Delhi District Court
State vs . (1) Mohsin Saifi S/O. Mohd. Farooq on 17 October, 2012
1
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI
SC No.107/11.
FIR No.1004/04.
PSROHINI.
U/S.307/34 & 120B IPC & 25/27 ARMS ACT.
STATE VS. (1) MOHSIN SAIFI S/O. MOHD. FAROOQ
SAIFI R/O. E114, VIJAY VIHAR, PHASEI,
DELHI.
(2) MOHD. FAROOQ S/O. ISHLAMUDDIN
SAIFI R/O. E114, VIJAY VIHAR, PHASEI,
DELHI.
(3) SARTAZ S/O. ALI AHMAD, R/O. H.NO.
E132, VIJAY VIHAR, PHASEI, DELHI.
ORDER ON SENTECE
17.10.2012.
Present: Shri S.C. Sroai, ld. Addl. PP for the State.
Convicts Mohsin Saifi, Farooq and Sartaz are produced
from JC.
Shri Z. Babar Chauhan, ld. Counsel for all the convicts.
Complainant/Injured Mohd. Tahir in person.
State vs Mohsin Saifi & Others/ FIR No.1004/04 page 1 of 38
PSRohini
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1. Vide judgment dated 25.09.2012, convict Mohsin Saifi
was convicted for offence u/s. 307 IPC and whereas convicts Farooq
and Sartaz were convicted for offence punishable u/s. 307/34 IPC.
2. It is submitted by ld. Counsel for convict Sartaz that,
convict is a young man of 35 years of age. He has wife and three
minor children aged 6 years, 3 years and 10 months. He has also
old aged parents to look after. He is not a previous convict neither he
is involved previously in any crime. He is only bread winner of his
family. A lenient view may kindly be taken.
3. It is further submitted by ld. Counsel for convict Farooq
that, convict is aged about 54 years. He has been suffering from
kidney disease and high blood pressure. He is having wife, two sons
one is married, two grand daughters and old age father to look after.
He is not a previous convict neither he is involved previously in any
crime. He is only bread winner of his family. He remained in JC
during trial for about 11 days and now after conviction he is in JC
since 25.09.2012. A lenient view may kindly be taken.
4. It is further submitted by ld. Counsel for convict Mohsin
that convict is aged about 28 yrs. He is having his wife, two minor
daughters aged about 3 year and one year to look after. He is
State vs Mohsin Saifi & Others/ FIR No.1004/04 page 2 of 38
PSRohini
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neither a previous convict nor involved previously in any crime. He is
only bread earner of his family. He remained in JC for about 1 ½
years during the trial and now after conviction he is in JC since
25.09.2012.
5. Ld. Counsel for the convicts submit that they have also
compromised the matter with the complainant/injured Mohd. Tahir,
and further submits that they are ready to pay any amount as
compensation to the complainant/ injured Mohd. Tahir to
compensate him for his injury and agony, therefore, lenient view may
kindly be taken.
6. On the other hand, ld. Addl. PP for the State submits
that convict Mohsin Saifi has attempted to commit murder of Mohd.
Tahir by firing upon him at the instigation convicts Mohd. Farooq and
Mohd. Sartaz, hence, considering the gravity of the offence, convicts
do not deserve any leniency.
7. I have considered the arguments and also heard the
submissions of complainant/injured Mohd. Tahir, who submits that
he has forgiven the convicts and he has no objection in case lenient
view may be taken against convicts.
8. The convict Mohsin Saifi has fired bullet on the head of
State vs Mohsin Saifi & Others/ FIR No.1004/04 page 3 of 38
PSRohini
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complainant/ injured Mohd. Tahir. Thus, he has attempted to commit
his murder. This offence is very grave, but since now complainant
has compromised and forgiven the convicts and the fact that he
remained in JC for approximately 15 months. Therefore, in order to
maintain peace and harmony and considering the facts stated
above, I take lenient view and sentence the convict Mohsin Saifi for
the period already undergone by him and imposed a fine of Rs.
10,000/ and further direct him to pay an amount of Rs.2,00,000/ as
compensation to the injured Mohd. Tahir as per provisions of Section
357 Cr.P.C.
9. The role of convict Mohd. Farooq and Mohd. Sartaz is
only that on their exhortation, convict Mohsin Saifi had fired bullet on
the head of complainant/ injured Mohd. Tahir. But since now
complainant has compromised and forgiven the convicts and the fact
that the convict Mohd,. Farooq remained in JC for approximately one
month, whereas convict Mohd. Sartaz remained in JC for about 23
days, therefore, considering the said facts, I take lenient view and
convicts the convict Mohd. Farooq and Mohd. Sartaz for the period
already undergone by them and imposed a fine of Rs.10,000/ each
and and direct them to pay an amount of Rs.50,000/ each, as
State vs Mohsin Saifi & Others/ FIR No.1004/04 page 4 of 38
PSRohini
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compensation to the injured Mohd. Tahir as per provisions of Section
357 Cr.P.C.
10. Convicts be released from JC forthwith if not required in
any other case. Copy of the judgment and that of order on sentence
be given to the convicts today itself. However, they they are directed
to furnish personal bond and surety bond of Rs.25,000/ each in
compliance of provisions of Section 437A Cr.P.C. within 15 days.
Copy of Judgment and that of order on sentence be given to the
convicts. File be consigned to record room. File be consigned to
record room.
Announced in the open court (Sanjeev Kumar)
On 17.10.2012 Addl. Sessions Judge
Rohini Courts: Delhi.
State vs Mohsin Saifi & Others/ FIR No.1004/04 page 5 of 38
PSRohini
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IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI
SC No.107/11.
FIR No.1004/04.
PSROHINI.
U/S.307/34 & 120B IPC & 25/27 ARMS ACT.
STATE VS. (1) MOHSIN SAIFI S/O. MOHD. FAROOQ
SAIFI R/O. E114, VIJAY VIHAR, PHASEI,
DELHI.
(2) MOHD. FAROOQ S/O. ISHLAMUDDIN
SAIFI R/O. E114, VIJAY VIHAR, PHASEI,
DELHI.
(3) MOHD. SAGIR S/O. MOHD. SIDDIQI, R/O.
E77, VIJAY VIHAR, PHASEI, DELHI.
(4) SARTAZ S/O. ALI AHMAD, R/O. H.NO.
E132, VIJAY VIHAR, PHASEI, DELHI.
Date of Institution in this Court :15.03.2005
Date of Arguments:01.09.2012
Date of Judgment :25.09.2012
State vs Mohsin Saifi & Others/ FIR No.1004/04 page 6 of 38
PSRohini
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JUDGMENT:
1. Brief facts of the prosecution are that on 19.11.2004 at about 1:25PM, an information was received in PPVijay Vihar, PS Rohini from PCR that at E107, Vijay Vihar near Sahil Property one person has been shot with bullet. The said information was reduced into DD No.23, which was marked to SI Jaipal Singh and he reached at the spot and came to know that injured Mohd. Tahir Khan had already been shifted to the BSA Hospital. He reached there, collected the MLC of the injured and met with him and then he recorded his statement.
In his statement Injured Mohd. Tahir Khan had stated that, at about 1.15 pm he came out from his house to offer Namaz at Avantika Mosque and when he reached near his scooter, he saw Farooq his son Mohsin Saifi, Sartaz and one other person, whose name he does not know, but can identify him, were standing there. Farooq had asked his son to shoot him (shale ko goli maar do). Sartaz and other persons have also asked Mohsin Saifi to finish him up (kaam tamam kar do). On this Mohsin Saifi took out one katta (country made pistol) and fired towards his temple, bullet hit him on his right temple and he fallen down and lost his consciousness and State vs Mohsin Saifi & Others/ FIR No.1004/04 page 7 of 38 PSRohini 8 gained his consciousness in hospital. He further stated that Shan Mohd. Ali, Shakeel, Idrish, Aashif and Nissar had also conspired in said shooting.
2. SI Jaipal Singh prepared the rukka and on the basis of said statement and send the same for registration of FIR. The FIR No.1004/04 was registered in PS Rohini, u/s. 307/120B/34 IPC. SI Jaipal Singh went to the spot and after inspection prepared the site plan of the spot, arrested the accused Mohsin Saifi and Farooq from their residence i.e. at E114, Vijay Vihar and on during search of accused Mohsin Saifi and Farooq, one country made pistol and one empty cartridge were also recovered, which he seized. Doctor at hospital took out one bullet lead from the skull of the injured Mohd. Tahir Khan and which was handed over to him, he seized the same. He also recorded confessional statement of Mohsin Saifi. Later on investigation was marked to Additional SHO, Rajbir Singh Malik, who searched the other witnesses and got deposited the exhibits in the FSL. He also searched the remaining accused persons, but they could not traced, hence, he filed the chargesheet against accused Mohd. Saifi and Farooq Saifi, where accused Sartaz and Sagir were kept in column no.2. Both the accused persons were put to trial. State vs Mohsin Saifi & Others/ FIR No.1004/04 page 8 of 38 PSRohini 9
3. On perusal of the file I found that case was committed to the court of Sessions by the ld. MM on 04.03.2005, but same was remanded back by my ld. Predecessor vide order dated 31.03.2005 on the ground that there is no order passed by the ld. MM about the other two accused persons.
4. During the pendency of the case, Hon'ble High Court granted anticipatory bail to accused persons Sagir and Sartaz and who appeared before the court and they were formally arrested. The case was again committed to the court of Sessions vide order dated 21.10.2005 and all the four accused persons were again put to trial and after compliance of the provisions of Section 207 Cr.P.C. Thereafter, it was assigned to this court.
5. Vide order dated 03.05.2006, charges have been framed against all the accused persons u/s. 307/34 IPC, and charge u/s. 25/27 Arms Act was also framed against accused Mohsin Saifi, to which they pleaded not guilty and claimed trial.
6. In order to prove its case, prosecution examined sixteen witnesses. PW1 HC Anil Kumar is Duty Officer, who recorded the FIR No.1004/04 Ex.PW1/B. PW2 Mohd Tahir is the complainant. PW3 Mohd. Taukir and PW7 Mohd. Salim were the eyewitnesses. State vs Mohsin Saifi & Others/ FIR No.1004/04 page 9 of 38 PSRohini 10 PW4 HC Satbir Singh had jointed the investigations with the first IO SI Jaipal Singh. PW5 HC Jagbir Singh is the MHC(M). PW6 Ct. Janesh Kumar had deposited the exhibits in the FSL. PW8 HC also joined the investigations with the first IO SI Jaipal Singh. PW9 Inspector Jaipal Singh is the first IO. PW10 Inspector Rajbir Malik is the second/last IO. PW11 Sagar Preet the then Additional DCP who granted the sanction u/s. 39 Arms Act. PW12 Puneet Puri, Senior Scientific Officer is the ballistic expert. PW13 Shashi Bala is also Senior Scientific Officer, who proved the Biological Report and Serological Report. PW14 Dr. Rekha Diwan had appeared in place of Dr. Prijesh Philips, who gave opinion regarding the injuries of the injured. PW15 Dr. N.K. Singh prepared the MLC of the injured. PW16 Madan Mohan, Statistics Assistant BSA Hospital who has produced the record of the injured.
7. Besides this prosecution has also proved statement of Mohd. Tahir Khan as Ex.PW2/A, endorsement of Duty Officer on rukka Ex.PW1/A, FSL Ex.PW1/B, site plan of the spot Ex.PW9/B, sketch of katta and cartridge recovered from the accused Mohsin Saifi Ex.PW4/E and seizure memo of the same as Ex.PW4/F, seizure memo of bullet lead recovered from the skull of the injured State vs Mohsin Saifi & Others/ FIR No.1004/04 page 10 of 38 PSRohini 11 Ex.PW8/A. Confessional statement of accused Mohsin Saifi Ex.PW8/B. Seizure memo of old complaint given by the injured as Ex.PW2/C. Seizure memo of blood stained shirt and vest of injured Ex.PW2/B. Arrest memo of accused Farooq Ex.PW4/A and Mohsin Saifi Ex.PW4/B. Personal search of accused Farooq Ex.PW4/C and that of Mohsin Saifi Ex.PW4/D. DD No.23 Ex.PW9/A. Malkhana register containing entry number 2841 Ex.PW5/A, MLC of the injured Ex.PW14/A, Ex.PW16/A. Admission discharge slip of injured Ex.PW16/B (collectively).
8. Statement of accused persons u/s. 313 Cr.P.C recorded in which all the incriminating evidence put to the accused persons, to which they all denied the incriminating evidence and claimed themselves innocent.
9. Arguments heard from Shri S.C. Sroai, ld. Addl. PP for the State and from Shri R.P. Khatana, ld. Counsel for all accused persons.
10. The prime witness of the prosecution case is PW2 Tahir Khan, who is the complainant as well as, Injured, PW3 Mohd. Taukir and PW7 Mohd. Salim, who were the eyewitnesses of the incident.
PW1 Mohd. Tahir had deposed in his examination in State vs Mohsin Saifi & Others/ FIR No.1004/04 page 11 of 38 PSRohini 12 chief that on 19.11.2004 at about 1.15 pm, he left his residence A107, Vijay Vihar, PhaseI, Delhi for going to Avantika Mosque to offer Namaz. His scooter was parked outside his house when he reached near his scooter to start it and then Farooq, Mohsin, Sartaj and Sagir were found standing there. He knew all of them, but at the time of making statement before the police, but he could not recollect the name of Sagir. PW2 further stated that accused Farooq directed his son to fire bullet upon him. Sartaz and Sagir also told to Mohsin Saifi that, he should be finished, thereafter, Mohsin Saifi fired bullet upon him from one country made Katta which he was holding in his hand. Bullet struck on his right temporal region. Then he fell unconscious and when he regained consciousness, he found himself in BSA Hospital. Police came to him in the hospital and when he was conscious his statement Ex.PW2/A was recorded. SI also seized his blood stained shirt and vest memo Ex.PW2/B. On 25.04.2011, he told the name of fourth person, who was present at the time of incident i.e. accused Sagir. He further stated that he made four/five complaints to the police against Shan Ahmd, Sartaz, Shakil, Asif and Ali Ahmad, which police had seized vide seizure memo Ex.PW2/C. PW2 further deposed that earlier he was Sadar (President) of the State vs Mohsin Saifi & Others/ FIR No.1004/04 page 12 of 38 PSRohini 13 mosque and accused persons wanted to remove him from that post and on that account accused persons threatening him and later on committed the crime by hitting bullet to me on 19.11.2004.
In his cross examination by ld. Defence counsel, he stated that he remained president of the mosque from six months to half a year. He does not know any other mohammadan person are living in the area or not. He admitted that he was not recalled to participate in TIP to identify Mohd. Sagir. PW2 further stated that he regained consciousness in the hospital at about 2pm/3pm and remained there for about two/three days. Police did not arrest the accused in his presence. He stated that he has fully conscious when police recorded his statement Ex.PW2/A. He stated that he does not remember whether in his statement Ex.PW2/A he has stated the name of Farooq and his residential address, similar is his answer about accused persons Mohsin Saifi and Sartaz. He further stated that front portion of the scooter at the time of its parking was on the north side. He cannot say on which site his face will be at the time of starting of the scooter. He cannot say the distance of the accused persons, when he came to start his scooter. He even cannot say distance of about 100 yds or more or less. Accused persons were State vs Mohsin Saifi & Others/ FIR No.1004/04 page 13 of 38 PSRohini 14 standing on the corner of the shop of Dimple. The shop was situated in front of his house at about 20 feet distance. He took no time when accused persons exhorted accused Mohsin Saifi and Farooq to fire upon him. He admitted the suggestion that accused Mohsin and Farooq never aspired to become the president of the mosque.
11. PW3 Mohd. Taukir had deposed that on 19.11.2004 at about 1/1.15pm he and Saleem were standing in the corner of the house of one Tahir. Tahir also came there at that time all the four accused persons present in the court were standing near the house of one Dimple. On seeing us Farooq told Mohsin to shoot him. Then accused Sartaj and Sagir said "kar de saale ka Kaam tamam", upon which accused Mohsin Saifi took out a country made pistol and fired at him. He again said that Frooq told Mohsin Saifi to fire at Tahir and bullet hit Tahir, thereafter, all the accused persons ran away from the spot, they took Tahir to BSA Hospital. Salim remained at the spot.
In his cross examination by ld. Defence counsel he denied the suggestion that he is an interested witnesses. He stated that his residence is situated at a distance of about 30kms from the place of incident. On that day, he went to the house of Salim, his nephew, and reached there at about 10/11 am. He and Salim State vs Mohsin Saifi & Others/ FIR No.1004/04 page 14 of 38 PSRohini 15 reached at the spot about four/five minutes before the actual incident. At the time of incident, the face of the scooter was towards the northern side i.e. towards the mosque. When Tahir received injuries he was towards the side of his house and his face was towards the scooter. Four accused persons were standing on the right side of injured Tahir at the time of incident. Tahir received bullet injury on his right temporal region. He denied the suggestion that injured received injuries on his left side. He lifted the injured Tahir with the help of Salim and during that process his shirt had stained with blood. They reached the hospital within 1015 minutes. He did not tell the name of the assailants to doctor. The name of the mother of the injured recorded by the doctor as who brought the injured to the hospital. He remained in the hospital for about 1½ hours. On 19.11.2004 police officials met him in the hospital at about 1.45 pm. He narrated the incident to the police on 19.11.2004. Neither the police demanded his blood stained clothes nor he accompanied the police to the spot.
12. PW7 Mohd. Salim had also deposed the same facts as deposed by PW3. He stated that on 19.11.2004 he alongwith Injured standing at the corner of the house Tahir. Tahir came out of his State vs Mohsin Saifi & Others/ FIR No.1004/04 page 15 of 38 PSRohini 16 house and went upto the scooter. Accused Farooq exhorted to Mohsin Saifi 'Maar Sale Ko goli'. Accused persons Sartaz and Sagir said that "kar de iska kaam tamam". Accused Mohsin Saifi fired shot at temple/kanpati of Tahir and Tahir Fell down on the ground and became unconscious. Taukir and mother of injured took injured to the hospital. He remained at the spot. After that Chowki Incharge Jai Pal came at the spot and he narrated the whole incident.
In his cross examination by ld. Addl. PP for the State he admitted that accused persons were having enmity with the injured on the issue of management of mosque and they had threatened the injured Tahir earlier also. He stated the police that this attack on Tahir was at the instance and under the conspiracy of Shan Ahmad, Shakil,. Asif and Ali Ahmad with accused persons. He further admitted that due to lapse of time he forgotten to mention these facts in his examination in chief.
In his cross examination by ld. Defence counsel he stated that his house is at distance of about 2030 feet from the place where the firing took place. Before the incident, he was present at his house and Tahir was sitting with him, when Tahir came out of his house, the scooter was parked outside his house State vs Mohsin Saifi & Others/ FIR No.1004/04 page 16 of 38 PSRohini 17 and its face was towards the left of Tahir. In order to start the scooter, Tahir had gone to the other side of the scooter, in that situation, the face of Tahir would have been towards his house. But he voluntarily stated that Tahir had not gone to the side of kick of the scooter. Tahir had fallen at the place between his house and scooter. Scooter was parked only 23 feet from his house. Blood had not fallen at the spot, it took them 24 minutes to pick up the injures Tahir from the place where he had fallen. He was removed in a car being driven by Taukir. He did not accompany SI Jaipal Singh and other police officials to the house of accused Mohsin Saifi and Farooq. There was one more police official with SI Jaipal Singh, but he does not know his name as SI Jai Pal Singh. He did not take any police officials during the absence of SI Jaipal Singh to the house of the accused. Accused Farooq and Mohsin Saifi were not arrested on his pointing out, but they were arrested in his presence. He has not pointed out the place of incident to the police at any point of time. He alongwith Taukir were standing towards the corner of the gali. He also stated the gali in question is about 10 feet wide.
13. Besides another important testimony of Inspector Jaipal Singh who was the first IO. He had stated that on 1911.2004 he was State vs Mohsin Saifi & Others/ FIR No.1004/04 page 17 of 38 PSRohini 18 posted at PS Gandhi Nagar (inadvertently mentioned, though he was posted at PS Rohini) on duty as ICPP, PS Vijay Vihar. At about 1.30pm, copy of DD No.23, Ex.PW9/A was assigned to him, he went to the spot with Ct. Satbir and Ct. Anil Kumar. He left Ct. Satbir at the spot and went to the BSA Hospital with Ct. Anil. He obtained the MLC of the injured Tahir Ex.PW2/A, made endorsement on the statement and prepared rukka and thereafter sent Ct. Anil for registration of the FIR and he arrived at the spot. At spot, Mohd. Salim met him and who claimed to be an eyewitness of the incident. He prepared the site plan of the place of occurrence Ex.PW9/B. Thereafter, he went to the house No.E114, Vijay Vihar, Delhi. He overpowered accused persons Mohsin Saifi and Farooq Saifi from their house. He arrested both of them vide memo Ex.PW4/A and Ex.PW4/B. He interrogated accused Mohsin Saifi and recorded his confessional statement Ex.PW8/B. In his personal search accused Mohsin Saifi got recovered one country made pistil alongwith five cartridges, which were found from his right dub. He had taken the custody of those arms and seized vide memo Ex.PW4/A, after sealing the same with the seal of JP. Thereafter, they reached at BSA Hospital, where doctor handed over to him lead of cartridge State vs Mohsin Saifi & Others/ FIR No.1004/04 page 18 of 38 PSRohini 19 having blood stains which was taken out from the wound of the injured and sealed with the seal of JP vide memo Ex.PW8/A. He identified the pistil as Ex.P1 and Cartridges as Ex.P4 and lead as Ex.P5.
In his cross examination, he denied the suggestion that he has introduced witness Salim and Taukir at the instance of complainant Mohd. Tahir. He stated that he do not recollect as to which side scooter was facing. He did not investigate whether the complainant was having his face towards his house or his back towards his house. He stated that he did not find any blood stained clothes on the spot. There was no question of lifting blood stained from the spot. The street where the incident took place was about 20/25 feet in width, scooter was about 810 feet away from the door of the complainant. He had shown the position of Tahir injured in the site plan Ex.PW9/B at point A, he had shown the position of accused Mohsin Saifi at point D in Ex.PW9/B. The distance between points A and D was about 2 feet. He further stated that he do not know the impact of the gunshot on the victim, he fired from the distance of two feet or from the 15 feet as this answer can be replied by the expert witness only. He further stated that he prepared site plan on the State vs Mohsin Saifi & Others/ FIR No.1004/04 page 19 of 38 PSRohini 20 same day at 3pm, but do not recollect whether he had shown the position of PWs in the site plan. He denied the suggestion that he was shown the possession of the PWs in the site plan since he had not seen the site plan. He do not recollect whether he has verified who removed the injured to the hospital. He admitted that on seeing the MLC he came to know that injured was brought to the hospital by his mother Sarvari Begum. He had not recorded the statement of Sarvari Begum. He also did not contact the PCR officials, who removed the injured to the hospital, when he reached at the spot he found number of persons were present there but none come forward claiming to be an eyewitness. He remained at the spot for about ten minutes and left for the hospital. He did not file any application to the doctor whether the injured was fit for statement or not. He voluntarily stated that doctor had written on the MLC itself. He does not remember whether operation about the injury had already been done or not. He further stated that he made the endorsement on the statement Ex.PW2/A after arrival at the spot and on that time no eyewitness except the complainant meet him. He stated that, he recorded the statement of Salim on 19.11.2004, thereafter, he had not recorded the statement of Salim on 1911.2004. He admitted the State vs Mohsin Saifi & Others/ FIR No.1004/04 page 20 of 38 PSRohini 21 suggestion that father's name of Farooq and residential address is not mentioned in the rukka Ex.PW2/A. He further stated that some secret informer pointed out the house of the accused. He do not know the name of the Farooq or Mohsin Saifi prior to the day of incident. The Katta was recovered in the personal search of the accused Mohsin Saifi during his sarsari talashi. Thereafter, he was interrogated and arrested.
14. Shri S.C. Sroai, ld. Addl. PP for the State has argued that from the testimony of PWs it is proved that accused Mohsin Saifi had fired bullet upon him with the intention to cause his death at the instigation of other accused persons. ld. Addl. PP for the State further contended testimony of PW2 is duly corroborated by testimony of PW3 Mohd. Taukir and PW7 Mohd. Salim. He further contended that recovery of country made pistol and cartridges by which accused Mohsin Saifi had fired bullet upon injured Mohd. Tahir is also other incriminating circumstances against the accused. Hence, prosecution has been able to prove the case against all the accused persons beyond reasonable doubts. Therefore, all the accused persons are liable to be convicted.
15. On the other hand, Shri R.P. Khatana, ld. Counsel for State vs Mohsin Saifi & Others/ FIR No.1004/04 page 21 of 38 PSRohini 22 the accused persons has argued that prosecution has failed to point out any previous enmity of accused Mohsin Saifi and Farooq with Injured Mohd. Tahir, so that, they would have any motive to shoot the injured. Learned counsel for the accused persons further contended that PW2 Tahir and PW7 Salim are the planted witnesses as they were not found at the spot on the day of incident or at the hospital and their testimonies were recorded after ten days of the incident, therefore, their testimonies cannot be relied upon. Ld. Counsel for the accused persons further contended that alleged recovery of the country made pistol and cartridges from the accused Mohsin Saifi is planted as it is very unlikely that after such a serious incident that accused Mohsin Saifi will keep the pistol in his dub waiting for the police to arrive and apprehend him. He further contended that no independent public witness was joined by the police at the time of recovery which make recovery suspicious. Ld. Counsel for accused persons further contended that injured Tahir has named accused Sartaz and Sagir falsely out of the previous enmity. He further argued that no TIP has been conducted for the identification of the accused persons and they have been first time identified in the court, therefore, their identification is not reliable. He State vs Mohsin Saifi & Others/ FIR No.1004/04 page 22 of 38 PSRohini 23 further argued that the prosecution has failed to examined the Sarvari Begum, who got admitted the injured Tahir in the hospital and neither PCR officials were examined. Hence, all the circumstances creates doubt about the prosecution case. Hence, accused persons are entitled to be acquitted.
FINDING
16. I have considered the rival arguments and gone through the record. The star witness of the prosecution case are PW2 Mohd. Tahir (the injured himself), PW3 Mohd. Taukir and PW7 Mohd Salim, who are alleged to be eyewitnesses. First I shall discuss the testimony of PW3 Mohd. Taukir and PW7 Mohd. Salim, who are the eyewitnesses of the incident.
17. PW3 Mohd. Taukir had testified that he and PW7 Mohd.
Salim were standing in the corner of the house of Mohd. Tahir and at that time, all the four accused persons were standing near the house of one Dimple. On seeing that Farooq told Mohsin Saifi to shoot him. Later on he stated that Farooq told Mohsin Saifi to fire upon Mohd. Tahir, whereas Sartaz and Sagir said to finish him. In his cross examination he had admitted that he was residing 30kms away from State vs Mohsin Saifi & Others/ FIR No.1004/04 page 23 of 38 PSRohini 24 the place of incident and on that day he had come to meet his nephew Salim. He has not explained how he identified the four persons are Mohsin Saifi, Farooq, Sartaz and Sagir. He had not stated that they were known to him prior to incident. No TIP of accused persons have been done, which means he has first time seen the accused persons in the court after the incident i.e. after four years. It would be very difficult for him to identify the accused persons after a gap of four years when he had only seen them for few seconds or minutes at the time of incident. He stated that he had brought the injured to the hospital, but PW9 Inspector Jaipal Singh in his testimony had not deposed that he had seen PW3 in the hospital. His statement was not recorded on the day of incident, which indicates that he did not meet with SI Jaipal Singh on the day of incident. No reason has been explained by either PW3 or PW9 SI Jaipal Singh, whey statement was not recorded, if PW3 met with SI Jaipal Singh. Neither in the MLC Ex.PW14/A, it is mentioned that he brought the injured to the hospital. As in the MLC Ex.PW14/A, it is mentioned that Sarvari Begum had brought injured Tahir to the hospital. IO had not examined the mother of the injured to corroborate the testimony of PW3 Mohd. Taukir that he has brought State vs Mohsin Saifi & Others/ FIR No.1004/04 page 24 of 38 PSRohini 25 the injured to the hospital with him. PW9 Inspector Jaipal Singh had stated that no eyewitness met him in the hospital on the day of incident. His statement was recorded by the police on 29.11.2004 i.e. after ten days of the incident.
PW10 Inspector Rajbir Malik who had recorded the statement of Mohd. Taukir had stated that he on local inquiry he came to know the incident was witnessed by Salim and Taukir, but he had not stated anything, when he has conducted the said local inquiry. Who told him that PW3 & PW7 are the eyewitness. PW2 Injured Tahir had also not stated in his statement that PW3 Taukir and PW7 Salim were present at the spot, when the incident had happened.
18. Similarly PW7 Mohd. Salim also claimed to be an eyewitness, but his statement has also been recorded on 29.11.2004 i.e. after ten days. PW7 had not stated in his statement to the police and in their examination in chief state that, he is the relative of the injured Tahir, but in the cross examination, he had admitted that injured Tahir is his Behnoi (brother in law). Whereas PW3 has admitted that he and PW7 is his nephew. Hence, both PW3 & PW7 are relative of Mohd. Tahir. Therefore, they are interested witnesses. State vs Mohsin Saifi & Others/ FIR No.1004/04 page 25 of 38 PSRohini 26 The conduct of PW7 was very unnatural he did not take his brother in law to the hospital. Neither he met to the PW9 Inspector Jaipal Singh (then SI) at the spot, when PW9 first time visited the spot. He had failed to explain where he had gone. Though, PW9 Inspector Jaipal Singh had deposed in his testimony that PW7 met him at the spot, when he second time visited the spot, but he failed to explain, why he did not record the statement of PW7 on 19.11.2004 itself and why he has not joined PW7 as witness at the time of recovery of weapon of offence from accused Mohsin Saifi. PW8 HC Anil Kumar who accompanied with Inspector Jail Singh to the spot, both first time and second time on 19.11.2004 had not stated in his testimony that PW7 Mohd. Salim met them at the spot either in their first or second visit on 19.11.2004. Hence, I do not find testimony of PW3 & PW7 reliable that they were present at the spot at the time of incident. Both the witness are interested witnesses . It cannot be ruled out that they have been introduced later on to strengthen the case of the prosecution.
19. Now the only testimony which is material left is testimony of injured Mohd. Tahir (PW2). It is settled law that testimony of sole witness sufficient to convict a person, if court found State vs Mohsin Saifi & Others/ FIR No.1004/04 page 26 of 38 PSRohini 27 his testimony cogent and trustworthy. As it is held in Dinesh Tiwari @ Raju Cr.L.A.417/2000 dated 17.8.2000 passed by our own High Court that "It has been constantly held that as a general rule the court can and may act on the testimony of a single witness provided the evidence has a ring of truth and the same is cogent, credible and trustworthy."
20. From the deposition of PW2 Mohd. Tahir it is proved that at about 1.15 pm when he came out from his house to offer namaz, he found accused persons Mohsin Saifi, Farooq and Sartaz and one other person standing there. At that time, Farooq directed his son to fire bullet upon injured Tahir and accused Sartaz and fourth accused i.e. Sagir also told to Mohsin that, he should be finished and thereafter, accused Mohsin Saifi fired bullet upon him and bullet hit him on his right temporal region. Thereafter, he fell unconscious. As far as his testimony qua accused Mohsin Saifi is concerned, nothing has come out in his cross examination done at length, which could lead to discard his testimony. His testimony is duly corroborated by MLC.
21. The MLC Ex.PW14/A and other medical documents i.e. Ex.PW15/DA and Ex.PW15/DB of the injured Tahir corroborated the State vs Mohsin Saifi & Others/ FIR No.1004/04 page 27 of 38 PSRohini 28 testimony that he suffered bullet injury on his skull. In MLC Ex.PW14/A, it is mentioned that, 6cm long gutter wound entry on scalp 2cm super to right ear. Though, ld. Defence counsel has argued that there are manipulation in the MLC, which was later on produced by the Record Clerk of the BSA Hospital i.e. Ex.PW15/DA. However, opinion is not mentioned. In the cross examination, PW15 Dr. N.K. Singh had admitted that in the copy of MLC Ex.PW14/A there is no overwriting, which is in the Ex.PW15/DA, but, in my view, the said overwriting is merely pertains to the portion regarding the opinion given by doctor, as Dr. Prijesh Phillips, SR Surgery, who gave opinion, first cancelled his opinion, which is not readable and later on gave opinion "grievous in view of skull fracture". Since Dr. Prijesh could not be traced, as he left the services of the hospital, therefore, clarification regarding said overwriting could not be obtained. However, in my view, same is not much material, as from the MLC it is proved that bullet has hit on the skull of the injured Mohd. Tahir, therefore, even if, no opinion could have been given, court can presume that injury by bullet on such portions is sufficient to conclude that the injuries was caused with the intention to cause the death of the injured.
State vs Mohsin Saifi & Others/ FIR No.1004/04 page 28 of 38 PSRohini 29
22. As far as identity of accused persons is concerned, PW2 had taken the names of accused persons Farooq, Sartaz and Mohsin Saifi in his statement Ex.PW2/A and also identified them in the Court. Though, ld. Defence counsel has argued that no TIP of the accused was conducted and accused persons have been identified in the court only. But in my view TIP of accused persons is not necessary as accused persons Mohd. Farooq and Mohsin Saifi are the neighbourer of the PW2/Injured Tahir. Whereas PW2 had previous enmity with accused Sartaz as he had given number of complainant against him which are marked A to Mark D. Said fact of previous enmity has not even denied by accused Sartaz. Hence, in such circumstances, identity of accused persons except accused Sagir is not in question. TIP is material in cases where accused persons are not previously known to the witnesses. No reason has been assigned as to why PW2 Tahir would falsely named the accused persons. Life threatening attack has been made on his. He knew if he takes names of other person then real assailant would not be punished, which in my view PW2 Tahir would not want. His statement Ex.PW2/A has been recorded within one and half hour of the incident. Recording of prompt statement ruled out chances of State vs Mohsin Saifi & Others/ FIR No.1004/04 page 29 of 38 PSRohini 30 false implication. Hence, I held that from the testimony of PW2 it is proved that accused Mohsin Saifi had fired bullet upon PW2 Mohd. Tahir while accused Farooq and Sartaz and one other person exhorted him.
23. As far as identity of accused Sagir is concerned his name has not been taken by PW2 in his statement Ex.PW2/A. He had only stated that, there were four person. As far as testimony of other two eyewitnesses i.e. PW3 and PW7 is concerned I have already held them unreliable witnesses. In the complaints which were seized by police vide Ex.PW2/C name of accused Sagir is not mentioned. His name has been taken first time on 25.3.2008 i.e. after six days of incident. PW2 had not stated Sagir was previously known to him. No TIP of the accused has been conducted by the prosecution. PW2 had admitted that he first time seen the accused Sagir in the court. He hardly seen the accused for few minutes. His testimony recorded on 17.3.2008 i.e. after four years of incident. Hence, in such circumstances, identification of accused Sagir first time in Court does not inspire much confidence. Therefore, I give him benefit of doubt to accused Sagir that he was the fourth person, who was present at the spot and exhorted the accused Mohsin Saifi. State vs Mohsin Saifi & Others/ FIR No.1004/04 page 30 of 38 PSRohini 31
24. I am not agree with the contentions of ld. Defence counsel that other three accused persons did not share common intention with the accused Mohsin Saifi, therefore, they cannot be held liable for committing for attempt to murder. From the testimony of PW2 it is proved that all the three accused persons have exhorted the accused Mohsin Saifi to fire upon PW2.
25. In Harbans Kaur and Anr vs State of Haryana in Criminal Appeal Number 370/05, dated 01.03.2005, Hon'ble Supreme Court of India, has held that: "Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or State vs Mohsin Saifi & Others/ FIR No.1004/04 page 31 of 38 PSRohini 32 circumstantial, that there was plan or meeting of mind of all the accused persons to prearranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
As it originally stood the Section 34 was in the following terms:
"When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone."
In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all"
after the word "persons" and before the word "each", so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor (AIR 1945 Privy Council 118).
The Section does not say "the common intention of all", nor does it say "and intention common to all".
Under the provisions of Section 34 the essence of the State vs Mohsin Saifi & Others/ FIR No.1004/04 page 32 of 38 PSRohini 33 liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between act of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch.
Pulla Reddy & Ors. v. Stae of Andhra Pradesh (AIR 1993 SC 1899). Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying 34 it is not necessary to show some overt act on the part of the accused."
26. From the testimony of PW2 it is proved that four persons including were standing near the shop of Dimple. As per his testimony distance of shop of Dimple is about 20 feet from his house. He has further proved that, as soon as he came out of the house and reached near his scooter which was parked near the rd house. Accused Farooq, Sartaz and 3 person exhorted accused Mohsin Saifi to fire upon PW2 Mohd. Tahir. The approximate distance between him and accused must be less than 20 feet. Site State vs Mohsin Saifi & Others/ FIR No.1004/04 page 33 of 38 PSRohini 34 plan Ex.PW9/B also proved that shop of Dimple was just in front of the house of PW2. Distance was very less and he could easily hear the exhortation given by accused persons. Though, PW2 has filed no previous complaint against Mohsin Saifi and Farooq but it appears from the facts of the case that they have been roped in by accused Sartaz and other person. And therefore, after preplanning all the four persons had gathered outside the house of PW2 there they were waiting him to come out as they will be aware about the time when PW2 used to go go for Namaz. At the exhortation of Accused persons Farooq, Sartaz and other person, accused Mohsin Saifi fired bullet upon PW2 with the intention to kill him. Therefore, in my view accused Farooq, Sartaz and one other person shared common intention with accused Mohsin Saifi and at their instigations, accused Mohsin Saifi had fired the bullet upon injured Mohd. Tahir with the intention to kill him. Therefore, I held that accused persons Farooq and Sartaz guilty for offence punishable u/s. 307 IPC with the aid of section 34 IPC. As far as accused Sagir is concerned since prosecution has failed to prove beyond the identity of accused Sagir beyond reasonable doubt. Hence, I give him benefit of doubt and acquit him.
State vs Mohsin Saifi & Others/ FIR No.1004/04 page 34 of 38 PSRohini 35
27. Accused Mohsin Saifi has also been charged for offence punishable under Section 25/27 Arms Act. PW9 Inspector Jaipal Singh had deposed that after recording statement of injured, he reached at the spot and searched for accused persons named in the statement of injured/complainant. He went to E114, Vijay Vihar, where he overpowered accused Mohsin Saifi and in his personal search one country made pistol/katta alongwith five cartridges, which were recovered from the right side of dub of his wearing pant, which he seized vide seizure memo Ex.PW4/F. Similar facts has been deposed by PW8 HC Anil Kumar, who is only witness of recovery. On appreciation of their testimonies, I do not find their testimony reliable. He had stated that some secret informer pointed out at the house of accused. He had admitted that PW7 Salim met him at the spot, then why he did not ask the address of house of accused from PW7, as PW7 was the neighbour of both the accused persons. Furthermore, I am agree with the contention of ld. Defence counsel that only a fool will keep weapon of offence with him after much a long gap. The first thing an accused will do it if not apprehended to hide out the weapon of offence, but in this case accused is carrying the weapon of offence i.e. Katta in his dub of the pant even at the State vs Mohsin Saifi & Others/ FIR No.1004/04 page 35 of 38 PSRohini 36 house which wee very unnatural.
Furthermore, no independent witness has been joined by him at the time of recovery despite the fact that PW7 Salim met him at the spot, which make recovery of pistol and cartridge from accused Mohsin Saifi suspicious. In case, Haish Chander @ Billa V State, 1995 (2) CC Cases Page no.503, which was relied upon by our own High Court in Chander Pal V Sate, 1998 (2) JCC (Delhi) 207 has held that, "the discovery under Section 27 of the Indian Evidence Act in presence of subordinate police officers when the Investigating Officer is taking his subordinate constable as a witness for the incriminating discovery then the same become very doubtful. Very recently in Kamla Devi V State, 2012 (2) JCC 1457 also it is reiterated that recovery are inconsequential as no independent public witness was associated despite availability.
28. Furthermore, prosecution has failed to connect the recovery of pistol and cartridge with the offence. Ballistic report Ex.PW10/A only proved that katta Ex.P3 and empty cartridge Ex.P4 is the firearm, but it did not prove that same were used in firing upon PW2, as PW12 Puneet Puri, Senior Scientific Officer has stated in his testimony that, no opinion could be given whether the bullet in State vs Mohsin Saifi & Others/ FIR No.1004/04 page 36 of 38 PSRohini 37 question, which was recovered from the skull of PW2 Tahir, had been discharged to the country made pistol recovered from the accused, as the individual characteristic marks were insufficient for comparison and opinion. Hence, in such circumstances, I held that prosecution has failed to prove beyond reasonable doubt that pistol Ex.P3 is empty cartridge Ex.P4 have been recovered from the accused Mohsin Saifi or that same was used by him in commission of crime. Hence, I give benefit of doubt to accused Mohsin Saifi and acquit him from offence u/s. 25/27 Arms Act 1959.
CONCLUSION
29. In view of aforesaid facts and circumstances, I held accused Mohsin Saifi guilty for attempting to commit murder of PW2 Mohd. Tahir and convict him for offence u/s. 307 IPC. Whereas I convict both the accused Farooq and Sartaz for offence u/s. 307 with the aid of section 34 IPC. However, since prosecution has failed to prove beyond reasonable doubt that country made pistol Ex.P3 and cartridge Ex.P4 were recovered from his possession, therefore, I acquit him for offecne u/s. 25/27 Arms Act, 1959. State vs Mohsin Saifi & Others/ FIR No.1004/04 page 37 of 38 PSRohini 38
30. I also give benefit of doubt to accused Sagir as prosecution has failed to prove beyond reasonable doubt that he was the fourth person who had participated in the commission of crime, hence, he is acquitted from the charge of offence u/s. 307 IPC. He is on bail, therefore, his bail bond and surety bond are cancelled and his surety is discharged. However, he is directed to furnish his personal bond in the sum of Rs.10,000/ with one surety of like amount in compliance of provisions of Section 437A Cr.P.C. Case properties, if any, confiscated to the State. Now to come up for order on sentence.
Announced in the open court (Sanjeev Kumar)
On 25.09.2012 Addl. Sessions Judge
Rohini Courts: Delhi.
State vs Mohsin Saifi & Others/ FIR No.1004/04 page 38 of 38
PSRohini