Delhi District Court
Fir No: 259/2016, Ps: Jaitpur State vs . Sharukh And Other Page No. 1..Of 17 on 23 December, 2022
IN THE COURT OF SH. SONU AGNIHOTRI
ADDL. SESSIONS JUDGE (SOUTHEAST)03,
SAKET COURTS: DELHI
Case Registration No. 455/2022
CNR No: DLSE010066282022
FIR No. 259/2016
Police Station: Jaitpur
Under Section: 307/34 IPC and Section 174A IPC
STATE
VERSUS
1. SHARUKH
S/o Salim
R/o H. No. D1140, Gali No. 7, Near
Nargis Masjid, Khadda Colony, Jaitpur,
New Delhi.
2. SOHAIL @ FAIZAN
S/o Sharafat Hussain
R/o H. No. D508, Gali No. 4, Khadda
Colony, Jaitpur, New Delhi.
Date of institution : 05.05.2022
Date of Reserving judgment : 21.12.2022
Date of Pronouncement : 23.12.2022
Decision : Acquitted.
FIR No: 259/2016, PS: Jaitpur State Vs. Sharukh and Other Page No. 1..of 17
For State : Sh. F. M. Ansari, Learned Addl. Public Prosecutor.
For Defence: Sh. Saif Ali, counsel for accused Sharukh.
Sh. Mohd. Ahtasham, counsel for accused Sohail
@ Faizan.
JUDGMENT
1. Accused persons were committed for trial by court of Ms. Shikha Chahal, Ld. Metropolitan Magistrate11, South East District, Saket Courts, New Delhi, charge sheet having been filed against accused for commission of offence U/sec 307/34 IPC/ 174A IPC and Section 25/27 Arms Act.
2. On 05.05.2022, police report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) was put up before court of Ms. Shikha Chahal, Ld. MM, South East with a view to put accused on trial.
3. Charge U/sec 307/34 IPC was framed against accused persons on 24.08.2022 on the facts that on 30.05.2016 at about 08:00 PM in front of H. No. A-250/4, Jaitpur Extension Part-II, New Delhi both accused alongwith JCL "S" in furtherance of their common intention abused complainant Shravan Kumar Giri and when complainant opposed, accused persons started fighting with him and JCL 'S' fired on person of complainant FIR No: 259/2016, PS: Jaitpur State Vs. Sharukh and Other Page No. 2..of 17 Shravan Kumar Giri with fire arm with such intention or knowledge and under such circumstances that if by that act accused caused death of complainant Sharavan Kumar Giri, they would have been guilty of murder of complainant.
4. Charge U/sec 174A IPC was framed against accused Sohail @ Faizan on 24.08.2022 as accused failed to appear before court on 02.12.2016 at specified time in pursuance of proclamation issued U/sec 82 Cr. P. C on 28.09.2016 and accused was declared Proclaimed Offender on 02.12.2016.
5. Brief facts on the basis of which chargesheet in the matter was filed are as follows:
6. That 31.05.2016, HC Nirdesh Kumar during emergency duty received DD No. 50A whereupon he contacted caller and went to the spot i.e. ABlock, Gali No. 4, Jaipur Extension, PartII alongwith Ct. Rakesh Yadav where he met complainant Shravan Kumar Giri who got recorded his statement to him.
7. Complainant in his statement stated that he works in ITC.
He stated that today at about 08:00 PM, when he reached in his gali after his duty, he saw "S", Sohail, Shahrukh and three other boys sitting in a corner of Gali No. 4 who abused him whereupon he asked as to why they were abusing him on which Shahrukh held him by his caller and "S" pushed him away. He stated that when he protested, all the boys became ready to FIR No: 259/2016, PS: Jaitpur State Vs. Sharukh and Other Page No. 3..of 17 fight. He stated that he got himself free by pushing Shahrukh whereupon all of them took name of "S" and exclaimed him to kill complainant. He stated that "S" brought out a katta from his back and fired at him. He stated that fortunately he was not hit. People of gali gathered on listening sound of gun shot and those boys ran away on a motorcycle. He stated that "S", Sohail and Shahrukh stopped his way after abusing him, scuffled with him and tried to kill him by gun shot. He stated that he wants legal action to be taken against these persons and that he can recognize accused persons on seeing.
8. It is stated that on searching the spot, one fired cartridge of 315 bore was found on road in front of H. No. A250/4, Jaitpur Extension PartII which was measured and sketch of it was prepared whereafter, it was kept in an empty plastic container and sealed with seal of 'NK'. The said container was taken into possession vide separate memo. HC Nirdesh Kumar prepared rukka on statement of complainant and sent to PS for registration of FIR through Ct. Rakesh Yadav.
9. After registration of FIR, investigation of the case was handed over to ASI Kunji Lal. IO ASI Kunji Lal thereafter came to the spot where HC Nirdesh Kumar handed him over 315 bore cartridge sealed in a plastic container and sketch of cartridge whereupon IO mentioned FIR number and Sections on FIR No: 259/2016, PS: Jaitpur State Vs. Sharukh and Other Page No. 4..of 17 the relevant papers prepared by HC Nirdesh Kumar. IO inquired regarding the matter from HC Nirdesh Kumar and Ct. Rakesh Yadav and recorded their statements U/sec 161 Cr. P. C.
10. It is stated that thereafter IO met complainant and inspected spot at the instance of complainant. He recorded supplementary statement of complainant and statements of other witnesses namely Ram Niwas and Mohd. Akil who supported statement of complainant.
11. On 09.06.2016, IO apprehended CCL 'S' and produced him before Ld. Principal Magistrate, JJBII, Delhi Gate. IO received surrender cum bail application of CCL from MHC(R) whereupon IO reached JJBII and recorded version of CCL in front of his mother and Probation Officer wherein he stated that he does not know as to who fired upon complainant. IO apprehended CCL in front of Ld. PO, JJB and filed PIR before Ld. JJBII, Delhi Gate.
12. On 25.07.2016, IO sent exhibits of present case for examination to FSL, Rohini through Ct. Arvind and recorded his statement u/s 161 Cr.P.C. IO further recorded statement of MHC(M) ASI Umesh Bhati u/s 161 Cr.P.C. and procured FSL result in the matter.
13. On 02.08.2016, IO apprehended accused Sharukh who disclosed his involvement in present case. IO produced accused FIR No: 259/2016, PS: Jaitpur State Vs. Sharukh and Other Page No. 5..of 17 Shahrukh before Ld. JJBII, Delhi Gate and Ld. Principal Magistrate sent accused to observation home.
14. During investigation, as per order of Ld. PO, JJBII, Delhi Gate, ossification test of accused Shahrukh was got conducted in Safdarjung Hospital whereby age of accused Shahrukh was found to be more than 25 years. On determination of age of accused Shahrukh, accused was produced before Ld. PO, JJBII who asked him to produce before regular court on 15.09.2016.
15. On 15.09.2016, accused Shahrukh was produced before court of concerned Ld. Area MM. Accused Sohail @ Faizan who could not be arrested as he was concealing himself was proceeded against by taking NBW against him from court.
16. Accused Sohail @ Faizan on account of not being arrested on NBW, process U/sec 82 Cr. P. C was got issued against him from court and that he was got declared Proclaimed Offender by order of the court dated 02.12.2016. Other three boys involved in the incident could not be arrested as neither complainant disclosed regarding their names and addresses nor accused Shahrukh disclosed anything about them. It was mentioned that on arrest of accused Sohail @ Faizan, supplementary charge sheet against him shall be filed.
17. On 07.06.2022, HC Subodh informed through telephone FIR No: 259/2016, PS: Jaitpur State Vs. Sharukh and Other Page No. 6..of 17 that accused Sohail @ Faizan who has been declared as Proclaimed Offender in this case has been arrested by PO Cell/South East District and that IO should be sent. The information was assigned to ASI Laxmi Narayan who when went to PO Cell came to know that accused has been produced before court and was sent to JC till 08.06.2022. ASI Laxmi Narayan procured relevant documents from HC Subodh and recorded statements of HC Subodh and ASI Nasir Hussain.
18. Thereafter, ASI Laxmi Narayan went to Saket Courts and arrested accused Mohd. Faizan Qureshi @ Sohail after taking permission from the court. When judicial TIP of accused Mohd. Faizan Qureshi @ Sohail was sought to be got done, complainant appeared before court and submitted that he knows accused and that his name is Faizan @ Sohail.
19. After completion of investigation, supplementary charge sheet was filed before court.
20. On 05.05.2022, main police report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) was put up before Ld. Metropolitan Magistrate with a view to put accused Sharukh for trial. Supplementary chargesheet against accused Sohail @ Faizan Qureshi was filed before Ld. Metropolitan Magistrate on 04.07.2022.
21. In the light of the police reports and the documents filed FIR No: 259/2016, PS: Jaitpur State Vs. Sharukh and Other Page No. 7..of 17 alongwith the same, learned Metropolitan Magistrate having taken cognizance of the offences complied with the provisions of section 207 of Cr.P.C and thereafter, committed case for trial.
22. On 24.08.2022, charge was framed against accused persons for having committed offence punishable under section 307/34 IPC. Charge was read over and explained to accused persons to which accused did not plead guilty and claimed trial.
23. On 24.08.2022, separate charge was framed against accused Sohail @ Faizan for having committed offence punishable under section 174A IPC. Charge was read over and explained to accused to which accused did not plead guilty and claimed trial.
24. In support of its case, prosecution examined 05 witnesses in total: PW1 Shravan Kumar Giri PW2 Ram Niwas PW3 Mohd. Aakil PW4 SI Kehar Singh PW5 ASI Kuldeep.
25. Accused Sharukh admitted genuineness of site plan vide already Ex.P-1, his arrest memo dated 02.08.2016 vide Ex.P-2, request for his ossification test vide Ex.P-3, application to HOD Forensic Department, Safdarjung Hospital vide Ex.P-4 and FIR No: 259/2016, PS: Jaitpur State Vs. Sharukh and Other Page No. 8..of 17 ossification test report qua him vide Ex.P-5 (colly) vide which he was declared more than 25 years without admitting its contents in statement of accused recorded U/sec 294 Cr.P.C. on 14.12.2022.
26. Accused Suhail @ Faizan admitted genuineness of site plan vide Ex.P-1, application for issuance of NBWs qua accused vide Ex.P-3, NBW and its report vide Ex.P-4, application for issuance of 82 Cr.P.C. vide Ex.P-5, process u/s 82 Cr.P.C vide Ex.P-6, application for declaring him proclaimed offender vide Ex.P-7, statement of ASI Kunji Lal u/s 82 Cr.P.C. dated 02.12.2016 vide Ex.P-8, publication in Hindi and English newspapers regarding proclamation u/s 82 Cr.P.C. vide Ex.P-9 and Ex.P-10, the kalandara u/s 41.1(C) Cr.P.C. vide Ex.P-11, copy of DD No. 8 vide Ex.P-12, arrest memo of accused dated 07.06.2022 vide Ex.P-13, personal search memo of accused vide Ex.P-14 and interrogation report of accused vide Ex.P-15 without admitting its contents in statement of accused recorded U/sec 294 Cr. P. C on 14.12.2022.
27. Prosecution evidence was closed on 14.12.2022.
28. On 21.12.2022, accused were examined under section 313 Cr.P.C wherein incriminating material appearing in evidence against accused were put to accused to which accused stated that witnesses examined by prosecution are false and interested witnesses and have falsely deposed against them.
FIR No: 259/2016, PS: Jaitpur State Vs. Sharukh and Other Page No. 9..of 17 They stated that they are innocent and have been falsely implicated in this case.
29. I have heard arguments addressed by respective counsels and perused the record including judgments filed on behalf of accused Sohail @ Faizan.
30. On 14.12.2022, counsels for accused submitted that all the public witnesses in the present case have been examined by State who have not supported case of prosecution. They submitted that witnesses who remain to be examined are formal /official witnesses only and their examination shall not help prosecution in any way to prove its case against accused. It was submitted that examination of remaining witnesses shall be nothing but wastage of precious time of the court. Counsel for accused Suhail @ Faizan submitted that accused could not be declared Proclaimed Offender for offence U/sec 307/34 IPC as per provisions of Section 82 Cr.P.C. They requested for closure of prosecution evidence. Ld. Additional PP for State on inquiry did not dispute factual position as submitted by defence counsels but requested that State be permitted to examine remaining witnesses. In view of submissions made by counsels for accused and factual position being admitted by State, request of State was turned down and prosecution evidence was closed.
FIR No: 259/2016, PS: Jaitpur State Vs. Sharukh and Other Page No. 10..of 17
31. Complainant/ PW1 Shravan Kumar Giri is star witness of prosecution on whom gun shot was allegedly fired. He did not receive any injury as he escaped gun shot. He did not identify accused persons before Court and was crossexamined by State. He in his crossexamination by State specifically stated that accused present in the Court today did not fire at him and were not present at the spot at the time of incident.
32. PW2 Ram Niwas though is not an eyewitness but is a material witness as as per his statement u/s 161 Cr.P.C., accused persons took cigarette from his shop and quarreled with complainant. He stated that he came out hearing sound of gun shot and saw accused running away on a motorcycle. In his deposition before Court, PW2 turned hostile and denied to have made statement MarkX u/s 161 Cr.P.C. to police. He did not identify accused before Court.
33. PW3 Mohd. Aakil is an eyewitness as per his statement u/s 161 Cr.P.C. He in his deposition before Court did not identify accused before Court. He was crossexamined by State.
34. PW4 SI Kehar Singh and PW5 ASI Kuldeep are duty officers.
35. When complainant and eyewitness / PW3 and witness of the spot / PW2 failed to identify accused persons before FIR No: 259/2016, PS: Jaitpur State Vs. Sharukh and Other Page No. 11..of 17 Court, I am of the view that prosecution has failed to prove its case against accused persons beyond reasonable doubt for commission of offence u/s 307/34 IPC and accused deserves acquittal for this offence and are accordingly acquitted.
36. Charge u/s 174A IPC was framed against accused Sohail @ Faizan on account of he having been declared as proclaimed offender.
37. Counsel for accused Sohail @ Faizan during course of arguments argued that u/s 82 Cr.P.C., only a person who is accused of an offence u/s 302,304,364,367,382,392,393,394, 395,396,397,398,399,400, 402,436,449,459 or 460 of IPC can be declared as proclaimed offender as per Section 82(4) Cr.P.C. In order to support his arguments in this regard, counsel for accused Sohail @ Faizan filed judgments in cases titled as "Sukhwinder Singh Vs. State of Punjab Crl.Misc.M No. 18469/2011 (O&M) decided on 23.08.2011 and Likhma Ram Vs. State of Punjab and Anr. Crl.Misc. No. M36988 of 2011 decided on 07.12.2011". In Likhma Ram's case (Supra), Hon'ble High Court of Punjab and Haryana held that "Learned Single Judge of this Court in the matter of Satinder Singh (Supra) has held that Magistrate could not declare accused as proclaimed offender as he was not an accused of any of FIR No: 259/2016, PS: Jaitpur State Vs. Sharukh and Other Page No. 12..of 17 offences specified under subsection 4 of 82 Cr.P.C. In the present case also petitioner is not accused of any offences specified under subsection 4 of Section 82 Cr.P.C., therefore, order impugned is bad in law.
38. Counsel for accused Sohail @ Faizan further filed judgment in case titled as "Sunil Tyagi Vs. Govt. of NCT of Delhi & Anr. decided on 28.06.2021 in Crl.M.C. 5328/2013 and Crl. M.C. 4438/2013" and submitted that directions given by Hon'ble High Court of Delhi in Sunil Tyagi's case have not been followed by IO while executing process u/s 82 Cr.P.C. and on this ground also, charge u/s 174A IPC against accused Sohail @ Faizan could not be sustained.
39. Perusal of record shows that accused Sohail @ Faizan was declared proclaimed offender on 02.12.2016 and judgment in case of Sunil Tyagi (supra) was pronounced on 28.06.2021, hence, guidelines laid down in this case can not be said to be applicable to proclamation u/s 82 Cr.P.C. executed prior to giving directions in this case.
40. However, section 82 (4) Cr.P.C. is clear in laying down that only persons accused of an offence punishable u/s 302,304,364,367,382,392,393,394,395,396,397,398,399,400, 402,436,449,459 or 460 of IPC can be declared as proclaimed FIR No: 259/2016, PS: Jaitpur State Vs. Sharukh and Other Page No. 13..of 17 offender. Section 307 IPC is not one of the offences for which an accused can be declared as proclaimed offender in terms of Section 82(4) Cr.P.C. Hence, it can be said that mandate of law has not been followed in getting declared accused Sohail @ Faizan a proclaimed offender in this case and so he can not be convicted for commission of offence u/s 174A IPC. He is accordingly acquitted for commission of offence u/s 174A IPC.
41. Counsel for accused Sohail @ Faizan further argued that name of accused is Faizan Qureshi and not Sohail. He filed copy of DL, passport, bank passbook and birth certificate of child of accused to show that name of accused is Mohd. Faizan Qureshi. He submitted that complainant has taken name of Sohail as one of the accused in FIR and so is the position in case of statement of witness Mohd. Aakil MarkY recorded u/s 161 Cr.P.C. He submitted that he is unable to guess as to how name of accused Sohail got converted into with alias of Faizan as there is no disclosure statement of any coaccused in this regard on record.
42. Perusal of complete case file shows that complainant has taken name of one of the accused to be Sohail and so is position in statement of prosecution witness Mohd. Aakil recorded u/s 161 Cr.P.C. MarkY. In version of accused Sharukh also when he was supposedly taken to be 'CCL', name of coaccused has FIR No: 259/2016, PS: Jaitpur State Vs. Sharukh and Other Page No. 14..of 17 been mentioned to be Sohail. There is no statement of any witness or disclosure statement of any accused on record which can show that other name of accused Sohail is Mohd. Faizan. How come initial IO ASI Kunji Lal took NBW in name of accused Sohail @ Faizan and ultimately procured process u/s 82 Cr.P.C. in the same name is not clear from record. Perusal of order of Court of Ms. Shikha Chahal, Ld. MM11 dated 08.06.2022 shows that objection with regard to name of accused Sohail has been taken by defence counsel immediately after arrest of accused in present case. There is copy of one letter dated 27.09.2016 purportedly written by complainant / PW1 Shravan Kumar Giri to SHO PS Jaitpur on record wherein it is mentioned that IO ASI Kunji Lal arrested one Mohd. Faizan in this case but that Mohd. Faizan was not involved in the incident. Ld. MM vide order dated 08.06.2022 directed IO ASI Laxmi Narain to verify written statement from complainant as document filed on behalf of accused was photocopy of a signed document. Ld. MM directed ASI Laxmi Narain to produce complainant before Court on 09.06.2022. On 09.06.2022, complainant Shravan Kumar appeared before Ld. MM and submitted that he appeared as he had a conversation with IO and his brother to which IO submitted that he had no conversation with complainant and that complainant had FIR No: 259/2016, PS: Jaitpur State Vs. Sharukh and Other Page No. 15..of 17 appeared on his own. On the day when complainant appeared before Court on 09.06.2022, accused Sohail @ Faizan was produced from J/C but there is no query regarding identification of accused on part of complainant reflected in ordersheet dated 09.06.2022. IO on 09.06.2022 sought time for filing appropriate application after consulting APP for identification of accused. Ld. MM adjourned the matter to 10.06.2022 and asked SHO concerned to appear in person. On 10.06.2022, SI Sanjiv appeared on behalf of SHO PS Jaitpur. On 10.06.2022, Ld. MM observed that no definite order can be passed with respect to identity of accused as appropriate stage to deal with question of identity of accused will be during trial of present FIR. Complainant on his part in Court on an inquiry by Court stated that name of accused produced from J/C is Faizan.
43. There is no clarification regarding the fact as to how name of accused Sohail was known to IO with alias of Mohd. Faizan and how come, address of Mohd. Faizan was located by IO is also not clear as there is no statement of complainant or any other witness in this regard nor there is any disclosure statement of any coaccused in this regard on record.
44. From above made discussion, I am of the view that it appears that wrong person has been arrested in this case by IO. DCP, SouthEast is directed to conduct an inquiry in this regard FIR No: 259/2016, PS: Jaitpur State Vs. Sharukh and Other Page No. 16..of 17 and in case IO and Supervisory Officers like SHO and ACP concerned are found to be guilty, appropriate legal action be taken against them by DCP, SouthEast. Let copy of this judgment be sent to DCP, SouthEast for reference and compliance.
45. In view of my above made discussion, I am of the view that State has failed to prove its case against accused persons for commission of offence u/s 307/34 IPC and has also not been able to prove commission of offence u/s 174A IPC on part of accused Sohail @ Faizan. So, both the accused are acquitted for offence u/s 307/34 IPC and accused Sohail @ Faizan is acquitted for offence u/s 174A IPC.
46. File be consigned to Record Room.
Dictated and Announced in open Court on 23.12.2022 (Sonu Agnihotri) ASJ03 (South East), Saket Courts, New Delhi FIR No: 259/2016, PS: Jaitpur State Vs. Sharukh and Other Page No. 17..of 17