Delhi District CourtSc No.:­27289/16 State vs . & Talib @ Shehjada & Ors. Page No.1/14 on 31 May, 2017IN THE COURT OF SH. PRASHANT KUMAR, ASJ (CENTRAL)
                         TIS HAZARI COURTS, DELHI
Sessions Case No.:-27289/16
Unique ID no.:-02401R484752025
State
Vs.
1.      Talib @ Shehjada
        S/o Irfan
        R/o 1820, Gali Gudadiyan,
        Turkman Gate, Delhi
2. Shehjada Numan
   S/o Safiquiddin
   R/o 1214, Rakab Ganj,
   Behind Delite Cinema,
   Chandni Mahal, Delhi.
3.      Rashid @ Nannu
        S/o Mohd. Habib
        R/o 546, Chhatta Lal Mian,
        Chandni Mahal, Delhi.

Case arising out of:-
         FIR no.                                                              : 171/2015
         Police Station                                                       : Chandni Mahal
         Under Section                                                        : 307/384/411IPCDate of Institution                                                                               : 10.09.2015
Date on which arguments heard                                                                     : 11.05.2017
Date of Decision                                                                                  : 31.05.2017
J U D G M E N T:-1.                      Story of the prosecution in brief is as under:That complainant Mohd. Anees Khan S/o Akhtar Khan stated
that he is running an office of labour job at property no.2369, Shah Abdul
Khair Marg which is lying in front of his house. He stated that on
23.07.2015 at about 2:30 am when he had closed his office, and had


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 come out, he saw Talib along with his two associates coming from Bari
Masjid Side who was known to him earlier. Complainant stated that some
days ago, there were some verbal abuses exchanged in between them
and local people have intervened and separated them at that time.Accused Talib @ Shehjada after reaching there abused the complainant
and said "tu bara badmash bantaa hai, uss din tujhy mohalley walon ne
bacha diya tha, aaj tera kaam tamaam kr dunga". Accused Talib @
Shehjada took out a pistol from his pants, loaded it and pointed towards
the complainant. His two associates said that "finish him immediately
otherwise, local people will rescue him". Complainant in order to save
himself, hit the pistol with his left hand but accused Talib @ Shehjada
fired. Complainant ran towards Hauz wali Masjid, however, all three
accused persons chased him for some time. They were also shouting,
however, they ran away from there. Complainant came to his house and
saw his brother Iqbal was with police and police took him to LNJP
hospital. An FIR was registered at the instance of complainant Anees
Khan. One used cartridge was found from the spot with bullet mark on
the wall and dust lying on the floor. Police thereafter arrested accused
Talib @ Shehjada and Shehjada Numan. One pistol (desi katta) in which
one live bullet was stuck was found from the possession of accused Talib
@ Shehjada. Their disclosure statements were recorded. Third accused
Rashid @ Nannu was arrested at disclosure statement and instance of
accused Shehjada Numan. All the accused persons refused to conduct
their TIP. Complainant further stated that accused Talib @ Shehjada used
to extort money from him and he had given the money to him on various
occasions.2.                      After completion of investigation, final report underSection
173Cr.PC was filed and charge underSection 307/34was framed against


SC no.:­27289/16                                             State Vs.  & Talib @ Shehjada & Ors.                                                            Page no.2/14 
 accused Talib @ Shehjada and Shehjada Numan and Rashid @ Nannu. A
separate charge underSection 25/27Arms Act and U/sec 387IPCwas
framed against accused Talib @ Shehjada. During trial, accused Rashid @
Nannu had expired and proceedings against him are abated vide order
dated 17.02.2016.3.                      In       order            to        establish                the          liability             of       accused                 persons,
prosecution has examined 24 witnesses. Statements of the accused
persons U/s 313Cr.PCwere recorded on 27.02.2017 under which they all
stated that they are not willing to lead their evidence in defence.4.                      Before proceeding further, as per mandate laid down underSection 354 (1) (b)Cr.PC following are the points of determination which
are necessary to consider in order to arrive at a conclusion:(i) Whether accused Talib @ Shehjada was found in
                           possession of a country made pistol which was
                           retained by him without any permit or licence and
                           used the same in the alleged commission of the
                           crime against the complainant. Hence, committed an
                           offence underSection 25/27Arms Act?(ii)         Whether accused Talib @ Shehjada had put
                           Mohd. Anees in fear of death by firing upon him and
                           committed the offence of extortion punishable underSection 387IPC or not?(iii) Whether all the accused persons in furtherance
                           of their common intention attempted to kill Mohd.Anees by firing upon him with country made pistol
                           and committed the offence under Section 307/34SC no.:­27289/16                                             State Vs.  & Talib @ Shehjada & Ors.                                                            Page no.3/14IPC?5.                  (i)          Whether accused Talib @ Shehjada was found in
possession of a country made pistol which was retained by him
without any permit or licence and used the same in the alleged
commission of the crime against                                                                      the complainant. Hence,
committed an offence underSection 25/27Arms Act?With regard to the first point of determination, it is stated by
PW-7 SI Raj Kumar that after the registration of FIR with regard to the
incident dated 23.07.2015, he along with other police officials went to
search the accused where a secret informer informed about accused
Talib @ Shehjada and accused Shehjada Numan were roaming in DIZ
area near Bangla Sahib Road on a golden colour scooty no.0211. After
receiving that information PW-7 reached Bangla Sahib Road and found
scooty with same number parked at road side and upon inquiry, it was
found registered in the name of brother of accused Shehjada Numan.
Accused persons were searched in the same area and they both namely
accused Talib @ Shehjada and Shehjada Numan, were found coming
towards the said scooty. They were apprehended. IO took the personal
search of both the accused persons and recovered one country made
pistol with one live round inside its barrel. It was found inside front dhub
of the pant of accused Talib @ Shehjada. No public person joined the
investigation. IO prepared pullanda of the recovered country made pistol
having live cartridge and sealed the same with the seal of "MK" vide
seizure memo Ex.PW7/K. Scooty bearing no.DL-2SN-0211 was also
seized vide seizure memo Ex.PW7/L. Disclosure statements of both the
accused persons namely Talib @ Shehjada and Shehjada Numan, were
recorded by the IO vide which accused Talib @ Shehjada admitted that



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 he had taken the said country made revolver from accused Rashid @
Nannu. The sketch of the country made revolver so recovered from the
accused is Ex.PW7/J. The live cartridge which was struck in its barrel at
the time of its recovery from accused Talib @ Shehjada, was also seized
vide seizure memo Ex.PW7/K.

5.1.                The case property was opened in the court and was shown to
the witness who identified the same as has been recovered from the
possession of accused Talib @ Shehjada.5.2.                From             the          cross-examination                               of       PW-7,              so        conducted                     on
04.05.2016, a very strange fact has emerged. At page 7 one suggestion
was given from the side of accused which is mentioned as under:"It is correct that country made pistole was recovered from
accused Talib of (on) his apprehension".5.3.                This suggestion no doubt is given by the counsel for the
accused which is nothing but against the accused and is indicating that
the counsel himself is suggesting that country made pistol was
recovered                   on         his         apprehension.                         However,                   during               further              cross-
examination,                       thereafter,                    the         counsel                 has          given             other             negative
suggestions that nothing was recovered from his possession. The above
mentioned suggestion given by the counsel for the accused however,
had demolished the entire defence of accused Talib @ Shehjada that the
country made pistol has been planted upon him. Nothing has been
submitted by the counsel for accused in this regard. The counsel for the
accused has further failed to show anything that the pistol has been
planted upon accused Talib @ Shehjada.5.4.                There are other witnesses i.e. PW-8 Ct. Pushpender, PW-11 Ct.
Rajesh (who were along with the IO at the time of apprehension of

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 accused persons) and PW-23 IO / SI Munish Kumar, who have stated the
similar facts with regard to the apprehension of the accused persons and
recovery of country made revolver being recovered from the front dhub
of the pants of accused Talib @ Shehjada.5.5.                From the testimonies of these witnesses it is reflected that
accused Talib @ Shehjada has failed to show anything from the record in
support of his defence, that he was not carrying any such country made
pistol or if he was carrying it, then he was having license for the same.
The suggestion given by counsel for accused to PW7 at page no.7 cross
examination dated 04/05/2016 as mentioned above is also against the
accused and supporting the story of prosecution.                                                                                           Recording of
statement of accused Talib @ Shehjadau/s 313Cr.PC r/wsection 281Cr.PC so recorded on 27/02/2017 is also relevant to mention here vide
which all the incriminating evidence including recovery of country made
pistol from him for which specific question is question no.3 of said
examination,                         was put to him, however, he has not furnished any
explanation contrary to the facts alleged by the IO in the final report
filedu/s 173Cr.PC. The relevant question which were put to the accused
Talib @ Shehjada are question no.3, 14, 15, 16, 17, 22, 30, 31 and 32. In
the absence of any explanation to the contrary and in the absence of
any evidence in defence of accused Talib @ Shehjada, there is nothing
on record vide which the facts alleged by the prosecution in the
chargesheet against accused Talib @ Shehjada can be said to be
controverted.5.6.                With regard to the use of the said country made pistol it has
been further stated by PW7, 8, 11 and 23 that not only accused Talib @
Shehjada was found in possession of a country made pistol so recovered



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 from his possession but he had also used the same and has fired upon
the complainant. In this regard, one bullet was found lying near the wall
of the shop which is mentioned in detail report Ex.PW2/A. It has been
stated by PW2 SI Rupesh Khatri and IO of the case.                                                                                    However, PW10
Athar Bilal who is stated to be eye witness of the entire incident as well
as PW12 Anis Khan who is stated to be the complainant and stated to
have received the bullet as per story of the prosecution, have not
supported the story of the prosecution in this regard that accused Talib
@ Shehjada had fired upon PW12.                                                                 It is a matter of record that
complainant who is stated to have received bullet injury has turned
hostile and completely resiled from his statement givenu/s 161Cr.PC to
the IO.                Thus, in the absence of any connecting piece of evidence
regarding use of fire arm i.e. country made pistol by accused Talib @
Shehjada, it cannot be considered beyond reasonable doubt and cannot
be concluded that accused Talib @ Shehjada had used the said fire arm
as alleged by the prosecution.                                                 Recovery of country made pistol, one
empty cartridge from the spot which is stated to have been fired from
the same pistol as found recovered from accused Talib @ Shehjada,
however, cannot be ignored.                                                 Thus, with regard to the first point of
determination, it is concluded and I am of the considered opinion that
accused Talib @ Shehjada was found in possession of one country made
pistol which was recovered from his possession, found from the front
dhub of his pant which was without any license. It is needless to say
that country made pistol is covered under the definition of arm as per
theArms Act.6.                  (ii)         Whether accused Talib @ Shehjada had put Mohd.
Anees in fear of death by firing upon him and committed the
offence of extortion punishable underSection 387IPC or not?SC no.:­27289/16                                             State Vs.  & Talib @ Shehjada & Ors.                                                            Page no.7/14 
                     The charge so framed against accused Talib @ Shehjada is
underSection 387IPC. The story of the prosecution is that accused Talib
@ Shehjada used to extort money from Mohd. Anees by putting him in
fear of death or used to threaten him accordingly. The essential
ingredients with regard toSection 387IPC are:(a) The accused must put or attempt to put the victim
                         or anyone to fear;(b) The accused must do to commit extortion;(c) That the fear described in point "A" must be fear of
                       death or of grievous hurt.6.1.                In this regard it is not necessary that fear of death or of
grievous hurt need to be of instantaneous death or grievous hurt. It is
further required to attractSection 387IPC that no extortion in fact has
been committed. If the accused already succeeds in committing
extortion, the offence would fall under the graverSection 386IPC.
6.2.                Keeping in mind the above mentioned essential ingredients
required to invokeSection 387IPC, the evidence available on record
against the accused persons, is perused. From the perusal, it is reflected
that none of the witness examined by the prosecution inspire any
confidence. With regard to element of extortion as alleged in the
prosecution's story, no substantive evidence has been led as to how,
when and in what manner any such act was sought to be committed.
6.3.                In this regard the evidence led by the prosecution is thoroughly
perused. In the final report filed U/s 173Cr.PC, no where in the entire
report there is any allegation made against the accused Talib @
Shehjada regarding extortion except at page no.16 of the final report
vide which it is mentioned that complainant had stated under his
statement recordedu/s 161Cr.PC that Talib @ Shehjada was demanding


SC no.:­27289/16                                             State Vs.  & Talib @ Shehjada & Ors.                                                            Page no.8/14 
 money from him and he had also taken the money from him on earlier
occasion and used to extort money from him forcibly. In this regard, the
statement of complainant Mohd. Anis who is PW12 is perused. There is
not even a single whisper in the examination in chief of PW12 in this
regard. More so, PW12 did not support the story of prosecution and was
declared hostile as he was resiling from his earlier statement so recorded
by the IO. Even from the cross-examination of this witness by the Ld.
Addl.PP, PW12 has denied all the relevant suggestions. Thus, PW12 has
not supported the story of prosecution at all.                                                                              The entire case of
prosecution with regard to the alleged averment regarding extortion and
framing of chargeu/s 387IPC is dependent upon the facts alleged by
PW12 Anis Khan.                                  In the light of his testimony, by which he has
completely resiled from his statement, the story of the prosecution in
this regard cannot be relied upon and considered to be correct.
Therefore, this court cannot conclude that it was Talib @ Shehjada who
had been extorting money from complainant and had also demanded
money before commission of the alleged incident.7.                  (iii) Whether all the accused persons in furtherance of
their common intention attempted to kill Mohd. Anees by firing
upon him with country made pistol and committed the offence
underSection 307/34IPC?For third point for determination, prosecution has examined
number of witnesses. Before proceeding further, it is necessary to lay
down the ingredients ofSection 307IPC which are required to be seen
before determining the liability of the accused persons. These are:(a) That the accused did an act;(b) That the act was done with intention or knowledge
                and under such circumstances to cause a bodily injury as


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                 the accused knew to be likely to cause death or that such
                bodily injury was in ordinary course of nature to cause
                death; or that the accused attempted to cause such
                death by doing an act known to him to be so imminently
                dangerous that it must in all probability cause death and
                such bodily injury as is likely to cause death;(c) That the accused had not excuse for incurring the risk
                of causing such death or injury.7.1.                    After perusal of the entire prosecution evidence, and more
particularly PW10, PW12, & PW18, it is reflected that none of them
inspire any confidence and support the story of the prosecution. So far as
commission of act is concerned, there is no doubt that bullet has been
fired upon injured PW-12, however, the connecting piece of evidence
regarding commission of the act by the accused is not fully established
by the prosecution.7.2.                    The star witness of the prosecution, in this regard, is
complainant Anis Khan who, as already stated above, is alleged to have
received bullet injury and the FIR has been registered after his statement
against the accused persons. Complainant is PW12 in this case. PW10 is
Athar Bilal who is stated to be the shop owner having shop in the same
area and as per the story of the prosecution he was about to close his
shop at that time and has heard the bullet fire. PW18 is Mohd. Iqbal who
is stated to be the brother of complainant Anis Khan. All these witnesses
i.e. PW10, PW12, & PW18 however, did not support the story of the
prosecution. These witnesses have completely resiled from their earlier
statements and none of them have stated that either of the accused had
fired upon complainant PW12.                                                  PW10 the shopkeeper had stated that



SC no.:­27289/16                                             State Vs.  & Talib @ Shehjada & Ors.                                                            Page no.10/14 
 upon hearing the bullet fire he went inside his shop and did not see
anything.                  PW18 has also stated that he was told by his brother that
someone had shot him. PW12 the complainant has also not identified
any of the accused persons and has stated that none of the accused
persons had fired upon him.                                                   From the testimonies of these public
witnesses upon whom the entire story of prosecution is depended as
they are the main connecting chain in determining the guilt of the
accused persons as mentioned in the chargehseet, it is reflected that the
entire case of prosecution against the accused persons have been
demolished.7.3                     In this regard it would be relevant to mention certain landmark
judgments passed by higher courts with regard to hostile witness:(a) Podyami Sukada Vs. State of M.P.(2010) 12 SCC142Evidence of a hostile witness is not altogether wiped out
                and remains admissible in evidence and there is no legal
                bar to base conviction on basis of testimony of hostile
                witness but as a rule of                                                   prudence court requires
                corroboration by other reliable evidence.(b) Gopal Vs. State of Karnataka(2011) 14 SCC 396
                Witness who carried deceased hospital, turned hostile.Held that may not be an escape route for accused
                because                 men             may            lie       but          circumstances                         do         not.Conviction based solely on basis of dying declaration was
                confirmed.(c) M. Sarvana Vs. State of Karnataka(2012) Y SCC636.Court can take into consideration that part of statement


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                 of a hostile witness which supports prosecution's case.
                Appellant contended that PW-7 who was stated to be an
                eyewitness did not completely support prosecution. In
                present case, prosecution had not only proved its case
                but           independent                        witnesses,                    eyewitnesses,                          medical
                evidence and FSL report, but has also established its case
                beyond reasonable doubt on strength of dying declaration
                of deceased himself, conviction was confirmed.(d)          Bhola Ram Kushwaha Vs. State of MP(2001) 1
                SCC 35.Mere witness turned hostile is no general ground for
                acquittal. It is enough to pursue the statement of all
                prosecution                     witness                and           as         certain              whether                  their
                testimonies                     inspire confidence for holding the accused
                guilty.7.4.                    It is reflected from the above mentioned judgments and
various other judgments on this subject that once a witness is not
supporting the case of the prosecution and is declared hostile, it does not
implies in all cases that it shall result into acquittal. The court has to see
the veracity of the statement given by such witness and its corroboration
by other witnesses and if it is found to be corroborated by other
independent witnesses then the testimony of such hostile witness should
not be rejected as a whole. However, in cases where the witness is not
supporting the story of prosecution at all and it is not supported by other
independent witnesses then no option is left but to consider the
implication of the testimony of such witness accordingly. The implication
of testimony of such witness is that the story of prosecution, which is
sought to be supported by this witness, cannot be relied upon. Similar is

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 the         case           present                herein.              In       the         present                case           there             are         three
eyewitnesses. One of the eyewitness is the injured himself. None of them
have supported the story of prosecution at all. None of the witnesses
have identified the accused persons. In these circumstances, therefore,
the crime so committed as per the story of prosecution, cannot be
attributed to have been committed by the accused persons. Their
identity and presence on the spot is disputed by PW-10 Athar Bilal, PW-
12 Anees Khan who is injured as well, and PW-18 Mohd. Iqbal who is the
brother of the injured.7.5.                    In the light of above observation and keeping in mind that
PW10, 12 & 18 did not identify any of the accused persons, none of the
accused persons can be said to have committed the alleged crime as
stated by the prosecution and the facts alleged in the charge framed U/s
307IPCagainst them in this regard cannot be said to be substantiated.
The relevancy of other witnesses examined by the prosecution in this
regard can only be considered as relevant once the connecting chain in
between the commission of crime, and commission of the same by the
accused is said to be established. In these circumstances, therefore, it
would be out of context to mention the testimony of other witnesses who
are nothing but the police officials and concerned doctors. None of such
witness is eyewitness.7.6.                    In the light of above discussion it is therefore reflected that
prosecution has failed to establish the identity and presence of the
accused persons at the spot in question. The other aspect regarding
injury on the person of injured PW-12 Anees Khan, the prosecution has
been successful in establishing the fact that he had suffered the injury,
however, the connecting chain in between the commission of the crime



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 and the act committed by the accused persons, is missing and not
established by the prosecution. None of the essential ingredients ofSection 307IPC can be said to be established by the prosecution against
the accused persons. The prosecution has also not been successful in
establishing the liability of the accused persons beyond reasonable
doubt, as underSection 307IPC that they had committed the crime with
common intention. In such circumstances, none of the essential
ingredients ofSection 307IPC can said to be established. Thus, the
charge so framed underSection 307/34IPC cannot sustained against the
accused persons.7.7.                    With these observations, I do not find any substantive piece of
evidence against the accused persons that they have committed
extortion and had also fired bullet upon PW-12 Anees Khan. Hence, both
the accused persons are acquitted of the charge underSection 387and307/34IPC.8.                      A separate charge underSection 25&27Arms Act has been
framed against accused Talib @ Shehzada. Considering the outcome of
first point of determination, I am of the opinion there is sufficient
material available against accused Talib @ Shehzada that a pistol has
been recovered from his possession. Prosecution however, has failed to
establish, beyond reasonable doubt that accused Talib @ Shehzada had
fired upon PW-12 Anees Khan. Therefore, accused Talib @ Shehzada is
convicted underSection 25Arms Act only.Sentence shall be pronounced separately.Announced in the open court                                                                         (PRASHANT KUMAR)
on 31st May, 2017                                                                                  ASJ/ Central District
                                                                                                   Tis Hazari Court/Delhi


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