Delhi District Court
State vs . on 25 July, 2022
IN THE COURT OF SH REETESH SINGH: ADDITIONAL SESSIONS
JUDGE-2 (EAST), KARKARDOOMA COURTS, DELHI
CNR No. DLET01-006307-2015
SC No. 1523/2016
FIR No. 979/2014
PS Gandhi Nagar
Under Section 302/307 IPC & 25 Arms Act
IN THE MATTER OF :-
State
Vs.
Rahul
S/o Sh. Ram Kishan
R/o Jhuggi No. 101/C-47,
Gali no. 8, Old Seelampur, Delhi.
..... Accused
Date of institution : 04.04.2015
Final arguments : 13.07.2022
Date of order : 25.07.2022
JUDGMENT
1. Accused Rahul is facing trial in this Court for the offence under section 302 of the IPC for having caused the death of Mohd. Mumtaz while attempting to kill Mustafa on 16.12.2014. Rahul is also charged with the offence CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 1 of 35 under section 307 of the IPC for attempting to kill Mustafa with a firearm and for the offence under section 25 of the Arms Act for being in conscious possession of a firearm and ammunition without a valid licence.
2. The manner in which the incident came to be reported is explained in the police report under section 173 (2) of the Cr.P.C. as per which on 16.12.2014 at about 7:25 PM PCR call was recorded vide DD no. 33-A Ex.PW11/A by PW-11 HC Ram Kishan in PS Gandhi Nagar about a boy having been shot with a bullet at Gali no. 4, School Wali Gali, Ajeet Nagar, Old Seelampur, Delhi and that one boy had been caught. Information of the same was communicated by PW-11 to SI P.S. Rawat PW-15 telephonically who proceeded to the place of incident along with Ct. Pradeep PW-14. There they saw public persons gathered near house no. 9/4732, Gali no. 4, Old Seelampur and blood was found on the floor in the TV repair shop of the said house. One person Mustafa was in the custody of the public persons.
3. At about 8:30 PM, DD no. 35-A Ex.PW11/B was recorded by PW-11 about information received from Ct. Rajesh from Jag Parvesh Chandra hospital that Mohd. Mumtaz had been brought by Manish in the hospital after gunshot injury and that he was declared brought dead. The said information was again telephonically conveyed by PW-11 to SI P.S. Rawat PW-15. In the meanwhile SHO Inspector Manoj Pant and ATO Inspector Braj Mohan PW-24 also came to the place of the incident. PW-15 SI P.S. Rawat then left Ct. Pradeep at the place of incident and proceeded to Jag Parvesh Chandra Hospital where he collected the MLC Ex.PW8/A of the deceased in which Mohd. Mumtaz was declared brought dead. PW-15 SI P.S. Rawat called Ct. Sandeep PW-13 to the hospital and directed him to get the body of the deceased preserved at Subzi Mandi Mortuary for which he gave an application to Ct. Sandeep. Ct. Sandeep took the body of the deceased CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 2 of 35 to Subzi Mandi Mortuary for preservation. PW-15 SI P.S. Rawat found Manish Sharma PW-1 in the hospital and recorded his statement Ex.PW1/A on the basis of which the FIR in this case came to be registered.
4. As per the statement Ex.PW1/A, Manish Sharma was residing at H. No. 9/4732, Gali No.4, Old Seelampur, Delhi in which he has a TV repair shop on the second floor. Mohd Mumtaz Ansari (deceased victim) was working in a shop as a mechanic. On 16.12.2014 at about 7.15 pm, Manish Sharma and Mohd. Mumtaz Ansari were present at the said shop. At that time two persons were seen by Manish Kumar fighting with each other at the Chowk in front of his shop. One boy overpowered the other and pushed the other boy while punching him. The other boy then took out a pistol from the backside of his trousers and fired a shot from the same but the bullet did not hit the other boy but hit Mohd. Mumtaz who was standing with Manish Sharma. Mohd. Mumtaz fell down on the ground and blood started oozing from his head. Persons of the public caught hold of one of those boys but the boy who had fired from the firearm managed to flee from the place of incident. The boy who was apprehended by the public revealed his name as Mustafa. Manish Sharma called the PCR by dialing 100 and took Mohd. Mumtaz to Jag Parvesh Chandra Hospital in a TSR for treatment where the doctors declared Mohd. Mumtaz dead on arrival. Manish Sharma in his statement Ex. PW1/A also gave description of the physical appearance of the boy who had fired with the firearm to be about 5 feet 3 inches in height, dark colour, aged about 20- 22 years who was wearing a blue coloured jeans and a cream coloured jacket. Manish Sharma in his statement further stated that he would be able to recognize that person who had fired with the intention to kill Mustafa who however survived but the bullet caused fatal injuries to his mechanic Mohd Mumtaz.
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5. PW-15 SI P.S. Rawat proceeded to the place of the incident with Manish Sharma, prepared rukka Ex.PW15/A and sent the same to the police station through Ct. Pradeep PW-14 for registration of the FIR which was registered by PW-11 HC Ram Kishan vide Ex.PW11/C. The Crime Team reached the place of the incident. PW-5 Inspector Narender, In Charge of the Mobile Crime Team inspected the place of incident and prepared his report Ex.PW5/A. Along with him, PW-4 HC Sanjeev had taken photographs of the place of incident where deceased Mohd. Mumtaz had received gunshot injury vide Ex.PW4/A1 to Ex.PW4/18. Further investigation of the FIR was assigned to Inspector Braj Mohan PW-24 to whom Ct. Pradeep PW-14 handed over copy of the FIR and original rukka after coming back from the police station to the place of incident.
6. PW-24 Inspector Braj Mohan collected the scene of crime report Ex.PW5/A from SI P.S. Rawat, inspected the place of incident at the instance of PW-1 Manish Sharma and prepared site plan Ex.PW24/A. He recorded the statements of PW-1 Manish Sharma and Mustafa PW-3. He lifted blood sample from the place of incident and kept the same in a plastic vial, blood stained pieces of floor after breaking the same with chisel and hammer and kept the same in a plastic vial, earth control i.e. pieces of floor which he kept in a plastic vial. The three vials were given mark of A-1, A-2 and A-3, converted into cloth parcels, sealed with the seal of BM and seized vide memo Ex.PW24/B. PW-24 Inspector Braj Mohan recorded the statements of SI Narender Kumar, Ct. Sanjay and deposited the case property in the malkhana with MHC(M) PW-18 ASI Susheel Kumar who made relevant entries in Register no. 19 vide Ex.PW18/A.
7. The police report further states that on 17.12.2014 body of the deceased Mohd. Mumtaz was identified by PW-6 Shamshad Ansari and PW-7 CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 4 of 35 Shehnaz Begum vide memos Ex.PW6/A and Ex.PW7/A respectively. PW-24 Inspector Braj Mohan made a request vide Ex.PW24/D for conducting of postmortem examination which however could not be conducted that day as the doctor had advised to get the body X-Rayed before postmortem examination. On 18.12.2014 X-Ray of the body was conducted at Aruna Asaf Hospital as per the advice of the doctor after which postmortem examination of the deceased was done by PW-9 Dr. Sandeep Garg vide report Ex.PW9/A.
8. As per the postmortem examination report Ex.PW9/A, one fire arm injury entry wound 1.4 cm x 1 cm x cranial cavity deep with surrounding abrasion collar was found present over the front of middle portion of right ear pinna just above the right ear opening. There was no surrounding burning, blackening and tattooing. The report states that the bullet entered the cranial cavity after piercing through the right temporal bone, passed over the base of the right middle and anterior cranial fossa. It entered into the right maxillary sinus cavity, pierced through its inner wall into the right side nasal cavity and entered into left side maxillary sinus cavity to exit via its front surface. The bullet was found lodged in the subcutaneous tissues underneath the skin surface from which it was taken out and sealed. Opinion in the postmortem report was that the cause of death was hemorrhage and shock as a result of fire arm injury was sufficient to cause death in the ordinary course of nature. Report states that the fire arm injury ammunition was rifled and was antemortem and fresh in duration. Time since death was 36 to 48 hours. Clothes, bullet wrapped in cotton and preserved in glass vial and blood gauze were sealed.
9. After postmortem examination, the of the deceased was then handed over to his relatives vide memo Ex.PW6/B. The doctor at the hospital handed over CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 5 of 35 a sealed polythene containing the clothes of the deceased, sealed bottle containing a bullet and a sealed bottle containing blood samples of the deceased to PW-13 Ct. Sandeep who handed over the same to PW-24 Inspector Braj Mohan which was seized vide memo Ex.PW11/A. The said exhibits had been sealed with the seal of CMO / IC AAA GH Subzi Mandi Mortuary which had been handed over along with sample seal. The same were deposited by IO Inspector Braj Mohan PW-24 on 18.12.2014 with MHC (M) PW-18 ASI Susheel Kumar who made relevant entries in Register no. 19 vide Ex.PW18/B. Further statements of witnesses were recorded by the IO PW-24 Inspector Braj Mohan. Efforts were made to trace the accused who could not be found.
10. Police report further states that the IO PW-24 Inspector Braj Mohan along with Ct. Sandeep PW-13, Ct. Kailash Yadav PW-16 and Ct. Amit Kumar PW-17 had gone on 21.12.2014 at Gali no. 8, Old Seelampur, Delhi to trace the accused. Secret information was received that the accused would come at Gokul Puri, Gole Chakkar at 5:00 PM that day. IO PW-24 Inspector Braj Mohan tried to join public persons with the investigation but none agreed and thereafter he proceeded with the other police officials to Gokul Puri, Gole Chakkar. One person came from the direction of Loni Authority who was identified by the secret informer to be the accused Rahul who was then apprehended. Rahul was interrogated and arrested vide memo Ex.PW16/B. He gave a disclosure statement Ex.PW16/C in which he admitted his involvement in the incident and stated that he had concealed the weapon of offence i.e. country made pistol / katta and the empty cartridge in his house which he could get recovered. He further disclosed that he has also kept concealed in his house two other country made pistols / kattas and four .315 bore cartridges, three knives and one steel rod for breaking locks in CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 6 of 35 his home which he could get recovered. He could also point out the place of incident.
11. Police report states that the accused Rahul then led the police team to premises 9/4732, Gali no. 4, Old Seelampur, Delhi and pointed out the place of incident vide memo Ex.PW21/B. Public persons despite requests did not join the investigation. The accused Rahul then led the police team to his jhuggi at 101/C- 47, Gali no. 8, Old Seelampur, Delhi from where and on his pointing out the weapon of offence i.e. country made pistol and empty cartridge Ex.P7 (collectively) were recovered. Sketch of the same was prepared vide Ex.PW21/C which were then put in plastic container, wrapped with doctor tape, put in cloth parcel, sealed with the seal of BM and seized vide memo Ex.PW16/B.
12. The accused Rahul then got recovered from his home two country made pistols (Ex.P5 and Ex.P6), three knives (Ex.P1, Ex.P2 and Ex.P8), one steel iron rod (Ex.P3) and four live cartridges (Ex.P4 collectively). Sketch of the second country made pistol was prepared vide Ex.PW21/D which was then put in plastic container, wrapped with doctor tape, put in cloth parcel, sealed with the seal of BM and seized vide memo Ex.PW16/E. Sketch of the third country made pistol was prepared vide Ex.PW21/E which was then put in plastic container, wrapped with doctor tape, put in cloth parcel, sealed with the seal of BM and seized vide memo Ex.PW16/F. Sketch of the first button operated knife was prepared vide Ex.PW21/F which was then put in plastic container, wrapped with doctor tape, put in cloth parcel, sealed with the seal of BM and seized vide memo Ex.PW16/G. Sketch of the second knife was prepared vide Ex.PW21/G which was then put in plastic container, wrapped with doctor tape, put in cloth parcel, sealed with the seal of BM and seized vide memo Ex.PW16/H. Sketch of the third knife was prepared CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 7 of 35 vide Ex.PW21/H which was then put in plastic container, wrapped with doctor tape, put in cloth parcel, sealed with the seal of BM and seized vide memo Ex.PW16/I. Sketch of the steel iron rod was prepared vide Ex.PW21/I which was then put in plastic container, wrapped with doctor tape, put in cloth parcel, sealed with the seal of BM and seized vide memo Ex.PW16/J. The IO also prepared sketch of the four live cartridges vide Ex.PW21/J which was then put in plastic container, wrapped with doctor tape, put in cloth parcel, sealed with the seal of BM and seized vide memo Ex.PW16/G.
13. Police report further states that the IO Inspector Braj Mohan PW-24 handed over the seal after use to PW-17 Ct. Amit Kumar. The accused was brought back to the police station and case property was deposited in the malkhana with the MHC(M) PW-18 ASI Susheel Kumar who made the relevant entries in Register no. 19 vide Ex.PW18/C. PCR form was collected and request was made by the IO Inspector Braj Mohan PW-24 for preparation of scaled site plan. IO Inspector Braj Mohan PW-24 moved an application for conducting TIP of the accused Rahul which was conducted by PW-10 Sh. J.P. Nahar, then ACP/East on 16.01.2015 vide Ex.PW1/B. Witness Manish Sharma correctly identified the accused Rahul while witness Mohd. Mustafa failed to identify the accused Rahul in the TIP proceedings. On the direction of the IO Inspector Braj Mohan PW-24, Ct. Pradeep PW-14 collected exhibits from MHC(M) on 04.02.2015 and deposited the same with FSL Rohini vide RC No. 19/21/15 Ex.PW18/D and receipt Ex.PW18/D1. IO made a request to the concerned authority for issuance of five live cartridges for the purposes of investigation which were provided to him. On the direction of the IO Inspector Braj Mohan PW-24, Ct. Pramod PW-12 collected further exhibits from the MHC(M) (which included country made pistol used in the offence, five live CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 8 of 35 cartridges, other two country made pistols and sealed bottle containing bullet recovered from head of the deceased) and deposited the same in FSL Rohini vide RC No. 25/21/15. After completion of investigation, charge-sheet was prepared and filed.
14. By order dated 04.11.2015, charges were framed against the accused Rahul for the offences under section 302 of the IPC (causing death of Mohd. Mumtaz while attempting to kill Mustafa), section 307 of the IPC (attempting to commit murder of Mustafa) and section 25 of the Arms Act to which accused Rahul pleaded not guilty and claimed trial. In all the prosecution has examined 27 witnesses to prove the charges framed against the accused Rahul. A brief tabulated description of the witnesses examined is as under:-
PW NO. NAME OF RELEVANCE
WITNESS
1 Manish He is the eye witness and informant of the case.
Sharma
2 HC Sonu He is the draftsman who has prepared the scaled site
Kaushik plan Ex. PW2/A of the place of incident after inspecting
the same.
3 Mustafa He is an eye witness upon whom accused Rahul had
fired with a firearm but the bullet had missed him.
4 HC Sanjeev He was part of the Mobile Crime Team and had taken
photographs Ex. PW4/A1 to Ex. PW4/A18 of the shop
of Manish Sharma in which deceased Mohd Mumtaz
Ansari received gunshot injury.
5 Inspector He was Incharge of the Mobile Crime Team who
Narender inspected the place of incident vide report Ex. PW5/A.
6 Samshad He is the elder brother of deceased Mohd. Mumtaz and
Ansari identified the body of the deceased vide statement Ex.
CNR No. DLET01-006307-2015
SC No. 1523/2016
FIR No. 979/2014
PS Gandhi Nagar
State Vs Rahul Page No. 9 of 35
PW6/A and was handed over the body of the deceased
vide memo Ex. PW6/B.
7 Sehnaz Begum She is the aunt of the deceased Mohd. Mumtaz and
identified the body of the deceased vide statement
Ex.PW7/A and was handed over the body of the
deceased vide memo Ex. PW6/B.
8 Dr. Meghali She proved the MLC no.82737 Ex. PW8/A of deceased
Kelkar, CMO Mohd Mumtaz prepared by doctor Amitabh after Jag Parvesh identifying his handwriting and signatures on the same. Chandra Hospital 9 Dr. Sandeep He had conducted postmortem examination of deceased Garg, Senior Mohd Mumtaz vide his report Ex. PW9/A. Resident Department of Forensic Medicine, Dr. B.R. Ambedkar Hospital, Sector -6, Rohini 10 Sh. J.P. Nahar, He conducted the TIP proceedings Ex. PW1/B of the then ACJ East accused in which witness Manish Sharma correctly identified the accused Rahul while witness Mohd.
Mustafa failed to identify the accused.
11 HC Ram He is the duty officer of PS Gandhi Nagar who had Kishan recorded DD No.33A Ex. PW11/A regarding information received at about 7.25 pm about a boy having been shot and DD No.35A Ex. PW11/B about information received at 8.30 pm from Ct. Rajesh from the Hospital about Mohd Mumtaz being brought dead in the Hospital. He registered the FIR Ex.PW11/C and made endorsement Ex.PW11/D on the rukka which was brought by Ct. Pradeep and sent by ASI P.S. Rawat after which he handed over original rukka and copy of FIR to Ct. Pradeep for being handed over to IO/Inspector Braj Mohan. He recorded Kayami vide CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 10 of 35 DD no. 38-A Ex.PW11/E and DD no. 39-A Ex.PW11/F. 12 Ct. Pramod He had collected exhibits from MHC(M) PS Gandhi Nagar and deposited the same with FSL Rohini on 18.02.2015 vide RC No. 25/21/15 13 Ct. Sandeep On the direction of the IO P.S. Rawat, he had taken the body of deceased Mohd. Mumtaz to Subzi Mandi, Mortuary for preservation from Ajeet Nagar on 16.12.2014. On 18.12.2014 after taking of X-Ray of body of deceased, postmortem examination was conducted and the doctor handed over a sealed polythene containing the clothes of the deceased, sealed bottle containing bullet and sealed bottle containing blood of the deceased which were seized vide Ex.PW11/A. 14 Ct. Pradeep He was part of the investigation on 16.12.2014 along with SI P.S. Rawat. He also collected exhibits from MHC(M) on 04.02.2015 and deposited the same with FSL Rohini vide RC No. 19/21/15 Ex.PW18/D and receipt Ex.PW18/D1.
15 SI P.S. Rawat He conducted initial investigation of the incident on 16.12.2014 along with Ct. Pradeep after being informed by Duty Officer and had also recorded statement Ex.PW1/A of informant Manish Sharma and prepared rukka Ex.PW15/A on the said statement.
16 HC Kailash He was part of the investigation on 21.12.2014 along
Yadav with IO/Inspector Braj Mohan pertaining to
apprehension of the accused Rahul and recoveries from him including the weapon of offence.
17 Ct. Amit He was part of the investigation on 21.12.2014 along
Kumar with IO/Inspector Braj Mohan pertaining to
apprehension of the accused Rahul and recoveries from him including the weapon of offence.
18 ASI Susheel He was working as MHC(M) PS Gandhi Nagar and Kumar proved the entries made in Register no. 19 regarding deposit of exhibits / sealed parcels of this case in the malkhana and handing over of the same for being CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 11 of 35 deposited in FSL, Rohini.
19 Ct. Arif Khan He had provided previous involvement report Ex.PW19/A of accused Rahul to the IO.
20 Dr. Deepesh She proved the MLC Ex.PW20/A of accused Rahul Saxena, Senior after identifying the handwriting and signatures of Dr. Resident Amit who had prepared the same.
Anasthesia,
SDN Hospital
21 Ct. Sandeep He was part of the investigation on 21.12.2014 along
Dhyal with IO/Inspector Braj Mohan pertaining to
apprehension of the accused Rahul and recoveries from him including the weapon of offence.
22 HC Rateesh He was working in CPCR, PHQ Delhi and had Yadav recorded PCR call on 16.12.2014 at 7:20 PM received from No. 212365359 from caller Manish Sharma about the incident and forwarded the information vide PCR form Ex.PW22/A 23 SI Rakesh He was working in CPCR and had recorded PCR call Kumar on 16.12.2014 at about 7:25 PM received from No. 9212365359 about the incident and had forwarded the information and mobile PCR Van Romeo 23 was sent at the spot vide PCR form Ex.PW23/A 24 Inspector Braj He is the IO of the case to whom investigation was Mohan assigned after registration of the FIR and had filed charge-sheet after completing investigation.
25 Inspector He received FSL report from Ballistics Division Mohinder Ex.PW25/B, FSL report from Biology Division and Singh Sanction under section 39 of the Arms Act which he filed in the Court vide application Ex.PW25/A. 26 Kime Kaming, He granted sanction under section 39 of the Arms Act DIG HQ, vide Ex.PW26/A while working as Additional DCP, Arunachal East District, Delhi on 17.12.2015 Pradesh 27 V.R. Anand, He examined the exhibits of this case and gave his CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 12 of 35 Assistant report Ex.PW25/B as per which, amongst others, 'EB1' Director (bullet received from Subzi Mandi Mortuary) was (Ballistics), found to have been fired through country made pistol . FSL Rohini 315 bore Ex.'F1' (recovered at the instance of accused Rahul) and 'EC1' (evidence cartridge) was found to have been fired through country made pistol .315 bore Ex.'F1' (recovered at the instance of accused Rahul)
15. Prosecution evidence was closed on 24.01.2020 and the matter was fixed for recording of statement under section 313 of the Cr.P.C. of the accused Rahul. The said statement was recorded on 17.12.2021 in which the accused Rahul denied all the incriminating evidence on the record put to him. He claimed to be innocent and that he was falsely implicated in the case and desired to lead evidence in defence. However, on 11.03.2022 accused Rahul stated that he did not wish to lead evidence in defence. His statement to this effect was recorded and defence evidence was closed. Matter was then fixed for final arguments.
ARGUMENTS ADDRESSED ON BEHALF OF THE ACCUSED AND ON BEHALF OF THE STATE
16. Sh. Vipin Chaudhary, Ld. LAC for the accused Rahul has submitted that the offence under section 302 of the IPC is not made out. He submitted that as per the evidence of PW-3 Mustafa, physical altercation had taken place between him and the accused Rahul and that as per the evidence of PW-3 Mustafa, the incident had taken place suddenly without any preconceived notion. He submitted that it was due to PW-3 Mustafa beating up the accused that the accused on account of grave and sudden provocation fired upon Mustafa. He submitted that the case fell under illustration (b) to Exception 1 to section 300 of the IPC. He relied on the definition and grave and sudden provocation contained in Concise CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 13 of 35 Law Dictionary as per which the said Dictionary quotes illustration (b) to Exception 1 to section 300 of the IPC for this purpose.
17. Sh. Vipin Chaudhary, Ld. LAC has submitted that as per the evidence on record, the accused Rahul fired towards PW-3 Mustafa but the bullet did not hit him. He submitted that the fact that the bullet did not hit PW-3 Mustafa revealed that there was no intention on the part of the accused Rahul to commit the murder of Mustafa. He submitted that it was a matter of chance that the bullet hit the deceased Mohd. Mumtaz. In the absence of any intention to commit the offence of murder, the offence which would be attracted would be under section 304 Part - II of the of the IPC.
18. Sh. Vipin Chaudhary, Ld. LAC has further submitted that the accused Rahul was identified in TIP proceedings by PW-1 Manish Sharma but PW-3 Mustafa failed to identify accused Rahul in the said TIP proceedings. He submitted that in Court, PW-1 Manish Sharma did not identify the accused but PW-3 Mustafa identified the accused Rahul in the Court. He submitted that such inconsistencies created grave doubt on the case of the prosecution that it was accused Rahul who had fired from the country made weapon leading to the death of Mohd. Mumtaz.
19. Sh. Vipin Chaudhary, Ld. LAC has further submitted that the recovery of the pistol, that is weapon of offence, was also doubtful as there was no public witnesses associated with the recovery proceedings. He submitted that the IO had admitted that a crowd had gathered at the time of the recovery of the said weapon but no public person was associated by the IO with this part of the investigation which leads to doubt about its credibility.
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20. Sh. IUH Siddique, Ld. Addl. PP for the State on the other hand has submitted that there is sufficient evidence on the record to convict the accused Rahul for all the offences with which he has been charged. He submitted that as per the evidence of PW-1 and PW-3, the accused Rahul fired from a pistol after taking aim at PW-3 Mustafa. He submitted that PW-3 Mustafa ducked and saved himself from the bullet which however hit Mohd. Mumtaz causing him fatal injury. He submitted that intention on the part of the accused Rahul was clear that is to commit murder of PW-3 Mustafa but the bullet hit Mohd. Mumtaz causing his death. He submitted that as per section 301 of the IPC, the accused Rahul was liable to be convicted for the murder of Mohd. Mumtaz and attempting to commit the murder of Mustafa. He submitted that the defence of grave and sudden provocation is not available to the accused Rahul as it was accused Rahul who himself started the altercation. He submitted that PW-1 Manish Sharma has not only identified the accused Rahul in TIP proceedings but also in the Court. He submitted that even PW-3 Mustafa has identified accused Rahul in the Court and what is material is identification of a person accused in the Court. He submitted that failure of a witness to identify an accused in TIP proceedings is immaterial as the same is only a process of investigation and not substantive evidence. He further submitted that the weapon of offence used in the incident was recovered at the instance of the accused and forensic evidence in the form of FSL report confirms that the bullet recovered from the head of the deceased was fired from the country made pistol recovered at the instance of the accused. He submitted that there was ocular and forensic evidence which establishes the guilt of the accused Rahul.
21. I have heard the Ld. LAC for the accused and Ld. Addl. PP for the State. I have perused the record of this case.
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22. PW-1 Manish Sharma in his examination in chief recorded on 15.12.2015 has deposed that he was running a TV repair shop at his premises at 9/4732, Gali no. 4, Old Seelampur, Delhi and that the deceased Mohd. Mumtaz Ansari was working with him as a mechanic in his said shop. On 16.12.2014 at about 7:20 PM, he was present in his shop with Mohd. Mumtaz Ansari. He saw two boys fighting with each other in front of his shop at the chowk with one boy overpowering the other. He deposed that the boy who was overpowered took out something from his pocket and assaulted the other boy on his head and there was a loud noise of firing. He deposed that he i.e. PW-1 Manish Sharma hid himself and saw that a bullet hit on the head of Mohd. Mumtaz Ansari who fell on the floor of the shop and started bleeding from his head. The boy who had assaulted the other boy fled from the spot in the gali while the other boy was apprehended. PW-1 Manish Sharma forgot the name of the boy who was apprehended. He called the police by dialing 100 and took Mohd. Mumtaz Ansari to the hospital at Shastri Park in a TSR. He was taken to the police station where his statement was recorded. He had given description of the boy who had fled to be 5 feet 3-4 inches tall, of wheatish colour and aged 20-22 years who was wearing a blue colour jeans. PW-1 Manish Sharma identified his signature on his statement Ex.PW1/A. He deposed that subsequently he went with the IO and showed him the place of incident after which the IO prepared a site plan. On 16.01.2015 he had gone to Tihar Jail where he had identified accused Rahul in TIP proceedings and told the Ld. Magistrate that it was accused Rahul who had fired at the time of the incident causing bullet injury to Mohd. Mumtaz Ansari which caused his death. PW-1 Manish Sharma identified his signature on TIP proceedings Ex.PW1/B and also CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 16 of 35 identified the accused Rahul in the Court to be person who fired at the time of the incident.
23. At that stage, the Ld. Addl. PP for the State was granted permission to cross-examine PW-1 Manish Sharma. In cross-examination by Ld. Addl. PP for the State, PW-1 deposed as correct that in his statement Ex.PW1/A, he had stated that two boys were quarreling and that one boy overpowered the other and had given fist blows to that boy due to which he fell on the road after which he took out a pistol and fired on the boy who had beaten him with fist blows. He deposed that the boy saved himself from the bullet which hit Mohd. Mumtaz Ansari. He also deposed that public persons had caught one boy at the place of incident whose name was disclosed as Mustafa and the boy who had fired had fled from the place of incident. He deposed that Mohd. Mumtaz Ansari was declared dead in the hospital and that the boy who had fled was wearing a cream coloured jacket and blue coloured jeans and that he could identify the said person. He deposed that it was that person who fired upon Mohd. Mumtaz Ansari with the intention to kill him but Mustafa saved himself and the bullet hit the head of Mohd. Mumtaz Ansari who died due to the same. He deposed as correct that he did not state these facts due to lapse of time and that he did not intend to conceal any fact.
24. In cross-examination on behalf of the accused Rahul conducted on 18.04.2016, PW-1 Manish Sharma deposed that he was alone in his shop at the time of the incident and no employee was present at that time. The deceased Mohd. Mumtaz Ansari had gone to the washroom and come down at the time of the incident. Size of his shop was 8x10 and it was in a commercial area. The distance where the boys were quarreling was 10-12 feet. It was 7:30 PM and there was darkness. He was called by the police at PS Gandhi Nagar several times. His CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 17 of 35 statement was recorded in the police station. He deposed that prior to TIP of accused, he was called by the police in the police station where the police had shown him photographs of the accused in the police station before the TIP proceedings. He deposed that he had identified the accused in Tihar jail at the instance of the IO. He had not seen the face of the accused at the time of the incident.
25. At that stage, Ld. Addl. PP for the State was granted permission to re- examine the witness as he had introduced a new fact in cross-examination. In cross-examination by Ld. Addl. PP for the State, PW-1 Manish Sharma deposed as correct that on 16.01.2015, he had correctly identified the accused in Tihar Jail before the Ld. MM and that he had not stated before the Ld. MM during TIP proceedings that he had already been shown photographs of the accused by the police. He denied the suggestion that he had deposed falsely as he had been won over by the accused and had given false statement to save him. No further cross- examination of PW-1 Manish Sharma was done on behalf of the accused.
26. PW-3 is Mustafa. He deposed that he was engaged in computer embroidery and that on 16.04.2014 his machine was out of order and he had gone to the market to buy parts of the machine. At about 7:30 PM, when he reached the main road near Rama Medical Store, there was a lot of crowd. At that time a cycle passed near him which he tried to avoid but in the process collided with an unknown person. That boy started abusing him and showed him a katta and said "mujhe Bihari samajh rakha hai". PW-3 Mustafa deposed that he told that boy that he did not want to quarrel and ask him to allow him to leave and that boy then kept back the katta. He deposed that after walking 15-20 steps, that boy removed his shawl and told him that he would not use the katta and asked him to fight and gave CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 18 of 35 a fist blow in his abdomen. PW-3 Mustafa then punched him on his nose due to which he fell on the road. That boy got up and took out a katta and fired at him but PW-3 Mustafa ducked to save himself. A boy standing behind him at a shop suffered a bullet injury. That boy then told him "ek goli chala di hai, dusri bhi chala dunga, varna bhag jaa". PW-3 Mustafa then started walking towards his shop and the other boy walked away. PW-3 Mustafa then heard noises and came to know that Mumtaz, a worker of Manish Sharma had suffered a gunshot injury on his ear. PW-3 Mustafa saw Mumtaz lying on the floor of the shop and was bleeding from his nose and ear. Manish Sharma took Mumtaz to the hospital in a rickshaw. PW-3 Mustafa deposed that he did not received any injury and could identify the person who caused gunshot injury to Mumtaz. PW-3 Mustafa then identified the accused Rahul to be the person who had caused gunshot injury to Mumtaz. PW-3 Mustafa deposed that he had given a statement to the police and later came to know that Mumtaz had died due to gunshot injury.
27. In cross-examination on behalf of the accused, PW-3 Mustafa has deposed that he was residing in gali no. 4, Old Seelampur since 2012 and was engaged in his own work of computer embroidery. That day he had gone to buy parts of the machine. The shop where he was doing embroidery work was situated at a distance of about 50 paces from the place of incident. He did not receive injury in the incident which required medical examination. He denied the suggestion that no such incident took place or that he had deposed falsely. PW-3 Mustafa in cross- examination further deposed that it was night time and there were many shops near the place of the incident and there was sufficient light to see the face of the accused. Mumtaz was at a distance of 4 paces from him. Police met him at the place of incident after about 10-15 minutes who took him to the police station after CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 19 of 35 making enquiry. He was kept in the police station for 24 hours. PW-3 Mustafa further deposed in cross-examination that after the accused was arrested, he was shown to him in the police station and the police asked him whether it was accused Rahul who had fired at him and PW-3 Mustafa confirmed to the police that it was accused Rahul who had caused gunshot injury to Mumtaz.
APPREHENSION OF ACCUSED RAHUL AND RECOVERY OF WEAPON OF OFFENCE
28. As per the case of the prosecution on 21.12.2014 the IO PW-24 Inspector Braj Mohan along with Ct. Sandeep PW-13, Ct. Kailash Yadav PW-16 and Ct. Amit Kumar PW-17 were making efforts to trace the accused and had gone to gali no. 8, Old Seelampur, Delhi for this purpose. At that time, they received secret information about the accused coming to Gokul Puri, Gole Chakkar at 5:00 PM. In pursuance of secret information, the police team reached the said place and on the identification of the secret informer, accused Rahul was apprehended. Upon arrest and interrogation, he gave a disclosure statement Ex.PW16/C stating that he could get the weapon of offence and empty cartridge recovered from his house. The accused Rahul led the police team to the place of incident i.e. 9/4732, gali no. 4, Old Seelampur, Delhi and pointed out the same. Thereafter, in pursuance of his disclosure statement, accused Rahul led the police team to his house at Jhuggi 101/C-47, Gali no. 8, Old Seelampur, Delhi and on his pointing out the country made pistol used in the incident and empty cartridge Ex.P7 (collectively) were recovered.
29. The evidence of PW-24 Inspector Braj Mohan along with Ct. Kailash Yadav PW-16 and Ct. Amit Kumar PW-17 in their examination in chief regarding CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 20 of 35 apprehension of the accused Rahul and recovery of the weapon of offence and empty cartridge are more or less identical and consistent with each other.
30. In cross-examination conducted on 21.01.2017 on behalf of the accused Rahul, PW-16 Ct. Kailash Yadav has deposed that accused Rahul came on foot but could not state the direction from which he was coming towards Gole Chakkar, Gokul Puri. Rahul was caught by Inspector Braj Mohan and they remained at the spot for about half an hour. The road was a busy road but he could not remember how many public persons passed by at that time. He could not remember which police official recovered three mobile phones from the accused but deposed that the same were in his trouser pocket. He could not remember from which pocket of the trouser were the mobile phones recovered. He deposed that SIM Cards were also recovered from accused Rahul but could not remember from which pocket they were recovered. He did not remember what time they finally left the spot. He himself had not made any arrival or any departure entry but voluntarily deposed that the same were made by the IO. They reached the jhuggi of Rahul in evening hours but he could not recollect the exact time. He deposed that the jhuggi of Rahul was in a congested area and surrounded by other jhuggis. He could not remember who else was present in the jhuggi at that time. They were at the jhuggi for about one hour. He did not remember how many rooms were in his jhuggi. He deposed that there was only one taand in the jhuggi but could not state its height. He deposed that one desi katta and one empty round were recovered from one place and two desi kattas, four live rounds, three knives and one steel rod were recovered from another place in the jhuggi. He could not remember what else was place on the taand. He deposed that the IO had requested four -five persons gathered outside the jhuggi to join the investigation but they refused and CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 21 of 35 left. He could not remember whether any written notice was given by the IO to those public persons. All the writing work i.e. preparation of memos were done at the spot. Rest of his cross-examination is in the form of suggestion which he has denied.
31. PW-17 Ct. Amit Kumar in his cross-examination conducted 21.01.2017 on behalf of the accused Rahul has deposed that accused Rahul was on foot when he was apprehended and did not try to flee. He could not remember the direction from which the accused came to Gokul Puri, Gole Chakkar. Accused Rahul was apprehended by the police team together. He could not remember from which pocket of trouser of the accused, mobile phones were recovered. One SIM Card was there in the mobile phones but could not say how many other SIM Cards were there. The place of apprehension was a public place where they remained for half an hour. IO had requested passersby to join the investigation but they refused and left. No written notice was given to them. All the writing work was done at the spot. They reached the jhuggi of Rahul at about 7:00 PM. He could not remember who were present in the jhuggi which was in a congested place. They remained in the jhuggi for about 30-40 minutes. The jhuggi had 2-3 rooms. The taand was in the first right room at a height of 6-8 feet from the ground. He deposed that the accused himself got the case property recovered. He could not remember whether the weapons were consolidated or were placed at different places. He could not remember whether anything else was recovered form the taand. No public person was present in the jhuggi except the accused and police team. Writing work was done in the jhuggi itself. He deposed that Inspector Braj Mohan had requested persons from adjoining jhuggis to the join the investigation but they refused and left. He himself did not record any arrival or departure entry. Voluntarily, he CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 22 of 35 deposed that the same is done by the duty officer daily. Rest of his cross- examination is in the form of suggestion which he denied.
32. The IO PW-24 Inspector Braj Mohan in his cross-examination pertaining to apprehension and recovery from the accused on 21.12.2014 has deposed that he with police staff reached at gali no. 8 at about 3:50 PM and remained there for 15-20 minutes. Public persons were passing through the said gali. Thereafter, they reached Gokul Puri, Gole Chakkar within half an hour. He had shared the secret information with the SHO telephonically. Accused was seeing coming on foot from a distance of 10-12 steps. He i.e. PW-24 Inspector Braj Mohan apprehended the accused with the help of police staff after the secret informer had pointed out the accused and left. He could not remember denomination of currency notes recovered from the purse of the accused. He deposed that the accused had taken to the place of the incident at 9/4732, gali no. 4, Old Seelampur, Delhi at about 6:30 PM where they remained for about 15-20 minutes. No other public person was requested to join the proceedings. Voluntarily, he deposed that the complainant was present at that time. They reached jhuggi no. 101/C-47, Gali no. 8, Old Seelampuri, Delhi by about 7:10 PM. He deposed that it was a crowded place. Jhuggi was on the ground floor without any further construction. He deposed that family members of the accused were present at that time. They remained in the jhuggi for about 1 hour and 45 minutes. Writing work was done in front of the jhuggi. He recorded the statements of the relevant witnesses at the place of recovery of the weapons. He left the jhuggi finally on that day at about 9:00 PM. Rest of his cross-examination is in the form of suggestion which he has denied.
CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 23 of 35 FSL REPORT ON THE BULLET RECOVERED FROM THE HEAD OF THE DECEASED, THE WEAPON OF OFFENCE AND EMPTY CARTRIDGE RECOVERED AT THE INSTANCE OF THE ACCUSED.
33. The Examination Report of the Ballistics Division of FSL Rohini is Ex.PW25/B and has been authored by PW-27 Sh. V.R. Anand, Assistant Director (Ballistics). As per the said report, the country made pistol .315 bore stated to be weapon of offence was given mark Ex.F1 and .315 cartridge case recovered along with the same was given mark Ex.EC1. The bullet recovered from the head of the deceased was given mark Ex.EB1.
34. Two live cartridges .315 marked Ex.A1 and Ex.A2 were test fired through the country made pistol Ex.F1. The test fired cartridges were marked TC1 and TC2 and the recovered test fire bullets were marked as TB1 and TB2.
35. Report states that the individual characteristics of firing pin marks and breech pace marks present on cartridge EC1 and on test fired cartridge cases TC1 and TC2 were compared and examined under comparison microscope and were found identical. Report therefore concludes that the cartridge case EC1 had been fired through the country made pistol F1.
36. Report further states that the individual characteristics of striation marks on bullet EB1 and test fired recovered bullets TB1 and TB2 were compared and examined under comparison microscope and were found identical. Thus, the bullet Ex.EB1 had been discharged through the country made pistol .315 bore F1.
37. The FSL report Ex.PW25/B was proved and explained by PW-27 V.R. Anand, Assistant Director (Ballistics). Thus, as per the FSL report, the bullet recovered from the head of the deceased had been fired from the country made pistol Ex.P7 recovered at the instance of the accused Rahul and that the empty CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 24 of 35 cartridge case also recovered at the instance of accused Rahul had been fired through the same country made pistol Ex.P7.
ANALYSIS OF THE EVIDENCE, ARGUMENTS MADE ON BEHALF OF THE ACCUSED AND FINDINGS
38. Submission had been made by Sh. Vipin Chaudhary, Ld. LAC for the accused that the identification of the accused by PW-1 Manish Sharma and PW-3 Mustafa in the Court cannot be relied upon as they had in their cross-examinations deposed that the accused had been shown to them prior to the TIP. He had further submitted that recovery of weapon of offence was suspect in the absence of joining public persons at the time of recovery.
39. As far as probative value of TIP proceedings are concerned, in the case of Ramjan Vs State reported in 2022 SCC On Line Del 1884, the Hon'ble High Court of Delhi reiterated the law on TIP proceedings and was pleased to observe that TIP belongs to the stage of investigation and there is no provision in the Cr.P.C mandating the investigating agency to conduct the same. TIP proceedings are not substantive evidence. What is material is dock identification. It was observed that even if a person accused rightly declines to participate in TIP proceedings on the ground that the witness had been previously shown to him, the evidence of identification by the witness in the Court cannot be discarded. It was observed that TIP is not a cast iron straight jacket legal proposition admitting of no exceptions and that it is considered a safe rule of prudence to generally look for corroboration of sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them.
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40. The incident took place on 16.12.2014. As per the case of the prosecution, the accused Rahul was apprehended on 21.12.2014. Ex.PW1/B are TIP proceedings conducted on 16.01.2015. While PW-1 Manish Sharma correctly identified the accused Rahul, PW-3 Mustafa was unable to identify the accused Rahul in TIP proceedings. However, in Court, both PW-1 Manish Sharma and PW- 3 Mustafa correctly identified the accused Rahul which is material for the purposes of the present matter.
41. During cross-examination on behalf of the accused, PW-1 Manish Sharma had deposed that prior to TIP he was shown the photographs of the accused in the police station and that he identified the accused in TIP at the instance of the IO. He further deposed that he had not seen the face of the accused at the time of the incident. In his examination in chief, PW-1 Manish Sharma did not mention any such fact that is not having seen the face of the accused or photographs of the accused being shown to him by the IO in the police station prior to TIP and having identified the accused in the TIP at the instance of the IO. These facts were deposed by PW-1 Manish Sharma only in his cross-examination. In his complaint Ex.PW1/A, PW-1 Manish Sharma had given the physical description of the accused Rahul in terms of his height, complexion and age and stated that he could identify the accused if brought before him. Record reveals that the examination in chief of PW-1 Manish Sharma was conducted on 15.12.2015 and his cross-examination was deferred on the request of the accused on the ground that his LAC was not available. PW-1 Manish Sharma was cross-examined on 18.04.2016, that is after a gap of four months which leads to a probable inference that there may be a possibility that PW-1 Manish Sharma came under the influence of the accused.
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42. PW-3 Mustafa in his examination in chief has also completely supported the case of the prosecution and has correctly identified the accused Rahul in the Court. In cross-examination, at the fag end, he deposed that the accused was shown to him in the police station after his arrest and on the asking of the police, he confirmed to the police that accused Rahul was the same person who had fired upon him and caused gunshot injury to deceased Mohd. Mumtaz. This part of the statement of PW-3 Mustafa was not deposed by him in his examination in chief. If the accused was shown to PW-3 Mustafa in the police station, there would not have been any reason for PW-3 Mustafa to have failed to identify the accused in TIP proceedings which took place on 16.01.2015. It is to be noted that PW-3 Mustafa was examined and cross-examined on 18.04.2016, that is on the same day on cross-examination of PW-1 Manish Sharma took place. Both these witnesses in their examination in chief were consistent but in cross- examination deposed that they were shown the accused Rahul prior to TIP proceedings. Probable inference arises that both the witnesses may have been influenced by the accused.
43. As per the evidence on the record, after apprehension on 21.12.2014, the accused Rahul led IO PW-24 Inspector Braj Mohan along with Ct. Sandeep PW-13, Ct. Kailash Yadav PW-16 and Ct. Amit Kumar PW-17 his house at Jhuggi 101/C-47, Gali no. 8, Old Seelampur, Delhi leading to the recovery of the country made pistol used in the incident and empty cartridge Ex.P7 (collectively). The evidence of PW-24 Inspector Braj Mohan along with Ct. Kailash Yadav PW-16 and Ct. Amit Kumar PW-17 regarding apprehension of the accused Rahul and recovery of the weapon of offence and empty cartridge in their examination in chief are consistent. In cross-examination PW-16 and PW-17 were unable to state the CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 27 of 35 direction from which the accused was coming when he was apprehended. PW-16 and PW-17 could not remember whether there was any other person present in the jhuggi of the accused at the time of recovery while PW-24 has deposed that family members of the accused were present in his jhuggi. PW-16 has said that one katta and empty round were recovered from one place in the jhuggi and the other weapons from another place in the jhuggi while PW-17 in his cross-examination could not remember whether all the weapons were recovered from one single place in the jhuggi or separate places. They have however consistently deposed that the IO had tried to join public persons in the recovery proceedings but none agreed.
44. PW-16 and PW-17 were examined and cross-examined on 21.01.2017 while the accused was apprehended on 21.12.2014. PW-24 was examined on 20.02.2019 and cross-examined on 19.03.2019. There is considerable gap between the dates on which the accused was apprehended and recovery made and the dates on which they were examined in the Court as witnesses. Memory fades as time passes. PW-16, PW-17 and PW-24 are consistent regarding the recoveries. The inconsistencies in their cross-examinations are not to such an extent which could persuade this Court to cast a doubt on the recovery of the weapon of offence. Further, evidence reveals that the IO had tried to join public persons in the recovery proceedings but none came forward. As such not joining a public person in recovery proceedings in such circumstances cannot be said to be fatal to the case of the prosecution or to persuade this Court to discard their evidence on this aspect.
45. Ex.P7 (collectively) are the country made pistol and the empty cartridge which were recovered on 21.12.2014 in pursuance of the disclosure statement of the accused Rahul. Recovery was made from his home. In addition to the said fire arm and fired cartridge, two more country made pistols (Ex.P5 and CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 28 of 35 Ex.P6), three knives (Ex.P1, Ex.P2 and Ex.P8), one steel iron rod (Ex.P3) and four live cartridges (Ex.P4 collectively) had also been recovered. As per the FSL report Ex.PW25/B, the bullet recovered from the head of the deceased had been found to have been fired from the country made pistol Ex.P7 recovered at the instance of the accused Rahul and that the empty cartridge case also recovered at the instance of accused Rahul had been fired through the same country made pistol Ex.P7. Thus, this piece of evidence proves that the country made pistol recovered at the instance of the accused had been used to fire the bullet which caused the death of Mohd. Mumtaz.
46. I may note that in the case of Krishnan v. State reported in (2003) 7 SCC 56 the Hon'ble Supreme Court was pleased to hold that the evidence in a criminal trial must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit worthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. A person has a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case. Further, the prosecution is required to prove its case beyond reasonable doubt and not beyond all iota of doubt as held by the Hon'ble Supreme Court in the case of Karan Singh Vs State of Uttar Pradesh & Ors SLP (Crl.) 770/2020/ CRLA No. 327/2022 decided on 02.03.2022. In the case of Suresh Chandra Jana v. State of W.B., reported in (2017) 16 SCC 466 the Hon'ble CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 29 of 35 Supreme Court was pleased to observe that it is almost impossible to come across a single case where the investigation was completely flawless or absolutely foolproof. It was held that the function of the criminal court is to find out the truth and it is not the correct approach to simply pick up the minor lapses of the investigation and acquit the accused, particularly when the ring of truth is undisturbed.
47. The FSL report Ex.PW25/B in the present case proves that the country made pistol recovered at the instance of the accused had been used to fire the bullet which caused the death of Mohd. Mumtaz. Recovery of the same has been proved by PW-24 Inspector Braj Mohan, PW-16 HC Kailash Yadav and PW-17, Ct. Amit Kumar. PW-1 Manish Sharma and PW-3 Mustafa have identified the accused Rahul to be the person who fired upon PW-3 Mustafa but the bullet hit the deceased Mohd. Mumtaz. The probative value of the evidence on record when put into scales for a cumulative evaluation supports the inherent probability of the version of the prosecution. Even if a doubt arises that the accused Rahul was shown to PW-1 Manish Sharma, as held in the case of Ramjan Vs State (supra), what is material is identification in the dock. TIP proceedings are not a cast iron straight jacket legal proposition admitting of no exceptions. It is a safe rule of prudence to look for corroboration of a sworn testimony of a witness in Court regarding the identity of the person accused not previously known to the witness. In the present case, the identification of the accused Rahul in the Court by PW-1 Manish Sharma and PW-3 Mustafa stands corroborated by the recovery of weapon of offence Ex.P7 which has been proved by FSL report to have been the weapon from which the bullet recovered from the head of the deceased had been fired/ discharged.
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48. As held in the case of Karan Singh Vs State of Uttar Pradesh & Ors (supra), the task of the prosecution is to prove its case beyond reasonable doubt and not beyond all iota of doubt. In the case of Suresh Chandra Jana v. State of W.B.,(supra) the Hon'ble Supreme Court had observed that it was almost impossible to come across a single case where the investigation was completely flawless or absolutely foolproof and that it is the duty of the criminal court to find out the truth. Picking up minor lapses of the investigation to acquit the accused is not the correct approach when the ring of truth is undisturbed.
49. The probative value of the evidence on record in this case when put into scales for a cumulative evaluation supports the inherent probability of the version of the prosecution. In view of the evidence of PW-1 Manish Sharma, PW-3 Mustafa, recovery of the weapon of offence Ex.P7 and FSL report which confirms that the bullet which caused the death of Mumtaz had been fired from the said weapon, the prosecution has proved beyond reasonable doubt that it was accused Rahul who had fired from the country made pistol Ex.P7 on 16.12.2014 causing the death of Mohd. Mumtaz while attempting to kill PW-3 Mustafa.
50. I shall now deal with the submission made by Sh. Vipin Chaudhary, Ld. LAC for the accused that the offence did not fall under section 302 of the IPC but fell under illustration (b) to Exception 1 to section 300 of the IPC. Illustration
(b) reads as under:-
"(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kill Z. Here A has not committed murder, but merely culpable homicide."
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51. For the offence to fall under illustration (b) to Exception 1 to section 300 of the IPC, accused Rahul will have to demonstrate that it was PW-3 Mustafa who had given grave and sudden provocation to him after which he i.e. Rahul fired from his pistol. Exception 1 to section 300 of the IPC provides that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Exception 1 to section 300 of the IPC is subject to two provisos. The first proviso is "That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person". The explanation to Exception 1 lays down that "Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact".
52. In order to determine whether the offence committed by Rahul falls under Exception 1 to section 300 of the IPC read with illustration (b), the manner in which the offence took place will have to be examined. For this purpose, the evidence of PW-3 Mustafa is material. The relevant portion of the examination in chief of PW-3 Mustafa is as under:-
"On 16/12/14, my machine had gone out of order. I had gone to market to buy the parts of the machine. At about 07:30 pm, when I reached at the main road in front of Rama Medical Store, there was lot of crowd, a bicycle passed near me. I saved myself from the bicycle but in the process I struck against an unknown boy. That boy started abusing me and showed me a Katta and saying that "mujhe Bihari samajh rakha hai". I told him that I do not want to quarrel with him and asked him to allow me to leave. He kept back the katta ( country made pistol) in his back side. After I walked 15-20 steps, that boy followed me and removed his shawl which he was wearing and told me that he would not used the Katta and asked me to fight with him. That boy gave me fist blow on my abdomen. I gave him punch on his nose due to which he fell down on the road. He then got up and took out the Katta and fired at me, I ducked down to save myself and escape. A boy standing at a shop behind me suffered bullet shot injury. That boy told me "ek goli chala di hai, dusri bi chala dunga, varna bhaag ja". I then, started walking towards my shop. That boy also CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 32 of 35 walked away. I heard the noise and came to know that Mumtaz, worker of Manish Sharma received gun shot injury on his ear."
53. There is no cross-examination of PW-3 Mustafa in respect of his above reproduced statement made in examination in chief. The same reveals the following circumstances in which the incident took place:-
PW-3 Mustafa while trying to save himself from a bicycle collided against accused Rahul;
Accused Rahul abused PW-3 Mustafa, brandished a katta and said "mujhe bihari samajh rakha hai";
PW-3 Mustafa told accused Rahul that he did not wish to enter into a quarrel and asked him to allow him to leave after which accused Rahul put back his katta;
PW-3 Mustafa walked ahead 15-20 steps but was followed by accused Rahul who called upon PW-3 Mustafa to fight while giving him an assurance that he will not use his katta in the fight;
Accused Rahul then gave PW-3 Mustafa a fist blow on his abdomen after which PW-3 Mustafa punched Rahul on his nose due to which Rahul fell down on the road;
Rahul then got up and fired at PW-3 Mustafa who ducked and the bullet hit deceased Mumtaz;
Accused Rahul said to PW-3 Mustafa that "ek goli chala di hai, dusri bhi chala dunga, varna bhaag ja".
54. Evidence on record thus reveals that initially when Rahul confronted PW-3 Mustafa with a katta, PW-3 Mustafa requested Rahul to let him go walked 15-20 steps. Then it was Rahul who followed and asked PW-3 Mustafa to fight CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 33 of 35 with him with the assurance that he will not use the katta and the first blow in the fight was given by Rahul after which PW-3 Mustafa gave him a counter punch leading to firing by PW-3 Mustafa. The evidence on record and sequence of events reveals that it was accused Rahul who had himself and voluntarily sought to be provoked by PW-3 Mustafa. Thus, Exception 1 to section 300 of the IPC is not available to accused Rahul.
55. The evidence of PW-3 Mustafa reveals that initially itself, accused Rahul had brandished a pistol to PW-3 Mustafa, then fought with him and fired at PW-3 Mustafa after being punched to the ground by PW-3 Mustafa. After firing, Rahul gave another threat to PW-3 Mustafa to flee from the place of incident by saying that he had fired once and that he would fire again if he did not flee. This evidence reveals that accused Rahul had fired upon PW-3 Mustafa with the intention to cause his death. As PW-3 Mustafa ducked to save himself, the bullet hit Mumtaz causing him fatal injuries.
56. Section 301 of the IPC provides that if a person by doing anything which intends to or knows to be likely to cause death, commits culpable homicide by causing the death of any person whose death he neither intended nor knew himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.
57. The evidence on the record proves that accused Rahul had fired upon PW-3 Mustafa with the intention to kill him. Had the bullet caused the death of PW-3 Mustafa, accused Rahul would have been guilty of having committed the murder of PW-3 Mustafa. In view of the provisions of section 301 of the IPC, as CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 34 of 35 the bullet fired by accused Rahul hit deceased Mohd. Mumtaz, accused Rahul is guilty of having committed the murder of Mohd. Mumtaz.
58. Further, in view of the fact that accused Rahul had fired upon PW-3 Mustafa with the intention to kill him but the bullet missed PW-3 Mustafa, accused Rahul is also guilty of committing the offence punishable under section 307 of the IPC for attempting to commit the murder of PW-3 Mustafa.
59. In view of recovery of country made fire arms that is three country made pistols and ammunition without a valid license, accused Rahul is guilty of the offence under section 25 of the Arms Act.
CONCLUSION
60. For the reasons recorded above, accused Rahul is convicted for the following offences:-
(a) Rahul is convicted for the offence under section 302 of the IPC for having committed the murder of Mohd. Mumtaz;
(b) Rahul is convicted for the offence under section 307 of the IPC by attempting to kill Mustafa by firing at him with a fire arm and
(c) Rahul is convicted for the offence under section 25 of the Arms Act for being in conscious possession of fire arms and ammunition without a valid license.Digitally signed by
REETESH REETESH SINGH SINGH Location: (Reetesh Singh) Karkardo ASJ-2/KKD/East/25.07.2022 Announced in open court on 25.07.2022 CNR No. DLET01-006307-2015 SC No. 1523/2016 FIR No. 979/2014 PS Gandhi Nagar State Vs Rahul Page No. 35 of 35