Delhi District Court
State vs Faeem Kureshi And Others on 9 October, 2024
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH-EAST
KARKARDOOMA COURTS: DELHI
IN RE:
SC No. 66/2018
CNR No. DLNE01-000679-2018
FIR No. 618/2017
PS Seelampur
U/s 307/452/323/34 IPC, 1860
STATE VERSUS FAEEM KURESHI & ORS
Date of committal : 26.02.2018
Date of arguments : 21.09.2024
Date of judgment : 09.10.2024
Table of contents
S. No. Contents Page No.
1. Brief details of the case & memo of parties 2
2. Brief Case of the Prosecution 3
3. Prosecution Evidence 6
4. Plea of Accused Persons 37
5. Submissions made on behalf of the State 37
6. Submissions made on behalf of the Accused 40
Persons
7. Relevant Law & the Case Laws 47
8. Appreciation of Evidence 54
9. Conclusion & Findings 69
(ATUL AHLAWAT)
ASJ (FTC)/North-
East/KKD Courts/
Digitally
signed by
ATUL
ATUL AHLAWAT
Delhi/09.10.2024 AHLAWAT Date:
2024.10.09
14:07:56
+0530
CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 1/72
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH-EAST
KARKARDOOMA COURTS: DELHI
IN RE:
SC No. 66/2018
CNR No. DLNE01-000679-2018
FIR No. 618/2017
PS Seelampur
U/s 307/452/323/34 IPC, 1860
Brief details of the case and memo of parties
STATE VERSUS FAEEM KURESHI & ORS
A) Case FIR No. : 618/2017
B) Charges framed under section : 452/307/323/201 R/w
section 34 of IPC,
1860.
C) Name of the complainant : Aslam
S/o Sh. Babu
Khan
R/o H. No. A-
112, Buland Masjid,
Shastri Park, Delhi.
D) Name of the accused persons : (1) Faeem Kureshi
S/o Late Sh. Saddiq
Kureshi
R/o E-11/150, Buland
Masjid, Shastri Park, Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.10.09
14:08:03
+0530
CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 2/72
Delhi.
(2) Naeem Kureshi
S/o Late Sh. Saddiq
Kureshi
R/o E-11/150,
Buland Masjid,
Shastri Park, Delhi.
(3) Hanif Khan
S/o Late Sh. Kallu
Khan
R/o A-27/193,
Buland Masjid,
Shahstri Park, Delhi.
E) Plea of the accused persons : Not guilty
F) Final Order : Acquittal
G) Date of Order : 09.10.2024
JUDGMENT
(Pronounced on the 9th day of October, 2024) Brief Case of the Prosecution:
1. The criminal law machinery was set into motion on 08.10.2017, when DD no.67B was registered at PS Seelampur, upon the information received through B-51 operator that "A-112, Bulland Masjid Shastri Park bhai ko goli maar di Faeem or Tara injured hai." The said call was received by the operator of 100 number at PCR-HQ from mobile no.
8860290222.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.10.09
14:08:11
+0530
CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 3/72
2. After registration of the DD no. 67B, Ex. PW10/A, SI Devender Prasad alongwith HC Sanjeev reached the spot i.e. A-112, Bulland Masjid Shastri Park, and found that there were blood spots on the staircase and on the 1st floor, blood was found scattered. It came to the knowledge of IO SI Devender Prasad that the injured was taken to LNJP Hospital by his brothers.
3. The IO SI Devender Prasad informed the SHO concerned and the Crime Team was called to the scene. Thereafter, IO SI Devender Prasad alongwith ASI Nathu Ram left for LNJP Hospital and HC Sanjeev was left on the spot, to guard the same.
4. Upon reaching the LNJP Hospital, the IO procured the MLC no. EEJ-010202, Ex. PW9/A of injured Mohd. Aslam S/o Babu Khan R/o A- 112, Bulland Masjid, Shastri Park, aged about 32 years. The injured was declared "fit for statement" by the concerned doctor and thereafter, his statement Ex. PW1/A was recorded by the IO at the hospital itself.
5. In his statement Ex. PW1/A, the complainant Aslam had stated that on 08.10.2017 at about 04.00 PM, he was present at the shop of his elder brother Iqbal, who was running a Kabadi Shop near DDA Park, next to Kabristan, Shastri Park, Delhi. At that time, accused Faeem Kureshi came to the complainant and demanded a sum of Rs. 500/- from him on the pretext that he had to purchase liquor. The complainant flatly refused and upon the said refusal, accused Faeem Kureshi got infuriated Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:08:22 CNR No. DLNE01-000679-2018 +0530 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 4/72 and left from there after extending threats that he would see the complainant later. The complainant ignored the threats extended by accused Faeem Kureshi and thereafter, he returned back to his house.
6. It was further stated by the complainant in his statement Ex. PW1/A that at around 10.00 PM, while he was outside his house and was busy on whatsapp over his phone, accused Faeem Kureshi, his younger brother accused Naeem Kureshi and accused Kale @ Hanif Khan came in the gali where the house of the complainant was situated. The accused persons started hurling abuses upon the complainant and also started scuffling with him. The complainant got scared and he immediately rushed into his house and climbed the stairs. At that time, accused Faeem, Kale and Naeem also reached the 1 st floor of the house of the complainant and started giving beatings to him. The complainant raised an alarm, however, in the meanwhile, accused Faeem took out some weapon and fired a gun upon him, and from the said gunshot the complainant received a wound on his left thigh.
7. It was further stated by the complainant in his statement Ex. PW1/A that after giving the gunshot wound to the complainant, the accused persons ran away and after hearing the commotion which had ensued, the brothers of the complainant, namely Ikram and Shakeel reached there and they immediately took the complainant to the hospital.
8. Upon the statement of the complainant Ex. PW1/A, the IO prepared the rukka Ex. PW6/H and the Duty Officer ASI Umesh Kumar Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:08:29 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 5/72 made an endorsement Ex. PW7/B on the said rukka after registration of the present case FIR Ex. PW7/A u/s 307/34 IPC, 1860 and u/s 27 of Arms Act, 1959, on 09.10.2017.
9. After the registration of the present case FIR, the investigation was conducted by the IO and after completion of the same the chargesheet was filed before the court of Ld. MM. After compliance of section 207/208 Cr.PC, the case was committed by the Court of Ld. MM before this court on 26.02.2018. Thereafter, the charges were framed by my Ld. Predecessor on 19.01.2019 U/s 452/307/323/201 R/w Section 34 of Indian Penal Code, 1860 against the accused persons. The accused persons pleaded not guilty and they had claimed trial.
Prosecution Evidence:
10. To prove its case, the prosecution has examined Eleven (11) witnesses:
(10.1.1) PW-1 is Aslam, who is the complainant of the present case. He had deposed that he had been running a business of jeans-pants at the ground floor of his house. He used to do the work of cutting the clothes for jeans and thereafter he used to supply the un-stitched jeans-pants in the Gandhi Nagar Market. On 08.10.2017, at about 4.00 PM, he was present at the junk/scrap (Kabadi) shop of his brother situated near DDA Park, Kabristan, Shastri Park, Delhi. He further deposed that at that time, accused Faeem Kureshi came there and asked him for Rs. 500/- for the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:08:36 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 6/72 +0530 purpose of purchasing liquor, however, he refused to give the same. On this, accused Faeem got annoyed and he had abused him and threatened him that he would see him later on and thereafter, he left from there.
(10.1.2) PW-1 Aslam had further deposed that on the same day, at about 10.00 PM, when he was present outside his house on the chabutra and was using whatsapp on his mobile phone, accused Faeem Kureshi, his brother accused Naeem Kureshi and accused Kale @ Hanif Khan reached there. On reaching there, accused Faeem started abusing him and when he proceeded inside his house, all the three accused persons entered into his house and when he reached at the first floor of his house, all the three accused persons started scuffling with him and also gave beatings to him. He further deposed that accused Faeem then took out a country-made pistol and fired a shot upon him and the bullet had hit his left thigh. After inflicting the said injury to him, the accused persons ran away from there.
(10.1.3) PW-1 Aslam had further deposed that on hearing the the commotion, his younger brother Shakil had reached there while the accused persons were running from there. His elder brother Ikram also reached thereafter. His elder brother Ikram then made a call at 100 number and thereafter, both of his brothers Shakil and Ikram took him to LNJP hospital in a TSR. In the hospital, police officer met him and his statement Ex. PW1/A was recorded. Thereafter, he was discharged from the hospital after two days. He had correctly identified all the accused Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:08:45 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 7/72 person during his examination in chief. He had also correctly identified his clothes i.e. his blood stained pant of black colour Ex. P-1.
(10.1.4) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had deposed that he had been running the work/business of jeans pants for the last five years. There were no fix working hours of his, however, the shop was usually opened at around 9.00 AM, and the closing time used to depend on the work orders received on a particular day. He further deposed that about 2-3 cases/FIR were registered against him. He volunteered that he had been acquitted in those cases and the cases were between him and his friend Chand, who was also his business partner. He denied the suggestion that about five cases were registered against him. He further deposed that he was present in the park and not at the shop. Many persons may be present in the said park at that time and he had not noticed as to whether his Mohalla people were present in the said park or not.
(10.1.5) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had further deposed that when accused Faeem Kureshi extended threat to him, no one else was present there. He deposed that he had stated to the police in his statement Ex. PW1/A that when he was in the park, at that time when accused had asked Rs. 500/- from him. However, he was confronted with his statement Ex. PW1/A, where it was not so recorded and it was mentioned that he was present at the shop of scrap situated near DDA Park, Shastri Park.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.10.09
14:08:53
CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 8/72 +0530
(10.1.6) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had further deposed that he had stated to the police in his statement Ex. PW1/A, that when he refused to give Rs. 500/- to accused Faeem, accused Faeem got annoyed and hurled abuses at him and also threatened him. He was confronted with his statement, where it was not so recorded. However, it is mentioned there that "on this Faeem told to him that he would see him later" . He further deposed that he had not stated before the IO that thereafter accused Faeem left from there.
(10.1.7) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had further deposed that the kabari shop was being run by his elder brother Iqbal and at the time of incident, one employee (an old aged uncle), to whom he used to address as "chacha" was present at the shop. He denied the suggestion that accused Faeem never met him on the day of incident nor he demanded any cash from him.
(10.1.8) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had further deposed that accused Faeem was indulged in the activity of pick-pocketing and other criminal activities. He denied the suggestion that accused Faeem was running a parking at the Shastri Park, at the time of the incident. He further deposed that he knew one person by the name of Liyakat. He denied the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:09:01 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 9/72 suggestion that he used to demand Rs. 4000/- per month as ' rangdari' from the said Liyakat. He denied the suggestion that Liyakat had made a complaint against him regarding demanding rangdari from him. He denied the suggestion that he used to collect the money as rangdari from other persons (gamblers). He denied the suggestion that he had himself inflicted injuries on his person, so as to falsely implicate accused Faeem as he had not given the rangdari amount.
(10.1.9) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had further deposed that at the time of incident in question, no one was present at the first floor of his house. He further deposed that they had reached within 2-3 minutes of the incident. He deposed that he had stated to the police in his statement Ex. PW1/A that on the day of incident, he was present outside of his house on the chabutra. He was confronted with the statement Ex. PW1/A where the word "Chabutra" was not mentioned.
(10.1.10) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had further deposed that the staircase of the house was situated near the chabutra. He further deposed that the shop of a barber, a Clinic of a doctor, a shop of CD being run by one Akhte and a shop of an electrician, which was being run by one Sahab were not situated in front of his house in his gali. He further volunteered that the said shops and clinic were situated in another gali. He denied the suggestion that they were situated in the same gali where he was sitting Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:09:09 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 10/72 on the chabutra in the front of his house.
(10.1.11) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had further deposed that he had stated in his statement Ex. PW1/A to the police that accused Faeem had started abusing him as soon as accused Faeem reached in front of his house. He had also stated to the police that the accused persons had started scuffling with him at the first floor of his house and the incident had occurred at the first floor, near the staircase, in the gallery situated in front of his room.
(10.1.12) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had further deposed that his mother had been residing in the said room at the first floor. He further deposed that the incident in question had taken place just about 1-2 steps ahead of the last stair on the first floor. He had stated to the police in his statement Ex. PW1/A that accused Faeem had taken out a country-made pistol. He was confronted with the statement Ex. PW1/A, where it was not so recorded. However, it was mentioned as 'kisi hathiyar se mere uppar goli chala di'.
(10.1.13) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had further deposed that he did not remember as to at how many places his trouser was pierced by the alleged bullet shot. He further deposed that his pant was pierced by the bullet at the left thigh portion. He also deposed that he was wearing a Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:09:18 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 11/72 +0530 black coloured pant at the time of the incident. He categorically deposed that it was not a jeans pant.
(10.1.14) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had further deposed that his brother Iqbal had gone to the hospital, at the time when the incident in question had occurred, since their maternal niece had expired. He further deposed that he was not aware as to how many family members of his had gone to the hospital on that day. He further deposed that he had seen his brother Iqbal in the hospital, after he was admitted there.
(10.1.15) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had further deposed that his elder brother Ikram had made a call to the police at 100 number. He categorically deposed that his elder brother Ikram had reached the spot 3 minutes after his brother Shakil reached there. He further deposed that he was aware that Jag Pravesh Chandra Hospital was situated in Shastri Park itself, however, he denied the suggestion that he was taken to the LNJP Hospital since the doctors in the said hospital were known to his brother Iqbal.
(10.1.16) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had further deposed that he had not informed the police regarding the threat given by the accused Faeem to him. He categorically deposed that he had not seen any weapon in the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 12/72 14:09:26 +0530 hands of any of the accused persons and went on to voluntarily state that since it was dark in the gali at that time, he could not see the same.
(10.1.17) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had further deposed that he had not called any member of his family, when the accused persons had abused him. He went on to further depose that no family member of his was present at his house at that time, since they had all gone to a hospital in Shahdra, since his sister had delivered a still born female child.
(10.1.18) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had further deposed that the incident lasted for about 1-2 minutes at the chabutra outside his house. A scuffle (hathapai) had taken place at the first floor of his house and it went on for about 4-5 minutes. He further deposed that on the first floor, the light was switched on. He also deposed that he came to know the name of weapon by which accused Faeem had fired a shot upon him was 'a country-made pistol', while he was in the hospital and it was the doctor who had informed him about the same. He further deposed that he could not tell as to whether the accused Faeem was carrying a country-made pistol or a revolver. He volunteered that the accused Faeem had fired a shot upon him with a hathiyar. He further categorically deposed that he did not notice as to wherefrom the accused Faeem had pulled out the weapon of the offence and all of a sudden, they were grappling with each other. He also depose that accused Faeem was pointing out the firearm Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:09:49 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 13/72 towards him and at that time, he caught hold of his forearm, near the wrist of the hand in which accused Faeem was carrying the weapon and with his other hand, he had caught hold of accused Faeem from his neck. He categorically deposed that he had not stated the said facts to the police at the time of recording of his statement Ex. PW1/A. (10.1.19) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had further deposed that the other co- accused persons were hitting him from behind at that time.
(10.1.20) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had further deposed that he did not remember as to after how much time, the call on 100 number was made, since he was injured at that time. He could not state as to how much time it took them to reach the hospital, however, it was around 30 minutes.
(10.1.21) PW-1 Aslam during his cross examination conducted by Ld. Counsel for the accused persons had denied the suggestion that his brother namely Nawab Bhai was a BJP leader and he further denied the suggestion that the doctor who had prepared his MLC was a known of his brother Nawab Bhai or that it was got manipulated for that reason. He further depose that he was not aware as to whether his brother namely Iqbal was running the property business in the name of "New Sameer Property". He categorically denied the suggestion that Iqbal had Digitally sold of a plot of 60 sq. yards to the wife of accused Hanif Khan @ Kale, signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:10:45 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 14/72 namely Nuzhat Praveen in the year of 2017 or that his brother had not delivered the possession of the plot and also did not execute any sale documents in that respect and he also did not return any money received from her. He categorically denied the suggestion that he falsely implicated accused Hanif @ Kale in the present case at the instance of his brother Iqbal. He denied the suggestion that he used to illegally extort money of Rs.4,000/- per month from accused Faeem who was running on a parking or that on his refusal, he had falsely implicated accused Faeem in the present case by self inflicting injuries on his person. He denied the suggestion that he used to illegally extort money from one Liyakat.
(10.2.1) PW-2 is Mohd. Shakil, who is the younger brother of deceased Aslam and he is the eye witness of the present case. He had deposed that on 08.10.2017, at about 10.00 PM, when he was at his house, he heard a noise and on hearing the same, he saw that accused persons Faeem, Naeem and Kale @ Hanif Khan were scuffling with his brother Aslam. He further deposed that at that time, he was present on the second floor of his house and the accused persons were scuffling with his brother on the first floor of their house. He further deposed that when he was coming down from the second floor, in the meantime, he saw that accused Faeem fired a shot upon his brother and the bullet hit on the left leg of his brother Aslam. Thereafter, accused persons ran away from there after extending threats. He then called his elder brother namely Ikram, who was sleeping at that time and thereafter, he along with his brother Ikram took his brother Aslam to LNJP Hospital in an auto Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:10:54 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 15/72 +0530 rickshaw.
(10.2.2) PW-2 Mohd. Shakil had further deposed that from the hospital, he accompanied the police officials to the spot and he pointed out the place of occurrence and on this, the police official had prepared the site plan Ex. PW6/Q, at his instance. Thereafter, his statement was recorded by the police official. He further deposed that on 04.11.2017, he had gone to the PS and had identified accused Kale @ Hanif Khan there. He had also correctly identified all the accused persons during his examination in chief recorded before the Court.
(10.2.3) PW-2 Mohd. Shakil during his cross examination conducted by Ld. Counsel for the accused persons had deposed his statement was recorded by the police officials twice. His first statement was recorded at the spot at about 3.00 AM on the intervening night of 08/09.10.2017 and his second statement was recorded on 04.11.2017 in the PS itself. He further deposed that he had stated to the police officials in his statement that he had seen accused persons scuffling with his brother where word 'scuffling' is not mentioned. He was confronted with his statement Mark PW2/DA, wherein the word 'scuffling' was not mentioned. He further deposed that he had stated to the police in his statement Mark PW2/DA that he had seen accused Faeem firing a shot, which had struck his brother Aslam's left leg. He was duly confronted with his earlier statement, since the word 'seen' was not mentioned wherein and the words 'dekhte dekhte' was recorded. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:11:00 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 16/72 (10.2.4) PW-2 Mohd. Shakil during his cross examination conducted by Ld. Counsel for the accused persons had deposed that he had been residing in his house on the first floor along with his wife and his mother. He further deposed that they were five brothers including himself, the injured Aslam and Mohd. Ikram, Mohd. Iqbal, and Mohd. Shahid. He further deposed that they were all residing in the same building.
(10.2.5) PW-2 Mohd. Shakil during his cross examination conducted by Ld. Counsel for the accused persons had deposed that at the time of the incident, he along-with his elder brother Ikram and children were present in the house, besides his injured brother Mohd. Aslam. He further deposed that there were two rooms on the first floor of his house and the children of injured Mohd. Aslam were present on the second floor of their house at the time of incident. His other brothers and family members had gone to a hospital in Shahdara, Delhi since his sister had delivered a baby. However, he did not remember the name of the said hospital where his sister had delivered a baby. He categorically denied the suggestion that all of his family members were present at the house or that his sister was not admitted in the hospital at the time of incident.
(10.2.6) PW-2 Mohd. Shakil during his cross examination conducted by Ld. Counsel for the accused persons had deposed that he was proceeding towards his brother and the accused persons, in order to rescue his Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:11:08 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 17/72 brother from accused persons, however before he could reach there, the accused persons had fired a shot upon his brother. He had also heard the noise of 'Gaali Galauch'. He further deposed that while he was on stairs, he had seen that accused Faeem was carrying a katta in his hand and he fired a shot while facing his brother Aslam and the said fire arm shot had hit his brother Aslam on the front portion of the left thigh. He denied the suggestion that accused Faeem had not fired any shot on his brother Aslam.
(10.2.7) PW-2 Mohd. Shakil during his cross examination conducted by Ld. Counsel for the accused persons had deposed that at that time of the incident, he was having a mobile phone. His elder brother Ikram had made a call to the police on 100 number, since his brother Ikram had reached the spot within 5-7 minutes of the incident after he was called by the children present at our house. He further deposed that they took their injured brother up to the road and from there they hired an auto rickshaw and reached the hospital at about 11.15-11.30 PM.
(10.2.8) PW-2 Mohd. Shakil during his cross examination conducted by Ld. Counsel for the accused persons had deposed that at the time when the bullet was fired, his brother Aslam was standing in the gallery in front of the rooms situated on the first floor. The stairs from the ground floor straightway lead to both the upper floors i.e the first floor and the second floor. He categorically deposed that he had not noticed any blood lying there on the stairs or on the side walls of Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:11:19 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 18/72 the stairs, leading from the first floor to the second floor. He He further deposed that he had not taken care to notice that if any blood was lying on the stairs leading to the first floor or not. He had also not noticed if any bloodstains were there on the side walls of the stairs coming towards the ground floor or not.
(10.2.9) PW-2 Mohd. Shakil during his cross examination conducted by Ld. Counsel for the accused persons had deposed that he was not aware whether his brother Aslam was a B.C. of the area or not and he could not say whether his brother had been remanded to judicial custody in connection with any criminal case or not. He further deposed that he had not seen his brother surfing on his mobile phone in the street in front of their house at about 10.00 PM, on the night of the incident. He further categorically deposed that he had not seen the accused persons fighting and abusing with his injured brother Aslam in the street. He further deposed that he had not noticed any foot prints on the stairs showing any sort of impression of the foot of any person.
(10.2.10) PW-2 Mohd. Shakil during his cross examination conducted by Ld. Counsel for the accused persons had deposed that he did not remember as to what outfits were being worn by the accused persons on the day of incident. He categorically deposed that accused Faeem had fired the shot from a very close range of approximately 2 feet and the other accused persons were just behind the accused Faeem. He denied the suggestion that the first floor of their house was occupied by his Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:11:26 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 19/72 +0530 brothers namely Shahid and Aslam.
(10.2.11) PW-2 Mohd. Shakil during his cross examination conducted by Ld. Counsel for the accused persons had deposed that the police officials had prepared the site plan at his instance and the IO also lifted the stone from the floor at the spot, after cutting the same. However, he did not see if anything was lying on the spot or not. He further deposed that one doctor Harish had his clinic in front of his house, one barber namely Jafar and one electrician Sahib were also having their shops in the gali where their house was situated. He further deposed that there one CD shop which was being run by Akhte. He also categorically admitted the suggestion that he took about 30-40-50 minutes to reach the hospital from the spot and injured brother was wearing a jeans pant at the time of the incident and he had not noticed the hole of the bullet on the said jeans pant. He further admitted the suggestion that accused Faeem was running a parking in Shastri Park, however he denied all the other suggestions being put to him.
(10.3.1) PW-3 is HC Zile Singh and he had deposed that he was posted as Photographer in Mobile Crime Team, North East District. On 08.10.2017, at about 10.45 PM, SI Rajender Singh, In-charge of Crime Team, received an information to reach the spot i.e H. No. A-112, First Floor, Buland Masjid, Shastri Park, Delhi. Thereafter, he along with ASI Raj Kumar (Finger Print Proficient) accompanied SI Rajender Singh to the spot and on reaching there, they found that at the first floor of the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:11:32 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 20/72 +0530 said house, on the stairs, there were blood stains and in the verandah, four pieces of lead and four buttons were lying. Blood was also found lying in the verandah. Thereafter, SI Rajender Singh inspected the spot and prepared the SOC report and he had taken 16 photographs Ex. PW3/1 to Ex. PW3/16 at the instance of the IO SI Devender, from his digital camera. He also produced the affidavit u/s 65B of the Indian Evidence Act 1872 Ex.PW3/A, to that effect.
(10.3.2) PW-3 HC Zile Singh during his cross examination conducted by Ld. Counsel for the accused persons had deposed that he did not notice as to whether the family members of the injured were present at the spot or not. He further deposed that four pieces of lead were lying in the verandah and buttons of shirt were also found lying there. He further deposed that blood stains were lying on the stairs, however, he could not tell as to on how many steps of the said stairs, the blood was lying. He further deposed that he did not know as to if 2-3 persons had used the staircase steps, then the foot prints of those persons would have come on the blood stained steps. He further deposed that he did not notice as to whether the chance prints were lifted from the spot by the finger print proficient expert ASI Raj Kumar or not. He further categorically deposed that the exhibits were lifted from the spot by the IO, however, the said fact was not recorded in his statement u/s 161 Cr.PC.
(10.3.3) PW-3 HC Zile Singh during his cross examination conducted by Ld. Counsel for the accused persons had deposed that the buttons were Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:11:39 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 21/72 +0530 lying scattered in the verandah, however, he could not specify the distance of those buttons from each-other. He further deposed that he could not decipher the size of the bullet. He could not state as to which particular kind of bullet, the parts or the bullet cartridge related to which weapon, which was allegedly recovered from the spot.
(10.4.1) PW4 is SI Rajender Singh and he has deposed that on 08.10.2017, he was posted as In-charge Mobile Crime Team, North East District, Delhi. On that day at about 10.45 PM, he received the information from the Control Room to reach at the spot i.e H. No. A-112, First Floor, Buland Masjid, Shastri Park, Delhi. Thereafter, he along with HC Zile Singh( photographer) and ASI Raj Kumar(Finger Print Expert) went to the spot. There IO SI Devender was already present there. At the first floor of the said house, blood was lying in verandah.
Four buttons of the shirt and four pieces of lead were also lying there. Blood stains were also found lying on the staircase leading to the first floor.
(10.4.2) PW4 SI Rajender Singh further deposed that he inspected the spot and HC Zile Singh took the photographs of the Crime Scene. ASI Raj Kumar tried to lift the chance prints however, the same could not be lifted from there. Thereafter, he prepared the SOC report Ex. PW4/A. (10.4.3) PW4 SI Rajender Singh during his cross examination conducted by Ld. Counsel for the accused persons had deposed that two civilians Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:11:50 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 22/72 +0530 were present on the spot, however, he was not sure whether they were family members of the injured or not. He further categorically deposed that if a number of persons frequent a given place, there are chances of their foot prints being imprinted on the surface of that given area. He further went on to depose that he did not notice the foot prints at the spot and nor did they try to lift the same. He volunteered that number of persons have already been there, hence there was no utility of lifting any foot prints in the given case. He had not stated to the IO about the description of articles including buttons, blood etc, scattered there at the spot.
(10.5.1) PW-5 is ASI Nathu Ram and he had deposed that on 08.10.2017, he was posted at PS Seelampur, on that day at about 10.30 PM, while he was on patrolling duty he reached at H. No. A 112, Buland Masjid, Shastri Park, Delhi, where IO SI Devender Prasad met him.
Thereafter, he accompanied IO SI Devender Prasad to the LNJP Hospital. Thereafter, IO SI Devender Prasad collected the MLC of injured Aslam, on which the concerned doctor had mentioned the injured to be fit for statement. Thereafter, SI Devender Prasad had recorded the statement of the injured Aslam. On the basis of his statement, SI Devender Prasad prepared the rukka and handed over the same to him. He further deposed that he took the rukka to the police station and after getting the case registered, he went to the spot along with computerized copy of the FIR and the rukka in original and handed over the same to SI Devender Prasad. His statement was recorded by the IO.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.10.09
14:11:56
+0530
CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 23/72 (10.5.2) PW5 ASI Nathu Ram during his cross examination conducted by Ld. Counsel for the accused persons had deposed that he remained present at the spot i.e. H. No. A-112, for about 45 minutes and during that time, he did not go inside the said house and remained present outside in the gali. He further deposed that the statement of injured was recorded in the emergency room in his presence and apart from him and the IO, no other person was present at that time.
(10.5.3) PW5 ASI Nathu Ram during his cross examination conducted by Ld. Counsel for the accused persons was shown the statement of the injured Ex. PW1/A and other documents annexed with the chargesheet and he was asked as to who wrote the said statement Ex. PW1/A and he answered by saying that the IO SI Devender Prasad had recorded the same.
(10.5.4) PW5 ASI Nathu Ram during his cross examination conducted by Ld. Counsel for the accused persons was shown other documents annexed with the chargesheet and were asked to identify the handwriting of the person who had prepared the said documents and he answered by saying that he cannot identify this handwriting.
(10.5.5) PW5 ASI Nathu Ram during his cross examination conducted by Ld. Counsel for the accused persons had stated that his statement was Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:12:05 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 24/72 recorded by the IO SI Devender Prasad in his own handwriting. He was shown his statement u/s 161 Cr.PC Ex. PW5/DA and after seeing the same he was asked to identify the handwriting of the person who had recorded the said statement and after seeing the same, PW5 had deposed that he was not in a position to identify the said handwriting, however, he further deposed that it is true that his statement was recorded by the IO SI Denvender Prasad.
(10.5.6) PW5 ASI Nathu Ram during his cross examination conducted by Ld. Counsel for the accused persons was shown the statement of the complainant Ex. PW1/A and was asked whether the handwriting of the person who had recorded the same was the same handwriting in which the other documents were prepared, to which he had replied by saying that he could not tell whether the said documents were prepared by the same person or not.
(10.6.1) PW-6 is HC Sanjeev and he had deposed that On 08.10.2017, he was posted at PS Seelampur and on that day, he was on patrolling duty in the area. While patrolling, he reached at A 112, Buland Masjid, Shastri Park, and IO SI Devender Prasad met him there and ASI Nathu Ram also reached the spot. Thereafter, he was left behind at the spot and IO SI Devender Prasad and ASI Nathu Ram went to the LNJP Hospital. Subsequently, IO SI Devender Prasad and one Shakeel came back to the spot and at his instance, IO had prepared the site plan. He further deposed that in the meantime, ASI Nathu Ram came back to the spot and Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:12:12 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 25/72 he handed over a computerized copy of the FIR and the original rukka to IO SI Devender Prasad.
(10.6.2) PW-6 HC Sanjeev further deposed that the Crime Team was also called at the spot and Crime Team inspected the spot and took photographs. Blood was found lying at the spot and the IO lifted the blood sample and earth control, and the same were sealed in two separate parcels. He further deposed that from the spot, IO had also lifted four bullet pallets of brass and two pallets of aluminum. The said pallets were put in a plastic container and it was converted into a parcel. He further deposed that the IO had also collected four buttons of chocolate colour from the spot and the same were also put in a plastic container and it was converted into a parcel and sealed with the seal of "DPS". All the said parcels were taken into possession by the IO vide seizure memo Ex. PW6/A. (10.6.3) PW-6 HC Sanjeev further deposed that thereafter, they along with witness Shakeel went to the house of accused Faeem and the accused Faeem was found present there and thereafter he was arrested at the instance of witness Shakeel, vide arrest memo Ex. PW6/B, and his personal search was conducted vide memo Ex. PW6/C. Accused Faeem was interrogated by the IO and during the course of the said interrogation, he made a disclosure statement Ex. PW6/D. Thereafter, the medical examination of accused Faeem was got conducted and he was produced before the concerned Court and was remanded to JC. They Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:12:19 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 26/72 +0530 made searches for other co-accused persons, however, they could not be traced.
(10.6.4) PW-6 HC Sanjeev further deposed that on 03.11.2017, accused Haneef Khan @ Kale was arrested from Kabristaan near Buland Masjid, Shastri Park, Delhi vide his arrest memo Ex. PW6/E, and his personal search was also conducted vide memo Ex. PW6/F. Accused Haneef was interrogated and he made a disclosure which was recorded vide statement Ex. PW6/G. Thereafter, the medical examination of accused Hanif was got conducted and he was produced before the concerned Court and was remanded to JC.
(10.6.5) PW-6 HC Sanjeev further deposed that on 07.11.2017, he again joined the investigation of the present case and on that day, accused Naeem Qureshi @ Naeem had surrendered himself before the concerned Court and he was formally arrested by the IO after seeking permission from the Court, vide his arrest memo Ex. PW6/H and his personal search was also conducted vide memo Ex. PW6/J. Accused was interrogated and during that course he made disclosure statement Ex. PW6/K. Thereafter, accused Naeem Qureshi was produced before the concerned Court and he was remanded to PC for two days and during the police remand, accused was interrogated and he made his supplementary disclosure statement Ex. PW6/L, and he had disclosed that he had thrown the country made pistol in Yamuna river.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.10.09
14:12:26
+0530
CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 27/72 (10.6.6) PW-6 HC Sanjeev correctly identified his signatures on the seizure memo PW6/M, vide which the IO had taken into his possession the 3 sealed exhibits and the seal of the hospital. During his testimony the pointing out memo Ex. PW6/N, vide which the accused Faeem had pointed out the place of incident was also brought on record. The disclosure statement Ex. PW6/O dated 10.10.2017 of accused Faeem was also brought on record. He had further deposed that since IO SI Devender Prasad had expired and that he was acquainted with the handwriting and signatures of IO SI Devennder Prasad, therefore, the rukka Ex. PW6/P, site plan Ex. PW6/Q were also brought on record through his testimony. He had also identified the signatures of IO SI Devender Prasad on the other documents prepared by the IO during the investigation of the present case and the said documents were brought on record as Ex.PW6/M, Ex.PW6/A, Ex. W6/N, Ex. PW6/D, Ex PW6/O, Ex. PW6/G,Ex. PW6/L, Ex.PW6/K, Ex. PW6/B, Ex. PW6/E, Ex.PW6/H, Ex.PW6/C, Ex.PW6/F and Ex. PW6/J. (10.6.7) PW-6 HC Sanjeev correctly identified the case property i.e. the 4 buttons of chocolate colour Ex. P2 (colly) and 4 pieces of pellets, two of which were appearing to be made of brass and two were appearing to be made of aluminum and same were exhibited as Ex. P3(colly). He also correctly identify the accused persons at the time of his examination in chief on 13.03.2020.
(10.6.8) PW-6 HC Sanjeev during his cross examination conducted by Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:12:34 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 28/72 Ld. Counsel for the accused persons had deposed that he reached the spot at 10.00 PM and IO SI Devender Prasad also reached there simultaneously. He further deposed that the place of incident was on the first floor of the building situated at A-112, Buland Masjid, Shastri Park, Delhi. He further deposed that IO SI Devender, ASI Nathu Ram and he reached on the first floor said house within 5-7 minutes of them reaching there and categorically deposed that two ladies had met them on the first floor and in his presence, the IO made no inquires from the said 2 ladies.
(10.6.9) PW-6 HC Sanjeev during his cross examination conducted by Ld. Counsel for the accused persons had deposed that ASI Nathu Ram and him were asked to proceed to the spot as per the information received by them from duty officer at 9:30 PM on 08.10.2017, while they were both on patrolling duty. The spot was around 600-700 meters from the place where they were patrolling on foot, at the time of receiving the said information. He further deposed that the IO had not made any inquires from the shopkeepers around the spot on that day or any time thereafter, in his presence. He further categorically deposed that JPC Hospital was situated at a distance of around 1 km from the spot and the LNJP Hospital was situated farther away.
(10.6.10) PW-6 HC Sanjeev during his cross examination conducted by Ld. Counsel for the accused persons had deposed that the Crime team visited the spot at around 10:30-10:40 PM and left from there at around 11:15 PM. He categorically deposed that the crime team lifted the earth Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:12:40 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 29/72 control and pellets, as well as 4 chocolate coloured buttons from the spot. The articles were sealed by the crime team only and he did not remember if the crime team took the sealed parcels with them or left the same with the IO. He further deposed that the articles were sealed with the seal of IO SI Devender, who was carrying the seal with him on that day. Furthermore, he did not remember as to whom the said seal was handed over by the crime team after sealing the samples lifted from the spot.
(10.6.11) PW-6 HC Sanjeev during his cross examination conducted by Ld. Counsel for the accused persons had deposed that the IO SI Devender Prasad and ASI Nathu Ram had seen the articles lying on the spot and there were 4 pellets and the same were lying inside one room situated on the first floor. He further deposed that he did not know if witness Shakil had signed on the site plan prepared by the IO or not.
(10.6.12) PW-6 HC Sanjeev during his cross examination conducted by Ld. Counsel for the accused persons had categorically admitted that the blood sample and other articles were seized by the Crime Team and not by the IO from the spot. He did not remember at what time did the Crime Team handed over all the seized articles to the IO.
(10.6.13) PW-6 HC Sanjeev during his cross examination conducted by Ld. Counsel for the accused persons was shown the statement of injured Ex. PW1/A and the rukka and after seeing the same, he could not Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 CNR No. DLNE01-000679-2018 14:12:46 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 30/72 +0530 identify the handwriting of the IO, who had allegedly prepared the same in his presence. Thereafter, he had again said that the said statement and rukka was prepared in LNJP Hospital. PW-6 was further shown the disclosure statement of accused Hanif Khan @ Kaale Ex. PW6/G and after seeing the same, he could not identify the handwriting of the person who had recorded the same. He further deposed during his cross examination conducted on 16.01.2024 that he had not visited LNJP Hospital during the investigation. He was shown the seizure memo Ex. PW6/M, vide which the IO SI Devender Prasad had seized the exhibits, which were collected by the concerned doctor at the time of medical examination of the injured. After seeing the said document, PW-6 had categorically deposed that the same was prepared by IO SI Devender Prasad in his own handwriting.
(10.7.1) PW-7 is Retired ASI Umesh Kumar and he had deposed that on 09.10.2017, he was posted at PS Seelam Pur as Duty Officer and his duty hours were from 12.00 midnight to 8.00 AM. On that day, ASI Nathu Ram came to him and handed over the rukka for registration of the case and he got the case FIR Ex. PW7/A registered. He also made an endorsement Ex. PW7/B on the rukka. After the registration of the FIR, he handed over the copy of the FIR and the original rukka to ASI Nathu Ram, so as to be given to IO SI Devender Parsad.
(10.8.1) PW8 is SI K. P. Singh and he is the Inquiry Officer of a 100 number call recorded at PS Seelampur regarding a quarrel and snatching Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:12:52 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 31/72 of money. He had deposed that on 09.10.2017, he was posted at PS Seelampur and on that day upon receipt of a call regarding a quarrel and snatching of money, he went to DDA Ground near the Kabristan at house situated at E-11/150, Buland Masjid, Shastri Park, Delhi and there he came to know that the injured had been shifted to JPC hospital. Thereafter, he went to the JPC hospital and collected the MLCs of accused Nafis and accused Faeem (accused in the present case). The doctor had also handed over a sealed pullanda of the hand wash and clothes of both the injured persons alongwith sample seals to him. He further deposed that he came to know that accused Nafis had already left the hospital and injured Faeem (accused in the present case) was found admitted there in the hospital. He made inquiries from accused Faeem and during the said inquiry, accused Faeem had disclosed that he had caused gun shot injuries to the complainant of the present case namely Aslam and he had made a call on 100 number regarding a quarrel and snatching of Rs.30,000/- in order to save himself from the present case and he also disclosed that he had inflicted injuries upon himself. He further deposed that thereafter, he went to PS and handed over the pullandas and MLCs to the IO of the present case and the same were taken into possession vide seizure memo Ex.PW8/A. Thereafter, his statement was recorded by the IO.
(10.8.2) PW8 SI K. P. Singh during his cross examination conducted by Ld. Counsel for the accused persons had deposed that the call was received at around 12 AM in the PS. The copy of the DD entry was not provided to him. He went on to further depose that the said call was Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:12:58 CNR No. DLNE01-000679-2018 +0530 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 32/72 received by him telephonically. He categorically deposed that he had not made any departure entry at the PS, prior to leaving for the spot. He further deposed that he reached the hospital at about 12.30 AM and remained there for about one hour.
(10.8.3) PW8 SI K. P. Singh during his cross examination conducted by Ld. Counsel for the accused persons had deposed that he had seen the MLC and in the said MLC it was mentioned by the concerned doctor that the injured Faeem (accused in the present case) had inflicted injuries to himself. Furthermore, it was not mentioned in the said MLC that the gunshot injuries given by accused Faeem was not mentioned in the MLC. He had categorically deposed that he had seen accused Faeem in the hospital and there were injuries on his back and head. He further categorically deposed that he had not recorded the statement of accused Faeem after making inquires from him.
(10.9.1) PW9 is Dr. Kapil, CMO, Lok Nayak Hospital, Delhi. He had deposed that on 08.10.2017, he was posted as CMO at Lok Nayak Hospital and at 10.57 PM, one injured namely Mohd. Aslam S/o. Babu Khan was brought in casualty by one Mohd. Saleem, with the alleged history of firearm injuries received by the injured at his home at around 10.20 PM. The history was given by the injured himself. The said injured were examined by Dr. Debmalya, JR under his supervision. The said doctor had left the services of the hospital and his the then whereabouts were not known and since he was acquainted with the handwriting and Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:13:04 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 33/72 signature of the concerned doctor, the MLC prepared by Dr. Debmalya was exhibited as Ex. PW9/A, which also bears his signature being the Supervising Officer.
(10.9.2) PW9 Dr. Kapil further deposed that the injured Mohd. Aslam was conscious and oriented at the time of examination and on examination, following injuries were found:-
"1. Entry wound anterior aspect of left thigh of size 5 x 5 cm.
2. Exit wound posterior lateral aspect of left thigh of size 12 x 6 cm."
He further deposed that after the examination, the injured was referred to surgery and orthopedic emergency for further treatment and management. Clothes of the injured were sealed and bilateral hands scraping for gun powder CENA analysis were taken and were sealed by the Dr. Debmalya. The sealed exhibits were handed over to the IO and the nature of the injury was kept under observation.
(10.9.3) PW9 Dr. Kapil during his cross examination conducted by Ld. Counsel for the accused persons had deposed that the injured had not disclosed the name of assailants to him. A specific question was being asked to PW9 that after seeing the injuries mentioned in the MLC, could he state as to from what distance the said firearm injury was caused. To the said question, PW9 had replied by saying that he could not definitely state the exact distance from which the injury was caused.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.10.09
14:13:09
+0530
CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 34/72
(10.9.4) PW9 Dr. Kapil during his cross examination conducted by Ld. Counsel for the accused persons had deposed after a specific question was being asked to him, that after seeing the injuries mentioned in the MLC, whether he was sure that the said injuries were caused by a firearm or not. To the said question, PW9 had replied by saying that he could not say whether the said injuries were caused by a firearm or not. He went on to further depose that he had not found any blackening near the injury marks. Furthermore, he did not remember the description of the clothes being worn by the injured. He further deposed that the clothes were sealed by the nursing staff and he did not remember as to whether there were entry and exit holes on the clothes being worn by the injured, which were seized by the nursing staff. He further deposed that it took him about half an hour in examining the injured. The injured was conscious and oriented at the time of examination, however, it is not specifically mentioned by Dr. Debmalya in the MLC that the injured was fit for statement. He categorically deposed that the possibility of self inflicted injuries cannot be ruled out.
(10.10.1) PW-10 is HC Adesh Kumar and he had deposed that on 08-10- 2017, he was posted at PS Seelampur and on that day, at about 10:10 PM, Beta 51 brought an information that at "H. no. A-112, Buland Masjid, Shastri Park, bhai ko goli mar di hai, Faeem and Tara injured hai from phone no. 8860290222". He recorded the information vide DD no.
67B Ex. PW10/A.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.10.09
14:13:14
+0530
CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 35/72 (10.10.2) PW10 HC Adesh Kumar during his cross examination conducted by Ld. Counsel for the accused persons had deposed that he could not say as to at what time the Beta 51 Operator received the said 100 number call, however, he received the said information from the operator at about 10.10 PM.
(10.11.1) PW-11 is Dr. Nirajan Kansakar, Assistant Professor, Dr. R.M.L. Hospital, Delhi and he had given the opinion as to the nature of injury. He had deposed that on 22.11.2017, he was working in Lok Nayak Hospital as Senior Resident of General Surgery and on that day, at about 11.00 AM, he perused the MLC Ex. PW9/A and had opined the nature of the injury to be "dangerous" .
(10.11.2) PW11 Dr. Nirajan Kansakar during his cross examination conducted by Ld. Counsel for the accused persons had categorically deposed that it is correct that if a person was wearing a pant and sustained a bullet injury on his leg, it is natural that there would be a hole in the pant that he was wearing at the time of receiving of the said injury.
(10.11.3) PW11 Dr. Nirajan Kansakar during his cross examination conducted by Ld. Counsel for the accused persons had categorically deposed upon being asked a question as to on which part of the body, the injured had sustained injury, by saying that as per the discharge report, the entry wound was present on anterior aspect of left thigh and exit Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:13:19 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 36/72 +0530 wound over postero lateral aspect of the left thigh.
Plea of Accused Persons:
11. After completion of prosecution evidence, PE was closed. The statement of the accused persons was recorded under Section 313 Cr.P.C., in which they had pleaded innocence.
12. The accused persons chose not to lead any Defense Evidence.
Submissions made on behalf of the State:
13. I have heard the arguments advanced by Sh. Kamal Akhter, Ld. Additional PP for the State and from Sh. Amit Tanwar and Sh. Nokil Kumar Gulia, Ld. Counsels for the accused persons. I have also minutely gone through the evidence brought on record and the material aspects of the case.
14. It has been argued by the Ld. Addl. PP for the State that the prosecution has proved beyond reasonable doubt that on 08.10.2017 at about 10.00PM, the accused persons entered the house of the victim/complainant Aslam situated at H. No. A-112, Bulland Masjid, Shashtri Park, Delhi after making preparation for causing hurt to the complainant and thereby, they had committed the offence punishable u/s 452/34 IPC, 1860. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
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15. It has been argued by the Ld. Addl. PP for the State that the prosecution has proved beyond reasonable doubt that in furtherance of their common intention shared with each-other the accused persons gave beatings to the complainant and accused Faeem Kureshi also inflicted fire arm injuries upon the left thigh of the complainant Aslam under such circumstances that if the death of the complainant was caused by the said act, he would have been guilty of committing murder. Therefore, all the ingredients of the offence punishable u/s 307/323/34 IPC, 1860 have been made out in the present case.
16. It has been argued by the Ld. Addl. PP for the State that the prosecution has proved beyond reasonable doubt that in furtherance of their common intention share with each-other, after committing the aforementioned offences, they escaped from the spot and had thrown the weapon i.e. pistol with which, the offence was committed in Yamuna River, in order to save themselves and thereby they had also committed the offence punishable u/s 201/34 IPC, 1860.
17. It has been argued by the Ld. Addl. PP for the State that the prosecution has proved beyond reasonable doubt through the testimony of PW-1 Aslam, that on 08.10.2017, when he was present outside his house on a chabutra , accused persons reached there and started hurling abuses upon him. When the complainant proceeded inside his house, all the 3 accused persons entered his house and when the complainant was on the 1st floor of his house, all the 3 accused persons started scuffling Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:13:30 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 38/72 +0530 with him and gave beatings to the complainant. Thereafter, accused Faeem Kureshi took out a country made pistol and fired a shot upon the complainant and the said bullet had hit the left thigh of the complainant. Thereafter, the accused persons fled from the scene.
18. It has been argued by the Ld. Addl. PP for the State that the prosecution has proved beyond reasonable doubt that the accused persons had committed the act with such intention or knowledge and under such circumstances that if by the said act, the death of the injured, Aslam would have been caused, then all the accused persons would have been guilty of committing the offence of murder and that the accused persons had also committed the offence of house trespass after making preparation for causing hurt to the complainant. Furthermore, the accused persons had also caused hurt to the complainant, in pursuance of their common intention shared with each other.
19. It is further submitted by the Ld. Addl. PP for the state that the testimony of the other public eye witness namely PW2 Mohd. Shakeel is categorical in nature and he had fully corroborated the testimony of the complainant PW1 Aslam.
20. It has been argued by the Ld. Addl. PP for the State that the testimony of PW1 and PW2 was also fully corroborated with the medical evidence, i.e. the MLC Ex. PW9/A.
21. It is further submitted by the Ld. Addl. PP for the state that the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:13:35 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 39/72 +0530 identity of the accused persons were fully established in the present case as they were duly identified by all the prosecution witnesses before the Court.
Submissions made on behalf of the Accused Persons:
22. It is submitted by the Ld. Counsels for the accused persons that the main IO of the present case namely SI Devender Prasad was never examined before this Court, since he had already expired during the trial and he was subsequently dropped from the prosecution list of witnesses vide order dated 02.04.2019. The prosecution has sought to prove the documents prepared by the IO SI Devender Prasad through other police staff, who had allegedly accompanied him during the investigation.
However, there are material contradictions and inconsistencies in the testimony of the said formal prosecution witnesses namely PW6 HC Sanjeev, PW4 SI Rajender Singh, making the investigation conducted in the present case highly doubtful and dubious.
23. It is submitted by the Ld. Counsels for the accused persons that there has been several lapses on the part of the investigation. No effort was made by the IO to recover the alleged weapon of offence i.e. the country made pistol. The IO did not prepare the pointing out memo, whereby, showing the place where the accused persons had allegedly thrown the country made pistol in the Yamuna River.
24. It is submitted by the Ld. Counsels for the accused persons that the earth control and pellets Ex. P3 (colly) which were allegedly recovered Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 40/72 2024.10.09 14:13:41 +0530 from the scene of crime was never sent to the FSL. Furthermore, even the blood samples, the hand scrapping and alleged hand wash of accused Faeem Kureshi was also not sent to the FSL by the IO. Therefore, serious doubts have been created upon the investigation of the present case.
25. It is submitted by the Ld. Counsels for the accused persons that it has categorically come in the testimony of PW9 Dr. Kapil, that it is possible that the injury received by the complainant Aslam, which was duly mentioned in the MLC Ex. PW9/A could have been self inflicted injuries. Furthermore, the said doctor could also not say with any certainty that the said injuries were caused by fire arm or not. Therefore, the entire case of the prosecution is thus based upon surmises and conjectures and the prosecution has failed to prove the same beyond reasonable doubt.
26. It is submitted by the Ld. Counsels for the accused persons that one of the brothers of the complainant namely Ikram was cited as a prosecution witness and as per the prosecution story he had reached on the spot soon after the incident, yet he was dropped from the prosecution list of witnesses vide order dated 17.08.2019, upon the request of Ld. Addl. PP for the State, on the ground that his testimony was merely hearsay in nature. The said fact of dropping of PW Ikram by the prosecution has raised serious doubts on the veracity of the entire prosecution story, since the same was done after PW2 Mohd. Shakil was examined before this Court and he had completely flipped the prosecution story over its head and had claimed himself to be an eye Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:13:45 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 41/72 witness of the incident, however, it was not stated so by him in his earlier statements. Therefore, the said material public witness had contradicted the testimony of complainant PW1 Aslam and the fact that PW Ikram was dropped by the prosecution was only an attempt on behalf of the prosecution to save the sinking ship, which had received major holes in its hull, after PW2 Mohd. Shakil had caused more harm to the prosecution story than his testimony would have provided, in case, he had stuck to his earlier statements.
27. It is submitted by the Ld. Counsels for the accused persons that it is the case of the prosecution that the complainant Aslam had received a bullet injury on his left thigh. As per the MLC Ex. PW9/A, there was an entry wound and an exit wound present on the left thigh of the complainant. However, no bullet marks were found on the spot, so as to establish the area where the said bullet had finally hit after exiting from the thigh of the complainant. Furthermore, the case of the prosecution was also dealt a death blow, when there was no entry or exit mark/hole found in the pants Ex. P-, which the complainant was wearing at the time of the incident.
28. It is submitted by the Ld. Counsels for the accused persons that the call to the police was made on 100 number vide DD no. 67B Ex. PW10/A, by the brother of the complainant, namely Ikram and the prosecution could not explain as to why in the said call it was mentioned that accused persons were injured.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.10.09
14:13:51
+0530
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29. It is submitted by the Ld. Counsels for the accused persons that the incident allegedly took place at Shastri Park and Jag Pravesh Hospital was situated at a distance of only 5 minutes from the said place, yet the complainant was taken by his brothers to LNJP Hospital, which was situated more than 30 minutes away from the place of alleged incident. Therefore, no reasonable prudent person would believe on the prosecution story, that in spite of there being a government hospital right next to their house, the injured who had allegedly received a gun shot wound was made to sit in a TSR and was taken to another government hospital situated at a farther place, while he was allegedly bleeding out. Therefore, serious doubts are created upon the testimony of PW1 Aslam and PW2 Mohd. Shakil.
30. It is submitted by the Ld. Counsels for the accused persons that the complainant PW1 Aslam is not a sterling witness and his testimony is marred with number of contradictions and inconsistencies. It was deposed by PW1 Aslam that when the incident took place on the 1 st floor of his house, no one was present there as all of his family members had gone to a hospital situated in Shahdra, since his sister had delivered a still born baby. However, his brother PW2 Mohd. Shakil deposed that he was present in the house at the time of the incident and he had allegedly witnessed the entire incident. It was further deposed by PW2 Mohd. Shakil that other family members of their family were also present at the time of the incident. Therefore, the testimony of PW2 Mohd Shakil has contradicted the version of the complainant PW1 Aslam and in light of their inconsistencies, a grave shadow of doubt is casted on the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:13:57 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 43/72 prosecution story.
31. It is submitted by the Ld. Counsels for the accused persons that it has come in the testimony of PW1 Aslam that he was wearing a black coloured pant Ex. P-1, however, it has come in the testimony of PW2 Mohd. Shakil that his brother Aslam was wearing jeans pant at the time of the incident. The contradiction between their testimony, coupled with the fact that no holes being found on the pant Ex. P-1, which was seized at the time of the medical examination of the complainant, has also raised serious doubts upon the prosecution story. Lastly, the fact that the said pant was not sent to FSL for forensic examination had given a fatal blow to the already weakened prosecution story.
32. It is submitted by the Ld. Counsels for the accused persons that it had come in the testimony of PW4 SI Rajender Singh that he was the In- charge of Crime Team and had prepared the SOC report Ex. PW4/A, wherein, it was duly mentioned that four buttons Ex. P2 (colly) and 4 pellets of lead Ex. P3 (colly) were found lying on the scene of crime. However, it had come in the testimony of PW6 HC Sanjeev that IO had lifted four bullet pellets of brass and two bullet pellets of aluminum. However, in the seizure memo Ex. PW6/A, it was mentioned that total of four pellets pieces were seized by the IO and out of the said four pellets, two were made of brass and the remaining two were made of aluminum. The contradictions in their testimony is further highlighted with the fact that the said pellets were never sent to the FSL by the IO.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.10.09
14:14:02
+0530
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33. It is submitted by the Ld. Counsels for the accused persons that as per the seizure memo Ex. PW 8/A, certain exhibits were lifted from the accused persons i.e. his clothes and hand wash, yet the same were not sent to the FSL by the IO, thereby creating serious doubts on the prosecution version of events.
34. It is submitted by the Ld. Counsels for the accused persons that as per the supplementary disclosure statement of accused Naeem Kureshi, Ex. PW6/L, he had thrown the country made pistol in Yamuna River and yet no efforts were made by the IO to search the said weapon. There was no document i.e. the pointing out memo of the place where the said weapon was allegedly thrown in the Yamuna River prepared by the IO, thereby creating serious doubts on the prosecution strong as a whole.
35. It is submitted by the Ld. Counsels for the accused persons that the entire investigation is botched up, since the handwriting of the IO SI Devender Prasad is not matching on the documents allegedly prepared by him. There is a different hand writing in which the tehrir Ex. PW1/A and disclosure of accused Hanif Khan Ex. PW6/G was recorded and the other documents allegedly prepared by the IO. The said fact was duly brought during the cross examination of PW6 HC Sanjeev and PW5 ASI Nathu Ram.
36. It is submitted by the Ld. Counsels for the accused persons that there are serious doubts in the prosecution story as to the time line of the present case. As per the complainant PW1 Aslam, the incident took place Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:14:07 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 45/72 at 10.00 PM, however, in the MLC Ex. PW9/A, it was recorded by the concerned doctor upon the narration of the complainant himself that he received the said injuries at 10.20 PM. However, it had come in the cross examination of PW6 HC Sanjeev that he alongwith IO SI Devender Prasad reached the spot at around 10.00 PM, thereby, even prior to the incident taking place. It had further come in the testimony of PW10 HC Adesh Kumar that he recorded the DD no. 67B Ex. PW10/A at around 10.10 PM, thereby, creating serious doubts upon the testimony of PW6 HC Sanjeev that he alongwith the IO and him had reached the spot, even prior to the information regarding the present incident taking place was recorded in the PS.
37. It is submitted by the Ld. Counsels for the accused persons that the prosecution could not explain the call received on 100 number made by the accused Faeem Kureshi regarding a quarrel and snatching of money. It had come in the testimony of PW8 SI K. P. Singh that after receiving the said call, he reached the hospital where accused Faeem was found admitted and he allegedly deposed before PW8 K. P. Singh that he had made the said fake call, in order to save himself from causing injuries to complainant Aslam. Yet, no statement of his was recorded by PW8 SI K. P. Singh. It is further deposed by PW8 SI K. P. Singh that it was mentioned in the MLC collected by him that accused Faeem had inflicted injuries upon himself, yet no such MLC was brought on record by the prosecution.
38. It is submitted by the Ld. Counsels for the accused persons that ATUL AHLAWAT Digitally signed by ATUL AHLAWAT Date: 2024.10.09 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 46/72 14:14:14 +0530 there is also serious doubt created upon the seizure of the case properties in the present case. The IO was never examined before this Court, since he had already expired prior to recording of his testimony. It had come in the testimony of PW6 HC Sanjeev that it was the Crime Team which had seized the case properties from the scene of alleged crime with the seal of the IO, however, the members of the Crime Team have not deposed regarding the said seizure and as per their testimony, the case properties were seized by the IO himself.
39. It is submitted by the Ld. Counsels for the accused persons that it has come in the testimony of PW9 Dr. Kapil that he had not prepared the MLC Ex. PW9/A and same was prepared by one Dr. Debmalya, the then J.R., LNJP Hospital. Yet, during his cross examination he had stated that it took him about half an hour in examining the injured. Therefore, serious doubts regarding his credibility as a witness have been raised. Furthermore, he had categorically deposed during his cross examination that the clothes of the injured/complainant were not seized by the doctor who had conducted his examination and the same was seized by the nursing staff. The said nursing staff was never examined by the IO and he/she was never made a prosecution witness. Therefore, the benefit of the doubt must go to the accused persons.
Relevant Law & the Case Laws:
40. In the background of the above before appreciating the evidence brought on record, I deem it fit to discuss the relevant law and the case Digitally laws. It is trite law that the accused persons can be convicted on the basis signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:14:20 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 47/72 of credible evidence brought on record and the appreciation of the said evidence must be done in correct and true perspective manner and in the natural course of events, what would have been occurred. Appreciation of evidence beyond reasonable doubt does not mean that it should be assessed beyond any iota of doubt. Beyond Reasonable Doubt means that the prosecution is required to place evidence at a higher degree of preponderance of probabilities compared to what is degree of preponderance of probability in civil cases. The theory of Beyond Reasonable Doubt means expecting higher degree of preponderance of probabilities and the natural conduct of human beings, as held by the Hon'ble High Court of Karnataka in " State of Karnataka Vs Venkatesh @ Venkappa & Anr" , Criminal Appeal No. 100492 of 2021, decided on 18.12.2023.
41. Section 3 of the Indian Evidence Act defines "evidence". The evidence can be broadly divided into oral and documentary. "Evidence" under the Act can be said to include the means, factor or material, lending a degree of probability through a logical inference to the existence of a fact. It is an adjective law highlighting and aiding the substantive law. Thus, it is neither wholly procedural nor substantive, though trappings of both could be felt.
42. The definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving a fact by considering the "matters before it". The importance is attached to the degree of Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:14:25 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 48/72 +0530 probability in proving a fact through the consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical inference.
43. Matters are necessary, concomitant material factors to prove a fact. All "evidence" would be "matters" but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also adds strength to the evidence giving adequate ammunition in the Court's sojourn in deciphering the truth. Thus, the definition of "matters" is exhaustive, and therefore, much wider than that of "evidence". However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. Matters are required for a court to believe in the existence of a fact.
44. Matters, do give more discretion and flexibility to the court in deciding the existence of a fact. They also include all the classification of evidence such as circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc.
45. In addition, they supplement the evidence in proving the existence of a fact by enhancing the degree of probability. As an exhaustive Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:14:29 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 49/72 interpretation has to be given to the word "matter", and for that purpose, the definition of the expression of the words "means and includes", meant to be applied for evidence, has to be imported to that of a "matter" as well. Thus, a matter might include such of those which do not fall within the definition of Section 3, in the absence of any express bar.
46. What is important for the court is the conclusion on the basis of existence of a fact by analyzing the matters before it on the degree of probability. The entire enactment is meant to facilitate the court to come to an appropriate conclusion in proving a fact. There are two methods by which the court is expected to come to such a decision. The court can come to a conclusion on the existence of a fact by merely considering the matters before it, in forming an opinion that it does exist. This belief of the court is based upon the assessment of the matters before it. Alternatively, the court can consider the said existence as probable from the perspective of a prudent man who might act on the supposition that it exists. The question as to the choice of the options is best left to the court to decide. The said decision might impinge upon the quality of the matters before it.
47. The word "prudent" has not been defined under the Act. When the court wants to consider the second part of the definition clause instead of believing the existence of a fact by itself, it is expected to take the role of a prudent man. Such a prudent man has to be understood from the point of view of a common man. Therefore, a judge has to transform into a prudent man and assess the existence of a fact after considering the ATUL AHLAWAT Digitally signed by ATUL AHLAWAT Date: 2024.10.09 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 50/72 14:14:35 +0530 matters through that lens instead of a judge. It is only after undertaking the said exercise can he resume his role as a judge to proceed further in the case.
48. The aforesaid provision also indicates that the court is concerned with the existence of a fact both in issue and relevant, as against a whole testimony. Thus, the concentration is on the proof of a fact for which a witness is required. Therefore, a court can appreciate and accept the testimony of a witness on a particular issue while rejecting it on others since it focuses on an issue of fact to be proved. However, the evidence of a witness as whole is a matter for the court to decide on the probability of proving a fact which is inclusive of the credibility of the witness. Whether an issue is concluded or not is also a court's domain.
49. While appreciating the evidence as aforesaid along with the matters attached to it, evidence can be divided into three categories broadly namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If evidence, along with matters surrounding it, makes the court believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case where evidence is not believable. When evidence produced is neither wholly reliable nor wholly unreliable, it might require corroboration, and in such a case, court can also take note of the contradictions available in other matters. The aforesaid principle of law has been enunciated in the authority of Hon'ble Supreme Court of India in "Vadivelu Thevar v.
State of Madras", 1957 SCR 981 wherein it is held as under: Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.10.09
14:14:40
+0530
CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 51/72 "In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that "no particular number of witnesses shall in any case, be required for the proof of any fact". The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence -- 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s.134 quoted above. The section enshrines the well-recognized maxim that "Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:14:45 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 52/72 comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:14:50 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 53/72 corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
Appreciation of Evidence:
50. In the background of the abovesaid decisions, I shall now appraise Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:14:56 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 54/72 the evidence brought on record. The prosecution case has two star witnesses, namely complainant PW1 Aslam and his brother PW2 Mohd. Shakil. The testimony of the injured eye witness is of great value and same has to be given due weightage. The testimony of an injured witness is accorded a special status in law. Such a witness generally comes with a built-in-guarantee of his presence at the scene of crime and is unlikely to scare his actual assailants in order to falsely implicate someone. Convincing evidence is required to discredit such an injured eye witness. Thus, the evidence of an injured witness should be relied upon unless there are ground of rejection of his evidence on the basis of major contradictions and discrepancies therein. The reliance is placed upon the Judgment passed by the Hon'ble Supreme Court of India in " Bhajan Singh Vs. State of Haryana" (2011) 7 SCC 421. The question of the weight to be attached to the evidence of the witness that is himself injured in the course of the occurrence has been extensively dealt with by the Hon'ble Supreme Court of India and the testimony of such a witness is generally considered to be very reliable, as held by the Hon'ble Supreme Court of India in "Ram Lagan Singh and Ors. Vs. State of Bihar" AIR 1972 SC 2593, "Malkhan Singh and Anr. Vs. State of Uttar Pradesh" AIR 1975 SC 12 "Machhi Singh and Ors. Vs. State of Punjab" AIR 1983 SC 1957 and "Annareddy Sambasiva Reddy and Ors. Vs. State of Andhra Pradesh" AIR 2009 SC 6621.
51. In the present case, as per the prosecution story, PW1 Aslam was present at his house at around 10.00 PM on 08.10.2017 and at that time, he was alone outside the chabuttra of his house and was using whatsapp Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:15:02 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 55/72 on his mobile phone and the accused persons came there and started hurling abuses upon him. In his statement, made to the IO Ex. PW1/A, it was stated by the complainant Aslam that after the alleged incident took place on the 1st floor of his house, where the accused persons had given him beatings after entering his house and accused Faeem Kureshi had given a gun shot wound on his left thigh by some hathiyar , the accused persons fled from the spot and after hearing the commotion, his elder brothers, namely Ikram and younger brother Shakil reached there and took him to LNJP Hospital in an auto rickshaw.
52. As per the prosecution version, the brothers of the complainant Aslam, namely Ikram and Mohd. Shakil were present at the house on 08.10.2017, when the alleged incident took place, however, they have not stated before the IO that they had seen the alleged incident from their own eyes. It was clear from the statement Ex. PW1/A that they had reached the spot after hearing the commotion, after the said incident had taken place. When the complainant stepped into the witness box as PW1, he had categorically deposed that "After inflicting injury to me, the accused persons fled away from there. On hearing the commotion, my younger brother Shakil had also reached there when the accused persons were running from there. My elder brother Ikram also reached there. Call at 100 number was made by my elder brother Ikram. Thereafter, my both brothers Shakil and Ikram took me to LNJP Hospital in TSR" . Therefore, as per the deposition of PW1 Aslam, both his brothers had not seen the alleged incident and they had reached there after the same had already taken place. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
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53. It had come during the cross examination of PW1 Aslam conducted on 20.05.2019, that "At the time of incident in question, no one was present at the first floor of my house. They had reached within 2-3 minutes after the incident." He further went on to depose that "My elder brother Ikram had made a call at 100 number. My elder brother Ikram had come there 3 minutes after my brother Shakil came." Therefore, it is clear from his testimony that neither of his brothers had seen the incident in question. However, when the brother of the complainant, Mohd.
Shakil entered into the witness box as PW2 on 14.05.2019, he categorically deposed that "On 08.10.2017 at about 10.00 PM, when I was present at my house, I heard noise and on hearing the same, I saw that accused persons Faeem, Naeem and Kale were scuffling with my brother namely Aslam. At that time I was present at the second floor of my house and the abovesaid accused persons were scuffling with my brother at the first floor. When I was coming down from the second floor, in the meantime I saw that accused Faeem fired a shot upon my brother and bullet hit on the left leg of my brother Aslam. Thereafter, accused persons ran away from there after extending thereats. I called my brother namely Ikram who was sleeping, thereafter, I alongwith my brother Ikram took my brother Aslam to LNJP Hospital in an auto."
54. During his cross examination conducted by Ld. Defense counsel on 14.05.2019, PW2 Mohd. Shakil was duly confronted with his previous statement Mark PW2/DA, since in the said statement he had not mentioned that he had seen the accused persons scuffling with his Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:15:18 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 57/72 brother and that he had seen accused Faeem firing a shot on the left leg of his brother Aslam. He went to further categorically depose that at the time of the incident, he alongwith his elder brother Ikram and children were present at the house besides his injured brother Mohd. Aslam.
55. There is an inherent contradiction between the testimony of complainant PW1 Aslam wherein, he had categorically deposed that his brothers reached the spot after the alleged incident have already taken place and the testimony of PW2 Mohd. Shakil, wherein, he had made substantial improvements from his earlier statements and had deposed that he had seen the accused persons scuffling with his brother Aslam and also that he had seen accused Faeem firing a shot upon his brother with a katta .
56. It had come in the testimony of complainant PW1 Aslam that he was wearing a black coloured pant Ex. P-1 at the time of the incident. At the time of his cross examination conducted on 20.05.2019, he had categorically deposed that " I do not remember as to at how many places my trouser was pierced by the bullet shot. My pant was pierced by the bullet at left thigh portion. It was black colour pant which I was wearing at the time of incident. It was not a jeans pant." Therefore, he had categorically deposed that the pant he was wearing at the time of the incident was not made of jeans cloth, however, during the cross examination of PW2 Mohd Shakil, that "My injured brother was wearing jeans pant at that time but I do not remember its colour. I had not noticed the hole of the bullet on the jeans pant." Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
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57. During the examination in chief of the complainant PW1 Aslam, the pant which was being worn by him at the time of the incident and the same was taken into possession in the hospital was shown to him and he had correctly identified the said blood stained pant of black colour and it was exhibited as Ex. P-1. It is pertinent to mention here that it had come in the testimony of PW9 Dr. Kapil that the pant in question was not seized by Dr. Debmalya, who had examined the injured on 08.10.2017, and prepared the MLC Ex. PW9/A and the same was instead sealed by the nursing staff. Furthermore, upon inspection there was no hole in the said pants, wherein, the bullet had allegedly entered or exited from. It is not the case of the prosecution that the said pant was not worn by the complainant at the time of the incident or that he had later worn the said pant, prior to reaching the hospital. The conspicuous absence of the bullet holes on the said pant coupled with the fact that the pant was never sent to the FSL for forensic examination has dealt a serious blow to the prosecution case.
58. As per the prosecution case, blood was found lying at the spot and the IO had allegedly lifted the blood sample and the earth control.
However, no such samples were sent to the FSL, thereby casting doubts on the prosecution story that blood was found on the scene of alleged crime or not. Admittedly there was no bullet which was recovered from the scene and as per the prosecution version, there were certain pellets Ex. P3 (colly) which were seized by the IO from the scene of crime.
However, the it had come in the testimony of PW6 HC Sanjeev that IO Digitally
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CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 59/72 had lifted four bullet pellets made of brass and two pellets made of aluminum. However, PW4 SI Rajender Singh had deposed about 4 pieces of lead being found on the scene of crime. The alleged recovery memo Ex. PW6/A, however, talks about four pieces brass and two pieces of aluminum. In absence of the testimony of the IO who had allegedly seized the said case properties and there being no FSL result, the said discrepancy in the testimony of PW6 HC Sanjeev from the testimony of PW4 SI Rajender Singh, assumes greater significance.
59. The fact that the buttons of a shirt Ex. P2 (colly), the pellets of a gun Ex. P3 (colly) and the pant Ex. P1 which were allegedly being worn by the injured/complainant was not sent for forensic examination, therefore, the prosecution could not establish the essential link of their story, that the injured had received a gun shot injury, especially when the country made pistol was not recovered during the investigation. Furthermore, there were blood stains found on the staircase and the first floor of the house of the injured and the IO had allegedly picked up the same through seizure memo Ex. PW6/A, yet the said blood samples or earth control were not sent to FSL. Therefore, it could not be established that the blood allegedly recovered from the scene of crime pertained to the injured or not. It could not even be established in the present case, that the said blood pertained to a human being or an animal.
60. It is clear from the testimony of PW9 Dr. Karan that the possibility of self infliction of the injuries could not be ruled out in the present case. He had categorically deposed during his cross examination that "I had Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:15:36 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 60/72 not found any blackening near the injury marks". Furthermore, he could not tell after looking at the MLC Ex PW9/A, that from what distance the said injury was caused by a firearm. He even went to the extent of deposing that he could not say whether the said injuries were caused by a firearm or not. It had come in the testimony of PW2 Mohd. Shakil that accused Faeem had given the said injury to his brother Aslam from a very close range of about 2 feet approximately. However, the non presence of any blackening or tattoing around the said alleged entry wound, has created serious doubts upon the testimony of PW2 Mohd. Shakil. Furthermore, the testimony of PW9 Dr. Karan wherein he had categorically deposed that it could not be said with any certainty that the injuries mentioned in the MLC were caused by a firearm or not and that the possibility of self inflicted injuries could not be ruled out assumes significant importance. Furthermore, it has also categorically come in the testimony of PW11 Dr. Nirajan Kansar that it is correct that if a person was wearing a pant and sustained a bullet injury on his leg, it is natural that there would be a hole in the pant. Since, there was no hole in the pants Ex. P-1, one of the most essential links of the prosecution case could not be established. Therefore, serious doubts have been created upon the testimony of both PW1 and PW2, when appreciated in the background of the medical evidence i.e. MLC Ex. PW9/A and the testimony of PW9 Dr. Karan and PW11 Dr. Niranjan Kumar. Therefore, the benefit of the said doubt must go to the accused persons.
61. As per the case of the prosecution, two incidents have taken place on 08.10.2017. The first incident took place at about 4.00 PM when the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:15:42 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 61/72 +0530 complainant Aslam was present at the kabadi shop of his brother situated near DDA Park, Kabristan, Shastri Park Delhi and accused Faeem Kureshi had allegedly came there and asked for Rs. 500/- from the injured/complainant for purchasing liquor. When the complainant refused to give the money, accused Faeem got annoyed and abused and threatened by saying that he would see the complainant later. Therefore, as per the prosecution, the motive for the 2 nd incident which took place on the same day at 10.00 PM, was that the complainant had refused to give money to accused Faeem Kureshi. However, not even a single witness was cited by the prosecution to substantiate the allegations of the 1st incident which took place on 08.10.2017 at 04.00 PM. When the injured/complainant stepped into the witness box as PW1 on 14.05.2019, he had changed his stance from his earlier recorded statement Ex. PW1/A and had categorically deposed that "I was present in the park and not at the shop." He went on to further depose that "Many persons may be present in the said park at that time. I did not notice as to whether my Mohalla people were present in the said park or not. I had not stated to the police in my statement that I was in the park when accused had asked Rs. 500/- from me." He was duly confronted with his previous statement Ex. PW1/A, wherein, he had mentioned that he was present at the shop of kabadi (scrap dealer) owned by his elder brother Iqbal near DDA Park, near Kabristan, Shastri Park. He further went on to depose that "At the time of incident, one employee (old aged uncle) to whom I used to call "chacha" was present at the shop." However, the said employee of his brother was not made a prosecution witness. No public witness from the DDA Park was cited by the IO. There were no efforts made by the IO Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:15:47 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 62/72 to look for the CCTV cameras situated around the place where the alleged incident took place. The improvements in the testimony of PW1 Aslam had further dented his credibility as a witness.
62. In the present case, there are serious doubts about the investigation, which cannot be brushed aside. The entire investigation was conducted by IO SI Devender Prasad, who had died during the trial before his testimony could be recorded. The documents prepared by him were brought on record through other formal witnesses, who had allegedly joined the investigation with him. Perusal of the chargesheet reveals that the statement of the injured/complainant Aslam was recorded by IO SI Devender Prasad on 09.10.2017, allegedly in his own handwriting. The fact that the said statement was recorded by the IO in his own handwriting, came through the testimony of PW5 ASI Nathu Ram, who had categorically deposed at the time of his cross examination conducted on 28.08.2023, that Ex. PW1/A was written by the IO. He was further asked whether he could identify the handwriting of the person who had prepared other documents annexed with the chargesheet, to which he had specifically replied by saying "No".
63. At the time of recording of the testimony of PW6 HC Sanjeev, certain documents which were allegedly prepared by the IO, i.e. seizure memo Ex. PW6/M, pointing out memo Ex. PW6/N, disclosure statement of accused Faeem Ex. PW6/O etc., were shown to him and after seeing the same, he had identified the signatures of IO SI Devender Prasad at point X on the said documents. He had also deposed that the rukka on Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:15:53 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 63/72 +0530 the tehrir was prepared by the IO in his own handwriting, in the presence of PW6 himself and the said rukka was exhibited as Ex. PW6/P. What is pertinent to note here that the said rukka Ex. PW6/P is recorded in the same handwriting in which Ex. PW1/A is recorded. As per the testimony of the complainant Ex. PW1/A was recorded by the IO in his own handwriting. However, the remaining documents on the file, which were allegedly identified by the same PW6 HC Sanjeev to be recorded by IO SI Devender Prasad is in some different handwriting and from the bare perusal of the said hand writings, it is crystal clear that the same does not pertain to one person. Therefore, serious doubts have been created upon the entire investigation being conducted in the present case and all the documents allegedly prepared by the IO are shrouded in suspicion.
64. The inherent contradiction between the testimony of PW1 Aslam and his brother PW2 Mohd. Shakil, regarding the incident in question, whereby, it is deposed by the injured/complainant PW1 Aslam that his brothers arrived on the scene after the incident took place and the testimony of PW2 Mohd Shakil, wherein he had made certain glaring improvements from his earlier statement and claiming himself to be the eye witness, has dented the credibility of the prosecution case as a whole.
65. The non recovery of the weapon of alleged offence, coupled with the IO not sending the alleged pellets, blood samples, earth control and the pants being worn by the injured at the time of the incident to FSL has further raised doubts upon the veracity of the allegations leveled by the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:15:59 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 64/72 complainant/injured.
66. The medical evidence in the present case is the MLC Ex. PW9/A, in which the injuries which were found on the person of the complainant as "1. Entry wound anterior aspect of left thigh of size 5 x 5 cm.
2. Exit wound posterior lateral aspect of left thigh of size 12 x 6 cm." Therefore, there were two wounds present on the left thigh of the injured/complainant, however, the black coloured pant Ex. P-1 contained no holes or marks to show any place from which the alleged bullet had pierced the said pant, has further dented the case of the prosecution. Furthermore, it has come in the testimony of PW9 Dr. Kapil that he had found no blackening near the injury marks. The said testimony assumes further importance, since there are allegations of accused Faeem Kureshi giving the said gun shot injury from a point blank range. Lastly, the categorical deposition of the expert witness PW9 Dr. Kapil that "The possibility of self inflicted injuries could not be ruled out" has dealt the final nail in the coffin of the prosecution's case.
67. As per the prosecution case, there was a prior enmity between the accused Faeem Kureshi and the injured/complainant Aslam. The motive assigned by the prosecution, whereby, due to the said prior enmity the accused persons had committed the offences in question. However, motive in itself is a double edged sword. In the cases which are based upon circumstantial evidence, motive plays an important role, however, not of so much importance in cases based on eye witness evidence.
Where prosecution relied upon circumstantial evidence the proof of Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
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CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 65/72 motive is given the importance it deserves since for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. However, motive alone is not sufficient. It may provide an incentive to the accused to commit a crime, however, it may also give an opportunity to the complainant to falsely implicate the accused person in the crime that they had not committed. The prosecution witnesses in the present case had to be evaluated in this background as the said possibility cannot be ruled out in the present case. The correct test which had to be applied was led down by the Hon'ble Supreme Court of India in "Nallabothu Venkaiah Vs. State of AP "
(2002) 7 SCC 117, wherein it was held that " The test, in such circumstance, is that if the witnesses are interested, the same must be scrutinized with due care and caution in the light of the medical evidence and other surrounding circumstance. Animosity is a double-edged sword and it can cut both sides, it can be a ground for false implication, it can also be a ground for assault." In the present case, when the testimony of the two star prosecution witnesses PW1 and PW2 is appreciated in the background of the facts of the present case, especially when there is no witness who had corroborated the testimony of PW1 regarding the first incident which took place on 08.10.2017 at 04.00 PM. Furthermore, the improvements made by PW1 from his earlier statement Ex. PW1/A regarding the said first incident, had further dented his credibility as a witness and the prosecution story as a whole. Although, the prior enmity could have been the motive behind the alleged incident, at the same time, the said previous relationship between the parties, also does not rule out false implication in the present case. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
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68. The genesis of the prosecution story could be traced back to a phone call made to the police on 100 number from the mobile no. 8860290222, which was allegedly made by the elder brother of the injured, namely Ikram and the same was not established by the prosecution in the present case. Although, the said person was made a prosecution witness, his testimony was not recorded after he was dropped by the prosecution on the ground that he was merely a hearsay witness. However, since the said brother of the complainant was the caller who had called the police on 100 number, which led to registration of DD No. 67B Ex. PW10/A and who had also reached the scene soon after the incident had taken place and who had taken the injured to the hospital, was not merely a hearsay witness. Furthermore, the fact that the caller had informed in the said call "A-112 Bulland Masjid Shastri Park bhai ko goli maar di Faeem aur Tara injured hai", does not add up as far as the prosecution story is concerned, especially when the fact that the accused Faeem himself receiving injuries is concerned. Furthermore, it was not stated by Ikram in his statement before the IO recorded u/s 161 Cr.PC that he had called the police on 100 number. Therefore, serious doubts are created on the genesis of the prosecution story.
69. When the DD no. 67B Ex. PW10/A is appreciated in the background of the testimony of PW8 SI K. P. Singh, wherein, he had deposed that on 09.10.2017, he had received a call regarding a quarrel and snatching of money near DDA ground, near Kabristan at E-11/150, Bulland Masjid Shastri Park. He had further deposed that when he Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:16:17 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 67/72 reached the spot, he came to know that the injured had already been shifted to JPC Hospital and when he reached the said hospital, he collected the MLCs of accused Faeem Kureshi and one Nafees. He further deposed that the doctor had handed over the sealed pullanda of the hand wash and clothes of both the injured persons to him. He came to know that injured Nafees had left the hospital, however, injured Faeem was found admitted there. He further deposed that he made inquiries from accused Faeem and upon which accused Faeem disclosed that he had caused gun shot injury to Aslam and the said call for quarrel and snatching of Rs. 30,000/- was made by him, after he inflicted injuries to himself, so as to save himself from the prosecution. When he was cross examined by Ld. Defense Counsel, he had categorically deposed that the copy of DD was not provided to him and that he had seen the MLC and that self inflicted injuries were mentioned therein. He further deposed that the fact that gun shot injuries were given by accused Faeem was not mentioned in the MLC. Furthermore, he had not recorded the statement of accused Faeem, when he made inquires from him. The entire testimony of PW8 SI K. P. Singh is highly dubious and suspicious in nature. Whatever he had deposed, qua the alleged confession made to him by accused Faeem Kureshi has no value in the eyes of law and the same vanishes from the ken of evidence. No such MLC of accused Faeem Kureshi is filed alongwith the chargesheet. As per PW8, he had handed over the exhibits pertaining to accused Faeem Kureshi alongwith the MLC. The said exhibits were seized by the IO vide memo Ex. PW8/A, however, the said memo does not bear the MLC number. Furthermore, there is no such MLC of the accused Faeem Kureshi Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:16:22 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 68/72 recorded at JPC Hospital was filed alongwith the chargesheet. Therefore, it cannot be ruled out that the initial call on 100 number which was recorded vide DD No. 67B was not made by the brother of the complainant, namely Ikram. Furthermore, there is a possibility that the said call was made by the brother of accused Faeem Kureshi and that is why the prosecution had dropped Ikram from the prosecution list of witnesses and the fact that all the other documents barring the statement Ex. PW1/A, rukka Ex. PW6/H and the disclosure statement of accused Hanif Khan @ Kale Ex. PW6/G which are prepared in one hand writing, all the other documents filed alongwith the chargesheet, although claimed by the prosecution to be prepared by the IO SI Devender Prasad himself is prepared by someone else having a different handwriting. Therefore, it does not inspire any confidence and the possibility of the accused persons being falsely implicated in the present case cannot be ruled out. Hence, the benefit of the said doubts must go to the accused persons.
Conclusion & Findings:
70. In the background of the medical evidence on record, which is further accentuated by the serious lapses in the investigation, in view of the improvements and glaring contradictions in the testimony of injured witness PW1 Aslam, the version put for by the prosecution witnesses is not trustworthy. In the light of the fact that there was a previous enmity between the parties as alleged by the complainant himself and in light of which the alleged incident was said to have been taken place, without Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:16:28 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 69/72 there being any independent witness, nor there being any corroborating evidence, i.e. the non recovery of the alleged weapon involved and the fact that the case properties were never sent to FSL for forensic examination, and there being no bullet holes in the pants Ex. P-1 and the categorical testimony of the expert witness that the injuries could have been self inflicted, have all led to only one conclusion i.e. the prosecution case as placed before this court is full of doubts and as such the accused persons are entitled for the said benefit of doubt.
71. The improvements and the inherent contradictions in the testimony of the prosecution witnesses had certainly raised doubts in the mind of the Court and the effort of the Criminal Court is not to be prowl for imaginative doubts, unless is doubt is of a reasonable dimension and is what judicially conscientious mind entertains with some objectivity, otherwise no benefit can be claimed by the accused. In the present case the doubts raised from the testimony of the prosecution witnesses cannot be set to be merely imaginative and the same has been borne from the record of the present case. The said doubts are not merely imaginary or trivial in nature and it has dented the entire case of the prosecution. The burden of proof cast upon the accused persons is governed by the principle of "preponderance of probabilities" and in light of the discussion above, the accused persons in the present case have been able to raise reasonable doubts against the prosecution version of events and the hypothesis as propounded by the accused persons that due to prior enmity, they have been falsely implicated in the present case by the complainant. With the evidence brought on record, it cannot be said that Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.10.09 14:16:33 +0530 CNR No. DLNE01-000679-2018 FIR No. 618/2017 State Vs. Faeem Kureshi & Ors. Page no. 70/72 the chain of prosecution witnesses and the evidence brought on record was so complete, so as to not leave any reasonable ground consistent with the innocence of the accused persons.
72. When the entire evidence of the present case is cumulatively read and appreciated in the background of the settled principle of law and in the light of the evidence adduced by the prosecution is not worthy of acceptance and there is a serious shadow of doubt cast upon it and not worthy of inspiring any confidence. Hence, they strike at the very root of the prosecution story rendering it to be improbable and unbelievable. Therefore, in the opinion of this Court, there is no doubt that the prosecution has miserably failed to prove its case beyond reasonable doubt and hence, accused Faeem Kureshi, Naeem Kureshi and Hanif Khan @ Kallu are acquitted of the charges for committing the offences punishable u/s 452/307/323/201 R/w 34 IPC, 1860 and they shall be set at liberty.
73. The accused persons have already filed their bail bonds u/s 437A Cr.PC and the same shall remain in force for a period of six months from today. All the other bail bonds/surety bonds stands canceled and the earlier surety except for surety given u/s 437A Cr.PC stands discharged.
74. The case property, if any, be released to the rightful owner as per the law and the applicable rules, subject to the orders of the Hon'ble Appellate Court(s).
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
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75. File be consigned to the record room after due compliance.
Announced in the open court on 09.10.2024.
This judgment consists of 72 pages and all of them have been digitally signed by me.
Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2024.10.09
14:16:47
+0530
(ATUL AHLAWAT)
ASJ (FTC)/North-
East/KKD Courts/
Delhi/09.10.2024
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