Delhi District Court
State vs Fateh Khan Etc. on 24 May, 2010
IN THE COURT OF SHRI SANJAY SHARMA
ADDITIONAL SESSIONS JUDGE - III (EAST)
KARKARDOOMA COURTS : DELHI
State Versus Fateh Khan etc.
SC No. 42/2006
FIR No. 308/2005
PS New Ashok Nagar
U/S 307/34 IPC
1. Fateh Khan S/o Suleman
R/o Village Lachhayapur PS Anoop Sahar
District Bulendsahar UP
2. Jalaluddin S/o Shamshad Ahmed
R/o Village Mangla Patwari, PS Kuwarasi,
District Aligarh UP
3. Fayeem S/o Raheesh Qazi
(since declared P.O)
Date of Institution of Case : 22.3.2006
Date on which judgment Reserved : 24.5.2010
Date on which judgment delivered : 24.5.2010
J U D G M E N T :
The present case was registered on the statement made by complainant Mohd. Shamim who alleged that he is working as mechanic of generator with Mohd. Ismail at Mulla Colony and on the intervening night of 10/11.7.2005 at about 1.45 AM he alongwith his associate namely Ramu was coming from Convention Centre, Ghaziabad on a tractor loaded with a generator and when they reached ahead of Jamia Public School, patri of Canal, Khora jungles, suddenly two persons came out from a Maruti Car No. DBZ39 of blue colour 1 and stopped their tractor. He further alleged that those boys suddenly took out a katta and fired upon him. He received the shot on his right cheek and the cartridge got stuck in his jaw. Thereafter he alongwith Ramu came down from the tractor and hid themselves near the tyre of tractor. Those boys thereafter fled away from the spot with their car while asking the name of Parvez. The complainant then came to his owner Mohd. Ismail who took him to LBS Hospital and also informed the police. DD No. 3B was registered at the PS on which SI Jai Prakash reached the hospital and recorded statement of injured Shamim and got the present case registered. All the three above named accused were arrested in a case of PS Kotwali, Hapur, Ghaziabad, in which they made disclosure statement regarding their involvement in the present case. They were formally arrested on 08.8.2005 in the Court where they were produced on production warrants. Their two days PC remand was obtained and Maruti Car No. DBZ39 was seized and they also pointed out the place of occurrence.
2. Charge sheet was filed after completion of investigation against all the three accused for the offences punishable under Section 392/397/34 IPC.
3. After the case was committed to the Court of Sessions and 2 on considering the material on record, charge was framed against all the three accused for the offences punishable under Section 307/34 IPC, dt. 03.6.2006 to which they pleaded not guilty and claimed trial.
4. Eight witnesses were examined by the prosecution at the trial. PW1 Mohd. Ismail was the employer of complainant Mohd. Shamim and he deposed that on the night of 10/11.7.29095 at about 2 AM, his workers namely Mohd. Shamim and Ramu came to his house in injured condition on which he alongwith his wife took them to LBS Hospital where they were medically examined.
PW2 Ramu was the injured and an eyewitness of the alleged incident. He deposed the above facts stating that when they were coming via Khora Wali Nehar and had crossed the bridge, they noticed a car, stopping infront of them but they passed the car and then he noticed that the said car was following them. He further deposed that the said car gave signal to stop on which they stopped the tractor and one person came out from the car and fired upon Shamim and due to that shot, he also felt problem in his eyes which caused injuries to Shamim. He further deposed that the person asked them as to who was Parvez to which they both replied in negative and thereafter that person took their search and went away in the car. PW2 denied that any of the accused present in court, was one of that boy 3 who fired a shot. He was declared hostile and in his crossexamination by Ld. Addl. PP for the State, PW2 denied that the three accused committed the said incident and one of them had fired upon Shamim.
PW3 Shamim Ahmed also deposed likewise and added that after the first person fired a shot upon him, another person from the car came out and stood infront of him and loaded his katta on which he alongwith Ramu came down from the tractor. PW3 further deposed that he had asked that person as to whey he had fired upon him on which he asked as to who was Parvez to which PW3 replied that none of them was Parvez. PW3 further deposed that one of the person in the car took his search and then all fled away from there towards Ghaziabad side. PW3 proved his statement made to the police as Ex.PW3/A and also identified accused Fayeem (since P.O) as one of those assailants stating that he had searched him at the time of incident. He was also declared hostile and was crossexamined by Ld. Addl. PP for the State, and was also confronted with his previous statement Mark X which he denied. He also did not identified accused Fateh Khan and Jalaluddin as the assailants. He identified his shirt and baniyan as Ex.P1 and P2 which were seized by the police.
PW4 Ct. Netrapal Singh joined the investigation with IO/SI Jai Prakash on receipt of DD No. 3B and after preparation of ruqqa on the statement of complainant/injured Shamim, he got the present case 4 registered at the PS. He further proved the seizure memo of the clothes of injured Shamim as Ex.PW4/A . PW5 HC Jaivir Singh was a witness to the arrest of all the three accused persons in Court. He further deposed that during the PC remand of accused persons, Maruti Car No. DBZ39 was seized vide memo Ex.PW5/A and was deposited in the malkhana at the PS. PW6 HC Amar Singh also joined the investigation with SI Jai Prakash and PW4 Ct. Netrapal. He deposed likewise PW4 on material particulars. PW7 Ct. Munander Singh was also a witness to the arrest of accused persons in the Court and the recovery of Maruti Car during their PC remand. He also proved the pointed out memo as Ex.PW7/A which was of the place of occurrence as pointed out by the accused. PW8 HC Parmanand was the MHC(M) and he proved the entries made in Register NO. 19 regarding deposit of case property, as Ex.PW8/A to PW8/C.
5. It is pertinent to mention here that during the course of recording of evidence, i.e. after the examination of PW3, accused Fayeem started abstaining from attending the Court and ultimately he was declared 'Proclaimed Offender' vide order dt. 11.9.2009. 5
6. In this case, PW2/injured and PW3/complainant/injured were the main witnesses/eyewitnesses and the entire case of the prosecution was based on their evidence. They both though deposed about the alleged incident, but they gave contrary depositions regarding the number of assailants. PW2 deposed that only one person came out of the car and committed the incident, whereas PW3 deposed that two persons came out of the car and one of them fired a shot upon him while the other took his search and thereafter they fled away. However, only PW3 identified accused Fayeem (since P.O) as the person who had taken their search and the other two accused were not identified by him as the assailants. There was no other witnesses to the incident cited by the prosecution who could depose about the alleged incident. The other witnesses examined on record can be termed as formal witnesses as none of them had witnessed the incident.
7. In view of the above and further keeping in view the fact that accused Fayeem is P.O., it would have been futile exercise to carry on the present case against the present two accused, i.e. Fateh Khan and Jalaluddin as recording of further PE against them would have proved a paper formality as all the remaining witnesses were related to the investigation of this case, besides the doctors concerned who had 6 medically examined both the injured. Hence, Prosecution Evidence was closed despite being strongly opposed by Ld. Addl. PP for the State.
8. Since there was no incriminating evidence on record against any of the accused to merit recording their statement under Section 313 Cr. PC, the same were dispensed with .
9. In view of the aforesaid, since the complainant/PW3 and the other other eye witness and injured, i.e. PW2, have not identified the present accused, it is held that the prosecution has failed to prove the case against the accused persons namely Fateh Khan and Jalaluddin and accordingly, both these accused are hereby acquitted of the offences punishable under Section 307/34 IPC. They are set at liberty. Their bail bonds stand discharged.
File be consigned to Record Room and be summoned again as and when accused Fayeem appears or is otherwise arrested as P.O. ANNOUNCED IN OPEN COURT ON 24th day of May 2010 (SANJAY SHARMA) ADDL. SESSIONS JUDGE(EAST) III KARKARDOOMA COURTS : DELHI 7