Delhi District Court
7. In The Matter Of Rajiv vs . State Of Rajasthan (1996) 2 Scc on 1 May, 2013
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSINOS JUDGE-01/SPECIAL JUDGE (NDPS)
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Unique I.D. No. : 02402R00034752009
Sessions Case No. : 61/2011
FIR No. : 341/2008
Under Sections : 307/34 IPC & 25/27 Arms Act
Police Station : Gokal Puri
In the matter of :
STATE
Versus
1. MOHD. HAIDER . . . Accused Persons
S/o Iftyar Haider
R/o H. No. 647, Gali No. 6
Old Mustafabad, Delhi
2. NAIMUDDIN
S/o Sirajuddin
R/o H. No. 605, Gali No. 6/5
Old Mustafabad, Delhi.
3. MOHD. NADIM
S/o Ishtkar
R/o H. No. 621, Gali No. 6
Old Mustafabad, Delhi.
Date of Institution : 27/09/2011
Date of committal : 18/02/2009
Date of reserving judgment : 15/04/2013
Date of pronouncement : 27/04/2013
JUDGMENT
This charge-sheet has been filed against the above FIR No. 341/2008 Page 1 of 45 mentioned three accused persons for facing trial for commission of offence under sections 307/34 IPC and section 25/27 Arms Act.
2. The facts of the prosecution case in brief are that on receipt of DD No. 27-A, on 20.11.2008, SI B.D. Meena alongwith Ct. Sheesh Pal, reached at H. No. 864, Gali No. 9, near APN School, Old Mustafabad, Delhi, where Beat Staff HC Surendra No. 1883/NE and Ct. Rajendra Kumar No. 680/NE were already present. On inquiry, SI came to know that injured had already been removed to GTB Hospital. Blood was lying on the spot. Leaving the beat staff on spot to guard the same, SI alongwith Ct. Sheesh Pal left for GTB Hospital and collected MLC No. C-6596/08 of injured Sajid S/o Shaukat Ali, R/o H. No. 587, Gali No. 6, Old Mustafabad, Delhi, with alleged history of assault (gun shot injury) and patient/injured was unfit for statement. IO received parcel containing blood stained shirt and baniyan of injured. One Wakil Ahmed S/o Shaukat Ali, R/o H. No. 587, Gali No. 6, Near Kuen Wali Masjid, Old Mustafabad, Delhi-94, aged 19 years, met IO and got his statement recorded as under :-
"I am residing at aforesaid address alongwith my family and do a private job. Today dated 20.11.2008, the engagement ceremony of my brother Khalid was being solemnized and our whole family was busy in the said function, at about 04.30 PM, my younger brother Sajid received a call on his mobile phone and left the function saying that he will be back soon. At about 05.15 PM, one boy came and told me that someone has shot my brother Sajid at Gali No. 9, Old Mustafabad. I alongwith my elder brother Liyakat Ali immediately reached there and saw that FIR No. 341/2008 Page 2 of 45 my brother Sajid was lying there (khoon se lathpath) and with the help of my brother Liyakat, I took my brother injured Sajid to GTB Hospital in an auto and on our way to hospital, I inquired him about the incident on which Sajid told that Nadim s/o Istkar had called him at Gali No. 9, Old Mustafabad where Mohd. Haider of neighborhood and one other boy not known to him were already standing. As the Sajid reached there, Nadim started abusing him and said that he (Sajid) had beaten him on the day of Eid and today he will not leave Sajid and told Mohd. Haider and other boys to catch hold of Sajid so that Sajid cannot run away on which Haider and other boy caught hold Sajid and Nadim shot Sajid on his back and Sajid saw that Haider was also having a desi Katta. Thereafter, my brother was screaming in pain who was got admitted in GTB Hospital for treatment. Nadim, Haider and his one associate have shot my brother with the intention to kill him.
Legal action be taken against them. I have heard my statement which has been reduced in writing, same is correct."
3. On the basis of the above-statement of complainant, MLC of injured, and the circumstances, commission of offence U/s 307/34 IPC and 25/27/54/59 Arms Act was made out and accordingly, SI B.D. Meena got the FIR registered through Ct. Sheesh Pal. Crime Team was called. Crime scene was got inspected and photographed by the Crime Team. Blood stained earth-control and simple earth-control besides desi katta loaded with cartridge were lifted from the spot and were seized. IO recorded the statements of witnesses. On 21.11.2008, IO recorded the FIR No. 341/2008 Page 3 of 45 statement u/s 161 Cr.PC of injured Sajid who disclosed the name of Naimuddin as third associate of accused Haider and Nadim. Accused Mohd. Haider was arrested at the instance of complainant. Disclosure statement of accused Mohd. Haider was recorded and pointing out memo of spot was prepared at his instance and he was sent to JC. On 22.11.2008, at the instance of complainant. Accused Naimuddin was arrested, his disclosure statement was recorded and pointing out memo of spot was prepared at his instance. On 29.11.2008, third accused Nadim was arrested at the instance of his maternal uncle Nasir Hussain, his disclosure statement was recorded and pointing out memo of spot was prepared. Police custody remand of accused Nadim was obtained and during the remand, he got recovered, from Muzaffar Nagar, U.P., one desi katta, one live cartridge and one fired cartridge which were used in the commission of the offence. Case property was sent to FSL. Final result on the MLC of injured was obtained wherein 'dangerous/grievous injury' was opined by the doctor. Crime Team report and photographs were obtained. On completion of investigation, charge-sheet was filed awaiting FSL result. However, later on, FSL result from FSL (Ballistics Division), Rohini, Delhi was obtained and same was filed through supplementary challan.
4. Ld. Additional Chief Metropolitan Magistrate after supplying the necessary copies to the accused persons, committed the case to the sessions vide order dated 18.02.2009.
5. My Ld. Predecessor, vide order dated 16.05.2009, framed the charge against all accused persons for offences U/s 307/34 IPC to which they pleaded not guilty and claimed trial. Vide order dated 26.09.2012, accused Haider was also charged for offence U/s 25 Arms FIR No. 341/2008 Page 4 of 45 Act and accused Nadim for section 25/27 Arms Act to which they both again pleaded not guilty and claimed trial.
6. The prosecution in support of its case examined as many as 18 witnesses.
(i) The prosecution examined following material witnesses :-
a) PW-1 Sajid is the injured himself who allegedly was caused gun shot injury by accused Nadim while being caught hold by other two accused persons Mohd. Haider and Naimuddin. He corroborated the prosecution case.
He identified all the three accused persons in the court. He identified his shirt Ex. Pw1/P1 and baniyan Ex. PW1/P2 which were worn by him at the time of incident.
b) PW-3 Wakil Ahmed is the complainant in this case. He is elder brother of the injured Sajid and after incident, he alongwith his brother Liyakat had removed the injured to GTB Hospital and on way to the hospital, injured narrated him the incident and informed him that accused Nadim had fired gun shot on him while other two accused caught hold him. At the instance of this witness, IO arrested accused Haider, prepared site plan of spot and took the country made pistol in police possession. This witness proved the arrest memo Ex. PW3/A and personal search memo Ex. PW3/B of accused Haider. He also got arrested accused Naimuddin vide arrest memo Ex. PW3/C and proved his personal search vide FIR No. 341/2008 Page 5 of 45 memo Ex. PW3/D. He proved his statement Ex. PW3/E. He identified all the three accused persons in the court.
c) PW-4 Liyakat Ali is also the brother of injured. He alongwith his another brother complainant Wakil Ahmed had removed the injured Sajid to GTB Hospital. He deposed that on way to hospital, injured informed that Mohd. Haider and Naimuddin caught hold of him and Nadim had fired gun shot on him and while running a dessi katta had fallen on the spot from the hand of Haider.
d) PW-5 Shokat Ali is the father of injured Sajid. After the incident, he went to GTB Hospital where he found his son Sajid in injured condition alongwith Liyakat Ali and Wakil Ahmed. He got the injured admitted in the hospital.
(ii) The prosecution also examined following formal witnesses :-
a) PW-2 Nasir Hussain is uncle of accused Nadim and is witness of his arrest. He proved the documents Ex. PW2/A and Ex. PW2/B.
b) PW-6 HC Rajender Singh, the then Duty Officer has proved DD No. 27-A Ex. PW6/A, recorded by him on 20.11.2008 at about 05.28 PM which was assigned to SI B.D. Meena for taking action. This witness also proved the FIR of this case vide Ex. PW6/B, registered by him on the basis of Rukka sent by SI B.D. Meena through Ct. Sheesh Pal on 20.11.2008 at 08.35 PM. He also proved his endorsement Ex. PW6/C, made by him FIR No. 341/2008 Page 6 of 45 on the Rukka.
c) PW-11 Dr. Virender Kumar Gupta, Sr. Neuro Surgery, GTB Hospital, has proved the MLC Ex. PW11/A of injured Sajid which bears the endorsement of Dr. Prabhjot Saggu at portion encircled as X and his signatures at point A. Dr. Prabhjot Saggu had opined the nature of injury as grievous.
d) PW-12 Dr. Prashant Modi, Sr. Resident, Department of Orthopedic, GTB Hospital, has proved the endorsement of Dr. Sunil Kini at portion Y on the MLC Ex. PW11/A of injured Sajid and identified his signatures at portion B. Dr. Sunil Kini has opined the nature of injury as grievous as per ortho notes. This witness being acquainted with the signatures and handwriting of Dr. Sunil Kini was deputed by the M.S. to depose on behalf of Dr. Sunil Kini who has left services of the hospital.
e) PW-13 Sh. Naresh Kumar, Sr. Scientific Officer (Biology), FSL, Rohini, Delhi, proved his biological report Ex. PW-13A and serological report Ex. PW-13/B with regard to the four parcels i.e. Ex. A1 to Ex. A2, Ex. 1, Ex. 2 and Ex.3, which were received at FSL Rohini on 29.12.2008.
f) PW-13 Dr. Parmeshwar Ram, CMO, GTB Hospital, has proved the MLC Ex. PW11/A of injured Sajid which is in the handwriting of Dr. Roccoo who has left the services of the hospital. This witness identified signatures of Dr. Roccoo at point C on the MLC as he FIR No. 341/2008 Page 7 of 45 had seen him (Dr. Roccoo) writing and signing during the course of duties. As per MLC, injured Sajid was examined by Dr. Roccoo with the alleged history of assault (gun shot injury) and injured had sustained the injury as 'Lacerated wound 4 X 3 cm over the left lateral chest'. It is pertinent to mention here that this witness ought to have been examined as PW14 but due to inadvertence he has been examined as PW13 instead of PW14.
g) PW-14 Sh. Rajneesh Gupta, Addl. DCP, North-East District, Delhi, has proved his sanction order Ex. PW-14/A granted by him under section 39 Arms Act, to prosecute the accused persons namely Mohd. Nadim and Mohd. Haider under section 25 Arms Act.
h) PW-14 Dr. Mohit Kumar Joshi, Assistant Professor, Surgery, GTB Hospital was deputed to depose on behalf of Dr. Ritesh who has left the services of the hospital and he had seen him (Dr. Ritesh) writing and signing during the course of his duties. This witness has proved the endorsement of Dr. Ritesh at portion Z and his signatures at point C on the MLC Ex. PW11/A of injured Sajid. Dr. Ritesh has opined the nature of injury as dangerous as per surgical record.
i) PW-15 HC Jaiveer of PS Gokalpuri, on 29.12.2008 had received parcels from MHC(M) and deposited the same vide RC No. 138/21 at FSL Rohini. After depositing the parcels at FSL Rohini, he handed over the receipt of the same to the MHC(M).
FIR No. 341/2008 Page 8 of 45j) PW-18 HC Ashok Pal Singh proved the relevant entries in register No. 19 regarding deposit of case property in this case.
(iii) The prosecution also examined following witnesses of arrest and investigation:-
a) PW-7 H.C. Rustam Singh is the witness of recovery of one Dessi Katta, one live cartridge and one fired cartridge which were got recovered by accused Nadim from inside the wall of the bathroom of his uncle Gulzar's house at Nai Abadi Khalla Park, Muzaffar Nagar on 30.11.2008, when this witness had accompanied the IO/SI B.D. Meena and Ct. Rajesh alongwith accused Nadim to Muzaffar Nagar. He proved the sketch Ex. PW7/A and seizure memo Ex. PW7/B, prepared by the IO of above recovered articles. He also identified Dessi Katta Ex. PW7/P1, live cartridge Ex. PW7/P2 and fired cartridge Ex. PW7/P3 in the court.
b) PW-8 HC Sher Pal Singh, the then Duty Officer at GTB Hospital has deposed that on 20.11.2008, one injured Shahid was admitted in casualty of the hospital. He has proved the seizure memo of one sealed pullanda (sealed with the seal of hospital) and one sample seal, handed over to him by the doctor on duty which he later on handed over to the IO who seized the same vide sizure memo Ex. PW8/A. He also proved the seizure memo Ex. PW8/B of one sealed pullanda (sealed with the seal of doctor) and one sample seal which was handed over to him by the doctor on duty on 26.11.2008 which he FIR No. 341/2008 Page 9 of 45 handed over to the IO. He deposed that sealed pullanda was intact during the period it remained in his possession.
c) PW-9 HC Yogendra Singh had joined the investigation on 29.11.2008 and at the instance of PW-2 Nasir Hussain, they apprehended the accused Nadim and arrested him vide arrest memo Ex. PW2/A. This witness proved personal search memo Ex. PW2/B and disclosure statement Ex. PW9/A of accused Nadim and his pointing out memo Ex. PW9/B.
d) PW-10 Ct. Shesh Pal Singh had joined the investigation on 20.11.2008 alongwith IO/SI B.D. Meena and had reached at the spot i.e. H. No. 864, Gali No. 9, Near A.P.N. School, Old Mustafabad and came to know that injured had already been removed to the hospital. Leaving the beat constable at spot, they reached at GTB hospital and found injured Sajid admitted there. Doctor had declared him unfit for statement. IO recorded the statement of Wakil Ahmed the brother of injured, prepared Rukka and got the FIR in this case registered through this witness. IO got the crime scene photographed, lifted blood from the spot with the help of cotton, kept the same in plastic box and seized vide memo Ex. PW10/A. IO also seized the blood stained earth and earth control vide memo Ex. PW10/B & Ex. PW10/C. IO also lifted the country-made pistol from the spot which was opened having one live cartridge in its barrel. IO prepared sketch of the Katta and cartridge FIR No. 341/2008 Page 10 of 45 vide memo Ex. PW10/D and sealed the same vide seizure memo Ex. PW10/E. On 21.11.2008 at about 05.30 PM, PW-10 had also joined the investigation with IO and at the instance of complainant Wakil Ahmed, they apprehended accused Haider and arrested him vide arrest memo Ex. PW3/A, conducted his personal search vide memo Ex. PW3/B, interrogated him and recorded his disclosure statement Ex. PW10/F. Accused took the police to the spot and IO prepared pointing out memo Ex. PW10/G of accused Haider. This witness also identified dessi katta Ex. PW10/PS and one live cartridge Ex. PW10/2 which were seized on the spot.
e) PW-11 Inspector Rajesh Dogra, the then Incharge of Crime Team, Nort-East District deposed that on 20.11.2008 on receipt of a call from control room NE, he alongwith his team consisting of Ct. Tarun Photographer and ASI Ravi Kant the Finger Print Expert reached at the spot i.e Gali No. 9, Old Mustafabad, Near APN Public School where IO, SHO and ACP met them. He inspected the crime scene, got the same photographed, finger prints were checked on country made pistol which was lying on the spot. IO recorded his statement.
f) PW-17 SI B.D. Meena is the IO of this case who on receipt of DD No. 27-A Ex. PW6/A 20.11.2008, alongwith Ct. Sheesh Pal had reached at the spot where HC Surender and Ct. Rajendra (beat staff) were already present and injured had already been removed to GTB Hospital. Leaving the said beat staff at spot to guard the FIR No. 341/2008 Page 11 of 45 same, IO alongwith Ct. Sheesh Pal reached at GTB Hospital, collected MLC of injured Sajid who was unfit for statement, recorded the statement Ex. PW3/E of Wakil Ahmed, brother of the injured, endorsed the same vide his endorsement Ex. PW17/A and got the FIR registered through Ct. Sheesh Pal. IO seized the blood stained clothes of injured i.e baniyan and shirt vide seizure memo Ex. PW8/A which were handed over to him by the Duty Ct. at GTB hospital in a sealed parcel alongwith sample seal of GTB Hospital. Thereafter, IO reached at the spot, prepared site plan of the spot Ex. PW17/B at the instance of complainant Wakil Ahmed, called the Crime Team. Incharge, Crime Team inspected the spot and got the crime scene photographed. IO recorded statement of Incharge, Crime Team, photographer and complainant, lifted blood sample from the spot besides blood stained earth-control and simple earth-control, sealed the same with the seal of BD giving Sl. No. 1, 2 and 3 and seized vide memo Ex. PW10/A, B and C respectively. IO also lifted one katta from the spot loaded with one live cartridge and prepared sketch thereof vide Ex. PW10/D, seized the same vide memo Ex. PW10/E and gave it Sl. No. 4 and deposited the said case property with Malkhana. On 21.11.2008, at the instance of complainant, he apprehended accused Wakil Ahmed vide arrest memo Ex. PW3/A, conducted his personal search vide memo Ex. PW3/B and recorded his disclosure statement Ex. PW10/F. Accused Haider FIR No. 341/2008 Page 12 of 45 pointed out the place of occurrence vide his pointing out memo Ex. PW10/G. In the evening on the same day, IO recorded statement U/s 161 Cr.PC of injured Sajid who disclosed the name of third accused namely Naimuddin. On 22.11.2008, IO arrested accused Naimudddin vide memo Ex. PW3/C, conducted his personal search vide memo Ex. PW3/D, recorded his disclosure statement Ex. PW16/C and prepared his pointing out memo Ex. PW1/D. On 26.11.2008, from the Duty Ct. at GTB hospital, IO received the parcel bullet which was recovered from the body of inured Sajid, alongwith sample seal. IO seized the same vide memo Ex. PW8/B and recorded statement of Ct. Sher Pal. On 29.11.2008, at the instance of one Nasir Hussain, maternal uncle of accused Nadim, IO alongwith HC Yogender apprehended the accused Nadim from the house of Nasir Hussain, arrested him vide arrest memo Ex. PW2/A, conducted his personal search vide memo Ex. PW2/B and recorded his two disclosure statements Ex. PW9/A and Ex. PW9/B. On next day, during PC remand, accused Nadim got recovered one desi katta of 0.315 bore loaded with two cartridges one fired and another live, from the house of his uncle at Nai Abadi, Khala Park, near Makki Masjid, Muzaffar nagar from behind the bricks on the wall above the laterine. IO prepared sketch thereof vide memo Ex. PW7/A, seized the same vide memo Ex. PW7/B, recorded statement of uncle of accused Gulzar in whose presence the said FIR No. 341/2008 Page 13 of 45 recovery was made and deposited the case property in Malkhana. IO sent the exhibits to FSL and obtained final opinion on the MLC of injured. The doctor has opined the nature of injury as grievous and dangerous. IO collected crime scene report Ex.PW16/E. He placed on record the FSL report Ex. PW13/A and B and FSL report (ballistic) Ex. PW16/F besides the sanction Ex. PW14/A of DCP. This witness also identified the katta Ex. PW10/P1 and cartridge Ex. PW10/P2 recovered from the possession of accused Haider. He also identified katta Ex.PW7/P1 and live cartridge Ex. PW7/P2 and fired cartridge Ex. PW7/P3 which were recovered from the possession of accused Nadim. After completion of investigation, prepared the charge-sheet and filed the same through SHO.
7. In the statement U/s 313 Cr.PC, incriminating evidence against accused persons were put to them, wherein they denied the prosecution evidence and claimed innocence.
8. In his statement, accused Haider stated that he has been falsely implicated in this case because of enmity on account of teasing of the victim by him who has been selling scrap goods (kabadi ka saman) and the victim belongs to a family of criminals and having criminal cases against him and was having love affair with one girl whose name has been mentioned in the judicial file and the victim wanted to marry the said girl and because of his (accused Haider) teasing, accused could not marry the said girl and so he has been falsely implicated in this case. Accused FIR No. 341/2008 Page 14 of 45 Haider opted to lead defence evidence.
9. In their statements U/s 313 Cr.PC, other two accused persons namely Mohd. Nadim and Naimuddin stated that PWs are interested witnesses and they have been falsely implicated in the present case but they did not opt to lead any evidence in their defence.
10. In defence of accused Haider, DW1 Haskeel Haider, cousin brother of accused Haider deposed that Haider was taken by the police to PS Gokalpuri from his house in his (DW1's) presence on 20.11.2008 at about 06.00 PM, on the pretext of making some inquiry in a theft case and when he went to PS and told the police to release Haider, police did not inform him about arrest of Haider, whereas the date of arrest has been shown as 21.11.2008 and after two days, he came to know that Haider has been falsely implicated in the present case.
11. He also examined DW-2 Iftikhar Haider, the father of accused Mohd. Haider who deposed that on 20.11.2008, he had gone to ply TCR and at about 08.00/08.15 pm, when he returned back to his home his wife told him police officials had taken Mohd. Haider with them for the purpose of making inquiry regarding one theft. He went to PS where police officials told him that they brought Mohd. Haider for making inquiry of a theft case and will release him in the night and on their assurance, he (DW-2) came back to his home but Mohd. Haider was not released. On next morning, DW-2 went to PS but his son was not released. DW-2 denied having been informed by the police about his son's arrest as alleged in the arrest memo Ex. PW3/A. He denied the phone No. 9891239535 as his number and stated that his son Mohd. Haider has FIR No. 341/2008 Page 15 of 45 been falsely implicated in the present case.
12. I have heard submissions from Sh. Om Prakash, Ld. Chief Public Prosecutor for State and from Sh. Vineet Lakhani, Ld. Legal Aid Counsel for accused Nadim, Sh. Mahesh Sharma, Ld. Counsel for accused Naimuddin and Sh. I.K. Khare, Ld. Counsel for accused Mohd. Haider and I have also gone through the record.
13. Sh. Vineet Lakhani, Adv. from Legal Aid on behalf of accused Nadim has submitted that the prosecution has examined 18 witnesses in support of its case and there are material contradictions in their testimonies. PW1 Sajid has deposed that on receiving call from Nadim he reached at the place of incident but the prosecution has not collected the record of the mobile phone call received by PW1 Sajid and therefore has failed to establish on record that any such call was received by him. The place of incident is a public place and public persons as well as residents were available but not even a single person has been joined by the IO in the investigation. The witness has also failed to establish the proper location of the spot from where it was fired. According to him, version of the injured, that he narrated the incident to the public gathered at the spot but no one tried to help him and he waited till the help was received from his house, is unbelievable. PW3 Wakil Ahmed is the brother of injured Sajid who stated that Sajid had told him that he received a phone call from Haider but as per statement of Sajid the said phone call was from Nadim and at about 5:00/5:30 p.m, a boy came from the house of accused Wakil Ahmed who gave the information that his brother Sajid has sustained injury but the said boy was never examined by the prosecution. The alleged cause of quarrel was the previous incident on the eve of Eid, FIR No. 341/2008 Page 16 of 45 which has not been disclosed and therefore motive has not been proved. The number of TSR in which injured was shifted to the hospital has also not come on record. None of the PWs (PW2 to PW5) is eye-witness of the incident and they all have been told by injured Sajid and therefore they are hear-say witnesses. According to PW7 Nadim, he accompanied them to Mujaffar Nagar to the house of his uncle Gulzar at Nai Abadi, Kalla Park and got recovered one desi katta, one live cartridge and one fired cartridge from inside the wall of bathroom after taking out the brick pieces. However, in the cross-examination, PW7 disclosed that they went in a Maruti van on 30/11/08 but he could not remember the name of the Driver of the Maruti van in which they took the accused there. Statement of Driver of the said Maruti van has also not been recorded. This witness also does not remember the number written over the recovered live and fired cartridges and no public witness was joined during the alleged recovery and therefore the same cannot be believed. He further submitted that during the arrest of accused Nadim no public person was made witness which fact has been admitted by PW9 Yogender Singh in his cross-examination. The alleged recovered weapon of offence alongwith two cartridges has not been supported by PW16 as such the prosecution version has not been proved. As such the question of involvement of accused in the offence does not arise. The accused has been falsely implicated. PW14 Rajneesh Gupta has also admitted in the cross- examination that the katta/country made pistol was not shown to him nor he made any quarry from IO in that regard. According to Ld. Counsel the prosecution has failed to prove its case beyond reasonable doubt and the accused is entitled to acquittal.
14. Sh. Mahesh Sharma, Adv on behalf of accused Naimuddin FIR No. 341/2008 Page 17 of 45 has submitted that the accused Naimuddin has not been named by the complainant Wakil Ahmed in the complaint Ex. PW3/E. Said Wakil Ahmed was not an eye-witness. The injured PW Sajid in his cross-examination has admitted that he does not remember as to after how many days of the incident his statement was recorded by the police. He also stated that he had told the police that he had stated names of all accused persons to his brother Wakil Ahmed but on confrontation with Ex. PW1/DA from portion 'A' to 'A1', it was not so recorded. This witness also does not remember whether his statement was recorded by the police in the presence of anyone or he was alone. PW3 Wakil Ahmed in his cross-examination admitted that he had stated before the police that his brother Sajid had stated before him about the description of accused who was not known to him (the witness) as he had stated in his examination-in-chief and on confrontation with statement U/s 161 Cr.PC recorded by IO on 20/11/08 and 22/11/08, it was not found so recorded. This witness has denied the suggestion that accused Naimuddin was already known to him and he was friend of his brother Sajid. PW4 Liyakat Ali in his cross-examination stated that his statement was recorded by the police on the same date but he cannot tell when the statement of other witness namely Wakil Ahmed was recorded. He admits that he had stated to the police in his statement that Sajid disclosed before him that accused Naimuddin and Haider had caught hold of him but on confrontation with statement Ex. PW4/DA it was not so recorded.
15. PW9 HC Yogender Singh admits that the place of arrest was thickly populated area and many shops were in existence but he does not remember whether any public person was made witness in this case by the IO or not. According to Ld. Counsel for accused Naimuddin PW10 FIR No. 341/2008 Page 18 of 45 Shispal in his cross-examination admits that he does not know who is the owner of house No. 605, Mustafabad and also does not remember whether he had visited the house of accused Naimuddin.
16. PW17 SI B.D. Meena has admitted that no proceedings was conducted at the spot. He further admitted that on the MLC Ex. PW11/A an endorsement fit for statement, date and time was mentioned. He met the injured in the hospital on next day at 6:30 p.m and the injured was conscious and talking to his brother. This witness in the cross-examination also pleaded that he does not remember whether he had recorded the statement of Wakil Ahmed after recording the statement of accused Mohd. Haider. Ld. Counsel submitted that there are contradictions in the testimonies of material PWs, no public witness has been joined by the IO in the investigation, the statement of injured was not recorded by the IO in the first instance even though the injured was fit for statement at the hospital. The accused Naimuddin was not named by the complainant Wakil Ahmed and has been falsely implicated in this case. Ld. Counsel has relied on authorities reported as State of U.P v Charles Gurmukh Sobhraj, 1996(3) C.C. Cases 161 (SC), Mukeem & Anr v State (NCT of Delhi), 2012 [4] JCC 2608 and Bishnu v State 1996(2) C.C Cases 373 (HC) and submitted that accused Naimuddin is entitled to acquittal.
17. On behalf of accused Mohd. Haider, Sh. I.K. Khare, Adv. has submitted that as per MLC of injured PW1 Sajid, the patient was conscious and oriented but the IO did not record his statement rather the statement of PW3 Wakil Ahmed was recorded as PW3/E who was not an eye-witness and had stated that one boy came at their house at about 5:15 p.m on the date of incident and told him that his brother Sajid has FIR No. 341/2008 Page 19 of 45 been shot in Gali No. 9, Purana Mustafabad. In the said statement he did not disclose the name of person who had called injured Sajid but in his examination-in-chief, he claims that he was informed by his brother that he had received a call from accused Haider whereas PW1 Sajid has deposed that he had received a call from accused Nadim. He went to the spot where he found Sajid, his injured brother in pool of blood whom he took up in an auto with the assistance of his brother Liyakat and shifted to GTB Hospital in a TSR. On way to the hospital, Wakil Ahmed inquired from injured Sajid about the incident who told him that accused Nadim S/o Istkar had called him in Gali No. 9, Purana Mustafabad where the neighourer Mohd. Haider and one more boy were already standing who was not know to complainant Wakil Ahmed. Injured had further told him that the moment he reached there accused Nadim started abusing him and told that Sajid had given him beatings on the previous Eid and he will not leave Sajid on that day. The accused Nadim asked the co-accused Mohd. Haider and other co-accused who has not been named to catch hold of Sajid so that he cannot run away. The accused Haider and other boy caught Sajid and Nadim fired a shot on his back. Injured Sajid also saw that accused Haider was having one country made pistol. Even though, the injured PW1 Sajid in his cross-examination has admitted that he knew all the accused persons prior to the date of incident and had told the name of the accused persons to his brother Wakil Ahmed but he failed to mention the name of accused Naimuddin in his statement Ex. PW3/E. Even PW Sajid was in conscious state at the hospital but the IO did not record his statement on the date of admission in the hospital and the IO deliberately recorded the statement of PW Sajid subsequent to the recording of statement of Wakil Ahmed. PW1 is unable to state as to after how many days his statement was recorded by the police. PW1 was FIR No. 341/2008 Page 20 of 45 confronted with the statement Ex. PW1/DA wherein name of Naimu (Naimuddin) was not disclosed.
18. The IO has not collected the call details record of the mobile on which PW Sajid injured had received the alleged call from accused Nadim. IO has also not collected the call detail record of mobile phone of accused Nadim. PW1 was also unable to tell the names of persons who had gathered at the spot or the persons who informed the police.
19. PW1 could not tell the actual distance of firing the shot. No recovery of country made pistol or cartridge was effected from accused Mohd. Haider. IO had not lifted the finger prints from the said country made pistol. No public witness has been joined in the recovery of pistol and cartridge. Accused Mohd. Haider was not arrested at the spot but was allegedly apprehended on 22/11/08 but no independent witness was joined in the alleged arrest. The ballistic report Ex. PW16/F also shows that individual characteristics of striations present on deformed bullet marked Ex. 'EB1' are insufficient for comparison and opinion whether it has been discharged through the country made pistol .315" bore marked Ex. 'F2' above or not. Ld. Counsel submitted that only family members of the injured have been cited as witnesses who all are interested witnesses. No public witness has been joined by the IO despite availability. The fact that any call was received by injured Sajid from Nadim on phone has not been corroborated because the mobile number of Nadim and Sajid has not been noted nor the call detail have been proved on record. On behalf of accused Mohd. Haider, two defence witnesses have also been examined who have deposed that accused Mohd. Haider has been falsely implicated. Even the alleged recovery of the country made pistol and FIR No. 341/2008 Page 21 of 45 cartridge has not been effected from accused Mohd. Haider and therefore the testimonies of PWs cannot be believed and prosecution has failed to prove the charge against accused Mohd. Haider and he is entitled to acquittal.
20. Ld. Chief Public Prosecutor for State has submitted that none of the authorities relied by Sh. Mahesh Sharma, Adv for accused Naimuddin is applicable on the facts and circumstances of the case. The non-recording of call detail records of the mobile phone of accused Nadim and injured Sajid, non-examination of the boy who gave information to Wakil Ahmed about the gun shot injury caused to Sajid, non-examination of public witnesses are immaterial as the prosecution case has been proved by the material public witnesses. There is minor contradiction in the testimony of PW3 Wakil Ahmed who had stated that his injured brother Sajid had told him that the accused who called him on phone was Mohd. Haider whereas according to PW Sajid, the accused who called him on phone was Nadim is immaterial because both these accused have been named and identified by injured Sajid in the court. Ld. Chief Public Prosecutor also submitted that conviction of an accused can be based on the sole testimony of reliable material witness and therefore not joining the public persons in the investigation by the IO is of no consequence. The testimony of PWs is fully reliable and trustworthy. PW16 Gulzar being related to the accused has resiled from his testimony for obvious reason but the recovery of country made pistol and cartridge from accused Nadim has been proved by the recovery witnesses. He has also relied on authority reported as AIR 1980 Supreme Court 873 Hazari Lal v The State (Delhi Admn), AIR 1997 Supreme Court 364 Darshan Singh and Others v State of Haryana, AIR 1971 Supreme Court 28 Girdhari Lal FIR No. 341/2008 Page 22 of 45 Gupta and another v D.N. Mehta, Assistant Collector of Customs and Others and Raja Khima v State of Saurashtra AIR 1966 SC 217. The injured Sajid has sustained gun shot injury caused by accused Nadim and has been permanently paralysed and therefore the offence U/s 307/34 IPC against all the three accused persons and offence U/s 25/27 Arms Act against accused Nadim and Mohd. Haider has been proved beyond reasonable doubt and therefore accused persons be convicted for the said offences.
21. A perusal of the record reveals that on 20/11/08 an engagement ceremony of Mr. Khalid, the brother of injured Sajid was going on when injured Sajid had received a call on his mobile phone whereupon he informed PW3 Wakil Ahmed and left the place. This fact has been stated by PW Wakil Ahmed in his complaint Ex. PW3/A and it is also corroborated by testimony of PW1 Sajid wherein he clarified that he had received the telephone call on his mobile from accused Nadim. PW4 Liyakat Ali and PW5 Shokat Ali have corroborated the fact that on 20/11/08, the engagement ceremony of Mohd. Khalid was going on at their house No. 586, Gali No. 6, Kuen Wali Masjid, near New Mustafabad, Delhi. PW1 Sajid and PW3 Wakil Ahmed have corroborated the fact that injured Sajid received a call on his mobile phone and PW1 had informed PW3. The contradiction regarding name of Nadim and Haider is minor because in the engagement ceremony PW3 Wakil Ahmed might not have taken this information seriously. Moreover, in his statement Ex. PW3/E Wakil Ahmed has specifically named both accused Nadim and Mohd. Haider and also stated about another boy who was involved in the alleged occurrence/incident. PW1 injured Sajid has named all the three accused Nadim, Mohd. Haider and Naimuddin. PW3 Wakil Ahmed has got arrested FIR No. 341/2008 Page 23 of 45 all the three accused persons and in his examination-in-chief, he has clarified that he has tried to know the facial features of accused and his brother had described the facial features of accused resembling with features of accused Naimuddin. He further deposed that his brother has told him that the said person is residing behind his house and his brother used to visit his house and that person was having 'kancha' eyes and accordingly he sensed that it was Naimuddin. PW3 further deposed that he got assurance from the narration of his brother that elder brother of accused was doing the job of jali gate. He has identified all the three accused in the court. PW3 had clearly stated in his cross-examination that he knew the accused Nadim and Haider by name and their faces and that is why he had named both of them in his complaint Ex. PW3/E. Since he did not personally know the accused Naimuddin he had fairly stated in the statement Ex. PW3/E as third boy whose identity was not clear to him but he has clarified that the third accused was having facial features of accused Naimuddin. The injured Sajid PW1 has named all the three accused namely Nadim, Naimuddin and Mohd. Haider and all of them have been identified by him in the court. In the cross-examination he has affirmed the suggestion that he knew all the three accused persons prior to the incident. In the statement U/s 313 Cr.PC accused Naimuddin has stated that he has been falsely implicated in the present case. However, he has not examined any witness in his defence to corroborate his plea. PW1 has denied the suggestion in the cross-examination that accused Naimuddin was present on 20/11/08 in the engagement ceremony of his brother at his house. In the cross-examination, he has stated that he has told the names of all three accused persons to his brother Wakil Ahmed but when he was confronted with Ex. PW1/DA with portion A to A1 it was found not so recorded. The statement Ex. PW1/DA shows that the name FIR No. 341/2008 Page 24 of 45 of accused Naim @ Naimuddin was not told by him to his brother on account of fear. He has categorically denied the suggestion that accused Naimuddin was not present at the spot on 20/11/08. It is pertinent to mention that two contradictory suggestions have been given in the cross- examination on behalf of accused Naimuddin to PW1. Firstly, that accused Naimuddin was present at the house of PW1 on the occasion of engagement ceremony of his brother on 20/11/08 and secondly that accused Naimuddin was not present at the spot on 20/11/08. The place of occurrence i.e the spot is house No. 864, near APN Public School in Gali No. 9, Old Mustafabad, Delhi-94 and the house address of the injured as well as his brother Wakil Ahmed is House No. 587, Gali No. 6, near Kuen Wali Masjid, New Mustafabad, Delhi-94. According to PW3 the distance of place of occurrence was about 400 steps from his house and he alongwith his brother Liyakat Ali had reached at the spot on motorcycle within 2-3 minutes. When the suggestion was given that accused Naimuddin was present at the house of injured and complainant, it is apparent that the presence of accused near the spot is admitted because there is not much distance from the house of complainant to the place of occurrence. The accused Naimuddin has failed to disclose any reason, as why the complainant or his brother would falsely implicate him in the present case. The contentions raised by Ld. Counsel for accused Naimuddin that the accused Naimuddin was not named in the complaint or that there are contradictions in the testimonies of witnesses and therefore their testimonies cannot be believed cannot be accepted because accused Naimuddin was previously known to the injured Sajid who has specifically named the accused Naimuddin as well as other two accused Nadim and Mohd. Haider and has also identified all the three accused persons in the court. It is pertinent to note that in the cross-examination of PW17 SI B.D. FIR No. 341/2008 Page 25 of 45 Meena, the witness has affirmed the suggestion that the injured Sajid and accused persons are residents of same locality and they also know each other very well. This witness has denied the suggestion that accused Naimuddin was not named till he was arrested. He also denied the suggestion that the accused Naimuddin has been falsely implicated in this case in connivance of complainant and witnesses. Accused Naimuddin has failed to prove on record any reason for his false implication. PW1 has also clarified that he became unconscious in the hospital, therefore, it was possible that at the time of his admission in the hospital, he was conscious but might have become unconscious subsequently when the IO visited the hospital.
22. PW13 Dr. Parmeshwar Ram (sic PW14) CMO GTB Hospital has proved the MLC Ex. PW11/A of injured Sajid who was examined by Dr. Rocco. Signatures of Dr. Rocco has been identified by PW13. According to PW13 the injured had undergone the following injuries :-
Lacerated wound 4X3 cm over the left lateral chest. The injured had undergone following treatment :-
1. Oxygenation,
2. IV fluid/Heamcceal
3. Blood transfusion
4. USG abdomen
5. Chest x-ray
6. X-ray abdomen
23. The above said injuries and treatment given to the injured clearly show that the injured could have become unconscious in the hospital after admission. PW13 Dr. Parmeshwar Ram, CMO has denied the suggestion that the MLC was prepared only for the name sake. He voluntarily added that the injured was in very serious condition and it was FIR No. 341/2008 Page 26 of 45 the priority to save the life of the patient by the Doctors. PW17 SI B.D. Meena also deposed that on 20/11/08 on receipt of DD No. 27A Ex. PW6/A, alongwith Ct. Shishpal reached at the spot where beat staff HC Surender alongwith Ct. Rajender met him and came to know that the injured had already been taken to GTB Hospital by his family members. He found that blood was lying at the spot. He left the beat staff to guard the spot and alongwith Ct. Shishpal he went to the GTB Hospital and collected the MLC of injured Sajid S/o Shaukat Ali, who was unfit for statement and under observation. The brother of injured PW3 Wakil Ahmed met him in the hospital whose statement Ex. PW3/E was recorded and endorsement Ex. PW17/A was made on which FIR was got registered through Ct. Shishpal. He conducted further investigation by visiting the spot where he inspected the spot got the photographs of the spot taken, lifted the blood sample from the spot, blood stained earth control and sample earth control from the spot and seized them vide memos Ex. PW10/A, PW10/B and PW10/C respectively. He also lifted the katta . 32 bore from the spot and on opening the same he found one live cartridge, prepared the sketch of katta and cartridge Ex. PW10/D and PW10/E. He sealed them in a cloth parcel and handed over the case property to Ct. Shishpal. He visited the hospital again but the injured was still unfit for statement where family members of injured met him and he recorded their statements. PW17 has also affirmed that the MLC Ex. PW11/A was prepared on 20/11/08 and at that time the Doctor had declared the patient unfit for statement. Although, he has affirmed the suggestion that the endorsement on the MLC was fit for statement with date and time, it is common knowledge, that normally when an injured is admitted in the hospital he may be conscious but by the time the treatment is given the patient may become unconscious and therefore FIR No. 341/2008 Page 27 of 45 even if the doctor had made endorsement on the MLC "fit for statement"
still it cannot be said that the patient might not have become unconscious subsequently when the IO had reached at the hospital.
24. There is no doubt that the IO has failed to join the boy who had informed PW3 Wakil Ahmed that PW1 Sajid has received gun-shot injury. The IO has also failed to note the mobile numbers of the accused who called Sajid on the date of incident from his house and the mobile number of Sajid as well as the call details thereof but these are minor lapses which do not affect the merit of the case. It is common knowledge that the public persons do not readily agree to join the investigation and to become a witness in a criminal case in order to avoid the avoidable harassment and agony of visit to the courts and therefore it cannot be said that IO did not join the public persons deliberately. In the authority reported as State of U.P v Bhagwant Kishore AIR 1964 SC 221, it has been held by Supreme Court that on account of irregularities in the investigation conducted by the IO, the prosecution case shall not fail.
25. In the present case, all the three accused persons have been named by injured Sajid PW1. His statement was recorded by IO, PW17 SI B.D. Meena in the hospital. IO has explained the circumstances under which the FIR was registered on the complaint of PW3 Wakil Ahmed as injured Sajid was unconscious in the hospital where PW3 and other relatives of injured were present. Since all the accused persons have been named and identified by injured Sajid, the mention of fact by PW3 that injured Sajid had informed him that Sajid had received a phone call from accused Mohd. Haider is not much relevant because injured Sajid PW1 in his testimony has explained that he was called by accused FIR No. 341/2008 Page 28 of 45 Nadim to the place of occurrence where accused Naimuddin and Haider were already present and at the instance of accused Nadim the other two accused persons caught him (PW Sajid) and accused Nadim fired a gun shot from country made pistol from back. The MLC Ex. PW11/A in respect of Sajid PW1 shows that he was got admitted in the hospital with alleged history of assault (gun shot injury) and as per the opinion of the Doctor the nature of injury was grievous. There is no other material contradiction in the testimonies of PW1 and PW3, PW4 and PW5 have also supported the prosecution case. The accused persons have failed to give any specific suggestion nor have led any evidence to prove that there was any false implication of the accused persons by PW1. All the three accused persons were previously known to PW1 Sajid as they were living in neighborhood and therefore all the accused persons were properly identified by injured Sajid. The authorities namely State of U.P v Charles Gurmukh Sobhraj, 1996(3) C.C. Cases 161 (SC), Mukeem & Anr v State (NCT of Delhi), 2012 [4] JCC 2608 and Bishnu v State 1996(2) C.C Cases 373 (HC) relied by Ld. Counsel for accused Naimuddin with due respect are not applicable on the facts and circumstances of the case as the injured Sajid in his statement has named all the three accused person who were his neighborers. Injured has also identified the accused persons in the court. Non-joining of public witnesses by the IO is immaterial as PW1, PW3, PW4 and PW5 as well as PW17 have fully proved the prosecution case. The contention of Ld. Counsel for accused Naimuddin that he was not named in Ex. PW3/E, the statement of PW3 and therefore he was entitled to acquittal has no merit as PW3 has clarified that his injured brother Sajid PW1 had told him the facial features of accused Naimuddin and therefore subsequently he had identified the accused Naimuddin also. This accused has also been named and identified by injured PW1 Sajid. On behalf of FIR No. 341/2008 Page 29 of 45 defence, no evidence has been adduced on record to suggest that accused Naimuddin could have been falsely implicated on account of any reason whatsoever. The other contention raised on behalf of accused Mohd. Haider and Nadim that PW1 had informed that his brother Sajid had told him that call was made by accused Mohd. Haider or that PW1 Sajid had stated that call was received by him from accused Nadim and on account of this contradiction these accused were entitled to benefit of doubt is also not tenable because both the accused persons have been named and identified by injured Sajid who had participated in the commission of offence. These both accused were also neighborer of injured and were identified by PW3 Wakil Ahmed also on whose identification they were arrested. The identity of the accused persons have been proved beyond reasonable doubt. The accused Nadim had called injured Sajid on phone at the place of occurrence where co- accused Mohd. Haider and Naimuddin were already present. The accused Nadim had asked the co-accused persons Naimuddin and Mohd. Haider to catch hold of PW Sajid and he had fired the gun shot causing grievous injury on PW Sajid. Accused Nadim had also uttered that he will take revenge of some occasion/incident of Eid. Both the co-accused Naimuddin and Mohd. Haider had caught injured Sajid on asking of accused Nadim who had fired the gun shot causing grievous injury on the body of Sajid. Therefore, all of them had acted in furtherance of common intention as such all are liable for commission of offence U/s 307/34 IPC. In authority reported as Abdulla Kunhi v State of Kerala, AIR 1991 SC 452, it was held that when the accused rushed with sword drawn such conduct itself showed that he shared the common intention, hence was liable for conviction. In authority reported as Hari Om v. State of Uttar Pradesh, (1993) 1 Crimes 294 (SC), it has been held that in order to FIR No. 341/2008 Page 30 of 45 bring a case under section 34 IPC, it is not necessary that there must be a prior conspiracy or pre-meditation, the common intention can be formed in the course of occurrence. In authority reported as State of Punjab v. Fauja Singh, (1997) 3 Crimes 170 (P&H), it has been held that if some act is done by the accused persons in furtherance of common intention of his co-accused, he is equally liable like his co-accused.
26. In view of above discussion, prosecution has succeeded in establishing its case against all the accused persons namely Mohd. Haider, Naimuddin and Nadim for the offence U/s 307/34 IPC. The accused Nadim has also been separately charged for the offence punishable U/s 25/27 Arms Act. PW1 Sajid has deposed that accused Nadim had fired the gun-shot on his back while co-accused Mohd. Haider and Naimuddin had caught hold of him. The PW1 fell down and the accused persons had fled away from the spot while fleeing katta of accused Mohd. Haider had fallen on the spot. He has denied the suggestion that the katta which was lifted from the spot was his katta. He has also denied the suggestion that accused Nadim has not fired on his back or that he was not having any katta. PW3 Wakil Ahmed has deposed that accused Haider was apprehended in his presence on 22/11/08 vide arrest memo Ex PW3/A and personal search memo Ex. PW3/B was prepared. He also deposed that the country made pistol lying on the spot alongwith the cartridge was lifted by the police in his presence. PW3 also deposed that accused Naimuddin @ Naim was also arrested by the police vide arrest memo Ex. PW3/C. PW17 SI B.D. Meena has deposed that he had lifted the blood sample from the spot with the help of cotton, bloodstained earth control and sample earth control from the spot which were sealed with the seal of BD and seizure memo Ex. PW10/A, PW10/B FIR No. 341/2008 Page 31 of 45 and PW10/C respectively have been prepared. He also lifted the katta of .32 bore which was lying on the spot. He opened the same and found it containing one live cartridge of which he prepared the sketch Ex. PW10/B and seized vice memo Ex. PW10/D. He sealed them in a cloth parcel and sealed with the seal of BD and handed over the case property to Ct. Shispal. He also proved the arrest memo Ex. PW3/A, personal search Ex. PW3/B and disclosure statement Ex. PW10/F in respect of accused Mohd. Haider who also pointed the place of occurrence Ex. PW10/G. This witness also deposited the articles in the malkhana which were recovered from the personal search of accused Mohd. Haider. He also deposed that accused Naimuddin was arrested vide memo Ex. PW3/C and his personal search was conducted vide memo Ex. PW3/D who also made his disclosure statement Ex. PW16/C and pointed out place of occurrence vide memo Ex. PW16/E.
27. PW17 SI B.D. Meena has deposed that he came to know that accused Nadim could have gone to the house of his uncle at Mujaffarnagar, U.P and on 29/11/08 one Nasir Hussain maternal uncle of accused Mohd Nadim came to the PS and told that accused Nadim was present in his house and had quarrelled with him. Thereafter, IO alongwith said Nasir Hussain and HC Yogender went to the house of Nasir Hussain where accused Mohd. Nadim met them and was overpowered. He was interrogated who confessed of his involvement in the present case. He was arrested vide memo Ex. PW2/A. His personal search was conducted vide memo Ex. PW2/B. He made two disclosure statements Ex. PW9/A and PW16/D and disclosed that he could get the weapon of offence i.e desi katta recovered from the house of his uncle at Mujaffarnagar, U.P. Thereafter accused Nadim led the police party at the place of occurrence FIR No. 341/2008 Page 32 of 45 and pointed out the same vide memo Ex. PW9/B. The accused was got medically examined from GTB Hospital and sent to lock up. On next day, he was produced before the court and one day police custody remand was obtained and the accused took him as well as HC Rushtam, Ct. Rajesh to Mujfaffarnagar in a private vehicle to the house of his uncle i.e Nai Abadi Kala Park, near Makki Masjid and from behind the bricks on the wall above the latrine he took out one desi katta of .315 and produced the same to the police party. The IO opened the katta and found two cartridges one was fired and other was live. The IO prepared the sketch of the katta and cartridges Ex. PW7/A and seized them vide memo Ex. PW7/B. He kept the same in a cloth parcel and sealed the same with the seal of BD. The uncle of accused namely Gulzar was also present during the proceedings whose statement was recorded. Thereafter, they returned back and deposited the case property in the malkhana. The accused was got medically examined. Statement of PWs who joined the proceedings were recorded and the accused was produced in the court. Thereafter, IO sent the exhibits to FSL Rohini through Constable. He collected the scene of crime report Ex. PW16/E. FSL report Ex PW13/A and PW13/B, FSL report (ballistics) Ex. PW16/F and proved the reports as well as sanction from Addl. DCP Ex. PW14/A. He proved the case property i.e katta Ex. PW10/P1 and cartridges PW10/P2. He further identified the katta Ex. PW7/P1, live cartridge Ex. PW7/P2 and fired cartridge Ex. PW7/E3 in the court. In the cross-examination, IO has fairly stated that no katta was recovered on the pointing out of accused Mohd. Haider but denied the suggestion that katta Ex. PW10/D was planted on accused Mohd. Haider or that false case was registered against him in connivance with the complainant and injured. In the cross-examination PW17 has stated that accused Nadim was arrested at a place in front of his house. He has FIR No. 341/2008 Page 33 of 45 denied the suggestion that accused has been wrongly arrested. He also denied the suggestion that katta was planted upon the accused or that no katta was recovered from accused Nadim. PW16 Gulzar in his examination-in-chief has stated that he was present at his house at Nai Abadi Khalla Park, Muzaffar Nagar, U.P and was taking mirch when police from PS Mujaffarnagar and the police of PS Gokalpuri arrived at his house. Accused Nadim was also present with the police officials and on their asking he accompanied them to PS Kotwali at Mujaffarnagar as he was maternal uncle (mamu) of Nadim and he had given statement. Police officials obtained his signatures on some papers but he pleaded ignorance and stated that he does not know anything more about the case. He was cross-examined by Ld. Addl. PP wherein he stated that he does not know whether the police officials recorded his statement. However, voluntarily added that police officials obtained his signatures on the sketch of gun. However, he resiled from his statement Ex. PW16/PA and regarding the recovery of katta and live cartridge as well as empty cartridge by accused Nadim from the house of witness. In the cross- examination, he affirmed the suggestion that police had obtained his signatures on some blank papers and another paper on which sketch was made. He also affirmed the suggestion that the sketch of the gun was prepared in his presence at PS Kotwali, Mujaffarnagar but denied that it was made at the house of witness. PW16 admittedly is accused Nadim's maternal uncle (mamu) and is an interested witness in favour of accused Nadim and therefore on account of his not supporting the prosecution version the testimony of police witnesses cannot be disbelieved. PW7 HC Rushtam Singh has also corroborated the fact that on 30/11/08, he was posted at PS Gokalpuri, the accused Nadim was in police custody and as per direction of SI B.D. Meena he alongwith Ct. Rajesh accompanied the FIR No. 341/2008 Page 34 of 45 accused to Mujaffarnagar. They went to the PS Kotwali, Mujaffarnagar for police assistance. Accused Nadim took them to the house of his uncle Gulzar and got recovered one desi katta, one live cartridge, one fired cartridge from inside the wall of bathroom after taking out the brick piece in the house of his uncle. IO prepared the sketch of desi katta, live cartridge and fired cartridge vide memo Ex. PW7/A and sealed with the seal of BD vide memo Ex. PW7/B. He also identified the case property Ex. PW7/P1 to PW7/P3 in the court. Contention of Ld. Defence Counsel that the testimonies of police witnesses should not be believed because they have failed to give the registration number of vehicle in which they have gone to Mujaffrangar or that no public witness has been joined in the alleged recovery is not tenable because visit of the police party at Mujaffarnagar has been admitted even by PW16 Gulzar. On account of failure to join the public persons, it cannot be said that testimony of police witnesses should not be believed. Authority relied by Ld. Chief Public Prosecutor reported as AIR 1980 Supreme Court 873 Hazari Lal v The State (Delhi Admn), AIR 1997 Supreme Court 364 Darshan Singh and Others v State of Haryana, AIR 1971 Supreme Court 28 Girdhari Lal Gupta and another v D.N. Mehta, Assistant Collector of Customs and Others and Raja Khima v State of Saurashtra AIR 1966 SC 217 are fully applicable on the facts of this case.
28. PW18 HC Ashok Pal Singh has proved the entry of four parcels in register No. 19 vide entry No. 3018 dated 20/11/08. One more parcel was received entry No. 3025 on 26/11/08 and another parcel was received vide No. 3034 on 01/12/08. He also deposed that on 29/12/08, seven sealed parcels were sent to FSL Rohini through HC Jaiveer vide RC No. 137/08 (four parcels) and vide RC No. 138/08 (three parcels). On FIR No. 341/2008 Page 35 of 45 receipt of the FSL results, these were handed over to the IO. So long as parcels remained in his custody they were not tampered. He proved the copy of extract of entry Ex. PW18/A.
29. PW14 Rajneesh Gupta, Addl. DCP has proved the sanction U/s 39 Arms Act to prosecute the accused Mohd. Nadim and Mohd. Haider U/s 25 Arms Act. He proved sanction order Ex. PW14/A.
30. HC Jaiveer PW15 has deposed that on 29/11/08 he was posted as Head Constable at PS Gokalpuri, Delhi. He had received the parcels from MHCM for depositing the same at FSL Rohini, Delhi vide RC No. 138/21 and after depositing the parcels he handed over the receipt thereof to MHCM and so long as parcels remained in his custody they were not tampered with in any manner. Nothing adverse has come in his cross-examination. The FSL report Ex. PW16/F has been proved by SI B.D. Meena, IO PW17 which is admissible U/s 293 Cr.PC even without examining its author [relied Visakha Agro Chemicals (P) Ltd v. Fertiliser Inspector-cum-Assistant Director of Agriculture (Regular) (1997) 2 Crimes 648 (AP)]. From the ballistic report, it is established on record that Ex. F1 was country made pistol of .32" and was in working order. Similarly Ex. F2 was country made pistol .315" bore and was in working condition. Both were successfully test-fired. Ex. A1 was live cartridge which can be fired through .32 fire arm and Ex. A2 was live one cartridge which could be fired through 8mm/.315 bore arm. Ex. EC1 was an empty cartridge 8mm/.315" and Ex. EB1 was deformed bullet of 8mm/.
315" cartridge. The 8mm/.315" cartridge from laboratory stock was test fired through the country made pistol .315" bore marked exhibit 'F2' above and the test fired cartridge case was marked as 'TC2' and one recovered FIR No. 341/2008 Page 36 of 45 bullet was marked as 'TB2'. The individual characteristics of firing pin marks and breech face marks present on evidence fired cartridge case marked exhibits 'EC1' and on test fired cartridge case was marked as 'TC1' were examined and compared under the Comparison Microscope Model Leica DMC and were found identical. Hence exhibit 'EC1' has been fired through the country made pistol .315" bore marked Ex. 'F2' above. As per the ballistic report all the exhibits 'F1', 'F2'/'A1', 'A2', 'EC1' and 'EB1' are firearm/ammunition as defined in the Arms Act, 1959. As per FSL report Ex. PW13/A, blood was detected on Ex. 'A1' and 'A2'. As per Ex. PW13/B all these exhibits were having the blood of human origin and Ex. A2 banyan had blood group of 'O'.
31. The contention of Ld. Defence counsel that in view of the comment at Sl. No. 10 on Ex. PW16/F, it cannot be said that the deformed bullet mark Ex. ED1, it could not be proved that the same was discharged through the country made pistol .315" bore marked Ex. F2 or not because there were individual characteristics of striations on the same which were not sufficient for comparison is not tenable and cannot be accepted because as per comment at Sl. No. 6 Ex. ED1 corresponds to bullet of 8mm/.315" cartridge and Ex. 'EC1' is fired empty cartridge, as per comment 04 Ex. A2 was live cartridge which could be fired from 8mm/. 315" bore fire arm and all these exhibits A2, EC1 and F2 were recovered from accused Nadim. The injured Sajid as per MLC Ex. PW11/A had the history of gun shot injury and blood was detected on Ex. 'A1' and 'A2' and were lifted from the spot where the gun shot injury was caused to PW1 Sajid. It has been proved on record that accused Nadim had fired the gun shot from country made pistol which he was carrying with cartridges and the said country made pistol and cartridge were recovered from accused FIR No. 341/2008 Page 37 of 45 Nadim. He had no license in respect of the recovered pistol. Therefore, he is held guilty for offence U/s 25/27 Arms Act and is convicted for the same.
32. Since the IO SI B.D. Meena has admitted that the country made pistol was not recovered from accused Mohd. Haider but the same was recovered from the spot as such prosecution version that accused Mohd. Haider was carrying the country made pistol with live cartridge cannot be believed and therefore accused Mohd. Haider is entitled for benefit of doubt and acquittal. Therefore, he is acquitted for the offence U/s 25 Arms Act.
33. Accused Mohd. Haider has examined two witnesses in his defence namely DW1 Haskeel Haider and DW2 Iftikhar Haider. DW1 is cousin of accused Mohd. Haider and DW2 is the father of accused Mohd. Haider. Both the witnesses have deposed that accused Mohd. Haider was taken to the PS by the police officials from his house on the pretext of making some inquiry in theft cases and subsequently has been falsely implicated in the present case. In their cross-examinations both the witnesses admitted that they did not give any complaint to the SHO/ACP/DCP of the area regarding false implication of accused Mohd. Haider in the present case. Both the witnesses are interested witnesses being relative of accused Mohd. Haider. Hence, testimony of these witnesses regarding false implication of accused cannot be believed. From their testimony, these witness have failed to cause any dent on the prosecution story against accused Mohd. Haider.
34. In view of the above discussion all the accused persons FIR No. 341/2008 Page 38 of 45 namely Mohd. Haider, Mohd. Nadim and Naimuddin are convicted U/s 307/34 IPC. Accused Mohd. Nadim is also convicted for offence U/s 25/27 Arms Act. However, accused Mohd. Haider is acquitted of the charge U/s 25 of Arms Act.
Let the convicts be heard on point of sentence.
Announced in the open court today i.e 27th April 2013 (T.S. KASHYAP) ASJ-01/Spl. Judge (NDPS) Shahdra District Karkardooma Court, Delhi FIR No. 341/2008 Page 39 of 45 IN THE COURT OF SH. T.S. KASHYAP ADDITIONAL SESSIONS JUDGE-01/SPECIAL JUDGE (NDPS) SHAHDRA DISTRICT, KARKARDOOMA COURTS, DELHI Unique I.D. No. : 02402R00034752009 Sessions Case No. : 61/2011 FIR No. : 341/2008 Under Sections : 307/34 IPC & 25/27 Arms Act Police Station : Gokal Puri In the matter of :
STATE Versus
1. MOHD. HAIDER ...
Convicts S/o Iftyar Haider R/o H. No. 647, Gali No. 6 Old Mustafabad, Delhi
2. NAIMUDDIN S/o Sirajuddin R/o H. No. 605, Gali No. 6/5 Old Mustafabad, Delhi.
3. MOHD. NADIM S/o Ishtkar R/o H. No. 621, Gali No. 6 Old Mustafabad, Delhi.
01/05/2013 ORDER ON SENTENCE Vide judgment dated 27 th April 2013, all the three accused persons have been convicted for the offence punishable U/s 307/34 IPC.
FIR No. 341/2008 Page 40 of 45Convict Mohd. Nadim has also been convicted for the offence U/s 25/27 Arms Act.
2. I have heard the arguments from Ld. Counsels for convicts and Ld. Chief Public Prosecutor as well as Sh. V.K. Asthana, Adv for complainant and gone through the record.
3. On behalf of convict Mohd. Nadim, Sh. Vineet Lakhani, Ld. LAC has submitted that convict has a younger sister and his father and mother have already expired and there is nobody to look after her and therefore a lenient view may be taken. He is around 25 years old.
4. In respect of convict Naimuddin, Sh. Mahesh Sharma, Adv has submitted that on the date of the commission of alleged offence the convict was around 18 years of age and therefore a lenient view may be taken in the matter of sentencing him. Ld. Counsel submitted that he may be granted probation. He has relied on authorities reported as Ramesh Dass v Raghu Nath & Ors, 2008(2) C.C. Cases (SC) 50 and Afsar & Anr v State of Delhi, Crl. Appeal No. 1192/2011 (DHC).
5. On behalf of convict Mohd. Haider, Sh. I.K. Khare, Adv has submitted that the convict has a clean antecedents, and has no criminal record. He has not misused the liberty of bail and therefore keeping in view his age a lenient view may be taken. The convict is around 23 years old.
6. Ld. Chief Public Prosecutor as well as Sh. V.K. Asthana, Adv for complainant submitted that the injured Sajid has suffered grave injury FIR No. 341/2008 Page 41 of 45 having been shot by country made pistol and has been paralysed. As per the surgical records, the nature of injury has been opined to be "dangerous" and as per MLC, the said injury is stated to be "grievous". The injured has appeared in the court on wheel chair and is unable to walk and even the treating Doctors have said that no further treatment can cure him and injured will suffer life long. Therefore, it has been submitted that the convicts be given maximum punishment.
7. In the matter of Rajiv vs. State of Rajasthan (1996) 2 SCC 175 : 1996 SCC (Cri) 225, it has been observed by the Hon'ble Apex Court that :-
"It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance".
It has been observed by the Hon'ble Apex Court in the matter of Dhananjoy Chatterjee vs. State of West Bengal (1994) 2 SCC 220 : 1994 SCC (Cri) 358 that :
"This Court has observed that a shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminal and in the ultimate, making justice suffer by weakening the system's credibility. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice FIR No. 341/2008 Page 42 of 45 against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the criminal but also rights of the victim."
In authority reported as Ramesh Dass (Supra), it has been held that Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other matters while Probation Act does make such a provision. It has been further held that Sec. 360(1) of Cr.PC itself provides that if for any offence life sentence is provided for, section 360 of the Code would have no application. Therefore, with due respect the said authority is of no help to the contention raised by Ld. Counsel on behalf of convict Naimuddin. With due respect, the authority reported as Afsar & Anr v State of Delhi (Supra) is also not applicable on the facts and circumstances of the present case because in the authority relied by the Ld. Counsel, the injury caused was simple. As such convict Naimuddin is not entitled to the benefit of probation.
In authority reported as Bimal Ram v State of Bihar 1997 CrLJ 2846 (Pat), it has been held that the accused persons even though below 21 years of age on being evicted from the house in execution of FIR No. 341/2008 Page 43 of 45 the decree for eviction with the police help, forcibly entered into the house and committed house trespass and theft. They were not entitled to be released on probation as they took law in their own hand.
8. In the present case, all the three convicts have been held guilty for offences U/s 307/34 IPC and convict Nadim has also been held guilty for offence U/s 25/27 Arms Act and the offence U/s 307 IPC provides as under :-
Attempt to murder - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. ......................................."
9. In the present case, the injured Sajid has sustained dangerous injury as per the surgical report which is also grievous injury as per the MLC. Therefore, in respect of the convicts life imprisonment is attracted and therefore they are not entitled for benefit of probation. Therefore, prayer in this regard is declined.
10. Keeping in view the nature and gravity of offence, the injury caused on the injured Sajid and his present physical condition as well as disability caused to him and the mitigating circumstances in respect of the convicts as stated above the convict Mohd. Nadim who is the main assailant and caused injury by gun-shot with the country made pistol to the injured, is sentenced to undergo rigorous imprisonment for life for offence U/s 307 IPC and to pay fine of Rs. 10,000/- (Rupees ten thousand). In default of payment of fine, he shall further undergo simple FIR No. 341/2008 Page 44 of 45 imprisonment for two months. He is also sentenced to undergo rigorous imprisonment for three years for offence U/s 25/27 Arms Act. All the sentences shall run concurrently.
11. Convict Mohd. Haider and Naimuddin each is separately sentenced to undergo rigorous imprisonment for ten years for offence U/s 307 IPC and to pay fine of Rs. 3,000/- (Rupees three thousand) each. In default of payment of fine to further undergo simple imprisonment for one month.
12. The convicts shall also be entitled to benefit of provision of Sec. 428 Cr.PC. A copy of judgment and order on sentence be supplied to all the convicts free of cost. They be sent to Tihar Jail to suffer the punishment as per law. Case property, if any, be confiscated to State and case file be consigned to Record Room as per rules.
Announced in the open court today i.e 1st May 2013 (T.S. Kashyap) ASJ-01/Spl. Judge (NDPS) Shahdra District Karkardooma Court, Delhi FIR No. 341/2008 Page 45 of 45