Delhi District Court
State vs . 1. Mohd. Naseem S/O Munajir Hussain, ... on 23 July, 2012
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 0I : North East /
KARKARDOOMA COURTS: DELHI.
FIR No. 521/2007
State Vs. 1. Mohd. Naseem s/o Munajir Hussain, r/o D
52/7, Gali No.18, Chauhan Banger, Delhi.
2. Munajir Hussain s/o Tahir Hussain, r/o D
52/7, Gali No.18, Chauhan Banger, Delhi.
3. Feroj @ Bittoo s/o Faiz Khan, r/o A223,
Gali No.7, Chauhan Banger, Delhi.
Police Station Seelampur
Convicted under 323/34 IPC
Section
ORDER ON THE POINT OF SENTENCE
23.07.2012
Pre: Ld. APP for the state.
Convicts are on bail.
Sh. N.S. Raghav, Ld. counsel for convicts.
Ld. APP for State submits that since the offence has been proved against
the convicts persons Mohd. Naseem, Munajir Hussain and Feroj @ Bittoo
under section 323/34 IPC. Ld. APP for the State further submits that they must
be sentenced according to provisions of law to teach a lesson to such
uncivilized persons. On this ground, ld. APP for the State has prayed for
maximum sentence to the convict persons.
State Vs. Mohd. Naseem and others
SC No.43/08 1/3
On other hand, Ld. counsel for convict persons submits that they are
very poor persons and there is no previous criminal antecedents against any of
them. Ld. counsel further submits that are facing trial since 2007 and they
have learnt a lesson that how to live in a civilized society. Ld. counsel for
accused further submits that convicts would not repeat such type of offence in
future and they will live peacefully in the society. Ld. counsel for convicts
further submits that convict Mohd. Naseem have been remained in JC for two
months and six days, Munajir Hussain have been remained in JC for two
months and four days and Feroj @ Bittoo have been remained in JC for one
month and 28 days. Ld. counsel for convicts further submits that convicts
belongs to a poor family and they are having responsibility of their families.
Ld. counsel for convicts has requested for lenient view and requested to release
the convicts for the sentence already undergone.
Arguments heard. After taking into consideration the fact that the
convicts namely Mohd. Naseem have been remained in JC for two months and
six days, Munajir Hussain have been remained in JC for two months and four
days and Feroj @ Bittoo have been remained in JC for one month and 28 days
and convicts are having responsibility of their families. The ends of justice
will meet if convicts Mohd. Naseem, Munajir Hussain and Feroj @ Bittoo are
sentenced to a period of already undergone. Accordingly, convicts namely
Mohd. Naseem, Munajir Hussain and Feroj @ Bittoo are released on period
already undergone.
State Vs. Mohd. Naseem and others
SC No.43/08 2/3
In terms of section 437 A Cr. P.C. convicts Mohd. Naseem, Munajir
Hussain and Feroj @ Bittoo are hereby directed to execute bail bond in sum
of Rs.10,000/ each with one surety in the like amount for the period of six
months. Orders accordingly.
File be consigned to record room.
PRONOUNCED IN THE OPEN COURT
ON THIS 23.07.2012
(RAMESH KUMAR - II) ASJ01/N.E.
KKD COURTS/DELHI.
State Vs. Mohd. Naseem and others
SC No.43/08 3/3
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0798532007
Sessions Case No. 43/2008
Assigned to Sessions. 16.05.2008
Arguments heard on 02.06.2012
Date of judgment 23.07.2012
FIR No. 521/2007
State Vs. 4. Mohd. Naseem s/o Munajir Hussain,
r/o D52/7, Gali No.18, Chauhan
Banger, Delhi.
5. Munajir Hussain s/o Tahir Hussain,
r/o D52/7, Gali No.18, Chauhan
Banger, Delhi.
6. Feroj @ Bittoo s/o Faiz Khan, r/o A
223, Gali No.7, Chauhan Banger,
Delhi.
7. Irfan @ Chainu s/o Mirajuddin, r/o
K227, New Seelampur, Delhi.
8. Afsar s/o Yusuf, r/o A366, Gali
No.6, Chauhan Banger, Delhi.
Police Station Seelampur
Under Section 147/148/149/307/308/34 IPC & 27 Arms
Act.
JUDGEMENT
1. Vide this judgment I shall dispose off the present case in which Station House Officer of Police Station Seelampur had filed a challan vide FIR No. 521/2007 State Vs. Mohd. Naseem and others SC No.43/08 4/3 dated 19.09.2007 u/s 147/148/149/307/308/34 IPC & 27 Arms Act. for the prosecution of accused persons namely Mohd. Naseem, Munajir Hussain, Feroj @ Bittoo, Irfan @ Chainu and Afsar in the court of Ld. Metropolitan Magistrate and Ld. MM after compliance of section 207 Cr. PC committed this case before this court.
2. In brief, facts of the case are that on 19.09.2007 at about 7:30 p.m., a DD No.25A was recorded at police station Seelampur regarding firing at Main Road, Brahampuri, Near Deepali Medical Store, Delhi and same DD was assigned to SI Satender Mohan. On receipt of said DD, SI Satender Mohan along with ASI C.P. Singh and Ct. Sushil reached at the spot i.e. Shop No.67/1, Main Road Brahampuri, Chauhan Banger, Delhi where he had noticed blood lying on the road in front of the aforesaid tea shop and it came into their notice that injured had already been removed to GTB Hospital by PCR Officials, no eyewitness met them there. Thereafter, SI Satender Mohan along with Ct. Sushil reached at GTB Hospital and collected the MLC of injured Mohd. Sakir mark X wherein injured Sakir was declared fit for making statement. SI Satender Mohan had recorded statement of injured Mohd. Sakir Ex.PW1/A, upon which endorsement Ex.PW6/A was made to get the FIR registered at police station through Ct. Sushil. Accordingly, FIR No. 521/07 Ex.PW6/B u/s 307/34 IPC & 27 Arms Act was registered and during the course of investigation, accused persons namely Mohd. Naseem, Munajir Hussain, Feroj @ Bittoo, Irfan @ Chainu and Afsar were arrested.
State Vs. Mohd. Naseem and others SC No.43/08 5/3 CHARGE:
3. On the basis of material available on record, on 03.03.2009 ld. predecessor of this court framed charges against accused persons namely Mohd. Naseem, Munajir Hussain, Feroj @ Bittoo, Irfan @ Chainu and Afsar for the offence punishable u/s 147/148/149/307/308/34 IPC and a separate charges were framed against accused persons namely Feroj @ Bittoo, Irfan @ Chainu and Md. Naseem for the offence punishable u/s 27/54/59 Arms Act to which accused persons did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 13 witnesses namely PW1 Mohd. Shakir, PW2 Shajid Ali, PW3 Badar Abbas, PW4 Ct. Sushil Kumar, PW5 Zahid Ali, PW6 SI Satender Mohan, PW7 ASI Giriraj Singh, PW8 Dr. Ravinder, CMO GTB Hospital, PW9 HC Mahavir Singh, PW10 HC Murari Lal, PW11 Ct. Bittoo Singh, PW12 Dr. Seema and PW13 Dr. Amit Pankaj.
5. PW1 Mohd. Shakir is a material witness being complainant/injured. This witness has deposed that on 19.09.2007 at around 5:15 p.m. he was present along with his brother Sajid and Jahid at their shop, accused Naseem had quarreled with a rickshaw puller and he damaged the rim of rickshaw and when this witness intervene the matter, accused Naseem slapped him and started beating him. This witness has further deposed that accused Bittoo had also come there and he had State Vs. Mohd. Naseem and others SC No.43/08 6/3 also slapped him. Thereafter, accused Naseem left the spot by saying that he will teach him a lesson. Accused Naseem uttered "tu hum se panga leta ha abhi batatey hai". After about half an hour, Munajir, father of accused Naseem came there along with 23 boys and they were having dandas.
6. This witness has further deposed that all the five accused came to their shop and started beating his brother Sajid with the dandas. Thereafter, accused Naseem made a fire upon him which hit on his left arm and same is totally paralyzed and his left arm is to be operated for this injury. Accused Munajir had also fired upon him and the bullet hit again on his left hand. Accused Afsar and Irfan @ Chainu had fired upon his uncle Badle Hasan who was sitting at his shop of property dealing but the fire missed him. This witness has proved his statement Ex.PW1/A and seizure memo Ex.PW1/B of his blood stained baniyan as well as pant.
7. This witness has proved arrest memo Ex.PW1/C and personal search memo Ex.PW1/D of accused Afsar. This witness has also proved arrest memo Ex.PW1/E and personal search memo Ex.PW1/F of accused Irfan @ Chainu.
8. This witness has correctly identified his clothes vide Ex.P1 which he was wearing at the time of incident and clothes of his brother vide Ex.P2.
9. In his cross examination by ld. defence counsel, this witness has deposed that he had not disclosed the names of accused persons present in the court to the police and police officials had obtained his signature on statement but he did not make State Vs. Mohd. Naseem and others SC No.43/08 7/3 any statement to the police officials. This witness admits that he had gone to police station to put his signatures on personal search memos and arrest memos of accused persons. Accused persons were not arrested at his instance or in his presence. This witness further admits that these accused persons had not caused any injury to him.
10.PW2 Shajid Ali is also a material witness being injured. This witness has been declared hostile by Ld. APP for the State. Even in cross examination by Ld. APP for the State, this witness has not supported the case of prosecution at any point. This witness has deposed that in the month of Ramzan in the year 2007 a quarrel had taken place between rickshaw pullers in front of his shop and he tried to intervene the aforesaid quarrel and some unknown persons started grappling (manhandling) with his elder brother Shakir Ali and when he tried to save his aforesaid brother on reaching at spot, he had also received injuries caused by some dandas but this witness could not identify the person who caused injury to him. His statement Ex.PW2/A has been confronted.
11.PW3 Badar Abbas. This witness has also been declared hostile by Ld. APP for the State. Even in cross examination by Ld. APP for the State, this witness has not supported the case of prosecution at any point. This witness has deposed that he had lifted injured Mohd. Shakir with the help of public and got him admitted at GTB Hospital for treatment and he had not seen any assailant at the spot. His statement Ex.PW3/A has been confronted.
State Vs. Mohd. Naseem and others SC No.43/08 8/3
12.PW4 Ct. Sushil Kumar. In his presence SI Satyender had collected MLCs of injured persons and recorded statement of Mohd. Shakir Ex.PW1/A. This witness has got recorded FIR from the police station. This witness has proved seizure memo Ex.PW4/B. In his presence I.O. had taken into possession clothes of injured Shakir vide seizure memo Ex.PW1/B.
13.In his cross examination by ld. defence counsel, this witness had denied the suggestions put by ld. defence counsel.
14.PW5 Zahid Ali, brother of complainant Md. Shakir Ali is also a hostile witness. This witness has also not supported the case of prosecution. His statement Ex.PW5/A has been confronted.
15.PW6 SI Satender Mohan is a material witness being I.O. of the present case. On 19.09.2007, at about 07:30 p.m., copy of DD no. 25A Ex.PW4/A was assigned to him, which was in connection of firing at Main Road, Brahampuri, Near Deepali Medical Store, Delhi. This witness along with ASI C.P. Singh and Ct. Sushil reached at the spot i.e. Shop No. 67/1, Main Road Brahampuri, Chauhan Bangar, Delhi. This witness had noticed blood lying on the road in front of the aforesaid tea shop. On interrogation it came into notice that injured persons had already been removed by PCR officials to GTB Hospital, no eyewitness met him there. ASI C.P. Singh was deputed to guard the scene of crime. This witness along with State Vs. Mohd. Naseem and others SC No.43/08 9/3 Ct. Sushil reached at GTB Hospital and collected the MLC of injured Mohd. Sakir Mark X, who had been declared fit to make statement on the MLC then this witness had recorded statement of injured Mohd. Sakir Ex.PW1/A and injured had disclosed incident and named four persons namely Naseem, Munazir, Bittu and one other associate. This witness had made endorsement Ex.PW6/A and sent rukka from GTB Hospital through Ct. Sushil for registration of FIR for offence under Sections 307/34 IPC at about 09:00 p.m. to Police Station. This witness had recorded supplementary statement of injured Sakir Ali in the GTB Hospital, therein he disclosed name of one more assailant namely Afsar, supplementary statement is Mark Y. This witness had got scene of crime photographed through Ct. Mahavir Singh. This witness had proved photographs Mark Z1 to Z10 which are depicting the scene of crime.
16.During the course of investigation, this witness had lifted blood as sample, concrete having blood stains and concrete as sample from the spot which were seized vide seizure memo Ex.PW4/B, after preparing three parcels and sealing them with the seal of S.M. It came into his notice that brother of complainant namely Sajid Ali had also sustained injury in this incident. This witness had collected MLC mark 'P' of injured namely Sajid Ali. Thereafter, this witness had recorded his statement under Section 161 Cr.P.C. This witness had taken into possession clothes of injured Mohd. Sakir having blood stains vide seizure memo already Ex.PW1/B, after converting into one parcel and sealing with the seal of S.M. This witness had recorded the statement of two eyewitnesses namely Badar Abbas and Jahid.
State Vs. Mohd. Naseem and others SC No.43/08 10/3
17.During the course of investigation, on 20.09.2007, this witness along with other police officials reached at the spot and prepared site plan Ex.PW6/C on the pointing out of injured Sajid Ali who had met him there and recorded supplementary statement of Sajid Ali there.
18.During the course of investigation, on 25.09.2007, this witness had arrested accused Mohd. Naseem, Munazir Hussain and Feroj Khan @ Bitto at about 05:00 p.m. from Brahampuri, Pulia Chauhan Bangar, Delhi in the presence of Ct. Bittoo, Ct. Hemender and Ct. Dharmender vide arrest memo Ex.PW6/D1 to D3 and Personal Search Memo Ex.PW6/E1 to E3. This witness had interrogated aforesaid accused persons, they made disclosure statements which Ex.PW6/F1 to F3. No recovery was effected in pursuance of disclosure statements despite efforts made by him. This witness had correctly identified above said three accused persons present in the court.
19.During the course of investigation, on 16.10.2007, injured Sajid Ali came at Police Station and produced his three clothes having blood stains which were seized vide seizure memo Ex.PW6/G after converting into one parcel and sealing with the seal of S.M., and this witness had recorded supplementary statement of injured Sajid Ali to this effect. On the same day accused Irfan @ Chainu and Afsar (correctly identified) were arrested at about 07:00 p.m. from the place near the gate of Police Station Seelampur vide arrest memo already Ex.PW1/C and E and Personal Search Memo Ex.PW1/D and F respectively. Both the aforesaid State Vs. Mohd. Naseem and others SC No.43/08 11/3 accused persons made disclosure statements Ex.PW6/H and Ex.PW6/I. Complainant came at the place of arrest and identified both the accused before him as assailants. Nothing was recovered at the instance of both the accused persons in pursuance of disclosure statements despite best efforts made by him. Thereafter, this witness had reached at Police Station and put the accused persons into lockup, narrated the facts to SHO, deposited one sealed parcel to MHC(M) and I recorded the statement of Ct. Hemender and Bittu Singh.
20.During the course of investigation, this witness had obtained nature of injury on the MLCs of injured persons. Nature of injury has been opined as grievous on the MLC of injured Mohd. Sakir.
21.On 21.11.2007, sealed parcel of this case containing exhibits were sent to CFSL, Calcutta for analysis through Ct. Bittu Singh along with relevant documents. This witness recorded the statements of Ct. Bittu Singh and MHC(M) to this effect. This witness had prepared chargesheets against accused persons for offences u/s 147/148/149/307/308/34 IPC and Section 27 of Arms Act.
22.This witness had correctly identified clothes of injured Mohd. Sakir and clothes of injured Sajid Ali vide EX.P1 and P2 respectively. FSL result is awaited till now.
23.In his cross examination by ld. defence counsel, this witness has deposed that accused Munajir did not fire and incident has been completed in three phases with the intervals of 1 ½ to 02 hours. First incident took place at 05:30 p.m. and second State Vs. Mohd. Naseem and others SC No.43/08 12/3 at, at about 06:30 p.m. and third at 07:20 p.m. Only one accused was involved in the incident of 05:30 p.m., three accused were involved in the incident of 06:30 p.m. and all five assailants were involved in the incident of 07:20 p.m. This witness has further deposed that he had not obtained signature of injured Sajid Ali on site plan when it was prepared.
24.PW7 ASI Giriraj Singh. This is a formal witness being duty officer. This witness has proved copy of FIR Ex.PW6/B.
25.In his cross examination by ld. defence counsel, this witness admits that there is overwriting/correction after putting flued in the index of diaries of the FIR and he cannot say by whom overwriting was done in the index.
26.PW8 Dr. Ravinder, CMO GTB Hospital. This witness has proved MLC of injured Mohd. Shakir vide Ex.PW8/A and MLC of injured Sajid Ali vide Ex.PW8/B on behalf of Dr. Ranjan, Jr. Resident.
27.In his cross examination by ld. defence counsel, this witness admits that he is not able to read the facts at encircled portion X on MLC Ex.PW8/A. This witness admits that nature of injury was not opined by Dr. Ramanjeet in his presence on MLC Ex.PW8/A.
28.PW9 HC Mahavir Singh. This witness had taken nine photographs of scene of State Vs. Mohd. Naseem and others SC No.43/08 13/3 crime from different angles at the request of SI Satyender Mohan. This witness has proved the same photographs vide Ex.PW9/A1 to A9 and negatives Ex.PW9/B1 to B9 which are depicting the scene of crime.
29.PW10 HC Murari Lal is a formal witness being MHC(M). This witness has deposed that on 19.09.2007, SI Satender Mohan had deposited four sealed parcels containing the exhibits of the present case in the malkhana of police station Seelampur and he had taken custody of aforesaid parcels etc. and had made entries to this effect at serial No. 4311 in register No.19 Ex.PW10/A.
30.This witness has further deposed that on 16.10.2007, SI Satender Mohan again had deposited one sealed parcel containing the exhibit of the present case in the malkhana and he had taken custody of aforesaid parcels etc. and had made entries to this effect at serial No. 4340 in register No.19 vide Ex.PW10/B.
31.This witness has further deposed that on 21.11.2007 he had sent aforesaid five sealed parcels to FSL for analysis through Ct. Bittoo on the request of IO vide RC No.141/21 Ex.PW10/C. This witness had also made endorsement Ex.PW10/D in register number 19 to this effect.
32.This witness has further deposed that on 02.08.2008, expert opinion in sealed envelope was received in the malkhana by him on being produced by Ct. Ramesh and he had handed over the expert opinion to IO and he had kept the sealed parcels of this case in the malkhana and he had made endorsement to this effect at Register State Vs. Mohd. Naseem and others SC No.43/08 14/3 No.19 vide Ex.PW10/E.
33.PW11 Ct. Bittoo Singh. This is the witness of arrest of accused persons. In his presence on 25.09.2007 accused persons namely Naseem, Munazir Hussain and Feroj Khan were arrested on the pointing out of secret informer vide arrest memo Ex.PW6/D1, Ex.PW6/D2 and Ex.PW6/D3 respectively and their personal search was conducted vide personal search memo Ex.PW6/E1, Ex. PW6/E2 and Ex.PW6/E3 respectively. This witness has proved their disclosure statement vide Ex.PW6/F1, PW6/F2 and PW6/F3.
34.In his presence on 16.10.2007 accused persons namely Irfan and Afsar were arrested on the pointing out of PW Shakir Ali vide arrest memo Ex.PW1/E and PW1/C and their personal search was conducted vide personal search memo Ex.PW1/f and Ex.PW1/D respectively. This witness has also proved disclosure statement of accused Irfan vide Ex.PW6/H and accused Afsar vide Ex.PW6/I.
35.This witness on 21.11.2007 had taken the sealed parcels of present case containing exhibits along with forwarding letter and road certificate No.141/21 to FSL, Calcutta for analysis from the custody of MHC(M) on the direction of I.O. and deposited the same in intact condition on 23.11.2007 at FSL, Calcutta.
36.PW12 Dr. Seema. This witness has opined nature of injury as simple on the MLC of injured Sajid Ali vide Ex.PW8/B after going through the injuries mentioned in State Vs. Mohd. Naseem and others SC No.43/08 15/3 MLC and treatment sheet. This witness has proved endorsement to this effect vide Ex.PW12/A.
37.In her cross examination by ld. defence counsel, this witness has deposed that injury No.1 as mentioned in the aforesaid MLC may be sustained by a person by falling down on a hard surface.
38.PW13 Dr. Amit Pankaj. This witness has proved endorsement regarding nature of injury encircled portion Ex.PW13/A on MLC of Ex.PW8/A on behalf of Dr. Ramanjeet. This witness has deposed that on 19.09.2007, nature of injury on the person of injured/patient was opined as grievous after going through the XRay report No.7841.
39.In his cross examination by ld. defence counsel, this witness has deposed that injuries i.e. entry would and exit wound, mentioned at encircled portion DA in the MLC Ex.PW8/A refer to gun shot injury. This witness has further deposed that he cannot make any comment on the question that whether the injuries are old one. STATEMENT OF ACCUSED U/S 313 CR. P.C.:
40.After prosecution witness. statement of all the accused persons u/s 313 Cr. P.C. were recorded wherein accused persons denied all circumstances, allegations and evidence put to them and they claimed to be innocent and have been implicated falsely due to political rivalry in the local area. Accused persons had not preferred State Vs. Mohd. Naseem and others SC No.43/08 16/3 any D.E.
41.Thereafter, case was fixed for arguments.
ARGUMENTS:
42.Ld. APP for the State has argued that there is charge against accused persons for offence punishable u/s 147/148/307/308/34 IPC and incident had happened in three phases.
43.Ld. APP for the State further argued that PWs Shakir and Sajid are injured persons.
44.Ld. APP for the State further argued that except PW1 Shakir Ali, no PWs have supported the prosecution on point of identification. All the accused persons had been identified by PW1. Hence, Ld. APP for the State has prayed to convict the accused persons under the section for which they have been charged.
45.On other hand Ld. counsel for accused persons has argued that as per DD No.25A dated 19.09.2007 Ex.PW4/A assailants was one and there is no PCR call in pursuance of complaint.
46.Ld. counsel for accused persons further argued that no lead, cartridges were recovered from the spot.
State Vs. Mohd. Naseem and others SC No.43/08 17/3
47.Ld. counsel for accused persons further argued that PW Shakir and his brother Sajid were taken to GTB Hospital at different time as per their MLC. Complainant and injured are not known to each other. No TIP has been conducted.
48.Ld. counsel for accused persons further argued that medical evidence and oral evidence, both are contradictory.
49.Ld. counsel for accused persons further argued that if accused were not known to PW1 why TIP had not conducted.
50.Ld. counsel for accused persons further argued that PW1 had stated clear names and residences of all the accused persons. 3 ½ PWs did not support the case of prosecution and one scooter had not been traced by I.O.
51.Ld. counsel for accused persons further argued that all the witnesses who have seen the incident and sustained injuries have not supported the story of police. PW2 Sajid Ali who is injured in the incident, PW3 Badar Abbas, uncle of injured, PW5 Zahid Ali, brother of injured have categorically stated before the court that accused present in court were not the assailants. Even PW1 has stated in cross examination that the persons present in court were not the assailants but in his chief examination, their names were disclosed on the asking of police as he was tutored by the police outside the court and asked him to give the names on his direction but on the next day of hearing, the statement recorded, he stated before State Vs. Mohd. Naseem and others SC No.43/08 18/3 the court that none of the accused was present or involved in the incident. Even in the statement recorded by the police, the name of Afsar & Chainu does not appear but the police arrested them without having their names and put them in the TIP proceedings which clearly goes to show as to how the police was adamant to implicate the innocent persons.
52.Ld. counsel for accused persons further argued that prosecution has totally failed to seize the twowheeler scooter in question which hit against the rickshaw puller which became the cause of alleged quarrel. As per prosecution version, accused Naseem was driving the Scooter, even the no. of Scooter is not traced out.
53.Ld. counsel for accused persons further argued that if there was a firing took place at the place of occurrence at the hands of 45 persons but the I.O. as well as the witnesses failed to recover any cartridge cases, bullet, lead or weapon from the spot as well as at the instance of accused if they participated in the incident. The defence version seems to be probable, they have been implicated by the police at the hands of their stooges.
54.Ld. counsel for accused persons further argued that prosecution has also failed to seize any kind of weapon involved in the alleged incident, which clearly goes to show the high ending of local police to implicate innocent persons on the asking of their stooges.
55.Ld. counsel for accused persons further argued that the Doctor who has given the State Vs. Mohd. Naseem and others SC No.43/08 19/3 opinion of injured Shakir has not been examined as well as the doctor who has given the opinion of the injury also been not examined but the doctor who has been examined as PW8 has deposed that he cannot identify even the endorsement on the MLC's made as well as the doctor signature who has opined the injury on the MLC.
56.Ld. counsel for accused persons further argued that no previous criminal history of accused Munajir and Naseem. Other accused persons have been involved in criminal cases.
57.Ld. counsel for accused persons in support of his arguments has relied upon the following citations :
1. 2011 (4) JCC 2932 Delhi, Dr. Jhaman Lal Vs State,
2. 2011 (2) CC Cases Delhi 35, State Vs. Prem Sagar and others,
3. 2011 (1) JCC 41 (SC), Subhash Vs. State of Haryana,
4. 1996 (3) CC Cases 109 Delhi, Arun Kumar Vs. State,
5. 1980 Crl. L.J. 1298, Purshottam and Another Vs. State of M.P.,
6. 2002 JCC 1281 (SC), Dhananjay Shankar Shetty Vs State of Maharashtra,
7. 1997 (2) Recent CR 471, Gurnam Singh Vs. State of Punjab,
8. 2010 (4) JCC 3040 (SC), Sunil Kumar, Shambhu Dayal and Others Vs. State of Maharashtra,
9. 2010 (3) CC Cases (SC) 10, M.C. Ali & another Vs. State of Kerala, 10.2012 (1) JCC 482 Delhi, Ashok Narang Vs. State, 11.2010(3) CC Cases Delhi 85, Bhagat Singh Vs. State, State Vs. Mohd. Naseem and others SC No.43/08 20/3 12.1995 (2) CC Cases 60 (SC) Eshwrajah & another Vs. State of Karnataka, 13.42 (1990) DLT1, Surinder Kumar & Others Vs. State, 14.2011 (2) CC Cases Delhi 198, State Vs. Raje Ram & Others, 15.2011 (1) CC Cases (HC) 44, Mohan Lal Vs. U.T. Administration (Chandigarh).
58.On these grounds, ld. counsel for accused persons prayed for acquittal of all the accused persons from the charges.
PERUSAL OF RECORD:
59.Argument heard. Record perused. On perusal of record it is revealed that on 19.09.2007 at about 7:30 p.m., a DD No.25A Ex.PW4/A was recorded at police station Seelampur regarding firing at Main Road, Brahampuri, Near Deepali Medical Store, Delhi and same DD was assigned to SI Satender Mohan. On receipt of said DD, SI Satender Mohan along with ASI C.P. Singh and Ct. Sushil reached at the spot i.e. Shop No.67/1, Main Road Brahampuri, Chauhan Banger, Delhi where he had noticed blood lying on the road in front of the aforesaid tea shop and it came into their notice that injured had already been removed to GTB Hospital by PCR Officials, no eyewitness met them there.
60.On perusal of record, it is further revealed that SI Satender Mohan along with Ct. Sushil reached at GTB Hospital and collected the MLC of injured Mohd. Sakir mark X wherein injured Sakir was declared fit for making statement. SI Satender State Vs. Mohd. Naseem and others SC No.43/08 21/3 Mohan had recorded statement of injured Mohd. Sakir Ex.PW1/A, upon which endorsement Ex.PW6/A was made to get the FIR registered at police station through Ct. Sushil. Accordingly, FIR No. 521/07 Ex.PW6/B u/s 307/34 IPC & 27 Arms Act was registered and during the course of investigation, accused persons namely Mohd. Naseem, Munajir Hussain, Feroj @ Bittoo, Irfan @ Chainu and Afsar were arrested.
61.On perusal of record, it is further revealed that during the course of investigation, I.O. had lifted blood as sample, concrete having blood stains and concrete as sample from the spot which were seized vide seizure memo Ex.PW4/B, after preparing three parcels and sealing them with the seal of S.M. I.O. had also taken into possession clothes of injured Mohd. Sakir having blood stains vide seizure memo already Ex.PW1/B, after converting into one parcel and sealing with the seal of S.M.
62.On perusal of record, it is further revealed that I.O. witness had proved photographs Mark Z1 to Z10 which are depicting the scene of crime.
63.On perusal of record, it is further revealed that on 20.09.2007, I.O. along with other police officials reached at the spot and prepared site plan Ex.PW6/C on the pointing out of injured Sajid Ali.
64.On perusal of record, it is further revealed that during the course of investigation, on 16.10.2007, injured Sajid Ali came at Police Station and produced his three State Vs. Mohd. Naseem and others SC No.43/08 22/3 clothes having blood stains which were seized by the I.O. vide seizure memo Ex.PW6/G after converting into one parcel and sealing with the seal of S.M.
65.On perusal of record, it is further revealed that on 25.09.2007 accused persons namely Naseem, Munazir Hussain and Feroj Khan were arrested on the pointing out of secret informer vide arrest memo Ex.PW6/D1, Ex.PW6/D2 and Ex.PW6/D3 respectively and their personal search was conducted vide personal search memo Ex.PW6/E1, Ex. PW6/E2 and Ex.PW6/E3 respectively and their disclosure statement vide Ex.PW6/F1, PW6/F2 and PW6/F3 respectively were recorded.
66.On perusal of record, it is further revealed that on 16.10.2007 accused persons namely Irfan and Afsar were arrested on the pointing out of PW Shakir Ali vide arrest memo Ex.PW1/E and PW1/C and their personal search was conducted vide personal search memo Ex.PW1/F and Ex.PW1/D respectively and disclosure statement of accused Irfan vide Ex.PW6/H and accused Afsar vide Ex.PW6/I were recorded.
67.On further perusal of record it is revealed that doctor opined nature of injury upon the MLC of injured Mohd. Shakir as 'grievous' and upon the MLC of injured Sajid ali as 'simple'.
68.On perusal of record, it is further revealed that PW1 injured Mohd. Shakir who had sustained injuries had correctly identified all the accused persons as culprits. State Vs. Mohd. Naseem and others SC No.43/08 23/3 However, it is clear that there was a quarrel between injured Mohd. Shakir, Sajid Ali and accused persons and in that quarrel injured had sustained injuries. Since MLC Ex.PW8/B of injured PW injured Sajid Ali suggests the nature of injury as 'simple' but MLC Ex.PW8/A of PW injured Mohd. Shakir suggests the nature of injury as 'grievous'.
69.On perusal of record, it is revealed that weapon of offence i.e. has not been recovered from the accused persons.
70.Before reaching at any conclusion, relevant sections i.e. 147/148/149/307/308/323/34 IPC are being reproduced which are as under : Section 147 IPC.
Punishment for rioting.
Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 148 IPC.
Rioting, armed with deadly weapon.
Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Section 149 IPC.
Every member of unlawful assembly guilty of offence committed in prosecution of common object.
If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is State Vs. Mohd. Naseem and others SC No.43/08 24/3 guilty of that offence.
Section 307 IPC.
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.
Ingredients of offence. The essential ingredients of the offence under sec. 307 are as follows :
(1) The accused did some act.
(2) Such act was done with intention or knowledge that hurt was likely to be caused to the victim by the act.
Section 308 IPC.
Attempt to commit culpable homicide.
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 culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Section 323 IPC : "Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
Sec.34 IPC "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
71.It is the fundamental principle of criminal law that in case of conviction of accused persons the prosecution is required to prove the guilt of accused beyond State Vs. Mohd. Naseem and others SC No.43/08 25/3 reasonable doubt. Hon'ble Supreme Court on this point has observed in a case titled as 'Vijayee Singh Vs State of UP AIR 1990 SC 1459' that:
"'Reasonable doubt' is one which occurs to a prudent and reasonable man The 'reasonable doubt' is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words 'proof', disproved' and 'not proved' lays down the standard of proof, namely about the existence or nonexistence of the circumstances from the point of view of a prudent man. The section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, 'believe it to exist' and secondly in which, though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the court believes that it does not exist or considers its nonexistence so probable in the view of a prudent man the fact is not proved, i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'."
72.From the testimony of injured Shakir Ali it reveals that quarrel completed in three phases. In one phase the quarrel had taken place between accused Naseem and complainant and accused Feroj @ Bittoo had also slapped complainant, in second phase after about half an hour, father of accused Mohd. Naseem, accused Munajir Hussain along with 23 boys came there and they were having dandas in their State Vs. Mohd. Naseem and others SC No.43/08 26/3 hands on one part and complainant and his brother on other part, came at the shop of complainant and started beating to Sajid Ali, brother of complainant with dandas, in third phase, according to the complainant accused persons namely Mohd. Naseem and Munajir Hussain had fired upon him and bullet hit his left hand. Afasr and Irfan @ Chainu were also present with the accused and both of them had fired upon his uncle Badle Hassan.
73.From the perusal of complaint in which complainant/injured Shakir had alleged that at about 7:20 p.m. accused persons namely Mohd. Naseem, Munajir Hussain, Feroj @ Bittoo and one other boy had come at his shop and started to say " saale tu hum se pange lata hai, tujhey maja chakhate hai". Complainant further states that all the four accused ran away by causing air fire.
74.From the contents of complaint and testimony of the complainant, it is established that there is difference in the statement of complainant/injured. In his complaint, complainant had named only three accused persons while stated to the police that he can identify fourth coaccused if he produced before him whereas in his testimony in the court he had identified all the five accused persons. It is pertinent to mention here that complainant had not mentioned about the involvement of fifth person in his statement to the police. He had completed his statement by saying that he can identify fourth person if he shown to him. It is further pertinent to mention here that no TIP has been conducted regarding accused Afsar and Chhainu. If we go through the statement of complainant, it is clear that three persons were involved in the incident in respect of fourth and fifth person no TIP State Vs. Mohd. Naseem and others SC No.43/08 27/3 has been conducted hence it cannot be presumed that accused Afsar and Chainu were involved in the present case. Moreover, only three accused persons namely Mohd. Naseem, Munajir Hussain, Feroj @ Bittoo who were common in the statement to the police and his statement in the court. Moreover, Badle Hassan, uncle of injured has not been examined and PW Badar Abbas who has been examined as PW3 has also been declared hostile by ld. APP for the State. Even in his cross examination by ld. APP this witness did not support to the case of prosecution.
75.For the purpose of unlawful assembly in terms of section 141 IPC, it is necessary that for unlawful assembly must consists at least of five persons and common object of assembly must be one or more of the objects specified in this section.
76.The first essential to constitute unlawful assembly is that - it should be consisting of five or more persons.
77.Further, from perusal of record, it is also revealed that no recovery either of danda or any weapon has been effected either from the possession of accused or at their instance. However, from the perusal of MLC it reveals that injured had sustained gun shot injury. Since injury on the person of injured Mohd. Shakir is grievous in nature and simple injury to injured Sajid Ali in nature.
78.Now the sole question arises as to whether the injuries inflicted by the accused persons were caused with the intention or knowledge to attempt to commit State Vs. Mohd. Naseem and others SC No.43/08 28/3 culpable homicide.
79.Theme of section 307 IPC is that injury must have been caused with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder.
80.Since the present case has been registered on the statement of injured Mohd. Shakir Ali Ex.PW1/A and further the facts of the present case disclosed that injury sustained to him by gun shot injury by the accused persons.
81.Hon'ble Supreme Court in case 'State Vs Saleem (2005) 5 SCC 554' wherein it has held that :
"Intention to kill or knowledge that death will be caused is a question of fact and would depend on facts of each case."
82.Hon'ble Supreme Court in case "Om Prakash V State of Punjab AIR 1961 SC 1782 wherein it has held that :
"An offence under sec. 307 is committed when the accused has the requisite intention to commit murder and does an act towards his commission in pursuance of the intention."
83.Hon'ble High Court of Orissa in case "Kumar Majhi 1981 Cr. LJ 1787 (Ori) wherein it has held that :
"To constitute an offence under section 307 the intention or knowledge must be such as is necessary to constitute State Vs. Mohd. Naseem and others SC No.43/08 29/3 murder. Without this there can be no offence under section 307 IPC."
84.Into the facts of present case, it is proved that quarrel had taken place between the injured/complainant - Mohd. Shakir Ali, his brother, Sajid Ali and accused persons namely Mohd. Naseem, Munajir Hussain, Feroj @ Bittoo and at later stage, complainant had disclosed the name of accused Afsar and Irfan @ Chainu for which no TIP was conducted which is not correct as per law. Since nature of injury are grievous and simple in nature and same are not on vital part with requisite intention and knowledge.
85.Since the injured/victim Mohd. Shakir Ali had sustained grievous injuries in his left arm as per MLC and sustained no others injury on the vital part of his body. It is clear from the act of accused persons namely Mohd. Naseem, Munajir Hussain, Feroj @ Bittoo had acted without intention to cause death of complainant. If they had any such intention they would had caused multiple injury on his vital part of body and effects parts are not a vital parts of body.
86.Section 307 requires that the act must be done with such intention or knowledge, or done under such circumstances that if death be caused by that act the offence of murder will emerge.
87.Hon'ble Supreme Court in case "Hari v Sukhbir AIR 1988 SC 2127" wherein it has held that :
"To constitute an offence under the section, it has to be seen State Vs. Mohd. Naseem and others SC No.43/08 30/3 whether the act, irrespective of the result, was done with the intention or knowledge and under circumstances as mentioned therein. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established there can be no offence under the section. Since the intention precedes the Act, such intention has to be gathered from all circumstances."
88.It is not necessary that nature of the injury suffered by a victim may always be true test to determine the offence committed by accused persons.
89.On perusal of record, it is revealed that accused persons namely Mohd. Naseem, Munajir Hussain, Feroj @ Bittoo had caused grievous injury upon the person of complainant/injured but no where facts of intention to cause death could come on record. It is further revealed that injury are not on any vital parts of the body.
90.Since complainant had stated name of three accused persons namely Mohd. Naseem, Munajir Hussain, Feroj @ Bittoo and before the court he had identified all the accused persons namely Mohd. Naseem, Munajir Hussain, Feroj @ Bittoo, Afsar and Irfan @ Chainu. After considering the entire facts and circumstances of this case, this court comes to the conclusion that only accused namely Mohd. Naseem, Munajir Hussain, Feroj @ Bittoo had been involved in the incident of quarrel and name of accused Afsar and Irfan @ Chainu had been added at later stage. Hence, provision of section 147/148/149 IPC does not attracted. Accordingly, all the accused persons namely Mohd. Naseem, Munajir Hussain, Feroj @ Bittoo, Afsar and Irfan @ Chainu are acquitted from the charges under State Vs. Mohd. Naseem and others SC No.43/08 31/3 section 147/148/149 IPC.
91.Since the fact of quarrel between accused persons namely Mohd. Naseem, Munajir Hussain, Feroj @ Bittoo and complainant had been proved and no recovery had been effected at the instance of either accused and injury had not been caused on any vital part of complainant, hence, this court comes to the conclusion that prosecution has been failed to prove its case against accused persons namely Mohd. Naseem, Munajir Hussain, Feroj @ Bittoo, Afsar and Irfan @ Chainu beyond reasonable doubt from charges under section 307/308/34 IPC & 27/54 Arms Act. However, fact of quarrel has been proved by the prosecution against the accused persons namely Naseem, Munajir, Feroj @ Bittoo and as name of accused persons namely Afsar and Irfan @ Chainu had been added at later stage and there is no evidence against both these accused persons by which it may be presumed that both these accused had also been involved in the present case. Moreover, testimony of PW1 injured Shakir Ali is not reliable against accused persons namely Afsar and Irfan @ Chainu. Considering the facts and circumstances of the present case, this court acquits accused persons namely Afsar and Irfan @ Chainu from the charges u/s 307/308/34 IPC & 27/54 Arms Act. Hence, at this stage, this court altered the charges against accused persons namely Mohd. Naseem, Munajir Hussain, Feroj @ Bittoo from section 307/34 IPC to section 323/34 IPC. Accordingly, accused persons namely Mohd. Naseem, Munajir Hussain, Feroj @ Bittoo, held guilty for offence u/s 323/34 IPC.
92.In terms of section 437 A Cr. P.C. and directions of Hon'ble High Court of Delhi, State Vs. Mohd. Naseem and others SC No.43/08 32/3 accused Afsar and Irfan @ Chainu are directed to execute bail bond in sum of Rs.10,000/ with one surety in the like amount for the period of six months. PRONOUNED IN THE OPEN COURT ON THIS 23.07.2012.
(RAMESH KUMARII) ASJ01/ NORTH - EAST KARKARDOOMA COURTS, DELHI.
State Vs. Mohd. Naseem and others SC No.43/08 33/3 State Vs. Mohd. Naseem and others SC No.43/08 34/3