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Fir No. 101/13 State vs . Israil Pehalwan And Ors. Page No. 1 Of ... on 20 September, 2022

                   IN THE COURT OF NAVEEN GUPTA,
                   SPECIAL JUDGE (PC ACT) (CBI) - 12,
                 ROUSE AVENUE COURT COMPLEX, DELHI

CNR No. DLSH01-000517-2013
SC No. 422/2016
FIR No. 101/13
PS M.S. Park
Under Sections 148/////506(2)/// IPC
and Sections 27 Arms Act

In the matter of:

The State
                                             Versus

1.      Israil Pehalwan
        S/o Mr. Dilsher Khan

2.      Javed
        S/o Mr. Israil Pehalwan

3.      Abid
        S/o Mr. Israil Pehalwan

4.      Arif
        S/o Mr. Israil Pehalwan

5.      Tarif
        S/o Mr. Israil Pehalwan

        All R/o H. No. B-105, Gali No. 10,
        New Modern, Shahdara, Delhi.

6.      Gufran
        S/o Mr. Bahar Khan
        R/o H. No. G-188, Near Jaipal Chowk,
        Shaeed Nagar, Shahibabad, Ghaziabad, UP.                       ... Accused persons


FIR No. 101/13                    State vs. Israil Pehalwan and Ors.          Page No. 1 of 164
PS M.S. Park
                                                         Date of institution : 23.08.2013
                                           Date of reserving the judgment : 06.09.2022
                                                         Date of judgment : 20.09.2022


                                      JUDGMENT

1. The case of prosecution is that in the intervening night of 21-22.04.2013 at 12.25 a.m., an information, regarding beating of husband of caller by neighbours after entering into house, was recorded at PS M.S. Park, vide DD No. 4-A (Ex.PW-4/A). The said DD was assigned to ASI Jagdish Narayan (PW-35) through telephone. PW-35 alongwith Ct. Shamim (PW-11) reached the spot i.e. D-75, Gali No. 10, Modern Shahdara, Delhi. On reaching there, they came to know that injured had already been taken to the hospital by PCR. In the meantime, PW-35 received another information vide DD no. 5-A (Ex.PW-4/B) on phone that some boys were banging the gate of House No. B-105, Gali No. 10, New Modern Shahdara, Delhi. While he was still at House No. D-75, another call vide DD no. 6-A (Ex.PW-4/C) was received through phone, whereby it was informed that near DDA Flat Masjid, 10-12 bullets had been fired. Then, PW-35 went to House No. B-105, which was just nearby.

2. After the receipt of information through the said DD no. 6-A recorded at PS M.S. Park at 12.31 a.m., SHO, PS M.S. Park/Insp. Surender Rana (PW-33), Insp. Amar Singh (PW-32)/Investigating Officer (for short 'IO') and SI Rajiv (PW-30) also reached Shop No. B-105, Gali No. 10, New Modern Shahdara (hereinafter referred as 'spot of incident'). When they reached the spot, PW-35 and PW-11 were already found present there. Both of them had already guarded the place of occurrence. They also came to know that the injured had already been taken to GTB Hospital by PCR.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 2 of 164 PS M.S. Park

3. SI Rajiv (PW-30) and Ct. Shamim (PW-11) were directed to remain at the spot. IO/PW-32 alongwith PW-33 and PW-35 proceeded to GTB Hospital. On reaching the hospital, they learnt that the injured had been declared brought dead. PW-32 collected his MLC (Ex.PW-5/A). They searched for the eye- witness, but no eye-witness was found there. Thereafter, they all left the hospital for the spot. When they reached the spot, crime team had already arrived. One Yogender Kasana (PW-1) met PW-32 and told him that he was an eye-witness to the incident. PW-32 recorded statement (Ex.PW-1/A) of PW-1. He made endorsement (Ex.PW-32/A) on the statement, prepared a tehrir and got the present FIR (Ex.PW-4/D) registered through PW-11.

4. In his statement (Ex.PW-1/A), PW-1 had stated that on 21.04.2013 at about 11.45 p.m., he had gone to the workshop of his friend Ibrahim Nisar (hereinafter referred as 'deceased') at House No. 10, New Modern Shahdara for getting battery of his vehicle Alto changed. As his car was creating problem since afternoon, hence, he had gone to the shop of deceased in the afternoon. At that time, he (deceased) had asked him to carry on during the day as it was not possible to repair battery in day time and he (PW-1) should get the same changed in night. When PW-1 reached the shop of deceased, at that time, his brother Tahir (PW-6) and his paternal uncle Noman (PW-7) were also sitting with him. Thereafter, they all started discussing about cricket. After around 15 minutes, they heard some noise. The deceased asked PW-7 to see, who were raising noise. PW-7 looked in the gali and informed that the people were coming towards the workshop.

5. PW-1 had further stated that in the meantime, the persons residing in the gali of deceased namely Israil Pehalwan (hereinafter referred as 'accused no. 1' or 'A-1'), his four sons Javed (hereinafter referred as 'accused no. 2' or 'A-2'), FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 3 of 164 PS M.S. Park Abid (hereinafter referred as 'accused no. 3' or 'A-3'), Arif (hereinafter referred as 'accused no. 4' or 'A-4') and Tarif (hereinafter referred as 'accused no. 5' or 'A-5') and his son-in-law (damad) Gufran (hereinafter referred as 'accused no. 6' or 'A-6') came upstairs in the shop of deceased while carrying lathi, knife, pistol and cricket wickets in their hands. A-1 was carrying a lathi, A-2 and A-3 were carrying knives, A-4 was carrying a pistol and A-5 and A-6 were carrying cricket wickets. They all started beating the deceased and abusing him. Meanwhile, PW-7 raised alarm 'bachao bachao'. Then, A-4 loaded his pistol. PW-7, due to fear, slipped down and thereafter he fell down on the road from the stairs of shop. A-4 fired upon PW-7 from the pistol, but the bullet did not hit him and he ran away from that place. The brother of deceased Tahir (PW-6) tried to save the deceased. Then, A-5 and A-6 hit him with cricket wickets, but he (PW-6) too, ran away as the accused persons were getting very agitated.

6. PW-1 had further stated that to save himself, the deceased entered into inner portion of his shop, where printing press offset had been installed. The accused persons also followed the deceased. A-4 fired upon the deceased several times from his pistol. A-2 and A-3 stabbed him with knives. A-5 and A-6 assaulted him with cricket wickets and A-1 with lathi. When PW-1 caught hold of hand of A-1 to save the deceased, then he (A-1) pushed him and gave a lathi blow on his hand. He also threatened him to go away, else he (PW-1) would also be killed. When A-2 and A-3 were stabbing the deceased, A-1 exhorted to kill him and stated that he should not get escaped. After having assaulted the deceased, the accused persons smashed the car no. DL5CB6484 of the deceased parked on the road and fled away. Thereafter, PW-1 called the police at 100 number. PCR came there. Then, he and PCR staff put the deceased in the vehicle and PCR van took him to GTB hospital.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 4 of 164 PS M.S. Park

7. Coming back to the spot of incident, PW-32 saw a lot of blood lying around inside the shop. He also saw three cartridge cases and three live cartridges. He saw broken glass pieces lying in the shop. He found one single sports shoe make columbus company, one Rolex wrist watch, two damaged cricket wickets and one lathi. All the said articles were having blood stains. PW-32 seized the said articles. Outside the shop, he saw one fired cartridge case and one Honda City car, whose glass panes were broken and in damaged condition. The crime team had taken photographs of the spot and inspected it. PW-32 took earth control from inside the shop and also blood stained earth from the floor of the shop. He also seized the cartridges i.e. three live cartridges and four cartridge cases.

8. During further investigation, PW-1 was sent to GTB Hospital through PW-11.

After medical treatment, PW-1 returned to the spot alongwith PW-11, who handed over MLC of PW-1 (Ex.PW-3/A) to PW-32. IO recorded statements of PW-6 and PW-7, who had claimed themselves to be the eye-witnesses. The clothes of PW-1 were also blood stained and the same i.e. t-shirt and payjama were seized. Subsequently, post-mortem of the deceased was got conducted. After the post-mortem, the concerned doctor handed over two pullandas containing clothes of deceased and blood gauze of the deceased with sample seals, which were taken into possession by PW-32.

9. In the meantime, A-1 was present at the place of occurrence and he was sent to police station through PW-35. After post-mortem, dead body of the deceased was handed over to PW-6/brother of deceased. PW-32 alongwith his staff came back to police station and interrogated the accused no.1. His disclosure statement (Ex.PW-30/A) was recorded. His wearing clothes, which were having FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 5 of 164 PS M.S. Park blood stains, were also seized. Subsequently, PW-32 made efforts for tracing other accused persons.

10. On 24.04.2013, after receipt of secret information, accused no. 5 and 6 were apprehended. Their disclosure statements (Ex.PW-30/S and Ex.PW-30/T respectively) were recorded. On the next day, wearing clothes of A-5 and A-6 were also taken into possession.

11. During further investigation, on 10.05.2013, PW-32 collected the post-mortem report (Ex.PW-13/A). Further, on request of IO, team of FSL, Rohini inspected the place of occurrence on 15.05.2013. Subsequently, on 21.05.2013, IO obtained NBWs against remaining accused persons from the concerned Court. Further, on 24.05.2013, IO got scaled site plan (Ex.PW-14/A) prepared through Insp. Mukesh Jain (PW-14), who had prepared the same on the pointing out of PW-1 and IO/PW-32.

12. On 22.06.2013, IO received information from PS Jamia Nagar about arrest of accused no. 2. Subsequently, on 25.06.2013, A-2 was produced in the concerned Court of PS M.S. Park. After having obtained permission, A-2 was interrogated and arrested. His disclosure statement (Ex.PW-30/W) was recorded. His police custody remand of two days was obtained. Thereafter, one knife was recovered at the instance of A-2 from near the railway line, New Modern Shahdara. The same was seized vide seizure memo Ex.PW-30/Z. Site plan (Ex.PW-30/A-1) of the spot of recovery of the knife was also prepared. Subsequently, on 27.06.2013, wearing clothes of A-2 were also taken into possession.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 6 of 164 PS M.S. Park

13. Further investigation was conducted by Insp. Surender Rana/PW-33 for a short period as PW-32 had proceeded on leave. On 01.07.2013, DD entry was lodged in the PS that A-3 and A-4 would be surrendering before the Court. PW-33 alongwith PW-30, HC Krishan and Ct. Dhanender came to the Karkardooma Courts. After obtaining requisite permission, accused nos. 3 and 4 were interrogated and arrested. Their disclosure statements (Ex.PW-30/A-7 and Ex.PW-30/A-8) were recorded. Their police custody remand of three days was obtained. The accused nos. 3 and 4 got recovered one motorcycle, which had allegedly been used for escaping from the spot of incident.

14. On 03.07.2013, PW-32 took over the investigation again. A-4 got recovered one empty magazine of a pistol from near the bricks lying at the chowk of his house situated at Hapur. Site plan (Ex.PW-30/A-14) of the place of recovery was also prepared. Subsequently, the accused nos. 3 and 4 disclosed that after use, they had thrown the pistol, knife and their clothes on the way between Ghaziabad and Hapur near the road. Subsequently, on 05.07.2013, A-3 got a knife recovered from near Village Lakhan on the road between Hapur and Ghaziabad. The same was seized vide memo Ex.PW-30/A-18. Site plan (Ex.PW-30/A-19) of the place of recovery was also prepared.

15. PW-32 prepared a memo (Ex.PW-32/F-1) regarding non-recovery of pistol and clothes. Further, he obtained PCR form from PCR office. On 11.07.2013, he recorded statement of witnesses Babar (PW-8)/brother of deceased and Zara (PW-10)/wife of deceased, who had made PCR calls. FSL results were also obtained. After completion of investigation, challan was filed before the Court by PW-33.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 7 of 164 PS M.S. Park

16. After compliance of provision under Section 207 Cr.P.C., Ld. MM, Shahdara, Karkardooma Courts, Delhi, committed the case to the Court of Sessions vide order dated 22.08.2013.

17. Vide order dated 24.09.2014, charge was framed against all accused persons under Sections 148 of the Indian Penal Code (for short 'IPC') read with Section 149 IPC, Section 449/34/149 IPC, Section 302/34/149 IPC, Section 427/34/149 IPC and Section 506(2)/34/149 IPC to which they pleaded not guilty and claimed trial. Further, charge was framed against accused no. 4 under Section 307 IPC and Section 27 Arms Act, against accused no. 5 and 6 under Sections 323/34 IPC and against accused no. 1 under Section 323 IPC to which they pleaded not guilty and claimed trial.

18. In support of its version, the prosecution examined thirty seven witnesses.

PW-1 is Yogender Kasana/complainant. He claimed himself to be the eye- witness of the incident and deposed about the same. He tendered his statement given to the police as Ex.PW-1/A, seizure memos of shoe of the deceased as Ex.PW-1/B and of watch as Ex.PW-1/C. He further stated that he had called police at 100 number from his mobile number 9911102102. This number belonged to his uncle namely Prakash Bhati. He further deposed that there was a dispute between A-2 and the deceased on the issue of one Wagon-R car deal. Deceased had suffered a loss of Rs.80,000/- in that deal. During his examination, he identified his clothes worn by him at the time of incident i.e. T-shirt as Ex.PW-1/Article-1, payjama as Ex.PW-1/Article-2, one white sport shoe, which had been recovered from the spot by the police as Ex.PW-1/Article-3 and one Rolex wrist watch as Ex.PW-1/Article-4. He further deposed that after two months of incident i.e. on 22.06.2013, he was sitting at the workshop of Ibrahim during noon time and two persons came on a FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 8 of 164 PS M.S. Park black motorcycle. The pillion rider took out a revolver and pointed out to him. He fired 2-3 shots towards him, but he had fallen backwards while sitting on a chair and therefore, he was saved. Those persons fled away from the spot. He assumed that that attack on him was due to his being the witness in this case. He lodged an FIR bearing no. 176/13, PS M.S. Park in this respect. PW-1 was cross-examined on behalf of the accused persons.

19. PW-2 is Dr. Meenaskhi, Medical Officer. She deposed that on 22.04.2013 at about 10.10 a.m., one patient namely Yogender Kasana was brought by Ct. Shamim Khan with alleged history of physical assault at around 12.10 a.m. on 22.04.2013. He was examined by Dr. Dhawal. PW-2 was not cross-examined on behalf the accused persons.

20. PW-3 is Dr. Dhawal Narang. He tendered MLC of PW-1 as Ex.PW-3/A. He deposed that on examination, he found following injuries on the body of patient i.e. multiple abrasions on dorsal aspect of left forearm and tenderness over left forearm. PW-3 was cross-examined on behalf the accused persons.

21. PW-4 is ASI Ram Singh/Duty Officer. He tendered DD no. 4-A, 5-A and 6-A dated 22.04.2013, PS M.S. Park as Ex.PW-4/A, Ex.PW-4/B and Ex.PW-4/C respectively. He further tendered FIR as Ex.PW-4/D and his endorsement on rukka as Ex.PW-4/E. PW-4 was cross-examined on behalf the accused persons.

22. PW-5 is Dr. Viras. He deposed that on 22.04.2013 at about 12.43 a.m., patient Ibrahim was brought by ASI Ravi Shankar, PCR official in injured and unconscious state. He examined that patient and did not find any sign of life. Therefore, he was declared dead. He tendered MLC of deceased as Ex.PW-5/A. Accused persons preferred not to cross-examine PW-5.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 9 of 164 PS M.S. Park

23. PW-6 is Tahir Hasan/brother of deceased. He initially deposed about arrival of the accused persons at the shop of deceased till his running away from the spot. He further deposed that he jumped out of the shop. He reached Mandoli Road and he was very shocked at that time. Somehow, he controlled his breath and informed 4-5 public persons about the incident. He took mobile phone from one of them and made call to his brother-in-law namely Dr. Afaq Hussain, who told him that the deceased had already been taken to the hospital by PCR van. Thereafter, he ran towards Nathu Colony Chowk and waited for a rickshaw for some time. Subsequently, he reached GTB Hospital in a rickshaw. In the hospital, Dr. Afaq, PW-1, PW-7 and his other relatives were already present. They told him that the deceased was already dead. He alongwith some of his relatives came back to the shop of deceased. He tendered statement of handing over of dead body to him as Ex.PW-6/A. He identified the clothes worn by deceased at the time of incident i.e. jeans as Ex.PW-6/Article-1 and shirt as Ex.PW-6/Article-2. He stated that he could not identify the lathi, knife or other weapons because of long lapse of time and he did not see those very minutely at the time of incident. He was cross-examined on behalf of the accused persons.

24. PW-7 is Noman Umar/uncle of deceased. He initially deposed about arrival of the accused persons at the shop of deceased till his running away from the spot. He has further deposed that the moment he fell down from the stairs on the ground, A-4 fired at him, but bullet did not hit him. He ran towards gali no. 11 at the house of his niece namely Rukaiya. He told her about this incident. After around 10-12 minutes, both of them came to the corner of gali no. 11. At that time, he saw that A-4 and A-3 were fleeing towards railway crossing from the shop of deceased. Thereafter, he alongwith Rukaiya reached the shop of FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 10 of 164 PS M.S. Park deceased. PCR van was already standing outside the shop. The PCR officials and PW-1 brought the deceased outside from his shop in unconscious and bleeding condition. He was put in the PCR van. He also sat in same PCR van. They went to GTB hospital, where the deceased was declared dead. He stayed there for some time. When he came out of casualty ward, he met PW-6, PW-1, Dr. Afaq Ansari and some relatives in the corridor of the hospital. After staying for around 30-45 minutes, he came back to the place of incident in car alongwith some relatives. Police officials were already present there, who were inspecting the scene of crime. He remained there for around one and half or two hours. Police recorded his statement. He further deposed about description of lathi used by A-1 and knife used by A-3 that lathi was around 4 feet long. It was knife, which is generally used to cut meat at house. Its blade was pointed on one end and was having more width on other end. The blade would be around 6-7 inches and the total length of the knife would be around 1 foot. The handle was smaller than the blade. During his examination before the Court, he identified lathi which had been used by A-1 at the time of incident as Ex.PW-7/Article-1 and the knife which had been used by A-3 as Ex.PW-7/Article-2. He was cross-examined on behalf of the accused persons.

25. PW-8 is Babar/brother of deceased. He deposed that in the intervening night of 21-22.04.2013 at about midnight, he was present at his house. One mosque is adjacent to his house on one side. There was a gali in front of his house. On the opposite side of gali, leaving one property, there was shop of deceased. There was residential part over the shop of deceased, wherein his family members consisting of his wife and son used to reside on that day. At midnight, he was present in his house with his mother, sister and brother Taiyab. His brother/ PW-6 was not present at his house. His house has opening in two gali i.e. gali FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 11 of 164 PS M.S. Park no. 9 and 10. At about 12-12.15 a.m., he was studying in his room situated on 2nd floor of the house. At that time, he heard noise of knocking of the door coming from the side of gali no. 10. He came to his balcony and looked inside gali no. 10. He saw some persons standing in front of his house, who were going towards the shop of deceased. They were six persons, who were his neighbours. PW-8 mentioned names of the accused persons and weapons carried by them respectively.

26. PW-8 further deposed that there was door on 2nd floor of his house, which opened on the terrace of the mosque. He immediately went to the terrace of mosque through that door. The mosque and shop of deceased were situated nearby with only a gali between these two properties. He went to the corner of terrace, which was on the side of shop of deceased. He saw that all those persons were climbing the stairs of shop of deceased. They entered his shop and thereafter, he heard noise of persons coming from the shop of deceased. After around two minutes of entry of accused persons in that shop, he saw Noman (PW-7) uncle falling on the road from that shop. Immediately thereafter, he heard sound of a bullet fire. Thereafter, PW-7 fled away towards gali no. 11. He (PW-8) was shouting 'bachao bachao'. After around 3-4 minutes, he saw that Tahir (PW-6) jumped on the road from the shop of deceased and he also fled away towards gali no. 11. Thereafter, he heard sound of firing from the shop of deceased apart from noise of lot of persons. He was shaking out of nervousness and he sat down on the terrace. After around 4-5 minutes, he made a call at 100 number using his mobile number 9136555040. This phone connection belongs to his friend Shehzad. After making this call, he kept sitting on that terrace for another 7-8 minutes. Thereafter, he went to his house and came downstairs from gali no. 9 from main gate of his house. Thereafter, he went to the shop of FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 12 of 164 PS M.S. Park deceased. At that time, he found around 6-7 police officials present at the house of deceased. He also found his elder sister namely Rukaiya and sister-in-law namely Zara. They told him that Ibrahim was taken to hospital by PCR officials. He remained there for some time and police officials made inquiry from him about the incident. He narrated them the incident seen by him. He was cross-examined on behalf of the accused persons.

27. PW-9 is Mohd. Yunus. He deposed that on 21.04.2013 at around 8.00 p.m., he visited the house of A-1 to attend the function of engagement of his son Abid (A-3). He had come in his car bearing no. UP16AD1877. This function was over by 11.30 p.m. and maximum guests had left his house. He remained there upto around 11.45 p.m. At that time, he told A-1 that he was also leaving, but he stopped him stating that he should give his car to him so that some guests may be sent to their house in his car. His car was parked between gali no. 11 and 12 and he reached there to bring his car to the house of A-1. When he started taking his car to the house of A-1, he found that right front tyre of his car was punctured. By that time, he had already reached the corner of gali no. 11. The guest of A-1 were also standing at a distance of around 60 feet from him at the corner of gali no. 10. A-3 was also standing alongwith those guests and he (PW-9) handed over key of his car to him. He asked him to change the tyre and he (A-3) changed the tyre in his presence. By this time, it was already around 12 midnight. Thereafter, A-3 took daughter of A-1 namely Nazneen, sister of A-1 namely Asgari, son-in-law of A-1 namely Gufran (A-6) and his two children in his car. A-1 was also present there and asked him to come to his house in order to take dinner and they left for his house.

28. PW-9 has further deposed that they took meal on the 3rd floor of his (A-1) house. He did not take food, because he had already taken it. Javed (A-2), A-1, FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 13 of 164 PS M.S. Park Arif (A-4), Tarif (A-5), Shahid and one more relative of A-1 were taking food at that time. After taking food, A-1 went to balcony of the room, wherein they were sitting. From balcony, he looked in the gali and told them that mob had assembled in the gali. A-1 went downstairs and he (PW-9) also followed him. They both reached gali no. 10 and started going towards the mob. One boy alongwith a policeman came towards them and policeman was asking that boy that who had fired bullet. The boy pointed out to A-1 stating that he had fired bullet. Thereafter, that policeman apprehended A-1 at that spot itself. On the main road, he (PW-9) saw that towards left side, four persons including two police officials were putting an injured person in police gypsy. Policeman took away the deceased. He (PW-9) went to factory of A-1 situated near railway track after crossing DDA flats. It took him 10 minutes to that factory. In the factory, 4-5 workers of A-1. One of them was Aashu, another was Jishan and some local boys were sitting over there. His car was parked there and he asked about whereabouts of A-3. Those boys pointed out to the key kept on the table stating that A-3 was not there. Thereafter, he took his car from that place and came to his house. He was cross-examined by Ld. Addl. PP for the State. However, the accused persons preferred not to cross-examine him.

29. PW-10 is Zara Ibrahim/wife of deceased. She deposed that in the intervening night of 21-22.04.2013 at around 12-12.10 a.m., she was present on the first floor of her house. Her husband was present in the shop situated on the ground floor of the same house. There was main road in front of that house. There was street lamp on the corner of gali no. 10 and main road. She heard a lot of noise after around 12 a.m. She came out of the balcony of the first floor of her house. She saw that their neighbour namely A-1 alongwith his four sons (A-2 to A-5) and his son-in-law (A-6) were climbing on the stairs of the shop on the ground FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 14 of 164 PS M.S. Park floor. PW-10 further mentioned about the weapons carried by the respective accused persons. They entered in the shop and she heard noise of beating and rampage. After 2-3 minutes, she saw Noman uncle (PW-7) falling on the road and immediately thereafter, she heard sound of a bullet fire. PW-7 fled away towards gali no. 11. Thereafter, she cried 'bachao bachao'. She kept standing in the balcony and after 3-4 minutes, she saw Tahir (PW-6) was jumping on the road and fleeing away towards gali no. 11. Thereafter, she heard cries of her husband. She rushed inside her room in order to take her mobile and during this period, she heard sound of 2-3 bullets fire. She was too scared. She made a call at 100 number with her mobile number 9654968814 and told the police that neighbours were beating her husband. She made another call at 100 number after around 2-3 minutes. She was too scared and she kept sitting in that room with her son. After 6-7 minutes, when she heard sound of PCR van, she came out in the balcony and saw that PCR van had arrived. Thereafter, she came downstairs. She saw that her sister-in-law Rukaiya, PW-7, PW-1 and PCR officials were present there. PW-1 and PCR officials were taking her husband out from the shop. Her husband was unconscious and bleeding. He was taken into PCR van and PW-7 also accompanied the PCR officials in the same van. They remained there for 5-7 minutes. Public persons started gathering there. His younger brother-in-law Babar (PW-8) came there. She told him that her husband was taken to hospital. Thereafter, her sister-in-law took her inside their house. After departure of PCR van, she had not noticed about activity of other persons including PW-1. She was cross-examined on behalf of the accused persons.

30. PW-11 is Constable Shamim Khan. He deposed about his arrival at the spot alongwith ASI Jagdish Narayan (PW-35), receipt of information of removal of FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 15 of 164 PS M.S. Park the injured to hospital by PCR van, arrival of IO/PW-32, SHO/PW-33 and SI Rajiv/PW-30 at the spot, leaving him alongwith PW-30 at the spot by IO and later on, his departure to PS M.S. Park for getting the present FIR registered. He has further deposed about taking PW-1 to GTB hospital for his medical examination. He was cross-examined on behalf of the accused persons.

31. PW-12 is Ct. Neeraj Kumar. He was a member of mobile crime team. He stated that on 22.04.2013 at about 1.10 a.m., he accompanied In-charge of mobile crime team SI Ravi Kumar (PW-36) to the spot. He clicked 26 photographs of scene of crime from different angles. Out of 26 photographs, only 25 positives were developed as one got washed out. He tendered the photographs alongwith respective negatives as Ex.PW-12/A-1 to A-25. He was cross-examined on behalf of the accused persons except A-6.

32. PW-13 is Dr. Vishwajeet Singh. He inter-alia deposed that on 22.04.2013, dead body of deceased was received for post-mortem. He conducted the same from 3.05 p.m. to 4.20 p.m. On examination, he found 20 external ante-mortem injuries over the dead body. After examination, he opined that time since death was about half a day and cause of death as - haemorrhagic shock as a result of ante-mortem injury to heart as mentioned in injury no. 19 and was produced by single edged sharp cutting weapon and was individually sufficient to cause death in ordinary course of nature. All injuries were ante-mortem in nature. Injury no. 1 to 10 were collectively sufficient to cause death in ordinary course of nature. Injury no. 19 and 20 were produced by single edged sharp cutting/stabbing weapon. Injury no. 1 to 16 were produced by blunt force impact. Injury no. 17 was produced by pointed weapon. He further deposed about articles preserved i.e. blood on gauze in a sealed envelop and clothes of deceased in a sealed pullanda with sample seal. He tendered post-mortem report FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 16 of 164 PS M.S. Park of deceased as Ex.PW-13/A. He was cross-examined on behalf of the accused persons.

33. PW-14 is Insp. Mukesh Kumar Jain. He deposed that on 24.05.2013, on request of IO/PW-32, he reached the spot, where PW-32 and Yogender Kasana/PW-1 were already present. At the instance of PW-32 and PW-1, he took measurements and prepared rough notes. Thereafter, he went back to his office and prepared scaled site plan. He tendered the same as Ex.PW-14/A. He was cross-examined on behalf of the accused persons.

34. PW-15 is SI Devender Kumar. He tendered PCR call form regarding the call received from mobile number 9911102102 as Ex.PW-15/B and certificate under Section 65-B of the Indian Evidence Act in this regard as Ex.PW-15/A. He was not cross-examined on behalf of the accused persons.

35. PW-16 is Ashu Chaudhary. He deposed that the deceased was known to him for 2-3 years prior to his death. The deceased used to work for servicing of vehicles. He (PW-16) had purchased a Wagon-R bearing no. DL5CH4979. He had kept the said vehicle with the deceased for the purpose of mortgaging it as he was in need of some money. The deceased had told him that there was one Javed (A-2) with whom he could have arranged a transaction for this vehicle. The deceased had some dealing with A-2 and he had given him (PW-16) Rs.1,20,000/- against mortgage of his said vehicle. Further, insurance of this vehicle was going to lapse and officials of insurance company had told him that he was not entitled to no claim bonus because an accident had taken place with his said vehicle. Thereafter, he informed the deceased about these things and told him that insurance of the vehicle was to be renewed. The deceased told him that he would talk to A-2. The deceased further told him to take back his FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 17 of 164 PS M.S. Park vehicle. He (PW-16) told him that he was not having money to repay. The deceased offered to make payment of money on his behalf. Thereafter, the deceased told him that A-2 was not returning the vehicle and he asked him to make call at 100 number. Thereafter, he made call at 100 number and complained that A-2 was not returning his vehicle, which was lying with him. Thereafter, a talk took place among them, when he (PW-16), deceased and A-1 were present alongwith two police officials. Thereafter, he (PW-16) handed over Rs.1,10,000/- to A-1 (the amount had been given to him (PW-16) by the deceased) and his vehicle was returned to him. He was cross-examined on behalf of the accused persons.

36. PW-17 is SI Madan Gopal. He tendered PCR call form regarding the call received [from mobile number 9136555040] as Ex.PW-17/A and certificate under Section 65-B of the Indian Evidence Act in this regard as Ex.PW-17/B. He was cross-examined on behalf of the accused persons.

37. PW-18 is W/Constable Sunita. She deposed that in the intervening night of 21-22.04.2013, she was posted at CPCR. At about 12.21 a.m., she received a call regarding a quarrel and other incident, details of which were fed by her in the computer. She further stated that she had seen PCR form Ex.PW-17/A, which is print out of the information fed by her. She was cross-examined on behalf of the accused persons.

38. PW-19 is ASI Ravi Shanker. He deposed that in the intervening night of 21-22.04.2013, he was posted in North East Zone PCR and he was on duty on backer-49. At 12.24 a.m., he received a call to the effect that neighbour of the caller was beating her husband after entering the house. At that time, he was present at DDA Community Centre, M.S. Park in order to attend another call.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 18 of 164 PS M.S. Park They reached at B-105, New Modern Shahdara. There was a printing press in house no. B-105 on ground floor, which had two portions. In the back portion, he found an injured, whose name was disclosed as Ibrahim by the persons present there. That injured was lying between machine and back wall of that premises. Injured was bleeding heavily and there was a lot of blood lying on the floor. With the help of family members and uncle of injured/Noman (PW-7), he shifted him in the PCR Van. PW-7 had accompanied them in PCR to GTB Hospital. In GTB Hospital, injured was declared dead by the doctor in his presence. While going to the hospital, PW-7 had told him that injured was assaulted by their neighbours namely Abid, Arif, Javed and Tarif and 1-2 more names were told by him, which he was unable to recollect. Injured had injuries on his head, left side of chest, left side of abdomen as well as on his back. He was cross-examined on behalf of the accused persons.

39. PW-20 is HC Sawai Singh. He stated that on 19.06.2013, he deposited 2 sealed pullandas in Ballistic Division, FSL, Rohini and 14 sealed pullandas in Biology Division, FSL. He deposed that all pullandas were not tampered with during their custody with him. He was not cross-examined on behalf of the accused persons.

40. PW-21 is Constable Sandeep. He deposed that in the intervening night of 21-22.04.2013, he was posted at CPCR. At about 12.22 a.m., he received a call that Mansarovar Park DDA Flats, Masjid ke pass 10-12 goliyaan chali hain aur injured hain. He fed that information in the computer. He further stated that he had seen PCR form Ex.PW-15/B, which is print out of the information fed by him. He was cross-examined on behalf of the accused persons.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 19 of 164 PS M.S. Park

41. PW-22 is N.B. Bardhan. He tendered firearm examination report dated 10.02.2014 in respect of empty magazine as Ex.PW-22/A. He was cross- examined on behalf of the accused no. 2, but not on behalf of other accused persons.

42. PW-23 is HC Ramesh. He deposed that on 22.04.2013, he had taken copies of FIR from duty officer ASI Ram Singh and delivered the said copies to the office of Joint C.P., Additional C.P., ACP, Shahdara and the concerned MM. He was cross-examined on behalf of the accused persons.

43. PW-24 is HC Ram Kishan. He deposed that on 18.07.2013, he deposited one sealed pullanda in FSL, Rohini. Further, pullanda was not tampered with during its custody with him. During his cross-examination by Ld. Addl. PP for the State, he deposed that he had taken two sealed pullandas from MHC(M). He was cross-examined on behalf of the accused persons.

44. PW-25 is ASI Bhagwan Dass. He stated that on 21.06.2013, he was posted in PS Jamia Nagar. At about 7.00 p.m., he was on patrolling duty with Ct. Raj Karan and HC Abdul Wahid. A secret informer met him at Batla House and informed that one person by the name of Javed (A-2), who was wanted in a murder case of PS M.S. Park would come at Khalilullah Masjid. Subsequently, A-2 was apprehended. He tendered arrest and personal search memos of A-2 as Ex.PW-25/A and Ex.PW-25/B respectively. Further, on 22.06.2013, A-2 was produced in the concerned Court at Saket Courts and remanded to JC till 24.06.2013, as intimation to the concerned PS had already been sent. He was cross-examined on behalf of the accused no.2 and not on behalf of other accused persons.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 20 of 164 PS M.S. Park

45. PW-26 is Dr. Kaushal Kumar. He tendered Biology Division, FSL report dated 26.05.2014 as Ex.PW-26/A and Ex.PW-26/B. He was cross-examined on behalf of the accused persons.

46. PW-27 is Dharambir Singh. He stated that motorcycle bearing no.

DL7SAS3940 was registered in the name of Javed (A-2). He tendered authority letter for attending the Court as Ex.PW-27/A and particulars of the vehicle as Ex.PW-27/B. He was not cross-examined on behalf of the accused persons.

47. PW-28 is ASI Vinod Kumar/MHC(M). He tendered the entries made in relevant register at the time of depositing of the pullandas by IO and sending the pullandas to FSL on different dates. He tendered photocopies of all the above entries as Ex.PW-28/A and copies of RC as Ex.PW-28/B. He deposed that case properties while in his possession were not tampered with. He was cross- examined on behalf of the accused nos. 1, 2, 3 and 6 and not on behalf of accused nos. 4 and 5.

48. PW-29 is Dr. Suminder Kaur. She tendered FSL report dated 03.12.2014 regarding DNA examination as Ex.PW-29/A, serological report as Ex.PW-29/B, genotypic data as Ex.PW-29/C and Ex.PW-29/D. She was cross-examined on behalf of the accused persons.

49. PW-30 is SI Rajiv Kumar. He submitted about steps taken by the Investigating Officers during investigation conducted into the present case. He tendered seizure memos of clothes of Yogender Kasana as Ex.PW-30/A, of lathi having blood stains as Ex.PW-30/B, of blood lifted as Ex.PW-30/C, of blood stained earth lifted as Ex.PW-30/D, of earth control as Ex.PW-30/E, of cricket stumps as Ex.PW-30/F and of cartridges as Ex.PW-30/G. He further tendered seizure FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 21 of 164 PS M.S. Park memo of pullandas handed over by the doctor to the IO after post-mortem as Ex.PW-30/H, arrest and personal search memos of A-1 as Ex.PW-30/I and Ex.PW-30/J, his disclosure statement as Ex.PW-30/K, seizure memo of clothes of A-1 as Ex.PW-30/L, pointing out memo of place of occurrence prepared at the instance of A-1 as Ex.PW-30/M and sketch of recovered cartridges as Ex.PW-30/N. He further tendered arrest memos of A-6 and A-5 as Ex.PW-30/O and Ex.PW-30/P and their personal search memos as Ex.PW-30/R and Ex.PW-30/Q and their disclosure statements as Ex.PW-30/T and Ex.PW-30/S respectively and pointing out memo of place of occurrence as Ex.PW-30/U. He further tendered arrest memo of accused Javed (A-2) as Ex.PW-30/V, his disclosure statement as Ex.PW-30/W, pointing out memo of place of occurrence as Ex.PW-30/X, sketch of the knife recovered at instance of A-2 as Ex.PW-30/Y, seizure memo of the same as Ex.PW-30/Z, site plan of place of recovery as Ex.PW-30/A-1 and seizure memo of clothes of A-2 as Ex.PW-30/A-2. He further tendered arrest and personal search memos of A-3 and A-4 as Ex.PW-30/A-3 to Ex.PW-30/A-6, their disclosure statements as Ex.PW-30/A-7 and Ex.PW-30/A-8, seizure memo of motorcycle no. DL7SAS3940 recovered at their instance as Ex.PW-30/A-9, pointing out memo of place of occurrence prepared at their instance as Ex.PW-30/A-10 and Ex.PW-30/A-11, sketch of the magazine recovered at the instance of A-4 as Ex.PW-30/A-12, seizure memo of the same as Ex.PW-30/A-13, site plan of the place of recovery as Ex.PW-30/A-14, supplementary confessional statements of A-3 and A-4 as Ex.PW-30/A-15 and Ex.PW-30/A-16, sketch of knife recovered at the instance of A-3 as Ex.PW-30/A-17, seizure memo of the same as Ex.PW-30/A-18 and site plan of the place of recovery as Ex.PW-30/A-19.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 22 of 164 PS M.S. Park

50. During his examination, PW-30, besides identifying the sport shoe, wrist watch, clothes of PW-1, lathi (47 inches long) and knife [recovered at the instance of A-3] having been taken into possession, identified knife [recovered at the instance of A-2] as Ex.PW-30/Article-1, empty magazine [recovered at the instance of A-4] as Ex.PW-30/Article-2, three cartridges, which were live at the time of recovery, as Ex.PW-30/Article-3, four empty cartridge cases as Ex.PW-30/Article-4, clothes of accused no. 1 as Ex.PW-30/Article-5, clothes of accused no. 2 as Ex.PW-30/Article-6, photographs of the motorcycle no. DL7SAS3940 taken into possession as Ex.PW-30/Article-7 and two cricket stumps as Ex.PW-30/Article-8 and Article-9. He was cross-examined on behalf of the accused persons.

51. PW-31 is Ashwani. He produced kalandra [prepared in respect of accused no. 2 at the time of his arrest]. The same was tendered as Ex.PW-31/A. He was not cross-examined on behalf of the accused persons.

52. PW-32 is Insp. Amar Singh/IO. He submitted about the steps taken by him during investigation conducted into the present case. He tendered endorsement on rukka as Ex.PW-32/A, statement of PW-1 and PW-6 regarding identification of dead body as Ex.PW-32/B and Ex.PW-32/C respectively, inquest proceedings as Ex.PW-32/D, request for post-mortem of the dead body vide Ex.PW-13/D-1, seizure memo of wearing clothes of accused no. 6 and 5 as Ex.PW-32/E and Ex.PW-32/F and death certificate of deceased as Ex.PW-32/G. During his examination, besides identification of other case properties, he identified the clothes of accused no. 5 as Ex.PW-32/P-1 and of accused no. 6 as Ex.PW-32/ P-2. He was cross-examined on behalf of the accused persons.

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53. PW-33 is Insp. Surender Rana/the then SHO, PS M.S. Park. He submitted about his arrival at the spot alongwith IO/PW-32 and PW-30, their visit to GTB Hospital and coming back to the spot again. He further submitted about the investigation carried out by him on 01.07.2013 in respect of arrest of A-3 and A-4. He had prepared the charge sheet and filed the same before the Court. He was cross-examined on behalf of the accused persons.

54. PW-34 is Anubha Lal. She tendered Ballistics Division, FSL report dated 29.08.2013 in respect of cartridges recovered from the spot as Ex.PW-34/A. She was cross-examined on behalf of A-1 and A-3, but not on behalf of other accused persons.

55. PW-35 is SI Jagdish Narayan. He submitted about his arrival at the spot after receipt of DD no. 4-A, arrival of other police officials at the spot i.e. PW-30, PW-32 and PW-33, their (PW-35, PW-32 and PW-33) visit to hospital and coming back to the spot, inspection of scene of crime carried out by crime team, seizure memos prepared by IO and apprehension of accused nos. 1, 5 and

6. He was cross-examined on behalf of the accused persons.

56. PW-36 is Insp. Ravi Kumar. He deposed that on 22.04.2013, at about 12.45 a.m., on receipt of information from control room, he reached the spot. He was accompanied by photographer Ct. Neeraj Kumar (PW-12) and SI Chet Ram from Finger Print Expert. The victim had already been shifted to the hospital. He inspected the spot, got the spot photographed and prepared scene of crime report, which is tendered as Ex.PW-36/A. He was cross-examined on behalf of the accused nos. 1, 2, 3 and 6, but not on behalf of accused nos. 4 and 5.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 24 of 164 PS M.S. Park

57. PW-37 is Ajit Singh/Alternate Nodal Officer, Vodafone Idea Limited. He tendered CAF of mobile phone no. 9911102102 in the name of Prakash Chand Bhati as Ex.PW-37/A, his election card as Ex.PW-37/B, CDR of said mobile no. as Ex.PW-37/C and certificate under Section 65-B of the Indian Evidence Act as Ex.PW-37/D. He deposed that as per record of CDR, on 22.04.2013 from 12.22.22 am to 12.26.00 am, three calls were made to 100 number from mobile no. 9911102102 and the location of said mobile number was at New Modern Shahdara. He (PW-37) further tendered CAF of mobile phone no. 9654968814 in the name of Manish as Ex.PW-37/E, his election card as Ex.PW-37/F, CDR of said mobile no. as Ex.PW-37/G, certificate under Section 65-B of the Indian Evidence Act as Ex.PW-37/H and forwarding letter bearing signatures of Anuj Bhatia as Ex.PW-37/I. He deposed that as per record of CDR, on 22.04.2013 from 00.21.43 am to 00.25.26 am, two calls were made to 100 number from mobile no. 9654968814 and the location of said mobile number was at New Modern Shahdara. He further tendered CAF of mobile phone no. 9136555040 in the name of Wasilan as Ex.PW-37/J, his election card as Ex.PW-37/K, CDR of said mobile no. as Ex.PW-37/L, certificate under Section 65-B of the Indian Evidence Act as Ex.PW-37/M and forwarding letter bearing signatures of Anuj Bhatia as Ex.PW-37/N. He deposed that as per record of CDR, on 22.04.2013 from 00.21.40 am to 00.25.40 am, two calls were made to 100 number from mobile no. 9136555040 and the location of said mobile number was at New Modern Shahdara. He (PW-37) further tendered cell ID Chart of Vodafone as Ex.PW-37/O and of idea as Ex.PW-37/P. He clarified that last digit of cell ID (i.e. 1) number in CDR Ex.PW-37/L and Ex.PW-37/G shows sector. One tower normally covers 3 sectors i.e. 1/2/3. Further, last digit of cell ID (i.e. 2 and 4) number in CDR Ex.PW-37/C shows FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 25 of 164 PS M.S. Park sector. He was cross-examined on behalf of the accused no. 1, but not on behalf of others accused persons.

58. During trial, on 17.12.2016, the accused persons admitted the following documents i.e. PCR form and certificate under Section 65-B of the Indian Evidence Act as Ex.A-1 and Ex.A-2 respectively. Further, on 17.09.2021, the accused persons did not dispute the genuineness of documents i.e. Ballistics Division Crime Scene Report dated 12.02.2020, Ex.P-1.

59. After conclusion of the prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C., wherein accused no. 1 claimed himself to be innocent and stated that the witnesses have falsely identified them as accused persons. In respect of testimony of PW-9/Mohd. Yunus, he inter-alia stated that PW-9 told him that tyre of his car was punctured and he replaced the flat tyre. He further stated that no worker would have been working in the factory at about 12 night. In respect of seizure of his clothes vide memo Ex.PW-30/L, he stated that his clothes were seized after two days of alleged incident. He further stated that he did not know whether the same clothes, which were seized from him, had been produced before the Court. He has lastly stated that on 21.04.2013, there was function of engagement of his son Abid (A-3). There was no occasion for them to assault Ibrahim or any other person on that day, as they were busy in the said function. He did not know as to why police had apprehended him and other accused persons. He opted to lead defence evidence.

60. Accused no. 2 claimed himself to be innocent and stated that the witnesses have falsely identified them as accused persons. In respect of testimony of PW-9 that A-1, A-2, A-4, A-5, Shahid and one more relative were taking food, the accused FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 26 of 164 PS M.S. Park no. 2 answered that he did not know. Further, false memos have been prepared. He has further stated that on 21.04.2013, there was a function of engagement of his brother Abid (A-3). He was present in the house. He did not commit any offence. He opted to lead defence evidence.

61. Accused no. 3 claimed himself to be innocent and stated that the witnesses have falsely identified them as accused persons. In respect of testimony of PW-9, he stated that he had gone to the factory with car of PW-9 after dropping his guests through his (PW-9) car. There were 2-3 persons present in the factory. He has further stated that on 21.04.2013, there was function of his (A-3) engagement. There was no occasion for them to assault Ibrahim or any other person on that day. He opted to lead defence evidence.

62. Accused no. 4 claimed himself to be innocent and stated that the witnesses have falsely identified them as accused persons. He has further stated that he did not remember the time when PW-9/Mohd. Yunus asked his father Israil Pehalwan (A-1) that he was leaving. Further, deceased Ibrahim had performed love marriage. He had several enemies as his wife was a Hindu and it was an inter- faith marriage. Deceased did not use to reside at his parental house and after a long gap, he had joined his parental family. On the day of alleged incident, he was busy in function of engagement of his brother Abid (A-3). He had good relations with deceased and he was surety of deceased in the case FIR No. 24/2011 PS Seelampur, Delhi under Section 411 of IPC. He opted to lead defence evidence.

63. Accused no. 5 claimed himself to be innocent and stated that the witnesses have falsely identified them as accused persons. In respect of testimony of PW-9 that A-1, A-2, A-4, A-5, Shahid and one more relative were taking food, the accused FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 27 of 164 PS M.S. Park no. 5 answered that he did not know. He has further stated that on 21.04.2013, there was a function of engagement of his brother Abid (A-3). He was present in the house. He heard a noise from outside. When he came out, he saw that police officials had apprehended his father i.e. co-accused Israil. He used to work with deceased Ibrahim in a hotel, two years prior to the alleged incident. He (deceased) had left the said job as police officials used to visit the said work place. Perhaps, there were some cases against the deceased. He opted to lead defence evidence.

64. Accused no. 6 claimed himself to be innocent and stated that he is son-in-law of co-accused Israil (A-1) and brother-in-law of other accused persons (A-2 to A-5). He has no concern with their family except attending functions organized by them or visiting them on occasions of festivals. Being their relative, he has been implicated in the present case. He opted not to lead defence evidence.

65. The accused nos. 1 to 5 examined three witnesses. DW-1 is HC Jhaba Ram. He brought the summoned record of FIR no. 24/11, PS Seelampur under Section 379 IPC dated 30.01.2011. The copy of FIR was tendered as Ex.DW-1/A. During his cross-examination by Ld. Addl. PP for the State, he admitted the suggestion that present FIR was registered against unknown person.

66. DW-2 is Mohd. Raffiq. He stated that A-1 is his friend. Their friendship was going to be converted into relationship and he visited the house of A-1 in the month of April, 2013 with his 2-3 relatives for performing engagement of his daughter with his son Abid. They reached the house of A-1 at about 8-9 p.m. They remained their till 11.45-12-12.30 in the night. He did not remember the exact time when they left. Till, they remained there, he did not hear any hue and cry. He was cross-examined by Ld. Addl. PP for the State.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 28 of 164 PS M.S. Park

67. DW-3 is Feroz Khan. He deposed that he was President, Delhi State Meo Sabha. He came to the house of A-1 on the occasion of engagement of his son. He did not know the name of his son. He was invited from both sides. He reached there at about 10-10.30 p.m. The rituals had already been performed. He met public persons attending the function there. He remained there for almost 1.5-2 hours. He could not tell the exact time when he left the function, however, it may be probably 11.45 p.m. - 12.00 night. He was cross-examined by Ld. Addl. PP for the State.

68. I have heard final arguments from Ld. Addl. PP for the State and Ld. Counsels for accused persons. Ld. Addl. PP has been assisted by Ld. Counsel for the family members of deceased too.

69. Ld. Addl. PP for the State has argued that PW-1 has provided detailed narration of incident, in the FIR itself, including the names of accused persons, weapons carried by them respectively and specific roles played by them. He has deposed before the Court in coherent and consistent manner. A-4 had fired upon PW-7 and in such circumstance, it was natural conduct on part of PW-7 to run away from the spot to protect himself. The act of firing upon PW-7 is corroborated with recovery of an empty cartridge from outside the workshop of deceased. Similarly, the accused persons were carrying lethal weapons and they were in agitated condition. A-5 and A-6 had beaten PW-6 with cricket wickets and A-4 had already fired upon PW-7. In such circumstance, it was natural conduct on part of PW-6 too to run away from the spot for his protection. Further, PW-1 has explained the circumstance that he had reasoned with accused to leave the deceased, but they did not melt down. From the testimony of PW-1, it is clear that the intention of accused persons was to kill the deceased, that is why they did not cause any serious injuries to PW-1. This also leads to infer as to why FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 29 of 164 PS M.S. Park PW-1 too did not run away from the spot. Even otherwise, in such circumstances in which the present incident occurred, it cannot be expected that the persons present at the spot would behave in uniform manner i.e. one may run away and another may stay at the spot. Further, it is not the case that PW-1 had remained unhurt. He was also assaulted, when he tried to save the deceased. This has been corroborated with his MLC, Ex.PW-3/A. Further, PW-1 has depicted about his natural conduct too that he had got nervous after the incident and he was unable to speak properly at first instance when he was to make call at 100 number. The accused persons could not create any doubt on the testimony of PW-1 regarding call made by him at 100 number with the mobile number carried by him. Further, he had assisted in shifting the deceased in PCR van. It is pertinent to note that PW-1 had attended the marriage of A-2, which leads to infer that he (PW-1) had cordial relations with the accused persons. Thus, there was no reason for him to implicate the accused persons falsely in the present case and to let the actual assailants scot free. Further, the accused persons did not seek any explanation from PW-1 as to by which weapon, they smashed the articles kept in the workshop and the car of deceased parked outside. Thus, considering the coherent testimony of PW-1, it cannot be said by any stretch of imagination that he was not present at the spot at the time of incident. There is no material omission/improvement in the testimony of PW-1 vis-à-vis his previous statements. In fact, he has provided complete detail of circumstances occurred during the incident.

70. Ld. Addl. PP for the State has relied upon the following precedent in support of his arguments i.e. State of U.P. v. Joti Prasad, AIR 1962 ALL 582.

71. Ld. Addl. PP has further argued that from the graphic presentation of the incident given by PW-1, it stands proved that A-2 was standing behind the FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 30 of 164 PS M.S. Park deceased, at the time of final assault upon him (deceased) and he gave knife blow to him. Further, all other accused persons were standing in front of deceased. A-3 also gave knife blow to deceased and other accused persons too assaulted him at that time. Further, veracity of PW-1 got checked by the question put to him by the Court that 'was the deceased facing him or his back was towards him?' To which, PW-1 answered that the face of deceased was towards him.

72. Ld. Addl. PP has further argued that all the calls to 100 number, pursuant to which DD no. 4-A, 5-A and 6-A were recorded, had been made from the area of incident. This stands proved from the documents tendered by PW-37.

73. Ld. Counsel for the family members of deceased has argued that had the bullets not been fired, then the said fact would not have been mentioned in DD no. 6-A. Furthermore, in DD no. 5-A too, it has been informed that the persons who were banging the gate were carrying pistol. Further, in PCR form Ex.A-1, names of four accused persons A-2, A-3, A-4 and A-5 had been specifically mentioned. That aspect firstly shows that names of some of accused persons had come to notice of PCR officials immediately and identities of all accused persons were told by eye-witnesses of the incident i.e. PW-1, PW-6 and PW-7 after inquiry having been made by IO. Thus, there is no scope of argument of manipulation regarding the complicity of all accused persons in the commission of present offence. Even otherwise, FIR had been registered promptly. Further, the accused persons could not bring any cogent evidence to create doubt on the aspect of 'place of occurrence'. In respect of presence of PW-1 at the spot, Ld. Counsel has reiterated that PW-1 had made call at 100 number. He helped the PCR officials in shifting the deceased in PCR van. His clothes had also got blood stained and this aspect is corroborated with FSL report in this regard. The FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 31 of 164 PS M.S. Park testimony of PW-1 is corroborated with testimonies of PW-6, PW-7, PW-8 and PW-10.

74. Ld. Counsel has further argued that the accused persons cannot be allowed to plead that no bullet marks were found at the spot. It is worth noting that A-4 had fired upon PW-7 and an empty cartridge was found outside the shop of deceased. Even otherwise, a suggestion was put to PW-1, during his cross- examination conducted on behalf of accused nos. 1 to 5 on 23.01.2015, that when PW-7 raised hue and cry, A-4 fired at him immediately. This suggestion put on behalf of accused persons itself tantamounts to admission that A-4 was carrying a pistol and he had fired upon PW-7. Ld. Counsel has argued that after such inculpatory suggestion, it is only due to intervention of the then Ld. ASJ, further cross-examination of PW-1 was halted for some time.

75. Ld. Counsel has further argued that if the treating doctor had mentioned the name of PW-19 in the column of patient brought by, then it does not prove that no family member had accompanied the deceased to hospital. Rather, PCR form Ex.A-1 contains that PW-7 was also present in the hospital with them. Further, conduct of PW-10 was also not unnatural. She, being a lady and rearing up a child of 2-3 years, cannot be expected to come downstairs and intervene to save her husband from six persons carrying lethal weapons. However, as expected, she had made call at 100 number.

76. Ld. Counsel has further argued that the investigating officer did not lift chance prints from the spot of incident as the accused persons were named in the FIR itself. Further, no tent is seen in photograph Ex.PW-12/A-9. Further, the place of recovery of knives at the instance of A-2 and A-3 cannot be considered as 'open place'. Even if, there is any lapse in conducting investigation into the FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 32 of 164 PS M.S. Park present case, the same is not going into the root of the case of prosecution. Further, a question may be raised as to what was the triggering point for the accused persons for commission of the offence. The answer can be gathered from the disclosure statement of A-1.

77. Ld. Counsel has further argued that all six accused persons had prior concert and meeting of mind to cause death of deceased. This can be inferred from their preparation in the form of lethal weapons carried by them and subsequent causing of death of deceased. They had formed an unlawful assembly with a common object to commit murder of the deceased. They all had been armed with lethal weapons and also participated in commission of the offence of murder of deceased. Thus, it is made out that they had common intention too to commit his murder. The prosecution has proved its case against the accused persons beyond reasonable doubt.

78. Ld. Counsel has relied upon the following precedents in support of his arguments i.e. Rohtas and Anr. v. State of Haryana, Criminal Appeal no. 38 of 2011 decided on 10.12.2020, Karnail Singh and Ors. v. The State of Punjab, AIR 1954 SC 204, In Re: P. Ramulu and Ors., AIR 1956 AP 247, Yogesh Singh v. Mahabeer Singh and Others, AIR 2016 SC 5160, Rakesh v. State of UP, Criminal Appeal No. 556 of 2021 decided on 06.07.2021, Himanshu Mohan Rai v. State of UP, AIR 2017 SC 1425 and Ramji Singh v. The State of Uttar Pradesh, AIR 2020 SC 169.

79. Ld. Defence Counsel for accused no. 4 has taken the lead in advancing final arguments on behalf of the accused persons. He has argued that presence of PW-1 at the spot at the time of incident is doubtful. The police officials from local police station who arrived at the spot did not find him (PW-1) there.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 33 of 164 PS M.S. Park Furthermore, IO/PW-32 did not find any eye-witness in the hospital too. The investigating agency has planted him as an eye-witness. Even, PW-19/PCR In-charge has not stated anything regarding presence of PW-1 at the time when the deceased was shifted in the PCR van. The testimony of PW-19 reflects that the injured remained unattended till his arrival at the spot, this shows that PW-1 had conducted in unnatural manner. Further, it is not clear as to how the clothes of PW-1 got blood stained. PW-1 had got himself medically examined just to create an evidence about his presence at the spot. Even otherwise, it has not been explained as to why he did not get himself medically examined at the time when he visited the hospital first time.

80. Ld. Counsel has further argued that PW-6 and PW-7 were also not present at the spot. That is why, they did not accompany the deceased to the hospital. Surprisingly, despite PW-7 having fallen down from the stairs of workshop of deceased and PW-6 having been beaten by A-5 and A-6, they did not receive any injury and get themselves medically examined. Further, the investigating agency did not seize blood stained clothes of PW-19 and PW-7.

81. Ld. Counsel has further argued that surprisingly, only one shoe of the deceased was recovered from the spot. The prosecution did not provide any explanation in respect of pair to the said shoe. Further, no TV was found at the spot. Even, the photographs of the spot do not reflect any TV. Further, no battery of car was found at the spot to support the deposition of PW-1 that he had gone to the workshop of deceased for change of battery of his car. In fact, the deceased was not engaged in the work of repairing of the cars. The investigating agency did not produce any document regarding ownership of Honda City car, allegedly damaged during the incident. Further, there is contradiction in the testimonies of prosecution witnesses regarding place of occurrence of the incident. Further, FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 34 of 164 PS M.S. Park the investigating agency did not examine Prakash Chand Bhati, whose mobile number was used by PW-1 for making call at 100 number.

82. Ld. Counsel has further argued that FIR was registered after two hours and thirty five minutes of incident. The prosecution has failed to explain the delay in registration of FIR. PW-23, who had delivered copies of FIR to higher police authorities and the concerned Ilaka Magistrate, gave vague answers regarding the location of residences of the said authorities.

83. Ld. Counsel has further argued that there are contradictions in the testimony of police witnesses regarding arrest of A-1. The prosecution did not examine ASI Gajender, who had allegedly brought A-1 at the spot. Further, there are contradictions regarding the recovery of knives at the instance of A-2 as well as A-3. Both knives have been recovered from open place. Further, there is discrepancy regarding specification of knife in the FSL report and sketch of knife, allegedly recovered at the instance of A-2. Even otherwise, no DNA profile could be generated from the said knife. Hence, the prosecution could not connect the knife with the commission of alleged offence. Further, the knife recovered at the instance of A-3 has been described as 'dagger' in the FSL report, which is inconsistent with the case of prosecution. No blood was detected on the said knife. Furthermore, both the knives were not produced before the doctor for subsequent opinion as to whether the injuries to the deceased could have been caused by the said knives. The investigating agency did not recover the pistol allegedly used by A-4. Even otherwise, it is surprising to note that despite firing upon the deceased 5-6 times, no bullet hit him. Further, no bullet marks were even found at the spot by FSL team. Further, there are contradictions in the testimony of prosecution witnesses regarding recovery of empty magazine at the instance of A-4. Further, no independent FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 35 of 164 PS M.S. Park witness was joined at the time of alleged recovery. Nothing incriminating was recovered from the possession of A-5 and A-6.

84. Ld. Counsel has further argued that no chance prints were lifted from the spot.

All the articles allegedly shown to have been recovered from the spot had been, in fact, planted by the investigating agency later on. It has not been explained as to how blood stained earth was lifted by the IO from the spot, when the floor was of concrete. Further, exhibits were not sent to FSL timely. Further, scaled site plan has also not been got prepared timely. IO/PW-32 has stated that he had prepared site plan Ex.PW-1/D-4 on his own. The prosecution has failed to prove as to how the deceased received lacerated wound injuries.

85. Ld. Counsel has further argued that the prosecution could not prove motive of the accused persons for commission of the offence. PW-16 did not produce any document to substantiate his version of pledging his vehicle with A-2. Even otherwise, when he had already made repayment of the loan taken from A-2, then there was no scope of any dispute due to the said transaction. Further, the prosecution did not prove any previous enmity between the deceased and accused persons. In fact, there was a function of engagement of A-3 in the house of accused persons, which has been so deposed by PW-9/prosecution witness himself. Thus, there was no occasion for the accused persons to commit the alleged offence.

86. Ld. Counsel for accused Arif has relied upon the following precedents in support of his arguments i.e. Rajesh Alias Sarkari and Another v. State of Haryana, (2021) 1 SCC 118, Ramvir v. State of Uttar Pradesh, (2019) 2 SCC 237, Amar Singh v. State (NCT of Delhi), (2020) 19 SCC 165, Mustakeem @ Bhura v. State (Govt. of NCT Delhi), Criminal Appeal no.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 36 of 164 PS M.S. Park 419 of 2018 decided on 02.11.2020, Khambam Raja Reddy and Anr. v. Public Prosecutor High Court of Andhra Pradesh, 2006 [3] JCC 1775, Abdulwahab Abdulmajid Baloch v. State of Gujarat, (2009) 11 SCC 625, State of Uttar Pradesh v. Punni and Others, (2008) 11 SCC 153, Samsul Haque v. State of Assam, (2019) 18 SCC 161, Duleshwar and Another v. State of Madhya Pradesh, (2020) 11 SCC 440, Ashoksinh Jayendrasinh v. State of Gujarat, (2019) 6 SCC 535 and Sattatiya Alias Satish Rajanna Kartalla v. State of Maharashtra, (2008) 3 SCC 210.

87. The arguments advanced by Ld. counsel for accused no. 1, 3 and 5, other than advanced by Ld. Counsel for accused no. 4 are that there are material improvements in the testimonies of PW-1, PW-6, PW-7, PW-8 and PW-10 vis- a-vis their previous statements recorded during investigation. The callers of DD no. 4-A, 5-A and 6-A were examined on 11.07.2013 i.e. after more than two and half months of incident. No cogent explanation has been given by IO/PW-32 as to why statements of PW-8 and PW-10 were recorded only on 11.07.2013. Site plan, Ex.PW-1/D-4, does not contain necessary details about the spot of incident and reflect the position from where PW-1 had allegedly witnessed the incident.

88. Ld. Counsel has relied upon the following precedents in support of his arguments i.e. Lallu Manjhi and Anr. v. State of Jharkhand, Appeal (Crl.) 15 of 2002 decided on 07.01.2003, Amar Singh v. The State (NCT of Delhi), Criminal Appeal No. 335 of 2015 decided on 12.10.2020 [same as relied upon on behalf of A-4] and Yamin v. State, Crl. A. 186/2003 decided on 26.07.2018.

89. Ld. Counsel for accused no. 2 has reiterated the arguments advanced on behalf of accused no. 4, such as recovery of knife at the instance of A-2 is doubtful, no FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 37 of 164 PS M.S. Park DNA profile could be generated from the source of said knife etc. He has further argued that the prosecution did not prove the motive of accused persons for committing the present offence. Further, PCR call form, Ex.PW-15/B, does not reflect the name of PW-1 as caller. Further, PCR form, Ex.PW-17/A, mentions the names of A-2, A-3, A-4 and A-5 as the assailants. Hence, there is material discrepancy in the case of prosecution, wherein allegations have been made against A-1 and A-6 too regarding their involvement in the present case. The prosecution itself is not clear as to who were the actual assailants. PW-8 did not mention the presence of PW-1 at the spot.

90. Ld. Counsel for accused no. 6 has argued that the prosecution did not examine the actual subscribers of mobile numbers through which calls were made at 100 number and consequently, DD numbers 4-A, 5-A and 6-A were recorded. Even otherwise, how could the persons belonging to rich family would be using mobile numbers issued in the name of other persons. Further, PW-6, PW-7, PW-8 and PW-10 conducted in unnatural manner and did not come forward to save the deceased. Further, when PW-7 was raising alarm, then why no person from neighborhood came for the rescue. Surprisingly, instead of family members of deceased, it was PW-1 who had allegedly remained at the spot during the assault committed by accused persons upon the deceased. He (PW-1) too did not attempt to save the deceased. There is discrepancy in the testimony of PW-1 as to on which part of his body, A-1 had hit lathi. Even otherwise, testimony of PW-3 negates the deposition of PW-1 in respect of injuries having been sustained by him in the present incident. No cogent explanation was given by the prosecution witnesses as to how they had identified A-6. Further, PW-9 has categorically deposed that A-6 had gone to his house with A-3 in his FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 38 of 164 PS M.S. Park (PW-9) car. IO did not join any independent witness during investigation into the case.

91. Ld. Counsel has further argued that PW-1 has stated that the deceased had tried to save himself with his left hand, but no corresponding injury was shown to have been caused to him in his post-mortem report. Further, above all, the accused persons, who were allegedly six in number, alongwith deceased could not have stood in a small place, as described by PW-1 and assaulted the deceased too. PW-12 has stated that there was no light at the spot in the outer portion as well as inner portion. This version is in contradiction with version of PW-1 that his statement was recorded by IO in the outer portion of shop of deceased, where light was available. Thus, testimony of PW-1 is not reliable.

92. Ld. Counsel has further argued that the witnesses PW-1, PW-6, PW-7, PW-8 and PW-10 did not state in their statements recorded under Section 161 Cr.P.C. that assailants had left the weapons of offence i.e. lathi and cricket wickets at the spot. Further, when lathi had not been seized in the presence of PW-7, then how could he identify the same during his testimony before the Court. Further, no independent witness was joined at the time of recovery of articles from the spot. The record leads to infer that FIR was ante-timed and seizure memos were fabricated. Further, no bullet marks were found at the spot, despite the allegations that 10-12 bullets had been fired. There is discrepancy regarding condition of cricket wickets in FSL report vis-a-vis seizure memo prepared in this regard. Further, IO did not hand over seal after use to any independent witness.

93. Further, the investigating agency did not conduct any raid in the house of accused persons to join them into the investigation of the present case timely.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 39 of 164 PS M.S. Park The weapons of offence i.e. lathi and wickets had not been recovered at the instance of accused persons, rather the same had been planted and shown to have been recovered from the spot. Furthermore, if the accused persons had left lathi and cricket wickets at the spot, then how could they have smashed the glasses of car of deceased parked outside his workshop at the time of leaving the spot. The investigating officer did not seize the said car.

94. Ld. Counsel for accused Gufran has relied upon the following precedents in support of his arguments i.e. State of Haryana v. Ram Singh, 2002 SCC (Cri.) 350, Ram Narain v. The State of Punjab, 1975 Cri. L.J. 1500, Mohar Singh v. State of Punjab, 1981 Cri. L.J. 998, Hargiyan Singh v. State, 2013 [3] JCC 1914 and Lala Ram and another v. The State, 1989 Cri. L.J. 572.

95. Ld. Defence Counsels have lastly argued that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt.

96. Now, the Court proceeds to examine all the aspects one by one. Since the present case is based upon ocular evidence, the Court stands guided with the observations of the Hon'ble Delhi High Court in Akbar v. State, 2009 Cri. L.J. 4199, wherein the Court has enumerated certain principles for appreciation of ocular evidence:

49. The appreciation of ocular evidence is a Herculean task. There is no fixed or strait-jacket formula for appreciation of ocular evidence. The judicially evolved principles regarding the appreciation of the ocular evidence in a criminal case can be enumerated as under:-

I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 40 of 164 PS M.S. Park the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.

II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.

III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence.

IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.

IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 41 of 164 PS M.S. Park or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.

XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.

Testimony of PW-1

97. Since PW-1 is stated to have witnessed the entire incident, thus, his testimony made in examination-in-chief has been incorporated as recorded by the Court alongwith preliminary observations of the Court regarding its credibility as to whether his testimony appears to have a ring of truth. However, the points raised by the prosecution and Ld. Defence Counsels on specific aspects would be taken up in detail in the later part of judgment.

98. PW-1 has deposed that he knew Ibrahim for last 6-7 years as he used to get his vehicles repaired and serviced through him at his workshop at B-174 or 175, Gali No. 10, Near Masjid, New Modern Shahdara, Delhi. This workshop at aforesaid given address started functioning for last 3-4 years. His residence is near to his workshop. PW-1 further deposed that on 21.04.2013, at about 02.00- 02.30 p.m., he had visited workshop of Ibrahim with his Alto car bearing no. DL2CAG2373, with complaint of charging of battery. Ibrahim made some FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 42 of 164 PS M.S. Park temporary arrangement and asked him to use this car for the day and to visit him any time after evening giving assurance that he will permanently repair this problem or shall change the battery. Thereafter, at about 11.45 p.m., he again visited workshop of Ibrahim with his same car because he had again faced problem of start of the vehicle during the same day.

99. Through the abovesaid version, PW-1 has explained the purpose due to which he happened to be present at the shop of deceased at the time of arrival of accused persons there. During his cross-examination, he remained firm and consistent on his version on this aspect. Further, he has given cogent answers to the questions put to him regarding his schedule on 21.04.2013, prior to the incident.

100. PW-1 has further deposed that Ibrahim, Tahir (younger brother of Ibrahim) and Noman Umar (his uncle) were present inside the workshop. Their workshop was situated around 5 feet above the ground level. They were watching IPL match on TV. He asked Ibrahim to change the battery of his car, telling him the problem of start faced by him during the day time. Ibrahim asked him to sit along with them for some time assuring to look into his car and its problem. He also joined them and after around 15 minutes, some noise of persons came from the side of 'gali'. Ibrahim asked his uncle to see, who were raising noise in the 'gali'.

101. The above version of PW-1 is corroborated with testimonies of PW-6/Tahir Hasan and PW-7/Noman Umar on material particulars that PW-6 and PW-7 were also present at the shop of deceased and they have also deposed about arrival of PW-1 at the shop for repair of his car. They (PW-6 and PW-7) have FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 43 of 164 PS M.S. Park also deposed about hearing of noise from the side of gali and PW-7 looked into the gali to check what was the matter.

102. PW-1 has further deposed that uncle of Ibrahim looked in the 'gali' and informed that 5-6 persons were coming towards the workshop itself. Around 6 persons came in front of the workshop. He (PW-1) knew all of them. They were Israil Pehalwan, his four sons namely Javed, Abid, Arif, Tarif and his son-in- law (damad) namely Irfan. All these persons were in agitated mental condition (gusse me the) and were also equipped with weapons i.e. Javed and Abid were having knives in their hands, Arif was having a pistol, Tarif and Gufran were having cricket wickets and Israil was armed with bamboo stick (lathi). They came upstairs upto workshop and started abusing and beating Ibrahim. Meanwhile, Noman Umar started raising hue and cry (bachao bachao chillane laga). Then, Arif loaded his pistol (pistol ka upar wala hissa aage peeche kiya). He fired upon Noman Umar but he fell on the road as he was standing near the stairs. The bullet instead of him, hit the road. Thereafter, Noman Umar fled away from that place. Tahir (brother of Ibrahim) tried to save Ibrahim but Tarif and Gufran hit Tahir with cricket wickets on his head and hand as well as on his other parts. Tahir also pushed both these persons and jumped downstairs on the road and thereafter, fled away.

103. The above version of PW-1 is again corroborated with the testimonies of PW-6 and PW-7 regarding the arrival of accused persons in the shop of deceased, weapons of offence carried by them respectively at that time, initial abusing and beating given to deceased by accused persons, alarm raised by PW-7, firing by A-4 upon PW-7 and running away of PW-7 from the shop of deceased. One empty cartridge had also been recovered from outside the shop. Furthermore, during his cross-examination, a suggestion was put to PW-1 that when PW-7 FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 44 of 164 PS M.S. Park raised hue and cry, A-4 fired at him immediately. PW-6 has further corroborated the testimony of PW-1 regarding his beating by A-5 and A-6 with cricket wickets on several parts of his body and running away of PW-6 from the shop of deceased. It is worth noting that during his (PW-1) cross-examination, no doubt could be created about presence of PW-6 or PW-7, too, at the spot during initial phase of incident. Further, PW-8/Babar and PW-10/Zara Ibrahim have also corroborated regarding entry of accused persons, with their specific names, and weapons of offence carried by them respectively at that time and running away of PW-7 from the shop of deceased and thereafter, of PW-6. PW-8 and PW-10 have further corroborated about hearing of sound of a bullet fire prior to seeing PW-7 running away from the shop.

104. PW-1, during his cross-examination conducted on 23.01.2015, deposed that there was gap of five minutes between the noise being raised by the accused and entering inside the workshop of deceased. They attacked upon the deceased immediately after entering the workshop. He admitted the suggestion put to him that when Noman raised hue and cry, accused Arif fired at him immediately. He further deposed that Noman ran away after the firing. He fell down and ran away. He has further stated about the gap of around 3-4 minutes between the time of fleeing away of Noman and Tahir. PW-1 has also explained about the manner in which the deceased conducted at the time of incident. The above version of PW-1 has further provided credence to his testimony as he has given consistent answers regarding the sequence of events and the manner of occurrence of the incident.

105. PW-1 has further deposed that Ibrahim also fled inside the workshop and Arif fired on him for around 5-6 times. Ibrahim took shelter at the side of a printing machine inside that workshop. All aforesaid persons also went inside the FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 45 of 164 PS M.S. Park workshop. By this time, he (PW-1) was also standing there but he was not physically assaulted by these persons, who only abused him and asked him to leave that place stating that they had no grudge against him. He was also having verbal conversation with them to ask why they were after Ibrahim and he (PW-1) told that Ibrahim was his friend, so how could he leave him. He also pleaded and requested before them to leave Ibrahim asking them that why they were so much adamant to take his life, but they did not melt down.

106. The abovesaid version of PW-1 has been corroborated by PW-8 and PW-10 about hearing sound of firing from the shop of deceased after running away of Tahir. Further, there is corroboration from the information given by PW-1 to the police too, which was recorded vide DD no. 6-A, wherein it has been mentioned that bullets had been fired. Further, three live cartridges and three empty cartridges were recovered from inside the shop of deceased. Through the abovesaid version, PW-1 has explained the conduct of deceased at the time of incident that the deceased had tried to protect himself by taking shelter at the side of printing machine. PW-1 has further explained the circumstance as to why he remained present there. In other words, PW-1 has explained as to why he did not run away from the spot. He has also explained why, by then, he was not assaulted by the accused persons.

107. PW-1 has further deposed that when all the accused persons followed Ibrahim inside the workshop, he also followed them. All accused persons had surrounded Ibrahim at the same place i.e. near the printing machine. Javed hit Ibrahim with a knife on his back. Abid hit Ibrahim with a knife on the left side of the chest. Ibrahim was left handed person and he had raised his left hand to save himself, when Abid hit him with knife on the left side of his chest. Tarif and Gufran were hitting Ibrahim with cricket wickets and Israil was hitting him FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 46 of 164 PS M.S. Park with his bamboo stick, throughout this period. He (PW-1) tried to stop Israil Pehalwan by holding his hand, but he shrugged him off with force and hit on his right hand with his lathi. He threatened him (PW-1) to either leave the place or he would kill him also. Israil exhorted his sons and son-in-law to kill Ibrahim and to ensure that he did not remain alive anymore. As far as he (PW-1) remembered, due to continuous beatings with cricket wickets, both wickets had also broken into two pieces. All this process continued for 10-15 minutes.

108. Through the abovesaid version, PW-1 has explained the manner in which the accused persons assaulted the deceased. His position at the time of final assault upon the deceased by accused persons has been mentioned in scaled site plan, Ex.PW-14/A. His version about assault given by A-2, A-3, A-5, A-6 and A-1 is corroborated with the injuries shown to have been caused to the deceased in his post-mortem report (Ex.PW-13/A). Further, injury caused to PW-1 is also corroborated with his MLC, Ex.PW-3/A. It is reiterated that during his cross- examination, PW-1 remained firm, consistent and coherent and did not shy away from the questions put to him on the above aspects. No doubt could be created, during cross-examination of PW-1, regarding manner of occurrence of incident as deposed by him in his examination-in-chief.

109. PW-1 has further deposed that Ibrahim was lying in pool of blood in unconscious condition without any movement. When the accused persons became sure of lack of any movement in the body of Ibrahim, they left the spot. While leaving the spot, Abid and Arif told him to see the condition of his friend, which they had caused and threatened him to ensure his same fate, if he said anything to anyone about them. While leaving the workshop, they also smashed the articles of workshop like TV, glasses etc. as well as Honda City car of Ibrahim, which was standing on the road in the gali. When they left, then he FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 47 of 164 PS M.S. Park took out his mobile phone and made call at 100 number. He made call at 100 number on two or three occasions as he was not able to speak properly at 1st instance because he had become too nervous at that time. PCR van reached there and PCR officials took Ibrahim to GTB Hospital. He helped them to put Ibrahim in PCR van. By this time, Noman Umar had also come along with two- three family members. He (PW-7) also went along with PCR officials. He also followed them to hospital in his own vehicle i.e. Alto car.

110. The abovesaid version of PW-1, regarding timings, is consistent with the case of prosecution. As per rukka, Ex.PW-32/A, the incident had occurred at about 12.05 a.m. During his cross-examination, PW-1 has explained different timings as to gap of five minutes between the noise being raised by accused and their entry inside the workshop and PW-6 tried to intervene after 2-3 minutes of start of the assault. Further, PW-1 had already stated that process of assault continued for 10-15 minutes. Further, he has made call to police at 100 number at 12.22 a.m. as reflected in PCR form, Ex.PW-15/B. Thus, PW-1 explained the timing of events occurred between 12.05 a.m. to 12.22 a.m. Further, the photographs clicked by PW-12, who was member of crime team, reflect blood at the spot specified by PW-1 as spot of final assault upon deceased by accused persons. The version of PW-1 regarding 'his putting the deceased in PCR van' and going to the hospital 'in his own vehicle' was not specifically controverted during his cross-examination. Further, PW-7 and PW-10 have corroborated his version stating that PCR officials and PW-1 brought the deceased outside from the shop and further, PW-7 accompanied the PCR officials in the same van. Furthermore, clothes of PW-1 were also blood stained and FSL report, Ex.PW-29/A, contains that the DNA profile generated from his clothes is similar with DNA profile generated from blood gauze of deceased.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 48 of 164 PS M.S. Park

111. One aspect is required to be deliberated upon hereitself. PW-19 has explained that when he reached there [at the spot], injured was lying on the printing machine in semi-standing position (uske pair jameen par the), with his face towards the machine. Ld. Defence Counsel has argued that the testimony of PW-19 reflects that the injured remained unattended till his (PW-19) arrival at the spot, this shows that PW-1 had conducted in unnatural manner. It is pertinent to note that PW-19/PCR In-charge had come to the spot at around 12.25 a.m. Thus, there was no considerable gap between the call made by PW-1 to 100 number and arrival of PCR at the spot leading to infer that PW-1 had conducted in unnatural manner by not attending his injured friend.

112. PW-1 has further deposed that in the Emergency of GTB Hospital, doctor declared Ibrahim brought dead, immediately after checking his condition. Some more persons had also come at the hospital. He came to know that police officials had already gathered at the place of occurrence and then, he came back at the place of occurrence. One Inspector met him on the spot of incident, who recorded his statement. He collected shoes and wrist watch from the workshop and he (PW-1) had told him that these articles belonged to Ibrahim. He also collected fired cartridges and broken cricket wickets and probably lathi as well, from the workshop. His statement Ex.PW-1/A was recorded by that Inspector. Police seized shoes and watch in separate cloth pullanda vide memos Ex.PW-1/B and Ex.PW-1/C. IO also seized his (PW-1) clothes i.e. his T-shirt of green and white colour and lower (payjama) of white colour having stripes. These clothes were having blood stains. PW-1 correctly identified all the accused persons. PW-1 has further deposed that in this incident, he sustained injuries only on his left arm. The incident of this case had happened at B-105.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 49 of 164 PS M.S. Park

113. No doubt could be created on the abovesaid version of PW-1 during his cross- examination. He reiterated about seizure of articles by the police from the spot i.e. watch and shoe of deceased, fired cartridges and other cartridges, lathi, cricket wickets etc. No doubt could be created in respect of seizure of his blood stained clothes. Further, no doubt could be created regarding the identification of accused persons as assailants.

114. During his cross-examination conducted on 24.01.2015, PW-1 deposed that his statement was recorded in the outer portion of workshop of deceased. There was light. The outer portion as well as inside portion, both were lighted with bulbs/tube lights. They were sitting on the chairs kept in the outer portion. (This version of PW-1 is corroborated with the photograph Ex.PW-12/A-12 which reflects that a tubelight is lit in the outside portion of the workshop of deceased). Since IO was sitting in front of him, therefore, he was not able to see, what was being written by him. The seizure memo of his clothes was also prepared by the IO in the outer portion of workshop. This document would have been prepared at around 2.00 a.m. The seizure memo of shoe and watch of deceased was also prepared simultaneously one after one at the same time. The above version of PW-1 shows that PW-1 has explained the circumstances in which his statement was recorded by the police after the incident and he has not shied away from the questions which could have put him in a fix, had his statement not been recorded at the spot of occurrence. Before analyzing the testimony of PW-1 further on the point of its credibility, one important aspect is required to be discussed hereitself.

Presence of PW-1 at the spot at the time of incident

115. Ld. Defence Counsels have raised doubt on the presence of PW-1 at the spot at the time of incident. They have argued that PW-1 has been planted as an eye- FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 50 of 164 PS M.S. Park witness in the present case. It is surprising to note that he, despite being friend of the deceased and having witnessed that deceased was bleeding, did not accompany the deceased to the hospital. This can be inferred from the fact that IO/PW-32 did not find any eye-witness in the hospital.

116. First of all, it has already been observed that PW-1 has explained the purpose due to which he happened to be present at the shop of deceased at the time of arrival of accused persons there. So far as his visit to hospital, following PCR van taking deceased to hospital, is concerned. During his cross-examination conducted on 23.01.2015, PW-1 deposed that after incident, when he went to GTB Hospital, he remained there for about 15-20 minutes. The GTB Hospital would be around 5-6 kms from the place of incident. It took him around 10 minutes to reach GTB Hospital. It took him around 10-15 minutes in his return journey as well from the hospital to the spot of incident. He admitted the suggestion that after the incident, he did not remain present at the spot for around next 45 minutes.

117. At this stage, record of the case shows that PW-1 had made calls at 100 number between 12.22 to 12.26 a.m. (as per Ex.PW-37/C). PCR van arrived at the spot and taken the deceased to hospital. PW-1 followed PCR van and reached the hospital. As per his MLC, Ex.PW-5/A, the deceased had been examined in the hospital at 12.43 a.m. on 22.04.2013. Further, IO started recording statement of PW-1 i.e. Ex.PW-1/A at 1.30 a.m. Thus, through the abovesaid version mentioned in preceding paragraph, PW-1 has explained the period (of around 45 minutes) between his leaving for hospital and coming back to the spot of incident.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 51 of 164 PS M.S. Park

118. Further, PW-1 has deposed that he met PCR officials in the hospital. These officials were the same, who had come to the spot in PCR van and taken the deceased to the hospital. He did not find any official from PS in the hospital. He came to know about presence of a number of police officials on the spot of incident, when he reached back the spot from the hospital. This version of PW-1 is consistent with the case of prosecution that it was PCR officials, who had taken the deceased to hospital. The MLC of deceased, Ex.PW-5/A, reflects that he was brought by ASI Ravi Shanker, PCR/B-49 (PW-19). IO/PW-32 has also stated that he did not find any eye-witness in the hospital. The Court does not find any unusual sequence of events in the testimony of PW-1 on this aspect. PW-1 has already stated that he was nervous due to the incident. He had followed PCR van to the hospital in his car. Thus, it cannot be stated that he did not reflect any concern for the deceased, who had been assaulted by six persons and who was unconscious and showing lack of any movement. In the hospital, deceased had been declared dead and family members of deceased had arrived. In these circumstances, no doubt can be created if he came back at the spot from the hospital. This explains as to why IO/PW-32 did not find PW-1 in the hospital.

119. The testimony of PW-1 regarding his presence at the spot and his subsequent visit to the hospital is supported with electronic evidence too. PW-1 has deposed that he called police at 100 number on two or three occasions as he was not able to speak properly at first instance because he had become too nervous at that time. He called police from his mobile number 9911102102. This number belonged to his uncle Prakash Bhati. Ld. Defence Counsels have argued that the prosecution did not examine Prakash Bhati, who could have FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 52 of 164 PS M.S. Park corroborated the version of PW-1 that PW-1 was using the SIM issued in his name.

120. It is pertinent to note that no question was put to PW-1, during his cross-

examination conducted on behalf of the accused persons, to controvert his version of having used mobile number 9911102102 for making calls to 100 number. In other words, it was not put to PW-1 that he was not using mobile number 9911102102 on the day of incident and rather, the user of the same was Prakash Bhati. Further, PW-15 has tendered PCR form, Ex.PW-15/B, which shows the caller name as Prakash Chand Bhati. PW-18, during her cross- examination conducted on behalf of accused persons, deposed that the particulars of the person in whose name the number of phone used by the caller [exists], automatically appears in the computer before them. It is not compulsory to ask the name of caller and if the name is furnished, then it is fed by them in the computer.

121. Perusal of record shows that CAF of mobile number 9911102102, Ex.PW-37/A, reflects that the said number had been issued in the name of Prakash Chand Bhati. As per testimony of PW-37, the mobile number was active from 15.03.2005 till furnishing of record pertaining to above number. Further, as per CDR details, Ex.PW-37/C, on 22.04.2013 from 12.22 a.m. to 12.26 a.m., three calls were made to 100 number through the said mobile number. Further, location of said mobile number was at New Modern Shahdara i.e. the area of spot of incident. PW-37 has also tendered location chart as Ex.PW-37/P. It is worth noting that the CDR details further reflect that on 22.04.2013 at 12.46 a.m., a call had been made through the abovesaid mobile number 9911102102 and first cell ID of the said call is shown as '3015'. The location code in Ex.PW-37/P of cell ID '3015' is 'Guru Teg Bahadur Enclave'. It is case of the FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 53 of 164 PS M.S. Park prosecution that PW-1 had gone to GTB Hospital from the spot of incident. Thus, CDR details corroborate the testimony of PW-1 of having made calls at 100 no. from the spot of incident and of visiting the hospital thereafter.

122. PW-1 has explained the circumstances after his return from the hospital, which further gives credence to his testimony to this effect. During his cross- examination conducted on 23.01.2015, PW-1 has explained the names of police officials whom he met at the spot after his returning back from the hospital. He has also stated that he met Rukaiya Baby, sister of deceased. Wife of deceased and his other family members were also present there. He further stated that after two hours, he went to PS MS Park from the spot.

123. It has been argued that PW-19/In-charge PCR van did not mention the name of PW-1 as the person present at the spot, when he (PW-19) reached there. PW-19 has deposed that with the help of family members and uncle of injured (PW-7), he shifted the deceased in the PCR van. Thus, PW-19 has deposed about presence of PW-7 and other persons at the time of shifting the deceased in the PCR van. At that time, primary duty of PW-19 was to provide immediate medical aid to the injured/deceased. He was not supposed to inquire about the identity of persons helping him in shifting the deceased or to inquire as to who had witnessed the incident. It is worth noting that it has not been deposed by him that PW-1 was not present at the spot at that time.

Arrival of police officials from police station at the spot of incident and leaving for hospital

124. The aspect of presence of PW-1 shall be looked into from another angle too. As per case of prosecution, police officials from police station arrived at the spot and thereafter, three left for hospital and two remained at the spot. PW-11 has FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 54 of 164 PS M.S. Park deposed that when he alongwith PW-35 reached at the spot, they were informed that injured had already been removed to hospital by PCR van. Further, PW-32, PW-33 and PW-30 also reached there immediately thereafter. IO/PW-32 left him and PW-30 for protection of site. During his cross-examination, PW-11 stated that he alongwith PW-35 would have reached the spot at around 12.30 a.m. PW-32, PW-33 and others would have reached there in next 3-4 minutes. No PCR van was present on the spot at the time of their arrival as they had already left that place.

125. Similar was deposition of other police officials. PW-30, PW-32 and PW-33 have deposed that on receipt of DD no. 6-A, they reached at the spot, where they met PW-35 and PW-11. It was told that injured had already been shifted to GTB hospital by PCR. Further, PW-32 left PW-30 and PW-11 at the spot and PW-35, PW-32 and PW-33 went to the hospital. During his cross-examination, PW-30 stated that he had reached the spot on receiving the information at about 12:40 a.m. He admitted the suggestion that PW-33 and PW-32 had not conducted any written work before proceeding to the hospital from the spot.

126. PW-32/IO deposed that they searched for the eye-witness in the hospital, but no eye-witness was found there. Thereafter, they all left the hospital for the spot. During his cross-examination, PW-32 stated that they reached the hospital at 12.55 a.m. and remained there for 10-15 minutes. He did not meet family members or relatives of the deceased in the hospital. He further deposed that at about 12.45 a.m., he left the spot for going to GTB Hospital. He had not met PCR van staff at GTB Hospital.

127. During his cross-examination, PW-33 deposed that he stayed at the spot for about 4-5 minutes prior to going to GTB hospital. He reached GTB hospital at FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 55 of 164 PS M.S. Park around 12.50 a.m. Till the time, he remained at the hospital, no family member of the deceased met him there. He stayed in the hospital for about half an hour.

128. PW-35 deposed that at about 12.25 a.m. on 22.04.2013, he received DD No. 4A and the caller had informed that neighbors were beating her husband after entering into the house. He alongwith PW-11 reached the spot. Thereafter, he received DD No. 6-A too and then he went to house no. B-105, which was just nearby where PW-32, PW-30 and PW-33 also reached. After leaving PW-30 and PW-11 at the spot, he alongwith PW-32 and PW-33 went to hospital. During his cross-examination, PW-35 stated that they reached the hospital within 10 minutes from the spot. He remained there for about 20-25 minutes.

129. Thus, from the above versions, there is no ambiguity that initially, PW-35 alongwith PW-11 reached the spot and thereafter, PW-32, PW-33 and PW-30 also reached there. By then, deceased had already been taken to GTB hospital by PCR. It is testimony of PW-1 that he had followed PCR van, that is why these witnesses did not find him (PW-1) at the spot at that time. Then, PW-32 alongwith PW-33 and PW-35 went to hospital and reached there at about 12.50

-12.55 a.m. By then, the deceased had already been examined. His MLC, Ex. PW-5/A, reflects the time of examination as 12.43 a.m. Return of police officials to the spot from the hospital and presence of PW-1

130. PW-11 [who alongwith PW-30 remained at the spot] deposed that after around one hour, PW-35, PW-32 and PW-33 reached back. Prior to them, one Yogender Kasana (PW-1) had already reached that place. During his cross-examination, PW-11 deposed that PW-1 would have reached the spot about five minutes prior to arrival of IO and others. He had come there on foot and was alone. FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 56 of 164 PS M.S. Park

131. Similarly, PW-30 has also deposed that after about one hour, IO alongwith other police officials returned from the hospital. Prior to arrival of police party, one Yogender Kasana (PW-1) had already arrived at the spot. During his cross- examination, PW-30 deposed that PW-1 reached the spot after about one hour of their reaching there. He had come from the hospital. PW-30 stated that PW-32 reached the spot at about 01.20 a.m.

132. PW-32 deposed that when they reached the spot [from hospital], one Yogender Kasana met him and told that he was an eye-witness to the incident. During his cross-examination too, PW-32 reiterated that when he came back to the spot, PW-1 was already present there. During his further cross-examination, PW-32 deposed that since the caller of DD no. 6-A (i.e. complainant) had met him within one hour of his arrival at the spot first time, there was no occasion for him to call the caller. A specific question was put to him (PW-32) whether he asked the complainant where he was present after the incident. In his reply, PW-32 stated that the complainant told him that initially, he had come to the hospital from the spot of incident and thereafter, he went to the spot of incident from the hospital. Another question was put to him whether he verified from other sources about the presence of PW-1 at the spot of incident at the time of alleged incident. To which, PW-32 stated that when he met PW-1 first time after the incident, lot of blood was there on his clothes. Another question was put to PW-32 as to whether PW-6 and PW-7 told him that PW-1 was hit by A-1 with a lathi. To which, PW-32 stated that he was told that persons, who were present at the spot namely PW-6 and PW-7 had already went away from the spot, when PW-1 had been hit by A-1 with a lathi. Another question was put to PW-32 as to whether PW-1 was carrying any phone when he recorded his statement. To which, he replied that he was carrying a phone. PW-1 told him (PW-32) that the FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 57 of 164 PS M.S. Park said phone was in the name of his uncle (mausa). He (PW-32) had inquired the name of his uncle as Prakash Bhati. He did not record the statement of Prakash Bhati in respect of relation between PW-1 and Prakash Bhati and about giving his phone to PW-1.

133. PW-33 deposed that when they reached the spot again, an eye-witness PW-1 met PW-32 and he gave his statement. During his cross-examination, PW-33 deposed that he had gone to the spot from hospital and reached there after about 40 minutes of his first arriving there. PW-1 was not summoned by him (PW-33) and he was already present when they reached there. Similarly, PW-35 also deposed that when they returned to the spot, they met one person namely Yogender Kasana. During his cross-examination, PW-35 deposed that they returned to the spot at about 1.30 a.m.

134. The above versions of police witnesses are also consistent to the effect that when PW-32 alongwith PW-33 and PW-35 returned from the hospital, PW-1 had already returned back from hospital and met them.

Prompt registration of FIR

135. Moreover, besides the consistent and coherent testimony of PW-1 regarding the sequence of events occurred prior, during and after the incident, it is worth noting that the incident had occurred at around 12.05 a.m. (as per rukka Ex.PW-32/A) and continued till about 12.22 a.m., when PW-1 made first call to police at 100 no. The rukka was sent for registration of FIR at 2.25 a.m. i.e. just after two hours of the incident. And during this period, the injured was taken to the hospital, police officials including IO/PW-32 visited the spot and hospital and came back to the spot, thereafter, statement of PW-1 was also recorded, which had taken considerable time of 30 minutes in recording and IO/PW-32 FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 58 of 164 PS M.S. Park prepared rukka containing necessary details. Further, FIR (Ex.PW-4/D) was registered at 2.40 a.m. Thus, there was no delay in registration of FIR.

136. The testimonies of police witnesses on this aspect are also relevant. PW-11 deposed that PW-32 prepared tehrir and handed over the same to him for registration of FIR. He went to PS M.S. Park and got the FIR registered. During his cross-examination, PW-11 deposed that he received tehrir from IO at 2.25 a.m. IO took around half an hour to record statement of PW-1. He (PW-11) went to PS on foot for registration of FIR. He remained at PS for around 35-40 minutes. He came back to the spot on his private motorcycle after registration of FIR. His motorcycle was parked in PS. Thus, PW-11 has remained firm on this aspect during his cross-examination and specifically stated that he received tehrir from IO at 2.25 a.m.

137. PW-4/Duty officer has also deposed that at about 2.35 a.m., PW-11 handed over him a rukka, which was sent by PW-32. On the basis of rukka, he registered present FIR. During his cross-examination, no question was put to him to controvert his above version.

138. Further, PW-30, during his cross-examination, stated that IO started writing rukka at about 01.30 a.m. and it was sent at about 02.25 a.m. PW-32 prepared the said rukka in his handwriting. During his cross-examination, PW-32 deposed that he had recorded the statement of PW-1 after one hour from receiving information by him. He voluntarily stated that the said information was received by him through DD. No 6-A. It took about one hour to record 'rukka' and 'the complaint'. Thus, there is consistency in the testimonies of police witnesses regarding timing when IO started writing complaint and rukka (at 1.30 a.m.) and when tehrir was sent through PW-11 for registration of FIR FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 59 of 164 PS M.S. Park (at 2.25 a.m.). Thus, the argument of FIR being ante-date and ante-time does not hold water.

139. The incident had occurred at midnight and FIR had been registered within two hours and fifteen minutes of incident and that too, carrying all material particulars including the name of accused persons and weapons of offence carried by them respectively and also containing the details about articles found at the spot of incident. In such circumstances, it cannot be perceived, by any stretch of imagination, that the investigating agency could have planted PW-1, a friend of the deceased, as an eye-witness of the present case, on whose statement present FIR was registered.

Blood stained clothes of PW-1 seized during investigation

140. PW-1 has deposed about seizure of his clothes (Ex.PW-1/Art.1 and 2). During his cross-examination, he deposed that police had taken his signature on the document, which was related to his clothes. Seizure memo of his clothes was also prepared by the IO in the outer portion of workshop. He denied the suggestion that he had artificially put blood stains on his clothes from the spot. This suggestion leads to infer that the accused persons do not dispute blood lying at the spot, which was allegedly put by PW-1 on his clothes. It is worth noting that seizure memo Ex.PW-30/A bears signature of PW-1. Even otherwise, no specific question was put to PW-1 to controvert his version of factum of seizure of clothes. No clarification was sought from him about timing of seizure or from where fresh clothes were got by him, as put to the police witnesses.

141. PW-30 has deposed that clothes of PW-1 were also stained with blood. Further, his (PW-1) clothes, comprising of one lower and one green and white t-shirt, FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 60 of 164 PS M.S. Park were also taken into possession. During his cross-examination, PW-30 deposed that PW-1 did not go anywhere when he came from GTB Hospital and till the time his clothes were seized by them at the spot. He voluntarily stated that PW-1 was provided with other clothes, which were kept in the car. PW-32 deposed that the clothes of PW-1 were also blood stained and the same were comprised of t-shirt and payjama. He further deposed that PW-1 had taken usable clothes from his car. PW-35 too has deposed that IO took the blood stained clothes of PW-1 which he was wearing at that time.

142. Further, as per FSL report Ex.PW-29/A, blood stains on the clothes of PW-1 match with DNA of deceased. Thus, this circumstance of his clothes having stains of blood of deceased further corroborates the testimony of PW-1. In view of observations made in the preceding paragraphs, presence of PW-1 at the spot of incident at the relevant time stands proved.

Seizure of articles from the spot vis-à-vis presence of PW-1

143. PW-1 has deposed that police collected certain articles from the spot i.e. watch and shoe of deceased, fired and other cartridges, lathi and cricket wickets etc. and had prepared pullanda of the same. Ld. Defence Counsels have argued that only the seizure memos of shoe and watch of deceased i.e. Ex.PW-1/B and Ex.PW-1/C respectively bear the signatures of PW-1. But, seizure memos of other articles do not bear his signatures.

144. It is worth noting that PW-1 has categorically deposed about seizure of other articles by police in his presence. Then, if the investigating officer did not obtain signatures of PW-1 on other seizure memos, the same does not create any doubt on the testimony of PW-1. Moreover, it is to be scrutinized as to whether the accused persons could create doubt upon the testimonies of author FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 61 of 164 PS M.S. Park of, and witnesses to, the said memos, on the aspect of seizure of other articles from the spot.

145. During his cross-examination, PW-32 deposed that PW-1 was not present at the time of preparing of pointing out memo and seizure memo of clothes of A-1. However, he was present at the time of preparing of other documents i.e. site plan (Ex.PW-1/D-4), seizure memo of cricket wickets, seizure memo of blood stained lathi, sketch of cartridges, seizure memo of cartridges, seizure memo of earth control, blood stained earth and blood gauze. He denied the suggestion that since PW-1 was not present at the time of preparing of abovesaid documents, that is why the said documents did not bear his signatures.

146. During his cross-examination, PW-30 deposed that the recoveries were affected partly on the pointing out of PW-1 and partly on their own. They obtained the signatures of PW-1 on the recovery memo of the watch and shoe of the deceased and not on other recovery memos. Some recovery memos prepared at the spot are in his handwriting and some in the handwriting of IO and other in the handwriting of PW-35. Since all the members of the police team were involved in different activities, therefore, the memos were prepared by different persons on the instruction of the IO. The above said versions do not create any doubt on the testimony of PW-1.

147. Even otherwise, it is the case of prosecution that other articles were seized simultaneously with the shoe and watch of deceased. The crime team report, which would be discussed later on, also contains description of articles collected from the spot. Thus, mere lack of signatures of PW-1 on some seizure memos does not make his testimony unreliable or create doubt on the case of prosecution.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 62 of 164 PS M.S. Park Contradictions in the testimony of PW-1 vis-à-vis his previous statements

148. Ld. Defence Counsels have argued that PW-1 has improved upon his previous statement (Ex.PW-1/A), on the basis of which present FIR was registered and supplementary statements recorded during investigation. Hence, his testimony is not reliable.

149. Perusal of testimony of PW-1 vis-à-vis his previous statements shows that he has not introduced any new material fact. Rather, PW-1 gave explanations related to the relevant facts already stated by him in his previous statements. In this regard, the Court stands guided with the precedent laid down by the Hon'ble Supreme Court in Tahsildar Singh v. State of U.P., AIR 1959 SC 1012, wherein the Court has observed that:

[A]t a later stage of the judgment, the learned Judges laid down the following two tests to ascertain whether a particular omission amounts to contradiction:

(i) an omission is not a contradiction unless what is actually stated contradicts what is omitted to be said; and (ii) the test to find out whether an omission is contradiction or not is to see whether one can point to any sentence or assertion which is irreconcilable with the deposition in the Court...

150. The Hon'ble Supreme Court in the case of Yogesh Singh (supra) has held that:

29. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 63 of 164 PS M.S. Park

151. Excerpts of confrontation of PW-1 with his previous statements are as follows. During his cross-examination, PW-1 has stated that he did not remember whether he stated to the police that 'he had verbal conversation with the accused and asked them why they were after deceased and told them that deceased was his friend so how could he leave him' and that 'deceased was a left handed person and he had raised his left hand to save himself, when A-3 hit deceased with knife on the left side of his chest' and that 'due to continuous beatings with cricket wickets, both wickets had broken into two pieces'. The above version of PW-1 is not part of his previous statements recorded during investigation. However, it is worth noting that PW-1 has not stated anything which is contradictory to his previous statements. He has merely elaborated as to why he remained present there, how the deceased tried to save himself etc.

152. PW-1 has further deposed that he did not remember whether he had stated to the police that 'while leaving the spot, A-3 and A-4 threatened him that they would ensure the same fate for him, if he said anything to anyone about them'. This version of PW-1 is an addition to his previous statements Ex.PW-1/A, Ex.PW-1/D-1 and Ex.PW-1/D-2, wherein it had not been so recorded. But, this addition does not create any doubt on the credibility of testimony of PW-1 on all other aspects. Even otherwise, PW-1 has made specific allegation in this regard against A-3 and A-4, not general allegations against all accused persons. Furthermore, the accused persons had brutally assaulted the deceased in the presence of PW-1, in such circumstance, it is highly probable that accused persons would leave the spot threatening the eye-witness to face dire consequences, if he would depose against them.

153. Further, PW-1 has deposed that he did not remember whether he had stated to the police that 'while leaving the workshop, they also smashed the articles of FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 64 of 164 PS M.S. Park the workshop like TV, glasses etc. So far as smashing of articles i.e. glasses is concerned, the prosecution witnesses have deposed about having seen glass pieces inside the workshop of deceased. Thus, this omission cannot be considered as material in nature. But, the aspect of smashing of TV is not reflected either in previous statements of PW-1 or in the testimonies of other prosecution witnesses. Again, the Court does no find it a material omission leading to discard the otherwise trustworthy testimony of PW-1 on all other material aspects.

154. The argument of contradictions can be looked into from another angle as well.

It is worth noting that the present incident had occurred at 12.05 a.m. PW-1 had gone to the hospital thereafter, where the deceased, who was his friend for 6-7 years, was declared 'brought dead'. He came back to the spot. PW-1, during his cross-examination conducted on 22.01.2015, has stated that his first statement was recorded on 22.04.2013 from 1.30 a.m. - 2.00 a.m. at the spot itself. He has claimed, during his cross-examination conducted on 24.01.2015, that at the time of recording of his statement by the IO, he was very much nervous. IO/PW-32 has also stated that he had recorded the statement of PW-1 from 01.30 a.m. to 2.00 a.m. In this background, when the deceased had been assaulted by six persons carrying deadly weapons, in the presence of PW-1 and thereafter, he died. It is natural that PW-1 could not have provided minute details related to the incident in his statement (Ex.PW-1/A) given to the police just after about one hour of the incident. Thus, the Court does not find any force in this argument.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 65 of 164 PS M.S. Park Claim of PW-1 of watching IPL match on TV at the time of arrival of accused persons

155. Ld. Defence Counsels have argued that PW-1 has introduced a new fact in his testimony before the Court that when he visited the workshop of deceased at about 11.45 p.m., they (deceased, PW-6 and PW-7) were watching IPL match on TV. On other hand, in his statement, Ex.PW-1/A, PW-1 had merely stated that they all four started discussing about cricket. Furthermore, IO/PW-32 did not seize any TV from the shop of deceased, moreover when that had also been smashed by the accused persons (as claimed by PW-1).

156. It is true that in his statement, Ex.PW-1/A, PW-1 had not stated that 'they were watching IPL match on TV'. However, there is clear reference of discussion on cricket amongst them (deceased, PW-1, PW-6 and PW-7). Further, it is worth noting that during his cross-examination conducted on 23.01.2015, PW-1 was asked questions about the IPL match played on the day of incident. It was specifically put to him that the match was played between Kings XI Punjab and Pune Warriors and it was further put to him that the said match was an exciting match. These questions themselves support the version of PW-1 to the effect that an IPL match had been broadcast on TV on the day of incident. Even otherwise, the Court does not find it a material introduction of new fact in the testimony of PW-1.

157. It is pertinent to note that in his statement, Ex.PW-1/A, the complainant/PW-1 had not referred about watching match on TV and smashing of the same by the accused persons after assaulting the deceased, hence, there was no occasion for IO/PW-32 to seize the TV or to mention about the same in the site plans (Ex.PW-1/D-4 and Ex.PW-14/A). Moreover, no clarification was sought from FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 66 of 164 PS M.S. Park PW-32 by the accused persons on this aspect during his cross-examination. Furthermore, no question was put to, or no clarification was sought from, PW-6 and PW-7 on the aspect of their watching match of IPL on TV, to contradict the testimony of PW-1 on this aspect, specially when PW-1 had already been cross- examined in detail on this aspect prior to recording of testimony of PW-6 and PW-7.

Injury to PW-1

158. Ld. Defence Counsels have argued that there is contradiction in the testimony of PW-1 vis-à-vis his MLC, Ex.PW-3/A, that PW-1 has deposed that A-1 hit on his right hand with his lathi, while his MLC depicts injury on his left hand. Ld. Addl. PP for the State has argued that during his deposition recorded on 22.01.2015, PW-1 has categorically stated that in this incident, he sustained injuries only on his left arm. Moreover, no question was put to PW-1 for getting any clarification from him on this aspect.

159. It is worth noting that PW-1 has categorically stated that he sustained injuries on his left arm, which finds support from injuries shown in his MLC, Ex.PW-3/A. Further, no question was put to PW-1, during his cross- examination, to seek clarification from him on this aspect. Furthermore, during his cross-examination conducted on 24.01.2015, a suggestion was put to PW-1 that he got himself beaten by some known persons in order to create an evidence. This suggestion leads to infer that the accused persons did not dispute the injuries sustained by PW-1 as reflected in his MLC, Ex.PW-3/A. Furthermore, no doubt could be created during cross-examination of treating doctor/PW-3 on the abovesaid aspect that injuries shown in MLC of PW-1 were received at around 12.15 a.m. in the intervening night of 21-22.04.2013.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 67 of 164 PS M.S. Park

160. So far as the question is concerned, as to why PW-1 did not get himself medically examined at the time of his first visit to the hospital following PCR van. Again, no clarification was sought on behalf of accused persons from PW-1 on this aspect. During his cross-examination conducted on 23.01.2015, PW-1 deposed that at around 9-10 a.m. [on 22.04.2013], he was sent to hospital for medical examination. Further, from the nature of injuries caused to PW-1, it can be made out that prime concern of PW-1 must have been to set the criminal law in motion after the incident. In other words, any public person, in a case of murder of his friend and he being an eye-witness to the incident, would be more interested in pursuing legal action against the offenders. In the given circumstances, a public person may not be knowing that an MLC reflecting the injuries caused to him is also required to be prepared for corroborating his version of sustaining injury in the incident.

161. Ld. Defence Counsels have argued that no X-ray of injured body part of PW-1 was got conducted. It is worth noting that the judicial record contains the X-Ray report of PW-1, though the same was not tendered in evidence. Thus, it cannot be said that no X-Ray of injured body part of PW-1 was got conducted.

PW-1 an interested witness?

162. Ld. Defence Counsels have argued that PW-1 is an interested witness, hence his testimony shall not be relied upon. On other hand, Ld. Addl. PP has stated that PW-1 is a natural witness and his testimony cannot be doubted merely because the deceased was his friend.

163. First of all, the Court stands guided by the observations of the Hon'ble Supreme Court on this aspect in Gangabhavani v. Rayapati Venkat Reddy, in Criminal Appeal No. 84/2011 decided on 04.09.2013, that:

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 68 of 164 PS M.S. Park EVIDENCE OF RELATED/INTERESTED WITNESSES:

11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.

(Vide: Bhagalool Lodh & Anr. v. State of U.P., AIR 2011 SC 2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308).

12. In State of Rajasthan v. Smt. Kalki & Anr. AIR 1981 SC 1390, this Court held:

"5A. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased"......For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W.1 had no interest in protecting the real culprit, and falsely implicating the respondents." (Emphasis added) (See also: Chakali Maddilety & Ors. v. State of A. P., AIR 2010 SC 3473).

13. In Sachchey Lal Tiwari v. State of U.P., AIR 2004 SC 5039, while dealing with the case this Court held:

"7. .....Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."

14. In view of the above, it can safely be held that natural witnesses may not be labeled as interested witnesses. Interested witnesses are those who want to FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 69 of 164 PS M.S. Park derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased.

164. PW-1 has explained the circumstances in which he happened to be at the shop of deceased prior to occurrence of incident. He has deposed that he knew the sons of A-1, but neither he had good terms nor he had bad terms with them. He had attended marriage of accused Javed [A-2]. Ld. Addl. PP for the State has argued that this version of PW-1 indicates that PW-1 had cordial relations with accused persons that is why he had attended marriage of A-2. Ld. Addl. PP has further contended that the accused persons have not claimed, during cross- examination of PW-1, any strained relations/previous enmity with him, which might have led him to depose against them falsely. It is true that the accused persons did not put any suggestion to PW-1 that due to any previous enmity with the accused persons, he has deposed against them falsely. In other words, no reason has been brought on record by the accused persons as to why PW-1 would falsely implicate them after letting actual assailants scot free. Moreover, PW-6 and PW-7 have also corroborated him in respect of initial phase of the incident. Thus, PW-1 cannot be termed as interested witness merely because he knew the deceased for 6-7 years. This observation further establishes the credibility of the testimony of PW-1.

No call made by PW-1 to police during the incident?

165. Ld. Defence Counsels have argued that PW-1 did not call police during the incident. The accused persons were armed with knives, pistol, cricket wickets and lathi. Bullets have been fired upon PW-7 and the deceased. PW-1 has stated that he was trying to reason with accused persons and also, he tried to stop A-1. He had become nervous. The entire incident narrated by PW-1 appears to have FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 70 of 164 PS M.S. Park occurred in such manner leaving no scope for PW-1 to think that by calling the police at 100 number, he would be able to stop the accused persons from committing the alleged offence and save the deceased. Thus, the observations made in preceding paragraphs prove that the testimony of PW-1 is trustworthy and reliable.

Final assault upon the deceased

166. Firstly, PW-1 has stated, during his cross-examination conducted on 23.01.2015, about dimensions of the workshop of deceased. PW-1 deposed that he was familiar with the layout of workshop of deceased. It was a hall in the area of about 50 sq. yards, 25 feet long and 15 feet wide. There was a wooden partition 15 feet wide along with the width of said hall having a door for entry to the hall and it was situated after around 10 feet from the entrance. There was transparent glass fixed in the middle of the wooden partition, through which one could see the other side of the hall. Further, there was a printing press machine in the room. He could not give exact idea of size of this printing press/machine. It would be around 4 feet long, 3 feet wide and 2.5 feet in height. The machine was positioned about 1 to 1½ feet away from the inner wall. There was a motor kept in this gap. This motor was having size of approx. 13 inches length, 10 inches height and 13 inches width. The ceiling of the portion where printing press was kept would be at the height of around 10-12 feet.

167. PW-1 has further deposed that deceased stood on the side of wall beside the machine and in front of the motor. All six assailants/accused persons had encircled the deceased at that place (chhe ke chhe logo ne usse gher liya tha). A-2 was standing behind deceased. Rest of the accused persons were standing FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 71 of 164 PS M.S. Park on the front side of deceased. He further deposed that he could not pin point the exact manner of standing/locations of these five assailants/accused. He was standing a step behind the accused persons. At this stage, the Court had put a question to him that 'was Ibrahim facing you or his back was towards you?' PW-1 answered that his face was towards him (PW-1). He denied the suggestion that seven persons could not have stood at the place where the deceased was standing i.e. beside the machine. He further denied the suggestion that he could not have seen anything from the place suggested by him as his location in that particular hall, if in any case, seven persons could have managed to enter that particular portion where deceased was standing.

168. PW-1, in his examination-in-chief, has given a graphic presentation about the occurrence of incident after leaving the spot by PW-6 and PW-7. It has already been observed by the Court that no doubt could be created by the accused persons regarding presence of PW-1 at the scene of occurrence. Further, he has also explained the position in which the accused persons were standing at the time of final assault committed upon the deceased. Furthermore, his reply to the question put by the Court is also coherent with his deposition regarding the manner in which he witnessed the final assault given to the deceased. Further, his testimony to the effect that A-2 was standing behind the deceased, is coherent with the injuries shown to have been caused to the deceased in his post-mortem report Ex.PW-13/A. The report reflects that there is one incised stab wound over left lower back (injury no. 20) and multiple linear scratch abrasions over back (injury no. 17). The doctor has opined that injury no. 20 was produced by single edged sharp cutting/stabbing weapon and injury no. 17 is produced by pointed weapon. PW-1 has deposed that A-2 was carrying a knife. He hit the deceased with a knife in his back. Thus, it leads to infer that FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 72 of 164 PS M.S. Park A-2, who was carrying a knife and standing behind the deceased, had caused the abovesaid injuries no. 17 and 20.

169. The post-mortem report further reflects incised stab wound over left chest (injury no. 19). PW-1 has deposed that Abid hit Ibrahim with a knife on the left side of the chest. A-3 was carrying a knife and he including other accused persons were standing on the front side of deceased. Thus, it is made out that the injury no. 19 was caused by A-3. Further, injuries no. 1 to 10 are lacerated wounds and injury no. 11 to 16 are abrasions, which, as per post-mortem report, were produced by blunt force impact. Thus, the testimony of PW-1 leads to infer that those injuries no. 1 to 16 had been caused by other accused persons A-1 (carrying lathi) and A-5 and A-6 (carrying cricket wickets). While A-4 had already fired upon the deceased 5-6 times.

170. It is worth noting that PW-1, PW-6 and PW-7 have also deposed that the moment the accused persons entered the workshop, they started abusing and 'beating the deceased'.

171. Further, the version of PW-1 that 'Ibrahim was left handed person and he had raised his left hand to save himself, when Abid hit him with knife on the left side of his chest' was not specifically controverted, except his confrontation from his previous statement. So far as the argument is concerned that there was no corresponding injury shown to have been caused on the left hand of the deceased. It is worth noting that it has not been stated by PW-1 that due to his attempt to save himself by raising left hand, the deceased had got injury in his left hand. Thus, this argument does not hold water.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 73 of 164 PS M.S. Park

172. Further, so far as suggestions put to PW-1 on this issue of final assault are concerned. The accused persons could not create any doubt on the testimony of PW-1 through those suggestions. It is worth noting that the scaled site plan Ex.PW-14/A reflects the distance between printing machine and wall as 57 cm. It further contains the point 'E', where accused persons had attacked the deceased. Surprisingly, the accused persons did not put the scaled site plan to PW-1 to get any clarification from him in respect of their defence put to him in the form of suggestions. Above all, the accused persons could not create any doubt regarding their presence at the spot of incident and carrying of weapons by them as specified by PW-1.

Testimony of PW-6

173. In his examination-in-chief, PW-6 has deposed about his visit to the shop of deceased at 11.30 p.m. on 21.04.2013, presence of PW-7 too in the shop at that time, arrival of PW-1 there at around 11.45 p.m., noise coming from the side of gali after around 15-20 minutes, peeping by PW-7 from the corner of the shop to know about the noise, arrival of accused persons in the shop and respective weapons of offence carried by them, abuse and beating given by them to the deceased, alarm raised by PW-7, firing by A-4 upon PW-7, running away of PW-7, his (PW-6) trying to desist the accused persons from beating the deceased, thereafter, beating given to him by A-5 and A-6 on several parts of his body and his running away from the shop.

174. PW-6 has further explained as to where he went after leaving the shop of deceased i.e. towards Mandoli Road, then to Nathu Colony Chowk and then to GTB Hospital by rickshaw. He has categorically explained the time taken by him in reaching the abovesaid spots.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 74 of 164 PS M.S. Park

175. Ld. Defence Counsels have argued that PW-6 has improved upon his previous statement, Ex.PW-6/D-1, recorded during investigation. Hence, his testimony is not reliable. Perusal of testimony of PW-6 vis-à-vis his previous statement shows that he has not introduced any new material fact. Rather, PW-6 gave explanations related to the relevant facts already stated by him in his previous statement. The precedent laid down by the Hon'ble Supreme Court in the case of Tahsildar (supra) has been followed.

176. Excerpts of confrontation of PW-6 with his previous statement are as follows.

During his cross-examination, PW-6 has deposed that he had stated before police that 'there was one street light on the corner of gali no. 10 at a distance of around 8-10 feet from the shop of deceased and it was functioning at the time of his visit' and that 'at around 11.45 p.m., PW-1 came with white Alto car for its repair' and that 'he had reached Mandoli road and at that time he was very shocked'. The above version of PW-6 is not reflected in his previous statement, Ex.PW-6/D-1. However, it is worth noting that PW-6 has merely explained about existence of street light near the shop of deceased at the relevant time. Moreover, it is not the case of prosecution that the incident had occurred in gali and defence was challenging as to how did PW-6 identify the faces of accused persons. It is pertinent to note that the issue of light in the gali was touched upon by the accused persons, first time, during cross-examination of PW-12 conducted on 17.08.2015, while examination-in-chief of PW-6 had already been recorded on 27.07.2015.

177. Further, PW-6 had stated in his previous statement about arrival of PW-1 in the shop of deceased. During his testimony before the Court, he has just explained the purpose of his (PW-1) visit. Thus, it cannot be considered as material omission. Further, in his testimony before the Court, PW-6 has explained the FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 75 of 164 PS M.S. Park sequence of events occurred between the moments, when he left the spot and when he reached GTB hospital. This omission in his previous statement shall not be considered as material since it is not directly related to accusation leveled by him against the accused persons.

178. Further, PW-6 has deposed that he had told the police that 'in hospital, Dr. Afaq, Yogender Kasana, Noman Umar and his other relatives were already present'. This aspect had not been touched upon by PW-6 in his previous statement. However, it is worth noting that presence of PW-1 and PW-7 in the hospital stands proved through other evidence available on record. Thus, this version of PW-6 too shall not be considered as material omission.

179. In this regard, the Court stands further guided with the observations of the Hon'ble Supreme Court in the case of Tahsildar (supra), that:

[A]t the stage of investigation, statements of witnesses are taken in a haphazard manner. The police officer in the course of his investigation finds himself more often in the midst of an excited crowd and label of voices raised all round. In such an atmosphere, unlike that in a Court of Law, be is expected to hear the statements of witnesses and record separately the statement of each one of them. Generally he records only a summary of the statements which appear to him to be relevant. These statements are, therefore, only a summary of what a witness says and very often perfunctory. Indeed, in view of the aforesaid facts, there is a statutory prohibition against police officers taking the signature of the person making the statement, indicating thereby that the statement is not intended to be binding on the witness or an assurance by him that it is a correct statement.

180. In this regard, the observations of the Hon'ble Supreme Court in the case of Joti Prasad (supra) are also relevant:

19. The evidence of Radhey Lal was disbelieved also on the ground that he did not state under Section 161, Cr. P. C. that he had seen the Niamavali with Raja Ram. Radhey Lal stated that if the investigating officer had not asked him he may not have stated that he had seen Niamavali with Raja Ram. We see no adequate ground to disbelieve Radhey Lal. A statement under Section 161, Cr.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 76 of 164 PS M.S. Park P. C. is generally brief and the investigating officer not having a complete picture of the occurrence asks a witness only what he considers necessary at that stage. An omission of such a nature is not a contradiction under Section 162, Cr. P. C.

181. Coming back to the appreciation of testimony of PW-6, during his cross- examination, PW-6 has given cogent answers to the questions put to him regarding different locations and inhabitants residing, nearby his house and shop of the deceased. He stated that the mosque is also known as Alhuda Mosque. He has explained that he had run inside Gali no. 11 and had taken a left turn to reach Mandoli Road. This version of PW-6 is corroborated with testimony of PW-8 and PW-10 that they saw PW-6 fleeing away towards Gali no. 11. A question was put to him by the Court as to why he did not go to PS MS Park or to the house of his brother-in-law [situated in Gali no. 11] in order to borrow a phone or to make a call. PW-6 answered that 'jaha tak mujhe rasta dikhta gya, me bhagta gya. Apni jaan bachane ke liye aur mujhe kuchh samajh nhi aa raha tha. Bhaagte bhaagte main Mandoli road pachuch gya'. Thus, PW-6 has explained as to in what mental condition, he reached Mandoli Road and why he did not initially approach his brother-in-law residing in Gali no. 11. Furthermore, PW-6 has explained that there is distance of 60 feet between Gali no. 10 and Gali No. 11. From the corner of Gali no. 11, the distance of house of his sister Rukaiya would be around 45 feet. When six accused persons were carrying deadly weapons with them, out of which one person was carrying pistol and he had already fired upon PW-7 in his presence, and they had also assaulted him (by A-5 and A-6) and deceased too, it was natural conduct of PW-6 getting frightened and in such condition, it is highly probable that he was unable to comprehend the circumstances and thereby, he did not go to the house of his brother-in-law situated in Gali no. 11, which was just a few meters away from the shop of deceased i.e. place of incident.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 77 of 164 PS M.S. Park

182. During his cross-examination, PW-6 remained firm and consistent. He deposed that all accused persons had come together. A-1 was ahead of other accused persons. He admitted the suggestion that he did not get done his MLC. He has further deposed that the police officials were lifting articles and taking photographs etc. A suggestion was put to him that he alongwith PW-1 and other family members concocted a false story because they did not know the actual assailants. From such suggestion, it can be inferred that the accused persons did not dispute the assault given to the deceased and his consequent death.

183. Surprisingly, the spot of incident i.e. shop of deceased as mentioned by PW-6 in his examination-in-chief has also not been specifically challenged during his cross-examination. Further, the veracity of testimony made by PW-6 in his examination-in-chief could not be impeached during his cross-examination. Rather, general suggestions only had been given to him that accused persons did not visit the shop of Ibrahim or that they were not carrying any weapon or that they did not attack anyone. Thus, the testimony of PW-6 is trustworthy and reliable. The same provides corroboration to the testimony of PW-1.

Testimony of PW-7

184. In his examination-in-chief, PW-7 has deposed about his visit to the shop of deceased at about 11-11.15 p.m. on 21.04.2013, arrival of PW-6 in the shop after around 15-20 minutes, arrival of PW-1 there at around 11.45 p.m., noise coming from the side of gali after around 15-20 minutes, peeping by him (PW-7) from the corner of the shop to know about the noise, arrival of accused persons in the shop and respective weapons of offence carried by them, abuse and beating given by them to the deceased and alarm raised by him (PW-7). He further deposed that at that time A-4 turned towards him and started loading his FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 78 of 164 PS M.S. Park pistol. He took back steps out of fear and fell down from the stairs to the ground. The moment he fell down, A-4 fired at him, but the bullet did not hit him. He ran towards Gali no. 11.

185. PW-7 has further explained as to where he went after leaving the shop of deceased i.e. to the house of his niece Rukaiya. Further, after around 10-12 minutes, both of them came to the corner of Gali no. 11, thereafter, he alongwith Rukaiya reached the shop of deceased. PCR van was already standing outside the shop. The PCR officials and PW-1 brought the deceased outside from his shop. He was put in the PCR van. He (PW-7) also sat in same PCR van.

186. Ld. Defence Counsels have argued that PW-7 has improved upon his previous statement, Ex.PW-7/D-1, recorded during investigation. Hence, his testimony is not reliable. Perusal of testimony of PW-7 vis-à-vis his previous statement shows that he has not introduced any new material fact. Rather, PW-7 gave explanations related to the relevant facts already stated by him in his previous statement.

187. Excerpts of confrontation of PW-7 with his previous statement are as follows.

During his cross-examination, PW-7 deposed that he did not remember if he stated before police that 'he had seen A-3 and A-4 fleeing towards railway crossing from the shop of deceased' and that 'the moment he and Rukaiya reached corner of gali no. 11, A-3 and A-4 crossed them'. In his previous statement, Ex.PW-7/D-1, PW-7 has stated about his arrival with his niece Rukaiya at the corner of gali and at that time, the assailants were fleeing away. In his testimony before the Court, PW-7 has clarified the identity of assailants whom he had seen fleeing away at that time. Thus, by abovesaid version, PW-7 FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 79 of 164 PS M.S. Park has not introduced any new aspect on which his previous statement was completely silent. PW-7 has further stated that he did not state before police that 'in GTB hospial, he had stayed for some time and when he came out of casualty ward, he met PW-6, PW-1, Dr. Afaq and some other relatives in the corridor of the hospital because police did not ask such questions'. PW-7 has explained as to why his previous statement does not contain as to whom he met in the hospital. He has stated that police had not asked such questions from him. However, it is worth noting that presence of PW-1 and PW-6 in the hospital stands proved through other evidence available on record. Thus, this version of PW-7 too shall not be considered as material omission.

188. Ld. Defence Counsels have argued that if PW-7 had accompanied the deceased to the hospital in PCR van, then why his name was not mentioned in the column of 'brought by' in the MLC of deceased, Ex.PW-5/A. Further, even the IO/PW-32 did not meet family members or relatives of the deceased in the hospital. It is pertinent to note that during his cross-examination conducted on 17.08.2015, PW-7 stated that he was sitting on the back seat of PCR van. One- two police officials were seating beside him on the back side. In the hospital, deceased was got down from the PCR van by police officials. Thus, PW-7 has explained the circumstances during the deceased taken to the hospital from the spot. During his cross-examination, PW-7 deposed about his presence in the hospital and related questions in coherent manner. Further, PW-19/PCR official, who had taken deceased to the hospital, has also deposed that PW-7 had accompanied them in PCR to GTB hospital. Furthermore, in PCR form, Ex.A-1, too it has been recorded that 'GTB hospital me Ibrahim ke chacha Noman sath me the'. It has already been observed while discussing the testimony of PW-1 too that PW-1 has deposed that PW-7 had also gone FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 80 of 164 PS M.S. Park alongwith PCR officials. PW-10 has also corroborated the testimony of PW-7 on this aspect, stating that PW-7 also accompanied the PCR officials in PCR van. In these circumstances, no doubt is created on accompanying of PW-7 with the deceased to hospital in PCR van.

189. Ld. Defence Counsels have argued that if PW-7 had accompanied the deceased to hospital, then why his clothes were not blood stained and not seized. Even the clothes of PW-19 were not seized. So far as non-seizure of clothes of PW-19 and PW-7 is concerned. PW-7 has categorically stated that in the hospital, deceased was brought down from PCR van by police officials. His clothes were not stained with blood of deceased. Further, PW-19 has stated that some blood of injured had stained his hands. His clothes were not stained with blood of injured. He again stated that he could not tell this fact. Since PW-7 and PW-19 have explained that their clothes were not blood stained, hence, there was no occasion for the investigating officer to seize their clothes.

190. So far as IO not meeting any family member or relative including PW-7 in the hospital is concerned. IO/PW-32, during his cross-examination conducted on 07.09.2021, has deposed that they reached the hospital at 12.55 a.m. and remained there for 10-15 minutes. He did not meet family members or relatives of deceased in the hospital. This version of IO/PW-32 leads to infer that IO remained in the hospital for a very brief period and it is highly probable that during this period, he could not meet PW-7 in the hospital. It is worth mentioning that expression of IO, during his cross-examination, is that 'he did not meet' rather than 'he did not find'. It is probable that IO might be more interested in investigating into the case after reaching the spot of incident and finding eye-witness of the incident, if any, than meeting family members of the deceased in the hospital. Specially, in the circumstance of the injured/deceased FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 81 of 164 PS M.S. Park having been declared brought dead. That is why, he did not meet family members or relatives of the deceased in the hospital. In other words, the expression 'did not meet family members' does not mean 'no family member including PW-7 was present in the hospital' at that time. Thus, no doubt is created on the testimony of PW-7 on this aspect.

191. Ld. Defence Counsels have argued that as per case of prosecution, PW-7 had fallen down from the stairs to the ground, but surprisingly, he did not sustain any injury. It is worth noting that firstly, no clarification was sought from PW-7 on this aspect during his cross-examination. PW-1 has categorically stated during his examination-in-chief that the workshop of deceased was situated around 5 feet above the ground level. Photograph Ex.PW-1/D-3 also reflects a short staircase leading to the shop of deceased. Thus, it is highly probable that PW-7 might not have sustained any visible injury after falling down from height of around 5 feet.

192. So far as the argument of identification of lathi by PW-7 during his deposition is concerned. It is pertinent to note that he has deposed that A-1 was carrying a lathi. Merely because the seizure memo of lathi does not bear signature of PW- 7, the same does not mean that he could not have identified the weapon carried by A-1 and seen by him (PW-7) at the time of incident.

193. Surprisingly, the spot of incident i.e. shop of deceased as mentioned by PW-7 in his examination-in-chief has not been specifically challenged during his cross- examination too. Further, the veracity of testimony made by PW-7 in his examination-in-chief could not be impeached during his cross-examination. He remained firm and consistent on material particulars. Rather, general suggestions only had been put to him that accused persons did not enter the FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 82 of 164 PS M.S. Park shop of Ibrahim or that they were not carrying any weapon or that they did not attack them or that A-4 did not fire at him. Thus, the testimony of PW-7 is trustworthy and reliable. The same provides corroboration to the testimony of PW-1.

Delay in recording of statements of PW-8 and PW-10

194. Before proceeding to appreciate testimonies of PW-8 and PW-10, one aspect related to their testimonies is required to be discussed. Ld. Defence Counsels have argued that the statements of PW-8 and PW-10 were recorded by the investigating officer on 11.07.2013 i.e. after more than two and half months of registration of present FIR. The investigating officer did not give any cogent explanation for such delay.

195. It is true that statements of PW-8, Ex.PW-8/D-1, and of PW-10, Ex.PW-10/D-1, have been recorded on 11.07.2013. In this regard, testimony of IO/PW-32 is relevant. PW-32, during his cross-examination, stated that he had not written statements of PW-10 and PW-8 on 22.04.2013, who were informants of DD no. 4-A and 5-A respectively. He voluntarily stated that PW-10 was observing iddat and further, he had already recorded the statements of witnesses namely Tahir and Noman, thus, statement of PW-8 was recorded later on. He admitted the suggestion that PW-6 and PW-7 were not informants of this incident. He voluntarily stated that but they were eye-witnesses of the case. He denied the suggestion that he had not recorded the statement of PW-8 earlier, as he wanted to introduce PW-1 as the complainant in this case. He voluntarily stated that PW-1 had himself told him that he was eye-witness of the incident. Thus, PW-32 gave an explanation for not recording statements of PW-8 and PW-10 timely. PW-32 further deposed that he had requested family members of PW-10 FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 83 of 164 PS M.S. Park that her statement was required for investigation into the case and they acceded to his request and he was allowed to record the statement of PW-10 during her iddat period itself.

196. It is pertinent to note that PW-10 has also explained during her cross-

examination, on similar lines, that prior to 11.07.2013, police though visited her house, but they could not take her statement because she was observing iddat period. She observed iddat period for four months and it was over on 29.08.2013. She admitted the suggestion that her iddat period was not over by 11.07.2013. She voluntarily stated that the elders of her matrimonial house had decided that statement could be given by her behind the curtain even during that period. Thus, PW-10 has given cogent explanation for non-recording of her statement by IO prior to 11.07.2013. In these circumstances, the testimonies of PW-8 and PW-10 cannot be brushed aside merely because the same had not been recorded timely.

Testimony of PW-8

197. PW-8 has initially explained about location of his house at B-75, Gali no. 9, New Modern Shahdara. He has deposed that at about 12.00-12.15 a.m., he heard noise of knocking of door coming from the side of Gali no. 10. He further explained as to how he reached at the spot from where he observed the presence of accused persons in front of workshop of the deceased. He has further deposed about the names of accused persons and weapons carried by them respectively. Further, he deposed about hearing of noise of persons coming from the shop of deceased, falling of PW-7 on the road from the shop of deceased after two minutes, hearing of sound of a bullet fire immediately thereafter, running away of PW-7 towards Gali no. 11, running away of PW-6 FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 84 of 164 PS M.S. Park towards Gali no.11 after around 3-4 minutes and hearing of sound of firing from the shop of deceased. He has further deposed that he was shaking out of nervousness and he sat down on the terrace. After around 4-5 minutes, he made a call at 100 number.

198. Ld. Defence Counsels have argued that PW-8 has improved upon his previous statement, Ex.PW-8/D-1, recorded during investigation. Hence, his testimony is not reliable. During his cross-examination, PW-8 has categorically stated that he never read the FIR of this case. He further deposed that he had narrated a lot of facts before police, however, police did not record all the facts in his statement, stating that such facts were already recorded in the statement of other witnesses. He further deposed that he had gone through his statement after it was recorded by the police. He had raised his objection for not recording all the facts stated by him and police had given the same explanation. Further, he was satisfied with the explanation given by the police and therefore, he did not make any complaint to anyone for not recording his complete statement. From the abovesaid version of PW-8, it is made out that he has given cogent explanation regarding alleged omissions in his previous statement recorded by the police. Moreover, it is pertinent to note that had PW-8 been tutored or had he wished to introduce new facts, he would have deposed about smashing of glasses of the car of deceased too, as deposed by PW-1.

199. Now, the Court proceeds to further scrutinize his testimony. During his cross-

examination, PW-8 has given cogent answers to the questions pertaining to having mobile number 9136555040. He has deposed that the abovesaid mobile number belonged to his friend Shahzad. Surprisingly, the accused persons did not put CAF details, Ex.PW-37/J, of the abovesaid number to PW-8 during his cross-examination.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 85 of 164 PS M.S. Park

200. It is pertinent to note that DD no. 5-A had been recorded pursuant to the call made through the abvoesaid phone number. PCR form, Ex.PW-17/A, reflects that the call had been made to 100 number at 12.21.47 a.m. Firstly, the said timing of 12.21.47 is consistent with the testimony of PW-8 that he had heard noise of knocking of door coming from side of Gali no. 10 at about 12.00- 12.15 a.m. and his further deposition regarding timings of different events leading upto making call at 100 number. PCR form has further contained a reporting made at 12.37 a.m. on 22.04.2013 that caller Babar (PW-8) has informed that his brother Ibrahim has been fired upon by his neighbours. Thus, the abovesaid reporting corroborates that PW-8 had been using the abovesaid mobile number.

201. Furthermore, CDR of the abovesaid number, Ex.PW-37/L, also reflects that on 22.04.2013 at 12.21.40 a.m. and 12.25.40 a.m., two calls were made to 100 number from the abovesaid number. Further, location of said mobile number was at New Modern Shahdara i.e. the area of spot of incident. PW-37 has tendered location chart as Ex.PW-37/O in this regard. This further proves that the call at 100 number had been made through the abovesaid mobile number from the area of spot of incident. Thus, it stands proved that it was PW-8 who had made call at 100 number pursuant to which DD no. 5-A was recorded.

202. Further, DD no. 5-A contains that some boys are banging the gate and they are having pistol. Firstly, no specific question was put to PW-8 during his cross- examination to controvert the information given by him in the said DD. The abovesaid version is again consistent with the case of prosecution to the extent that A-4 was carrying pistol at the time of incident.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 86 of 164 PS M.S. Park

203. So far as other details mentioned in PCR form Ex.PW-17/A is concerned that PW-8 had informed about the names of assailants as A-2, A-3, A-4 and A-5. That version is not fully reliable about complete identities of accused persons as the said information had not been directly given to PCR control room by the witness of incident or by the witness of surrounding circumstances of incident.

204. During his further cross-examination, PW-8 admitted that a function was held in the house of A-1 on that day, which continued upto night. He voluntarily stated that it was over by 9-10 p.m. Surprisingly, the accused persons did not specifically challenge/controvert the abovesaid voluntary statement of PW-8. In other words, specific timing of winding up of the function was not suggested to him.

205. During cross-examination of PW-8, a suggestion was put to him that he could not have seen the road of Gali no. 10 from his balcony, including the portion in front of his door, because his sight was intercepted/blocked by tent erected in that gali. It is pertinent to note that a photograph, Ex.PW-12/A-9, had been put to PW-8, who admitted the suggestion that photograph showed the shop of deceased. It is worth noting that the said photograph does not reflect any tent in that gali. Thus, it cannot be said that the vision of PW-8 was restricted due to tenting and he could not have observed the circumstances occurring in front of the shop of deceased from the spot where he was standing.

206. PW-8 has stated that he kept sitting on terrace for another 7-8 minutes. He went to his house and came downstairs in the Gali no. 9. During his cross- examination, he admitted the suggestion that his door opening in Gali no. 10 is in front of door of house of A-1. He voluntarily stated that however, that door of their house remained permanently closed. Through this version, PW-8 has FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 87 of 164 PS M.S. Park explained as to why he came downstairs in Gali no. 9 from the main gate of his house and not from 'Gali no. 10'.

207. PW-8 has further deposed that he found his elder sister namely Rukaiya and PW-10. They told him that deceased had been taken to hospital by PCR officials. It has already been mentioned that as per Ex.PW-37/L, two calls were made by PW-8 at 12.21 a.m. and 12.25 a.m. Thereafter, he kept sitting on terrace for another 7-8 minutes. PW-19/PCR official has deposed that he reached B-105 at around 12.25 a.m. Thus, the abovesaid version of PW-8, regarding finding his elder sister namely Rukaiya and PW-10, is consistent with the case of prosecution as by the time PW-8 reached the shop of deceased, the deceased had already been taken away by PCR officials. His testimony is further consistent with testimonies of PW-7 and PW-10 that PW-10 told him (PW-8) about taking away of deceased to hospital. And PW-7 has deposed that he had later on come to the spot with his niece Rukaiya. This shows the arrival of Rukaiya with PW-7 at the spot. Thereby, PW-8 had met Rukaiya at the shop of deceased.

208. Some suggestions given to PW-8 during his cross-examination are worth mentioning hereitself to assess the defence of accused persons. PW-8 deposed that he had seen PW-1 on one or two occasions in the workshop of deceased. His father was not against the marriage between deceased and PW-10. He denied the suggestion that deceased did not take care of his daughter from first wife or that family of first wife of deceased was annoyed and inimical to deceased or that they had threatened deceased before and after the divorce given to first wife by deceased or that family of Shalu (PW-10) was against her marriage to deceased. PW-8 admitted the suggestion that after death of his father, all property had been transferred in the name of his mother. After death FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 88 of 164 PS M.S. Park of his father, deceased used to manage affair of all properties. He denied the suggestion that deceased used to have financial income out of assets of their family or that he did not share the financial income in reasonable proportion with all brothers, therefore, there was sense of dissatisfaction and resentment among all brothers of Ibrahim. He voluntarily stated that all financial income from assets used to be received by his mother. He denied the suggestion that after death of his father, they all brothers had strained relations with deceased because they had become dependents upon his whims.

209. The above suggestions given to PW-8 by the accused persons are bald suggestions. The accused persons did not lead any evidence to prove even on the basis of preponderance of probabilities that some other person(s) had committed murder of the deceased due to enmity against him.

210. Thus, the accused persons could not create any doubt on the testimony of PW-8. His testimony is consistent and coherent and thereby, it is reliable and trustworthy.

Testimony of PW-10/Wife of the deceased

211. PW-10/wife of deceased has deposed about hearing of noise at about 12.00 a.m., seeing the accused persons from balcony of first floor of her house, weapons carried by the respective accused persons, their entry into the shop, falling of PW-7 on the road after 2-3 minutes, hearing of sound of bullet fire immediately thereafter, running away of PW-7 towards Gali no. 11, jumping of PW-6 on the road after 3-4 minutes, running away of PW-6 too towards Gali no. 11, subsequent hearing of sound of 2-3 bullet fires, making call at 100 number, another call made at 100 number, hearing sound of PCR van after 6-7 minutes and coming downstairs.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 89 of 164 PS M.S. Park

212. Ld. Defence Counsels have argued that PW-10 has improved upon her previous statement, Ex.PW-10/D-1, recorded during investigation. Hence, her testimony is not reliable. Perusal of testimony of PW-10 viz-a-viz her previous statement shows that she has not introduced any new material fact. She, during her cross- examination, stated that she had stated all the things before police, which she had to state. Neither police had read over her statement to her nor she had gone through that statement. Moreover, it is pertinent to note that had PW-10 been tutored or had she wished to introduce new facts, she would have deposed about smashing of glasses of the car of deceased too, as deposed by PW-1.

213. It is true that in previous statement, Ex.PW-10/D-1, of PW-10, there is no reference about respective weapons carried by accused persons, running away of PW-7, hearing sound of bullet fire, running away of PW-6, coming downstairs and seeing Rukaiya, PW-7, PW-1 and PCR officials present there, taking her husband out from the shop by PW-1 alongwith PCR officials and PW-7 had also accompanied the PCR officials in same van. But, it is pertinent to note that DD No. 4-A had been recorded after the call made by PW-10 at 100 number and the same was first among three DDs, which led the police officials to the spot of incident. Her version regarding making call at 100 number is corroborated with PCR form, Ex.A-1, and DD no. 4-A, Ex.PW-4/A, wherein it has been recorded that husband of caller was beaten by neighbours after entering into house. During his cross-examination, PW-1 had admitted the suggestion put to him that deceased and Zara resided in the flat above the workshop. Thus, it cannot be said that PW-10 was having no occasion/scope of observing the abovesaid aspects deposed by her in her testimony before the Court.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 90 of 164 PS M.S. Park

214. Furthermore, it is worth noting that IO/PW-32 recorded the statements of callers of three DDs i.e. PW-1 (supplementary statement Ex.PW-1/D-2), PW-8 and PW-10 on 11.07.2013. From the testimony of PW-32, it appears that since PW-1, PW-6 and PW-7 had already claimed themselves to be eye-witnesses of the present incident and their statements had already been recorded by him in detail, he (PW-32) did not record the statements of PW-10 and PW-8 (callers of DD No. 4-A and 5-A) too in detail.

215. Further, during his cross-examination, PW-35 admitted that mobile number of the caller is mentioned in DD no. 4-A as 9654968814. He had called at the number and the caller informed that some people were beating her husband. On reaching the spot, he again tried the said number, but it was not responding, either it was busy or out of reach. This version of PW-35 further corroborates that it was PW-10 who had made call at 100 no. on the basis of which DD no. 4-A was recorded, as the caller had reiterated that 'some people were beating her husband'.

216. Coming back to the appreciation of testimony of PW-10, during her cross-

examination, PW-10 has remained firm and consistent. She deposed that after her marriage, she had been using mobile no. 9654968814. Surprisingly, the accused persons did not put CAF details, Ex.PW-37/E, of the abovesaid number to PW-10 during her cross-examination. Further, CDR of the mobile number 9654968814, Ex.PW-37/G, also reflects that on 22.04.2013 at 12.21.43 a.m. and 12.25.26 a.m., two calls were made to 100 number from the abovesaid number. Further, location of said mobile number was at New Modern Shahdara i.e. the area of spot of incident. PW-37 has tendered location chart as Ex.PW-37/O in this regard. This further proves that two calls at 100 number had been made through the abovesaid mobile number from the area of spot of incident. Further, FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 91 of 164 PS M.S. Park timing of making call at 100 number is also consistent with other timings deposed by PW-10 i.e. hearing of noise at about 12.00 a.m. and her further deposition regarding timings of different events leading upto making call at 100 number.

217. Further, testimony of PW-10 is corroborated with the aspect deposed by PW-7 that he came back to the spot with his niece Rukaiya. That is why, when PW-10 came downstairs, she saw Rukaiya, PW-7, PW-1 and PCR officials present there. Her testimony is further corroborated with the testimonies of PW-1 and PW-7 to the effect that PCR officials and PW-1 took her husband out from the shop and PW-7 accompanied PCR officials in the same van.

218. Some other aspects of cross-examination of PW-10, though not directly related to the events occurred during and after the incident, are required to be noted down as the same are relevant to scrutinize the defence of accused persons. During her cross-examination, PW-10 deposed that she did not permanently shift to her parental house after death of deceased, however, she keeps visiting that place. She had seen friendship of deceased and PW-1 after her marriage. She denied the suggestion that deceased had seen her for the first time at the house of PW-1. She deposed that initially, her family members had asked her to properly consider her decision of marrying with deceased, because of difference of their religion, however, they were never against this marriage. She deposed that father of deceased had already given consent for their marriage i.e. prior to his death. She denied the suggestions that Tyagi community (to which she earlier belonged) had given threats to deceased and his family against this marriage or that after marriage, she and deceased resided at Ghaziabad, UP or that she had come to her matrimonial house after long period or that family of deceased had not accepted her after this marriage or that she had continued FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 92 of 164 PS M.S. Park worshiping in accordance with Hindu rituals or that deceased had decided to reside separately alongwith her because of quarrels and dispute between her and his family members. She voluntarily stated that they shifted to separate flat over workshop at the instance of mother of deceased and it was further part of planning that after complete construction of other flats, entire family would shift into that property. She denied the suggestion that deceased had taken control of all assets, after death of his father. She voluntarily stated that control was with his mother and he used to take care of properties. She denied the suggestion that the local residents were fed up of the alleged quarrels and noise arising from the drinking sessions of the deceased at his shop. She admitted the suggestion that deceased used to collect the rent of shop situated in the mosque. She voluntarily stated that because he was Chairman of the committee. She denied the suggestion that deceased was a well known gunda of the locality and he was involved in many fights and quarrels or that he had many enemies.

219. It is reiterated that the above suggestions given to PW-10 by the accused persons are bald suggestions. The accused persons did not lead any evidence to prove even on the basis of preponderance of probabilities that some other person(s) had committed murder of the deceased due to enmity against him.

220. PW-10 deposed that she knew names of the immediate neighbours of her matrimonial house. Regarding identification of the accused Gufran, she stated that she had seen him on the road. She further stated that after reception of Javed, A-5 had given a photo album in their house and deceased had told her about A-6 and other persons in the photographs with reference to their relations and she had also seen A-6 on road. It is worth noting that in his statement recorded under Section 313 Cr.P.C., A-6 has stated that he had no concern with the family of A-1 to A-5 except attending functions organized by them or FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 93 of 164 PS M.S. Park visiting them on occasions of festivals. The family of deceased is neighbour of family of A-1 to A-5. If A-6 had been visiting the family of A-1 to A-5 on several occasions, then he (A-6) cannot be considered as 'complete stranger' to the family members of deceased including PW-10.

221. Thus, the accused persons could not create any doubt on the testimony of PW-10. Her testimony is consistent and coherent and thereby, it is reliable and trustworthy.

Unnatural conduct of PW-6, PW-7, PW-8 and PW-10?

222. Ld. Defence Counsels have argued that PW-6, PW-7, PW-8 and PW-10 have conducted in unnatural manner. They, despite being family members, did not come forward to rescue the deceased.

223. In this regard, Ld. Addl. PP for the State has given plausible response that A-4 had fired upon PW-7 and in such circumstance, it was natural conduct on part of PW-7 to run away from the spot to protect himself. The act of firing upon PW-7 is corroborated with recovery of an empty cartridge from outside the workshop of deceased. Similarly, the accused persons were carrying lethal weapons and they were in agitated condition. A-5 and A-6 had beaten PW-6 with cricket wickets and A-4 had already fired upon PW-7. In such circumstance, it was natural conduct on part of PW-6 too to run away from the spot for his protection. Ld. Counsel for the family members of deceased has also argued that conduct of PW-10 was also not unnatural. She, being a lady and rearing up a child of 2-3 years, cannot be expected to come downstairs and intervene to save her husband from six persons carrying lethal weapons.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 94 of 164 PS M.S. Park

224. Further, it is pertinent to note that it is not the case that PW-6 and PW-7 did not show any concern for his brother and nephew respectively. After running away from the spot, PW-6 called his brother-in-law and thereafter, having received the update, he reached the hospital. On other hand, PW-7 came back to the spot with his niece and thereafter, he went to the hospital in PCR van. Similarly, PW-8 and PW-10, both, have deposed that they had cried for help. Further, they both made call at 100 number too. In these circumstances, it cannot be said that any of the witnesses, either PW-6, PW-7, PW-8 or PW-10 had conducted in unnatural manner.

Not naming the accused persons while informing the police at 100 number

225. Ld. Defence Counsels have argued that neither PW-1 nor PW-8 nor PW-10 named the accused persons while informing the police at 100 number about the incident. PW-10 has stated that she did not mention name of accused persons at the time of making call at 100 number. So was the case of PW-1 and PW-8. But, it is worth mentioning that PW-10 had mentioned that 'her neighbours' were beating her husband. It is not the case that the information given to the police by PW-10 was completely silent about identity of the accused persons. It is trite law that FIR or first information which is recorded in the form of DD entry is not an encyclopedia of the entire case. The Hon'ble Supreme Court in The State of Uttar Pradesh v. Naresh, Crl. Appeal No. 674/2006 decided on 08.03.2011, has held that:

26. [I]t is settled legal proposition that FIR is not an encyclopedia of the entire case. It may not and need not contain all the details. Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has falsely been implicated.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 95 of 164 PS M.S. Park Thus, this argument does not hold water.

Testimony of PW-9

226. Though PW-9 had been declared hostile and he was cross-examined by Ld. Addl. PP for the State. However, his testimony needs to be scrutinized to evaluate as to which portion of his testimony is reliable. PW-9 has stated that he attended the function of engagement of A-3 on 21.04.2013. The function was over by 11.30 p.m. At around 11.45 p.m., he told A-1 that he was also leaving, but he stopped him stating that he should give his car so that some guests may be sent to their house in his car. PW-9 has further deposed about finding tyre of his car punctured, which had been parked between Gali No. 11 and Gali no. 12, his arrival at the corner of Gali no. 10 in his car and asking A-3 to change the tyre. By this time, it was already 12.00 midnight.

227. First of all, PW-9 has claimed that all the abovesaid events had occurred within a period of 15 minutes. But, it does not appear to be possible for a person to first approach the car parked at some distance from the house of A-1 and thereafter, without repairing the puncture, he came to the corner of Gali no. 10 in the same car and then, A-3 changed the tyre and all these things had happened within 15 minutes only. His such version is not reliable looking into further deposition made by him. Moreover, A-1 in his statement recorded under Section 313 Cr.P.C. has contradicted him, wherein he stated that PW-9 replaced the flat tyre.

228. PW-9 has further deposed that thereafter, A-3 took daughter of A-1 namely Nazneen, sister of A-1 namely Asgari, A-6 and his two children in his car. Surprisingly, the accused persons did not examine Nazneen or Asgari to FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 96 of 164 PS M.S. Park corroborate the testimony of PW-9 to the effect that A-6/Gufran and A-3/Abid had left the area of incident at 12.00 midnight itself.

229. PW-9 has further deposed that thereafter, A-1 had taken him to third floor of his house for taking food. There, A-2, A-1, A-4, A-5, Shahid and one more relative were taking food. Here too, the accused persons did not examine the person Shahid to corroborate the testimony of PW-9 to the effect that at around 12.00 midnight, they had been taking food alongwith A-1, A-2, A-4 and A-5.

230. PW-9 has further deposed that after taking food, A-1 went to balcony of the room, wherein they were sitting. From balcony, he looked into the gali and told them that mob had assembled in the gali. A-1 went downstairs and he (PW-9) also followed him. They both reached gali no. 10 and started going towards the mob. One boy alongwith a policeman came towards them and policeman was asking that boy that who had fired bullet. The boy pointed out to A-1 stating that he had fired bullet. Thereafter, that policeman apprehended A-1 at that spot itself. On the main road, he (PW-9) saw that towards left side, four persons including two police officials were putting an injured person in police gypsy. Policeman took away the deceased.

231. From the above-mentioned version of PW-9, it can be made out that accusation against A-1 as an assailant had been made in the presence of PW-9 itself. Surprisingly, the accused persons did not cross-examine PW-9 to controvert his testimony to the effect that someone had pointed out to A-1 stating that he had fired a bullet. Furthermore, though the accused persons are challenging the place of occurrence, but they did not controvert the testimony of PW-9, who has indicated the place of occurrence as the shop of deceased only. As he has stated that on the main road, he saw that towards left side, four persons were FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 97 of 164 PS M.S. Park putting an injured in police gypsy. It is worth noting that the shop of deceased would be on left side only for the person coming from gali no. 10 to main road.

232. On other hand, the testimony of PW-9 is not reliable due to following reason.

The testimony of PW-9 reflects that accusation against A-1 and his apprehension had happened almost at the same time of taking away the deceased from the spot by police officials. It is pertinent to note that PW-19/PCR official has stated that he had reached B-105 at around 12.25 a.m. The deceased was taken to hospital in PCR van and as per his MLC, he was examined at 12.43 a.m. Thus, it does not appear to be possible that A-1 had been apprehended by police officials at around 12.30 a.m. itself, while as per the case of prosecution, no police official from PS MS Park had arrived at the spot prior to taking the deceased to hospital by PCR van. From these observations, it is clear that PW-9 tried to introduce some facts, which are false. Probably, it has so happened since he had friendship with A-1 for last 30- 35 years. He had been attending functions in the family of A-1 and had been on visiting terms, as stated by him during his cross-examination conducted by Ld. Addl. PP for the State. His testimony becomes unreliable considering his subsequent vague version too.

233. PW-9 has further deposed that he (PW-9) went to factory of A-1 situated near railway track after crossing DDA flats. It took him 10 minutes to that factory. In the factory, 4-5 workers of A-1 were present. His car was parked there and he asked about whereabouts of A-3. Those boys pointed out to the key kept on the table stating that A-3 was not there.

234. Surprisingly, PW-9 has not clarified as to in what circumstances, he went to the factory of A-1 to get his car. He has not stated that he had received any FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 98 of 164 PS M.S. Park communication from anybody that he was to receive his car from the factory of A-1, which was situated at a distance of 10 minutes. Surprisingly, PW-9 found his car parked at the factory. Furthermore, his testimony to this effect was contradicted by A-1 as in his statement recorded under Section 313 Cr.P.C., he stated that no worker would have been working in the factory at about 12.00 night. Considering the above observations, the testimony of PW-9 is not trustworthy and reliable on material particulars that at around 12.00 midnight, A-3 had gone to leave some guests including A-6 in the car of PW-9 and thereafter, A-1, A-2, A-4 and A-5 alongwith other relatives had been taking food in the presence of PW-9.

235. Though the Court has not found the testimony of PW-9 as trustworthy.

However, it is worth noting that his version regarding presence of all accused persons in the area of incident around the time of incident, remained uncontroverted.

236. Now, the Court proceeds to examine other circumstances related to the incident and also respective arguments advanced by either side (prosecution or defence).

Place of occurrence of incident?

237. Ld. Defence Counsels have argued that there are contradictions, in respect of place of occurrence, in the testimonies of prosecution witnesses as well as documents exhibited by them. PW-1, in his examination-in-chief, stated that he used to get his vehicles repaired through the deceased at his workshop at B-174 or 175. PW-14 has also mentioned the place of occurrence as B-150 in site plan Ex.PW-14/A. Further, in DD No. 4-A (Ex.PW-4/A), it has been stated that place of occurrence is near H. No. D-75, Masjid. In DD no. 5-A (Ex.PW-4/B), it has FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 99 of 164 PS M.S. Park been stated that some boys were banging the door of House No. B-106. Further, PW-35 alongwith PW-11 had also reached the spot i.e. D-75, Gali no. 10.

238. First of all, PW-1 in his examination-in-chief itself, has clarified that the workshop of deceased was in the property no. B-105 and further, the incident had happened at B-105. During his cross-examination conducted on 23.01.2015, he admitted the suggestion that plot number wherein workshop was situated is B-105. Further, PW-6 and PW-7, who have witnessed the incident partly, have also stated that place of occurrence was the workshop of deceased situated at B-105, Gali no. 10. Further, callers of DD no. 5-A i.e. PW-8 and of DD no. 4-A i.e. PW-10, have also stated that the incident had occurred in the shop of Ibrahim. Furthermore, PW-14 has clarified that in scaled site plan, he had mentioned B-150, but it was B-105. No question was put to him (PW-14) during his cross-examination conducted on behalf of the accused persons to controvert his abovesaid version. During his cross-examination, IO/PW-32 admitted the suggestion that house no. of incident had been mentioned as B-150 in the site plan Ex.PW-14/A. He voluntarily stated that the same had been mentioned wrongly in the site plan and the correct number was B-105, the said error is typographical error.

239. Further, PW-1 has deposed that there was a mosque beside the workshop and there was one gali between workshop and mosque. Further, during cross- examination of PW-6, it had been suggested to him that there is mosque beside his house having entrance on the main road. PW-8 has explained that there is a Masjid situated in front of workshop of the deceased. When a call is made to the police at 100 number, the informant usually provides a landmark (i.e. Masjid in present case) to guide the police to reach the place of occurrence.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 100 of 164 PS M.S. Park That is why, the place of occurrence had been mentioned in DD no. 4-A as near D-75 Masjid.

240. So far as testimony of police witnesses is concerned on this aspect. PW-35 has also deposed that on receipt of DD no. 6-A, he went to House no. B-105, which was just nearby. During his cross-examination, PW-35 admitted the suggestion that on reaching House No. B-106, they came to know that incident took place in House No. B-105. He further deposed that House No. D-75 and B-105 were situated in front of each other. This itself leads to infer that the place of incident i.e. B-105 was just nearby to D-75 (as reflected in DD no. 4-A).

241. Further, during his cross-examination, PW-30 admitted the suggestion that the place of incident was situated at the corner of gali no. 10, New Modern Shahdara, M.S. Park, Delhi.

242. PW-32/IO deposed that he alongwith PW-33 and PW-30 reached Shop no. B-

105, Gali No. 10, New Modern Shahdara, which was the place of occurrence. During his cross-examination, PW-32 deposed that since they came to know that the present incident had occurred at B-105, hence, there was no occasion to visit house no. B-106, as mentioned in Ex.PW-4/B. He further stated that he reached at the place of incident after receipt of DD No. 6-A, Ex.PW-4/C and found the place of incident as house no. B-105.

243. Hence, all the prosecution witnesses and evidence led by them prove that place of occurrence was B-105, Gali no. 10. The Court does not find any contradiction in the case of prosecution on this aspect.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 101 of 164 PS M.S. Park Deceased's work of repairing vehicles?

244. Ld. Defence Counsels have argued that the sign board of shop of deceased shown in photograph Ex.PW-1/D-3 reflects that 'A B Motor - Sale & Purchases

- Old & New cars'. Further, PW-6 and PW-7 admitted the suggestions put to them that the deceased had a business of selling and purchasing of vehicles. Thus, the deceased was not doing the work of repairing the vehicles.

245. During his cross-examination conducted on 23.01.2015, PW-1 has admitted the suggestion put to him that the photograph Ex.PW-1/D-3 shows the front portion and sign board of workshop of deceased. However, he has deposed that 2-3 persons used to work under deceased as repairing mechanic. Deceased used to sell and purchase car batteries. He used to exchange the batteries if so required. Minor troubles in his vehicles were taken care of by deceased himself and other troubles were dealt with by his mechanics. He also named one of the mechanics that is Javed. From the abovesaid detailed version of PW-1, it is made out that the deceased was engaged in repairing of vehicles too. Furthermore, PW-16 has also deposed that deceased used to work for servicing of vehicles.

246. Further, specific suggestion was not put to PW-6 and PW-7 that the deceased was not doing the work of repairing vehicles. Thus, the suggestions put to PW-6 and PW-7 in this regard do not prove that the deceased was doing business of sale and purchase of vehicles only and not any other work.

247. Further, during his cross-examination, PW-33 deposed that he had inspected the place of incident on his visit, but he did not remember if he had found any car repairing workshop there or any tools relating to repairing of car. However, after seeing the photographs, he stated that some tools can be seen in photographs Ex.PW-12/A-5, A-6, A-7, A-13, A-14, A-18 and A-25. No FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 102 of 164 PS M.S. Park clarification regarding these photographs has been given by either side during final arguments.

248. Moreover, had the accused persons wished to prove that the deceased was not engaged in work of repairing the vehicles, they, being his neighbours, could have conveniently examined a witness to support their such version, but the accused persons did not do so. Thus, the Court does not find any force in this argument.

Nobody from neighbourhood reached the spot on alarm raised by PW-7

249. During his cross-examination conducted on 24.01.2015, PW-1 deposed that no one came from the neighbourhood at the spot, after Noman raised hue and cry. He admitted the suggestion that that was a thickly populated area. Ld. Defence Counsels have argued that it is very surprising that place of occurrence despite being thickly populated area, no person came after alarm having been raised by PW-7. It is worth noting that the incident had occurred at midnight. It is highly probable that due to such timing, none might have heard the alarm raised by PW-7 and that is why none came at the place of occurrence from the neighbourhood. Further, the observations made in the paragraph captioned 'non-joining of independent witness' are also relevant on this aspect.

Street Light at the Corner of Gali no. 10?

250. Ld. Defence Counsels have argued that PW-12, who had taken photographs of scene of crime, has admitted that in photographs number Ex.PW-12/A-9 (showing Gali no. 10), Ex.PW-12/A-12 (showing front of shop no. B-105), Ex.PW-12/A-20 (showing front of the shop) and Ex.PW-12/A-11 (showing main road), there was dark, he deposed that the lit portion in these photographs was due to the light of flash of the camera. Then, how PW-8 and PW-10 could FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 103 of 164 PS M.S. Park have seen the accused persons and the weapons carried by them from first floor of respective buildings.

251. It is worth noting that PW-6, in his examination-in-chief, has also deposed that there was street light on the corner of Gali no. 10. The distance between the street light and the shop of his brother was around 8-10 feet. At that time, street light was functioning. No doubt could be created on the abovesaid version of PW-6 during his cross-examination conducted on behalf of accused persons. Surprisingly, no question was put to PW-8 on this aspect. PW-10 has deposed that there was street lamp on the corner of gali no.10 and main road. But, except her confrontation from her previous statement, no other question was put to her to impeach her veracity on this aspect. It is pertinent to note that PW-12 had been examined before the Court on 17.08.2015. While PW-8 and PW-10 were cross-examined, thereafter, on 26.11.2015 and 30.11.2015 respectively. Despite the same, no photograph as tendered by PW-12 was put to PW-8 and PW-10 to challenge their version and prove that they could not have observed anything from first floor since it was dark on the road. In these circumstances, when the street light was there at the corner of Gali no. 10 i.e. nearby shop of deceased, PW-8 and PW-10 could have easily observed the events occurring on the road from first floor.

252. Furthermore, the witnesses PW-8 and PW-10 have deposed about the circumstances which occurred at around 12.00 -12.15 a.m., while the scene of crime was examined vide report (Ex.PW-36/A) between 1.15 a.m. to 2.15 a.m. Above all, the accused persons were the neighbours of deceased, if they wished to prove that no street light was functioning at the corner of Gali no. 10 at the relevant time of incident, they could have examined a witness in this regard. But, it has not been done so.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 104 of 164 PS M.S. Park FSL report from DNA Fingerprinting Unit

253. FSL report dated 03.12.2014 (Ex.PW-29/A to Ex.PW-29/D) is relevant for analyzing other circumstances; hence the same has been incorporated herein. It contains that 14 parcels had been received on 19.06.2013 and one parcel was received on 18.07.2013. The report states that DNA profile generated from the source exhibit '1' (gauze from SOC), exhibit '4' (shoe from SOC), exhibit '5' (watch from SOC), exhibit '6' (cricket stump from SOC), exhibit '7' (cricket stump from SOC), exhibit '10a' (salwar of accused Israil), exhibit '10b' (kurta of accused Israil), exhibit '11a' (t-shirt of complainant Yogender), exhibit '11b' (pyjama of complainant Yogender), exhibit '12' (lathi from SOC), exhibit '13a' (shirt of deceased Ibrahim), exhibit '13b' (baniyan of deceased Ibrahim), exhibit '13c' (underwear of deceased Ibrahim), exhibit '13d' (jeans pant of deceased Ibrahim) and exhibit '13e' (sock of deceased Ibrahim) is similar with DNA profile generated from the source of exhibit '14' (blood gauze of deceased Ibrahim). It has been further reported that DNA could not be isolated from source of exhibit '2' (blood stained earth from SOC). No DNA profile could be generated from the source of exhibit '15' (knife) due to presence of inhibitors. Further, blood could not be detected on exhibit '3' (earth control from SOC), exhibits '8a' and '8b' (clothes of accused Tarif) and exhibits '9a' and '9b' (clothes of accused Gufran).

Belongings and clothes of deceased

254. As per the case of prosecution, one shoe (Ex.PW-1/Art.3) and one watch (Ex.PW-1/Art.4) belonging to deceased had been recovered from the spot and seized vide memos Ex.PW-1/B and Ex.PW-1/C. And one pullanda containing clothes of deceased (Ex.PW-6/Art.1 and 2) was handed over by the concerned doctor, which was seized vide memo Ex. PW-30/H. Ld. Defence Counsels have FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 105 of 164 PS M.S. Park argued that why only one shoe was recovered. The prosecution has failed to explain about pair to the shoe recovered. Further, post-mortem report does not reflect that the pullanda of clothes of deceased was handed over to IO on 22.04.2013 itself. Ld. Counsel for the family members of deceased has argued that the deceased had been taken to hospital in hurried manner, it may be possible that pair to the shoe recovered might have fallen down during the process of shifting him to the hospital from the spot.

255. Besides the testimony of PW-1 on the aspect of seizure of shoe and watch of deceased, PW-30 deposed that one single columbus company shoe and rolex watch were lying [at the spot]. He has further deposed that after the PM, pullandas were handed over by doctor to IO. During his cross-examination, PW-30 admitted the suggestion that only one shoe of the deceased was recovered from the spot and his other shoe could not be recovered in his presence. PW-32 deposed that he had seen one single sport shoe make columbus company and rolex wrist watch. The same were having blood stains. After the post-mortem, the concerned doctor handed over two pullandas and two sample seals, which were taken into possession by him vide memo Ex.PW-30/H. During his cross-examination, PW-32 has again clarified that the doctors had handed over the abovesaid exhibits to him on 22.04.2013 itself after conducting post-mortem and he had prepared seizure memo also to this effect. PW-35 has also deposed that IO also seized one shoe make columbus sport which was also having blood stains and a watch of deceased lying at the spot make Rolex which was broken from one end.

256. The above versions of PW-30, PW-32 and PW-35 leave no doubt about recovery of shoe and watch of the deceased from the spot. As per FSL report Ex.PW-29/A, blood stains on the shoe and watch match with DNA of deceased. FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 106 of 164 PS M.S. Park Further, the Court does not find that non-recovery of pair to the shoe recovered causes any dent to the case of prosecution.

257. Further, in respect of pullanda containing clothes of deceased having been seized on 22.04.2013 (rather than, on 10.05.2013, date of handing over of report to IO), no doubt could be created during cross-examination of PW-30 and PW-32. Further, no question was put to PW-13, doctor who tendered post- mortem report, during his cross-examination, in this regard. Furthermore, the entry made by PW-28/MHC(M) in relevant register, Ex.PW-28/A, also reflects that pullanda containing clothes of deceased was deposited in malkhana on 22.04.2013. Thus, the Court does not find any substance in this argument. Further, finding blood stained shoe and watch with broken strap of deceased at the spot corroborates the case of prosecution regarding shop of deceased as 'place of occurrence'.

Recovery of cricket stumps and lathi

258. Ld. Defence Counsels have argued that as per FSL report (Ex.PW-29/A) only one cricket stump was found 'broken' (parcel no. 7) and no such remarks was given to other cricket stump (parcel no. 6). Hence, the case property had been manipulated.

259. PW-30 deposed that two broken cricket stumps and in the outside portion, one lathi was lying. The same were seized. He identified the lathi (Ex.PW-7/Art.1) measuring 47 inches, having been taken into possession vide memo Ex.PW-30/B. The cricket wickets were produced during examination of PW-30 in a pullanda with the seal of SRK FSL Delhi. One wooden cricket stump having measurement of 78 cms and circumference 13 cms and one broken cricket stump having measurement of 68 cms and circumference 13 cms both FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 107 of 164 PS M.S. Park having dark brown stains were shown to PW-30 and he identified the same (Ex.PW-30/Art.8 and 9) having been taken into possession vide memo Ex.PW-30/F. The said version of PW-30 was not specifically controverted during his cross-examination.

260. PW-32 too deposed that he had also seen two damaged cricket wickets and one lathi. The same were having blood stains. During his cross-examination, a question was put to PW-32 as to whether he had seen the wickets and lathi at the spot of incident. To which, he replied that he had seen [the same]. However, he admitted the suggestion that he had not mentioned wickets and lathi in the site plan, Ex.PW-1/D-4. He further deposed that no specific identification of wickets and lathi was told to him by any witness. He voluntarily stated that the same had been found at the spot of incident. At the time of seizure of the same, PW-1 had identified the said wickets and lathi. During his cross-examination, PW-32 admitted the suggestion that case exhibits were not lifted by him and other police officers at the time of sending of rukka to PS. He voluntarily stated that case exhibits were lifted after registration of FIR.

261. PW-35 deposed that IO also seized two cricket wickets out of which one was broken and both were stained with blood. One lathi was also seized by the IO which was also having blood stains. During his cross-examination, PW-35 deposed that IO had first inspected the spot and then collected the samples/case properties at the spot and started preparing the seizure memos. He admitted that PW-11 reached at the spot after registration of FIR and by then, all the seizure memos had been prepared by the IO.

262. In view of above versions, no doubt could be created on the versions of author of seizure memos Ex. PW-30/B and Ex. PW-30/F i.e. IO/PW-32 and witnesses FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 108 of 164 PS M.S. Park to the same i.e. PW-30 and PW-35 regarding recovery of lathi (allegedly used by A-1) and cricket stumps (allegedly used by A-5 and A-6) from the spot. As per FSL report Ex.PW-29/A, blood stains on the lathi and cricket stumps match with DNA of deceased.

263. Further, both cricket stumps had been deposited in malkhana on 22.04.2013 itself. On 19.06.2013, the same were handed over to PW-20 for depositing the same in FSL. He was not cross-examined on behalf of the accused persons. Thereafter, cricket stumps were opened in the Court with intact seal of FSL. Thus, it is made out that the cricket stumps had been produced in the Court in the same condition as recovered from the spot. In these circumstances, if the word 'broken' is not written on one cricket stump in FSL report, while it has been mentioned in seizure memo that both cricket stumps were found broken, the same does not cause any dent to the case of prosecution.

264. This circumstance of recovery of 'blood stained' lathi and cricket stumps from the spot strengthens the testimonies of PW-1, PW-6 and PW-7 that those had been used as weapons of offence.

Recovery of cartridges from the spot

265. PW-11 deposed that on the road, there was a fired cartridge and some fired as well as live cartridges were lying inside the shop. PW-30 has deposed that three fired cartridges and three live cartridges were found there lying on the spot. Further, one fired cartridge was also found outside on the road. The same were seized vide memo Ex.PW-30/G. PW-32 deposed that inside the shop, he had also seen three cartridges cases and three live cartridges. Outside the shop, he had seen one fired cartridge case. During his cross-examination, he admitted the suggestion that he found three empty cartridges in the inner side of FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 109 of 164 PS M.S. Park abovesaid hall. PW-35 also deposed that IO also lifted three fired cartridges and three live cartridges which were lying in the premises no. B-105. One round was lying on the road. No doubt could be created during cross-examination of above witnesses on this aspect.

266. Further, Ballistics Division, FSL report dated 29.08.2013, Ex.PW-34/A, states that two sealed parcels were received on 19.06.2013. One sealed parcel was containing 7.65 mm standard cartridges and another sealed parcel contained four 7.65 mm empty cartridge cases. It has been reported that three standard cartridges of 7.65 mm were live ammunition before they were test fired in the laboratory. Further, the cartridge cases of second parcel are empty cartridge cases of 7.65 mm caliber ammunition.

267. This circumstance of recovery of 'cartridges' from the spot strengthens the testimonies of PW-1, PW-6 and PW-7 about use of pistol during the incident.

Bullet Marks

268. Ld. Defence Counsels have argued that despite firing of 5-6 shots, no bullet marks were found at the spot. It raises doubt on the case of prosecution. The investigating agency has planted the cartridges on the spot.

269. So far as the argument of bullet marks are concerned. During his cross-

examination, PW-30 deposed that they had not observed any damage caused by any bullet injury to any object near the spot nor could locate any bullet marks at any place when they visited the spot and inspected it. PW-32 deposed that on 13.05.2013, he made written request to FSL, Rohini for inspection of place of occurrence, which was conducted by the team of FSL on 15.05.2013. During his cross-examination, PW-32 admitted that at the time of PCR call, PW-1 had FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 110 of 164 PS M.S. Park informed that 10-12 rounds of fire were there during the alleged incident. He voluntarily stated that however, in the complaint, it was stated that several bullets were fired. PW-32 admitted the suggestion put to him that the deceased was fired upon in the interior part of the hall (wherein points F, G and E have been marked) shown in the site plan Ex.PW-14/A. He denied the suggestion that he planted the live bullets and other bullets at the later stage of investigation.

270. Crime Scene Report dated 12.02.2020, Ex.P-1, from Ballistics Division, FSL states that on 15.05.2013, as per direction of Director, FSL, the FSL team examined the scene of crime at shop of AB Motor, House no. 105, Gali no. 10, New Modern Shahdara (near Masjid Al-Huda), Delhi. After inspection of the abovesaid scene of crime, no clue material has been found related to ballistics.

271. It is pertinent to note that the aspect of firing by A-4 has been dealt with while appreciating the testimonies of PW-1, PW-6 and PW-7. The Court has found their testimonies trustworthy, wherein firing upon PW-7 by A-4 has been made out and further, firing upon the deceased 5-6 times has also been made out. They have specifically deposed that A-4 [only] was carrying pistol. PW-8 and PW-10 have also deposed about hearing sound of bullet fire. Further, in the preceding caption 'Recovery of cartridges from the spot', recovery of cartridges from inside and outside the shop of deceased also stands proved.

272. So far as the aspect, why no bullet hit the deceased, is concerned. No specific explanation was sought from PW-1 (only eye-witness on this aspect) by the accused persons during his cross-examination. Moreover, from the record, it appears that only three cartridges could be fired, while three remained live. This raises question upon the working order of pistol as well as the capability of A-4 FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 111 of 164 PS M.S. Park to handle/use the pistol. It is probable that in commotion, when the deceased ran away towards inside portion of his workshop to take shelter of printing press, A-4 missed the target (deceased). Thus, this argument does not provide any rescue to the accused persons.

Arrival of Crime Team at the spot and its report

273. PW-30 has deposed that prior to arrival of police party from the hospital, crime team had already arrived at the spot. Crime team inspected the spot and handed over the report to PW-32. During his cross-examination, PW-30 deposed that crime team officials reached the spot at about 01.15 a.m. and it remained at the spot till about 02.45 a.m. PW-32 deposed that when they reached the spot, crime team had already arrived. PW-35 deposed that in the meanwhile, crime team also reached the spot which inspected the scene of crime and took the photographs. It stands proved that crime team visited the spot within one hour of the incident.

274. The prosecution has examined In-charge, Crime Team as PW-36, who has tendered his report. The report dated 22.04.2013, Ex.PW-36/A, contains that date and time of examination is between 1.15 a.m. to 2.15 a.m. on 22.04.2013. Following exhibits were collected from the spot: (1) Four empty cartridges and three live cartridges marked KF 7.65, (2) Rolex wrist watch with blood stains on broken strip, (3) two blood stained cricket stumps (broken), (4) one blood stained lathi about 4 feet long, (5) blood stained sport shoe make columbus, (6) blood sample and (7) earth control. Nothing could be brought on record by the accused persons to doubt the above report. This report further corroborates the case of prosecution regarding recovery of various articles from the spot.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 112 of 164 PS M.S. Park Broken glass pieces in the shop

275. Ld. Defence Counsels have argued that IO/PW-32 did not seize broken glass pieces from the shop. PW-11 has deposed that the glasses of shop were found broken. PW-30 has deposed that one wooden partition, in which glass was affixed, was also broken. The glass on the table was also broken. During his cross-examination, PW-30 deposed that he had noted broken pieces of glass at the spot. Glass pieces were not seized from the spot. PW-32 deposed that he had also seen broken glass pieces lying in the shop. During his cross- examination, PW-32 admitted the suggestion that some broken glass pieces were also available at the spot of incident. He did not seize the same. During his cross-examination, PW-35 deposed that the glass was in broken condition and broken pieces were lying scattered. IO did not seize the broken pieces of glass in his presence. There was blood stained marks on broken pieces of glass. From the above versions, it is made out that there were broken glass pieces lying in the shop. However, in the given circumstances, non-seizure of glass pieces by IO does not create any dent to the case of prosecution.

276. This circumstance strengthens the testimony of PW-1 that the accused persons had smashed glasses of the shop of deceased.

Blood in the shop

277. Ld. Defence Counsels have argued that the prosecution witnesses have not explained as to how the blood stained earth and earth control were lifted by the IO. Further, blood was manipulated in the shop of deceased later on by the investigating agency. On the contrary, Ld. Counsel for the family members of deceased has contended that the respective seizure memos are categorical in this regard.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 113 of 164 PS M.S. Park

278. PW-11 deposed that blood was lying inside the shop. PW-30 has also deposed that in the inside portion near the machine, a lot of blood was lying. During his cross-examination, PW-30 stated that blood was lying near a printing press. PW-32 deposed that inside the shop, he had seen a lot of blood lying around. More blood was lying on the floor of shop near the offset machine, which was installed there. During his cross-examination, PW-32 deposed that he did not remember whether there were foot marks on the blood spread over the floor of spot of incident. He voluntarily stated that there were some footprints in photograph, Ex.PW-12/A-2. He denied the suggestion that there was only blood and no footprints in abovesaid photograph. He admitted the suggestion that he had seen blood trail from the spot wherefrom the deceased was taken to PCR van, which took him to the hospital. PW-35 deposed that blood was lying at the spot and it was lifted with the help of a cotton gauze. During his cross- examination, PW-35 deposed that he did not observe the trail of blood at the spot. He voluntarily stated that there were blood spots scattered at the spot.

279. From the above versions of PW-11, PW-30, PW-32 and PW-35, it is made out that a lot of blood was found lying in the workshop of deceased. The photographs clicked by PW-12 also show blood on the floor. Photographs Ex. PW-12/A-3 and Ex. PW-12/A-21 show blood on the motor kept, as well as on the floor, between printing press and side wall. Further, seizure memos of blood stained earth (Ex.PW-30/D) and of earth control (Ex.PW-30/E) depict about use of tools for taking the samples. Thus, this argument on behalf of the accused persons is contrary to record.

Damage to the car

280. Ld. Defence Counsels have argued that the investigating agency did not seize the damaged car of the deceased. It did not produce ownership proof of the car. FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 114 of 164 PS M.S. Park Further, when the weapons of offence i.e lathi and crickets wickets had been left by the accused persons on the spot, then how could they have damaged the car.

281. PW-1 has categorically deposed that while leaving the workshop, the accused persons smashed the articles of workshop as well as Honda City car of the deceased. The accused persons did not put any question to PW-1 to seek explanation as how the accused persons caused damage to the car. Thus, they cannot be allowed to raise this argument at this stage.

282. Further, PW-30 has deposed that outside on the road, one Honda city car bearing no. DL5CB6484 was lying in a damaged condition and its glasses were broken. During his cross-examination, PW-30 deposed that he had noted down the broken window pane of the car. PW-32 too deposed that outside the shop, he had seen one Honda City car bearing no. DL5CB6484. The glass panes of the said car were broken and in damaged condition. PW-35 deposed that a silver car was parked outside the premises on the road and was in broken condition. The above said versions of PW-30, PW-32 and PW-35 remained firm during their cross-examination. Further, photographs clicked by PW-12 also show that windshields and window glasses of the car have been smashed. In such circumstances, there was no need for the investigating agency to seize the vehicle. Further, the registration number of any vehicle is always exclusive to the respective vehicle. The prosecution witnesses have specifically mentioned the registration number of the car of deceased. In given circumstance, there was no need to produce any ownership proof of the car in the name of deceased. If the accused persons wished to prove that the car did not belong to the deceased, then they could have easily summoned the record from the concerned authority in this regard.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 115 of 164 PS M.S. Park Car battery in the shop of deceased?

283. Ld. Defence Counsels have argued that if PW-1 had gone to the workshop of deceased for change of battery of his car, then why no battery was found in the workshop. It is pertinent to note that during his cross-examination, PW-30 deposed that a car battery was lying at the spot. PW-32, during his cross- examination, deposed that he had seen 2-3 batteries kept at the shop of deceased. The black article in photograph, Ex.PW-12/A-18, is a battery. During his cross-examination, PW-33 too deposed that in the photograph Ex.PW-12/ A-18, the black object seen therein might be a car battery. In view of above versions of PW-30, PW-32 and PW-33, it is made out that battery of car was available in the workshop. Further, in the given circumstances, the Court does not find any need the same to have been seized during investigation into the present case.

Arrest of A-1 and seizure of his clothes

284. Ld. Defence Counsels have argued that there is ambiguity in the case of prosecution regarding arrest of A-1. The prosecution did not examine ASI Gajender, who had initially apprehended A-1. This creates doubt on the aspect of seizure of his clothes too.

285. The testimony of police witnesses is relevant on this aspect. During his cross-

examination, PW-11 denied the suggestion that PCR officials had handed over custody of A-1 with him and PW-35 and that on arrival of PW-32, PW-35 and PW-30, the custody of A-1 was handed over to PW-30.

286. PW-30 deposed that custody of A-1 was entrusted to PW-32/IO as he was brought by ASI Gajender. A-1 was sent to PS in the custody of PW-35. Further, after returning back to PS from hospital, detailed interrogation was made from FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 116 of 164 PS M.S. Park A-1 and he was arrested. His clothes, which were blood stained, were also taken into possession. During his cross-examination, PW-30 deposed that A-1 was arrested at about 6.00 p.m.

287. PW-32 deposed that prior to this, [i.e. prior to going to the hospital for the purpose of post-mortem of deceased], A-1 who was already present at the place of occurrence, was sent to PS through PW-35. After the post-mortem, he alongwith his staff proceeded to the PS. On reaching the PS, he (PW-32) interrogated A-1 and arrested him. He had also taken into possession the wearing clothes of A-1, which were having blood stains. The same were seized vide memo Ex.PW-30/L.

288. PW-35 deposed that A-1 was brought at the spot by ASI Gajender in the ERV vehicle. IO seized his clothes which he was wearing. The relatives of the accused had brought other clothes which were provided to A-1. In the meanwhile, PW-11 reached the spot alongwith copy of FIR. Thereafter, A-1 was sent to PS in ERV in his (PW-35) custody and IO proceeded for the post- mortem of the deceased. After returning from the hospital, IO arrived at the PS and formally arrested A-1 in this case. PW-35, during his cross-examination, admitted the suggestion that the fact that ASI Gajender had brought A-1 in the ERV vehicle is not recorded in his statement under Section 161 Cr.P.C. He did not know from where A-1 was brought by ASI Gajender. He did not remember the time when A-1 was brought to the spot. He remained at the spot for about 5-6 minutes till he was taken by him. He did not remember the time when he took him to the PS, but it was night time. The accused was arrested at about 6 p.m. He admitted the suggestion that till his formal arrest and from the time, he (PW-35) brought him to the PS, A-1 remained in the PS. He admitted the suggestion that it was recorded in the arrest memo of the accused i.e. FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 117 of 164 PS M.S. Park Ex.PW-30/I that he was arrested outside the PS. He (PW-35) voluntarily stated that A-1 was arrested in the DO room, which is just outside the station building and there is no boundary wall of the PS. The clothes of accused were got changed after affecting his formal arrest, but he did not remember the time. He denied the suggestion that A-1 was illegally lifted from his house and kept in PS for more than 15 hours and after that, he was falsely implicated in this case. He admitted the suggestion that A-1 had not pointed out any place when he was brought at the spot by ASI Gajender in the early morning.

289. From the above versions, it is made out that A-1 had been initially apprehended by one ASI Gajender. That is why IO/PW-32 has deposed that A-1, who was already present at the place of occurrence, was sent to PS through PW-35. Further, he had been sent to PS from the spot in the night time itself. And, he remained in PS till his formal arrest at 6 p.m. vide memo Ex. PW-30/I. Further, it is pertinent to note that the identity of A-1 was not under dispute at all, as he had been named in the FIR itself.

290. Further, no doubt could be created on the testimonies of PW-30 and PW-35 (witnesses to the seizure) and PW-32/IO in respect of seizure of clothes of A-1 vide memo Ex. PW-30/L. It has not been put to prosecution witnesses that the clothes (Ex.PW-30/Art.5) seized vide memo Ex.PW-30/L, produced before the Court during examination of PW-30, PW-32 and PW-35, are not of A-1. FSL report, Ex.PW-29/A, contains that DNA profile generated from the clothes of A-1 is similar with DNA profile generated from blood gauze of deceased. Thus, this circumstance goes against the accused no.1 and strengthens testimonies of eye-witnesses regarding participation of A-1 in the commission of offence.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 118 of 164 PS M.S. Park Arrest of A-5 and A-6 and seizure of their clothes

291. PW-30 and PW-32 have deposed that on 24.04.2013, the accused nos. 5 and 6 were arrested. PW-32 has deposed that on 25.04.2013, wearing clothes of A-5 and A-6 were taken into possession. PW-35 has deposed that on 25.04.2013, IO seized their clothes which they were wearing on the day of incident. Seal after use was given to him. But, FSL report, Ex.PW-29/A, contains that blood could not be detected on exhibits '8a' and '8b' (clothes of accused Tarif) and exhibits '9a' and '9b' (clothes of accused Gufran). However, it is worth noting that A-5 and A-6 had been arrested after two days of incident, they might not have got recovered the clothes worn by them at the time of incident. Thus, this circumstance does not cause any dent to the case of prosecution.

NBWs against A-2, A-3 and A-4

292. PW-32 deposed that on 21.05.2013, since three other co-accused remained to be arrested, NBWs were obtained against them from the competent Court. This circumstance has not been challenged by the accused no. 2, 3 and 4. It is pertinent to note that A-1 had been apprehended on 22.04.2013 itself, while A-5 and A-6 had been arrested on 24.04.2013. Thus, it is not the case that the investigating agency did not take steps to join A-2, A-3 and A-4 into the investigation of the present case. Raiding the house of accused persons is not the only resort, as argued by Ld. Defence Counsels.

Arrest of A-3 and A-4

293. PW-33 has deposed that on 01.07.2013, DD entry was lodged in the PS that accused persons A-3 and A-4 would be surrendering before the Court. Then, he alongwith PW-30, Ct. Dhanender and Ct. Krishan reached at Karkardooma FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 119 of 164 PS M.S. Park (KKD) Courts. After taking permission from the Court, A-3 and A-4 were arrested. PW-30 has also deposed the same.

Weapon of offence recovered at the instance of A-3

294. Ld. Defence Counsels have argued that the prosecution could not prove the circumstance of recovery of knife at the instance of A-3 beyond reasonable doubt. Further, the knife did not bear any blood stains on it. FSL report described the knife as 'dagger', which is double edged sharp knife. Even otherwise, the knife had not been produced to doctor for subsequent opinion as to whether the injuries to the deceased, as mentioned in Ex.PW-13/A, could have been caused by the said knife.

295. Ld. Counsel for the family members of deceased has argued that no suggestion had been put to PW-7, during his cross-examination, that the knife (Ex.PW-7/Article-2) had not been used by A-3 during the incident. Further, the accused persons were well aware of the case of prosecution, but they did not ask any question from PW-13/doctor as to whether injuries to deceased could have been caused by the said knife. Further, only because in FSL report, the knife has been wrongly described as 'dagger' by the expert, the same cannot be considered as 'double edged sharp knife' instead of 'single edged sharp knife'. Moreover, no clarification was sought in this regard by the accused persons from any other prosecution witness at all.

296. Firstly, PW-30/witness to the recovery of knife, has deposed that on 05.07.2013, A-3 and A-4 took them to the road about 100 meters from the road leading to Village Lakhan prior to 4-5 kms from Pilakua on the road going towards Delhi. A-3 got recovered one knife from the bushes. The same was seized vide memo Ex.PW-30/A-18. During his cross-examination, PW-30 FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 120 of 164 PS M.S. Park denied the suggestion that knives had been planted by the IO on the accused persons in collusion with the complainant and that no recovery was effected from any of the accused.

297. Further, PW-32/IO has deposed that both the accused (A-3 and A-4) had disclosed that after use, they had thrown the pistol, knife and their clothes on the way between Ghaziabad and Hapur near the road and they could get the same recovered. On 05.07.2013, A-3 and A-4 led them (PW-32 and PW-30) near Village Lakhan on the road between Hapur and Ghaziabad and there were bushes, grass and trees, which were growing near the road. A-3 searched for the knife and produced the knife, which was lying on the ground. Seal was given to PW-30 after use.

298. Perusal of testimonies of PW-30 and PW-32 shows that no specific question was put to them to create doubt on recovery of knife at the instance of A-3. Merely a suggestion was put to PW-30 only that the knife was planted. Thus, the argument advanced at the stage of final arguments, that there is doubt on recovery of knife at the instance of A-3, does not provide any rescue to the accused no. 3.

299. So far as argument of recovery from public/open place is concerned. An argument was advanced by the prosecution that as per seizure memo, Ex.PW-30/A-18, the place of recovery is situated near kachchi road of a village and covered with grass, hence, the same cannot be considered as an 'open place' easily accessible to general public.

300. In this regard, the Court stands guided with the observations of the Hon'ble Delhi High Court in Dinesh Kumar Mathur v. State, in Crl. A. 696/2012 decided on 16.08.2017, that:

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 121 of 164 PS M.S. Park

31. The second limb of the argument of Ms. Dubey is that the recovery was from an open area visible to the naked eye and hence, outside the contours of Section 27 of the Evidence Act. In this regard, we may usefully refer to the judgment of the Apex Court in State of H.P. v. Jeet Singh, (1999) 4 SCC 370 wherein recovery was effected from tobacco bushes, heap of rubbish situated in the compound of the residence of the accused and his cowshed and the High Court had repelled the circumstance inter alia as recoveries made were "open and accessible to others"; this was reversed by the Supreme Court observing as under:

"26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."

(Emphasis Supplied)

301. Applying the above precedent, the manner in which the knife had been concealed and the way in which it was covered, the place of recovery cannot be said to be an open place.

302. It is pertinent to note that the knife had been recovered on 05.07.2013. The entry made by PW-28/MHC(M) in relevant register, Ex.PW-28/A, also reflects that pullanda containing knife was deposited in malkhana on 05.07.2013. On 18.07.2013, the same was handed over to PW-24 for depositing the same in FSL. Thereafter, the said knife was opened in the Court, first time during examination of PW-7, with intact seal of FSL. Thus, it is made out that the knife had been produced in the Court in the same condition as recovered at the instance of A-3.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 122 of 164 PS M.S. Park

303. FSL report dated 26.05.2014 (Ex.PW-26/A and Ex.PW-26/B) contains that three parcels had been received on 18.07.2013. Blood could not be detected on exhibit '3', kept in parcel no. '3', which was 'one dagger having a rusty metallic blade with plastic handle described as knife'. During his cross-examination, PW-26/FSL expert has admitted the suggestion that Ex.3 as per his report Ex.PW-26/A was a dagger. Surprisingly, no question was put to him as to on what basis, he had described the knife examined by him as 'dagger' and whether it was 'double edged sharp knife'.

304. On other hand, it is pertinent to note that the knife had been produced before the Court during examination of PW-7, PW-30 and PW-32. And every time, its description had been recorded as 'its blade has one sharp edge'. No objection was raised by any accused against such recording. No suggestion was put to any of above witnesses to the effect that knife (Ex.PW-7/Art.2) is a dagger. Thus, the argument in this regard does not have any force.

305. Further, prior to production of the knife (Ex.PW-7/Article-2) for identification by PW-7, he stated about the specifications of the said knife that the blade would be around 6-7 inches and total length of knife would be around 1 foot. Thereafter, he identified the knife produced before him as the one which was with A-3. The sketch (Ex.PW-30/A-17) of the knife shows the specifications i.e. total length of knife as 31.8 cm and of blade as 20.5 cm. The said specifications almost match with those mentioned by PW-7. However, during his cross- examination conducted on 14.08.2015, PW-7 admitted the suggestion that that kind of knife is easily available in the market. He had not seen any peculiar specific mark on that knife at first instance so as to distinguish it from other similar kind of knives. But, the Court does not find this suggestion having force of negating the testimony of PW-7 on this point. Any eye-witness to the offence FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 123 of 164 PS M.S. Park can only depict the specification of weapon of offence as to how it looked like. It is not expected from a witness to observe any identifying/specific mark on the weapon of offence. Any offender is not likely to show the witness or victim the weapon of offence prior to or after the commission of offence so as to give him an opportunity to observe identifying mark.

306. It is true that blood could not be detected on the knife. But, it is worth noting that the incident had occurred on 22.04.2013 and A-3 was not traced till 01.07.2013. Thereafter, knife could be recovered only on 05.07.2013 i.e. after almost two and half months of the incident. No question was put to PW-26 on behalf of accused persons, to negate the case of prosecution about use of this knife by A-3, that had the knife been used in commission of offence, the same should have contained blood stains even if the knife had been recovered after two and half months of the incident and also, exposed to natural environment.

307. Further, it is true that the knife was not produced before the doctor for subsequent opinion. No question was put to PW-32/IO in this regard to seek his clarification, though it has been done so in respect of blade recovered at instance of A-2. The prosecution has relied upon a precedent laid down by the Hon'ble Supreme Court in Rakesh (supra), wherein the Court has held that:

11. Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the fire arm/gun recovered and therefore the use of gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned, the aforesaid cannot be accepted. At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for killing can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non. PW1 & PW2, as observed hereinabove, are reliable and trustworthy eye- witnesses to the incident and they have specifically stated that A1- Rakesh fired from the gun and the deceased sustained injury. The injury by the gun has been established FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 124 of 164 PS M.S. Park and proved from the medical evidence and the deposition of Dr. Santosh Kumar, PW5. Injury no.1 is by gun shot. Therefore, it is not possible to reject the credible ocular evidence of PW1 & PW2 - eye witnesses who witnessed the shooting. It has no bearing on credibility of deposition of PW1 & PW2 that A1 shot deceased with a gun, particularly as it is corroborated by bullet in the body and also stands corroborated by the testimony of PW2 & PW5. Therefore, merely because the ballistic report shows that the bullet recovered does not match with the gun recovered, it is not possible to reject the credible and reliable deposition of PW1 & PW2.

308. The present case is on better footing as there is no adverse report of expert against the knife recovered vis-à-vis injuries caused to the deceased.

309. Ld. Defence Counsels have relied upon the precedent laid down in the case of Amar Singh (supra), wherein the Hon'ble Supreme Court has held that:

29. In the facts and circumstances of the case this was serious lapse on the part of the investigating officer. Though normally minor lapses on the part of the investigating officer should not come in the way of accepting eye witness account, if otherwise reliable. But in the circumstances of the case at hands where the conduct of sole eye witness is unnatural and there are various other surrounding circumstances which make his presence at the site of incident doubtful, such a lapse on the part of the investigating officer assumed significance and is not liable to be ignored.

310. It is respectfully submitted that the present case is on different footing vis-à-vis the above precedent, where 'the conduct of sole eye witness was unnatural and there were various other surrounding circumstances which made his presence at the site of incident doubtful'. This Court has found the testimony of PW-1 trustworthy including his presence at the spot of incident. In the present case, PW-1 has categorically stated that A-3 was carrying a knife and he stabbed the deceased with the same. The Court has already observed that the injury no. 19 was caused by A-3, which, as per Ex.PW-13/A, had been produced by single edged sharp cutting weapon. In such circumstances, even if the knife was not FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 125 of 164 PS M.S. Park produced to doctor for subsequent opinion, the same does not prove to be fatal to the case of prosecution.

311. At this stage, the observations of the Hon'ble Supreme Court in the case of Yogesh Singh (supra) are also relevant:

43. [W]e hold that there is no material discrepancy in the medical and ocular evidence and there is no reason to interfere with the judgments of the Courts below on this ground. In any event, it has been consistently held by this Court that the evidentiary value of medical evidence is only corroborative and not conclusive and, hence, in case of a conflict between oral evidence and medical evidence, the former is to be preferred unless the medical evidence completely rules out the oral evidence.

Recovery of magazine at the instance of A-4

312. Ld. Defence Counsels have argued that firstly, the prosecution could not prove the circumstance of recovery of magazine at the instance of A-4 beyond reasonable doubt. Even otherwise, the said empty magazine does not connect the accused no. 4 with commission of the alleged offence.

313. In this regard, PW-30 deposed that on 03.07.2013, while A-3 and A-4 were on police remand, they took them (PW-30 and PW-32) to their House No. 698, Delhi Gate, Mohalla Behind Firoza Building, Hapur, UP. A-4 entered the house and on the West side room near the window outside a brick was lying and from under the brick, he produced a magazine of a pistol. The same was checked and it was found to be empty. The same was seized vide memo Ex.PW-30/A-13. During his cross-examination, PW-30 stated that A-4 had disclosed about hiding the magazine on reaching Hapur. Further, local police of Hapur had been called and joined into the investigation. The house was open when they visited there. The habitants of the said house were not asked to sign on the seizure memo of the magazine. He admitted the suggestion that the IO had not recorded FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 126 of 164 PS M.S. Park the statement of the occupants of the house or the neighbours to the effect that A-4 never visited the said house after 22.04.2013. He has further given answers to the questions relating to the recovery of magazine at the instance of A-4. PW-32 deposed that on 03.07.2013, they reached the residential house of A-3 and A-4 at Hapur, where A-4 got recovered one magazine of a pistol from near the bricks lying at the chowk of the house.

314. PW-30 has stated about presence of habitants of the house from where the said magazine had been recovered at the instance of A-4. No explanation has been given by PW-30 in this regard as to why they were not joined into the investigation. Though, no clarification was sought from PW-32/IO in respect of recovery of magazine. Further, fire arm examination report from Ballistics Division, CFSL dated 10.02.2014 (Ex.PW-22/A) contains that one sealed parcel had been received on 04.09.2013. Further, on the basis of examination, the empty magazine of 7.65 mm country made pistol contained in the above parcel is designed to load standard 7.65 mm cartridges and therefore, covered under the definition of Arms Act, 1959 and is in working order. It is the case of prosecution that three live cartridges and four empty cartridges recovered from the spot of incident were of 7.65 mm. But, there is no material on record that the empty magazine (Ex.PW-30/Art.2) is of the same pistol, which had been allegedly used by A-4 during the incident.

Non-recovery of pistol

315. Ld. Defence Counsels have argued that pistol allegedly used by A-4 has not been recovered. From the above discussion, it stands proved that it was A-4, who was carrying pistol. Further, he had fired upon PW-7 as well as the deceased. It is reiterated that three live cartridges and four empty cartridges FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 127 of 164 PS M.S. Park were recovered from the spot. It is trite law that merely because the investigating agency could not recover the weapon of offence from the possession or at instance of the accused, the same does not absolve the accused from commission of the offence. Specifically when, there is clinching evidence of complicity of accused in commission of the offence. The precedent laid down in the case of Rakesh (supra) has been relied upon.

Arrest of A-2 and recovery of weapon of offence at his instance

316. Ld. Defence Counsels have argued that the prosecution could not prove the circumstance of recovery of knife at the instance of A-2 beyond reasonable doubt. Further, though as per FSL report Ex.PW-26/A, blood was detected on the knife recovered at the instance of A-2, but as per FSL report Ex.PW-29/A, no DNA profile could be generated from it. Moreover, in FSL Report Ex.PW-29/A, the description of knife has been mentioned as 'one iron knife with broken plastic handle (bent from centre)', which does not correspond with description mentioned in sketch memo Ex.PW-30/Y. Even otherwise, the knife had not been produced to doctor for subsequent opinion as to whether the injuries to the deceased, as mentioned in Ex.PW-13/A, could have been caused by the said knife.

317. Ld. Counsel for the family members of deceased has argued that the accused persons were well aware of the case of prosecution, but they did not ask any question from PW-13/doctor as to whether injuries to deceased could have been caused by the said knife.

318. The testimonies of PW-30/witness to the recovery of knife and PW-32/IO are relevant on this aspect. PW-30 deposed that on 25.06.2013, he alongwith PW-32 and Ct. Harish came to KKD Court and after taking formal permission, FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 128 of 164 PS M.S. Park IO arrested A-2. Thereafter, his PC remand was taken. A-2 took them to the place in between the wall of DDA flats and the railway line and he took out a knife from the bushes. The sketch of the same was prepared and it was seized vide memo Ex.PW-30/Z. During his cross-examination, he deposed that the pump house is located at a distance of about 50-60 meters from the railway track from where the recovery was affected at the pointing out of A-2. He admitted the suggestion that place of recovery i.e. blade of the knife is an open public place. He further gave answers to the questions put to him regarding recovery of knife at the instance of A-2.

319. PW-32 also deposed about recovery of one knife at the instance of A-2. He further stated that the handle of knife was broken and only its blade was recovered. During his cross-examination, PW-32 deposed that the place of recovery [at the instance of A-2] is a public place. He admitted the suggestion that there was no street light at the place of recovery. He voluntarily stated that there was natural light of the sun when the recovery was effected. He further stated that when they reached [at the place of recovery], nobody was present there. He had not mentioned the names, addresses and parentage of those persons, who were going to reach railway station, in case diary. He admitted the suggestion that he had not sent the recovered knife to doctor for subsequent opinion.

320. From the above versions of PW-30 and PW-32, it is made out the no doubt could be created in their testimony regarding recovery of knife at the instance of A-2. So far as the argument of recovery from public/open place is concerned. An argument was advanced by the prosecution that as per seizure memo, Ex.PW-30/Z, the place of recovery is bushes grown between wall and railway track, hence, the same cannot be considered as an 'open place' easily accessible FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 129 of 164 PS M.S. Park to general public. In these circumstances, applying the precedent of Dinesh Kumar Mathur (supra), manner in which the knife had been concealed and the way in which it was covered, the place of recovery cannot be said to be an open place.

321. It is pertinent to note that the knife had been recovered on 25.06.2013. The entry made by PW-28/MHC(M) in relevant register, Ex.PW-28/A, also reflects that pullanda containing knife was deposited in malkhana on 25.06.2013. On 18.07.2013, the same was handed over to PW-24 for depositing the same in FSL. Thereafter, the said knife was opened in the Court, first time during examination of PW-30, with intact seal of FSL. Thus, it is made out that the knife had been produced in the Court in the same condition as recovered at the instance of A-2.

322. It is true that in FSL Report Ex.PW-29/A, the description of knife has been mentioned as 'one iron knife with broken plastic handle (bent from centre)', while there is no such description 'bent from centre' in sketch memo Ex.PW-30/Y. But, it is pertinent to note that during trial, the said knife (Ex.PW-30/Art.1) was produced before PW-30 and PW-32 for identification. But, no observation has been recorded about the knife being bent from centre. Further, no clarification too was sought on behalf of accused persons in this regard from PW-30 and PW-32, during their cross-examination.

323. It is pertinent to note that the knife recovered at the instance of A-2 was not shown to any of the prosecution witnesses, who had witnessed the incident, for identification. Further, PW-32/IO has admitted the suggestion that he had not sent the recovered knife to doctor for subsequent opinion. However, the precedents laid down in the cases of Rakesh (supra) and Yogesh Singh (supra) FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 130 of 164 PS M.S. Park are relevant here too. Further, if DNA profile could not be generated from the knife, the same does not cause dent to the case of prosecution.

324. In the present case, PW-1 has categorically stated that A-2 was carrying a knife and he stabbed the deceased with the same. The Court has already observed that A-2, who was standing behind the deceased, had caused the injuries no. 17 and 20, which, as per Ex.PW-13/A, had been produced by single edged sharp cutting weapon. In such circumstances, even if the knife was not produced to doctor for subsequent opinion, the same does not prove to be fatal to the case of prosecution.

Clothes of A-2

325. PW-30 has deposed that on 27.06.2013, IO seized wearing clothes of A-2 vide memo Ex.PW-30/A-2. PW-32 also deposed about the same. But, as per FSL report, Ex.PW-26/A and Ex.PW-26/B, blood could not be detected on exhibits '2a' and '2b', kept in parcel no. 2, which was 'one dirty jeans pant and one dirty full sleeves white open shirt' i.e. clothes of A-2. It is worth noting that A-2 had been arrested in the present case on 25.06.2013 i.e. after more than two months of incident. It is highly probable that he might not have got recovered clothes worn by him at the time of incident.

Copy of FIR sent to concerned authorities including Ilaka Magistrate

326. Ld. Defence Counsels have argued that PW-23, who had delivered copies of FIR to the higher police authorities and the concerned Ilaka Magistrate, gave vague answers regarding the location of residences of the said authorities. Further, copy of FIR which had been sent to concerned MM is also not part of challan.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 131 of 164 PS M.S. Park

327. PW-32, during his cross-examination, admitted that copy of FIR which had been sent to concerned MM is not part of challan. He denied the suggestion that present FIR is ante-timed and due to the same, the abovesaid copy is not part of challan.

328. PW-23, who had delivered copies of FIR to the higher police authorities and the concerned Ilaka Magistrate, deposed that he was handed over the copies of FIR at about 3.15 a.m. It is worth noting that his testimony was recorded on 06.03.2018, i.e. after almost 5 years of the incident. It is likely that due to lapse of time, he might not have been able to recall the location of residences of the said authorities. However, considering his testimony that the copies of FIR were handed over to him at about 3.15 a.m., it is made out that the same were given to him promptly as the present FIR had been registered at 2.40 a.m. So far as the argument that copy of FIR sent to the Ilaka Magistrate is not part of the judicial record, is concerned. It is true that the said FIR is not available on record. The prosecution has relied upon a precedent in this regard i.e. Yogesh Singh (supra), wherein the Hon'ble Supreme Court has held that:

40. It has been consistently held by this Court through a catena of judicial decisions that although in terms of Section 157 Cr.P.C., the police officer concerned is required to forward a copy of the FIR to the Magistrate empowered to take cognizance of such offence, promptly and without undue delay, it cannot be laid down as a rule of universal application that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable and the trial stands vitiated. When there is positive evidence to the fact that the FIR was recorded without unreasonable delay and investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the Court, then in the absence of any prejudice to the accused, it cannot be concluded that the investigation was tainted and the prosecution story rendered unsupportable.

329. It has already been observed that FIR has been recorded without delay. No other infirmity could be brought to the notice of the Court. Thus, this argument does not provide any rescue to the accused persons.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 132 of 164 PS M.S. Park Inquest proceedings

330. Ld. Defence Counsels have argued that the document Ex.PW-32/D does not bear FIR/DD No. as FIR was ante-timed. It is worth noting that PW-32, during his cross-examination, has explained that he had handed over 24 documents to doctor who had conducted post-mortem and this document Ex.PW-32/D was part of those documents, hence, he could not mention FIR No. on the same. Further, he has stated that FIR No. has been specifically mentioned in document Ex.PW-13/D-1 i.e. request for post-mortem. The version of PW-32 has been corroborated with the testimony of PW-13. During his cross-examination, PW-13 has deposed that alongwith request to conduct post-mortem, IO had given 24 sheets to him and he had countersigned all those 24 sheets.

331. Ld. Defence Counsels have further pointed out that some columns of document Ex.PW-32/D, were filled by IO in casual manner. Further, IO did not guard the dead body till its post-mortem.

332. PW-30 has deposed that he alongwith PW-32 and PW-11 went to mortuary of GTB Hospital. PW-32 prepared the inquest papers of the deceased. During his cross-examination, PW-30 deposed that the inquest report was prepared in his presence. He stated that the report, Ex.PW-32/D, was not in his handwriting. PW-32 deposed that he carried out the inquest proceedings vide Ex.PW-32/D. He had also made a request for post-mortem of the dead body vide Ex.PW-13/D-1. So far as the argument of non-recording of certain relevant entries in the inquest report is concerned, the prosecution has relied upon a precedent i.e. Yogesh Singh (supra), wherein the Hon'ble Supreme Court has held that:

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 133 of 164 PS M.S. Park

41. Further, the evidentiary value of the inquest report prepared under Section 174 of Cr.P.C. has also been long settled through a series of judicial pronouncements of this Court. It is well-established that inquest report is not a substantive piece of evidence and can only be looked into for testing the veracity of the witnesses of inquest. The object of preparing such report is merely to ascertain the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or caused by animals or machinery etc. and stating in what manner, or by what weapon or instrument, the injuries on the body appear to have been inflicted.

42. [M]oreover, in our opinion, the non-recording of certain relevant entries in the inquest report do not constitute a material defect so grave to throw out the prosecution story and the otherwise reliable testimonies of prosecution witnesses that have mostly remained uncontroverted.

333. It is worth noting that the MLC of deceased Ex.PW-5/A states that 'patient declared brought dead'. Further, post-mortem report Ex.PW-13/A states that 'all injuries are ante-mortem in nature'. The accused persons did not bring on record as to what prejudice was caused to them if IO could not give appropriate explanation about guarding the dead body. Thus, the Court does not find any rescue to the accused persons on this aspect.

Seal after use

334. Ld. Defence Counsels have pointed out that IO/PW-32 did not hand over the seal to independent person after use.

335. During cross-examination, PW-30 admitted that on 22.04.2013, the seal of AS was handed over to ASI Jagdish after use. He voluntarily stated that seal after use, used to be handed over to the IO on the next day. But, this fact was not mentioned in his statements. PW-32 deposed that whenever he had handed over the seal after use to another witness, same was taken back by him on the next day. During his cross-examination, PW-32 deposed that he had given seals to PW-30 four times during investigation of the present case. The respective seal was returned back to him by PW-30 on the next day of handing over the seal by FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 134 of 164 PS M.S. Park him to PW-30. He did not record statement of PW-30 at the time of handing over seal.

336. It is pertinent to note that as per entries made in Ex.PW-28/A regarding deposit of exhibits vis-à-vis seizure memos of exhibits, the exhibits had been deposited with MHC(M) on the same day of seizure. And the seal was returned back to IO/PW-32 on the next day. Thus, this argument is of no consequence as the sealed exhibits were out of control of IO/PW-32 after depositing with MHC(M) and he received back the seal on the next day. Hence, there was no scope of manipulation of exhibits.

Exhibits not sent to FSL timely

337. Ld. Defence Counsels have argued that the exhibits were not sent to FSL timely, which infers that the investigating agency had manipulated the exhibits.

338. The relevant testimony of prosecution witnesses on this aspect is as follows.

First of all, concerned MHC(M)/PW-28 has tendered the relevant entries prepared at the time of deposit of case property in the malkhana and sending the same to FSL. No doubt could be created during cross-examination of MHC(M) or the witnesses who deposited the exhibits in FSL, in respect of safe custody of the case property.

339. During his cross-examination, PW-30 had denied the suggestion that FSL reports, Ex.PW-29/A and Ex.PW-26/A, filed with the challan are manipulated since no blood stains were found on both the knives, which were examined under the said reports Ex.15 and Ex.3 respectively.

340. PW-32, during his cross-examination, deposed that the document Mark PW-

32/D1 i.e. forwarding letter to FSL is the copy of letter sent and signed letter FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 135 of 164 PS M.S. Park must have already been received at FSL. Thus, there was no occasion of abovesaid document bearing the date, signature of sender and dispatch number. He voluntarily stated that the acknowledgement of abovesaid parcels submitted with FSL dated 19.06.2013 is Mark PW-32/P1. PW-32 denied the suggestion that the articles were planted and manipulated, that is why, those were not sent to FSL timely.

341. Though, it is correct that investigating agency should send the exhibits to FSL earliest possible. However, it is worth noting that in the FSL report, Ex.PW-29/A, it has been inter-alia stated that blood could not be detected on clothes of accused Tarif and of accused Gufran. Further, no DNA profile could be generated from the knife [recovered at the instance of A-2]. Had the investigating agency manipulated the exhibits, then the clothes of A-5 and A-6 and knife recovered at the instance of A-2 might have also contained same DNA profile as generated from the source of exhibit '14' i.e. blood gauze of deceased. Similarly, it might not have been the case that blood could not be detected on the clothes of A-2 and on the knife recovered at the instance of A-3, as reported in FSL report, Ex.PW-26/A. Thus, the argument of manipulation of exhibits does not hold water.

Site plan

342. PW-32 deposed that he inspected the spot at the instance of PW-1 and prepared site plan without scale at his pointing out i.e. Ex.PW-1/D-4. During his cross- examination, PW-32 stated that he had prepared the rough site plan, Ex.PW-1/D-4, at his own with the assistance of some staff members. Ld. Defence Counsels have argued that the site plan, Ex.PW-1/D-4, has been prepared by PW-32 on his own.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 136 of 164 PS M.S. Park

343. The Court is of the view that PW-32 by the expression 'on his own' meant that site plan is in his handwriting, rather than the specifications made in the site plan were incorporated without inputs from PW-1. It is worth mentioning that in his examination-in-chief, he had categorically stated that he prepared site plan, Ex.PW-1/D-4, on pointing out of PW-1. Further, PW-1 too, during his cross-examination, deposed that the whole site plan, Ex.PW-1/D-4 was prepared in his presence. However, the Court is in agreement with submissions made by Ld. Defence Counsels that the above site plan, Ex.PW-1/D-4, does not contain the position of accused persons or of PW-1 or of deceased. Further, it does not contain any street light or source of light in the house. It is pertinent to note that in the scaled site plan, Ex.PW-14/A, the positions of accused persons and PW-1 have been specifically shown. Even otherwise, if PW-32/IO did not mention some aspects in site plan, Ex.PW-1 /D-4, the same might have occurred due to rush in conducting investigation into the case from different angles, at the particular time of preparation of site plan. Moreover, testimony of PW-1 cannot be brushed aside due to such lapse of IO. So far as the aspect of street light or source of light in the house is concerned, the same has already been dealt with while scrutinizing the testimonies of PW-1, PW-6, PW-8 and PW-10.

344. Further, PW-32 has deposed that on 24.05.2013, PW-14 on the pointing out of PW-1 and himself (PW-32) took rough notes and measurements. During his cross-examination, PW-32 deposed that in scaled site plan, he had himself observed the points as H, I and J when he had visited the spot of incident. While, other points A to G had been pointed out by PW-1. He further deposed that in the site plan, it had not been mentioned as to from how much distance, the deceased had been shot. This may be lapse on part of IO/PW-32. However, FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 137 of 164 PS M.S. Park he has mentioned the distance between the point 'C', from where PW-7 was fired upon and point 'B', where PW-7 fell down from stairs and also between point 'C' and point 'I', where the empty cartridge was found.

345. Even otherwise, the above lapse does not go to the root of case of prosecution, in view of trustworthy testimonies of PW-1, PW-6 and PW-7, who had witnessed the incident inside the workshop. In this regard, the prosecution has relied upon the precedent of Yogesh Singh (supra), wherein the Hon'ble Supreme Court has held that:

Besides, the judgment of this Court in Prithvi Vs. Mam Raj, (2004) 13 SCC 279, is an authority for the proposition that site plan is not a ground to disbelieve the otherwise credible testimony of eye-witnesses.

Finger/Chance prints

346. Ld. Defence Counsels have argued that IO did not lift chance prints from the spot of incident. During his cross-examination, PW-32 deposed that he did not give any application for lifting finger prints from lathi seized vide Ex.PW-30/B, knife seized vide Ex.PW-30/Z and another knife seized vide Ex.PW-30/A-18. It is worth noting that lathi had been seized from the spot soon after the incident and there was no doubt about the identity of accused, who had used the same during incident. Similar is the observation regarding cricket wickets. So far as knives are concerned, those had been sent by the IO for forensic examination. Thus, the Court does not find any lapse on the part of investigating agency on this aspect.

Non-joining of independent witness

347. Ld. Defence Counsels have argued that the investigating agency did not join any independent witness into the investigation of the case, when admittedly, FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 138 of 164 PS M.S. Park several persons had gathered at the spot of incident. Further, at the time of recovery of knives and magazine too, no independent witness was joined.

348. In this regard, the prosecution has relied upon the precedent of Yogesh Singh (supra), wherein the Hon'ble Supreme Court has held that:

50. The learned counsel for the respondents has also sought to assail the prosecution version on the ground of lack of independent witnesses. We are not impressed by this submission in the light of the observations made by this Court in Darya Singh Vs. State of Punjab, AIR 1965 SC 328 = 1964(7) SCR 397, wherein it was observed:

"It is well-known that in villages where murders are committed as a result of factions existing in the village or in consequence of family feuds, independent villagers arc generally reluctant to give evidence because they are afraid that giving evidence might invite the wrath of the assailants and might expose them to very serious risks. It is quite true that it is the duty of a citizen to assist the prosecution by giving evidence and helping the administration of criminal law to bring the offender to book, but it would be wholly unrealistic to suggest that if the prosecution is not able to bring independent witnesses to the Court because they are afraid to give evidence, that itself should be treated as an infirmity in the prosecution case so as to justify the defence contention that the evidence actually adduced should be disbelieved on that ground alone without examining its merits."

349. The Court is also reminded of the observations of the Hon'ble Supreme Court in Appabhai v. State of Gujarat, AIR 1988 SC 696, that:

11. [E]xperience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether -in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 139 of 164 PS M.S. Park

350. In the present case, there was deadly assault upon the deceased by his neighbours, wherein one accused was carrying pistol, two were carrying knives, one was carrying lathi and two were carrying cricket wickets. In such circumstance, it is highly likely that no person from the neighbourhood would come forward to join the investigation conducted at the spot after occurrence of the incident. Further, the incident had occurred at midnight. So, it is likely that no passer-by would have been available near the spot. Similarly, the investigating agency might not have found independent witness to join the investigation at the time of recovery of other weapons of offence.

351. So far as the incident is concerned. The incident had occurred inside the workshop of deceased and the same had been witnessed by the persons present inside the workshop at that time. Thus, there was no scope of any independent witness to come forward to depose about the incident.

Non-examination of witnesses

352. Ld. Defence Counsels have argued that the prosecution did not examine the actual subscribers of mobile numbers through which calls were made at 100 number and consequently, DD numbers 4-A, 5-A and 6-A were recorded.

353. The Hon'ble Supreme Court in Rajesh Yadav v. The State of Uttar Pradesh, in Criminal Appeal Nos. 339-340 of 2014 decided on 04.02.2022, has held that:

31. A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice.

Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 140 of 164 PS M.S. Park

354. The Court has already dealt this aspect in detail while appreciating the testimonies of PW-1, PW-8 and PW-10. Thus, this does not cause any dent to the case of prosecution. Moreover, the prosecution has produced CAF details of all three mobile numbers with name and addresses of the subscribers. Applying the above precedent, the accused persons could have examined them, in support of their defence, or in other words, to discard the testimony of PW-1, PW-8 and PW-10 in this regard. Similarly, the argument, that how could the persons belonging to rich family would be using mobile numbers issued in the name of other persons, has no force.

Motive

355. Ld. Defence Counsels have argued that prosecution has failed to prove any motive of the accused persons for commission of the alleged offence. The prosecution has examined PW-16/Ashu Chaudhary in this regard. He has deposed that A-2 had given him Rs.1,20,000/- against mortgage of his (PW-16) vehicle i.e. WagonR bearing no. DL5CH4979. The said dealing had been done through the deceased. Later on, PW-16 required his vehicle back. But, deceased told him that A-2 was not returning the vehicle. Thereafter, the said vehicle could be returned to PW-16 with the intervention of police officials. At that time, PW-16 handed over Rs.1,10,000/- to A-1 (father of A-2). During his cross-examination, PW-16 deposed that one document was prepared between him and A-2 in respect of aforesaid transaction, wherein deceased was a guarantor. This transaction had taken place in the year 2012.

356. The above version of PW-16 leads to infer that there had been a dispute regarding return of vehicle of PW-16, which had been pledged to A-2 by him through the deceased. It is worth noting that during his cross-examination, the FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 141 of 164 PS M.S. Park accused persons did not controvert any of the amounts mentioned by PW-16 i.e. Rs.1,20,000/- given by A-2 to PW-16 at the time of pledge of vehicle and Rs.1,10,000/- given by PW-16 to A-1 (father of A-2) at the time of return of the vehicle. Though, PW-16 has not explained as to in what circumstances, A-2 or A-1 had agreed to return the vehicle, even when less amount was repaid by him (PW-16) than the principal amount. Yet, if it has so happened that A-1 or A-2 had agreed to return the vehicle under some undue pressure, it can be inferred that there might have been some hurt feeling amongst the parties due to such dealing.

357. PW-1 has also deposed about dispute between A-2 and deceased on the issue of one WagonR car deal and due to this, the present crime was committed. PW-1 has further stated that deceased had suffered loss of Rs.80,000/- in this deal. In fact, deceased had pledged one WagonR car (belonging to PW-16) to A-2 and on this issue, there was some dispute regarding payment of money between deceased and A-2. The accused persons did not specifically controvert the above version of PW-1 during his cross-examination. Thus, the testimonies of PW-16 and of PW-1 corroborate each other to the effect that there was pledge of vehicle by PW-16 to A-2 and a dispute ensued due to the said pledge. However, PW-16 did not specifically mention about any loss of Rs.80,000/- to the deceased in the said deal. Moreover, PW-1 has also not explained as to in what manner the deceased bore a loss of Rs.80,000/- in the said deal. Since PW-1 was not privy to the contract between A-2 and PW-16 and he has also not claimed that he was present in any of the transactions of granting loan to PW-16 or return of the amount by him, hence, it cannot be conclusively held that deceased had incurred a loss of Rs.80,000/- in the said deal.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 142 of 164 PS M.S. Park

358. Furthermore, PW-8 too, during his cross-examination, has stated that around 1½ - 2 years back, deceased and someone from family of A-1 had verbal altercation over the issue of transaction relating to some vehicle.

359. Ld. Counsel for the family members of deceased has stated that the question may be asked as to what was the triggering point on the day of incident, which led the accused persons to kill the deceased. He has pointed out that A-1 in his disclosure statement, Ex.PW-30/K, has provided an answer to the above question. A-1 has disclosed about the dispute between the deceased and A-2 regarding pledge of WagonR car. Due to which, deceased used to taunt by calling them thieves. Further, on 21.04.2013, there was engagement of A-3 and deceased had objected to placing tent in the gali in front of his (deceased) house. Further, his (A-1) relative Yunus [PW-9] had parked his vehicle, near wall of DDA Flats, M.S. Park, which was at some distance from the shop of deceased. After the abovesaid function, they saw that two tyres of his vehicle had been punctured. They had suspicion that deceased had done the same. Thereafter, accused persons discussed that deceased had crossed his limits and he should be given a lesson. Ld. Counsel for the family members of deceased has further argued that the prosecution has proved about the dispute between A-2 and deceased on the issue of pledge of vehicle. Further, PW-9 has deposed about puncture of tyre of his car after the function of engagement of A-3. This must have been triggering point.

360. Ld. Defence Counsels have argued that the prosecution has not led any evidence to prove the aspects touched upon in the disclosure statement of A-1, which per se is inadmissible in evidence.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 143 of 164 PS M.S. Park

361. Though PW-9 has deposed about puncture of tyre of his car and his testimony to this effect has remained uncontroverted from the side of accused persons. Yet there is no evidence on record that the said puncture had caused a suspicion in the minds of accused persons that the deceased had done the same. At this stage, one aspect is worth noting that the accused persons have claimed that there was function of engagement of A-3 in the house of A-1 to A-5. During cross-examination of PW-10, she deposed that she had attended reception party of A-2 (Javed) with deceased at Community Hall in M.S. Park. Thus, earlier, the family of deceased had visiting terms with the family of accused nos.1 to 5.

362. During cross-examination of PW-30, it was put to him on behalf of A-6 that whether he (PW-30) had seen lot of chairs kept in Gali no. 10, when he reached there, which were kept since on that day, the engagement ceremony of A-3 had taken place in which about 1000 people were invited. It is pertinent to note that no suggestion was put to any brother of deceased i.e. PW-6 or PW-8 and wife of deceased i.e. PW-10 that they had also been invited in the function of engagement of A-3. When A-1 had invited about 1000 people for the said function, but he did not invite his next door neighbour for the same, it leads to infer that the accused no. 1 to 5 were not having good feelings towards the deceased and his family. On the same hand, it does not mean that PW-6, PW-7, PW-8 and PW-10 had deposed against the accused persons out of any enmity as the same has not been so suggested to them and further, why they would let actual assailants scot free just because they, probably, did not have cordial relations with their neighbours A-1 to A-5.

363. The above observations do not conclusively prove the motive of accused persons to commit the alleged offence. However, it is trite law that mere absence of proof of motive for commission of a crime cannot be a ground to FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 144 of 164 PS M.S. Park presume the innocence of an accused if the involvement of the accused is otherwise established. The precedent laid down by the Hon'ble Supreme Court in Arjun Mallik v. State of Bihar, 1994 Supp (2) SCC 372, has been relied upon, which states that:

10. [I]n this connection it may first be pointed out that mere absence of proof of motive for commission of a crime cannot be a ground to presume the innocence of an accused if the involvement of the accused is otherwise established.

364. The observations of the Hon'ble Supreme Court in the case of Yogesh Singh (supra) are also relevant:

46. [I]t is a settled legal proposition that even if the absence of motive, as alleged, is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, motive loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance.

Defence of accused persons

365. It has already been observed while appreciating the testimonies of PW-8 and PW-10 that the accused persons did not produce any evidence to prove their defence as suggested by them to PW-8 and PW-10. Further, the accused persons did not bring anything on record to show that the witnesses PW-1, PW-6, PW-7, PW-8 and PW-10 have deposed against them due to any enmity or vested interest. Further, it is not the case of accused persons that they had initiated any action against their alleged false implication in the present case by the investigating agency or by PW-1 on the basis of whose statement, present FIR was registered. Further, the accused persons did not provide any cogent FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 145 of 164 PS M.S. Park explanation, in respect of incriminating evidence available against them, in their statements recorded under Section 313 Cr.P.C.

366. The observations of the Hon'ble Supreme Court in the case of Ramji Singh (supra) are also relevant against the argument of false implication of the accused persons:

17. [I]n this case we have come to the conclusion that the written complaint was recorded immediately after the occurrence. There was no time to concoct a false case implicating those who were not involved. The fact that Sarman Singh was murdered is not disputed. The only question is whether it was the accused persons who murdered him or somebody else. Once we believe that PWs 1 and 2 are eyewitnesses, then there is no reason to hold that the appellants were falsely implicated. They are all named in the written complaint as well as in the FIR which was recorded at the earliest. Their version is corroborated by the version of PW 4, who though not an eyewitness reached the spot at about 12.45 PM and then scribed the complaint. In our view this complaint depicts what actually happened.

19. [I]n this case two of the witnesses have spoken up and their evidence has been corroborated on all counts. It may be true that their relations with the accused may not have been cordial but the evidence does not show that the enmity or dispute between these two witnesses and the accused was of such a nature that these two witnesses would make false statements only to settle scores with the appellants thereby leaving the real culprits to go scot free. In our opinion merely because these witnesses are interested witnesses their testimony cannot be discarded.

367. Further, A-4 in his statement recorded under Section 313 Cr.P.C. has stated that the deceased had several enemies as his wife was a Hindu and it was an inter- faith marriage. This aspect has already been taken up while appreciating the testimony of PW-10. It is reiterated that the accused persons did not lead any evidence to prove the said version of A-4. Further, A-4 has claimed that he had good relations with deceased and he was his surety in case FIR no. 24/2011, PS Seelampur. Surprisingly, when DW-1 produced copy of FIR of the abovesaid case, he admitted the suggestion put to him by Ld. Addl. PP for the State that the present FIR was registered against unknown person. The accused persons FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 146 of 164 PS M.S. Park did not lead any other evidence to show that A-4 had been the surety of deceased in the abovesaid case.

368. A-5 in his statement recorded under Section 313 Cr.P.C. has stated that he used to work with deceased in a hotel, two years prior to the alleged incident. He had left the said job as police officials used to visit the said work place. Perhaps there were some cases against the deceased. It is pertinent to note that such version of A-5 was not put to PW-10/wife of deceased during her cross- examination. It is reiterated that the accused persons did not lead any evidence to prove the abovesaid version of A-5.

369. The accused no. 1 has examined two other witnesses i.e. DW-2 and DW-3. First of all, the Court stands guided by the precedent laid down by the Hon'ble Supreme Court in Anand Ramachandra Chougule v. Sidarai Laxman Chougala, 2019 SCC online SC 974, that:

9. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt.

370. The Hon'ble Supreme Court in State of Haryana v. Ram Singh, 2002(1) R.C.R. (Criminal) 443, has held that:

Incidentally be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one - the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 147 of 164 PS M.S. Park

371. The testimony of DW-2 shows that he has not mentioned specific date of engagement of his daughter with A-3. However, this fact stands proved that there was function of engagement of A-3 on 21.04.2013. But, DW-2 is not certain as to till what time he alongwith his 2-3 relatives remained at the house of A-1. He himself has stated that he did not remember the exact time when they left. Even otherwise, DW-2 has not deposed that during the relevant time of commission of the alleged incident, the accused persons i.e. A-1 to A-6 or any of them were/was with him. Thus, testimony of DW-2 does not prove anything in favour of accused persons.

372. Similarly, DW-3 did not mention specific date when he attended the engagement of son of A-1. He has stated that he could not tell the exact time when he left the function. However, it may be probably 11.45 p.m. - 12.00 night. It is reiterated that the accused persons no. 1 to 5 were neighbours of deceased and admittedly, A-6 was also present in the house of A-1 to A-5 for attending the function. The incident has occurred at 12.05 a.m. Thus, the testimony of DW-3 too does not provide any rescue to accused persons as he had already left prior to the timings of occurrence of incident.

Post-Mortem Report

373. Post-mortem report of the deceased, Ex.PW-13/A, contains following observations:

External ante-mortem injuries:

1. Lacerated wound measuring 2.5 x 0.2 cm x bone deep over right temporal region.

2. Avulsed lacerated wound of size 8 x 2 cm x bone deep over right temporo -

occipital region.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 148 of 164 PS M.S. Park

3. Lacerated wound measuring 4 x 0.2 cm x bone deep over right parietal region, 11 cm from right ear and 4 cm from midline.

4. Lacerated wound measuring 4 x 0.2 cm x bone deep over right parietal region, 13 cm from right ear and 1 cm from midline.

5. Lacerated wound of size 4 x 0.2 cm x bone deep over right fronto-parietal region.

6. Lacerated wound measuring 4 x 0.2 cm x bone deep over midline frontal region.

7. Lacerated wound measuring 3.5 x 0.1 cm x bone deep in midline occipital region.

8. Lacerated wound measuring 2 x 0.1 cm x bone deep over left temporal region.

9. Lacerated wound measuring 2.4 x 0.1 cm x bone deep over right forehead, 1.5 cm from midline and just above right eyebrow.

10. Lacerated wound measuring 2.5 x 0.1 cm x bone deep over right forehead, 2.5 cm from midline and 4.5 cm above right eyebrow.

11. Reddish abrasion of size 0.6 x 0.2 cm anteriorly, just above right knee joint.

12. Reddish abrasion of size 2 x 1 cm anteriorly over right leg, 15 cm below right knee joint.

13. Reddish abrasion measuring 1 x 0.5 cm, 16 cm below right knee joint.

14. Reddish abrasion of size 1.5 x 0.5 cm, over left knee joint.

15. Reddish abrasion of size 3 x 2 cm, anteriorly over left leg, 9.5 cm above ankle joint.

16. Reddish abrasion of size 5 x 4.5 cm over anteromedial aspect of left leg, 12.5 cm above ankle joint.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 149 of 164 PS M.S. Park

17. Multiple linear reddish scratch abrasions are present over back, in an area of 30 x 18 cm. Abrasions are nine in number with the upper end being 32 cm below occipital protuberance and lower end being 5 cm above natal left with size varying from 15 cm in length to 29 cm in length.

18. Reddish abrasion measuring 4.5 x 1 cm over left abdomen.

19. Incised stab wound measuring 7 cm x 0.2 cm x 12 cm, with clean cut margins vertically over left chest. Upper end is 3.5 cm below left nipple and 13 cm from midline and is blunt. Lower end is acute. The wound is directed upwards, backwards and medially. The track of the wound goes cutting the skin, subcutaneous tissues and muscles, costal cartilage of 4th and 5th rib in midclavicular line, pericardium and cutting the anterior wall of right ventricle, passing through right ventricle and cutting the posterior wall of right ventricle near apex. Extravasation is present throughout the track.

20. Incised stab wound measuring 2.5 cm x 0.2 cm x 3.5 cm, with clean cut margins vertically over left lower back. Upper end is 17 cm from midline, 4 cm above posterior superior iliac spine and is blunt. Lower end is acute. The wound is directed upwards, forwards and medially. The track of the wound goes cutting the skin, subcutaneous tissues and muscles. No major blood vessel is cut. Extravasation is present throughout the track.

374. The doctor has remarked that 'the cut marks present on shirt as mentioned earlier corresponds with injury no. 19 and 20 respectively and the tears present over back of shirt corresponds with injury no. 17'. Further, time since death is about half a day. The cause of death has been opined as 'hemorrhagic shock as a result of ante-mortem injury to heart as mentioned in injury no. 19, which is produced by single edged sharp cutting weapon and is individually sufficient to FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 150 of 164 PS M.S. Park cause death in ordinary course of nature. All injuries are ante-mortem in nature. However, injury nos. 1 to 10 are also collectively sufficient to cause death in ordinary course of nature. Injury nos. 19 and 20 are produced by single edged sharp cutting/stabbing weapon. Injury nos. 1 to 16 are produced by blunt force impact. Injury no. 17 is produced by pointed weapon.

375. During his cross-examination, PW-13 has deposed that he did not test for presence of alcohol in the blood/viscera of the deceased, as the stomach did not show any sign of presence of alcohol. No question was put to PW-13 on behalf of the accused persons to doubt the observations made by him in post-mortem report.

Conclusion

376. First of all, the Court, with utmost respect, wishes to record that the precedents relied upon on behalf of accused persons on various aspects of this case do not provide any rescue to them. However, the Court has followed the guidelines laid down in those precedents as well as in the precedents relied upon by the prosecution, while appreciating the testimonies of witnesses and circumstances of the present case.

377. Before proceeding to decide the culpability of accused persons, one cardinal principle of criminal jurisprudence is worth mentioning. The Hon'ble Supreme Court in the case of Yogesh Singh (supra) has held that:

15. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. Here, it is worthwhile to reproduce the observations made by Venkatachaliah, J., in State of U.P. Vs. Krishna Gopal and Anr., (1988) 4 SCC 302:

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 151 of 164 PS M.S. Park "25. ... Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response.

Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.

26. The concept of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice." [See also Krishnan Vs. State, (2003) 7 SCC 56; Valson and Anr. Vs. State of Kerala, (2008) 12 SCC 24 and Bhaskar Ramappa Madar and Ors. Vs. State of Karnataka, (2009) 11 SCC 690].

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18. Similarly, in Shivaji Sahebrao Bobade & Anr. Vs. State of Maharashtra, (1973) 2 SCC 793, V.R. Krishna Iyer, J., stated thus:

"The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community."

378. It has been held that testimony of PW-1, who witnessed the entire incident, and testimony of PW-6 and PW-7, who witnessed initial phase of incident, are reliable and trustworthy. Further, the testimony of PW-6 and PW-7 provided corroboration to the testimony of PW-1 on material particulars till they (PW-6 and PW-7) remained at the spot. Further, testimonies of PW-8 and PW-10 have also provided corroboration on peripheral particulars related to the incident.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 152 of 164 PS M.S. Park The Court has already dealt with other material circumstances, too, which corroborate and strengthen the testimonies of witnesses, especially of PW-1, PW-6 and PW-7. Thus, from the testimonies of prosecution witnesses and other circumstances discussed hereinabove, the prosecution has proved its case against the accused persons beyond reasonable doubt that in the intervening night of 21-22.04.2013 at about 12.00 midnight, the deceased alongwith his brother/PW-6, his uncle/PW-7 and his friend/PW-1 was present at his shop situated at B-105, New Modern Shahdara, Delhi. Six persons i.e. A-1 to A-6 came in front of the workshop. All the accused persons were in agitated mental condition and were equipped with weapons i.e. A-1 was carrying lathi, A-2 and A-3 were having knives, A-4 was having a pistol and A-5 and A-6 were carrying cricket wickets. They came upstairs and started abusing and beating the deceased. Meanwhile, PW-7 started raising hue and cry. Then, A-4 loaded his pistol. He fired upon PW-7, but he fell on the road as he was standing near the stairs. The bullet did not hit him. Thereafter, PW-7 ran away from that place. PW-6 tried to save the deceased, but A-5 and A-6 hit him with cricket wickets. PW-6 pushed A-5 and A-6 and jumped downstairs on the road and thereafter, he too ran away. The deceased also fled inside the workshop and A-4 fired upon him for around 5-6 times. The deceased took shelter at the side of a printing machine inside that workshop. All the accused persons also went inside the workshop. PW-1 requested the accused persons to leave the deceased, but they did not melt down. The accused persons surrounded the deceased near the printing machine. A-2 hit the deceased with knife on his back. A-3 hit him with knife on the left side of his chest. A-5 and A-6 hit him with cricket wickets and A-1 hit him with lathi. PW-1 tried to stop A-1 by holding his hand, but he shrugged him off with force and hit him with lathi. A-1 threatened PW-1 to either leave the place or he would kill him also. A-1 exhorted other accused FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 153 of 164 PS M.S. Park persons to kill the deceased and to ensure that he should not remain alive. All this process continued for 10-15 minutes. The deceased was lying in pool of blood in unconscious condition without any movement. When the accused persons became sure of lack of any moment in the body of deceased, they left the spot. While leaving the workshop, they smashed Honda City car of the deceased, which was parked on the road in the gali.

379. Now, the Court proceeds to examine the applicability of Section 149 and/or Section 34 IPC in the present case. The Hon'ble Supreme Court in the case of Rohtas (supra), has observed that:

19. In fact, the law on this point has continuously been delved into and reiterated by this Court from time to time. A three Judge Bench of this Court in Karnail Singh v. State of Punjab, held that:

"8. It is true that there is substantial difference between the two sections but as observed by Lord Sumner in Barendra Kumar Ghosh v. Emperor I.L.R. 52 Cal. 197, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under section 149 overlaps the ground covered by section 34. If the common object which is the subject matter of the charge under section 149 does not necessarily involve a common intention, then the substitution of section 34 for section 149 might result in prejudice to the accused and ought not therefore to be permitted.

But if the facts to be proved and the evidence to be adduced with reference to the charge under section 149 would be the same if the charge were under section 34, then the failure to charge the accused under section 34 could not result in any prejudice and in such cases the substitution of section 34 for section 149 must be held to be a formal matter." (emphasis supplied) xxxxx

22. Although both Section 34 and 149 of the IPC are modes for apportioning vicarious liability on the individual members of a group, there exist a few important differences between these two provisions. Whereas Section 34 requires active participation and a prior meeting of minds, Section 149 IPC assigns liability merely by membership of the unlawful assembly. In reality, such 'common intention' is usually indirectly inferred from conduct of the FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 154 of 164 PS M.S. Park individuals and only seldom it is done through direct evidence.

xxxxx

26. That apart, even the requirements of Section 34 of IPC are well established as the attack was apparently premeditated. The incident was not in a spur of the moment. The appellants had previously threatened the complainant with physical harm if he were to attempt to irrigate his fields. Their attack on 25.01.1998 was thus preplanned and calculated. There is nothing on record to suggest that the complainant caused any provocation. Specific roles have been attributed to each of the appellants by the injured and the solitary eyewitness, establishing their individual active participation in the crime.

380. The Hon'ble Supreme Court in the case of Karnail Singh (supra), has further observed that:

9. Examining the record from this point of view, the findings are that both the appellants who had long standing enmity with Gurbaksh Singh, got on the roof of his house and set fire to it, with the deceased and Mst. Bholan coupled up within. If it was their object under section 149 to burn the house and cause the death of Gurbaksh Singh, that was also their intention under section

34. On the facts of this case there can be no difference between the object and the intention with which the offences were committed. Our attention was also drawn to the wording of the charge which while mentioning section 149 also sets out that in prosecution of the common object the accused intentionally set fire to the house and murdered Gurbaksh Singh and Mst.

Bholan. We are. satisfied that the substitution of section 34 in the place of section 149 in the charge by the court below has resulted in no prejudice to the appellant and it is therefore not open to objection. [Emphasis Supplied]

381. Thus, common object as envisaged under Section 149 IPC and common intention as mentioned under Section 34 IPC both may exist in particular circumstances. The Hon'ble Andhra Pradesh High Court in the case of In Re:

P. Ramulu (supra) has observed that:

26. [W]hile the common intention is the decisive test under Section 34, the common object of the members is the basis of Section 149. While membership of an unlawful assembly is the foundation of the liability under Section 149, participation in the criminal act is the gist of the offence under Section 34. In some cases, the object of the accused may be lawful, while they have a common intention to commit an offence for achieving that object. The facts FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 155 of 164 PS M.S. Park constituting the common intention and those of common object may in other cases overlap.

382. Coming back to the present case, from the conduct of accused persons, who were six in number, i.e. arriving at the shop of deceased, while armed with deadly weapons including pistol and knives, starting beating the deceased at once, firing upon PW-7 and beating the persons (PW-6 and PW-1) who came for the rescue of deceased, firing by A-4 upon the deceased, threatening PW-1 to leave else he would 'also' be killed, exhorting the accused persons to kill the deceased, participation of all accused persons in assaulting the deceased brutally with their respective weapons (A-4 had already fired upon the deceased) and causing as many as 20 injuries upon the body of deceased including vital parts of his body i.e. 10 injuries on head region and 7 cm x 0.2 cm x 12 cm stab injury on chest; coupled with the observations in post-mortem report that cause of death is 'hemorrhagic shock as a result of ante-mortem injury to 'heart' as mentioned in injury no. 19, which is produced by single edged sharp cutting weapon and is individually sufficient to cause death in ordinary course of nature and injury nos. 1 to 10 are also collectively sufficient to cause death in ordinary course of nature; no other inference can be drawn than that the accused persons had common object to commit murder of the deceased. Thereby, it is made out that the accused persons had formed an unlawful assembly. It is trite law that it is not necessary that there should be a pre-concert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. (The precedents of Mizaji and Another v. The State of U.P., AIR 1959 SC 572 and Najabhai Desurbhai Wagh v. Valerabhai Deganbhai Vagh, (2017) 3 SCC 261, have been followed).

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 156 of 164 PS M.S. Park

383. Further, from the abovesaid conduct, it is also made out that all the accused persons were armed with weapons and participated in the commission of offence by assaulting the deceased with the respective weapon carried by them. A-4 had also participated by firing upon the deceased. This leads to infer that all the accused persons had shared common intention too to kill the deceased.

384. At this stage, the observations of the Hon'ble Supreme Court in the case of Duleshwar (supra), are worth noting that:

14. Formation of an unlawful assembly with common object being the basic ingredient for invoking Section 149 IPC, the first point to be determined is as to whether formation of such an unlawful assembly is established. In a comprehension of the evidence on record, in our view, the fact that a large assembly was indeed formed, where the members were armed with weapons including lathis and tangiyas and they indulged in assault over Govind Singh, is evident on the face of record with the consistent testimonies of the eye-

witnesses PW-2 Santosh Kumar, PW-3 Bhuwan, PW-4 Rajesh and PW-5 Prahlad Yadav. Even the witness declared hostile i.e., PW-9 Hiradhar has also testified to the fact of assault by an assembly over Govind Singh; he even named at least two of the assailants. We shall come to the question of identity of each of the accused person a little later. Suffice it to observe at this juncture that the fact of formation of an unlawful assembly with weapons is amply established. It has rightly been argued on behalf of the respondents with reference to Lalji's case (supra), that once formation of unlawful assembly at the time of committing of offence is established, the question of specific role of an individual member of the assembly is rendered secondary. In other words, the prosecution need not prove any specific overt act on the part of each and every member of that assembly. It is also established beyond doubt in the present case that the deceased Govind Singh was brutally beaten black and blue with extensive injuries all over his body, including contusions, lacerated wounds and multiple fractures of various bones and ribs. The post-mortem report and the medical opinion that Govind Singh died due to shock with rupture of liver and fracture of ribs leave nothing to doubt that he was done to harsh and gruesome death with merciless thrashing, including multiple use of blunt weapons like lathi. Thus, the fact that there had been an assembly with the common object of battering Govind Singh to death is hardly of any doubt. The manner of causing death of Govind Singh makes it clear that the intention of assailants forming such assembly had only been to cause death and the acts were done with that intent alone. The question of identity of the particular accused as the member of this assembly would, of course, FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 157 of 164 PS M.S. Park require consideration to find if the prosecution case is proved beyond reasonable doubt against him or not.

[Emphasis supplied]

385. The observations of the Hon'ble Andhra Pradesh High Court in the case of In Re: P. Ramulu (supra) are also worth noting that:

30. [T]he injuries found on the body indicate that the deceased must have been mercilessly thrashed with sticks and the Doctor is of the view that death was due to shock resulting from the cumulative effect of the injuries. On the facts we have no doubt that there was a pre-arranged plan to murder Thirupathi and that the accused came armed with sticks to carry out their intention.

386. Thus, the ingredients of Section 302 IPC read with Section 149/34 IPC stand proved against all accused persons.

387. Though it is not required to be discussed whether the case may fall under Part I of Section 304 IPC, yet for leaving no scope of any doubt, it is held that in the given circumstances, there appears no reason to consider the present one to be a case of culpable homicide not amount to murder. The observations of the Hon'ble Supreme Court in the case of Duleshwar (supra), are worth noting that:

24. Before concluding, we may also deal with the submissions made in the alternative for converting the conviction to the one under Part I of Section 304 IPC. In our view, the submissions in this regard remain bereft of substance and could only be rejected. As noticed, it is evident that the deceased Govind Singh was brutally beaten black and blue by a large assembly of assailants and he sustained extensive injuries all over his body, including contusions, lacerated wounds and multiple fractures of various bones and ribs and he died due to shock with rupture of liver and fracture of ribs. The manner of execution of its object by the assembly with dragging of the deceased by legs and merciless thrashing, including multiple use of blunt weapons like lathi, leave nothing to doubt that the intention of assailants forming such assembly had only been to cause death and the acts were done with that intent alone. In the given set of facts and circumstances, there appears no reason to consider the present one to be a case of culpable homicide not amount to murder. In our view, conviction of the accused persons, against whom the case of the FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 158 of 164 PS M.S. Park prosecution is established beyond reasonable doubt, for offences under Sections 147, 148 and 302/149 remains unexceptionable.

388. The accused persons have been further charged that in pursuance of their common object, they all attacked the deceased being equipped with pistol, knives, cricket wickets and lathi. The description of weapons carried by respective accused has been proved by the prosecution that A-2 and A-3 were carrying knives, A-4 was carrying pistol, A-1 was carrying lathi and A-5 and A- 6 were carrying cricket wickets. It is reiterated that injury no. 1 to 16 were produced by blunt force impact i.e. by the weapons carried by A-1, A-5 and A-6. Thus, lathi and cricket wickets were used by A-1, A-5 and A-6 as deadly weapons.

389. The Hon'ble Delhi High Court in Raj Kumar v. State & Ors., 2000 IAD Delhi 185, has observed that: 'It has to be borne, in mind that a hockey or a lathi becomes a deadly weapon, the moment the same is used on some vital part of the body'.

390. Thus, the ingredients of offence of 'rioting, armed with deadly weapon' i.e. offence punishable under Section 148 IPC read with Section 149 IPC stand proved against all accused persons.

391. It has been proved that the place of occurrence was the shop of deceased. The accused persons entered in the said shop in pursuance of their common object to kill the deceased and they had also shared common intention to kill him. Thus, the ingredients of offence punishable under Section 449 IPC read with Section 149/34 IPC stand proved against all accused persons.

FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 159 of 164 PS M.S. Park

392. It has been proved that the accused persons damaged car no. DL5CB6484 parked outside the workshop of deceased. It has been observed that the accused persons had common object to cause death of deceased. But, causing damage to the abovesaid car was not proved to be their common object. However, from the circumstances proved that they were in agitated condition and carrying deadly weapons, it can be inferred that the accused persons knew that damage may be caused to the articles of the deceased too in prosecution of the said common object. This can also be inferred from the fact that glasses of the workshop of deceased had also been broken. Thus, ingredients of Section 149 IPC are attracted on this aspect. Accordingly, the ingredients of offence punishable under Section 427 IPC read with Section 149 IPC stand proved against all accused persons.

393. The accused persons have been further charged under Section 506(2)/34/149 IPC. It has been proved that A-1 threatened PW-1 to either leave the place or he would kill him also. It was A-1 only who had assaulted PW-1. Thus, the offence under Section 506(2) IPC would be attributed to A-1 only as it has been held that common object of the accused persons was to kill the deceased and they had shared common intention too to do the same. Thus, the act of criminal intimidation by A-1 cannot be attributed to other accused persons. Thus, the ingredients of offence punishable under Section 506(2) IPC stand proved against A-1.

394. Accused no. 4/Arif has been charged for offence punishable under Section 307 IPC and under Section 27 Arms Act. It has been proved that at the time of incident, A-4 was carrying a pistol. He had fired a shot upon PW-7. Though the bullet did not hit him as he fell on the road. Further, an empty cartridge was also recovered from outside the shop of deceased. The scaled site plan Ex.PW- FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 160 of 164 PS M.S. Park 14/A shows the point 'C', from where A-4 fired at PW-7 and point 'B', where PW-7 intervened and fell down through iron stairs. The distance between points 'C' and 'B' has been mentioned as '199 cm'. Thus, A-4 fired upon PW-7 from a very close range. It must have been known to the accused Arif that had the bullet hit PW-7 on vital part of his body, the same might have resulted in his death.

395. The Hon'ble Supreme Court in Vasant Vithu Jadhav v. State of Maharashtra, (2004) 9 SCC 31, has held that:

In the case at hand the accused fired gun from a very close range of about 6-8 feet aiming at the victim when he was sleeping. The bullet broke into pieces and three such pieces struck the accused. Both intention and knowledge in terms of Section 307 can be attributed to the accused. Therefore, the High Court was justified in recording conviction of the accused-appellant under Section 307 IPC.

396. The Hon'ble Supreme Court in The State of Madhya Pradesh v. Kanha @ Omprakash, AIR 2019 SC 713, has elaborately explained the ingredients of Section 307 IPC and has held that:

11. Several judgments of this Court have interpreted Section 307 of the Penal Code. In State of Maharashtra v. Balram Bama Patil, this Court held that it is not necessary that a bodily injury sufficient under normal circumstances to cause death should have been inflicted:

"9...To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 161 of 164 PS M.S. Park An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof." (Emphasis supplied) This position in law was followed by subsequent benches of this Court. In State of M P v. Saleem, this Court held thus:

"13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt." (Emphasis supplied)

397. Applying the above precedents in the present case, the ingredients of Section 307 IPC stand proved against A-4. It is worth noting that the offence under Section 307 IPC would be attributed to A-4 only as it has been held that common object of the accused persons was to kill the deceased and they had shared common intention too to do the same. Thus, the act of firing by A-4 upon PW-7 cannot be attributed to other accused persons. Further, since the accused no. 4 has used the pistol during the commission of present offence, the ingredients of offence punishable under Section 27 Arms Act also stand proved against him (A-4).

398. Accused no. 6/Gufran and accused no. 5/Tarif have been charged for offence punishable under Section 323/34 IPC. It has been proved that when PW-6 requested the accused persons to desist from beating the deceased, then A-5 and A-6 gave him beating with cricket stumps on his several parts of body. Such beating given by A-5 and A-6 must have caused hurt to PW-6/Tahir. In these circumstances, even if PW-6 had not got himself medically examined, the same does not affect the culpability of the accused persons, A-5 and A-6, for FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 162 of 164 PS M.S. Park commission of offence punishable under Section 323 IPC. Since both accused persons had given beatings to PW-6 with cricket wickets, hence, it shall be inferred that at that particular moment, they shared common intention to scare PW-6 and also caused hurt to him in furtherance of their common intention. It is worth noting that reasoning for not attributing the offence under Section 323/34 IPC to other accused persons would be the same as mentioned in preceding paragraph, wherein A-4 has been held liable for offence punishable under Section 307 IPC. Thus, the ingredients of offence punishable under Section 323/34 IPC stand proved against A-5 and A-6.

399. Accused no. 1/Israil Pehalwan has been charged for offence punishable under Section 323 IPC. It has been proved that when PW-1 tried to stop A-1 by holding his hand, he (A-1) shrugged him off with force and hit him with his lathi. His testimony is supported with his MLC. It is worth noting that reasoning for not attributing the offence under Section 323 IPC to other accused persons would be the same as mentioned in preceding paragraph, wherein A-4 has been held liable for offence punishable under Section 307 IPC. Thus, the ingredients of offence punishable under Section 323 IPC stand proved against A-1.

400. Accordingly, all accused persons (Israil Pehalwan, Javed, Abid, Arif, Tarif and Gufran) are held guilty for the commission of offence punishable under Section 302 read with Section 149/34 IPC, under Section 148 read with Section 149 IPC, under Section 449 read with Section 149/34 IPC and under Section 427 read with Section 149 IPC. Accused Israil Pehalwan is further held guilty for the commission of offence punishable under Section 323 and Section 506(2) IPC. Accused Arif is further held guilty for the commission of offence punishable under Section 307 IPC and Section 27 FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 163 of 164 PS M.S. Park Arms Act. Accused Tarif and Gufran are further held guilty for the commission of offence punishable under Section 323 read with Section 34 IPC.

Announced in open Court                                (Naveen Gupta)
on 20th day of September, 2022                Special Judge (PC Act) (CBI) -12
                                             Rouse Avenue Court Complex, Delhi

Note: In the present case, final arguments had been concluded on 06.09.2022 and the matter was reserved for clarifications, if any/judgment on 20.09.2022. Pursuant to order No. 29/G-1/Gaz.IA/DHC/2022 dated 16.09.2022, the undersigned was transferred from the Court of ASJ - 05, Shahdara District, Karkardooma Courts to the Court of Special Judge (PC Act) (CBI) -12, Rouse Avenue Court Complex. It was directed vide Sr. No. 2 of notes of the above order that 'the judicial officer under transfer shall notify the case in which he has reserved judgment/order before relinquishing the charge of the Court in terms of posting/transfer order'. Thus, the present case was notified accordingly. Today, judgment has been pronounced under the signature of Special Judge (PC Act) (CBI) -12, Rouse Avenue Court Complex.

(Naveen Gupta) Special Judge (PC Act) (CBI) -12 Rouse Avenue Court Complex, Delhi FIR No. 101/13 State vs. Israil Pehalwan and Ors. Page No. 164 of 164 PS M.S. Park