Delhi District Court
State vs Parvej @ Shaka on 7 May, 2025
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH-EAST
KARKARDOOMA COURTS: DELHI
IN RE:
SC No. 175/19
CNR No. DLNE01-002269-2019
FIR No.374/16
PS New Usmanpur
U/s 307/201/34 IPC, 1860 & u/s 27 of Arms Act, 1959.
STATE VERSUS PARVEJ @ SHAKA & ANR.
Date of Committal : 31.05.2019
Date of Arguments : 23.04.2025
Date of Judgment : 07.05.2025
INDEX
S. No. Contents Page No.
1. Brief Details of the Case & Memo of Parties 2
2. Brief Case of the Prosecution 3
3. Prosecution Evidence 6
4. Admitted Documents & Plea of the Accused 16
Persons
5. Submissions made on behalf of the State 17
6. Submissions made on behalf of the Accused 19
persons
7. Relevant Law & the Case Laws 21
8. Appreciation of Evidence 28
9. Conclusion & Findings 31
(ATUL AHLAWAT) Digitally
signed by
ATUL
ASJ (FTC)/North- ATUL AHLAWAT
AHLAWAT Date:
2025.05.07
East/KKD Courts/ 10:19:27
+0530
Delhi/07.05.2025
CNR No. DLNE01-002269-2019 State Vs. Parvej Shaka & Anr. FIR No. 374/16 Page no. 1/35
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH-EAST
KARKARDOOMA COURTS: DELHI
SC No. 175/19
CNR No. DLNE01-002269-2019
FIR No.374/16
PS New Usmanpur
U/s 307/201/34 IPC, 1860 & u/s 27 of Arms Act, 1959.
Brief Details of the Case & Memo of Parties
STATE VERSUS PARVEJ @ SHAKA & ANR.
Brief details of the case:
A) Case FIR No. : 175/19
B) Charges framed under section : 307/201/34 IPC, 1860
against both the
accused persons and
u/s 27 of Arms Act,
1959 against both
accused persons.
C) Name of the complainant : Shakir
S/o Sh. Late Baltoor
@ Ballu
R/o H.No. R-48, Gali
No. 20, Brahmpuri,
Delhi.
D) Name of the accused person : (1) Parvej @ Shaka,
S/o Late Sh. Nasir Ali,
Digitally
signed by
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ATUL AHLAWAT
AHLAWAT Date:
2025.05.07
10:19:47
+0530
R/o R-124, Gali No.
22, Brahampuri,
Delhi.
(2) Javed,
S/o Late Sh. Nasir Ali,
R/o R-124, Gali No.
22, Brahampuri,
Delhi.
E) Plea of the accused persons : Not guilty
F) Final Order : Acquittal
G) Date of Order : 07.05.2025
JUDGMENT
(Pronounced on the 07th day of May,2025)
Brief Case of the Prosecution:
1. The criminal law machinery was set into motion on 15.04.2016,
when DD no. 87B, Ex. A-4 was registered at PS New Usmanpur at 11:57
PM, wherein it was recorded that ” gali no. 20B , Brahmpuri Javed and
Shaka goli chala di hai, jo bach gaya” . The said call was made from
mobile no. 9582897447 and information was passed tto the PS by Ct.
Pradeep who was posted with PCR and the said call was marked to SI
C.B Sharma for further action, in accordance with law.
Digitally
signed by
ATUL
AHLAWAT
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AHLAWAT Date:
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2. The IO SI Chail Bihari Sharma alongwith Ct. Pradeep reached the
spot i.e. H. No. R-48. Gali no.20, Brahmpuri, Delhi and met the
complainant Shakir. The spot was outside the said house and the IO
found one empty cartridge case was lying there and inside the house, at
the end of the stairs there was one mark, where it seemed that the bullet
had hit. The IO called the crime team on the scene and the crime scene
inspection was done. The IO picked up the empty case cartridge and
converted the same into a pullanda and then seized it.
3. The IO recorded the statement of the complainant, Ex. PW2/A,
wherein, the complainant had stated that he was plying his trade as a
meat seller, wherein, he used to obtain the meat from the suppliers in
Ghazipur, Delhi and used to supply the same in the meat shops in the
area. Accused Parvej @ Shaka was known to the complainant and he
was residing in gali no. 22, Brahmpuri and were also in the same line of
business and was running a meat shop in the said gali. The complainant
further alleged that accused Parvej @ Shaka used to force him to give
the meat on discounted rates, which the complainant was not able to do
and therefore, accused Parvej @ Shaka used to maintain enmity with the
complainant.
4. In his statement Ex. PW2/A, it was further mentioned by the
complainant that on 16.06.2016 at about 011:30 PM, when he had left
his house for the bazaar situated in gali no. 21, to buy some milk and
when he was returning back, accused Parvej @ Shaka alongwith his
Digitally
signed by
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ATUL AHLAWAT
AHLAWAT Date:
2025.05.07
10:20:05
+0530
brother co-accused Javed were sitting on a black coloured motorcycle at
the corner of gali no. 21, Brahmpuri. The accused Parvej @ Shaka was
sitting in the rider seat and co-accused Javed was sitting on the pillion
seat and when the complainant was crossing them, both the accused
persons were giving deathly stares to him. The complainant kept quite
and proceeded towards his house and thereafter, when he looked back,
he saw that both the accused persons were following him on the
motorcycle.
5. In his statement Ex. PW2/A, it was further mentioned by the
complainant that when he hurriedly tried to enter his house, he heard the
voice of accused Parvej @ Shaka from the back, wherein, he asked the
complainant to not enter his house and to stop there itself. When the
complainant turned back, he saw that accused Parvej @ Shaka was
armed with a pistol and after seeing the same, the complainant got
perplexed and hurriedly took the stairs and when he again turned back,
he saw that accused Parvej @ Shaka had fired a shot from the said pistol
after aiming the same to towards the complainant. The complainant
managed to get out of the trajectory of the said bullet and entered the
room situated on the side of the 1st floor and the bullet had hit the wall,
near the place where the staircase on the 1st floor was ending. The
accused persons sat on the motorcycle and fled away from the spot.
6. In his statement Ex. PW2/A, it was further mentioned by the
complainant that after hearing the noise of the gun shot, his elder brother
Asif and other neighbours residing in the same gali had gathered and his
Digitally
signed by
ATUL
ATUL AHLAWAT
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brother Asif noticed the empty cartridge lying near the gate of their
house and called the police on 100 number. The police officials arrived
on the spot and the complainant informed them that accused Parvej @
Shaka and accused Javed had fired the gunshot upon him, with the
intention to kill him.
7. Upon recording of the statement of the complainant, Ex. PW2/A,
the present case FIR, Ex. A-1 was registered at Police Station New
Usmanpur on 16.06.2016, under sections 307 IPC, 1860 and u/s 27 of
Arms Act, 1959. After the registration of the FIR, the investigation was
conducted by the IO and after completion of the same the charge-sheet
was filed before the court of Ld. Metropolitan Magistrate Court u/s
307/201/34 IPC, 1860 and 27 of Arms Act, 1959.
8. After compliance of section 207/208 Cr.P.C, 1973 the case was
committed by the Court of Ld. MM before this court on 31.05.2019.
Thereafter, the charges were framed by this Court on 27.04.2024 u/s
307/201/34 IPC, 1860 against both the accused persons and u/s 27 of
Arms Act, 1959 against accused both accused persons. The accused
persons pleaded not guilty and they had claimed trial.
Prosecution Evidence:
9. To prove its case, the prosecution has examined Ten (10) witnesses,
out of which there are 5 Public Witnesses, including the complainant; 1
Expert FSL Witness and remaining 4 witnesses were Formal Witnesses,
Digitally
signed by
ATUL
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AHLAWAT Date:
2025.05.07
10:20:19
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including the 2 Investigating Officers:
10. Public Witnesses:
(10.1.1) PW-2 is Shakir and he is the complainant of the present case
and he had deposed that he along-with his family members have been
residing at H.No. R-48, Gali No.20, Brahmpuri, Delhi, since his
childhood and he used to purchase meat from the slaughter house,
Ghazipur and supplied the same at various shops situated in the
Brahampuri area. Accused Parvej @ Shaka and co-accused Javed were
residing in the gali no.22, Brahampuri and both were also running the
shop of selling meat at Kanti Nagar. Accused Parvej @ Shaka used to
ask him to supply the meat on the discounted rate, however he was not
agreeable to the same and due to the said reason, he had threatened PW2
by saying that if PW2 did not supply the meat to him, then he would
eliminate him. Thereafter, some altercation took place between him and
accused Parvej @ Shaka.
(10.1.2) PW-2 Shakir had further deposed that in the year 2016, at
about 11:00-11:30 PM, he went to the gali No. 21, Brahampuri to
purchase the milk and after purchasing the milk, while he was coming
towards his house, he saw the accused persons sitting on a motorcycle
which was parked near the Brahmpuri Chowk. Accused Javed was on the
front seat and accused Parvej @ Shaka was sitting on the back
seat/pillion seat. Both the accused persons were staring towards him and
he started moving towards his house and when he reached there and
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
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while he was taking the stairs, he heard the noise of a bullet being shot
and became perplexed. However, he had not seen as to who had fired the
said bullet and the bullet had hit on the tile of the wall of his house.
(10.1.3) PW-2 Shakir had further deposed that his elder brother Asif
reached there and asked him as to what had happened and he informed
his brother that a gun has been fired. Thereafter, PW2 made a call on 100
number from his mobile phone and informed that the gunshot was fired
upon him or that he had also informed that accused Parvej and accused
Javed had fired the said shot upon him, however, he had not seen them
firing and had told their names only on the basis of suspicion. Thereafter,
his neighbours also reached there and the police officials arrived on the
spot. The IO recorded his statement, Ex. PW2/A and one empty cartridge
was found lying at the spot and the IO seized the same vide seizure
memo, Ex. PW2/C, after preparing its sketch, Ex. PW2/B. The identity
of the empty cartridge was not disputed by Ld. Defense Counsel. The
complainant/PW2 had correctly identified the accused persons.
(10.1.4) PW-2 Shakir was declared hostile by the State and was
subjected to cross examination conducted by Ld. Addl. PP for the State.
In his cross examination, he had denied all the suggestions being put to
him and was confronted with the relevant portion of his earlier
statement, Ex. PW2/A, wherein, he had leveled specific allegations
against the accused persons.
(10.2.1) PW-3 is Asif and he is the brother of the complainant. He
Digitally
signed by
ATUL
ATUL AHLAWAT
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had deposed that on 15.04.2016, at about 11:00 to 11:30 PM, while he
was sleeping in his room situated at 1 st floor, he heard the alarm raised
by his brother Shakir, who was shouting that someone had fired the
gunshot upon him, however, his brother was not hit by the said bullet.
Thereafter, PW3 came out of the house and his brother Shakir also
reached the gali after taking down the stairs. At that time, their
neighbours, namely Unus, Farukh and Naqi also reached in the gali and
there was a commotion going on.
(10.2.2) PW-3 Asif had further deposed that he had not seen the
assailants and their names were not disclosed to him by his brother
Shakir. He only saw his brother Shakir in a perplexed state and the call
on 100 number was made by his brother Shakir only. He identified the
accused persons only on the basis that they were residents of the same
locality.
(10.2.3) PW-3 Asif was declared hostile by the State and was
subjected to cross examination conducted by Ld. Addl. PP for the State.
In his cross examination, he had denied all the suggestions being put to
him and was confronted with the relevant portion of his earlier
statement, wherein, he had leveled specific allegations against the
accused persons.
(10.2.4) PW-3 Asif during his cross examination conducted by Ld.
Counsel for the accused persons had deposed that the police official only
made inquiries from him, however, his statement was never recorded.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.05.07
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After hearing the loud noise, he came down the stairs, however, no one
informed him that the two assailants had fled away on a motorcycle.
(10.3.1) PW-4 is Yunus and he is the public witness qua the Res
Gestae statements made by the complainant and the alleged witness who
had seen the accused persons fleeing away from the spot. He had
deposed that on 15.04.2016, at about 11:00 to 11:30 PM, while he was
sitting in the baithak of his house, he heard the noise of a bullet being
fired. He came out of the house and saw that public persons were
gathered there and there was a commotion going on. He had not seen
anything else. The police officer made inquiries from him on the spot.
(10.3.2) PW-4 Yunus was declared hostile by the State and was
subjected to cross examination conducted by Ld. Addl. PP for the State,
however, nothing material came out from his cross examinations. He was
confronted with the previous statement, PW-4 Mark-A, after he had
denied all the suggestions being put to him.
(10.4.1) PW-5 is Mohd. Naqi and he is also the public witness qua
the Res Gestae statements made by the complainant and the alleged
witness who had seen the accused persons fleeing away from the spot.
He had deposed that on 15.04.2016, at about 11:30 to 11:45 PM, he was
working at his shop situated on the ground floor of his house, where he
used to repair motor/fan and he heard a loud noise. He came out his shop
and saw that public persons were gathered there and the complainant
Shakir Ustad and others were present there, however, he did not knew
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.05.07
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the names of the other persons.
(10.4.2) PW-5 Mohd. Naqi was declared hostile by the State and was
subjected to cross examination conducted by Ld. Addl. PP for the State,
however, nothing material came out from his cross examinations. He was
confronted with the previous statement, Ex. PW5/A, after he had denied
all the suggestions being put to him.
(10.5.1) PW-6 is Md. Farooq and he is also the public witness qua
the Res Gestae statements made by the complainant and the alleged
witness who had seen the accused persons fleeing away from the spot.
He had deposed that at about 11:30 to 11:45 PM, however, he did not
remember the exact date, while he was at his house, he heard a loud
noise. He came out his house and saw that public persons were gathered
there and the complainant Shakir Ustad and others were present there.
The complainant informed him that one bullet has been fired. Thereafter,
the police officials reached there and made inquiries from him and other
public persons.
(10.5.2) PW-6 Md. Farooq was declared hostile by the State and was
subjected to cross examination conducted by Ld. Addl. PP for the State,
however, nothing material came out from his cross examinations. He was
confronted with the previous statement, Ex. PW6/A, after he had denied
all the suggestions being put to him.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.05.07
10:20:51
+0530
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11. Expert Witness:
(11.1.1) PW-1 is Dr. Punit Puri, Assistant Director, Ballistics, FSL
Rohini, Delhi. He had deposed that on 15.02.2018, he had received the
parcels for forensic examination, alongwith the specimen seal provided
with the FSL form. After completing the examination, he prepared his
detailed report, Ex. PW1/A, wherein, the fire arm discharge residue
particles (gunshot residue/GSR) was detected on the swabs taken from
the left hand and right hand of the complainant. However, the GSR could
not be detected on the swabs taken from the hands of the brother of the
complainant, namely Asif.
(11.1.2) PW-1 Dr. Punit Puri had further deposed that he had given
the subsequent opinion, Ex PW1/B, upon the receipt of letters from SHO
PS New Usmanpur and as per the said opinion, fire-arm discharge
residue (GSR) may or may not come from the swabs taken from the
hands of a person, who had touched the fired empty cartridge or/and had
scratched the area (wall), with his fingers, where the alleged bullet was
said to have hit, depending upon the circumstances.
(11.1.3) PW-1 Dr. Punit Puri during his cross examination conducted
by Ld. Counsel for the accused persons had deposed that his report, Ex.
PW1/B is not a conclusive opinion. He had further voluntarily deposed
that a scientific expert like him cannot say with any certainty from the
samples, whether, the GSR could transfer by merely touching of the
hands at the wall or other substance, where the bullet had hit or by
Digitally
signed by
ATUL
ATUL AHLAWAT
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touching the empty fired cartridges. He further admitted the suggestions
that there is a strong possibility that even if a bullet hits any object, the
GSR may not be transferred to the said object, as the gunshot residue
only depends on the kind of fire-arm used and the distance of firing from
the object, on which it ultimately hits.
12. Formal Police Witnesses:
(12.1.1) PW-7 is SI Daya Ram and he was the MHCM. He had deposed
that he was working as the MHCM, PS New Usmanpur and he made the
relevant entries in register no. 19 and 21 on 16.04.2016, 03.05.2017 and
15.02.2018 and had brought on record the said entries, Ex. PW7/A, Ex.
PW7/B in register no. 19 and 21, respectively. The acknowledgment of
case acceptance on the road certificates was brought on record as Ex.
PW1/C (colly).
(12.2.1) PW-9 is SI Chhail Bihari Sharma and he is the 1st IO of the
present case. He had deposed that on receipt of the DD no. 87B dated
15.06.2016, Ex. A-4, he reached the spot alongwith Ct. Pradeep and met
the complainant Shakir. One empty fired cartridge was found out side the
said house and he called the crime team on the spot. The crime team
reached there and conducted their proceedings. He had seized the said
empty cartridge vide seizure memo, Ex. PW2/C.
(12.2.2) PW-9 SI Chhail Bihari Sharma had further deposed that he
had recorded the statement of the complainant, Ex. PW2/A and prepared
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
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the rukka, Ex. PW9/A and sent the same to the PS through Ct. Pradeep,
for getting the FIR, Ex. A-1 registered. He thereafter, prepared the site
plan, Ex. PW9/B, at the instance of the complainant. He recorded the
statements of the crime team members and also the statements of the
public persons namely Yunus, Farooq and Naqi. He also recorded the
statement of the brother of the complainant, namely Asif and
supplementary statement of the complainant.
(12.2.3) PW-9 SI Chhail Bihari Sharma had further deposed that he
made searches for the accused persons, however, they were not found.
Thereafter, he alongwith complainant Shakir and the brother of the
complainant, Asif, reached GTB Hospital and the doctor had taken their
hand wash and control wash, upon his application, Ex. A-15. He then
seized the sealed pullanda vide seizure memo, Ex. PW9/E.(12.2.4) PW-9 SI Chhail Bihari Sharma had further deposed that
accused Javed was granted anticipatory bail and he joined the
investigation. He was formally arrested by PW9 vide arrest memo, Ex.
A-7 and he recorded the disclosure statement, Ex. PW9/F.(12.3.1) Through the testimony of the 1st IO PW-9 SI Chhail Bihari
Sharma and PW-8 HC Sachin Chikara, the prosecution has sought to
prove that on 22.08.2016, accused Parvej @ Shaka had surrendered
before the Court and after taking permission, he was interrogated and the
IO recorded his disclosure statement, Ex. PW8/A. The accused was
formally arrested vide arrest memo, Ex. A-5 and his personal search was
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
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conducted vide memo, Ex. A-6. PW9 moved an application, Ex.
PW9/G, seeking one day police remand of accused Parvej @ Shaka and
the same was allowed. During the PC remand, accused Parvej @ Shaka
pointed out the place of incident and the IO prepared the pointing out
memo, Ex. PW8/B. Accused Parvej @ Shaka further disclosed that he
had thrown the country made pistol/katta in one garbage vehicle after the
incident and the IO recorded his supplementary disclosure statement, Ex.
PW8/C.(12.3.2) PW-9 SI Chhail Bihari Sharma during his cross
examination conducted by Ld. Counsel for the accused persons had
deposed that on the site plan, Ex. PW9/B, he had not obtained the
signature of the complainant. He had further deposed that he had not
obtained the signature of any independent public person, on the seizure
memo of the empty fired cartridge. He further deposed that after
receiving the FSL result, he had not made any inquiries from the
complainant, since, he was transferred out of PS New Usmanpur,
however, he had informed the SHO concerned. He had further deposed
that in the main chargesheet, it was not mentioned that the hand wash of
the complainant Shakir and the brother of the complainant, Asif was
taken by the concerned doctor on his application and he voluntarily
deposed that the said fact was mentioned in the case diary.
(12.4.1) PW-10 is Inspector Ashwani Kumar and he is the 2nd IO of
the present case. He had deposed that on 17.10.2022, he was marked the
present case for further investigation and on 30.01.2023, he had recorded
Digitally
signed by
ATUL
ATUL AHLAWAT
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the statement of the complainant Shakir, Ex. PW10/A. Thereafter, he
prepared the letter, Ex. PW10/B addressed to Director, FSL Rohini,
seeking further opinion and on the said letter, the opinion, Ex. PW1/B
was obtained.
Admitted Documents and Plea of the Accused Persons:
13. During the trial, the accused persons had admitted the FIR, Ex.
A-1; the endorsement on the rukka, Ex. A-2; the certificate u/s 65B of
Indian Evidence Act, 1872, Ex. A-3; DD No. 87B dated 15.04.2016, Ex.
A-4; Arrest memo of accused Parvej @ Shaka, Ex. A-5; Personal search
memo of accused Parvej @ Shaka, Ex. A-6; Arrest memo of accused
Javed, Ex. A-7; Crime scene report, Ex. A-8; the 8 photographs taken by
the crime team photographer, Ex. A-9 (colly); the RC and
acknowledgment of case acceptance receipt, Ex. A-10 and Ex. A-11,
respectively; FSL Ballistics Division Report dated 15.02.2018, prepared
by Ms. Prerana Lakra, Ex. A-12; MLC of the complainant Shakir, Ex.
A-13; MLC of Asif (brother of the complainant), Ex. A-14; the
application moved by the IO seeking the concerned doctor to take the
hand wash of the complainant Shakir and his brother Asif, Ex. A-15; the
road certificate and acknowledgment of case acceptance receipt, Ex.
A-16 and Ex. A-17; and that the said FSL report and exhibits were
collected from FSL Rohini by Ct. Nazim and same were deposited with
MHCM, New Usmanpur.
14. After completion of the prosecution evidence, PE was closed. The
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
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statements of the accused persons were recorded under Section 313
Cr.P.C., 1973 in which they had pleaded their innocence.
15. The accused persons chose not to lead any Defense Evidence.
16. I have heard the arguments advanced by Sh. Shikhar Mahajan, Ld.
Substitute Additional PP for the State and Sh. S. A. Khan and Sh. U. A.
Khan, Ld. Counsels for the accused persons. I have also minutely gone
through the evidence brought on record and the other material aspects of
the case.
Submissions made on behalf of the State:
17. It has been argued by the Ld. Substitute Addl. PP for the State that
the prosecution has proved beyond reasonable doubt that on 15.04.2016
at about 11:30 PM, when the complainant PW2 Shakir was going from
his house situated in gali no.20, Brahmpuri, Delhi towards the bazaar
situated in gali no.21, to buy some milk, the accused persons were sitting
on a motorcycle which was parked on the corner of gali no.21. The
accused Parvej @ Shaka was having previous enmity with the
complainant, since, the complainant refused to supply him the meat on
discounted rates and on earlier occasion, an altercation had taken place
between them. The co-accused Javed was the brother of accused Parvej
@ Shaka and was also working in the same shop, where the accused
persons used to sell meat. On the day of the incident, the accused
persons gave deathly stares to the complainant and started following him
Digitally
signed by
ATUL
ATUL AHLAWAT
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on their motorcycle,when the complainant was returning back towards
his house.
18. It has been further argued by the Ld. Substitute Addl. PP for the
State that through the testimony of PW2 Shakir, it has been proved
beyond reasonable doubt that the accused persons had the motive to
commit the offence in question and that they were following him on the
day of the incident. Furthermore, when the complainant feared for his
life and safety and attempted to climb the stairs of his house in hurried
manner, accused Parvej @ Shaka fired a gunshot upon him with the
intention to kill the complainant, however, the said shot had missed the
complainant PW2 Shakir and had hit the tile of the wall, where the
staircase on the first floor was ending. The categorical testimony of the
PW2 Shakir in this regard is clinching in nature regarding the role played
by the accused persons.
19. It has been further argued by the Ld. Substitute Addl. PP for the
State that all the essential ingredients of the offence punishable u/s 307
IPC, 1860 are made out in the present case, since, the accused persons
did some act and such act was done with the intention/knowledge that
hurt was likely to be caused to the victim, by the said act. Even if the
shot missed the complainant, the act was complete, as the bullet was
fired by aiming at the complainant. The Ld. Substitute Addl. PP for the
State had relied upon the decision of the Hon’ble Supreme Court of India
in “Om Prakash Vs. State” AIR 1961 SC 1782, “State Vs. Virendra”
(2004) 9 SCC 37 and “Parsuram Pandey Vs. State” (2004) 13 SCC 189.
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20. It has been further argued by the Ld. Substitute Addl. PP for the
State that although the complainant Shakir, who was examined as PW-2,
had turned hostile before this Court, as far as the identity of the accused
persons, as the perpetrator of the offence in question, yet his entire
testimony could not be washed away.
Submissions made on behalf of the accused persons:
21. It is submitted by the Ld. Counsels for the accused persons that
accused persons have been falsely implicated by the complainant and
that they are completely innocent. The prosecution case was relying
upon the testimony of its sole ocular witness, namely PW2 Shakir,
however, he has not supported the prosecution version and had turned
hostile. He had only identified accused persons for the reason that they
were his neighbours and not because they were involved in the alleged
offence. Therefore, the accused persons cannot be convicted on the basis
of their identity being established only through formal witnesses.
22. It is submitted by the Ld. Counsels for the accused persons that
the prosecution’s case had as many as four independent public witnesses,
who had reached the crime scene, soon after the incident had taken place
and their testimonies were all in the nature of Res Gestae for being
contemporaneous and part of the same transaction. However, all of them
i.e. PW3 Asif, PW4 Yunus, PW5 Mohd. Naqi and PW6 Md. Farooq had
turned hostile at the time of their examination-in-chief and had not
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supported the case of the prosecution, even during their cross
examination conducted on behalf of the State.
23. It is submitted by the Ld. Counsels for the accused persons that the
entire case of the prosecution is resting upon the disclosure statements of
the accused persons and since there was no recovery of any weapon
effected through the accused persons, the said disclosure statements also
vanish from the ken of evidence and cannot be relied upon by the
prosecution.
24. It is submitted by the Ld. Counsels for the accused persons that
the accused persons were falsely implicated in the present case by the
complainant, owing to their previous enmity. The testimony of PW1 Dr.
Puneet Puri is categorical in nature and as per the FSL report, Ex.
PW1/A, the gunshot residue (GSR) was detected on the swabs taken
from the hands of the complainant, thereby, fully supporting the defense
of the accused persons, that they had been falsely implicated in the
present case and the gunshot was fired by the complainant himself on the
wall of his house, so as to implicate the accused persons.
25. It is submitted by the Ld. Counsels for the accused persons that
there was no injury caused to the complainant or any other person during
the commission of the alleged offence. Since the pistol which was
allegedly used in commission of the offence was never recovered in the
present case and even the bullet lead was not found on the spot and same
could not be matched with the empty cartridge shell. Therefore, even the
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recovery of the empty cartridge shell does not incriminate the accused
persons in the present case.
Relevant Law and Case Laws:
26. In the background of the above, before discussing the evidence
brought on record in the present case, it is pertinent to point out that the
accused person can be convicted on the basis of credible evidence
brought on record and the appreciation of the said evidence must be done
in correct and true perspective manner and in the natural course of
events, what would have been occurred. Appreciation of evidence
beyond reasonable doubt does not mean that it should be assessed
beyond any iota of doubt. Beyond Reasonable Doubt means that the
prosecution is required to place evidence at a higher degree of
preponderance of probabilities compared to what is degree of
preponderance of probability in civil cases. The theory of Beyond
Reasonable Doubt means expecting higher degree of preponderance of
probabilities and the natural conduct of human beings, as held by the
Hon’ble High Court of Karnataka in “State of Karnataka Vs Venkatesh
@ Venkappa & Anr” , Criminal Appeal No. 100492 of 2021, decided on
18.12.2023.
27. Section 3 of the Indian Evidence Act defines “evidence”. The
evidence can be broadly divided into oral and documentary. “Evidence”
under the Act can be said to include the means, factor or material,
lending a degree of probability through a logical inference to the
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existence of a fact. It is an adjective law highlighting and aiding the
substantive law. Thus, it is neither wholly procedural nor substantive,
though trappings of both could be felt. Reliance is placed upon the
decision of the Hon’ble Supreme Court of India in “Rajesh Yadav &
Anr. Vs. State of U.P”, Criminal Appeal No. 339-340 of 2014, date of
decision 04.02.2022.
28. The definition of the word “proved” though gives an impression of
a mere interpretation, in effect, is the heart and soul of the entire Act.
This clause, consciously speaks of proving a fact by considering the
“matters before it”. The importance is attached to the degree of
probability in proving a fact through the consideration of the matters
before the court. What is required for a court to decipher is the existence
of a fact and its proof by a degree of probability, through a logical
inference.
29. Matters are necessary, concomitant material factors to prove a
fact. All “evidence” would be “matters” but not vice versa. In other
words, matters could be termed as a genus of which evidence would be a
species. Matters also adds strength to the evidence giving adequate
ammunition in the Court’s sojourn in deciphering the truth. Thus, the
definition of “matters” is exhaustive, and therefore, much wider than that
of “evidence”. However, there is a caveat, as the court is not supposed to
consider a matter which acquires the form of an evidence when it is
barred in law. Matters are required for a court to believe in the existence
of a fact.
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30. Matters, do give more discretion and flexibility to the court in
deciding the existence of a fact. They also include all the classification of
evidence such as circumstantial evidence, corroborative evidence,
derivative evidence, direct evidence, documentary evidence, hearsay
evidence, indirect evidence, oral evidence, original evidence,
presumptive evidence, primary evidence, real evidence, secondary
evidence, substantive evidence, testimonial evidence, etc.
31. In addition, they supplement the evidence in proving the existence
of a fact by enhancing the degree of probability. As an exhaustive
interpretation has to be given to the word “matter”, and for that purpose,
the definition of the expression of the words “means and includes”,
meant to be applied for evidence, has to be imported to that of a “matter”
as well. Thus, a matter might include such of those which do not fall
within the definition of Section 3, in the absence of any express bar.
32. What is important for the court is the conclusion on the basis of
existence of a fact by analyzing the matters before it on the degree of
probability. The entire enactment is meant to facilitate the court to come
to an appropriate conclusion in proving a fact. There are two methods by
which the court is expected to come to such a decision. The court can
come to a conclusion on the existence of a fact by merely considering the
matters before it, in forming an opinion that it does exist. This belief of
the court is based upon the assessment of the matters before it.
Alternatively, the court can consider the said existence as probable from
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the perspective of a prudent man who might act on the supposition that it
exists. The question as to the choice of the options is best left to the court
to decide. The said decision might impinge upon the quality of the
matters before it.
33. The word “Prudent” has not been defined under the Act. When the
court wants to consider the second part of the definition clause instead of
believing the existence of a fact by itself, it is expected to take the role of
a prudent man. Such a prudent man has to be understood from the point
of view of a common man. Therefore, a judge has to transform into a
prudent man and assess the existence of a fact after considering the
matters through that lens instead of a judge. It is only after undertaking
the said exercise can he resume his role as a judge to proceed further in
the case.
34. The aforesaid provision also indicates that the court is concerned
with the existence of a fact both in issue and relevant, as against a whole
testimony. Thus, the concentration is on the proof of a fact for which a
witness is required. Therefore, a court can appreciate and accept the
testimony of a witness on a particular issue while rejecting it on others
since it focuses on an issue of fact to be proved. However, the evidence
of a witness as whole is a matter for the court to decide on the
probability of proving a fact which is inclusive of the credibility of the
witness. Whether an issue is concluded or not is also a court’s domaine.
35. While appreciating the evidence as aforesaid along with the
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matters attached to it, evidence can be divided into three categories
broadly namely, (i) wholly reliable, (ii) wholly unreliable and (iii)
neither wholly reliable nor wholly unreliable. If evidence, along with
matters surrounding it, makes the court believe it is wholly reliable qua
an issue, it can decide its existence on a degree of probability. Similar is
the case where evidence is not believable. When evidence produced is
neither wholly reliable nor wholly unreliable, it might require
corroboration, and in such a case, court can also take note of the
contradictions available in other matters. The aforesaid principle of law
has been enunciated in the authority of Hon’ble Supreme Court of India
in “Vadivelu Thevar v. State of Madras” , 1957 SCR 981 wherein it is
held as under:
“In view of these considerations, we have no hesitation in holding
that the contention that in a murder case, the court should insist
upon plurality of witnesses, is much too broadly stated. Section 134
of the Indian Evidence Act has categorically laid it down that “no
particular number of witnesses shall in any case, be required for the
proof of any fact”. The legislature determined, as long ago as 1872,
presumably after due consideration of the pros and cons, that it shall
not be necessary for proof or disproof of a fact to call any particular
number of witnesses. In England, both before and after the passing
of the Indian Evidence Act, 1872, there have been a number of
statutes as set out in Sarkar’s Law of Evidence — 9th Edn., at pp.
1100 and 1101, forbidding convictions on the testimony of a single
witness. The Indian Legislature has not insisted on laying down any
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such exceptions to the general rule recognized in s.134 quoted
above. The section enshrines the well-recognized maxim that
“Evidence has to be weighed and not counted”. Our Legislature has
given statutory recognition to the fact that administration of justice
may be hampered if a particular number of witnesses were to be
insisted upon. It is not seldom that a crime has been committed in
the presence of only one witness, leaving aside those cases which
are not of uncommon occurrence, where determination of guilt
depends entirely on circumstantial evidence. If the Legislature were
to insist upon plurality of witnesses, cases where the testimony of a
single witness only could be available in proof of the crime, would
go unpunished. It is here that the discretion of the presiding judge
comes into play. The matter thus must depend upon the
circumstances of each case and the quality of the evidence of the
single witness whose testimony has to be either accepted or
rejected. If such a testimony is found by the court to be entirely
reliable, there is no legal impediment to the conviction of the
accused person on such proof. Even as the guilt of an accused
person may be proved by the testimony of a single witness, the
innocence of an accused person may be established on the
testimony of a single witness, even though a considerable number
of witnesses may be forthcoming to testify to the truth of the case
for the prosecution. Hence, in our opinion, it is a sound and well-
established rule of law that the court is concerned with the quality
and not with the quantity of the evidence necessary for proving or
disproving a fact. Generally speaking, oral testimony in this context
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may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in
coming to its conclusion either way — it may convict or may
acquit on the testimony of a single witness, if it is found to be
above reproach or suspicion of interestedness, incompetence or
subornation. In the second category, the court, equally has no
difficulty in coming to its conclusion. It is in the third category of
cases, that the court has to be circumspect and has to look for
corroboration in material particulars by reliable testimony, direct
or circumstantial. There is another danger in insisting on plurality
of witnesses. Irrespective of the quality of the oral evidence of a
single witness, if courts were to insist on plurality of witnesses in
proof of any fact, they will be indirectly encouraging subornation
of witnesses. Situations may arise and do arise where only a single
person is available to give evidence in support of a disputed fact.
The court naturally has to weigh carefully such a testimony and if
it is satisfied that the evidence is reliable and free from all taints
which tend to render oral testimony open to suspicion, it becomes
its duty to act upon such testimony. The law reports contain many
precedents where the court had to depend and act upon the
testimony of a single witness in support of the prosecution. There
are exceptions to this rule, for example, in cases of sexual
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offences or of the testimony of an approver; both these are cases
in which the oral testimony is, by its very nature, suspect, being
that of a participator in crime. But, where there are no such
exceptional reasons operating, it becomes the duty of the court to
convict, if it is satisfied that the testimony of a single witness is
entirely reliable. We have, therefore, no reasons to refuse to act
upon the testimony of the first witness, which is the only reliable
evidence in support of the prosecution.”
Appreciation of Evidence:
36. In the background of the abovesaid decisions, I shall now appraise
the evidence brought on record. The entire prosecution case was relying
upon the testimony of its star witness i.e. the complainant PW-2 Shakir.
As per the prosecution story, the accused persons had chased down the
complainant in the gali, while the complainant was on foot and the
accused persons were riding a motorcycle. The complainant saw from
over his shoulder, that the accused persons were chasing him and fearing
his life and safety, he hurriedly made an attempt to enter his house and
climb the stairs, however, accused Parvej @ Shaka uttered the words that
where was he going and he must stop. Thereafter, when the complainant
turned back, he saw that accused Parvej @ Shaka fired a shot from a
pistol and the complainant managed to escape the trajectory of the said
bullet, by entering the room and the bullet had hit the tile of the wall,
where the staircase of the 1st floor was ending. However, when he
stepped into the witness box as PW2, although he had deposed about the
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previous enmity and an altercation which took place between them on an
earlier occasion and he had also deposed that the accused persons were
staring towards him and however, he had not seen who had fired the said
bullet or that prior to the firing, he was being chased by the accused
persons in the gali.
37. PW2 Shakir had further deposed that although he had not seen the
assailant who had fired the gunshot and he had taken the names of the
accused persons in the call made to the police on 100 number, on the
basis of suspicion only. None of the other prosecution witnesses namely
PW-3 Asif, PW-4 Yunus, PW-5 Mohd. Naqi and PW-6 Mohd. Farooq
had supported the case of the prosecution and they had fully turned
hostile and not supported the prosecution’s story regarding them being
the eye witnesses of seeing the accused persons running away from the
spot on a black coloured motorcycle, after the gunshot was fired.
38. All the other formal prosecution witnesses were dropped from the
list of prosecution witnesses vide order dated 24.08.2024 passed by this
Court, after recording the statements of the accused persons u/s 294
Cr.P.C.
39. The only other witness examined in the present case were the two
Investigating Officers namely PW9 SI Chhail Bihari Sharma and PW10
Inspector Ashwani Kumar, who had conducted the investigation and
their testimonies cannot be the sole basis to convict the accused persons
for committing the offence in question. Besides the Investigating
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Officers, PW8 HC Sachin Chhikara had accompanied the IO PW9 SI
Chhail Bihari Sharma, when accused Parvej @ Shaka had surrendered
before the Court of Ld. MM and the proceedings qua his formal arrest
were carried out. Last formal witness examined before this Court is PW7
SI Daya Ram, who was the then MHCM, PS New Usmanpur. Therefore,
in absence of the testimony of the complainant supporting the case of the
prosecution and since all the other public witnesses had already turned
hostile, therefore, the remaining testimonies of the formal witnesses are
not clinching in nature by themselves.
40. The alleged weapon i.e. the gun which was used in the commission
of the alleged offence was never recovered in the present case.
Furthermore, the bullet lead was also not recovered and same could not
be matched with the empty cartridge shell allegedly recovered from the
crime scene. Therefore, even the fact that the said empty cartridge shell
belonged to the same bullet, which had hit the wall of the staircase of the
house of the complainant, could not be established.
41. There is a shadow of doubt cast upon the entire case, by the FSL
report, Ex. PW1/A, wherein, the gunshot residue (GSR) was found on
the hand swabs, taken from both the hands of the complainant. Although,
the subsequent opinion, Ex. PW1/B, had reflected that the said transfer
of GSR may have come, in case, the complainant Shakir had scratched
the place where the bullet had hit on the wall or by picking up the empty
fired cartridge, however, in the categorical testimony of PW1 Dr. Puneet
Puri, the said opinion, Ex. PW1/B was not a conclusive opinion.
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Therefore, the possibility of the complainant himself firing the gunshot
on the stairs of his house, in order to falsely implicate the accused
persons, cannot be ruled out since, the motive is a double edged sword.
Conclusion and Findings:
42. Therefore, on the basis of the deposition of the PW-2 Shakir,
wherein he had failed to identify the accused persons, as the alleged
assailants who had committed the offence on 15.04.2016, coupled with
the fact that all the other public witnesses namely PW-3 Asif, PW-4
Yunus, PW-5 Mohd. Naqi and PW-6 Md. Farooq had completely turned
hostile and had not supported the prosecution’s story that they had
allegedly seen the accused persons running away from the spot on the
black coloured motorcycle, after the gunshot was fired. Therefore, the
accused persons cannot be convicted in the facts and circumstances of
the present case which are established by the prosecution through the
testimony of the witnesses brought on record.
43. In a case based on circumstantial evidence, the settled law is that
the circumstantial from which the conclusion of guilt is drawn should be
fully proved and such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and there should be
no gap left in the chain of evidence. Further, the proved circumstances
must be consistent only with the hypothesis of the guilt of the accused
and totally inconsistent with his innocence, as held by the Hon’ble
Supreme Court of India in “Hanuman Govind Nargundkar Vs. State of
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MP” AIR 1952 SC 343, “Bodh Raj Vs. State of J&K” AIR 2002 SC
3164 and “Sharad Birdhichand Sarda Vs. State of Maharashtra” AIR
1984 SC 1622 and “C. Chenga Reddy and Ors. Vs. State of A.P. ” (1996)
10 SCC 193.
44. It is also settled law that accused has to only proboblize the defense
and he is presumed to be innocent, till he is proved to be guilty.
Suspicion, however, strong can never take place of proof. There is
indeed a long distance between accused ” May have committed the
offence” and “Must have committed the offence”, which must be
traversed by the prosecution by adducing reliable evidence. Emphasis is
supplied on the decision of the Hon’ble Supreme Court of India in
“Kailash Gaur Vs. State of Assam ” (2012) 2 SCC 34 and ” Padala Veera
Reddy Vs. State of Andhra Pradesh” AIR 1990 SC 79.
45. There is another golden thread which runs through the web of
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 other to his innocence, the view which is favorable to
the accused should be adopted, as held by the Hon’ble Supreme Court of
India in “Kali Ram Vs. State of Himanchal Pradesh” AIR 1973 SC 2773.
46. The inherent contradictions in the testimony of the prosecution
witnesses had certainly raised doubts in the mind of the Court and the
effort of the Criminal Court is not to be prowl for imaginative doubts,
unless is doubt is of a reasonable dimension and is what judicially
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conscientious mind entertains with some objectivity, otherwise no
benefit can be claimed by the accused. In the present case the doubts
raised from the testimony of the prosecution witnesses cannot be set to
be merely imaginative and the same has been borne from the record of
the present case. The said doubts are not merely imaginary or trivial in
nature and it has dented the entire case of the prosecution. The burden of
proof cast upon the accused persons is governed by the principle of
“preponderance of probabilities” and in light of the discussion above, the
accused persons in the present case have been able to raise reasonable
doubts against the prosecution version of events and the hypothesis as
propounded by the accused persons, that they have been falsely
implicated in the present case, owing to their previous enmity or that
complainant had himself fired the gunshot upon his staircase and that is
why there was gunshot residue (GSR) found on his hands. Therefore,
with the evidence brought on record, it cannot be said that the chain of
prosecution witnesses and the evidence brought on record was so
complete, so as to not leave any reasonable ground consistent with the
innocence of the accused.
47. When the entire evidence of the present case is cumulatively read
and appreciated in the background of the settled principle of law and in
the light of the evidence adduced by the prosecution, this Court is of the
view that the evidence brought on record is not worthy of acceptance and
there is a shadow of doubt cast upon it. Firstly, the testimony of the
complainant PW2 Shakir, wherein he had turned hostile and failed to
identify the accused persons before the Court as the assailants who had
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chased him in the gali outside his house or that they had fired a gunshot
upon him; Secondly, all the other prosecution witnesses namely PW-3
Asif, PW-4 Yunus, PW-5 Mohd. Naqi and PW-6 Md. Farooq had
completely turned hostile and had not supported the prosecution’s story;
Thirdly, non recovery of the alleged weapon of the offence and the bullet
lead, which had hit the tile of the wall and Lastly, the GSR being found
on the hands of the complainant, hence, the prosecution’s story is not
worthy of inspiring any confidence. Hence, it strikes at the very root of
the prosecution story rendering it to be improbable and unbelievable.
Therefore, in the opinion of this Court, there is no doubt that the
prosecution has miserably failed to prove its case beyond reasonable
doubt and hence, accused Parvej @ Shaka S/o Late Sh. Nasir Ali and
Javed S/o Late Sh. Nasir Ali are acquitted of the charges for committing
the offences punishable u/s 307/201/34 of the Indian Penal Code, 1860
and section 27 of the Arms Act, 1959. Hence, they shall be set at liberty.
48. The case property, if any, be released to the rightful owner as per
the law and the applicable rules.
49. The accused persons have already furnished their bail bonds u/s
437-A Cr.P.C 1973. All the previous bail bonds/surety bonds except for
bail bonds u/s 437-A Cr.P.C 1973 are hereby canceled and the surety(s)
stands discharged. The documents furnished by the surety(s) shall be
released to them as per rules. The bail bonds u/s 437-A Cr.P.C 1973
shall remain in force for a period of six months from today.
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50. File be consigned to the record room after due compliance.
Announced in the open court on 07.05.2025.
This judgment consists of 35 pages and all
of them have been digitally signed by me.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.05.07
10:23:47
+0530
(ATUL AHLAWAT)
ASJ (FTC)/North-
East/KKD Courts/
Delhi/07.05.2025.
CNR No. DLNE01-002269-2019 State Vs. Parvej Shaka & Anr. FIR No. 374/16 Page no. 35/35
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