Mr. Abid (through VC) v. STATE

Judgment

1. The present appeals under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 8CrPC9) have been filed assailing the common impugned judgment of conviction dated 20.09.2022 and order on sentence dated 19.11.2022 passed by learned Special Judge (PC Act) (CBI)-12, Rouse Avenue Court Complex, Delhi, whereby the present Appellants/Convicts have been convicted in Sessions Case No. 422/2016 arising out of FIR No.101/2013, under Sections 148/149/449/302/427/506(2)/307/323/34 of the Indian Penal Code, 1860, (for short, 8IPC9) and Section 27 of the Arms Act, 1959, registered at Police Station Man Sarovar Park.

2. Vide the impugned judgment of conviction, all the Appellants have been convicted for the offences punishable under Section 302 read with Sections 149/34, Section 148 read with Section 149, Section 449 read with Sections 149/34 and Section 427 read with Section 149 of the IPC. Appellant/Convict, Israil Pehalwan, has also been convicted for the offences punishable under Sections 323/506(Part-II) of the IPC. Appellant/Convict, Arif, has also been convicted for the offences punishable under Section 307 of the IPC and Section 27 of the Arms Act. Appellants/Convicts, Tarif and Gufran, have also been convicted for the offences punishable under Section Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters 323 read with Section 34 of the IPC. Learned Trial Court vide the impugned order on sentence had sentenced the appellants in the following manner: - <17.⁠ ⁠This Court has thoughtfully weighed the aggravating and mitigating circumstances of the convicts while deciding the quantum of sentence. Considering the totality of their social, personal and financial conditions, the Court finds it appropriate to impose varying fine upon all the convicts. Thus, the convicts are sentenced as under :- A. Israil Pehalwan: (i) U/s 302 IPC read with Section 149/34 IPC : - Imprisonment for life and a fine of Rs.2,00,000. In default of payment of fine amount, convict to undergo simple imprisonment of six months. (ii) U/s 148 IPC read with Section 149 IPC:- Imprisonment to undergo simple imprisonment for two years and a fine of Rs.1,000. In default of payment of fine amount, convict to undergo simple imprisonment of 15 days. (iii) U/s 449 IPC read with Section 149 IPC and Section 34 IPC:- A rigorous imprisonment for 10 years and a fine of Rs. 10,000. In default of payment of fine amount, convict to undergo simple imprisonment for one month. (iv) U/s 427 IPC:- A simple imprisonment for 6 months and a fine of Rs. 2,000. In default of payment of fine amount, convict to undergo simple imprisonment for 15 days. (v) U/s 506 Part II IPC:- A simple imprisonment for 03 years and a fine of Rs. 10,000. In default of payment of fine amount, convict to undergo simple imprisonment for one month. (vi) U/s 323 IPC:- A simple imprisonment for 06 months and a fine of Rs. 1,000. In default of payment of fine amount, convict to undergo simple imprisonment for 15 days. B. Javed and Abid:- i) U/s 302 IPC read with Section 149/34 IPC:-Imprisonment for life and a fine of Rs.1,00,000. In default of payment of fine amount, convict to undergo simple imprisonment of three months. (ii) U/s 148 IPC read with Section 149 IPC:- Imprisonment to undergo simple imprisonment for two years and a fine of Rs.1,000. In default of payment of fine amount, convict to undergo simple imprisonment of 15 Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters days. (iii) U/s 449 IPC read with Section 149 IPC and Section 34 IPC:- A rigorous imprisonment for 10 years and a fine of Rs. 10,000. In default of payment of fine amount, convict to undergo simple imprisonment for one month. (iv) U/s 427 IPC:- A simple imprisonment for 6 months and a fine of Rs. 2,000. In default of payment of fine amount, convict to undergo simple imprisonment for 15 days. C. Arif:- (i) U/s 302 IPC read with Section 149/34 IPC:- Imprisonment for life and a fine of Rs.1,00,000. In default of payment of fine amount, convict to undergo simple imprisonment of three months. (ii) U/s 148 IPC read with Section 149 IPC:- Imprisonment to undergo simple imprisonment for two years and a fine of Rs.1,000. In default of payment of fine amount, convict to undergo simple imprisonment of 15 days. (iii) U/s 449 IPC read with Section 149 IPC and Section 34 IPC:- A rigorous imprisonment for 10 years and a fine of Rs. 10,000. In default of payment of fine amount, convict to undergo simple imprisonment for one month. (iv) U/s 427 IPC:- A simple imprisonment for 6 months and a fine of Rs. 2,000. In default of payment of fine amount, convict to undergo simple imprisonment for 15 days. v) U/s 307 IPC:- A rigorous imprisonment for 10 years and a fine of Rs. 10,000. In default of payment of fine amount, convict to undergo simple imprisonment for one month. (vi) U/s 27 Arms Act:- A rigorous imprisonment for 7 years and a fine of Rs. 10,000. In default of payment of fine amount, convict to undergo simple imprisonment for one month. D. Tarif:- (i) U/s 302 IPC read with Section 149/34 IPC:- Imprisonment for life and a fine of Rs.1,00,000. In default of payment of fine amount, convict to undergo simple imprisonment of three months. (ii) U/s 148 IPC read with Section 149 IPC: - Imprisonment to undergo simple imprisonment for two years and a fine of Rs.1,000. In default of payment of fine amount, convict to undergo simple imprisonment of 15 days. Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters (iii) U/s 449 IPC read with Section 149 IPC and Section 34 IPC: - A rigorous imprisonment for 10 years and a fine of Rs. 10,000. In default of payment of fine amount, convict to undergo simple imprisonment for one month. (iv) U/s 427 IPC:- A simple imprisonment for 6 months and a fine of Rs. 2,000. In default of payment of fine amount, convict to undergo simple imprisonment for 15 days. (v) U/s 323 IPC:- A simple imprisonment for 06 months and a fine of Rs. 1,000. In default of payment of fine amount, convict to undergo simple imprisonment for 15 days.. E. Gufran :- (i) U/s 302 IPC read with Section 149/34 IPC:- Imprisonment for life and a fine of Rs.2,00,000. In default of payment of fine amount, convict to undergo simple imprisonment of six months. (ii) U/s 148 IPC read with Section 149 IPC Imprisonment to undergo simple imprisonment for two years and a fine of Rs.1,000. In default of payment of fine amount, convict to undergo simple imprisonment of 15 days. (iii) U/s 449 IPC read with Section 149 IPC and Section 34 IPC :- A rigorous imprisonment for 10 years and a fine of Rs. 10,000. In default of payment of fine amount, convict to undergo simple imprisonment for one month. (iv) U/s 427 IPC :- A simple imprisonment for 6 months and a fine of Rs. 2,000. In default of payment of fine amount, convict to undergo simple imprisonment for 15 days. (v) U/s 323 IPC :- A simple imprisonment for 06 months and a fine of Rs. 1,000. In default of payment of fine amount, convict to undergo simple imprisonment for 15 days.= All the sentences of imprisonment of the convicts shall run 18.⁠ ⁠ concurrently. The benefit of Section 428 Cr.P.C. be given to the convicts. Fine amount realized from the convicts qua offences U/s 148 IPC read with Section 149 IPC and U/s 427 IPC shall be payable to State against the expenses incurred in litigating the present litigation (this Court has considered the affidavit of State filed through Ld. Addl. PP for the State). The rest of the fine amount realized from convicts qua all the other offences be disbursed to the dependents of deceased Ibrahim (mother, wife and son) as monetary compensation.= Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters FACTUAL BACKGROUND

3. Brief facts necessary for the disposal of the present appeals are as under: - i) An information was received vide DD No. 6A (Ex.PW-6A) at Police Station Mansarovar Park on 22.04.2013 at 12:31 AM, that gun shots have been fired and injured is present. On receipt of this information, Insp. Surender Rana, SHO, MS Park (PW-33), Insp. Amar Singh (PW-32) and SI Rajiv (PW-30) reached the alleged place of occurrence, i.e., Shop of H. No. B-105, Gali No.10, New Modern Shahdara, Delhi. There, it was found that ASI Jagdish Narayan (PW- 35) with Ct. Shamim Khan (PW-11) were already present on the spot as calls of quarrel were already made vide DD entries No. 4A and 5A (Ex.PW-4/A & Ex.PW-5A), which were marked to them. It was further revealed that the victim had already been taken to GTB Hospital by PCR Van. SI Rajeev and Ct. Shamin Khan were left at the aforesaid place to guard it and other police personnel went to GTB Hospital and obtained the MLC of victim (C-1514/13), Ibrahim, the deceased in the present case, who was declared brought dead. No eye-witness met police officials at the hospital. ii) SHO/PW-33 along with two other officials (PWs-32 & 35) came back to the alleged place of occurrence and there, they met one Yogender Kasana @ Kalu, complainant-eye witness (PW-1) of the incident and recorded his statement (Ex.PW-1A colly 02 pages). Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters iii) PW-1 in his statement stated that he is resident of 1/3354, Ram Nagar, Shahdara, Delhi and resides with his family there and owns a dairy shop under the name and style of, Sree Ram Dairy. Yesterday, i.e., on 21.04.2013, at around 11:45 PM in night, he had gone to the workshop of his friend, Ibrahim Nissar (deceased), in gali No. 10, New Modern Shahdara, for replacing the battery of his 8ALTO’ car. He stated that his car9s battery was not getting started and he had gone to the deceased9s shop during the day and the latter had told him that he should manage it during the course of day as the battery cannot be repaired during daytime and he will replace (change) it at night. When PW-1 reached the deceased9s shop, Tahir and Noman Umar (brother/PW-6 and Uncle/Chacha (PW-7) of the deceased respectively,) were also sitting there and four of them started discussing about cricket. After around 15 minutes later, there was noise and hustle in the street and the deceased asked his uncle (PW-7) to see what is the matter. So, Noman Umar, uncle of deceased, (PW-7) after seeing from the corner of shop, told that people are looking at his shop only. After a while, Israil Pehalwan, who was a resident of the same street (gali) as that of the deceased, and his four sons, Javed, Abid, Arif and Tarif and his son-in-law (daamaad), Gufran (Appellants/Convicts herein), while carrying laathi, knives, pistol and stumps ambushed/entered into the deceased9s shop. Out of them, Israil Pehalwan was holding laathi in his hand, Javed and Abid were holding knives in their hands, Arif, a pistol, Tarif and Gufran had stumps in their hands and PW-1 knew them beforehand. When all of them started beating, hitting and abusing the Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters deceased, then, his uncle/chacha, started raising hue and cry by shouting bachao-bachao. When Arif started pulling the slider of pistol back and forth, out of fear, uncle of deceased fell down and slipped through the stairs of the shop to the road. Arif fired a shot aiming chacha (uncle of deceased/PW-7) which did not hit him and he ran away to save his life. Brother of the deceased, Tahir (PW-6), tried to rescue the latter, however, Tarif and Gufran, hit him with the stumps and he ran way to save his life as those people were very aggressive. The deceased entered into the inner portion of his shop, where <printing press offset= was installed, to save himself from the Appellants. The Appellants while chasing the deceased also entered behind him and Arif fired several shots on person of the deceased. Javed and Abid gave several knife blows on person of the deceased and Tarif and Gufran (son-in-law of Israil Pehalwan) with stumps and Israil Pehalwan with laathi hit the deceased. In order to save the deceased, when PW-1 held the hand of Israil Pehalwan then, the latter pushed PW-1 and hit PW-1 on his hand and threatened him to go away otherwise they will kill PW- 1 as well. When Javed and Abid were giving knife blows on person of the deceased, Israil Pehalwan told them to kill the deceased and the latter should not survive and to get it over with the deceased today. Then, the Appellants after giving severe blows to the deceased, Ibrahim, destroyed the deceased9s car No. DL 5 CB 6484, Honda City, Silver Colour, which was parked on the road and ran away. iv) PW-1 further stated that thereafter, PCR car arrived at the spot and PCR staff and PW-1 took the deceased in PCR van to GTB Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters Hospital. Deceased9s uncle, Noman Umar, Brothers, Tahir and Tayyab, also reached GTB Hospital, however, they got to know that Ibrahim has passed away. PW-1 further stated that all of them then, came back to Ibrahim9s shop and met police officials, who recorded his statement. v) Thereafter, one fired cartridge was found lying on the road in front of shop with 7.65 KF on its base, one damaged Honda City silver colour car, DL 5CB6484, standing opposite the shop with broken glasses lying on the outer portion of the shop was found. On inspection, it was found that in the inner portion of the shop in which the printing press offset was established, lot of blood was lying on the floor. One empty shell of a fired cartridge on which 7.65 KF was engraved was found in front of road of situated at shop B-105, Gali No.10, Near Masjid Al Huda, New Modern Shahdara, Delhi. Three fired and three live cartridges on which 7.65 KF was engraved were found lying on the spot, i.e., inside the shop near the partition of offset printing machine where blood was found. One blood-stained sports shoe of brand, Columbus, two blood stained damaged/broken cricket stumps, one blood-stained wrist watch with name Rolex, one cap of brand, Addidas, were found inside the shop situated at B-105, Gali No.10, Near Masjid Al Huda, New Modern Shahdara, Delhi, and taken into possession. Crime scene was photographed and inspected by mobile crime team. On the basis of the statement of eye-witness, Yogender Kasana/PW-1, inspection of MLC No. C-1514/13 of the deceased, Ibrahim, and facts illustrated above, offences punishable under Sections 302/307/452/427/506/34 of the IPC and Sections 25/27 of the Arms Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters Act, 1959, were found to be committed and accordingly, rukka was

prepared by Insp. Amar Singh and present FIR was registered and investigation of the same was undertaken by Insp. Amar Singh. vi) During the course of investigation on 22.04.2013, IO/Insp. Amar Singh (PW-32) prepared the site plan at the instance of PW-1 and seized following things/items from the alleged place of occurrence vide respective seizure memos: - a) Blood from the spot in gauze piece (Ex.PW-30/C); b) Blood-stained earth (Ex.PW-30/D); c) Earth without blood (Ex.PW-30/E); d) Four fired and three live cartridges (Ex.PW-30/G); e) One blood stained laathi (Ex.PW-30/B: Ex.PW-7/Article-1); f) Two partly damaged blood-stained cricket stumps (Ex.PW-30/F- Ex.PW-30/Art-8; Art-9); g) One blood-stained wrist watch with Rolex name (Ex.PW- 1/C:PW-1/Art-4); h) One blood-stained Columbus sport shoe (Ex.PW-1/B:PW-1/Art- 3); vii) PW-1 stated that the laathi and cricket stumps were left by the appellants/convicts after the attack and that the wrist watch and shoe belong to deceased, Ibrahim. Blood-stained clothes of PW-1 were also taken into possession by the IO, Insp. Amar Singh, and he was medically examined at GTB Hospital and his MLC No. A-1519/13 was obtained wherein, nature of injury under observation (u/o) blunt was Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters stated. Final opinion with respect to the nature of injury of PW- 1/complainant were stated to be simple. Post-mortem of the deceased was conducted in mortuary of GTB Hospital and thereafter, corpse of the deceased was handed over to Tahir, brother of deceased, Ibrahim, and sealed blood-stained clothes of deceased, blood in gauze piece and two sample seals were handed by doctor to Insp. Amar Singh and same were taken into possession vide seizure memos Ex.PW-30/C to Ex.PW- 30/A-18. viii) Thereafter, Appellant, Israil Pehalwan, was arrested and his arrest memo, personal search memo, disclosure memo and pointing out memo were prepared. Statements of witnesses were recorded under Section 161 of the CrPC. Clothes of Appellant, Israil Pehalwan, worn during the commission of alleged offences were also seized. During investigation, on 24.04.2013, Appellants-Tarif, and Gufran, were arrested and the clothes which were worn by them during the aforesaid incident were also taken into police custody separately. Post-mortem report, PM Report No. 503/13, from GTB Hospital was obtained as per which deceased had received twenty injuries. The aforesaid seized products were sent to FSL for examination and scaled site plan of the place of occurrence was prepared by the Draughtsman (PW-14). Appellant, Javed, was arrested on 21.06.2013 by police officials of PS Jamia Nagar vide DD No. 36A of the even date and he was formally arrested in the present FIR on 25.06.2013 and was taken on two days police remand/custody. During investigation, weapon of offence, knife, was recovered at the instance of Appellant, Javed, and at his instance Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters only, memo of place of occurrence was prepared and the clothes which were worn by him at time of occurrence of the present incident were taken into possession. ix) Appellants, Abid and Arif, surrendered in the Court on

01.07.2013 and subsequently, they were formally arrested. During investigation, Motor Cycle No. DL 7 SAS 3940, Discover, was recovered which they had used to flee from the spot after commission of the alleged offences in the present case and at their instance as well, pointing out memos of place of occurrence were also prepared. A magazine of pistol was recovered at the instance of Appellant, Arif, and weapon of offence, knife, was recovered at the instance of Appellant, Abid. Subsequently, Sections 147/148/149 of the IPC were added. x) Based on the evidences collected during investigation, as noted hereinabove, it was opined that sufficient evidence has emerged against the present Appellants/Convicts for commission of offences punishable under Sections 302/307/452/427/506/323/147/1148/149/34 of the IPC and chargesheet dated 19.07.2013 was filed before the Court of competent jurisdiction.

4. Learned Metropolitan Magistrate vide order dated 22.08.2013 committed the present FIR for trial to Sessions Court. Learned ASJ vide order dated 24.09.2014 framed charges against the present Appellants/Convicts for the offences punishable under Section 148 read with Section 149 of the IPC, Sections 449/34/149 of the IPC, Sections 302/34/149 of the IPC, Sections Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters 427/34/149 of the IPC, Sections 506(2)/34/149 of the IPC. Additional charges for the offences punishable under Section 307 of the IPC and Section 27 of the Arms Act was also framed against Appellant, Arif, and for offences punishable under Sections 323/34 of the IPC against Appellants, Gufran and Tarif, and for offence punishable under Section 323 of the IPC against Appellant, Israil Pehalwan. The Appellants pleaded not guilty to the aforesaid charges framed against them and claimed trial. Prosecution in order to prove the charges levelled against the Appellants examined 37 witnesses before the learned Trial Court. After conclusion of prosecution witnesses, separate statements of the Appellants under Section 313 of the CrPC were recorded by the learned Trial Court wherein they took separate defences which are as follows: - a) Appellant, Israil Pehalwan, had stated that the prosecution witnesses have wrongly identified them as accused persons and on

21.04.2013, there was function of engagement of his son, Abid (who is also a co-convict in the present FIR) and there was no occasion for the Appellants to assault Ibrahim (deceased) or any other person on that day, as they were busy in the said function and he does not know as to why police had apprehended him and other Appellants/accused persons. b) Appellant, Arif, claimed to be innocent and stated that deceased Ibrahim had performed love marriage and had several enemies as his wife was Hindu and it was an inter-faith marriage. He further stated that deceased Ibrahim did not reside at his parental house and after a Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters long gap, deceased had joined his parental family. On the day of alleged incident, the Appellant-Arif, stated that he was busy in function of engagement of his brother Abid. He further stated that he had good relations with deceased and he was surety of deceased Ibrahim in FIR No. 24/2011, under Section 411 of the IPC, registered at PS Seelampur. c) Appellant, Abid, stated that the case against him is a false case and the witnesses have deposed falsely against him. He stated that he is innocent and on 21.04.2013, there was function of his engagement and there was no occasion for them to assault Ibrahim or any other person on that day. d) Appellant, Tarif, stated that on 21.04.2013, there was a function of engagement of his brother, Abid and he was present in the house and he heard a noise from outside and when he came out, he saw that police officials had apprehended his father, Israil (co-convict). He further stated that he used to work with deceased in an hotel, two years prior to the alleged incident and he had left the said job as police officials used to visit the said work place and perhaps, there were some cases against the deceased, Ibrahim Nisar. e) Appellant, Javed, stated that on 21.04.2013, there was a function of engagement of his brother, Abid and he was present in the house and he did not commit any offence. f) Appellant, Gufran, stated that he is son-in-law of co-convict, Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters Israil, and brother-in-law of other co-convicts and has no concern with their family except attending functions organised by them or visiting them on occasions of festivals and being their relative, he has been implicated in the present case.

5. Thereafter, the Appellants were given opportunity to lead defence evidence. Except Appellant-Gufran, to disprove the case of prosecution and to prove their innocence, other Appellants examined three defence witnesses, DW-1-HC Jhabar Ram, PS Seelampur; DW-2- Mohd. Raffiq R/O of Gali No.4 Subhash Vihar, an old friend of Appellant-Israil Pehalwan; DW-3- Feroz Khan, President of Delhi State Meo Sabha. DW-1, HC Jhabar Ram, was a summoned witness who had brought summoned record pertaining to FIR No. 24/2011 dated 30.01.2011, under Section 379 of the IPC, registered at PS Seelampur and copy of FIR was exhibited as Ex.DW-1/A and in his cross-examination, he admitted the fact that the aforesaid FIR No.24/2011 was registered against unknown persons. DW-2, Mohd. Raffiq, stated that Appellant, Israil Pehalwan, is his friend and their relationship was going to be converted into relationship and he visited the house of Israil Pehalwan in April 2013 with his 2-3 relatives for performing engagement of his daughter with son of Israil, i.e., Abid. He stated that they reached the house of Israil at about 8-9 PM and remained there till 11:45 PM-12:30AM in the night and he do not remember the exact time when they left and till they remained there, he did not hear any hue and cry. DW-3, Feroz Khan, president of Delhi State Meo Sabha stated that he had come to the house of convict Israil Pehalwan on the occasion of engagement of his son and he does not know the name of the son. DW-3 stated that he was invited from both the sides and he reached there Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters at about 10-10:30 PM and rituals had already been performed and he met public persons attending the function there. He stated that he remained there for almost 1.5-2 hours and cannot tell the exact time when he left the function, however, it may be probably 11:45 PM-12 midnight.

6. Learned Trial Court, after appreciating the testimonies of the prosecution witnesses as well as the defence witnesses and material placed on record by the prosecution during the course of trial vide the aforesaid impugned common judgment of conviction and order on sentence convicted the Appellants and sentenced them accordingly as noted hereinabove. Hence, the present appeals have been filed by the Appellants assailing said judgment. SUBMISSIONS ON BEHALF OF THE APPELLANTS-ISRAIL PEHALWAN, TARIF, JAVED, ARIF

7. Learned counsel for the Appellants, Israil Pehalwan, Tarif, Javed and Arif, has made the following submissions in support of their appeals which are as follows: - i) It is submitted that learned Trial Court has passed the impugned judgment primarily based on the testimony of eye-witness-Yogendra Kasana (PW-1), who is also the complainant in the present case and a stranger to the family of the deceased. It is further submitted that the medical and ocular evidence revealed during the investigation in the present case is in contrast to the testimony of PW-1, eye-witness, whose conduct itself is not trustworthy. As per PW-1, he had gone to Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters deceased9s shop to get the battery of his car repaired at 12 in the night on the date of alleged incident as the deceased was a motor mechanic. It is pointed out that it has come on record by way of testimonies of PW-6 and PW-7 (brother and uncle/chacha respectively) of the deceased that the latter was not a car mechanic and was in the business of sale-purchase of cars. Learned counsel has argued that PW-1 was not present at the spot when the alleged incident has happened as he did not meet the police officials, PWs-30,32,33,35; at the spot as well as in hospital and had met the said officials when they came back to the spot after receiving the MLC of the deceased (Ex.PW-5/A), and thereafter, PW-19s statement was recorded. This, as per learned counsel, shows that PW-1 is a planted witness inasmuch as the distance between his house and the deceased is nearly ‰ kilometres and the purpose of his visit to the deceased9s shop, as stated in the statement (Ex.PW-1/A colly: Rukka statement) given to IO/PW-32 based on which FIR in the present case has been registered, and the time when he had visited deceased9s shop is quite surprising and beyond imagination as no reasonable person would go to a place at hand9s distance in the middle of night merely to get the battery of his car repaired/replaced. It has been argued that the claim of PW-1 that he had called the police lacks merit because as per CAF (Customer Application Form: Ex.PW-37/A) traced to the mobile number (9911102102) from which PCR call, Ex.PW-15/B, was made does not show PW-1 as its owner and the original owner of said mobile number, i.e., Prakash Chand Bhati, has not been examined by the prosecution during trial. It is further submitted that Babar, brother of the deceased, who was examined as Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters PW-8 before the learned Trial Court, has also stated that he had made a call at 100 number using his mobile number, 9136555040, in pursuance of which DD entry No.5A (Ex.PW-4/B) was recorded; however, during investigation, it was revealed that said mobile number was in the name of one Shahzad, who was not examined during the course of trial. It is further submitted that similar is also the case of call made by PW-10, wife of the deceased, who had made a call at 100 number from mobile number 9654968814 in pursuance of which DD entry No. 4A (Ex.PW- 4/A) was registered and the said number was found to be registered in the name of one Manish as per CAF (Ex. PW-37/E). It is, thus, the case of the Appellants that making of PCR calls the mobile numbers of other persons and not from their personal contact numbers by PWs-1, 8 and 10 creates a doubt over the case of prosecution. It is further the case of the Appellants that no document has been placed on record by the prosecution pertaining to the car of PW-1 for which he had allegedly gone to the deceased9s shop for replacing the battery. Further, the said car was not recovered/seized during investigation and nor there is any document placed on record by the prosecution which could show that PW-1, in fact, owned a car. ii) The claim of PW-1 was that he had received a laathi blow on his right hand, however, in his MLC No.1519/13 (Ex.PW-3/A), it has been recorded that his left hand/forearm has been injured. PW-19s medical examination was done on 22.04.2013 at 10:10 AM, i.e., after a delay of approximately 8 hours after the happening of the present incident and no reasons regarding such delay were mentioned by PW-1 or Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters prosecution during trial. It has been contended that PW-1 has not stated anything in respect of the fact why his medical examination was not done at the hospital in the intervening night of 21-22.04.2013 when the deceased was declared dead. In view of the aforesaid circumstances, it has been argued that the testimony of PW-1 suffers from material contradictions and lacunas and the same cannot be relied on and learned Trial Court erred in relying on his testimony while passing the impugned judgment. iii) Learned counsel has argued that, as per the case of prosecution, Appellant-Arif, had fired several shots at the deceased and PW-7, Noman Umar, his chacha, however, none of them hit either the deceased or PW-7 which is unbelievable and it casts doubt over the prosecution story as the same has not been mentioned in site plan (Ex.PW-14/A) as also no bullet marks were found at the shop by Crime Team during inspection of the crime spot (Ex.PW-36/A-Scene of Crime Visit Report). Further, the story of watching IPL cricket match has been belied as no recovery of TV was made during investigation and same was also not captured in the pictures of the crime spot taken by Investigation Team. It is further pointed out that there was no mention of TV in the rough site plan as well as main site plan prepared with the help of Draughtsman (PW-14). iv) It has been pointed out that PWs-6,7,8,10 are planted witnesses and they are not eye-witnesses and at best, their testimonies can be considered as hearsay evidence, and therefore, the same cannot be read Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters in evidence as none of them had witnessed the incident in entirety. PWs-6&7 were stated to have left the spot to save themselves from the Appellants. Further, there are several contradictions in their testimonies and reliance placed on same by learned Trial Court is misplaced. It has also been argued that relatives of deceased, i.e., PWs-6,7,8,10- brother, uncle/chacha, brother and wife respectively, had not made any complaint in the present case and strangely, prosecution has lodged FIR in the present case based on the statement of PW-1, who is a complete stranger to the family of the deceased. It is pointed out that Investigating Officer, PW-32, and other police officials, PWs-30, 33 & 35, have stated in their testimonies that no family member of the deceased was there in the hospital or at the alleged crime spot. Further, that PWs-6 & 7, who were allegedly present at the spot with the deceased had also not accompanied the deceased to the hospital. It has also been pointed out that, as per the statement of PW-1/eye-witness, Tahir/PW-6 and Noman Umar/PW-7 had also received injuries during the alleged incident when they came to the rescue of the deceased. However, their medical examination was not conducted by IO/PW-32 during investigation. It is further pointed out that Noman Umar/PW-7, as per the case of prosecution, had accompanied the PCR police official (PW-19) in the PCR van in which the deceased was taken to the GTB Hospital, and no blood stains were found on his clothes which is unlikely in view of the facts of the present case. v) Learned counsel has further submitted that, as per the case of the prosecution, there were three PCR calls registered pertaining to the Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters present case, i.e., vide DD Nos. 4A, 5A, 6A, and as per each of the said DD entries, the description of place of occurrence is different and distinct, and in fact, the substance and contents of each DD entry do not correspond or corroborate each other. vi) It is further submitted that the prosecution has failed to ascribe any motive to the Appellants for committing the murder of the deceased and on the date of alleged incident, engagement ceremony of Appellant-Abid was going on in the house of Appellant-Israil Pehalwan. It is the case of the Appellants that the motive attributed to the Appellants by the testimony of Ashu Choudhary/PW-16 does not withstand as the dispute regarding transaction of mortgage against vehicle, a car-DL5CH4979, by PW-16 with Appellant-Javed was resolved between the parties two years prior to the happening of the incident in the present case by return of the said vehicle itself. It is further pointed out that PW-16 himself has stated that the deceased, Appellant-Israil Pehalwan, was present along with two police officials when his vehicle was returned to him and he had paid Rs.1,10,000/- to Appellant-Israil Pehalwan. vii) Insofar as the alleged recovery of magazine of pistol vide seizure memo Ex.PW-30/A-13 (exhibited as Ex.PW-30/Art-3) at the instance of Appellant-Arif is concerned, it is submitted that the same has been planted by police as the recovery has been effected from an open place and that too after a gap of 2‰ months from the date of the incident and such a long delay has not been explained by prosecution during trial. Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters viii) In respect of alleged recovered weapon of offence, i.e., knife, at the instance of Appellant-Javed vide seizure memo Ex.PW-30/Z, it is submitted that the said weapon of offence was never sent for obtaining opinion of the Doctor to corroborate that alleged injuries reflected in the post-mortem report could have been caused with said weapon. It is further the case of Appellants that the site plan was not prepared at the instance of any of the eye-witnesses and the testimonies of IO/PW-32 and police officials, PWs-30, 33, 35, do not corroborate the testimony of PW-1. It is further submitted that as per the FSL report, Ex.PW- 29/A, pertaining to an iron knife (Exhibit 15), it has been concluded that no DNA profile could be generated from the said knife due to presence of inhibitors. ix) It is further submitted that ocular evidence in the present case does not corroborate the medical evidence. The case of the Appellants is that the prosecution has failed to place on record any material to show that the injuries mentioned in the post-mortem report (Ex.PW- 13/A) could have been caused by the alleged weapon of offence, i.e., knife (vide seizure memo Ex.PW-30/Z: Ex.PW-30/Art-1), recovered at the instance of Appellant-Javed. It is submitted that two knives were recovered in the present case at the instances of Appellants-Javed and Abid, and nothing has been brought on record to demonstrate as to by which knife alleged injuries were caused to the deceased. It is further submitted that same is also the case with respect to the live and fired cartridges which were recovered during investigation vide seizure Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters memo Ex.PW-30/G from the partition of printing machine (offset) in the shop of the deceased and were not sent for obtaining any opinion with respect to the injuries which could be caused with the said cartridges. Learned counsel has pointed out that as per the testimony of eye-witness/PW-1, Appellant-Arif is stated to have fired several bullet shots at the deceased, however, there are no bullet injuries caused to the deceased by the said shots, as per post-mortem report (Ex.PW-13/A). x) It is further the case of the Appellants that the case properties were deposited in Maalkhana on 04.09.2013, i.e., approximately 6 months after date of the incident, and therefore, the possibility of tampering with the crucial evidence of the case could not be ruled out. Attention of this Court has been drawn towards the testimony of PW- 22, Ballistics Expert from CFSL, who had stated that there was no identification mark on the magazine allegedly recovered at the instance of Appellant-Arif. xi) The statements of PW-8, brother of Tahir/PW-6, and Zara Ibrahim (PW-10: wife of the deceased) was recorded by IO/PW-32 after 2‰ months of the alleged incident and no explanation with respect to the said delay has come on record from Investigating Officer/PW-32. xii) Insofar as the recovery of the alleged motor cycle (Ex.PW- 30/Art.-7) vide seizure memo Ex.PW-30/A-9, from Karkardooma Court is concerned, it is submitted that the same was recovered after the Appellants were arrested and lodged in prison and the said recovered Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:03.11.2025 20:46:24 CRL.A. 260/2023 & connected matters motor cycle does not link the complicity of the Appellants in the present case in any manner. xiii) Learned Trial Court has failed to appreciate the fact that DWs-2 & 3 have stated before the learned Trial Court that on the day of the alleged incident, there was a family function in the house of the Appellants and that the Appellants as well as said defence witnesses were present at their house for the said function when the alleged incident had happened and Appellants were busy in the function. It is further case of the Appellants that the testimonies of defence witnesses have also been corroborated by the testimony of PW-9, who had also stated that he had come to the function of engagement ceremony of the son of Appellant-Israil Pehalwan (Abid: Co-convict: Appellant herein). xiv) Learned counsel for the Appellants has relied on following precedents in the support of the present appeals: - a. Rajesh@ Sharkhar v. State of Haryana1, b. Ramvir v. State of Uttar Pradesh2, c. Amar Singh v. State NCT of Delhi3, d. Mustkeem @ Bhura v. State govt. of NCT4, e. Khanbha Raja Reddy v. Public Prosecutor High court of