Delhi District Court
State vs Shahjad @ Amir @ Raja on 23 May, 2019
IN THE COURT OF SH. VIDYA PRAKASH:
ADDITIONAL SESSIONS JUDGE (NORTH EAST):
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Sessions Case No. 138/2016
CNR No. DLNE01-003196-2016
STATE Versus SHAHJAD @ AMIR @ RAJA
S/o Sh. Ayub
R/o 319, Gali No. 3,
Old Mustafabad, Delhi.
FIR No. : 264/2016
PS. : Bhajan Pura
U/s. : 307/34 IPC & 27 Arms Act
Chargesheet Filed On : 19.06.2016
Date Of Allocation : 19.08.2016
Judgment Reserved On : 20.05.2019
Judgment Announced On : 23.05.2019
JUDGMENT:
1. On 21.03.2016 at about 5:45 am, an information was received at PS Bhajanpura, Delhi that "one boy was shot in Noor-e-Ilahi, Yamuna Vihar and he was being taken to GTB hospital by B-89 IC". The said information was recorded vide DD No. 8B dt. 21.03.2016 and was conveyed telephonically to SI Prem Pal (PW-14) for necessary steps. Accordingly, SI Prem Pal alongwith HC Raj Kumar (PW-8) reached at the spot, where they came to know that injured had already been removed to GTB hospital by the PCR van. From there, they reached at GTB hospital, where SI Prem Pal collected MLC No. A-1059/16 (Ex.PW3/A) of Amzad S/o Jafar on which "patient brought to casualty at around 6:00 am with A/H/O firearm injury, u/o fit for statement" were mentioned. After making enquiries from injured Amjad, SI Prem Pal recorded his statement SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 1 of 19 (Ex.PW1/A) in which he claimed that on 20.03.2016, his friend Appu telephoned him and told him to come to his house on that night and that he will compromise his matter with Raja @ Shahjad @ Amir i.e. accused herein. He further alleged that on the intervening night of 20/21.03.2016 at about 12:00 midnight, he had gone to the shop of Appu situated at Kabutar Market, Welcome, where he alongwith Appu, Monu, Raja @ Shahjad and one friend of Raja @ Shahjad celebrated a party. At about 4:30 am, he told accused Raja @ Shahjad to drop him at his (Amjad) house. He also alleged that at about 5:00 am, accused Raja @ Shahjad alongwith his friend had gone to house to drop him, on his Pulsar motorcycle. When they reached at gali, one more boy was already standing in the gali who was also friend of accused Raja @ Shahjad. He further alleged that accused Raja @ Shahjad and his both the associates took him inside a house, where one of the friends of Raja @ Shahjad, hit some pointed object on his back, due to which blood started coming out and all those three persons started abusing him. He also alleged that both the associates of Raja @ Shahjad caught hold of him and accused Raja @ Shahjad shot at on his abdomen with a pistol, due to which he fell down and accused Raja @ Shahjad and his both the associates fled away from there on his motorcycle. He further alleged that he came out in the gali and raised an alarm for help and one person made 100 number call to the police from his (Amjad) mobile phone and police took him to GTB hospital, where he was provided treatment.
2. On the basis of aforesaid statement, SI Prem Pal prepared rukka, after reaching at the spot and got the present case registered u/s. 307/34 IPC & SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 2 of 19 Sec. 27 Arms Act through HC Raj Kumar.
3. After registration of the case, the investigation was taken up. During investigation, accused Shahjad was arrested. Result on MLC of victim was collected. After completing the investigation, chargesheet was filed against the accused u/s. 307/34 IPC & 27 Arms Act.
4. After compliance of provisions of Sec. 207 CrPC, case was committed to the Court of Sessions as the offence under Sec. 307 IPC was exclusively triable by it.
5. In pursuance to the order dated 30.08.2016 passed by my learned Predecessor, charge under Section 307/34 IPC & Sec. 27 Arms Act was framed against the accused, to which he pleaded not guilty and claimed trial.
6. Prosecution examined as many as 14 witnesses to prove the charge against the accused during trial.
7. Statement u/s. 313 CrPC of the accused was recorded on 20.05.2019, wherein his defence is of general denial. Accused pleaded his innocence. However, he did not prefer to lead evidence in his defence.
8. It is now the stage for noting the prosecution evidence. COMPLAINANT/MATERIAL/PUBLIC WITNESS(ES)
9. PW-1 Amjad @ Faizal @ Fazzu is complainant. He deposed that on the day of incident, he was returning back to his house after getting his mobile phone recharged from the shop of his friend. When he reached in front of his gali, SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 3 of 19 about three persons came from behind and caused injury on his back with some knife like object and gun shot. He became unconscious. He further deposed that he could not see the persons who had fired at him and had stabbed him. He could not see their faces as they had attacked him from behind. He also deposed that accused Shahjad @ Raja was not amongst the persons who had attacked him.
10. This witness was cross-examined by learned Addl. PP for the State in which, he stated that 1 ½ year prior to 21.03.2016, accused Shahjad @ Raja had asked him to arrange a room for him to live for 2-3 days and he had handed over keys of the room of his friend Annu to him. He admitted that accused did not vacate the said flat and police had apprehended him from the flat of Annu; that due to that reason, there was a quarrel between Annu and her husband and their relations were affected so he (PW-1) asked accused Shahjad @ Raja to ask the husband of Annu that there was no fault on the part of Annu but accused had refused to talk with the husband of Annu and on this issue, a quarrel took place between him (PW-1) and the accused. He also admitted that 4-5 days prior to 21.03.2016, he had called accused Shahjad @ Raja and abuses had exchanges between them; that on 20.03.2016, his another friend Appu asked him that he would compromise the matter between him and Raja; that in the intervening night of 20/21.03.2016, he reached at the shop of Appu in Kabutar Market, Welcome where he, Appu, Monu and accused Raja had organized a party; that at about 04.30 AM on 21.03.2016, he had asked accused Raja to drop him (PW-1) at his house and at about 05.00 AM, he alongwith his one friend took him (PW-1) on his SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 4 of 19 pulsar motorcycle to drop at his house; that when accused Shehjad @ Raja reached his house to drop him, one known person of Shehjad was standing there. PW-1 however denied the suggestions that accused Shehjad and his associates took him to a house, where one of his friends stabbed a pointed object in his back due to which blood was oozing out and accused Shehjad @ Raja put a pistol on his stomach or fired while his other associates had caught hold of him. This witness was confronted with portion A-A of his statement Ex.PW1/A in this regard. He also denied the suggestion that after firing at him, accused Shahjad and his associates had escaped from there on motorcycle. This witness was confronted with portion B-B of his statement Ex.PW1/A in this regard.
11. He admitted that after sustaining injury, he came out in the gali and raised alarm and one person called the police at 100 through his mobile phone and police van took him to GTB Hospital where he obtained treatment. However, he denied the suggestions that he had stated in his police statement that accused Raja @ Shehjad alongwith his two associates had fired at him or stabbed with a pointed object to kill him or that action be taken against them. He was confronted with portion C-C of statement Ex.PW1/A in this regard. He also denied that he was deposing falsely that accused Shahjad did not fire at him with intention to kill him, with his associates as he was won over by him or that he had signed his statement (Ex.PW1/A) after it was written on his dictation or read over to him or that he had identified accused Shahjad @ Raja in Karkardooma Court as the person who had fired at him with his associate Monu and one another SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 5 of 19 person. He was confronted with statement Ex.PW1/B in this regard.
12. He also denied the suggestions that he had stated before IO that he had visited Karkardooma Courts on 21.04.2016 to meet his counsel or that he had met with IO on that day in the concerned court where accused was being produced or that he had made statement before the IO that said accused, whose name was told to him as Shahjad @ Amir @ Raja S/o Ayub R/o 319, Gali No.3, Old Mustafabad, who was being produced in the court, was the same person who alongwith his associates, had fired at him in the incident in question. He was confronted with statement u/s. 161 CrPC Ex.PW1/B from portion A to A-1 in this regard. Further he denied the suggestion that he had stated to the IO that on 21.03.2016, when accused Raja had fired upon him then one person by the name of Monu who was alongwith Raja at the shop of Pappu, was already standing there on 21.03.2016 or that he was intentionally not disclosing the actual and true facts before the court as he was won over by the accused or that it was only the accused who had fired upon him and no one else. This witness was confronted with statement u/s. 161 CrPC Ex.PW1/B from portion B to B-1 in this regard.
13. This witness however correctly identified the case property i.e. his shirt as Ex.PW1/Article-1 and baniyan as Ex. PW1/Article-2 during trial.
14. In his cross-examination on behalf of the accused, he stated that the assailants were not known to him and also that he could not see their faces while causing the incident against him and that when the incident in question was committed against him, accused Shahjad @ Raja had already left away after SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 6 of 19 dropping him at the gali of his house and that accused Shahjad @ Raja was not carrying any kind of weapon whatsoever with him at the time when he had gone to drop him at his house on his Pulsar motorcycle.
15. PW-5 Naseem @ Appu is common friend of complainant/PW-1 Amjad as well as of the accused. He deposed that there was a money dispute between Shahjad and Amjad and that on 20.03.2016, he called the accused at his shop for compromise and at about 12:00 midnight, Amjad, Monu, accused Shahjad and one of his friend came to his shop and at about 4:30 am, accused Shahjad alongwith his friend took Amjad on his motorcycle to drop Amjad at his house in Noor-e-Ilahi. He also deposed that on 21.03.2016 at about 8:30 am, his friend Shakir informed him through telephone that accused Shahjad alongwith Monu and his another friend fired bullet to Amjad. In his cross-examination on behalf of the accused, he admitted that no incident happened in his presence and that the accused and complainant settled their disputes in his shop and that they had left his shop peacefully.
INVESTIGATION WITNESS(ES)
16. PW-14 SI Prem Pal Singh is IO of the present case. He deposed that on 21.03.2016, on receipt of copy of DD No. 8B that "one boy was shot in Noor-e-Ilahir, Yamuna Vihar and he was being taken to GTB hospital by B-89 IC", he alongwith HC Raj Kumar (PW-8) reached at Noor-e-Ilahir near Yamuna Vihar, Delhi where, he came to know that injured had been taken to GTB hospital by the PCR concerned. Thereafter, he alongwith HC Raj Kumar went to GTB hospital where he collected MLC No. A-1059/16 of injured Amjad S/o Sh. Jafar. After SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 7 of 19 confirming from the doctor that injured was fit for statement, he recorded statement (Ex.PW1/A) of injured Amjad. After that, he again reached at the spot alongwith HC Raj Kumar, where he prepared rukka Ex.PW14/A and handed over the same to HC Raj Kumar for registration of FIR u/s. 307/34 IPC & 27 Arms Act.
17. The photographs (Ex.PW12/A-1 to A-11) of the spot were shown to the witness who correctly identified the same.
18. PW-14 SI Prem Pal Singh further deposed that he had prepared rough site plan (Ex.PW14/B) of the place of incident. At the spot, I/C Crime Team had handed over one sealed parcel containing an empty cartridge case which he had seized vide seizure memo Ex.PW8/A. After that, he alongwith HC Raj Kumar went to GTB hospital, where Duty Constable handed over to him five sealed pullandas sealed with seal of MLC alongwith one sample seal. He took them into possession alongwith sample seal, vide seizure memo Ex.PW8/B.
19. On the same day at about 4:00 pm, he alongwith HC Lokender (PW-11) and Ct. Rahul (PW-7) left PS in search of the accused and reached in Gali No. 3, Mustafabad, Delhi alongwith one secret informer, where on the pointing out of the secret informer, he apprehended accused Shahjad. After interrogation, he formally arrested him, vide arrest memo Ex.PW7/A. He had also conducted his personal search, vide memo Ex.PW7/B. He had also recorded disclosure statement (Ex.PW7/C) of the accused. Thereafter, accused got recovered motorcycle bearing no. DL-6SAF-6795 which he seized, vide memo Ex.PW7/E
20. On the next day i.e. 22.03.2016, he alongwith Ct. Rahul (PW-7) SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 8 of 19 again joined investigation of this case. Accused Shahjad led them to the spot and pointed out the place of incident, vide pointing out memo Ex.PW7/D.
21. He further deposed that he had deposited the MLC of victim for opinion and subsequently, he had collected the said opinion from the concerned hospital. He had also collected PCR form and certificate u/s. 65-B of Indian Evidence Act from CPCR during investigation.
22. PW-14 SI Prem Pal Singh has identified the motorcycle no. DL- 6SAF-6795 in photographs Ex.PW14/A-1 to A-3 during trial. He has also identified empty cartridge case as Ex.PW14/Article-1.
23. In his cross-examination on behalf of the accused, PW-14 SI Prem Pal Singh stated that the place of incident was not exactly mentioned in DD No. 8B dt. 21.03.2016 (Ex.PW14/DA). The site plan (Ex.PW14/B) was prepared by him on his own observations as complainant was not present with him at the spot at that time. He also deposed that no other police official had signed on the said site plan and no public person met them when they had initially gone to the spot on receipt of DD No.8B. No public person met at the spot even when he had reached there from GTB hospital. He admitted that there were residential houses situated near the spot. He had made enquiry from 3-4 nearby residents of the locality during investigation but none of them claimed themselves to be eyewitness of the incident in question. He did not record their statements as none agreed to give statement before the police. He also deposed that during inspection of the place of incident, he did not come across any particular place where the fired cartridge would have hit and no fired cartridge was found at or SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 9 of 19 near the spot. He also admitted that empty cartridge case similar to the cartridge case Ex.PW14/Article-1 is easily available. However, he denied the suggestion that no such empty cartridge case Ex.PW14/Article-1 was seized from the spot or that same was falsely planted by him in connivance with complainant in order to create false evidence in this case.
24. He further deposed that they were in official uniform at the time when they had visited the house of accused on 21.03.2016 and several residents had collected in the gali on seeing the police officials. Wife of accused was requested to join the proceedings but she refused. No written notice was served either upon those residents or upon wife of accused to join the proceedings and no legal action was taken against either of them for not joining the proceedings due to paucity of time. He also deposed that the main door of the house of accused was facing towards South direction. He denied the suggestion that accused was not apprehended or arrested in the manner as stated by him during chief examination.
25. He stated that no blood was found lying on the spot and that is why, there was no occasion to lift the same and he himself had not seen the contents of relevant pullandas as it was already sealed with the seal of MLC of GTB hospital at the time of its handing over to him by Duty Constable. There was no CCTV camera found installed at or near the spot. He denied the suggestion that there was CCTV camera installed at the spot or that he deliberately did not seize the CCTV footage of the relevant time and date when incident is claimed to have taken place, as it was clearly showing that no such incident had taken place or SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 10 of 19 that he did not conduct the investigation in fair or proper manner or that he had wrongly arrested the accused in the case.
26. PW-7 is Ct. Rahul. He deposed about arrest of the accused and conducting of his personal search by PW-14 SI Prem Pal Singh in his presence. He proved arrest memo (Ex.PW7/A), personal search memo (Ex.PW7/B) and disclosure statement (Ex.PW7/C) of the accused as well as pointing out memo (Ex.PW7/D) and seizure memo (Ex.PW7/E) of the recovered motorcycle. He also correctly identified the accused during trial. In his cross-examination on behalf of accused, he denied suggestion that accused was not arrested in his presence or that IO had obtained his signature on the documents in the PS or that they concocted a false story to solve a blind case.
27. PW-8 is HC Raj Kumar. He deposed on the same lines as deposed by PW-14 SI Prem Pal Singh regarding seizure of empty cartridge case at the spot and seizure of sealed parcel in GTB hospital.
28. PW-11 is ASI Lokender Singh. He also deposed on the same lines as deposed by PW-7 Ct. Rahul regarding arrest and personal search of the accused by PW-14 SI Prem Pal Singh in his presence. He also proved arrest memo (Ex.PW7/A), personal search memo (Ex.PW7/B) and disclosure statement (Ex.PW7/C) of the accused as well as pointing out memo (Ex.PW7/D) and seizure memo (Ex.PW7/E) of the recovered motorcycle. He also correctly identified the accused during trial. This witness was not cross-examined by the accused. l
29. PW-13 SI Mukesh Chauhan is I/C Mobile Crime Team, North-East SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 11 of 19 District. He deposed that on 21.03.2016 at about 5:45 am, he alongwith Ct. Sanjay (PW-12) and SI Ravinder had gone to the spot i.e. C-112/17, Gali No. 18, North Ghonda, Bhajanpura, Delhi, where he carried out inspection of the spot at the instance of PW-14 SI Prem Pal Singh. He had prepared Scene of Crime Report (Ex.PW13/A) and had handed over the same to PW-14 SI Prem Pal Singh. In his cross-examination on behalf of the accused, he deposed that they had reached the spot at about 6:20 am in govt. vehicle i.e. mini bus; there were about 20-25 public persons found present outside the aforesaid house; no public person was found present inside the said house; they had finally left the spot at about 7:30 am. He denied suggestions that he did not visit the spot on the aforesaid date or time or that he did not carry out any inspection of the place of incident or that no empty cartridge was found lying at the spot as claimed by him or that he had prepared his report Ex.PW13/A while sitting in his office itself at the instance of IO of this case.
30. PW-12 HC Sanjay Kumar is photographer in Mobile Crime Team North-East District, Delhi. He deposed that on 21.03.2016, he alongwith other members of team had accompanied Incharge Crime Team namely SI Mukesh Chauhan (PW-13) to the spot, where he had taken 11 photographs of the scene of crime from different angles from the official digital camera and later on, he prepared the photographs (Ex.PW12/A1 to Ex.PW12/A11) and handed over the same to SI Mukesh Chauhan (PW-13). He also proved certificate (Ex.PW12/B) under section 65-B of Indian Evidence Act with regard to said photographs. This witness was not cross-examined by the accused.
SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 12 of 19 FORMAL WITNESS(ES)
31. PW-2 W/HC Deval is Duty Officer in the present case. He deposed that on 21.03.2011 at about 8:20 am, on receipt of rukka from SI Prempal Singh through HC Raj Kumar (PW-8), he had made an endorsement (Ex.PW2/A) on the rukka. He also got the FIR registered through computer operator, copy of which is Ex.PW2/B. Learned defence counsel preferred not to cross-examine this witness despite grant of opportunity.
32. PW-6 ASI Mohar Pal Singh is Incharge of PCR Van i.e. Baker 59. He deposed that on 21.03.2016 at about 5:35 am, when he alongwith Ct. Manoj had reached near Noor-e-Ilahi, Gali No.16, they found a boy in injured condition having bullet injury. He took the said injured to GTB hospital and got him admitted there. In his cross-examination by defence counsel, he denied the suggestion that injured did not inform him about the name of assailants.
33. PW-9 is ASI Babu Ram is MHC(M) of PS Bhajanpura. He deposed that on 21.03.2016, he had received five sealed parcel and one sample seal, handed over to him by SI Prem Pal Singh (PW-13) for being deposited in malkhana and had made entry in register no.19 at serial no. 2380/16 in this regard. On the next day i.e. 22.03.2016, he had received one motorcycle bearing registration no. DL-6SAF-6795 make Pulsar of silver colour, handed over to him by SI Prem Pal Singh (PW-13) and made entry in register no.19 at serial no. 2381/16 in this regard. He proved copies of relevant entries thereof as Ex.PW9/A. On 09.09.2016, he had sent aforesaid parcels and sample seal to FSL, Rohini for analysis vide RC No. 173/21/16 through Ct. Santosh Kumar and SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 13 of 19 proved copy of said RC as Ex.PW9/B. Ct. Santosh Kumar handed over original receipt, copy of which is Ex.PW9/C to ASI Babu Ram (PW-9). He also made entry in register no. 19 at point A in Ex.PW9/A regarding sending of exhibits to FSL, Rohini. He also deposed that on 04.05.2017, he had received FSL result and made entry in register no. 19 in this regard at point B in Ex.PW9/A. In his cross-examination on behalf of the accused, he admitted that there is an overwriting at point AX and BX on Ex.PW9/B and there is no date mentioned under the signature of Santosh and Ex.PW9/B does not bear his signature. He denied suggestions that the aforesaid entries were manipulated or were recorded subsequently at the instance of the IO or that no sealed parcels were dispatched through Ct. Santosh or that his signatures were taken subsequently on Ex.PW9/B or that the aforesaid entries in register no. 19 and 21 were ante dated and ante timed at the instance of the IO or that no sealed parcels were deposited by SI Prem Pal on the dates deposed by him or that the exhibits were tampered with.
34. PW-10 SI Harish Chander Pathak is Nodal Officer in CPCR, PHQ, New Delhi. He deposed that on 21.03.2016 at about 5:34:11 hours, one 100 number call was received by Ct. Suksham from mobile no. 9968346353 regarding which PCR form (Ex.PW10/A) was filled up by Ct. Suksham at channel no. 147. He had issued certificate u/s. 65-B Indian Evidence Act on 16.06.2016 regarding filling up the aforesaid PCR form. He proved the official copy (Ex.PW10/B) of the aforesaid PCR form and another copy (Ex.PW10/C) of the same lying on record. This witness was not cross-examined by the accused. SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 14 of 19 MEDICAL WITNESSES
35. PW-3 Dr. Arvind Kumar Gautam is Casualty Medical Officer, GTB Hospital, Delhi. He deposed that on 21.03.2016 at about 6:00 am, patient Amzad was brought to the Casualty by ASI Mohar Pal Singh with alleged history of firearm injury. He had medically examined the said patient and prepared his MLC No. A-1059/16, which is Ex.PW3/A. Learned defence counsel preferred not to cross-examine this witness despite grant of opportunity.
36. PW-4 Dr. Shwetabh Pradhan is Senior Resident (Surgery), GTB Hospital, Delhi. He deposed that on 16.06.2016, he had given opinion as simple on MLC Ex.PW3/A and made endorsement (Ex.PW4/A) on the MLC. Learned defence counsel preferred not to cross-examine this witness despite grant of opportunity.
37. At this juncture, it may be noted that accused made statement on 04.05.2019 that he was not disputing ballistic result dated 27.02.2017, factum of deposit of relevant exhibits in FSL, Rohini by Ct. Santosh, factum of recording of DD No. 8B dated 21.03.2016 by Ct. Om Prakash, factum of handing over of sealed pulanda containing clothes of victim by Duty HC Virendra of GTB Hospital to SI Prem Pal Singh and CDRs as well as certificates under Section 65B of Indian Evidence Act in respect of SIM connection nos. 9968346353, 9910516977 and 9953191876 collected by IO SI Niranjan Kumar during investigation and he has no objection in case aforesaid documents are read in evidence without being formally proved by the relevant witnesses during trial. In view of said statement made by accused, CDRs and certificates under Section 65B Indian Evidence Act SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 15 of 19 with regard to aforesaid SIM connection numbers and ballistic result dated 27.02.2017 were exhibited as Ex.PX1 to Ex.PX4 respectively. STATEMENT OF ACCUSED
38. All the incriminating circumstances were put to the accused in his statement recorded under Sec. 313 CrPC. Accused denied the prosecution case in toto and pleaded his innocence. Accused pleaded that he had been falsely implicated in this case and that he had nothing to do with the commission of alleged offence.
SUBMISSIONS OF THE PARTIES
39. I have already heard Ms. Sushma Badhwar, learned Addl. PP for the State and LAC Sh. Lalit Yadav, Advocate for the accused. I have also perused the record.
40. Learned Addl. PP for the State referred to the testimonies of prosecution witnesses examined during trial and submitted that in view of their testimonies, prosecution has been successful in establishing the charges leveled against the accused beyond reasonable doubt. She also referred to MLC (Ex.PW3/A) of victim Amjad @ Faizal and the testimonies of PW-3 Dr. Arvind Kumar Gautam and that of PW-4 Dr. Shwetabh Pradhan, in order to bring home her point that victim Amjad @ Faizal (PW-1) had sustained bullet injury on the given date, time and place. She also contended that PW-1 has supported the case of prosecution to the extent that incident of causing gunshot injury to him, had taken place on the SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 16 of 19 given date, time and place but he did not identify accused herein during trial as he was either won over by accused or he was under some kind of duress. She, therefore, urged that the accused should be convicted in this case.
41. Per contra, legal aid counsel for the accused vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt. He pointed out that PW-1 Amjad @ Faizal has failed to support the case of prosecution during trial and there is no cogent evidence to connect present accused with commission of alleged offences. He, therefore, contended that the accused deserves to be acquitted in this case.
42. As already noted above, the present accused was put to trial for the charges that he in furtherance of his common intention with his associates Jaspal @ Monu and Shajid (not arrested), had attempted to commit murder of Amjad @ Faizal by giving gunshot injury in his abdomen and had used firearm in contravention of Section 5 of Arms Act. In order to prove said charges, the prosecution examined Amjad @ Faizal as PW-1 during trial. According to the prosecution story, the accused had given gunshot injury to him and he being the only star witness/alleged eyewitness examined by prosecution during trial. However, the said witness has not supported the prosecution story on the point of identity of present accused being amongst the assailants during trial. His testimony has already been discussed in detail hereinabove. During trial, he categorically deposed that accused Shahjad @ Raja was not amongst the assailants who had attacked him during the incident in question. Despite the fact that he was declared hostile and was cross-examined at length on behalf of State and all the relevant suggestions on the lines of prosecution SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 17 of 19 story were put to him and he having been confronted with relevant portions of his previous statements Ex.PW1/A and Ex.PW1/B made before the police, nothing material favorable to the case prosecution, could be elicited from him. He denied the relevant portions at points A to A1 and B to B1 of his previous police statements Ex.PW1/A and Ex.PW1/B. Rather, he deposed during his cross-examination on behalf of accused that the assailants were not known to him and also that he could not see their faces while causing the incident in question against him and also that accused Shahjad @ Raja had already left away after dropping him at the gali of his house. Not only this, he also deposed that accused was not even carrying any kind of weapon with him at the time when he had gone to drop him to his house on his Pulsar motorcycle.
43. It is quite evident from the aforesaid discussion that PW-1 demolished the entire prosecution story during trial by claiming that accused Shahjad @ Raja was not amongst the offenders. He was the only star witness examined by the prosecution during trial, who could have proved the case of prosecution by deposing on the lines of prosecution story. Having not so done, the entire case of prosecution has fallen down like a pack of cards. The testimony of PW-5 Naseem @ Appu is essentially based upon hearsay as he deposed to have been informed telephonically by his friend Shakir that accused Shahjad @ Raja alongwith his associates had fired at Amjad and admitted during his cross-examination that no incident occurred in his presence. It is relevant to note that Shakir who allegedly informed PW-5 about the incident, was neither joined during investigation nor he has been examined as a prosecution witness during trial. In other words, there is no iota of evidence available on record to connect present accused with incident in question. There is no SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 18 of 19 reliable or cogent evidence available on record which may prove or suggest that it was present accused who had caused gunshot injury on the abdomen of victim or that he had actually used any firearm while committing the alleged crime.
44. In the light of aforesaid discussion, court is of the considered opinion that the prosecution has failed to bring home the guilt of accused beyond reasonable doubt. Therefore, the accused namely Shahjad @ Raja is hereby acquitted of the charges framed against him in this case.
45. Accused is required to furnish bail bonds as per Sec. 437-A CrPC. At request of the accused, bonds already furnished by him, are accepted for a period of six months for the purposes of Sec. 437-A CrPC. The accused is directed to appear before learned Appellate Court as and when any notice of appeal, if any, preferred against this judgment, is received by him.
46. File be consigned to Record Room.
Announced in open court
on 23rd day of May, 2019
VIDYA Digitally signed by VIDYA
PRAKASH
Location: Karkardooma Court
PRAKASH Date: 2019.05.23 15:43:00
+0530
(VIDYA PRAKASH)
Addl. Sessions Judge (North East) /
Karkardooma Courts / Delhi.
SC No. 138/2016 State Vs. Shahjad @ Raja @ Amir Page 19 of 19