State vs Md. Akil @V Don @ Zeedar on 21 December, 2024

Delhi District Court

State vs Md. Akil @V Don @ Zeedar on 21 December, 2024

        IN THE COURT OF SH. PANKAJ ARORA:
     ADDITIONAL SESSIONS JUDGE-04: NORTH-EAST:
            KARKARDOOMA COURT: DELHI

SESSIONS CASE NO. 44620/2015
CNR No. DLNE01-000010-2008
FIR No:  164/2008
P.S.     Bhajanpura
U/s :    302//120B/147/148/149 of IPC

STATE
                                 Versus


1. Mohd. Akil @ Don @ Zeedar             (expired and proceedings
s/o Mohd. Javed                          abated vide order dt. 05/02/13)
r/o C-25/28, Gali no. 3,
Chauhan Banger, Seelampur, Delhi

2. Azhar @ Raja Thakur
s/o Maqsood
r/o WZA-108, Gali no. 11,
Hastal Road, Uttam Nagar, Delhi

3. Tasleem Ahmed @ Akram
s/o Mohd. Jaki
r/o 958, Gali Patnawali,
Punjabi Fatak, Balli Marran, Delhi

4. Saalim @ Akram @ Santosh
s/o Mohd. Aslam
r/o village Shetal, PO Hafeej Gunj,
Bareilly, UP

5. Irshad Khan @ Guddu Chaudhary @ Wakeel
s/o Atraj Khan
r/o 469, Gali no. 16,
Kardom Puri, Delhi

6. Rahis Ahmad @ Langda @ Arshad @ Habib @ Rahisuddin
s/o Hasimuddin
r/o V-145, Gali no. 19A,

FIR No. 164/08      State Vs. Mohd. Akil @ Don Etc.       Page No. 1 of 63
 Vijay Park, Maujpur, Delhi

Date of Institution        :       17-09-2008
Date of Argument           :       20-12-2024
Date of Judgment           :       21-12-2024

JUDGMENT

1. Brief facts of this case are that on 30.04.2008 an
information was received at PS Bhajanpura through wireless
operator that some boys had fled in a car after firing near C-11
Masjid, Yamuna Vihar. The information was reduced into
writing vide DD no. 20A (Ex.PW4/A), and the same was marked
to SI Hari Singh (hereinafter referred to as IO/Investigating
officer). Thereafter, IO along with HC Khagnesh reached at the
spot, where they noticed one motorcycle bearing registration no.
DL5SB9631 and blood stains in front of H.No. C-11/206.
Thereafter, IO proceeded to GTB hospital whereas HC Khagnesh
was left at the spot for preserving scene of crime and collected
MLC of victim aged about 38 years wherein Doctor concerned
had declared him brought dead at about 11:50 PM. No eye
witness was found at the hospital. Thereafter, IO went back to the
spot and prepared rukka and got the present FIR registered
through HC Mustaq. The spot was got inspected through crime
team. Photography was done. Senior officers were intimated
through special messenger. The motorcycle found lying at the
spot, blood stained concrete, earth control and fired bullet
recovered at the spot were seized. Thereafter, further
investigation was conducted by second IO/Inspector Devender
Kumar. On 01.05.2008, after conducting identification
proceedings of dead body, Postmortem of the deceased was got

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 2 of 63
conducted. During PM, the autopsy surgeon prepared pullanda
containing bullet recovered from the dead body, blood gauze and
clothes worn by the deceased. One Naeem S/o Kalan Khan and
Kafil Ahmed, S/o Kadir Khan who claimed to be eye witness of
the incident met the IO. Their statement was recorded by the IO.
The accused persons were identified on the basis of statement of
eye witnesses. On 03.05.2008, an information was received from
special Cell, Lodhi Colony, regarding arrest of two accused
persons namely Akil and Azhar in case FIR No. 20/2008, who
made disclosure about their involvement in the present case..
After seeking permission from the court concerned, both the
aforesaid accused persons were formally arrested. Their
disclosure statement was recorded. They were subjected to TIP
proceedings and during TIP proceedings, both accused Md. Akil
and Azhar Thakur were identified correctly by the eye witnesses.
PC remand of the accused persons was obtained and during PC
remand, accused Akil got recovered one empty cartridge from
dried drain near MTNL. Site plan of the spot was prepared.
Exhibit seized by the special cell, Lodhi Colony and kalandara
prepared by them were collected by the IO of the present case.
Call detail records of mobile phones used by the accused persons
were collected by the IO. Exhibits were deposited with CFSL
for opinion. On 23.06.2008, an information was received from
Special cell, Lodhi Colony, regarding arrest of two accused
persons namely Tasleem and Salim in case FIR No. 35/2008 and
34/2008 respectively, who too had made disclosure about their
involvement in the present case. They were arrested from the
court concerned after seeking permission. On 28.06.2008, both
the afore-said accused persons were subjected to TIP proceedings

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 3 of 63
wherein both the accused persons had refused to participate.
Their disclosure statements were recorded. On 13.07.2008,
accused Guddu Chaudhary was arrested during raid conducted at
Sarai Kale Khan Bus Terminal on the basis of secret information.
His disclosure statement was recorded. On 24.07.2008, accused
Rahees @ langra was arrested on the basis of secret information
during raid conducted at Kardam Puri Bus Stand. He was
subjected to TIP proceedings but he refused to participate
therein.

On 25.07.2008, IO got prepared scaled site plan of the spot
through draftsman SI Mukesh Kumar Jain. Subsequent opinion
was obtained from autopsy surgeon as to whether the injuries
caused to the victim/deceased was sufficient to cause death in
normal course and the doctor opined that injury No.1 mentioned
in the postmortem Report was sufficient to cause death. During
investigation, it was discovered that on 30.04.2008 the aforesaid
six accused persons had convened a meeting at ‘Turkmaan gate,
Delite cinema, which was headed by accused Azar @ Raza.
During meeting it was decided that they have to extort money
from Aalim (Yamuna Vihar), who is earning money in the name
of Anwar Thakur. Saleem and Naeem Pehlwan of Kardampuri
had insulted Anwar Thakur and therefore, they have to take
revenge for the said insult against them. Thereafter, all the
accused persons had reached Yamuna Vihar as per their plan in
the Maruti car of accused Guddu Chaudhary. Accused Irshad was
driving the said car and all other accused were carrying pistol
with them. Accused Guddu and Rahees @ Langra were well
aware of the identity of Saleem and Alim. All the accused
persons took position near electricity office. Yamuna Vihar.

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First of all, they went to the house of Alim but he was not found
there. Accused Guddu was sitting on the driving seat of the car
and when all other accused persons also seated themselves on the
car, accused Rahees had pointed towards one bullet motorcycle
and stated that the same was driven by Salim Pehlwan. All the
accused persons took their position inside the car. At the
instance of accused Raja and Taslim, accused Guddu brought the
car near to the above-stated motorcycle. Accused Akil, who was
sitting on the navigation seat and accused Salim who was sitting
on the rear seat had opened fired towards the victim Salim from
their respective pistols, which hit on the back side of victim
Salim, due to which he fell down along with motorcycle.
Accused Guddu accelerated the car but Naeem and Kafil, who
had also arriving at the spot in a motorcycle, had seen the
occupants of the car firing towards motorcyclist and chased
them. Accused Raja and Guddu took out their respective heads
from the window of the car and started extending threat to
Nayeem and Kafil. Thereafter, accused Guddu accelerated the
the said car and the pistol used by accused Salim was found in
the possession of accused Rahees @ Langra. After completion of
necessary formalities, initially, chargesheet was filed against the
accused Akil @ Don, Azhar @ Raja Thakur, Tasleem Ahmad @
Akram and Irshad Khan @ Guddu Chaudhary @ Wakeel. Later
on, supplementary chargesheet was filed against accused Rahees
in the court of Ld. Ilaqa Metropolitan Magistrate.

COMMITTAL

2. After taking cognizance and compliance of section 207
Cr. PC, present case was committed to the court of sessions vide

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order dated 11-09-2008 of ld. ACMM/(NE)/KKD. Thereafter,
the then Ld. District and Sessions Judge, KKD Courts allocated
this case to the ld. Predecessor of this court.
CHARGE

3. On the basis of facts emerging from the chargesheet and
after hearing the arguments, Ld. Predecessor of this court framed
charges against the accused persons vide order dated 16-01-2009
for the offences punishable u/s 120B/302/149 of IPC, to which
they pleaded not guilty and claimed trial. On 04-02-2009,
amended charge was framed against the accused persons, after
correcting the date of incident, to which accused persons pleaded
not guilty and claimed trial. Thereafter, prosecution got
examined as many as 33 witnesses.

PROSECUTION EVIDENCE

4. (i) PW1 Sh. Naeem Pahalwan deposed that he was living at
Kardampuri, Delhi. They were four brothers and two sisters.
Two sisters had expired and one brother also expired. On
30/04/2008, he had gone to Noor-Elahi area for some personal
work where he met Kafil Ahmed. He returned sitting as pillion
rider on his motorcycle on his way back home. At about 10:45
p.m. when they reached in front of Bhagat Singh Park in between
the Panchwati Restaurant and the mosque, one Maruti Zen car
came from opposite direction i.e. C-12 Yamuna Vihar side. One
motorbike was coming from the same side of the Zen car and
was coming on the side of the car. He saw the car occupants who
was sitting on the conductor side firing on the motorcyclist. He
saw hand outside the car. They went ahead about 30 yards and
then he said to the motorcycle rider, “let see what has happened”

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and chased the car after taking U-turn to find out the number of
the car which was not legible. The car was going towards the
Bhagat Singh Park. He saw inside the car and there were four-
five persons sitting. When they were following the car, the car
occupants took out their heads out of window and threatened
them saying “Bhag jao nahi to tumhe bhi thikane laga denge”.

The car was driven by Guddu Vakil who lives in Kardampuri
who was known to him, who also took his head out of the car and
thereafter sped away with the car. They chased the car for about
10 minutes and thereafter returned. On the conductor side of the
car, one person who was sitting on the front seat and one person
who was sitting on the rear seat were having arms in their hand.
The person sitting on the front had weapon appearing to be pistol
and on the rear side appearing to be katta. When they returned
after 10 minutes, police had arrived at the spot and the dead body
was already removed to the hospital but the police was present.
Thereafter, they went to Hospital to know as to who had been
shot by at the instance of Guddu Vakeel. When he reached
hospital, he saw the person who was shot at was his elder brother
Saleem. His brother was a political leader, therefore, huge crowd
had collected at the hospital. Police was present and inquired
from him as to what happened. He did not disclose anything as
he was perplexed due to this incident. On the next day, after the
postmortem, body was buried at about 4:00 p.m. He also
identified the dead body vide statement Ex. PW-1/A. The dead
body was received by him vide receipt Ex. PW-1/B.
After the burial of the dead body, SHO accompanied by SI
Hari Shankar met PW1 at the graveyard. He along with them
went to the spot and site plan Ex. PW-1/AA was prepared at his

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 7 of 63
instance. After the preparation of site plan, they went to the
police station where his statement was recorded.

PW1 added that after about 10-15 days of the arrest of the
two accused persons, he went to jail and identified the accused
persons at jail – who had fired and the other one of the occupants
of the car as Azhar @ Raja and Akil respectively. He deposed
that TIP proceedings Ex. PW-1/C and Ex. PW1/D was conducted
at jail.

PW1 identified accused Guddu Vakil present in the court,
as the person who was driving the car; accused Azhar present in
the court as another occupant of the car who was sitting on the
rear seat towards the driver side. He identified accused Akil as
the person who was sitting besides the driver (conductor side)
and who had fired at the motorcyclist. He identified accused
Saalim present in the court as the person who was sitting on the
rear seat behind accused Akil (conductor side). He saw accused
Saalim while appearing in the court about one month prior to the
day of hearing. PW1 claimed that accused saalim also fired at the
motorcyclist. Accused Rahees Langda and Taslim whose name
he came to know were also sitting in the car at the rear seat. He
identified them as he had seen them during the hearing of this
case as that of Saleem. They were simply sitting in the car. PW1
further deposed that the accused persons had planned together to
kill his brother. Accused Akil and Saalim had threatened him
when he was chasing them.

During cross-examination by ld. Defence counsel for
accused Irshad Khan @ Guddu Chaudhary @ Wakeel, he
deposed that he saw the firing incident from distant of about 25
yards. When they returned to the spot after chasing the car, no

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public persons were present around the scene of occurrence. PCR
police told him that the injured was taken to the hospital.

He denied that he returned back to Delhi late midnight on
the intervening night of 30.04.2008 and 01.05.2008 and when
information was received by him at village Ruhasa about
accident of his brother Saleem.

He denied that he was not present at the place of
occurrence therefore, he did not know the house number.

He denied that his brother had given an interview in
Rastriya Shahara newspaper dated 02-05-2008. He denied that
he has not mentioned this fact in the police file since he neither
witnessed the occurrence nor chased the assailant nor identified
any of them. He had not witnessed the incident therefore, he had
not disclosed this fact to the police by way of telephone or in
person. He denied that neither he nor the accused person was
present at the spot. He denied that he was a planted witness and
was deposing being on inimical terms with accused persons.

He affirmed that he was away to his native village Ruhasa.
District Meerut U.P on 30.04.08. He affirmed that at about 1 am,
in the intervening night of 30.04.08 and 01.05.08, they came to
know that his brother Salim (deceased) met with an accident. He
affirmed that they returned back to Delhi at about 2.30 AM, same
night. He affirmed that he had not witnessed any incident with
his brother Salim. He affirmed that he had not given any
statement to the police in the present case. He affirmed that
Kafil was not with him on 30.04.08 or that they both had not
witnessed any incident on 30.04.08. He affirmed that they were
in their village on 30.04.08 since morning. He affirmed that on
all earlier occasions when his statement was recorded, he was

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tutored by the IO and other police officials outside the court
room and he was compelled to give the statement as per the
statement noted down by the police. He affirmed that when they
came back from their native village, Sl Vinay Tyagi also met
them with local police. He affirmed that Akil was shown to him
at Special Cell office on 02-05-2008. He affirmed that earlier
statements given by him in the court were given under the threats
extended by S.I Vinay Tyagi. S.I Vinay Tyagi used to threaten
him that if he would not speak as dictated by him, he will be
falsely implicated by him in the false case of MACOCA. He
affirmed that the case under MACOCA registered against him.
He volunteered that it is a false case.

The witness was re-examined by ld. Addl. PP for State as
he had given totally different version from his earlier
examination.

During re-examination by ld. Addl. PP for State, he
affirmed that on 28.2.2009, his examination-in-chief was
recorded in the court but the statement given by him on
8.10.2009 was his correct statement. His statement earlier
recorded in the court on 28.2.2009 was a result of threats and
pressures put up on him by SI Vinay Tyagi to depose as per his
version. He volunteered that he had threatened him to involve in
a MACOCA case. He did not remember the date, month and year
when he was threatened by SI Vinay Tyagi. He volunteered that
it was prior to recording of his first statement. He affirmed that
SI Vinay Tyagi is neither the IO nor the witness in the present
case. He affirmed that he had not made any complaint against Sl
Vinay Tyagi regarding such threats in the police station or to any
senior police officers. He affirmed that he had also not made any

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 10 of 63
complaint against Si Vinay Tyagi to the court on the dates of his
examination about such threats.

SI Vinay Tyagi used to come in the court on every date of
hearing but he had no conversation with him on those dates. He
volunteered that SI Vinay Tyagi used to monitor the investigation
and progress of the case also unofficially. He affirmed that he
had not apprised the court regarding threats by SI Viney Tyagi
and presence of the SI Vinay Tyagi on outside the court on every
date of hearing. A case under MOCOCA Act was registered
against him in March. 2009 vide FIR No.19/09 of PS Shahdara
and he was arrested under MOCOCA Act in March, 2009 itself.
He denied that no such threat was given by SI Viney Tyagi to
him or that he was deposing falsely in this regard. He denied that
SI Viney Tyagi did not monitor the investigation of this case and
progress of the trial or that he never met him outside the court.

He affirmed that a suggestion was put to him by the
defence counsel on 28.2.2009, regarding his returning to Delhi in
the late midnight of intervening night of 30.4.2008 and 1.5.2008
from his native village with his brother, when he received the
information pertaining to deceased and he had denied the
suggestion. He affirmed that a suggestion was also put to him on
4.9.2009, that he was not present at the place of occurrence and
he had denied the suggestion. He denied that he had rightly
denied the above suggestion when put to him as he was the eye
witness of this case.

He denied that his examination- in-chief recorded on
28.2.2009 in the court, was his true and correct version. He
denied that his cross-examination dated 8.10.2009 is a result of
his joining hands with the accused persons to save them from this

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case. He denied that he had changed his version during cross-
examination as accused persons had promised him to get their
case u/s 307 IPC compromised. He denied that his cross-
examination recorded on 8.10.2009 was his false statement. He
denied that on the date of incident, he was present at the spot and
he had seen the entire incident as narrated in his examination-in-
chief on 28.2.2009. He denied that witness Kafil was also with
him on the date of incident near the spot and he has also
witnessed the incident. He denied that his statement was
recorded by the police as per his version. He denied that he was
not tutored by the IO or any police officers to depose in court as
per their sweet will. He denied that Azhar and Aqil were not
shown to him at Special Cell Office on 2.5.2008. He denied that
all the accused persons present in the court had committed
murder of his brother Salim and he was the eye-witness of the
said incident. He denied that he was won over by the accused
persons, as such he had deposed falsely in his cross-examination
recorded on 8.10.2009 to save the accused persons from the
present case.

The witness was not cross-examined by ld. Defence
counsel despite having given the opportunity.

(ii) PW2 Sh. Kafil deposed that on 30-04-2008, he had gone to
Noor Elahi area for some personal work. When he was returning,
he met Naeem on the way and inquired from him as to why he
was standing, who stated that he was going to home. He asked
him to sit on his motorcycle. When they reached C-12 Yamuna
Vihar, and just before the Panchwati Restaurant. It was about
10:30/10:45 p.m., one motorcycle was seen coming from the
opposite side and one Maruti Zen car was also coming from that

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side. They heard the noise of bullet shot and they saw the
motorcyclist falling down on the road. He was frightened and
took the motorcycle on side of the road. After crossing of their
motorcycle by the said car, Naeem asked to follow the car. The
said car was driven by Guddu Vakeel who lives in Kardampuri
area near their area and known to him. He took out his head out
whether somebody was chasing the car or not and they identified
him at that time. He volunteered that he (accused Guddu) was
identified by Naeem first then Naeem told him that the driver of
the car was Guddu Vakeel and thereafter, he also identified him.
The car for going towards the Bhagat Singh park took a turn
towards Wazirabad main road. One person who was sitting on
the rear seat next to the occupants of the car behind the driver
took out his head out of the car and threatened them by saying
that “vapas chale jao verna jo uske sath hua hai voh tumahre sathi
bhi hoga”. Threats were also given by Guddu. They chased the
car till the Wazirabad main road and thereafter, returned and to
know as to who shot Guddu etc. came back to the spot. There
were four-five public persons near the spot. They told them that
the injured had been taken to the hospital in Auto (TSR) by
someone. Further to know as to who was shot and whether he
was resident of area, they too reached at GTB hospital. At
hospital, they came to know that the victim was their real brother
namely Saleem. The crowd had collected at the hospital and
started mourning. Naeem became perplexed and he tried to
console him. He remained there in the hospital and body of
Saleem was subjected to postmortem on the next day. At the
hospital, police made inquiries from them but Naeem asked him
not to disclose the name of the assailants as they belonged to the

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same area and may create disturbance. After the burial of
Saleem, he went to police station at about 7:00/7:30 p.m. for
giving his statement. He got his statement recorded there and
narrated the incident. He told that the person who shot fired was
Guddu Vakeel and claimed that he can identify others as well.
Again said, he told to the police that Guddu was driving the car
and the person who has shot fired were sitting on the left side of
the car. They were two persons, one was sitting besides the driver
and the other was sitting on the rear side towards left window.

PW2 claimed that he had not identified any of the accused
prior to 07.05.2008. On 07-05-2008, he had gone to jail and
participated in the TIP of accused Azhar and Akil at the Tihar
Jail vide TIP proceedings Ex. PW-1/C and Ex.PW-1/D. He
volunteered that he did not identify any person but on the
signaling of one of the participant of the TIP, he identified
accused Azhar. He deposed that he can identify Guddu Vakeel,
Azhar and one person who had taken out his head from the car at
the time of incident. The witness identified Guddu Vakeel and,
Azhar as the assailants and identified accused Rayees as the
persons who had extended threat by taking out his head from the
car. He deposed that he could not identify other occupants of the
car.

PW2 added that on 26-07-2008, he had gone to the police
station in connection with some work and he inquired about the
progress of the present case. He came to know that accused
Rayees was arrested in this case. He was present at the police
station and he came to know that the name of the said person is
Rayees and he identified him.

The witness was cross-examined by Ld. APP for the state

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as he was resiling from his previous statement
During cross-examination by Ld. Addl. PP for State, he
denied the suggestion that on 27-06-2008, he had gone to PS
Bhajanpura and identified accused Tasleem and Saalim. He
denied that it so happened and he gave statement to this effect to
the police. He denied that he had also stated to the police on that
day that these two persons were sitting in the car on the date of
incident in which Saleem Pahalwan was killed. He denied that
his statement Mark A was his true and correct statement or that
he was not intentionally identifying the accused persons Saalim
and Taslim present in the court. He denied that he was
deliberately and intentionally not identifying them as he was won
over by them. The Ld. Addl. PP for the state pointed towards
accused Akil who was present in the court as one of the
assailants and asked the witness whether he can identify him to
which the witness gave answer in negative. He denied that he
was deliberately not identifying the accused Akil as he has been
won over by him.

During cross-examination by ld. Defence counsel, he
affirmed that he did not state in my statement to the police that
how many shots were fired and how many bullets hit the
deceased.

He had stated in his statement to the police that “He was
identified by Naeem first then he told him that the driver of the
car was Guddu Vakil and thereafter, he also identified him.”

He had stated to the police in his statement that he had
identified Raees as one of the occupants of the car. He affirmed
that he had not stated to the police in his statement regarding the
description i.e. complexion, built of the accused persons, age of

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the accused persons, cloth of the accused persons and height of
the accused persons etc.
He affirmed that he is an accused in case FIR No. 46/2008
U/s 307/186/353 IPC and 25/27 Arms Act. PS Special Cell,
Lodhi Colony. He affirmed that he was also an accused in case
FIR No. 70/2007 U/s 323/341/34 IPC PS Shahdara. He affirmed
that there was one case bearing FIR No: 399/93 U/s 12/9/55
Gambling Act. PS Shahdara. He affirmed that FIR no. 175/94
U/s 448/380/34 IPC was registered at PS Shahdara against him.
He affirmed that FIR No. 101/94 U/s 147/148/149/ 452 IPC PS
Shahdara was registered against him. He affirmed that FIR No.
334/96 U/s 307/34 IPC PS Shahdara was also registered against
him. He affirmed that FIR no. 424/91 U/s 452/506/34 IPC PS
Shahdara was also registered against him. He affirmed that FIR
no. 40/2001 U/s 336/506/34 IPC PS Welcome was also
registered against him. In this case Mohd. Mohsin and Saleem
Pahalwan (deceased in this case) were co-accused with him. He
has a mobile phone. He was keeping the mobile phone for last
two-three years. His mobile connection no. is 99905-74992. He
did not know whether Naeem also keep mobile or not. Neither
he nor Naeem told the family member about the death of Saleem
Pahalwan. On return from the hospital, he did not tell about the
incident and he being the eye-witness to the police present at
various places on the way nor he went to the police station
Bhajanpura on his return from the hospital.

The car which they were chasing was of white colour. The
registration number was not visible as there was mud on the
registration number plate. He could not say whether the glasses
of the car was having black film.

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He could not tell the address of the place where he met
Naim on the way in Noor Illahi.

He was on visiting terms at the house of deceased Salim
and he was having office at ground floor of house of deceased
Salim. He did not know whether Naim also lives with Salim in
the same house. He had good relations with deceased as both of
them were related with Congress Party. Deceased was in the
Congress party since the time, he knew him and at the time of his
death he was general secretary of Congress Party.

He was on visiting terms with elder brother of L.A. Khan
namely Sh. Ahmad Ali Khan, Adv. and he used to go his house
also. Once he visited the house of accused I.A. Khan, when his
brother was having eye problem and he was staying with him.
He used to call I. A. Khan as Guddu only as he was younger to
him. He used to call him Guddu as all the locality known him by
that name as Guddu. He affirmed that accused I.A. Khan was not
arrested in his presence. He never participated in any TIP so as
to identify accused I.A. Khan as Guddu. He had witnessed
number of incidents as eye-witness being roadside accident.

He did not know accused Azhar. He had identified only
accused Guddu and Rahees in the court during his examination-
in-chief on 28.2.2009. He had stated to the IO in his statement
Ex.PW-2/DA that Rahees also extended threat by taking out his
head from the car.

(iii) PW-3 ASI Mahesh Chand was the Duty officer posted at
PS at relevant time. He proved the factum of registration of FIR
as Ex. PW3/A and endorsement made by him on the rukka
prepared by IO as Ex. PW3/B.
The witness was not cross-examined by Ld. Defence

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 17 of 63
counsel despite having given the opportunity.

(iv) PW-4 HC Raj Kumar was the DD writer posted at the PS
who proved the factum of registration of DD no. 20A as Ex.
PW4/A.
The witness was not cross-examined by Ld. Defence
counsel despite having given the opportunity.

(v) PW-5 Dr. Prabhakar Yadav deposed that on 30-04-2008,
he was posted as CMO at GTB hospital. On that day, MLC of
one Salim Pahalwan was prepared by Dr. Avinash Tigga under
his supervision vide MLC Ex. PW5/A. He identified the
handwriting and signature of Dr. Avinash Tigga. The treatment
papers of the patient was also prepared by Dr. Avinash Tigga
vide Ex. PW5/B.
The witness was not cross-examined by Ld. Defence
counsel despite having given the opportunity.

(vi) PW6 Seema Nair was the Nodal Officer from Idea Cellular
Ltd., who exhibited the CDR of mobile no. 9911985237
registered in the name of Guddu Chaudhary vide Ex. PW6/A1 to
A6.

The witness was cross-examined by ld. Defence counsel
but nothing material came out therein.

(vii) PW7 Capt. Anuj Bhatia, is the Nodal Officer from
Vodafone Essar Ltd., who exhibited the CDR of mobile no.
9999214576 registered in the name of Uday Raj vide Ex.
PW7/A.
He also exhibited the CDR of mobile no. 9953821157
registered in the name of Jabir vide Ex. PW7/B.
The witness was cross-examined by ld. Defence counsel
but nothing material came out therein.

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 18 of 63

(viii) PW8 Dr. Arvind Kumar, deposed that on 01-05-2008, he
was posted as Lecturer in the department of Forensic Medicine,
UCMS and GTB hospital. On that day, he conducted
postmortem on the dead body of one Salim, aged 40 years, male,
on the request of Inspector Birendra Kumar. He proved the
postmortem report vide Ex. PW8/A.
The witness was not cross-examined by Ld. Defence
counsel despite having given the opportunity.

(ix) PW9 HC Raghuvir Singh deposed that on 30-04-2008, he
was posted at PCR control room. He filled form of 100 number
call regarding the receipt of call. It was informed that at 10:55
pm at C-11, near Masjid, Yamuna Vihar, some boys had run
away after firing.

The witness was not cross-examined by Ld. Defence
counsel despite having given the opportunity.

(x) PW10 Ct. Kamal Singh deposed that on 10-06-2008, he
had taken four sealed parcels, FSL Form to FSL Rohini. He
handed over the receiving to the MHCM.

The witness was cross-examined by ld. Defence counsel
but nothing material came out therein.

(xii) PW-11 SI Mukesh Kumar Jain, Draftsman deposed that on
25-06-2008, he along with Inspector Birender Singh reached the
spot i.e. C-11 Road, Yamuna Vihar, Delhi where he inspected the
spot and took measurements and prepared rough notes of the spot
on the pointing out of Inspector Birender Singh. Thereafter, he
prepared scaled site plan vide Ex. PW11/A.
The witness was cross-examined by ld. Defence counsel
but nothing material came out therein.

(xii) PW12 Ct. Chandra Prakash deposed that on 29-06-2008,

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 19 of 63
accused Tasleem Ahmad and Salim were taken on police
custody. IO inspector B. K. Singh took out the accused persons
from the lock up and interrogated them. Accused Tasleem led
the police party to B-84/G1, Dilshad Colony, Delhi and pointed
out the same to be house of Guddu Chaudhary which was used
by them. The door was locked from outside. He inquired from
the locality people and it was revealed that house was locked for
a long time. On 30-06-2008, he again joined the investigation.
Accused Salim and Tasleem made disclosure statements vide Ex.
PW12/A and Ex. PW12/B.
During cross-examination by Ld. Defence counsel, he did
not remember the departure DD entry number.

(xiii) PW13 HC Surender Singh deposed that on 27-06-2008, he
joined the investigation of this case with Inspector Virender
Singh. He had gone to Tihar Jail no. 1. Accused Taslim and
Salim were called in officer’s room and they were arrested vide
memos Ex. PW13/A and Ex. PW13/B. Their disclosure
statements were recorded vide Ex. PW13/C and Ex. PW13/D.
During cross-examination by ld. Defence counsel, he
deposed that disclosure statements of accused Taslim and Salim
were recorded in his presence by the IO and he had not heard the
contents of disclosure statement as narrated by the accused
persons but he was nearby.

(xiv) PW14 SI Rakesh Yadav deposed that on 13-07-2008, he
was posted as SI in Special Staff, NE District. On that day,
Inspector Ajay Pal had lodged a DD Entry vide DD No.3 at
Special Staff in respect of one wanted accused namely Irshad @
Guddu. As per instructions, he alongwith copy of said DD entry
had gone to PS Bhajan Pura and had met the IO of the present

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 20 of 63
case alongwith H.C. Sohan Vir and Const. Sher Hasan. He had
handed over the said DD entry to Inspector Virender, the IO of
the present case and he narrated the facts to him. At about 1.15
p.m., he alongwith Const. Sher Hasan and H.C. Sohan Vir from
special staff and Inspector Virender Kumar, Const. Nathu, Const.
Jeet Singh and one or two other constables from PS Bhajan Pura
had gone to Sarai Kale Khan bus stand. H.C. Sohan Vir and
Const. Nathu had known accused Irshad @ Guddu by face
previously. IO had also requested 2-4 public persons to join the
proceedings but all of them left without disclosing their names
and addresses. The raiding party was briefed by the IO and the
personnel of the police party were deputed at strategic locations.
At about 5.20 p.m., Const. Nathu had pointed out towards Irshad
@ Guddu and the raiding party apprehended said Irshad @
Guddu. Accused was interrogated in the vehicle. Accused Irshad
@ Guddu was arrested vide arrest memo Ex.PW14/A and
personally searched vide Ex. PW14/B. His disclosure statement
was also recorded vide Ex.PW14/C. His statement was recorded
in the PS and later on, he got discharged in this case by the IO.

During cross-examination by ld. Defence counsel, he
deposed that IO had not given any notice to the public person
who refused to join the proceedings as those persons left in
buses. He had not given any information to police chowki in
Sarai Kale Khan.

(xv) PW15 SI Hari Singh deposed that on 30.04.2008, he was
posted at PS Bhajan Pura as SI. On that day, DD No. 20A Ex.
PW-4/A was recorded in PS Bhajan Pura at 10.58 PM, which
was given to him for action in the matter around 11.00 PM.
Accordingly, he along with HC Mustak proceeded for the

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 21 of 63
informed place and reached C-11, Yamuna Vihar. near Masjid,
Delhi, where he found one motorcycle make Bullet bearing No.
DL-5S-V-9631 of black colour lying there and blood was lying
on the road. HC Khagnesh also reached the spot. On inquiry, he
came to know that some persons had come in a Car and had fired
on a person and that person had been removed to GTB Hospital.
He left HC Khagnesh at the spot. He alongwith HC Mustak
reached GTB Hospital. He collected the MLC No. A-1704/2008
in respect of Saleem Pehalwan. Doctor had declared him brought
dead at 11.50 PM. Though, several persons related to Saleem
Pehalwan was present in the hospital, but no eyewitness met him
in the hospital. SHO of PS Bhajan Pura had also reached the
hospital. Thereafter, he alongwith HC Mustak reached the spot.
No eyewitness met him at the spot. On the basis of his own
observations, he recorded rukka Ex. PW-15/A and gave it to HC
Mustak with the direction to get the case registered. HC Mustak
left the spot at 02.10 AM with rukka. Crime team officials
including photographer reached the spot. He got the spot
photographed vide photographs Ex. PW-15/B-1 to B-5 and he
identified the spot visible in the photographs. The spot was
inspected by entire crime team. He lifted blood samples and earth
control samples from the spot and kept the same in separate
plastic containers and converted into them into separate cloth
parcels and sealed them with the seal of HSB. He seized the
parcels, which were three in number marked as B-1, B-2 and B-3
vide seizure memo Ex. PW- 15/C. He took the motorcycle No.
DL-5SV-9631 in possession vide seizure memo Ex. PW-15/D, its
tale light was damaged and front mud guard was also missing.
This motorcycle was stated to be of deceased Saleem Pehalwan.

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 22 of 63
He minutely searched the spot and found SIKKA (bullet), which
was lying in front of H.No. C-11/206, Yamuna Vihar, Delhi. He
kept the same in a transparent polythene packet and converted
the same into a cloth parcel and sealed with the seal of HSB and
seized the same vide memo Ex. PW-15/E. By that time, HC
Mustak had reached the spot with copy of FIR and original rukka
and handed over the same to him. After completing spot
investigation, they returned Police Station. He deposited the case
property in Malkhana and conveyed the facts to SHO. He
recorded the statement of HC Khagnesh, Photographer Shyam
Singh. Further investigation was assigned to Insp. V.K. Singh
and he handed over the case file to him.

He remained associated in the investigation with Insp.
V.K. Singh. They reached mortuary GTB Hospital. Dead body of
Saleem Pehalwan was identified by Naeem and Mohd. Aarif.
Postmortem on the dead body of Saleem Pehalwan was
conducted. Dead body was handed over to the relatives of
Saleem Pehalwan vide receipt Ex. PW-1/B. He visited the spot
again with Insp. V.K. Singh. IO interrogated the witnesses and
recorded their statement. Brother of deceased namely Naeem had
also reached the spot around 05.00 PM on 01.05.2008. At his
instance, site plan of the spot was prepared by the IO vide Ex.
PW-1/AA. Thereafter, they returned to the Police Station.

On 03.05.2008, he again joined the investigation of this
case with Insp. V.K. Singh. They reached Tis Hazari Courts,
where two accused persons namely Azhar and Akil, were
produced by crime branch officials. Both the accused persons
were formally arrested in this case vide arrest memo of accused
Azhar Ex. PW-15/F and arrest memo of accused Akil @ Don as

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 23 of 63
Ex. PW-15/G. Accused Akil is dead. He deposed that he can
identify accused Azhar, if shown to him. Accused Azhar was
exempted from his appearance in the court that day and his
identity was not being disputed by his counsel. PW15 further
claimed that both the accused persons were remanded to JC on
that day.

PW15 identified the case property i.e. one bullet piece as
Ex. PW15/1 which he had lifted from the spot; a cotton piece
stained with blood as Ex. PW15/2 which he had lifted from the
Spot.

During cross-examination by Ld. Defence counsel, he
deposed that there are residential houses on both sides of spot i.e.
Yamuna Vihar. He had called the persons from those residential
areas including nearest houses to the spot to know the facts, they
had come but none deposed anything about the incident. He had
not recorded names and addresses of any such persons.
(xvi) PW16 H.C. Rajeev Kumar deposed that on 22.06.2008, he
was posted as H.C. at Special Cell, New Delhi Range, Delhi. On
that day, an information was given to him by the duty officer of
Special Cell at about 7 p.m. that he had to reach at Seema Puri
Gol Chakkar. where one accused Salim @ Akram had been
apprehended. Accordingly, he reached Seema Puri Gol Chakkar,
where H.C. Sanjeev Kumar and other police officials met him. SI
Vinay Tyagi, ASI Amrik Singh, H.C. Vijender, were among the
team. Accused Salim @ Akram was in their custody. He verified
the facts from H.C. Sanjeev Kumar. Thereafter, he took over the
investigation of that case. Const. Raj Kumar conveyed the FIR
NO.35/2008 registered at P.S. Special Cell, U/s 25 of Arms Act.
He interrogated accused Salim @ Akram and came to know that

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 24 of 63
he was involved in murder of Salim Pahalwan, concerning which
FIR was registered at PS Bhajan Pura. He recorded his disclosure
statement vide mark A/PW16. He arrested accused Salim @
Akram vide arrest memo mark B/PW16 and conducted his
personal search vide mark C/PW16. He concluded investigation
in that case and on 23.6.2008, he conveyed the information to
P.S. Bhajan Pura concerning disclosure made by accused
Salim@ Akram. IO of that case had contacted him and he had
recorded his statement. He handed over the photocopy of
disclosure statement, arrest memo and personal search of accused
Salim @ Akram to him.

During cross-examination by Ld. Defence counsel, he
affirmed that Seema Puri Gol Chakkar is a thorough public place.
He had not joined any public person as a witness at the time of
recording of disclosure statement mark A/PW16.
(xvii) PW17 HC Bhopal Singh was the MHCM posted at PS
Bhajanpura at the relevant time. He proved the relevant entries
regarding movement of case property concerning the present
case, in or out of, the malkhana of PS vide Ex. PW17/A to Ex.
PW17/D.
The witness was cross-examined by ld. Defence counsel
but nothing material came out therein.

(xviii) PW18 SI Amrik Singh deposed that on 21.06.2008, he was

posted at PS Special Cell, Lodhi Colony as ASI. On that day, at
the instance of secret informer, he alongwith SI Vinay Tyagi,
Inspector Subhash Vats, Const. Umesh Kumar, Const. Raj
Kumar, H.C. Sudhir and other police officials had proceeded to
apprehend accused Tasleem, in whose respect informer had
disclosed that he was wanted in a murder case of PS Bhajan Pura

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 25 of 63
concerning murder of Salim Pehalwan. In pursuance of this
information, they had reached Seema Puri Bus Depot. At about
9.30 p.m., accused Tasleem was apprehended at the instance of
secret informer. On cursory search of accused Tasleem, one
pistol ‘made in USA’ containing six cartridges in its chamber,
was recovered from his possession. Case FIR No.34/2008 was
registered at PS Special Cell, Lodhi Colony, on preparation of
ruqqa by him. Further investigation was taken up by H.C. Ram
Gopal. Sketch of pistol and cartridges and seizure memo of the
same were prepared by him. He had sealed the pistol and
cartridges with the seal after converting the same into cloth
parcel with the seal of AS. He handed over the custody of
accused Tasleem and recovered case property to H.C. Ram
Gopal. He identified accused Tasleem in the court.

During cross-examination by Ld. Defence counsel, he
deposed that police officials from PS Seema Puri were not called
at the spot. Departure entry was made, but he did not remember
its number. No public person was joined in the investigation and
no notice was served upon the public person who refused to join
the investigation. Accused Tasleem was medically examined at
Safdurjung Hospital but he did not remember who took him to
hospital.

(xix) PW19 ASI Sunder Gautam deposed that on 02.05.2008, he
was posted at PS Special Cell, Lodhi Colony, as H.C. On that
day, he joined the team of Inspector Subhash Vats, Inspector
Govind Sharma, SI Shiv Raj, SI Vinay Tyagi and other police
officials. They reached Karkardooma Court around 10.20 a.m.
They took position at the front gate of Karkardooma Court.
Around noon time, accused Akil @ Don (since expired) and

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 26 of 63
Azhar @ Raja came. At the instance of informer, both the
accused persons were apprehended. They were taken to office of
Special Cell, Lodhi Colony. On cursory search, accused Azhar
was found in possession of visiting card on which mobile phone
number and I.A. Khan @ Guddu was written and motorcycle
No.DL-7S-2012 colour silver was written. Mobile phone and
visiting cards were taken into possession by SI Vinay Tyagi u/s
41.1 Cr.P.C. The photocopy of the seizure memo is PW19/mark
A. From the possession of accused Akil @ Don (since expired),
one mobile phone Indicom was recovered and it was also taken
into possession vide seizure memo PW19/ mark B. Accused
persons were interrogated. They disclosed about their
involvement in the murder of Salim Pehalwan. In view of the
information disclosed by accused persons, accused Akil @ Don
led them to village Chhajjupura and pointed out towards a house
in a room built on the ground floor. He opened the almirah and
produced a pistol wrapped in a cloth. On checking, five live
rounds (cartridges) were found in the chamber of the pistol. SI
Vinay Tyagi seized the pistol and cartridges vide a seizure memo
after sealing the same with the seal of VKT. The sketch of the
weapon and cartridges was also prepared. The photocopy of the
same is PW19/mark C. Photocopy of seizure memo of pistol and
cartridges is PW19/mark D. A separate case FIR No.20/2008 was
registered at PS Special Cell, Lodhi Colony. The pointing out
memo of room was also prepared vide PW19/ mark E. Both the
accused persons were arrested u/s 41.1 Cr.P.C. Photocopies of
arrest memo of accused Azhar and Akil @ Don (since expired)
were PW19/ mark F and PW19/ mark G. Disclosure statements
of both the accused persons were recorded by the IO.

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 27 of 63
PW19 identified personal search items of accused Azhar
@Raja Thakur i.e. visiting card of Chaudhary I.A. Khan on
which vehicle No.DL-7S-2012 silver colour and some mobile
phone numbers were written as Ex.PW19/P1. Two mobile
phones were also recovered from the possession of accused
Azhar @ Raja Thakur. Pistol and cartridges recovered from
accused Akil @ Don (since expired) is subject matter of case FIR
No.20/2008, PS Special Cell, Lodhi Colony, New Delhi and
therefore, their identification by the witness was dispensed with.

During cross-examination by Ld. Defence counsel, he
deposed that accused persons were apprehended from a place
near Karkardooma Court near STD Booth at about 12.10 p.m.
Departure entry was made in the office of PS Special Cell, but he
did not remember its number. No arrival entry was made in
Police Post Karkardooma Court concerning their arrival there.
(xx) PW20 A. R. Arora, Sr. Scientific Officer, CBI, CFSL,
Lodhi Road, deposed that on 05-06-2008, two sealed parcels
were received and he had given them Mark 1 and Mark 2. After
examination, he had given his report Ex. PW20/A.
The witness was not cross-examined by Ld. Amicus
Curiae for accused persons despite having given the opportunity.
(xxi) PW21 HC Lalit Kumar deposed that on 05-06-2008, on the
directions of IO, he had collected two sealed parcels from
MHCM and delivered the same at CFSL, CGO complex, Lodhi
Colony vide RC no. 74/21 along with CFSL form and other
relevant documents.

The witness was cross-examined by ld. Defence counsel
but nothing material came out therein.

(xxii) PW22 SI Vinay Tyagi deposed that on 02-05-2008, he was

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 28 of 63
posted in Special Cell, NDR Lodhi Colony as SI. On that day,
one secret informer came in his office and informed that two
desperate criminals namely Akil Don and Azhar @ Raja Thakur,
members of Anwar Thakur Gang, were involved in Salim
Pehlwan murder case vide case FIR No. 164/08 PS Bhajan Pura.
Both these accused were previously involved in many heinous
cases of murder and dacoity in Delhi, Haryana and other states
and on that day, they were coming to attend Karkardooma Court.
The informer told that if they both would be apprehended, the
murder case of Salim Pehlwan could be solved. He discussed this
information with his senior officers. They directed him to
organize a raid. This information was entered vide DD No. 6.
The team comprising himself, Inspector Subhash Vats, Inps.
Govind Sharma, HC Ram Gopal, HC Sunder Gautam, HC Devi
Dayal and secret informer and some other members left the
office in private car. They were having ammunition and wearing
bullet proof jackets. They reached Karkardooma court at around
11.00 a.m. They alighted in front of main gate of KKD Court and
on the directions of Insp. Govind Sharma, the police party took
its position. He shared this information with five passersby and
asked them to join the raiding party but none of them agreed. At
about 12.05 p.m., the secret informer identified two persons who
were coming out from KKD court and informed that these were
Akil Don (since expired) and Azhar @ Raja Thakur, who was
present in the court that day and correctly identified. The police
party overpowered both those persons. After their apprehension,
they were taken to Special Cell, Lodhi Colony. After
interrogation, they were arrested u/s 41.1 Cr.P.C. The accused
persons Akil and Azhar made their disclosure statements Mark A

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 29 of 63
and B. He arrested both the accused vide arrest memos Mark F
and G. Thereafter, pursuant to the disclosure, the accused Akil
led the police party to his rented accommodation at house of
Kishan Kumar at A-57, Gali no. 2, North Chhaju Pura, Shahdara.
At the presence of Kishan Kumar, the rented room of Akil was
opened and from an almirah in the room, Akil Don took out a
pistol, made in China, 9 mm pistol. It was also scribed on it “only
for army”. On being checked, it was found having 5 live
cartridges. The cartridges and pistol were placed on paper and
their sketches Mark C were prepared. The weapon and the
cartridges were packed in a cloth parcel and sealed with the seal
of VKT and the same was taken into police possession vide Mark
D. He filled up CFSL form. He prepared a rukka and handed
over the same to HC Devi Dayal with the instructions to take it to
Spl. Cell for registration of case. The investigation of the case
was assigned to SI Ashok Kumar who then came at the spot and
he handed over to him custody of accused and case property. At
his instance, SI Ashok Kumar prepared the site plan. He had
prepared pointing out memo Mark E also when accused Akil
pointed out to his rented room. Thereafter, he had prepared
kalandra u/s 41.1 Cr.P.C and submitted before Ld. CMM, Tis
Hazari with the accused persons. The copy of Kalandra along
with DD no. 16 and DD No. 06 along with list of documents and
witnesses were marked as Mark H (Colly). He had informed the
concerned PS about the arrest of both the accused.

He identified the case property i.e. a pistol as Ex. P-1, four
live cartridges and one empty cartridge as Ex. P-2 (colly) to be
the same which were recovered at the instance of Akil Don.

During cross-examination by Ld. Defence counsel, he

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 30 of 63
could not tell the names of passersby who were requested to join
the raiding party. He had not issued any notice u/s 160 Cr.P.C. to
any of those passersby. The recovery was effected at the house
of Kishan, where accused Akil was residing on 02-05-2008 at
around 4:30 pm. He had not recorded statement of Kishan. The
recovery memo of pistol was signed by Kishan and HC Devi
Dayal as witnesses. He did not ask any of the persons residing in
neighbouring houses to join the investigation. Around 20-25
persons had gathered at the place. No notice was served upon the
passersby who had refused to join the raiding team on his
request. The house from where recovery of weapon was effected
was surrounded by so many residential houses. He had not
called any member of RWA at the time of recovery of weapon.
He had not recorded statement of any neighbiour of Kishan
Kumar regarding recovery of weapon. Place of recovery of
weapon falls under jurisprudence of PS Shahdara. He had not
given information at PS Shahdara before going to the house of
Kishan Kumar and after recovery of weapon from there.
(xxiii) PW23 Ct. Subodh deposed that on 30-04-2008, at 3:15 am,

Duty Officer ASI Mahesh Chand handed over him copies of
present FIR for handing over the the same to senior officers i.e.
joint CP, DCP and Ld. MM and he used govt. vehicle bearing no.
DL1SN-3944 for the said purpose.

The witness was cross-examined by ld. Defence counsel
but nothing material came out therein.

(xxiv) PW24 ASI Khagnesh Kumar deposed that on 30-04-2008,

he was posted at P.S. Bhajanpura and deputed at Bhagat Singh
Park Picket. He was on duty from 9 p.m to 9 a.m. At around 11
P.M., he received an information from Duty Officer P.S.

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 31 of 63
Bhajanpura through telephone about information of firing near
C-11, Yamuna Vihar Masjid and SI Hari Singh was already there
and he was also asked to reach there. He went there and found SI
Hari Singh. He found one motorcycle bearing no. DL5SV9631 of
Black Colour Make Bullet, lying on the road. Blood was also
lying on the road. The motorcycle was without leg guard. The tail
light was broken and seat of the motorcycle was also slightly
burnt. SI Hari Singh deputed him for preserving the spot and left
for GTB Hospital. SI Hari Singh returned at the spot alongwith
HC Mushtaq and prepared a tehrir which he handed over to HC
Mushtaq for registration of FIR. HC Mushtaq returned at the spot
from P.S. at 3 a.m. and handed over copy of FIR and original
tehrir to SI Hari Singh. Crime Team which came at the spot,
obtained photographs. The blood soaked concrete was also
peeled off and the blood was also lifted with the help of cotton.
One piece of concrete was also obtained which was without
blood trace. The lifted items were put in a plastic jars and were
put in a cloth pullinda and sealed with seal of HSB and pullindas
were given Sr. No. B2 to 3. After intensive search, one lead piece
of the bullet which was found on the road, was seized by the IO
after putting the same into a pullinda which was sealed with seal
of HSB. He signed the documents as prepared by the IO. The
seizure memo of the exhibits is Ex.PW15/C. The seizure memo
of one lead piece of bullet is Ex.PW15/E. The motorcycle was
seized vide memo Ex.PW15/D.
He identified the case property i.e. lead of the bullet as
Ex.PW15/1; and motorcycle bearing registration no. DL-5SV-
9631 as Ex. P15/2.

During cross-examination by ld. Defence counsel, he

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 32 of 63
affirmed that both sides of road near spot there are residential
houses. Neither he nor other police official had made inquiry
from the persons who were residing in nearby houses where
incident had taken place.

(xv) PW25 HC Nand Kishore deposed that on 15-05-2008, on
the directions of IO, he went to PS Spl. Cell, Lodhi Colony
where MHCM of the said PS handed over 7 pulandas to him
vide RC no. 40/21/08. He deposited the said pulandas at
Malkhana of PS Bhajanpura.

The witness was cross-examined by ld. Defence counsel
but nothing material came out therein.

(xxvi) PW26 HC Sham Lal deposed that on 30-04-2008, he was

posted in Crime Team, NE, as photographer. On receipt of call,
he along with Crime Team officials reached H. No. C-11/206,
Yamuna Vihar, Delhi where SI Hari Singh with staff of PS
Bhajanpura met him at the spot. On the directions of IO, he took
five photographs of the scene of crime and handed over the
positives to IO vide Ex. PW15/B1 to Ex. PW15/B5. He also
brought the negatives of the photographs which were exhibited as
Ex. PW26/A1 to Ex. PW26/A5.

The witness was cross-examined by ld. Defence counsel
but nothing material came out therein.

(xxvii) PW27 HC Mushtaq Ali deposed that on 30.04.2008,
he was posted at PS Bhajanpura. His duty hours were from 08
pm to 8a.m. At about 11 p.m., he alongwith SI Hari Singh went
to C-11/206, Yamuna Vihar Delhi after receiving DD No. 20A.
They found one bullet motorcycle lying on the road and leg
guard was in broken condition and blood stains were found on
road. HC Khagnesh also reached the spot. They came to know

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 33 of 63
that the injured had already been removed to GTB Hospital. He
alongwith SI Hari Singh went to GTB Hospital after leaving HC
Khagnesh at the spot. SI Hari Singh collected MLC of deceased
Salim who was already declared dead by doctors. SI Hari Singh
inspected dead body of Salim and one diary, one DL, PAN card
and two ATM card of banks and Rs.130/- and some photographs
and some papers were recovered from dead body. The same were
taken in possession by SI Hari Singh and prepared memo Ex.
PW27/1 in this regard. The dead body was transported to
mortuary. Thereafter, they both returned back to the spot. No
eyewitness was found at the spot. SI Hari Singh prepared rukka
Ex. PW15/A on DD No. 20A Ex. PW4/A and handed over said
rukka to him for registration of FIR. He went to PS alongwith
said rukka and handed over same to DO for registration of FIR.
He came back at the spot after registration of FIR and handed
over copy of FIR of this case and original rukka to SI Hari Singh
for further investigation. SI Hari Singh lifted the blood on gauze
from earth, and earth control from the spot and kept the same in
plastic containers and sealed with the seal of HSB and seized the
same vide seizure memo already Ex.PW15/C. One bullet lead
was also found on spot, same was kept in plastic container and
sealed with the seal of HSB and seized vide memo Ex.PW15/E.
One motorcycle bearing no. DL 5SV 9631 was also seized from
the spot by the IO vide seizure memo Ex.PW15/D. Thereafter,
they came back to PS and case properties were deposited in
malkhana. Thereafter, he alongwith Insp. Virender Singh went to
the mortuary GTB Hospital where on the request of the Insp.
Virender Singh, PM was conducted on dead body of Salim. After
PM, dead body was handed over to the brother of deceased. After

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 34 of 63
PM, doctors handed over three pulindas in sealed condition with
the seal of hospital alongwith sample seal and Insp. Virender
seized the same vide Ex.PW27/2. Thereafter, they returned to PS
and deposited case property in malkhana. IO recorded his
statement.

He identified the case property i.e. one bullet lead as
Ex.PW15/1.

During cross-examination by Ld. Defence counsel, he
deposed that on one side of place of incident, there is residential
area and on other side there is park. He deposed that till the time,
they had left for hospital, no public witness was examined by SI
Hari Singh and affirmed that when they arrived from the hospital,
they did not meet any public witness.

(xxviii) PW28 HC Rajesh deposed that on 08-05-2008, he
along with Inspector V. K. Singh, Ct. Amit, accused Akil and
Azhar went to Bhagat Singh Park, T-point Yamuna Vihar and at
the instance of accused Akil, one empty cartridge case Ex.
Article P1 was recovered from the drain near the wall. IO
prepared sketch of the said cartridge case vide Ex. PW28/1 and it
was converted into pulanda and sealed with the seal of BA. The
pulanda was seized vide seizure memo Ex. PW22/2. Seal after
used was handed over to him by the IO. Thereafter, they returned
to PS and seized articles were deposited in Malkhana of PS. He
identified accused Azhar in the court.

During cross-examination by ld. Defence counsel, he
deposed that the place from where the recovery was effected was
frequented by public. IO tried to join a few public persons in
investigation but all of them gave their excuses and did not join
the investigation.

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 35 of 63
(xxix) PW29 HC Nathu Ram deposed that on 13-07-2008, he was

posted at PS Bhajanpura and joined investigation with IO
Inspector B.K. Singh, SI Rakesh Yadav, Ct. Lalit and Ct. Jeet Pal
and they reached near Sarai Kale Khan bus stand. At about 5:30
pm, accused Irshad Ali Khan @ Guddu was pointed out by him
and IO arrested him from bus stand vide arrest memo Ex.
PW14/A and his personal search was conducted vide memo Ex.
PW14/B. IO recorded his disclosure statement. On 24-07-2008,
he joined investigation with IO and Ct. Lalit etc. and at about
6:50 pm, accused Rahees Ahmad @ Langra @ Habib was
arrested by the IO from Kardampuri bus stand vide arrest memo
Ex. PW29/1 and his personal search was conducted vide memo
Ex. PW29/2. IO recorded his disclosure statement.

During cross-examination by ld. Defence counsel, he
deposed that at about 5:20 pm, he saw accused Irshad coming
towards ISBT. There was a police post at Sarai Kale Khan ISBT.
They did not give any intimation to said police post about arrival
of their team there. None from the public or any official from
police post were asked to join the proceedings before or after
apprehension of accused Irshad. No public person was called
from nearby area to join the investigation at the time of arrest of
accused.

(xxx) PW30 ASI Devi Dayal deposed that on 02-05-2008, he
was posted at Special Cell, Lodhi Colony, On that day, SI Vinay
Tyagi received secret information that accused persons involved
in the present case would come at Karkardooma Court. After
receiving the above-said information a raiding team comprising
of himself, SI Vinay Tyagi, HC Sudheer and other staff left their
officer to Karkardooma Court. On reaching at Karkardooma

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 36 of 63
Court, they took their position at Main Gate. At about 12 noon,
secret informer, who was with them, pointed out towards two
persons who were coming out from the Karkardooma Court and
at the instance of secret informer they both were apprehended by
us. On inquiry, they revealed their names as Akil @ Don and
Azhar @ Raja Thakur. After inquiry, from them they both were
taken to special staff officer at Lodhi Colony. On reaching there
they both were interrogated and during that course they admitted
their involvement in the present case. Thereafter, the said
persons were arrested by SI Vinay Tyagi u/s 41.1 of Cr. PC vide
arrest memo Mark PW19/ Mark G (of accused Akil @ Don
(since expired) and PW19/ Mark F (of accused Azhar @ Raja
Thakur). During course of interrogation, they both made their
disclosure statement vide Mark A (of accused Akil @ Don since
expired Mark B of accused Azhar @ Raja). Thereafter, both the
accused persons led the police party to north Chajju pura,
Shahdara and accused Akil (since expired) pointed out one house
and got recovered one pistol wrapped in a cloth piece from the
Almirah. The pistol was checked up and on checking its
magazine was found loaded with 5 live cartridges. Thereafter, IO
prepared sketch of the cartridge and the pistol vide Mark
PW19/C. Measurement of the pistol was also conducted/done
and same was written in the sketch itself. The pistol and live
cartridges were sealed in a cloth parcel with the seal of VKT and
parcel was taken into possession vide seizure memo Mark
PW19/D. FSL Form was also filled up and it was also sealed by
the IO. Pointing out memo was also prepared by the IO vide
Mark PW19/E. While producing the abovesaid pistol accused
Akil @Don (since expired) had disclosed that it was the same

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 37 of 63
pistol which was used in the present case. Thereafter, IO had
prepared rukka for registration of the case u/s 25 Arms Act and
he took the said rukka to PS Lodhi Colony Special Cell and case
FIR No. 20/08 was got registered.

The case file bearing FIR NO. 20/08, PS Special Cell, u/s
25/54/59 Arms Act containing the original documents was
brought by Sh. Veer Singh, Judicial Assistant, Record Room
Criminal, Tis Hazari Courts. The arrest memo of accused Aakil
@ Don (since expired) Mark PW9/G was exhibited as Ex.
PW30/A, arrest memo of Azhar @ Raja Thakur Mark PW19/F
was exhibited as Ex. PW30/B; disclosure statement of Aakil @
Don (since expired) Mark A was exhibited as Ex. PW30/C,
disclosure statement of accused Azhar @ Raja Mark B was
exhibited as Ex. PW30/D, sketch of pistol and cartridge Mark
PW19/C was exhibited as Ex. PW30/E, seizure memo marked
PW19/P was exhibited as PW30/F and pointing out memo
marked as PW19/E was exhibited as Ex.PW30/G. He correctly
identified accused Azhar @ Raja Thakur in the court today.

The MHC(M) HC Arun from PS Bhajanpura appeared and
stated that the case property i.e. pistol of the present case had
been destroyed due to fire incident which had taken place in the
maalkhana of PS Bhajanpura on 18.06.2017 and FIR NO. 279/17
u/s 436/427 IPC was registered in this regard.

The witness was cross-examined by ld. Defence counsel
but nothing material came out therein.

HC Arun was examined as CW1 and he deposed that he
was MHCM of PS Bhajanpura since May 2017. The case
property i.e. pistol of the present case was destroyed due to fire
in the Malkhana on 18-06-2017. At that time, ACP Anant

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 38 of 63
Kumar Mittal was working as SHO of PS Bhajanpura. The spot
was also got photographed and inspected through Crime Team.
FIR no. 279/17 u/s 436/427 of IPC was also got lodged in this
regard vide Ex. CW1/A.
(xxxi) PW31 Inspector Rajesh Dogra deposed that on 20-04-

2008, he was posted as in-charge, Mobile Crime Team, NE. On
receipt of call from Control Room, he along with Ct. Shyam Lal,
photographer went to the spot i.e. near C-11/206, main Road
Yamuna Vihar where SI Hari Singh along with staff from PS
Bhajanpura met him. He inspected the spot and found blood
lying there. Ct. Shyam Lal took photographs at the instance of SI
Hari Singh. He prepared scene of crime report Ex. PW31/A and
handed over the same to Inspector Virender Singh.

The witness was cross-examined by ld. Defence counsel
but nothing material came out therein.

(xxxii) PW32 Sh. Devender Kumar, the then CMM, NE, KKD

deposed that on 05-05-2008, he was posted as Link MM of Sh. S.
K. Malhotra, Ld. MM. On that day, one application for
conducting TIP of accused Azhar was marked to him by Link
MM. The accused along with IO had appeared before him and
TIP was fixed for 07-05-2008.

On 07-05-2008, he went to Central Jail no. 7, Tihar for TIP
proceedings where IO along with witnesses Kafil Ahmad and
Naeem met outside the gate of jail no. 7. During TIP
proceedings Ex. PW1/D, the witnesses Kafil Ahmad and Naeem
had correctly identified accused Azhar. On the same day, he had
also conducted TIP proceedings of accused Mohd. Akil @ Don
vide Ex. PW1/C.
On 28-06-2008, the application for judicial TIP of accused

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 39 of 63
Saalim @ Akram @ Santosh and Taslim Ahmad @ Akram was
marked to him. Accused Saalim @ Akram and Taslim Ahmad
refused to participate in the TIP proceedings vide Ex. PW32/A
and Ex. PW32/B.
The witness was not cross-examined by Ld. Defence
counsel despite having given the opportunity.
(xxxiii) PW33 ACP B. K. Singh deposed that on 01.05.2008,
he was posted as Inspector ATO at PS Bhajanpura, Delhi. On
that day, present case was marked to him for investigation after
registration of case. He received the case file from SI Hari Singh
for investigation. He perused the case file and found that dead
body of the deceased was in the mortuary of GTB Hospital.
Thereafter, he alongwith SI Hari and staff went to GTB Hospital
Mortuary. There the identification of the dead body was got
established by him and he recorded the statement of Naeem vide
Ex.PW1/A, statement of Mohd. Arif vide Ex.PW33/A.
Thereafter, he filled up/ prepared the request of postmortem
which is Ex.PW33/B, form 25:35 (1)(b) vide Ex. PW33/C and
got conducted the postmortem on the dead body of the deceased.
After the postmortem, the dead body was handed over its
relatives vide handing over memo Ex.PW1/B. After postmortem,
the doctor handed over three sealed parcels along with one
sample seal to him and he took the same into possession vide
seizure memo Ex. PW27/2. Thereafter, he along with SI Hari
Singh went to the spot i.e C-11, Yamuna Vihar, Delhi where
brother of the deceased Naeem came and disclosed that he was
the eyewitness of the incident in question. Thereafter, he
recorded statement of Naeem under section 161 Cr.P.C.
Thereafter, site plan Ex.PW1/AA was prepared at the instance of

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 40 of 63
Naeem and SI Hari Singh. Thereafter, after relieving Naeem, he
along with SI Hari Singh came back to the PS and he deposited
case property with MHC(M).

On 03.05.2008, an information from Special Cell. Lodhi
Colony was received in the PS that two accused persons namely
Akil @ Don (since expired) and Azhar were arrested by the
Special Cell and they made disclosure statements in that case
regarding their involvement in the present case. He did not
remember the particulars of the case FIR in which above said
accused persons were arrested by Special Cell. Special Cell had
produced the above said accused persons before court concerned
at Tis Hazari in muffled face and after seeking permission from
the court concerned, he had arrested the above said accused
persons in the present case vide their arrest memos Ex. PW15/F
(of accused Azhar) and Ex. PW15/G (of accused Akil Don).
Thereafter, he had moved an application for judicial TIP before
the court concerned of the accused persons vide my application
Ex.PW33/D and the same was fixed for 07.05.2008. On 07.05.08
the judicial TIP proceedings of both the accused persons were
conducted in Tihar Jail vide their TIP proceedings Ex. PW1/D
and Ex. PW1/C. On 08.05.08 both the accused persons were
produced from J/C and he moved an application for Police
custody and they both were remanded for two days P/C. During
police custody, both the accused persons were interrogated vide
their disclosure statements Ex.PW33/E (of Akil @Don) and Ex.
PW33/F (of accused Azhar). Thereafter, accused Akil @ Don led
the police party to MTNL Park and from there he got recovered
one empty cartridge (Khokha) from dried Nali. Thereafter, he
prepared the sketch of the said recovered empty/fired cartridge

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 41 of 63
vide Ex. PW28/1. Thereafter, the said cartridge was sealed with
the seal of BK in a cloth parcel and was taken into possession
vide seizure memo Ex. PW28/2. He also prepared site plan of
recovery of the above said cartridge vide Ex.PW33/G. He
recorded the statement of PWs. Thereafter, they came back to the
PS and deposited the case property with MHC(M) and accused
Akil @ Don was put in the lockup.

On 10.05.2008 the accused persons namely Akil Don and
Azhar were produced before the court concerned and from there
they were sent to J/C. He had got collected the exhibits from
Special Cell Police Station at Lodhi Colony. Delhi through HC
Nand Kishore and same was deposited in Malkhana. He had also
collected the copy of Kalandra under section 41.1 Cr. P.C from
IO of Special Cell Police Station as mark PW33/H(running into
11 pages including the disclosure of Akil (since expired)
Ex.PW30/C, disclosure statement of accused Azhar Ex. P30/D,
arrest memo of accused Azhar Ex. PW30/B, arrest memo of
accused Akil already Ex. PW30/A). He had also collected the
photocopies of documents from the IO of case FIR No. 20/08
u/s.25 Arms Act of PS Special Cell, Lodhi Colony, Delhi and the
photocopies of the seizure memo of pistol and cartridge
recovered from accused Akil is Ex PW30/F, sketch of the pistol
Ex. PW30/E and pointing out memo made by accused Akil
Ex.PW30/G. The call details of the mobile phones of accused
Akil, Saleem, Guddu Chaudhary and Azhar were collected by
him vide Ex. PW7/A, Ex. PW7/B and Ex. PW6/A-1, Ex. PW6/A-
2, Ex.PW6/A- 3. Ex. PW6/A-4, Ex. PW6/A-5 and Ex. PW6/A-6.
The exhibits were got deposited with CFSL, Lodhi Colony and
FSL Rohini. He recorded the statements of police officials who

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 42 of 63
took the exhibits to CFSL and FSL.

On 23.06.2008, he received information from Special Cell
regarding arrest of two accused persons namely Tasleem and
Saleem in case FIR No. 35/08 and FIR No. 34/08, U/s. 25 Arms
Act, PS Special Cell, Lodhi Colony, Delhi. The said information
was reduced into writing vide DD No. 24B at PS Bhajanpura
vide Ex. PW33/1. Thereafter, he had collected the documents
regarding the arrest, disclosure of accused Tasleem and Salim
from the IO of the Special Cell, Lodhi Colony who arrested them
in case FIR Nos. 34/08 and 35/08 under section 25 Arms Act.
Photocopy of the arrest memo of accused Salim is mark
B/PW16; his personal search memo is mark C/PW16 and
disclosure statement of accused Salim @Akram is mark
A/PW16. Thereafter, he moved an application before the court
concerned for seeking permission to arrest accused persons and
the same was allowed. Thereafter, on 27.06.2008, accused
persons namely Tasleem and Salim were arrested by him in Tihar
Jail vide their arrest memos Ex. PW13/A (of accused Tasleem)
and Ex. PW13/B (of accused Salim). They both were
interrogated and during that course they made disclosure
statements Ex. PW13/C (of accused Tasleem) and Ex. PW13/D
(of accused Salim).

On 28.06.2008, both the accused persons were produced
from J/C in muffled faces and he had moved an application for
conducting their judicial TIP in the court concerned and both the
accused persons had refused to participate in the same vide
proceedings Ex.PW32/A and Ex. PW32/B. On the same day,
both the accused persons were taken on two days Police Remand.
During Police remand, they both were interrogated in the PS and

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 43 of 63
they both again made their disclosure statements on 30.06.2008.
The disclosure statement of accused Salim is Ex. PW12/A and
disclosure statement of Tasleem is Ex. PW12/B. No
incriminating material could be recovered at the instance of both
the accused persons during Police remand. Thereafter, both the
accused persons were produced before the court concerned.

On 13.07.2008, Insp. Vijay Pal Singh from Special Staff
North East District sent SI Rakesh Yadav and some other staffs
to PS Bhajanpura along with DD No. 3 Ex. PW33/J which was
about receiving information about Guddu Chaudhary.

Thereafter, a raiding team comprising himself, SI Rakesh
Yadav(Special Staff) Ct. Nathu Ram, Ct. Lalit and other staffs,
who were accompanied SI Rakesh Yadav, was constituted.
Thereafter, the raiding team left the PS for Sarai Kale Khan, Bus
Terminal. On reaching there, the members of the raiding party
took their positions at different places. At about 5.30 PM,
accused Guddu Chaudhary was apprehended at the instance of
Ct. Nathu Ram when he was coming from the side of
Nizamuddin. Thereafter, accused Irshad Ali @ Guddu
Chaudhary was arrested vide arrest memo Ex.PW14/A and his
personal search was conducted vide memo Ex.PW14/B. During
the course of interrogation, accused Guddu Chaudhary made
disclosure statement vide Ex. PW14/C. Thereafter, he was
brought to the PS and on the next day, he was produced before
the court concerned. From there he was remanded to J/C,
He further deposed that on 24.07.2008, he received secret
information about co-accused Rahis @ Langda. The said
information was reduced into writing vide DD no. Thereafter, on
the basis of the said secret information a raiding party comprising

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 44 of 63
himself, Ct. Nathu Ram, Ct. Lalit and other staff members was
constituted. Thereafter, the raiding team left the PS and reached
at Kardampuri Bus Stand and took positions at different places.
At about 6.50 PM, Ct. Lalit pointed out towards a person, who
was coming from Mauzpur side. He was apprehended and on
being inquired, he revealed his name as Rahis@ Langda.
Thereafter, accused Rahis @ Langda was arrested vide arrest
memo Ex. PW29/F and his personal search was also conducted
vide memo Ex. PW29/Z. Accused was interrogated and he made
disclosure statement Ex. PW33/K. Thereafter, accused Rahis @
Langda was brought to the PS in muffled face and he was put in
the lockup and on the next day, he was produced before the court
concerned in muffled face. He had moved an application for
judicial TIP Ex. PW33/L of accused Rahis @ Langda but he
refused to participate in the same. Thereafter, accused Rahis was
obtained on two days police remand from the court concerned.
During the police custody/ police remand, accused was
interrogated on 26.07.08 in the PS and he made disclosure
statement Ex. PW33/M. No incriminating material could be
recovered at the instance of accused Rahis @ Langda and
thereafter, he was produced before the court concerned and from
there he was remanded to J/C. He had recorded the statements of
PWs. He had also collected the FSL result from MHC(M)
regarding two FSL results and these were filed in the court with
main charge-sheet which was prepared qua accused persons
namely Akil Don, Azhar, Tasleem and Salim. One FSL report is
Ex. PW20/A. Other FSL Reports are Ex. PW33/N and Ex.
PW33/O.
On 25-06-2008, the spot was got inspected by him through

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 45 of 63
SI Mukesh Kumar Jain, Draftsman and thereafter, he had
collected the scaled site plan Ex. PW11/A from him. He had also
moved an application Ex. PW33/P addressed to Dr. Arvind
Kumar, who conducted the Postmortem regarding seeking
clarification about the fact that as to whether the injuries caused
to the victim/deceased was sufficient to cause death in normal
course and the doctor opined that injury No.1 mentioned in the
postmortem Report was sufficient to cause death in ordinary
course of nature. The said application was endorsed by the
concerned doctor vide endorsement Ex. PW33/Q. He identified
the accused persons in the court. He also identified report of
MHCM regarding destruction of case property as Ex. PW33/R;
copy of FIR as Ex. PW33/S.
During cross-examination by Ld. Defence counsel, he
deposed that he did not ask any public witness to join the
proceedings at Sarai Kale Kahn. He did not remember whether
any verification was done by him from PW Naeem as to whether
accused Irshad was present at the graveyard on 01-05-2008 at
mentioned in the disclosure statement of accused Irshad dated
13-07-2008. He had examined one Imran who took deceased to
the hospital. He denied that no such Imran was examined by
him.

STATEMENT OF ACCUSED

05. After completion of prosecution evidence, the statement of
accused persons were recorded under Section 313 Cr.P.C.
wherein incriminating facts emerging from testimony of the
prosecution witnesses were put to the accused persons, which
were denied by them. All accused except accused Irshad did not
opt to lead defence evidence. Accused Irshad @ Guddu

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 46 of 63
Chaudhary examined four witnesses in his defence.

DEFENCE EVIDENCE

06. (i) DW-1 Ct. Pawan brought the copy of FIR no. 190/2000
u/s 307/34, PS Hauz Qazi and exhibited the same vide Ex.
DW1/A. As per the said FIR, the name of accused was
mentioned therein is Sheikh Naeem s/o Sheikh Kallan r/o H. No.
105, Gali no. 3, Kardampuri, Shahdara, Delhi, at Sl. no. 3.

During cross-examination by ld. Addl. PP for State, he
deposed that he was not the author of the above-said record
brought by him.

(ii) DW-2 ASI Sanjay Kumar is the MHCR of PS
Shahdara. He brought FIR register containing three FIR bearing
no. 423/97 u/s 384/341/34 of PS Shahdara; FIR no. 181/08 u/s
307/34 of IPC of PS Shahdara and FIR no. 19/2009 u/s 3(2) and
(4) of MCOCA Act. All were registered against accused
Naeem. He exhibited the said FIR vide Ex. DW2/A to Ex.
DW2/C.
During cross-examination by ld. Addl. PP for State, he
deposed that he was not the author of the above-said record
brought by him.

(iii) DW-3 HC Ramesh Chand was the MHCR of PS
Seelampur. He brought the original FIR register containing FIR
no. 462/05 u/s 307; FIR no. 298/08 u/s 302/365; FIR no. 357/06
u/s 302 of IPC and FIR no. 261/08 u/s 302 of IPC, all of PS
Seelampur. He exhibited the said FIR vide Ex. DW3/A to Ex.
DW3/D.
During cross-examination by ld. Addl. PP for State, he
deposed that he was not the author of the above-said record

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 47 of 63
brought by him.

(iv) DW-4 HC Hitesh Joshi brought original FIR register
containing FIR no. 296/98 u/s 302 of IPC, PS Mukherjee Nagar
which was registered against Naeem s/o Kallan Khan. He
exhibited the copy of FIR as Ex. DW4/A.
The witness was not cross-examined by Ld. Addl. PP for
State despite having given the opportunity.

FINAL ARGUMENTS

07. This court has heard has heard the arguments and perused
the record.

It is submitted by Sh. Shikhar Mahajan, Ld. Addl. PP for
the State that the testimony of all the prosecution witnesses is
sufficient to bring home the guilt of accused persons for the
offence punishable u/s 302/120B/149 of IPC. The present case is
based on the testimony of eyewitnesses i.e. PW1 Naeem
Pahalwan and PW2 Kafil. PW1 Naeem Pahalwan identified all
the accused persons in his deposition and he had narrated the
specific role of each accused in his deposition dated 28-02-2009.
However, after 6-7 months, he turned hostile in his cross-
examination qua all the accused persons. It is submitted that
cross-examination of PW1 Naeem Pahalwan would not cause
any dent in the his testimony dated 28-02-2009 in view of
judgment of Hon’ble Supreme Court in the case titled Khujji @
Surendra Tiwari Vs. State of MP. PW2 Kafil who had identified
accused Guddu, Azhar and Rahees in his deposition. Apart from
the testimonies of eye-witnesses, the case of the prosecution is
also fortified from the ballistic examination report. During
investigation, one empty fired cartridge case was recovered from
a dried nala at the instance of accused Akil and one country made

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 48 of 63
pistol was recovered from the possession of accused Akil @ Don
(since expired). From the ballistic examination report, empty
cartridge case recovered from the spot is found to be matching
with the weapon of offence i.e. country made pistol recovered
from the possession of accused Akil. One pistol was also
recovered from the possession of accused Tasleem. Call detail
records of accused Akhil @ Don, Guddu and Azhar confirms
their presence at the spot. There is no major contradiction or
discrepancy in the version of prosecution witnesses got examined
by the prosecution.

On the other hand, Ld. Counsel for accused persons Azhar
and Saalim has submitted that there are material discrepancies
and contradictions in the statements of prosecution witnesses and
in particular, PW1 Naeem Pahalwan and PW2 Kafil. As per
version of PW1, he was initially unaware of the identity of
victim, yet he went to the hospital to ascertain the identity of
victim, which shows his unnatural conduct. Further, PW1 did
not even tell the police about the incident in the hospital taking
excuse of being perplexed. PW1 has claimed to have signed his
statement but no such signed statement was found on record.
PW1 did not claim that PW2 had also seen the incident. Nor
PW1 made any PCR call about the incident. He even tried to
avoid his cross-examination and his conduct was duly recorded
by the court at the time of his cross-examination dated 12-08-
2009. PW1 is a person of poor moral fiber and that he was
already involved in about 11 criminal cases. In his cross-
examination dated 08-10-2009, he took a somersault and falsified
the prosecution case.

PW1 had categorically stated that PW2 was not with him

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 49 of 63
on 30-04-2008 and did not witness any such incident and they
both were in native village since morning of 30-04-2018. During
his cross-examination, PW2 has categorically stated that he did
not identify any of the person but on the signaling, one of the
participant of TIP, he identified accused Azhar, as such, the TIP
was defective. PW2 did not identify accused Saleem in the court.
PW2 even did not tell the police officer present at the spot about
witnessing any incident or chasing the vehicle of assailants.
During cross-examination, PW2 categorically stated that he only
identified accused Guddu and Rahees in the court during his
examination in chief dated 28-02-2009. The postmortem report
Ex. PW8/A cannot be read in evidence as it was prepared by
Junior Specialist. CDRs of mobile no. 9999214576 and
9953821157 cannot be read in evidence as no supporting
certificate u/s 65B of Indian Evidence Act was brought on
record. PCR form was not filed by the IO, which is a serious
lapse in the investigation. The Prosecution has also failed to
examine material witness Imran, whose name was revealed
during cross-examination of PW33, as the person who took the
deceased to hospital.

Similarly, Ld. Counsel for other accused persons also
argued that there are several discrepancies and contradictions in
the testimonies of eye-witnesses- PW1 Naeem Pahalwan and
PW2 Kafil. Many criminal cases have already been registered
against them. DW1 to DW4 have proved the details of various
criminal cases registered against PW1 Naeem Pahalwan and
PW2 Kafil has admitted his involvement in many criminal cases
during his cross-examination.

It is urged that accused persons are entitled for benefit of

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doubt in the prosecution case and therefore, it is prayed that
accused persons be acquitted.

In support of his arguments, Ld. Defence counsel relied
upon the following authorities:

1. Raj Kumar Vs. The State (NCT of Delhi), 2011 [4] JCC 2818

2. Ankush Maruti Shinde and Ors. Vs. State of Maharashtra, Crl.

Appeal no. 1008-09/07 and State of Maharashtra Vs. Ambadas
Laxman Shinde and Ors., and Crl. Appeal no. 881-882/09 of
Hon’ble Supreme Court of India;

3. State (Govt. of NCT of Delhi) Vs. Mohd. Raja, 2016 (5) LRC
403 (Del);

4. Riaz Ali Vs. State (Govt. of NCT) Delhi, 2012[2] JCC 1092;

5. Tanviben Pankajkumar Divetia Vs. State of Gajarat, 1997 SCC
(Cri) 1004;

6. Raj Kumar Vs. The State (NCT of Delhi), Rajender Kumar Vs.
The State (NCT of Delhi) and Murari Vs. The State (NCT of
Delhi), 2011 [4] JCC 2818;

7. Rameshwar Kumar Vs. Union of India & Ors. 2018(1) LRC
587(Del);

8. Sunder Lal Vs. State, 1990 (2) CC Cases 236(HC);

9. State (Delhi Admn.) Vs. Ashok Kumar, 2006[1] JCC 137;

10. Ten Singh Vs. State (Delhi Admn.), 1995 (3) CC Cases 297
(HC);

11. Rajesh @ Sarkari & Anr. Vs. State of Haryana, Crl. Appeal
no. 1648/19 of Supreme Court of India;

12. Suryavir Vs. State of Haryana, Crl. Appeal no. 177/22 of
Supreme Court of India.

FINDINGS OF THIS COURT

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08. Before analyzing the evidence led by the Prosecution in
the present case, this court deems it proper to refer to some
provisions of law and citations of Superior courts, which are
found to be applicable to the facts of the present case.

300. Murder–Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused is
done with the intention of causing death, or –

Secondly–If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of
the person to whom the harm is caused, or–

Thirdly–If it is done with the intention of causing bodily injury
to any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or–
Fourthly–If the person committing the act knows that it is so
imminently dangerous that is must, in all probability, cause
death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid.

302. Punishment for murder-Whoever commits murder shall be
punished with death, or [imprisonment for life], and shall also
be liable to fine.

120B. Punishment of criminal conspiracy.–(1) Whoever is a
party to a criminal conspiracy to commit an offence punishable
with death, 1[imprisonment for life] or rigorous imprisonment
for a term of two years or upwards, shall, where no express
provision is made in this Code for the punishment of such a
conspiracy, be punished in the same manner as if he had abetted
such offence.

(2) Whoever is a party to a criminal conspiracy other than a
criminal conspiracy to commit an offence punishable as
aforesaid shall be punished with imprisonment of either
description for a term not exceeding six months, or with fine or
with both.]

149. 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 guilty of that offence.

09. It is pertinent to mention here that it has been held in
case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 by the
Hon’ble Punjab & Haryana High Court that:-

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“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 be improbable or lacks credibility the
benefit of doubt necessarily has to go to the accused.”

10. In Harendera Narain Singh vs. State of Bihar, AIR 1991
S.C. 1842, their Lordships of the Hon’ble Supreme Court had
reiterated the well-known principle of the criminal jurisprudence
as:

“……. The basic rule of criminal jurisprudence is that if two
views are possible on the evidence adduced in a case of
circumstantial evidence, one pointing to the guilt of the accused
and the other to his innocence, the Court should adopt the latter
view favourable to the accused…..”

11. In Data Xiva Naique Desai and Another vs. The State, AIR
1967 Goa, Daman and Diu 4, the Hon’ble Supreme Court
reiterated the well-known principles of the criminal jurisprudence
which are reproduced as under:

“The learned Judge would be advised to observe the following
general rules when he is dealing with the serious question of the
guilt or innocence of persons charged with crime: (i) The onus
of proving everything essential to the establishment of the
charge against the accused lies on the prosecution; (ii) The
evidence must be such as to exclude to a moral certainty every
reasonable doubt of the guilt of the accused; (iii) In matter of
doubt it is safer to acquit than to condemn; for it is between
several guilty persons should escape than that one innocent
person suffer; and (iv) the hypothesis of delinquency should be
consistent with all the facts proved.”

12. In Swarn Singh Ratan Singh vs. State of Punjab, AIR 1957
SC 637, it was held by the Hon’ble Apex Court that,
“in criminal cases mere suspicion, however, strong, cannot take
the place of proof. The Court must also take into consideration
that an accused is presumed to be innocent till charges against
him are proved beyond reasonable doubt. Mere suspicion,
however, strong it may be, cannot take the place of legal proof.”

13. Moreover, in Kali Ram vs. State of Himachal Pradesh,

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AIR 1973 SC 2773, the Apex Court had observed as follows:-

“Another golden thread which runs through the web of the
administration of justice in criminal cases is that if two views
are possible on the evidence adduced in the case, one pointing to
the guilt of the accused and the other to his innocence, the view
which is favourable to the accused should be adopted. This
principle has a special relevance in cases wherein the guilt of the
accused is sought to be established by circumstantial evidence.
Rule has accordingly been laid down that unless the evidence
adduced in the case is consistent only with the hypothesis of the
guilt of the accused and is inconsistent with that of his
innocence, the court should refrain from recording a finding of
guilt of the accused. It is also an accepted rule that in case the
court entertains reasonable doubt regarding the guilt of the
accused, the accused must have the benefit of that doubt. Of
course, the doubt regarding the guilt of the accused should be
reasonable: it is not the doubt of a mind which is either so
vacillating that it is incapable of reaching a firm conclusion or
so timid that it is hesitant and afraid to take things to their
natural consequences. The rule regarding the benefit of doubt
also does not warrant acquittal of the accused by resort to
surmises, conjectures or fanciful considerations. Although the
benefit of every reasonable doubt should be given to the
accused, the courts should not at the same time reject evidence
which is ex-facie trustworthy on grounds which are fanciful or
in the nature of conjectures.

The guilt of the accused has to be adjudged not by the fact that a
vast number of people believe him to be guilty but whether his
guilt has been established by the evidence brought on record.
Indeed, the courts have hardly any other yardstick or material to
adjudge the guilt of the person arraigned as accused. Reference
is sometimes made to the clash of public interest and that of the
individual accused. The conflict in this respect, in our opinion, is
more apparent than real.

It is no doubt true that wrongful acquittals are undesirable and
shake the confidence of the people in the judicial system, much
worse, however, is the wrongful conviction of an innocent
person. The consequences of the conviction of an innocent
person are far more serious and its reverberations cannot but be
felt in a civilized society. All this highlights the importance of
ensuring as far as possible, that there should be no wrongful
conviction of an innocent person. Some risk of the conviction of
the innocent, of course, is always there in any system of the
administration of criminal justice. Such a risk can be minimized
but not ruled out altogether.”

14. Perusal of record reveals that none of the accused was
apprehended at the spot on the date of incident i.e. on the

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intervening night of 30-04-2008. Nor there is mention of any
eye-witness or accused in the FIR. The FIR was registered
merely on the basis of DD no. 20A (Ex. PW4/A) whereby an
information was received regarding running of boys after firing.
The prosecution has got examined two eye-witnesses namely
PW1 Naeem Pahalwan and PW2 Kafil. Both PW1 and PW2 are
interested witnesses-PW1 Naeem Pahalwal is the real brother of
deceased Saleem Pahalwan and PW2 Kafil was also related to
the deceased being member of Congress Party and he was also
running his office on the ground floor of house of deceased
Saleem. PW2 Kafil admitted in his cross-examination that he
was on visiting terms with the deceased Saleem. He also
admitted that he was co-accused in FIR no. 40/01, PS Welcome
wherein deceased Salim Pahalwan was co-accused with him.
Thus, over-zealousness on their part could not be ruled out.

15. Now, it is to be seen as to how both the above-stated eye-
witnesses approached the IO of the present case. In this regard, it
is observed that both PW1 and PW2 had approached the IO after
the cremation of deceased Saleem Pahalwan at graveyard. PW1
Naeem Pahalwan claimed that he met the IO at the graveyard
whereas PW2 Kafil claimed that he went to the PS on 01-05-
2008 at about 7/ 7:30 pm for giving his statement. In their
respective examination in chief, both PW1 and PW2 had claimed
to have seen the incident of firing upon a motorcyclist by the
occupants of Maruti Zen car. However, despite having seen the
incident, they neither made any 100 number call nor had reported
the incident at the police station. On the same day, they had
identified the deceased at GTB hospital. Despite having been
aware of the fact that the deceased was known to them, both

FIR No. 164/08 State Vs. Mohd. Akil @ Don Etc. Page No. 55 of 63
PW1 and PW2 did not try to report the incident to the police. In
his cross-examination dated 08-10-2009, PW1 Naeem Pahalwan
had turned hostile. He admitted that on the date of incident i.e.
30-04-2008, he was away to his native village Ruhasa, District
Meerut, UP and also admitted that he had not witnessed any
incident with his brother Saleem. He also claimed that PW2
Kafil was also not with him on 30/04/2008. He admitted that the
earlier statement given by him in the court was given under the
threats extended by SI Vinay Tyagi. SI Vinay Tyagi used to
threat him that if he would not speak as dictated by him, he will
be falsely implicated by him in the MCOCA case. PW1 Naeem
stood by his stand even during his re-examination conducted by
Ld. Addl. PP for State on subsequent date i.e. on 18-11-2009.
Similarly, testimony of PW2 Kafil is not worthy of credence.
PW2 claimed that on the date of incident, he had asked PW
Naeem to sit on his motorcycle when he was on his way to Noor-
Elahi area for some personal work. However, nowhere he had
revealed the place from where he picked PW1 Naeem Pahalwan
before proceeding to the place where the incident took place. He
also claimed to have chased the Maruti Zen car, being driven by
the assailants. He was unable to see the occupants of the car but
he could not reveal the registration number of the said Maruti
Zen car. During investigation, PW2 Kafil had identified accused
Azhar and accused Akil during TIP proceedings vide Ex. PW1/C
and Ex. PW1/D. However, in his examination in chief dated 28-
02-2009, PW2 failed to identify accused Akil despite having
been pointed by Ld. Addl. PP for State in his cross-examination.
As regards the TIP of accused Azhar, he claimed that he had
identified accused Azhar during TIP proceedings on the signaling

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of one of the participants of TIP. In his examination in chief,
PW2 Kafil claimed that the accused Guddu was identified by
PW1 Naeem first, who told him that the driver of the car was
Guddu Vakil and thereafter, he identified him. However, this
material fact was not revealed by him in his statement Ex.
PW/DA. Since PW1 Naeem had already turned hostile and
therefore, identification of accused Guddu and Rahees by PW2 is
also doubtful particularly in light of the fact that both PW1 and
PW2 were present together at the spot as per the case projected
by the prosecution. The IO of the present case was examined as
PW33 ACP B. K. Singh. In his examination-in-chief, which was
conducted on 20-07-2019, 21/09/2019 and 08-01-2020, he
claimed that he met the brother of deceased PW1 Naeem when
he visited the spot after the conclusion of postmortem of
deceased. However, nowhere he had claimed as to when another
eye-witness PW2 Kafil approached him. The IO had bothered to
collect the Call details records of mobile phones of accused
persons, however, he had not collected the call detail records of
mobile phone of both PW1 and PW2 despite the fact that he was
aware of the fact that both PW1 and PW2 could have reported
the incident on the date of incident itself. PW2 has admitted in
his cross-examination that he was carrying mobile phone at the
relevant time. Nor the IO had made any effort to ascertain the
reason from both PW1 and PW2 about delay in reporting the
incident. Both PW1 and PW2, in their respective depositions,
did not offer any cogent explanation as to why they had not
reported the incident to the police on the date of incident itself.
Further, PW2 Kafil Ahmad has admitted in his cross-examination
that neither he nor Naeem had informed the family members

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about the death of Saleem Pahalwan. PW2 also affirmed that he
did not reveal the incident to the police officials present at
various points on way to the hospital. In these circumstances,
this court is of the opinion that presence of PW1 Naeem
Pahalwan and PW2 Kafil at the spot is doubtful and the
testimony of PW2 Kafil does not appear to be trustworthy in
view of the contradictions and discrepancies already noted
hereinabove. PW2 Kafil has admitted in his cross-examination
dated 13-04-2009 that he was already involved in many other
criminal cases i.e. FIR no. 424/91, PS Shahdara, FIR no. 40/01,
PS Welome, FIR no. 40/08, PS Special Cell, Lodhi Colony, FIR
no. 70/07, PS Shahdara, FIR no. 399/93, PS Shahdara, FIR no.
175/94, PS Shahdara, FIR no. 101/94, PS Shahdara, FIR no.
202/97, PS Gokalpuri, FIR no. 334/96, PS Shahdara. He has also
admitted that in case FIR no. 334/96, PS Shahdara and FIR no.
40/01, PS Welcome, the deceased Saleem Pahalwan was co-
accused with him. Both PW1 Naeem Pahalwan and PW2 Kafil,
in the opinion of this court, cannot be considered to be ‘sterling
witness’, which the prosecution is supposed to present.

16. At this stage, it is appropriate to refer the case of Rai
Sandeep Vs. State of NCT of Delhi, Crl. Appeal no. 2486/09
decided on 07-08-2012, wherein it was held by Hon’ble Supreme
Court of India that:

“In our considered opinion, the ‘sterling witness’ should be of a
very high quality and caliber whose version should, therefore, be
unassailable. The Court considering the version of such witness
should be in a position to accept it for its face value without any
hesitation. To test the quality of such a witness, the status of the
witness would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness. What
would be more relevant would be the consistency of the
statement right from the starting point till the end, namely, at the
time when the witness makes the initial statement and ultimately

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before the Court. It should be natural and consistent with the
case of the prosecution qua the accused. There should not be
any prevarication in the version of such a witness. The witness
should be in a position to withstand the cross-examination of
any length and strenuous it may be and under no circumstance
should give room for any doubt as to the factum of the
occurrence, the persons involved, as well as, the sequence of it.
Such a version should have co-relation with each and everyone
of other supporting material such as the recoveries made, the
weapons used, the manner of offence committed, the scientific
evidence and the expert opinion. The said version should
consistently match with the version of every other witness. In
can even be stated that it should be akin to the test applied in the
case of circumstantial evidence where there should not be any
missing link in the chain of circumstances to hold the accused
guilty of the offence alleged against him. Only if the version of
such a witness qualifies the above test as well as all other similar
such test to be applied, it can be held that such a witness can be
called as a ‘sterling witness’ whose version can be accepted by
the Court without any corroboration and based on which the
guilty can be punished. To be more precise, the version of the
said witness on the core spectrum of the crime should remain
intact while all other attendant materials, namely, oral,
documentary and material objects should match the said version
in material particulars in order to enable the Court trying the
offence to rely on the core version to sieve the other supporting
materials for holding the offender guilty of the charge alleged.”

17. As per chapter 22 rule 49 of the Punjab Police Rules it is
necessary to record DD Entry of arrival and departure of the
police official. Chapter 22 Rule 49 of Punjab Police Rules, 1934,
is reproduced as under:-

”22.49 Matters to be entered in Register No. II The
following matters shall, amongst others, be entered :-

(c) The hour of arrival and departure on duty at or from a
police station of all enrolled police officers of whatever rank,
whether posted at the police station or elsewhere, with a
statement of the nature of their duty. This entry shall be
made immediately on arrival or prior to the departure of the
officer concerned and shall be attested by the latter
personally by signature or seal.

Note :- The term Police Station will include all places such
as Police Lines and Police Posts where Register No. II is
maintained.

In the present case, the above said provision appears to

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have not been complied with by prosecution. The relevant entry
regarding receipt of secret informations, movement of police
officials at various places visited by them while effecting
recovery of incriminating articles during the investigation of the
present case has not been proved on record and even the DD
Writer was not examined and no explanation is given as to why
the said DD Writer is not made witness in the present case.

18. At this juncture, it would be relevant to refer to a case law
reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon’ble
Delhi High Court

“wherein it has been observed that if the investigating
agency deliberately ignores to comply with the provisions of
the Act the courts will have to approach their action with
reservations. The matter has to be viewed with suspicion if
the provisions of law are not strictly complied with and the
least that can be said is that it is so done with an oblique
motive. This failure to bring on record, the DD entries
creates a reasonable doubt in the prosecution version and
attributes oblique motive on the part of the prosecution.”

In the present case, the above said provision appears to
have not been complied with by prosecution.

19. Perusal of cross-examination of investigating police
officials also indicates that public witnesses were also available
at the time of arrest/ effecting the recovery of incriminating
articles from the possession of accused persons.

20. The IO ACP B. K. Singh (PW33) admitted in his cross-
examination that he did not ask any public witness to join the
proceedings at Sarai Kale Khan. As per testimony of PW1 and
PW2, it is apparent that place of incident is a habitable area. No
efforts have been made by the IO to inquire about the incident
from any public person in the vicinity of the place of incident.

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No cogent explanation is furnished as to why no independent
public person was joined in the investigation despite their
availability. In a case law reported as Anoop Joshi Vs. State, 1992
(2) C.C. Cases 314 (HC), Hon’ble High Court of Delhi has observed
as under:

”18. It is repeatedly laid down by this Court that in such
cases it should be shown by the police that sincere efforts
have been made to join independent witnesses. In the present
case, it is evident that no such sincere efforts have been
made, particularly when we find that shops were open and
one or two shop-keepers could have been persuaded to join
the raiding party to witness the recovery being made from
the appellant. In case any of the shopkeepers had declined to
join the raiding party, the police could have later on taken
legal action against such shopkeepers because they could not
have escaped the rigours of law while declining to perform
their legal duty to assist the police in investigation as a
citizen, which is an offence under the IPC”.

21. In Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69,
the Hon’ble Punjab & Haryana High Court held as under:-

“It is well settled principle of the law that the Investigating
Agency should join independent witnesses at the time of
recovery of contraband articles, if they are available and their
failure to do so in such a situation casts a shadow of doubt on
the prosecution case. In the present case also admittedly the
independent witnesses were available at the time of recovery but
they refused to associate themselves in the investigation. This
explanation does not inspire confidence because the police
officials who are the only witnesses examined in the case have
not given the names and addresses of the persons contacted to
join. It is a very common excuse that the witnesses from the
public refused to join the investigation. A police officer
conducting investigation of a crime is entitled to ask anybody to
join the investigation and on refusal by a person from the public
the Investigating Officer can take action against such a person
under the law. Had it been a fact that he witnesses from the
public had refused to to join the investigation, the Investigating
Officer must have proceeded against them under the relevant
provisions of law. The failure to do so by the police officer is
suggestive of the fact that the explanation for non-joining the
witnesses from the public is an after thought and is not worthy
of credence. All these facts taken together make the prosecution
case highly doubtful”.

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22. It has been held by Hon’ble Supreme Court of India in
case of Sans Pal Singh Vs. State of Delhi, AIR 1999 SC 49 that,
“It would have been a different matter altogether had there been
no public witness available or none was willing to associate.
Here, as said before, public witnesses were available but no
explanation on these lines is forthcoming. Thus, we got to the
view that it would be unsafe to maintain the conviction of the
appellant for the offences charged. We, therefore, order his
acquittal”.

23. Apart from the testimony of eyewitnesses, the prosecution
has placed reliance upon the call details records of accused Akil,
Saleem and Guddu. It is claimed that as per the CDRs of mobile
phones of accused Akil, Saleem and Guddu, they were found
present at the spot at the time of incident. It is further claimed
that accused persons were using mobile phone wherein the SIMs
were issued in the name of some other persons. However, no
efforts have been made by the IO to join the persons in whose
names the SIMs were registered in the investigation of the
present case. Nor any effort has been made by the IO to analyze
the call details record and to present before the court the fact that
the accused persons were interacting with each other through
mobile phones at any time prior to the date of incident. It is well
settled that conviction can not be based merely on the basis of
call detail records, which can only be used for the purpose of
corroboration. Recently, it has been held by Hon’ble High court
of Delhi in case titled Azad @ Gourav vs. State of GNCT of
Delhi & Anr., 2023 LiveLaw (Del) 274 that,
“CDR data may be an important and effective piece of evidence which
may facilitate and assists courts in ascertaining the presence of
different participants in commission of an offence including the
complainant and proposed accused at one particular place or location
which may be their presence at or near the place of occurrence.
However, CDR data can only be taken as supporting or corroborative
piece of evidence and conviction cannot be made solely on basis of

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CDR data”

24. Similarly, it is well settled that refusal to participate in TIP
does not ipso-facto lead to the guilt of the accused. Reference:

Rajesh @ Sarkari Vs. State, 2020 (4) RCR (Cr.) 818 SC and Ten
Singh Vs. State, 1995 (3) CC Cases 297 Delhi.

No efforts have been made by the IO to examine the PCR
caller, who made the 100 number call resulting in registration of
DD no. 20A (Ex.PW4/A), for the reasons best known to him.
DECISION OF THE COURT

25. It is well settled that it is the duty of the prosecution to
prove the guilt of the accused persons beyond reasonable doubt.
Therefore, on the basis of the material available on the record,
the case of the prosecution becomes doubtful and the benefit of
doubt certainly goes in favor of the accused persons. The
prosecution has failed to prove its case beyond all reasonable
doubts against the accused persons. Accordingly, taking into
consideration the facts and circumstances of the case, all accused
persons namely Azhar @ Raja Thakur, Tasleem Ahmed @
Akram, Saalim @ Akram @ Santosh, Irshad Khan @ Guddu
Chaudhary @ Wakeel and Rahis Ahmad @ Langda @ Arshad @
Habib @ Rahisuddin are hereby acquitted of the charges
punishable u/s 120B/302/149. File be consigned to record room
after compliance of section 437A of Cr.P.C.

ANNOUNCED IN THE OPEN COURT
On 21-12-2024               PANKAJ                      Digitally signed by PANKAJ
                                                        ARORA

                                        ARORA           Date: 2024.12.24 16:28:12
                                                        +0530



                               (PANKAJ ARORA)
                 ADDL. SESSIONS JUDGE-04: NORTH-EAST/
                            KARKARDOOMA/21-12-2024.




FIR No. 164/08        State Vs. Mohd. Akil @ Don Etc.                Page No. 63 of 63