took Sadiq on his motorcycle from Kupewali gali to Hari Masjid. He has denied that no incident took place in his presence. He has denied that he was not the witness to the incident of firing at his brothers.
35 He (PW12) has further deposed that he does not know whether Tasleem, his brother, has been facing number of criminal cases, including murder case. He has voluntarily deposed that they have severed relations with Tasleem and as such he does not know about his SC No.35/11 21/48 22 activities and whereabouts. He has denied that his brother Tasleem has much enemies and his enemies had fired upon his brothers Tayyab and Tahir. He has denied that because of the bitter relations developed between the family of Rubina and their family, accused persons have been falsely implicated in this case. He has denied that no site plan was prepared at his instance or in the presence of his brother Sariq. 36 Another material witness is PW3 Mohd. Sadiq. He has deposed that about one and half years, prior to the incident, he married Rubina, daughter of Moharram Ali, who is the elder brother of accused Zargam Ali. It was a love marriage. Due to his marriage with Rubina, the family members of Rubina were annoyed with him, as a result of which an enemity was developed between him and family members of Rubina. He started living, while hiding, in Delhi with Rubina. About 10 days prior to 7.7.08, he came back to his parents home at Ballimaran. On 7.7.08 at about 10.30 PM, he was standing outside Gali Patnawali. Accused Zargam Ali came towards him on motorcycle. He stopped his motorcycle and asked him to sit on his motorcycle saying that he wanted to talk to him. He sat on the back seat of motorcycle. Accused Zargam Ali, took him on the main road of Ballimaran and stopped his motorcycle in front of Hari Masjid. In the meanwhile, the brother of Zargam namely, Saleem and nephews of Zargam Ali namely, Wasim, Shanu and Kasim, all SC No.35/11 22/48 23 accused present in court, also reached there. In the meantime, his four brothers namely, Tariq, Sariq, Tahir and Tayyab also reached there. His brother Tariq asked accused Zargam Ali as to why he had brought him there. On that accused Zargam told his brothers that he would talk him (PW3)separately. His brothers told Zargam that he would have to talk to him(PW3) in their presence but Zargam did not listen to them. Accused Zargam kept on insisting that he would talk to him separately. His brothers told Zargam 23 times, to talk to him in their presence. His brother Tariq took accused Zargam on one side, while trying to make him understand. His brother Sariq told him(PW3) to go back to house. So, he (PW3) went back to his house. As soon as, he reached his house he heard noise of firing of bullets. When the noise stopped, he came out and saw that a lot of blood was lying in gali Kaharwali and Gali Kupewali. Empty cartridges were also lying there. He came to know that his brothers namely, Tariq and Tayyab had received bullet injuries. They had been removed to LNJP hospital. He immediately went there and found that his brother Tariq and Tayyab were admitted in an injured condition and were being treated there. On 11.7.08 his brother Tariq died in the hospital. He identified his deadbody in the mortuary vide statement Ex.PW3/A. He knows all the accused, present in court.
37 In crossexamination PW3 has deposed that he cannot tell SC No.35/11 23/48 24 the exact time when he reached home but it might be 10.45 PM or 11.00 PM. He cannot tell as to how many sounds of bullet fire were heard by him. He went back to the spot alone, after stopping of the sound of bullet fire. There were lot of people gathered at the spot. He was told that his injured brothers had been taken to LNJP hospital. The distance from the corner of Gali Kupewali and their house is hardly 3040 steps. His wife Rubina reported the matter to the police on telephone. He saw that lot of blood was lying in gali Kaharwali at one place but in gali Kupewali blood was lying at different spots but at one spot there was lot of blood. He has denied that accused Zargam neither called him nor made him to sit on motorcycle. He has denied that accused Zargam did not take him to main road Ballimaran or that he did talk to with him or his brother. He has denied that he was not present at any point of time at the spot. He has denied that he did not hear the sounds of bullet firing. He has denied that he did not go to the hospital. He has admitted that because of the marriage of niece of accused Zargam with him, there had been enmity and bitter relations between their family and accused family. 38 He (PW3)has further deposed that Tasleem is his brother and has been facing trial in a number of cases including murder cases. He has denied that for that reason there were lot of enemies of his brother in the area. He(PW3) also faced trial for an offence of attempt to murder SC No.35/11 24/48 25 but has volunteered that he (PW3)has been acquitted in that case. He has denied that Tariq(deceased)had also love marriage and because of that there were lot of enemies in the area. He has denied that Tariq was murdered by those enemies. He has denied that his brother Tariq was not present at the spot at the relevant time. He has denied that accused persons have been falsely implicated in this case because of the enmity or that he is deposing falsely. He has denied that a fabricated story was set up by them, by taking police into confidence, to implicate the accused persons.
39 Another material witness is PW21 Mohd. Tayyab. He has deposed on the same lines of those of PW8 Mohd. Sariq so far as the facts regarding the marriage of his brother Sadiq with Rubina , taking his brother Sadiq by accused Zargam Ali, going at Hari Masjid with his brothers; having talk by his brother Tarik with Zargam Ali; asking his brother Sadiq to go home and thereafter, proceedings towards home by them.
40 He (PW21) has further deposed that accused were following them through gali Kupewali. It was about 11 PM. As soon as, they reached at Chowk Gali Kupeywali accused Zargam Ali was heard shouting "Salo Ko Maro Khatam Kar Do, Bachne na payen'. He immediately looked back. He saw that all the accused persons were SC No.35/11 25/48 26 having Banduke in their hands. Accused Zargam Ali fired at him. The bullet hit him on the right back/rear of his head. Then, he saw that accused Wasim after fired at them. The bullet hit him on the right side of his chest. Thereafter, accused Shanu fired, which hit him on his stomach. His brother Mohd. Tariq came and tried to rescue him but, accused Zargam Ali fired at him( his brother Mohd. Tariq), which hit him. Mohd. Tariq fled away from the spot in order to save himself. His brother Mohd. Sariq was already much ahead of them. As he (PW21)was left alone at the spot, accused Saleem and Kasim fired at him and fthereafter, they ran after his brother Mohd. Tariq. He (PW21)was lying in an injured condition at Chowk Kupewali. He heard that some shots were being fired. In the meantime, one Fahim, who is resident of Ballimaran came and saw him in an injured condition. He (Faheem) brought him to the main road Ballimaran and then took him to the hospital in a cycle rickshaw. He was admitted in LNJP hospital and was medically treated there. He remained hospitalized for about 3940 days. After getting discharged, it was revealed by his family members that his brother Mohd. Tariq had already expired, few days, after the incident. 41 In crossexamination by ld. Counsel for accused, PW21 has deposed that after about 89 days of his hospitalization, he could speak. He has volunteered that he was told by a nurse that he would have to SC No.35/11 26/48 27 press/cover the hole on his throat, while speaking as there was a wind pipe attached through his throat. His statement Ex.PW21/DA was recorded by the police probably on 11.8.08 during the hospitalization, which has written by him. He has admitted that in his statement Ex.PW21/DA he did not explain or narrate the entire sequence of events . He has volunteered that since his medical condition was not well at that time. He has denied that the subsequent statement dated 15.8.08 was a result of deliberation, after consultation with the members of the family in order to rope in all the accused persons in this case. None of them went to the police post Ballimaran to call the police. He has volunteered that they did not contemplate that anything bad would happen. He has denied that all the shops were open in the gali at the time of incident. He has volunteered that only few shops falling at the corner to the main road were open. He has denied that as soon as shots were fired, people started running for shelter. He has volunteered that the place, where he was shot, was not busy one and hardly anyone was there. He has denied that his brother Mohd. Sariq had already left the spot, before he entered gali Kupeywali. They had sent back Mohd. Sadiq home about 1015 minutes before the shooting started. The walking distance between their house in Gali Patnawali and the mosque at the main road Ballimaran is about 23 minutes. His brother Mohd. Tariq was hardly 5 feet ahead of SC No.35/11 27/48 28 him and Mohd. Sariq and Tahir were about 78 steps ahead of Mohd. Tariq. He has deposed that the first bullet, that hit him in the right back of his head, was fired from behind. He had immediately, fallen on the ground. He has denied that the second bullet was also fired at him from behind. He has volunteered that it was fired, when he was facing the assailants. He has denied that when he was fired at second time, his brother Tariq was behind him. He has volunteered that he had come on one side of him. He had come to his left and tried to drag him out of the range of the fire. He (PW21)was standing all the time, when he was fired five times. He has deposed that except for the first bullet, the other four were fired, when he was facing the accused persons. He has denied that Tariq was present, when he was fired at five times. He has volunteered that he ran away immediately after he was hit third time. He (PW21)was standing, when Tariq was running. The shutters of the shops at the chowk were down and there was no hiding place so that he(Tariq) could save himself. Accused Zargam Ali had come to his right. after firing at him. Accused Wasim was on one side of Zargam Ali and was followed by Shanu, Saleem and Qasim. He could hear sound of 45 shots, that were fired, after he fell down. He was conscious all the time. None of the accused persons fired at him twice. He has volunteered that he saw accused Zargam Ali reloading his weapon. Gali Kaharwali is not visible SC No.35/11 28/48 29 from the chowk of gali Kupewali. His injured brother Mohd. Tariq was not taken to hospital simultaneously with him from the spot. But he saw him lying on the adjacent bed in the hospital. He was writhing in pain. He could not tell his name, parentage and other relevant facts to the doctor or the duty constable present, since he was not medically fit. He was taken to hospital by one Fahim. He had no conversation with doctor and only Fahim must have spoken to him. He has denied that there was blackout in the area due to disruption in supply of power. He has denied that Sariq did not inform them that accused Zargam Ali had taken away Sadiq on his motorcycle. He has denied that he was not present at his house either. He has denied that all the accused persons were not present in front of Hari Masjid, when he came out of Gali Kupeywali. He has denied that accused Zargam, Wasim and Shanu did not fire at him and his brother Tariq as deposed by him in his examinationinchief. He has denied that Qasim and Saleem were not present at the time of incident. He has denied that Qasim and Saleem did not fire at him, as deposed by him in his examinationinchief. He has denied that Zargam, Wasim and Shanu were not present at the spot. He has denied that the name of accused persons were given by him on account of animosity, developed between them on account of marriage of his brother Sadiq with Rubina. On a court question, he(PW21) has deposed that they are Sunnis and the SC No.35/11 29/48 30 accused persons are Shias. He has admitted that his deceased brother Mohd. Tariq also had a love marriage . He has denied that family members of the wife of Tariq were also inimical towards them on that account. Tasleem Ahmed is also his real brother. Tasleem Ahmed had been facing several criminal cases including murder. He has volunteered that he has been residing separately. His father had turned him out and they have no connection with him and a public notice had also been given. He has denied that Tasleem Ahmed has several enemies and their family was a target of so many opponent parties. He has denied that Tasleem Ahmed had been residing with them and the public notice, regarding dis owning him by his father, was given, so as to save themselves from daily troubles at the hand of the police and the varying parties. Mohd. Sadiq also faced trial in connection with a case of attempt to murder. Vol. He has since been acquitted. He has denied that the murder of his brother Tariq was a blind one. He has denied that he and his brothers after having due deliberations concocted the entire story and gave a false statement to the police on 15.5.08. He has denied that his brothers Mohd. Sadiq and Mohd. Sariq were not present at the time of incident and they are planted witnesses. He has denied that accused persons have been falsely implicated in collusion with the police. He has denied that he has deposed falsely.
SC No.35/11 30/48 31 42 It is worth noting that, in the present case, all the material witnesses namely, Sariq (PW8), Mohd. Tahir (PW12) and Mohd. Tayyab (PW21) are eye witnesses to the occurrence and have been consistent in their statements by deposing that when they were coming in Gali Kupeywali after having a discussion with accused persons, then accused Zargam Ali exhorted that "Maro Saalo Ko Khatam Kar do, Bachke na jane payein". Thereafter, they saw that all the accused persons were having pistols in their hands. The testimonies of these witnesses cannot be disbelieved only because that they did not inform the police, when their brother Sadiq (PW8)was taken on motorcycle by accused Zargam Ali. It is worth noting that PW21 Tayyab has clearly deposed that they did not inform the police as they did not contemplate that any bad thing would happen. Moreover, testimony of eye witness Tahir (PW12)also cannot be disbelieved only the ground that he did not provide help to PW Sariq(PW8) taking the injured Tariq in hospital. Besides this, the testimonies of these material witnesses cannot be disbelieved that their brother Tasleem is a hardened criminal and is facing many criminal cases against him. The PWs have clearly deposed that they have severed relations, from Tasleem and a public notice has been got published by their father for disowning him from the family property. It is significant to note that all these PWs i.e PW8, PW12 and SC No.35/11 31/48 32 PW21 have denied that accused were not present at the spot and they did not fire shot at them. They have further denied that they have falsely implicated the accused on account of the enemity between the family of accused and their family. It is significant to note that all these PWs have supported the testimonies of each others on material points. 43 So far as the alleged contradiction in the testimony of PWs regarding the place of incident, I am of the considered view that there is no ambiguity regarding the place of occurrence. PW13 Dr. Shyambir Singh has deposed that deceased Mohd. Tariq was admitted in the hospital on 8.7.08 with alleged history of fire arm injury at Gali Patnawali. PW9 Mohd. Nazim has deposed that after hearing the noise of some cracker type in Gali Patnawali, he came out of his office and saw that one Tariq was lying in pool of blood.
44 On the other hand, PW8 Sariq, PW12 Tahir and PW21 Tayyab, are the material witnesses being complainant, eye witnesses and injured respectively. They have categorically deposed that the incident took place at gali Kupeywali and Gali Kaharwali. As per testimony of PW21 he received gun shot injury at the Gali Kupeywali and deceased Tariq received gun shot injury at gali Kaharwali. Moreover, PW25 SI Prakash Chand Sharma, who is the first IO of the case has also deposed that on 7.7.08 at about 11.35 PM Duty Officer informed him SC No.35/11 32/48 33 telephonically that he received a call regarding firing at Gali Kupeywali, Ballimaran.
45 Besides this, PW4 SI Brahm Singh, who is the Incharge of Mobile Crime Team has also deposed that on 8.7.08, he alongwith his team reached at the place of occurrence i.e Gali Kupeywali and Gali Kaharwali. He inspected the scene of crime and Ct. Ramesh Kaushik took the photographs of the spot.
46 Moreover, the rough site plan Ex.PW34/A and scaled site plan Ex.PW26/A show that the incident occurred at Gali Kupeywali and gali Kaharwali and not at Patnawali Gali.
47 Further, PW5 Ct. Samar Pal has also deposed in cross examination by ld. Counsel for accused that blood was found in front of House No. 899 in Gali Kupeywali and in front of Shop No. 1316, Gali Kaharwali. He has further deposed that empty cartridges were found in Gali Kupeywali and Kaharwali.
48 Thus, from the testimonies of PW8, PW12, PW21, PW4 and PW5, it is proved on record it is proved on record by the prosecution that the incident occurred in Kupeywali gali and Kaharwali gali and not at Patnawali Gali. It is worth noting that PW13 Dr. Shyambir and PW9 Mohd. Nazim are not the eye witnesses of case. Moreover, PW8 Mohd. Sariq has deposed clearly that on 7.7.08 at 10.30 PM he saw that SC No.35/11 33/48 34 his younger brohter Sadiq was standing in Patnawali. Accused Zargam Ali took his brother forcibly on his motorcycle and drove him towards gali Kupeywali.
49 It is the submission of Ld. Counsel for accused that I.O did not record the statement of deceased Tariq and injured Tayyab despite the fact that both were conscious at the time of admission in the hospital and thus, there is delay in lodging the FIR.
50 In the present case, PW27 Dr. S.N. Basna has deposed that injured Tariq was brought in an injured condition by his relative Mohd. Sariq and Faheem Ahmad with alleged history of assault with fire arm. Patient was medically examined by Dr. Priyanka and thereafter, he was referred to Department of General Surgery and Neuro Surgery for further management. The MLC is Ex.PW27/A. He has also deposed that patient Mohd. Tayyab was also medically examined in LNJP hospital by Dr. Satya and after medical examination, he was also referred to Department of Dental, Neuro Surgery and Plastic Surgery for further management. MLC of Tayyab is Ex.PW27/B. 51 In crossexamination PW27 has deposed that the time of admission Mohd. Tayyab was conscious and Mohd. Tariq was also conscious.
52 Since, after medical examination, the deceased Tariq as SC No.35/11 34/48 35 well as the injured Tayyab were referred to Departments of surgery, I am of the considered view that there was no occasion with the I.O to record their statement. It is worth noting that 'consciousness' is one fact' and to be fit for statement' is another fact. Further, the fact cannot be ignored that PW13 Dr. Shyambir Singh has deposed, on a court question, that deceased Tariq was conscious only when he was shifted to Ward from the Operation Theatre. He has deposed that on 9 th, 10th and 11th July, 2009 the deceased was drowsy and disoriented and was not able to speak. Moreover, PW21 Tayyab has deposed in his cross examination by ld. Counsel for accused that he was discharged from the hospital on 14.8.08. Till the date of his discharge, he remained under police security day and night in the hospital. He has further deposed that after 89 days of his hospitalization he was able to speak. He has volunteered that he was told by the nurse that he would have to cover the hole on his throat,while speaking, as a wind pipe had been attached to his throat. It is further worth noting that deceased Tariq has died in the hospital on 11.7.08. In these circumstances, if I.O SI Prakash Chand Sharma (PW25) has recorded the statement Ex.PW8/A of PW8 Sariq and got the case registered by sending Ct. Samarpal (PW5), it cannot said that there is delay in lodging the FIR. I am of the considered view that delay, in this case, has been properly explained by the prosecution and the same is SC No.35/11 35/48 36 not fatal to the case.
53 So far as, the contradiction in the testimonies of PWs, regarding the source of light on the spot is concerned, I am of the considered view that this discrepancy is also not major one. 54 In the present case, PW4 SI Brahm Prakash, Incharge Crime Team has deposed in his crossexamination by ld. Counsel for accused that there was no source of light at the spot and they had their search light with them. But, PW5 Ct. Samarpal has denied in his cross examination that street lights were not working near the place of occurrence and that the entire proceedings were done in the darkness by the members of mobile crime team. It is worth noting that in the present case all the accused are known to the complainant party. I am of the considered view that in view of the clinching testimonies of injured and eye witnesses, the above evidence of PW4 is of no help to accused. 55 Ld. Counsel for accused has submitted that PW12 Tahir is not trust worthy as he could not have seen the occurrence from the stair case, as shown in the site plan.
56 In the present case, PW26 SI Mahesh Kumar has deposed in his crossexamination that a person on staircase at point 'O' in the site plan Ex.PW26/A cannot see the point 'D'. I am of the considered view that testimony of PW12 Tahir cannot be disbelieved in this regard. He has SC No.35/11 36/48 37 categorically deposed in examinationinchief that when the firing took place at Main Chowk, Gali Kupeywali and his brother Mohd. Tayyab got badly injured in that firing, he (PW12)ran away from the spot to save himself and hid himself in a staricase of a house in gali Kaharwali. He has categorically deposed that while hiding himself in the staircase he had seen that accused persons had cornered/encircled his brother Tariq and he was fired by the accused persons. He has further deposed that he was frightened and went up further in stair case to hide himself. All these facts do not mean that he was not present at the spot or that he did not see the incident. It is worth noting that PW12 has nowhere stated that he was standing at point 'O', when he saw the accused firing shot on his brother. It cannot be ignored that PW26 has prepared the scaled site plan on the basis of rough notes and measurements and rough notes were destroyed by him after preparation of site plan.
57 In the present case, the testimony of PW8 namely, Mohd. Sariq is corroborated with the testimonies of PW7 Mohd. Wasim & PW9 Mohd. Nazin, who helped Mohd. Sariq (PW8)in placing the deceased Tariq in the rickshaw and taking him to the LNJP hospital. PW9 Mohd. Nazir has deposed that he helped Mohd. Sariq, brother of injured Tariq and other person namely Wasim in removing the injured Mohd. Tariq to SC No.35/11 37/48 38 the hospital. He has deposed that he did not go to the hospital but informed the SHO Lahori Gate from his Mobile Phone No.9911336060 about the incident.
58 Another public witness namely, Faheem Ahmed (PW11) has also supported the prosecution story as he took the injured Tayyab (PW21) to LNJP hospital in a rickshaw and got him admitted there. He has deposed that on 7.7.08 he was coming from his shop. When he reached Gali Kupeywali he saw Mohd. Tayyab in an injured condition. He (deceased) was taken to LNJP hospital in a rickshaw and admitted there. He informed the police by dialing number 100 from mobile phone of injured Tayyab.
59 In the present case, accused Mohd. Saleem got recovered a desi Katta from the left side corner of the Tand of his house at Village Sakni, U.P on 20.7.08. The katta was seized by the IO (PW37)vide seizure memo Ex.PW25/I. On the same day, accused Saheen Abbas also got recovered a katta from the right side of the same tand from his house and the katta was seized by the IO vide memo Ex.PW25/K. Accused Shahid Wasim Raja got recovered one countrymade pistol from the wall almirah in a room at first floor of his house, which was seized vide memo Ex.PW5/K. On 27.7.08 accused Zargam Ali has also got recovered one katta underneath Sofa, lying in the room at his house No. 1169, Gali SC No.35/11 38/48 39 Jamunwali, Punjabi Phatak, Ballimaran. The katta was seized by the IO vide memo Ex.PW5/S. 60 Besides this, three fired cartridges, two red colour empty cartridges, one live cartridge and one lead were also lifted from the spot by the second IO Inspector Suraj Parsad(PW34) alongwith other things. The same were seized vide memo Ex.PW5/C. 61 During the investigation of the case, all the exhibits of the case including katta and cartridges were sent to FSL Rohini by the last IO ACP P.C Hooda(PW37)through Inspector Raj Kumar (PW29) vide Road Certificate Ex.PW19/J. The FSL reports are Ex.PW37/A and the Ballistic report is Ex.PW37/B. 62 In the present case, one 8 mm/.315 cartridge marked exhibits 'A1', three 8mm/.315 cartridge cases marked Ex.'EC1' to 'EC3', two 12 bore cartridge cases marked Ex.EC4 and EC5 and one bullet marked Ex.EB1 as shown in Ballistic report Ex.PW27/B are the articles which have been recovered from the spot and the countrymade pistols F1 to F4 are the pistols, which have been recovered at the instance of accused Mohd. Saleem, Wasim Raza. Shaheen Abbas and Zargam Ali respectively.
63 The ballistic report Ex.PW37/B proves shows that all the countrymade pistols i.e F1 to F4 were in working condition . SC No.35/11 39/48 40 Moreover, the countrymade pistols F1, F2, and F4 are designed to fire a standard cartridges of 8mm/.315 bore. Similarly, the countrymade pistol F3 is designed to fire a standard cartridge of 12. Further, the 8mm/.315 cartridge marked exhibit 'A1' is live one and can be fired through .315 bore firearm. And the 8mm/.315 cartridge cases marked exhibit 'EC1' to 'EC3' are fired empty cartridges and the 12 bore cartridge cases marked exhibits 'EC4' and 'EC5' are also fired empty cartridges.
64 In the present case, PW38 K.C. Varshney, the Assistant Director (Ballistic) has test fired, from the laboratory stock, two/two 8mm/. 315 cartridges through the countrymade pistols marked Ex. F1 to F4 and the test fired cartridge cases were marked as Ex.'TC1/1', TC1/2', TC2/1', TC2/2', TC4/1' & TC4/2' and the recovered bullets have been marked as TB1/1, TB1/2, TB2/1, TB2/2, TB4/1 and TB4/2 respectively. Moreover, three (3)12 bore cartridges, from laboratory stock were also test fired through the countrymade pistol of 12, marked Ex.F3 and the test fired cartridges cases were marked as TC3/1 to TC3/3.
65 It is worth noting that as per Para 11 of the Ballistic Report Ex.PW37/B, Ex.'EC1', which is a fired empty cartridge and taken from the spot by the IO, has been fired through countrymade pistol 'F1', (the pistol recovered from the possession of accused Mohd. Saleem.) SC No.35/11 40/48 41 Similarly, Ex.'EC2', which is fired emty cartridge recovered from the spot has been fired with the countrymade pistol 'F2' (the pistol recovered from the possession of accused Saheen Abbas). Further, The fired cartridge case Ex.'EC3', which is also a fired empty cartridge and recovered from the spot has been fired through countrymade pistol Ex.'F4'(the pistol recovered from the possession of accused Zargam Ali). And the fired empty cartridge 'EC4' recovered from the spot by the IO has been fired by the countrymade pistol 'F3'(the pistol recovered from the possession of accused Wasim Raja).
66 The Ballistic Report Ex.PW37/B further shows that the countrymade pistols 'F1' to 'F4' and the cartridges 'EC1' to 'EC5', 'EB1' to 'EB4' are firearms and ammunitions respectively. 67 It is significant to note that in the present case, from the shirt Ex.C1, (shirt belonging to injured Tayyab)swabs were taken from the region Mark 'R1' to 'R3'. And from the shirt Ex.C4 (shirt belonging to deceased Tahir)swabs were also taken from the region Mark 'R4' and 'R5'. It is worth noting that as per the ballistic report Ex.PW37/B the gun shot residue (GSR)particles were detected in the region 'R1' to 'R3' on the shirt marked Ex.C1 and in the region 'R4' and 'R5' on the shirt Ex.C4. Thus, from the Ballistic expert result Ex.PW37/B, it becomes clear that the countrymade pistol F1 to F4 were used by SC No.35/11 41/48 42 the accused in the murder of deceased Tariq and for causing grievous injury on the person of Injured Tayyab (PW21). 68 Moreover, the Ballistic expert report Ex.PW37/B finds support with the medical evidence. In the present case, PW21 Tayyab has been medically examined by Dr. Satya vide MLC Ex.PW27/B. A perusal of MLC Ex.PW27/B shows that injured Tayyab has received 'grievous' injury. It is also worth noting that as per the ballistic Result Ex.PW37/B, three gun shot residue were deducted on the shirt of injured Tayyab in the region 'R1' to 'R3'. It means that he received three gun shots on his body, which was concerned with shirt Ex.'C1' 69 It is further significant to note that on 16.7.08 PW2 Ms. Karuna Arora has handedover a duly sealed parcel to SI Raj Kumar, which was sealed with the seal of hospital. It was containing a bullet, which was taken out during the operation of patient Tayyab. In other words, one bullet was recovered from the body of injured Tayyab (PW21) on 16.7.08 when an operation was performed on his body. That bullet was seized by PW29 vide seizure memo Ex.PW16/A. 70 Again on, 6.8.08 one more bullet had been recovered from the body of injured Tayyab and intimation in this regard was given to the SHO by Ct. Davender (PW17)from LNJP hospital. On the receipt of that information SHO directed PW29 Inspector Raj Kumar to collect that bullet SC No.35/11 42/48 43 which was handedover to him by Dr. Akash Mishra, who had performed the surgery on the body of Mohd. Tayyab. The bullet was seized vide memo Ex.PW17/A. 71 Again on, 19.8.08 one more bullet was recovered from the body of Mody Tayyab and information in that regard was given to SHO by HC Kailash (PW20) regarding recovery of bullet from the body of Mohd. Tayyab. PW29 Inspector Raj Kumar reached the hospital where HC Kailash handed over one sealed bullet, which was recovered by Dr. Vivek, who had performed surgery on the body of injured Tariq. That bullet was seized by PW29 vide memo Ex.PW20/B. 72 Thus, recovery of three bullets from the body of injured Tayyab has been duly proved by the prosecution.
73 Moreover, as per the FSL report Ex.PW37/A the bullets recovered from the bodies of deceased Tariq and Tayyab and the clothes of Tariq and Tayyab were having the 'human' blood on them. 74 In the present case, motive behind the murder of deceased Tariq and causing of grievous injury on the body of injured Tayyab(PW21) has been proved by PW10 Ms. Rubina. She(PW10) has deposed that she was in love with Sadiq (PW3) the brother of deceased Tariq and injured Tayyab. They got married on 1.5.07. It was a love marriage between her and Mohd. Sadiq, which took place against the wishes of her SC No.35/11 43/48 44 family members. After marriage, she alongwith her husband started living in Delhi, separately. Due to the said marriage, her uncles Zargam Ali and Mohd. Saleem and her parents were annoyed with her and her husband and his family. In the last week of June, 2008, she alongwith her husband came to House No. 958, Gali Patnawali, Punjabi Phatak, Ballimaran, Delhi and started living there alongwith her husband and his family members. On 7.7.08 she was told by her husband that accused persons Zargam Ali, Mohd. Saleem, Wasim Razza and Shahid Abbas @ Sonu, present in court, had fired at Mohd. Tariq and Mohd. Tayyab her brothersinlaw. Her brotherinlaw(Jeth)Mohd. Tariq died in the hospital.
75 In crossexamination by ld. Counsel for accused PW10 has denied that because of the enemity between the family of accused persons and her husband, he (her husband) had given the names of accused persons.
76 Moroever, it cannot be disbelieved that enemity between accused and complainant's family had developed on account of love marriage between PW3 and PW10, as deposed by PW10 Mrs. Rubina. Further, accused persons belong to 'Shia community and complainant and his family belong to 'Sunnis community, as deposed by PW21. It is matter of common knowledge that though 'Shia' community and 'Sunni' SC No.35/11 44/48 45 community are both of Muslims, they do not like marriage interse because of cultural differences.
77 In view of the true, reliable and consistent evidence, devoid of any flaws as discussed above, I am of the considered view that it were accused and accused alone, who caused injuries on the person of deceased with proved motive showing that the injuries were not accidental or unintentional. Thus, the third ingredient as laid down in Virsa Singh's case is fully proved in this case beyond reasonable doubt. It may be mentioned that it is proved that injuries were caused by using the arms. Moreover, DW1 Gulzar examined by accused Zargam Ali to show that on 27.7.08, he (accused Zargam)was picked up by police in his presence will not be of no help to accused Zargam as DW1 could not pass the test of crossexamination and deposed that on 26.7.08, he was at Udaipur(Rajasthan) and stayed there for 15 days and did not come to Delhi. In other words, on the relevant day i.e on 27.7.08(when accused Zargam Ali was arrested by police)he was not present in Delhi. Further, the trustworthy and reliable evidence of material witnesses examined by the prosecution cannot be disbelieved only on the ground that I.Os of the case did not join any public witness in the investigation. 78 So far as, the fourth ingredient i.e whether the gun shot injuries were sufficient to cause death in ordinary course of nature. I am SC No.35/11 45/48 46 of the considered view that prosecution has successfully proved this ingredient by proving post mortem report Ex.PW22/A. Injuries on the person of deceased as per report Ex.PW22/A have already been narrated in the earlier part of this Judgment. PW22 Dr. Bhim Singh has opined that all the injuries were antemortem and could be caused by riffled arm and were sufficient to cause death in the ordinary course of nature.
79 Section 299 of IPC defines culpable homicide 80 There is difference between culpable homicide and murder in the sense that culpable homicide is genus and murder is its specie. Thus, all murders are culpable homicide. Explanation 2 to Section 299 IPC provides as follows:
"Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented."
81 In the present case, PW22 Dr. Bhim Singh, in cross examination has deposed that in case septicemia had not developed, the patient could be saved. In view of the above explanation 2 of Section 299 IPC, this piece of evidence is of no help to accused and it is proved on record that patient died due to gun shot injuries.
SC No.35/11 46/48 47 82 Now, I am coming to offence U/S 307 IPC PW21 Tayyab has categorically deposed that, first of all, accused Zargam Ali fired shot at him, which hit on the back of head. Thereafter, accused Wasim fired, which hit on the right side of chest. Then, accused Shanu fired, which hit on his stomach. In the meantime, his brother Tariq came to rescue him but he was also hit by accused Zargam Ali. His brother Tariq fled away from the spot to save his life and he (PW21)was left alone. Thereafter, accused Saleem and Qasim also fired at him. In other words, PW Tayyab (PW21) was shot fired by all the five accused. The evidence of PW21 is true and reliable. There is nothing in crossexamination to the contrary. It is significant to note that as per MLC Ex.PW27/B, duly proved on record, by PW27 Dr. S.N. Basna, PW Tayyab has received 5 wounds on his body. It is further worth noting that out of 5 wounds 4 were punctured wounds and one was lacerated wound. Moreover, Ballistic report Ex.PW37/B and MLC Ex.PW27/B as discussed in the earlier part of this Judgment, corroborate the evidence of PW21 Tayyab. Thus, from the testimony of PW Tayyab(PW21)prosecution has successfully proved on record beyond reasonable doubt that on the relevant day all accused, in furtherance of their common intention caused gun shot injuries on the person of PW Tayyab with such intention or knowledge and under such circumstances that, if by that act accused had caused the death of PW Tayyab, they SC No.35/11 47/48 48 would have been guilty of culpable homicide of Tayyab amounting to murder.
83 In view of true and reliable evidence of prosecution witnesses as discussed above, I am of the considered view that prosecution has successfully proved its case against the accused beyond reasonable doubt. Accordingly, all accused are convicted of the offences, they were charged with i.e offences U/S 302 and 307 read with Section 34 IPC. Accused Mohd. Saleem, Shaheen Abbas, Shahid Wasim @ Raja and Shaheen Zargam Ali are also convicted in respect of offence U/S 27 Arms Act.
Announced in open court today on (Smt. Bimla Kumari) 03.09.11 Addl. Sessions Judge02 (North):Delhi SC No.35/11 48/48