Delhi District Court
State vs Mohd. Mobin on 26 February, 2020
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM: ADDL. SESSIONS JUDGE-03:
EAST DISTRICT: KARKARDOOMA COURTS: DELHI.
Sessions Case No.: 529/2016
State Versus Mohd. Mobin
@ Mohd. Mukarram
S/o Mohd. Akhtar
R/o A-328, Gali No. 9,
Near Amina Masjid,
Wazirabad Village, Delhi -84
FIR No. : 281/2013
Under Section : 307/392/397/186/353/333/34 IPC
& 27/25 Arms Act
Police Station : Pandav Nagar
Chargesheet Filed On : 26.09.2013
Chargesheet Allocated On : 31.10.2013
Chargesheet received by
this Court : 04.02.2014
Undersigned Presided over
this Court : 06.11.2017
Judgment Reserved On : 19.02.2020
Judgment Announced On : 26.02.2020
JUDGMENT
1. Filtered allegations, necessary for disposal of the present case are that Const. Sandeep got recorded his statement with the police inter SC No.: 529/2016 State Vs. Mohd. Mobin @ Mohd. Mukarram Page No.: 1 of 24 alia alleging therein on 29.06.2013 at about 2 p.m. while he was on patrolling duty and reached near Acharya Niketan Chowk, Jeevan Anmol Hospital, he noticed two persons came on a motorcycle from Mayur Vihase Phase I, Pocket I and pillion rider of the same waived pistol, which he was having in his hands, and snatched chain from the neck of a lady. Said lady raised alarm. He (said Constable) with the help of 2-3 public persons chased and during that those motorcyclists (culprits) fell down. Pillion rider of the motorcycle at the exhortation of driver of the said motorcycle, pointed out pistol at him (complainant) and while he tried to snatch the said pistol, pillion rider fired at him which hit in finger of his left hand and despite that said culprit was overpowered. From the left hand of said culprit robbed chain was also recovered and lady/victim identified the said chain as belonging to her. Public persons gathered at the spot gave beatings to said culprit, whose name was revealed as Mobin, and both i.e. culprit Mobin and said Constable Sandeep were rushed to hospital. Name of co-accused is disclosed as Sajid.
2. On the basis of the said complaint, present case bearing FIR No. 281/2013 PS Pandav Nagar under Secs. 307/392/397/186/333/353/34 IPC was registered against the accused persons.
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3. During the course of the investigations, accused Mobin was arrested. Proceedings regarding pistol and cartridges recovered from the spot were conducted. Despite best efforts whereabouts of said victim lady could not be traced. Co-accused Sajid also could not be arrested despite efforts. On conclusion of the investigations, chargesheet was filed against the present accused before the court of learned Metropolitan Magistrate to face trial for the offences punishable under Sec.
307/392/397/186/353/333/34 IPC & 27/25 Arms Act.
4. After compliance of provisions of Sec. 207 CrPC by the court of ld. CMM, case was committed to the Court of Sessions as some of the Sections involved in the present matter are exclusively triable by it.
5. Vide order dated 20.11.2013 passed by ld. predecessor, charge under Section 392/34 IPC; 186/34 IPC; 333/34 IPC; 353/34 IPC and 307/34 IPC was framed against the present accused to which he pleaded not guilty. Later on vide order dated 04.01.2016, said charge was amended as 392/34 read with Se. 397 IPC; 186/34 IPC; 333/34 IPC; 353/34 IPC; 307/34 IPC and 25/27 Arms Act and to the said charge also, accused pleaded not guilty and claimed trial.
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6. In order to bring home the guilt against the accused, prosecution took help of eighteen witnesses, who are as follows:-
PW-1 HC Dharam Pal, Duty Officer, proved the copy of the FIR as 1/A;
PW-2 Dr. D.P. Majumdar, proved the MLC of Const. Sandeep as Ex.PW2/A prepared by Dr.Kartijeyan;
PW-3 Dr. Virender Kumar, medically examined Mohd. Mobin/accused and proved his MLC as Ex.PW3/A;
PW-4 HC Sandeep, the complainant and one of the star witness of the case proved his statement as Ex.PW4/A and also identified the pistol as Ex.P1 having mark "Made in USA No. 103" and one magzine. This witness further stated that the gold chain was handed over by public person to the lady.);
PW-5 Sanjay Sharma; PW-6 Sunil; PW-8 Sohan Lal and PW-9 Dilsher @ Saleem, public witnesses, failed to identify the culprit and were declared hostile by ld. Addl. PP.;
PW-7 Shyam Verma, public witness, supported the prosecution case and also identified the accused as one of the culprit; SC No.: 529/2016 State Vs. Mohd. Mobin @ Mohd. Mukarram Page No.: 4 of 24 PW-10 Const. Niranjan joined the investigations of this case with HC Narender and rushed the accused to hospital and then custody of accused was handed over to SI Praveen Kumar;
PW-11 SI Sanjiv, as per the direction of SHO, went to LBS Hospital, obtained the MLC of Mobin and is a witness of the seizure of Ex.PW11/A;
PW-12 HC Rambir Malik joined the investigations of this case with SI and is a witness to the seizure of Ex.PW12/A& B;
PW-13 Const. Mehak also joined the investigation of this case and he is a witness to the arrest of accused and proved memos Ex.PW13/A to H;
PW-14 Sh. Surender Kumar, IPS, accorded sanction under Sec. 39 Arms Act and proved the same as Ex.PW14/A;
PW-15 ASI Narender also joined the investigations of this case and is a witness to the arrest of accused vide Ex.PW13/A;
PW-16 Const. Mukesh took the parcels and deposited the same with FSL, Rohini in intact condition;
PW-17 HC Ravinder took the exhibits to FSL and deposited there in intact condition;
SC No.: 529/2016 State Vs. Mohd. Mobin @ Mohd. Mukarram Page No.: 5 of 24 PW-18 SI Praveen Kumar is the Investigating Officer of the case who conducted the investigations of this case and proved the memos prepared in the present matter.
During the prosecution evidence, accused vide his statement recorded under Sec. 294 CrPC admitted the photographs as Ex.C1; DDs No.21-A; 22-A and 14-B as Ex.C2 to 4; FSL report as Ex.C5 and CFSL report as Ex.C6.
7. All the incriminating evidence which has come on record has been put to the accused under Section 313 CrPC. The accused denied all the incriminating evidence put to him and pleaded his false implication. He further pleaded that he has been implicated falsley in this case further stating that on the day of alleged incident, he was very much present near the said place being vendor and on account of stampede as quarrel had taken place between police and public, he fell down and sustained injuries. Accused opted to lead Defence Evidence.
8. DW-1 Naseem Mohd. was examined by accused. This witness deposed that he and accused are in the same profession and that on 29.06.2013 at about 3/3.30 p.m. some police officials came in the weekly market at Pandav Nagar and lifted some persons including the SC No.: 529/2016 State Vs. Mohd. Mobin @ Mohd. Mukarram Page No.: 6 of 24 accused. He further deposed that he (this witness) collected the articles of the accused and handed over the same to the members of family of the accused and accused did not return till late night. Later on, about one year after that accused informed him that he had been detained by the police in a case further stating that till he remained at the patri shop, he noticed some hot words exchanged between Mobin and police officials on the issue of running of patri shop.
9. I have heard the submissions of Sh. A.K. Mishra, ld. Addl. PP for the State and ld. defence counsel for accused. I have also perused the material available on record with the law on the issues in question.
10. Ld. Addl. P.P. for the State argued that the prosecution has proved its case beyond all reasonable doubt by examining the prosecution witnesses who in clear and unequivocal terms stated that accused is responsible for the crime committed in the present matter. Ld. Addl. PP for the State further contended that though some of the public witnesses did not support the prosecution case on the point of identity of the accused but it is well known that there are so many factors on account of which public witnesses do not support the prosecution case and failed to identify the culprit(s). Ld. Addl. PP for the State further drew the attention of the court towards the fact that all the public witnesses admitted their presence and SC No.: 529/2016 State Vs. Mohd. Mobin @ Mohd. Mukarram Page No.: 7 of 24 one of the culprit at the place of incident on the date and time of incident and there is no reason for false implication of the accused as no ill-will, grudge or enmity has either been alleged or proved against any of the prosecution witness including the police officials and also that testimony of the police officials is to be considered as trustworthy. Ld. Addl.PP for the State further contended that accused is taking different stand from time to time and even his defence is self contradictory and is liable to be rejected. Ld. Addl. PP prayed for conviction to the accused, for the offences for which he has been charged with.
11. Per contra, ld. defence counsel contended that firstly, the testimony of the defence witnesses be treated at par, as of prosecution witnesses and this proved the falsity of the prosecution case.
12. Apart from that, ld. defence counsel drew the attention of the court towards the fact that prosecution has failed to bring home the guilt against accused for the offences punishable under Sec. 392/34 read with Sec. 397 IPC as prosecution has failed to produce any evidence on the record to the effect that any robbery was committed on any person and none of the prosecution witness stated that robbery was committed upon him/her and this all is fatal to the prosecution case. SC No.: 529/2016 State Vs. Mohd. Mobin @ Mohd. Mukarram Page No.: 8 of 24
13. Next contention of the ld. defence counsel is that most of the public witnesses did not say anything about the incident qua offences punishable under Secs. 186/333/353/307 IPC, and testimony of the remaining witnesses qua said offences is full of contradictions and improvements and are liable to be discredited. Ld, defence counsel even drew the attention of the court towards statement of PW-4 HC Sandeep wherein he failed to identify accused Mobin who caused injuries to him at any point of time by firearm. Ld. defence counsel further contended that it is the primary duty of the prosecution to prove its case beyond all reasonable doubts and prosecution has failed to do so and thus, prayed for acquittal to the accused.
14. Having carefully gone through the entire material on record, considered the rival submissions of the parties in the light of the law laid down on the issue in question after due care.
15. Qua contention of ld. defence counsel about defence witnesses, it is undisputed that the evidence tendered by defence witnesses can not always be termed to be a tainted one and they are entitled to equal treatment and equal respect as that of the prosecution witnesses and for holding this view, court is taking support of State of SC No.: 529/2016 State Vs. Mohd. Mobin @ Mohd. Mukarram Page No.: 9 of 24 Haryana Vs. Ram Singh, 2002 (1) JCC 385 (Supreme Court of India). But it is also to be kept in mind that their testimony should inspire confidence.
16. DW-1 Naseem Mohd. appeared in the dock for accused and deposed that on 29.06.2013 around 3/3.30 p.m. police officials came and apprehended the accused. It is crystal clear from the record that PW-3 Dr.Virender Kumar deposed that at about 2.45 p.m. Mobin was brought to hospital with alleged history of beating at the hands of the public. Ex.PW3/A is clear to that aspect. To the contrary, accused during his statement recorded under Se. 313 CrPC took plea that on account of a quarrel between public and police, stampede occurred and he (accused) sustained injuries on account of falling down. Suggestion was put to PW-4 HC Sandeep that while he was going to market, he was implicated falsely. No suggestion was put to PW-3 that injuries sustained by the injured can be possible at the hands of the police or falling down. Defence of the accused is self contradictory as he is taken different stand from time to time. Even DW did not ever allege that police ever beaten him. Apart from that MLC Ex.PW3/A is clear to the effect that accused/injured was under
the influence of liqour at that time as mentioned in the said MLC as - Strong smell of alcohol present. Though, it cannot prove the prosecution SC No.: 529/2016 State Vs. Mohd. Mobin @ Mohd. Mukarram Page No.: 10 of 24 case but it will read against the accused to some extent.
17. In case reported as Laxman Yadav V. State, 2013 AD (Crl.) DHC 112, Hon'ble High Court well observed as "...false explanation by accused - effect -
false explanation by accused to built up defence which is otherwise contrary to established version of prosecution leads to drawing of adverse inference against such accused."
18. Hence, in view of the above, this all shows that witness examined on behalf of defence do not inspire any confidence and defence of the accused neither trustworthy nor reliable.
19. Now, it has to analysis the prosecution evidence to the effect whether prosecution has able to prove its case for the offences for which accused has been charged with, beyond all reasonable doubts.
20. Undisputedly, in the present matter accused has been charged for the offences punishable under Sec. 392/34 r/w 397 IPC; 186/34 IPC; 333/34 IPC; 353/34; 307/34 IPC and 25/27 Arms Act.
21. The court shall deal with the same one by one and firstly, court shall deal with the case qua offence punishable 392/34 r/w 397 IPC. Admittedly, the victim for the robbery has neither come forward nor was SC No.: 529/2016 State Vs. Mohd. Mobin @ Mohd. Mukarram Page No.: 11 of 24 cited as witness to the effect of crime of robbery committed upon her. In the absence of the complainant/victim of robbery, case cannot be thrown out outrightly. Circumstances and other facts of the matter are also to be seen. In the present case, though victim of said incident of robbery has neither cited as a witness nor joined investigation but PW-7 Shyam Verma, an independent public witness, in clear words stated that it was one of the accused who snatched the gold chain of a lady. Even during his cross- examination conducted on behalf of the accused, in the first line of his cross-examination, he clearly stated as - "I saw the incident of snatching the gold chain from muy naked eyes. I also saw the said lady whose chain was snatched by accused but I do not remember his name." No reason has come forward as to why he would be implicate the accused for any such crime particularly when no ill-will, grudge or enmity has either been alleged, proved or brought on record. However, this witness is not clear as to who robbed the chain from the said lady whether pillion rider or driver of the motorcycle. He had only seen that chain of a lady had been snatched. However, identified the accused as one of the assailant present at the time of the crime. Hence, in view of the above, this court is of the view that this case does not fall within the ambit of Sec. 392/34 IPC or 397 IPC but same comes within the bracket of provisions of Sec. 385/34 IPC. As such, SC No.: 529/2016 State Vs. Mohd. Mobin @ Mohd. Mukarram Page No.: 12 of 24 accused Mobin is hereby acquitted for the offences punishable under Sec. 392/34 r/w 397 IPC for which he has been charged with but is held guilty for the offence punishable under Sec. 382 read with Sec. 34 IPC.
22. Now court shall consider the evidence qua offences punishable under Sec. 186/34 IPC; 333/34 IPC; 353/34 IPC. To prove the said offences prosecution took help of PW-4 HC Sandeep, the complainant/victim; PW-5 Sanjay Sharma; PW-6 Sunil; PW-8 Sohan Lal; PW-9 Dilsher @ Saleem, and PW-7 Shyam Verma, public witnesses. It is undisputed fact that out of them, PW-5 Sanjay Sharma; PW-6 Sunil; PW-8 Sohan Lal; PW-9 Dilsher @ Saleem either failed to identify the accused as culprit for the said offence or did not say anything against the accused, however, did not disprove the incident of robbery and firing. Though, PW-4 HC Sandeep and PW-7 Shyam Verma deposed about the incident and deposed the accused as culprit who committed the said offence. But it is to be kept in mind that to prove these said offences, complaint under Sec. 195 CrPC is mandatory to prosecute the offences under Sec. 186; 333 and 353 IPC.
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23. Section 195 CrPC says:
195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence - (1) No court shall take cognizance -
(a) (I) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Coder, (45 of 1860), or
(ii) of any abetment of, attempt to commit such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
xxxxxxxxxxxxx"
24. But the prosecution has failed to prove the same. None of the witness cited or examined on behalf of the prosecution in order to prove it. Prosecution has neither cited any such witness nor produced any material on record to this effect as to whether any such complaint was ever brought on record by the prosecution for the said acquisition. This all goes against the prosecution and for lack of the same, accused is entitled for benefit of doubt for the offences alleged against him for the offences punishable under Sections 186/34 IPC and 353/34 IPC, as same are co-related to the offence punishable under Sec. 186 IPC as Section 195 (3) under Comments of Sec 195 CrPC provides a precondition for taking cognizance of offence under section 193 of the Code and for it reference is there for SC No.: 529/2016 State Vs. Mohd. Mobin @ Mohd. Mukarram Page No.: 14 of 24 the case reported as Chandrapal Singh Vs. Maharaj Singh, AIR 1982 SC 1236: (1982) CrLJ 1731. As such, accused Mobin is also hereby acquitted for the offences punishable under Secs. 186/34 IPC and 353/34 IPC.
25. Now come to the issue of Sec. 307/34 and 333/34 IPC. In the present incident, HC Sandeep sustained injuries in his second finger of left hand (index finger), as per the MLC Ex.PW2/A. To prove, this charge against the accused, prosecution took help of various witnesses and out of them only, PW-2 Dr. D.P. Majumdar; PW-4 HC Sandeep and PW-7 Shyam Verma and also PW-18 SI Praveen Kumar are material witnesses.
26. There is no dispute to the fact that injured is the most interested person to see the actual culprit(s) behind bars. Hon'ble Apex Court in a case titled as State of Uttar Pradesh Vs. Naresh & Ors., 2011 AD (SC) 20 observed to the effect:
"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence can not be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he SC No.: 529/2016 State Vs. Mohd. Mobin @ Mohd. Mukarram Page No.: 15 of 24 has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein."
27. Apart from that it is also matter of record, as mentioned above, accused has failed to prove his presence at any other place, if he was not present at the spot at the time of the incident. Though, number of witnesses examined by the prosecution established the presence of accused at the spot on the date and time of incident.
28. As per the provision of the Section 307 IPC, the essential ingredients required to be proved in the case of an offene under this section are as under:
(i) that the death of a human being attempted;
(ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and
(iii) that such act was done with the intention of causing death; or SC No.: 529/2016 State Vs. Mohd. Mobin @ Mohd. Mukarram Page No.: 16 of 24 that it was done with the intention of causing such bodily injury as:
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. The first part makes any act committed with the intention or knowledge that it would amount to murder if the act caused death punishable with imprisonment up to ten years. The second part makes such an act punishable with imprisonment for life if hurt is caused thereby. Thus even if the act does not cause any injury, it is punishable with imprisonment up to 10 years. If it does cause any injury and thereafter hurt, it is punishable with imprisonment for life".
29. To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act or the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still they may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result and injury, SC No.: 529/2016 State Vs. Mohd. Mobin @ Mohd. Mukarram Page No.: 17 of 24 was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be penultimate act. It is sufficient in law, if there is present an intent coupled with some over act in execution thereof. It must be noted that Section 307 IPC provides for imprisonment for life if the act causes 'hurt'. It does not require that the hurt should be grievous or of any particular degree. To constitute an offense, no injury need be caused to the victim. If in the course of the attempt bodily injury is caused the accused would be liable to enhanced punishment. To sustain conviction under Section 307 IPC the intention to kill should be clearly proved by circumstances. The offence of attempt to commit murder punishable under Sec. 307 IPC is constituted by the concurrence of mens rea followed by an actus reus. In the present matter, it is clear that accused fired and on account of which injured sustained injury on his right index finger. Said part of the body is not vital organ of human body.
30. Ex.PW2/A MLC for the injured shows that nature of injury has been opined as "Grievous". FSL report Ex.C5 is on record.
31. In the present case, it seems that accused fired upon the injured with a view to flee away from the spot and not with intention to cause death of said injured.
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32. It is also admitted position of the law that it must be borne in mind that criminal justice system must be alive to the expectation of the people. The principle that no innocent man should be punished is equally applicable that no guilty man should be allowed to go unpunished. Wrong acquittal of the accused will send a wrong signal to the society. Wrong acquittal has its chain reactions, the law breakers would continue to break the law with impunity people then would lose confidence in criminal justice system and would tend to settle their score on the street by exercising muscle power and if such situation is allowed to happen, woe would be the Rule of law. For holding this view, I am supported with the case reported as Nallabothu Venkaiah Vs. State of Andhra Pradesh, 2002 VI AD (SC)
521.
33. It is also duty of the court to all the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not presides to see that no innocent man is unpunished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. (Ref. State of UP V. Anil Singh SC No.: 529/2016 State Vs. Mohd. Mobin @ Mohd. Mukarram Page No.: 19 of 24 AIR 1988 SC 1998).
34. Section 325 IPC prescribed as - Whoever, except in the case provided for any Section 335, voluntarily causes grievous hurt, shall be punished xxxx and as such, with the above observations, in view of the over all circumstances, this court is of the view that the present case does not fall within the ambit of Sec. 307 IPC, rather it covers the provisions of Section 325 IPC. As such, accused Mohd. Mobin is hereby acquitted for the offence punishable under Sec. 307 IPC or 333 IPC but is held guilty for the offence punishable under Sec. 325 IPC and as such, is convicted accordingly.
35. Now court shall deal with the offences punishable under Sec. 27/25 Arms Act for which accused has also been charged with. To prove the said offences, PW-4 HC Sandeep; PW-5 Sanjay Sharma; PW-6 Sunil; PW-7 Shyam Verma; PW-8 Sohan Lal and PW-9 Dilsher @ Saleem and out of them, only PW-4 HC Sandeep and PW-7 Shyam Verma supported the prosecution case that pistol and live cartridges were recovered from the possession of the accused. There is no denial to the fact that prosecution has proved the sanction as required under Sec. 39 Arms Act as Ex.PW14/A - Sh. Surender Kumar, IPC. No suggestion was ever put to this witness that said sanction was accorded in routine manner SC No.: 529/2016 State Vs. Mohd. Mobin @ Mohd. Mukarram Page No.: 20 of 24 or without going through the record. Testimony of this witness remained unchallenged.
36. Vide the statement recorded under Sec. 294 CrPC on 30.08.2018, accused has admitted CFSL report given by Babita Gulia, SSO (Balliestic), CFSL, as Ex.C6. This report is clear to the aspect and is being reproduced as to facilitate the matter:
8. Result of examination:
On the basis of examination carried out in the Laboratory with scientific aids,followings are the result of examinations:-
(I) The countrymade pistol (Chambered for 7.65 mm cartridges) marked W/1) contained in Ex.No.1 is designed to fire 7.65 mm cartridges, is thereof, a "Firearm" as defined in Arms Act, 1959 and its firing mechanism is found in working order.
(ii) Four 7.65 mm cartridges (marked C/1 to C/4) contained in Ex. No. 2 7 the 7.654 mm fired cartridges case (marked C/5) containedin Ex. No. 3 are "Ammunition" as defined in Arms Act, 1959.
(iii) The 7.65 mm cartridge case (marked C/5) contained in Ex.No.3 had been fired from the countymade pistol (marked W/1) contained in Ex.No. 1 & not from any other firearm even of same make & bore/caliber because every firearm has got its own individual characteristic marks.
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(iv) Gun Shot Residue could be detected from the cotton swab of right hand contained in EX No. 5.
However, Gun Shot Residue could not be detected from contents of EX.No. 4 & 6.
37. From the above report and also from the testimony of the prosecution witnesses, it is clear the the pistol and cartridges recovered from the accused are arms and ammunition, as defined under Sec. 25 Arms Act.
38. Qua offence punishable under Sec. 25 Arms Act, as mentioned above, PW-4 HC Sandeep and PW-7 Shyam Verma are reliable and trustworthy material witnesses. Apart from that the other eye witnesses are not denied about use of firearm in the said incident.
39. It is undisputed fact of law that it is not number of witnesses rather quality is to be appreciated. Admittedly, PW-5 Sanjay Sharma; PW-6 Sunil; PW-8 Sohan Lal and PW-9 Dilsher @ Saleem failed to identify the accused. PW-4 HC Sandeep and PW-7 Shyam Verma in clear and in unequivocal terms stated that it was the accused who was found in possession of arms and ammunition and committed the said crime.
40. No major contradiction or improvement which go to the root of the case has not been pointed out. In case reported as State of SC No.: 529/2016 State Vs. Mohd. Mobin @ Mohd. Mukarram Page No.: 22 of 24 Rajasthan Vs. Smt. Kalki, 1981 SCC(2) 752, Honb'le Apex Court observed that:
"In the depositions of witnesses there are always some normal discrepancies however honest ad truthful they may be.
These discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
41. No ill-will, grudge or enmity has either been alleged or proved against either of these witnesses for false implication of the accused at the hands of prosecution witnesses.
42. With the above observations, this court is of the view that prosecution has fully proved its case against the accused for the offence punishable under Sec. 27/25 Arms Act as found in possession of pistol having mark "Made in USA No. 103" and one magzine with cartridges and as such, accused Mohd. Mobin S/o Mukkram is held guilty for the offence punishable under Sec. 27 Arms Act and 25 Arms Act and is convicted.
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43. Sum up of the above discussion is that this court is of the view that prosecution has miserably failed to prove its case against the present accused namely Mohd. Mobin @ Mukarram S/o Mohd Akhtar for the offences punishable under Sec. 392/34 IPC read with Sec. 397 IPC; 186/34 IPC; 353/34 IPC and 307 IPC/333 IPC and as such, said accused namely Mohd. Mobin S/o Mohd. Akhtar is acquitted for the offences punishable under Sec. 392/34 IPC read with Sec. 397 IPC; 186/34 IPC; 353/34 IPC and 307 IPC/333 IPC. However, prosecution has proved its case beyond all shadow of doubts against said accused namely Mohd. Mobin Kumar for the offence punishable under Sections 385/34 IPC; 325 IPC and 27 Arms Act & 25 Arms Act. Accordingly said accused is hereby held guilty for the offences punishable under Sections 385/34 IPC; 325 IPC and 27 Arms Act & 25 Arms Act and is convicted accordingly.
Announced in the open Court on 26th day of February, 2020 (Dr. Satinder Kumar Gautam) Additional Sessions Judge-03 (East):
Karkardooma Courts: Delhi.
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