Delhi District Court
State vs Nadeem on 23 March, 2024
IN THE COURT OF SH. PANKAJ ARORA:
ADDITIONAL SESSIONS JUDGE-04: NORTH-EAST:
KARKARDOOMA COURT: DELHI
SESSIONS CASE NO. 08/19
CNR No. DLNE01-000070-2019
FIR No: 264/2018
P.S. Seelampur
U/s : 302/109/34 of IPC
u/s 25/27 of Arms Act
STATE
Versus
1. Nadeem Khan
s/o Sh. Saleem Khan
r/o H. No. T-65, Gali no. 8,
Gautampuri, Delhi
2. Masoom Ali @ Mehtab
w/o Sh. Mohd. Taki @ Chand Miyan
r/o H. No. E-15/C-1/46,
New Seelampur, Delhi
Date of Institution : 07-01-2019
Date of Argument : 29-01-2024
Date of Judgment : 23-03-2024
JUDGMENT
1. Brief facts of this case are that on 13-08-2018 at about 6:36 pm, an information was received at PS Seelampur regarding incident of firing near Gautampuri pulia, which was reduced into writing vide DD no. 53B (Ex. PW4/A) and marked to ASI Khagnesh and Ct. Nitin. After some time, at about 7:30 pm, another information was received regarding a lady sustaining bullet injury at new Seelampur, Brahmpuri pulia, which was reduced into writing vide DD no. 58B (Ex. PW4/B). Thereafter, ASI Khagnesh along with Ct. Nitin reached at the spot i.e. H. No. FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 1 of 54 E-15/C-11, 2nd Floor balcony, New Seelampur, Delhi where he noticed that blood was lying on the floor. Upon inquiry, he was informed that victim had already been taken to JPC Hospital. Ct. Nitin was deputed to guard the place of incident and ASI Khagnesh left for JPC Hospital. He obtained MLC No. 17791/18 dated 13-08-2018 of victim Sana w/o Iqbal. Further investigation of this case was marked to SI Naveen Kumar, who reached at the place of incident and met Ct. Nitin. On inquiry, he was informed that victim has been taken to JPC Hospital and ASI Khagnesh had also gone there. After leaving Ct. Nitin for guarding the place of incident, SI Naveen had also left for JPC Hospital where he met ASI Khagnesh, who handed over MLC no. 17791/18 to him wherein doctor had endorsed "A/H/O fall from height on 13-08-2018, H/O Nasal Bleed, laceration over forehead 2 x 0.5". Later on, the victim was referred to GTB hospital. Efforts to trace eyewitness was made by SI Naveen Kumar but could not find anyone. Thereafter, SI Naveen along with ASI Khagnesh reached GTB Hospital where victim was found under treatment but the doctor declared the victim to be 'unfit for statement'. The doctor informed that cause of injury could not be ascertained at that time as CT Scan of injured was yet to be done. Efforts were made to trace eyewitness at GTB hospital but none was found. Thereafter, IO returned at the spot and made efforts to search eyewitness but could not found anyone. No fired cartridge or bullet was found at the spot. On the basis of above-stated facts, present FIR for the offence punishable u/s 308 of IPC was registered. Crime Team was called and spot was got inspected. Blood in gauge was lifted as exhibit, which was seized vide seizure memo Ex. PW26/A. Site FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 2 of 54 plan of the spot Ex. PW34/B was prepared.
On 14-08-2018, SI Naveen Kumar received information regarding death of injured Sana during her treatment in GTB hospital. He went to GTB hospital and came to know from doctor that in the CT Scan report of injured Sana, a bullet was found in her head. Dead body of deceased was preserved in the mortuary for 72 hours. He informed father of deceased. He also gave information to SDM Seelampur as death of the deceased had occurred within 3 months of her marriage in unnatural circumstances. Statement of father of deceased namely Bashir Akhtar was recorded by SDM. On the same day, SI Naveen Kumar recorded statements of eyewitnesses i.e. Mohd. Iqbal, husband of deceased and Mohd. Naeem in PS. On 15-08-2018, SI Naveen Kumar made local inquiry regarding the incident and recorded statements of Mehzabi @ Sukhi, master Zaid and Haris. On the same day, husband of deceased Mohd. Iqbal came to PS and produced one CD stating that incident of firing by accused Nadeem and pelting of stone by accused Masoom Ali @ Raju was recorded. After seeing the CD, SI Naveen Kumar sealed the CD with the seal of NK and seized the same vide seizure memo Ex. PW2/A. He also recorded statement of Mohd. Iqbal.
On 16-08-2018, postmortem of deceased was got conducted at GTB hospital by Medical Board of doctors vide PM no. 1511/18 Ex. PW13/A. During postmortem, firearm injury was found by the doctors on the forehead of deceased and bullet was also found present.Three sealed pullandas were handed over by the concerned doctor, which were seized vide seizure memo Ex. PW 34/F. After postmortem, the dead body was handed over FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 3 of 54 to the relatives.
On 18-08-2018, SI Naveen Kumar along with Ct. Jaiveer and HC Amit searched the accused persons. At about 7 am, on the basis of secret information, accused Masoom @ Mehtab was arrested, while he was heading towards his house, vide arrest memo Ex.PW33/A. Accused Masoom confessed about his role and his disclosure statement was recorded vide memo Ex. PW33/D. On 20-08-2018, accused Nadeem was formally arrested (who was already arrested in case FIR no. 423/18, PS Bhajanpura wherein weapon i.e. one pistol which was used in the commission of alleged offence was also recovered) with the permission of the court and his disclosure statement Ex. PW35/J was recorded. Thereafter, further investigation was marked to Inspector Nafe Singh. On 24-08-2018, during PC remand, accused Nadeem got recovered one yellow colour full sleeves T- shirt having black stripes from the duchatti at the ground floor of his house, which was claimed to have been worn by the accused at the time of incident. Same was seized vide seizure memo Ex. PW34/M. Pointing out memo of place of incident was prepared at the instance of accused Nadeem vide memo Ex. PW34/N. Accused Nadeem pointed out the place of incident vide memo Ex. PW34/O. After completion of necessary formalities, charge- sheet was filed in the court of Ld. 'Ilaqa' MM.
COMMITTAL
2. After taking cognizance and compliance of section 207 Cr. PC, present case was committed to the court of sessions vide order dated 05-01-2019 of ld. MM-02/NE/KKD. Thereafter, the then Ld. District and Sessions Judge, KKD Courts allocated this case to the ld. Predecessor of this court.
FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 4 of 54 CHARGE
3. On the basis of facts emerging from the chargesheet and after hearing the arguments, Ld. Predecessor of this court framed charges against the accused Nadeem for the offences punishable u/s 302 of IPC and u/s 27 of Arms Act and against accused Masoom Ali for the offence punishable u/s 109 r/w Section 302 of IPC, to which both the accused persons pleaded not guilty and claimed trial. Thereafter, prosecution got examined as many as 38 witnesses.
PROSECUTION EVIDENCE
4. (i) PW-1 Mohd. Rizwan was cited as an eye-witness of the incident. He deposed that he is engaged in business of ready-made garments and residing along with his family at C- 1/21, New Seelampur, Delhi for the last about 10-12 years or so. He did not remember the exact date or month but it was in the year 2018, one day at about 6 pm, he had parked his scooter at his house. At that time, he heard cries of public persons coming from the place situated on the backside of his house. There was one nala (drain) situated on backside of his house on which road was situated and it is called nala road. On hearing the noise, he went there and saw gathering of 50-60 public persons over there. Some of those public persons told him that quarrel had taken place some time back, during which there was exchange of fire between group of persons. They also told him that wife of Iqbal who was also residing in near vicinity, was lying in her house situated on 2nd floor. They requested him to make PCR call at 100 number as they had tried to make PCR call but same could not be made. Accordingly, he made PCR call at 100 number from his mobile phone no. 9654494461. In the meantime, Iqbal FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 5 of 54 had brought his wife down and he removed his wife on two- wheeler scooter belonging to Asif to JPC hospital.
The witness was cross-examined by Ld. Addl. PP for State as he was partly resiling from his previous statement.
During cross-examination by ld. Addl. PP for State, he affirmed that it was 13-08-2018 at about 7:30 pm when he was present at his house and he heard cries of public persons. He denied the suggestion that out of gathering of public persons, some of them had told him that wife of Iqbal had sustained bullet injury. He denied that when Iqbal had brought down his wife to the road, he had seen blood oozing out from her forehead. He affirmed that he had met the police official concerning this case but he denied that police had made any inquiry from him or that police had recorded his statement in this regard. He denied that he had made statement before the police on 17-08-2018 or that he had told in his said police statement that he was told by some of those public persons that wife of Iqbal was hit but bullet or that blood was oozing out from her forehead when she was brought down by Iqbal. He denied that he has been won over by the accused persons or that is why he was deliberately concealing the aforesaid facts before this court. He was cross-examined by the Ld. Defense counsel, but nothing material came out therein.
(ii) PW-2 Mohd. Iqbal was complainant in the present case. He deposed that he runs plastic moulding factory at ground floor of his house at E-15/C-11, near Imam Bada, New Seelampur, Delhi. On 13-08-2018 at about 6/ 6:15 pm, he was present at his factory on ground floor and on hearing noise, he had come out of his house and saw that a quarrel was going on between two groups i.e. group belonging to family members of FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 6 of 54 Sukhi and another group belonging to family members of Chand. The quarrel was going on near the house of Chand. The members of both the groups were hurling stones at each other. The members of Sukhi group were present near his house and members of Chand group were present near the house of Chand. In the quarrel, son of Chand namely Masoom Ali asked his relative Nadeem that he should take out gun and shoot at the members of Sukhi group. Nadeem was already known to him as he used to visit the house of Chand. On the asking of Masoom Ali, Nadeem and his associates proceeded towards the members of Sukhi group. At that time, Nadeem was having pistol type weapon and he was proceeding towards the members of Sukhi group while firing in straight direction. At this time, his wife Sana was present on balcony of 2nd Floor of his house and watching the quarrel. After members of both groups dispersed due to firing of Nadeem, he went inside his factory. After about half an hour or so, when he went upstairs on 2 nd floor of his house, he saw that his wife was lying in the balcony of 2 nd floor and blood was oozing out from her forehead. He immediately brought her down and made PCR call at 100 number but it did not connect. He took his wife to JPC hospital and after receiving medical treatment in emergency ward, his wife was referred to GTB hospital. He removed his wife to GTB hospital in ambulance. During treatment, his wife was declared dead during night hours in GTB hospital and the concerned treating doctor had informed that his wife had died due to sustaining bullet injury and bullet was present in her head. The dead body of her wife was removed to mortuary of GTB hospital and got preserved there.
FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 7 of 54 On next day i.e. 14-08-2018, he along with his brother-in- law (jija) Mohd. Naim had reached at PS Seelampur where SI Navin Kumar met them, made inquiry from him and recorded his statement.
On 15-08-2018, his friend Mohd. Amir, who was residing in the area of Chauhan Bangar, had come to him at his house and told him that he had captured the incident of firing taken place on 13-08-2018, in his mobile phone. Mohd. Amir had shown the said video in his mobile phone wherein he saw Nadeem firing with pistol and Masoom Ali was throwing stones. He requested Mohd. Amir to provide him the same. Accordingly, he got the said video recording converted into CD and handed over said CD to him on 15-08-2018 itself. He handed over the said CD to SI Navin Kumar on 15-08-2018 at PS Seelampur. SI Navin Kumar had kept the said CD in a plastic box and sealed and prepared one document on which he had signed. He identified the said document i.e. seizure memo dated 15-08-2018 of sealed pulanda of CD prepared by SI Navin Kumar from court record as Ex. PW2/A. His supplementary statement was also recorded by SI Navin Kumar in this regard.
On 16-08-2018, he along with his brother-in-law Mohd. Amir had gone to mortuary of GTB hospital where he identified the dead body of his wife Sana vide memo Ex. PW2/B. After postmortem, the dead body of his wife was handed over to him vide memo Ex. PW2/C. On 06-11-2018, IO Inspector Nafe Singh had met him along with one police official Mahesh Kumar. They had called him outside his house and made inquiries. Mahesh Kumar had taken measurements of the scene of crime at his instance. At that FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 8 of 54 time, his supplementary statement was recorded by the IO. He identified both the accused correctly in the court.
He also identified the clothes of his wife i.e. one kurta, salwar, chunni, one bra and tabiz having dark brown stains belonging to his wife as Ex. PW2/Article-1.
One CDR of Writex containing footage of 1 minute 30 seconds duration but after seeing the footage, the witness could not identify any person as the assailants therein.
He stated that he had not handed over any CD containing the said footage to the IO during investigation of this case.
He identified the mobile phone make Oppo as Ex. PW2/Article-2 which was used by Amir for taking video of the incident and was handed over to the police by Amir.
The witness was cross-examined by Ld. Addl. PP for State as he was resiling on some aspects from his previous statements.
During cross-examination by ld. Addl. PP for State, he affirmed that one of his statements was recorded on 15-08-2018. he affirmed that he had stated to the police in his statement that on his asking Amir, had handed over to him a video transferred from his mobile to a CD which he had handed over to the police of PS which was kept by the police in a transparent plastic box and sealed with the seal of NK and seized vide seizure memo Ex. PW2/A. He affirmed that on 22-04-2019, when his statement was recorded in the court, he had stated these facts. He affirmed that on 19-08-2019, when his stated was again recorded, he had stated that he had not handed over any CD containing the said footage to the IO during investigation of this case.
To a question as to why he had stated this fact of not giving FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 9 of 54 this CD to the police during investigation, he stated that he had handed over to the police but he did not remember the date when he had handed over or even he could not say whether he had handed over the same before or prior to the filing of the chargesheet. To another question as to whether it was correct that he had deliberately told before the court in his statement on 19-08-2019 that after seeing the entire footage, the assailants could not be identified by him, he stated that it was incorrect.
He denied the suggestion that he had not deliberately identified the assailants in the CD which was played before the Court on 19-08-2019 and he was deposing falsely in this regard to save the accused persons.
He further deposed that when there was firing and his wife received injury, he was not present at the spot so, he could not say whether she was visible from a spot towards Brahmpuri Pulia or that the firing was from both sides or from the accused side. He was not knowing the names of accused persons and was not recognizing them from their faces.
(iii) PW-3 ASI Narender Singh deposed that on 13-08- 2018, he was posted as Duty Officer at PS Seelampur and at about 10:20 pm, Ct. Nitin gave him rukka sent by SI Naveen Kumar and he got registered the FIR u/s 308 of IPC vide Ex. PW3/A. He had also made kayami DD no. 23A and made endorsement on the rukka vide Ex. PW3/B. He issued certificate u/s 65B of Indian Evidence Act vide Ex. PW3/C. He further deposed that on 01-10-2018, the MHCM of PS Seelampur had handed over sealed pulandas of present case to him vide RC no. 156/21/18 and one another sealed pulanda vide RC no. 155/21/18 along with sample seal. He had deposited the same at FSL FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 10 of 54 Rohini. He was cross-examined by the Ld. Defense counsel, but nothing material came out therein.
(iv) PW-4 HC Surender Singh deposed that on 13-08- 2018, he was working as DD writer at PS Seelampur and at about 6:36 pm, an information was received regarding incident of firing which was recorded vide DD no. 53B as Ex. PW4/A and informed to ASI Khagnesh for necessary action. At about 7:30 pm, an information was received regarding bullet injury to a lady at New Seelampur, Brahmpuri Pulia which was recorded vide DD no. 58B Ex. PW4/B. and marked to ASI Khagnesh.He was cross-examined by the Ld. Defense counsel, but nothing material came out therein.
(v) PW5 HC Udaivir Singh deposed that on 13-08-2018, he was working as MHCM at PS Seelampur. He proved relevant entries of register no. 19 and road certificates in relation to deposit and sending the case property to FSL as Ex. PW5/A to Ex. PW5/K. He was cross-examined by the Ld. Defense counsel, but nothing material came out therein.
(vi) PW6 SI Suman Kumar deposed that on 13-08-2018, he was working as I/C Mobile Crime Team, NE and at about 8:15 pm, he along with ASI Raj, Finger Printer expert, and Ct. Mohit, photographer had gone to E-15/C-11, New Seelampur, 2 nd floor where he met with SI Navin and other staff. He inspected the spot between 8:30 pm to 9 pm and saw blood lying in the balcony, one cloth and ladies chappal. He prepared his SOC report bearing no. 769/18 vide Ex. PW6/A. He was cross- examined by the Ld. Defense counsel, but nothing material came out therein.
(vii) PW7 Dr. Kunal Kishore, Medical Officer, JPC FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 11 of 54 Hospital deposed that on 13-08-2018, he was working in JPC hospital as Medical Officer. He saw the MLC no. 17791 of Sana w/o Iqbal, 28 years female. She was brought to hospital by Iqbal with alleged history of fall from height about 15 minutes back. On local examination, he found laceration over forehead 2 x -0.5 cm with history of nasal bleed. He administered necessary medicines and patient was referred to surgery department. He exhibited the MLC as Ex. PW7/A. In his cross-examination by Ld. Defense counsel, he stated that the alleged history was told to him by the husband of patient.
(viii) PW8 SI Jaiveer deposed that on 17-08-2018, he was posted at AATS, NE as ASI and further investigation of this case was marked to him. On that day, he reached the spot in front of Yamuna Vihar Depot where ASI Satish Rana along with staff was already present. ASI Satish Rana produced accused Nadeem Khan before him and handed over one sealed pulanda containing pistol, sealed with the seal of SK. He interrogated the accused and arrested him in case FIR no. 423/18 vide arrest memo Mark X. On interrogation, accused Nadeem Khan gave disclosure statement Mark Y admitting his involvement in an incident dated 3-08-2018 stating that on that day, he along with his relative Mehtab Bhai had used the pistol and bullet hit one lady standing on the roof of her house. In his cross-examination, he stated that he did not remember his departure DD number. He stated that he did not make any request to the person present in the petrol pump or employees of petrol pump to join investigation.
(ix) PW9 Inspector Mahesh Kumar deposed that on 06/11/2018, he was working as Draftsman, Crime Branch, PHQ. On that day, he along with Inspector Nafe Singh reached the spot FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 12 of 54 i.e. RCC Road along ganda nala, Brahmpuri, Delhi. Mohd. Iqbal also reached there and at the pointing out of Mohd Iqbal and Inspector Nafe Singh, he took measurements of place of incident and prepared rough notes. Thereafter, they reached at 2nd Floor of house of Mohd. Iqbal where measurements were also taken. On 13-11-2018, on the basis of rough notes and measurements, he prepared scaled site plan Ex. PW9/A and handed over the same to IO. He was cross-examined by the Ld. Defense counsel, but nothing material came out therein.
(x) PW10 Ms. Mehzabeen @ Sukhi was cited as another eye-witness of the incident. She deposed that she is having four sons and three daughters. On 13-08-2018 at about 5 pm, her third son Zaid was flying kite on the terrace of the house. One of their neighbour Raza came to her house and asked about her son Zaid and she told him that Zaid was flying kite on terrace of the house. Thereafter, she called Zaid who came downstairs, from the roof of the house. On seeing him, Raza started beating Zaid saying "tu mera mobile dukaan se le kar aaya hai, mobile kahan hai". Her son Zaid refused having taken any mobile phone from the shop of Raza. However, Raza did not hear Zaid and while beating Zaid took him along to his shop. She also reached to the shop of Raza and even at that time Raza was beating Zaid. She caught hand of Raza, upon which Raza slapped her twice. In the meanwhile, her 2nd son Harish also reached there and confronted Raza as to why he was beating Zaid and her. When her son Harish intervened and tried to save them, Raza caught him and did "hathapai" with him. Some other persons of the locality also reached there. One Badshah who had also come to that place intervened and saved them. Thereafter, she along with her sons FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 13 of 54 Harish and Zaid returned back to their house. In the meanwhile, someone started pelting stones at their house. After some time, she heard sound of firing from outside their house and due to fear, she along with her children entered inside their room. Later on, she came to know that the bullet had hit Sana W/o Iqbal and later on Sana succumbed to the injuries in the hospital. Same day police officials met her in the hospital where Sana was under
treatment (She did not remember the name of hospital) and from there police took them to police post where enquiries were made from them. On 15.08.2018, she alongwith her son Zaid reached PS Seelampur where their statements were recorded by IO of the case.
The witness was cross-examined Ld. Addl. PP as she was partly resiling from her previous statement given to police.
During her cross-examination by ld. Addl. PP for State, she deposed that accused Masoom @ Raju present in the Court, was not present in the shop where Raza had given beatings to her and her sons. She volunteered that she was present in his kaarkhana which is just adjacent to the shop of Raza and there is common entry gate of shop Raza and workshop of Masoom @ Raju. She affirmed that later on, she had come to know that accused Nadeem had fired the bullet which hit Sana (since deceased). She denied the suggestion that accused Masoom @ Raju present in the Court, had caught hold of his son Harish and scuffled with him or that she had stated so in her statement given to the police on 15.08.2018. She denied that accused Masoom @ Raju had called co-accused Nadeem and some other persons at the spot who had also given beatings to her and her son or that she had stated so in her statement Ex. PW10/A from point A to A FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 14 of 54 where it was so recorded. She denied that she had been won over by the accused persons and for this reason not stating complete and true facts before the Court in order to save them in this case. She denied that she was intentionally or deliberately not disclosing the true fact regarding presence of accused Masoom @ Raju and Nadeem at the shop of Raza on the aforesaid date and time as she has since been won over by accused persons.
During cross-examination by ld. Defence counsel, she deposed that her statement was recorded by some police official on 13.08.18. After 2-3 days of incident, she had come to know from some of our neighbourers that accused Nadeem had fired and the bullets had hit Sana. She could not tell the name of any of those neighbourers from whom she had come to know about it. She denied that she was not able to disclose the name of any of such neighbourers as nothing of that sort was told to her in this regard. Sana was present in the kitchen at the time when bullets had hit her. She admitted that when Iqbal returned to his house, he had taken Sana to the hospital.
(xi) PW-11 Dr. Pushpraj Patil, SR, was the Medical expert from GTB hospital. He has proved the death summary report of deceased Sana prepared by Dr. Sunil as Ex. PW11/A. The witness was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(xii) PW12 Mohd. Naeem was cited as another eye-
witness of the incident. He deposed that he was a TSR driver. On 13.08.2018 at about 8:30 pm, he received a phone call from his wife that wife of his brother-in-law namely Smt. Sana w/o Iqbal had received injuries in her head and she was admitted in GTB hospital. He directly reached at GTB hospital. He enquired from FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 15 of 54 my brother-in-law Iqbal and his wife Smt. Parveen about the injuries received by Smt. Sana. They told him that Smt. Sana was taken to Operation Theater as she had received injuries in her head. At about 12:15 am (night), doctor had told them that Smt. Sana had received gun shot injuries in her head. He came to know that there was a quarrel and stones were pelted followed by exchange of fire having taken place between two groups. However, he did not know names of members of both the said groups. Smt. Sana died while undergoing treatment in the hospital on the same night. On the next day, when he had visited PS Seelampur, one police official namely SI Navin had told him that quarrel had taken place between Nadeem and son of one lady namely Ms. Sukhi.
Since PW12 was resiling from his statement, he was subjected to cross-examination by Ld. Addl. PP for State. During his cross-examination, he denied all incriminating suggestions, put by Ld. Addl. PP for State, emerging from his statement u/s 161 of Cr.P.C. recorded by the IO, indicating the involvement of accused persons in the commission of alleged offence.
During cross-examination by ld. Defence counsel, he deposed that he had enquired from Iqbal as to how Sana get hurt or injured, however, Iqbal had not told him at that time as to how his wife Sana had sustained head injury. He affirmed that Iqbal was running a shop in front of PS Seelampur.
(xiii) PW13 Dr. Arvind Kumar, Asstt. Professor, GTB Hospital was the doctor who conducted postmortem on the body of deceased Sana. He has proved his report as Ex. PW13/A wherein he has opined the cause of death as 'shock due to cranio- cerebral damage produced by projectile of firearm. Injury no. 1 FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 16 of 54 was sufficient to cause death in ordinary course of nature. He has also proved his subsequent opinion Ex. PW13/B whereby the Board of doctors comprising himself, Dr. S. K. Verma, Dr. K. K. Benerji had opined that range of firearm in this case is distant range.
During cross-examination by ld. Defence counsel, he deposed that abrasion collar is formed when spinned bullet entered into the body. It makes an abrasion around the entry wound and this phenomena as a whole is known as abrasion collar. He affirmed that when bullet impact perpendicular to the skin, the entry wound would be round or circular in shape and when it hit at an angle, it will be oval or crescentric in shape. After seeing the PM report, he stated that he could only opine that whether the fire has been shot within a meter or distant.
(xiv) PW-14 Dr. Akshay, SR, GTB hospital proved the NCCT head, face and cervical spine report of deceased as Ex. PW14/A. The witness was cross-examined by Ld. Defence counsel but nothing material came out in his cross-examination.
(xv) PW-15 Dr. K. K. Banerjee, Professor was one of the doctors amongst the board of doctors who conducted postmortem upon the dead body of deceased Sana. He deposed on the same line on which PW13 has deposed.
He was cross-examined by ld. Defence counsel but nothing material came out in his cross-examination.
(xvi) PW-16 Ms. Safia was cited as another eye-witness of the incident. She deposed that she did not remember the exact date or month but it was in the year 2018 and it was about 1½ years ago. On relevant day during evening hours, while she was FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 17 of 54 present at her house situated at H. No. E-15/C1/43, JJ Cluster, New Seelampur, Delhi, some quarrel was going on outside their house. She was called by her mother to take care of their belonging lying just outside main gate of their house. When she went outside the house, she saw that stone pelting was being done. After removing the household articles, she went inside their house. She heard sound of firing of bullets from both the sides. On the directions of her mother, she had made PCR call at 100 number from mobile phone no. 9811430710.
Since PW16 was resiling from her statement, she was subjected to cross-examination by Ld. Addl. PP for State. During her cross-examination, she denied all incriminating suggestions, put by Ld. Addl. PP for State, emerging from her statement u/s 161 of Cr.P.C. recorded by the IO, indicating the involvement of accused persons in the commission of alleged offence.
The witness was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(xvii) PW-17 HC Amit Kumar was the channel operator at PHQ, CPCR, New Delhi. He has proved Form-1/ PCR form regarding PCR call received from one Nawab Khan as Ex. PW17/A and another PCR call received from one Nanne Mohd. Rizwan as Ex. PW17/B. He was cross-examined by ld. Defence counsel but nothing material came out in his cross-examination.
(xviii) PW-18 Shahbaz @ Badshah was cited as another eye-witness of the incident. He deposed that he was self employed. In the year 2018, he was doing his private job. His factory is situated in Mandir wali gali, Chauhan Bagar and he is running his factor since year 2013-14. Around three years back, FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 18 of 54 when he was present in his factory since 2:00 pm till 8:00 pm, on that day at about 9:00 pm, he came at his house from his factory and his mother told him that some police persons had come for conducting some enquiry from him (Shahbaz) and she told them that she will send him to the police station when he will return at home. Thereafter, at about 10:00 pm, he went to PS Seelampur and police made enquiry from him about the incident and he told them that at that time he was not present at the place of incident and he had not seen anything regarding the incident. Thereafter, he left the PS and came to his house.
The witness was cross-examined by Ld. Addl. PP for State as he was resiling from his previous statement made to the police.
During cross-examination, he denied that he had stated to the police in his statement w/s 161 CrPC that on 13.08.2018 at about 6:15 pm, he was standing in the street out of his above mentioned house and he heard noises coming from the side of Brahmpuri nalewali road and he went there and saw that at the shop of Raza, Raza and his neighbourer Masoom @ Raju were beating. He denied all incriminating suggestions, put by Ld. Addl. PP for State, emerging from his statement u/s 161 of Cr.P.C. recorded by the IO, indicating the involvement of accused persons in the commission of alleged offence.
(xix) PW-19 Amir was also cited as another eye-witness of the incident. He deposed that presently, he was running battery rickshaw. In the year 2018, he was doing online banking job and used to do it from the office of his friend Idrish Saifi @Sameer and that office was situated in Gali No. 6, Chauhan Bangar, A- Block, Delhi. The incident happened around 2-3 years back FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 19 of 54 perhaps in the month of August. At about 4:00/4:15 pm, he was standing in the street out of his office and he heard noise coming from the side of pullia which was situated between Brahmpuri and Chauhan Bangar and when he rushed there within 2-3 minutes, he saw that there was fighting going on between two groups of persons. He prepared two videos of the incident from his mobile phone make Oppo and he came back from there. Due to some reason, he came back to his office and again reached at the spot at about 4:45 pm. He came to know that some firing incident had happened at that place and people were watching some videos of firing incident in their mobile phones. He asked one of the persons among them to transfer the said video from his mobile phone to his mobile through Shareit App. After about 2-7 days of the incident, he had received a telephone call from Nafe Singh, SHO of PS Seelampur, asking him to come to the police station and hand over his mobile phone to him. Accordingly, he went to PS Seelampur and handed over his mobile phone to Insp. Nafe Singh. Insp. Nafe Singh packed his mobile phone in a transparent box and sealed the box. Thereafter, he came back from there.
He identified the mobile phone make Oppo Ex.
PW2/Article-2 which was used by him for taking video of the incident and was handed over to the police.
The witness was cross-examined by Ld. Addl. PP for State as he was resiling from his previous statement made to the police.
During cross-examination, he did not remember that the incident had happened on August 13th. He affirmed that police had enquired from him about this case. He did not remember if FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 20 of 54 the exact time of incident was 6:10 pm. He did not remember whether both the rival groups/parties were fighting with each other and were also pelting stones upon the other party. He affirmed that among the crowd gathered there, some of the persons were also making videos of the incident from their mobile phones. He denied that he had seen that in the meanwhile, one boy Nadeem who was resident of Gautam Puri came there having a pistol in his hand. He denied that the said boy Nadeem fired in the air after pointing out his pistol towards other party. He could not say that after the incident of firing, the crowd dispersed from there and went into the nearby street. He could not say whether he had prepared three videos of the incident. He volunteered that he do remember that he had prepared two videos of the incident).
He had not told to the police that in the videos, Nadeem was seen firing from the pistol.
He affirmed that on the next day, he came to know that in this incident a bullet hit wife of Iqbal and she died. He affirmed that he had shown all the above-mentioned videos of incident to Iqbal which were in his mobile phone.
To a question as to whether it was correct that one of the videos transferred by him from his mobile in a CD to Iqbal, Nadeem was being seen holding a pistol and fired from it, he answered in affirmative but he did not know whether the said person holding pistol was Nadeem or not and he had transferred the said videos from his mobile phone to the mobile phone of Iqbal.
He did not know the date when he went to the PS to hand over his mobile phone to the IO and he could not say whether it FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 21 of 54 was on 08.11.2018 or not. He affirmed that the said mobile was seized by the IO vide seizure memo Ex.PW19/DB. He could not identify accused Masoom @ Raju and Nadeem, present in the Ceurt. He denied that he was deliberately not identifying the accused persons in order to save them. He denied that the matter was compromised between the parties and due to this reason, he was not deposing against the accused persons. He denied that he was deposing falsely.
(xx) PW-20 Master Zaid was cited as another eye-witness of the incident. He deposed that in the year 2018, he was residing at E-15/C-1/28, New Seelampur, Delhi with his family and was doing the job of gas welding. On 13.08.2018, he had gone to the shop of Raza which was situated at a distance of about 15-20 houses from his house. He had reached there at about 1:00/2:00 pm but he did not remember the exact time. Raza was running a grocery shop where he had gone to purchase some eatables. After purchasing that eatables, he had gone to the roof of Amaan for flying kite. He had started flying kite, at that time, his mother called him from the street to come down and accordingly, he came down in the street from the roof. Raza was also present there in the street with his mother. Raza took him to his shop and levelled allegations against him for committing theft of his mobile phone. Raza slapped him and in the meanwhile, his elder brother Harish came there and an scuffle took between his brother Harish and Raza. Some respectable persons of the locality came there and intervened the matter and pacified the scuffle. His mother took him and his brother to their house.
Since he was resiling from hi previous statement, he was permitted to be cross-examined by Ld. Addl. PP for state. During FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 22 of 54 his cross-examination, he denied all incriminating suggestions, put by Ld. Addl. PP for State, emerging from his statement u/s 161 of Cr.P.C. recorded by the IO, indicating the involvement of accused persons in the commission of alleged offence.
He was cross-examined by the Ld. Defense counsel but nothing material came out therein.
(xxi) PW-21 Harish was cited as another eye-witness of the incident. He deposed that in the year 2018, he was residing at E-15/C-1/28, New Seelampur, Delhi with his family and was doing the job of making flower pots. On 13.08.2018 at about 2:00/2:30 pm, he was present at the roof of his house. His mother told him that Raza, who was running a grocery shop, had quarreled with his younger brother Zaid. He reached at the shop of Raza and brought his brother Zaid to their house. His mother bolted the main door of their house from inside to prevent them to go outside and unbolted the door at about 9:00 pm. He came out from his house. He did not know anything more about this case.
He was cross-examined by ld. Addl. PP for State as he was resiling from his previous statement.
During cross-examination by Ld. Addl. PP for State, he affirmed that when he reached his house at about 5:00 pm, his mother told him that Raza had taken Zaid with him and was levelling allegation of theft of his mobile phone against Zaid. He affirmed that he along with his mother reached at the shop of Raza and saw that Raza was beating his brother Zaid. He affirmed that when his mother tried to intervene and pacify the matter, Raza slapped his mother. He affirmed that he caught hold hand of Raza and asked him as to why he had slapped his mother.
FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 23 of 54 He denied that in the meanwhile, one Masoom @ Raju who was residing in their neighbourhood also came there and caught hold of his and started scuffle with him. He denied that meanwhile one boy namely Badshah who was resident of their locality also reached.
(xxii) PW-22 Sh. Anil Sirohi was the SDM of the area where incident took place. He claimed that on 14-08-2018, he had recorded statement of father of deceased as Ex. PW22/A as death of the deceased had occurred within seven years of her marriage.
The witness was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(xxiii) PW-23 Mohd. Amir is brother of deceased, who had identified the dead body of deceased. He has proved his statement as Ex. PW23/A regarding identification of dead body and handing over of dead body vide memo as Ex. PW23/C. The witness was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(xxiv) PW-24 Devanshu, Asstt. Ahlmad of the court of Sh. Rupender Singh, the then Ld. MM-01, NE, KKD. He has proved the documents prepared by the IO in case FIR no. 423/18 as Ex. PW24/A to Ex. PW24/F. He was cross-examined by ld. Defence counsel but nothing material came out in his cross-examination.
(xxv) PW-25 Ct. Nitin Kumar was the investigating police official, who had accompanied the first IO ASI Khagnesh at the spot upon receipt of DD no. 54B regarding firing near Gautampuri pullia. He deposed that on enquiry, they came to know that quarrel was being taken place between two parties on FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 24 of 54 road on the other side of Brahmpuri nala and someone had also fired. Despite best efforts, they did not come to know about the person who had quarreled and who had fired. Meanwhile, DD No. 58B was received regarding sustaining injury to a lady by firing and was being shifted to JPC hospital to ASI Khagnesh. Thereafter, he along with ASI Khagnesh went to the spot i.e. E- 15/C11, New Seelampur, Delhi, 2nd floor balcony, where blood was scattered and came to know that the injured was shifted to JPC hospital. He was left at the spot for preservation and ASI Khagnesh went to JPC hospital. After some time, ASI Khagnesh alongwith SI Naveen came at the spot and searched for eyewitness but no eyewitness could be found. IO prepared rukka and handed over to him for registration of the FIR. He went to PS and got the FIR registered. He came back at the spot and copy of FIR and original rukka had handed over to the IO. IO filled the details on the documents prepared by him. IO recorded statement of SI Suman and Ct. Mohit. IO made a search for the eyewitness and also searched for the accused persons but in vain. Thereafter, they returned to PS. He was cross-examined by ld. Defence counsel but nothing material came out in his cross-examination.
(xxvi) PW-26 SI Khagnesh Kumar deposed that on 13- 08-2018, he was posted at PS Seelampur, Delhi. On that day, he had received DD No. 53A regarding the firing at Gautampuri Pullia. Therefore, he alongwith Ct. Nitin reached at Gautampuri Pullia. He came to know that two groups were firing on each other at Brahmpuri side. No eyewitness and no injured found there. Meanwhile, he received information of DD No. 58A from the police station that one lady had received gunshot injuries and FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 25 of 54 the said lady was taken to Jag Parvesh Chandra Hospital. Therefore, he along with Ct. Nitin reached at E-15/C-11 near Central Bank, Seelampur, Delhi. On the second floor of the said house, he found blood on the balcony of the said house. He left Ct. Nitin at the spot for safeguard of the spot and went to JPC hospital, where he collected MLC of injured Sanah. He perused the contents of the said MLC. SI Naveen met him in the hospital. On the directions of the SHO, he handed over the above said MLC to SI Naveen. No eyewitness was found in the hospital. Injured Sanah was referred to GTB hospital. Thereafter, he along with SI Naveen reached at GTB hospital. The injured was unfit for statement, as opined by the doctors. SI Naveen also contacted the doctor about the injuries of the injured Sanah. The doctor informed them that the CT Scan of the injured would be conducted. No eyewitness was found there. Thereafter, he along with SI Naveen reached at the house where Ct. Nitin was safeguarding the spot. No eyewitness was found at the spot. Thereafter, SI Naveen prepared rukka and nanded over the same to Ct. Nitin for registration of the FIR. Ct. Nitin went to the police station for registration of the FIR. Crime Team officials also reached at the spot on the request of SI Naveen. Crime Team officials inspected the scene of crime and took the photographs. SI Naveen lifted the blood from the spot and kept the same in small plastic container and sealed the same with seal of NK and handed over the said seal to him after use. SI Naveen seized the said plastic container vide seizure memo Ex.PW26/A. SI Naveen also prepared site plan of the said place. Meanwhile, Ct. Nitin reached at the spot and he handed over the copy of FIR and original rukka to SI Naveen for further investigation. SI Naveen FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 26 of 54 also examined the crime team officials and recorded their statements. No eyewitness was found there till that time. SI Naveen tried his best to trace the eyewitness and the offenders, but the same could not be found there. Thereafter, they returned to the police station and seized pullanda was deposited in the malkhana.
He was cross-examined by ld. Defence counsel but nothing material came out in his cross-examination.
(xxvii) PW-27 HC Mohit was the photographer of mobile crime team. He has proved the photographs taken at the spot vide Ex. PW27/A1 to Ex. PW27/A15 and certificate u/s 65B of Indian Evidence Act as Ex. PW27/B. The witness was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(xxviii) PW-28 Dr. Puneet Puri, Asstt. Director, FSL Rohini deposed that on 01.10.2018, one sealed parcel sealed with the seal of AK of this present case was received in FSL through ASI Narender and same was marked to him for examination. The seals on the parcel were intact and as per the specimen seal of AK provided with the FSL Form. On opening the parcel, one deformed bullet was taken out and marked as Ex. EB1 by him.
On examination, he found that the bullet marked Ex.EB1 was corresponding to the bullet of 7.65 mm cartridge and had been discharged to the improvised pistol 7.65mm bore marked Ex.F1 which was deposed in case FSL NO. 2018/F7932 FIR No. 423/2018 PS Bhajan Pura as the individual characteristics of striations present on evidence bullet marked Ex.EB1 and on test fired bullets marked TB1 and TB2 in case FSL NO. 2018/F7932 FIR No. 423/2018 PS Bhajan Pura were found identical when FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 27 of 54 examined under the comparison microscope. The bullet marked Ex.EB1 was an ammunition as defined in Arms Act, 1959. The exhibit was re-sealed with the seal of PP FSL DELHI. He exhibited his detailed report as Ex.PW28/A. The report along with sealed exhibits were sent to forwarding authority i.e. SHO PS Seelam Pur through forwarding letter Ex.PW28/B. The witness identified one small piece of cotton and one deformed bullet marked EB-1 wrapped in a doctor tape having details of the FSL as Ex. PW28/P1 which was examined by him.
He identified the following items in the court:
1. Improvised pistol of 7.65 mm bore bearing case details FSL 2018/F-7932, F1 along with initials;
2. Two live cartridges bearing case details FSL 2018/F-7932 Mark A-3 and Mark A-4 along with initials;
3. Two empty cartridges bearing case details FSL 2018/F-7932 Mark A-1 (TC-1) and Mark A-2 (TC-2) along with initials; and
4. Two test fired bullets bearing case details FSL 2018/F-7932 Mark TB-1 and TB-2 along with initials.
He correctly identified the pistol mentioned at Sl. no. 1 as the weapon from which the evidence bullet (Ex. EB-1) of case FSL no. 2018/F9161, FIR no. 264/2018, PS Seelampur was fired.
During cross-examination by ld. Defence counsel, he affirmed that he has not mentioned in his report about exact specification of striation mark present on the question and test bullet. To a question as to whether there was any striation mark examined by him, was having the length more than 2 mm in his questioned and test bullet, he replied that there was no system in the comparison microscope to measure the length of the striation mark. To another question as to whether it is correct that he does FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 28 of 54 not have any documentary evidence/ material to prove his opinion given in the report, he replied that it is correct that his observations are recorded on the observation sheet of the case file of this particular case. He affirmed that neither he had given his observation sheet either to IO or produced before the court. He volunteered that these are parts of the case file of FSL. These observation sheet are confidential in nature for general public. He did not examine the aspect as to whether the residue present inside a barrel was similar to the residue recovered after firing the test bullet. He affirmed that he has not taken the photographs of the striation marks present on the questioned bullet as well as on test bullet. He has not called for any cartridge from the police in this case for the test bullet. If accidental mark is present on the firearm, then its impression will get transmitted to the test cartridge case/ test bullet which is unique to the firearm. He affirmed that no videography of the examination of alleged exhibits of this case was done. The range of 32 bore caliber is between 18 to 20 meter but it does not mean that bullet cannot travel beyond 20 meter. He denied the suggestion that he has never examine the firearm/ bullet in this case at any point of time.
(xxix) PW-29 ASI Satish Rana was the Investigating officer of case FIR no. 423/18, PS Bhajanpura wherein the accused Nadeem was arrested. He has proved the documents i.e. sketch Ex. PW24/C and seizure memo Ex. PW24/D prepared in connection with recovery of country made pistol containing four live cartridges from the possession of accused Nadeem.
In his cross-examination by ld. Defence counsel, he stated that they have left the office in a private vehicle. He did not FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 29 of 54 remember the color, make, model or registration no. of that vehicle. He did not remember whether he had stated to Io that he requested 4-5 public person to join investigation. He did not call any official of the DTC posted at DTC depot to join the investigation. He did not try to seize the CCTV footage of the cameras installed at depot as well as the petrol pump.
(xxx) PW-30 Bashir Akhtar is the father of deceased. He deposed that his daughter Sana was married with Mohd. Iqbal. On 13-08-2018 at about 08:00 pm, his sister Munawwar called him and informed that Sana got injured and Mohd. Iqbal took her to hospital. After 10 minutes, Mohd. Iqbal called him and informed that Sana was shot and asked him to come hospital. At about 12:30 am, he went to GTB Hospital where he was informed that his daughter was operated at about 01:30 am, he came to know she was expired. The police official and SDM Anil inquired from him and he stated that his daughter was happily residing with her husband and he did not raise any allegation against the husband of his daughter and his relatives. SDM Anil recorded his statement Ex. PW22/A. He did not want to say anything in the matter.
He was cross-examined by ld. Defence counsel but nothing material came out in his cross-examination.
(xxxi) Sh. Ankit Kumar, Ahlmad was also examined as PW-30. He is Ahlmad from the court of Sh. Rupinder Singh Dhiman, Ld. MM-01, NE, KKD. He has proved the records of FIR no. 423/18 as copy of FIR (Ex. PW30/A); arrest memo of accused Nadeem Khan as Ex. PW24/A; personal search memo of Nadeem Khan as Ex. PW24/B; sketch memo of country made pistol and live cartridges as Ex. PW24/C and seizure memo and FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 30 of 54 disclosure memo as Ex. PW24/D and Ex. PW24/E. The witness was not cross-examined by accused persons despite having given the opportunity.
(xxxii) PW-31 HC Santosh is the police official who had deposited the exhibits of present case at FSL Rohini. He has proved the receipt obtained from FSL as Ex. PW5/K. He was cross-examined by ld. Defence counsel but nothing material came out in his cross-examination.
(xxxiii) PW-32 HC Kapil Kumar is the investigating police official, who on the instructions of IO, had got photography of postmortem of deceased performed at GTB hospital. He has proved the CD of video recording as Ex. PW32/A and seizure memo thereof as Ex. PW32/B. He was cross-examined by ld. Defence counsel but nothing material came out in his cross-examination.
(xxxiv) PW-33 HC Jaiveer Singh is the investigating police official, who had joined investigation along with IO SI Naveen at the time of apprehension of accused Masoom Ali on secret information. He deposed on the same lines on which SI Naveen (PW34) has deposed.
During cross-examination, he affirmed that person from the locality used to go for morning walk on the said pusta from where the accused was apprehended. He did not remember the departure entry made by them on 18-08-2018 with respect to investigation of the present case. When they had apprehended the accused Masoom, he did not try to run away from there. At the time of his apprehension, IO did not call any passersby to join the investigation.
(xxxv) PW-34 SI Naveen Kumar is the Investigating FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 31 of 54 officer of the present case. He deposed that on 13-08-2018, he was posted as SI at PS Seelam Pur, Delhi. On that day, he was directed by SHO PS Seelampur to take action on DD No. 58B Mark A1. On receiving the said DD entry, he reached at the spot at E-15/C-11, near Brahampuri Nala, New Seelampur, Delhi. At the spot, Ct. Nitin met him and blood was lying at the spot. He came to know that a lady got injured and was taken to JPC Hospital, Shastri Park. He reached at JPC Hospital where ASI Khagnesh met him and he collected MLC No. 17791/18 of injured Sana w/o Iqbal from him. On the MLC of the injured, Doctor has mentioned 'unfit for statement'. On enquiry, it was revealed that injured was already referred to GTB Hospital. He made efforts to search eyewitness of the incident in JPC hospital but no eyewitness was found. Thereafter, he along with ASI Khagnesh went to GTB Hospital where injured Sana was found under treatment. In the hospital, he enquired from the doctor about the condition of the injured but she was stated to be unfit for statement and doctor also informed that the cause of injury could not be ascertained at that time as CT Scan of injured was to be done. No eyewitness of the incident was found in the GTB Hospital also. Thereafter, he alongwith ASI Khagnesh returned to the spot i.e. E-15/C-1 (11 near central bank, New Seelampur, Delhi. He made efforts to search the eyewitness of the incident also at the spot but no eyewitness was found. No fired cartridge or bullet was found at the spot. Thereafter, he prepared rukka Ex.PW34/A. He handed over the rukka to Ct. Nittin and sent him to PS for registration of FIR. He had also made request in the rukka for sending the crime team at the spot. Crime team had reached at the spot. He got inspected the spot from the crime FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 32 of 54 team. Photographs of the spot were taken by photographer of the crime team. He lifted the exhibits i.e. blood in gauge which was kept in transparent box and same was sealed with the seal of NK and he prepared the seizure memo of the exhibits Ex.PW26/A. He prepared the site plan of the spot on his own observation vide Ex.PW34/B. In the meantime, Ct. Nitin reached at the spot after registration of FIR and handed over copy of FIR and original rukka to him. He mentioned the particulars of the FIR No. on the site plan and seizure memo of the exhibits. He recorded statements of Crime team members. Thereafter, the crime team officials were relieved. Thereafter, he along with Ct. Nittin and ASI Khagnesh returned to the PS. He deposited the exhibits in the Malkhana. He recorded statement of Ct. Nittin and ASI Khagnesh.
On 14.08.2018, he received the information regarding the death of the injured Sana during her treatment in the GTB Hospital. He went to GTB hospital and came to know from doctor that in the CT Scan report of the injured Sana, a bullet was found in her head. Dead body of the deceased was preserved in the mortuary for 72 hours. He informed father of the deceased. He also gave the information to the SDM Seelampur as death of the deceased had occurred within 3 months of her marriage in unnatural circumstances. Statement of the father of deceased, namely Bashir Akhtar was recorded by SDM. On the same day, he also recorded statements of eyewitnesses i.e. Mohd. Iqbal, husband of deceased and Mohd. Naeem in PS. On 15.08.2018, he made local enquiry regarding the incident and recorded statements of Mehzabi @ Sukhi, Master Zaid and Haris. On the same day, Mohd. Iqbal, husband of FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 33 of 54 deceased came to PS and met me. He produced one CD and stated that in the CD, incident of firing by accused Nadeem and pelting of stone by accused Masoom Ali @ Raju was recorded. He had seen the video footage. He kept the CD in the transparent plastic box and sealed the same with the seal of NK. He prepared the seizure memo of the same vide Ex.PW2/A. He recorded statement of Mohd. Iqbal.
On 16.08.2018, considering the sensitivity of the case, postmortem of the deceased was got conducted in the mortuary of GTB Hospital by Medical Board of doctors vide PM No. 1511/18 Ex.PW13/A. Videography of postmortem proceedings was also got conducted by Ct. Kapil. During the postmortem, firearm injury was found by the doctors on the forehead of the deceased and the bullet was also found. Request for the postmortem is Ex.PW34/C. Form 25.35 (1) (B) is Ex.PW34/D. Dead body of the deceased was identified by Mohd. Iqbal and Mohd. Amir and he recorded identification statements Ex.PW2/B and Ex.PW23/A. Letter of constitution of Medical Board dated 14.08.2018 is Ex.PW34/E. Doctor handed over to him three sealed pullandas sealed with the seal of AK and three sample seals of AK. He seized the sealed pullanda and sample seal vide seizure memo Ex. PW34/F. After the postmortem, dead body of the deceased was handed over to her family members. Receipt/ handing over memo of dead body is Ex.PW2/C. He recorded statements of witnesses, namely, Mohd. Iqbal and Mohd. Amir and they were relieved. Thereafter, he returned to PS and deposited the exhibits in the Malkhana. Thereafter, he went to Photo Section, North-East, District and collected video CD of postmortem proceedings from Ct. Kapil. He prepared the seizure FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 34 of 54 memo of the CD vide Ex. PW32/B. He recorded statement of Ct. Kapil. Thereafter, he returned to PS. On 17.08.2018, during investigation, he recorded statements of Shahbaz @ Badshah and PCR caller Mohd. Rizwan. On 18.08.2018, he alongwith Ct. Jaiveer and HC Amit went in the search of accused persons. At around 7:00 am, when they reached near Brahampuri pulliya, one secret informer met them and informed that one of the accused involved in the incident namely, Masoom @ Mehtab will come from the side of Pusta and heading towards his house. He informed the SHO who directed him to take necessary action. Thereafter, he constituted a raiding party consisted of himself, HC Amit and Ct. Jaiveer and took their position near police booth, Brahampuri pulliya. Secret informer was with them. At about 7:15 7:20 am, one boy was seen coming from the side of Usmanpur and secret informer pointed out towards him as Masoom @ Mehtab. Thereafter, they apprehended him and on enquiry his name was revealed as Massom Ali @ Mehtab s/o Mohd. Taki @ Chandmiya. He interrogated him and arrested him vide arrest memo Ex.PW33/A. He was personally searched and he prepared personal search memo Ex. PW33/B. he recorded his disclosure statement Ex.PW33/D. Accused had pointed out the place of incident vide pointing out memo Ex.PW33/C. He prepared the site plan of place of incident as pointed out by the accused vide Ex. PW34/G. During interrogation, accused had informed him that the co- accused Nadeem was arrested in a case in PS Bhajanpura. Accused was taken to PS and was put behind the bars. He recorded statements of HC Amit and Ct. Jaiveer. Thereafter, the accused was got medically examined in JPC Hospital and he was FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 35 of 54 produced in the Court and was sent to JC. On the same day, he collected the photocopies of the documents of case FIR No. 423/18 PS Bhajanpura in which the accused Nadeem Khan was arrested vide Ex.PW24/A to Ex.PW24/F. He moved an application for the production of accused Nadeem Khan in the Court vide Ex.PW34/H. On 20.08.2018, accused was produced in the Court and he moved an application for the interrogation and arrest of accused Nadeem vide Ex.PW34/L. After getting the permission, he interrogated the accused and recorded his disclosure statement vide Ex.PW35/J. He arrested him vide arrest memo Ex.PW35/K and prepared personal search memo vide Ex.PW35/L. In his disclosure statement, accused had disclosed that he can get recover the T-shirt having black colour strips which he was wearing at the time of incident from his house. He had further disclosed that the pistol used in the incident was already recovered in the case FIR No. 423/18 PS Bhajanpura. Since he was engaged in some urgent work, so the accused was sent to JC at that time till 24.08.2018. Further investigation was marked to Insp. Nafe Singh and he had handed over the case file to him on 23.08.2018.
He further deposed that on 24.08.2018, he alongwith Ct. Amit accompanied Insp. Nafe Singh to the Court where he moved an application for 2 days police remand. After PC remand, custody of the accused Nadeem was taken from the lockup and he was got medically examined. Thereafter, he(accused Nadeem) led them to his house at T-65, gali No. 8, Gautampuri, Delhi and got recovered one yellow colour full sleeves t-shirt having black stripes on it from the duchatti at the FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 36 of 54 ground floor which was kept in a plastic sack. Insp/IO prepared the pullanda of the t-shirt and sealed the same with the seal of NS and prepared the seizure memo of sealed pullanda of t-shirt Ex.PW34/M. Thereafter, the accused led them to the place of incident and pointed out towards the place of incident. IO prepared the pointing out memo which is Ex.PW34/N. IO also prepared a site plan of the place of incident pointed out by accused Nadeem which is Ex.PW34/O. Thereafter, they returned to the PS. IO deposited the case property in the malkhana. His statement was recorded by the IO.
On 05.09.2018, he collected the PM report of deceased from GTB hospital and handed over the same to IO. He had also collected the crime team report of the spot inspection and the photographs during investigation.
PW34 claimed that he could identify the video of the incident from the CD which was provided by Mohd. Iqbal and the t-shirt which was recovered at the instance of Nadeem. He has identified one CD-R of WRITEX which was played on the system of the Court wherein two parties of crowd were seen pelting stones upon each there and two fire shots could be heard. In the fourth video of the said CD, he has identified accused Nadeem firing gun shot at the other party and accused Masoom Ali throwing some article at the other party.
He has also identified one yellow full sleeve colour T-shirt having black stripes on its front and having brand Versace written inside its round collar as Ex. PW35/Article 1. He has correctly identified both accused present in the court that day.
In his cross-examination by Ld. Defense counsel, PW 34 FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 37 of 54 stated that he had seen the video during recording of examination in chief and in video no. 1, one police official is also seen. He did not know who was the said police official. He Volunteered that during the investigation, he had never seen the video no. 1 andhe had seen the same for the first time that day before the court as the complainant had played the video no. 4 only then. He affirmed that the place of scuffle comes in the jurisdiction of their Police Station.He did not remember whether any witness of the present case had stated to him about presence of one person namely Shahbaz @ Badshah at the spot at the time of incident. He do not remember whether I had recorded statement of Shahbaz @ Badshah as witness in the present case. He stated that he could not say whether the alleged person Shahbaz @ Badshah was having several criminal cases against him at the time of incident.
(xxxvi) PW-35 Inspector Nafe Singh is the main investigating officer of the present case. He deposed that on 23.08.2018, he was posted at PS Seelampur as Inspector/ATO. On that day, he received the case file of this case for further investigation. On 24.08.2018, he alongwith SI Naveen and Ct. Amit went to KKD Courts where accused Nadeem was produced from JC. He moved an application for the PC remand of the accused which is Ex.PW35/A. Ld. Court granted one day PC of the accused Nadeem. After PC remand, custody of the accused Nadeem was taken from the lockup and he was got medically examined. Thereafter, accused led them to his house at T-65, gali No. 8, Gautampuri, Delhi from where he got recovered one yellow colour full sleeves t-shirt having black strips on front side from the duchatti at the ground floor, which was kept in a plastic FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 38 of 54 sack. He prepared the pullanda of the t-shirt and sealed the same with the seal of NS and he prepared the seizure memo of sealed pullanda of t-shirt already Ex.PW34/M. Seal after the use was handed over to SI Naveen. Thereafter, accused Nadeem led them to the place of incident and pointed out towards the place of incident. He prepared the pointing out memo which is already Ex.PW34/N. He also prepared a site plan of the place of incident pointed out by accused Nadeem which was already Ex.PW34/O. He stated that these documents were in handwriting of SI Naveen which he prepared at his instruction. Thereafter, they returned to the PS. He deposited the case property in the malkhana. He recorded statement of SI Naveen.On the next day i.e. 25.08.2018, accused was produced before the court and was sent to JC.
On 26.08.2018, statement of PCR caller Safiya was recorded by him at her house. On 28.08.2018, he recorded statements of I/C PCR vans who had reached at the spot on the date of incident. On 30.08.2018, he recorded the statements of the IOs in case FIR NO. 423/18 PS Bhajanpura in which accused Nadeem Khan was arrested and pistol used in the incident of this case was used was recovered. On 05.09.2018, he received the postmortem report of the deceased through SI Naveen. On 01.10.2018, sealed exhibits were sent to the FSL through ASI Narender Pal Singh vide RC Nos. 155/21/18 and 156/21/18. Same are Mark PW35/1 and Mark PW35/2. He had also mentioned in the forwarding letter to compare the bullet recovered in this case with the pistol recovered in case FIR No. 423/18 PS Bhajanpura. After depositing the exhibits, ASI Narender Pal deposited the acknowledgments with the MHC(M) and he had taken the copies of the acknowledgments which are FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 39 of 54 Mark PW35/3 and Mark PW35/4. He recorded statements of ASI Narender Pal Singh and MHC(M).
On 27.10.2018, he sent a letter which is Ex.PW35/B to HOD, Forensic Medicine GTB Hospital for subsequent opinion. On the said letter, subsequent opinion was given by the doctor which was received on 12.11.2018 through Ct. Sajid which bears endorsement at point X which is Ex.PW13/B. On 31.10.2018, the sealed pullanda of CD provided by Mohd. Iqbal was sent to FSL through Ct. Santosh vide RC No. 176/21/18. Copy of the same is Mark PW35/5. Copy of acknowledgment from FSL is Mark PW35/6. He recorded statement of Ct. Santosh and MHC(M). On 06.11.2018, scaled site plan was prepared by the draftsman of the place of incident on the instance of Mohd. Iqbal. Same is Ex.PW9/A. He recorded statement of draftsman Insp. Mahesh Kumar and Mohd. Iqbal.
On 08.11.2018, one Amir alongwith Mohd. Iqbal came to the PS and informed him that Amir had captured the videos of the incident in his mobile phone make Oppo A37. He checked the videos in the mobile phone of Amir. There were four videos of the incident. He had taken those four videos in a pendrive for the investigation purpose. Thereafter, the mobile phone was kept in a transparent plastic box and the same was sealed with the seal of NS and he prepared the seizure memo of the sealed box of mobile phone which is already Ex.PW19/DB. He also obtained the certificate u/s 65 B of IEA from Amir which is Ex.PW35/C. He recorded statement of Amir.
On 12.11.2018, sealed mobile phone of Amir was sent to FSL through Ct. Jaiveer Singh vide RC No. 183/21/18. Copy of the same is now Mark PW35/7. Acknowledgment of the FSLl is FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 40 of 54 already Ex.PW33/E. He collected the PCR forms already Ex.PW17/A and Ex.PW17/B. Since the FSL results were not obtained, he filed the charge-sheet initially for the offences u/s 302/109/34 IPC only. After obtaining FSL results and sanction u/s 39 of Arms Act, he had filed the same in the Court through supplementary charge-sheets.
He has correctly identified one full sleeve T-shirt of light yellow colour and having black stripes on its front and having brand Versace on the back of its collar from inside as Ex. PW35/Art.1; one mobile phone make OPPO of golden and white colour as Ex.PW35/Art.2.
He has correctly identified the accused persons present in the court that day.
(xxxvii) PW-36 Kailash Kumar, Jr. Forensic / Asstt. Chemical Examiner, FSL Rohini was the FSL expert, who examined the mobile phone make Oppo and tried to retrieve the vide file dated 13-08-2018 but the same could not be retrieved from there. However, he has examined one CD, which was already retrieved from the above-stated mobile phone. After retrieving data from the said CD, he forwarded the same to the Physics Division for further examination. He has proved the report prepared by him with regard to examination of video recoding as Ex. PW36/P-1 and necessary certificate u/s 65B of Indian Evidence Act as Ex. PW36/P-2; the forwarding letter as Ex. PW36/P-3. He has also identified the CD which was annexed with the chargesheet as Ex. PW36/P-4.
During cross-examination by ld. Defence counsel, he affirmed that no hash value of the date examined by him is mentioned in his report. He denied the suggestion that he has put FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 41 of 54 his signature on the report as well as on the CD at later date at the behest of IO.
(xxxviii) PW-37 Dr. Bharti Bhardwaj, Sr. Scientific Officer is also an FSL expert. She had examined one CD make Sony containing four video files pertaining to the incident. After examining the CD, she had opined that there is no indication of alteration in the recording on the basis of frame by frame using video analysis system. She proved her report as Ex. PW37/A. During cross-examination by ld. Defence counsel, she affirmed that her report does not find mention about hash value of data. She affirmed that she has not handed over her worksheet to the IO at any point of time. She had not checked the integrity of log of data of the CD. She checked the CD for pauses, gaps and clicks. No pauses and gaps were found. But clicks were there. She has not specifically mentioned these facts in her report. She affirmed that if there was any pause, gaps and clicks present, it would have been a case of tampering/ addition. She affirmed that she has not examined the alleged Oppo phone from where the alleged CD was prepared. She did not remember if there was any office order/ SOP in this regard which says that examiner who is examining the veracity of exhibit would not examine or compare the exhibit with the primary evidence.
STATEMENT OF ACCUSED
5. After completion of prosecution evidence, the statement of accused persons was recorded under Section 313 Cr.P.C. wherein incriminating facts emerging from testimony of the prosecution witnesses were put to the accused persons, which were denied by them. They stated that they have been falsely implicated in this FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 42 of 54 case.
FINAL ARGUMENTS
6. This court has heard has heard the arguments and perused the record.
7. It is submitted by Sh. Shikhar Mahajan, Ld. Addl. PP for the State that testimony of prosecution witnesses is sufficient to bring home the guilt of accused persons with regard to the charges for the offences punishable u/s 302 of IPC and 27 of Arms Act. Despite some discrepancy, the case of the prosecution stands proved.
It is submitted by Sh. Manish Kumar Singh, Ld. Defence counsel that eyewitnesses got examined by the prosecution namely PW1 Rizwan, PW10 Mehzabeen @ Sukhi, PW12 Mohd. Naeem, PW16 Ms. Safia, P/w18 Shahbaz @ Badshah, PW19 Amir, PW Master Zaid and PW21 Harish, have failed to support the case of the prosecution.
PW2 Mohd. Ibal, who had initially deposed about the role of the accused persons on 22.04.2019, had later on took contrary stand as he has failed to identify the assailants in the CDR, which as per the prosecution case, has been handed over by him to the IO. Further, in his deposition dt. 24.09.2021, he has categorically stated that at the time when there was fire and his wife received injury, he was not present on the spot and so he could not see whether she was visible from the spot towards Brahampuri Pulia or that the firing was from both the sides or from the side of accused. He further stated that he did not know the name of the accused persons and could not recognize them from their faces.
The ballistic examination report Ex. PW28/A, whereby it FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 43 of 54 is shown that bullet recovered from the spot has been fired from the country made pistol recovered from the possession of the accused Nadeem, could not be relied upon.
The entire case of prosecution is based on surmises and conjectures. It is urged that accused persons are entitled for benefit of doubt in the prosecution case and therefore, it is prayed that accused persons be acquitted.
FINDINGS OF THIS COURT
8. Before analyzing the evidence led by the Prosecution in the present case, this court deems it proper to refer to some provisions of law and citations of Superior courts, which are found to be applicable to the facts of the present case.
300. Murder--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or - Secondly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-- Fourthly--If the person committing the act knows that it is so imminently dangerous that is must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
302. Punishment for murder-Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.
109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.--Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
25. [(1AAA)] of Arms Act--Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 44 of 54 shall be punishable with imprisonment for a term which shall not be less than [three years, but which may extend to seven years] shall also be liable to fine.
27. Punishment for using arms, etc. of Arms Act--(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
9. It is pertinent to mention here that it has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 by the Hon'ble Punjab & Haryana High Court that:-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
10. In Harendera Narain Singh vs. State of Bihar, AIR 1991 S.C. 1842, their Lordships of the Hon'ble Supreme Court had reiterated the well-known principle of the criminal jurisprudence as:
"....... The basic rule of criminal jurisprudence is that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused....."
11. In Data Xiva Naique Desai and Another vs. The State, AIR 1967 Goa, Daman and Diu 4, the Hon'ble Supreme Court reiterated the well-known principles of the criminal jurisprudence which are reproduced as under:
"The learned Judge would be advised to observe the following general rules when he is dealing with the serious question of the guilt or innocence of persons charged with crime: (i) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecution; (ii) The evidence must be such as to exclude to a moral certainty every reasonable doubt of the guilt of the accused; (iii) In matter of doubt it is safer to acquit than to condemn; for it is between FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 45 of 54 several guilty persons should escape than that one innocent person suffer; and (iv) the hypothesis of delinquency should be consistent with all the facts proved."
12. In Swarn Singh Ratan Singh vs. State of Punjab, AIR 1957 SC 637, it was held by the Hon'ble Apex Court that, "in criminal cases mere suspicion, however, strong, cannot take the place of proof. The Court must also take into consideration that an accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. Mere suspicion, however, strong it may be, cannot take the place of legal proof."
13. Moreover, in Kali Ram vs. State of Himachal Pradesh, AIR 1973 SC 2773, the Apex Court had observed as follows:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable: it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex-facie trustworthy on grounds which are fanciful or in the nature of conjectures.
The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, in our opinion, is more apparent than real.
FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 46 of 54 It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. All this highlights the importance of ensuring as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimized but not ruled out altogether."
14. Indisputably, FIR in the present case was registered initially for the offence punishable u/s 308 of IPC on the basis of MLC of deceased Sana and initial DD entries i.e. 53B and 58B; the alleged history of victim was reported as 'fall from height' in the MLC; no eyewitness had met at the spot on the arrival of investigating police official on the alleged date of incident i.e. 13-08-2018. It is only upon the declaration of death of deceased Sana and discovery of bullet in her head in the CT scan report, the complainant Mohd. Iqbal had approached the police station and claimed to have seen the alleged incident of firing by accused Nadeem, on the exhortation of co-accused Masoom during fighting between two groups.. He has also handed over one CD containing video recording of the incident wherein one Nadeem is seen firing the pistol and Masoom Ali was seen throwing stones. In his deposition dated 22-04-2019, he stood by his initial version, which was recorded by the IO. His examination in chief was deferred as entire case property was not brought by the MHCM and no arrangement was in place for playing the relevant CD containing the video footage of the incident. In his deposition dated 19-08-2019, he failed to identify the assailants in the video footage. His examination in FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 47 of 54 chief was once again deferred as one mobile phone of Mohd. Amir was stated to be lying in FSL. On 24-09-2021, he was cross-examined by Ld. Addl. PP for State as he was resiling in some respect from his previous statement. He denied the suggestion that he had deliberately told before the court in his statement dated 19-08-2019 that after seeing the entire footage, the assailants could not be identified by him. In his cross- examination, he took somersault and admitted the suggestion that he had identified accused in the court as outside the court he was told that they were the one who were responsible for the death of his wife. He claimed that he was shown and identified accused outside the court by some person of the locality. He was re- examined by Ld. Addl. PP for State wherein he stated that at the time when there was firing and his wife received injury, he was not present at the spot so, he could not say whether she was visible from a spot towards Brahmpuri Pulia or that firing was from both the sides or from the accused side. MLC Ex. PW7/A also falsifies the testimony of PW2 Iqbal wherein alleged history of victim was reported as 'fall from height' and the name of relative is mentioned as Iqbal. If he had seen the incident, he would not have reported the alleged history as 'fall from height' when he brought his wife at JPC hospital.
15. The other public witnesses, who were cited as eyewitnesses of the incident in the chargesheet, namely PW10 Ms. Mehzabeen @ Sukhi, PW12 Mohd. Naeem, PW16 Ms. Safia, PW18 Shahbaz @ Badshah, and PW19 Amir have also failed to support the case of the prosecution. They have denied all the incriminating facts emerging in their respective statements u/s 161 of Cr.P.C. indicating the role of accused persons in the FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 48 of 54 commission of alleged offence.
16. Another incriminating piece of evidence being relied upon by the Prosecution is the Ballistic examination report Ex. PW28/A wherein it is opined that the bullet recovered from the body of deceased Sana (Ex. 'EB-1'), which was seized vide seizure memo Ex. PW34/F, has been discharged from improvised pistol 7.65 mm (Ex. 'F1'), which was alleged to have been recovered from the possession of accused Nadeem in case FIR no. 423/18, PS Bhajanpura and seized vide seizure memo Ex. PW24/D. Dr. Puneet Puri, who has prepared the Ballistic Examination report Ex. PW28/A, has been examined as PW28. In his cross-examination dated 30-05-2023, he admitted that he has not specified in his report the exact specification of striation mark present on the questioned and test bullet, the length of striation mark, and the diameter of questioned bullet. He stated that he did not even examine if there was any fault present in the barrel of the firearm. In these circumstances, this court is of the opinion that ballistic examination report Ex. PW28/A is not worthy of reliance.
17. Further, it is well settled that ballistic examination report is just an expert-opinion which must never be acted upon unless substantially corroborated. In S. Gopal Reddy v. State of A.P. AIR 1996 SC2184 (Para27), it was held that it is not safe to rely upon this type of evidence without seeking independent and reli- able corroboration.
18. In Arshad v. State of A.P. 1996 CrLJ 2893 (para34) (AP), it is only an inference drawn from the data and it would not get precedence over the direct eye-witness testimony unless the inconsistency between the two is so great as to falsify the oral ev-
FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 49 of 54 idence.
19. Further, in the case of Haryana Seeds Development Cor- poration Ltd. v. Sadhu, AIR 2005 SC 2023, it was held that the opinion of an expert witness is not considered to be conclusive in nature because there is the danger of error or deliberate false- hood; In Mohd. Zahid v. State of Tamil Nadu, AIR 1999 SC 2416, it was held that, "human judgment is fallible and human knowledge is limited and imperfect". In Gulzar Ali v. State of Himachal Pradesh, (1998) 2 SCC 192, it wads held that, "an expert witness, however impartial he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him"
20. Recovery of weapon of offence i.e. pistol from the possession of accused Nadeem is also doubtful as accused Nadeem is shown to have been arrested from DTC bus depot at about 4 pm. The place and timing of arrest is such that availability of independent public witness could not be ruled out. PW29 ASI Satish Rana, who claimed to have recovered pistol from the possession of accused Nadeem in case FIR no. 423/18, PS Bhajanpura, in his cross-examination has failed to reveal particulars of the vehicle in which he had visited the spot for the purpose of arresting the accused Nadeem on the basis of secret information. Nor he made any effort to join the official of the DTC in the investigation of FIR no. 423/18. Nor he made any effort to seize the CCTV footage of the cameras installed at Deport as well as nearby petrol pump.
21. In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 50 of 54 ''18. It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
22. In Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-
"It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
23. As per chapter 22 rule 49 of the Punjab Police Rules it is necessary to record DD Entry of arrival and departure of the police official. Chapter 22 Rule 49 of Punjab Police Rules, FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 51 of 54 1934, is reproduced as under:-
''22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered :-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
24. In the present case, the above said provision appears to have not been complied with by prosecution. The relevant entry regarding various placed visited by the police officials during investigation of the present case viz. visit made by the police official at the time of arrest of accused persons on the basis of secret information and consequent recovery of alleged weapon of offence. Even the DD Writer was not examined and no explanation is given as to why the said DD Writer is not made the witness in the present case. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court "wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
In the present case, the above said provision appears to have not been complied with by prosecution.
25. Another piece of evidence indicating the involvement of FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 52 of 54 accused persons in the commission of alleged offence being relied upon by the Prosecution is the electronic evidence containing the video recording of the incident, is CD, which was handed over by PW2 Iqbal to the first IO/ SI Naveen, and one mobile phone, which was handed over by PW19 Amir to the second IO Inspector Nafe Singh. The source of the said video recording is PW19 Amir, as per the Prosecution case. However, PW19 in his deposition dated 24-09-2021 has claimed that he has obtained the video recording in question in his mobile phone through 'Shareit App' from some person present at the spot. In these circumstances, the electronic record containing the video recording of the incident, seized vide seizure memo Ex. PW2/A and contained in mobile phone seized vide seizure memo Ex. PW19/B cannot be relied upon as the person who recorded the incident has not been examined by the Prosecution.
DECISION OF THE COURT
26. It is well settled that it is the duty of the prosecution to prove the guilt of the accused persons beyond reasonable doubt. Therefore, on the basis of the material available on the record, the case of the prosecution becomes doubtful and the benefit of doubt certainly goes in favor of the accused persons. The prosecution has failed to prove its case beyond all reasonable doubts against the accused persons. Accordingly, taking into consideration the facts and circumstances of the case, accused persons Nadeem Khan and Masoom Ali are hereby acquitted of the charges punishable u/s 109 IPC r/w Section 302 of IPC and u/s 27 of Arms Act. File be consigned to record room after FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 53 of 54 compliance of section 437A of Cr.P.C.
ANNOUNCED IN THE OPEN COURT
On 23-03-2024 PANKAJ Digitally signed by PANKAJ
ARORA
ARORA Date: 2024.03.27 16:51:36
+0530
(PANKAJ ARORA)
ADDL. SESSIONS JUDGE-04: NORTH-EAST/
KARKARDOOMA/ 23-03-2024.
FIR No. 264/2018 State Vs. Nadeem & Anr. Page No. 54 of 54