Delhi District Court
State vs . Mohd Iqbal Gazi Etc. on 31 July, 2013
IN THE COURT OF SH. DHARMENDER RANA: MM, NORTHEAST
DISTRICT, KKD COURTS, DELHI
State Vs. Mohd Iqbal Gazi etc.
FIR No. : 344/11
U/S : 452/336/506/34 IPC & 27 Arms Act
PS : Seelampur
J U D G M E N T
(a) Sl. No. of the case : 1185/12
(b) Date of commission of offence : 03.09.2011
(c) Date of institution of the case : 08.11.2012
(d) Name of the complainant : Rizwan s/o Mirazuddin
(e) Name & address of the accused : (1) Jamal @ Ranjha s/o Mohd Iqbal Ghazi r/o
H.NO. K288 New Seelampur, Delhi
(2) Mohd Umar @ Pau s/o Mohd Iqbal Ghazi
r/o H.NO. K288 New Seelampur, Delhi.
(3) Mohd Iqbal Ghazi s/o Sh. Mohd Aslub
r/o H.NO. K288 New Seelampur, Delhi.
(f) Offence complained off : 452/336/506/34 IPC & 27 Arms Act
(g) Plea of the accused : Pleaded not guilty.
(h) Date of argument : 31.07.2013
(i) Final order : Acquitted
(j) Date of Judgment : 31.07.2013
BRIEF STATEMENT OF REASONS FOR DECISION:
(1) Briefly stated: Complainant Rizwan is reported to be a final year student of
Bachelor of Arts. On 03.09.2011 at about 12.30, in the mid night, complainant Rizwan heard the sound of pounding on the main gate of his home. When he came down stairs he observed that his paternal uncle (tau) namely Iqbal Gazi alongwith his son Umar @ Pau and Jamal @ FIR no. 344/10 Page 1/6 Ranjha have barged in to the first floor of their house. Accused Umar @ Pau and Jamal @ Ranjha were wielding guns and were exhorting the complainant to come down. The complainant raised an alarm whereupon the assailants went to the street and continued abusing the complainant. Meanwhile, accused Umar @ Pau and Jamal @ Ranjha fired gun shots in the air and thereafter left the spot threatening to exterminate the complainant and his family. Complainant Rizwan thereafter moved his hand written complaint EX PW 1/A, narrating the entire incident, to the concerned SHO PS Seelampur requesting to initiate appropriate action. Consequently FIR No. 344/11 was registered in the instant matter and investigations were assigned to IO SI Manoj Kumar.
(2) Upon completion of the investigation challan was filed and accused were summoned. The copies were supplied to the accused and a formal charge for the offence u/S 336 IPC & section 27 Arms Act was framed on 06.12.2012 against accused Mohd Umar @ Pau and Jamal @ Ranjha and a separate formal charge for offence u/s 452/506/34 IPC was framed against accused Mohd Iqbal Gazi, Umar @ Pau and Jamal @ Ranjha . The accused have denied the allegations leveled against them and claimed trial. (3) In order to substantiate the allegations, two witnesses have been examined on behalf of prosecution.
(4) PW1Rizwan is the complainant who has deposed that:
" I am student of M.A. On 03.09.2011 at about 12 mid night I was sleeping at my house. I heard a noise of gun shot firing. I woke up and called on 100 number. Police came at my house and present FIR has been lodged. On next morning used cartridges were found and the same was handed over to the police. I do not know anything else about this case.
At this stage, learned APP seeks permission to cross examine the witness as he is resiling from his earlier statement. Heard. Allowed.
XXXX by learned APP.
I have made complaint to the police. The same is EX PW 1/A which FIR no. 344/10 Page 2/6 bears my signature at point A. It is correct that on 03.09.2011 at about 12.30 a.m. in the midnight I heard the sound of pounding upon my door. It is also correct that I also heard somebody using abusive language. It is wrong to suggest that when I came downstairs I observed my uncle Iqbal Gaji alongwith his son Umar @ Pau and Jamal @ Ranjha, who are residents of K Block, inside my house. It is wrong to suggest that accused Umar @ Pau and Jamal @ Ranjha were wielding pistols in their hands. I have heard abuses but I am not sure that the aforesaid accused persons were the culprits. It is wrong to suggest that upon my alarm the aforesaid three persons fled from the spot. It is wrong to suggest that accused Umar @ Pau and Jamal @ Ranjhan had fired gun shot. It is wrong to suggest that accused persons had threatened to kill me. It is correct that I came downstairs and found empty cartridges which I gave to the police. Vol. The empty cartridges inside the house were given to the police on the same day and the empty cartridges found in the street were given on the next day in the morning to the police. It is wrong to suggest that the accused persons had also fired gun shots at B Block upon my cousin Haroon. It is correct that complaint EX PW 1/A is in my own handwriting. It is also correct that the sketch of the cartridges EX PW 1/B was prepared by the IO at my instance and the same bears my signature at point A. I recognize my uncle Iqbal Gaji and his sons Umar @ Pau and Jamal @ Ranjha. I identify them in the docket. It is wrong to suggest that I am deposing falsely out of fear of the accused persons. Witness is confronted with the statement EX PW 1/A."
The complainant has refused to identify the accused as perpetrator of the offence. Despite elaborate cross examination by learned APP nothing material could be elicited out.
(5) PW 2 Mohd Harun is another eye witness who has deposed that :
"I do not remember the exact date. At this stage the witness submits that he does not remember the details however he claims that at the time of recording of statement he has furnished the correct details and particulars therefore he seeks permission of the court to refresh his memory by Learned Defence counsel fairly concedes to the same.
In view of the same as per section 159 of Indian Evidence Act, the witness is permitted to refresh his memory by going through his statement recorded u/s 161 Cr.P.C.
The witness has gone through his statement u/s 161 Cr.P.C.FIR no. 344/10 Page 3/6
It was about 1.00 a.m in the morning on 03.09.2011. I was in a street near my home. I was talking on telephone with one of my friend. All of a sudden, three persons came there. Those three persons started firing gun shots. I was too terrified and I rushed back to my home and those three persons also vanished from the spot. I made a PCR call at 100 number. I narrated the entire incident to the police. I handed over the empty cartridges/gun shells to the police. The same was seized by the police vide seizure memo EX PW 2/A bearing my signature at point A. Sketch of empty cartridge was prepared by the police. The same is EX PW 2/B bearing my signature at point A. I can identify the persons who fired the gun shots. The persons who fired gun shots are not present in the court.
Court Observation: The witness has not even bothered to have a look around in the court room and straight away he states that the above mentioned assailants are not present in the court. It appears that the witness is trying to conceal truth.
Court Question : Sir, Can you kindly tell us that even without looking at anyone, how can you rule out the possibility of the presence of the assailants in the court room ?
Ans When I entered the court room for my testimony I had observed everyone in the court room.
At this stage, learned APP seeks permission of the court to cross examine the witness as he is resiling from his earlier version. Heard. Allowed.
XXXXX by learned APP.
I had narrated the entire incident to the police on the date of the incident itself. Accused Iqbal Gazi, Umar @ Pau and Jamal @ Ranjha are known to me. They are residents of K Block and I am residing in B Block. It is wrong to suggest that I had named the accused persons namely Iqbal Gazi, Umar @ Pau and Jamal @ Ranjha to be coming from the side of K Block. Vol. I simply told them that they were three persons coming from the side of K Block. It is wrong to suggest that I had stated to the police that upon observing me accused persons started abusing me. Confronted with the statement marked as Mark 'X'. It is wrong to suggest that accused persons had threatened me that they had already taught a lesson to the family of Rizwan and now it is my turn. Confronted with the statement marked as Mark 'X'. It is wrong to suggest that the accused persons fired gun shots upon me. Vol. Three unknown persons fired gun shots in air. It is wrong to suggest that accused persons had threatened me that next time they shall pump in all the bullets in my body. Vol. I had no conversation FIR no. 344/10 Page 4/6 with the persons who fired gun shots. It is wrong to suggest that the accused persons left the spot threatening me. Confronted with the statement marked as Mark 'X'.
It is wrong to suggest that due to fear of the accused persons I am deposing falsely."
He has refused to identify the accused as perpetrator of the offence. Despite elaborate cross examination by learned APP nothing material could be elicited out. (6) PE was closed by the order of the court dated 31.07.2013 and statement of accused were recorded U/s. 313 Cr.P.C. wherein they have denied the allegations leveled against them intoto and have pleaded innocence. Accused have opted not to lead defence Evidence.
(7) I have heard the rival submissions and carefully perused the record. (8) The identity of the accused is the most crucial aspect of any criminal trial. The victim namely Rizwan (PW 1) and other material witness namely Mohd Harun (PW 2) examined on behalf of the prosecution in the instant case have refused to identify the accused as perpetrator of the offence. Once the star witnesses have absolved the accused of guilt the entire prosecution version crumbles and nothing survives. Therefore, I do not have any hesitation in holding that accused deserve to be acquitted for offence under section 452/336/506/34 IPC & 27 Arms Act (9) It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court : "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to FIR no. 344/10 Page 5/6 be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
(10) In view of the above, I am of the opinion that the prosecution has miserably failed to prove its case. Accused persons are accordingly acquitted for the charges u/S 452/336/506/34 IPC & 27 Arms Act leveled against them. Announced in the open court on 31.07.2013 (DHARMENDER RANA) MM01, N/E, KKD COURTS 31.07.2013 FIR no. 344/10 Page 6/6