Full Judgment Text
$~7 & 8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Judgment reserved on pronounced on : 15 November, 2018
th
Judgment pronounced on 20 November, 2018
+ CRL. A. 272/2018
SHAMIM AHMED ....... Appellant
Versus
STATE OF NCT OF DELHI .....Respondent
+ CRL.LP. 318/2018
STATE ..... Petitioner
versus
SHAMIM AHMED & ANR. ..... Respondents
Appearance :
Mr. Ravi Nayak, APP for the State with Inspector Raj Kumar, Police
Station-Welcome.
Mr. Riaz Mohd., Advocate for the appellant (in Crl. A. No.
272/2018)/respondent No. 1 (in Crl. LP 318/2018)
Mr. Vishal Raj Sehijpal and Mr. Purushendra Bhardwaj, Advocates
for respondent No. 2 in Crl. LP No. 318/2018.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J.
1. Vide this common order, we shall dispose of the Crl. Appeal No.
272/2018 and Criminal Leave Petition No. 318/2018 arising out of the
CRL. A. 272/2018 AND CRL. LP 318/2018 Page 1 of 13
judgment/order dated 16.01.2018 passed by the District and Sessions
Judge, North East District, Karkardooma Courts, Delhi wherein the
accused Nos. 1 & 2 were acquitted of the offences punishable under
section 307/34 of the Indian Penal Code, 1860 (hereinafter referred to
as 'IPC' ) and accused No. 1 was convicted for the offence punishable
under Section 25 of the Arms Act and sentenced to undergo Rigorous
Imprisonment for a period of one year with fine of Rs.1,000/-.
2. The brief facts of the case, as distinguished by the learned Trial Court
are reproduced as under:-
“The facts of the prosecution case are that on
31.08.2009 at about 6am in Gali No. 5, Kabir
Nagar, Delhi, accused Shamim Ahmed along with
accused Mohd. Aftab and Babu Hotel Wala fired a
gun shot at Mohd. Sanaulah and victim Mohd.
Sanaulah suffered gun shot injury on his back the
accused ran away from spot, somebody called 100
number and DD No. 5A was recorded about one
person had fired gun shot at Kabir Nagar, PCR
reached the spot and injured was taken to hospital
by PCR where his statement was recorded. The
injured Mohd. Sanaulah in his statement stated
that he was a teacher in Dr. Jakir Hussain senior
secondary school, Jafarabad. About an year ago
prior to 31.08.2009 he was working as Imam in
Madina Masjid situated in Kabir Nagar, Delhi. He
stated that Shamim Ahmed, Mohd Aftab and Babu
Hotelwala who used to run a hotel opposite
Madina Masjid started making completely
unfounded allegations against him and threatened
him that they would kill him if he saw in Kabir
Nagar. After that he then joined Dr. Jakir Hussain
senior secondary school Jafarabad as a theology
teacher. On 31.08.2009 at about 6am when he was
returning from house of Hafiz Asrat at Kabir
CRL. A. 272/2018 AND CRL. LP 318/2018 Page 2 of 13
Nagar and he was moving towards his house. His
house was situated in Gali No. 5 and as soon as he
reached there the accused Shamim, Md. Aftab and
Babu Hotelwala were standing in the Gali. When
he reached the spot accused Aftab uttered
“Shamim nikal katta aur maar sale ko. Aaj iska
kaam tamam ker de” and asked Shamim to take out
katta and kill him. The accused Shamim took out
firearm Katta from his right side dub and then
Babu Hotelwala uttered “ jaldi kar dekhta kya hai
maar goli” he then ran towards his house in Gali,
accused Shamim fired shot from Katta he was
aiming at his back with the intention to kill him, the
bullet hit him on his back and he fell down on the
ground. He raised hue and cry and all the three
accused ran away. He further stated all the
accused were known to him. On the basis of his
statement case FIR No.187/2009 under section
307/34 IPC, P.S. Welcome, Delhi was registered.
Both the accused Shamim and Aftab were arrested
in the evening on 31.08.2008 however the third
accused Babu hotelwala could not be traced. On
the disclosure of accused Shamim Ahmed one
country made pistol was recovered and one live
cartridge and one fire cartridge was recovered
from his house. That after completion of
investigation a chargesheet u/s 173 Cr.P.C was
prepared and was filed on 14.08.2012 in the court
of Metropolitan Magistrate who after completing
all the formalities committed the case to the court
of sessions for trial. On 10.09.2012 charges were
framed against both the accused persons Shamim
Ahmed and Md. Aftab for the offence punishable
u/s 307/34 IPC and against accused Shamim
Ahmed u/s 25/27 Arms Act also. The accused
persons did not plead guilty and claimed trial for
the offences charged against them.”
CRL. A. 272/2018 AND CRL. LP 318/2018 Page 3 of 13
3. To bring home the guilt of the accused persons, the prosecution
examined 11 witnesses in all. The statements of both the accused
persons were recorded under Section 313 of the Code of Criminal
Procedure wherein they denied all the incriminating evidence against
them and reiterated their innocence and examined 3 witnesses in their
defence.
4. After scrutinizing the evidence adduced by the prosecution, the
learned Trial Court concluded that the prosecution had miserably
failed to prove the charges under Section 307/34 IPC against both the
accused persons and thereby acquitted them of the same but found the
accused No. 1 guilty for the offence punishable under Section 25 of
the Arms Act.
5. Mr. Nayak, learned APP appearing on behalf of the State contended
that the learned Trial Court has failed to analyse the ocular testimony
of the victim, who stated that accused persons had been threatening to
kill him and on 31.08.2009 executed their plan by firing a shot from
the Katta which hit him on his back which stood corroborated from the
medical evidence as he was admitted to the hospital with alleged
history of a gunshot injury and there was an entry wound of 0.5x0.5
cm in size and also the FSL report which opined that the human blood
was detected from the Kurta and Baniyan (Ex.P1). He further
contended that the entire evidence on record supported by the
documentary evidence clearly brings home the guilt of the accused
persons for the offences punishable under Section 307/34 IPC.
Learned counsel added that the accused persons after firing managed
to escape from the spot and on arrest of accused Nos. 1 and 2, accused
CRL. A. 272/2018 AND CRL. LP 318/2018 Page 4 of 13
No. 1 got recovered the weapon of offence and has also been
convicted under Section 25 of the Arms Act.
6. Per contra, Mr. Riaz Mohd., learned counsel appearing on behalf of
the accused No. 1/ Shamim Ahmed at the outset contended that the
learned Trial Court while acquitting both the accused persons under
Section 307 read with Section 34 IPC has held that the prosecution has
failed to establish its case as the evidence produced by the prosecution
was neither qualitative nor credible and the entire story of the
prosecution deserved to be rejected. Learned counsel further
contended that the recovery of the country made pistol from the
accused no.1 was planted and could not have been relied upon, more
so, when there was no material on record to connect the injury
suffered by the victim from the recovered alleged weapon of offence.
He further contended that the Medical as well as Forensic Science
Report had nullified the entire case of the prosecution and the
conviction and sentence awarded to accused no.1 under Section 25 of
Arms Act was liable to be set aside.
7. Mr. Sehijpal, learned counsel appearing on behalf of the accused No.
2/ Mohd. Aftab supporting the impugned judgment/order rendered by
the Trial Court contended that the learned Trial Court after
scrutinizing the evidence on record, rightly acquitted the accused
No.2/Mohd. Aftab, hence, the same does not warrant any interference
by this Court. He further submits that he adopts the arguments
addressed on behalf of accused No.1/Mohd. Sanaulah.
8. We have heard learned counsel appearing on behalf of the parties and
have perused the material on record.
CRL. A. 272/2018 AND CRL. LP 318/2018 Page 5 of 13
9. The case of prosecution entirely rests on the solitary testimony of the
victim. We deem it appropriate to examine the testimony of the
victim. The victim Mohd. Sanaulah entered into the witness box as
PW2 and deposed that :
"On 31.08.2009 at around 6 O Clock morning I was
returning from the house of Hafeez Asrat situated in
Kabir Nagar after performing / reading namaz in that
house as it was month of Ramzan and I was coming
towards my house. My house was situated in gali No. 5
and as soon I reached that gali, all three accused persons,
two accused today present in Court and Babu Hotelwala
(not yet arrested as per charge sheet) were standing
together in gali. As soon I reached that spot accused
Aftab uttered and asked Shamim to take out katta
(country made firearm) and kill me (exact vernacular
expression deposed by witness is ''Aftab ne kaha Shamim
nikal katta aur maar sale ko. Aaj iska kaam tamam kar
de. ' Accused Shamim then took out firearm katta from
his right side dub and then Babu hotelwala uttered and
said 'jaldi kar dekhta kya hai maar goli'. I ran towards
my house in the gali accused Shamim fired shot from the
katta he was holding aiming on my back with intention to
kill me. The bullet hit me on my back. That bullet is still
lying in my body as the doctor opined that bullet is very
close to my vertebrae and action of removing of bullet
from that position could cause me a serious disability. I
CRL. A. 272/2018 AND CRL. LP 318/2018 Page 6 of 13
raised hue and cry and I had fallen on ground as soon I
received that bullet injury."
10. There is no legal impediment in convicting a person on the sole
testimony of a single witness. It is the quality and not the quantity of
evidence which is necessary for proving or disproving a fact. The legal
system has laid emphasis on value, weight and quality of evidence
rather than on quantity, multiplicity or plurality of witnesses. The test
is whether the evidence has a ring of truth, is cogent, credible and
trustworthy or otherwise.
11. The Apex Court in Veer Singh & Ors. Versus State of UP reported in
(2014) 2 SCC 455 , has observed that :
"17. Legal system has laid emphasis on value, weight
and quality of evidence rather than on quantity
multiplicity or plurality of witnesses. It is not the
number of witnesses but quality of their evidence
which is important as there is no requirement
under the Law of Evidence that any particular
number of witnesses is to be examined to
prove/disprove a fact. Evidence must be weighed
and not counted. It is quality and not quantity
which determines the adequacy of evidence as has
been provided Under Section 134 of the Evidence
Act. As a general rule the Court can and may act
on the testimony of a single witness provided he is
wholly reliable. (Vide: Vadivelu Thevar and Anr.
V. State of Madras : AIR 1957 SC 614; Kunju @
CRL. A. 272/2018 AND CRL. LP 318/2018 Page 7 of 13
Balachandran v. State of Tamil Nadu : AIR 2008
SC 1381; Bipin Kumar Mondal v. State of West
Bengal : AIR 2010 SC 3638; Mahesh and Anr. v.
State of Madhya Pradesh : (2011) 9 SCC 626;
Prithipal Singh and Ors. v. State of Punjab and
Anr. : (2012) 1 SCC 10; Kishan Chand v. State of
Haryana : JT 2013 (1) SC 222 and Gulam Sarbar
v. State of Bihar (Now Jharkhand) : 2013 (12)
SCALE 504).
12. In view of the settled law, we shall now examine whether the evidence
has a ring of truth, is cogent, credible and trustworthy or otherwise.
PW2 Mohd. Sanaulah deposed that on 31.08.2009, when he was
returning home, both the accused persons were standing in the gali and
as soon as he reached near them, accused No.2 asked the accused No.1
to take out the katta (Country made firearm) and kill him on which he
ran towards his house but accused No.1 chased him and fired a
gunshot which hit him on his back. He further deposed that the bullet
stuck in his body near the vertebrae and he rushed to the hospital
where the doctor opined that the bullet could not be removed as the
removal of the same may cause serious physical disability to him.
13. The story of PW-2 fails to find any support from the testimony of
PW-9 Dr. Rajeev Raman, who examined the victim and proved his
opinion Ex.PW9/A and categorically stated that "On 23.09.2009 (sic) I
was working as SR in G. B. Hospital as Senior Resident Orthopedics.
On that day on the basis of X-ray of DL Spine no bony injury was
found and I gave my opinion about the injury as Simple on the MLC
CRL. A. 272/2018 AND CRL. LP 318/2018 Page 8 of 13
of Sanaulah. " During cross examination, PW9 admitted that no
X-ray was conducted on the victim. Further, PW-10 Dr. Tushar
Mohan proved the MLC Ex.PW10/A of Sanaulah and deposed that
" On local examination there was wound of entry at T-10 level around
0.5 x 0.5 cm in size. There was no bleeding. Tatooing was present
around the wound of the entry of around 4 x 4 cm in size. Tenderness
was found present at the site of injury. No bony crepitus was found in
chest. No surgical emphysema was found. Air entry was bilateral
equal. "
14. From the joint reading of testimonies of both the medical experts what
emerges from the record that there was a simple injury on the person
of the victim with no bony and no blood. Prosecution failed to bring
on record the X-ray report of the victim on record. Further, when the
kurta of the victim Ex.P1 was produced in Court from Malkhana, a
hole was found in the kurta near the shoulder area which falsified the
version of the victim that a bullet hit him close to his vertebrae.
15. From the aforesaid discussion, it falls that the story set up by the
victim PW-2 fails to find corroboration from the other material on
record. The x-ray was not conducted on the person of victim. The
FSL report completely nullifies the case of the prosecution and makes
a serious dent in the case of the prosecution as there is nothing to
connect the alleged fireshot from the katta Ex.P2. The prosecution
failed to show any bullet stuck in the body of the victim. Had the
victim really received a gunshot, there should have been a exit wound
as the shot was alleged to have been fired from a very close range.
CRL. A. 272/2018 AND CRL. LP 318/2018 Page 9 of 13
Surprisingly enough, the MLC categorically mentioned that there was
no bleeding.
16. Thus, in our considered view, the Trial Court has rightly acquitted the
accused persons from the charges under Section 307/34 IPC as the
case of the prosecution has fallen like a pack of cards.
17. Accused No. 1 has been convicted under Section 25 of the Arms Act
for being in possession of prohibited arms without licence on the basis
of a disclosure statement made by the accused No. 1 in the presence of
two police officials from a room situated on the first floor of house
No. B-1024, Kabir Nagar, Delhi and a country made pistol along with
an empty and a live cartridge were recovered.
18. No doubt the accused led the police officials and pointed out the place
from where the weapon was recovered which would be admissible
under Section 8 of the Evidence Act but it would be necessary to
ascertain that there was no foul play on the part of the Investigating
Agency and the prosecution was able to prove its case beyond
reasonable doubt. In this context, it would be appropriate to reproduce
the relevant part of the FSL report, which reads as under:
" RESULTS OF EXAMINATION/OPINION
5. The individual characteristics of firing pin
marks and breech face marks present on
evidence fired cartridge case marked exhibit
'EC1' and on test fired cartridge cases
marked as 'EC1' & 'EC2' were compared and
examined under Comparison Microscope
Model Lieca DMC and were not found
identical. Hence, exhibit 'EC1' has not
been fired through the country made
CRL. A. 272/2018 AND CRL. LP 318/2018 Page 10 of 13
pistol .315" bore marked exhibit 'F1'
above."
19. Perusal of the FSL report Ex.PW1/A shows that the empty cartridge
Ex. 'EC1' does not match with the test fired cartridge recovered at the
instance of accused No. 1 from his premises from the premises of the
accused No. 1. It is clear that from the FSL report that there is no
material on record to connect the injury suffered by the victim with the
firearm alleged to have been recovered from the accused No. 1.
Neither any bullet has been recovered from the body of the victim nor
there was any bleeding.
20. In Pankaj vs. State of Rajasthan reported in (2016) 16 SCC 192 ,
wherein the Apex Court held that :
"It is a well-settled principle of law that when the
genesis and the manner of the incident is doubtful,
the accused cannot be convicted. Inasmuch as the
prosecution has failed to establish the
circumstances in which the Appellant was alleged
to have fired at the deceased, the entire story
deserves to be rejected. When the evidence
produced by the prosecution has neither quality
nor credibility, it would be unsafe to rest
conviction upon such evidence.
21. Keeping in view the settled law and the material available on record,
we are of the considered view that the prosecution failed to establish
the circumstances in which the accused No. 1 alleged to have fired at
the victim. The recovery of the country made pistol is false and
planted in view of doubtful features and infirmities in prosecution
CRL. A. 272/2018 AND CRL. LP 318/2018 Page 11 of 13
evidence and not safe to rely upon the testimony of the police official
whose evidence needs to be scrutinized with great care and caution.
There are fatal infirmities in the entire prosecution case. The entire
genesis and the manner of the incident is doubtful and the entire story
deserves to be rejected. It would not be safe to convict the accused
no.1 and in these circumstances would be entitled to benefit of doubt.
Therefore, we set aside the conviction and order on sentence awarded
to accused No. 1 under Section 25 of the Arms Act. He is acquitted of
the charges framed against him.
22. The accused No. 1/Shamim Ahmed has also been charged under
Section 27 of the Arms Act. The Trial Court neither convicted nor
acquitted him under Section 27 of the Arms Act. As per Section 27 of
the Arms Act, use of any arms and the ammunition without licence in
contravention of Section 5 is punishable. Since, the entire incident is
doubtful moreso the FSL report clearly suggests that the recovered
empty cartridge has not been fired through the country made pistol
.315" bore recovered at the instance of accused No. 1, no offence
under Section 27 of the Arms Act is also made out against the accused
No. 1 / Shamim Ahmed and hence, he stands acquitted for the offence
punishable under Section 27 of the Arms Act. He is stated to be on
bail. His bail bonds are cancelled and surety stands discharged.
23. Accordingly, the appeal filed by the accused No. 1/Shamim Ahmed is
allowed and the leave petition preferred by the State stands dismissed.
24. Before parting with this judgment, we may add that the investigation
in the present case has been carried out in a very shoddy manner and
the callous attitude of those responsible had led to the acquittal of the
CRL. A. 272/2018 AND CRL. LP 318/2018 Page 12 of 13
accused persons. A copy of this order be sent to the concerned Deputy
Commissioner of Police for initiating departmental proceedings
against the concerned officials.
25. A report be sent to this Court within eight weeks from the date of this
order.
26. Trial Court Record be sent back along with copy of this order.
27. A copy of this order be also sent to the Superintendent Jail.
SANGITA DHINGRA SEHGAL, J.
SIDDHARTH MRIDUL, J.
TH
NOVEMBER 20 , 2018
CRL. A. 272/2018 AND CRL. LP 318/2018 Page 13 of 13