Shamim Ahmed vs State Of Nct Of Delhi

Sangita Dhingra Sehgal, J

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

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/-.

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 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.â€​

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.

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.

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 No. 1 got recovered the weapon of offence and has also been convicted under Section 25 of

the Arms Act.

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.

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.

We have heard learned counsel appearing on behalf of the parties and have perused the material on record.

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 raised hue and cry and I had fallen on ground as soon I received that bullet injury.

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.

The Apex Court in Veer Singh & Ors. Versus State of UP reported in (2014) 2 SCC 455, has observed that :

 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 @

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).

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.

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 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.

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.

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. Surprisingly enough, the MLC categorically mentioned that there was no bleeding.

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.

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.

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

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 pistol .315"" bore marked exhibit 'F1' above.

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.

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.

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 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.

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.

Accordingly, the appeal filed by the accused No. 1/Shamim Ahmed is allowed and the leave petition preferred by the State stands dismissed.

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 accused persons. A copy of this order be sent to the concerned Deputy

Commissioner of Police for initiating departmental proceedings against the concerned officials.

A report be sent to this Court within eight weeks from the date of this order.

Trial Court Record be sent back along with copy of this order.

A copy of this order be also sent to the Superintendent Jail.