Delhi District Court
State vs Ikbal Gazi on 9 April, 2025
CNR No. DLNE01-000072-2015
State v. Mohd. Iqbal Gazi etc.
SC No. 44383/2015 FIR No. 258/2012, PS Seelampur
DLNE010000722012
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE-03,
NORTH-EAST DISTRICT
KARKARDOOMA COURTS: DELHI
INDEX
Sl. HEADINGS Page
No. Nos.
1 Description of Case & Memo of Parties 2
2 Case set up by the Prosecution 3-9
3 Charges 9-11
4 Description of Prosecution Evidence 11-30
5 Plea of accused under Section 351 Cr.P.C. 30-34
6 Arguments of Prosecution & Defence 35-46
Appreciation of Law, Facts & Evidence
7 Law Provisions & Legal Principles 46-47
8 Incident of Firing 47-49
9 Involvement of accused persons 49-58
10 Conclusion and Decision 59
Digitally
signed by
PULASTYA
PULASTYA PRAMACHALA
PRAMACHALA Date:
2025.04.09
11:05:36
+0530
(Pulastya Pramachala)
Page 1 of 59 ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000072-2015
State v. Mohd. Iqbal Gazi etc.
SC No. 44383/2015 FIR No. 258/2012, PS Seelampur
Sessions Case No. : 44383/2015
Under Section : 307/326/147/148/506/120-B/34 IPC &
S. 25/27/54/59 Arms Act
Police Station : Seelampur
FIR No. : 258/2012
CNR No. : DLNE01-000072-2015
In the matter of: -
STATE
VERSUS
1. MOHD. IQBAL GAZI
(Proceedings abated against him vide order dated 16.04.2019)
S/o. Late Mohd. Asloob,
R/o. H.No. K-288,
New Seelampur, Delhi-53.
2. MOHD. JAMAL @ RANJHA
S/o. Late Mohd. Iqbal Gazi,
R/o. H.No. K-288,
New Seelampur, Delhi-53.
3. MAULANA SHAKEEL @ SHAKEEL AHMED @
MULLA SHAKEEL
S/o. Sh. Jalil Ahmad @ Abdul Sattar,
R/o. D-132, New Seelampur, Delhi-53.
4. MOHD. UMAR @ PAU
S/o. Late Mohd. Iqbal Gazi,
R/o. H.No. K-288, New Seelampur, Delhi-53.
5. KAMAL @ KAMALUDDIN @ BILAL
S/o. Late Mohd. Iqbal Gazi,
R/o. H.No. K-288, K-Block,
New Seelampur, Delhi-53. ...Accused Persons
Date of Institution : 26.10.2012
Date of reserving judgment : 28.03.2025
Date of pronouncement : 09.04.2025
Decision : All accused are acquitted
(Section 481 BNSS complied with by all the accused persons.)
(Pulastya Pramachala)
Page 2 of 59 ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000072-2015
State v. Mohd. Iqbal Gazi etc.
SC No. 44383/2015 FIR No. 258/2012, PS Seelampur
JUDGMENT
CASE SET UP BY THE PROSECUTION
1. The above-named accused persons were charge-sheeted by the police for offences punishable under Section 307/326/147/148/506/120-B/34 IPC & S. 25/27/54/59 Arms Act.
2. Brief facts of the present case are that on 28.07.2012 at around 08:12 PM, an information was recorded vide DD No.57-B at PS Seelampur, from Police Control Room. As per this DD, brother of the caller received bullet injury near H.No.227, K-Block, Seelampur and injured was being taken to GTB hospital. This DD No.57-B was marked to SI Brajveer. On receipt of DD No.57-B, SI Brajveer along with Ct. Narender reached the spot i.e. Street K-Block, New Seelampur. At the spot, they found blood on the road. Empty bullet cartridges, live cartridge, bullet leads, one pair of slippers, were also found there. Leaving Ct. Narender at the spot, SI Brajveer reached GTB hospital and found injured Mobin admitted there vide MLC No.C-3410/12. On the MLC, doctor mentioned alleged history of gun shot and injured Mobin was declared fit for statement. At that time, statement of injured could not be recorded because he was taken to operation theater immediately. In the hospital, elder brother of injured namely Mohd. Arif came to SI Brajveer and introduced himself as eyewitness of incident of the present case. In the hospital itself, Mohd. Arif got written his statement through his friend Sh. Rajender Kumar and gave it to SI Brajveer.
3. In this statement, it was alleged that Arif along with his younger brother namely Mobin, used to run shop of meat, near Madarsa, Chauhan Bangar Pulia. It was further alleged that 2-3 days prior (Pulastya Pramachala) Page 3 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur to 28.07.2012, accused Kamal (maternal uncle's son of complainant Arif) came to that meat shop and Kamal demanded Rs. 10,000/- p.m. for running that shop. Kamal also threatened Mobin to kill him if this money was not paid. At that time, Arif gave Rs.3000/- to Kamal, stating that he could not have paid any more. It was further alleged that on 28.07.2012 at around 8 PM, when Arif and Mobin were crossing K-Block, Seelampur, they were surrounded by Kamal, his brothers namely Ranjha, Pau and their father Iqbal Gazi (since expired). Accused Kamal told them as to why didn't they pay money to him. At that time a ccused Kamal took out pistol from the dub of his wearing pant and fired several rounds towards Mobin, with intention to kill him. During firing, accused Ranjha, Pau and their father Iqbal Gazi shouted that whoever would not pay the money on monthly basis for running the business, he would have to face the same consequences. It was further alleged that one associate of Iqbal Gazi namely Mulla Shakeel was also present there with them. Mulla Shakeel said in loud voice that this was the treatment for those who did not pay money. Someone made call at 100 number. Thereafter, Arif took Mobin to GTB hospital. It was further alleged that accused Kamal, Ranjha, Pau, Iqbal Gazi and Mulla Shakeel with intention to kill Mobin, together tried to kill Mobin by firing at him.
4. Thereafter, SI Brajveer came back to the above-mentioned spot, where senior officers and other staff of PS were already present. SI Manish came at the spot with MLC No.3887 of Mohd. Rehman Khan and produced the same before SI Brajveer. SI Manish told SI Brajveer that injured Mohd. Rehman Khan was (Pulastya Pramachala) Page 4 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur also received bullet injuries at the same place. This injured was admitted in Shastri Park Hospital Delhi with alleged history of gun-shot grievous injury. SI Brajveer sent Ct. Narender with tehrir to get the FIR registered at PS Seelampur.
5. On the basis of these facts and tehrir prepared by SI Brajveer, W/HC Mary Rose registered this FIR No. 258/2012 on 28.07.2012 for offences under Section 307/326/34 IPC and 25/27/54/59 Arms Act. SI Brajveer was assigned investigation of the present case.
6. During the course of investigation, IO/SI Brajveer called photographer and crime team at the spot and got the scene of crime inspected and photographed. IO prepared site plan and recorded statement of witnesses. IO took blood, earth control, empty cartridges, live cartridges and bullet leads into police possession and seized them in the present case. IO also seized undergarment and kurta of injured Mobin and sample seal, which were preserved by doctor at GTB hospital.
7. During further course of investigation on 29.07.2012, IO arrested accused Iqbal Ghazi in the present case. On 30.07.2012 further investigation of the present case was assigned to Insp. M.P. Singh. During the course of further investigation, IO/Insp. M.P. Singh came to know about judicial custody of accused Jamal @ Ranjha in FIR No.337/07, PS Seelampur.
8. On 03.09.2012, IO applied for the production warrant of the accused Jamal @ Ranjha, before the court of ld. MM, Karkardooma Court, Delhi. Said application was allowed for his interrogation in Karkardooma Court, Delhi. On 04.09.2012, IO (Pulastya Pramachala) Page 5 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur interrogated and formally arrested accused Jamal @ Ranjha in Karkardooma Court with the prior approval of ld. MM, in this case. During interrogation, accused Jamal @ Ranjha confessed his involvement along with his father Iqbal Ghazi and brothers Umar @ Pau, Kamal @ Kamalluddin and Maulana Shakeel @ Mulla Shakeel, in the incident of the present case.
9. On 06.09.2012, IO recovered one pistol and two live cartridges at the instance of accused Jamal, from mezzanine of a room situated adjacent to the main gate of a house belonging to Kamal. This house was situated at Kanjar Wali Pulia, Meerut, U.P. IO prepared sketch of pistol and cartridges and took them into police possession. IO recorded statement of witnesses. IO also got conducted video recording of statement given by Mobin.
10. On 20.09.2012, IO arrested Mulla Shakeel @ Maulana Shakeel @ Shakeel Ahmed, in the present case. IO recovered two empty cartridges at the instance of this accused, from the iron self (almirah) kept near wall of bathroom. This bathroom was situated on the ground floor near stairs, in the house belonging to accused Maulana Shakeel. This accused disclosed that these two empty cartridges were given to him by accused Kamal at the time of running away from the spot, after firing at Mobin. IO prepared sketch of said two empty cartridges, taken into police possession and recorded statement of witnesses.
11. On the instruction of IO/Insp. M.P. Singh, SI Manoj went to Sant Parmanand Hospital, Delhi and he collected bullet lead, which was taken out from the body of Mobin at the time of his operation. Same was taken into police possession and deposited (Pulastya Pramachala) Page 6 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur into malkhana.
12. During further investigation, IO came to know about surrender of accused Umar @ Pau in Karkardooma Court. On 02.10.2012, this accused was produced before the court of Sh. Sunil Gupta, the then ld. MM, Karkardooma Court, Delhi. On same day, after obtaining permission from the then ld. MM, IO interrogated and formally arrested accused Umar @ Pau in the present case. IO also obtained police custody remand of this accused up to 06.10.2012. On 05.10.2012, five live cartridges were recovered at the instance of accused Umar Pau from Buffalo Dairy of Iqbal Ghazi, B-2, Auto Market, New Seelampur. On the ground floor of this premises, there was a room adjacent to main gate and in that room these five live cartridges were kept under the clothes. Police prepared sketch of those five live cartridges and took them into police possession. IO further came to know that the alleged pistol was already recovered from the possession of accused Umar @ Pau, in FIR No.238/12, New Usmanpur.
13. On 04.10.2012 at 08:00 AM, Insp. Sanjeev Gupta, SHO PS Seelampur, received a secret information about accused Kamaluddin @ Bilal. SHO formed a raiding team consisting of Insp. Jagdish, ATO Seelampur and other staff, and set up a barricade near Pandushilla Road, near Shastri Park Hospital. During checking at around 09:15 AM, Insp. Jagdish Prasad apprehended accused Kamal @ Kamaluddin, who was coming from the side of Zero Pusta, New Usmanpur, in a Santro Car bearing no. DL-3CAQ-5087. After interrogation, SI Jagdish arrested accused Kamal in the present case. Said Santro Car and (Pulastya Pramachala) Page 7 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur one black Burqa kept on the back seat of said car, were taken into police possession. This accused had also confessed his involvement in the incidents of FIR No. 238/12, PS New Usmanpur; FIR No.254/12, PS Zafrabad and FIR No. 236/12, PS Vivek Vihar.
14. On 07.10.2012 by the order of senior officer, SI Nilesh Kumar was assigned further investigation of the present case. On the same day, IO/SI Nilesh Kumar recovered one (1) pistol and seven (7) live cartridges, at the instance of accused Kamal @ Kamaluddin, from his other house bearing no. K-194, New Seelampur, Delhi. These recovered articles were kept in one trunk, which was kept in the hall on the ground floor of this premises. IO prepared sketch of those recovered articles and took them into police possession. Section 147/148/506 IPC were added in the present case. IO recorded statement of witnesses. IO sent all the exhibits, which were taken into police possession in the present case, to FSL, Rohini, Delhi for expert opinion.
15. After completion of investigation, on 26.10.2012 a charge sheet was filed against five (5) accused persons namely 1. Mohd. Iqbal Gazi (since expired); 2. Mohd. Jamal @ Ranjha; 3. Maulana Shakeel @ Shakeel Ahmed @ Mulla Shakeel; 4. Mohd. Umar @ Pau and 5. Kamaluddin @ Kamal @ Bilal, for offences punishable under Section 307/326/147/148/506/120-B/34 IPC & S. 25/27/54/59 Arms Act. This chargesheet was filed before Link MM, North-East District, Karkardooma Court, Delhi. On 01.11.2012, ld. MM-07/NE, Karkardooma Court, Delhi, took cognizance of afore-said offences. Thereafter, case was (Pulastya Pramachala) Page 8 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur committed to the court of sessions by ld. MM-07/NE vide order dated 03.11.2012.
16. On 22.03.2018, first supplementary chargesheet along with FSL report of Ballistic and Biology expert as well as MLCs of injured Mobin and Mohd. Rehman Khan, was filed before ld. Special Judge (NDPS)/ASJ/NE, Karkardooma Court, Delhi.
17. During trial of this case, proceedings against accused Mohd.
Iqbal Gazi stood abated vide order dated 16.04.2019. CHARGE
18. On 18.05.2013, charges were framed against above-mentioned five accused persons, for offences punishable under Section 147/148/307/326/506 IPC read with S. 149 IPC, to which they pleaded not guilty and claimed trial. The charges were framed in following terms: -
"That, you all, on 28.07.2012, at about 08:00pm, at a place, in front of H.No.K-227, K-Block, Main Gali, New Seelamlpur, within the jurisdiction of P.S. Seelampur, Delhi, were members of an unlawful assembly, and in prosecution of common object of the unlawful assembly, reached at the abovesaid place and used force and violence to commit offence, thereby, all of you have committed an offence punishable u/s 147/149 IPC and within the cognizance of this court.
Secondly, you all, on aforesaid date, time and place in prosecution of your common object of the unlawful assembly were armed with deadly weapons for committing riot by using force and violence, and thereby you all committed an offence punishable u/s 148/149 IPC within the cognizance of this court.
Thirdly, you all, on aforesaid date, time and place in prosecution of common object of the unlawful assembly caused bodily injuries to Mobin S/o Sh. Malwa by gun shot with such intention (or knowledge) and under such circumstances that if by that act, all of you had caused death of aforesaid injured, you all (Pulastya Pramachala) Page 9 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur would have been guilty of murder, thereby, you all have committed an offence punishable u/s 307/149 IPC within cognizance of this court.
Fourthly, you all, on aforesaid date, time and place in prosecution of common object of the unlawful assembly voluntarily caused grievous hurt to one Rehman S/o Mohd. Faiz Khan by gun shot, thereby, you all have committed an offence punishable u/s 326/149 IPC within the cognizance of this court.
Fifthly, during the above mentioned date, time and place you all in furtherance of your common intention extended threats to kill aforesaid injured- Mobin, his brother Arif and other public persons, thereby, you have committed an offence punishable u/s 506/149 IPC within the cognizance of this court."
19. On 18.05.2013, separate charge was framed against Mohd. Umar @ Pau, for offences punishable under Section 27/25 of Arms Act, to which he pleaded not guilty and claimed trial. The charges were framed in following terms: -
"That, you, on 28.07.2012, at about 08:00pm, at a place, in front of H.No. K-227, K-Block, Main Gali, New Seelampur, within the jurisdiction of P.S. Seelampur, Delhi, used firer arm, thereby, you have committed an offence punishable u/s 27 of Arms Act within cognizance of this court.
Secondly, you, on 01.10.2012, at unknown time, at a Dairy, B- 2, Auto Market, New Seelampur, within the area of P.S. Seelampur, Delhi were found possessing one pistol and five live cartridges, and thereby committed an offence punishable u/s 25 Arms Act.
Thirdly, you on 05.10.2012, at unknown time, at aforesaid place you were found in possession of five live cartridges i.e. ammunition and thereby you have committed an offence punishable u/s 25 Arms Act."
20. On 18.05.2013, separate charge was framed against Kamaluddin @ Kamal @ Bilal, for offences punishable under Section 27/25 of Arms Act, to which he pleaded not guilty and claimed trial.
(Pulastya Pramachala) Page 10 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur The charges were framed in following terms: -
"That, you, on 28.07.2012, at about 08:00pm, at a place, in front of H.No. K-227, K-Block, Main Gali, New Seelamlpur, within the jurisdiction of P.S. Seelampur, Delhi, used firer arm, thereby, you have committed an offence punishable u/s 27 of Arms Act within cognizance of this court.
Secondly, you, on 07.10.2012, at unknown time, at your H.No.J-194, New Seelampur, within the jurisdiction of P.S. Seelampur, Delhi, were found possessing one pistol and seven live cartridges, and thereby committed an offence punishable u/s 25 Arms Act."
21. On 18.05.2013, separate charge was framed against Jamal @ Ranjha, for offences punishable under Section 27/25 Arms Act, to which he pleaded not guilty and claimed trial. The charges were framed in following terms: -
"That, you, on 28.07.2012, at about 08:00pm, at a place, in front of H.No. K-227, K-Block, Main Gali, New Seelamlpur, within the jurisdiction of P.S. Seelampur, Delhi, used fire arm, thereby, you have committed an offence punishable u/s 27 of Arms Act within cognizance of this court.
Secondly, you, on 06.09.2012, at unknown time, at your house situated in the area of Kanjarwali Pulia, were found possessing one pistol and two live cartridges, and thereby committed an offence punishable u/s 25 Arms Act."
DESCRIPTION OF PROSECUTION EVIDENCE
22. Prosecution examined 30 witnesses in support of its case, as per following description: -
Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties PW1/ PW1 and his brother Mobin/PW9 used Ex.PW1/A Mohd. to run meat shop at Chauhan Banger (complaint of Arif & Pulia. Around 2-3 days prior to PW1) (Pulastya Pramachala) Page 11 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties PW9/Sh. 28.07.2012, accused Kamal came to Mobin their shop and Kamal demanded Rs.
10,000/- p.m. for running that shop.
Kamal also threatened PW9/Mobin to kill him if this money was not paid.
PW9/Mobin paid him Rs. 3000/- at that time.
On 28.07.2012 at about 7.30 p.m., PW1 and PW9 were passing by K block, Seelampur. They were intercepted in front of Prince Tent House, by accused Kamal, Ranjha, Umar, Iqbal Gazi and Maulana Shakeel. Accused Kamal, Ranjha and Umar asked them as to why didn't they pay money to them.
PW9/Mobin replied that whatever was with them, they paid the same and they did not have more money. Then accused Kamal, Ranjha and Umar fired at Mobin with pistol and Mobin received 15-16 gunshots. During firing Shakeel and Iqbal Gazi were loudly saying that whoever would not pay money to them, he would face the same consequence.
Shakeel and Iqbal Gazi had moved away from that place and after firing, accused Kamal, Ranjha and Umar fled away from that place.
PW1 took injured PW9 to GTB hospital.
PW1 got prepared a complaint through one Rajender in GTB hospital and handed over it to police.
PW9 was wearing yellow color slipper (Ex.P-1) and white kurta pajama (Pulastya Pramachala) Page 12 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties (Ex.P-2) at the time of this incident.
PW9 was treated in GTB hospital upto 07.09.2012. Thereafter PW9 was admitted in Permanand Hospital and he kept receiving treatment from both these hospitals.
PW1 and PW9 both correctly identified accused persons in the court.
PW2/Insp On 28.07.2012, PW2 was working as In Ex.PW2/A E.S. Yadav Charge Crime Team/NE District. On that (inspection & at about 8.30 p.m., on receipt of a report PW3/Ct. message from control room, PW2 prepared by Sanjay alongwith PW3/Ct. Sanjay PW2);
(photographer) and ASI Surender Ex.PW3/A1 reached K block in front of Prince Tent to House in Seelampur. PW20/Insp. M.P. Ex.PW3/A13 Singh and PW19/Brijveer met them at (photographs that place. PW2 inspected the street at clicked by that place and noticed blood lying in the PW3); gali in front of Prince Enterprises. He also noticed 12 empty cartridge cases, 5 Ex.PW3/P1 to live cartridges, 2 fired bullets and a pair Ex.PW3/ P13 of yellow color slippers in that gali. (negatives of PW3 took photographs and PW2 afore-said prepared his inspection report. photographs) PW4/W/ On 28.07.2012, she was posted as HC in Ex.PW4/A ASI Mary PS Seelampur. On that day, she was (endorsement Rose working as DO from 4 p.m. to 12 of PW4 on midnight. Ct. Narender brought rukka in rukka); this case to her at about 10.35 p.m., Ex.PW4/B which was sent by SI Brijveer. PW4 (FIR) registered FIR on the basis of that rukka. After registration of FIR, same was handed over to Ct. Narender alongwith (Pulastya Pramachala) Page 13 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties rukka, to hand over the same to SI Brijveer.
PW5/HC On 28.07.2012 PW5 and PW6 were Ex.PW5/D1 Atul & working in police control room. PW5 & PW6/HC was sitting on channel no.117 and PW6 Ex.PW6/A Devender was sitting on channel no.110. PW5 (PCR forms) recorded a PCR call received at 8.07 p.m. PW6 recorded a call received at 8.42 p.m. PW7/Ct. On 15.10.2012, PW7 took 6 sealed parcels from Pradeep MHC(M) PS Seelampur vide RC No.146/21/12, as pertaining to this case and deposited the same in FSL, Rohini. He obtained acknowledgment and handed over the same to MHC(M)/HC Banwari Lal. On 22.10.2012, PW7 again took 7 sealed parcels from MHC(M) along with one sample seal as pertaining to this case vide RC No. 150/21/12. He deposited the same in FSL, Rohini and obtained acknowledgment. PW7 handed over same to HC Banwari Lal. All aforesaid parcels remained intact and their seals were not tampered during aforesaid process.
PW8/SI On 28.07.2012, PW8/SI Manish reached the Gali in K- Manish Block, near H.No. K-227 and he met PW19. On the instruction of PW19/IO/SI Brijveer Singh, PW8/SI Manish went to Jag Pravesh Chandra Hospital, Shastri Park and he collected MLC No.3887 in the name of Rehman, S/o. Faiz. Injured Rehman was already referred to GTB hospital by that time. PW8 came back to the spot and handed over aforesaid MLC to PW19.
PW10/ On 28.07.2012, PW19 was working as Ex.PW16/A, Rajender;S.I. in PS Seelampur. At about 8.15 p.m. Ex.PW16/D PW16/ASI PW19 was assigned a call received vide and Narender DD no. 57B. This call was in respect of Ex.PW16/E (Pulastya Pramachala) Page 14 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties Kumar & firing at K block, Seelampur. PW19 (seizure PW19/ alongwith PW16 visited that place. A memos of Insp. blood stained- slipper, several empty blood on Brajveer cartridge shells, one fired bullet lead and gauze, bullet other things were lying on the road in lead, sleeper, that gali. Injured was already taken to empty GTB hospital and PW19 left PW16 at cartridge shell, that place to secure the spot. PW19 went earth control to GTB hospital and obtained MLC of and blood- injured Mobin/PW9. Mobin was already stained earth taken to operation theater and PW19 met control, which brother of Mobin i.e. Arif/PW1. were lifted On 28.07.2012 PW10/Rajender went to from the place GTB Hospital and he found PW9/Mobin of incident in admitted there in injured condition. PW1 K-Block, got a complaint Ex.PW1/A prepared Seelampur); through PW10/Rajender and handed Ex.PW16/F over the same to PW19. PW19 prepared (sketch of live a rukka on the basis of that complaint cartridges); and came back to the spot. PW19 Ex.PW19/A handed over rukka to PW16 to get the (site plan FIR registered. PW16 went to PS and prepared by PW4 registered FIR in this case i.e. PW19 at the Ex.PW4/B. PW19 was assigned further instance of investigation and PW16 came back to PW1); spot and handed over the FIR and rukka to PW19. Ex.PW19/B (seizure memo On 28.07.2012 PW19 lifted blood, bullet of pullanda lead, sleeper, empty cartridge shell, earth handed over by control and blood-stained earth control, Ct. Virender at from the place of incident in K-Block, GTB hospital); Seelampur, which were separately sealed with seal of 'BS' in different containers. Ex.PW19/ These exhibits were seized vide seizure Article-1 (Pulastya Pramachala) Page 15 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties memo. PW19 had also prepared sketch (empty of live cartridges before sealing them. cartridge shells On this day, Ct. Virender at GTB of two types, hospital handed over two sealed taken out from pullandas along with MLC to PW19 and parcel 1 having PW19 seized those pullandas vide endorsement seizure memo. The case properties were 'FSL identified by PW19 as the same which 2012/F-7705');
were lifted by him from the place of Ex.PW19/
incident. Article-2 (two
On 29.07.2012 PW19 visited place of live cartridges,
incident and met PW1. PW19 prepared a three empty
site plan of that place. On same day, cartridge shell
PW19 was informed by PW8/SI Manish and three bullet
that one more person namely Rehman lead, which
was injured in the same incident. PW19 were taken out
visited residence of Rehman and from parcel 2);
recorded his statement. PW19 also Ex.PW19/ recorded statement of Rajender. Article-3;
Ex.PW19/ Article-4;
Ex.PW19/ Article-5; & Ex.PW19/ Article-6 (blood stained cotton, taken out from parcel 1; blood stained earth control taken out from parcel 2; cemented materials/earth (Pulastya Pramachala) Page 16 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties control taken out from parcel 3; and A yellow colour pair of slipper taken out from parcel no.8; all bearing 'FSL 2012/B-7605' and BIO number-1156/1
2);
PW11/Dr. On 28.07.2012 PW24/Dr. Amber was Ex.PW24/A Aseem working in GTB hospital and he had (MLC of Sharma & seen injured PW9/Mobin and prepared PW9 prepared PW24/Dr. his MLC. PW24 had mentioned the by PW24); Amber injuries noticed on the body of Ex.PW11/A PW9/Mobin in this MLC. Subsequently, (report given PW11/Dr. Aseem Sharma, who also was by PW11) working as senior resident at GTB hospital, had seen PW9/Mobin and his MLC. PW11 found that PW9/Mobin was not fit for giving statement and accordingly PW11 made endorsement in MLC at point A. Subsequently, PW20/Insp. M.P. Singh made an application before M.S. GTB hospital and same was put up before PW11 on 27.08.2012 for giving subsequent opinion. PW11 after going through the record of treatment of PW9/Mobin, gave his report.
PW12/ASI On 01.10.2012 PW12/ASI Pankaj Ex.PW13/A Pankaj Sharma was posted at PS New Usman (OSR) (true (Pulastya Pramachala) Page 17 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties Sharma; Pur as constable. In FIR No. 238/12 PS copy of PW13/Ct. New Usman Pur, PW12 joined sketch of Kapil Dev; investigation with the PW7/HC Pradeep, pistol PW14/ PW13/Ct. Kapil Dev, PW14/IO/SI Jai recovered at IO/SI Jai Prakash, PW22/HC Nathuram and the instance Prakash; accused Umar @ Pau (on police of accused & custody). They all went to B-2 Auto Umar @ Pau PW22/HC Market, Double storey, New Seelampur in FIR No. Nathuram where accused Umar @ Pau went inside 238/12 PS a room and at a corner of the said room, New Usman scrap was lying. From inside the said Pur); scrap, accused Umar @ Pau took out a Ex.PW13/B polythene. On checking the said (seizure polythene, one pistol and five live memo of file cartridges were found. IO-PW14/SI Jai live cartridges Prakash checked the magazine of the recovered at said pistol which was found to be empty. the instance On the said pistol "Made in USA No. of accused 7011" was written on its one of the sides Umar @ and on the other side "765 Around" and Pau); on the upper side/ top of the said pistol, "Only supply for Army" was written. On Ex.PW12/ the handle of the said pistol, plastic Article (pistol strips were fixed on its both sides and recovered at the magazine could be fixed and the instance removed from its lower end. IO- of accused PW14/SI Jai Prakash prepared a sketch Umar @ of the said pistol and cartridges. True Pau); photocopy of the same was placed in the Ex.PW14/ file of this case. On the said cartridges Article-1 (two "KF 7.62" was written on its back. IO- empty shells PW14/SI Jai Prakash put the said pistol of cartridge, 3 back inside the polythene and wrapped it live cartridges with a white cloth and sealed it with the and 2 seal of 'JPS'. IO also put the said bullet/lead (Pulastya Pramachala) Page 18 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties cartridges inside a plastic box and portion of the wrapped it with the help of a white cloth cartridges) and sealed it with the seal of 'JPS'. IO seized both the pullandas vide common seizure memo. PW14/SI Jai Prakash had handed over aforesaid photocopies of the sketch and seizure memo to IO of this case i.e. PW29/SI Nilesh, on 19.10.2012. On 19.10.2012, PW29/SI Nilesh from PS Seelampur came to PS New Usmanpur and he told PW12 that the pistol which they had recovered in case FIR No. 238/12, was also used in FIR No. 258/12 PS Seelampur, whereby accused Umar @ Pau had shot Mobin with said pistol. IO/SI Nilesh Kumar recorded statement of PW12/ASI Pankaj in this regard.
During testimony, PW12/ASI Jai Prakash, PW13/HC Kapil, PW14/SI Jai Prakash had correctly identified accused Umar @ Pau before the court.
PW12, PW13, PW14 identified above-
mentioned pistol. PW14/SI Jai Prakash identified two empty shells of cartridge, 3 live cartridges and 2 bullet/lead portion of the cartridges, which were taken out from the parcel sealed with seal of 'RSS' with particulars of FIR no.238/12, PS N. Usmanpur and bearing endorsement of parcel no.2 and Ex. A1 to A5. PW14 stated that these live cartridges were recovered by him and (Pulastya Pramachala) Page 19 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties were sealed in cloth pullanda.
PW15/ On 04.09.2012 he accompanied Ex.PW15/A ASI Ram PW29/SI Neelesh and accused Jamal @ (pointing out Gopal Ranjha. Accused Jamal @ Ranjha had memo taken them to K block, H.No. 227, prepared on Seelampur. Accused Jamal @ Ranjha the pointing pointed out to a place outside this house of accused and informed that he alongwith his Jamal in the brothers including accused Kamal and presence of father as well as accused Mullah Shakil, PW15) had stopped PW9/Mobin and had fired at him. IO prepared pointing out memo at that place.
During his testimony, PW15 identified Jamal @ Ranjha before the court.
PW17/HC On 30.07.2012 he was assigned Ex.PW17/A Anil; investigation of this case. He visited and PW20/ GTB Hospital to meet injured Mobin, Ex.PW17/B Insp. M.P. who was unfit for statement. On (sketch and Singh; 04.09.2012, PW20 was informed by DO seizure memo PW26/ that accused Jamal @ Ranjha was being of pistol with Insp. produced in Karkardooma Courts. two live Jagdish & PW20/Insp. M.P. Singh along with cartridges PW29/SI PW29/SI Nilesh Kumar, PW17/HC Anil respectively, Nilesh and some more staff went to recovered at Kumar Karkardooma Courts. After obtaining the instance permission from the court, PW20 of accused interrogated and formally arrested Jamal); accused Jamal @ Ranjha in this case Ex.PW17/C vide arrest memo. PW20 also obtainedand police remand of accused Jamal @ Ex.PW17/D, Ranjha for four days. (arrest and On 06.09.2012 PW20/Insp. M.P. Singh personal (Pulastya Pramachala) Page 20 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties along with PW29/SI Nilesh Kumar, search memos PW17/HC Anil and some more staff respectively took accused Jamal to Meerut. Accused of accused Jamal took them to a house near Mullah Kanjarwali Pulia and from there he got Shakeel); recovered one automatic pistol having Ex.PW17/E endorsement of "made in Italy" with two and live cartridges from a room on the Ex.PW17/F, ground floor of that house. Accused sketch and Jamal had taken out these items from an seizure memo almirah of that room. PW20/Insp. M.P. respectively, Singh prepared sketch of that pistol, of two empty magazine and two live cartridges. He shells which filled the FSL form and seized the were above-mentioned recovered articles. recovered at PW20 handed over the seal with FSL the instance form to PW17/HC Anil. PW20 deposited of accused the case property in malkhana after Maulana coming back from Meerut. PW17 and Shakeel); PW20 identified afore-said pistol with magazine and live cartridges, which Ex.PW17/G were recovered at Meerut at the instance& of accused Jamal @ Ranjha. PW20 had Ex.PW17/M visited GTB hospital on 19.09.2012, (seizure when Mobin/PW9 was declared fit for memos of statement and PW20 recorded his burka and car statement. at the instance of accused On 20.09.2012 on receipt of information Kamal); about presence of accused Mullah Shakeel in D Block, Seelampur; Ex.PW17/H PW20/Insp. M.P. Singh along with and PW29/SI Nilesh Kumar, PW17/HC Anil Ex.PW17/I, and other staff went there. Secret (Sketch and informer pointed out to H.No. D-132 seizure memo respectively (Pulastya Pramachala) Page 21 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties and informed PW20 that co-accused of 5 live Mullah Shakeel was inside the house. cartridges, They apprehended accused Mullah recovered at Shakeel from said house bearing D-132 the instance and he was interrogated by PW20. of accused PW20 arrested and personally searched Umar @ accused Mullah Shakeel in this case, Pau); vide arrest and personal search memos. Ex.PW17/J, On 23.09.2012, PW20/Insp. M.P. Singh, Ex.PW17/K PW17/HC Anil and other officials went and to D-132 along with accused Maulana Ex.PW17/L Shakeel. In that house besides one (pointing out bathroom, there was an iron almirah and memo at the accused Maulana Shakeel took out two instance of empty shells of fired cartridges from accused beneath the cloth kept in that almirah. Kamal as well PW20 prepared sketch of both these as sketch and fired cartridges and seized them, vide seizure memo sketch and seizure memo. PW20 of one pistol identified afore-said two fired bullets, and 7 live which were recovered at the instance of cartridges, accused Maulana Shakeel. respectively);
On 02.10.2012, DO informed Ex.PW20/A
PW20/Insp. M.P. Singh that accused (Arrest memo
Umar @ Pau was to surrender in the of Jamal @
court. PW20 along with PW29/SI Nilesh Ranjha);
Kumar and other staff went to Ex.PW20/B
Karkardooma Courts. After obtaining (Arrest memo
permission from the court, PW20 of accused
interrogated and formally arrested Umar @
accused Umar @ Pau, vide arrest memo. Pau);
PW20 obtained police custody remand
of accused Umar @ Pau and prepared Ex.PW20/C
pointing out memo of the place of (pointing out
(Pulastya Pramachala)
Page 22 of 59 ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000072-2015
State v. Mohd. Iqbal Gazi etc.
SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties incident i.e. K Block, Seelampur. memo On 04.10.2012, SHO/Insp. Sanjeev prepared on Kumar briefed PW17/HC Anil, the pointing PW26/Insp. Jagdish, PW29/Sh. Nilesh of accused Kumar (SI) and other police staff that Umar @ accused Kamal would come to Pau);
Seelampur from zero pusta via Ex.PW26/A Pandushila. He formed a team consisting and of PW17/HC Anil, PW26/Insp. Jagdish, Ex.PW26/B, PW29/Sh. Nilesh Kumar (SI), Ct. Irfan, (arrest memo Ct. Dharmender, Ct. Devender, and personal PW15/Ct. Ram Gopal, Ct.Praveen, Ct. search memo Prempal. SHO had also briefed ERV respectively, staff, who was directed to take position of Kamal); at Brahmpuri pulia. They all went to Ex.PW29/D Shastri Park and a barricade was put (disclosure near Hospital and Pandushila. At about statement of 9-9.15 a.m., one Santro car bearing no. accused Umar DL-3CAQ-5087 came at high speed @ Pau); from the side of pusta road and did not stop despite given signal. That car Ex.PW17/ finally stopped when barricade was Article-1 closed there, and the car had hit the (pistol with barricade. Accused Kamal was driving magazine and that car and accused Kamal was live apprehended by them. PW26/Insp. cartridges, Jagdish recorded disclosure statement, which were personally searched and arrested him recovered at vide arrest memo and personal search Meerut at the memo instance of accused Jamal There was one burka kept in that car and @ Ranjha); PW26 converted that burka in a cloth pullanda, which was sealed with the seal Ex.PW20/ of 'JP'. PW26 seized this cloth pullanda Article-1 (two (Pulastya Pramachala) Page 23 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties also vide a seizure memo. PW26/Insp. empty shells Jagdish also seized that car vide seizurewhich were memo. They came back to the P.S. recovered at PW26/Insp. Jagdish deposited the case the instance property in malkhana. of accused On 05.10.2012, PW17/HC Anil and Maulana PW29/Sh. Nilesh (SI) and other police Shakeel); staff took accused Umar @ Pau to Meerut. In Meerut, they searched for weapon of offence as per disclosure statement made by accused Umar @ Pau. At that time, accused Umar @ Pau disclosed that weapon used by him in this case, was already recovered from him by officials of PS New Usmanpur.
Accused Umar @ Pau further disclosed that some more live cartridges were kept by him at his dairy at Seelampur. They came back to Delhi and went to dairy of accused Umar @ Pau near Auto market in Seelampur. In the dairy, there was a room and from that room, accused Umar @ Pau took out 5 live cartridges and produced the same before them.
PW29/SI Nilesh prepared sketch of those live cartridges. PW29 put those cartridges in a plastic box, which was converted into a cloth pullanda and sealed with seal of 'NK'. PW29 handed over that seal to PW17. PW29 seized this pullanda vide a seizure memo. They came back to PS and the case property was deposited in the malkhana. PW29 recorded disclosure statement of accused (Pulastya Pramachala) Page 24 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties Umar @ Pau.
On 07.10.2012, PW17/HC Anil and PW29/Sh. Nilesh (SI) and other police staff namely Ct. Irfan, Ct. Devender, Ct. Dharmender, Ct. Praveen, PW15/Ct.
Ram Gopal took accused Kamal in private vehicle to Meerut. They had gone there in search of supplier of Arms. At that place, accused Kamal disclosed that he had kept the weapon used in this case, in his house at J Block, Seelampur. They came back to Delhi and went to Seelampur. In Seelampur, accused Kamal pointed out a place on the road in K block, as the place where the incident had taken place. PW29/SI Nilesh prepared a pointing out memo accordingly. Thereafter they went to house of accused Kamal in J block, at his instance. Accused Kamal took out one pistol and 7 live cartridges from a room on the ground floor of that house.
PW29/SI Nilesh prepared sketch of that pistol and cartridges. PW29 kept all these things in a cloth pullanda, which was sealed with seal of 'NK'. PW29 seized it vide a seizure memo.
Thereafter they came back to PS. Case property was deposited in malkhana by PW29/SI Nilesh.
PW18/Sh. In the year 2012 in the month of Ramjan, PW18 found Shabbir PW9/Mobin in injured condition near Seelampur Jama Ahmed Masjid on the road. PW18 had made a call at 100 number regarding that, using his mobile phone no. 9840495557.
(Pulastya Pramachala) Page 25 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties PW18 alongwith 2-3 persons including Salman, had taken PW9/Mobin to GTB hospital at about 6-6:30 p.m., in a TSR. PW9/Mobin was having bullet shots on his stomach and back.
PW21/ASI On 28.07.2012 was posted as MHC(M), Ex.PW21/A Banwari PS Seelampur. IO/SI Brajveer handed (colly 4 pages Lal over 6 pullandas to him. PW21/ASI OSR) (true Banwari Lal made the entry vide S.No. copy of 3641. On 15.10.2012, PW21/ASI relevant page Banwari Lal handed over aforesaid 6 of register pullandas to PW7/Ct. Pradeep for no.19 bearing depositing the same in FSL Rohini, vide entry vide road certificate no. 146. PW7/Ct. S.No.3641);
Pradeep after depositing the same Ex.PW21/B
handed over the acknowledgment of the (OSR) (true
FSL. copy of Road
On 06.09.2012, PW20/Insp. M.P. Singh certificate deposited one pistol & two cartridges in no.146); the malkhana. PW21 made entry in this Ex.PW21/C regard at S.No.3698. (OSR) to On 20.09.2012, PW20/Insp. M.P. Singh Ex.PW21/J deposited the jamatalashi in the (OSR) (true malkhana and PW21 made the entry in copy of this regard at S.No.3720. relevant page of register On 23.09.2012, PW20/Insp. M.P. Singh no.19 bearing deposited 2 cartridge shells in the entries vide malkhana and PW21 made the entry in S.Nos.3698, this regard at S.No.3723. 3720, 3723, On 25.09.2012, SI Manoj Kumar 3726, 3734, (PW27) deposited one sealed pullanda. 3735, 3737, & PW21 made the entry to this effect at 3548); S.No.3726. Ex.PW21/K On 04.10.2012, PW26/Insp. Jagdish (OSR) (true (Pulastya Pramachala) Page 26 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties Prasad deposited car & burkha, entry of copy of R/C which was made at S.No.3734. no.150) On 05.10.2012, PW29/SI Nilesh Kumar deposited 5 live cartridges and PW21 made entry vide S.No.3735.
On 07.10.2012, PW29/SI Nilesh deposited one pistol and 7 live cartridges in malkhana, entry of which was made by PW21 vide S.No.3737.
On 22.02.2013, PW29/SI Nilesh deposited one sealed pullanda received from Anand Hospital, Meerut. PW21 made entry vide S.No.3548.
On 22.10.2012 vide R/C no.150, seven pullandas and one sample seal were sent to FSL Rohini through PW7/Ct.
Pradeep. PW7/Ct. Pradeep handed over PW21 the receiving of deposit for the aforesaid case property in FSL Rohini. PW21 identified true copy of aforesaid entries. PW21 deposed that all aforesaid entries in register no.19 or register no.21, were made in his own handwriting.
PW23/Ms On 26.10.2012, PW23 was working as Ex.PW23/A
Poonam Senior Scientific Officer (Biology) in (colly 2
Sharma FSL Rohini. PW23 had requisitioned the sheets) (report
exhibits of this case from strong room of prepared by
FSL Rohini. PW23 had received 6 PW23);
parcels in sealed condition in this case Ex.PW23/
and she checked the seals, which were Article-1 and
found intact and similar to respective Ex.PW23/
specimen seals. PW23 had to check
(Pulastya Pramachala)
Page 27 of 59 ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-000072-2015
State v. Mohd. Iqbal Gazi etc.
SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties presence of the blood on the exhibits Article-2 (one taken out from afore-said six parcels, as torn vest with well as origin of such blood with their stains and one respective blood group. PW23 examined underwear these exhibits for aforesaid purpose. having brown PW23 prepared a report in respect of stains examination conducted by her and her respectively, findings. PW23 identified:- (i) blood on taken out gauze as Ex.PW19/Article-3, which was from parcel taken out from sealed parcel no.1; (ii) no.6); blood earth stained cemented stone as Ex.PW23/ Ex.PW19/Article-4, which was taken out Article-3 and from sealed parcel no.4; (iii) cemented Ex.PW23/ earth control as Ex.PW19/Article-5, Article-4 one which was taken out from sealed parcel white pyjama no.3; (iv) one torn vest with stains and having stains one underwear having brown stains as, and one white which were taken out from sealed parcel kurta having no.6; (v) one white pyjama having stains stains and one white kurta having stains, which respectively, were taken out from sealed parcel no.7 which were and (vi) a pair of slippers as taken out Ex.PW19/Article-6, which was taken out from sealed from parcel no.8. parcel no.7) PW25/Dr. On 25.09.2012 PW25 was posted as Ex.PW25/A Puneet CMO in Sant Parmanand Hospital, (handing over Kumar Delhi. On this day, PW25 had handed memo) Kashyap over one bullet in a sealed bottle to the & police. This bottle was sealed with seal PW27/ of 'SPH'. The bullet was handed over to Insp.
PW25 in the container by the concerned Manoj Kumar Surgeon. Same day on the directions of IO-PW20/Insp.M.P.Singh, reached Sant Parmanand Hospital alongwith Ct. Ram (Pulastya Pramachala) Page 28 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties Bhajan. In the hospital, PW25/Dr. Puneet handed over one sealed pullanda with seal of 'SPH' and one sample seal, to PW27/Insp. Manoj Kumar. PW27 had prepared a memo in respect of the same.
PW28/Dr. On 20.10.2012, he was working as Sr. Ex.PW28/A Puneet Scientific Officer (Ballistics), in FSL (colly 2 Puri Rohini. PW28 examined all the exhibits sheets.) taken out from seven sealed parcels, in (report this case. PW28 found that the prepared by improvised pistol marked Exhibit F1, PW28); was in working order. Test fire was Ex.PW28/ conducted through this pistol Article-1 successfully by using the cartridges (bullet taken marked Exhibits A3 and A4. The test out from fired cartridge cases were marked as parcel no.4); TC1, TC2 and the two recovered test fired bullets were marked as TB1 and Ex.PW28/ TB2 respectively. His detailed report in Article-2 (five this regard was prepared. live cartridges taken out PW28 identified: - (i) empty cartridge from parcel shells of two types as no.6); & Ex.PW19/Article-1, which were taken out from sealed parcel no.1; (ii) two live Ex.PW28/ cartridges marked as A1 and A2, three Article-3 empty cartridge shells marked as A3, A4 (empty and A5, and three bullet lead marked as cartridge case TB1, TB2 and TB3, as and one test Ex.PW19/Article-2, which were taken fired bullet out from another sealed parcel; (iii) one taken out pistol with grafting 1111 over its from parcel barrel/slider, two live bullets/cartridges no.7) as Ex.PW17/Article-1, which were taken out from another sealed parcel; (iv) one (Pulastya Pramachala) Page 29 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur Sl. No. & Role of witness & Description of Proved Name of Testimony documents/ Witness case properties bullet, which was taken out from sealed parcel bearing endorsement of parcel no.4, Ext.-EB3 and FSL2012/F-7705 with particulars of this case; (v) two fired bullets as Ex.PW20/Article-1, which were taken out from the sealed parcel bearing FSL 2012/F-7705 & Ext-
EC13, EC14 & Parcel 5; (vi) five live cartridges, which were taken out from sealed parcel bearing endorsement of parcel no.6, Ext.-A8 to A12 and FSL2012/F-7705 with particulars of this case and (vii) one pistol and six live cartridges and one empty cartridge case and one test fired bullet, which were taken out from sealed parcel bearing endorsement of parcel no.7, Ext.-F2, A13 to A19 and FSL2012/F-7705 with particulars of this case.
PW30/ On 11.12.2015 being Nodal Officer in CPCR, PHQ, I.P. ACP Estate, N.D, he had issued certificate u/s. 65/B of I.E. Act Devender in respect of electronic PCR form bearing CPCR DD No. Kumar 28 Jul 12 1170441. Said PCR form is Ex.PW5/A and certificate is Ex.PW5/B. PLEA OF ACCUSED PERSONS U/S. 351 BNSS
23. All four accused persons denied all the allegations. 23.1 Plea of accused Mohd. Umar @ Pau - This accused took plea that at the time of alleged incident, he was not present at or near the spot and PW1 deposed falsely against him. He had never pointed out any place of incident. He further took plea that he had never made any disclosure statement and his signatures were (Pulastya Pramachala) Page 30 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur obtained on many blank papers, while he was in the custody of the police in this case as well as in FIR No. 238/12 of PS New Usmanpur. It was further pleaded that no recovery of any kind whatsoever was effected from the dairy or at his instance. The alleged recovery has been planted upon him. He further took plea that witnesses deposed against him, are false and interested witnesses and they have deposed falsely. Accused Umar @ Pau further took plea that he has nothing to do with the commission of alleged offences. He is innocent and he has been falsely implicated in this case. Since complainant Mobin and PW Arif are his cousins (bua ke bete) and they are also brother-in-law of his elder brother Kamaluddin @ Kamal. His father and grand- father had gifted the plot measuring 400 Sq. Yrds. situated at Chauhan Bangar, New Seelampur, Delhi, to his younger aunt (Bua) namely Sajar (w/o. Yusuf) and the complainant and his family were also demanding share in the properties of his father, which his father did not give to them. Due to these reasons the complainant's family were having grudges against his family. Besides this, his brother Kamal @ Kamaluddin had solemnized love-cum-arranged marriage with Baharo (cousin sister of complainant Mobin and PW Arif) and the family of complainant was opposing this marriage. This was also one of the reasons, the complainant's family was inimical to them. The police was also keeping enmity with them because his father had filed a complaint case in Karkardooma Court against Mr. Vivek Gogia (former DCP, North-East District) and Mr. Gurcharan Das (former SHO of PS Seelampur) and an order for registration of FIR against these police officials was passed on the said (Pulastya Pramachala) Page 31 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur complaint. Due to these reasons, accused Umar @ Pau his father and brothers had been implicated in the present case. At the time of alleged incident, he was not present at the place of incident as he was attending the Iftar Party organized by one Rahees, his wife and one Mohd. Aamir at B-2, New Seelampur, Delhi.
24. Plea of accused Kamal @ Kamaluddin @ Bilal - This accused also took plea that he never demanded any such money as deposed by PW1. Accused Kamal further took plea that he was not arrested in the manner as shown by the police. He was arrested from his home. Nothing was recovered as shown. The car and other articles had been planted upon him. Accused Kamal further took plea that he had never made any disclosure statement and he never pointed out any place. His signatures were obtained on many blank papers while he was in the custody of the police. No recovery of any kind whatsoever was effected from above J Block or at his instance. The alleged recovery has been planted upon him. He also took plea that witnesses deposed against him are false and interested witnesses and they have deposed falsely. It was further pleaded that he has nothing to do with the commission of alleged offences. He is innocent and he has been falsely implicated in this case. Since complainant Mobin and PW Arif are his cousins (bua ke bete) and they are also his brother-in- law. Accused further took plea that his father and grand-father had gifted the plot measuring 400 Sq. Yrds. situated at Chauhan Bangar, New Seelampur, Delhi, to his younger aunt (Bua) namely Sajar (w/o. Yusuf) and the complainant and his family were also demanding share in the properties of his father, which his father did not give to them. Due to this reasons the (Pulastya Pramachala) Page 32 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur complainant's family were having grudges against his family. Besides this, he had solemnized love-cum-arranged marriage with Baharo (cousin sister of complainant Mobin and PW Arif) and the family of complainant was opposing this marriage. This was also one of the reasons, the complainant's family was inimical to them. The police were also keeping enmity with them because his father had filed a complaint case in Karkardooma Court against Mr. Vivek Gogia (former DCP, North-East District) and Mr. Gurcharan Das (former SHO of PS Seelampur) and an order for registration of FIR against these police officials was passed on the said complaint. Due to these reasons, he, his father and brothers had been implicated in the present case. At the time of alleged incident, he was not present at the place of incident as he was present at his home i.e. K-288 at New Seelampur, with his wife and children and was taking rest after Roja Iftar.
25. Plea of accused Mohd. Jamal @ Ranjha - This accused also took plea that witnesses deposed falsely against him. He further took plea that he has nothing to do with the commission of alleged offences. He is innocent and he has been falsely implicated in this case. Mobin who is complainant in this case, is his cousin (bua ka beta), who had been lodging false cases against him along with his brother Arif. This case was also falsely lodged at his instance.
26. Plea of accused Maulana Shakeel @ Shakeel Ahmed @ Mulla Shakeel - This accused also took plea that at the time of alleged incident, he was not present at or near the spot and PW1 deposed falsely against him. He further took plea that PW1 and PW9 both (Pulastya Pramachala) Page 33 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur already knew him much prior to the alleged incident and they falsely named him in the present case. Accused Maulana Shakeel further took plea that he was lifted by the police from Chhajju Gate, Babarpur, Delhi at about 4 a.m. and then falsely arrested and implicated in the present case. He took further plea that he had never made any disclosure statement. His signatures were obtained on many blank papers while he was in the custody of the police. No recovery of any kind whatsoever was effected from his house or at his instance. The recovery of two fired bullet has been planted upon him. He further took plea that he has nothing to do with the commission of alleged offences. He is innocent and he has been falsely implicated in this case. Accused Maulana Shakeel further took plea that since he had campaigned in the election of Hajjan Shakila, who was sister-in-law (bhabhi) of accused Umar, Kamal and Jamal and Hajjan Shakila was candidate from BSP in the election of Municipal Corporation of Delhi, therefore, Mobin and his brother Arif, who were supporters of Congress Party, nurtured ill will for him and for such reasons they falsely implicated him in this case. At the time of alleged incident, he was present at Gosiya Masjid at Jafrabad with one of his friends namely Arshad, while making preparation for prayers (Isha Namaz). This Masjid was around 1.5Km away from the alleged place of incident.
27. All accused persons i.e. Kamal, Jamal, Umar and Maulana Shakeel opted to lead evidence in their defence and accordingly five defence witnesses were examined namely DW1/Mohd. Amir, DW2/Rahees, DW3/Gayur Hasan, DW4/Mohd. Salim, and DW5/Arshad Khan.
(Pulastya Pramachala) Page 34 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur
28. I heard ld. Addl. PP, ld. counsel for complainant as well as ld.
counsels for respective accused persons. I have perused the entire materials on the record, including written arguments. ARGUMENTS OF DEFENCE & PROSECUTION
29. Mohd. Irfan, ld. counsel for accused Umar @ Pau, Kamaluddin @ Kamal @ Bilal and Maulana Shakeel @ Shakeel Ahmed, argued that S.326 is not made out, because Rehman was not examined nor his MLC was proved. It was further argued that no sanction u/s. 39 of Arms Act has been proved against any accused, in support of charges framed for offence u/s. 25 of Arms Act. Ld. counsel further argued that as per complaint (Ex.PW1/A) only accused Kamal had fired, but PW1 improvised his statement and added names of Ranjha and Pau in his subsequent statements. It was further argued that no complaint was made to police regarding extortion demanded by accused Kamal, three (3) days prior to incident. In his first statement, PW1 did not mention about presence of Mobin with him during extortion demand. Ld. counsel further argued that no call was made at 100 number on 28.07.2012, from PW1's mobile number. It was further argued that name of PW1 was not mentioned as brought by, in the MLC of Mobin. Rather it was name of Sabbir, who did not mention about presence of PW1 at the spot. Ld. counsel further argued that no TSR or Tavera as mentioned by PW1, was looked for by IO. Other two companions to hospital were also not examined. PW1 did not offer explanation for not taking name of other accused as persons who had fired, in his complaint Ex.PW1/A. Ld. counsel further argued that PW24 deposed that injured Mobin was fit to give statement up to 9 PM.
(Pulastya Pramachala) Page 35 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur PW18/Shabbir had taken Mobin to GTB and his name is mentioned in MLC of Mobin. But he did not meet PW1 in hospital and police had come there in his presence. PW2 did not mention about finding slippers at the spot, in SOC report.
30. Written arguments/submission was also filed by Mohd. Irfan, ld.
counsel for accused Umar @ Pau, Kamaluddin @ Kamal @ Bilal and Maulana Shakeel @ Shakeel Ahmed. It was mentioned that in the present case, there is no conclusive evidence to establish that all accused shared a common object. Ld. counsel referred to judgment passed by Hon'ble Supreme Court in Kuldip Yadav v. State of Bihar, (2011) 5 SCC 324, to highlight the observations that mere presence at the scene of occurrence is insufficient to infer common object. The charge under Section 25 Arms Act is not made out against any of the accused persons in the absence of requisite sanction u/s. 39 Arms Act. It was further mentioned that the prosecution has shown to have recovered two empty cartridges at the instance of accused Maulana Shakeel, but no charge u/s 25 Arms Act has been framed against accused Maulana Shakeel in the present case. Ld. counsel referred to a judgment passed by Hon'ble Apex Courts in Masalti v. State of U.P., AIR 1965 SC 202, to highlight the observations that conviction cannot be based solely on testimonies of interested witnesses without corroboration. It was further mentioned that during his examination in chief before the court, PW1 nowhere stated that Mobin was with him, when accused Kamal allegedly came to his shop, demanded money and threatened to kill him. But when this witness was re-called for deposing qua accused Jamal, PW1 improved his statement and stated that Mobin was (Pulastya Pramachala) Page 36 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur present with him on that day. PW1 in his first deposition stated that it was he himself, who had paid Rs.3,000/- to accused Kamal, but when recalled, he deposed that Mobin paid Rs.3000/- to accused Kamal. It was further mentioned that surprisingly, PW1 did not receive any injury in the incident, while he was allegedly present at spot alongwith Mobin who had received 15- 16 gunshot injuries. It was further alleged that PW1 had also not produced before the investigating agency, the two other boys who allegedly accompanied and helped him in transporting the injured Mobin to hospital. It was further mentioned that PW18/Shabbir Ahmed in his deposition had categorically stated that it was he himself who transported the injured Mobin to GTB hospital and PW1/Mohd. Arif was not with him at that time. PW18 further deposed that Arif came in the hospital later on with other family members of injured Mobin. It was further mentioned that as per the statement of PW10/Rajender Kumar, complaint Ex.PW1/A got written from him by ACP Talwar at PS Seelampur and not by PW1 Arif in the hospital. It was further mentioned that that as per MLC of injured Rehman, he was brought to JPC hospital by one Mohd. Arif Khan, who had also not been examined in this case. As per MLC, it mentions the name of SI Brijveer, while SI Brijveer nowhere stated that he visited JPC Hospital on that day. Even, SI Brijveer did not record the statement of injured Rehman. It was further mentioned that IO had not collected any further treatment record of injured Rehman from GTB Hospital. The reason behind non-examination of injured Rehman in this case is that the version of Rehman was totally in contradiction with present case. It was further mentioned that PW9/Mobin in (Pulastya Pramachala) Page 37 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur his cross examination dated 26.07.2023 had stated that prior to the incident, he had a quarrel with Kamal in Meerut UP. Thus, this witness was in inimical terms with accused Kamal @ Kamaluddin, had a motive to implicate family members of accused Kamal in the present case. Ld. counsel referred to judgments passed by Hon'ble Supreme Court in Nikhil Chandra Mondal v. State of West Bengal; (2023) 2 SCR 20 and Jaikam Khan Vs. State of UP; (2021) 14 SCR 767, to highlight the observations that the recovery of weapon from an open place accessible to one and all could not be relied upon to establish the guilt of the accused persons.
31. Sh. Abdul Gaffar and Sh. Nadeem, ld. counsels for accused Kamal @ Kamaluddin, argued that name of PW1 is not mentioned in the MLC of Mobin, which shows that he was not present at the spot with Mobin. PW1 was not found by Shabbir in the hospital, whose name is mentioned in the MLC. PW9 was fit for statement, but police deliberately did not record his statement, to manipulate the case. All the recoveries were falsely shown against the accused persons, by police, in order to falsely implicate them.
32. Written argument was filed by Sh. Abdul Gaffar, ld. counsel for accused Kamal @ Kamaluddin. It was mentioned that accused was falsely implicated and arrested without any supporting evidence and IO of this case, attempted to introduce and plant unreliable witnesses. It was further mentioned that charge was framed under the Arms Act, but the prosecution did not obtain the necessary sanction under Section 39 of the Arms Act. Another (Pulastya Pramachala) Page 38 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur alleged eyewitness Rehman, who was cited as a prosecution witness in the charge sheet, was neither examined by the prosecution nor was his Medical Legal Certificate (MLC) presented. It was further mentioned that there is not a single witness to arrest of accused Kamal, neither mechanical inspection was done either of car of Kamal or the barricade, nor prosecution brought on record any DD of secret information. It was further mentioned that PW2 could not identify the contents of his own complaint Ex.PW1/A. PW2 denied his signature on Ex.PW1/A. It was further mentioned that PW9 never reported to police about demand of Rs.10,000/- per month from him by accused. Testimony of PW2 is silent about the presence of PW9 on that day. PW2 did not state that his brother was also present there. PW9 admitted previous enmity with accused and tainted past. PW9 was declared fit of statement, despite that his statement was recorded with considerable delay. It was further mentioned that PW9 is not credible witness and there is no explanation about the witness hiding his initial treatment at JPC Hospital. It was further mentioned that entire case of prosecution is doubtful pertaining to time, date and place of incident. It was further mentioned that prosecution failed to prove its case beyond reasonable doubt, as no explanation has been offered why the witness had not passed crucial information in formal manner. He was very much in touch with police official. Ld. counsel referred to the judgment passed by Hon'ble Supreme Court in Ganesh Bhavan Patel v. State of Maharashtra, to submit that testimonies of alleged eye witnesses are highly doubtful and suspicion.
33. Sh. Dinesh Malik and Ms. Barkha Grover, ld. counsels for (Pulastya Pramachala) Page 39 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur accused Jamal @ Ranjha, argued that it is nowhere appearing on the record that PW16 and PW19 took steps, to preserve the scene of crime. In that case, bullets could have been lost easily, especially when public movement was there. Ld. counsels further argued that PW2 came there and met PW19. PW19 said that after leaving PW16 at the spot, he had left for GTB. PW19 reached there at 08:45-08:50 PM. PW19 would have remained in GTB at least up to 09:30 PM. He deposed that Crime Team came at 11 PM at the spot. Ld. counsel further argued that PW1 did not sign the site plan. Though, PW2 deposed that crime team had inspected the place since around 9 PM. Ld. counsels further argued that Rajendra Kumar did not support the version of PW1, regarding preparation of complaint Ex.PW1/A. All these contradictions point out to manipulation done by police and doubtful version of PW1 and PW9.
34. Written argument was also filed by Sh. Dinesh Malik, ld. counsel for accused Jamal @ Ranjha. Ld. counsel reiterated failure of prosecution to recover cartridge, slippers etc. at crime scene. It was mentioned that inspection of scene of crime, by crime team is not only dubious, but also dent the recovery/seizures of articles at the place of incident/spot. Ld. counsel also reiterated that recovery of pistol at the instance of accused Jamal @ Ranjha is not only dubious, but also not admissible. It was further mentioned that presence of Mohd. Arif at the spot and eyewitness to the entire episode is also doubtful. It was further mentioned that evidence of PW10/Sh. Rajender Kumar and PW18/Shabbir Ahmad supported the version of accused persons. MLC of injured Rehman was not brought on record. It was further (Pulastya Pramachala) Page 40 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur mentioned that motive of delay in recording statement of PW9/Mobin, was to falsely implicate the accused persons. It was further mentioned that none of the cartridges recovered from the body of injured, matched with the pistol recovered from accused Jamal @ Ranjha. The prosecution did not obtain sanction under Section 39 of the Arms Act, thus, accused cannot be prosecuted under Arms Act without sanction as required. Prosecution failed to prove the charge under Section 326 IPC, because neither injured Rehman was examined nor was his MLC brought on record, in the present case. It was further mentioned that in the present case, there was no satisfactory evidence to prove the formation of any unlawful assembly at any time with the common object and there was no determined plan.
35. Per contra, Sh. Praveen Kumar, ld. Addl. PP for State along with Sh. Javed Khan, ld. counsel for complainant, argued that PW1/Mohd. Arif and PW9/Sh. Mobin (injured) have supported the charges framed in the present case. PW12 was witness to recovery from accused Umar conducted on 01.10.2012 and PW17 was witness to recovery from accused Umar conducted on 05.10.2012. Ld. Addl. PP further argued that PW17 was witness to recovery from accused Kamal and Jamal also. It was further argued that even defence witnesses deposed that it was month of Ramzan. There is no dispute related to place of occurrence and time of firing at that place. The dispute has been raised by defence against involvement of accused only. But, PW1 and PW9 have duly deposed about role played by each accused, which proved the case of prosecution.
(Pulastya Pramachala) Page 41 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur
36. Ld. counsel for complainant/injured Mohd. Mobin also filed written argument and relied upon certain case laws, which are as under: -
36.1 Sadakat Kotwar & Anr. v. State of Jharkhand, AIR2021SC5747. 36.2 Vasant Vithu Jadhav v. State of Maharashtra, AIR2004SC2678. 36.3 State of M.P. v. Mansingh & Ors., (2003)10SCC414. 36.4 Ashok Kalyan Dass v. State of U.P. 2005 CRI.L.J. 1009. 36.5 Raj Nath v. State of U.P. AIR2009SC1422. 36.6 Ld. counsel for complainant mentioned that in the present case the accused persons used the deadly weapons i.e. pistol and caused injuries to PW9 on his vital part. Judgment passed by Hon'ble Supreme Court in Sadakat (supra), was referred to highlight following observations: -
"2. .....the evidence of an injured eye-witness has great evidentiary value unless compelling reasons exist, their statements are not be discarded lightly. 4.1 ....Thus deadly weapon have been used and the injuries are found to be grievous in nature. As the deadly weapon has been used causing the injury near the chest and stomach which can be said to a vital part of the body, the appellants have been rightly convicted for the offence under Section 307 IPC read with Section 34 of the IPC. ..........nobody can enter into the mind of the accused and his intention has to be ascertained from the weapon used, part of the body chosen for the assault and nature of the injury caused considering the case on hand on the aforesaid principles, when the deadly weapon - dagger has been used, there was a stab injury on the stomach and near the chest which can be said to be on the vital part of the body and the nature of the injuries caused, it is rightly held that the appellants have committed the offence under Section 307 IPC."
36.7 Ld. counsel for complainant further mentioned that in the present case accused persons had fired upon PW9 with a very close (Pulastya Pramachala) Page 42 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur range, using deadly weapons with the intent and object to kill him, for non-compliance of their demands. Judgment passed by Hon'ble Supreme Court in Vasant Vithu (supra), was referred to highlight following observations: -
"9. ........ It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to be see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not to be the penultimate act. It is sufficient in law, if there is present an intent coupled with some over act in execution thereof.
10. It is sufficient to justify a conviction under S. 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, it is not correct to acquit an accused of the charge under S. 307 IPC, merely because the injuries inflicted on the victim were in the nature of a simple hurt.
36.8 Judgment passed by Hon'ble Supreme Court in Mansingh (supra), was referred to highlight following observations: -
"9. The evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Merely because there was no mention of a knife in the first information report, that does not wash away the effect of the evidence tendered by the injured witnesses PWs 4 and 7. Minor discrepancies do not corrode the credibility of an otherwise acceptable evidence. The circumstances highlighted by the High Court to attach vulnerability to the evidence of the injured witnesses are clearly inconsequential. It is fairly conceded by the learned counsel for (Pulastya Pramachala) Page 43 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur the accused that though mere non-mention of the assailants' names in the requisition memo of injury is not sufficient to discard the prosecution version in entirely, accordingly to him it is a doubtful circumstance and forms a vital link to determine whether the prosecution version is credible. It is settled position in law that omission to mention the name of the assailants in the requisition memo perforce does not render the prosecution version brittle.
................
12. Even if it is accepted that there were deficiencies in the investigation as pointed out by the High Court, that cannot be a ground to discard the prosecution version which is authentic, credible and cogent. Non-examination of Hira Lal is also not a factor to cast doubt on the prosecution version. He was not an eyewitness, and according to the version of PW8 he arrived after PW8. When PW8 has been examined, the non-examination of Hira Lal is of no consequences."
36.9 Judgment passed by Hon'ble Supreme Court in Ashok Kalyan (supra), was referred to highlight following observations: -
"9. After appreciating evidence of prosecution and the defence case, learned Additional Sessions Judge arrived at the conclusion that the appellant was known to the victim since before the occurrence. When he along with three others armed with weapons went to his shop in the evening of 28-5-1980 and demanded Rs. 50/-, some conversation did take place. The appellant became infuriated. There was electric bulb and rod in the shop of the victim/complainant. When the Complainant refused to give Rs.50/- and said that the accused was insisting as if his father had kept it in his shop, the accused became infuriated. Appellant and his two associates caused five injuries with knives and third associate caused one injury with iron rod. .................... The doctor has stated that these injuries were caused on vital part of the body on forehead, left side fact, right side chest etc. ..... Thus, the statement of the eyewitnesses supported with the statement of the doctor, nature of injuries, prompt F.I.R., source of light etc. fully proved the charge under Section 307 read with Section 34 I.P.C. against the Appellant. In (Pulastya Pramachala) Page 44 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur this case, it may be said that no independent witnesses was examined to prove the prosecution story. ....
10. ..... if witnesses of the locality are not being examined, on this basis, the statement of the victim and his two witnesses cannot be disbelieved. ........... The victim also did not become unconscious immediately. ....... Therefore, it was within his knowledge as to how the occurrence took place and therefore, vivid description of the occurrence made by the Complainant victim deserves to be believed."
36.10 Judgment passed by Hon'ble Supreme Court in Raj Nath (supra), was referred to highlight following observations: -
"8. ............. The word 'object' means the purpose of design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. ............... Members of an unlawful assembly may have community of object upto certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly.
9. 'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. ........ unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of (Pulastya Pramachala) Page 45 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. ..........
10. ............ if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. ............
11. ........while overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under section 149."
APPRECIATION OF LAW, FACTS AND EVIDENCE LAW PROVISIONS & LEGAL PRINCIPLES
37. It is matter of record that though charges for offence u/s. 25 Arms Act were framed against Mohd. Umar, Kamal and Jamal @ Ranjha, but prosecution did not place on the record the sanction u/s. 39 Arms Act against any of these accused persons, in respect of afore-said charges. Section 39 Arms Act, 1959, provides that "No prosecution shall be instituted against any person in respect of any offence under section 3 without the previous sanction of the District Magistrate." Section 3 of this Act deals with acquisition and possession of fire arms and ammunition. Section 25 of this Act provides for punishment for different situations including acquisition or possession in contravention of section 3. In the present case, the charges against accused Mohd. Umar, Kamal and Jamal for offence punishable u/s. 25 of this Act, are based on possession of fire arm and ammunition in contravention of section 3 of this Act. Therefore, there cannot be any doubt that (Pulastya Pramachala) Page 46 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur section 39 of this Act was applicable in this case. In that situation, these charges could not have been framed for want of sanction as required u/s. 39 of this Act. Hence, the arguments of the defence in respect of these charges have to be accepted, so as to drop these charges.
38. Defence also challenged the charge for offence punishable u/s.
326/149 IPC, which related to voluntarily causing grievous hurt to injured Rehman, taking plea, that no evidence is there on the record, in support of this charge. It is matter of record that said Rehman was not produced before the court for his examination. Mohd. Rehman was reported unserved on 01.06.2019 with report that the occupier of the property namely Mohd. Arif, s/o. Wasi Khan, informed that the said Rehman had left this property after the incident and his latest whereabouts were not known. Police did not trace this witness/injured. Even MLC in the name of this injured was not proved by the prosecution. Thus, the peculiar allegations, which were basis of charge for offence punishable u/s. 326 IPC, do not stand proved on the record. INCIDENT OF FIRING
39. Now, I have to look into the evidence peculiar to other charges framed in this case. During the course of arguments, there was consensus among prosecution and defence in respect of fact of an incident of firing having taken place on 28.07.2012 at about 8 PM in K-Block, Seelampur. It was so deposed by even DW3/Gayyur Hasan as well as by DW4/Mohd. Saleem, without any challenge from any of the accused persons. On the record, prosecution had placed a site plan of place of incident, which was proved as Ex.PW19/A. PW19 was first IO of the case. Though (Pulastya Pramachala) Page 47 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur defence gave suggestion to PW19 that this site plan was prepared while sitting in PS on his own by PW19, but defence did not take any such plea so as to challenge the correctness of this site plan. According to PW19, he had prepared the site plan at the instance of Arif i.e. PW1. Even otherwise, on receipt of information of the incident, the place of crime was inspected by crime team and PW19, where they had found empty cartridge cases etc. with blood. Therefore, this site plan cannot be doubted.
40. There are certain photographs of the place of incident also on the record, which were proved as Ex.PW3/A-6 to Ex.PW3/A-13 along with respective negatives. PW3/Ct. Sanjay Kumar/ASI Sanjay Kumar had proved these photographs claiming that he had clicked these photographs in K-Block, Seelampur in front of Prince Enterprises and Prince Tent House. He was also cross- examined by defence counsels. He was given suggestion that he did not visit spot and that these photographs were manipulated at the instance of the complainant. These suggestions were denied by PW13. One of the photographs show a shop being there in the name of Prince Enterprises. Another photograph shows a shop on the opposite side to be Prince Electronic and Electricals. These photographs were proved with respective negatives, and there is no material on the record to suggest any kind of manipulation with these photographs. There was no challenge from the side of defence to the fact that there were no such shops situated at alleged place of firing and as mentioned hereinabove. Even defence witnesses also vouched for incident of firing on the same day at around same place. PCR forms i.e. Ex.PW5/A and Ex.PW6/A mentioned about place of incident below house (Pulastya Pramachala) Page 48 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur no.227, K-Block, Seelampur and H.No.7/224, Double Storey, New Seelampur. It is worth to mention here that PCR form Ex.PW6/A related to information being given about injured Rehman, when he was brought to Jag Pravesh Hospital. The photographs show empty cartridge cases and slippers lying on the road at that place.
41. MLC of PW9/Mobin i.e. Ex.PW24/A, was in fact referred and relied upon by defence also, to base their argument against credibility of prosecution evidence. That MLC leaves no doubt that Mobin had sustained gun- shot injuries in the aforesaid night and was taken to GTB Hospital with such injuries.
42. Therefore, taking overall view of these evidences on the record and the claim made by defence witnesses along with the deposition of PW1 and PW9, I do not find any doubt in respect of an incident of gun firing taking place on 28.07.2012 at about 8 PM at the place as shown in site plan Ex.PW19/A, wherein PW9/Mobin was injured.
INVOLVEMENT OF ACCUSED PERSONS
43. Now, the question is that whether accused persons were involved in this incident of gun firing, as claimed by prosecution and complainant. This is the hotly contested issue between both the parties. The prosecution examined PW1 and PW9 as eyewitness and victim of this incident. Both of them are brothers and both pointed to all the accused persons as offender. But defence has challenged their credibility and the credibility of the case presented by the prosecution. Hence, I shall now discuss the credibility and reliability of evidence in that regard.
44. In order to assess the credibility of deposition made by PW1 and (Pulastya Pramachala) Page 49 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur PW9, it is very relevant to refer to the feed backs given from the field/spot of crime by PCR officials, immediately after the incident. It is worth to mention here that prosecution relied upon and proved two PCR forms i.e. Ex.PW5/A and Ex.PW6/A. The feed backs as mentioned in these PCR forms are as follows: -
44.1 Feed back mentioned in Ex.PW5/A: -"DCR No. Received 113
Report Received from VAN FROM SEELAMPUR RED LIGHT ==== 28/07/2012 20:29:53 MAUKE PAR KAAFI BHEED HAI I/C VAN AUR GUN MAN MAUKE PAR GAYE HAI WAIT FOR HALAAT 28/07/2012 20:38:18 MAUKE PAR PUBLIC NE BATAYA KI EK LADKE MOBIN S/O KALUA AGE U/K KO KUCHM LOG U/K GAADI MEIN AAKER GOLI MAARKER BHAAG GAYE THE JISKO PUBLIC WAALE U/K HOSP. MEIN LE GAYE HAI B-46 DIRECTED TO GTB HOSP. AND B- 18 DIRECTED TO JAG PARVESH HOSP. TO CHECK THE ABOVE 28/07/2012 20:39:19 LP MAUKE PAR AA GAYEE HAI. 28/07/2012 20:56:48 FROM BAKER 46 == I\C VAN HOSP. ME GAYE HAI HALAT KE LIYE WAIT. 28/07/2012 21:08:47 FROM BAKER 46 == MOBIN S\O KALUA AGE 30 YRS R\O K-227 NEW SEELAMPUR KA BHAI BATA RAHA HAI HAZI AFZAL KE GHAR KE SAMNE HAZI AFZAL KE BHAI KAMAL NE 6\7 GOLI MOBIN KO MARI HAI JISKA GTB HOSP. ME DOCTOR TREATMENT KAR RAHE HAI JO BEHOSH HAI PET ME AUR KAMAR ME BAKI 5\6 GOLI PAIR ME LAGI HUI HAI HAZI AFZAL KI WIFE CONSLLER HAI LP. BHI GTB HOSP. AA GAI HAI 28/07/2012 21:42:43 FROM B- 13 ====MD. REHMAN S/O MD SAW KHAN AGE (Pulastya Pramachala) Page 50 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur 25 YRS R/O ABOVE NE BATAYA KI KARIB 2000 HRS PAR PAANI KE KHALI MAYUR JAG LENE K-BLOCK H.NO 227 SEELAMPUR MEIN GAYA THA. WAHA PAR GHAR MEIN APAS MEIN JHAGRA HO RAHA THA JISMEIN GOLI CHALI THI JO ISKE LEFT PEIR PANJE KE OOPER GOLI LAG GAYEE THI ISNE BATAYA KI EK GOLI JHAGRA KARNE WALE MOBIN S/O KALUWA KO BHI LAGI THI JO DONO KO PUBLIC JAG PARVESH HOSP. MEIN LEKAR AAYEE THI JO MOBIN KO GTB HOSP. KE LIYE REFER KAR DIYA HAI AUR MD. REHMAN JAG PARVESH HOSP.
MEIN ADMIT HAI B-46 DIRECTED TO GTB HOSP. 28/07/2012 21:22:17 DOCTOR SAHAB NE AB REHMAN KO BHI GTB HOSP. KE LIYE REFER KAR DIYA HAI JISKO LEKAR GTB HOSP. JA RAHE HAI 28/07/2012 21:49:48 FROM B- 7=== MAUKE PA 12 KHALI KHOL AUR 6 JINDA ROUND MILE HAI JO HAWALE LP SHO WITHSTAFF AUR CRIME TEAM BHI MAUKE PAR HAI 28/07/2012 21:57:20 PM B- 7=== MAUKE PAR JHAGRE KA KOI KARAN NAHI PATA CHALA HAI PUBLIC NE BATAYA KI MOBIN S/O KALUWA B/C THA AUR BRAHAMPURI KI PULIA PAR ISKE MEET KI DUKAN THI 28/07/2012 02:45:10 FROM B-13 === INJ. KO HAWALE D/CT GTB HOSP. MAIN HOSH MEIN KIYA AT 2200 HRS."
44.2 Feed back mentioned in Ex.PW6/A: -
"DCR No. Received 121Report Received from VAN FROM 1ST PUSTA USMANPUR==28/07/2012 20:55:29 MD. REHMAN S/O MD. SAW KHAN AGE 25 YRS R/O ABOVE NE BATAYA KI KARIB 2000 HRS PAR PAANI KE KHALI MAYUR JAG LENE K-BLOCK H.NO 227 SEELAMPUR (Pulastya Pramachala) Page 51 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur MEIN GAYA THA WAHA PAR GHAR MEIN APAS MEIN JHAGRA HO RAHA THA JISMEIN GOLI CHALI THI JO ISKE LEFT PEIR PANJE KE OOPER GOLI LAG GAYEE THE ISNE BATAYA KI EK GOLI JHAGRA KARNE WALE MOBIN S/O KALUWA KO BHI LAGI THI JO DONO KO PUBLIC JAG PARMESH HOSP. MEIN LEKAR AAYEE THI JO MOBIN KO GTB HOSP. KE LIYE REFER KAR DIYA HAI AUR MD. REHMAN JAG PARVESH HOSP. MEIN ADMIT HAI B-46 DIRECTED TO GTB HOSP. 28/07/2012 21:22:17 DOCTOR SAHAB NE AB REHMAN KO BHI GTB HOSP. KE LIYE REFER KAR DIYA HAI JISKO LEKAR GTB HOSP. JA RAKE HAI 28/01/2012 22:00:48 UPROKT KO HAWALE D/CT GTB MEIN HOSH MEIN KIYA."
45. MLC Ex.PW24/A mentions name of Shabbir with mobile number of 9266998771, in the column of particulars of person who brought the patient. Same mobile number was mentioned in PCR form Ex. PW5/A. This Shabbir was examined as PW18. In his testimony, PW18 deposed that he had found Mobin (PW9) in injured condition near Seelampur Jama Masjid on the road. He had made a call at 100 number and had taken Mobin to GTB Hospital in a TSR. One of his companions was Salman and he did not remember about other companions. PW18 was declared hostile by the prosecution. In his cross examination by the prosecutor, PW18 deposed that Arif i.e. brother of Mobin (PW1) had not gone to hospital alongwith him. In his cross examination by defence counsel, PW18 deposed that Arif had met him in the hospital when family members of Mobin had reached there.
46. Above-mentioned evidence of PW18 contradicts the claim of PW1 in respect of factum of taking PW9 to the hospital by PW1 (Pulastya Pramachala) Page 52 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur alongwith PW18. PW1 in his cross examination by defence counsel deposed that PW18 had gone to hospital, but PW1 had met doctor in the hospital rather than PW18. This claim of PW1 is belied by the MLC itself, which mentions name of PW18 rather than PW1. In natural course of action, had PW1 accompanied injured Mobin (PW9) to the hospital, then being brother, he would have come forward before the doctor and his name would have been mentioned in the MLC of Mobin. Therefore, deposition of PW18 appears to be more probable regarding taking Mobin to hospital without PW1, against the claim made by PW1.
47. If PW1 had been present with his brother PW9 at the spot during incident, then in normal course of action, PW1 would have taken PW9 to the hospital. Therefore, if it becomes doubtful that PW1 actually took PW9 to the hospital, then his presence at the spot also becomes doubtful.
48. PW8/SI Manish was also posted in PS Seelampur at that time. He deposed that on 28.07.2012 he had reached K Block, Seelampur and met SI Brijvir (1st IO)/PW19. On direction of PW19, SI Manish went to Jag Pravesh Hospital and collected MLC in the name of Rehman s/o Faiz. By that time Rehman was already referred to GTB Hospital, hence, PW8 could not meet Rehman. PW8 came back to the spot and handed over MLC of Rehman to PW19. However, PW19 deposed that PW8 came to him next day in the police station, and at that time PW8 handed over MLC of Rehman to him and informed him that Rehman was also injured in the same incident. At this stage, I would refer to the contents of DD entry no 40 A dt. 28.07.2012. Extract of this DD entry was (Pulastya Pramachala) Page 53 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur relied upon by the prosecution and was placed on the record, though prosecution did not prove it. This DD entry cannot be used against the accused persons for the reason that this document was not tendered in the evidence and they did not get a chance to challenge this document, but same can be certainly used against the prosecution. This DD entry shows that at 8.42 P.M., this entry was recorded on the basis of getting information about an injured boy with firearm injury on his leg, being brought to Jag Pravesh Hospital. This DD entry was also assigned to PW19 and was sent to him through Ct. Ishwar. PW19 kept mum over this DD entry and action taken by him on the same. It was but natural that PW19 would have been informed about this DD entry also, latest by 9 P.M. In that situation, testimony of PW8 appears more probable rather than stand taken by PW19. PW19 must have become aware about injury to Rehman in the same incident on same night.
49. In the background of aforesaid situations, the above-mentioned feed backs given by PCR van officials, become very important and relevant. It must be appreciated that these feed backs were transmitted as first reaction from the relevant places by PCR van officials, who worked separately from local police. In such situations, there remains minimal chance of exaggeration or manipulation in the field report from the PCR van officials. Some parts of the reports were based on their own assessment and some were based on the inputs received by them. PCR form Ex.PW6/A mentions that at 8.55 P.M., the PCR officials reported from Jag Pravesh Hospital that Rehman had disclosed that at about 8 P.M., he had gone to H.No.227 in K block, Seelampur, where some (Pulastya Pramachala) Page 54 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur incident had taken place inside the house and gunshots were fired. Rehman had sustained gunshot in that incident and the person who was quarreling namely Mobin s/o Kaluwa had also sustained one bullet. Both these injured were brought to Jag Pravesh Hospital by public, but Mobin was referred to GTB Hospital and Rehman was admitted in Jag Pravesh Hospital. At 9.22 P.M. PCR van officials further reported that Rehman was also referred to GTB Hospital and was being taken to GTB Hospital. At 10 P.M, it was reported by PCR van officials that Rehman was handed over to doctor in GTB Hospital, while Rehman was conscious.
50. The aforesaid feed backs, make it clear that even Mobin was first taken to Jag Pravesh Hospital by public persons and thereafter he was taken to GTB Hospital. Secondly, by 10 P.M. even Rehman was also brought to GTB Hospital. It has come in the evidence of PW24/Dr. Amber Kumar that Mobin was conscious and was fit for giving his statement at least till 9 P.M. Thus, both these injured persons were available to give their statement, but their statements were not recorded by PW19 in GTB Hospital that night. PW19 in fact did not even whisper about seeing Rehman in the hospital. He rather deposed that next day he visited house of Rehman and recorded his statement. Such conduct of 1 st IO is suspicious. In normal course of action, an IO would love to find the injured of crime in fit condition to make statement at the earliest possible time, in order to get first hand account of facts from injured itself. Rukka prepared by PW19 mentions time of sending the rukka to police station, at 10.30 P.M. Rukka mentions that PW19 obtained MLC of Mobin, wherein doctor (Pulastya Pramachala) Page 55 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur had declared him fit for statement. PW24 deposed that Mobin remained under his supervision in casualty at least upto 9 P.M. i.e. the time of change of shift/duty. Rukka mentions that Mobin was taken to operation theater and PW19 met Arif (brother of Mobin) in the hospital, who gave his statement written through his friend Rajendra Kumar, to PW19. PW19 further mentioned in his rukka about MLC of Rehman being handed over by PW8 at the spot. But he did not mention anything further about Rehman.
51. Coming back to feed backs given by PCR van officials from K block Seelampur, Ex.PW5/A referred to aforesaid feed backs also, which are otherwise part of PCR form Ex.PW6/A. Besides those feed backs, Ex.PW5/A mentioned the feed backs received from K Block, Seelampur. As per those feed backs, at 8.38 P.M. it was reported that at the place of incident, public persons had disclosed that one boy namely Mobin was fired upon by some unknown persons, who had come in unknown vehicle and had fled away, and public persons had taken Mobin to some unknown hospital. At 8.39 P.M. local police had reached the spot. At 9.08 P.M. PCR van officials reported from GTB Hospital that brother of injured Mobin was telling that in front of house of Hazi Afjal, brother of Hazi Afjal namely Kamal had fired 6-7 gunshots at Mobin and Mobin was being treated in GTB Hospital. Local police had also reached GTB Hospital by that time.
52. PW1 or PW9 in their evidence, did not whisper about accused persons coming in some vehicle. They took different stand about all accused intercepting them and then firing by three of the accused persons. As per their testimonies, firing was done from close range, but evidence of PW24 and MLC/Ex. PW24/A belie (Pulastya Pramachala) Page 56 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur this allegation. In case of short-range firing, there would have been tattooing and blackening around gunshot injuries, which were not so found by PW24 during examination of PW9.
53. PW1 did not say that PW9 was first taken to Jag Pravesh Hospital. Rather he denied this fact. In that situation, two different accounts of facts appear on the record regarding taking Mobin to the hospital. None of the IOs said anything about the feed backs given by PCR van officials and they did not say that those feeds backs were wrongly given. Record is silent in respect of reasons for differences in the account of facts, as given by PCR van officials and PW1.
54. PW1 claimed that in the hospital, PW10 had written complaint at his instance, which was given by him to the police. However, PW10 deposed that on 28.07.2012, he reached GTB Hospital, where Mobin was admitted, after sustaining firearm injury. After seeing Mobin, he came back to his home. Thereafter, police called him in the police station and one ACP Talwar met him and made him to write a false complaint regarding incident with Mobin. At that time PW1 was not present in the police station. This witness was also declared hostile by prosecution. In his cross examination PW10 admitted that complaint PW1/A was written in his hand writing and also bore his signature, but he denied the suggestion that he had written that complaint in the hospital at the instance of PW1. Testimony of PW10 might be distorted and tainted one, but as substantial evidence there is nothing to prove that PW10 wrote this complaint at the instance of PW1. Moreover, when presence of PW1 at the spot at the time of incident is doubtful, then the contents of this complaint also (Pulastya Pramachala) Page 57 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur become doubtful. In that situation, even if it is presumed that this complaint was written by PW10 at the instance of PW1, on the basis of presence of PW1 at the spot with PW9 being doubtful, veracity of this complaint also becomes questionable.
55. Another aspect related to complaint Ex.PW1/A is that it imputed role of firing only to accused Kamal, but subsequent statements were given expanding this role to other two accused persons also. PW1 offered explanation that he was nervous at the initial time of giving statement. However, omitting to mention the name of two accused if they also had fired and who were well known to PW1, is abnormal and it may well be possible that such facts were added on subsequently, to implicate all accused with serious role imputed against them.
56. According to PW19, he had reached GTB Hospital by around 8.45 P.M. He was assigned this DD entry 54 A at about 8.15 P.M. PW1 and PW10 took about 30 minutes to prepare the complaint Ex.PW1/A and then PW19 prepared rukka and then he came back to place of incident. This shows that PW19 remained at GTB Hospital till around 9.30 P.M, but he sent rukka at 10.30 P.M. In the evidence of Mobin/PW9, PW9 admitted having dispute with Kamal in the past, leading to lodging case against him. Thus, in the background of a sour relationship, it was not improbable that even though some unknown person/persons fired at Mobin, PW1 would have presumed accused persons being responsible for the same and accordingly, he named accused persons before police, without actually witnessing the incident. PW9 had given his statement much later in time and he would have simply followed the stand taken by his brother PW1.
(Pulastya Pramachala) Page 58 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-000072-2015 State v. Mohd. Iqbal Gazi etc. SC No. 44383/2015 FIR No. 258/2012, PS Seelampur CONCLUSION & DECISION
57. In view of my foregoing discussions, observations and findings, I find that evidence of PW1 and PW9 are not beyond doubts regarding identity of assailants, and that there is possibility of accused Mohd. Umar @ Pau, Kamaluddin @ Kamal @ Bilal, Mohd. Jamal @ Ranjha and Maulana Shakeel being named falsely in this case. Hence, all accused persons are found entitled for benefit of doubt and they are acquitted of all the charges levelled against them in this case.
Digitally signed by PULASTYAPULASTYA PRAMACHALA PRAMACHALA Date:
2025.04.09 11:05:45 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 09.04.2025 ASJ-03(North East) (This judgment contains 59 pages) Karkardooma Courts/Delhi (Pulastya Pramachala) Page 59 of 59 ASJ-03, North-East District, Karkardooma Courts, Delhi