Delhi District Court
State vs . Mohd. Shakir Etc. on 22 December, 2017
IN THE COURT OF SH. M.R. SETHI
ADDL. SESSIONS JUDGE - 03 : NORTH WEST:
ROHINI COURTS : NEW DELHI
In the matter of:
State VS. Mohd. Shakir etc.
Sessions Case No. 128/13
Case ID No. : 02404R0012712012
FIR NO. : 393/11
PS : Subhash Place
Under Sec. : 302/34 IPC &
25/27/54/59 Arms Act
STATE
Versus
1) Mohd. Shakir
S/o Aflatoon
R/o M485, JJ Colony,
Shakur Pur, Delhi.
2) Hanumant @ Hemant
S/o Bhagwan Dass
R/o M504, JJ Colony,
Shakur Pur, Delhi.
3) Imran
S/o Yunish Khan @ Mohin
R/o M718, JJ Colony,
Shakur Pur Delhi.
Also at: Chuttia Baba ki Dargah,
Meera Ji Ki Chowki,
Badaun, UP. [.... Accused]
Sessions case no. 128/13 Page No. 1 of 36
Date of Institution of the case in Sessions Court : 09.02.2012
Date of conclusion of arguments : 19.12.2017
Date of Order : 22.12.2017
J U D G M E N T
1.Stated in brief, allegations against the accused persons were to the effect that on 19.10.2011 at about 11.30 pm, they all in furtherance of their common intention had committed murder of one Ram at crossing near house no. M728, Shakur pur Delhi. On basis of aforesaid allegations, charge was firstly framed against accused Mohd. Shakir on 12.04.12 for having committed offence punishable u/s 302 /34 IPC. Accused pleaded not guilty and claimed trial. As the other two accused namely Hanumant and Imran had absconded and came to be arrested only on 26.11.13, charge was framed against them on 27.05.14 for having committed offence punishable u/s 302/34 IPC. Separate charge was also framed against them for having committed offence punishable u/s 174A IPC. Both pleaded not guilty and claimed trial.
2. In order to prove its case against the accused persons, prosecution examined as many as 36 witnesses. After PE was closed, statements of accused persons were recorded u/s 313 Cr.PC.
Sessions case no. 128/13 Page No. 2 of 363. PW1 HC Rohtash proved copy of FIR Ex.PW1/A and his endorsement on rukka Ex.PW1/B.
4. PW2 Ravi @ Sonu @ Surya was the complainant in this case and one of the alleged eye witnesses. During course of his examination in chief, he did not support case of prosecution and rather claimed that it was at his house that he came to know that Ram had received gun shot injuries. He identified his signature at point mark A on statement Ex.PW2/A. Witness claimed that the incident in question did not take place in his presence. After seeking permission from the court, witness was cross examined by ld. PP and during course of his cross examination, he denied the suggestion regarding having seen the accused persons at the spot of incident. He further denied the suggestion that due to old enmity between deceased Ram and accused Hanumant, heated arguments took place between them or that they had intervened in the same. He further denied the suggestion that on instigation of accused Shakir and Imran, accused Hanumant had fired 34 gun shots from his pistol on Ram and caused gun shot injuries to him on the day of incident i.e. 19.10.2011. He further denied the suggestion that Shakir slapped him or accused Hanumant threatened him by showing the pistol or Imran threatened him to run away from the spot or else he would be killed. He denied the suggestion that after the incident he went Sessions case no. 128/13 Page No. 3 of 36 to house of deceased Ram and informed his brother about the incident. He further denied the suggestion that thereafter he along with brother of Ram namely Shyam and other people came back to the spot or that Ram was removed to hospital. He denied the suggestion that on 01.11.11 he had identified accused Shakir before the police in Rohini Court complex. He further denied the suggestion that on 20.10.11, IO had prepared site plan at his instance or that he had informed the IO regarding one Deepak also having witnessed the incident. He denied the suggestion that statement Ex.PW2/A had been signed by him at point mark A after going through contents of the same. Witness was duly confronted with various portions of statement ExPW2/A and Ex.PW2/PX1 in respect of facts of the case. He further denied the suggestion that he had been won over by the accused persons or was not supporting the correct version on account of some settlement with accused. He denied the suggestion that he was deposing falsely to save the accused persons due to fear of his life.
5. PW3 HC Vikram Singh proved on record entries of malkhana register and the road certificate as Ex.PW3/A, B and C. During course of crossexamination, he admitted having filled up the malkhana register as per the seizure memos which had not been prepared in his presence. He admitted that articles mentioned in seizure memo had not been seized in his Sessions case no. 128/13 Page No. 4 of 36 presence and he could not say anything regarding genuineness and correctness of proceedings regarding the seizure memos. He denied the suggestion that entries in register no. 19 were manipulated at instance of IO or that he was deposing falsely.
6. PW4 Shyam was brother of deceased who claimed that on 19.10.11 while he was sleeping in his house at about 12 midnight, his neighbour Ravi @ Surya came and informed that Hanumant and his two associates had caused gun shot injuries to his brother Ram who was lying at the crossing behind liquor shop. Witness claimed that on receipt of said information, he along with his brother Rajbir, his parents, neighbours and Surya @ Ravi went to the spot near Rajiv Gandhi Market where his brother Ram was lying in injured condition and was unconscious. He claimed that Ram was bleeding and was taken to Bhagwan Mahavir Hospital from where he was referred to Max hospital and then to Fortis hospital. He claimed that Ram remained admitted there for about one month when he was got shifted to BL Kapoor hospital on 19.11.11 and expired on 08.12.11. He claimed that Surya @ Ravi was with them during admissions of his brother. He claimed that dead body was handed over to them for cremation on 09.02.11 and that it was on the same day that his neighbour Mukesh came and informed that he had seen the incident and assured to give assistance to him. He claimed that he took Mukesh to PS Subhash Sessions case no. 128/13 Page No. 5 of 36 Place and produced him before the SHO. He further claimed that in the month of April 2004, Hanumant had caused injuries to Ram but the matter was compromised. He claimed that despite the said compromise, Hanumant had enmity with Ram. Witness further claimed that on 31.10.2012 (witness was examined on 26.08.2014), he had moved an application in court for issuance of necessary legal action against accused persons as he had been threatened with dire consequences by them if he deposed against them. He proved the application as Ex.PW4/A. During course of cross examination by ld. Counsel for accused persons, witness claimed that his statement was recorded by police on 09.12.11 and he had gone through contents of the same. He claimed having stated to the IO in his statement that Surya came to his house and knocked the door and thereafter he got up. Witness was confronted with the statement Ex.PW4/DA where it was not so recorded. He claimed that he had not stated to the IO in his said statement that Surya disclosed facts of the incident to his parents or that he along with Rajbir and parents reached the spot of incident. He claimed that he had not mentioned to the IO that blood was oozing out from body of Ram. He admitted that he himself did not make any complaint to police at no. 100. although he claimed that there were blood stains in his WagonR, witness claimed that it was not got inspected by police in this case. He admitted that police had not recorded statement of his parents Sessions case no. 128/13 Page No. 6 of 36 and brother Rajbir and no inquiry was made from them in his presence. He admitted that he had not made any statement before the police till death of his brother Ram. He denied the suggestion that there was delay of about two months in recording of his statement as he was a false and planted witness being real brother of deceased. He denied the suggestion that it was for this reason that he did not disclose facts of the case to police till 08.12.11. He claimed that there was a gap of about 30 houses between his house and that of Mukesh but denied the suggestion that there was any friendship between two of them. He claimed that Mukesh did not meet him or his family members till 09.12.11. He denied the suggestion that Mukesh was a planted witness at his instance. He denied the suggestion that Ravi never visited his house nor disclosed any fact of the incident to any of his family members. He admitted that no case was registered between Ram and Hanumant after April 2004 till the date of incident. He denied the suggestion of having falsely implicated accused Hanumant in this case. He denied the suggestion that he was deposing falsely being real brother of deceased.
7. PW5 Retd. SI Satpal Singh proved on record his scene of crime report Ex.PW5/A. During course of crossexamination, he claimed having stated to the IO in his statement that when he reached the spot, he Sessions case no. 128/13 Page No. 7 of 36 saw four empty cartridges, one live cartridge and one right foot sleeper at the spot. He was duly confronted with statement mark X1 where this fact was not mentioned. He denied the suggestion that he had never visited the spot as claimed or was deposing falsely.
8. PW6 Komal Sidhu claimed having identified dead body of Ram on 09.12.11 in Ambedkar hospital.
9. PW7 Retd.HC Jagdish Chand proved on record copy of DD no. 2A dtd. 20.10.11 PS Subhash Place as Ex.PW7/A.
10. PW8 Dr. Rajesh Kumar Pandey from BL Kapoor hospital proved on record death report Ex.PW8/A. During course of crossexamination, he claimed that report Ex.PW8/A was prepared by Consultant Dr. Vipin under his supervision. He denied the suggestion that Ex.PW8/A was a false document.
11. PW9 Kapil claimed that on 19.10.11 he along with his colleague Ravi and his friend Ram were having drinks near M Block Shakur Pur. He claimed that thereafter he proceeded towards his bike while Ram and Ravi proceeded towards the gali on other side of the road. He claimed that while driving his Sessions case no. 128/13 Page No. 8 of 36 motorcycle, he noticed that Ram had stopped and was talking to some persons. Witness claimed that he could not identify those boys with whom Ram was talking and could not say what talks took place between them.
After seeking permission from the court, witness was cross examined by Ld.PP and during course of such cross examination, he claimed that his statement was recorded by police. He denied the suggestion that in his statement he had mentioned that Ram was having heated conversation with one of the boys whereafter he himself and Ravi intervened and pacified them. He was duly confronted with statement Ex.PW9/A where it was so recorded. When attention of the witness was drawn towards the accused persons, witness claimed that he could not say if these three were the ones with whom Ram had started talking when he himself was leaving from the spot. He denied the suggestion that he was deliberately not identifying the accused persons having been threatened by them.
12. PW10 Satbir was one of the brothers of deceased Ram who claimed having identified the dead body vide his statement Ex.PW10/A. He claimed that after PM, dead body was handed over to them vide memo Ex.PW10/B.
13. PW11 Mukesh claimed that in the year 2011 he along Sessions case no. 128/13 Page No. 9 of 36 with his friend Shyam and others used to run chit fund committee. He claimed that in the month of October 2011 at about 1111.30 pm, he was coming back after collecting cash of the chit fund and when he reached near back side of liquor shop, he noticed 45 persons standing there. He claimed that all of them were residents of M Block Shakur pur. He claimed that the three accused who were known to him were having heated conversation with Ram and Surya. Witness claimed that he did not hear the conversation and he along with 34 persons who were with him had gone in an adjacent gali while talking to each other. He claimed that after some time, he heard a gun shot upon which they all came running back and noticed that Ram was lying on road with gun shot. He claimed that no one else was present there at that time.
14. After seeking permission from the court, witness was cross examined by ld. PP and during course of such cross examination, witness claimed that police had recorded his statement. A question was put to him as to whether he had stated to police regarding having heard conversation going on between accused persons and Ram whereafter Hanumant was told by other two accused while pointing out towards Ram "maro isko", on which Hanumant took out a pistol and fired 34 bullets on Ram. (As per the evidence sheet dtd. 05.06.15, after hearing the question, witness became silent and on being asked by the court if he was under any Sessions case no. 128/13 Page No. 10 of 36 threat or pressure, witness replied that earlier he had been receiving messages from accused persons not to depose against them. Witness was asked to state actual and correct facts and was also asked if he required any security or protection, but witness refused the offer.) He claimed that he had not so stated to the police. He was duly confronted with statement Ex.PW11/A where it was so recorded. He denied the suggestion of having told the police that Ram thereafter fell down or accused Shakir slapped Ravi and Imran told Ravi to run away or else he would be killed and that Ravi fled away. He also denied the suggestion of having told the police that there was one more boy standing there who had witnessed the incident or that he himself was witnessing the incident by hiding himself and thereafter went away. He was duly confronted with statement Ex.PW11/A where these facts were mentioned. He admitted having told the police that after about half an hour, he went to Bhagwan Mahavir hospital from where family members of Ram had taken him to Max hospital. He claimed having told the police in his statement that he had been visiting the hospital to know well being of Ram. He admitted having told the police that after death of Ram on 08.12.11 he was feeling burdened as he had not stated all the facts to anyone and therefore in order to relieve himself, he disclosed all the facts to brother of Ram i.e. Shyam. He denied the suggestion that he had deliberately not disclosed actual facts as he was threatened by accused persons Sessions case no. 128/13 Page No. 11 of 36 and was under fear. He denied having himself witnessed the incident and of actual firing by Hanumant at instance of other two accused persons. He denied the suggestion having deliberately suppressed these facts being under fear of accused persons. He admitted that the incident took place on 19.10.11. He claimed that he could not identify the pistol / gun used by Hanumant for firing.
During course of cross examination, witness claimed that Shyam resided in his neighbourhood and they were friends for 1015 years. He claimed that he had cordial relations with Shyam. He admitted that he himself did not call at No.100 and did not try to lift Ram. He admitted that he had never gone to house of Ram to inform his family members. He admitted that he had not discussed or stated facts relating to incident to anyone including his family members till last rites of Ram. He claimed having met family members of Ram in the hospital, but claimed that he did not state the facts relating to incident to his family members. Witness volunteered that he did not disclose the facts as he was hoping that Ram would recover. He claimed that he did not disclose facts of the case even to police officials whom he met in the hospital. He admitted that on the day of incident he was having his mobile phone with him. He claimed having mentioned to police that he along with 3 - 4 persons who were with him had gone inside the adjacent gali while talking to each other. He was duly confronted with statement Ex. PW11/A where it was not so recorded. He Sessions case no. 128/13 Page No. 12 of 36 claimed having made his statement to police on 9.12.11. He denied the suggestion that he was not present at the place of incident or had not witnessed anything. He denied the suggestion that he had been falsely and wrongly implanted as a prosecution witness being on friendly terms with brother of deceased.
15. PW12 Shri K.C. Varshney proved on record FSL report Ex. PW12/A.
16. PW13 Dr. Sheetal proved on record MLC of Ram as Ex. PW13/A and also identified her signature and that of Dr. Mayank on the same.
17. PW14 Dr. Ajit Kumar from Fortis Hospital proved on record Triage sheet of patient Ram as Ex. PW14/A.
18. PW15 Ct. Ram Kishan from Crime Team proved on record photographs Ex. PW15/B1 to B22 as also certificate U/s 65B Evidence Act regarding the same as Ex. PW15/A.
19. PW16 claimed that on 20.10.11 in pursuance to DD 2A he alongwith SI Chander Bhan had gone to Bhagwan Mahavir Hospital and then to Fortis Hospital where they met one Ravi whose statement was recorded. He claimed that then he Sessions case no. 128/13 Page No. 13 of 36 returned back to the spot with SI Chander Bhan where various articles from the spot were seized vide memo Ex. PW16/A,B,C & D. He claimed that after Ravi reached the spot, site plan was prepared at his instance. He further deposed about apprehension and arrest of Mohd. Shakir and proved on record arrest documents Ex.PW16/E,F & G. Accused was claimed to have pointed out spot of incident vide memo Ex. PW16/H. He also identified the accused Shakir.
During course of cross examination by ld. Counsel for accused, witness admitted that nothing was recovered in his presence in pursuance to disclosure statement of accused Shakir. He admitted that place of incident was known to police even before arrest of accused. He denied the suggestion that he did not join investigation or that Shakir was not arrested from the place and in the manner as claimed by him. He denied the suggestion that Shakir did not make any disclosure statement or that his signatures were obtained on blank paper. He denied having signed the memos subsequently at instance of IO. He denied the suggestion that Deepak had not made any statement in his presence of had been falsely introduced to solve case of prosecution. He also identified the accused and the case property. During course of cross examination he denied the suggestion that case properties were not taken into possession at the spot or all the documents were prepared while sitting in the PS Sessions case no. 128/13 Page No. 14 of 36 or that he had not joined investigation.
20. PW17 Inspector Manohar Lal prroved on record scaled site plan Ex. PW17/A.
21. PW18 Ct. Dilaver claimed that on asking of the DO he had handed over copy of DD 28A dated 8.12.11 to SHO at Mortuary, BSA Hospital.
During course of cross examination he denied the suggestion that he had not taken the same as deposed by him or was deposing falsely.
22. PW19 Deepak claimed that he did not remember the date and month of incident which took place about 5 years back. He claimed that he was present in the house and on hearing noise he came out and found that someone had fired gun shots on Ram who resided in his locality. He claimed that police came and asked about his name and address. He claimed that his statement was not recorded by police and he did not know who had fired the gun shots.
After seeking permission from the court, witness was cross examined by ld. PP for State an during course of cross examination he denied that his statement was recorded by the police or that he had seen the accused persons at the spot. He Sessions case no. 128/13 Page No. 15 of 36 further denied that on instigation of Shakir and Imran, Hanumant had fired 4 - 5 bullets on Ram or thereafter the accused ran away. He claimed that he had not so stated in any statement to police. He was duly confronted with his statement Ex.PW19/A at various portions in that regard where these facts were mentioned. He denied the suggestion that accused Shakir, Hanumant and Imran had killed Ram in his presence. He denied the suggestion that he had been won over by accused and their family members.
23. PW20 Ct. Kuldeep claimed having gone to B.L. Kapoor Hospital alongwith SI Lalit on 8.12.11 and claimed that some documents and dead body of deceased were received there. He deposed about identification of dead body and claimed that on request of brother of deceased, dead body was got preserved in the mortuary and IO directed him to guard the same. Dead body was claimed to have been handed over to Satbir on 9.12.11 vide memo Ex. PW10/B.
24. PW21 HC Baljeet claimed that on 19.12.11 on directions of the IO, he obtained 12 pullandas from MHC (M) and deposited the same in FSL, Rohini vide RC 179/21/11. He claimed having deposited back the receipt in malkhana. He further stated that till the time case property remained in his possession, no tampering was done with the seal and pullands remained intact.
Sessions case no. 128/13 Page No. 16 of 36During cross examination by ld. Counsel for accused he denied the suggestion that he had not deposited any exhibits with FSL.
25. PW22 Inspector Chander Bhan claimed having recorded statement of complainant Ravi and having prepared rukka Ex.PW22/B and having got FIR registered. He claimed that Incharge crime team also reached the spot with his team. Witness claimed having lifted four fired cartridges along with one live bullet from the spot. He identified the signatures on the seized documents. He also identified his signatures on various other documents which had already been proved by preceding witnesses. He claimed that Ravi reached the spot and informed him about one Deepak being an eye witness of the case. He claimed that they had gone to house of Deepak but he was not found. Deepak was claimed to have been found on 21.10.11. He also deposed about apprehension and arrest of accused Mohd. Shakir. He also identified the case property.
During course of crossexamination by ld. Counsel for accused, witness claimed that Shakir had not got recovered anything incriminating against him. He admitted that he was already aware about the spot of incident even before it was pointed out by Shakir. He denied the suggestion that Shakir had not made any disclosure statement. He denied the suggestion that no Sessions case no. 128/13 Page No. 17 of 36 statement was made to him by Ravi. He denied the suggestion that statement Ex.PW2/A was recorded by him on his own after having obtained signature of Ravi on blank paper. He denied the suggestion that no other statement of Ravi had been recorded at his instance. He further denied the suggestion that alleged statement of Kapil Tyagi Ex.PW9/A too had been recorded by him at his own instance or was never made by Kapil. Same was his reply in respect of statement Ex.PW19/A alleged to be made by Deepak. He denied the suggestion that he had not conducted proper investigation or that the accused was not kept in muffled face or had been shown to witnesses in PS prior to filing application for judicial TIP. He denied the suggestion he was deposing falsely.
26. PW Ct. Jaideep was the next witness to be examined in this case and due to oversight even he was marked as PW22. He deposed about arrest of accused Hanumant and Imran and their arrest documents in respect of case FIR 353/13 PS Keshav Puram. During course of crossexamination by ld. Counsel for accused, witness claimed having joined investigation on 19.11.13. He claimed having left the PS for investigation at 10.30 pm on 19.11.13. He claimed that IO had not called any public person nor anyone from adjoining houses before entering the house from where accused were apprehended. He denied the suggestion that Sessions case no. 128/13 Page No. 18 of 36 all proceeding were conducted while sitting in the PS itself. He denied the suggestion that no revolver or any cartridge had been recovered at instance of accused or that the same were planted.
27. PW23 Sh. Sumedh Kumar Sethi (the then MM) during course of his examination in chief stated about TIP proceedings of accused Imran @ Amit and proved the same as Ex.PW23/A,B and C.
28. PW24 HC Raj Kumar was MHCM PS Keshav Puram who proved on record copies of entries of malkhana register in respect of FIR 353/13 PS Keshav Puram and connected documents as Ex.PW24/A1 to 13, 24/B & C.
29. PW25 Ct. Bijender claimed having deposited two pullandas in FSL vide RC 245/21/13. He identified his signature on the receipt as Ex.PW25/A. He claimed that the case property remained intact as long as it remained in his custody.
30. PW26 SI Umesh Rana was IO of case FIR 353/13 PS Keshav Puram. He deposed about facts of that case wherein accused Hanumant and Imran had been apprehended and arms recovered from them. He also identified the same. During course of crossexamination by ld. PP for state, Sessions case no. 128/13 Page No. 19 of 36 he claimed that they had gone to Pandav Nagar in a private vehicle hired through the department. He claimed that as it was night time, he did not ask any resident of locality to join investigation, although the house was in a residential area. He claimed that the pistol had been taken out from Hanumant from a bag which also contained clothes, but the bag and clothes were not seized. Imran was claimed to have handed over pistol after taking it out from inside mattress lying in the room. Witness claimed that he did not ask anyone regarding ownership of the ground floor and first floor of premises. He denied the suggestion that he had not conducted any proceedings as claimed or had not joined any independent public witness as no proceedings had taken place at the spot. He denied the suggestion that weapons were planted on the accused persons.
31. PW 27 Ct. Virender had joined investigation of case FIR 353/13 PS Keshav Puram and had remained with SI Umesh Rana. He stated about arrest of accused Hanumant and Imran and about the recoveries and identified his signatures on documents concerned.
During course of crossexamination by ld. Counsel for accused, witness claimed that he did remember the date when disclosure statement of Afsaroon Chaudhary was recorded. He claimed that they left at about 88.30 am in Dzire vehicle obtained Sessions case no. 128/13 Page No. 20 of 36 from security unit of Delhi police. He claimed that driver was not member of Delhi police. He claimed that the house visited by them was a three storied building surrounded by other houses. He claimed that IO must have made inquiries from the ground floor and first floor occupants of the house but he himself was not aware of the same. He did not remember whether or not bag had been seized by the IO. He denied the suggestion that no proceeding took place in his presence or that nothing was recovered at instance of any of the accused. He denied the suggestion that he was deposing falsely.
Witness was recalled after seeking permission from the court u/s 311 Cr.PC by ld. PP for State and during course of such examination, he claimed that on 20.12.13 case property of the said case had been handed over to him by MHCM for being taken to FSL and after depositing it there. He brought back the receipt and handed it over to MHCM. He claimed that nobody had tampered with the pullandas as long as same remained in his custody. During course of his cross examination by ld. Counsel for accused, he could not tell number of parcels taken by him on that day.
32. PW28 SI Lalit Kumar claimed that investigation of this case was assigned to him on 14.11.11. He claimed that he made efforts in searching accused Hanumant and Imran and filed in court his report in respect of NBWs. Reports were proved as Sessions case no. 128/13 Page No. 21 of 36 Ex.PW28/A & B. He further claimed having moved an application for issuance of process u/s 82 Cr.PC against the two accused. Application was proved as Ex.PW28/C. The process Ex.PW28/E was claimed to have been marked to HC Somdev. He further claimed that on 08.12.11 he received information vide DD no. 28A to the effect that injured Ram had expired. He claimed having obtained death summary and death certificate from hospital. He claimed that he handed over the case file and documents to Insp. Vipin Bhatia whom he met in BSA hospital. Exhibits were claimed to have been seized in the hospital vide memo Ex.PW28/F. During course of crossexamination, witness denied the suggestion that he never attempted to execute the NBW or had given a false report. He denied the suggestion that all proceedings in that regard were conducted while sitting in the PS or that the memo Ex.PW28/F had been subsequently signed by him at instance of IO.
33. PW29 Dr. Dhruv Sharma proved FSL report Ex.PW29/A & B.
34. PW30 Insp. Virender Singh claimed that on 22.11.13 vide DD no. 28 (Ex.PW30/A) he came to know that accused Hanumant and Imran who had been arrested by police of PS Keshav Puram had disclosed about their involvement in the Sessions case no. 128/13 Page No. 22 of 36 present case. He claimed that accordingly on 23.11.2013 he reached Rohini Court with Ct. Ajay but as he could not meet the accused persons, he moved an application Ex.PW30/B for issuance of their production warrants. He claimed having collected copies of relevant documents from SI Umesh Rana of PS Keshav Puram. He claimed that after the accused came to be produced in court, he sought permission to interrogate them vide his application Ex.PW30/C and recorded disclosure statements of the two accused. Statements were proved as Ex.PW30/D & E. He also identified his signatures on arrest documents of the two accused. He claimed that accused Imran refused to participate in judicial TIP proceedings. He identified his signatures on the proceedings in that regard. Both the accused were claimed to have pointed out spot of incident vide memos Ex.PW30/L and M. He claimed that the complainant Ravi came to the spot and identified both the accused as being the culprit. He claimed having recorded statement of witnesses. He further claimed having sent the case property to FSL. He also claimed having added section 174A IPC against accused Hanumant and Imran and thereafter filed supplementary chargesheet.
During course of crossexamination, witness denied the suggestion that he had not carried out proper investigation or had carried it out in connivance with officials of PS Keshav Puram. He denied the suggestion he was deposing falsely.
Sessions case no. 128/13 Page No. 23 of 3635. PW31 Sh. Dheeraj Mor, Ld. MM proved on record TIP proceedings of accused Mohd. Shakir as Ex.PW31/A,B,C,D, E, F & G. It was claimed that accused refused to participate in TIP proceedings.
36. On 12.01.2017 Ld. Counsel for accused persons on basis of instructions from the accused admitted the PM report, MLC of deceased Ram and LAMA summary report of the deceased as contents of same were not disputed.
37. PW32 Ct. Vinod proved on record copy of DD no. 28 dtd. 22.11.2013 PS Keshav Puram as Ex.PW30/A1. During course of crossexamination, he denied the suggestion that no information as mentioned in DD entry had been received or that the entry was recorded subsequently in connivance with SI Umesh Rana.
38. PW33 HC Dinesh proved on record entries of road certificate register in respect of RC 245 /21/13 as Ex.PW33/A and copy of acknowledgement from FSL as Ex.PW33/B. He claimed having sent the exhibits to FSL through Ct. Bijender on 03.01.14. During course of crossexamination, witness denied the suggestion that he had not handed over any exhibit to Ct. Bijender Sessions case no. 128/13 Page No. 24 of 36 or that the documents were prepared subsequently.
39. PW34 ASI Somdev proved his report Ex.PW34/A in respect of process u/s 82 Cr.PC against accused Hanumant received by him on 02.12.12 and Ex.PW34/C & D in respect of accused Imran. Photographs in respect of pasting of process were proved as Ex.PW34/E1 to E8. He claimed that on 03.02.12 he had again gone to execute process u/s 82 Cr.PC against Hanumant and proved his report in that regard as Ex.PW34/H and the connected documents as Ex.PW34/F & G. Copies of his departure and arrival entries were proved as Ex.PW34/I and J. Process u/s 82 Cr.PC and connected documents in respect of accused Imran were proved as Ex.PW34/K, L, M,N, O & P. He claimed having gone to Badayun UP in that regard on 28.01.12. He further claimed having returned back to Delhi on 02.02.12 vide his arrival entry Ex.PW34/Q and his report as Ex.PW34/S. During course of crossexamination, he denied the suggestion that he had not properly executed proceedings u/s 82 & 83 Cr.PC or had not complied with the requirements. He denied the suggestion that he had prepared false report regarding execution of process.
40. PW35 Ct. Ajay Kumar deposed about formal arrest of accused Hemant and Imran on 26.11.13 and identified his Sessions case no. 128/13 Page No. 25 of 36 signatures on the arrest documents. He also identified both the accused.
During course of crossexamination, he denied the suggestion that he had not joined investigation or that accused had not made any disclosure statements or had not pointed out the spot of incident.
41. PW36 Insp. Vipin Kumar claimed that as on 08.12.11 he was working as SHO PS Saraswati Vihar. He claimed that he was informed by the DO that Ram who was injured of case FIR 393/11 had expired. Witness claimed that he reached mortuary BSA hospital and SI Lalit handed over file and all documents to him. He claimed that he assumed investigation of the case and added section 302 IPC and 27 Arms Act in the case. He proved copy of DD 28A as Ex.PW36/A. Inquest papers were proved as Ex.PW36/B, C, D & E. He deposed about investigation steps taken on that day. Witness further claimed that on 09.12.11, dead body of deceased was handed over to his brother. He claimed that in the evening brother of deceased namely Shyam and one Mukesh came to the PS and he recorded their statements. He claimed that scaled site plan was got prepared and collected by him. He further claimed having got sent the exhibits to FSL through HC Baljeet. Process u/s 83 Cr.PC was claimed to have been got initiated against Imran and Hanumant. Witness claimed that during Sessions case no. 128/13 Page No. 26 of 36 investigation he came to know about case FIR 297/04 PS Saraswati Vihar wherein deceased Ram was the complainant and Hanumant was the accused. It was claimed that the said case was compromised on 12.03.11. Chargesheet was claimed to have been filed in court on 16.01.12. It was claimed that on 13.02.12 accused Imran and Hanumant were declared PO by ld. Court concerned. He claimed that FSL report was collected and filed in court. During course of crossexamination, witness denied the suggestion that he had not carried out investigation in this case properly or that all documents were prepared while sitting in the PS. He denied the suggestion that he had never visited the spot on 20.10.11 or that the scaled site plan was not prepared at his instance. He denied the suggestion that he was deposing falsely.
42. No other PW remained to be examined on behalf of prosecution and accordingly prosecution evidence was closed. Thereafter statements of accused persons were recorded u/s 313 Cr.PC, wherein they claimed that they were innocent and had been falsely implicated in this case. Accused Shakir claimed that on the day of incident he had left his house to check his shop which was at a distance of 20 meters from his house when he saw some quarrel taking place in gali. He claimed that police was present there and police picked him up and then falsely implicated him in this case. Imran and Hanumant also claimed that they had been falsely Sessions case no. 128/13 Page No. 27 of 36 implicated. Accused Hanumant specifically claimed that he had never fired the gun shot nor any pistol was recovered from his possession. He claimed that the pistol in fact had been planted upon him.
43. During course of his submissions it was submitted by ld. PP that prosecution had cited and examined PW2, 9, 11 & 19 to prove its case against the accused persons. It was claimed that for some unknown reasons, PW2, 9 & 19 had turned hostile and had not supported case of prosecution in as much as they failed to identify the accused as being the culprits. It was submitted that however PW11 Mukesh had fully supported case of prosecution and had specifically claimed that on the day of incident he had noticed the three accused persons having heated conversation with Ram and Surya. While referring to statement of PW11, it was submitted that the witness had claimed that he knew all the three accused even prior to the incident. Ld. PP further submitted that after Mukesh had gone in adjacent gali, he claimed having heard a gun shot, hearing which he returned back to the spot and noticed Ram lying on road with gun shot injury. It was further pointed out by ld. PP that the witness had also claimed that he had been receiving messages from accused persons not to depose against him. As regards delay in the witness informing others about the incident, it was submitted that the witness was feeling burden Sessions case no. 128/13 Page No. 28 of 36 over his head and in order to relieve himself had disclosed all the facts after Ram had expired. As per ld. PP, PW Mukesh was a reliable witness and his testimony proved beyond any shadow of doubt that it was the three accused who were last seen with deceased Ram before gun shot was fired. It was further submitted that accused Hanumant and Imran had subsequently evaded process of law and were arrested after being declared PO. In this regard, attention of this court had been drawn to statement of PW34. It was submitted that they accordingly had committed offence punishable u/s 174A IPC.
44. Ld. Counsel for accused persons on the other hand submitted that all the witnesses who were claimed to be independent public witnesses by prosecution had not supported its false case. As regards Mukesh, it was submitted by ld. Counsel that the alleged occurrence took place on 19.10.11 while statement of Mukesh u/s 161 Cr.PC came to be recorded only on 09.12.11 and there was no plausible explanation for delay in that regard. It was pointed out that during the intervening period Mukesh had not disclosed facts of the case to anyone i.e. neither to his family members nor to family members of deceased. It was submitted that no reliance whatsoever could be placed on testimony of PW Mukesh. It was further submitted by ld. Counsel that except for unreliable testimony of PW11 Mukesh, there was no evidence Sessions case no. 128/13 Page No. 29 of 36 worth its name on record to show culpability of any of the accused. During course of his submissions, Ld. Counsel has placed reliance on (1) Mangu Singh vs. Dharmendera & Anr.
(2016 CrLJ 785), (2) Ravinder Rathi Vs. State of Delhi [2012 (4) AD (Delhi) 133], (3) Abdulwahab Abdulmajid Banloch Vs. State of Gujarat [2009(3) SCC(Cr) 1507 & (4) Mukesh Vs. State [2017(1) JCC 594]. On basis thereof, it was submitted by ld.
Counsel that no reliance whatsoever could be placed on testimony of PW11. It was claimed that there was no direct evidence nor any indirect or circumstantial evidence against any of the accused persons. Acquittal of all was prayed.
45. This court has given thoughtful consideration to arguments advanced and has also perused the records as also judicial pronouncements being relied upon by ld. Counsel for accused.
46. Perusal of record reveals that entire case of prosecution was to revolve around testimonies of PW2, 9, 11 & 19. It is altogether a different matter that out of them PW2, 9 & 19 have not supported case of prosecution to any extent whatsoever, as none of them has identified the accused as being the culprits.
47. This brings us to PW11 Mukesh. The witness during Sessions case no. 128/13 Page No. 30 of 36 course of his deposition had specifically claimed that the accused persons were having heated conversation with Ram and Surya. In the same breath he claimed that he did not hear this conversation. Significantly Surya when examined as PW2 (Ravi @ Sonu @ Surya) did not support case of prosecution nor he supported allegation of any heated arguments having taken place between the accused persons and Ram. Rather he specifically claimed that he was at his house when he came to know that Ram had received gun shot injury.
Significantly although the alleged incident took place on 19.10.11, statement of this witness came to be recorded u/s 161 Cr.PC only on 09.12.11. During course of crossexamination, witness had admitted that he had not disclosed about facts of the case either to his family members nor to family members of deceased nor to the police. He claimed that he was carrying a burden on his head and informed the police in respect of having last seen the deceased in company of accused persons only after the deceased had expired.
48. It is well settled that evidence of last seen is a weak type of evidence and until and unless the same is proved beyond any reasonable shadow of doubt, no order of conviction can be passed against the accused persons on sole basis of "last seen".
Sessions case no. 128/13 Page No. 31 of 3649. In Ravinder Rathi's case (supra), it was observed that where an important witness's statement is recorded after delay, that becomes unreliable piece of evidence. Court had expressed concern at late recording of statements of two witnesses u/s 161 Cr.PC who had claimed to be witnesses for the circumstance of "last seen". In the said case, the occurrence took place on 28.06.08 while statements of witnesses regarding last seen came to be recorded only on 02.08.08. In the present case, the incident had taken place on 19.10.11 while statement of Mukesh (PW11) came to be recorded only on 09.12.11 i.e. after death of the injured.
50. In Mukesh's case (supra), it had been observed that where the witness's did not bother to make call to concerned police station or PCR and did not inform family members of deceased, the said facts cast a serious doubt with regard to presence of the witnesses at the scene of occurrence.
51. Surprisingly, PW11 Mukesh during course of his cross examination by ld. PP for State had admitted that about half an hour after the incident he had gone to Bhagwan Mahavir hospital from where family members of Ram had taken him for treatment to Max hospital. He further claimed during crossexamination that when he visited the hospital to enquire about well being of Ram, he Sessions case no. 128/13 Page No. 32 of 36 had met his family members and also police officials. This conduct of PW11 shows his proximity to family of Ram and it becomes more strange as to why he would not disclose about incident to any of the family members of Ram nor even to his own family members. It would not be out of place to mention herein that as per case of prosecution and suggestions made by ld. PP for State, PW11 was being projected as being an eye witness who has witnessed the incident and of actual firing taking place.
52. PW11 claimed that he was on friendly terms with brother of the deceased. In Abdul Sattar's case (supra), it was observed that conduct of a related eye witness in not telling anyone about having witnessed the occurrence can be said to be highly abnormal and would raise a strong suspicion that he was not witness to the occurrence and had been introduced subsequently. In opinion of this court, the same analogy would apply in case of PW11 who happens to be friend of brother of the deceased. Friends, it may be mentioned are no different from relatives.
53. The aforesaid discussion puts in doubt genuineness of version as put forth by PW11 Mukesh. He could either be an eye witness or a witness "last seen together" but has been projected as being an eye witness and also witness of the accused and the deceased having been "last seen together" and is a person whose Sessions case no. 128/13 Page No. 33 of 36 statement came to be recorded more that 1 ½ months from the date of incident. Consequently, this court is of considered opinion that no reliance whatsoever can be placed on testimony of PW11 Mukesh.
54. Prosecution has also sought to place reliance on pistol allegedly recovered from accused Hanumant as being the weapon of offence in this case. As per case of prosecution, the same had allegedly been recovered from accused Hanumant on 19.11.13 in respect of case FIR 353/13 PS Keshav Puram. During course of his submission, it was submitted by ld. PP that as per FSL report,, the bullets fired at the spot and recovered from dead body had been fired upon from the said pistol. It was claimed that it was a material circumstance against the accused persons. It should not be the lost sight of that the date of alleged incident in this case is 19.10.11 while as per case of prosecution pistol was recovered on 19.11.13. It was observed in Abdul Wahab's case that where weapon was recovered 9 months after the incident, only because the expert opined that bullet found in body of deceased was fired from the seized weapon, this by itself cannot be the sole premise on which a judgment of conviction can be recorded. Facts of the present case are no different. Rather in this case, the pistol had allegedly been recovered after two years. We are not aware about outcome of the said case i.e. FIR 353/13 PS Keshav Puram i.e. as to Sessions case no. 128/13 Page No. 34 of 36 whether it had resulted in acquittal of accused in respect of offence under Arms Act, but in opinion of this court merely on basis of FSL report, no order of conviction can be passed against the accused persons in the present case.
55. Consequently, this court is of considered opinion that there is no material on record to pass an order of conviction against any of the accused persons for having committed offence punishable u/s 302/34 IPC.
56. As regards charge framed against accused Hanumant and Imran in respect of offence punishable u/s 174A IPC, it had been alleged that proclamation u/s 82 Cr.PC had been executed against them on 31.12.11 and they were declared proclaimed offenders on 13.02.12. They were subsequently arrested on 26.11.13 and had been charged with for having committed offence punishable u/s 174A IPC. It would be pertinent to mention herein that during course of their statements recorded u/s 313 Cr.PC, the said two accused i.e. Hanumant and Imran had not disputed factum of their having been declared proclaimed offenders in this case. In fact, all they had stated was that it was a matter of record.
57. As per provisions of section 174A IPC, an accused who has been declared proclaimed offender shall be punished with Sessions case no. 128/13 Page No. 35 of 36 imprisonment for a term which may extend to seven years and shall also be liable to fine.
58. As accused Hanumant and Imran have not challenged the proceedings in respect of their being declared proclaimed offenders in this case, in considered opinion of this court, they are liable to be convicted for having committed offences punishable u/s 174A IPC.
59. Consequently, while all the accused stand acquitted for offence punishable u/s 302/34 IPC, accused Hanumant and Imran stand convicted for having committed offence punishable u/s 174A IPC. Ordered accordingly.
Announced in open court of 22nd day of December, 2017.
(M.R. SETHI) ADDL.SESSIONS JUDGE 03 NORTH WEST, ROHINI COURTS, NEW DELHI.
Sessions case no. 128/13 Page No. 36 of 36