SHOKEEN Vs. STATE

JUDGEMENT

(1.) BRIEFLY the prosecution case is that on the complaint of one Nadeem Ahmed FIR No. 365/1998 under Section 307/114/34 IPC was registered at P.S. Gokulpuri alleging that on 5th June, 1998 at about 7:45 P.M. in Gali No. 22, A-Block, Sri Ram Colony, Delhi, Appellants Tasleem, Yamin @ Shokeen, and co-accused Frahim and Salim(since P.O.) on the abetment of one Mohsin who also came at the spot, in furtherance of their common intention caused injuries on the person of PW2 Nadeem Ahmed by opening fire at him with country-made pistols with an intention to cause his death. After investigation, a charge-sheet was filed. The Appellants Tasleem, Shokeen and one Frahim were charged for offences under Section 307/34 IPC whereas Mohsin was charged for offences punishable under Section 114 read with Section 307 IPC. After recording the prosecution witnesses, statements of the accuseds and the defence witnesses the learned trial court convicted the Appellants and Frahim for offences punishable under Section 307/34 IPC and awarded a sentence of Rigorous Imprisonment for a period of five years and a fine of '2000/- each and in default of payment of fine to undergo further Rigorous Imprisonment for a period of two months. Accused Mohsin was convicted for offences punishable under Section 114 read with Section 307 IPC and awarded a sentence of Rigorous Imprisonment for a period of four years and a fine of Rs.2000/- and in default of payment of fine to further undergo Rigorous Imprisonment for a period of two months.

(2.) TASLEEM and Shokeen have filed the present appeal whereas Crl. Appeal No. 441/2000 was filed by Frahim and Mohsin. In the said appeal, Frahim and Mohsin did not challenge their conviction and only sought modification of the sentence for imprisonment to the period already undergone. This Court vide its judgment dated 14th September, 2000 held that the provision of Probation of Offenders Act could not be extended, however, in view of the facts and circumstances of the case since the Appellants were not previous convict and showed exemplary behaviour during the period of incarceration, modified the order on substantive sentence and reduced it to the period already undergone while maintaining the sentence of fine and imprisonment in default thereof.

(3.) I have heard the learned counsel for the parties and perused the record. PW3 in his testimony has stated that on 5th June, 1998 around 7:30 ? 7:45 P.M. when the sun was about to set, he was standing at a short distance from Nadeem who was sitting on the plot of one Mustkeen along with Rasheed, Shammi Alam and Javed. At that time, Mohsin, Tasleem, Frahim , Shokeen and Salim who are residents of Sri Ram Colony came and Mohsin while abusing asked the other four to fire at Nadeem. On this, first of all Shokeen fired the shot which hit on the right side of the chest of Nadeem. As the Complainant ran others also fired shots and one more bullet hit him, however he could not identify as to whose bullet hit him for the second time. He has further stated that as far as he knows Mohsin had an old enmity with Nadeem as Mohsin was arrested under the Arms Act in the year 1992 and he suspected that Nadeem had got him arrested. PW4 Rashid Ahmed has also stated that on Mohsin asking to shoot Nadeem, the other accused who were armed with country-made pistols open fired on Nadeem. The first bullet was fired by Shokeen on which Nadeem tried to run away and thereafter the second bullet was fired, which he could not see as to who fired it. This version is further corroborated by PW5 Shammi Alam who has stated that on Mohsin asking the other accused person to kill Nadeem, the accused persons took out the country-made pistol and accused Shokeen first fired at Nadeem and due to which he tried to run away and he sustained bullet injuries on the right side of his chest. When he ran way, accused persons followed him and again opened fired on him. PW2 Nadeem the injured witness in his testimony stated that when he was sitting on the cot at the plot of Mustkeen along with Rafiq, at that time accused Shokeen, Tasleem, Frahim, Moshin and Salim reached there. All the accused persons except Mohsin had pistols in their hands. Mohsin said 'fire the shot', on which Shokeen fired a shot. At that time, he ran away and all the four accused fired shots at him. One shot hit him on the right side of the chest and the second on the left side of his stomach. While running, he reached the STD booth from where the police was called and on the police reaching there, he was taken to the hospital. PW2 has clarified that the first shot which hit him on the right side of the chest was fired by the Shokeen. This fact is further corroborated by the testimony of PW3, PW4 and PW5. The testimony of PW2 the injured witness is clear and trustworthy as he has not been able to state as to whose shot hit him on the stomach as he could not have perceived each and every action of the accuseds because he immediately ran to save himself. Thus, the prosecution has proved beyond reasonable doubt that the Appellants in furtherance of their common intention caused gunshot injuries to PW2 Nadeem. The contention of learned counsel for the Appellant that they have been falsely implicated because they were making complaints against the witnesses since they were running the NGO looses ground in view of the decision of the Hon'ble Supreme Court in Kallu @ Masih and others v. State of M.P. 2006 (10) SCC 313 wherein the Hon'ble Supreme Court held:-