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Delhi District Court

Fir No. 454/2014 State vs . Wasim & Ors Page 1 Of 32 on 22 August, 2023

     IN THE COURT OF SH. PANKAJ ARORA-04: ADDL.
           SESSIONS JUDGE-04: NORTH-EAST:
                KARKARDOOMA:DELHI

SESSIONS CASE NO. 44603/2015

CNR No. DLNE01-000214-2014

FIR No. 454/2014
P.S. Seelam Pur
U/s : 307/34 IPC

STATE

                                    Versus

(i) WASIM
S/o Sh. Hasmat
R/o H.No.D-545, Buland Masjid,
Shastri Park, Delhi

(ii) IMRAN
S/o Sh. Jamal
R/o H.No.B-333, Buland Masjid,
Shastri Park, Delhi

(iii) SAMEER SHEIKH @ SONU
S/o Sh. Raju Sheikh
R/o Jhuggi Opp. Shamshan Ghat Colony,
Delhi

Date of Institution :       29-10-2014
Date of Argument :          11-08-2023
Date of Judgment :          22-08-2023


JUDGMENT

1. Brief facts of this case are that on 08.07.2014 at about 2:32 pm, an information was received at PS Seelam Pur from PCR about firing at C Block Kadri Masjid, Shastri Park, Delhi. The FIR No. 454/2014 State Vs. Wasim & Ors Page 1 of 32 said information was reduced into writing vide DD No.20A (Ex.PW2/C) which was marked to ASI Begraj Singh. Thereafter, ASI Begraj Singh alongwith Ct. Dayal Chand reached at the spot i.e. Gali No.13, C Block, Shastri Park, where one motorcycle bearing No. DL-13SK-3371 was found and injured was found to be admitted in JPC Hospital. Ct. Dayal Chand was left at the spot and IO ASI Begraj proceeded to JPC Hospital from where he collected MLC of injured Baharul Seikh. IO came to know that injured was referred to GTB Hospital for further investigation. He proceeded to GTB Hospital where injured Baharul Seikh was found under treatment and doctor declared him fit for statement. IO then proceeded to record the statement of injured, who stated that on 08.07.2014 at about 5:15 pm, his wife Arjeena Bibi had telephonically called him and stated that one Chota Sonu alongwith his associate had arrived at the adjoining street and they were firing in the air and they were searching him. He immediately rush to his house in a Passion Pro Motorcycle belonging to his friend Jamshed from Hanuman Mandir, Shastri Park. At about 5:20 pm, when he reached outside his house at Gali No.13, Shastri Park, he saw Chota Sonu alongwith two associates carrying a pistol. Under fear, he turned his bike away from them to save himself whereupon he fell down alongwith the motorcycle. Then, Chotu Sonu fired a gunshot upon him which hit him on his back. He stated that he could identify the culprits Sonu and his associates if they are produced before him. He further stated that Chota Sonu had given knife blow to him previously as well. Somebody called the police and then police took him to the hospital. On the basis of statement of injured Baharul Seikh, the present FIR came to be registered. Thereafter, FIR No. 454/2014 State Vs. Wasim & Ors Page 2 of 32 further investigation of the present case was handed over to SI Brijveer Singh. On 10.07.2014 at about 10:00 pm, on the basis of secret information, the accused Imran and Wasim were apprehended. Loaded countrymade pistols were recovered from the possession of accused Imran and accused Wasim. Both the accused Imran and Wasim were arrested. Their disclosure statement was recorded. Both the accused persons were subjected to TIP proceedings. However, they refused to participate in the proceedings.

On 04.08.2014 at about 6:40 pm, accused Sameer Sheikh @ Sonu was apprehended on the basis of secret information at Gol Chakkar, Khajuri. A countrymade pistol was recovered from the right side belt of his wearing pant. Accused Shamir Sheikh @ Sonu was arrested.

COMMITTAL

2. After completion of necessary formalities, charge-sheet was filed in the Court of Ld. Ilaqa MM. After taking cognizance and compliance of section 207 of IPC, the present case was committed to the court of Sessions vide order dated 16.10.2014. The then Ld. District and Sessions judge allocated the present case to Ld. Predecessor of this Court.

CHARGE

3. After hearing arguments and on finding that prima facie case is made out against the accused persons for the offence punishable u/s 307 IPC, charge was framed by the ld. Predecessor vide order dated 15.11.2014, against accused persons for the offence punishable u/s 307/34 IPC, to which accused persons pleaded not guilty and claimed trial. Thereafter, prosecution got examined as many as twenty witnesses.

PROSECUTION EVIDENCE

4. (i) PW1 Baharul Seikh is the complainant in the present case. He deposed that he is illiterate. He alongwith his wife namely Smt. Arjana Bibi were residing at H.No.C-327, gali No.13, near Kadri Masjid, Shastri Park, Delhi during the day of incident. He used to deal in junk. He further deposed that on 08.07.2014 at about 5.10 p.m.- 5.15 p.m., his wife had called up on his mobile phone and told him that Sonu was firing indiscriminately (andha dundh) outside the house and that he was saying that he would kill him. At that time, he was present near Hanuman Mandir. Shastri Park, Delhi. After hearing this from his wife, he proceeded to his house on his motorcycle make Passion. When he reached near his house, he saw all the three accused persons. Witness correctly identified all the accused persons. He further deposed that on seeing the three accused persons, he turned his bike away from them to save himself. Witness pointed out towards accused Sameer Sheikh @ Sonu, who fired a gun shot upon him which hit him on his waist line on back side. The other two accused persons present before the Court had fired several rounds in the air. He further testified that after receiving the gun shot, he fell down from his motorcycle. Someone had called at 100 number. Police Gypsy had come and taken him to a hospital situated in the area of Shastri Park. Thereafter, he was shifted to another hospital situated somewhere in the area of Seemapuri. In this year itself in the month of June, five persons had stabbed him on his thigh, leg and hips. Three accused persons, who were present before the Court, were amongst those five persons. An FIR was registered in this regard at PS Seelampur. His statement was recorded by the police officer in FIR No. 454/2014 State Vs. Wasim & Ors Page 4 of 32 GTB Hospital as Ex.PW1/A. His shirt and underwear were seized in the hospital. On the next day, he had pointed out the place of incident to the police officer and he had got prepared the site plan. He further deposed that at the time of incident, all the three accused persons were having pistols. Accused Sonu had fired gunshot on the lower back portion of his body. PW1 had demonstrated how he has received gunshot on his body by removing his shirt. The bullet hit the lumber region (L3 and L4 of the backbone) in the mid line just above the hip). He further deposed that other two accused were firing in the air and after firing, they were taking out empty cartridges from their pistols and keeping them in their shoulder bags. He further stated that the bullet was still inside his body and it cannot be removed as the doctors had said that he may become paralyzed if bullet is removed from his body and he may become immobile. On that day, he was using mobile no. 9999762340 (Vodafone) and his wife was using mobile no. 9266551949 (Tata Indicom). He correctly identified the shirt and underwear which he was wearing at the time of incident as Ex.P1 and Ex.P2. The photograph of motorcycle which he was using was proved as Ex.P3 to Ex.P8.

In his cross-examination, he deposed that the SIM card of his phone was provided to him by one of his friend but he was unable to recall his name as long time has passed. The SIM card of the phone used by his wife Arjeena was in the name of her father but he could not tell the name of his father-in-law. His marriage was a love marriage and therefore, he did not visit his in-laws house. His wife visits her parents. He could not tell the name of his mother-in-law. He further deposed that the FIR No. 454/2014 State Vs. Wasim & Ors Page 5 of 32 motorcycle which he was driving at the time of incident belonged to his friend Jamshed Sheikh. Jamshed was residing in Gali No.

13. Shashtri Park. He was a scrap dealer. He was alone on the motorcycle. He borrowed the motorcycle 30 minutes just before the incident from Jamshed. He was detained in the police station Seelampur in a murder case. He was also detained in three theft cases pertaining to PS Mehroli, Farsh Bazar and Sarai Rohilla. He had not personal enmity with any person. He had no personal enmity with accused Sonu. Accused Sonu was known to him for the last 3-4 years. They were having friendly terms. They used to visit house of each other. He do not know Sheikh Tota. The mobile phone which was in use of his wife was given to her by her father. On that day, his wife might have called him two times. First call was received by him at about 05.10-05.15 p.m. and second call was made after 2-3 minutes. They might have talked for about 60 seconds 90 seconds. He volunteered that his wife stated that Sonu had come and he was firing in the air and calling him by uttering his name. He denied the suggestion that he was deposing falsely on this aspect. He further deposed that when he reached in the street, the accused persons were at a distance of 15-20 feet from him. They fired gunshots in the air for about 2- 2.5 minutes. He was conscious at that time. He could not tell when he was taken to the GTB Hospital. He remained conscious throughout. One police officer came to GTB hospital who recorded his statement. At the time of recording of his statement, his wife and his friend Maqsood were present. Maqsood left him after 1-1½ hours and his wife remained with him throughout. He was brought from the hospital next day by police officials for identifications. He further deposed that he and Sonu were friends FIR No. 454/2014 State Vs. Wasim & Ors Page 6 of 32 before the incident and they used to exchange money between them. He denied the suggestion that he had taken a sum of Rs.20,000/- from the accused Sonu 2-3 months before the incident. He further denied the suggestion that he implicated Sonu as he did not want to return the said amount of Rs.20.000/- to him. He identified Imran and Wasim in PS Seelampur.

(ii) PW2 HC Surender Kumar was the duty officer posted at PS Seelam Pur at the relevant time. He has proved the factum of registration of present FIR which is Ex.PW2/B. He has also proved endorsement made by him on the rukka which is Ex.PW2/A. He has also proved DD No. 20A, whereby an information was received from PCR about firing at C Block Kadri Masjid, Shastri Park, Delhi, which is Ex.PW2/C. The witness was cross-examined but nothing material came out in his cross-examination.

(iii) PW3 Ms. Arjeen Bibi is the wife of the complainant. She deposed that on 08.07.2014 at about 05.15 p.m-05.30 p.m. she was present in her house. At that time, accused Chhota Sonu and his two associates came in the street, near his house. The witness had identified accused Chhota Sonu and his two associates in the Court. She stated that accused Chhota Sonu and the other two accused who were standing in the Court came in the street. Her mother closed the door of the house after seeing them. Thereafter, they started firing gun shoots in the air. They were saying for Baharul that they have come to kill him. They were saying 'Baharul, they are his Gods and they have come to kill him. When they were leaving the street, she made a call from his mobile phone No. 9266551949 to his husband on his mobile No. 9999762340 and asked him to hide himself as the accused FIR No. 454/2014 State Vs. Wasim & Ors Page 7 of 32 Chhota Sonu was having pistol and they were looking for him. After sometime, she heard that her husband Baharul had sustained gun shot injury in his waist outside their street. She reached at the spot. She found her husband was lying on the spot in injured condition. Somebody made a call at 100 number. After sometime, PCR Van reached at the spot and taken to the hospital. She further deposed that she accompanied her husband in the PCR Van to a hospital in Shastri Park but they refused to admit him and thereafter, his husband was taken to GTB Hospital. His statement was recorded by the police at about 10.00 p.m. in the hospital. On 20.12.2014, she returned from her native town in Bengal. On 21.12.2014, she visited PS Seelampur. At that time, IO had made enquiry from her about her mobile number and mobile number of her husband and she had also told the police the said mobile numbers that her husband Baharul was using this mobile number. IO recorded her statement on 21.12.2014.

In her cross-examination, she deposed that at the time of incident, his father was not present in the house but her mother was present. She further deposed that she did not purchase her mobile phone. Her jija purchased it in Bengal. His name is Sabir. She talked to her husband for 3-4 minute. The accused persons fired at least 4-5 gun shots in the air. All the three accused persons were firing gun shots in the air. She had seen his husband lying on the road through the window of his house which was on second floor. She reached alone at the spot from her house. Baharul was wearing a shirt and pant on that day. Blood was not coming out from the body of her husband. She had seen blood on his shirt and pant. There was blood on the back side of the shirt. There was blood on the hip portion of the pant. There was a hole FIR No. 454/2014 State Vs. Wasim & Ors Page 8 of 32 in the vest. She further deposed that the accused persons were on foot when they were firing gunshots in their street. There was not much time gap between the incident of firing in the gali and firing of gunshot at his husband. She volunteered that 'ye gali se ja hi rahe the, mere pati gali main aa hi rha tha'. She was looking through his window.

(iv) PW4 HC Gajender Singh is the MHC(M) posted at PS Seelam Pur at the relevant time. He proved entries made by him in the malkhana register regarding deposit of motorcycle bearing No. DL-13-SK-3371 and deposit of pullanda with the seal of GTB Hospital and three more pullandas deposited by the IO/SI Brajveer Bringh on 10.07.2014 and 04.08.2014 which are Ex.PW4/A , Ex.PW4/B, Ex.PW4/C and Ex.PW4/D respectively. He has made entry in the register No. 19 regarding deposit of motorcycle bearing No. DL-13-SK-3371 which is Ex.PW4/A. On 08.07.2014, SI Brajveer Singh deposited one pullanda, entry in this regard was proved as Ex.PW4/B. On 10.07.2014 SI Brajveer deposited two pullands, entry in this regard was proved as Ex.PW4/C. On 04.08.2014, SI Brajveer deposited one pullanda, entry in this regard was proved as Ex.PW4/D. On 22.08.2014, he had sent three parcels vide RC No. 151/21/14 through Ct. Vijay Kumar for depositing the same in the FSL.

On 16.12.2014, two pullandas vide RC No. 208/21/14 through Ct. Raj Kumar. Entry in register No.19 in this regard was proved as Ex.PW4/E. The witness was cross-examined, but nothing material came out in this cross-examination.

(v) PW5 ASI Begraj Singh is the IO of the present case. He deposed that On 08.07.2014, he was on emergency duty at PS Seelampur alongwith Ct. Dayal Chand. At about 05.40 p.m., he received copy of DD No. 20A through Ct. Shiv Raj about firing near Kadri Majsid Shashtri Park. He alongwith Ct. Dayal Chand had reached in gali No. 13, C Block, Shashtri Park, Delhi. There, a motor-cycle bearing No. DL13 SK 3371 was lying in service lane. It came to know that injured was shifted to Jag Parvesh Chand Hospital. A crowd was there. He left Ct. Dayal Chand at the spot and reached at Jag Parvesh Chand Hospital. He obtained MLCs of Injured Bharul Sheikh S/o Rehman Sheikh. Patient was referred to higher center and it came to know that injured had gone to GTB Hospital. He had reached to GTB Hospital where Bharul Sheikh was found under-treatment. He recorded statement of Bharul Sheikh. Bharul Sheikh put his LTI at point A on his statement which was attested by him at point X. He made endorsement on the statement of Bharul Sheikh and prepared rukka Ex.PW5/A. Doctor had produced a sealed pulanda before him alongwith sample seal containing shirt of Bharul Sheikh which was taken into police possession by him through seizure memo Ex.PW5/B. Thereafter, he had reached at the spot. He searched eye-witness but no one was found. Motor-cycle was taken into police possession through seizure memo Ex.PW5/C. Thereafter, he had sent Ct. Dayal Chand to PS alongwith rukka for registration of FIR. Thereafter, SI Brajveer alongwith Ct. Dayal Chand had come to the spot. He had handed over documents to SI Brajveer and investigation was assigned to him. He took motor-cycle and pulanda to PS and deposited the same in malkhana of PS Seelampur. His statement was recorded by the FIR No. 454/2014 State Vs. Wasim & Ors Page 10 of 32 IO.

In his cross-examination by Sh. C. S. Tyagi, ld. Counsel for accused Imran and Wasim, he denied the suggestion that he did not visit the spot at any point of time or that no proceedings was conducted by him at the spot.

In his cross-examination by Sh. Dushyant Chaudhary, ld. Counsel for the accused Sameer, he deposed that he did not make enquiry regarding ownership of mobile No. 8750672524. The house of injured was of two storey. He could not tell the accommodation as he had not gone inside the house. He could not tell the measurement of the house. Some ladies were present at the house of injured but he did not know their names. He did not record their statements. Wife of injured was present. He made no enquiry from any relative of injured.

(vi) PW6 Dr. Rakesh Kumar Singh is the doctor who had examined the injured Baharul Seikh. He deposed that on local examination, he found following injury:

Tattooing around entry wound present on back lumber region L-3, L-4.

No exit wound seen. Entry wound size about 2-3 cm. Blackening or bruising around the wound. He advised X-ray of abdomen AP erect, chest PA view and LS Spine.

The witness has proved MLC as Ex.PW6/A. In his cross-examination by Sh. Dushyant Chaudhary, ld. Counsel for accused Sameer Sheikh @ Sonu, he deposed that when he examined, he noticed blood around the entry wound on the clothes. He volunteered that there was no active bleeding. He did not find any exit wound on the person of the patient. He could not tell the distance of firing of gunshot.

(vii) PW7 Insp. Anand Sagar is the SHO of PS Seelampur. He has proved the certificate u/s 65 B of Indian Evidence Act as Ex.PW7/A with regard to the obtaining of copy of FIR from computer.

Witness was not cross-examined despite having given the opportunity.

(viii) PW8 Jamshed is the person from whom injured Baharul Sheikh had borrowed motorcycle for reaching his home at the time of incident. He deposed that Baharul Sheikh was known to him as he belonged to his village Koitha. District Birbhum in West Bengal. On 08.07.2014 at about 2.30 p.m.-3.00 p.m., he was present in his godown of scraps at Dharampura Red Light, Shastri Park-Seelampur. He received a mobile call from Baharul Sheikh on his mobile phone and he demanded keys of his motor-cycle as he stated that he had to go somewhere urgently. He collected keys of his motor-cycle from his house. He asked his wife through mobile phone to deliver the keys of the motor-cycle to Baharul Sheikh. Thereafter, he had taken his motor-cycle bearing No. DL-13-SK-3371. He got his motor-cycle released from police after furnishing superdari bond. He had brought the motor-cycle No. DL-13-SK-3371 as Ex.PW8/P1. The photographs of the motor-cycle are Ex.P3 to Ex.P8.

In his cross-examination by Sh. I.H. Siddiqui, Ld. Addl. PP for the State, he denied the suggestion that on that day, at about 5.00 p.m., he himself and Baharul Shiekh were calculating the accounts of scraps and at that time, he had received a telephonic call of his wife Arzina who called him immediately. He denied the suggestion that he had stated so to the police in his statement. He further denied the suggestion that Bahalur Sheikh also FIR No. 454/2014 State Vs. Wasim & Ors Page 12 of 32 informed him that Sonu alongwith his associates were armed with weapons and they were searching him. He had not stated so to the police in his statement. He denied the suggestion that he was not deposing complete facts as he has been won over by the accused persons.

He was cross-examined by ld. Defence counsels, but nothing material came out in his cross-examination.

(ix) PW9 Ms. Manisha Upadhyaya is the Senior Scientific Official from FSL, who had examined the blood stained clothes of injured. She deposed that on 16.12.2014, she had received two sealed parcels duly sealed with the seal of 'MLC GTB Hospital SHD Delhi-95'. Parcel 1 was sealed cloth parcel containing Ex.1 i.e. one shirt having dirty dark brown stains. Parcel 2 was sealed clothe parcel containing Ex.2 i.e. one underwear having dirty dark brown stains. In biological report, blood was detected on exhibits 1 and 2 and serologically, the blood was of human and containing Blood Group A. She proved reports prepared by her as Ex.PW9/A and Ex.PW9/B. The witness was not cross-examined despite having given the opportunity.

(x) PW10 Sh. Rajender Singh Sagar is the Addl. DCP of North-East District at the relevant time. He has proved the sanction accorded by him u/s 39 of the Arms Act for prosecution of accused persons for the offences punishable u/s 25 and 27 of the Arms Act as Ex.PW10/A. In his cross-examination by Sh. C.S. Tyagi, ld. Counsel for accused Wasim and Imran, he deposed that he had seen the arms. He could not tell the date on which the sealed parcels containing case property were produced before him.

(xi) PW11 Ct. Rakesh Kumar is the investigation police official who had accompanied the IO/SI Brajveer and Ct. Subhash at the time of receipt of secret information providing clue about the accused persons on 10.07.2014. He has taken part in investigation of the present case with regard to the arrest of accused Imran and Wasim and recovery of weapon of offence from their respective possessions.

In his cross-examination by Sh. C.S. Tyagi, ld. Counsel for accused Wasim and Imran he did not know if IO made departure entry while leaving the police station. No notice was given to any public person who refused to join the raiding party. After talking with public persons, SI Brajveer asked them to move for Qabristan, Shastri Park. He could not tell the area of Qabristan.

(xii) PW12 Ct. Subhash is also the investigating police official, who had accompanied the IO/SI Brajveer at the time of receipt of secret information providing clue about the accused persons on 10.07.2014. His deposition is similar to the deposition of PW11 Ct. Rakesh.

In his cross-examination by Sh. C.S. Tyagi, ld. Counsel for accused Wasim and Imran, he deposed that he did not know if IO made departure entry while leaving the police station.

(xiii) PW13 Sh. V.R. Anand, Assistant Director (Ballistic) is the Assistant Director Ballistic, he had examined the country- made pistols, shown to have been recovered from the possession of accused persons. He has proved the report prepared by him as Ex.PW13/A. In his cross-examination by Sh. Dushyant Chaoudhary, ld. Counsel for accused Sameer Sheikh, he deposed that he could not tell as to how many fires shot from the above-mentioned country FIR No. 454/2014 State Vs. Wasim & Ors Page 14 of 32 made pistols and also could not tell as to how much time prior the fires were shot from the country made pistols examined by him in the present case. He is degree holder and he has the qualification as desired for the post on which he was working. He denied the suggestion that he had prepared Ballistic Report at the instance of IO.

(xiv) PW14 Ct. Vijay Kumar is the investigating police official, who had deposited plastic boxes at FSL Rohini vide RC No. 151/21/14 against proper acknowledgment.

In his cross-examination by Sh. Dushyant Chaudhary, ld. Counsel for accused Sameer Sheikh @ Sonu, he deposed that he did not remember number of DD entry. His arrival entry was made by the duty officer but he did not remember the number of the said entry.

(xv) PW15 Ct. Sonu is the investigating police official who had accompanied Ct. Umesh and SI Brajveer at the time of receipt of secret information providing clue about the accused persons on 10.07.2014. He has taken part in the investigation of the present case with regard to arrest of accused Sameer Sheikh @ Sonu and recovery of weapon of offence from his possession.

In his cross-examination by Sh. C.S. Tyagi, ld. Counsel for accused Ct. Sonu Yadav, he deposed that they departed from the PS at about 4 pm. IO made departure entry. He did not remember the number of DD entry. He did not remember exact time of recording of departure entry but it was made before 4:00 pm. IO/SI Brajveer requested public persons to join the investigation after disclosing secret information to them. None of them agreed. IO did not record their names and addresses. No written notice was served upon any of them. He denied the suggestion that the FIR No. 454/2014 State Vs. Wasim & Ors Page 15 of 32 entire proceedings or wirtten work was done in the PS. He denied the suggestion that accused Sameer Sheikh @ Sonu was lifted from his house. He further denied the suggestion that he was not apprehended from Khajuri Chowk. IO made arrival entry in PS but he could not tell the DD number.

(xvi) PW16 Ct. Umesh is the investigating police official who had accompanied SI Brajveer and Ct. Sonu with regard to the arrest of accused Sameer Sheikh @ Sonu and recovery of weapon of offence. His deposition is similar to deposition of PW15 Ct. Sonu.

In his cross-examination by Sh. Dushyant Chaudhary, he affirmed that it was crowded area. No notice was given to public persons due to paucity of time. He further deposed that he did not make any arrival entry at PS. (xvii) PW17 Sh. Puneet Puri is the Assistant Director (Ballistics) FSL. He is the FSL Expert who had examined the underwear and shirt of injured. He deposed that as a result of analysis, gunshot residue particles were detected around the hole mark 'H1' on the shirt mark 'C1' and on the area mark 'A1' on underwear 'Ex.C2'. He has proved the report prepared by him as Ex.PW17/A. In his cross-examination by Sh. Dushyant Choudhary, ld. Defence counsel, he deposed that from gunshot residue particles, they could not differentiate the type of firearm.

(xviii) PW18 Ms. Harleen Singh is the Ld. Metropolitan Magistrate who conducted the TIP of accused Wasim and Imran. She has proved the record pertaining to the TIP of above- mentioned accused persons as Ex.PW18/A to Ex.PW18/F. She deposed that the accused persons had refused to participate in the FIR No. 454/2014 State Vs. Wasim & Ors Page 16 of 32 TIP proceedings despite having given warning that an adverse inference may be drawn against them during trial.

The witness was not cross-examined despite having given the opportunity.

(xix) PW19 Ct. Dayal Chandra is the investigating police official who had accompanied first IO/ASI Begraj at the spot. He has deposed correctly about the proceedings conducted by him and the IO at the spot on the date of incident i.e. 08.07.2014.

In his cross-examination by Sh. Manjeet Singh, ld. Counsel for accused Sameer Sheikh @ Sonu, he deposed that when they reached the spot, public persons were present there.

In is cross-examination by Sh. C.S. Tyagi, ld. Counsel for accused Waseem and Imran, he deposed that ASI Begraj made enquiry from public persons but did not record statement of any of them.

(xx) PW20 SI Brajveer Singh is the second IO of the present case. He deposed that on 08.07.2014, he was posted in PS Seelampur. On that day, he was present in police station. At about 10.00 p.m., he received copy of the case FIR and original tehrir from Ct. Dayal Chandra for investigation. He alongwith Ct. Dayal Chandra reached at the place of incident i.e. entrance of gali no. 13, C-Block. Shastri Park, Delhi, ASI Begraj and Arzeena were present there. ASI Begraj briefed him about the facts of the case. He recorded statement of ASI Begraj and relieved him with the direction to deposit the articles seized by him in malkhana, PS Seelampur. At about 11.00 p.m., he recorded statement of Arzeena Bibi on the spot and relieved her. He searched the accused persons but they were not found at that time. They returned to police station. He recorded statement of FIR No. 454/2014 State Vs. Wasim & Ors Page 17 of 32 Ct. Dayal Chandra. On 09.07.2014, an information was received from GTB Hospital that injured Baharul Sheikh left the hospital without medical advise. Duty Officer recorded this information vide DD No. 72B. Copy of DD No. 72B is Ex.PW20/A. He reached GTB Hospital. He found that injured Baharul Sheikh left the hospital without medical advise. Doctor Dhananjay given him a sealed parcel containing underwear of the injured and sample seal. He seized it vide seizure memo Ex.PW20/B. He reached at the house of complainant Baharul Sheikh in Shastri Park. He taken Baharul Sheikh with him and reached at the place of incident. He inspected place of incident at his instance and prepared site Ex.PW20/C. He instructed complainant Bahan Sheikh to obtain complete treatment. He recorded his statement and relieved him. He searched the accused persons but they were not found. He returned to police station. He deposited parcel in malkhana. He further deposed that on 10.07.2014, he alongwith Ct. Subhash and Ct. Rakesh left police station in search of the accused persons. They reached Police Booth, Shastri Park. At about 10.00 p.m., one secret informer met him and informed that two boys who committed offence were present near Kabristan. Shastri Park. He asked 2-4 passers-by to join the raiding party but no one agreed and left after stating their genuine difficulties. He alongwith Ct. Subhash, Ct. Rakesh and informer reached near Kabristan. Secret informer pointed out towards two boys who were sitting near Kabristan, Shastri Park. He alongwith Ct. Subhash and Ct. Rakesh apprehended both the boys. He recovered a country-made pistol from right side belt of the pant of the accused Imran. He recovered a country-made pistol from right side belt of the pant of the accused Wasim. On enquiry, the FIR No. 454/2014 State Vs. Wasim & Ors Page 18 of 32 said boys disclosed their identity as Imran and Wasim. The country-made pistols were loaded and each pistol was having one live cartridge inside the chamber. He prepared sketch already Ex.PW11/A of country-made pistol and live cartridge recovered from the accused Wasim. He mentioned measurements of pistols and cartridge in sketch. He kept pistol and live cartridge recovered from the accused Wasim in a plastic box. He affixed white tape on the plastic box and sealed it with seal impression 'BS'. He seized plastic box vide seizure memo ExPW11/B. He prepared sketch Ex.PW11/C of country-made pistol and live cartridge recovered from the accused Imran. He mentioned measurements of pistols and cartridge in sketch. He kept pistol and live cartridge recovered from the accused Imran in a plastic box. He affixed white tape on the plastic box and sealed it with seal impression 'BS'. He seized plastic box vide seizure memo Ex.PW11/D. He had also filled form FSL. At about 10.40 p.m., he arrested the accused Imran vide arrest memo Ex.PW11/F and taken his personal search vide memo Ex.PW11/H. At about 11.00 p.m., he arrested the accused Wasim vide arrest memo Ex.PW11/E and taken his personal search vide memo Ex.PW11/G. He kept muffles on the faces of both the accused persons Wasim and Imran immediately after their arrest. He interrogated the accused Imran and Wasim and recorded their disclosure statements Ex.PW11/J and Ex.PW11/1 respectively. They taken the accused Imran and Wasim to JPC Hospital. They were got medically examined and taken to police station. They were lodged in lockup, Seelampur. He deposited case property in malkhana. He recorded statement of Rakesh and Ct. Subhash under section 161 of the Cr.PC. He further deposed that On FIR No. 454/2014 State Vs. Wasim & Ors Page 19 of 32 11.07.2014, he produced both the accused persons before the Court in muffled face. He moved an application for conducting Test Identification Parade (TIP) of both the accused persons. Both the accused persons refused to join TIP. His application for conducting TIP of the accused persons as Ex.PW18/A. Both the accused persons were sent to JC. He obtained copy of TIP proceeding through application Ex.PW18/F. He further deposed that on 04.08.2014 at about 06.40 p.m., he received an information that the accused Sonu Sameer Sheikh was going on pusta Road towards. Khajuri. He alongwith Ct. Sonu and Ct. Umesh reached near gol chakker, Khajuri. Secret informer met them and told him that the accused Sameer Sheikh is present in park, gol chakker, Khajuri. He asked 3-4 passers-by to join the investigation but no one agreed and left after stating their genuine difficulties. He alongwith secret informer entered in the park from one side, Ct. Umesh and Ct. Sonu entered into the park from different sides. Secret informer pointed out towards the accused Sameer Sheikh. The accused Sameer Sheikh tried to run on seeing the police officials but they apprehended him. He taken his search and found a country-made pistol from the right side belt of his wearing pant. He checked recovered pistol. It was empty. He prepared sketch of pistol Ex.PW15/A and mentioned its measurements in the sketch. He kept pistol in a plastic box and affixed white tape on it. He sealed plastic box with seal impression 'BS' and seized vide seizure memo Ex.PW15/B. At about 08.05 p.m., he arrested the accused Sameer Sheikh vide memo Ex.PW15/D and taken his personal search vide memo PW15/E. He recorded disclosure statement of the accused Sameer Sheikh Ex.PW15/C. They took the accused to JPC FIR No. 454/2014 State Vs. Wasim & Ors Page 20 of 32 Hospital and he was medically examined. He lodged him in lockup, PS Seelampur. He deposited case property in malkhana. He recorded statements of Ct. Sonu and Ct. Umesh. On the next day, the accused Sameer Sheikh was produced before the Court. He deposited MLC in hospital for obtaining final opinion. Doctor could not give final opinion as injured had not obtained complete treatment. He got deposited exhibits in FSL. Rohini. He recorded statements of concerned constables and MHC (M). He filed charge-sheet. On receipt of FSL Result, he obtained sanction under section 39 Arms Acts and filed it in the Court. Motorcycle was released to Jamshed. He recorded statements of the witnesses. He seized the photographs of the motorcycle vide seizure memo Ex.PW20/D. He filed supplementary charge-sheets in the Court. Witness has correctly identified accused Wasim, Imran and Sameer Sheikh.

In his cross-examination by Sh. Manjeet Singh, ld. Counsel for accused Sameer Sheikh, he affirmed that accused Sameer Sheikh was not present at the spot when he reached there. Before proceeding from the PS to the spot on 08.07.2014, he personally did not lodge any DD entry in daily diary register. He recorded statement of Baharul Sheikh on 09.07.2014 because he received the information that on the night of 08/09.07.2014, he had left the hospital without informing to the hospital staff. He lodged the departure report when he proceeded to apprehend the accused at police station but he did not remember the number of DD entry. He denied the suggestion that he did not conduct the investigation fairly and properly or that nothing was recovered from the possession of accused Samir or that he was falsely implicated or that the fire arm has been planted upon the accused FIR No. 454/2014 State Vs. Wasim & Ors Page 21 of 32 Samir or that he was deposing falsely.

In his cross-examination by Sh. K.N. Sharma, ld. LAC for accused Imran, he deposed that weapon recovered from accused Imran was produced in sealed condition before the DCP after receipt of FSL receipt but he did not remember the date. The place of apprehending the accused Imran was a graveyard and it was night time and no public person was present nearby. The residential houses were at distance of around 200 meters from the place of apprehension. None was called from the said locality to join the proceedings.

STATEMENT OF ACCUSED

5. After completion of prosecution evidence, the statement of accused persons were recorded under Section 313 Cr.P.C. wherein incriminating facts were put to the accused person, which were denied by him. They stated that they are innocent and have been falsely implicated in this case. Accused Imran was lifted by the police from the gali near Rashida Masjid, Shastri Park, Delhi. Accused denied to lead evidence in defence. FINAL ARGUMENTS

6. This court has heard Sh. Parveen Yadav, Ld. LAC for accused Imran and Sameer Sheikh, Sh. C. S. Tyagi, ld. Counsel for accused Wasim and Ld. Addl. PP for State. It is submitted on behalf of accused Imran and Sameer Sheikh that there are major discrepancies and contradictions in the statement of prosecution witnesses. No blood-stained marks were lifted by the IO from the spot. No independent public witness was joined in the investigation. It is submitted on behalf of accused Wasim that there is major discrepancy with regard to the time at which wife of injured had called him. As per ocular testimony of FIR No. 454/2014 State Vs. Wasim & Ors Page 22 of 32 prosecution witnesses, she had called her husband at about 5:10 to 5:15 pm. However, as per the CDRs, she had called her husband on 05:26 pm and thereafter on 05:28 pm. The identification of accused Wasim and Imran by injured PW1 Bahrul Sheikh is also doubtful as the injured PW1 Bahrul Sheikh has already seen them at PS and this fact is admitted by PW1 Bahrul Sheikh in his cross-examination. Necessary DD entries regarding movement of police officials has not been proved. It is, therefore, prayed that benefit of doubt be conferred to the accused persons and they shall be acquitted.

On the other hand, Ld. Addl. PP for State submits that testimony of prosecution witnesses is sufficient to bring home the guilt of accused persons with regard to the charge for the offences punishable u/s 307/34 IPC and u/s 25 Arms Act. There is no major discrepancy or contradiction in the testimony of prosecution witnesses.

FINDINGS OF THE COURT

7. The only eyewitness got examined by the prosecution, who had actually seen the incident from his eyes, is PW1 Bahrul Sheikh. In his examination in chief dated 05-12-2014, he has correctly identified all the accused persons. As regards the role of accused Sonu @ Sameer Sheikh, he had categorically testified that on 08-07-2014, at about 5:10 pm to 5:15 pm, her wife had called up on his mobile phone and told him that Sonu was firing indiscriminately (andha dundh) outside the house and that he was saying that he would kill him. At that time, he was present near Hanuman Mandir, Shastri Park, Delhi. After hearing this from his wife, he proceeded to his house on his motorcycle make Passion. When he reached near his house, he saw all the three accused FIR No. 454/2014 State Vs. Wasim & Ors Page 23 of 32 persons. On seeing three accused persons, he turned his bike away from them to save himself. Accused Sameer Sheikh @ Sonu had fired a gun shot upon him which hit him on his waist line on backside. The other two accused persons had fired several rounds in the air. After receiving the gun shot, he fell down from his motorcycle. PW1 had also demonstrated in the Court as to how and on which body part he was hit with the bullet. He had also deposed that the bullet is still inside in his body and it cannot be removed as the doctors have said that he may become paralyze if bullet is removed. As regards the role of other accused persons namely Imran and Wasim, PW1 had only stated that they had accompanied the main assailant Sameer Sheikh @ Sonu, who had fired gun shot upon him, and they had fired several rounds in the air. In his examination in chief dated 27-04-2015, he stated that after firing, the other accused persons (Imran and Wasim), were seen taking out empty cartridges from their pistols and keeping them in their shoulder bags.

8. It is noted, fired bullets, as claimed by PW1 Bahrul Sheikh, have not been lifted by the IO from the spot. No plausible explanation in this regard is offered. Further, it is pertinent to note that PW1 Bahrul Sheikh in his cross- examination dated 28-05-2015 testified that he has identified accused Imran and Wasim at PS Seelampur. It is argued that since accused Imran and Wasim were already shown by the IO to the witness after effecting their arrest, that is why both accused Imran and Wasim had refused to participate in TIP proceedings. Further, it is pertinent to note that it is not in dispute that the name of accused Wasim and Imran is nowhere mentioned in the FIR. In his deposition dated 05-12-2014, PW1 had revealed the FIR No. 454/2014 State Vs. Wasim & Ors Page 24 of 32 name of accused Sonu only, who was firing indiscriminately, as reported to him by his wife. Thus, the presence of accused Imran and Wasim at the spot is doubtful. In these circumstances, this court finds force in the arguments addressed by the Ld. Counsel for accused Imran and Wasim to the effect that identification of accused Imran and Wasim by PW1 Bahrul Sheikh in his deposition dated 05-12-2014 is meaningless.

9. At this stage, it is pertinent to refer the case of Shaikh Umar Ahmed Shaikh and Anr. Vs. State of Maharashtra, AIR 1998 Supreme Court 1922, wherein it was held that:

"But, the question arises; what value could be attached to the evidence of identity of accused by the witnesses in the court when the accused were possibly shown to the witnesses before the identification parade in the police station. The Designated Court has already recorded a finding that there was strong possibility that the suspects were shown to the witnesses. Under such circumstances, when the accused were already shown to the witnesses, their identification in the Court by the witnesses was meaningless. The statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be made basis for recording conviction against the accused."

10. It is further observed that necessary DD entries with regard to the movement of police officials, receipt of secret information and recovery of country made pistol and bullets have not been placed on record. PW11 Ct. Rakesh had stated in his cross- examination that he did not know if IO made departure entry while leaving the police station. PW12 Ct. Subhash had also stated that he did not know if IO made departure entry while leaving the police station. PW14 Ct. Vijay Kumar had also stated that he did not remember the number of his departure. PW15 Ct. Sonu also failed to reveal DD entry of his departure from police FIR No. 454/2014 State Vs. Wasim & Ors Page 25 of 32 station in his cross-examination dated 17-10-2015. PW16 Ct. Umesh had also stated categorically in his cross-examination that he did not make any arrival entry at police station. Even the IO PW20 SI Brijbir Singh had failed to reveal the DD entry regarding his departure and arrival at the police station with regard to the investigation in the present case.

11. As per Chapter 22 Rule 49 of the Punjab Police Rules, it is necessary to record DD Entry of arrival and departure of the police official. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced as under:-

''22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered :-

(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.

Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.

12. In the present case, the above said provision appears to have not been complied with by prosecution. The relevant entries regarding receipt of secret information, departure and arrival of investigating police officials have not been proved on record and even the DD Writer was not examined and no explanation is given as to why the said DD Writer is not made the witness in the present case. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court "wherein it has been observed that if the investigating agency deliberately ignores to comply FIR No. 454/2014 State Vs. Wasim & Ors Page 26 of 32 with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."

13. In the present case, the above said provision appears to have not been complied with by prosecution. However, the prosecution has proved the Kayami DD entry no. 23A as Ex. PW2/A, which was regarding receipt of rukka. The prosecution has also proved DD entry no. 20A regarding receipt of information from PCR on the date of incident as Ex. PW2/C.

14. From the testimony of prosecution witnesses, particularly the investigating police officials, it is apparent that they have not made sincere efforts to join the independent public witnesses at the time of arrest of accused Imran and Wasim on 10.07.2014 and accused Sameer Sheikh on 04.08.2014. PW5 ASI Begraj stated in his cross-examination that he did not record any statement of public person from the crowd present at the spot. PW11 Ct. Ramesh Kumar had stated in his cross-examination that no notice was given to any public person who refused to join the party. PW15 Ct. Sonu Yadav had stated in his cross-examination that IO did not record the names and address of public person, who were requested by the IO to join the investigation. PW16 Ct. Umesh had affirmed that place of arrest of accused Sameer Sheikh was a crowded area. PW19 Ct. Dayalchand had also stated in his cross-examination that when they reached the spot, public persons were present there. PW20 SI Brijveer Singh had stated in his cross-examination that place of incident is FIR No. 454/2014 State Vs. Wasim & Ors Page 27 of 32 surrounded by many houses and he requested the neighbors but none came forward to join the investigation.

15. In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:

''18. It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.

16. In Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-

"It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the FIR No. 454/2014 State Vs. Wasim & Ors Page 28 of 32 relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.

17. Further, it is pertinent to note that there is nothing on record to indicate that other co-accused persons namely Wasim and Imran, had shared common intention with accused Sameer Sheikh in firing gun shot on the injured, which resulted in injury to PW1 Bahrul Sheikh on his waistline.

18. In the case of Mrinal Das Vs. State of Tripura, AIR 2011 SC 3753:(2011) 9 SCC 479: (2011) 10 SCALE 55, it was held that, "the burden lies on prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a prior concert.

19. Further, in the case of Jai Bhagwan Vs. State of Haryana, AIR 1999 SC 1083, it was held that, "to apply section 34, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, section 34 cannot be invoked".

20. Thus, the prosecution has failed to prove the fact that accused Imran and Wasim had shared common intention with accused Sameer Sheikh in causing assault upon the victim. The version of PW1 Baharul Sheikh with regard to his deposition that the accused namely, Imran and Wasim were firing in the air and after firing, they were taking out empty cartridges from their FIR No. 454/2014 State Vs. Wasim & Ors Page 29 of 32 pistol and keeping them in their shoulder bags appears to be unbelievable as he had not stated about this fact in his original statement Ex.PW1/A before the IO. Had he stated so, the IO would have made efforts to recover the shoulder bags held by accused persons as referred by him.

21. From the above stated findings, it is apparent that there are major discrepancies in the prosecution case with regard to the recovery of country made pistols and bullets from the possession of accused persons at the time of their arrest. Nevertheless, the testimony of main injured Bahrul Sheikh insofar as it relates to the incident of firing by accused Sonu whereby he has sustained injury on his waistline appears to be trustworthy and reliable. Despite the fact that there are discrepancies in the version of PW1 Baharaul Sheikh with regard to the role of accused Imran and Wasim, his entire testimony cannot be discarded.

22. At this stage, it is pertinent to refer the case of Prithi v. State of Haryana, (2010) 8 SCC 536: JT 2010 (7) SC 567:

(2010) 7 SCALE 344 that, "Evidence of a prosecution witness cannot be rejected in India merely because the prosecution chose to treat him as hostile and cross-examine him.

Evidence of such witness can not be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable or careful scrutiny thereof; Prithi v. State of Haryana, (2010) 8 SCC 536: JT 2010 (7) SC 567: (2010) 7 SCALE 344".

23. In Lella Srinivasa Rao v. State of Andhra Pradesh, AIR 2004 SC 1720, it has been held that, "The fact that witnesses have been declared hostile does not result in automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may FIR No. 454/2014 State Vs. Wasim & Ors Page 30 of 32 be taken into account while judging the guilt of an accused Lella Srinivasa Rao v. State of Andhra Pradesh, AIR 2004 SC 1720".

24. It has been held in the case of Koti Lakshman Bhai v. State of Gujarat, AIR 2000 SC 210 that, "It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence, Koti Lakshman Bhai v. State of Gujarat, AIR 2000 SC 210".

25. PW1 had also during his deposition in the Court on 27.04.2015 had shown the body part on which he had received the bullet shot by pulling out his shirt. PW3 Ms. Arjina Bibi also corroborates his version. MLC Ex. PW6/A is also consistent with the ocular account of PW1.

DECISION OF THE COURT

26. It is well settled that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. Therefore, on the basis of the material available on the record, the case of the prosecution becomes doubtful with regard to accused Wasim and Imran and the benefit of doubt certainly goes in favor of the accused. Accordingly, taking into consideration the facts and circumstances of the case, accused persons namely Wasim and Imran are hereby acquitted from the charges punishable u/s 307/34 IPC and 25 of Arms Act. Accused Sameer Sheikh @ Sonu is also acquitted from the charge punishable u/s 25 Arms Act. However, the prosecution has proved the fact that on 08.04.2014 at about 5:20 pm, at the corner of gali No.13, C-Block, Shastri Park had fired gunshot upon injured Baharul Sheikh with such intention or FIR No. 454/2014 State Vs. Wasim & Ors Page 31 of 32 knowledge, and under such circumstances that, if by that act the accused had caused death of complainant Baharul Sheikh, he would have been guilty of murder. Accordingly, the accused Sameer Sheikh is hereby convicted of the charge with respect to offence punishable u/s 307/34 IPC. Let the convict Sameer Sheikh @ Sonu be heard on the quantum of sentence and grant of compensation on the next date of hearing.

ANNOUNCED IN THE OPEN COURT                    PANKAJ   ARORA

ON 22-08-2023                                  ARORA    Date:
                                                        2023.08.24
                                                        16:47:38 +0530


                                 (PANKAJ ARORA)
                   ADDL. SESSIONS JUDGE-04: NORTH-EAST/
                                KARKARDOOMA/22-08-2023




FIR No. 454/2014       State Vs. Wasim & Ors              Page 32 of 32