Delhi District Court
State vs Neeraj Jain Etc on 20 August, 2010
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE-1 (North-East): KARKARDOOMA COURTS:
DELHI
FIR No. 462/ 05
State Vs Neeraj Jain etc
Police Station Seelampur
Under Section 307/ 384/34 IPC & 27/ 54/ 59 Arms Act
Convicted u/s 120 B read with section 503 & 506 IPC.
ORDER ON THE POINT OF SENTENCE
20.08.2010
Pre: Ld. APP for the state.
Accused/ Convict with counsel Sh. R K Jain for accused Neeraj.
Ld. counsel Sh. N. S. Raghav for accused Naeem Pahlwan and
Mohd. Hassan.
It has been submitted by ld. counsel Sh. R. K. Jain that he has
been engaged today and previous counsel Sh. N KS Bhadoria has been
withdrawn by accused Neeraj Jain. In this regard, Ld. APP has no
objection.
During the course of argument ld. counsel Sh. R K Jain for convict
Neeraj Jain submits that convict is a person of clean antecedent. Ld.
counsel again submit that there is no previous criminal antecedents
FIR no. 462/ 05
U/s 307/384/34 IPC &
27/54/59 Arms Act
1/
against him. Ld. counsel further submits that accused is facing trial
since 2005. Ld. counsel for accused Neeraj Jain further submits that he
has three small children and old age parents to look after. It is also
submitted by the counsel that accused / convict is the first offender and
he has already remained in JC for about 9 days. On these grounds ld.
counsel for convict Neeraj Jain requests for releasing convict Neeraj
Jain on probation of good conduct.
ld. counsel Sh. N S Raghav for convict persons namely Naeem
Pahlwan and Mohd. Hassan submits that convict are very poor persons.
Ld. counsel again submits that there is no previous criminal antecedents
against any of them. Ld. counsel further submits that accused / convict
persons are facing trial since 2005. Ld. counsel further submits that
both convict persons have small children to look after. It is also
submitted by the ld. counsel that convict persons are the first offenders.
Ld. counsel again submits that both accused / convict persons are in JC
and they have already remained in JC for about 12 months. On these
grounds ld. counsel requests for releasing convict persons on probation
of good conduct.
FIR no. 462/ 05
U/s 307/384/34 IPC &
27/54/59 Arms Act
2/
Contrary to the submissions of ld. counsel for the convict
persons, Ld. APP opposed the submissions and submits that no
leniency be taken in to account at the time of awarding the sentence as
offences of such type are increasing day by day.
Keeping in view of the age, antecedents, individual and family
circumstances of convict persons, their inclinations for improving
behavior in the society and that convict are facing trial by regularly
appearing in the court for trial since 2005, the court is of the considered
view that it is a fit case to release the convict persons on probation of
good conduct for the period of 2 years on furnishing personal bond in
the sum of Rs.10000/- each with one surety in the like amount.
Accordingly, convict persons namely
1.Neeraj Jain, 2.Mohd. Hasan and
3.Naeem Pahlwan be released on
probation of good conduct for the period
of 2 years on furnishing personal bond
in the sum of Rs.10000/- each with one
surety in the like amount.
ANNOUNCED IN THE OPEN
COURT ON THIS 20.08.2010
(RAJ KAPOOR)
ADDL. SESSIONS JUDGE-I/NORTH EAST
FIR no. 462/ 05
U/s 307/384/34 IPC &
27/54/59 Arms Act
3/
KARKARDOOMA COURTS: DELHI
FIR no. 462/ 05
U/s 307/384/34 IPC &
27/54/59 Arms Act
4/
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE - I : North- East / KARKARDOOMA COURTS:
DELHI.
Case ID Number. 02402R0429012006
Sessions Case No. 208/ 2007
Assigned to Sessions. 22.05.07
Arguments heard on 02/08/10
Date of order. 18.08.2010
FIR No. 462/ 05
State Vs 1. Neeraj Jain s/o Malkhan Singh
R/o H.No. 587, Arjun Gali,
Biswas Nagar, Shahdara, Delhi.
2. Mohd. Hassan @ Sufi Kalwa
s/o Sher Ali r/o H.No. 1B,
Pocket - A, DDA Flats,
Jafrabad, Delhi.
3. Mohd. Naeem s/oKallanKhan
R/o A-81, Main Road,
Brahampuri, Shahdara, Delhi.
Police Station Seelampur
Under Section 384/ 307/ 34 IPC read with section
120 B IPC & 27/54/59 Arms Act.
JUDGEMENT
1. Briefly facts of the case are that on or before 16.08.2005 accused Neeraj Jain along with his associates entered into a criminal conspiracy and in consequence of said conspiracy his associates namely Naeem Pehalwan and Mohd. Hasan made fire upon the FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 5/ complainant namely Ahad Basir. Further, accused persons put pressure upon the complainant to extort money of the defected goods which he has already returned to accused Neeraj Jain. Consequently, on 16.08.05 at about 12.50 p.m. at House No. 744, Gali no.2, Jafrabad, Delhi within the jurisdiction of PS Seelampur, Delhi, accused persons in furtherance of their common intention, put the complainant Ahad Basir in fear of injury to extort money and also fired with a weapon upon him with intention to kill him.
2. In this regard a DD No.38 B vide mark Z, was recorded at Police Station Seelampur regarding incident of firing at house No.744, Gali No.29, Jafarabad, Delhi and said DD was marked to ASI Prem Singh for investigation. On receipt of said DD, ASI Prem Singh along with Ct. Nanak Chand reached at the spot where Ahad Bashir @ Baboo Malik s/o Bashir Ahmad met I.O. and showed the mark of bullet on the wall of his house but no one received injuries in the incident. I.O. recorded statement of complainant Ahad Bashir vide Ex.PW6/A and made endorsement vide Ex.PW6/B upon the same for registration of FIR u/s 336 IPC. FIR No.462/05 u/s 336 IPC Ex.PW9/A was recorded at Police Station Seelampur.
FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 6/
3. Complainant in his statement vide Ex. made allegations that on 16.08.2005 at about 12:50 p.m. when he was present inside his factory along with his servant Mohd. Asif, one tempo passed from 66 feet road and immediately he heard a sound of fire and ducked himself under a table. He asked about the incidents from neighbours, one Bhurey who used to reside in the same area told that two boys had come on the motorcycle and pillion rider had fired. They had run towards Seelampur side. The bullet hit with the wall.
4. I.O. prepared the site plan vide Ex.PW6/D of the scene of occurrence at the instance of complainant. I.O. took out the fired bullet from the wall from the scene of occurrence and prepared sketch of the same vide Ex.PW5/A and thereafter, prepared a sealed pullanda of the bullet and seized the same vide seizure memo. Ex.PW6/C.
5. Photographer was called at the spot who took five photographs of the place of occurrence vide Ext. as P1 to P5. During investigation, sections 307/384/34 IPC were also added. I.O. made efforts to search the accused persons.
FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 7/
6. I.O. seized photocopy of complaints already made by complainant with the police mark Z and Z1 on the judicial file vide seizure memo Ex.PW13/A.
7. Accused Neeraj Jain was arrested in the present case vide arrest memo Ex.PW6/G and Personal Search Memo Ex.PW6/G1. He was interrogated by the IO and disclosure statement vide Ex.PW6/G2 was recorded. Other accused persons were also arrested.
8. This case was committed to the Court of Sessions on 29.05.2007 for trial as it pertains to the heinous crime. After hearing arguments, ld. predecessor of this court framed a charge against all three accused persons for the offences punishable u/s 384/307/34 and 120B IPC. A separate charge was also framed against accused Naeem Pehalwan for the offence punishable u/s 27/54/59 Arms Act for having made fire upon complainant. Accused persons did not plead guilty and claimed trial.
FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 8/
9. To prove and substantiate its case the prosecution has examined 13 witnesses namely PW1 Asad Basir (hostile witness), PW2 Mohd. Shahid (hostile witness), PW3 Ct. Surinder Singh, PW4 Ct. Ratan Singh, PW5 Ct. Nanak Chand, PW6 ASI Prem Singh, PW7 HC Narain Singh, PW8 Md. Asif (another hostile witness), PW9 HC Chander Veer Singh, PW10 HC Ashwani Kumar, PW11 Aahad Basir (complainant), PW12 HC Sudhir Kumar and PW13 Ct. Narender Sharma.
10.PW1 Asad Bashir brother of complainant Ahad Bashir deposed that he is running a garment shop at Gandhi Nagar. The incident was about one or two years back, he was present at his shop. He received a message from his residence from his cousin about the incident of firing at his house. He immediately went to his house and found the police persons and public there. This witness has denied to have given any statement to the police in this regard by him. This witness did not identify any of the accused persons. Thus, he was got declared hostile by ld. APP. This witness did not support the prosecution story.
FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 9/
11.PW2 Mohd. Shahid deposed that he was running a leather jacket shop at main road at corner of Gali No.9, Jafarabad, Delhi. Once he was called by the police from his house in the gali and asked him to sign some documents but he did not know the contents of the said documents. This witness has also denied to have given any statement to the police in this regard by him. This witness also did not identify any of the accused persons. Thus, he was too got declared hostile by ld. APP. This witness did not support the prosecution story.
12.PW3 Ct. Surinder Singh deposed that on 16.08.2005 HC Chander Veer handed over to him DD No.38B regarding incident of firing. He handed over said DD to ASI Prem Singh. This witness has been cross-examined by defence counsel Sh. N K Singh Bhadoria for accused Neeraj Jain. In the cross-examination it has come on record that no name was of the assailant mentioned in the aforesaid DD.
13.PW4 Ct. Ratan Singh deposed that on 16.08.2005 a telephonic message was received at his office in photo section. He reached at house No.744, Gali No.29, Jafarabad and met I.O. ASI Prem Singh. FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 10 / He further deposed that he found one bullet inside the wall on the ground floor premises. He took five photographs of the spot Vide Ext.P1 to P5 and negatives of same are Ex.P6 to P10. This witness has been cross-examined by the defence counsel. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
14.PW5 Ct. Nanak Chand deposed that on 16.08.2005 he joined investigation of present case with ASI Prem Singh and reached House No.744, Gali No.29, Jafarabad, Delhi. One Aahad Bashir and his servant namely Bhura met us. IO recorded his statement and called crime team. The crime team took photographs. Bullet was taken out from the wall and sketch of bullet was prepared by the I.O. vide Ex.PW5/A and prepared a pullanda of the same. IO filled up CFSL form. He was handed over a rukka for registration of FIR at Police Station Seelampur. He took the same and got registered FIR and handed over copy of FIR and rukka in original to the IO. IO further recorded statement complainant Aahad Bashir. In the said statement, complainant disclosed the name of persons who made fire as Naeem Pehalwan and Sufi Kalua. The witness identified deform FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 11 / bullet which was seized by the IO from the spot. This witness has been cross-examined at length by defence counsel. No contrary evidence has come on record which can suggest that this witness is false one.
15.PW6 ASI Prem Singh proved the proceedings conducted by him at the spot after receipt of investigation to him of DD No.38B. He also proved regarding recording of statement of complainant Ahad Basir @ Babbu Malik which is exhibited vide Ex.PW6/A and calling photographer at the spot who took photographs. He also proved the site plan prepared by him at the spot. He further deposed that on 22.09.2005 accused Sufi @ Kalua was arrested by him on the basis of secret information from Jafarabad pulia. He recorded his disclosure statement and pointed out memo was prepared of the place of occurrence. He further deposed that on 08.12.2005 accused Neeraj Jain was arrested in the present case when he produced himself before the police in the Police Station after starting of proceedings u/s 82/83 Cr.P.C. He further deposed that on 11.05.2006 accused Naeem Pehalwan who was PO in the present case was also arrested by AATS, East District. He was also arrested FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 12 / by him in the present case. He made efforts to recover the weapon as well as bullet and motorcycle used in the offence. This witness identified the bullet which was taken out from the wall vide Ex.PW6/C as well as accused persons who were arrested by him in the present case. This witness has been cross-examined at length. I do not find any contrary evidence on record. However, some minor type of contradictions have come on record during the course of cross- examination, which are attributable due to the long duration of time and memory of a human being.
16.PW7 HC Narain Singh is a formal witness. He deposed that on 16.08.2005 ASI Prem Singh deposited one sealed pullanda and one CFSL form in the malkhana vide serial No.3643. Photocopy of the said document proved on the record vide Ex.PW7/A. This witness has been cross-examined. No contrary evidence has come on record which can suggest that this witness is false one.
17.PW8 Md. Asif, public witness came to the witness box and deposed that he does not know anything about this case. Thus, he was got declared hostile by ld. APP. This witness has not supported the prosecution story.
FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 13 /
18.PW9 HC Chander Veer Singh is the formal witness being duty officer. This witness proved the FIR of the present case and got exhibited the same as Ex.PW9/A. This witness was cross-examined by Sh. N.S. Raghav, counsel for accused Mohd. Hasan and Naeem Pehalwan. In the cross-examination it has come on record that initially FIR was registered u/s 336 IPC and 27/54/59 Arms Act. He cannot tell on what dates the other sections mentioned in the present case were involved since there is no alteration and addition in the FIR register.
19.PW10 HC Ashwini Kumar deposed that there is no complaint of Bashir Malik resident of 725, Gali No.29, Jafarabad, Delhi on 10.03.2005 and in the month of August'2005 in the Police Station. He placed on record photocopy of register of the aforesaid dates Ext.PW10/A and PW10/B. This witness was cross-examined by defence counsel. In the cross-examination he admitted that there is no complaint on the aforesaid dates of complainant Basir Malik.
20.PW11 Aahad Bashir complainant is the most material witness in FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 14 / this case.
" I am doing business of clothes. I also used to run factory and got prepared the clothes. My factory is situated at property No.744, Gali No.29, Jafarabad. At the time of incident I was also running a shop in the Gandhi Nagar at Sunder Chowk. On 16.08.2005, at around 12:50 p.m. I was present at my factory. The work was going on inside the factory as per routine days. Accused Naeem Pahelwan today present court identified by the witness correctly came there and made a fire upon me. As soon as he made fire upon me, I ducked my self under the table lying there and the fire hit against the wall. He started running towards the road No.66. Accused Sufi today present in court who was already standing there on a motorcycle in the start condition. Both of them fled away from there on the bullet motorcycle. They ran towards Seelampur. Public persons started collecting at my factory. Someone made a call to the police and police officials reached at my factory. I narrated the incident to the police. DCP as well as ACP also reached at the spot. Police recorded my statement already Ex.PW6/A bears my signature at point A. Police also conducted writing work at my factory. Some police officials came at my factory and took photographs and removed the bullet from the wall. The witness identify the photographs already Ex.P1 to P5. The sketch of the bullet removed from the wall already Ex.PW5/A bears my signature at point B. The police officials who came separately in a vehicle took the bullet with them for conducting some investigation in this regard. The seizure memo Ex.PW6/C bears my signature at point A. Accused persons were arrested later on. I did not give their names in the FIR due to terror but later on I mentioned their names in my statement. Both the accused persons were already known to me prior to incident as they had visited my factory as well as my shop to threat me. Accused Neeraj Jain today present in court was having some business transaction with me prior to 2 / 3 years ago from the day of incident. I had given all his payment and returned to him the defected goods. There was no money due towards me of accused Neeraj Jain. Both the accused along with Neeraj Jain came to me about 1 / 2 months prior to incident. Accused Neeraj Jain was saying that he wanted the money of the defected goods as same are not his use. I ask him that I had returned the whole payment as well as the defected goods and I will not make any payment to him. Thereafter, accused Neeraj Jain with both the accused and 2 /3 other boys came to FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act
15 / my shop in Gandhi Nagar about one month from the incident. They again forced me to make payment of the defected goods but I refused. Accused started putting pressure upon me to make payment of the defected goods. Due to pressure of accused I could not open my shop on proper timing. Accused Neeraj Jain told me that he will received the payment from me at any cost. Some days prior to the incident, accused Naeem Pehalwan and Md. Hasan came to my house and asked me to pay Rs. 5 lacs to both of them and forget about Neeraj Jain. I refused to make any payment to them. They asked me that I will have to make payment. Thereafter, they left my house. After 2/3 days, both of them again came to my house and demanded Rs. 2 lacs instead of Rs.5 lacs and to finish the matter. I refused to make any payment of Rs.2 lacs. They again visited me on 15.08.2008. They met my elder brother Asad Bashir outside the house. They demanded Rs.50,000/- from my brother and make the rest of the payment i.e. Rs.1.5 lacs on 17th of the month. My brother refused to make even a single penny. They threatened my brother if he is not making any payment to face the consequences to both of us.(Objected to being hear-say). Thereafter, the present incident of firing had taken place. The disclosure statement of accused Md. Hasan Ex.PW6/E bears my signature at point A. The photocopy of complaint addressed to Lt. Governor, Delhi made by me on dated 12.8.2005 mark Z bears my signature at point A. The other complaint (photocopy) dated 10.3.2005 to the SHO Police Station Seelampur mark Z-1 was also made by me. The arrest memo and Personal Search Memo of accused Md. Hasan already Ex.PW6/F-1 and PW6/F-2 bears my signature at point A. I can identify the case property if shown to me. Further examination in chief deferred as case property not produced from malkhana.
PW11 Aahad Basir @ Baboo Malik s/o Basir Ahmad. Recalled for further examination in chief. On S.A. I can identify the case property if shown to me. At this stage, one small sealed pullanda with the court seal has been produced from Malkhana. Same has been opened. It is containing one deformed bullet. The witness identify the same Ex.P1 which was taken out by the police from the wall.
xxxx by Sh. N.S. Raghav, Adv. for accused Naeem and Mohd. Hasan.
FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 16 / I do not recollect whether I put mark of identification on lead or my signature on the pullanda prepared by the police for its identification. It is correct that there is no mark of identification on the cloth piece in which the deformed bullet was kept by the police. My statement was recorded on 16.08.2005 and thereafter, also but I cannot tell the dates of recording my supplementary statements. My second statement was recorded by the police after about 5 to 7 days. My third statement was not recorded as well as thereafter, no other statement was recorded. I do not recollect whether I had made third and fourth statement to the police. I had told the police in my first statement that on 16.08.2005 at 12:50 p.m. I was present at my factory. I had not mentioned the name of accused Mohd. Naeem who had fired upon me in my statement already Ex.PW6/A. Vol. I had disclosed this fact in my supplementary statement. I had told the police in my statement dated 16.08.2005 that as soon as he made fired upon me, I ducked myself under the table, confronted with statement Ex.PW6/A where it has not been so recorded. I had also mentioned in my statement dated 16.08.2005 that the bullet hit against the wall, confronted with Ex.PW6/A where it has not been so recorded. I had mentioned in my statement Ex.PW6/A that public persons started collecting at my factory, confronted with Ex.PW6/A where it has not been so recorded. I had also mentioned in my statement Ex.PW6/A that someone made call on 100 number and DCP and ACP also reached at the spot, confronted with Ex.PW6/A where it has not been so recorded. I had not mentioned in my statement Ex.PW6/A that I had narrated the whole incident to ACP and DCP. I do not recollect whether I had mentioned in my statement Ex.PW6/A police did writing work at the spot. I had mentioned in my statement Ex.PW6/A that he started running towards road no.66, confronted with Ex.PW6/A where the name of assailant who fired ran towards 66 number road not mentioned. I had seen the assailants running towards 66 number road. I had mentioned in my statement Ex.PW6/A that one of the boy was sitting on motorcycle in start condition, confronted with Ex.PW6/A where it has not been so recorded. I had mentioned in my statement Ex.PW6/A that my servant Asif was also working with me at the time of alleged incident. I had mentioned in my statement Ex.PW6/A that one tempo was passing from the area towards to 66 ft. road and in the meanwhile, a bullet was fired. I had mentioned in my statement Ex.PW6/A that tempo TATA 407 of blue colour and FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 17 / same was covered with the tripal and I could not read out the number of the same. I had not mentioned in my statement Ex.PW6/A that when I asked from the mohalla persons who had run away, confronted with Ex.PW6/A where it has been so mentioned. I cannot tell whether the present case was initially registered u/s 336 IPC. It is wrong to suggest that I was aware of the section of the present case initially registered by the police. My statement Ex.PW6/A was recorded by the police after 2/3 hours of the incident. It is wrong to suggest that I was not aware who had fired that is why I had not mentioned the name of assailant in my statement Ex.PW6/A. There are five to six houses facing towards road and thereafter, my factory is situated. The front wall of my factory is about 10 to 12 feet in height. It is three and half storey built up. The fire was made from distance of about 6 - 7 feet. I could not note down the number of the aforesaid motorcycle since I was nervous. The bullet hit against the wall at a height of 5 / 6 feet. First of all, I came to know from Bhure that two persons ran away to the side of Seelampur which was a wrong side. I was very much terrorized with the fire. I remained sitting under the table for about 4/5 minutes. Thereafter, I came outside. Thereafter, I was told by Bhure, my neighbour that the persons who fired at my factory was having long curly hair and he was sitting on the motorcycle. I had not mentioned in my statement Ex.PW6/A that I came to know from Bhure that the person who was sitting on the motorcycle having long and curly hair made fire, confronted with Ex.PW6/A where it has been so recorded. I do not recollect whether I had mentioned in my statement Ex.PW6/A that tempo TATA 407 was of blue colour and covered with the tripal and that is why I could not read its number.
It was a front room of my factory. There was a 16 feet long size table touching the wall. The house no.744 belongs to me where incident taken place. It was more than 100 sq. yards. There was two big halls attached with latrin, bathroom and gallery. I along with my servant Asif were present at the time of incident. 2/3 workers used to work on the ground floor meant for cutting. On the day of incident, there was no cutting master. I used to call the cutting master on daily wages as per requirement of work. 500/700 pieces of jeans were got prepared daily. It is correct that in my factory 25/30 persons used to work on the first and second floors. After the firing incident, the workers working on the aforesaid floors came down. I can tell the name of 10 to 12 workers employed at that time. There names were Asif, Munnu, Zakir, Suaib, Jamil, Rafiq etc. I used to maintain the register of workers. I cannot produce the FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 18 / said register before the court. It is correct that without cutting master the work of my factory cannot proceed. On the day of incident, there was no cutting master at my factory. It is wrong to suggest that no such incident ever occurred as alleged. I cannot tell exactly when my statement mentioning the name of accused was recorded by the police. Vol. It can be between eight to fifteen days after the incident. It is wrong to suggest that I do not recollect the date of recording my statement since I have falsely implicated accused Mohd. Hasan and Naeem Pehalwan with connivance of local police. I do not know the job of accused Md. Hasan and Naeem Pehalwan. It is wrong to suggest that they are also dealing in the same business as I am doing. It is further wrong to suggest that is why on account of my business rivalry I had falsely implicated them in the present case. I have not mentioned in my statement Ex.PW6/A that accused Md. Hasan and Naeem Pehalwan had visited my shop in Gandhi Nagar about one month from the date of incident. I had not mentioned in my statement that aforesaid accused asked me to make payment of the defected goods but I refused in my statement Ex.PW6/A. I had not mentioned in my statement Ex.PW6/A that accused started putting pressure upon me to make payment of defected goods. I had not mentioned in my statement Ex.PW6/A that due to aforesaid reason I could not open my shop for several days on proper timing. I had not mentioned in my statement Ex.PW6/A that accused Md. Hasan and Naeem Pehalwan came to my house and asked me to pay Rs. 5 lacs to both of them. I had mentioned in my statement date I do not recollect before the police that both the accused came to my house after 2/3 days of their first visit and demanded Rs.two lacs from me, confronted with statement mark PW11/DA where it has not been so recorded. It is wrong to suggest that accused persons Md. Hasan and Naeem Pehalwan did not visit my house or my factory, shop at Gandhi Nagar or demanded Rs.5 lacs, Rs. two lacs or Rs.50,000/- on any occasion. It is wrong to suggest that I have deposed falsely. The name of my elder brother is Asad Bashir. It is wrong to suggest that both the accused mentioned above never demanded Rs.1.5 lacs or Rs.50,000/- from my brother Asad Bashir. It is wrong to suggest that no demand was made by the accused persons from me and my brother at any point of time before the incident. Police remained visiting at my factory till 4:00/5:00 p.m. from the time of incident. 2/3 police officials interrogated me, however, ACP and DCP, Crime Team also visited the spot. My statement was recorded by ASI Prem FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 19 / Singh on 16.08.2005.
xxxx deferred due to lunch time. It is 1:30 p.m. Put up at 2:30 p.m. at the request of Ld. counsel Sh. N.S. Raghav for accused Md. Hasan and Naeem Pehalwan.
xxxx by Sh. N.S. Raghav, Adv. for accused Naeem and Mohd. Hasan.
IO along with other police staff remained at the spot approximate 6:00 p.m. on the day of occurrence. Police met me 2/3 times during investigation of this case. ASI Prem Singh recorded my supplementary statement. I have engaged for this case my private counsel Sh. Abdul Salam who is present today. It is wrong to suggest that my counsel had tutored me to make statement against the accused persons. IO ASI Prem Singh met me today. I had asked him to show the file of the present case. It is wrong to suggest that I had made statement at his instance. I have disclosed the facts of this case to my brother, Asad Bashir. I had not mentioned in my statement Ex.PW6/A that I had filed complaint against the accused persons prior to the present case. It is wrong to suggest that I did not mention this fact in Ex.PW6/A as I had not made any complaint against the accused persons. I have receipt copy of all the complaints given to the police officials. I had not given the copy of those complaints to the IO of this case. It is wrong to suggest that since no complaints were made against the accused persons thats why I did not hand over the copies of same to the IO. I cannot tell the colour of the motorcycle. Since the bullet motorcycle does not have any colour and it is always in steel. I do not know whether police interrogated the workers working on the upper floor in the factory. However, some of the workers were present on the ground floor when police reached there. It is wrong to suggest that I had concocted a false story against the accused persons. I do not know whether police had taken any steps on my complaints. I had not contacted the police regarding those complaints.
The house of Bhure is adjoining our house and same is probably house No.750. My number of the house is 725. It is wrong to suggest that the house of Bhure is not adjoining to my house and I am deposing falsely. It is wrong to suggest that because of the business rivalry I have implicated accused Md. Hasan and Naeem Pehalwan in the present case after having concocted a false story. It is further wrong to suggest that no firing upon me or towards me was made by accused Md. FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 20 / Hasan and Naeem Pehalwan.
xxxxx by Sh. N.K.S. Bhaduria, Adv. for accused Neeraj Jain.
I am doing business of jeans since 1997-1998. I have not facing any criminal case. It is correct that I had informed to this court that I am wanted in a case u/s 498A/307 IPC registered at Police Station Nauchandi, Distt. Meerut, U.P. I have not made any complaint against anyone except this case. It is correct that I am complainant of case FIR No.42/2010 of Police Station Jafarabad u/s 365 IPC. It is wrong to suggest that I have lodged several complaints against persons since 1997. It is wrong to suggest that I had taken money in those complaints after making compromise. No criminal case is pending against my family members.
It is wrong to suggest that place of incident is a thickly populated area. It is further wrong to suggest that the houses are built upto single or double storey. The said factory is in the area of more than 100 sq. yards and built up upto three and half storey. It is correct that more than 30 persons are always used to work in the said factory. It is wrong to suggest that in the adjoining premises, there are factories. It is correct that I have not mentioned the name of any of the assailant and their role in the complaint. I have disclosed to the police that firing was made upon me. I did not agitate before the police for not registering the case u/s 307 IPC. I had disclosed the detailed facts and name of the accused persons after about 15 days of the incident to the police. I had visited Police Station during the aforesaid period for about twice/thrice. I had not made any written complaint to higher police officials to the effect that I could not mention the name of assailants in my complaint Ex.PW6/A. It is wrong to suggest that I have not made any complaint or that all these complaints were fabricated and forged stamps to make the case stronger.
I was running a shop at Gandhi Nagar at the time of incident. The shop of accused Neeraj Jain was situated at a distance of 2/3 streets to my shop at that time. However, the shop of accused Neeraj Jain was very close to my shop. I was on visiting terms with accused Neeraj Jain due to business transaction. I had given the defected goods to the accused Neeraj Jain but he was insisting to make payment of the said defected goods. No payment was due of accused Neeraj Jain towards me. It is correct that there was no dispute between FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 21 / me and accused Neeraj Jain on account of any money. I had not shown the house of accused Neeraj Jain to police prior to making supplementary statement mentioning the names of assailants. I did not visit the shop at Gandhi Nagar. Vol. My brother used to run the said shop after the incident. My brother, Asad Bashir knew accused Neeraj Jain very well. It is correct that the aforesaid shop at Gandhi Nagar is managed by all of our family. I do not know whether accused Neeraj Jain used to visit his shop during the aforesaid period of 20/22 days. I had not asked my brother regarding visit of Neeraj Jain at his shop. It is wrong to suggest that I involved the name of accused Neeraj Jain to extort money from him.
I do not recollect whether I had disclosed to the IO in my statement that accused Neeraj Jain had visited me about half month prior to incident along with other two accused. It is wrong to suggest that it is a false concocted story that is why I had not disclosed this fact to the police in my supplementary statement or any other statement. I do not recollect whether I had disclosed to the IO that accused Neeraj Jain along with both the accused and two/three other boys came to my shop at Gandhi Nagar about one month from the date of incident that is why I had not disclosed this fact to the police in my supplementary statement or any other statement. I had told all the facts to the police which I had deposed in the court. I do not recollect whether I had disclosed to the police the parentage and address of accused Neeraj Jain in my statement u/s 161 Cr.P.C. Whenever accused Neeraj Jain along with others used to visit my shop or my house, I used to report in writing to the Police Station. I have not brought copy of those complaints at present. Police is having copy of those complaints. Vol. I had not given those complaints to the police. I had identified accused Neeraj Jain in the Police Station. I do not recollect whether police prepared the documents regarding arrest of Neeraj Jain in my presence. In my presence, no document was prepared by the police concerning accused Neeraj Jain. I had not signed the arrest memo, jamatalashi and disclosure statement of accused Neeraj Jain. I do not know why the present case was converted by the police u/s 307 IPC. Police informed me later on that they had added the case u/s 307 IPC after recording my supplementary statement. I do not know that how many days the police added section 307 IPC. No recovery was effected from any of the accused in my presence by the police except the deformed bullet which was seized from the spot. It is wrong to suggest that I had myself make fire on the wall and concocted a false story of firing upon me. It is FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 22 / wrong to suggest that no firing made upon me. It is wrong to suggest that no independent witness of the locality made witness in the present case by the police as it was a false case. It is wrong to suggest that I am deposing falsely. It is further wrong to suggest that Neeraj Jain had no role in the present incident of firing. RO & AC"
Perusal of his testimony reveals that he is having a factory of preparing clothes at premises No.744, Gali No.29, Jafarabad. On 16.08.2005, at 12:50 p.m. he was present at the factory, accused Naeem Pehalwan had come there and made fire upon him. He saved himself from fire and it hit against the wall. He further deposed that one other person namely Sufi @ Mohd. Hassan was standing there on motorcycle in the start condition and both of them ran towards Seelampur. Police reached there and recorded his statement vide Ex.PW6/A. Police also took photographs and removed the bullet from the wall. The witness identified photographs as well as bullet during his testimony in the court. He further deposed that he did not give the name of accused in the FIR due to terror. But later on he got mentioned their names in his supplementary statement recorded on 22.09.2005 to the police. He further deposed that he knew both accused prior to the date of incident as they used to visit his factory as well as shop. This witness further deposed that accused Neeraj was having business transaction with complainant 2 FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act
23 /
- 3 years ago from the date of incident. He had returned the defective goods to accused Neeraj Jain along with the money due towards him. He further deposed that accused Neraj Jain along with two accused mentioned above came to him one/two months prior to incident and demanded money of the defective goods from the complainant despite the same were not of any use. He refused to make any payment. Thereafter, accused Neeraj Jain along with other three boys visited the shop of complainant at Gandhi Nagar about one month prior to the incident and forced him to make payment of defected goods. He could not open the shop due to pressure. This witness further deposed that accused Neeraj Jain threatened him that he would receive the payment from complainant/ PW11 at any cost. He further deposed that some days prior to incident accused persons namely Naeem Pehalwan and Mohd. Hasan came to his house and asked him to make payment of Rs.5 lacs. Complainant refused to make any payment. Again accused persons visited the house of complainant on dated 15.08.2008 and demanded Rs.2 lacs instead of 5 lacs and asked him to finish the matter. He further deposed that accused persons demanded Rs.50,000/- from his brother. He further deposed that he made FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 24 / complaint to Lt. Governor on 12.08.2005 vide mark Z and other complaint dated 10.03.2005 to SHO Police Station Seelampur vide mark Z1. The arrest memo and Personal Search Memo of accused Mohd. Hasan was signed by him. The witness also identified the deform bullet in the court. This witness has been cross-examined at length by defence counsel. I have perused his cross-examination very carefully. I have found so many contradictions in his testimony which go to the root of this case.
21.PW12 HC Sudhir Kumar deposed that on 08.12.2005 he joined investigation with IO ASI Prem Singh. At 10:20 a.m., accused Neeraj Jain came in the Police Station along with his brother Sunil and surrendered before police. He was arrested in the present case. This witness has been cross-examined by defence counsel. I have perused the same. No contrary evidence has come on record which can suggest that this witness is false one.
22.PW13 Ct. Narender Sharma deposed that on 22.09.2005 he joined investigation of the present case with ASI Prem Singh. When the police team reached at Primary School D Block, police received FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 25 / secret information that accused Sufi is standing at Jafarabad Pulia. Complainant joined the police in the investigation. On his pointing out accused Sufi @ Kalwa was apprehended and arrested by the police in the present case and his disclosure statement was prepared. At his instance, pointing out memo of place of incident already Ex.PW6/F, was prepared. He was taken to house of Naeem but he was not found there. He further deposed that accused Mohd. Naeem was also arrested by the IO in the present case as he was already arrested by the police, AATS, North East District. This witness has been cross-examined at length. I have perused the same. I found some contradictions but these contradictions are not material.
23.After completion of evidence of prosecution, statements of accused persons u/s 313 Cr. PC were recorded. Accused persons have denied all the allegations leveled against them by the prosecution by submitting that they are innocent and they have been falsely implicated in this case and witnesses are interested witnesses. They produced 4 defence witnesses in their defence namely DW1 Neeraj Jain (accused himself). He produced criminal record of complainant. FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 26 / DW2 Mohd. Maqsood, DW3 Muzaffar Ali and DW4 Mohd. Akhtar. Having perused the same I found that they have not brought on record any concrete evidence pertaining to this incident essentially. However, the defence witnesses have attempted to bring on record the antecedents of complainant and his character. But there are only the attributes not the substance in this case.
24.Arguments were heard at length. During the course of arguments, it is argued and submitted by the counsel for accused that accused persons have been falsely implicated in the present case by the complainant. Ld. counsel Sh. N.S. Raghav for accused persons namely Naeem and Mohd.Hasan argued at length and submitted that in the statement of PW11 Ahad Basir, no name of any accused as well as the identification of accused has been given. The prosecution story is that the complainant Ahad Basir was working in his factory along with his servant PW8 Asif on 16.08.2005 at around 12:50 p.m. one tempo TATA-407 blue coloured covered with Tirpal passed in front of the factory towards 66 ft. road. In the meanwhile, he heard the sound of firing. He sat under the table. The number of the said Tempo could not be noticed but when the complainant enquired from FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 27 / the Mohallya people, he came to know from one boy named Bhure, who was sitting in the corner of the Gali told that two boys, who were on bullet motorcycle ran away towards Seelampur side, which was a wrong side and the boy, who was sitting on pillion seat was having long and curly hair might had fired. But during the course of investigation, no person by the name of Bhure was joined as a witness in the present case being of a crucial and essential witness for the case. During the course of examination on oath, the complainant had not disclosed that he was present along with his servant Asif when the fire took place, meaning thereby that no such incident ever occurred and the story only concocted and hatched between the complainant and the IO only to remove out the accused persons from the business, he has improved his version and alleged that accused persons forced him to make payment of defected goods to Neeraj Jain. He has further made allegations that both accused visited him on 15.08.2008. They met his elder brother Ashad Bashir here the PW-1 outside the house and demanded Rs. 50,000/- from his and rest of the payment of Rs. 1,50,000/- on 17th of the month, who refused to make any payment. Thereafter they threatened his brother if he is not making any payment. Thereafter he further FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 28 / alleged that on 10.03.2005, he filed the complaint to the Seelampur S.H.O. Ld. counsel further argued and submitted that when the brother of the complainant was examined before the court as PW-1, he has denied and has not supported the story of his brother, the complainant despite he was cross-examined at length by the Ld. APP for state. Meaning thereby that it is a false, concocted and fabricated case against accused Mohd. Hasan and Naeem Pehlwan because of the business rivalry. According to the IO and prosecution, the supplementary statement of the complainant was recorded in the evening of 16.08.2005 when he disclosed the name of assailants but in his cross examination, the complainant has told that his supplementary statement was recorded after 5-7 days of the incident when the first time he disclosed the names of assailants. The complainant further disclosed the names of accused persons when the cross examined on behalf of Neeraj Jain took place, he had stated that he had disclosed the detailed facts and name of accused persons after 8-15 days of the incident to the police but where is that statement meaning thereby all the story has been cooked and fabricated. The complainant has also improved his version when he was examined in court that on 16.08.2005 around 12:50 pm, when he FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 29 / was at his factory the work was going on, the accused Naeem Pahlwan came there and made a fire upon him and accused Sufi was already standing on a motorcycle in start condition. The complainant who is PW11 was cross examined on behalf of accused Mohd. Hasan and Sufi, he was confronted from the statement Ex. PW-6/A to the effect that on 16.08.2005 when accused Naeem fired upon him, he ducked under the table confronted with the statement Ex. PW-6/A where it has not been recorded. In his version, he had also mentioned in his statement dated 16.08.2005 that the bullet hit against the wall confronted with Ex. PW-6/A where it has not been so recorded. I had mentioned in my statement Ex. PW-6/A that someone made call on 100 number, DCP and ACP also reached at the spot confronted with Ex. PW-6/A where it has not been so recorded. He had mentioned in his statement Ex. PW-6/A that he started running towards road No. 66 confronted with Ex. PW-6/A where the name of assailant is not mentioned. He had seen the assailants running towards 66 No. road and had mentioned in his statement Ex. PW-6/A that one of the boy was sitting on the motorcycle in start condition confronted with Ex. PW-6/A where it has not been so recorded. Ld. counsel for accused persons further FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 30 / submitted that when this witness further cross-examined in regard of Ex. PW-6/A, he has narrated the version that he has given the said statement but nobody knows as to how he was in a position to see the persons, who fired in the factory and ran away when he has clearly mentioned in the said statement that a TATA-407 blue coloured covered with Tirpal passed away when the firing took place. He has clearly stated that he has not noticed the number of the tempo because of the Tripal, meaning thereby that no such incident has ever occurred. Ld. counsel for accused persons further submitted that when this witness was further cross examined to the effect that what was the colour of motorcycle, he ignored the question and simply said that bullet motorcycles are always in steal colours. In his further cross examination, it has been revealed by PW-11, the complainant that first he came to know from one Bhure, who was sitting in the corner of the gali that two persons, who were on bullet motorcycle ran away and one of the boy, who had long and curly hair might had fired but in the supplementary statement allegedly recorded by the police on16.08.2005, however, he denied to make supplementary statement on the same day has allegedly stated the name of assailants when he was not in a position. ld. counsel FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 31 / again argued and submitted that when this witness was further cross- examined in regard of the improved version before the court, he denied having made such statement before the police. In his version, he has not mentioned in his statement Ex. PW-6/A, that accused Mohd. Hassan and Naeem Pahlwan had visited his shop in Gandhi Nagar about one month from the date of incident. He had not mentioned in his statement that aforesaid accused asked him to make payment of the defected goods but he refused. He had not mentioned in his statement in Ex. PW-6/A that accused started putting pressure upon him to make payment of defected goods. He had not mentioned in his statement Ex. PW-6/A that aforesaid reason, he could not open his shop for several days on proper timing. Ld. counsel further argued and submitted that PW11 had not mentioned in his statement Ex. PW-6/A that accused Mohd. Hasan and Naeem Pahlwan came to his house and asked him to pay Rs. 5,00,000/- to both of them. He remained sitting under the table for about 4-5 minutes, thereafter he came out and told by Bhure and neighbours that the persons, who fired at his factory was having long and curly hair and was sitting on a motorcycle. Meaning thereby that it is Bhure, who can explain the real story of the FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 32 / prosecution and none other. During this 4-5 minutes period, the assailants already hidden then how the complainant can say as to who fired in the factory.
25.Ld. counsel for accused persons further argued and submitted that besides this, the prosecution itself has mentioned the fact under report 173 Cr.P.C., which is the charge sheet after 5 line of the bottom that in order to get the money recovered from complainant to Neeraj Jain, the accused Naeem and Md. Hasan had fired out side the house of complainant in order to terrorized them, meaning thereby, no offence U/s 307 of IPC is made out. Even otherwise the prosecution story in pieces is that there was a business transaction between Neeraj Jain and the complainant and the defected goods were returned, which were taken from Neeraj Jain to him by the complainant but Neeraj Jain, the accused remained asking his money and ultimately Md. Hasan and Naeem asked to get his money recovered from the complainant. If there was any transaction between the two, then where are those receipts, ledger receipts or any kind of receipt through which the transaction received or returned. Ld. counsel emphasized that as to why the prosecution or the FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 33 / complainant has not produced any kind of such documents on record, meaning thereby that there was no transaction between the two and all the story got concocted, fabricated in order to demolish the image of accused persons in the business society. Ld. counsel for accused persons again argued and submitted that in order to bring section 120-B of IPC, the provision of section 10 of Evidence Act has to be considered. That there is no evidence with the prosecution to prove the conspiracy hatched among the accused persons. The prosecution has only disclosure statements of accused persons after their arrest, which are not admissible in evidence. The said statements are also not admissible u/s 10 of Evidence Act. Once the accused has been arrested, the conspiracy comes to an end and the statements recorded after the arrest cannot form the basis of conspiracy. In this regard Ld. counsel Sh. N S Raghav has relied upon the following citation in this regard:-
i) " MOHD. AFZAL VS. STATE (PARLIAMENT CASE) REPORTED IN 2005 (3) JCC 1404 SC" in which it has been held that:
" the statements made by the conspirator after he was arrested cannot be considered within the ambit of section 10 of Evidence Act because by that time, conspiracy would have ended."
ii) Similarly it has been held in SIDDHARTHA & ORS. VS. STATE OF FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 34 / BIHAR, REPORTED IN 2006 (2) JCC 978" , that :
" confession of A.D. was made after common intention of the parties exists no longer a conspiracy had been accomplished. Section 10 is not applicable and cannot be invoked."
Ld. counsel for accused persons further submitted that in view of the above discussion and the reference may be made to a judgment of Delhi High Court reported in '1996(3) CCS 109, ARUN KUMAR VS. STATE' that: a place from where the dead body was recovered was already in the knowledge of the police before the disclosure statement. That part of the disclosure statement is not admissible.
26.Ld. counsel Sh. N.K. Bhadoria, filed the written submissions on behalf of accused Neeraj Jain. It has been submitted that on 16.08.2005 at about 12:50 P.M. someone fired and the said information was given to the police control room by phone on which DD No. 38 B dated 16.08.2005 was recorded and after 2 ½ hour one blind FIR no. 462/2005, U/s 336 IPC R/W 27/54/59 was registered without naming to any of the accused person. It is further submitted by the ld. counsel that after few days on secrete information one accused Sufi Kalwa was arrested and Complainant identified him and concocted story that he was assaulted at the instance of accused FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 35 / Neeraj Jain and when the surrendered before the police and Sufi Kalwa, Neeraj Jain, Nayeem Pehelwan were booked by the police for the offence under section 336 IPC which was converted into 307 & 384 IPC without any permission from the higher officer or assigning any reason. It is also submitted that 13 witnesses were produced by the prosecution. PW-1 Ashad Basir is the real brother of the Complainant Ahad Basir (PW11) turned hostile and did not support the prosecution story in any manner. Ld. counsel further argued and submitted that PW-2 Mohd. Shahid who was alleged to heard and seen the incident also turned completely hostile and not supported the prosecution story in any manner. PW-3 Ct. Surender Singh is of formal nature and only D.D. writer not any name in the D.D. No. 38-B. PW-4 Rattan Singh is photographer and is also a formal witness. PW-5 Ct. Nanak Chand who stated to remain with the I.O. and is also of formal nature and in cross examination he admitted that he has no personal knowledge and stating hear say which has no value in the eyes of law and is also of formal nature. Ld. counsel for accused persons further argued and submitted that PW-6 A.S.I. Prem Singh is I.O Of the case admitted in his cross examination that the accused person are not named in the DD Or FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 36 / even in the FIR while the Complainant later on stated he was fully conversant with the assailant while he did not mention even the identity particulars of the accused persons. IO further admitted in his cross examination that he did not involve any independent witness in such seizure and recovery while the area is thickly populated area and building the place of incident is alleged to be three story building where many persons used to work. IO shown the heavy money matter and transaction of about 15 lacs between the Complainant and Neeraj Jain while no evidence, receipt or any slip of any transaction was collected by the I.O. which shows the highly improvable and impossible story of the prosecution and the motive is not proved in any manner. I.O. also did not mention any reason to convert the case into 307/384 IPC and no recovery was effected from any of the accused persons. Ld. counsel for accused Neeraj Jain submitted that accused Neeraj Jain specifically denied any relation with Sufi Kalwa or Nayeem Pehelwan in any manner, IO also has also failed to collect any evidence to link the Neeraj Jain with the alleged accused Sufi Kalwa and Nayeem Pehelwan, no evidence of meeting of mind conspire or telephonic conversation or any type of link was investigated or brought on the record by the I.O. as there was no link FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 37 / of accused Neeraj Jain with the other accused persons in any manner. PW-7 is HC. Malkhana Moharar and of formal nature. PW- 8 is worker of Complainant and is also completely hostile not supported prosecution story in any manner and specifically denied to having any knowledge of the case or incident. PW-9 is a duty officer of formal nature. PW-10 is HC Ashawini Kumar brought register of the complaint and denied that no entry of any complaint is in the register which shows the prior complaint before the incident shown by the prosecution are false and fabricated.
27.Ld. counsel further argued and submitted that so far as the PW-11 Complainant is concerned, he himself and in his own statement stated that he was fully conversant with the assailant but he did not mention the name and identity particulars of the accused is highly doubtful and even any dealing with Neeraj Jain is also unbelievable as he did not produce any receipt, document or any proof of dealing with Neeraj Jain and the entire statement is false, concocted, improvable and impossible, he himself stated to be man of neat and clean incidents while in cross examination he admitted case against himself and uncorroborated testimony of the Complainant who is man FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 38 / of criminal nature facing many trials and is also Complainant in many cases some FIR are on record proved by the defence witness against the Complaint and his testimony is unbelievable and highly doubtful as his own real brother, neighbour, worker of his own factory are hostile witnesses and not supported the Complainant statement in any manner.
28.Ld. counsel further argued and submitted that PW-12 Sudhir Kumar is of formal nature of arrest of a Neeraj Jain who surrender before the police. PW-13 Ct. Narender Sarma is also of formal nature.
29.Ld. counsel further argued and submitted that accused Neeraj Jain himself appeared as defence witness with the permission of this Hon'ble Court who produce many FIR In which Complainant Babbu Malik is himself accused and in many cases he is Complainant which shows his criminal mentalities and the name of the accused was involved to extort money or to take undue advantage of which Complainant is habitual.
30.Ld. counsel for accused persons has also relied upon the following FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 39 / citations:
i) " Ali & Anr. - Appellants Vs. State of Kerala- Respondent 2010 (3) C.C. Cases (SC) 10" wherein the following observations were made:-
" 25. As noticed earlier, the post mortem report has been accepted by both the sides, according to which Faizal died due to hemorrhage and shock suffered by him because of the injuries on the major vessels of neck. While discussing points No.2 and 3, the Trial Court notices that PW1 is a native of Mittur, in state of Karnataka and has been living in the house of PW5 as worker under him for the last about 10 years. he had gone with PW2 and the deceased Faizal to the house of CW9 t about 9.15Pm on 30.01.94, It is alleged by the prosecution that the occurrence took place, whilst they were enroute to the house of CW9. PW1 has supported the prosecution version. It was he who gave Ex. P1 FIS to PW7 on the basis of which crime against A1 to A6 Was registered at Kumbla Police Station. The Trial Court then notices the sequence of events as narrated earlier. Prosecution mainly relied on the evidence of PW1,2 and 5 in support of its version."
" 34. The Trial Court then critically examined the evidence of PW5, father of PW2.PW3 had also treated PW5 and given wound certificate Ex. P5. It is noticed that PW9 did not question PW5 till 04.02.94. IT was after questioning PW5 that A13 was added to the earlier accused and then no explanation was available as to why PW5 was not questioned till 04.02.94. The only explanation given by the prosecution is that he was not available for interrogation. Rejecting the aforesaid explanation the Trial Court concluded that PW9 deliberately delayed recording the statement of PW5 to implicate other innocent persons. At this stage, the prosecution had argued that the statements of PW2 and PW5 cannot be discarded only on the ground that they are interested witnesses. The principle of law is accepted by the Trial Court notices that there is absolutely no independent evidence in this case to corroborate the evidence of these interested witnesses. Neither the immediate neighbours nor any of the people living in the vicinity have been examined. The FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act
40 / explanation given by the prosecution is that due to enmity towards PW5 and his family none has come forward to give the evidence. The Trail Court, therefore, observes that in such circumstances the evidence of PW1 and PW2 had to be carefully examined to rule out any inherent inconsistencies. The Trial Court further notices that there is no independent evidence wit regard to the injuries cause to PW2 by A2,A3,A5 and A6. If these four persons had actually attacked PW2, he would have suffered many more grievous injuries. The only grievous injury suffered by him was fracture of ulna lower and other injuries were simple in nature. PW2 at that time had run away. Faizal after suffering fatal injuries had fallen down. Again there is no corroboration from any independent witness."
" 36. According to PW10 injury No.5 is a grievous injury. Similarly,injuries in respect of A7 were given in Ex.P24. This also shows that he had sustained an incised wound 2 and half inches long over the left forearm with tendons divided. This injury is grievous in nature. As noticed earlier, this assault had resulted in the registration of transfer FIR in Crime No, 67 if 1994 which was subsequently transferred and registered as Fir Ex.P12 at Kumbla Police Station. There is no explanation offered of the injuries. The Trial Court notices that in this case PW9 had concluded after the investigation that both the cases are true. But none of the prosecution witnesses PW1, PW2 and PW5 speak about the manner and the circumstances under which A2 to A7 had sustained injuries. Therefore, this also leads to the conclusion that the prosecution story s put through PW1,2, and 5 is not correct."
" 39. On the basis of the law as settled by this court in number of judgments which are noticed by the High Court, it is held that relationship is not a factor to affect credibility of a witness. It is more than often than not that a relation would not conceal actual culprit and make allegations against an innocent person leaving a way for the real accused to escape. PW2 is not only related to PW5 but he was also seriously injured. The High Court reiterates that the presence of PW2 at the scene of occurrence is not disputed due to the registration of the counter case. With regard to the non explanation of the injury on the accused, it is stated that PW9 and PW10 spoke about the same. The injuries were also explained by PW10, the doctor, who stated that the injuries in Ex.FIR no. 462/ 05
U/s 307/384/34 IPC & 27/54/59 Arms Act
41 / P23 and P24 certificates can be caused otherwise than by assault, i.e., by a fall or by a road transport accident."
" 40. Upon consideration of the entire evidence, the High Court held that the prosecution was able to prove the case conclusively against A1 to A6 beyond any shadow of doubt. The High Court also recorded that the " the findings by the Sessions Court otherwise is perverse and manifestly erroneous. Appreciation of evidence by the Sessions Court in this case lacks coherence and findings are based on unwarranted assumptions. Hence, even though it is an order of acquittal, interference is required" . The High Court also observed that " in this case, only conclusion possible from the evidence is that accused Nos. 1 to 6. i.e., respondents in this appeal are guilty of the charges levelled against them against them." With these observations, the judgment of the Trial Court was set aside and the appellants were convicted as noticed by us above.
" 44. This settled proposition of law has been reiterated by this Court in the case of Chandrappa Vs. State of Karnataka {2007(4) SCC 415}. In this case, the provisions of Section 378 of the Code of Criminal Procedure, 1997 were critically examined. After adverting to numerous decisions of this Court, it was observed as follows:
" From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, re-
appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, " substantial and compelling reasons" , " good and sufficient grounds" , " very strong circumstances" , " distorted conclusions" , " glaring mistakes" , etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 42 / nature of " flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must beat in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly. the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the Trial Court."
From the above, it becomes evident that if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the findings of acquittal. The acquittal re-enforces and reaffirms the presumption of innocence of the accused. The High Court, in fact, makes a reference to the judgment of this Court in the case of Kali Ram Vs. State of H.P., (1973) 2 SCC 808, wherein this Court has observed :
" Another golden thread which runs trough the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted."
" 47. There was a clear cut enmity between PW5 and his family on the one side and the accused party on the other side. It was a religious dispute which undoubtedly led to high tension. The majority group had gone so far as to encourage the members of its community to annihilate PW5 and his family. Prior to the assault, there was a meeting of the Muslim community. The incident took place in the dark. The Trial Court noticed tat none of the torches were recovered or produced by any of the concerned persons. There was also no moon light. In such circumstances, the recognition of the six accused FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act
43 / may not be possible. The Trial Court had meticulously examined each and every issue. The Trial Court also noticed that there was anticipation of trouble otherwise there was no occasion for PW2 to be accompanied by PW1 and Faizal for going to the house of CW9,brother of PW5. The Trial Court also traced the progress of these three individuals through the paddy field. Since it was a dark night, it was not entirely unbelievable that the torches had been introduced to ensure that the accused could be said to have been identified. Surprisingly, after Faizal was fatally injured, PW1 bolts from the scene of crime. This PW1 is so loyal to PW5 that the has been taking undue advantage of being a scheduled caste and lodging false complaints against the accused persons under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 1989. Yet when the other faithful servant of PW5 was being brutally murdered, he decided not to defend and ran away. The Trial Court, therefore, concluded that the behaviour of PW1 was wholly unnatural.
" 51. Mr. Ranjit Kumar also pointed out that PW2 in the witness box merely stated that he was tired at the time when PW7 had come to the house of CW9. The Trial Court noticed that there was absolutely no explanation with regard to the injuries suffered by the accused. This apart, ll the witnesses being interested witnesses, their evidence could not be believed in the absence of independent corroboration."
" 52. In our opinion, taking into consideration the entire facts and circumstances of the case, it would not be possible to agree with the High Court that the findings recorded by the Trial Court were perverse or that only one conclusion consistent with the guilt of the accused was possible. We are of the opinion that the two views being reasonably possible the High Court ought not to have interfered with the verdict of acquittal recorded by the Trial Court. Consequently, we allow the appeal and set aside the judgment of the High Court."
ii) " Bhagat Singh- Appellant Vs. State - Respondent 2010(3) C.C. Cases (HC) 85"
" 28. We have carefully considered the rival contentions. The case of the prosecution as discussed above is base FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act
44 / mainly upon the purported eye witness account of the occurrence given by PW4 Jagmohan Singh and PW8 Gurinder Singh. Other two eye witnesses examined by the prosecution are PW3 Manohar Singh has not supported the case of the prosecution at all. He claimed that hundreds of rioters attacked their house in the morning of 01.11.84 at around 10.00 AM and on seeing them, he ran away from the spot due to fear and himself in the house of his friend. He has neither identified any of the rioters nor has he stated about presence of either of his brothers, namely, PW4 Jagmohan Singh and PW8 Gurinder Singh at the time of said attack. He has not even cross-examined by learned APP to controvert his version regarding the time of occurrence or to suggest to him that Jagmohan Singh and Gurinder Singh were present sat the spot or that they sustained injuries in the aforesaid attack."
" 32. We may note that on perusal of the affidavits Ex. PW4/DA and Ex.PW4/DD submitted by Jagmohan Singh and his father Joginder Singh before Justice Ranganath Misra Inquiry Commission, it transpires that in the said affidavits PW4 and his father alleged that one Master Srikishan, member Muncipal Corporation was also present at the time of occurrence. Those affidavits admittedly were forwarded by Justice Jain Aggarwal Committee to Delhi Government along with their recommendations for further investigation in to the case FIR No. 489/84, P.S. Sarai Rohilla under section 173(8) Cr.P.C. That being the case, it was expected of the investigating agency to examine Master Srikishan during investigation and cite him as a prosecution witness. Master Srikishan has neither been cited as a witness nor examined by the prosecution. This circumstance also goes against the prosecution because the only independent eye witness of the occurrence whose identity was available to the police has been withheld by the prosecution. This raises a presumption that had Master Srikishan been produced in the court, he would not have supported the case of the prosecution."
" 33. The result of above discussion is that the testimony of PW4 Jagmohan Singh and PW8 Gurinder Singh is highly suspect and it is not safe to base conviction of the appellants on the aforesaid evidence, particularly when other two purported eye-witnesses PW3 and PW7 have not supported the prosecution case against the appellants. Therefore, we set side the impugned judgment of conviction and acquit the appellants on all the counts, giving them benefit of doubt."FIR no. 462/ 05
U/s 307/384/34 IPC & 27/54/59 Arms Act 45 /
iii)Kamal Kishore Vs. The State though Delhi Administration 1997 I AD (Cr.) DELHI) 443 Crl.R.51/96 & Crl.M.885/96:
" 15. In the circumstances, the learned Magistrate has erred in framing the charge against the petitioner and his order to the extent of framing charge against the petitioner in the present case, cannot, in the light of above discussion, be sustained. Accordingly, the petition is allowed and the orders on charge dated 22.07.1995 and charge dated 19.9.1995 passed by the learned Metropolitan Magistrate, New Delhi to the extent those relate to the petitioner are hereby set aside."
31.Having perused the judgments relied upon by the counsel, the sum and substance of the same is that if two reasonable conclusions were possible on the basis of evidence on record, the court should not disturb the findings of acquittal. The disclosure statement/ confession statement not leading to recovery and if co-accused also made disclosure statements which led to recovery - both are not admissible in evidence. The confession to co-accused cannot be treated as substantive evidence. Out of the aforesaid discussion the following findings emerged:-
a)That on 16.08.05 a bullet was fired at complainant PW11 Ahad Basir vide Ex. Pw6/C at wall;
b)The Empty cartridges and bullet was recovered from the place of incident vide exhibit PW6/C;
c)The complainant and accused persons were known to each other on account of having similar business or living in the vicinity vide deposition of PW11;FIR no. 462/ 05
U/s 307/384/34 IPC & 27/54/59 Arms Act 46 /
d) No weapon of offence has been recovered;
e) The names of accused persons were not disclosed in the first information by complainant as he could not see them; and
f) The person Bhure, who allegedly had seen the accused persons, has not been made witness in this case.
32.The aforesaid findings form the substance of this case. The other aspects relating to conspiracy are also crucial in this regard. Though it can be reasonably inferred that there would be conspiracy against the complainant between accused persons yet the sole conviction on the basis of it cannot be based for the offences u/s 307/ 384 IPC as no direct testimony has come on record precisely for the reasons that material witnesses are hostile witnesses i.e. PW1 Asad Basir (brother of complainant), PW2 Mohd. Shahid and PW8 Mohd. Asif. However, so long as the observations made on criminal conspiracy are concerned, it is on record that complainant and accused Neeraj Jain has been in the business dealings as a result of which there was usual exchange of goods and money during the course of transactions and on one of the occasions there was dispute on account of one dealing pertaining to the incident in question. The offence of criminal conspiracy u/s 120(A) and 120(B) IPC can be inferred from the fact that complainant PW11 Ahad Basir identified the FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 47 / accused persons when a bullet fire was made by them the imprint of which were found on wall along with empty cartridges vide Ex.PW6/C. However, the deposition of PW11 Ahad Basir who happens to be the complainant if believed in entirety it may definitely goes to the root of the judicial principle of fair determination beyond reasonable doubt against the accused persons precisely for the reasons that as per the instance neither the complainant disclosed the identity of accused persons in his statement on which a rukka was prepared and nor at the time when FIR was recorded at the police station therefore, unless the statement of complainant is not corroborated from other independent witnesses the conviction for the offences u/s 384/ 307/ 34 IPC may result into miscarriage of justice.
33.So long as the corroboration from other sources is concerned, in this case the most material witness PW1 Asad Basir, PW2 Mohd. Shahid and PW8 Mohd. Asif , have been got declared hostile.
34.Now, this court will take up the issue of criminal conspiracy u/s 120 A and 120 B of the IPC. In the present case it is on record that there was business dealing with the complainant and accused Neeraj Jain FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 48 / and other co-accused were also known to each other. Over one dealing of business a dispute between complainant and accused Neeraj Jain took place as is evident from the testimony of PW11 complainant. To this effect complainant addressed one complaint to Lt. Governor vide dated 12.08.05 and another addressed to SHO PS Seelampur vide dt. 10.03.2005 and these complaints were recovered by the I.O. during the course of investigation vide seizure memo Ex.PW13/A and these complaints were regarding harassment and danger to life of complainant from accused Neeraj Jain and other persons. So much so deposition of PW11 complainant and PW13 form the substance for the determination and adjudication of the case.
35.In this regard it is important to note that the accused persons in support of their defence examined one of the accused Neeraj Jain himself u/s 315 Cr. PC and DW2 Mohd. Maqsood, DW3 Mujaffar Ali and DW4 Mohd. Akhtar. Perusal of the statement of DW1 reveals that complainant PW11 is also a criminal type of person against whom several criminal cases are pending. DW2 has also deposed that the accused persons have been falsely implicated by the complainant. DW3 Mujaffar Ali in his deposition has also denied FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 49 / having seen the incident. DW4 Mohd. Akhtar in his deposition has deposed that on 30.08.2005 he along with other persons had gone to the office of DCP in connection with a false implication of accused Mohd. Hasan and other persons and DCP assured them some action against complainant for making false report. These defence witnesses were cross-examined by ld. APP. In view of this background For the sake of brevity and convenience let the section 120, 120 A and 120 (B) IPC be re-produced. The same are as under:-
Section 120 " Concealing design to commit offence punishable with imprisonment - Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with imprisonment, Voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design, if offence be committed/ if offence be not committed
- shall, if the offence be committed, be punished with imprisonment of the description provided for th offence, for a term which may extend to one-fourth, and, if the offence be not committed, to one-eight, of the longest term of wuch imprisonment, or with such fine as is provided for the offence, or with both."
Section 120A " Definition of criminal conspiracy - When two or more persons agree to do, or cause to be done, -
(1) an illegal act,or (2) an act which is not illegal by illegal means,such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act
50 / commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof." Section 120 B " Punishment of criminal conspiracy - (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."
36.Having given careful consideration to the submissions of ld. counsel for accused and submission of ld. APP of this court. The deposition of this witness to the extent that accused Mohd. Naeem fired on the day of incident at him and he ducks, cannot be believed for the purpose of conviction u/s 307/384/ 34 IPC r/w 120B IPC since all the material witnesses have been got declared hostile. No recovery was effected in this case from any of the accused persons. The most important person namely Bhure, who has allegedly seen the incident in question by his own eyes neither has been made witness nor was brought before this court for examination. Therefore, I am of the view that prosecution has failed to prove its case u/s 307/384/34 r/w 120 B IPC & for the offence punishable u/s 27/54/59 Arms Act for having made fire upon complainant.
FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 51 /
37.Undoubtedly, it is well settled proposition of law that no disclosure statement is admissible unless recovery of some fact is made consequent upon the disclosure statement of accused yet the disclosure statements of accused Sufi @ Kalwa, Neeraj Jain and Mohd Naeem lend some assurance to the supplementary statement made by the complainant that in all probability one inference comes on record that accused persons have participated in making criminal conspiracy to cause threat to the complainant as in the disclosure statement of accused Neeraj Jain it has come on record that he had business transactions with complainant and about Rs.15 lacs were due towards complainant/ victim so he hired accused persons namely Sufi @Kalwa and Naeem Pahalwan to get recovered his money. IN the disclosure statement of accused Sufi Kalwa it has come on record that accused Neeraj Jain asked him and accused Naeem Pahlwan to get recovered his money i.e. Rs. 10 - 11 lacs from complainant/ victim. He further disclosed that when complainant/ victim did not give the money of accused Neeraj Jain, they felt insult and decided to teach a lesson to victim so accused Naeem Pahalwan fired upon him on 16.08.05. In the disclosure statement of accused Naeem Pahlwan it has again come on record that accused Neeraj Jain asked him and accused Sufi Kalwa to get recovered his money i.e. Rs. 10 - 11 lacs from complainant/ FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 52 / victim. He further disclosed that when complainant/ victim did not give the money of accused Neeraj Jain, they felt insult and decided to teach a lesson to victim so accused Naeem Pahalwan fired upon him on 16.08.05. So, it can safely be inferred that there was a meeting of mind to enter into a criminal conspiracy to cause criminal intimidation to the complainant as complainant in his deposition has categorically stated that he has a quarrel with accused Neeraj Jain on account of some business dealings and other two accused persons were used by him for recovery of the amount. It is on record that I.O. seized photocopy of complaints relating to threat caused by accused Neeraj Jain with other persons to complainant/victim already made by complainant with the police vide mark Z and Z1 on the judicial file and seizure memo vide Ex.PW13/A. So it can easily be inferred that accused persons conspired to cause criminal threat. In view of this I hold the accused persons guilty u/s 120 B read with section 503 and 506 IPC.
Accordingly, I acquit accused persons namely Neeraj Jain, Mohd.Hassan and Mohd. Naeem for the offences u/s 307/384/34 r/w 120B IPC & for the offence punishable u/s 27/54/59 Arms Act for having made fire upon complainant.
I hold the accused persons guilty u/s FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 53 / 120 B read with section 503 and 506 IPC.
OBSERVATION:
Before parting with the delivery of the judgment I would like to make a note with regard to the conduct of the IO that in this case IO did not make witness to Bhure who had allegedly seen the incident in question as per the version of PW11 Complainant Ahad Basir. Though this was within the discretion of Investigating Officer/ authority to make witness yet I found that preparatory, adoptive, communicative, and implementative measures taken by the IO / authority are inadequate for the collection of the evidence. In view of this, respectful DCP is directed to ensure the regulatory measures to prevent further recurrence of such lapses.
ANNOUNCED IN THE OPEN COURT ON THIS 18.08.2010 (RAJ KAPOOR) ADDL. SESSIONS JUDGE-I/NORTH EAST KARKARDOOMA COURTS: DELHI FIR no. 462/ 05 U/s 307/384/34 IPC & 27/54/59 Arms Act 54 /