Delhi District Court
Ps Khajuri Khas State vs . Sameer @ Allauddin Page No. 1 on 31 January, 2020
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-03
(NORTH-EAST), KARKARDOOMA COURTS, DELHI
PRESIDED BY: LALIT KUMAR
SC No. 03/2017
FIR No. 625/2016
PS Khajuri Khas
U/s 302 IPC & u/s 25/27 Arms Act.
STATE
Versus
Sameer @ Allaudin
S/o Abdul Wahid
R/o H. No. 1544, Gali no.16,
New Mustafabad, Delhi.
Date of Committal : 03.01.2017
Date of Arguments : 07.12.2019
Date of Pronouncement : 31.01.2020
JUDGMENT :
1. Brief facts: That on 24.08.2016 at about 12 noon on receipt of DD No.11A regarding admission of injured in GTB hospital by Allauddin Saifi and Abid, who had sustained bullet injury, SI Arjun Singh alongwith Const.
FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 1 Ashok reached at GTB hospital and collected MLC of injured Firoz, who was declared brought dead by the doctor. He noticed bullet entry wound on the chest of the deceased Firoz. He search for Allauddin Saifi and Abid but they were not found in hospital, however, Smt. Gulshan wife of deceased Firoz was found present there. He recorded her statement, made endorsement on it and prepared rukka. Same was sent to PS for registration of FIR. He had informed the matter to PS to inform the crime team officials. SHO Inspector Yogesh Malhotra alongwith staff reached at GTB hospital. In the meantime, Sameer @ Allauddin and his friend Abid came there. IO / SHO Insp. Yogesh Malhotra interrogated Sameer @ Allauddin and Abid, accused Sameer accepted his involvement in the crime. Thereafter, IO / Insp. Yogesh Malhotra, SI Arjun, Crime Team Officials alongwith accused Sameer @ Allauddin and Abid left GTB hospital and reached at the spot i.e. workshop of Sonu in gali no.3, Tukmirpur, Delhi, where IO had conducted investigation and crime team did its work. IO also met there with public witnesses Sonu and Amit. Thereafter, IO and SI Arjun alongwith Abid, Amit, Sonu and accused Sameer @ Allauddin reached at PS. IO recorded statement of Amit, Sonu and Abid wherein they disclosed the name of Sameer @ Allauddin as accused of alleged offence. IO interrogated accused Sameer and arrested him in this case. IO has also recorded disclosure statement of accused Sameer @ Allauddin. Thereafter, IO had completed the investigation of this case and filed the charge-sheet against accused Sameer @ Allauddin which was sent to court for trial.
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
FIR No. 625/16PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 2 Charge 3 Charges under Section 302 IPC and 27(1) and 27(2) of Arms Act was framed against accused Sameer @ Allauddin vide an order dated 18.01.2017, to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE 4 To prove the allegations, prosecution has examined following witnesses:
MATERIAL WITNESS
5 PW-6 Vikas is the owner of property in which Sonu Verma is tenant where the alleged incident was occurred. He denied that it came into his notice on the day of incident that Allauddin, who was working in that factory, had shot fire on contractor Firoz and he turned hostile on this aspect and was cross examined by Ld.Addl.PP for the State.
6 PW-9 Arshad Ali @ Lakki. He was labour in the factory of Sonu where his friend Firoz was also working and the alleged incident had happened. PW-9 did not support the case of prosecution, turned hostile on the aspects of causing injury to deceased, identity of accused and he was cross examined by Ld. Addl.PP for the State.
7 PW-10 Sonu Verma. He alongwith his business partner Rajesh were running the business to get prepared wooden boxes for gramophone (lakri ki petiyan) at Jaal Wali Building, Gali no.3 near LRK School, Tukmeer Pur, Delhi in the year 2016. Firoz was their expert worker and Abid Ali, Amit Kumar and Arshad Ali were also their workers. Sameer @ Allauddin was not doing the work in their factory. PW-10 did not support the case of FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 3 prosecution, turned hostile on the aspect of causing injury to deceased and was cross examined by Ld.Addl.PP for the State.
8 PW-15 Smt. Gulshan, wife of deceased. She deposed that police met her in GTB hospital and recorded her statement Ex.PW15/A. She did not support the case of prosecution, turned hostile and was cross examined by Ld.Addl.PP for the State.
9 PW-16 Amit Kumar also not supported the case of the prosecution, turned hostile and was cross examined by Ld. Addl. PP for the State.
10 PW-17 Abid Ali also not supported the case of the prosecution, turned hostile and was cross examined by Ld. Addl. PP for the State.
POLICE AND OTHER WITNESS 11 PW-1 Dr. Vishwajeet Singh was senior demonstrator in Forensic Medicine Department and on 25.08.2016 he had conducted postmortem examination on the body of deceased Firoz. He proved postmortem report Ex.PW1/A which bears his signatures and same is as under:
Postmortem- The deceased Firoz was brought dead to the hospital. His postmortem examination was conducted on 25.08.2016 by Dr. Vishwajeet Singh.
General Observation- Dead body of one adult male wrapped in white sheet and wearing gray pyjama, brown underwear, multicolour full sleeve check shirt and white banyan. Blood stains over body and clothes at places. Rigor Mortis developed over whole body. Postmortem staining present over back and fixed. Tear of size 0.5 x 0.4 cm over lateral side of right arm sleeve of shirt and labelled as no.1. Tear of size 1.7 x 0.4 cm FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 4 over medial side of right arm sleeve of shirt and labelled as no.2. Tear of size 0.9 x 0.4 cm over front of right side shirt and labeled as no.3. Tear of size 1.3 x 1.0 cm over front of right side banyan. Tears present over clothes corresponds with injury no.1.
External Injuries- Firearm entry wound of size 0.7 cm diameter is present over antero-lateral aspect of right side arm, 18.0 cm below shoulder top and 125.0 cm above right heel with abraded collar of size 0.6 cm, more towards lateral aspect. Wound goes deep lacerating underlying soft tissues, muscles and makes an exit would with everted margins and of size 0.6 cm diameter over antero-medial aspect of right side arm. Blackening of margins at entry wound present. Wound further does deep making a firearm entry wound of size 0.6 cm diameter over right side front of chest with abraded collar of size 0.4 cm, more towards lateral side. Wound over right side chest is 10.0 cm from mid-line and 131.0 cm above right heel. Wound goes deep lacerating underlying soft tissues, muscles, 5th intercostal space in mid-clavicular line on right side, right side pleura, right lung through and through, pericardium, heart through and through, left side 5th intercostal space in mid-axillary line, overlying left side muscles and entering into overlying soft tissues of left lateral side chest, at level of 20.0 cm from mid-line and 7.0 cm below axilla in mid-axillary line where a metallic, jacketed, golden colour bullet of size 1.2 x 0.7 cm is found. Bullet is marked 'X' at base, preserved, scaled and handed over to IO. Chest cavity contains about 3 liters blood and blood clots. Reddish abrasion 1.5 x 0.6 cm over left side face, 5.0 cm from midline and 3.5 cm below left eyebrow.
Reddish abrasion 0.2 x 0.2 cm over left forehead, 6.0 cm from midline and 0.6 cm above left eyebrow.
Internal Examination- Scalp - NAD, Skull - NAD, Brain - 1016 gms, FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 5 Pale, Neck - NAD, Chest cavity contains about 3 litres blood and blood clots. Rib cage - As mentioned injury no.1. Lungs - Right - 318 gms, Left 302 gms. Pale, as mentioned earlier. Heart - 196 gms, Pale, as mentioned earlier. Stomach - Contains about 20 ml yellowish fluid, walls - NAD. Intestine - distended due to putrifying gases. Liver - 989 gms, pale, greenish discolouration of inferior surface. Kidney - Right - 95 gms. Left - 94 gms. (Pale). Urinary Bladder - NAD. Pelvis - NAD. Articles preserved- Sealed envelope contained blood on gauze, sealed pulinda containing clothes, sealed bottle containing bullet found from body of deceased and Sample seal.
Opinion- Time since death was about one day.
Cause of death- Haemorrhagic shock as a result of antemortem injury to chest produced by projectile of a firearm. Injury No.1 is sufficient to cause death in ordinary course of nature. Injury no.2 and 3 are produced by blunt force impact. All injuries were antemortem in nature.
12 PW-2 Dr. Naveen Kumar, on 24.08.2016 he had examined the injured Firoz who was brought by Allauddin Saifi in main casualty in unconscious and unresponsive state with alleged history of firearm injury at around 9.30 am. He examined Firoz and declared him brought dead. He has also proved MLC of deceased Firoz as Ex.PW2/A. 13 PW-3 HC Sube Singh member of District Mobile Crime Team on 24.08.2016, he alongwith crime team incharge reached in GTB hospital and took 15 photographs of dead body. Thereafter, they were taken to spot i.e. inside the factory bearing Khasra no.473, Gali no.3, Village Tukmir Pur, Delhi where he also took 23 photographs of the spot from different angles. He has proved photographs Ex.PW3/A-1 to Ex.PW3/A-38. He has also FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 6 proved certificate u/s 65B of Indian Evidence Act as Ex.PW3/B. 14 PW-4 Insp. Mahesh Kumar, Draftsman Crime Branch, on 15.10.2016, he alongwith Insp. Yogesh Malhotra reached at spot i.e. factory of Sonu Verma, room no.3 & 4, Jaal Wali Building, Gali no.3, Tukhmir Pur, Delhi where he had taken rough notes and measurements at the instance of Sonu Verma and prepared scaled site plan in presence of Insp. Yogesh Malhotra. On 19.10.2016 he prepared scaled site plan in his office. He has proved the same as Ex.PW4/A. 15 PW-5 SI Gabruddin. On 24.08.2016 he was working as Duty Officer at the PS from 08:00 am to 04:00 pm. At about 12 noon on receipt of information from GTB hospital regarding bringing of injured Firoz in GTB hospital by Allauddin and Abid for medical examination, he recorded DD No.11A and proved copy of same as Ex.PW5/A. At about 2.40 pm on the basis of rukka (Ex.PW5/B) recorded by SI Arjun, he recorded DD No.18A and after going through the rukka, he made endorsement on the rukka which is Ex.PW5/C. He got FIR registered through computer operator u/s. 302 IPC and 27 of Arms Act. Copy of said FIR is Ex.PW5/D. 16 PW-7 Const. Sant Ram, on 07.09.2016 at the directions of IO, he took three sealed parcels containing exhibits and one sample seal and forwarding letter etc from MHC(M) and deposited the same in CFSL vide road certificate no.63/21/16 Ex.PW7/A and obtained receipt from there which he had handed over to MHC(M). He further deposed that nobody tampered the aforesaid sealed parcels till remained in his custody.
17 PW-8 Const. Nishu on 20.09.2016, at the directions of IO, he took FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 7 three sealed parcels containing exhibits and one sample seal and forwarding letter etc from MHC(M) and deposited the same in CFSL vide road certificate no.74/21/16 Ex.PW8/A and obtained receipt Ex.PW8/B from there which he had handed over to MHC(M). He deposed that nobody tampered the aforesaid sealed parcels till remained in his custody.
18 PW-11 HC Nem Pal Singh, duty constable in GTB Hospital, deposed that on 24.08.2016 at about 12 noon one Firoz was brought in injured condition by Allauddin Saifi and Abid for medical examination, who was declared brought dead by the doctor. He passed on information to this effect to PS Khajuri Khas upon which DD No.11A was recorded by Duty Officer. He produced personal search articles of deceased i.e. one key of motorcycle, sum of Rs.60/- and one mobile phone to SI Arjun Singh in presence of Const. Ashok and same were seized by SI Arjun Singh vide seizure memo Ex.PW11/A. 19 PW-12 SI Manish Tyagi, he joined the investigation of this case with IO Insp. Yogesh Malhotra on 25.08.2016 and reached at spot i.e. factory where incident had taken place known as Jaal Wali Building, Gali no.3, Tukmirpur where one Sonu Verma met them. IO had inspected the place of incident in his presence and in his presence one fired cartridge case was found at the spot. IO measured the cartridge case and prepared its sketch Ex.PW10/D bearing his signatures at point B. IO kept the same in cloth piece and prepared pullanda and sealed with the seal of 'YM', thereafter seized the same vide seizure memo Ex.PW10/E which also bears his signatures at point B. Seal after use was handed over to constable who was already present alongwith other beat officials. He identified the case property i.e. cartridge case as Ex.P-1.
FIR No. 625/16PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 8 20 PW-13 Insp. E.S. Yadav, I/C District Mobile Crime Team on 24.08.2016, on receiving information from Control Room, he alongwith photographer HC Sube Singh and crime team proficient ASI Surender Prasad reached at GTB hospital where Insp. Yogesh Malhotra met them, where they saw dead body lying on a stature having bullet injury on his chest. He had inspected the dead body and photographer had taken 15 photographs Ex.PW3/A-1 to Ex.PW3/A-15. Thereafter they went alongwith police officials at place of occurrence at Khasra no.473, Gali no.3, Jaal Wali Building, Tukmirpur, Delhi where he inspected place of incident and photographer had taken photographs Ex.PW-3/A-16 to Ex.PW-3/A-38. He also prepared his SOC report Ex.PW13/A and advised to get conducting postmortem examination to find out cause of death.
21 PW-14 Const. Ashok Kumar on 24.08.2016 on receiving DD No.11A he alongwith SI Arjun Singh went to GTB Hospital where SI Arjun collected MLC Ex.PW2/A of deceased Firoz who was brought to hospital in injured condition and doctor declared him brought dead. Wife of deceased namely Smt. Gulshan met them in GTB hospital, IO interrogated her and recorded her statement wherein she had named Allauddin for causing bullet injuries to her husband. SI Arjun prepared rukka Ex.PW5/B which he took to PS and presented before Duty Officer SI Gabruddin who got registered FIR Ex.PW5/D and handed over rukka and copy of FIR to him to be handed over to IO Insp. Yogesh Malhotra in GTB hospital. He did so. He joined investigation of this case with IO and SI Arjun. Accused Samir @ Allauddin, led them at spot i.e. ground floor of the factory of wooden work, Jaal wali builidng Tukmeer Pur, Delhi which belongs to one Sonu and contractor Firoz was running his wooden work there in those days. IO FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 9 inspected the spot, crime team officials were called. Nothing incriminating could be found there. Photographs were taken by the photographer at spot, that photographer had also taken photographs of dead body in hospital. Sonu, owner of premises met them at the spot. IO inspected the spot on the pointing out of Sonu and prepared site plan. Sonu had claimed to be material witness of the present case. Thereafter, they reached at PS alongwith Samir @ Allauddin. One Amit also reached at PS, he was also interrogated by the IO as he claimed to be eye witness of the incident. Thereafter, accused Samir @ Allauddin was arrested vide arrest and personal search memo Ex.PW14/A and Ex.PW14/B. IO interrogated the accused and also recorded his disclosure statement. Accused led police officials at his house at 1544, Gali no.16, New Mustafabad for recovery of pistol, from where accused picked up pistol from the almirah of his room at ground floor of his house which was lying under the clothes. IO checked the same and prepared its sketch. IO converted the same into cloth parcel and sealed with the seal of YM and seized, wife of accused namely Sabista had also put her signatures on the said seizure memo. Seal after use was handed over to him.
On 02.09.2016 he collected 3 sealed parcels containing clothes of deceased, blood on gauze of deceased and bullet led taken out from body of deceased from doctor alongwith two sample seals and produced the same before IO at PS, same were seized vide memo Ex.PW14/B. He identified pistol Ex.P-2.
22 PW-18 SI Arjun Singh was the initial IO of this case and he has proved copy of DD no.11 A Ex.PW5/A, MLC of deceased Ex.PW2/A, statement of Smt. Gulshan Ex.PW15/A and rukka Ex.PW18/A, disclosure statement of accused Ex.PW18/B, sketch of weapon Ex.PW18/C and its FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 10 seizure memo Ex.PW18/D, seizure memo of shirt of PW Abid having blood Ex.PW18/E. He also proved case property i.e. pistol Ex.P-2, clothes belong to deceased Firoz Ex.P3 (colly), T-shirt belongs to witness Abid Ex.P-4 and mobile phone, cash and key of motorcycle of deceased Firoz as Ex.P-5 (colly).
23. PW-19 Insp. Yogesh Malhotra was the IO of this case. He has proved rukka Ex.PW18/A, copy of FIR Ex.PW5/D, DD No.11 A Ex.PW5/A, MLC of deceased Ex.PW2/A, photographs of deceased's body Ex.PW12/A-1 to Ex.PW12/A-15 and photographs of spot Ex.PW3/A-16 to Ex.PW3/A-38, arrest memo and personal search memo Ex.PW14/A and Ex.PW14/B, disclosure statement of accused Ex.PW18/B, site plan Ex.PW19/A, sketch of recovered pistol Ex.PW18/C and its seizure memo Ex.PW18/D and case property i.e. pistol Ex.P-2. He has further proved statement of Shahid Khan and Sehroj Ex.PW19/A-1 and Ex.PW19/B, inquest form 25.35 Ex.PW19/C, request for postmortem examination Ex.PW19/D, original emergency registration card of deceased Ex.PW19/E, receipt of releasing the dead body of deceased to its legal heirs Ex.PW19/F, seizure memo of pullanda of T-shirt Ex.PW18/E, CFSL report dt. 25.01.2017 Ex.PW19/F, sanction u/s 39 Arms Act to prosecute accused for offence u/s 25 of Arms Act dt. 16.04.2017 Ex.PW19/G, two reports of biology division dt. 30.11.2016 prepared by Kaushal Kumar Ex.PW19/H-1 and Ex.PW19/H-2 and request letter Ex.PW19/I.
24. PW-20 Sh. Kaushal Kumar, Jr. Forensic / Chemical Examiner (Biology), FSL Rohini, Delhi has proved his report dt. 30.11.2016 Ex.PW19/H-1 and Ex.PW19/H-2 and forwarding letter Ex.PW20/A. FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 11
25. PW-21 Ms. Babit Gulia, SSO-II (Ballistic) CFSL, CBI, Delhi, he has proved his detailed report dt.25.01.2017 as Ex.PW19/F and case property Ex.P-1, P-2 and P-5 respectively.
26. PW-22 Sh. Devender Arya, DCP/ South, Delhi has proved sanction report Ex.PW19/G. STATEMENT OF ACCUSED 27 Thereafter, PE was closed and statement of the accused under Section 313 Cr.P.C has been recorded wherein he pleaded his innocence and denied all the allegations leveled against him.
APPRECIATION OF ARGUMENETS AND EVIDENCE 28 I have heard the arguments advanced by Sh. D.K. Singh, Ld. Addl. PP for the State and Sh. M.R. Chanchal, Ld. Counsel for accused as well as perused the record carefully.
29 Prosecution has based its case upon the eye witnesses PW-9 Arshad Ali @ Lakki, PW-10 Sonu Verma, PW-16 Amit Kumar and PW-17 Abid Ali.
It is the case of the prosecution that on 24.08.2016 at about 9.30 pm at Gali no.3, Jaal Wali Building, Factory of Sonu and Rajesh, Tukmirpur, Delhi accused committed murder of Firoz by causing gunshot injury by using a country made pistol which is a prohibited arms or ammunition which he retained and used in contravention of Section 5 of Arms Act.
FIR No. 625/16PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 12 LAW RELATING TO EYE WITNESS' TESTIMONY 30 Before proceeding to discuss the occular evidence of PW-9 Arshad Ali @ Lakki, PW-10 Sonu Verma, PW-16 Amit Kumar and PW-17 Abid Ali, the legal position in that regard may be recapitulated in brief. The settled legal position is that the Court must attempt, while appreciating the evidence of a witness, separate the truth from falsehood and not reject an eye witness testimony entirely only because there are some embellishments. In Ugar Ahir vs State of Bihar AIR 1965 SC 277, the Supreme Court explained the legal position as under:
"the maxim falsus in uno, falsus in omnibus false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinize the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it can not obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
31 Further as explained in State of U.P vs Krishna Master 2010 VIII AD(SC) 401-AIR 2010 SC 3071, the Supreme Court emphasized that 'it is the duty of the Court to separate falsehood from the truth, in sifting the evidence'.
32 At the same time, the eye witness testimony must be credible and reliable. It should not be contradicted by other eye witnesses or by the medical and forensic evidence, if any. The Court should also take into account the possible pressure that may be brought upon prosecution witnesses arising out of the vulnerable position vis-a-vis the police.
33 It may be seen that prosecution has based its case only on the eye witnesses i.e. PW-9 Arshad Ali @ Lakki, PW-10 Sonu Verma, PW-16 Amit FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 13 Kumar and PW17 Abid Ali but they did not disclose as to how deceased Firoz received gunshot injury and they also did not describe the role of accused Sameer @ Allauddin in the offence and turned hostile. They have also not supported the case of the prosecution on material aspects despite cross examined by Ld.Addl.PP for the State.
34 PW-9 Arhad Ali @ Lakki deposed that he was working as labour in the factory of Sonu at Gali No.3, known as Jaal Wali Building, Tukmeer Pur, Delhi where his friend Firoz was also working. Sonu and Rajesh, both are the co-owners of the factory. He had joined aforesaid factory one and half month ago from the date of incident. He further deposed that on 24.08.2016 at about 11 am he reached at his factory and came to know that Firoz had sustained bullet injury in the factory and he was taken to hospital. No one told him who had caused injury to Firoz. He immediately returned to his house and on next day he was called at PS where his name, parentage and address were noted down by the police officials. Thereafter, he returned to his home.
In cross examination by Ld. Addl. PP for the State, PW-9 Arshad Ali @ Lakki denied that on 24.08.2016 at about 9.20 am he was present at the aforesaid factory at Tukmeer Pur or that at that time, one Amit Kumar was cleaning the floor of the factory or that at that time, their contractor Firoz and Abid Ali reached there and confronted with statement Ex.PW9/A from portion A to A where it was so recorded.
PW-9 Arshad Ali @ Lakki further denied that accused Sameer @ Allauddin, who was also working in the said factory, came there or that he had brought Guava or that he had sent Abid upstairs to bring the knife for cutting the Guava or that in the absence of Abid, accused Sameer took out a silver colour pistol and aimed the same towards Firoz or that in the FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 14 meantime factory owner Sonu came there or that he (PW9) went outside the factory for urination and confronted with statement Ex.PW9/A from portion B to B where it was so recorded.
PW-9 Arshad Ali @ Lakki further denied that when he returned back to his factory then he had seen that injured Firoz was taking by Abid Ali and accused Sameer @ Allauddin on motorcycle or that later on it came into his notice that accused Sameer @ Allauddin had caused bullet injury to Firoz as a result of which he was declared dead in the hospital and confronted with statement Ex.PW9/A from portion C to C where it was so recorded.
PW-9 Arshad Ali @ Lakki further denied that accused Sameer @ Allauddin had caused bullet injuries to Firoz with an intention to kill. He denied that he was intentionally not supporting the prosecution case by turn that he was not present at the time of incident.
35 PW-10 Sonu Verma deposed that he and Rajesh are running their business to get prepared wooden boxes for gramophone at Jaal Wali Building, Gali no.3 near LRK School, Tukmeer Pur, Delhi. Firoz was their expert worker, he used to assist them for aforesaid work. Abid Ali, Amit Kumar and Arshad Ali were also doing the work under the supervision of aforesaid contractor Firoz. Sameer @ Allauddin was not doing the work in their factory. He further deposed that on 24.08.2016 at about 10.15 am he reached at his factory and saw Firoz lying on the floor of factory. One pistol was also lying near Firoz. Sameer @ Allauddin (accused) and Abid took injured Firoz to hospital for medical examination as Firoz had sustained bullet injuries. On the same day, at about 9.30 am Sameer @ Allauddin had visited his house and demanded a sum of Rs.5000/- from him. He stated that he was not having money and on reaching at factory, he would FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 15 give him a sum of Rs.5000/- on receiving payments from customers. He left his factory and reached GTB hospital where he came to know that Firoz was declared dead by the doctor. On the same day at about 10.20 am, he received phone call of Firoz's wife and he told her that Firoz had sustained injuries in the accident and asked her to reach at hospital. She had come at GTB hospital in his presence. Police met him there and he was brought at PS Khajuri Khas where accused Sameer @ Allauddin was also brought by the police from GTB hospital alongwith him to PS Khajuri Khas. Thereafter they reached at the spot where police officials had made search of his work place. One pistol was lying on the floor of their factory which was lifted by the police. One fired cartridge case was found to police from the corner of his work place. Pistol and fired cartridge case were taken by police but he did not remember the name of that police official. He further deposed that he could identify the fired cartridge case and pistol. PW-10 did not support the case of prosecution, turned hostile on the aspect of causing injury to deceased and was cross examined by Ld. Addl. PP for the State.
In cross examination by Ld. Addl. PP for the State, PW-10 Sonu Verma admitted that police had recorded his statement on 24.08.2016, however he volunteered deposed that police had recorded his statement once. He denied that accused Sameer @ Allauddin had worked in the factory under the supervision of contractor Firoz in the year 2016 when Abid Ali and Amit were also working there. He was confronted with statement Ex.PW10/A from point A to A where it was so recorded.
PW-10 Sonu further denied that on 24.08.2016 at about 9.30 am, he had reached at his factory or that he had seen accused present in court there or that he had seen pistol in the hand of accused or that in his presence accused fired on Firoz or that Firoz sustained bullet injury as a FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 16 result of which he declared dead. He was confronted with statement Ex.PW10/A from portion B to B where it was so recorded.
PW-10 Sonu admitted that injured Firoz was taken by accused and Abid by motorcycle to hospital. However, he denied that he had asked from accused Sameer why he did so then he produced accused before police. Witness was confronted with statement Ex.PW10/A from portion C to C where it was so recorded.
PW-10 Sonu denied that he had not seen pistol lying near injured on the floor of factory or that pistol had not been taken into possession by police in his presence from his factory. He denied that police had made search of pistol at his work place or that police had recorded statements of Amit Kumar and Abid Ali in his presence. He was confronted with statement Ex.PW10/A from portion D to D where it was so recorded.
PW-10 Sonu denied that his supplementary statement was recorded on 24.08.2016. He denied that accused present in court was arrested at about 9.10 pm at PS Khajuri Khas or that he had joined investigation with police on that day after arrest of accused or that accused led them and police officials at the place of incident or that accused pointed out the spot or that pistol could not be recovered from his work place despite efforts made by police or that police had prepared site plan of place of incident. He was confronted with supplementary statement Ex.PW10/B from portion A to A where it was so recorded.
PW-10 Sonu further denied that police had recorded his supplementary statement on 25.08.2016. He further denied that police had taken measurements of fired cartridge case recovered from his work place i.e. spot or that IO had put fired cartridge case in a transparent plastic small jar or that same was sealed with the seal of YM or that police had prepared its sketch or that police had also prepared seizure memo FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 17 pertaining to aforesaid sealed parcel. He was confronted with supplementary statement dated 25.08.2019 Ex.PW10/C from portion A to A where it was so recorded. However, he volunteered deposed that police had recovered fired cartridge case and same was taken by police to PS in unsealed condition alongwith pistol. On seeing sketch of fired cartridge case Ex.PW10/D, he admitted his signature on it at point A. On seeing seizure memo of fired cartridge case Ex.PW10/E, he admitted his signature on it at point A. PW10- Sonu denied that aforesaid sketch Ex.PW10/E and seizure memo Ex.PW10/E were prepared at spot in his presence. He further denied that his supplementary statement was also recorded in this case by IO on 15.10.2016. He further denned that on that day he had been called by IO at spot or that draftsman Insp. Mahesh Kumar had taken rough notes and measurements of his work place where incident had taken place. He was confronted with supplementary statement dated 15.10.2016 from portion A to A where it is so recorded.
PW-10 Sonu further denied that he was deposing falsely to save the accused as he had been won over by accused. He identified one fired cartridge case Ex.P-1 having FSL number saying that it is the same fired cartridge case which was lifted by police from the corner of his work place where some raw material (burada) was lying.
36 PW-16 Amit Kumar deposed that on 24.08.2016 he was doing wooden work in the aforesaid factory of Sonu Verma where Abid Ali, Arshad Ali and some other boys were also doing the work of prepare wooden boxes for Gramophone. Firoz was the contractor in those days. At about 9/10 am, he had cleaned the floor of the portion where they used to work and thereafter he went upstairs and reached at roof of their factory.
FIR No. 625/16PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 18 He got down from the roof after about 30 minutes and he noticed that Firoz (deceased) was being taken by two / three persons somewhere. Again said, Firoz was taken to hospital. Some persons present outside their factory were saying that Firoz was electrocuted. He did not know the other facts of this case. However, it came into his notice later on that Firoz was declared dead by the doctor on that day. He further deposed that accused Sameer @ Alladuddin present in court is known to him. He was on visiting terms at aforesaid factory but he was not doing the work with them. PW-16 did not support the case of prosecution, turned hostile on the aspect of causing injury to deceased and was cross examined by Ld. Addl.PP for the State.
In cross examination by Ld. Addl. PP for the State, PW-16 denied that police had visited the factory or that his statement was recorded in this case on 24.08.2016. He further denied that on the day of incident i.e. 24.08.2016 at about 9 am he had reached at his work place or that at about 10 am he was present alongwith Abid Ali, Arshad Ali and accused Sameer @ Allauddin there or that accused Sameer @ Allauddin had brought Guava or that accused Sameer @ Allauddin had directed Abid Ali to bring a knife to cut the Gauva. He was confronted with statement Ex.PW16/A from portion A to A where it was so recorded.
PW-16 further denied that accused took out silver colour pistol from his pocket or that caused gun shot injury to Firoz in his presence or that at the same time, factory owner Sonu Verma came at the spot or that Sonu Verma had tried to lift injured Firoz or that he could not succeed or that he went outside the factory as stated by him to police. He was confronted with statement Ex.PW16/A from portion B to B where it was so recorded.
PW-16 further denied that he called Abid Ali and he came from upstairs or that he lifted the injured Firoz and took him to the hospital with FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 19 the help of accused Sameer as stated by him to the police. He was confronted with statement Ex.PW16/A from portion C to C where it was so recorded.
PW-16 further denied that injured Firoz had sustained bullet injuries on his shoulder which had been caused by accused present in court in his presence. He denied that he was deposing falsely.
37 PW-17 Abid Ali deposed that he was doing the wooden work as contractor in the aforesaid workshop of Sonu Verma where some other boys were also doing the work to prepare wooden boxes for gramophone. He further deposed that one Firoz was also running his wooden work as contractor alongwith some other boys in the same factory. Amit Kumar and Arshad were also doing the wooden work there under the supervision of contractor Firoz. He further deposed that on 24.08.2016 at about 9/10 am he was present in the aforesaid factory and at that time, Sameer @ Allauddin, present in court, had come in the factory having Guava in his hand. In the meanwhile, he (PW-17) went upstairs to bring a knife to cut the guava and when he returned at the ground floor, he found lying Firoz on the floor of the factory and Sameer was present there and he lifted Firoz and thereafter injured was taken by him and Sameer @ Allauddin by bike to GTB hospital. PW-17 further deposed that he had not noticed blood either on the clothes of Firoz or on the floor where Firoz was lying. He was not aware as to what had happened with him. Doctor had declared Firoz dead when he (PW-17) and Sameer took him to GTB hospital. Police officials of PS Khajuri Khas reached at GTB hospital and overpowered him (PW-17) and Sameer @ Allauddin and took them to PS Khajuri Khas and they remained in the lockup whole night. On following day, he was released by the police officials and Sameer @ Allauddin was booked in FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 20 the present case. PW-17 did not support the case of prosecution, turned hostile on the aspect of causing injury to deceased and was cross examined by Ld.Addl.PP for the State.
PW-17 Abid Ali denied that his statement was recorded in this case on 24.08.2016. He further denied that he intentionally not supported the prosecution case by taking turn in favour of accused Sameer @ Allauddin.
PW-17 Abid Ali denied that accused Sameer @ Allauddin had fired at Firoz as told to him by Amit as stated by him in his statement recorded by police. He was confronted with statement Ex.PW17/A from portion A to A where it was so recorded.
PW-17 Abid Ali further denied that he had taken injured Firoz to GTB hospital by a TSR from Bhajanpura or that accused Sameer @ Allauddin had reached at hospital by his bike as stated by him to police in his statement. He was confronted with statement Ex.PW17/A from portion B to B where it was so recorded. However he had voluntarily deposed that he and accused had taken injured Firoz by bike to GTB hospital.
PW-17 Abid Ali further denied that factory owner Sonu Verma had come at the spot just after the incident as stated by him to police in his statement. He was confronted with statement Ex.PW17/A from portion C to C where it was so recorded. However he had voluntarily deposed that Sonu had come near the pot when the injured was being taken by them.
PW-17 Abid Ali further denied that Sonu had reached in GTB hospital or that he had slapped accused saying that "tune Firoz ko gli kyon maari". He was confronted with statement Ex.PW17/A from portion D to D where it was so recorded. He further denied that he was deposing falsely to save the accused.
Since PW-9 Arshad Ali @ Lakki, PW-10 Sonu Verma, PW-16 Amit FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 21 Kumar and PW-17 Abid Ali have turned hostile on the point of involvement of the accused in incident and also on the role of the accused despite cross examined by Ld. Addl. PP. Moreover, nothing substantial has come out which would support the case of the prosecution.
FORENSIC REPORT:
38 Further, it may be seen that in the present case, IO PW-19 Inspector Yogesh Malhotra sent sealed parcels containing exhibits including country made pistol to FSL, Rohini and vide ballistic report dt. 25.01.2017 Ex.PW-19/F, but PW-21 Ms. Babita Gulia, SSO-II (Ballistic) VFSL deposed that no opinion could be found regarding linkage of 7.65 mm cartridge case marked C/1 with respect to the aforesaid country made pistol marked W/1 due to lack of sufficient comparable characteristic marks as the cartridge was found with blown off percussion cap. Thus, as per the ballistic expert report, prosecution has failed to connect the alleged country made pistol and cartridge with the alleged offence, benefit of which goes to the accused.
UNPROVED SITE PLAN 39 It is interesting to note that site plan drawn up of the place where the incident had taken place, raises more question than provides answers. In the scaled site plan Ex.PW-4/A which was prepared by Draftsman at the instance of IO, it finds mention that letter 'A' is the place where accused Allauddin @ Sameer fired at Firoz, but in the site plan Ex.PW-19/A, letter 'A' shows the place where deceased Firoz was sitting. It may further be seen that in the scaled site plan Ex.PW-4/A, letter 'B' denotes the place where Firoz hit by bullet and fell down, but in the site plan Ex.PW-19/A, letter 'B' shows the place where accused Allauddin @ Sameer was sitting.
FIR No. 625/16PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 22 40 Further, in the scaled site plan Ex.PW-4/A, letter 'C' denotes the position of Arshad Ali @ Lucky, letter 'D' where Sonu Verma witnessed the incident and letter 'E' place where IO recovered an empty cartridge KP 7.65 in the wooden 'Burada', but site plan Ex.PW-19/A does not find mentioned about point C, D and E. 41 PW-19 Insp. Yogesh Malhotra deposed that he had prepared the site plan of the place of incident at the instance of Sonu Verma, whereas PW-10 Sonu Verma in his entire deposition nowhere stated this fact. Moreover, if the IO had prepared the site plan at the instance of PW Sonu Verma then he should have obtained his signature on it, which raises the doubt on preparation of site plan at he instance of Sonu by the IO therefore preparation of Ex.PW19/A raised doubt.
42 Moreover, in the scaled site plan Ex.PW-4/A, there is mention of factory of Mohd. Irshad, whereas in the unscaled site plan Ex.PW-19/A the same does not find mention. In the unscaled site plan Ex.PW-19/A, there is mention of L.R Public School which has not been depicted by the draftsman in the scaled site plan Ex.PW-4/A. It is very strange that if the site plan Ex.PW-19/A has been prepared on the basis of scaled site plan Ex.PW-4/A then how the said things/places have not been indicated by the IO. Reliance can be made in State of Madhya Pradesh vs Puran (2003) 12 SCC 485 wherein the Supreme Court held that the failure to mention the existence of articles in the site plan created a doubt as to the possibility of there being such articles for identification. Therefore, the site plan does not give any help to the prosecution.
FIR No. 625/16PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 23 Unconvincing Arrest & Recovery of Pistol and Cartridge 43 As per prosecution case, accused Sameer @ Allauddin got recovered pistol from his house. However, there are material contradictions in the testimony of P.Ws on the aspect of recovery of pistol effected from the possession of accused Sameer @ Allauddin which are as under:
(a) PW-18 SI Arjun Singh during his cross examination has deposed that after arrest accused Sameer @ Allauddin led him and IO to his house bearing no.1544, Gali no.16, New Mustafabad, Delhi and got recovered pistol from the almirah which was placed on the right side room of ground floor of his house.
(b) PW-1 Dr. Vishwajeet Singh, Senior Demonstrator, Forensic Medicine Deptt. in his cross examination deposed that IO had not shown any weapon to him during course of investigation of the case. He had not given any subsequent opinion on the request of IO in this case. He could not comment upon the weapon by which bullet recovered from the body was fired.
(c) PW-6 Vikas in his cross examination deposed that he reached at the room in question in between 11 am to 12 noon. His brother Sharvan was also accompanied him. They stayed there for one hour. He deposed that in his presence, no articles were lifted and seized by the police official.
He was standing at some distance away from the room in question. Police officials had not shown fired cartridge case to him during his stay there. Police officials had not shown the pistol to him during his aforesaid stay there. On seeing the sketch of pistol Mark PW6/DA, produced by Ld. Defence Counsel, PW-6 Vikas deposed that police had not shown the pistol / weapon to him there.
(d) PW-10 Sonu Verma in his examination in chief deposed that he was FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 24 taken to spot by the police and on reaching at spot i.e. factory where the incident alleged to have been occurred. One pistol which was lying on the floor of factory which was lifted by the police. One fired cartridge case was also found to police from the corner of his work place. Pistol and fired cartridge case were taken by police official.
(e) PW-14 Const. Ashok Kumar in his examination in chief deposed that accused led police officials at his house at 1544, Gali no.16, New Mustafabad and from there accused picked up pistol from the almirh of his room at ground floor of his house.
(f) PW-17 Abid Ali in his cross examination admitted that police officials had taken him to place of incident on that night. He further admitted that on that night, police officials of PS Khajuri Khas had lifted one pistol from the corner of that room and he was not aware as to who brought the pistol in the factory.
(g) PW-18 SI Arjun Singh in his examination in chief deposed that accused led him and IO to the spot and they made search of bullet led, fired cartridge case and pistol in presence of PW Sonu but in vain. IO again interrogated accused in the factory and he disclosed that he can get recovered pistol used in crime from his house no.1544, Gali no.16, New Mustafabad, Delhi. Thereafter accused led him and IO at his aforesaid house and accused took out pistol from the almirah which was placed on the right side room of ground floor of his house and same was produced before the IO.
(h) PW-19 Insp. Yogesh Malhotra in his examination in chief deposed that accused led them at his house for recovery of weapon in pursuance of disclosure statement. They reached at the house bearing no.1544, Gali no.16, New Mustafabad, Delhi at bout 11:00 pm where accused pointed out one iron almirah lying in his room, same was opened by him, accused FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 25 picked up pistol after removing some clothes lying in his almirah and same was produced before him.
44 It may be seen that as per prosecution case, the pistol was recovered at the instance of accused Sameer @ Allauddin from his house no.1544, Gali no.16, New Mustafabad, Delhi, but no site plan of the place from where the weapon of offence i.e. pistol was recovered has been prepared, which casts doubt upon the prosecution story. In this regard, assistance can be taken from the judgment Jamuna Prasad & Anr Vs State 2018 (2) LRC 476 DEL, wherein it has been held that there was no site plan drawn for that place from where the knife / weapon of offence was recovered.
From the above contradictions of the P.Ws, the recovery of pistol from the possession of accused Sameer @ Allauddin becomes doubtful.
45 It is pertinent to mention that public persons were not joined as witnesses despite their availability by the IO at the place of incident as well as at the place of arrest and at the time of recovery of pistol and cartridge. PW-6 Vikas during cross examination has deposed that police had not called other tenants to interrogate pertaining to present incident despite their presence. PW-13 Insp. E.S. Yadav in his cross examination deposed that some public persons were present at the spot during his visit. PW-14 Const. Ashok Kumar in his cross examination admitted that he had not stated in his statement that he had requested to any public persons to join the investigation during the proceedings conducted before him. He further deposed that no neighbour / passerby were called to join sealing and seizing proceeding of this case in his presence. He admitted that house of accused was surrounded by so many houses which were occupied by so FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 26 many persons. PW-18 SI Arjun was the initial IO of this case and he submits that no public witness was called at the time of arrest of accused. This witness further deposed that on his first visit at the spot neither weapon nor fire cartridge case was found there.
46 From the testimonies of the P.Ws, it can be inferred that public witnesses were available at the place of incident and also at the place of arrest of accused but there was no explanation tendered by the IO during trial as to why they were not joined in proceedings being public place and evidence of police officials alone, unassociated by testimony of any independent witnesses does not inspire confidence.
47 Since, no public witnesses were joined at the time of arrest of the accused even number of public persons were present at the spot being a public place, even at the place of incident and arrest of accused. It is thus evident that public witnesses available could have been joined as witnesses of incident and arrest of the accused. It would have a different matter had there been no public witness available or none was willing to join. Here, as stated above, the pubic witnesses were available but no explanation on these lines is forthcoming. Thus, I am of the opinion that it would be unsafe to maintain conviction of the accused for the offences charged against him.
48 It is a settled principle of law that if witnesses are available and are not joined in the recovery proceedings then recovery proceedings itself become doubtful. I am fortified by the judgment of Hon'ble Delhi High Court reported as Ravi Kumar @ Sonu and Ors. Vs. State delivered in Crl. Appeal NO. 444/2010 on 15.05.2013 wherein it was held in paras 24 FIR No. 625/16 PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 27 and 25 that non-joining of shopkeepers though available in the recovery proceedings does not lend credibility to the prosecution story.
49 From the testimonies of the P.Ws, it can be inferred that public witnesses were available at the place of incident and also at the place of arrest of accused but there was no explanation tendered by the IO during trial as to why they were not joined in proceedings being public place and evidence of police officials alone, unassociated by testimony of any independent witnesses does not inspire confidence.
50 After having examined the testimonies of the aforesaid prosecution witnesses, which are full of contradictions, improvements and discrepancies which are material in nature and goes to t he root of the matter and shake the basic version of the prosecution case and impeach the credibility of the witnesses. The testimonies of the witnesses are not only contradictory to that made by them in their statement made to the police but also appears to be a deliberate attempt to change and improve upon on the original statement to the prejudice of the accused with read to his involvement in the alleged incident and his arrest.
51 Since the untrustworthiness of testimony of PW-6 Vikas, PW-9 Arshad Ali @ Lakki, PW-10 Sonu Verma, PW-15 Smt. Gulshan, PW-16 Amit Kumar and PW-17 Abid Ali apart from it, there are material discrepancies, improvements and contradictions in the testimony of the PWs, which touched the root of the case and totally demolished the case of the prosecution. As such, prosecution has not been able to prove its case and to connect the accused with the offence.
FIR No. 625/16PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 28 52 Keeping in view the fact and circumstances of the case, I am of the considered opinion that prosecution has failed to prove its case against the accused beyond the reasonable doubts, accordingly accused Sameer @ Allauddin is hereby acquitted of the charges u/s 302 IPC and 25/27 Arms Act. Bail bond of accused already on record is hereby extended u/s 437A Cr.PC for six months on the request of accused.
File be consigned to record room.
Digitally signed by LALIT KUMAR LALIT Location: North
East District,
KUMAR Karkardooma
Courts, Delhi
Date:
2020.01.31
18:10:51 +0530
Announced in open court (LALIT KUMAR)
on 31.01.2020 Additional Sessions Judge-03 (NE)
Karkardooma Courts, Delhi
FIR No. 625/16
PS Khajuri Khas State Vs. Sameer @ Allauddin Page no. 29