Delhi District Court
State vs 1. Shadab S/O Sallauddin, Age25 Years, ... on 21 January, 2016
IN THE COURT OF SH. DINESH BHATT, ASJ04 (CENTRAL)/ TIS
HAZARI COURTS, DELHI
Sessions Case No.:86/14
Unique ID no.:02401R0258272014
State Vs 1. Shadab s/o Sallauddin, Age25 years, R/o H.No. 2144, Gali Hatha Mir
Bukhari, Turkman Gate, Delhi.
2. Saleem @ Dhatura s/o Nazir Mohd. age 34 years, R/o H.No. 1789,
Telyan Fatak, Main Bazar, Turkman Gate, Delhi.
3. Munni D/o Mohd. Sahid, age 22 years, R/o Jhuggi, LNJP Colony, Guru
Nanak Chowk, Delhi.
4. Rahul @ Nadeem @ Tausif s/o Naneh Khan age 33 years, R/o 303, O
Block, Sunder Nagri, Delhi.
Case arising out of:
FIR no. : 80/14
Police Station : I.P.Estate
Under Section : 302/34 IPC & 25/27 Arms Act
Date of Institution : 01/07/2014
Date on which order was reserved : 14/12/2015
Date of Decision : 21/01/2016
J U D G M E N T:
1. This is a case U/s 302/34 IPC and 25/27 Arms Act.
2. The case of the prosecution is that on the day of incident at about 12 noon quarrel took place between deceased Waseem and accused Rahul and Saleem which was pacified by brother of deceased but both the accused threatened deceased while leaving. SC no.:86/14 Page 1/24 After sometime on the same afternoon, accused Shadab, Saleem and Munni came to the spot. Accused Shadab called deceased Waseem from his house. Accused Munni handed over pistol to Shadab. Saleem exhorted Shadab to finish deceased and accused Shadab fired on the deceased killing him on the spot. Accused fled from the spot. Deceased Waseem was taken to hospital where he was declared brought dead. Police collected MLC, went to the spot, called the crime team and found two empty bullet cartridges cases and blood stains on the spot which were lifted and taken into possession. Statement of complainant as having seen the incident and identifying the accused was recorded. Complainant also handed deceased's mobile phone which was taken into possession. FIR was lodged. On secret information in presence of complainant, accused Shadab was arrested from New Delhi Metro Station Ajmeri gate. Accused made disclosure statement. His jacket and pant stated to be worn on the date of incident was taken into possession. Postmortem of deceased was conducted clothes of deceased and blood sample were taken into possession. On secret information accused Saleem @ Dhatura and Munni were apprehended from Turkman gate and were identified by complainant. On further secret information and on pointing out of accused Saleem, accused Rahul was apprehended from Seelampur. On his personal search country made pistol disclosed to be weapon of offence was recovered from his Paijama pocket. Sketch of the pistol was prepared. Pistol was seized and sealed. Exhibits of the case were sent to FSL. Scaled site plan of the spot was prepared. After completion of the investigation chargesheet was filed. FSL opinions were obtained and filed in court.
3. Prosecution has examined 27 witnesses:
4. PW1 had accompanied IO along with accused Shadab to Turkman Gate where accused Munni and Saleem @ Dhatura were apprehended and accused made disclosure statement and on their pointing out, pointing out memo of place of incident was prepared. SC no.:86/14 Page 2/24
5. PW2 was present along with PW1 and had apprehended accused Munni.
6. PW3 prepared video and took photographs of the postmortem of the deceased.
7. PW4 on receiving information of the incident with IO reached LNJP Hospital and collected MLC. Thereafter, went to spot where statement of Mohd. Kasim was recorded and he had taken rukka to Police Station and returned with FIR.
8. PW5 had accompanied IO, other Police officials along with accused Saleem @ Dhatura to Seelampur, where accused Rahul @ Nadeem was apprehended and on his casual search pistol was recovered which was seized and sealed.
9. PW6 was part of Police team who had arrested accused Rahul at Seelampur.
10. PW7 at the instance of complainant prepared scaled site plan of the spot.
11. PW8 brother of deceased stated that he had heard gun shot injury and went to the spot and saw his brother lying on the ground. He however, did not know who injured deceased. He took injured to hospital who was declared brought dead. He had identified body of his brother which he received after postmortem.
12. PW9 was the main eye witness but did not support the prosecution case and stated that he was playing on the roof of his house when he heard noise of crackers. He came down and saw deceased lying in pool of blood. He did not see anybody firing but saw 34 persons running from the spot and denied having identified any accused before the police.
13. PW10 Incharge Police Post LNJP on receiving information about admission of deceased had gone to the hospital where he met the IO and other Police officials. Deceased was declared brought dead. They had gone to the spot where PW9's statement was recorded. Crime Team reached the spot. Statements of members of Crime Team were recorded. Site plan was prepared. Two empty cartridges lying on the spot were measured and seized. Blood SC no.:86/14 Page 3/24 on the spot was lifted through gauze. Blood stained concrete with blood and normal earth control from spot where seized and sealed. Mohd. Kasim handed deceased's mobile which was taken into possession. He had again joined investigation at the time of postmortem of deceased and went to New Delhi Metro Station from where accused Shadab was apprehended. Personal search was carried out. Wearing clothes of accused Shadab were seized and sealed.
14. PW11 second IO called draftsman who prepared the scaled site plan. He had recorded statement of some witnesses, sent exhibits of the case to FSL. He collected serological, biological, ballistic reports and sanction U/s 39 Arms Act and filed challan in court.
15. PW12 took 21 sealed pulandas from MHC (M) and deposited with FSL, Delhi.
16. PW13 received one polythene containing blood stained clothes of deceased and produced the same to IO.
17. PW14 took out computer print out of previous involvement of accused Rahul.
18. PW15 was on duty at police post JPN Hospital and on information about admission of injured Waseem went to the hospital where Deceased was declared brought dead. MLC was collected. He along with IO went to spot and deposed about proceedings at the spot who produced deceaced's mobile phone.
19. PW16 Incharge Mobile Crime Team as as prepared the report of the spot.
20. PW17 had examined deceased who was having gun shot injuries and was declared brought dead. MLC was prepared. Body was sent to mortuary.
21. PW18 was part of crime team and had taken photographs of the spot.
22. PW19 conducted the postmortem on the dead body of deceased and found 03 SC no.:86/14 Page 4/24 fire arm injury wound and as per his opinion injury no. 1 & 3 were individually and collectively sufficient to cause death in ordinary course of nature.
23. PW20 was the CMO and part of team who examined the deceased.
24. PW21 delivered copy of FIR to Senior Police officers and Ilaka Magistrate.
25. PW22 had accompanied IO to the hospital at the time of postmortem and at the time of apprehension of accused Shadab at New Delhi Metro Station. He had also accompanied the Police team who apprehended Mohd. Saleem and Munni from near Turkman Gate. On 06/04/2014 in his presence Inspector Mahesh had taken rough notes and measurement of place of occurrence. He identified the clothes of accused Shadab which were taken into possession at the time of arrest.
26. PW23 MHC(M) produced record relating to deposit of case property.
27. PW24 was the IO of the case.
28. PW25 had examined 21 parcels and prepared detailed biological and serological report.
29. PW26 Scientific Officer Ballistics, FSL Rohini had examined 12 sealed parcels and improvised pistol Ex. F1 which was found in working order. Exhibits were examined in regard to use of the weapon and gun shot residue particles and the detailed report was prepared. The same supports the prosecution story.
30. PW27 had accorded sanction U/s 39 Arms Act against accused Rahul.
31. The allegations against the accused are that they in furtherance of their common intention murdered deceased Waseem by firing on him and accused Rahul was found possessing the said pistol in contraventions of provisions of the Arms Act.
32. There were two eye witnesses, of the case.
SC no.:86/14 Page 5/24
33. PW9 main eye witness was minor brother of deceased (aged about 16 years). He as per statement Ex.PW9/A had witnessed he incident and named all accused persons but before the court he resiled from the said statement and stated he had heard noise of crackers(पटाखो की आवाज), came down to see his brother Waseem lying in pool of blood. He saw 34 persons running but neither witnessed the incident nor saw the face of the assailants. He admitted his signature on the complaint and the arrest memo of accused Shadab but denied that accused Shadab was arrested in his presence. He denied that he had identified accused Munni and Saleem @ Dhatura and also denied that he had identified accused Rahul to be the person who had earlier quarreled with the deceased. He denied that he was intentionally not identifying the accused persons.
34. The second eye witness PW8, other brother of the deceased only supported the prosecution case to the extent that he took deceased having gun shot injuries from the spot to hospital and had received his body after postmortem but denied any prior dispute having taken place between deceased and accused Rahul and Saleem. He also denied that accused had threatened the deceased at the said time.
35. Thus both the above said eye witnesses have resiled from their earlier statements to police and failed to support the prosecution case in regard to the identification of the accused.
36. As per prosecution case deceased Waseem died due to gun shot injuries on the day of incident.
37. As per evidence available on record, deceased Waseem was taken to Irvin hospital where he was brought declared dead and on the next day his postmortem was conducted. PW17 on 02/03/2014 at about 4:10 pm examined the deceased and had found SC no.:86/14 Page 6/24 three gun shot injuries on the deceased's skull, left side of chest and right upper arm. He prepared MLC Ex.PW17/A and had sent the body to mortuary. PW20 was the CMO under whom MLC of deceased was prepared and had signed at point B on the same. PW8 had identified the dead body of deceased Waseem vide Ex.PW8/A and PW19 had conducted the postmortem and prepared the detailed report Ex.PW19/A.
38. As per Ex.PW19/A he had found three gun shot injuries and details were given as:
(i) Firearm entry wound, nearly circular in shape with diameter of 0.6 cm present on head near vertex, 2.5 cm to the left from midline and 17.5 cm above the midpoint of left eyebrow. An abrasion collar measuring 0.2 cm in width was present around the wound margin in equal distribution; the edges were irregular, contused (reddish in colour) and inverted. No blackening, tattooing or burning was present around the wound Tract of projectile: The projectile traversed through the scalp layers causing extensive extravasation of blood in them and then traversed the entire thickness of the left temporal bone, causing a circular defect of 0.8 cm diameter in the left temporal bone with beveling of the inner table underlying the external injury no.1. There were spiderweb fractures surrounding the defect extending up to 1.5 cm beyond the margins of defect.
The track penetrated the dura and entered the brain through the left temporal lobe causing disintegration of left of temporal lobe. It passed corpus callosum in midline. Extensive damage and haemorrhagic contusion necrosis of the brain parenchyma of the involved sites was present. The track exited the brain SC no.:86/14 Page 7/24 on the right side just behind orbital plate of frontal bone on right side of optic chiasma and passed through junction of right lesser wing of sphenoid bone with body of sphenoid bone and terminated in maxillary bone just lateral to root of upper right second molar. Effusion of blood at fracture margins and in surrounding tissues was present in the tract of the projectile. Length of the tract was 15 cm.
Direction of the tract was above downwards, from the left to right and slightly from back to front.
(ii) Firearm entry wound, elliptical shaped and vertically placed, 1.2 cm x 0.7 cm. with surrounding abrasion collar of 0.5 cm at 6'Oclock to 9'Oclock position, present on lateral aspect of right arm, 4 cm below tip of the shoulder. Edges of the ectry wound were irregular, contused (reddish in colour) and inverted. No blackening, tattooing or burning was present around the wound. Tract of the projectile: Projectile passed through layers of skin and subcutaneous tissue and entered deltoid muscle, and then into the head of humerus in the shoulder joint. It passed through the inner and lower part of head of humerus and terminated just medial to the head of humerus. Length of the tract was 10 cm. direction of tract: From right to left, and below upwards.
(iii) Fire arm entry wound, circular in shape with 0.5 cm in diameter present of front of left side of chest in midclavicular line, 14 cm below clavicle, 5 cm medial to the left nipple and 2.3 cm to the left from midline. Abrasion collar of 0.3 cm was present around the entry wound. Edges of the entry wound were irregular contused (reddish in colour) and inverted. No blackening, tattooing SC no.:86/14 Page 8/24 or burning was present around the wound.
Tract of the projectile: projectile passed through all layers of skin and subcutaneous tissues, through iferior border of 4th rib and intercostal space and entered mediastinum. It passed through pericardium over right ventricle, entered the heart from anterior wall of right ventricle and exited from posterior wall, then passed through right side of diaphragm, and entered liver from upper surface or left lobe of liver and exited liver from posterior surface and terminated in right side of body of 11th thoracic vertebra, Length of the tract was 14.5 cm.
Direction of tract: from front to back, from above below and slightly from left to right.
The direction of projectile tract was from front to back and the cause of death was combined effect of cranio cerebral damage and hemorrhage and shock consequent upon firearm injury to head via injury no. 1 and trunk via injury no. 3 which were individually and collectively sufficient to cause death. The said injuries were caused by rifled firearm. All were antemortem in nature and fresh in duration prior to death. Projectiles were taken out from body and were sealed in separate containers along with sample seal and handed over to IO.
39. In crossexamination he stated that the normal accepted period of developing rigor mortis is about 23 hours of death then it covers the body over next 12 hours and stays for next 12 hours and then withdraws within next 12 hours but in case body being preserved in cold storage within few hours of death, the estimation of time of death on the basis of rigor mortis becomes irrelevant. He denied that he had wrongly estimated the probable time SC no.:86/14 Page 9/24 of his death in report. There was probable errors margin of 02 hours on either side. He admitted that he was the first person to see the recovered projectiles.
40. The statement of witnesses PW8 & PW9 and the postmortem establish report clearly that deceased Waseem died due to gun shot injuries to the head and chest which were individually and collectively sufficient to cause death in ordinary course of nature.
41. Now coming to second aspect of the case as to whether present accused murdered deceased or not.
42. As per prosecution, police officials reached the spot and crime team prepared the report. PW16 was the crime team incharge who reached the spot, inspected the spot between 4:40 to 5:30 pm and found two empty cartridges and blood stains. he prepared the report Ex.PW16/A. PW18 Ct. Ravinder took photographs of the spot and produced the negatives of the same Ex.PW18/1 to Ex.PW18/12. PW24 IO on receiving DD no.19 at about 4 pm reached JPN hospital where deceased was declared brought dead. He collected the MLC and reached the spot where blood stains and one empty cartridge in front and one empty cartridge inside the Jhuggi was found. He called the crime team and recorded the statement of eye witness Ex.PW9/A, made endorsement Ex.PW24/A and sent the same for registration of the FIR. Prepared site plan. Prepared the sketch of empty cartridges and seized the same. He lifted and sealed the blood on the spot with the help of gauze, removed the blood stained concrete with the help of hammer and chhaini and normal earth control. He received FIR and deposited the pullandas in Maalkhana and recorded the statements of the staff of the spot. On 03/03/2014 postmortem of deceased(identified by PW8) was conducted. He received secret information that accused Shadab was likely to go from New Delhi Metro Station Ajmeri Gate side towards Anand Vihar and formed raiding party. He asked public SC no.:86/14 Page 10/24 persons to join investigation but none agreed citing genuine reasons. At about 2:25 pm complainant Kasim pointed towards the accused Shadab who was apprehended. Accused Shadab confessed about his involvement and his clothes worn on the day of incident and was arrested, personal search was carried out. His wearing tshirt, jacket and jeans were taken into possession. Site plan was prepared. Disclosure statement was recorded. Accused pointed out the place of occurrence. He recorded supplementary statement of Kasim. Postmortem of deceased was conducted and video recording as well as photographs were taken. Dead body was handed over to relatives of deceased. He received 10 exhibits with the seal of the hospital from the doctors vide memo Ex.PW24/E and deposited the same in maalkhana. He informed mother of accused Shadab about his arrest and recorded statement of SI Vimal and SI Mohit. On 05/03/2014 on basis of secret information he constituted a raiding party and on pointing out of accused Shadab, accused Saleem and Munni were arrested from near Turkman gate. Disclosure statement of accused were recorded. He recorded statement of witnesses. Complainant Kasim identified the said accused. PC remand of accused was obtained and on 07/03/2014 accused Saleem told that accused Rahul would come to his brother's house at Seelampur. He prepared raiding party and waited for the accused at Seelampur. At 8 pm on pointing out of Saleem, accused Rahul was apprehended. On his formal search one pistol was recovered from right side dub of his wearing trouser. Sketch Ex.PW5/A was prepared and pistol seized vide Ex.PW5/B. Seal was given to HC Ajeet. Site plan of place of arrest was prepared. He identified the case property and the accused persons.
In cross examination on behalf of accused Shadab denied that statement of Kasim was not recorded and Kasim had not disclosed name of any of the accused. He also denied that since there were three wounds of different sizes of deceased, there was SC no.:86/14 Page 11/24 possibility of use of three weapons of offence. He was given noteworthy suggestion "it is correct that accused Shadab had given his disclosure statement Ex.PW10/F voluntarily, without any pressure, coercion". "it is correct in the disclosure statement of Shadab is mentioned that the weapon of offence was handed over to Saleem Dhatura". "it is wrong to suggest that I was in knowledge that weapon was handed over to Saleem Dhatura, thereafter, even after knowledge I did not obtain the sample finger print of Saleem Dhatura to match with the latent finger print found on the weapon". He denied that accused Saleem was not arrested in the manner as stated by him.
43. In cross examination on behalf of accused Munni he denied that accused Munni did not make any disclosure statement or that she was falsely implicated in this case. In cross examination on behalf of accused Rahul @ Nadeem. He denied that he had not correctly recorded the statement of Kasim. He had not called any family member of Kasim at the time of recording of his statement. He denied that seizure memos were not prepared at the spot or were ante timed. He had not verified the statement of Kasim in respect of quarrel between the deceased and accused persons in the afternoon. He denied that Saleem Dhatura had not disclosed that he had handed over the pistol to Rahul @ Nadeem. He denied that accused Rahul was called in the Police Station IP Estate on 03rd, 04th and 05/03/2014 and after inquiry was let off. He denied that accused was again called on 07/03/2014 and falsely implicated in this case. He admitted that there were cctv camera installed in the Police station but denied that cctv footage in regard to calling of accused Rahul from 03/03/2014 to 07/03/2014 was existing. Prior to 07/03/14 he did not have any information regarding coming of Rahul to Seelampur. He admitted that as per Ex.PW24/DX1 HC Ajeet had stated that accused was coming to meet wife of accused Saleem. He did not know if accused SC no.:86/14 Page 12/24 Saleem and his wife were residing in Turkman Gate area. He admitted that as per arrest memo Saleem's address was of Turkman Gate. He had parked the vehicle on the corner of the road near the shop, but in statement Ex.PW5/DA it was recorded that they had waited on the main road situated at the house of accused Saleem @ Dhatura. He was not knowing wife of accused Saleem and did not meet her. Accused Rahul reached area of Seelampur at 8/8:15 pm. The said area was crowded area, but, volunteered at the relevant time there were not many people near the place of arrest. He did not remember if he had immediately filled up FSL form after recovery of Katta. He denied that he had not handed seal to HC Ajeet Singh. He denied that there was no recovery of fire arm from accused Rahul. Pullanda of pistol was deposited in maalkhana on the same day i.e. 07/03/2014 at 10 pm. Accused Rahul was sent for medical examination. He denied that accused Rahul had been falsely implicated in this case. In cross examination on behalf of accused Saleem he denied that Kasim had not given any statement. He also denied that accused Saleem was falsely implicated in this case. He admitted the place of arrest of accused Saleem was crowded area but no public witness had joined at the said time.
44. PW4 stated on 02/03/2014 IO collected MLC and thereafter had gone to the spot where statement of Mohd. Kasim was recorded and rukka was prepared which he took to the police station and returned with the FIR. In cross examination stated he reached spot at about 3:40 pm where Kasim was present. He denied that complainant was not present at the spot nor any statement was recorded or that subsequently Kasim was made a planted witness to solve a blind murder case. In cross examination on behalf of accused Rahul, he stated that he had seen accused Rahul in the PS after about 2 days of incident may be on 04 th or 5th March, 2014.
45. PW13 was the duty constable at LNJP hospital on the intervening night of SC no.:86/14 Page 13/24 0203/03/2014 and had received pullanda of clothes of deceased. He had handed the same to the IO vide Ex.PW13/A. PW15 had accompanied IO to JPN hospital, to the spot on 02/03/2014 and in his presence, MLC of deceased, blood stained exhibits and empty cartridges from the spot were taken into possession. Mohd. Kasim had also handed over mobile phone of deceased. PW21 had taken the copies of FIR and delivered the same to senior police officers and Ilaka Magistrate on 02/03/2014.
46. PW7 proved that he had prepared the scaled site plan Ex.PW7/A of the spot. PW10 had joined investigation with IO on 02/03/2014 and in his presence, MLC of deceased was collected at the spot, rukka was prepared. Ct. Maharaj took rukka and returned with FIR. At the spot, two empty cartridges were taken into possession. The sketch being Ex.PW10/A, three samples of blood lying on the spot were also taken into possession. Postmortem of deceased was conducted and in his presence accused Shadab was arrested from New Delhi Railway Station. Accused Shadab was wearing blue colour jeans and black jacket. The said clothes were taken into possession.
47. PW1 has corroborated version of IO in respect of arrest of accused Munni and Saleem @ Dhatura near Turkman gate at the pointing out of accused Shadab. He had signed on the arrest memos, search memos, pointing out memos and disclosure memos of the said accused persons. In cross examination denied that he had not joined investigation on 05/03/2014 or that no accused was arrested in his presence.
48. PW2 further corroborated IO and PW1 in respect of arrest of accused Munni and Saleem and had also signed on the arrest memo, personal search memo and disclosure statement of accused Munni. In cross examination denied that she had not joined the investigation or that accused Munni was not arrested in the manner stated by her. PW22 had SC no.:86/14 Page 14/24 accompanied IO to mortuary on 03/03/2014 where postmortem of deceased were carried out. In his presence accused Shadab and accused Saleem and Munni were arrested.
49. The stand of accused Munni in regard to her arrest as per her statement u/s 313 Cr.PC was that she was arrested from footpath of LNJP colony and accused Saleem stated that he was called from his home on 0506 and 07/03/2014 and falsely implicated. But as per record accused Saleem was arrested on 05/03/14 and produced before Ld. MM on 06/03/14. There is also no evidence to prove the said contention of the accused persons.
50. As per prosecution story, after arrest of three accused, on 07/03/14 accused Rahul was arrested from Seelampur and pistol(weapon of offence) was recovered.
51. PW5 was present with the IO at the time of apprehension of accused Rahul and corroborated IO's version. He stated accused Saleem Dhatura pointed towards Rahul who was apprehended from Seelampur and from his casual search pistol was recovered which was seized, sketch was prepared and sealed. He had signed on the memos Ex.PW5/A to Ex.PW5/F. In cross examination stated he had seen accused Saleem for the first time in the police station on 04/03/2014 when he had joined investigation. They reached the spot at 7:45 pm from where accused Rahul was apprehended. They all were seated in the vehicle. He had neither gone to the house of accused Saleem nor met his wife. They had parked the vehicle on the road leading to Brahm puri and had not told in his statement that the vehicle was parked outside the accused Saleem. He was confronted with statement Ex.PW5/DA wherein such fact was recorded. He denied that they had not visited the Seelampur area nor accused Saleem led to Seelampur from where accused Rahul was arrested. He admitted Brahm puri road was a busy road and public persons were coming and going from the road. Accused Rahul was medically examined at 11:30 pm. He denied that accused Rahul was already in SC no.:86/14 Page 15/24 police custody and the weapon of offence was planted upon him. PW6 also deposed on similar lines supporting said version.
52. Thus the above said witnesses PW5, PW6 and PW24 have deposed similarly corroborating each other that on 07/03/2014 they alongwith accused Saleem @ Dhatura went to Seelampur and parked their vehicle on Brahmpuri road. At about 8 pm accused Rahul(alone) wearing track suit was seen coming and on pointing out of accused Saleem was arrested. From his casual search, from the right side of the lower of track suit, one pistol, sketch being Ex.PW5/A was recovered. The same was sealed and seized.
53. Ld. counsel for accused Rahul argued that accused Rahul was already in custody of the police and was called from 03/03/14 to 07/03/14 but was falsely shown to be arrested from Seelampur and the recoveries were also planted on him. This contention on behalf of the accused is a mere assertion and no corroboration of this facts is either proved or pointed out from the record or the evidence. Accused Rahul in regard to his arrest in his statement u/s 313 Cr.PC stated that he was called on 05/03/2014 but SHO was not present and was again called on 07/03/2014 at 3:45 pm and detained. It is on record that statement of Kasim was recorded on 02/03/14 wherein name of all accused including Rahul were mentioned. Thus, if Rahul had been available in the PS on 03/03/2014, or prior to arrest of other accused, then, in normal circumstances in a case u/s 302 the said accused would have not have been let loose. Further PW24 admitted that cctv for the relevant date in question was installed in the police station and if the contention of the accused in this regard was correct then he could have called for the said cctv footage to prove his contention. There is, however, no evidence to show that Rahul had actually been called to PS on any date prior to 07/03/2014. No material contradiction except for the fact that no public witness was associated at the time of recovery of pistol from accused Rahul has been pointed out. In this SC no.:86/14 Page 16/24 regard, IO and other witnesses admitted that the place of arrest was a crowded area but no public witnesses could be associated. IO explained that they had reached the spot and were waiting in their vehicle for the accused and that at the said time there were not many people present near the spot. It is also the prosecution case that IO formed raiding party for apprehension of the accused and the pistol was recovered on casual search and not on disclosure of the accused. Thus at the said time IO's first priority would have been to ensure arrest of accused and could not have afforded to give signal of their presence by asking too many persons on the spot. It is also well known that public persons are reluctant to join investigation relating to criminal cases. The pistol in question was deposited with maalkhana on the same night as per Ex.PW23/D i.e. without any delay and also rules out any possible later planting of the weapon of offence. Further all police witnesses have corroborated without any material contradiction in regard to the fact of recovery of pistol from accused Rahul. In these circumstances mere non association of public witnesses would not materially affect the recovery of the pistol from accused Rahul.
54. PW11 was the second IO and on his direction Inspector Mahesh had prepared the scaled site plan. Ct. Sharad(PW12) had taken the exhibits of the case to FSL. He had collected the Serological, biological, ballistic expert reports. He had also obtained sanction u/s 39 Arms Act.
55. PW23 was the MHCM and produced the record relating to deposit of 4 sealed pullanda on 02/03/2014 and 10 on 03/03/2014, deposit of personal search articles of accused Saleem on 05/03/2014 and on 07/03/2014 deposited sealed pullanda and personal search of accused Rahul and sending of the exhibits to FSL on 05/05/2014.
56. The recovered pistol along with two empty cartridges of spot, clothes of SC no.:86/14 Page 17/24 deceased and the clothes of accused were also sent to FSL which were examined by PW25 & PW26. PW25 had received 17 sealed parcels and had prepared the biology report Ex. PW25/A and the serological report Ex. PW25/B. PW26 had received 12 sealed parcels sealed with the seal of SBP and MAMC and seal of RSY. Five 7.65 mm cartridges were received for test firing.
57. PW26 had examined 12 parcels i.e. (i) parcel No 4 containing one kurta in torn condition with brown stains marked as Ex. C1, having two holes, one hole present on the upper front portion of the right sleeve near shoulder, marked as H1 and the another hole present on the left portion of front side, marked as S2. One Banian in torn condition with brown stains, marked as Ex. C2, having three holes on the left portion of the front side marked as H3A, H3B and H3C. One Pajama with brown stains, one cap with brown stains and one piece of cloth marked as C3, C4 and C5 respectively.
(ii) parcel No.5 containing one deformed bullet marked as Ex. EB1.
(iii) parcel No.6 containing one deformed bullet marked as Ex. EB2
(iv) parcel No.7 containing one bullet marked as Ex. EB3.
(v) parcel No.8 containing one cotton swab said to be taken as control sample,marked as Ex. CS1.
(vi) parcel No.9 containing one cotton swab said to be taken from left hand,marked as Ex. SL1.
(vii) parcel No.10 containing one cotton swab said to be taken from wound of chest, marked as Ex. SCh2.
(viii) parcel No.11 containing one cotton swab said to be taken from wound of right shoulder, marked as Ex. SRS3.
SC no.:86/14 Page 18/24
(ix) parcel No.12 containing one cotton swab said to be taken from wound of head, marked as Ex. SH4.
(x) parcel No.13 containing one cotton swab said to be taken from right hand, marked as Ex. SR5.
(xi) parcel No.20 containing one improvised pistol of 7.65 mm Caliber marked as Ex. F1.
(xii) parcel No. 21 containing two 7.65mm cartridge cases marked as Ex. EC1 and EC2 respectively.
58. PW26 on examination found that the improvised pistol Marked Ex. F1(recovered from accused Rahul) was in working order. Test fire was conducted successfully by using two of the five 7.65 mm cartridges received for test firing, the test fired cartridge cases were marked as TC1, TC2 and the two recovered test fired bullets were marked as TB1 and TB2 respectively. The 7.65 mm cartridge cases marked EC1 and EC2 were fired empty cartridges and had been fired through the improvised pistol 7.65mm caliber marked Ex. F1 as the individual characteristic of firing pin marks present on Ex. EC1, EC2 and on test fired cartridge cases marked as TC1 and TC2 were found identical when examined under the comparison microscope. The bullets marked Ex. EB1 to EB3 were correspondence to Bullet of 7.65mm cartridge. The individual characteristic of striations present on the Ex. EB1 were insufficient for comparison and opinion. The bullets marked Ex. EB2 and EB3 had been discharged through the improvised pistol marked Ex. F1 as the individual characteristic of striations present on Ex. EB2, EB3, and on test fired bullets marked TB1 and TB2 when examined under the comparison microscope.
The holes marked H1, H2 on the kurta marked Ex. C1, the holes marked H3A, SC no.:86/14 Page 19/24 H3B, and H3C on banian marked Ex.C2 alongwith control samples were analysed for gun shot residue particles on Atomic Absorption Spectrophotometer. As a result of analysis, gun shot residue particles were detected around the holes marked H1 and H2 on kurta Marked Ex. C1.
The swabs marked SL1, Sch2, SRS3, SH4 & SR5 alongwith control swab marked CS1 were analysed for gunshot residue particles (GSR) on Atomic Absorption Spectrophotometer. As a result of analysis, gunsho residue particles were detected on the swab marked SH4.
The improvised pistol marked Ex. F1, the cartridge cases marked Ex. EC1, EC2 and bullets marked Ex. EB1 to EB3, were parts of ammunition as defined in Arms Act 1959.
69. The postmortem report of deceased had concluded that injury no. 1 & 3 (caused by fire arm) were sufficient to cause death in ordinary course. The FSL report (ballistics) established that the empty cartridges Ex. EC1 & EC2 recovered from the spot were fired from pistol F1. It is also reported that bullets mark EB1 to EB3 corresponded to the bullets of 7.65 mm cartridge which were of the same dimensions as of the test cartridges TC1 & TC2 and test fired bullets TB1 & TB2. Report in regard Ex.EB1 was unconclusive. This therefore, clearly establishes that the two bullets recovered from the dead body of deceased EB2 & EB3 were fired from the pistol Ex. F1. There were holes on the kurta and baniyan of the deceased corresponding with gun shot injury and were also found containing gun shot residue particles around holes of kurta C1. The swabs along with control swabs for gun shot residue particles also established presence of gun shot residue on the swab marked SH4. All the exhibits i.e. pistol, the recovered cartridges and test cartridges were part of ammunition SC no.:86/14 Page 20/24 as defined in Arms Act, 1959.
60. The biological and serological report Ex. PW25/A & Ex. PW25/B respectively also established that blood, was detected on the blood in gauze of deceased, blood stained concrete lifted from the spot, salwar, kurta, baniyan of the deceased, bullet recovered from the head, shoulder and chest, and jacket (jacket of accused Shadab Ex. P10/4) were having blood. The blood found on jacket and blood of deceased was of group AB. There is also no explanation how blood AB group(similar to deceased) had come on the jacket of accused Shadab. The said jacket belonging to accused Shadab is also not seriously disputed as is clear for suggestion to PW22 "it is wrong to suggest that he had planted/managed blood on the jacket of accused Shadab".
61. Ld. counsel for accused Rahul has argued that in the present case ballistic report should be discarded and has relied on Crl. Appeal 522/05, Niwas @ Patel Vs State decided on 31/08/2009 in support of his contention.
62. However, the facts of the said case are different from the present case, in the said case the pistol of the case was found to be of bore .303''/.315'' i.e. was capable of firing bullet of both .303 and .315 bore and it was held that bore .303 would be narrower than the bullet of .315''. Consequently, the same would be loosely fitted bullet and would result in having imperfectly marked imprints. The sketch of pistol of the said case was also not drawn to scale and photographs of the striation marks generated on the suspect and the sample test were not produced. These were other contradictions also.
63. However, in the present case, the firearm Ex.F1 was an improvised pistol of 7.65 mm caliber designed to fire a standard 7.65 mm cartridge. The test fire was conducted of the cartridges of said dimensions only. There is no evidence to show that any bullet used SC no.:86/14 Page 21/24 or recovered was loose or that the pistol was capable of firing a bullet of higher bore. PW26 also explained that he had not taken any photograph of the striations marks and had based his opinion on the basis of observation under the comparison microscope and not on the basis of photograph. He had found the mark on bullet Ex.EB1 to EB3 corresponding to bullet of 7.65mm and the cartridges cases mark EC1 and EC2 and test fire cartridge cases TC1 and TC2 were found to be identical. The bullet EB1 was having insufficient characteristics for comparison, however, the deformed bullet Ex.EB2 and EB3 were found to be discharged through improvised pistol Ex.F1 as the individual characteristics of Striations were found to be similar as of test fired bullets TB1 and TB2. He had also found gun shot residue on Kurta Mark C1 Baniyan C2 corresponding with the holes H1, H2, H3, HA, HB and HC on the clothes of deceased.
Thus there being specific finding of the FSL report that bullet and fire arm were of 7.65 mm caliber and has also explained his process of forming the opinion. The same is based on well reasoned and scientific principles there is, therefore, no reason to doubt the finding of the experts in this regard.
64. To summerise:
It is proved that deceased died due to gun shot injuries no.1 and 3 caused by use of firearm Ex.F1/Ex.P1. The firearm was recovered from possession of accused Rahul. But, none of the eye witnesses have identified any of the accused as being involved in the offence in question. Previous enmity of the accused persons with the deceased is also not substantiated on record. There are only two incriminating evidences against the accused, namely, jacket of accused Shadab having blood stains of AB group same as that of deceased and the recovery of the weapon of offence from accused Rahul. However, even as per the prosecution at the time of offence in question, accused Rahul was not present on the spot. SC no.:86/14 Page 22/24 Thus there has to be some evidence to show some other accused had delivered the weapon of offence to him. There is, however, only disclosure statement of accused Shadab and Saleem relating to this fact but the same also without corroboration would be unsafe to substitute as proof of this fact. In respect of accused Shadab, though his jacket Ex.P10/4 was proved to be having blood stains of AB group i.e. similar to the blood group of the deceased, but, the prosecution story was that the offence had taken place at day time in a area where there were residential as well as business premises and witnesses would have been available. But the same were not produced. Thus the sole piece of evidence cannot be treated to link the accused beyond reasonable doubt to the offence in question. Similarly, in respect of accused Saleem, the fact of discovery of pistol Ex.P1 in possession of accused Rahul from him has been proved on record. But the same also in isolation cannot establish the guilt of accused beyond reasonable doubt. There is no other evidence to link accused Munni with the offence in question. The chain of circumstantial evidence linking the accused with the murder of deceased is also not complete. In view of the said circumstances, accused persons deserve benefit of doubt for the offence U/s 302 IPC.
65. However, in respect of other offence, recovery of pistol Ex.F1/P1 from accused Rahul is proved beyond reasonable doubt. The said weapon Ex.F1/P1 was possessed by him in contravention of provisions of Arms Act for which requisite sanction u/s 39 Arms Act vide Ex.PW27/A was given by PW27. The offence U/s 25 Arms Act is thus proved against accused Rahul.
66. Accordingly, all accused persons are acquitted for offence u/s 302/34 IPC.
67. Accused Rahul is convicted u/s 25 Arms Act.
68. In terms of order of Hon'ble High Court in Crl. L.P. No. 3/2015, accused SC no.:86/14 Page 23/24 persons Shadab, Saleem and Munni shall furnish bail bond and surety along with latest passport size photographs and latest residential proof. Bail bond however, shall remain in force for a further period of 06 months in terms of section 437(A) Cr. PC. File be consigned to Record Room.
Announced in the open court (DINESH BHATT)
on 21/01/2016 ASJ/Delhi/21/01/2016
SC no.:86/14 Page 24/24