Delhi District Court
State vs . (1) Kali Charan on 16 April, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE
II (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 89/2012
Unique Case ID No.: 02404R0241752012
State Vs. (1) Kali Charan
S/o Sh. Hori Lal
R/o Jhuggi No. C374, Lal Bagh,
Azadpur, Delhi
(Convicted)
(2) Ram Kumar
S/o Sh. Ram Sewak
R/o Jhuggi No. F121,
Jailer Wala Bagh, PhaseII,
Ashok Vihar, Delhi
Permanent resident of
Village Ram Nagar, PO Shidhana,
Distt. Azamgarh, PS Mohazpur,
Uttar Pradesh
(Acquitted)
(3) Sarvesh Kumar
S/o Sh. Shyam Dev
R/o Jhuggi No. F121,
Jailer Wala Bagh, PhaseII,
Ashok Vihar, Delhi
Permanent resident of
Village Ram Nagar, PO Shidhana,
Distt. Azamgarh, PS Mohazpur,
Uttar Pradesh
(Convicted)
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 1
(4) Chander Bhan @ Pathak @ Kana
S/o Sh. Kirpal Singh
R/o Kasba Shikarpur,
Mohalla Ambedkar Nagar,
Near Bara Khamba Road, ByePass,
Distt. Bulandsher, UP
(Convicted)
(5) Bimlesh
W/o Sh. Satish
R/o Jhuggi No. B297, Lal Bagh,
Azadpur, Delhi
(Convicted)
(6) Amit @ Mangru
S/o Sumant Maurya
R/o House No. A386,
Chandra Shekhar Colony, WPIA,
Delhi.
Also at: C178, Jhuggi Lal Bagh,
Azadpur, Delhi
(Convicted)
(7) Anil
S/o Sant Lal
R/o Jhuggi No. C340,
Jailer Wala Bagh, Ashok Vihar,
Delhi
(Proclaimed Offender)
FIR No.: 138/2012
Police Station: Model Town
Under Sections: 392/395/397/304/120B IPC
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 2
Date of committal to session court: 28.9.2012
Date on which orders were reserved: 29.3.2014
Date on which judgment pronounced:29.3.2014
JUDGMENT:
(1) As per allegations on or before 9.6.2012 all the accused namely Kali Charan, Ram Kumar, Sarvesh Kumar, Chander Bhan @ Pathak @ Kana, Bimlesh and Amit @ Mangru hatched a criminal conspiracy along with their coaccused Anil (Proclaimed Offender) to commit dacoity at House No. A176, Ground Floor, Gujrawala Town, PartI, Delhi belonging to the complainant Kamla Devi and deceased Kishan Lal Manchanda. It has been alleged that on 9.6.2012 at about 3:10 PM the accused Kali Charan, Ram Kumar, Sarvesh Kumar, Chander Bhan @ Pathak @ Kana and Amit @ Mangru along with their coaccused Anil (Proclaimed Offender) committed dacoity at the above said house and took away mobile phone belonging to Smt. Kamla Devi and caused the death of Kishan Lal Manchanda aged about 75 years by causing injuries to him and by pushing him on the ground with intention of causing his death or with the intention to cause such bodily injuries as it likely to cause death or with the knowledge that by their act they would likely to cause death of Kishan Lal Manchanda. It has also been alleged that at the time of committing dacoity the accused Amit @ Mangru and Chander Bhan were armed with deadly weapon i.e. knives. Further, as per the allegations on St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 3 13.10.2012 at Jhuggi No. C178 the accused Amit @ Mangru dishonestly received or retained two gold karas jewellery, a stolen property, the possession whereof he knew or having reasons to believe to have been transferred by the commission of dacoity.
CASE OF THE PROSECUTION/ BRIEF FACTS:
(2) The case of the prosecution is that on 09.06.2012 DD No.20A was received at Police Staiton Model Town pursuant to which SI Manoj along with Ct. Kushal reached the place of incident i.e. H. No. A176, Ground Floor, Gujrawalan Town, PartI, Delhi. SI Manoj found one pair of slippers and one towel outside the house and met the complainant Smt. Kamla Devi in the house. The almirah of the house was in an open condition and articles were found in a scattered condition. There was blood in the gallery and in the kitchen of the house and one blood stained currency note in the denomination of Rs.50 was also found in the room.
SI Manoj came to know that the injured was already taken to the Pentamed Hospital and he immediately informed the SHO about all the facts after which he interrogated Smt. Kamla Devi in detail wherein she made allegations of robbery by four assailants who caused the injuries to her husband and assailants took away her mobile phone and shown knife to her. SI Manoj then recorded the statement of Smt. Kamla Devi on the basis of which the present FIR was registered. After registration of FIR the investigations of this case was then handed over to Inspector St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 4 Jagmender Singh who reached the spot and inspected the scene of crime. The Crime Team officers also inspected the scene of crime, took the photographs and also lifted chance prints from the spot. The Investigating Officer then lifted the various exhibits including slippers of black colour and one white colour hand towel from the spot. The Investigating Officer then examined the CCTV footage of the house and asked the owner Dharampal Sharma owner of the house to got prepare the CD of the CCTV footage pursuant to which Dharampal Sharma produced two CDs of the CCTV footage of the spot at the time of incident which were taken into possession. The Investigating Officer went to Pentamed hospital where SI Manoj met him and he came to know that the injured Kishanlal Manchanda was declared dead by the doctors after which the dead body of the deceased Kishanlal Manchanda was shifted to the mortuary of BJRM hospital and on the next day the postmortem examination on the body of the deceased was got conducted and after postmortem he handed over the dead body to the sons of deceased.
(3) During investigations on 12.06.2012 pursuant to a secret information the accused Kali Charan and Ram Kumar were apprehended from Prince Road, Model Town pursuant to which both the accused were interrogated and they confessed their involvement in this case after which both the accused were arrested. One mobile phone of blue and black colour with SIM was recovered from the possession of the accused Kali Charan. On 13.06.2012 both the accused were produced before the court St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 5 and one day Police Custody remand of accused Kali Charan was obtained whereas the accused Ram Kumar was sent to Judicial Custody and during Police Custody Remand the accused Kali Charan pointed out the place of incident. On 15.06.2012 information was received from Police Station Ashok Vihar that accused Sarvesh was apprehended by HC Rameshwar Rana of Police Station Ashok Vihar after which the accused Sarvesh Kumar was arrested in the present case after confirming his identity from the CD. One day Police Custody Remand of the accused Sarvesh Kumar was obtained during which accused Sarvesh pointed out the place of incident. On 04.07.2012 an information was received about the arrest of accused Chander Bhan from SI Hira Lal of Police Station Model Town after which the Investigating Officer arrested the accused Chander Bhan in the present case and in his disclosure statement the accused Chander Bhan confessed his involvement in this case. One day Police Custody Remand of the accused Chander Bhan was obtained during which the accused Chander Bhan pointed out the place of incident and also pointed out the place i.e. a park near Narela, J.J. Colony in the bushes where he kept the weapon of the offence i.e. the knife and also got recovered the said knife which was taken into possession. On 09.07.2012 pursuant to a secret information the accused Bimlesh was apprehended and arrested from near Hans Cinema, G.T. Karnal Road and in her disclosure statement she confessed her involvement in the present case. On 28.6.2010 the Investigating Officer moved an application for the TIP of the accused St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 6 Sarvesh Kumar but the accused refused to take participate in the TIP. After completion of investigation initially he filed charge sheet against accused Kali Charan, Ram Kumar, Sarvesh Kumar, Chander Bhan and Bimlesh.
(4) On 12.10.2012 an information was received from Special Staff North West District regarding arrest of accused Amit @ Mangru on which the Investigating Officer arrested the accused Amit @ Mangra from Rohini Court Complex and obtained his one day Police Custody Remand. During the Police Custody Remand the accused pointed out the place of incident and also recovered a knife from in front of the DDA Flats near Shamshan Ghat which knife was seized. Pursuant to his disclosure statement the accused Amit @ Mangru got recovered two golden colour bracelet (kara) from his residence at C 178, Lalbag Jhuggi, Azadpur, Delhi and disclosed that the same was robbed from the place of incident. After completion of investigations supplementary charge sheet was filed against the accused Amit @ Mangru whereas the accused Anil could not be arrested and has been declared a Proclaimed Offender. CHARGES:
(5) Initially charges under Sections 120B IPC, 395 r/w 120B IPC and 304 r/w 120 B IPC were settled against the accused Kali Charan, Ram Kumar, Sarvesh Kumar, Chander Bhan @ Pathak @ Kana and Bimlesh.
Further, a charge under Section 397 IPC was settled against the accused St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 7 Chander Bhan @ Pathak @ Kana. All the accused pleaded not guilty and claimed trial. After the arrest of accused Amit @ Mangru supplementary charge sheet was filed against him pursuant to which charges under Sections 120B IPC, 395 r/w 120B IPC, 304 r/w 120 B IPC, 397/398 IPC and 412 IPC were settled against the accused Amit @ Mangru to which he pleaded not guilty and claimed trial.
(6) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of witnesses:
Sr. PW No. Name of the witness Details of the witness No. 1 PW 1 HC Ramphool Police Witness - Duty Officer 2 PW2 HC Ishwar Police Witness - DD Writer 3 PW3 HC Ram Niwas Police Witness - MHCM 4 PW4 Ct. Kaushal Police Witness who had reached the spot with SI Manoj Kumar 5 PW5 SI Ramesh Chand Police Witness - Crime Team Incharge 6 PW6 Ct. Sandeep Police Witness - Finger Print Expert 7 PW7 Ct. Subash Police Witness - Crime Team Photographer 8 PW8 HC Rameshwer Police Witness who has proved the arrest of accused Sarvesh Kumar 9 PW9 SI Heera Lal Police Witness who has proved the arrest of accused Chander Bhan in FIR no.
167/12, u/s. 25 of Arms Act 10 PW10 W/Ct. Geeta Police Witness who joined investigations with IO and proved the arrest of accused Bimlesh 11 PW11 Dr. A.K. Singh CMO from Pentamed Hospital who has St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 8 proved the MLC of the deceased 12 PW12 Dr. Bhim Singh Autopsy Surgeon who has proved the postmortem report of the deceased 13 PW13 Dr. Vivek Sharma Public witness - son of the landlord who shifted the deceased to hospital 14 PW14 Avinash Shukla Public witness - private photographer 15 PW15 Vishal Gaurav Nodal Officer from Bharti Airtel Ltd. 16 PW16 Mukesh Manchanda Public witness - son of the deceased 17 PW17 Sh. D.P.Sharma Landlord of the victims - a witness to the incident 18 PW18 Jag Parvesh Public witness - son of the deceased 19 PW19 Ms. Poonam Sharma FSL Expert - Senior Scientific Officer (Biology) 20 PW20 Sh. N.K. Sharma Finger Print Expert 21 PW21 Sh. Deepak Nodal Officer from Vodafone Mobile services 22 PW22 HC Chandveer Member of the Special Staff (NW) who has proved the arrest of Amit @ Mangru 23 PW23 Ct. Yogender Singh Member of the Special Staff (NW) who has proved the arrest of Amit @ Mangru 24 PW24 Ct. Jitender Police witness who had joined investigations with Inspector Jagmender Singh 25 PW25 Ct. Ajeet Police witness who had joined investigations with Inspector Jagmender Singh 26 PW26 Ms. Neelam Manocha Public witness - daughter in law of the deceased 27 PW27 SI Manoj Police witness - Initial Investigating Officer 28 PW28 HC Narender Dhama Police witness who has proved the arrest of accused Chander Bhan 29 PW29 Smt. Kamla Devi Public witness - wife of the deceased St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 9 and an eye witness to the incident 30 PW30 Inspector Jagmender Singh Investigating Officer of the case 31 PW31 Ct. Vipin Kumar Police witness who has proved the arrest of accused Chander Bhan List of documents Sr. Exhibit No. Details of documents Proved By No.
1. PW1/1 Affidavit of evidence of HC Rampal HC Rampal
2. PW1/A FIR
3. PW1/B Endorsement on Rukka
4. PW2/1 Affidavit of evidence of HC Ishwar Singh HC Ishwar Singh
5. PW2/A DD No.18A
6. PW2/B DD No.19A
7. PW2/C DD No.20A
8. PW3/1 Affidavit of evidence of HC Ramniwas HC Ramniwas
9. PW3/A Copy of register no.19 S.No. 3037/12
10. PW3/B Copy of register no.19 S.No.3039/12
11. PW3/C Copy of register no.19 S.No.3050/12
12. PW3/D Copy of register no.19 S.No.3093/12
13. PW3/E Copy of register no.19 S.No.3034/12
14. PW3/F Copy of register no.21 RC 22/21/12
15. PW3/G FSL Receipt
16. PW4/1 Affidavit of evidence of Ct. Kaushal Ct. Kaushal
17. PW5/1 Affidavit of evidence of SI Ramesh SI Ramesh Chand Chand
18. PW5/A Crime Team Report
19. PW6/1 Affidavit of evidence of Ct. Sandeep Ct. Sandeep
20. PW7/1 Affidavit of evidence of Ct. Subhash Ct. Subash
21. PW7/A1to Photographs St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 10 A10
22. PW7/B Negatives
23. PW8/1 Affidavit of evidence of HC Ramehwar HC Rameshwer
24. PW8/A Arrest memo of accused Sarvesh
25. PW8/B Personal Search memo of accused Sarvesh
26. PW8/C Disclosure Statement of Sarvesh
27. PW9/1 Affidavit of evidence of SI Heera Lal SI Heera Lal
28. PW9/A Disclosure statement of accused Chander Bhan
29. PW10/1 Affidavit of evidence of W/Ct. Geeta W/Ct. Geeta
30. PW10/A Arrest memo of Bimlesh
31. PW10/B Personal Search memo of Bimlesh
32. PW10/C Disclosure Statement of Bimlesh
33. PW11/A MLC No.640/12 Dr. A.K.Singh
34. PW12/A PM Report Dr. Bhim Singh
35. PW14/A Copy of CD Avinash Shukla
36. PW14/B1 to Photographs developed from CD B8
37. PW15/A Customer application form Vishal Gaurav
38. PW15/B Call details record from 20/05/12 to 09/06/12
39. PW15/C Cell ID Chart
40. PW15/D Certificate U/s 65B of Evidence Act
41. PW16/A Statement of Mukesh Mukesh
42. PW16/B Dead Body handing over memo
43. PW17/A Seizure memo of CD Sh. D.P. Sharma
44. PW18/A Dead Body Identification Statement Jag Parvesh
45. PW19/A Biological Report Ms. Poonam Sharma
46. PW19/B Serological Report
47. PW20/A Finger Print Expert Report Sh. N.K. Sharma St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 11
48. PW21/A Customer Application Form in respect of Deepak mobile No. 9582372346
49. PW21/B Copy of election ID
50. PW21/C Call Detail records from 1.6.12 to 16.6.12
51. PW21/D Cell ID Chart
52. PW21/E Certificate U/s 65B of Evidence Act
53. PW22/A Arrest memo of Amit @ Magru HC Chanderveer
54. PW22/B Personal search memo of Amit @ Mangru
55. PW22/C Disclosure statement of Amit @ Mangru
56. PW22/D DD No. 16A
57. PW24/A Arrest memo Ct. Jitender
58. PW24/B Disclosure statement
59. PW25/A Arrest memo of Kali Charan Ct. Ajeet
60. PW25/B Personal search memo of Kali Charan
61. PW25/C Arrest memo of Ram Kumar
62. PW25/D Personal search memo of Ram Kumar
63. PW25/E Disclosure statement of Kali Charan
64. PW25/F Disclosure statement of Kali Charan
65. PW25/G Pointing out memo by Kali Charan and Ram Kumar
66. PW25/H Pointing out memo by accused Sarvesh
67. PW25/I Sketch of knife recovered from Chander Bhan
68. PW25/J Seizure memo of knife
69. PW25/K Pointing out memo by accused Chander Bhan
70. PW25/L Subsequent disclosure statement of accused Kali Charan
71. PW25/M Arrest memo of accused Chander Bhan
72. PW25/N Disclosure statement of Chander Bhan St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 12
73. PW25/O Sketch of knife recovery from accused Amit @ Mangru
74. PW25/P Seizure memo of knife
75. PW25/Q Seizure memo of gold bangles
76. PW25/R Pointing out memo by accused Amit @ Mangru
77. PW25/S Disclosure Statement of accused Amit @ Mangru
78. PW27/A Statement of Kamla Devi SI Manoj
79. PW27/B Endorsement on statement
80. PW27/C Request for examination of the dead body
81. PW27/D Seizure memo of earth control
82. PW27/E Seizure memo of Currency note
83. PW27/F Seizure memo of slipper and towel
84. PW27/G Seizure memo of Blood sample
85. PW30/A Rough site plan Inspector Jagmender
86. PW30/B Inquest form Singh
87. PW30/C Request for Postmortem EVIDENCE:
(7) In order to prove its case the prosecution has examined as many as Thirty One witnesses as under:
Public witnesses/ victim:
(8) PW13 Dr. Vivek Sharma S/o Shri D.P. Sharma, R/o 1st Floor, A176, Gujrawalan Town, Part1, Delhi110009 has deposed that on 09.06.2012 at about 3:15 PM, he was taking rest at his house after taking lunch when suddenly he heard some noise on which he came out from the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 13 house and noticed that many persons had gathered on ground floor where their tenant Mr. Kishan Manchanda was residing and he came to know that some robbers came to his house. According to the witness, he also went there and found Kishan Manchanda lying on the ground after which with the help of the public person and Mrs. Manisha Manchanda, daughterin law of Kishan Manchanda he took Kishan Manchanda to Pentamed Hospital in his car and got Mr. Manchanda admitted there. The witness has further deposed that at the ground floor, at the front side, there is dental clinic of his wife and Kishan Lal Manchanda was residing at the backside on the ground floor.
(9) With the permission of the Court leading questions were put to the witness by the Ld. Addl. PP for the State wherein the witness has denied the suggestion that he received information of noise from receptionist of dental clinic of his wife and has voluntarily explained that the Receptionist might have talked with his father but himself had come out from his house after hearing noise on the ground floor). (10) In his crossexamination by the Ld. Defence Counsels the witness has deposed that the public persons found by him at the ground floor were their neighbours and his father and their neighbour Mrs. Jain and some maid servants were also present there. According to the witness, he found Mr. Kishan Lal Manchanda in the kitchen lying on the ground and his face facing upside.
(11) PW14 Avinash Shukla has deposed that he is a photographer St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 14 by profession and is having a studio at G2, Model TownIII, Delhi. According to the witness, six months from ago two officers from Police Station Model Town came to him and handed over him a pen drive and asked him to prepare a CD of the contents of the same. He has further deposed that he prepared three copies of the contents of the pen drive in CDs and handed over the same to these officers. According to the witness, after some days, these officers had also got prepared from him the photographs of the said contents of the CDs which he prepared and handed over to them. The witness has proved the copy of CD which he had prepared which is Ex.PW14/A and the eight photographs which are Ex.PW14/B1 to Ex.PW14/B8 which are stills from the CD. (12) In his crossexamination by the Ld. Defence Counsels the witness has deposed he cannot tell the exact date when these copies were got prepared from him and has voluntarily explained that personals from Police Station Model town frequently come to him for getting the various photography work done. He is unable to tell the exact period, but states that it is more than about three months back that he had prepared the CD which is not more than two years ago. According to the witness, he did not mark any identification mark on the photographs and has voluntarily explained that he has identified the photographs on the basis of his memory. He has admitted that these photographs and CD does not have any mark or any sign of identity which shows that the same had been prepared by him. He has testified that he made identification mark at St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 15 point A on CD Ex.PW14/A. According to the witness, he did not give any receipt or bills to the police officer of Model Town for preparation of CD nor the police prepared any documents while receiving the above said photographs and CDs from him. He does not remember the amount which was charged by him from the police officers for preparation of photographs and CD. The witness has also deposed that he did not maintain any register for the above said photographs and CD however, he issued the cash memos whose photographs were taken by them in their studio. He has admitted that police never recorded his statement. He has denied the suggestion that he is deposing falsely at the instance of Investigating Officer or that the above said CD or photographs were not prepared by him.
(13) PW16 Sh. Mukesh Manchanda is the son of the deceased. He has proved that on 10.06.2012 he identified the dead body of his father Sh. Kishan Lal Manchanda at the mortuary of BJRM Hospital vide his statement Ex.PW16/A and after postmortem he received the dead body of his father vide memo Ex.PW16/B. He has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard. (14) PW17 Sh. D. P. Sharma is the landlord of the deceased/ victim and a witness to the incident. He has deposed that Sh. K.L. Manchanda was residing at the ground floor of their house as tenant along with his wife Smt. Kamla Devi and he (witness) has been residing at the house on the first floor. According to the witness, on 9.6.2012 at about St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 16 3:15 PM he received a telephone call from the clinic of his son from the Receptionist that noise was coming out from the house of K.L. Manchanda and on his further asking she told him that K.L. Manchanda was scolding someone. The witness has further deposed that he ignored the same as K.L. Manchanda was habitual in speaking in loud voice and after some time he came downstairs to pick up his purse when he found the entrance gate of the house of K.L. Manchanda open. According to the witness, when he looked inside he found an unknown person dressed in sky blue coloured shirt standing inside the house and he (witness) asked him what was the matter, where is Mr. Manchanda call him out "kya baat hai, Manchanda Sahab kahan hai, unhe bahar bulao." He has testified that on this, the said person went inside while he kept standing on the gate and after some time the said person came outside and told him that Mr. Manchanda was not well (unki tabiyat kharab hai) on which he (witness) felt it was necessary to inquire about his health. He has further deposed that as soon as he had taken about one or two steps into the house, the said man shouted "aa gaya" on which he (witness) immediately became apprehensive and suspicious of him and looked at him and tried to stop him. According to him, there was a hathapai and he raised an alarm of chorchor and while he was still grappling with him, they came on the road side and the said person managed to get himself freed from his grip and ran away leaving behind his chappals. The witness has also deposed that soon he noticed three more persons coming out from the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 17 house of Mr. Manchanda one after the other and ran behind the first persons in quick succession and one of them left behind his towel. According to the witness, the last person pulled out a knife and gave a slash blow directed on his neck but he saved himself by ducking. He has further deposed that after hearing the alarm which he had raised some public persons including his family members gathered and they immediately informed the police. He has also deposed that some of the public persons entered in the house of Mr. Manchanda and found him lying on the floor and then there was a discussion as to whether to shift him (K.L. Manchanda) to the hospital or to wait for the police but they decided to shift him to the hospital first. According to him, in the meanwhile the other family members of Mr. Manchanda who were residing a little away from the said house also reached the spot and one lady from their family, his son (son of witness) and one another boy from neighbourhood i.e. the son of his neighbour picked up Mr. Manchanda and shifted him to the car and by that time the police also reached at the spot. According to the witness, Mr. Manchanda was shifted to Pentamed Hospital and later he came to know that he was no more. (15) The witness has further deposed that there is a CCTV Camera installed outside of his house and in many other houses in the neighbourhood in the same street. He has testified that Police had checked the recording of CCTV Camera installed in his house on the same day where they found the movements of the accused persons recorded on St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 18 which police asked him to hand over the recordings of the visuals of the CCTV Camera of that day in a CD. According to the witness, on receiving this request from the police he asked the agency who had installed the CCTV Camera at his house i.e. A to Z Infolink, situated at Subhash Place, Delhi to prepare the CD of the footage after which they took the hard drive of the camera and copied the visuals in the pen drive. He has also deposed that when he noticed that it was in a pen drive he directed his PSO to get the CD of the same prepared which he did and thereafter he handed over the CD to the police which CD is Ex.PW14/A and the stills from the said CD are Ex.PW14/B1 to Ex.PW14/B8. He has proved that the said CD was seized by the police vide memo Ex.PW17/A. (16) After seeing the visuals of CD and the stills in the Court the witness has identified the person seen in sky blue colour shirt in Ex.PW14/B5 as the person who was standing a little away from the entrance in the house of Mr. Manchanda and with whom he had spoken. It has been observed by this Court that the said accused is Sarvesh. The witness has further identified the person seen in Ex.PW14/B6 as the person who had left the towel at the spot while he was running away. It has been observed by this Court that the said accused is Amit. He has identified the person seen in Ex.PW14/B7 and Ex.PW14/B8 at point encircled A as the person who had given St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 19 him the slash blow with the knife while he was running away. It has been observed by this Court that the said accused is Chander Bhan. The witness has further identified the person seen in Ex.PW14/B7 and Ex.PW14/B8 as the person in a check shirt as encircled B as one of the assailants who had come of the house and was carrying a bag. It has been observed by this Court that the said person is accused Anil who is Proclaimed Offender. According to the witness, his statement was recorded on the same day. On a specific Court Question the witness has deposed that the recording of the CD Ex.PW14/A is correct as per the CCTV Footage.
(17) The CD has been played in the court and it has been observed by this Court that the presence of witness in Kurta Payjama is seen at 15:18:33 and also at 15:19:2223 onwards till 15:19:30. The court has also observed that in fact there are five persons involved in the incident as reflected from the CCTV footage of which one person was wearing a head gear i.e. White Pagri and was the first to be seen as running away who is accused Kali Charan. The accused seen in sky blue shirt is Sarvesh. The accused Amit is in double coloured T Shirt/ Sweat Shirt and Chander Bhan is the one who is the last to come out with a knife in his hand. The person with check shirt carrying a bag in his hand is accused Anil who is Proclaimed Offender. (18) In his crossexamination by the Ld. Defence Counsels the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 20 witness has deposed that he did not go inside the house of Mr. Manchanda particularly in the room where the incident had taken place therefore he cannot tell abut the status of said room and has voluntarily added that in fact he had told the other persons also not to enter the house so that the scene of crime is not disturbed. According to the witness, he has never been called to the police station or to the Jail to identify any of the accused persons. He has further testified that Mr. Manchanda was a tenant in his house for more than two years and after receiving the information from the receptionist he must have come downstairs after about 45 minutes. The witness has also deposed that the cars are never parked in the service lane and has voluntarily added that they are parked in front of the house on the main road. He has further deposed that the distance where he was standing when he noticed the door of Mr. Manchanda was open, is not even one foot away and has voluntarily added that normally the door used to be closed and when he found it open, it was unusual. He has denied the suggestion that no CCTV camera are installed at his house or that the footage retrieved from the camera have been manipulated in connivance with the investigating agency only to work out the blind case. The witness has also deposed that it was his PSO who got the CD of the visuals prepared but he is unable to tell from there the CD of the same was got prepared. He does not recollect if he had told the police in his statement that Mr. Manchanda was suffering from some heart ailment. The witness has also deposed that his son had made the PCR Call. According to him, St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 21 the police officers interrogated him once or twice but he is unable to tell at how many times his statement was recorded by the police. He has admitted that there may be his two statements which were recorded by the police. He does not recollect the exact date but the CD of the CCTV footage was handed over to the police after one or one and a half month. He has admitted that he might have handed over the CD of the footage on 07.09.2012. According to the witness, the day of the incident was Saturday and it was holiday for him since it was the time of Court holidays (It is noted here that witness is Presiding Officer in the Courts). (19) PW18 Sh. Jag Pravesh Manchanda is the other son of the deceased who has deposed that on 10.06.2012 he identified the dead body of his father Sh. Kishan Lal Manchanda at the mortuary of BJRM Hospital vide his statement Ex.PW18/A in this respect and after postmortem they received the dead body of his father vide memo Ex.PW16/B. This witness has not been cross examined by Ld. Defence counsels despite opportunity granted.
(20) PW26 Ms. Neelam Manchanda is the daughterinlaw of the deceased. She has deposed that she is a housewife and Sh. Kishan Lal Manchana was her father in law and Smt. Kamla Devi is her mother in law. The witness has further deposed that at the time of incident i.e. on 09.06.2012 she was residing at A130, Gujranwala Town, PartI Delhi alongwith her family member including her husband and children on the first floor and on the upper ground floor her devar was residing with his St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 22 family members including his wife and children. According to the witness, her father in law Kishan Lal Manchanda and mother in law Smt. Kamla Devi were residing at the H. No. A176, Gujranwala Town on rent basis on the ground floor since her mother in law was unable to walk. She has testified that she used to visit her father in law and mother in law daily at the day time. Witness has testified that one maid servant was appointed by her father in law and mother in law for their help at their house and the maid servant Bimlesh was referred by Kali Charan. She has deposed that the behaviour of maid servant Bimlesh was not good and she already expressed her suspicion about Bimlesh to her mother in law and also told her mother in law to change the maid servant. The witness has also deposed that the maid servant however was not removed by her mother in law on account of her medical problem as she was totally bed ridden and unable to move. Witness has further deposed that on 09.06.2012 at about 3.003.15PM she went to the house of her in laws to meet them but found many public persons gathered there and also found her father in law Kishan Lal Manchanda lying on the ground in unconscious condition between the kitchen and the living room i.e. the place where the fridge was kept. The witness has testified that it appeared as if he was dragged inside from outside as he had injuries on his head and there were blood stains indicating that he was dragged and she noticed that Almirah of the living room was opened and St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 23 articles were lying scattered while her mother in law was crying. She has also deposed that with the help of the son of the landlord who is a doctor, she rushed her father in law to the Pentamed hospital but he was declared brought dead. Witness has further deposed that her mother in law informed her that Rs.10,000/ and four gold bangles and one Mangal Sutra had been robbed. Witness has correctly identified the accused Bimlesh and Kali Charan in the court.
(21) In her cross examination by Ld. Defence counsel, witness has deposed that her her husband who is the son of deceased Kishan Lal Manchanda are two brothers. She has admitted that they i.e. both the brothers and the families are residing with their children at A130 Gujranwala Town, PhaseI, Delhi. According to her the distance between their house and the house of her father in law is about 510 minutes walk. She has testified that her father in law and mother in law had been residing at H.No. 176, Gujranwala Town, Delhi for about 1 1½ years prior to the date of incident and has voluntarily explained that their house No. A130, Gujranwala Town was under construction and her parents in laws were also to shift to the said house. Witness has further deposed that her parents in law used to stay alone at H.No. A176, Gujranwala Town, Delhi and nobody from their family stays there for night and has voluntarily explained that sometime when there was a problem her brother in law (devar) used to stay there. According to the witness, her mother in law was totally bed ridden and unable to walk at the time of incident. Witness has St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 24 further deposed that prior to Bimlesh, there was no full time maid and has voluntarily explained that Mamta was working as a part time maid. According to her after Mamta it was Bimlesh who was working in the house of her parents in law. She has admitted that Kamlesh, the sister of Bimlesh also came to work at the house of her parents in laws and has voluntarily added that it was Bimlesh only who had kept Kamlesh at her mother in laws house temporarily. She is unable to tell for how many days Kamlesh did work in the house of her mother in law and she also cannot confirm if Kamlesh had worked in the house of her mother in law for two months. She has denied the suggestion that Kali Charan was a frequent visitor at the house of his father in law. Witness has further deposed that she and her husband had visited her parents in law a night prior to the incident. She has denied the suggestion that Bimlesh had not been kept in the house of her mother in law on the asking of Kali Charan or that she was deposing falsely on this count due to tutoring of police. Witness has further deposed that she had told her mother in law that the behaviour and conduct of Bimlesh was not proper "Bimlesh ka chal chalan theek nahin hai."on the basis of her personal observations. She has denied the suggestion that she never visited her parents in law frequently as claimed by her or that she went their house only after 1520 days. According to her Kali Charan is known to her because he used to sell fruits in the area on a pheri. She has denied the suggestion Kali Charan used to frequently get the medicines for her parents in law and has St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 25 voluntarily explained that it was his brother in law who used to get medicines for them. Witness has further deposed that she had observed that the iron almirah kept in the other room was opened by the key and she had checked the articles and not her mother in law and has voluntarily explained that her mother in law is totally immobile. Witness has further deposed that she was aware that police had caught hold of Kali Charan and Bimlesh on the same day and has voluntarily explained that on that day she was in the hospital but when she came back from the hospital she was told by people that they have been arrested. According to the witness, the articles of both the almirah i.e. wooden and iron had been scattered. She has denied the suggestion that prior to this incident they had no complaint from Bimlesh or that Bimlesh had not been removed on account of the fact that her parents in law had no complaint with her and has voluntarily explained that they had not removed Bimlesh because the medical condition of her mother in law was very bad and there is a severe paucity / shortage of maids in the area. She has testified that they had not got done the police verification of Kamlesh and Bimlesh and Kali Charan used to come daily on a pheri to sell fruits to her father in law. The witness has further deposed that she had reached at her father in laws' house at about 2.003.00PM and has voluntarily explained that she does not recollect the exact time. Witness has further deposed that she had become so nervous that she cannot tell if it could be even after 3.00PM. She has denied the suggestion that Bimlesh had been referred by Kamlesh to her father in St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 26 law and has voluntarily reaffirmed that she was referred by Kali Charan. According to her she did not tell the police that there was injury on the head of her father in law and she had seen the blood on the floor as if he had been dragged and has voluntarily added that the police was standing there at the spot and had seen this. She has denied the suggestion that she has been tutored by the Investigating officer. (22) PW29 Smt. Kamla Devi is the wife of the deceased and has been observed to be paralytic wait down and unable to move without help. She is an eye witness to the entire incident. She has deposed that on 9.6.2012 at around 3:00 PM she was at her house with her husband. The witness has explained that she is totally paralytic waistdown and cannot move at all without help being bed ridden and it for this reason that they i.e. she and her husband had kept a part time maid who used to come in the morning and leave in the evening. She has further deposed that Kamlesh used to work at their house previously and Bimlesh had joined the services at their house as maid for the last three to four months from the date of incident and used to help her and was aware of all the details of their house. It has been observed by this Court that the witness is confused on the names and sometimes gives the name as Kamlesh and sometimes Bimlesh but has identified the accused Bimlesh correctly in the court as the one who working in her house as a part time maid at the time of the incident. Witness has further deposed that Kali Charan was a fruit seller and used to regularly supply fruits in the locality and also at St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 27 their house. According to her, on the date of incident at about 3 to 3:15 PM Kali Charan called out to them from outside (Kali Charan ki bahar se aawaj aai) asking them to purchase Kharbujas and her husband Kishan Lal Manchanda had gone outside for making payment of the Kharbujas to Kali Charan. She has further deposed that thereafter, she heard loud noise and soon she saw outside that there were two persons out of whom one was wearing check shirt and the other one was wearing spectacle (Chasma). According to the witness they all were pushing her husband inside the room and all the Kharboojas were scattered and these two men pushed her husband down and were on him and hitting him and she saw one of them stabbing on his face (vo dono unke upper chad gaye aur eik admi unke muh per chaku mar raha tha). Witness has also deposed that when she raised alarm the other person who was in the check shirt came inside the room to her and pressed her mouth (dusre ne mera muh daba diya) and they then asked her to come outside near her husband on which she told them that she was immobile and cannot move (maine unse kaha ki mai chal fir nahi sakti). Witness has further testified that thereafter she wanted to make a telephone call to her sons but as soon as she caught hold her mobile phone to make a call, these boys snatched the mobile phone from her hand and the person who had come inside knew where the keys of the almirah were kept and he took the keys and opened the almirah and took away her two gold karas, chain and cash amount which was kept there. According to the witness she could hear alarm St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 28 and voices of "chorchor" coming from the outside after which the two persons who were standing outside and two persons who had come inside the house i.e. all the four of them ran away. Witness has further deposed that the neighbors gathered there and made a call to the police and her husband was immediately rushed to the hospital by their neighbor who is a Judge and is residing on the first floor. The witness has testified that in the meanwhile since her daughterinlaw had also come, so she also went to the hospital along with her husband when he was being taken to the hospital and after sometime when the police came, her statement was recorded which statement is Ex.PW27/A. (23) The photographs of the CCTV recordings which are Ex.PW14/B1 to Ex.PW14/B8 have been shown to the witness in the Court who confirms that these photographs are of her residence where the incident took place and from the said photographs she has identified the boy with check shirt and one with spectacles in Ex.PW14/B1 as the two boys who were assaulting her husband. She has also identified the boy in the check shirt as the one who had pressed her mouth and the person who was having one eye (Kana) was the one who was inflicting blows and injuries on her husband after they came inside. (24) The witness has also correctly identified the accused Bimlesh (by referring to her as Kamlesh) saying that she sometimes called herself St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 29 as Kamlesh and sometimes Bimlesh and she was the one who was working as the maid in their house when the incident took place. She has stated that she can identify the accused who was wearing check shirt and other wearing spectacles but not others who were outside the room. According to the witness the person who was wearing check shirt was the one who had pressed her mouth. She has identified the accused Chander Bhan as the person who had climbed over her husband and gave him repeated blows inflicting stabbing on his face. It has been observed by this Court that the accused Chander Bhan is one eyed / Kana. Witness has further stated that the person who was wearing the check shirt was of a dark complexion and was a healthy person and since it is one year since the incident, therefore she is not able to exactly identify him but it could be the accused Sarvesh Kumar who appears to be dark and healthy. It has been further observed by this Court that the accused Mangru who is having a beard and mustache is also healthy and dark complexion and the accused Mangru has admitted that he has grown a beard and mustache now in Jail. Witness has further deposed that the said person was not having beard at that time. This Court also observed that the person who is wearing check shirt in the photographs is the accused Anil who is PO as informed by the Investigating Officer. (25) She has also identified two gold Karas as the same as robbed by the accused persons which Karas are Ex.P3 and Ex.P4. St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 30 (26) In her cross examination by Ld. Defence counsel, witness has deposed that her daughterinlaw Neelam used to visit her regularly in a day or two. According to the witness, her statement was recored by the investigating officer (witness has pointed towards Inspector Jagmender Singh who is present in the court, as the officer who had recorded her statement). She has testified that Bimlesh had worked at their house for few days and the accused before this court whether Bimlesh or Kamlesh is the sister of the maid who had worked at their house previously. Witness has further deposed that Bimlesh used to come to their house in the morning at 7:00 AM and used to return in the evening and in between she used to go back at around 1:00 to 1:30 PM and return at 2:00 PM and has voluntarily added that on the date of incident she told her that she would come at 4:00 PM because she was feeling very hot. Witness has further deposed that she (maid) normally returned daily at about 2:00 PM and has voluntarily added that she also used to have food and tea every day with them. She has admitted that on the date of incident when the accused Bimlesh came in the evening, she was taken away by the police and has voluntarily added that at that time when she came, she was talking to someone on her mobile phone informing them what was happening at her house. Witness has further deposed that her statement was recorded by the police on two occasions on the same day. The witness has also deposed that nobody had recommended Kamlesh the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 31 sister of Bimlesh who was earlier employed with them as domestic maid and has voluntarily explained that one day she was just passing through the area and had come to their house asking for work and hence she was kept as domestic help by them because she required full time attendant. According to her, the accused before this court i.e. Bimlesh was the one who was working with her at the time of incident. She has denied the suggestion that she was deposing falsely against the accused Bimlesh at the instance of Investigating Officer. She has admitted that the Investigating Officer had come to her house on the day of her deposition along two other police officials and she had come with them. According to her Investigating Officer had not read over her statement to her at her house and has voluntarily explained that her statement was read over to her by the Investigating Officer previously (pehele padai thi par aaj nahi). Witness has further deposed that Investigating Officer did not tell her what to say in the court and has voluntarily explained that she remember the entire incident herself. According to her, she had seen everything and it was the Investigating Officer who had on the day of her deposition read over her statements to her at her house. It has been observed by this Court that the witness is an old lady aged about 70 years who is ailing, unable to move without help being paralytic waist down and it is always open for her to refresh her memory before her statement is recorded. (27) According to her, she had never seen the accused Kali Charan before as she always remained outside and she cannot identify him and has St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 32 voluntarily explained Kali Charan was selling fruits in the area for large number of years. She has deposed that she had earlier given his details to the police. She has admitted that as on date she was not very sure about the boy who had pressed her mouth. According to her, she can only tell that he was only wearing check shirt at the time of incident and was healthy and dark complexion. However, it has been observed by this Court that the accused with check shirt confirmed as dark and healthy who according to the Investigating Officer is PO accused Anil. Witness has further deposed that she had never seen Chander Bhan previously and has voluntarily explained that she can identify him because one of his eye is damaged. According to her at the time when her husband was being stabbed she was on her double bed being unable to move but she could see outside from there and has voluntarily deposed that she could see Chander Bhan stabbing her husband. She has also denied the suggestion that accused Chander Bhan was not the assailant or had not stabbed and assaulted her husband and has voluntarily explained that she had seen him stabbing her husband on his face with a knife on which her husband was screaming. She has also denied the suggestion that she has wrongly identified the accused Chander Bhan at the instance of the Investigating Officer.
Witnesses of Medical Record:
(28) PW11 Dr. A.K. Singh CMO, Pentamed Hospital, Gujrawalan St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 33 Town, PhaseIV, Delhi has proved the MLC No. 640/12 of Shri Krishan Lal Manchanda S/o Shri Thakur Das, Male75 years old, dated 09.06.2012 which is in the handwriting of Dr. Shailender which is Ex.PW11/A bearing signature of Shailender at point A. According to the witness, Krishan Lal Manchanda was brought to hospital by Smt. Neelam Manchanda at about 3:40 PM with alleged history of assault by some unknown person at his home (A1/76, Gujrawalan Town, Part1) around 3:20 PM on 09.06.2012 as told by Neelam Manchanda (DaughterinLaw).
According to the witness, on local examination following injuries were found
1. Nasal bleeding present.
2. Swelling upon upper lip present.
(29) He has further deposed that there was no pulse and no recordable blood pressure nor spontaneous breathing movements and pupils bilateral dilated and fixed and patient was known case of coronary artery disease and CPR was tried for 30 minutes but failed and the patient was declared brought dead.
(30) In his crossexamination by the Ld. Defence Counsels the witness has deposed he joined services of Pentamed Hospital on 01.04.2008. According to the witness, the above said MLC was not prepared in his presence nor the above said patient was examined in my presence. He has further deposed that swelling upon upper lip was present on the person of patient and it can be caused due to blunt force impact and St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 34 due to fall on the ground.
(31) PW12 Dr. Bhim Singh, MD Forensic Medicine, Incharge Mortuary, BJRM Hospital, Jahangirpuri, Delhi has deposed that on 10.06.2012 at about 11:00 AM, he conducted postmortem examination on the body of Kishan Lal Manchanda aged about 75 years male, S/o Shri Thakur Das vide postmortem report No. 499/12 on the request of Inspector Jagminder Singh Dahiya, Police Station Model Town with alleged history declared brought dead on 09.06.2012 at 3:40 PM. According to the witness, on examination, he found following injuries on the body of the deceased:
1. Reddish abrasion 0.8cmX0.5 cm over the right cheek.
2. Swelling of upper lip present.
(32) The witness has further deposed that on internal examination, he found all the organs were congested. Heart weight 550 gm, walls thickened, coronaries thickened, hard in consistency, left anterior discending, shows 100% blockage, circumflex, right coronaries 75% block, stomach full of semi digested food. According to the witness, in his opinion, death was due to shock consequent upon blockage of coronaries, due to preexisting coronary artry disease, a natural cause of death and all the injuries were antimortem, fresh in nature and could be caused by blunt force/ surface impact and time since death was about 20 hours. He has also deposed that after postmortem he prepared the postmortem report which is Ex.PW12/A. He has also St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 35 deposed that after postmortem, he handed over all the inquest papers to the Investigating Officer and also handed over blood in gauze piece of the deceased and clothes of the deceased in the sealed condition with the seal of hospital to the Investigating Officer. This witness has not been cross examined by the Ld. Defence Counsels despite opportunity in this regard. FSL Experts:
(33) PW19 Ms. Poonam Sharma, SSO (Biology) has deposed that on 11.07.2012 six parcels were received in their office in case FIR No. 138/12 from Police Station Model Town in sealed condition and the seals were found intact and tallied with sample seals. According to her, she gave the marking to the parcels as 1, 1A,2, 2A, 3 and 5 and on opening the parcel No.1 she found the blood stains cotton wool swab and the same was marked as Ex.1; on opening the parcel No. 1A she found the tile piece described as earth control which was marked as Ex.1A; on opening the parcel No. 2 he found blood stained cotton wool swab and same was marked by her as Ex.2; on opening the parcel no.2A she found one tile piece described as earth control which she marked as Ex.2A; on opening the parcel No.3 she found one currency note of denomination of Rs.50 having brown stains which was marked as Ex.3 and on opening the parcel no.5, she found blood sample in gauze cloth piece which she marked as Ex.5. According to the witness after examination of above said exhibits she gave her biological report which is Ex.PW19/A and blood was St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 36 detected on Ex.1 (cotton wool swab), 1A (tile piece), 2 (cotton wool swab), 2A (tile piece), 3 (currency note) and 5 (gauze cloth piece). The witness has further proved having examined the above said exhibits serologically and gave the serological report which is Ex.PW19/B according to which Human Blood of "B" group was found in the Ex.1 and 5 and she also found human blood on Ex.1A, 2, 2A and 3. She has testified that after examining the above said exhibits the remnants were resealed with the seal of P.Sh.FSL DELHI.
(34) This witness has not been cross examined by Ld. Defence counsels despite opportunity granted.
(35) PW20 Sh. N K. Sharma (Finger Print Expert) has deposed that on 11.09.2012 he was posted in Finger Print Bureau, Kamla Market as a finger print expert and the specimen finger prints of deceased, wife of the deceased, suspect Chander Bhan and photographs of developed chance prints for comparison and expert opinion thereon and after examination of the above he gave his report which is Ex.PW20/A. According to the witness he opined that the chance print marked P1 was identical with right hand palm print portion marked S1 on the palm impression slip of Kishan Lal Manchanda (deceased).
(36) This witness has not been cross examined by Ld. Defence counsels despite opportunity granted.
Nodal Officers:
(37) PW15 Sh. Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd. St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 37
has brought the summoned record pertaining to the mobile No. 9818468581 which has been issued in the name of Kali Charan S/o Sh. Hori Lal, R/o C374, Lal Bagh, Azadpur, Delhi vide Customer Application Form which is Ex.PW15/A (running into two pages). He has placed on record the call details record from 20.05.2012 till 09.06.2012 which is Ex.PW15/B (running into nine pages); Cell ID chart which is Ex.PW15/C (running into two pages) and the certificate U/s 65 B of Evidence Act which is Ex.PW15/D. (38) In his crossexamination by the Ld. Defence Counsels the witness has deposed that he is not aware, where the main server is situated. He has further deposed that the above data in respect of the customer Kali Charan has been retrieved by him from his system. He has denied the suggestion that the said data is not authentic or that it is manipulated in connivance with the Investigating Officer. He has denied the suggestion that the certificate U/s 65 B has been issued in a routine manner.
(39) PW21 Sh. Deepak, Nodal Officer from Vodafone Mobile Services Ltd. has brought the summoned record with regard to the mobile number 9582372346 which was issued in the name of Amit Kumar S/o Sumant Marya on 20.01.2012. He has placed on record the Customer Application Form which is Ex.PW21/A, ID Proof is Ex.PW21/B; call detail of above said mobile phone from 01.06.2012 to 16.06.2012 which St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 38 are collectively Ex.PW21/C (two pages); Cell ID chart which is Ex.PW21/D (running into 108 pages) and certificate U/s 65B of Indian Evidence Act which is Ex.PW21/E. (40) In this crossexamination by the Ld. Defence Counsels the witness has admitted that the Customer Application form and ID proof were handed over to the company by the Chaurasia Electronics. He is unable to tell the name of the company officials who verified the ID proof of Amit and has voluntarily added that their company verified the ID proof. He has further admitted that he had not brought any verification report of ID proof of Ex.PW21/B. He has denied the suggestion that there was no verification by their company that is why he has not brought the verification report of ID proof. He has also denied the suggestion that the above said mobile number was not issued in the name of any Amit Kumar. Police/ Official witnesses:
(41) PW1 HC Ramphool is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 196 Cr.P.C.) wherein he has proved the copy of FIR No.138/12 which is Ex.PW1/A and his endorsement on rukka which is Ex.PW1/B. (42) In his crossexamination by the Ld. Defence Counsels the witness has deposed that Constable Kaushal had come to the police station St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 39 at about 05:15 PM. According to the witness, he has no knowledge whether the handwriting of Rukka was of SI Manoj Kumar and has voluntarily explained that the Rukka was not prepared in his presence. He has admitted that he did not mention about the closing of DD in his endorsement on Ex.PW1/B and has voluntarily added that closeness DD is only made in murder cases. He has denied the suggestion that he has not recorded the said closure DD as only an FIR number has been allotted to the case or that FIR is antetimed. According to him, he handed over copy of FIR and original Tehrir to Ct. Kushal at about 5:00 PM. (43) PW2 HC Ishwar Singh is also a formal witness being the DD Writer who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved DD No. 18A copy of which is Ex.PW2/A, DD No.19A copy of which is Ex.PW2/B and DD No. 20A copy of which is Ex.PW2/C. He has not been crossexamined by the Ld. Defence Counsels despite opportunity in this regard.
(44) PW3 HC Ramniwas is also a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the entry in register no. 19 vide S.No. 3037/12 copy of which is Ex.PW3/A (running into two pages), Sr. No. 3039/12 copy of which is Ex.PW3/B, S.No. 3050/12 copy of which is Ex.PW3/C, S.No. 3093/12 copy of which St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 40 is Ex.PW3/D, S.No. 3334/12 copy of which is Ex.PW3/E (running into two pages), entry in register no. 21 vide RC No. 22/21/12 copy of which is Ex.PW3/F and receipt issued by FSL copy of which is Ex.PW3/G. (45) In his crossexamination by the Ld. Defence Counsels the witness has deposed that he does not remember the time when the case property were deposited in malkhana on 09.06.2012. He has admitted that he has not mentioned the time in the register No.19. He also does not remember the time when the personal search of accused Kalicharan was deposited in Malkhana and also cannot tell whether it was deposited in the morning time or the evening time. The witness has admitted that copy of seizure memo received by him against entries No. 3093/12. He does not remember whether the name or signatures of the accused Chanderbhan was mentioned on the pullanda deposited in the Malkhana vide entry No. 3093/12. He has denied the suggestion that he has not received any pullanda as alleged or that he made entries later on at the instance of Investigating Officer.
(46) PW4 Ct. Kushal is a formal witness who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) where he has proved that on 9.6.2012 he along with SI Manoj Kumar reached the scene of crime and he took the Rukka to the Police Station and got the FIR registered.
(47) In his crossexamination by the Ld. Defence Counsels the witness has deposed that he remained at the spot for about half an hour St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 41 along with S.I. Manoj Kumar before he took rukka to the Police Station. He does not remember in which room wooden almirah and iron almirah were placed at the spot. He also does not remember the name of public persons present at the spot when he reached at the spot during the period of his stay. According to him, 1520 public persons were present outside the house. He has testified that he has not not checked any almirah at the spot. He does not remember whether S.I. Manoj Kumar checked any almirah. According to the witness, he could find any articles in scattered condition at the spot. The witness has further deposed that Kishan Lal Manchanda was already taken to Pentamed Hospital. According to him, he reached the spot at 3:30 PM and left the spot along with Tehrir at 5:00 OM whereas S.I. Manoj Kumar remained at the spot.
(48) PW5 SI Ramesh Chand is a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the Crime Team Report which is Ex.PW5/A. (49) In his crossexamination by the Ld. Defence Counsels the witness has deposed that he is not aware of the distance between slipper and small towel from the main gate of the house as he has not measured the same and has voluntarily added that the same was lying in front of the gate of the house. According to the witness, the pair of slippers were found at a distance of three feet from each other. He has testified that one slipper was found in torn condition. He does not remember whether the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 42 torn slipper was of left foot or the right foot and has stated that the distance between towel and slippers was 34 feet. According to him, Almirah was found in open condition and some articles were found in scattered condition. He has testified that the Locker of iron almirah was found in broken condition and the slippers were present right in front of the gate.
(50) He has further deposed that the wooden almirah was situated in the first room and iron almirah was found in the second room. He does not remember whether main door of iron almirah was broken or not. According to him, there was only one locker in the iron almirah and the same was found in broken condition. He has testified that the articles of iron almirah was found in scattered condition but articles of wooden almirah were not found in scattered condition.
(51) PW6 Ct. Sandeep is a formal witness being the finger Print Expert who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 9.6.2012 he inspected the scene of crime and developed one chance print which was sent to fingerprint bureau for further necessary action. (52) In his crossexamination by the Ld. Defence Counsels the witness has deposed that he found one wooden almirah in the first room and one iron almirah in the second room at the spot and the articles of iron almirah were in scattered condition. According to this witness, the wooden almirah was found in open condition and one or two articles were St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 43 found in front of almirah. The witness has deposed that he has not checked the wooden almirah articles and has only lifted chance prints from the door of the wooden almirah but he did not notice what was lying in the almirah. He is unable to tell whether the said wooden almirah was full of papers, registers etc. or was full of clothes. According to the witness S.I. Manoj with his staff met them at the spot and they remained at spot for about an hour.
(53) PW7 Ct. Subhash is a formal witness being the Crime Team photographer who has been examined by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the photographs which are Ex.PW7/A1 to Ex.PW7/A10 and the negatives of the same which are Ex. PW7/B (colly.). (54) In his crossexamination by the Ld. Defence Counsels the witness has deposed that he took photographs of the spot inside the house and also outside of the house. According to the witness, he found the slippers and towel in front of the main gate of the house but he is unable to tell distance of the same from the main gate. He does not remember whether any slipper was found in torn condition or not but the colour of slipper was black. He has further deposed that the wooden almirah was in first room and iron almirah was in the second room. He is not aware about the broken condition of the locks of abovesaid almirahs. According to him, the articles of iron almirah were found in scattered condition. He does not remember about the condition of wooden almirah or about the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 44 condition of the first room whether there was any articles or clothes were found in scattered condition.
(55) PW8 HC Rameshwar Rana has been examined by way of affidavit which is Ex.PW8/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 15.6.2012 he got the information that the accused Sarvesh Kumar wanted in the present case was present in his Jhuggi after which the accused Sarvesh Kumar was arrested vide memo Ex.PW8/A, his personal search was conducted memo Ex.PW8/B and his disclosure statement was recorded vide memo Ex.PW8/C. (56) In his crossexamination by the Ld. Defence Counsels the witness has deposed that he used to make his patrolling duty in beat area where the jhuggi of accused Sarvesh was situated. According to the witness, he had received a secret information from an informer regarding the involvement of accused Sarvesh. He does not remember whether he had stated to the Investigating Officer about the secret information received in respect of accused Sarvesh and has voluntarily explained that he had full knowledge about the movement of the accused Sarvesh. The witness has also deposed that whenever he went to house of Sarvesh, he only met his father. He is not aware if the father of Sarvesh was ever called to the police station but he himself had never taken him to Police Station Model Town. He has denied the suggestion that Sarvesh had himself surrender at Police Station Model Town or that Sarvesh was not apprehended in the manner as deposed by him.
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 45 (57) PW9 SI Heera Lal has been examined by way of affidavit which is Ex.PW9/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 3.7.2012 on receipt of DD No. 34A he reached Prince Road near Queen Marry School where accused Chanderbhan @ Kana with Desi Katta and a motorcycle was produced before him by HC Narender, Ct. Kushal and Ct. Vipin. According to the witness, on interrogation the motorcycle was found stolen from the area of Nangloi. He has further deposed that he recorded the statement of HC Narender and got FIR No.167/12, u/s. 25 of Arms Act and 411 IPC and arrested the accused Chander Bhan and recorded his disclosure statement which is Ex.PW9/A. (58) In his crossexamination by the Ld. Defence Counsels the witness has deposed that he did not hand over DD No. 34A of Police Station Model Town to the Investigating Officer of this case. According to the witness, he has not joined any public persons in the investigation when he apprehended accused Chander Bhan in case FIR No.167/12 under Arms Act. He has also deposed that accused Chander Bhan was handed over to him by HC Narender Dhama at the spot i.e at Prince Road, Near Queen Mary School. The witness has also deposed that he remained there for about 2½ hours and requested one or two public persons to join investigation at the time of recording of the disclosure statement but they they refused. However, he is unable to tell the name of the said public persons nor he served any notice to them. He has denied the suggestion St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 46 that he obtained the signatures of accused Chanderbhan on blank papers or that accused Chander Bhan has not made any disclosure statement. (59) PW10 W/Ct Geeta has been examined by way of affidavit which is Ex.PW10/1 (as per the provisions of Section 296 Cr.P.C.) wherein she has proved that on 9.7.2012 on the basis of secret information the accused Bimlesh was apprehended Hans Cinema, G.T. Karnal Road. According to the witness, the Investigating Officer asked three ladies namely Sita, Sundri and Bimla to join the investigations but they refused and left without disclosing their address. She has proved that thereafter the Investigating Officer arrested the accused Bimlesh vide memo Ex.PW10/A after which she (witness) conducted her personal search vide memo Ex.PW10/B and her disclosure statement was recorded vide Ex.PW10/C. According to her, the accused Bimlesh was got medically examined from BJRM Hospital and produced before the Ld. MM who remanded her to Judicial Custody till 11.7.2012.
(60) In her crossexamination by the Ld. Defence Counsel the witness has deposed that when Bimlesh was arrested, she was with the Investigating Officer but she is unable to give the details of the police officials, i.e. how many police officials were there. According to the witness, they went to the GT road i.e. spot from where Bimlesh was arrested in the official vehicle but she does not remember the make of the vehicle. She has further deposed that she has not made any separate ravangi while leaving the police station and has voluntarily added that she St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 47 had made the ravangi. She does not remember the number of persons who had gone to GT Road in the official vehicle. The witness has testified that they reached the GT road within 1520 minutes after leaving the police station. She has also deposed that the accused Bimlesh was arrested around 11:30 AM. She has admitted that at that time large number of public persons were present at the spot from where Bimlesh was arrested. The witness has further testified that her statement U/s 161 Cr.P.C. Was also recorded by the Investigating Officer. She does not recollect whether she had informed the Investigating Officer while recording her statement U/s 161 Cr.P.C. that Sita and Sunderi had refused to join the proceedings. According to her, in her presence Investigating Officer did not give any notice to these ladies for refusal of joining the investigations. She has also deposed that she had conducted the personal search of the accused Bimlesh after taking her to one side. She does not recollect the exact place where she had conducted her personal search and has stated that nothing was recovered in the personal search of accused Bimlesh. She has denied the suggestion that in the personal search of accused Bimlesh, one pajayab, one nose pin, one ring and ear tops along with Rs.1000/ were recovered. She has also denied the suggestion that Bimlesh was lifted on 09.06.2012 and she was regularly called to the Police Station every day till 13.06.2012 or that third degree was used on accused Bimlesh during this period by the male police officers. The witness has denied the suggestion that the police had thereafter left the accused Bimlesh after 13.06.2012 St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 48 because no incriminating was found against her or that Bimlesh was again arrested on 09.07.2012 only to save themselves from departmental action because in the meanwhile she had lodged a complaint against the senior police officers. She has also denied the suggestion that the accused Bimlesh was apprehended and arrested while she was coming out from the office of the DCP(NW) after lodging Dairy No. 6224 dated 09.07.2012 at about 11 AM.
(61) PW22 HC Chanderveer and Ct. Yoginder (PW23) are both members of the Special Staff (NorthWest) who have deposed on identical aspects.
(62) HC Chanderveer has deposed that on 12.10.2012 he was posted at Special Staff North West and on that day at the morning time he alongwith Ct. Yogender, Ct. Ravi and HC Vinod Kumar went to the area of Subhash Place to get the information about the offenders. According to the witness, at about 8.30AM he received a secret information at Subhash Place that one Amit Kumar the offender of the case of Police Station Model Town was coming to the area who was wanted by the police of Police Station Model Town, on which he immediately informed his senior officers and they directed him to do further proceedings. He has further deposed that thereafter he alongwith above said officials reached at the Beriwala Bagh, Shamshan Ghat, Shakur Basti where he asked fourfive public persons to join the proceedings after disclosing the secret information to them but none agreed and left the place without informing St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 49 their names and addresses. He has further testified that thereafter they took positions there near Shamshan Ghat and at about 9.05AM at the instance of secret informer one person was apprehended who was coming from the Britania area who disclosed his name as Amit @ Magru and also disclosed his involvement in the case of Police Station Model Town. According to the witness, he confirmed the same from Police Station Model Town, then he came to know that he was wanted in the case FIR No. 138/12 of Police Station Model Town and then he arrested the accused Amit @ Magru vide memo Ex.PW22/A, his personal search was conducted vide memo Ex.PW22/B and his disclosure statement was also recorded vide Ex.PW22/C. He has further deposed that thereafter they went to the Police Station Subhash Place and lodged the DD No.16A in this regard which is Ex.PW22/D. According to the witness, he also informed the police of Police Station Model Town about the arrest of accused Amit @ Magru and thereafter he produced the accused Amit @ Mangru before the court of Ld. MM with Kalandara U/s 41.1 (b) Cr. P. C. He has also deposed that police officials of Police Station Model Town also reached there and the Court after making observations handed over all the documents of Kalandara to the Investigating Officer of this case who also recorded his statement. The witness has correctly identified the accused Amit @ Magru in the Court.
(63) In this crossexamination by the Ld. Defence Counsels the witness has deposed that they departed from their office at about 7.45AM St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 50 in his private Wagon R car and at that time he was not having any secret information regarding the accused Amit @ Magru. The witness has also deposed that he informed Inspector Incharge of Special Staff about the secret information but he does not remember whether he had informed Inspector Incharge on his personal mobile number or on his official number. According to him, they reached at the place of apprehension at about 8.55AM. He has further deposed that he did not ask any public person to join the police proceedings after they apprehended accused Amit @ Mangru. The witness has also deposed that he was not having any photograph of accused Amit before his arrest and has voluntarily explained that he arrested the accused on the information of secret informer U/s 41 Cr.P.C. He has further deposed that he prepared the documents of proceedings on the bonnet of his car by standing. According to the witness, he confirmed about the accused Amit from the Duty Officer as well as from the Investigating Officer of this case. He has further deposed that they reached at the Police Station Subhash Place at about 10.15AM. He has denied the suggestion that accused Amit @ Magru was lifted form his house by the Investigating Officer or that he had prepared the documents at the instance of the Investigating Officer and shown the accused to be arrested U/s 41.1 Cr. P. C. He has further denied the suggestion that he obtained the signatures of accused Amit @ Mangru on blank papers and manipulated the same as the arrest documents and disclosure statement of the accused Amit @ Magru. St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 51 (64) PW23 Ct. Yogender Singh has also corroborated the testimony of HC Chanderveer (PW22) in toto and has proved the arrest of accused Amit @ Magru vide memo Ex.PW22/A, his personal search vide memo Ex.PW22/B and his disclosure statement vide Ex.PW22/C. He has been crossexamined by the Ld. Defence counsels but nothing much has come out of the same.
(65) PW24 Ct. Jitender has deposed that on 12.10.2012 he was posted at Police Station Model Town and on that day he alongwith Inspector Jagminder reached at Rohini Courts where one accused Amit @ Magru was interrogated by the Investigating Officer with the permission of the court after which the accused Amit @ Mangru was arrested by the Investigating Officer in the present case vide Ex.PW24/A and his disclosure statement was recorded by the Investigating Officer vide Ex.PW24/B. Witness has further deposed that two days Police Custody Remand of the accused Amit @ Magru was granted and after medical examination of the accused Amit, he was kept in the lock up and Investigating Officer recorded his statement. The witness has correctly identified accused Amit @ Mangru in the Court.
(66) In his cross examination by Ld. Defence counsel the witness has denied the suggestion that accused Amit @ Magru did not make any disclosure statement and the disclosure statement was already prepared by the Investigating Officer and only obtained the signatures of accused Amit @ Magru on the same.
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 52 (67) PW25 Ct. Ajeet has deposed that on 12.06.2012 he was posted at Police Station Model Town and on that day Inspector Jagminder Singh called him and informed him that two persons wanted in the case of robbery which took place on 09.06.2012 at House No. A176, Gujranwala Town, Delhi were coming towards Azadpur Area and he was included the investigation by the Investigating Officer Inspector Jagminder. According to the witness thereafter he alongwith Investigating Officer and twothree other police officials reached at the Prince Road, Model Town at about 7.30 PM where two persons namely Kali Charan and Ram Kumar were apprehended at the instance of the secret informer on Prince Road and they were interrogated by the Investigating Officer during which they confessed about their involvement in this case. Witness has further deposed that thereafter the Investigating Officer arrested accused Kali Charan vide Ex.PW25/A, his personal search was taken vide Ex.PW25/B, accused Ram Kumar was arrested vide Ex.PW25/C, his personal search was taken vide Ex.PW25/D, disclosure statement of accused Kali Charan was recorded vide Ex.PW25/E and disclosure statement of accused Ram Kumar was recorded vide Ex.PW25/F. According to the witness, thereafter accused persons were taken to the Police Station. Witness has further deposed that on 13.06.2012 both accused persons pointed out the place of incident vide pointing out memo which is Ex.PW25/G and both accused were taken to the hospital for medical examination and thereafter both accused were produced before the Ld. MM and two days' Police St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 53 Custody Remand of Kali Charan was obtained whereas the accused Ram Kumar was sent to Judicial Custody and accused persons were not produced before the court on 12.06.2012. He has also deposed that he again joined the investigation with Investigating Officer on 16.06.2012 when accused Sarvesh was taken out from the lock up and he pointed out the place of incident vide Ex.PW25/H and identified the house where he committed the robbery alongwith his associates after which he was also sent to Judicial Custody after his medical examination. According to him, on 04.07.2012 he again joined the investigation with the Investigating Officer when the accused Chander Bhan @ Kana was taken out from the lock who he disclosed that he had kept the weapon of offence i.e. knife in the bushes of the park near the road of JJ Colony, Narela. He has testified that thereafter he alongwith Investigating Officer, Ct. Anoop and the Gypsy Driver alongwith accused Chander Bhan reached at the above said place and at the instance accused Chander Bhan one knife was recovered. According to him, sketch of the knife was prepared by the Investigating Officer vide Ex.PW25/I and the blade of the knife was made of iron and the handle was made of wood and the total length of the knife was 33 cms. Witness has further deposed that Investigating Officer sealed the knife in a cloth pullanda with the seal of KS and seized the same vide seizure memo Ex.PW25/J and accused Chander Bhan also pointed out the place of incident vide Ex.PW25/K and thereafter they returned back to Police Station.
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 54 (68) The witness has correctly identified the accused Kali Charan, Ram Kumar, Sarvesh Kumar and Chander Bhan @ Kana. He has also identified the case property i.e. knife recovered at the instance of accused Chander Bhan which is Ex.P1.
(69) With the permission of the Court, the Ld. Addl. PP for the State put leading questions to the witness wherein the witness has admitted that on 12.06.2012 he along with the Investigating Officer reached at the Prince road, near PCR gate, Model Town where the secret informer met the Investigating officer. He has also admitted that one mobile phone make NOKIA of dark blue color was recovered from the personal search of Kali Charan. The witness has further admitted that the Investigating Officer recorded the subsequent disclosure statement of the accused Kali Charan vide Ex.PW25/L on 13.06.2012. He has also admitted that accused Chander Bhan was arrested in his presence on 04.07.2012 vide Ex.PW25/M and that disclosure statement of accused Chander Bhan was recorded vide Ex.PW25/N. He has also admitted that he joined the investigations with Inspector Jagminder Singh on 13.10.2012 and on 14.10.2012 and that Inspector Jagminder Singh conducted the proceedings against accused Amit @ Mangro who was in police custody. The witness has also admitted that on 13.10.2012 at the instance of accused Amit @ Mangru one knife was recovered from the bushes from green belt near DDA flats in front of Shamshan Ghat and Inspector Jagmender Singh prepared the sketch of the said knife vide Ex.PW25/O. St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 55 He has also admitted that Investigating Officer took the measurements of the knife and mentioned the same in the sketch thereafter and that the Investigating Officer sealed the knife in a cloth pullanda with the seal of KS and seized the same vide seizure memo Ex.PW25/P. He has further admitted that two gold bangles were recovered from the jhuggie No. C178, the residence of accused Amit @ Mangru who disclosed that the same was a looted property and that the Investigating Officer sealed both the bangles in the cloth pullanda with the seal of KS and seized the same vide seizure memo Ex.PW25/Q. The witness has also admitted that accused Amit @ Mangru pointed out the place of incident vide Ex.PW25/R and that disclosure statement of accused Amit @ Mangru was recorded in his presence which is Ex.PW25/S. (70) The witness has also correctly identified the accused Amit @ Mangru in the Court and has identified the case property i.e. knife recovered at the instance of accused Amit @ Mangru which is Ex.P2 and two bangles of golden color recovered at the instance of accused Amit @ Mangru which are Ex.P3 and Ex.P4.
(71) In his cross examination by Ld. Defence counsel, witness has deposed that they departed from the Police Station on 12.06.2012 at about 77:15 PM in a private Swift car and the secret informer was with them at that time when they left the police station. He has also deposed that his statement was recorded by the Investigating Officer on 12.06.2012. According to him the secret informer disclosed the names of Kali Charan St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 56 and Ram Kumar to the Investigating Officer at the time of information and also disclosed the house number where the incident of robbery took place and secret informer remained with them upto 99:15 PM. Witness has further deposed that the accused persons Kali Charan and Ram Kumar were arrested at the distance of 2025 meters from the gate of the PCR head quarters and the secret informer already reached at the said place before their reaching there. He has denied the suggestion that the accused Kali Charan and accused Ram Kumar were arrested on the same day of incident i.e. on 09.06.2012. Witness has further deposed that he knew that the accused Bimlesh was also arrested in this case but the proceedings against her was not conducted in his presence and he is not aware whether the accused Bimlesh was present at the police station on 09.06.2012. He has further denied the suggestion that accused Kali Charan and Ram Kumar were in the lock up of police station on 09.06.2012. He has testified that they had reached at the spot of arrest at about 77:15 PM and accused Kali Charan and Ram Kumar came there at about 99:15 PM and he apprehended the accused Kali Charan and accused Ram Kumar was apprehended by the two police officials of police picket whose name he does not remember. According to him no public person was present on the road at that time since it was a lonely place and the Investigating Officer did not ask any public persons to join the police proceedings in his presence. He has also deposed that the Investigating Officer prepared the site plan of the place of arrest of accused persons Kali Charan and Ram St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 57 Kumar and he also put his signatures on the same. He has also denied the suggestion that the Investigating Officer did not prepared the site plan or that he do not put his signatures on the same. Witness has further deposed that he took the personal search of the accused Kali Charan who also put his signatures on the personal search memo. He has testified that he had only seen Kali Charan signing but he is unable to tell whether he had signed in Hindi or in English because he was standing at a distance from him. The witness is unable to tell whether the Investigating Officer had brought the stamp pad with him from the police station or from where he had procured the same and whether Kali Charan had put his thumb impressions and has voluntarily explained he was at a distance from him and he could not see what he was doing. Witness has further deposed that he did not notice the Investigating Officer informing any relative of Kali Charan about his arrest. He has denied the suggestion that Kali Charan was illegally lifted and detained in the police station on 09.06.2012 and was not arrested on 12.06.2012 as claimed by him or that he merely signed the documents regarding the arrest, search and disclosure of Kali Charan on the asking of the senior officers while sitting in the police station only to connect him to the offence.
(72) Witness has further deposed that he only saw that Sarvesh was in lock up but he cannot tell from how many days. According to the witness, the accused Sarvesh was removed from the lockup between 12 noon to 2 PM but he is unable to tell the exact time and he was taken to St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 58 the place of occurrence in the official gypsy. He has also deposed that they reached the spot in hardly 1015 minutes and remained there for about 3045 minutes and he did not go inside the house personally and has voluntarily added that the Investigating Officer had gone inside. Witness has further deposed that he was outside on the gate and he cannot tell what proceedings took inside and if any public person including family members of the complainant was made a witness to the pointing out memo. He has testified that the Investigating Officer had made the entry in the roznamcha when the accused Sarvesh had been taken out from the lock up for going to the spot but he cannot tell the details. According to him it took them about 3045 minutes to reach the hospital from the place of occurrence and there was a lot of crowd in the hospital and therefore he remained for more time in the hospital. He has denied the suggestion that they remained in the hospital till about 5 PM but he is unable to tell the time till which he remained. Witness has also deposed that they had reached the court before the court had got up and has voluntarily explained that the accused was sent to Judicial Custody by the court while it was still in session. He has denied the suggestion that he did not join any investigations or that he has been planted as a witness later on the directions of the senior officers only to complete the proceedings against the accused Sarvesh who was illegally detained in the Police Station. The witness has testified that on 04.07.2012 he had joined the investigations at around 11 AM and they were four persons when they started from the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 59 Police Station who all gone in the official gypsy. He has further deposed that he had not made any separate departure entry and has voluntarily explained that the Investigating Officer must have done the same. Witness has further deposed that they reached Narela, JJ colony at around 1:002:00 PM. He has admitted that there are four public parks in the JJ Colony, Narela and that in his statement to the Investigating Officer he had not specified the details of the park and has voluntarily explained that it was the park which was adjoining the JJ colony. He has further admitted that JJ Colony is the thickly populated and residential area. Witness has further deposed that the knife was got recovered from the bushes which were outside the park and the residential houses were situated at a distance of 50 meters from the said bushes and has voluntarily explained that on one side is a road with heavy moving traffic. According to him the Investigating Officer had prepared the sketch of the knife in his presence but not the site plan of the place from where the knife was got recovered. He has further deposed that he remained sitting in the gypsy, therefore he cannot tell if Investigating Officer had made attempt to join the public persons in the proceedings. Witness has further deposed that he was sitting in the gypsy when the knife was seized and he signed all the documents while sitting the gypsy after they have been prepared. According to him, the place of incident was within his knowledge and in the knowledge of Investigating Officer prior to 04.07.2012. He has denied the suggestion that he did not join the investigations or that he was St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 60 deposing at the instance of the Investigating Officer of the case. He has denied the suggestion that no recovery has been at the instance of accused Chander Bhan.
(73) Witness has testified that after 04.07.2012 he joined the investigations in the month of October, 2012, however he does not remember the date. According to him, on the said date he joined the investigations at about 10 AM and joined the investigations of this case in the Court. He has further deposed that they reached at jhuggies in Lal Bagh in afternoon and states that Jhuggie No. C178 belong to accused Amit. According to him the jhuggie was two storied and he is unable to tell if anybody was residing in the said house. He is not aware if the door of the said jhuggie was locked/ bolted or open. According to the witness, two bangles were lying on the floor in one of the corners of the first room and the bangles were covered with rags. Witness has further deposed that no site plan in his knowledge of the recovery of the bangles was prepared and no documentary evidence has been recovered by the Investigating Officer within his knowledge to the effect that the said jhuggie i.e. jhuggie No. C178 belong to Amit or Amit was residing in the said jhuggie. He has denied the suggestion that the gold bangles have never been looted in the alleged incident or that no recovery was made at the instance of accused Amit.
(74) PW27 SI Manoj has deposed that on 09.06.2012 he was posted at Police Station Model Town and on that day he received DD No.20A St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 61 regarding a quarrel which is Ex.PW2/C pursuant to which he alongwith Ct. Kushal reached the place of incident i.e. H. No. A176, Ground Floor, Gujrawalan Town, PartI, Delhi. According to the witness, he found one pair of slippers and one towel outside the house and met the complainant Smt. Kamla Devi in the house and almirah of the house was in open condition and articles were found scattered condition and there was blood in the gallery and in the kitchen of the house and one blood stained currency note in denomination of Rs.50 was also found in the room. Witness has further deposed that he came to know that the injured was already taken to the Pentamed Hospital and he immediately informed the SHO about all the facts after which he recorded statement of Smt. Kamla Devi in detail wherein she made allegations of robbery by four assailants who caused the injuries to her husband and assailants took away her mobile phone and shown knife to her. The witness has proved the statement of Smt. Kamla Devi which Ex.PW27/A after which he attested the same and thereafter he made endorsement vide Ex.PW27/B and the same was sent to police station through Ct. Kushan for registration of FIR with his request to hand over the case to Inspector Jagminder Singh. Witness has further deposed that after one hour crime team officials and Inspector Jagminder Singh reached at the spot and thereafter he and Ct. Kushal on the direction of Investigating Officer Inspector Jagminder Singh went to Pentamed Hospital where he came to know that Kishan Lal Manchanda was declared dead by the doctor. According to the witness the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 62 dead body was shifted to the BJRM Mortuary through Ct. Kushal and he made request for examination of the dead body vide Ex.PW27/C after which he again reached the place of incident and joined the investigation with the Investigating officer. Witness has further deposed that the Investigating Officer lifted the blood from the gallery and the kitchen with the help of cotton and kept the same in a separate plastic container and sealed the same with seal of KS. He has proved that the Investigating Officer also lifted the earth control i.e. tiles from the gallery and the kitchen and kept the same in a separate plastic container and sealed the same with the seal of KS and seized the same vide seizure memo Ex.PW27/D. Witness has testified that the Investigating Officer also seized the currency note of Rs.50 which was blood stained, from the room and kept the same in the match box and sealed the same with the seal of KS and seized the same vide memo Ex.PW27/E and the currency note number was also mentioned in the seizure memo. According to him, one pair of the slipper and towel were also sealed in a cloth pullanda by the Investigating Officer with the seal of KS and seized by the Investigating Officer vide seizure memo Ex.PW27/F and thereafter he returned back to the police station.
(75) Witness has testified that on the next day on 10.06.2012 he reached the mortuary of BJRM Hospital where the dead body was identified by Sh. J.P. Manchanda and Mukesh Manchanda and then St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 63 Inspector Jagminder prepared the inquest papers and on his request the postmortem examination on the dead body of Kishan Lal Manchanda was got conducted. He has also deposed that after the postmortem doctor handed over one pullanda of blood sample of the deceased in the sealed condition with the seal of hospital with sample seal to him and he handed over the same to the Investigating Officer who seized the same vide seizure memo Ex.PW27/G and after the postmortem the dead body was handed over to relatives of the deceased.
(76) Witness has correctly identified the case property i.e. one currency note of Rs.50 bearing number 3AQ 481111 as the same which was seized by the Investigating Officer at the spot which currency note of Rs.50 is Ex.P5; one pair of slippers of black colour of fantax and one towel of white colour as the same which were recovered from the spot which Slippers are collectively Ex.P6 and the towel is Ex.P7. (77) In his cross examination by Ld. Defence counsel, witness has deposed that he is not aware whether the key of the wooden almirah was taken out from the inside of the almirah or it was found with the lock at the gate of the almirah. According to the witness during the time he remained at the spot, he had come to know that mobile of the complainant was robbed. He has testified that he left the spot finally at about 7.30AM. He is unable to tell whether both the wooden almirah and iron almirah were in one room or not. He is also cannot to tell about the first or the second room but states that in the room where the iron almirah was St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 64 placed, the articles were lying scattered and the articles of wooden almirah were found scattered. According to the witness, he had checked the locks of both the almirah and found that they had been opened by a key and were not broken. He has also deposed that there were two lockers in the iron almirah i.e. one small locker was inside the bigger locker. According to him it is only the outside locker which was opened but not the smaller locker inside. He has further deposed that he did not open the internal locker or the outside locker and has voluntarily explained that it was supposed to be checked by Crime Team first. Witness has further deposed that crime team officers had come in his presence but he did not see the crime team officer opening the internal locker, by that time he had gone to Pentamed Hospital and he had seen Bimlesh at the spot when he reached there. According to the witness, he reached at the spot along with Ct. Kushal. He is not aware whether the accused Bimlesh was taken to police station or not and whether accused Kali Charan and accused Ram Kumar were arrested on the same day or not. Witness has further deposed that no inquiries were made in his presence as to how Bimlesh was got employed in the house of the victims. He is not aware the exact place where currency note of Rs.50/ was lying. He has further deposed that the Investigating Officer did not prepare the site plan in his presence. He has denied the suggestion that he is deposing falsely at the instance of senior officers.
(78) PW28 HC Narender Dhama and PW31 Ct. Vipin Kumar St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 65 have deposed on identical aspects.
(79) HC Narender Dhama has deposed that on 03.07.2012 he alongwith Ct. Kushal and Ct. Vipin were present near Queens Mary School, Prince Road and they were checking vehicles by putting barricades. According to the witness, at about 10.00 PM one motorcyclist was coming towards them from Model Town side area and after seeing them in uniform he turned back and started to run away from there. He has further deposed that they overpowered the said person who disclosed his name as Chander Bhan @ Pathak @ Kana and was unable to show documents of the motorcycle. The witness has further deposed that on formal search one loaded country made pistol and one more live cartridge recovered from the pocket of his pant on which they informed police station about the same on which SI Heera Lal came at the spot and conducted the proceedings against him U/s 25 of Arms Act and an FIR No.167/12 was registered and disclosure statement of accused Chander Bhan was recorded in his presence vide Ex.PW9/E. He has correctly identified the accused Chander Bhan @ Pathak @ Kana in the court. (80) In his cross examination by Ld. Defence counsels, the witness has deposed that they put the barricades in front of Queens Mary School at about 8.00PM. According to him, they were three police persons and all were in uniform and were standing near the barricades. He has also deposed that the accused Chander Bhan turned his motorcycle at a distance of about 45 meters from them after seeing them. Witness has St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 66 also deposed that at that time he was ahead of the barricades and the two Constables were near the barricades. He has further deposed that he apprehended accused Chander Bhan and Ct. Vipin also helped him. According to him, they did not call any public person when they found the country made pistol in possession of accused Chander Bhan. According to the witness, he found the pistol in possession of accused Chander Bhan along with one live cartridge and gave information to the police station at abut 10.0010.10PM and SI Heera Lal reached at the spot at about 10.30PM. Witness has further deposed that the Investigating Officer prepared the documents at the spot on the writing pad while standing and at about 12.30 PM they all went to the police station. He has denied the suggestion that accused Chander Bhan has been lifted form his house or that no recovery of pistol has been made from the possession of accused Chander Bhan. Witness has further denied the suggestion that signatures of accused have been obtained on blank papers or that he has signed all the documents in the police station at the instance of the Investigating officer.
(81) PW31 Ct. Vipin Kumar has corroborated the testimony of HC Narender Dhamma (PW28) in toto and has proved the apprehension and arrest of the accused Chander Bhan. He has also proved the recovery of katta and the cartridge and the disclosure statement of the accused Chander Bhan which is Ex.PW9/A. He has been crossexamined by the Ld. Defence Counsels but nothing much has come out of the same. St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 67 (82) PW30 Inspector Jagmender Singh is the Investigating Officer of the present case who has deposed that on 09.06.2012 he was posted at Police Station Model as Inspector Investigation and on that day Ct. Kushal handed over copy of the FIR of this case with original rukka to him for investigation at Police Station on which he along with Ct. Kushal reached at the place of incident i.e. House No. A176, ground floor, Gujranwalan Part - I, Delhi. According to the witness he inspected the scene of crime and complainant Kamla Devi met him there and crime Team officers were already present there who also inspected the scene of crime and took photographs and also lifted chance prints from the spot. Witness has further deposed that Crime Team Incharge SI Ramesh Chand handed over the report Ex.PW5/A to him and one chance print was lifted from the spot. The witness has testified that he lifted the blood sample from the spot and kept the same in a plastic container and sealed the same with the seal of KS and also lifted the blood stained earth control from the kitchen and the gallery and kept the same in a plastic container and sealed the same with the seal of KS and he also lifted earth control from the above said places and kept the same in plastic container and sealed the same with the seal of KS and he seized the above said containers vide seizure memo Ex.PW27/D. According to him, one blood stained currency note of Rs. 50/ was also found at the spot and he also kept the same in a plastic container and sealed with the seal of KS and seized the same vide seizure memo Ex.PW27/E and he mentioned the currency note number in St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 68 the seizure memo. The witness has also deposed that two slippers of black colour and one white colour hand towel was also found at the spot and he sealed the same in a cloth pullanda with the seal of KS and seized the same vide seizure memo Ex.PW27/F. Witness has testified that Dharampal Sharma owner of the house also found at the spot and he produced two CDs of the CCTV footage of the spot at the time of incident and he sealed the one CD in a cloth pullanda with the seal of KS and he kept the another CD with his case file and he seized both CDs vide seizure memo Ex.PW17/A. According to the witness, he prepared the site plan at the instance of Kamla Devi which is Ex.PW30/A and he recorded the statements of witnesses. He has further deposed that thereafter he went to Pentamed hospital where SI Manoj met him and he came to know that the injured Kishanlal Manchanda was declared dead by the doctors after which the dead body of the deceased Kishanlal Manchanda was shifted to the mortuary of BJRM hospital and thereafter they returned to the police station where he deposited the seized articles in the malkhana and recorded the statements of witnesses. He has further deposed that on 10.06.2012 he reached at the mortuary of BJRM hospital where he filled the Inquest Form which is Ex.PW30/B, recorded the statement of J.P. Manchanda vide Ex.PW18/A, recorded the statement of Mukesh Manchanda vide Ex.PW16/A and he made request for the postmortem vide Ex.PW30/C. According to him after postmortem he handed over the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 69 dead body to the sons of deceased vide Ex.PW16/B and doctor handed over blood sample in sealed condition with the seal of hospital with sample seal to SI Manoj who handed over same to him and he seized the same vide Ex.PW27/G. (83) He has also deposed that on 12.06.2012 he along with Ct. Ajit and other staff reached at the Prince Road, Model Town as they have received secret information that accused Kali Charan involved in this case was coming there along with Ram Kumar and they took position there. He has testified that at the instance of the secret informer they apprehended Kali Charan and Ram Kumar at about 07:30 PM. Witness has also deposed that both the accused were interrogated by him and they confessed about their involvement in this case after which he arrested the accused Kali Charan vide Ex.PW25/A and took his personal search vide Ex.PW25/B. Witness has further deposed that one mobile phone of blue and black colour with SIM recovered from him during his personal search, he have mentioned the SIM and IMEI number in the personal search memo and also recorded the disclosure statement of accused Kali Charan vide Ex.PW25/E. Witness has further proved having arrested the accused Ram Kumar vide Ex.PW25/C, conducted his personal search vide Ex.PW25/D and recorded disclosure statement of accused Ram Kumar vide Ex.PW25/F after which both the accused were kept in lockup after their medical examination and he recorded the statements of witnesses. St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 70 Witness has further deposed that on the next day on 13.06.2012 both the accused were produced before the court and one day Police Custody remand of accused Kali Charan was obtained whereas the accused Ram Kumar was sent to Judicial Custody. According to the witness the accused Kali Charan pointed out the place of incident vide Ex.PW25/G and Kali Charan also made his supplementary disclosure statement which was recorded by him vide Ex.PW25/L and on the next day accused Kali Charan was produced before the court and he was sent to Judicial Custody. (84) The witness has also deposed that on 15.06.2012 he received information that accused Sarvesh was apprehended by HC Rameshwar Rana of Police Station Ashok Vihar and he produced the accused Sarvesh before him at Police Station Model Town after which he interrogated the accused Sarvesh and after confirmation from the CD the accused Sarvesh was arrested by him vide Ex.PW8/A and he took his personal search vide Ex.PW8/B after which he recorded his disclosure statement vide Ex.PW8/C and thereafter accused Sarvesh was kept in the lockup after medical examination and he recorded statement of witnesses. According to him accused Sarvesh was produced before the court on the next day and one day Police Custody Remand was obtained during which accused Sarvesh pointed out the place of incident vide Ex.PW25/H and thereafter, accused Sarvesh was produced before the court and he was sent to Judicial Custody. Witness has also deposed that on 04.07.2012 he received information about the arrest of accused Chander Bhan from SI Hira Lal of St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 71 Police Station Model Town after which he interrogated the accused Chander Bhan who confessed his involvement in this case and thereafter he arrested the accused Chander Bhan vide Ex.PW25/M, recorded his disclosure statement vide Ex.PW25/N after which the accused Chander Bhan was produced before the court and one day Police Custody C remand was obtained. According to the witness, during Police Custody Remand accused Chander Bhan pointed out the place of incident vide Ex.PW25/A and also pointed out the place a park near Narela, J.J. Colony in the bushes where he kept the knife which was the weapon of the offence. Witness has further deposed that one knife was recovered at the instance of accused Chander Bhan from the said place and he prepared sketch of the knife vide Ex.PW25/I and he took measurements of the said knife which he mentioned in the sketch and thereafter he sealed the knife in a cloth pullanda with the seal of KS and seized the same vide seizure memo Ex.PW25/J. According to him thereafter they returned to Police Station where he deposited the sealed articles in malkhana and he recorded the statement of witnesses and accused was kept in lockup and on the next day, accused Chander Bhan was produced before the court and was sent to Judicial Custody. He has also deposed that on 09.07.2012 he along with Lady Ct. Gita reached near Hans Cinema, G.T. Karnal road after receiving secret information regarding accused Bimlesh and at the instance of secret informer accused Bimlesh was apprehended by him. He has testified that she was interrogated by him and she disclosed her involvement in this case St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 72 after which he arrested the accused Bimlesh vide Ex.PW10/A and her personal search was taken vide Ex.PW10/B through Lady Ct. Gita and he recorded statement of witnesses and accused Bimlesh was sent to Judicial Custody after her medical examination.
(85) According to the Investigating Officer during his investigation he collected the postmortem report, inquest documents and also collected TIP proceedings and also collected the call details of the accused Kali Charan and accused Amit @ Mangru. The witness has proved having collected the photographs from the crime team photographer and he got prepared the photographs through Avinash Shukla from the CD of CCTV footage which was handed over to him by Dr. Dharampal Sharma which photographs are Ex.PW14/B1 to Ex.PW14/B8 and the said CD is Ex.PW14/A. Witness has also deposed that he also moved application for the TIP of the accused Sarvesh Kumar on 28.06.2012 vide Ex.PX2 but he refused for the TIP proceedings after which he collected the copies of the TIP proceedings on his application which is Ex.PX4. According to the witness, he took the exhibits of the case to FSL, Rohini, Delhi and deposited the same there and the same were not tampered while in his possession and after completion of investigation he filed charge sheet against accused Kali Charan, Ram Kumar, Sarvesh Kumar, Chander Bhan and Bimlesh.
(86) Witness has also deposed that on 12.10.2012 he received information from Special Staff North West District regarding arrest of St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 73 accused Amit @ Mangru on which he along with Ct. Jitender reached at Rohini Court complex and after seeking permission from court he interrogated accused Amit @ Mangru wherein he disclosed his involvement in this case and then he arrested the accused Amit @ Mangru vide Ex.PW24/A and recorded his disclosure statement vide Ex.PW24/B. According to the witness, he obtained two days Police Custody Remand of accused Amit @ Mangru during which the accused pointed out the place of incident vide Ex.PW25/R and at the instance of accused Amit @ Mangru one knife was recovered from in front of the DDA Flats near Shamshan Ghat after which he prepared the sketch of the said knife vide Ex.PW25/O. Witness has also deposed that he kept the knife in a cloth pullinda and sealed the same with the seal of KS and seized the same vide seizure memo Ex.PW25/P and at the instance of the accused he recovered two golden colour bracelet (kara) from the residence of the accused Amit @ Mangru at C 178, Lalbag Jhuggi, Azadpur, Delhi and disclosed that the same was robbed from the place of incident. According to the witness he sealed both bracelets in a cloth pullinda with the seal of KS and seized the same vide Ex.PW25/Q and during the Police Custody remand accused Amit @ Mangru again made another disclosure statement which was recorded by him vide Ex.PW25/S. Witness has further deposed that he also collected the documents of kalandara regarding the accused Amit @ Mangru, recorded the statement of witnesses and deposited the seized articles in the malkhana. According to the witness, he collected the FSL St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 74 reports Ex.PW19/B. Witness has further deposed that accused Anil could not be arrested and he was declared Proclaimed Offender and after completion of investigation he submitted charge sheet against accused Amit @ Mangru.
(87) The witness has correctly identified the accused Kali Charan, Ram Kumar, Sarvesh Kumar, Chander Bhan, Bimlesh and accused Amit @ Mangru in the court and also identified the case property i.e. one knife which recovered from accused Chander Bhan which is Ex.P1; one knife recovered from accused Amit @ Mangru which is Ex.P2; two bangles/ bracelets (kara) of golden colour recovered from accused Amit @ Mangru which are Ex.P3 and Ex.P4; one CD which was handed over to him by Dr. Dharampal Sharma along with the CD Ex.PW14/A which CD is Ex.P5. (88) In his cross examination by Ld. Defence counsel witness has deposed that he received copy of FIR at about 05:00 PM for investigation and the incident took place at about 03:00 PM. Witness has admitted that in the rukka/ FIR only the mobile phone was robbed was written but has denied the suggestion that he recorded false statement of the victim regarding the recovery of bracelets (kara) only to make the case water proof and to connect the accused with the present case. Witness has also denied the suggestion that that the accused Bimlesh was detained by the police on the same day i.e. 09.06.2012 or that accused Kali Charan and Ram Kumar were also detained on 09.06.2012. He has further denied the suggestion that Bimlesh was called to Police Station almost daily from St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 75 09.06.2012 to 13.06.2012 or that during this period she was subjected to third degree torture by male police officials. According to the witness he has no knowledge if Bimlesh had made a compliant to senior police officials after 13.06.2012 i.e. on 15.06.2012 and 16.06.2012 or 18.06.2013 which are mark A and mark B. Witness has further deposed that he has no knowledge if the accused Bimlesh was admitted in Lok Nayak hospital on 20.06.2012 or that the police got her forcibly discharged from the hospital by putting pressure on the doctors. He has denied the suggestion that the accused Bimlesh had gone to the DCP Office on 09.07.2012 and handed over a complaint addressed to DCP (N/W) vide diary No. 6224 and while she was coming out, she was arrested or that no incriminating was found against accused Bimlesh between 09.06.2012 and 13.06.2012 when she was interrogated and that is why she was arrested and has voluntarily explained that she was never called between 09.06.2012 and 13.06.2012 nor she was interrogated. Witness has also denied the suggestion that Bimlesh has been falsely implicated on account of her compliant to the senior officers against the police officials who had inflicted third degree on her and this was done to save the police officers against whom she had made complaints and has voluntarily explained that there is no question of using third degree or interrogating her as she was never called. Witness has further denied the suggestion that the manner of arrest of accused Bimlesh and the subsequent proceedings relating to disclosure and investigations have been fabricated subsequently. According St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 76 to him, during the investigations they did not come to know anything about the elder sister of accused Bimlesh whose name is Kamlesh or that she was working in the house of complainant prior to the incident. He has denied the suggestion that the disclosure statement of the accused Kali Charan to the extent of involvement of accused Bimlesh to falsely connect her in the present case. Witness has admitted that accused Kali Charan and Ram Kumar have been shown as arrested on 12.06.2012. He has further deposed that he was aware of the secret information prior to leaving the police station. He has testified that the secret informer had come to Police Station to give information and accompanied them to the spot. According to the witness he entered this fact regarding the secret informer accompanying to the spot in case diaries. He has further deposed that Ct. Ajit was not aware of the identity of the secret informer and hence he has not mentioned this fact in his statement under Section 161 Cr.P.C. Witness has further deposed that the secret informer had come to Police Station before 07:00 PM and remained with them for about half and hour and they had left the Police Station in official vehicle. According to the witness, apart from secret informer only Ct. Ajit, he himself and the driver were present in the vehicle and has voluntarily explained that Beat staff met them in the spot. He has testified that the accused was apprehended on the road which is in front of the gate of PCR Head Quarter. Witness has denied the suggestion that the accused Kali Charan and Ram Kumar were not apprehended on 12.06.2012 and both of them were picked up by St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 77 the police on the day of incident and after keeping them in illegal detention he have shown them arrested on 12.06.2012. Witness has also denied the suggestion that he put pressure on the complainant and tutored her to depose against the accused Bimlesh so that she can be punished in the present case. Witness has further deposed that when he reached at the spot on 09.06.2012 the articles of both the almirah were lying scattered in the rooms. He has denied the suggestion that the complainant informed him that the robbers had stolen only mobile and later on he had taken the golden kara from the complainant and had shown to be robbed in the present case. He has testified that he was aware that Shyam Dev is the father of accused Sarvesh to whom arrest of accused was given but he never called Shyam Dev to the Police Station prior to arrest of the accused Sarvesh. Witness has denied the suggestion that Shyam Dev was called to Police Station and was tortured and was illegally detained in the Police Station. According to the witness, he viewed the CD prior to the arrest of accused Sarvesh and still photographs were also got prepared from the said CD and it was Dharampal Sharma who produced the CD of the CCTV footage to him. Witness has further deposed that on the day of incident he came to know about the CCTV footage and Dharampal Sharma handed over the CDs to him. According to the witness, he had seen the CCTV footage at the house of Dharampal Sharma in screen after rewinding the CCTV footage and instructed Dharampal Sharma to prepare the CD of the said CCTV footage regarding the incident pursuant to which St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 78 Sh. Dharampal Sharam got prepared the photograph of the said CCTV footage and handed over to him. Witness has also deposed that Dharampal Sharma handed over said CD to him after two hours at about 07:00 PM. He has testified that the place from where the still photographs were got prepared from the CD of the CCTV footage is a photo studio run by Avinash Shukla and it was Avinash Shukla only who prepared the copy of the CD.
(89) According to the witness, accused Sarvesh is the resident of area of Police Station Ashok Vihar and he also gave information to the police of Police Station Ashok Vihar regarding accused Sarvesh and also got information from the MHCR about the involvement of accused Sarvesh but no involvement was found. He has testified that the Beat Constable of his area was informed but he had not prepared any such document regarding the above said proceedings and orally obtained the information from MHCR and Beat Constable. The witness has also deposed that he had recorded the statement of HC Rameshwar Rana who brought the accused Sarvesh before him but he does not remember whether HC Rameshwar Rana disclosed him about the place from where he apprehended accused Sarvesh. Witness has denied the suggestion that accused Sarvesh himself came to Police Station before him and requested him to release his father or that the refusal of the accused to participate in the TIP was on account of his advise to him because he deliberately did not want the complainant to face the accused in the jail as she was not St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 79 capable of moving without him. Witness has further deposed that the fact that the accused Sarvesh Kumar, Anil and Chander Bhan had come to the spot on the vehicle of Manoj was disclosed to him by the accused themselves in their disclosure statement but he could not trace out Manoj because his address was not found. According to the witness the copy of the CD was handed over to him by Sh. D.P. Sharma on 09.06.2012 i.e. the same day and he did not send this CD to FSL for examination and has voluntarily explained that they had immediately seen the CCTV footage/ visuals soon after the incident and on seeing the CD he found that the same was correct copy of the original visuals and therefore there was no need to send it to the FSL. Witness has also deposed that he has mentioned this fact of having seen the visuals of the CCTV footage on the spot in the case diaries. Witness has admitted that it was Kali Charan who made the 100 number call at the first instance and that Kali Charan is a regular fruit vendor in the area who used to come in a redhi and has voluntarily explained that he even used to come to the house of the complainant inside the house and normally sat with the complainant and her husband and conversed with them and was aware of them various transactions. According to him, this fact was disclosed to him by the complainant. He has denied the suggestion that accused Kali Charan has been falsely implicated in this case.
(90) The witness has further admitted that he has placed only one CD with the case file and has voluntarily explained that he deposited St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 80 another CD in malkhana in sealed condition. He has denied the suggestion that Avinash Shukla developed a CD from a pen drive which he handed over to him and has voluntarily explained that D.P. Sharma got prepared the CD through pen drive. According to him, Avinash Shukla did not prepare any CD for him during the investigation of this case and has voluntarily explained that Sh. D.P. Sharma had got prepared the C.D. from Avinash Shukla which fact he disclosed to him during investigations. Witness has further deposed that he did not record any supplementary statement of Sh. D.P. Sharma to this extent. Witness has further deposed that he reached at the spot after 05:00 PM on 09.06.2012 and he had seen the CCTV footage when he reached at the spot but he cannot tell at what time the contents of the CCTV footage were taken to the photographer. He has denied the suggestion that D.P. Sharma did not hand over CD of CCTV camera footage as alleged or that he has morphed the CD and annexed with the challan to falsely implicate the accused persons. Witness has admitted that complainant did not allege about the robbery of gold kada in the FIR and has voluntarily explained that he recorded the statement of complainant under Section 161 Cr.P.C in which she alleged robbery of her gold jeweleries. According to him the ownership documents of the recovered golden colour Kadas could not be collected from the complainant and has voluntarily explained that complainant told that she was not in possession of the said documents. Witness has further deposed that he has not collected any photographs in which the recovered St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 81 kadas were worn by the family members of the complainant. The witness has also deposed that on 13.10.2012 accused Amit was taken out from lock up while he was in Police Custody remand at about 10:00 AM and he did not collect any document that accused Amit was residing at H.No. C 178, Lalbagh Jhuggi, Azadpur, Delhi nor he recorded statement of any person regarding the ownership of the said jhuggi where they reached in afternoon time. According to him the jhuggi was occupied by one lady and a child when they reached there and he did not prepare the site plan of the place of recovery of kada. Witness has admitted that he did not seize the bed box in which the kadas were recovered. Witness has further deposed that the kadas were found in a polythene and same were recovered at the instance of accused Amit and the polythene containing kadas were found in the box of the bed at the corner. He has also admitted that he has not joined either the inmates of the house or any other neighbour during recovery of kada. Witness has denied the suggestion that nothing was recovered from possession of accused Amit from the said jhuggi. He has admitted that the knife allegedly recovered at the instance of Amit was a open place or that no knife was recovered at the instance of accused or that the knife and kara have been falsely planted upon the accused. Witness has further denied the suggestion that the accused Amit, Ram Kumar and Chander Bhan have been falsely implicated in this case or that their signatures were obtained on blank papers to fabricate their disclosure statements.
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 82 STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(91) After completion of prosecution evidence the statements of the accused persons have been recorded under Section 313 Cr.P.C. wherein all the incriminating material was put to them which they have denied. (92) The accused Bimlesh has stated that he is innocent and has been falsely implicated. According to the accused, she was taken to the Police Station on the date of incident i.e. 9.6.2012 for inquiries and the police called her everyday from 9.6.2012 to 13.6.2012 during which period she was subjected to third degree torture by the male police officers after removing her clothes as a result of which she got grievous injuries. The accused has further stated that thereafter he was released by the Police in this case but due to the inhuman acts of the police she was admitted in LNJP Hospital on 20.6.2012 copy of which MLC is Mark X and she also lodged two complaints to senior officers against the cruel behaviour of the police officials on 15.6.2012 and 18.6.2012 which are Mark A and Mark B and the courier receipts are Mark X1 to X4. The accused has also stated that she remained in touch of police from 9.6.2012 to 9.7.2012 but the police did not arrest her and she was arrested in this case falsely only to save the police officers against whom she had lodged the complaint. (93) The accused Kali Charan has similarly stated that he is innocent and has been falsely implicated in the present case. According to St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 83 the accused, it was he who made a call at 100 number. He has stated that he had not referred any maid servant in the house of the complainant nor he made any call to the accused Amit on the date of incident. The accused has also stated that he has business relations with Amit, his brother and father who are commission agents at Azadpur Mandi and all the allegations made against him are incorrect.
(94) The accused Sarvesh Kumar has stated that he is innocent and has been falsely implicated by the Investigating Officer who compelled him to surrender himself at the Police Station by way of detaining his father. According to the accused, he never pointed out any place of occurrence nor he was interrogated by the police and the entire documents were prepared against him are false and fabricated. (95) The accused Chander Bhan has stated that he is innocent and has been falsely implicated by the Investigating Officer to sort out the present case. According to the accused, he never pointed out any place of occurrence nor he was interrogated by the police. He has also stated that the entire documents prepared against him are false and fabricated. (96) The accused Ram Kumar has similarly stated that he is innocent and has been falsely implicated by the Investigating Officer to sort out the present case. According to the accused, he never pointed out any place of occurrence nor he was interrogated by the police. He has also stated that the entire documents prepared against him are false and fabricated.
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 84 (97) The accused Amit @ Mangru has stated that he is innocent and has been falsely implicated by the Investigating Officer. According to the accused, he was lifted from his house and falsely implicated him in this case because of his previous involvements in other cases which were planted upon him by the police. He has also stated that he never pointed out any place of occurrence nor he was interrogated by the police. He has also stated that the entire documents prepared against him are false and fabricated. However, the accused have preferred not to examine any witness in their defence.
FINDINGS:
(98) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsels. I have also gone through the written memorandum of arguments filed on behalf of the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses so examined by the prosecution individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition No. witness Complainant/ Public witnesses
1. Dr. Vivek Sharma He is the son of witness D.P. Sharma. He has deposed as (PW13) under:
1. That on 09.06.2012 at about 3:15 PM he was taking rest at his house (Floor, A176, Gujrawalan Town, Part1, Delhi110009) after taking lunch St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 85 when suddenly he heard some noise on which he came out from the house.
2. That on the ground floor, at the front side, there is dental clinic of his wife and Kishan Lal Manchanda was residing at the backside on the ground floor.
3. That he noticed that many persons had gathered on ground floor where their tenant Mr. Kishan Manchanda was residing and he came to know that some robbers came to his house.
4. That he also went there and found Kishan Manchanda lying on the ground after which with the help of the public person and Mrs. Manisha Manchanda, daughterinlaw of Kishan Manchanda he took Kishan Manchanda to Pentamed Hospital in his car and got Mr. Manchanda admitted there.
2. Avinash Shukla He is a photographer by profession having a studio at (PW14) G2, Model TownIII, Delhi. He has deposed on the following aspects:
1. That six months from ago two officers from Police Station Model Town came to him and handed over him a pen drive and asked him to prepare a CD of the contents of the same.
2. That he prepared three copies of the contents of the pen drive in CDs and handed over the same to these officers.
3. That after some days, these officers had also got prepared from him the photographs of the said contents of the CDs which he prepared and handed over to them.
4. That the copy of CD which he had prepared which is Ex.PW14/A and the eight photographs which are Ex.PW14/B1 to Ex.PW14/B8 which are stills from the CD.
3. Mukesh He is the son of the deceased who has proved that on Manchanda 10.06.2012 he identified the dead body of his father Sh.
(PW16) Kishan Lal Manchanda at the mortuary of BJRM Hospital St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 86 vide his statement Ex.PW16/A and after postmortem he received the dead body of his father vide memo Ex.PW16/B.
4. D.P. Sharma He is the landlord of the deceased/ victim and a witness to (PW17) the incident. He has deposed as under:
1. That Sh. K.L. Manchanda was residing at the ground floor of their house as tenant along with his wife Smt. Kamla Devi and he (witness) has been residing at the house on the first floor.
2. That on 9.6.2012 at about 3:15 PM he received a telephone call from the clinic of his son from the Receptionist that noise was coming out from the house of K.L. Manchanda and on his further asking she told him that K.L. Manchanda was scolding someone.
3. That he ignored the same as K.L. Manchanda was habitual of speaking in loud voice. However, after some time he came downstairs to pick up his purse when he found the entrance gate of the house of K.L. Manchanda open.
4. That when he looked inside he found an unknown person dressed in sky blue coloured shirt standing inside the house and he (witness) asked him what was the matter, where was Mr. Manchanda and to call him out "kya baat hai, Manchanda Sahab kahan hai, unhe bahar bulao."
5. That on this, the said person went inside while he kept standing on the gate and after some time the said person came outside and told him that Mr. Manchanda was not well (unki tabiyat kharab hai) on which he (witness) felt it was necessary to inquire about his health.
6. That as soon as he had taken about one or two steps into the house, the said man shouted "aa gaya" on which he (witness) immediately became apprehensive and suspicious of him and looked at him and tried to stop him.
7. That there was a hathapai and he raised an alarm of chorchor and while he was still grappling with St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 87 him, they came on the road side and the said person managed to get himself freed from his grip and ran away leaving behind his chappals.
8. That soon he noticed three more persons coming out from the house of Mr. Manchanda one after the other and ran behind the first persons in quick succession and one of them left behind his towel.
9. That the last person pulled out a knife and gave a slash blow directed on his neck but he saved himself by ducking.
10. That after hearing the alarm which he had raised some public persons including his family members gathered and they immediately informed the police.
11. That some of the public persons entered in the house of Mr. Manchanda and found him lying on the floor and then there was a discussion as to whether to shift him (K.L. Manchanda) to the hospital or to wait for the police but they decided to shift him to the hospital first.
12. That in the meanwhile the other family members of Mr. Manchanda who were residing a little away from the said house also reached the spot and one lady from their family, his son (son of witness) and one another boy from neighbourhood i.e. the son of his neighbour picked up Mr. Manchanda and shifted him to the car and by that time the police also reached at the spot.
13. That Mr. Manchanda was shifted to Pentamed Hospital and later he came to know that he was no more.
14. That there is a CCTV Camera installed outside of his house and in many other houses in the neighbourhood in the same street.
15. That Police had checked the recording of CCTV Camera installed in his house on the same day where they found the movements of the accused persons recorded on which police asked him to hand over the recordings of the visuals of the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 88 CCTV Camera of that day in a CD.
16. That on receiving this request from the police he asked the agency who had installed the CCTV Camera at his house i.e. A to Z Infolink, situated at Subhash Place, Delhi to prepare the CD of the footage after which they took the hard drive of the camera and copied the visuals in the pen drive.
17. That when he noticed that it was in a pen drive he directed his PSO to get the CD of the same prepared which he did and thereafter he handed over the CD to the police which CD is Ex.PW14/A and the stills from the said CD are Ex.PW14/B1 to Ex.PW14/B8.
18. That the said CD was seized by the police vide memo Ex.PW17/A. After seeing the visuals of CD and the stills in the Court the witness has identified the person seen in sky blue colour shirt in Ex.PW14/B5 as the person who was standing a little away from the entrance in the house of Mr. Manchanda and with whom he had spoken. It has been observed by this Court that the said accused is Sarvesh. The witness has further identified the person seen in Ex.PW14/B6 as the person who had left the towel at the spot while he was running away. It has been observed by this Court that the said accused is Amit. He has identified the person seen in Ex.PW14/B7 and Ex.PW14/B8 at point encircled A as the person who had given him the slash blow with the knife while he was running away. It has been observed by this Court that the said accused is Chander Bhan. The witness has further identified the person seen in Ex.PW14/B7 and Ex.PW14/B8 as the person in a check shirt as encircled B as one of the assailants who had come of the house and was carrying a bag. It has been observed by this Court that the said person is accused Anil who is Proclaimed Offender. On a specific Court Question the witness has proved that the recording of the CD Ex.PW14/A is correct as per the CCTV Footage.
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 89
The CD has been played in the court and it has been observed by this Court that the presence of witness in Kurta Payjama is seen at 15:18:33 and also at 15:19:2223 onwards till 15:19:30. The court has also observed that in fact there are five persons involved in the incident as reflected from the CCTV footage of which one person was wearing a head gear i.e. White Pagri and was the first to be seen as running away who is accused Kali Charan. The accused seen in sky blue shirt is Sarvesh. The accused Amit is in double coloured T Shirt/ Sweat Shirt and Chander Bhan is the one who is the last to come out with a knife in his hand. The person with check shirt carrying a bag in his hand is accused Anil who is Proclaimed Offender.
5. Jag Parvesh He is the other son of the deceased who has deposed that Manchanda on 10.06.2012 he identified the dead body of his father Sh. (PW18) Kishan Lal Manchanda at the mortuary of BJRM Hospital vide his statement Ex.PW18/A in this respect and after postmortem they received the dead body of his father vide memo Ex.PW16/B.
6. Neelam She is the daughterinlaw of the deceased and has Manchanda deposed on the following aspects:
(PW26) 1. That Sh. Kishan Lal Manchana was her father in law and Smt. Kamla Devi is her mother in law.
2. That at the time of incident i.e. on 09.06.2012 she was residing at A130, Gujranwala Town, PartI Delhi alongwith her family member including her husband and children on the first floor and on the upper ground floor her devar was residing with his family members including his wife and children.
3. That her father in law Kishan Lal Manchanda and mother in law Smt. Kamla Devi were residing at the H. No. A176, Gujranwala Town on rent basis on the ground floor since her mother in law was unable to walk.
4. That she used to visit her father in law and mother in law daily at the day time.
5. That one maid servant was appointed by her St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 90 father in law and mother in law for their help at their house and the maid servant Bimlesh was referred by Kali Charan.
6. That the behaviour of maid servant Bimlesh was not good and she already expressed her suspicion about Bimlesh to her mother in law and also told her mother in law to change the maid servant.
7. That the maid servant however was not removed by her mother in law on account of her medical problem as she was totally bed ridden and unable to move.
8. That on 09.06.2012 at about 3.003.15PM she went to the house of her in laws to meet them but found many public persons gathered there and also found her father in law Kishan Lal Manchanda lying on the ground in unconscious condition between the kitchen and the living room i.e. the place where the fridge was kept.
9. That it appeared as if he was dragged inside from outside as he had injuries on his head and there were blood stains indicating that he was dragged and she noticed that Almirah of the living room was opened and articles were lying scattered while her mother in law was crying.
10. That with the help of the son of the landlord who is a doctor, she rushed her father in law to the Pentamed hospital but he was declared brought dead.
11. That her mother in law informed her that Rs.
10,000/ and four gold bangles and one Mangal Sutra had been robbed.
Witness has correctly identified the accused Bimlesh and Kali Charan in the court.
7. Smt. Kamla Devi She is the wife of the deceased and has been observed to (PW29) be paralytic wait down and unable to move without help.
She is an eye witness to the entire incident and has deposed on the following aspects:
1. That on 9.6.2012 at around 3:00 PM she was at St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 91 her house with her husband.
2. That she is totally paralytic waistdown and cannot move at all without help being bed ridden and it for this reason that they i.e. she and her husband had kept a part time maid who used to come in the morning and leave in the evening.
3. That Kamlesh used to work at their house previously and Bimlesh had joined the services at their house as maid for the last three to four months from the date of incident and used to help her and was aware of all the details of their house.
(It has been observed by this Court that the witness is confused on the names and sometimes gives the name as Kamlesh and sometimes Bimlesh but has identified the accused Bimlesh correctly in the court as the one who working in her house as a part time maid at the time of the incident).
4. That Kali Charan was a fruit seller and used to regularly supply fruits in the locality and also at their house.
5. That on the date of incident at about 3 to 3:15 PM Kali Charan called out to them from outside (Kali Charan ki bahar se aawaj aai) asking them to purchase Kharbujas and her husband Kishan Lal Manchanda had gone outside for making payment of the Kharbujas to Kali Charan.
6. That thereafter, she heard loud noise and soon she saw outside that there were two persons out of whom one was wearing check shirt and the other one was wearing spectacle (Chasma).
7. That they all were pushing her husband inside the room and all the Kharboojas were scattered and these two men pushed her husband down and were on him and hitting him and she saw one of them stabbing on his face (vo dono unke upper chad gaye aur eik admi unke muh per chaku mar raha tha).
8. That when she raised alarm the other person who St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 92 was in the check shirt came inside the room to her and pressed her mouth (dusre ne mera muh daba diya) and they then asked her to come outside near her husband on which she told them that she was immobile and cannot move (maine unse kaha ki mai chal fir nahi sakti).
9. That thereafter she wanted to make a telephone call to her sons but as soon as she caught hold of her mobile phone to make a call, these boys snatched the mobile phone from her hand and the person who had come inside knew where the keys of the almirah were kept and he took the keys and opened the almirah and took away her two gold karas, chain and cash amount which was kept there.
10. That she could hear the alarm and voices of "chorchor" coming from the outside after which the two persons who were standing outside and two persons who had come inside the house i.e. all the four of them ran away.
11. That the neighbors gathered there and made a call to the police and her husband was immediately rushed to the hospital by their neighbor who is a Judge and is residing on the first floor.
12. That in the meanwhile since her daughterinlaw had also come, so she also went to the hospital along with her husband when he was being taken to the hospital and after sometime when the police came, her statement was recorded which statement is Ex.PW27/A. The photographs of the CCTV recordings which are Ex.PW14/B1 to Ex.PW14/B8 have been shown to the witness in the Court who confirms that these photographs are of her residence where the incident took place and from the said photographs she has identified the boy with check shirt and one with spectacles in Ex.PW14/B1 as the two boys who were assaulting her St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 93 husband. She has also identified the boy in the check shirt as the one who had pressed her mouth and the person who was having one eye (Kana) was the one who was inflicting blows and injuries on her husband after they came inside.
The witness has also correctly identified the accused Bimlesh (by referring to her as Kamlesh) saying that she sometimes called herself as Kamlesh and sometimes Bimlesh and she was the one who was working as the maid in their house when the incident took place. She has stated that she can identify the accused who was wearing check shirt and other wearing spectacles but not others who were outside the room. According to the witness the person who was wearing check shirt was the one who had pressed her mouth. She has identified the accused Chander Bhan as the person who had climbed over her husband and gave him repeated blows inflicting stabbing on his face. It has been observed by this Court that the accused Chander Bhan is one eyed / Kana.
Witness has further stated that the person who was wearing the check shirt was of a dark complexion and was a healthy person and since it is one year since the incident, therefore she is not able to exactly identify him but it could be the accused Sarvesh Kumar who appears to be dark and healthy. It has been further observed by this Court that the accused Mangru (Amit) who is having a beard and mustache is also healthy and dark complexion and the accused Mangru has admitted that he has grown a beard and mustache now in Jail.
Witness has further deposed that the said person was not having beard at that time. This Court also observed that the person who is wearing check shirt in the photographs is the accused Anil who is PO as informed by the Investigating Officer.
She has also identified two gold Karas as the same as robbed by the accused persons which Karas are Ex.P3 and Ex.P4.
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 94 Witnesses of medical record
8. Dr. A.K. Singh He is the CMO from Pentamed Hospital, Gujrawalan (PW11) Town, PhaseIV, Delhi who has proved the MLC No. 640/12 of Shri Krishan Lal Manchanda which is Ex.PW11/A. He has proved the following aspects:
1. That Krishan Lal Manchanda was brought to hospital by Smt. Neelam Manchanda at about 3:40 PM with alleged history of assault by some unknown person at his home (A1/76, Gujrawalan Town, Part1) around 3:20 PM on 09.06.2012 as told by Neelam Manchanda (DaughterinLaw).
2. That on local examination (i) Nasal bleeding was present and (ii) there was swelling upon upper lip present.
3. That there was no pulse and no recordable blood pressure nor spontaneous breathing movements and pupils bilateral dilated and fixed and patient was known case of coronary artery disease and CPR was tried for 30 minutes but failed and the patient was declared brought dead.
9. Dr. Bhim Singh He is the Autopsy Surgeon who has proved that on (PW12) 10.06.2012 at about 11:00 AM, he conducted postmortem examination on the body of Kishan Lal Manchanda vide postmortem report Ex.PW12/A according to which there were following injuries on the body of the deceased:
i) Reddish abrasion 0.8cmX0.5 cm over the right cheek.
ii) Swelling of upper lip present.
He has proved that in his opinion, death was due to shock consequent upon blockage of coronaries, due to preexisting coronary artry disease, a natural cause of death and all the injuries were antimortem, fresh in nature and could be caused by blunt force/ surface impact and time since death was about 20 hours.
FSL Experts
10. Ms. Poonam She is the Senior Scientific Officer (Biology) who has Sharma (PW19) proved the biological report Ex.PW19/A according to St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 95 which blood was detected on Ex.1 (cotton wool swab), 1A (tile piece), 2 (cotton wool swab), 2A (tile piece), 3 (currency note) and 5 (gauze cloth piece). She has also proved the serological report Ex.PW19/B according to which Human Blood of "B" group was found in the Ex.1 and 5 and she also found human blood on Ex.1A, 2, 2A and 3.
11. N.K. Sharma He is the Finger Print Expert who has proved that on (PW20) 11.09.2012 the specimen finger prints of deceased, wife of the deceased, suspect Chander Bhan and photographs of developed chance prints were sent to him for comparison and expert opinion thereon. He has further proved that after examination he gave his report Ex.PW20/A according to which the chance print marked P1 was identical with right hand palm print portion marked S1 on the palm impression slip of Kishan Lal Manchanda (deceased).
Nodal Officers:
12. Vishal Gaurav He is the Nodal Officer from Bharti Airtel Ltd. who has (PW15) proved that the mobile No. 9818468581 has been issued in the name of Kali Charan S/o Sh. Hori Lal, R/o C374, Lal Bagh, Azadpur, Delhi vide Customer Application Form which is Ex.PW15/A (running into two pages). He has placed on record the call details record from 20.05.2012 till 09.06.2012 which is Ex.PW15/B (running into nine pages); Cell ID chart which is Ex.PW15/C (running into two pages) and the certificate U/s 65 B of Evidence Act which is Ex.PW15/D.
13. Deepak (PW21) He is the Nodal Officer from Vodafone Mobile Services Ltd. who has proved that the mobile number 9582372346 was issued in the name of Amit Kumar S/o Sumant Marya on 20.01.2012 vide Customer Application Form which is Ex.PW21/A and ID Proof Ex.PW21/B. He has proved the call detail of above said mobile phone from 01.06.2012 to 16.06.2012 which are collectively Ex.PW21/C (two pages); Cell ID chart which is St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 96 Ex.PW21/D (running into 108 pages) and certificate U/s 65B of Indian Evidence Act which is Ex.PW21/E. Police/ official witnesses:
14. HC Ramphool He is a formal witness being the Duty Officer who has (PW1) proved the copy of FIR No.138/12 which is Ex.PW1/A and his endorsement on rukka which is Ex.PW1/B.
15. HC Ishwar Singh He is a formal witness being the DD Writer who has (PW2) proved DD No.18A copy of which is Ex.PW2/A, DD No. 19A copy of which is Ex.PW2/B and DD No. 20A copy of which is Ex.PW2/C.
16. HC Ramniwas He is a formal witness being the MHCM who has proved (PW3) the entry in register no. 19 vide S.No. 3037/12 copy of which is Ex.PW3/A (running into two pages), Sr. No. 3039/12 copy of which is Ex.PW3/B, S.No. 3050/12 copy of which is Ex.PW3/C, S.No. 3093/12 copy of which is Ex.PW3/D, S.No. 3334/12 copy of which is Ex.PW3/E (running into two pages), entry in register no. 21 vide RC No. 22/21/12 copy of which is Ex.PW3/F and receipt issued by FSL copy of which is Ex.PW3/G.
17. Ct. Kushal (PW4) He is a formal witness who has proved that on 9.6.2012 he along with SI Manoj Kumar reached the scene of crime and he took the Rukka to the Police Station and got the FIR registered.
18. SI Ramesh Chand He is a formal witness being the Crime Team Incharge (PW5) who has proved the Crime Team Report which is Ex.PW5/A.
19. Ct. Sandeep He is a formal witness being the finger Print Expert who (PW6) has proved that on 9.6.2012 he inspected the scene of crime and developed one chance print which was sent to fingerprint bureau for further necessary action.
20. Ct. Subhash He is a formal witness being the Crime Team (PW7) photographer who has proved the photographs which are Ex.PW7/A1 to Ex.PW7/A10 and the negatives of the same which are Ex. PW7/B (colly.).
21. HC Rameshwar This witness has proved that on 15.6.2012 he got the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 97 Rana (PW8) information that the accused Sarvesh Kumar wanted in the present case was present in his Jhuggi after which the accused Sarvesh Kumar was arrested vide memo Ex.PW8/A, his personal search was conducted memo Ex.PW8/B and his disclosure statement was recorded vide memo Ex.PW8/C.
22. SI Heera Lal This witness has proved that on 3.7.2012 on receipt of DD (PW9) No. 34A he reached the Prince Road near Queen Marry School where accused Chanderbhan @ Kana with Desi Katta and a motorcycle was produced before him by HC Narender, Ct. Kushal and Ct. Vipin. He has also proved that on interrogation the motorcycle was found stolen from the area of Nangloi. He has further deposed that he recorded the statement of HC Narender and got FIR No. 167/12, u/s. 25 of Arms Act and 411 IPC and arrested the accused Chander Bhan and recorded his disclosure statement which is Ex.PW9/A.
23. W/Ct. Geeta This witness has proved the following aspects:
(PW10) 1. That on 9.7.2012 on the basis of secret information the accused Bimlesh was apprehended Hans Cinema, G.T. Karnal Road.
2. That the Investigating Officer asked three ladies namely Sita, Sundri and Bimla to join the investigations but they refused and left without disclosing their address.
3. That thereafter the Investigating Officer arrested the accused Bimlesh vide memo Ex.PW10/A after which she (witness) conducted her personal search vide memo Ex.PW10/B and her disclosure statement was recorded vide Ex.PW10/C.
4. That the accused Bimlesh was got medically examined from BJRM Hospital and produced before the Ld. MM who remanded her to Judicial Custody till 11.7.2012.
24. HC Chanderveer He is a member of the Special Staff (NorthWest) who has (PW22) deposed on the following aspects:
1. That on 12.10.2012 in the morning time he alongwith Ct. Yogender, Ct. Ravi and HC Vinod St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 98 Kumar went to the area of Subhash Place to get the information about the offenders.
2. That at about 8.30AM he received a secret information at Subhash Place that one Amit Kumar the offender of the case of Police Station Model Town was coming to the area who was wanted by the police of Police Station Model Town, on which he immediately informed his senior officers and they directed him to conduct further proceedings.
3. That thereafter he alongwith above said officials reached at the Beriwala Bagh, Shamshan Ghat, Shakur Basti where he asked fourfive public persons to join the proceedings after disclosing the secret information to them but none agreed and left the place without informing their names and addresses.
4. That they took positions there near Shamshan Ghat and at about 9.05AM at the instance of secret informer one person was apprehended who was coming from the Britania area who disclosed his name as Amit @ Mangru and also disclosed his involvement in the case of Police Station Model Town.
5. That he confirmed the same from Police Station Model Town, then he came to know that the accused was wanted in the case FIR No. 138/12 of Police Station Model Town.
6. That the accused Amit @ Mangu was arrested vide memo Ex.PW22/A, his personal search was conducted vide memo Ex.PW22/B and his disclosure statement was also recorded vide Ex.PW22/C.
7. That thereafter they went to the Police Station Subhash Place and lodged the DD No.16A in this regard which is Ex.PW22/D.
8. That he also informed the police of Police Station Model Town about the arrest of accused Amit @ Magru and thereafter he produced the accused St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 99 Amit @ Mangru before the court of Ld. MM with Kalandara U/s 41.1 (b) Cr. P. C.
9. That police officials of Police Station Model Town also reached there and the Court after making observations handed over all the documents of Kalandara to the Investigating Officer of this case.
25. Ct. Yogender He has also corroborated the testimony of HC Singh (PW23) Chanderveer (PW22) in toto and has proved the arrest of accused Amit @ Magru vide memo Ex.PW22/A, his personal search vide memo Ex.PW22/B and his disclosure statement vide Ex.PW22/C.
26. Ct. Jitender This witness has proved the following aspects:
(PW24) 1. That on 12.10.2012 he alongwith Inspector Jagminder reached at Rohini Courts where one accused Amit @ Magru was interrogated by the Investigating Officer with the permission of the court after which the accused Amit @ Mangru was arrested by the Investigating Officer in the present case vide Ex.PW24/A and his disclosure statement was recorded by the Investigating Officer vide Ex.PW24/B.
2. That two days Police Custody Remand of the accused Amit @ Magru was granted and after medical examination of the accused Amit, he was kept in the lock up and Investigating Officer recorded his statement.
27. Ct. Ajeet (PW25) This witness had joined investigations with the Investigating Officer inspector Jagmender Singh and has proved the following documents:
Ex.PW25/A Arrest memo of accused Kali Charan
Ex.PW25/B Personal search memo of Kali Charan
Ex.PW25/C Arrest memo of accused Ram Kumar
Ex.PW25/D Personal search memo of Ram Kumar
Ex.PW25/E Disclosure statement of Kali Charan
Ex.PW25/F Disclosure statement of Ram Kumar
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 100
Ex.PW25/G Pointing out memo of the place of
incident by accused Kali Charan and
Ram Kumar
Ex.PW25/H Pointing out memo of the place of
incident by accused Sarvesh
Ex.PW25/I Sketch of the knife recovered from
Chander Bhan
Ex.PW25/J Seizure memo of the knife
Ex.PW25/K Pointing out memo of the place of
incident by accused Chander Bhan
Ex.PW25/L Subsequent disclosure statement of
accused Kali Charan
Ex.PW25/M Arrest memo of accused Chander Bhan
Ex.PW25/N Disclosure statement of Chander Bhan
Ex.PW25/O Sketch of knife recovered from the
accused Amit @ Mangru
Ex.PW25/P Seizure of the knife
Ex.PW25/Q Seizure memo of gold bangles
Ex.PW25/R Pointing out memo of the place of
incident by accused Amit @ Mangoo
Ex.PW25/S Disclosure statement of accused Amit @
Mangru
28. SI Manoj (PW27) He is the initial Investigating Officer who has proved the
following documents:
Ex.PW27/A Statement of Smt. Kamla Devi
Ex.PW27/B Endorsement on rukka
Ex.PW27/C Request for postmortem
Ex.PW27/D Seizure memo of blood stains
Ex.PW27/E Seizure memo of Rs.50 currency note
Ex.PW27/F Seizure memo of slippers and towel
Ex.PW27/G Seizure memo of exhibits of the deceased
29. HC Narender This witness has deposed on the following aspects:
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 101
Dhama (PW28) 1. That on 03.07.2012 he alongwith Ct. Kushal and Ct. Vipin were present near Queens Mary School, Prince Road and they were checking vehicles by putting barricades.
2. That at about 10:00 PM one motorcyclist was coming towards them from Model Town side area and after seeing them in uniform he turned back and started to run away from there.
3. That they overpowered the said person who disclosed his name as Chander Bhan @ Pathak @ Kana and was unable to show documents of the motorcycle.
4. That on formal search one loaded country made pistol and one more live cartridge recovered from the pocket of his pant on which they informed police station about the same on which SI Heera Lal came at the spot and conducted the proceedings against him U/s 25 of Arms Act and an FIR No.167/12 was registered.
5. That the disclosure statement of accused Chander Bhan was recorded in his presence vide Ex.PW9/E.
30. Inspector He is the Investigating Officer of the present case and has Jagmender Singh proved the following documents:
(PW30) Ex.PW5/A Crime Team Report
Ex.PW27/D Seizure memo of exhibits lifted from the
spot
Ex.PW27/E Seizure memo of currency notes
Ex.PW27/F Seizure memo of slipper and towel
Ex.PW30/A Rough site plan
Ex.PW30/B Inquest form
Ex.PW18/A Statement of J.P. Manchanda
Ex.PW16/A Statement of Mukesh Manchanda
Ex.PW30/C Request for postmortem
Ex.PW16/B Handing over memo of the body
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 102
Ex.PW27/G Seizure memo of the exhibits of the
deceased
Ex.PW25/A Arrest memo of accused Kali Charan
Ex.PW25/B Personal search memo of Kali Charan
Ex.PW25/C Arrest memo of accused Ram Kumar
Ex.PW25/D Personal search memo of Ram Kumar
Ex.PW25/E Disclosure statement of Kali Charan
Ex.PW25/F Disclosure statement of Ram Kumar
Ex.PW25/G Pointing out memo of the place of
incident by accused Kali Charan and
Ram Kumar
Ex.PW25/H Pointing out memo of the place of
incident by accused Sarvesh
Ex.PW25/I Sketch of the knife recovered from
Chander Bhan
Ex.PW25/J Seizure memo of the knife
Ex.PW25/L Subsequent disclosure statement of
accused Kali Charan
Ex.PW25/M Arrest memo of accused Chander Bhan
Ex.PW25/N Disclosure statement of Chander Bhan
Ex.PW25/O Sketch of knife recovered from the
accused Amit @ Mangru
Ex.PW25/P Seizure of the knife
Ex.PW25/Q Seizure memo of gold bangles
Ex.PW25/R Pointing out memo of the place of
incident by accused Amit @ Mangoo
Ex.PW25/S Disclosure statement of accused Amit @
Mangru
Ex.PW8/A Arrest memo of accused Sarvesh
Ex.PW8/B Personal search of accused Sarvesh
Ex.PW8/C Disclosure statement of accused Sarvesh
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 103
Ex.PW10/A Arrest memo of accused Bimlesh
Ex.PW10/B Personal search memo of Bimlesh
Ex.PW24/A Arrest memo of accused Amit @ Mangru
Ex.PW24/B Personal search of Amit @ Mangru
31. Ct. Vipin Kumar This witness has corroborated the testimony of HC
(PW31) Narender Dhama (PW28) and has proved the arrest of
accused Chander Bhan
Medical Evidence:
(99) Dr. A.K. Singh (PW11) CMO from Pentamed Hospital has
proved the MLC of Shri Krishan Lal Manchanda S/o Shri Thakur Das, Male75 years old, dated 09.06.2012 which is Ex.PW11/A. According to the MLC, the witness Krishan Lal Manchanda was brought to the hospital by Smt. Neelam Manchanda at about 3:40 PM with alleged history of assault by some unknown person at his home (A1/76, Gujrawalan Town, Part1) around 3:20 PM on 09.06.2012 as told by Neelam Manchanda (DaughterinLaw). On local examination following injuries were found
1. Nasal bleeding present.
2. Swelling upon upper lip present.
(100) The witness has further proved that there was no pulse and no recordable blood pressure nor spontaneous breathing movements and pupils bilateral dilated and fixed and patient was known case of coronary artery disease and CPR was tried for 30 minutes but failed after which the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 104 patient was declared brought dead.
(101) Dr. Bhim Singh (PW12) from BJRM Hospital has proved the postmortem report of the deceased Kishan Lal Manchanda which report is Ex.PW12/A according to which there were following injuries on the body of the deceased:
1. Reddish abrasion 0.8cmX0.5 cm over the right cheek.
2. Swelling of upper lip present.
(102) The witness has proved that on internal examination, he found all the organs were congested. Heart weight 550 gm, walls thickened, coronaries thickened, hard in consistency, left anterior discending, shows 100% blockage, circumflex, right coronaries 75% block, stomach full of semi digested food. According to the witness, in his opinion, death was due to shock consequent upon blockage of coronaries, due to preexisting coronary artry disease, a natural cause of death and all the injuries were antimortem, fresh in nature and could be caused by blunt force/ surface impact and time since death was about 20 hours. (103) It is evident from the postmortem report that the deceased Kishan Lal Manchanda had died a natural death due to shock consequent upon blockage of coronaries which could be caused by blunt force/ surface impact.
(104) As per the version of the eye witness Smt. Kamla Devi (PW29) the assailants had given beatings to her husband and they climbed St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 105 on his chest and gave knife blows on his face. Further, the medical evidence on record is compatible to the testimony of Smt. Neelam Manchanda (PW26) that she had taken her father in law to Pentamed Hospital where he was declared brought dead. No doubt the deceased had suffered shock consequent upon blockage of coronaries, yet it is writ large that for an old man aged about 75 years having a history of coronary blockage, any use of force on chest or shock is likely to be fatal and this fact was well within the knowledge of the assailants particularly Kali Charan a fruit seller in the area and Bimlesh the maid employed in the house of the deceased. The medical evidence hence confirms the version of the prosecution and the knowledge so attributed to the accused as contemplated under Section 299 Indian Penal Code. Forensic Evidence:
(105) Ms. Poonam Sharma (PW19), Senior Scientific Officer (Biology) has proved the Biological Report which is Ex.PW19/A according to which blood was detected on Ex.1 (cotton wool swab), Ex.1A (tile piece), Ex.2 (cotton wool swab), Ex.2A (tile piece), Ex.3 (currency note) and Ex.5 (gauze cloth piece). She has also proved the serological report which is Ex.PW19/B according to which Human Blood of "B"
group was found in the Ex.1 and 5 and human blood was detected on Ex. 1A, 2, 2A and 3. The above forensic evidence establishes that the blood group of the deceased Kishan Lal Manchanda was 'B' which was detected St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 106 on cotton wool swab lifted from the spot of incident, thereby confirming the spot of the incident.
(106) Further, the Finger Print Expert Sh. N K. Sharma (PW20) has proved that the specimen finger prints of deceased, wife of the deceased, suspect Chander Bhan and photographs of developed chance prints were sent to him for comparison and expert opinion and after examination of the same he gave his report which is Ex.PW20/A. According to the said report chance print marked P1 was identical with right hand palm print portion marked S1 on the palm impression slip of Kishan Lal Manchanda (deceased). However, the Finger Print Report Ex.PW20/A does not help the prosecution in any manner since the chance prints lifted from the spot could not be matched with any of the accused persons and it only matches with the deceased Kishan Lal Manchanda who was residing in the house. Electronic Evidence:
(107) In order to prove its case the prosecution has placed his reliance on the Electronic Evidence in the form of Call Detail Records of the accused Kali Charan and Amit @ Mangru to show their close contact with each other. The prosecution is also placing its reliance on the visuals of the CCTV Footage to establish the presence of the accused persons at the spot of incident.
Call Detail Records:
(108) Coming first to the Call Detail Records, the case of the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 107 prosecution is that the accused Kali Charan who used to sell fruits in the area came to know that the deceased K.L. Manchanda a senior citizen was staying alone along with his wife who was totally bed ridden and paralytic down the waist on backside ground floor of premises No.A176, Gujrawala Town, PartI, Delhi. He was also aware that the house of Mr. Manchanda was under construction in the same area where his other family was staying and guessed there was a large amount of money kept in the house.
On this he along with the accused all residents of the same area entered into a conspiracy to commit dacoity and for the said purpose introduces Bimlesh to the family of Mr. Manchanda as a maid and it was Bimlesh who used to pass on this information to others. In this regard one of the evidence on which the prosecution places its reliance is the Call Detail records of the accused Kali Charan and Amit Mangru. (109) At the time of the incident Kali Charan was using the mobile No. 9818468581 and at the time of his arrest on 12.6.2012 he was found in possession of a mobile phone make Nokia of dark blue colour having IMEI No. 359284045648711 with SIM No. 9818468581 (as per the personal search memo of accused Kali Charan which is Ex.PW25/B). The accused Amit @ Mangru is alleged to be using SIM No. 9582372346 at the relevant time and it is also alleged that both the accused Kali Charan and Amit @ Mangru were in close contact with each other on their phone not only on the date of incident but also prior to the same. (110) In this regard the prosecution has examined Sh. Vishal Gaurav St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 108 (PW15) the Nodal Officer from Bharti Airtel Ltd. who has proved that the mobile No. 9818468581 was issued to Kali Charan S/o Sh. Hori Lal, R/o C374, Lal Bagh, Azadpur, Delhi vide Customer Application Form which is Ex.PW15/A (running into two pages). He has also proved the call details record from 20.05.2012 till 09.06.2012 which is Ex.PW15/B (running into nine pages); Cell ID chart which is Ex.PW15/C (running into two pages) and the certificate U/s 65 B of Evidence Act which is Ex.PW15/D. (111) The prosecution has also examined Sh. Deepak (PW21) Nodal Officer from Vodafone Mobile Services Ltd. who has proved that the mobile number 9582372346 was issued in the name of Amit Kumar S/o Sumant Maurya vide Customer Application Form which is Ex.PW21/A. He has also placed on record the call details of the above said mobile phone from 01.06.2012 to 16.06.2012 which are collectively Ex.PW21/C (two pages); Cell ID chart which is Ex.PW21/D (running into 108 pages) and certificate U/s 65B of Indian Evidence Act which is Ex.PW21/E. (112) The perusal of the Customer Application Forms confirms and conclusively establishes the fact that the accused Kali Charan and Amit Kumar were the users of these phones. I have examined the Call Details Record of both the mobile phones and it is evident that both the accused Kali Charan and Amit Mangru were regularly in contact with each other not only on the date of incident but also even prior to the same. St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 109 (113) Coming first to the accused Kali Charan who was using the mobile No. 9818468581. For the sake of convenience the relevant entries of his Call Detail Records connecting him to the accused Amit @ Mangru are being put in a tabulated form as under:
S. Calling No. Called No. Date Time Duration Location No. 1 9582372346 9818468581 2.6.12 9:28:58 87 Mukundpur (Amit) (Kali Charan) 2 9582372346 9818468581 2.6.12 14:19:52 19 Moziwala (Amit) (Kali Charan) Bagh 3 9818468581 9582372346 3.6.12 11:24:57 91 # N.A. (Kali Charan) (Amit) 4 9818468581 9582372346 6.6.12 20:20:53 25 Moziwala (Kali Charan) (Amit) Bagh 5 9818468581 9582372346 7.6.12 12:02:14 33 # N.A. (Kali Charan) (Amit) 6 9818468581 9582372346 8.6.12 13:00:51 32 Gujranwala (Kali Charan) (Amit) Town 7 9582372346 9818468581 8.6.12 14:53:02 18 Derawal (Amit) (Kali Charan) Nagar 8 9582372346 9818468581 9.6.12 9:26:14 63 Derawal (Amit) (Kali Charan) Nagar 9 9582372346 9818468581 9.6.12 13:13:27 19 Derawal (Amit) (Kali Charan) Nagar 10 9582372346 9818468581 9.6.12 13:45:21 70 Derawal (Amit) (Kali Charan) Nagar 11 9582372346 9818468581 9.6.12 14:14:03 49 Derawal (Amit) (Kali Charan) Nagar 12 9818468581 9582372346 9.6.12 14:30:18 13 Derawal (Kali Charan) (Amit) Nagar 13 9582372346 9818468581 9.6.12 14:38:10 36 Derawal St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 110 (Amit) (Kali Charan) Nagar 14 9582372346 9818468581 9.6.12 15:16:06 21 Gujranwala (Amit) (Kali Charan) Town 15 9818468581 100 9.6.12 15:20:42 66 Gujranwala (Kali Charan) Town (114) Coming next to the accused Amit @ Mangru who was using the mobile No. 9582372346, for the sake of convenience the relevant entries of his Call Detail Records are being put in a tabulated form as under:
S. Calling No. Called No. Date Time Duration Location No. 1 9582372346 9818468581 2.6.12 9:28:58 87 Moziwala (Amit) (Kali Charan) Bagh 2 9582372346 9818468581 2.6.12 14:19:52 19 G.T. Road (Amit) (Kali Charan) 3 9818468581 9582372346 3.6.12 11:24:57 91 Moziwala (Kali Charan) (Amit) Bagh 4 9818468581 9582372346 6.6.12 20:20:53 25 Wazirpur (Kali Charan) (Amit) Indl. Area 5 9818468581 9582372346 7.6.12 12:02:14 33 Moziwala (Kali Charan) (Amit) Bagh 6 9818468581 9582372346 8.6.12 13:00:51 32 G.T. Road (Kali Charan) (Amit) 7 9582372346 9818468581 8.6.12 14:53:02 18 G.T. Road (Amit) (Kali Charan) 8 9582372346 9818468581 9.6.12 9:26:14 63 Moziwala (Amit) (Kali Charan) Bagh 9 9582372346 9818468581 9.6.12 13:13:27 19 Wazirpur (Amit) (Kali Charan) Indl. Area 10 9582372346 9818468581 9.6.12 13:45:21 70 Ashok (Amit) (Kali Charan) Vihar 11 9582372346 9818468581 9.6.12 14:14:03 49 G.T. Road St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 111 (Amit) (Kali Charan) 12 9818468581 9582372346 9.6.12 14:30:18 13 G.T. Road (Kali Charan) (Amit) 13 9582372346 9818468581 9.6.12 14:38:10 36 G.T. Road (Amit) (Kali Charan) (115) The aforesaid call details records of the mobile phone No. 9818468581 which was issued in the name of accused Kali Charan and that of mobile No. 9582372346 which was issued in the name of accused Amit @ Mangru, conclusively establishes that both of them were in regular touch with each other throughout the date of incident and even earlier. From a joint reading and analysis of Call Detail Records of both the mobile phones, the following aspects are conclusively established:
➢ That on 2.6.2012 the accused Amit @ Mangru made a call to the accused Kali Charan at 9:28:58 which call lasted for 87 seconds. ➢ That on 2.6.2012 the accused Amit @ Mangru made a call to the accused Kali Charan at 14:19:52 which call lasted for 19 seconds. ➢ That on 3.6.2012 the accused Kali Charan made a call to the accused Amit @ Mangru at 11:25:57 which call lasted for 91 seconds.
➢ That on 6.6.2012 the accused Kali Charan made a call to the accused Amit @ Mangru at 20:20:53 which call lasted for 25 seconds.
➢ That on 7.6.2012 the accused Kali Charan made a call to the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 112 accused Amit @ Mangru at 12:02:14 which call lasted for 33 seconds.
➢ That on 8.6.2012 the accused Amit @ Mangru made a call to the accused Kali Charan at 14:53:02 which call lasted for 32 seconds. ➢ That on 9.6.2012 (i.e. the date of incident) the accused Amit @ Mangru made a call to the accused Kali Charan at 9:26:14 which call lasted for 63 seconds. At that time the accused Kali Charan was in the area covered by the Bharti Airtel tower installed at Derawal Nagar (i.e. near the place of incident) and the accused Amit was in the area covered by the Vodafone tower installed at Moziwala Bagh (i.e. near the place of incident). ➢ That on 9.6.2012 the accused Amit @ Mangru made a call to the accused Kali Charan at 13:13:27 which call lasted for 19 seconds. At that time the accused Kali Charan was in the area covered by the Bharti Airtel tower installed at Derawal Nagar and the accused Amit was in the area covered by the Vodafone tower installed at Wazirpur Industrial Area (i.e. near the place of incident). ➢ That on 9.6.2012 the accused Amit @ Mangru made a call to the accused Kali Charan at 13:45:21 which call lasted for 70 seconds. At that time the accused Kali Charan was in the area covered by the Bharti Airtel tower installed at Derawal Nagar and the accused Amit was in the area covered by the Vodafone tower installed at St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 113 Ashok Vihar (i.e. near the place of incident). ➢ That on 9.6.2012 the accused Amit @ Mangru made a call to the accused Kali Charan at 14:14:03 which call lasted for 49 seconds. At that time the accused Kali Charan was in the area covered by the Bharti Airtel tower installed at Derawal Nagar and the accused Amit was in the area covered by the Vodafone tower installed at G.T. Road (covering the place of incident at Gujranwala Town and confirms his presence in the area).
➢ That on 9.6.2012 the accused Kali Charan made a call to the accused Amit Mangru at 14:30:18 which call lasted for 13 seconds. At that time the accused Kali Charan was in the area covered by the Bharti Airtel tower installed at Derawal Nagar and the accused Amit was in the area covered by the Vodafone tower installed at G.T. Road (covering the place of incident at Gujranwala Town and confirms his presence in the area).
➢ That on 9.6.2012 the accused Amit @ Mangru made a call to the accused Kali Charan at 14:38:10 which call lasted for 36 seconds. At that time the accused Kali Charan was in the area covered by the Bharti Airtel tower installed at Derawal Nagar and the accused Amit was in the area covered by the Vodafone tower installed at G.T. Road (covering the place of incident at Gujranwala Town and confirms his presence in the area).
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 114 ➢ That on 9.6.2012 the accused Amit @ Mangru made a call to the accused Kali Charan at 15:16:06 (when the incident took place) which call lasted for 21 seconds. At that time the accused Kali Charan was in the area covered by the Bharti Airtel tower installed at Gujranwala Town and the accused Amit was in the area covered by the Vodafone tower installed at G.T. Road (covering the place of incident at Gujranwala Town and confirms his presence in the area as the CCTV Footage shows that at that time Kali Charan was outside the building whereas after this call Amit @ Mangru entered inside the building).
(116) A dispute has been raised by the Ld. Defence Counsels on the aspect of user of mobile phone by the accused Kali Charan and Amat @ Mangru and it is submitted that the Call Details have been fabricated only to work out the present case. They have however failed to adduce any evidence to establish any such fabrication and their submission is devoid of merit.
(117) I have considered the rival contentions and I may observe that a joint reading / analysis of the aforesaid call details of both mobile numbers show the close association of the accused Kali Charan and Amit @ Mangru. When the aforesaid material was put to the accused under Section 313 Cr.P.C. they have simply denied the same. In case if the mobile phone was not recovered from the possession of the accused then it St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 115 became all the more necessary for the accused to explain how the number of the other accused persons find reflected in the same more so when Customer Application Form has been confirmed. Further the analysis of the location chart of both the mobile numbers establish their location in and around the area where the incident took place before the time of the incident, at the time of the incident and soon thereafter which aspect has been duly confirmed from the visuals of the CCTV footage of the relevant period.
(118) It is also evident from the Call Detail Records of the accused Kali Charan that after the incident he as a part of his strategy also made a call to PCR at 100 number at 15:20:42 so that no one could raise a finger of suspicion on him.
(119) It stands established from the electronic evidence on record that the accused Kali Charan and Amit @ Mangru (who has been identified by the eye witnesses as one of the assailants) were in constant touch with each other not only on the date of incident but even prior to the same. Further, it also stands established that at the time of the incident the location of both the accused were in the area particularly at the spot of incident, an aspect which finds independent confirmation from the CCTV visuals and also from the version given by the eye witnesses. In view of the above I hereby hold that the electronic evidence independently connects the accused Kali Charan and Amit @ Mangru with the offence and lends credence to the version of the eye witnesses and confirms the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 116 CCTV visuals and the defence has not been able to successfully demolish the case so put forth by the prosecution as aforesaid.
CCTV Visuals retrieved from the place of the incident confirm the identity of the accused and the incident:
(120) The prosecution in order to establish the presence of the accused at the spot and to establish their complicity in the crime has also placed its heavy reliance on the CCTV installed at the spot. The case of the prosecution is that the place of incident i.e. House No. A176, Ground Floor, Gujrawala Town, PartI, Delhi had the installation of CCTV Cameras. D.P. Sharma (PW17) who is the landlord of the deceased, has proved the installation of the CCTV cameras in the premises. He is one of the eye witnesses who had reached the spot on hearing the voices coming from the portion of the deceased and even seen the assailants. His presence is reflected in the CCTV visuals. He has proved that soon after the incident police had checked the recording of CCTV Camera installed in his house where they found the movements of the accused persons recorded on which police asked him to hand over the recordings of the visuals of the CCTV Camera of that day in a CD. He has stated that on this he asked the agency who had installed the CCTV Camera at his house i.e. A to Z Infolink, situated at Subhash Place, Delhi to prepare the CD of the footage after which they (company officials) took the hard drive of the camera and copied the visuals in a pen drive. The witness D.P. Sharma (PW17) has explained that when he noticed that it was in a pen drive he St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 117 directed his PSO (Personal Security Officer) to get the CD of the same prepared which he did and thereafter he handed over the CD to the police which CD is Ex.PW14/A and the stills from the said CD are Ex.PW14/B1 to Ex.PW14/B8. He has also proved that the said CD was seized by the police vide memo Ex.PW17/A. The Investigating Officer Inspector Jagmender Singh (PW30) has also has proved that it was the owner/ landlord of the house i.e. Sh. D.P. Sharma who produced two CDs of the CCTV footage of the spot at the time of incident and he sealed the one CD in a cloth pullanda with the seal of KS and kept another CD with his case file and seized both CDs vide seizure memo Ex.PW17/A. (121) In this regard the only defence raised by the Ld. Defence Counsels is that the CCTV footage have been fabricated and doctored. At the very Outset I may note that this witness Sh. D.P. Sharma is a senior officer i.e. Presiding Officer occupying a responsible position i.e. Presiding Officer in a Judicial Tribunal and is under a security cover and given a Personal Security Officer. He is the landlord of the premises where the deceased was a tenant on the back portion of the ground floor and has proved that he had got the CCTV cameras installed in the premises from a private agency who were the one's who obtained the visuals of the incident from the memory of the camera and handed over the same to Mr. D.P. Sharma in a pendrive which was then got copied in a CD and stills of the same were also got prepared. (122) Avinash Shukla (PW14) who is having a photo studio at G2, St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 118 Model TownIII, Delhi has proved having prepared the CDs from the Pen Drive and the copy of CD which he had prepared is Ex.PW14/A and the eight photographs which are Ex.PW14/B1 to Ex.PW14/B8 which are stills from the CD. The date and time of the footage finding clearly reflected in the footage, it is difficult to believe that the entire incident could be stage managed. The CCTV footage having been shown to the Investigating Officer by Sh. D.P. Sharma within few hours of the incident and then handed over to the police after converting the same into CD which is Ex.PW14/A. It is this which demolishes all doubts of the same having been fabricated.
(123) The CD has been watched by me carefully and I find the same to be absolutely clear, authentic and there are hardly any chances of the same being doctored. There is no reason that the CD could have been doctored to implicate the accused persons there being no history of any enmity between the complainant and the accused. This case proves that how the modern technology (i.e. CCTV cameras) comes to the aid of citizens in terms of their safety and security and also assists the Investigating Agency by providing electronic records which are authentic and credible. It is the accused persons who have alleged that the CD has been doctored and it was open for the accused to have proved the same, which is not done.
(124) During the course of proceedings this Court has observed while playing the CD in the Court that recording of the CD Ex.PW14/A is St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 119 correct as per the CCTV Footage. For the sake of convenience the happenings observed in the visuals of the CCTV along with the time are enumerated as under:
➢ 15:09:47: The accused Kali Charan passes in front of the premises on a cycle.
➢ 15:11:06: Two persons (i.e. accused Chander Bhan and PO accused Anil) entered and hide themselves in the passage. ➢ 15:12:00: The accused Kali Charan with white head gear/ Pagri enters the house.
➢ 15:13:33: The accused Kali Charan gets the door of the house opened while the accused Chander Bhan and PO accused Anil who were waiting in the passage enter the house from the door which is got opened by Kali Charan.
➢ 15:13:45: The accused Kali Charan comes out and runs out from the building.
➢ 15:15:26: Person with blue shirt i.e. accused Sarvesh Kumar enters the building and the portion of the victims. ➢ 15:17:16: Another person with White Tshirt (i.e. accused Amit @ Mangru) enters the building and the portion of the victims. (Here, I may observe that the Call Detail Records of the accused Amit @ Mangru establishes that he had made a call to the accused Kali Charan at 15:16:06 which call lasted for 21 seconds only after which the accused Amit @ Mangu had entered the building and the timing St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 120 of the CCTV visuals coincide with the said call). ➢ 15:18:36: The witness Sh. D.P. Sharma is seen in a Kurta Payjama. He is seen coming out of the building and then again entering the same as if talking to someone standing inside. ➢ 15:19:25 to 15:19:26: The accused Sarvesh in blue shirt comes out of the building and while running away slightly trips over and his chappal/ slipper is left behind. He is followed by accused Amit @ Mangru in a double coloured sweat shirt which a towel on his shoulders which he drops while running away. The PO accused Anil and the accused Chander Bhan follow Amit @ Mangru outside with witness D.P. Sharma also following them as if trying to stop them when Chander Bhan is seen with a knife in his hand which he is waiving at Sh. D.P. Sharma and in the air while running away. ➢ 15:19:30: All the assailants are shown to have crossed the main gate and escaped on the right side of the building on the road outside.
(125) It is therefore established from the aforesaid that the presence of witness D.P. Sharma in Kurta Payjama is seen at 15:18:33 and also at 15:19:23 onwards till 15:19:30. It is also established from the footage that a total number of five persons are involved in the incident. The person person with a head gear i.e. White Pagri who was the first to enter the house and again seen coming inside when the door of the house is got opened by him to enable the other two persons to enter the portion of the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 121 victims and is the first to be seen as running away, is the accused Kali Charan.
(126) The person seen in the blue shirt in the visuals is the one who was keeping a watch outside the door of the portion of the victims to whom D.P. Sharma had questioned about Mr. Manchanda is the accused Sarvesh Kumar and it is he who in the visuals is seen to have tripped while running away and whose chappals/ slippers Ex.P6 were left behind and were recovered from the spot of incident by the police. (127) The person in double coloured T Shirt/ Sweat Shirt who is the fourth person to enter the house and the portion of the victims is the accused Amit @ Mangru and it is he who while running away dropped his towel Ex.P7 which towel was recovered from the spot of incident by the police.
(128) The persons who first entered the building and waited for sometime in the side passage and whose entry into the building was facilitated by Kali Charan when he got the door of the portion of the house of the victims opened on the pretext of handing over the fruits as seen in the CCTV visuals at 15:13:33 are the accused Chander Bhan and the PO accused Anil. In fact the person who last came out of the house as seen in the visuals waving a knife in his hand is the accused Chander Bhan whereas the person with check shirt carrying a bag in his hand is the accused Anil who is a Proclaimed Offender (as informed to the Court by St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 122 the Investigating Officer).
(129) This being the background, I hereby hold that the electronic evidence on record in the form of Call Detail Records of the accused Kali Charan and Amit @ Mangru and also in the form of CCTV footage conclusively connects the accused Kali Charan, Sarvesh Kumar, Chander Bhan and Amit @ Mangru with the alleged offence.
Ocular Evidence:
(130) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspects connected with the offence, there is no reason to reject their testimonies. (131) The entire case of the prosecution is based upon the testimony of D.P. Sharma (PW17) who is the landlord of the deceased who on hearing the hue and cries came to the spot and saw the accused coming out of the house in quick succession one of whom had shown him the knife.
The prosecution has also placed its reliance on the testimony of Smt. Kamla Devi (PW29) the wife of the deceased who is an eye witness to the entire incident of dacoity resulting into the death of her husband Sh. K.L. Manchanda.
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 123 (132) Since the prosecution is placing its heavy reliance on the testimonies of D.P. Sharma (PW17) and Smt. Kamla Devi (PW29) hence it is necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 124 their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978). (133) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of cross examination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(134) Applying the settled principles of law to the facts of the present case, coming first to the testimony of D.P. Sharma (PW17) the relevant portion of the same is as under:
"....... Sh. K.L. Manchanda was residing at the ground floor of our house as tenant along with his wife Smt. Kamla Devi. I have been residing at the house on the first floor. On 9.6.2012 at about 3:15 PM I received a St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 125 telephone call from the clinic of my son of the Receptionist that noise was coming out from the house of K.L. Manchanda. On my further asking she told me that K.L. Manchanda was scolding someone. I ignored the same as K L Manchanda was habitual in speaking in loud voice. After some time I came downstairs to pick up my purse. I found the entrance gate of the house of K L Manchanda opened. When I looked inside I found an unknown person dressed in sky blue coloured shirt standing inside the house. I asked him what was the matter, where is Mr. Manchanda call him out "kya baat hai, Manchanda Sahab kahan hai, unhe bahar bulao."
On this, the said person went inside while I kept standing on the gate. After some time he came outside and told me that Mr. Manchanda was not well (unki tabiyat kharab hai). On this I felt it was necessary to inquire about his health. As soon as had taken about one or two steps into the house, the said man shouted "aa gaya". I immediately became apprehensive and suspicious of him and looked at him and tried to stop him. There was a hathapai and I raised an alarm of chor chor. While I was still grappling with him, we came on the road side and the said person managed to get himself freed from my grip and ran away leaving behind his chappals. Soon I noticed three more persons coming out from the house of Mr. Manchanda one after the other and ran behind the first person in quick succession. One of them left behind his towel. The last person slashed a knife on my neck but I saved myself by ducking. After hearing the alarm which I had raised some public persons including my family members gathered. We immediately informed the police. Some of the public persons entered in the house of Mr. Manchanda St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 126 and found him lying on the floor. There was then a discussion as to whether to shift him to the hospital or to wait for the police but we decided to shift him to the hospital first. In the meanwhile the other family members of Mr. Manchanda who were residing a little away from the said house also reached the spot. One lady from their family, my son and one another boy from my neighbourhood i.e. The son of my neighbour picked up Mr. Manchanda and shifted him to the car and by that time the police also reached at the spot. Mr. Manchanda was shifted to Pentamed Hospital. Later I came to know that he was no more.
There is a CCTV Camera installed outside of my house. There are CCTV Cameras installed in many other houses in the neighbourhood in the same street. Police had checked the recording of CCTV Camera installed in my house on the same day where they found the movements of the accused persons recorded. Police asked me to hand over the recordings of the visuals of the CCTV Camera of that day in a CD. On receiving this request from the police I asked the agency who had installed the CCTV Camera at my house i.e. A to Z Infolink, situated at Subhash Place, Delhi to prepare the CD of the footage. They took the hard drive of the camera and copied the visuals in the pen drive. When I noticed that it was in a pen drive I directed my PSO to get the CD of the same prepared which he did and thereafter I handed over the CD to the police. The said CD is already Ex.PW14/A and the stills from the said CD are Ex.PW14/B1 to Ex.PW14/B8. The said CD was seized by the police vide memo Ex.PW17/A bearing my signatures at point A. I had a passing glimpse of the said assailants and I may not be in a position to identify at this St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 127 stage but the CCTV visuals confirms their identity.
At this stage after seeing the visuals and the stills has identified the person seen in sky blue colour shirt in Ex.PW14/B5 as the person who was standing a little away from the entrance in the house of Mr. Manchanda and with whom he had spoken. Court Observation: The said accused is Sarvesh.
The witness has further identified the person seen in Ex.PW14/B6 as the person who had left the towel at the spot while he was running away. Court Observation:
he is accused Amit .
The witness has further identified the person seen in Ex.PW14/B7 and Ex.PW14/B8 as encircled as A as the person who had given him the slash blow with the knife while he was running away. Court Observation: he is accused Chander Bhan.
The witness has further identified the person seen in Ex.PW14/B7 and Ex.PW14/B8 as the person in a check shirt as encircled B as one of the assailants who had come of the house and was carrying a bag. Court Observation: the said accused is not present in the court. (I am informed that he is Proclaimed Offender) My statement was recorded on the same day.
On Court Question: The recording of the CD Ex.PW14/A is correct as per the CCTV Footage.
Court Observation: The CD is played in the court and the presence of witness in Kurta Payjama is seen at 15:18:33 and also at 15:19:22 onwards till 15:19:30. The court has observed that in fact there are five persons involved in the incident as reflected from the CCTV footage of which one person was wearing a head gear i.e. White Pagri and was the first to be seen as running away. He is accused Kali Charan. The accused seen in sky blue shirt is Sarvesh. St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 128 The accused Amit is in double coloured T Shirt/ Sweat Shirt and Chander Bhan is the one who is the last to come out with a knife in his hand. The person with check shirt carrying a bag in his hand is not present in the court today and he is Anil who is PO......"
(135) Witness D.P. Sharma has been exhaustively crossexamined by the Ld. Defence Counsels and he stood by his version. I may mention that Sh. D.P. Sharma is the Presiding Officer of the Consumer Forum and was under a security cover by reasons of his official duties and having a Personal Security Officer and had got the CCTV camera installed at his house including the ground floor where the deceased was residing. He is residing on the first floor of the premises in question whereas the deceased K.L. Manchanda along with his wife Smt. Kamla was residing on the ground floor portion. The following aspects are borne out from his testimony:
➢ That his son is running a clinic and on 9.6.2012 at about 3:15 PM he received a telephone call from the Receptionist of the clinic that noise was coming out from the house of K.L. Manchanda as if K.L. Manchanda was scolding someone.
➢ That D.P. Sharma being aware that both the tenants were senior citizens, initially ignored as Sh. K.L. Manchanda was habitual in speaking in loud voices.
➢ That Sh. D.P. Sharma went to the ground floor to pickup his purse but found the entrance gate of K.L. Manchanda open and found it St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 129 unusual since it was normally closed and got suspicious. ➢ That on this he looked inside the room and found an unknown person dressed in sky blue coloured shirt (accused Sarvesh) standing inside the house, on which he (D.P. Sharma) asked him what was the matter, where was Mr. Manchanda call him out "kya baat hai, Manchanda Sahab kahan hai, unhe bahar bulao." ➢ That the said person (accused Sarvesh) went inside while D.P. Sharma kept standing on the gate and after some time the said person (accused Sarvesh) came outside and told him that Mr. Manchanda was not well (unki tabiyat kharab hai). ➢ That as soon as D.P. Sharma had taken about one or two steps into the house, the said man (accused Sarvesh) shouted "aa gaya" on which D.P. Sharma tried to stop the said person (accused Sarvesh) and there was hathapai and he raised an alarm of chorchor. ➢ That while D.P. Sharma was still grappling with the said person, they came on the road side and the said person managed (accused Sarvesh) to get himself freed from his grip and ran away leaving behind his chappals.
➢ That soon D.P. Sharma noticed three more persons coming out from the house of Mr. Manchanda one after the other and ran behind the first person in quick succession.
➢ That the person following the first person with blue shirt (i.e. accused Sarvesh) was wearing a double coloured sweat shirt (i.e. St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 130 accused Amit @ Mangru who was in close contact on mobile phone with accused Kali Charan i.e. person with white head gear/ pagri who was the first to come to the premises and leave after securing the entry for the others) and it is Amit @ Mangru who had left behind his towel (accused Amit @ Mangru) and the last person (accused Chander Bhan) pulled out a knife and directed a slash blow on his neck but he (witness D.P. Sharma) ducked and saved himself.
➢ That on hearing the alarm some public persons including his family members gathered and they immediately informed the police and some of the public persons entered in the house of Mr. Manchanda who was found him lying on the floor.
➢ That they decided to shift Mr. Manchanda to the hospital first and in the meanwhile the other family members of Mr. Manchanda who were residing a little away from the said house also reached the spot. ➢ That daughter in law of the deceased (i.e. Smt. Neelam Manchanda PW26), son of D.P. Sharma (Dr. Vivek Sharma - PW13) and another boy from neighbourhood shifted K.L. Manchanda to Pentamed Hospital and D.P. Sharma later came to know that he was no more.
➢ That there was a CCTV Camera installed outside the house of D.P. Sharma as well as in many other houses in the neighbourhood in the same street and police checked the recording of the visuals of St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 131 CCTV Camera installed in his house on the same day where they found the movements of the accused persons recorded. ➢ That police asked D.P. Sharma to hand over the recordings of the visuals of the CCTV Camera of that day in a CD. ➢ That on receiving this request from the police D.P. Sharma asked the agency who had installed the CCTV Camera at his house i.e. A to Z Infolink, situated at Subhash Place, Delhi to prepare the CD of the footage pursuant to which the officials from the agency took the hard drive of the camera and copied the visuals in a pen drive. ➢ That when D.P. Sharma noticed that it was in a pen drive he directed his PSO to get the CD of the same prepared which he did and thereafter on the same day he handed over the CD to the police which CD is Ex.PW14/A and the stills from the said CD are Ex.PW14/B1 to Ex.PW14/B8 and the said CD was seized by the police vide memo Ex.PW17/A. (136) In the Court after the said CD was played and after seeing the visuals and the stills the witness D.P. Sharma has identified the person seen in sky blue colour shirt in Ex.PW14/B5 as the person who was standing a little away from the entrance in the house of Mr. Manchanda and with whom he had spoken by saying "kya baat hai, Manchanda Sahab kahan hai, unhe bahar bulao", which person the court observed was the accused Sarvesh. The witness further identified the person seen in St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 132 Ex.PW14/B6 as the person who had left the towel at the spot while he was running away, whom the Court observed was the accused Amit; the person seen in Ex.PW14/B7 and Ex.PW14/B8 as encircled as A as the person who had given him the slash blow with the knife while he was running away, whom the Court observed as accused Chander Bhan; the person seen in Ex.PW14/B7 and Ex.PW14/B8 in a check shirt as encircled B as one of the assailants who had come of the house and was carrying a bag, whom this court observed is the Proclaimed Offender Anil. This court has also observed that the person in the kurtapayjama wearing a head gear i.e. White head gear/ Pagri and was the first who was running away is Kali Charan.
(137) Ld. Defence Counsels have vehemently argued that the testimony of D.P. Sharma cannot be relied upon since he was not called for Test Identification Parade of the accused persons. I have considered the arguments made and I may observe that there is no occasion for conducting the Test Identification Parade of the accused persons since the visuals of the CCTV footage are very clear and the accused Kali Charan, Sarvesh Kumar, Amit @ Mangru, Chander Bhan and also accused Anil (Proclaimed Offender) are clearly visible in the same. The Ld. Defence Counsels have argued that the visuals of the CD have been doctored and cannot be relied upon. I find no merit in the submissions made by the Ld. Defence Counsels in view of the fact that the person in whose house the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 133 CCTV cameras have been installed and who is also the eye witness, has himself not only confirmed the incident but also specifically explained the visuals which finds due corroboration from the visuals. The oral testimony of D.P. Sharma and Kamla Devi is the Primary Evidence whereas the CCTV footage is the Secondary Evidence which is corroborative and confirmatory in nature and hence admissible in evidence.
(138) Coming next to the testimony of Kamla Devi (PW27) the wife of the deceased who is an old lady of 70 years and totally paralytic waistdown. The relevant portion of her testimony is as under:
"...... On 9.6.2012 at around 3:00 PM I was at my house with my husband. I am totally paralytic waistdown and cannot move at all without help being bed ridden. It is for this reason that we i.e. me and my husband had kept a part time maid who used to come in the morning and leave in the evening. Kamlesh used to work at our house previously. Bimlesh had joined the services at our house as maid for the last three to four months from the date of incident and used to help me and was aware of all the details of our house.
(Court observation : The witness is confused on the names and sometimes gives the name as Kamlesh and sometimes Bimlesh but has identified the accused Bimlesh correctly in the court as the one who working in her house as a part time maid).
Kali Charan is a fruit seller and he used to regularly supply fruits in the locality and also at our house. On the date of incident at about 3 to 3:15 PM St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 134 Kali Charan called out to us from outside (Kali Charan ke bahar se aawaj aai) asking us to purchase Kharbujas. My husband Kishan Lal Manchanda had gone outside for making payment of the Kharbujas to Kali Charan. Thereafter, I heard loud noise and soon I saw outside that there were two persons out of whom one was wearing check shirt and the other one was wearing spectacle (Chasma). They all was pushing my husband inside the room and all the Kharboojas were scattered. These two men pushed my husband down and were on him and hitting him and I saw one of them stabbing on his face. (vo dono unke upper chad gaye aur eik admi unke muh per chaku mar raha tha). When I raised alarm the other person who was in the check shirt came inside the room to me and pressed my mouth (dusre ne mera muh daba diya). They then asked me to come outside near my husband on which I told them that I am immobile and cannot move (maine unse kaha ki mai chal fir nahi sakti). Thereafter, I wanted to make a telephone call to my sons but as soon as I caught hold my mobile phone to make a call, these boys snatched the mobile phone from my hand. The person who had come inside knew where the keys of the almirah were kept and he took the keys and opened the almirah and took away my two gold karas, chain and cash amount which was kept there. I could hear alarm and voices of "chor chor" coming from the outside after which the two persons who were standing outside and two persons who had come inside the house i.e. all the four of them ran away. The neighbours gathered there and made a call to the police. My husband was immediately rushed to the hospital by St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 135 our neighbour who is a judge and is residing on the first floor. In the meanwhile since my daughter in law had also come, so she also went to the hospital along with my husband when he was being taken to the hospital. After some time when the police came and my statement was recorded which statement is already Ex.PW7/A bearing my signatures at point A. The photographs of the CCTV recordings which are already Ex.PW14/B1 to Ex.PW14/B8 are shown to the witness who says that these photographs are of her residence where the incident took place and from the said photographs she has identified the boy with check shirt and one with spectacles in Ex.PW14/B1 as the two boys who were assaulting her husband. She states that the boy in the check shirt was the one who had pressed her mouth and the person who was having one eye (Kana) was the one who was inflicting blows and injuries on her husband after they came inside.
At this stage, the witness has also correctly identified the accused Bimlesh (by referring to her as Kamlesh), saying that she sometimes called herself as Kamlesh and sometimes Bimlesh and she was the one who was working as the maid in their house when the incident took place.
The witness says that she can identify the accused who was wearing check shirt and other wearing spectacles but not others who were outside the room. She says that the person who was wearing check shirt was the one who had pressed her mouth.
Witness has identified the accused Chander Bhan as the person who had climbed over her husband and gave him repeated blows inflicting St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 136 stabbing on his face (Court observation : Chander Bhan who is one eyed / Kana). Witness says that the person who was wearing the check shirt was a dark complexion and was a healthy person and since it is one year since the incident and therefore she is not able to exactly identify him now. The witness says, she thinks that it could be the accused Sarvesh Kumar who appears to be dark and healthy.
Court has observed that the accused Mangru who is having a beard and mustache who is also healthy and dark complexion (Mangru admits he has grown a beard and mustache now in Jail). Witness says the said person was not having beard at that time. (Court observation: the person who is wearing check shirt in the photographs is the accused Anil who is PO as informed by the IO).
At this stage, one sealed pullanda sealed with the seal of court has been produced. The pullanda has been opened and two gold Karas are taken out and shown to the witness who has correctly identified the same as robed by the accused persons. The Karas are already Ex.P3 and Ex.P4......"
(139) Smt. Kamla Devi has been exhaustively crossexamined wherein she has confirmed that her daughter in law Neelam used to visit her regularly in a day or two and has also confirmed that the sister of Bimlesh had worked at their house for few days. She has stated that on the date of incident when the accused Bimlesh came on the date of incident she was talking to someone or her mobile phone informing them what was happening at her house. Smt. Kamla Devi explained that nobody had St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 137 recommended Kamlesh the sister of Bimlesh who was earlier employed with them as domestic maid and one day she (Kamlesh) was just passing through the area and had come to their house asking for work and thereafter she had been kept as domestic help by them because she required a full time attendant being totally immobile. She has repeatedly affirmed that it was the accused Bimlesh who was working with them at the time of incident. She has also explained that she personally had not seen the accused Kali Charan previously because being totally immobile she remained inside the home but she knew that Kali Charan used to sell fruits in the area for a large number of years. She has further explained that she could easily identify Chander Bhan as one of his eye was totally damaged. This Court has also specifically observed that the accused Chander Bhan is one eyed person and is easily and distinctively identifiable.
(140) The following aspects emerge from the testimony of Kamla Devi (PW29):
➢ That Smt. Kamla Devi is totally paralytic waistdown and cannot move at all without help being bed ridden due to which reason they kept a maid who used to come in the morning and leave in the evening.
➢ That Kamlesh sister of accused Bimlesh used to work at their house previously and Bimlesh had joined the services at their house as St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 138 maid for a few months prior to the incident and used to attend to her.
➢ That Bimlesh used to come at 7:00 AM in the morning and leave in the evening with a break of about half an hour i.e. between 1:00 to 1:30 PM but used to return by 2:00 PM and even had her lunch with the employers.
➢ That Bimlesh was aware of most all the details and particulars of the family of the employers.
➢ That the accused Kali Charan is a fruit seller and used to regularly supply fruits in the locality and also at the house of the victims. ➢ That on the date of the incident Bimlesh went away in the lunch break and informed the victim Kamla Devi that she would return by 4:00 PM on the pretext that she was feeling very hot (whereas normally she was required to return by 2:00 PM). ➢ That on the date of incident on 9.6.2012 at about 3 to 3:15 PM Kali Charan called out to them from outside (Kali Charan ke bahar se aawaj aai) asking them to purchase Kharbujas on which her husband Kishan Lal Manchanda went outside for making payment of the Kharbujas to Kali Charan.
➢ That she heard loud noise and soon she saw outside that there were two persons out of whom one was wearing check shirt and other one was wearing spectacle/ Chasma (i.e. accused Chander Bhan) who all were pushing her husband inside the room and all the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 139 Kharboojas were scattered.
➢ That the said two men pushed her husband down and were on him and hitting him and she saw one of them stabbing on his face. (vo dono unke upper chad gaye aur eik admi unke muh per chaku mar raha tha).
➢ That when she raised alarm the other person who was in the check shirt (PO accused Anil) came inside the room to her and pressed her mouth (dusre ne mera muh daba diya) and asked her to come outside near her husband on which she told them that she is immobile and cannot move (maine unse kaha ki mai chal fir nahi sakti).
➢ That thereafter she wanted to make a telephone call to her sons but as soon as she caught hold of her mobile phone to make a call, these boys snatched the mobile phone from her hand.
➢ That the person who had come inside knew where the keys of the almirah were kept and he took the keys and opened the almirah and took away her two gold karas, chain and cash amount which was kept there.
➢ That she could hear the alarm and voices of "chorchor" coming from outside after which the two persons who were standing outside and two persons who had come inside the house i.e. all the four of them ran away.
➢ That the neighbours gathered there and made a call to the police and St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 140 her husband was immediately rushed to the hospital by their neighbour who is a 'Judge' (witness D.P. Sharma) and is residing on the first floor.
➢ That in the meanwhile since her daughter in law had also come, so she also went to the hospital along with her husband when he was being taken to the hospital.
➢ That after some time when the police came her statement was recorded which is Ex.PW7/A. (141) She has identified the accused Bimlesh (by referring to her as Kamlesh) who was working as maid in their house when the incident took place. After seeing the photographs of the CCTV visuals, Smt. Kamla has identified two boys one with check shirt (Proclaim Offender Anil) and another who was wearing the spectacles (accused Chander Bhan). She has also identified the accused Chander Bhan as the person who had climbed over her husband and had given him repeated blows on his face by putting the knife on him. She has also identified her gold karas which are Ex.P3 and Ex.P4 as the robbed articles.
(142) I may observe that Dr. Vivek Sharma (PW13) has corroborated the testimony of his father D.P. Sharma (PW17) to the extent that on 9.6.2012 at about 3:15 PM, he was taking rest at his house when he heard some voice on which he came out of the house and came to know that some robbers entered their building. According to him, he found K.L. Manchanda lying on the ground and it was he who with the help of public St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 141 persons and the daughter in law of K.L. Manchanda shifted him to the hospital in his car.
(143) A combined reading of D.P. Sharma (PW17) and Smt. Kamla Devi (PW29) would show that they have corroborated each other in material particulars and their testimonies find independent confirmation from the other circumstantial evidence brought before this Court by the prosecution. Their testimonies also find due corroboration from the visuals of the CCTV footage and the electronic record placed before this Court lends independent support to the version so formulated by the prosecution. The witness Neelam Manchanda and Dr. Vivek Sharma had reached the spot later but there is no reason for this court to disbelieve the versions given by them. None of the above witnesses have any history of animosity with the accused persons and there is no reason why they would falsely implicate them. Hence, in view of the above I have no hesitation in holding that all these witnesses including Sh. D.P. Sharma and Smt. Kamla Devi are reliable witnesses and there is no reason to disbelieve their testimonies and the versions put forth by them.
(144) In so far as the identity of accused Kali Charan, Sarvesh Kumar, Chander Bhan and Amit @ Mangru and Proclaimed Offender Anil is concerned there is no dispute. All these four persons along with Proclaimed Offender Anil are visible in the CCTV visuals and have also been identified by the eye witnesses and their testimonies fund due corroboration from the CCTV visuals and there is no reason to doubt the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 142 same. However, in so far as the accused Ram Kumar is concerned he is not seen in any of the visuals nor he has been identified as the person either present at the spot or seen in the vicinity nor there is any other evidence to connect him.
(145) In so far as the accused Bimlesh is concerned, she is a resident of the same area in which all the accused are residing and she was employed as domestic help in the family of victims who are senior citizens. Though she has not directly participated in the crime but the allegations against her are of keeping a recce and a watch and of passing of information to the accused (her role is being separately dealt with) in so far as the accused Kali Charan, Sarvesh Kumar, Chander Bhan and Amit @ Mangru are concerned, the allegations against them are of having committed a dacoity in the house of Sh. K.L. Manchanda. While doing so they all in furtherance of their common intention had also done an act with the knowledge that they by their act are likely to cause the death of Kishan Lal Manchanda a senior citizen who was already suffering from multiple ailments. In fact it is the accused Chander Bhan who was armed with a deadly knife which he had moved around the face of Sh. Kishan Lal Manchanda while sitting on his chest and thereafter while escaping from the spot he also showed the same to Sh. D.P. Sharma by directing a slash blow towards him which act is clearly visible even in the visuals of the CCTV footage thereby conclusively establishing the version given by the prosecution.
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 143 Criminal Conspiracy/ Common Intention/ Culpable Homicide not amounting to Murder:
(146) The case of the prosecution is that the entire incident of armed dacoity had been planned out and executed in pursuance to a criminal conspiracy between the accused persons. The victims are senior citizens of whom Smt. Kamla Devi was totally paralytic waistdown and K.L. Manchanda a senior citizen of 75 years of age was suffering from multiple ailments. Both of them were totally dependent upon the attendant and were residing alone in the premises in question as their sons and daughter in law were residing in their own house i.e. A130, Gujranwala Town, Delhi which was under construction at that time. (147) However, before coming to the evidence on merits, I may observe that since conspiracy is the primary charge against the accused, we first advert to the law of conspiracy - its definition, essential features and proof.
(148) Section 120A IPC defines "criminal conspiracy" as under: "Definition of criminal conspiracy When two or more person agree to do, or cause to be done, (1) An illegal act, or (2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 144 thereof Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object." (149) It is clear from the above noted definition of "criminal conspiracy" that the three essential elements of offence of conspiracy are
(a) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished; (b) a plan or scheme embodying means to accomplish that object; (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means. Thus, the gist of offence of criminal conspiracy is an agreement to break the law. (150) Sections 120A and 120B were brought on the statute book by way of Criminal Law Amendment Act, 1913. Earlier to the introduction of Sections 120A and 120B, conspiracy per se was not an offence under the Indian Penal Code except in respect of the offence mentioned in Section 121A. In the Objects and Reasons to the Amendment Bill, it was explicitly stated that the new provisions (120A & B) were "designed to assimilate the provisions of the Indian Penal Code to those of the English Law...." Thus, Sections 120A & 120B made conspiracy a substantive offence and rendered the mere agreement to commit an offence punishable.
(151) Proof of a criminal conspiracy by direct evidence is not easy St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 145 to get and probably for this reason Section 10 of the Indian Evidence Act was enacted. It reads as under: "10. Things said or done by conspirator in reference to common design:Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
(152) Thus, the substantive section of the IPC i.e. Section 120A adumbrated thereon Section 10 of the Indian Evidence Act give us the legislative provisions applicable to conspiracy and its proof. (153) After survey of the case law on the point, following legal principles pertaining to the law of conspiracy can be conveniently culled out: (A) When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 146 further help prosecution to prove the charge of conspiracy. (State v Nalini (1999) 5 SCC 253) (B) The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are coparticipators in the main object of the conspiracy. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. But then there has to be present mutual interest. Persons may be St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 147 members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role. (Yash Pal Mittal v State of Punjab AIR 1977 SC 2433 and State v Nalini (1999) 5 SCC 253) (C) It is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the graham of the crime of conspiracy.
(D) The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. Since a conspiracy is generally hatched in secrecy, it would quite often happen that there is no evidence of any express agreement between the conspirators to do cause to be done the illegal act. For an offence under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication. The offence can be only proved largely from the inference drawn from acts or illegal omission committed by the conspirators in St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 148 pursuance of a common design. The prosecution will also more often rely upon circumstantial evidence. It is not necessary to prove actual meeting of conspirators. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design is sufficient. Surrounding circumstances and antecedent and subsequent conduct of accused persons constitute relevant material to prove charge of conspiracy. (Shivnarayan Laxminarayan Joshi v State of Maharashtra AIR 1980 SC 439, Mohammad Usman Mohammad Hussain Maniyar v State of Maharashtra AIR 1981 SC 1062 and Kehar Singh v State AIR 1988 SC 1883) (E) A conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so. The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalized or done, attempted or even frustrated and vice versa.
(F) Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 149 against the coconspirators. In short, the section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a coconspirator and not in his favour. (See the decision of Supreme Court reported as Sardar Sardul Singh v State of Maharashtra AIR 1957 SC 747).
(154) As discussed in the foregoing paras, more often than not, the prosecution would adduce circumstantial evidence to prove the charge of conspiracy. The question which arises is that what should be the nature of circumstantial evidence in a case of conspiracy to bring home the guilt of the accused persons.
(155) Applying the settled principles of law to the facts of the present case, it is evident that the prosecution is mainly relying upon the oral testimony of Smt. Neelam Mahajan (PW26) coupled with the electronic details i.e. Call Detail Records of accused Kali Charan and Amit @ Mangru which confirms the close contact between them. At the very outset I may observe that the accused Bimlesh is a resident of Jhuggi No. St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 150 B297, Lal Bagh, Azadpur, Delhi; accused Kali Charan is a resident of Jhuggi No. C374, Lal Bagh, Azadpur, Delhi; the accused Amit @ Mangru is a resident of Jhuggi No. C178, Lal Bagh, Azadpur, Delhi; accused Sarvesh Kumar is a resident of Jhuggi No. F121, Jailer Wala Bagh, PhaseII, Ashok Vihar, Delhi whereas the accused Chander Bhan is a resident of Bulandsher, Uttar Pradesh. The accused Kali Charan had been selling the fruits on pheri in the area for the last three four years and was well aware that Kishan Lal Manchanda was residing alone in the premises in question along with his paralytic wife. According to the prosecution version the accused were under an impression that the victims had a large amount of money and jewellery kept in their house since their own house was under construction at that time situated at a little distance from the premises where they were staying (i.e. A120, Gujranwala Town). Finding the victims to be soft and vulnerable targets who would not be able to offer any resistance in case of any incident, the accused who are residing in the same area hatched a criminal conspiracy to commit dacoity in their house during day time when none would be present in the house. The accused Bimlesh had been introduced as maid servant to work in the house of the victim family as Smt. Kamla Devi was totally immobile and there previous maid had left the work. Winning the confidence of the victim as the sister of Bimlesh namely Kamlesh had previously worked with the victim's family, the accused Kali Charan did not find it difficult to introduce Bimlesh as he was also known to the victims being a regular St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 151 fruit seller in the area and for Bimlesh to win their confidence. Though on regular basis the accused Bimlesh used to come in the morning and and stayed there till evening taking a break from 1:00 PM till 2:00 PM for one hour but on the date of the incident she left the house of the victims telling them that she would return only after 4:00 PM leaving sufficient space and opportunity for the accused to actively execute their plan. The incident was carefully planned and executed in the midafternoon of summer when very less number of persons are expected to be out on the roads and the maid servant would not available at home and there were full chances of the couple being alone at home, the accused planned an armed dacoity. It was the accused Kali Charan who first went in the house of the victims for sale of fruits as evident from the visuals of the CCTV Footage. The manner in which the accused Kali Charan, Sarvesh Kumar, Amit @ Mangru, Chander Bhan and Anil (PO) acted together and committed a dacoity in broad day light and also the manner in which the entire plan was executed all of which has been caught in the CCTV camera, confirms the existence of a common design and prior meeting of mind for execution of the plan. In so far as the accused Bimlesh is concerned, as already discussed separately the testimony of Neelam Manchanda (PW26) confirms that it was Kali Charan who got the accused Bimlesh employed and throughout she had been observing her behaviour to be highly suspicious and on the date of the incident she deliberately chose to keep away during the time of the incident on the pretext that she was feeling hot St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 152 coupled with the knowledge which the assailants had with regard to the place where the keys and valuables were kept and could not have been possible without an insiders information confirms and establishes the role of Bimlesh in the conspiracy and the fact that it was she who kept a recce and passed on the information to the other accused. (156) I may observe that it is only the accused Chander Bhan who was armed with the knife at the time of the incident which knife he only used for purposes of threatening the victims but has not been used for causing any injuries to anyone. It is this which confirms that the conspiracy between the accused was only to commit the offence of dacoity and not for any other purpose. But while committing dacoity pursuant to this conspiracy the death of Sh. Kishan Lal Manchanda was caused. There is nothing on record to show that this was in pursuance to the conspiracy so hatched by the accused. It is here that the acts of the accused who participated in the actual incident of dacoity become relevant. While Kali Charan was the one who facilitated the entry of the accused Chander Bhan and PO accused Anil inside the house of the victims and then it was Sarvesh who also entered and kept a watch at the entry gate while Kali Charan and Amit @ Mangru were in touch with each other on phone and Amit @ Mangru then also joined the other assailants inside. All this to my mind is indicative of the common intent which developed between the various participants at the time of the commission of main offence of dacoity which they had conspired. Before coming to the merits of the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 153 same, I may observe that Section 34 Indian Penal Code has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if prearranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 154 or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in section 34, when an accused is convicted under section 302 read with section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P., reported in 2004(3) SCC 793 and reference in this regard is also being made to the case of decision of the Delhi High Court in the case of Mohd. Saleem Vs. State, Crl. Appeal No. 484/2011 decided on 31.5.2013 by the Bench headed by Hon'ble Mr. Justice Sanjiv Khanna.
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 155 (157) Applying the settled principles of law to the facts of the present case it is evident that initially the conspiracy was only to commit dacoity but since Kishan Lal Manchanda offered resistance the accused in order to attain the common object of dacoity caused injuries on the body of Kishan Lal Manchanda which proved fatal for him. While the accused Kali Charan, Sarvesh Kumar and Amit @ Mangru kept a watch at various places outside the room, it is the accused Chander Bhan and Anil (PO) person in check shirt who actually climbed on the body of the deceased and inflicted repeated injuries on his chest while Chander Bhan also moved a knife on his face as a result of which Kishan Lal Manchanda received injuries and he was dragged till the room near the fridge from the door (as confirmed from the Crime Team Report and also reflected from the testimony of Ms. Neelam Manchanda that blood had been scattered at the spot showing that the deceased had been dragged towards the room). The manner in which the deceased had been inflicted injuries within the sight of Smt. Kamla Devi on which she raised an alarm which alerted Sh. D.P. Sharma who rushed to the room of the victims and finding an unknown person at the door became suspicious and the third assailant who was standing at the door also run inside and probably dragged the body of the deceased towards the room and they all ran away from the spot in quick succession one by one, clearly establishes the prior meeting of mind and common intention entertained by the accused Kali Charan, Chander Bhan, Sarvesh Kumar and Amit @ Mangru.
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 156 (158) Coming next to the aspect of the death of Kishan Lal Manchanda, I may observe that as per the provisions of Section 300 Indian Penal Code culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid and this is punishable under Section 302 Indian Penal Code. There are five exceptions provided to the above. Firstly culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. I may observe that this exception is also subject to the proviso that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person; the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant; the provocation is not given by anything done in the lawful exercise of the right of private St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 157 defence; the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Secondly Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Thirdly Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without illwill towards the person whose death is caused. Fourthly Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner and it is immaterial in such cases which party offers the provocation or commits the first assault. Lastly Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. [Reference in this regard may be made to the case of Kundaswamy Vs. State of Tamil Nadu reported in 2008 (11) SCC 97]. (159) The academic distinction between 'murder' and 'culpable St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 158 homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300 Indian Penal Code. (Ref.: Daya Nand Vs. State of Haryana reported in AIR 2008 SC 1823).
(160) Whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 159 the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated is Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Indian Penal Code. Note: All murders are culpable homicide but not viceaversa. (Ref.: State of A.P. Vs. Rayavarapu Punnayya reported in AIR 1977 SC 45).
(161) Applying the settled principles of law to the facts of the present case, I may observe that intention is the state of mind which has to be inferred from the facts and circumstances of each case particularly the nature of weapon of the weapon and how it was used. In the present case the weapon of offence used is a knife but it has not been used for stabbing. The use of the knife was to scare the old man aged about 75 years by waiving and moving the same on his face giving an impression as if he would use the same on the victim anytime. The assailant Chander Bhan sat on the chest of the victim Kishan Lal Manchanda by climbing on his body and pushed him on the ground and the circumstantial evidence also shows that there was stiff resistance offered by the senior citizen/ victim and he (victim) was dragged after being hit. All this is indicative of absence of any premeditation, for had it been the case that the accused had preplanned the murder, I am sure Chander Bhan would have inflicted knife St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 160 blows on the victim as soon as the victim offered resistance without wasting any time. It is further evident that after the accused Chander Bhan gave beatings to Sh. Kishan Lal Manchanda and scared him with the knife, Sh. Kishan Lal Manchanda had received some injuries and he was dragged by the assailants till the door as evidence from the testimonies of the various eye witness who confirm that there were signs of dragging of the deceased in view of the blood stains confirming the same. The deceased was already suffering from multiple ailments including coronary artery disease. Kamla Devi (PW29) the wife of the deceased and the eye witness to the incident had elaborated the manner in which the whole incident was executed when Kishan Lal Manchanda was beaten. She has explained that the assailants were pushing her husband inside the room and two men pushed her husband down and climbed on him and one of them was stabbing on his face (vo dono unke upper chad gaye aur eik admi unke muh per chaku mar raha tha). Witness has further explained that when she raised alarm the other person who was in the check shirt came inside the room to her and pressed her mouth (dusre ne mera muh daba diya) and they then asked her to come outside near her husband on which she told them that she was immobile and cannot move (maine unse kaha ki mai chal fir nahi sakti). According to her, she wanted to make a telephone call to her sons but as soon as she caught hold her mobile phone to make a call, these boys snatched the mobile phone from her hand and the person who had come inside knew where the keys of the almirah were kept and he St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 161 took the keys and opened the almirah and took away her two gold karas, chain and cash amount which was kept there. She has specifically deposed that she could hear alarm and voices of "chorchor" coming from the outside after which the two persons who were standing outside and two persons who had come inside the house i.e. all the four of them ran away. This establishes that the conspiracy was only to commit a dacoity but the accused Chander Bhan @ Kana also carried a knife with him which is evident from the CCTV Footage which he had shown to Sh. D.P. Sharma when Sh. D.P. Sharma tried to intervene and stop them. It has also been established that the accused Chander Bhan also directed a knife slash on his neck but he saved himself by ducking himself on one side but in so far as the intention to kill is concerned, the same was absent nor was it a part of the conspiracy as none of the assailants were apparently prepared to face the resistance which the victim had offered. It is because of this that I hereby hold that the prosecution has miserably failed to conclusively establish that the accused had the intention to cause death or such bodily injuries sufficient in the ordinary course of nature to cause death or such bodily injury as is likely to cause death. Though it stands established that the act of the accused Chander Bhan of climbing on the chest of the victim Kishan Lal Manchanda an old man of 75 years suffering from multiple ailments including coronary artery disease and of giving repeated blows on his chest after throwing him on the ground and the other accused dragging him thereafter and preventing any person from entering the said St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 162 room was deemed to be with the knowledge that the act would have cause the death of Kishan Lal Manchanda and hence the case of the accused is covered under the provisions of Section 299 IPC and they are guilty of culpable homicide not amounting to murder and the case of the accused would fall within the purview of Section 304 (PartII) Indian Penal Code. (162) The medical evidence also confirms that the cause of death was on account of shock consequent upon blockage of coronaries, due to preexisting coronary artry disease and all the injuries were antimortem, fresh in nature and caused by blunt force/ surface impact inflicted upon the deceased by the accused.
(163) This being the background, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana, Bimlesh and Amit @ Mangru of having hatched a criminal conspiracy to commit dacoity at the house of the victims. Further it has been established that pursuant to the criminal conspiracy the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana and Amit @ Mangru committed dacoity in the house of the victim Sh. K.L. Manchanda. It also stands established that in furtherance of their common intention the above accused i.e. Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana and Amit @ Mangru did an act which they knew was likely to cause the death of Kishan Lal Manchanda. Allegations against the accused Ram Kumar:
(164) The main allegations against the accused Ram Kumar is that St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 163 he was the person who informed the accused Kali Charan about the maid servant i.e. accused Bimlesh who was working as maid with the senior citizen couple, a potential target residing on the ground floor as their own house was under construction. It is also alleged that it was the accused Ram Kumar who informed the coaccused Kali Charan and others that the victims are having a large amount of money with them in their house. In this regard the prosecution has placed their reliance on the disclosure statement of the accused Ram Kumar and that of coaccused Kali Charan and Bimlesh in this regard. At the very outset I may observe in so far as the disclosure statement of the accused is concerned, the same being hit by the provisions of Section 25 of Evidence Act it is inadmissible in evidence.
In order to establish the allegations that it was the accused Ram Kumar who had passed on the information to the other coaccused and planned the incident, it was necessary for the prosecution to have brought on record the cogent admissible evidence to establish the meeting of mind and his participation in the conspiracy which they have failed to do. Neither the CD containing the CCTV Footage confirms the presence of accused Ram Kumar with any of the accused nor has anybody identified him as one of the assailants nor his presence at the spot stands confirmed nor there is any other evidence to show that it was the accused Ram Kumar who passed on the information to the accused Kali Charan. Under these circumstances, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Ram Kumar St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 164 beyond reasonable doubt and hence benefit of doubt is liable to be given to the accused Ram Kumar.
Allegations against the accused Bimlesh:
(165) The case of the prosecution is that Kishan Lal Manchanda and his wife Smt. Kamla Devi both senior citizens were residing alone on the ground floor of House A176, Gujrawala Town, PartI, Delhi on rent since their own house was under construction. Smt. Kamla Devi it totally paralytic waist down and was unable to move at all and was totally dependent upon an attendant whereas Kishan Lal Manchanda, aged about 75 years was suffering from multiple ailments including coronary artery disease. The accused Kali Charan was a fruit seller in the area and used to sell fruits on Rehri for the last many years. He was the one who introduced the accused Bimlesh to the old couple as a domestic help. This Bimlesh was the sister of one Kamlesh who was earlier working with the victim's family and there was no reason to suspect her credentials. The senior citizens being totally dependent upon an attendant and finding no alternative they employed Bimlesh at their house which was just a few days prior to the incident. According to the prosecution version it was the accused Bimlesh who used to keep a watch/ recce in the house and passed on regular information to the accused Kali Charan and even on the date of incident had passed on this information to them and it is for this reason that when the assailants entered the house particularly the accused St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 165 Chander Bhan and Proclaimed Offender Anil they were already aware where the keys were kept and other details which was not possible without there being inside informant. In this regard the prosecution has placed its reliance on the testimony of Smt. Neelam Manchanda the daughter in law of the deceased who has been examined as PW26. The relevant portion of her testimony is as under:
"........ I am a housewife. Sh. Kishan Lal Manchana was my father in law and Smt. Kamla Devi is my mother in law. At the time of incident i.e. on 09.06.2012 I was residing at the above said address A130, Gujranwala Town, PartI Delhi alongwith my family member including my husband and children on the first floor and on the upper ground floor my devar was residing with his family members including his wife and children. My father in law Kishan Lal Manchanda and mother in law Smt. Kamla Devi was residing at the H. No. A176, Gujranwala Town on rent basis on the ground floor as my mother in law was unable to walk. I used to visit my father in law and mother in law daily at the day time. One maid servant was appointed by my father in law and mother in law for their help at their house. The maid servant Bimlesh was referred by Kali Charan. Behaviour of maid servant Bimlesh was not good and I already expressed my suspicion about Bimlesh to my mother in law and I also told my mother in law to change the maid servant. The maid servant however was not removed by my mother in law on account of her medical problem as she was totally bed ridden and unable to move. On 09.06.2012 at about 3.003.15PM I went to the house of my inlaws to meet them but found St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 166 many public persons gathered there and I also found my father in law Kishan Lal Manchanda lying on the ground in unconscious condition between the kitchen and the living room i.e. the place where the fridge was kept. It appeared as if he was dragged inside from outside as he had injuries on his head and there were blood stains indicating that he was dragged. I noticed that Almira of the living room was opened and articles were lying scattered while my mother in law was crying.
With the help of the son of the landlord who is a doctor I rushed my father in law to the Pentamed hospital but he was declared brought dead. My mother in law informed me that Rs.10,000/ and four gold bangles and one Mangal Sutra had been robbed.
Accused Bimlesh and Kali Charan are present in the court. Witness correctly identified both the accused persons present in the court......"
(166) She has been exhaustively crossexamined by the Ld. Defence Counsels but she stood by her ground and had denied that Bimlesh was not referred by accused Kali Charan. Neelam Manchanda has specifically deposed that throughout she was very suspicious of the behaviour of Bimlesh and even discussed with her mother in law about the same but since her mother in law was unable to move and totally paralytic on account of medical problems and she could not find any other suitable maid, therefore Bimlesh continued to work in their house. Neelam Manchanda is residing in the neighbourhood where their house is under construction and has explained that her parents in law had continued to St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 167 stay on rent since it was convenient to them being the ground floor. She has further explained that on the date of the incident i.e. 9.6.2012 at about 3:003:15 PM she went to the house of her inlaws to meet them but she found that a large number of public persons gathered and her father in law was lying on the ground in an unconscious condition between the kitchen and the room and it appeared that he had been dragged inside from outside and the injuries on his head and blood stains indicating that he was dragged. She also noticed that the almirah of the room was open and the articles were lying scattered while her mother in law was crying. She has confirmed the testimony of Dr. Vivek Sharma (PW14) the son of D.P. Sharma (PW17) to the extent that she with the help of Vivek Sharma took her father in law to Pentamed Hospital but he was declared dead. Here, I may observe that the MLC of the victim K.L. Manchanda which is Ex.PW11/A establishes that she was the one who had rushed her father in law to the hospital. Neelam Manchanda has confirmed that her mother in law had informed her that Rs.10,000/, four gold bangles and one Mangal Sutra had been robbed from her.
(167) In her crossexamination Neelam Manchanda has stated that at the time of the incident she was residing at A130, Gujranwala Town, PhaseI, Delhi which is at a walking distance from the house of her parents in law. She has also explained that her parents in law used to stay alone and whenever there was a problem her brother in law (devar) used to stay with them. According to her, prior to Bimlesh there was no full time maid St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 168 and one Mamta was working as a part time maid. She has explained that after Mamta it was Bimlesh who had been working in the house of her parents in law and this Bimlesh was referred by Kali Charan. She has also explained that accused Kali Charan was a fruit seller in the area on pheri and has repeatedly affirmed in her crossexamination that Bimlesh had been referred to her parents in law by the accused Kali Charan. (168) The Ld. Defence Counsel has vehemently argued that Neelam Manchanda is not a regular visitor to the house of her parents in law and has deposed only on the basis of tutoring of police officials. I may observe that all the accused Kali Charan, Sarvesh Kumar, Chander Bhan and Amit being visible in CCTV footage, there was no reason for the police to falsely implicate Bimlesh. In so far as the presence of Neelam Manchanda is concerned, it stands established not only from the MLC of victim which is Ex.PW11/A but also from the testimony of the landlord D.P. Sharma (PW17) and his son Dr. Vivek Sharma (PW14) who have confirmed that it was the daughter in law of K.L. Manchanda who had accompanied him to Pentamed Hospital. Had it been the case that Bimlesh had never worked at the house of Neelam Manchanda or that her behaviour had been above suspicion there is no reason why Smt. Neelam Manchanda of her own would have expressed her suspicion about Bimlesh to the police.
(169) I may observe that the accused Bimlesh is a resident of Jhuggi No. B297, Lal Bagh, Azadpur, Delhi; accused Kali Charan is a resident St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 169 of Jhuggi No. C374, Lal Bagh, Azadpur, Delhi; the accused Amit @ Mangru is a resident of Jhuggi No. C178, Lal Bagh, Azadpur, Delhi; accused Sarvesh Kumar is a resident of Jhuggi No. F121, Jailer Wala Bagh, PhaseII, Ashok Vihar, Delhi whereas the accused Chander Bhan is a resident of Kasba Shikarpur, Mohalla Ambedkar Nagar, Near Bara Khamba Road, ByePass, Distt. Bulandsher, Uttar Pradesh. It is writ large that without an internal nexus the entire dacoity could not have been so minutely and aptly planned out. In so far as the accused are concerned everything was accurately planned and in their control. Bimlesh who normally left at 1:001:30 PM to return by 2:00 PM, told the employer that she would return only by 4:00 PM as she was feeling hot. Kali Charan had lured the victim out of the house by making a call for purchase of fruits after which the accused Sarvesh Kumar, Chander Bhan, Amit @ Mangru and Anil (Proclaimed Offender) of whom Amit @ Mangru was already in touch with Kali Charan followed Mr. K.L. Manchanda inside when he was going inside to bring money (all of it is caught in CCTV visuals). They did not expect K.L. Manchanda to offer a stiff resistance and raised an alarm. Their luck ran out when he raised an alarm which was incidentally heard by Sh. D.P. Sharma who by coincidence had come down stairs to pickup his purse and was walking back when he noticed the door of the portion of Mr. Manchanda which normally remained closed as open and found an unknown person standing there suspiciously when he stopped and questioned him. It is then that their plan went astray and the assailants St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 170 panicked and escaped from the spot but not before fatally injuring Sh. K.L. Manchanda.
(170) I may further observe that as per the provisions of Section 8 of the Indian Evidence Act, 1872 any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceedings, in reference to such suit or proceedings, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. (171) It is hardly said that there any action without a motive. Conduct of a person to proceedings in reference to any fact in issue or relevant fact is relevant. As per the provisions of Section 8 the conduct whether previous or subsequent an offence against whom is the subject of inquiry is relevant if the conduct influences or influenced by any fact in issue or a relevant fact as it throws light upon a person's motive, intention, goodfaith etc. Subsequent act of a person which is indicative of desire to avoid or stifle judicial inquiry into an offence of which the party doing the act is accused or suspected is relevant. The conduct of a person immediately after the offence is relevant under these circumstances and in the absence of any explanation for such act the presumption would be against such person.
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 171 (172) I may note that in the present case the conduct of the accused Bimlesh is also not above board. In her testimony Smt. Kamla Devi (PW29) has specifically deposed that Bimlesh used to come to their house in the morning at 7:00 AM and used to go back in the evening and in between she used to go back at about 1:00 PM to 1:30 PM and return at 2:00 PM whereas on the date of incident Bimlesh told her that she would come at 4:00 PM because she was feeling very hot. She has also explained that when Bimlesh came back in the evening she was talking to someone on her mobile phone informing that what was happening at her house. This conduct of the accused Bimlesh was highly suspicious. Hence, under the given circumstances I have no hesitation in holding that the allegations against the accused Bimlesh of having conspired with the accused Kali Charan, Sarvesh Kumar, Amit @ Mangru and Chander Bhan for committing dacoity stand conclusively established for the following reasons:
➢ Because the accused Bimlesh was put on the job at the house of the victims by accused Kali Charan (an active participant in the incident of dacoity whose presence and participation stands established from the visuals of the CCTV and the Call Detail Records). ➢ Because the behaviour of Bimlesh as observed by Smt. Neelam Manchanda was not above board and suspicion which she even discussed with her mother in law Smt. Kamla Devi but she was retained out of necessity and the mother in law being paralytic waist St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 172 down (Reference is made to the testimony of Neelam Manchanda in this regard).
➢ Because Bimlesh unprecedentedly stayed away from the house of her employers on the date of the incident i.e. 9.6.2012 till 4:00 PM leaving sufficient space and opportunity for the other assailants to complete their job while ordinarily she was to return by 2:00 PM (which she deliberately and strangely did not do on the date of the incident.).
➢ Because the accused Bimlesh is the resident of the same area as that of the other accused and there was sufficient opportunity for her to interact with the coconspirators who were actively involved in the incident of dacoity.
➢ Because it was only Bimlesh who had an access to the house of the victims who could have known where the keys and other articles were kept in the Almirah which information was already available with the assailants when they committed the incident of dacoity (Reference is made to the testimony of Smt. Kamla Devi who has stated that the assailants were already aware of the said details when they entered the house).
(173) Hence, the aforesaid impels me to conclude that the accused Bimlesh was an active participant in the conspiracy hatched by the accused Kali Charan, Sarvesh Kumar, Chander Bhan, Amit and Anil (PO) to commit an armed dacoity at the house of the victims. St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 173
Apprehension/ arrest of the accused and Charges established:
(174) In so far as the aspect of apprehension and arrest of the accused persons are concerned, all the police witnesses i.e. HC Rameshwar Rana (PW8), SI Heera Lal (PW9), W/Ct. Geeta (PW10), HC Chanderveer (PW22), Ct. Yogender (PW23), Ct. Jitender (PW24), Ct.
Ajeet (PW25), HC Narender Dhama (PW28) and Inspector Jagmender Singh (PW30) as discussed herein above have proved the same in accordance with law and the defence has not been able to successfully controvert the same. In so far as the discrepancies in the testimonies of the above prosecution witnesses, as pointed out by the Ld. Defence counsels is concerned, I hold the same to be not material or fatal to the prosecution version. I may however note that in so far as the accused Amit @ Mangru pursuant to his arrest on 12.10.2012 and during his interrogation he had made a disclosure of his involvement in the case and also informed that out of the looted property he had retained the two gold karas which he got recovered from his Jhuggi i.e. C178, Lalbagh Jhuggi, Azadpur, Delhi. Both the accused Chander Bhan and Amit @ Mangru also got recovered the knives which according to them they had used at the time of the incident. However, I may observe that in so far as the accused Amit @ Mangru is concerned the use of knife by him at the time of the incident has not been confirmed and it is only Chander Bhan who has been identified by both Kamla and D.P. Sharma as the person who was carrying St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 174 a knife which knife is also visible in the hand of accused Chander Bhan in the visuals of the CCTV footage while he was waiving the same and running away.
(175) Hence, in view of my above discussion, I hereby hold that the prosecution has been able to successfully establish the allegations against the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana, Amit @ Mangru and Bimlesh along with PO accused Anil of having hatched a criminal conspiracy to commit dacoity in the house of Sh. K.L. Manchanda at House No. A176, Gujranwala Town, PartI, Delhi for which the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana, Amit @ Mangru and Bimlesh are held guilty of the offence under Section 120B read with 395 Indian Penal Code.
(176) Further, the prosecution has also been able to prove and substantiate the allegations against the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana and Amit @ Mangru along with PO accused Anil of having committed dacoity at the house of Sh. K.L. Manchanda at House No. A176, Gujranwala Town, PartI, Delhi for which the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana and Amit @ Mangru are held guilty of the offence under Section 395 Indian Penal Code.
(177) Further, in so far as the accused Chander Bhan @ Kana is concerned, the prosecution has been able to successfully establish that St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 175 while committing dacoity it was the accused Chander Bhan who used a knife, a deadly weapon, which he had first shown to the victims and particularly to the deceased Kishan Lal Manchanda on whose face he had moved the knife while sitting on his chest and directing the blows on him and then to Sh. D.P. Sharma while running away when he showed him this knife by directing a slash blow towards Sh. D.P. Sharma when D.P. Sharma tried to stop him. I hereby hold the accused Chander Bhan guilty of the offence under Section 397 Indian Penal Code. (178) Further, in so far as the charge under Section 412 Indian Penal Code against the accused Amit @ Mangru is concerned, it stands established that on 12.10.2012 pursuant to his disclosure statement the accused Amit @ Mangru got recovered two gold karas from his residence i.e. C178, Lalbag Jhuggi, Azadpur, Delhi which were seized and the victim Smt. Kamla Devi has correctly identified the said karas in the Court as Ex.P3 and Ex.P4. Therefore, I hold the accused Amit @ Mangru guilty of the offence under Section 412 Indian Penal Code. The prosecution having failed to prove and establish the use of the deadly weapon, he is hereby acquitted of the charges under Sections 397/398 Indian Penal Code.
(179) Further, in so far as the aspect of causing death of Sh. K.L. Manchanda is concerned, I hereby hold the prosecution has been able to St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 176 prove and substantiate the allegations against the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana and Amit @ Mangru along with PO accused Anil of doing an act in furtherance of their common intention with the knowledge that it is likely to cause death of Kishan Lal Manchanda for which the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana and Amit @ Mangru are held guilty of the offence under Section 304 PartII read with Section 34 Indian Penal Code.
FINAL CONCLUSIONS:
(180) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 177 except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(181) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. On the basis of the testimonies of the various prosecution witness and the evidence on record the following aspects stand established:
➢ That Kishan Lal Manchanda along with his wife Smt. Kamla Devi was residing on rent on the backside portion of the ground floor portion of House No. A176, Gujranwala Town, PartI, Delhi which is owned by Sh. D.P. Sharma Presiding Officer of a Judicial Tribunal and at the front side there is a dental clinic of wife of Dr. Vivek Sharma who is the son of Sh. D.P. Sharma.
➢ That Smt. Kamla Devi is totally paralytic waistdown and cannot move at all without help being bed ridden due to which reason they kept a maid who used to come in the morning and leave in the evening.
➢ That Kamlesh sister of accused Bimlesh used to work at their house previously after which one Mamta had worked for some time and St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 178 then Bimlesh had joined the services at their house as maid for a few months prior to the incident and used to attend to her. ➢ That Bimlesh used to come at 7:00 AM in the morning and leave in the evening with a break of about half an hour i.e. between 1:00 to 1:30 PM but used to positively return by 2:00 PM and even had her lunch with the employers.
➢ That Bimlesh was aware of most all the details and particulars of the family of the employers.
➢ That the accused Kali Charan is a fruit seller and used to regularly supply fruits in the locality and also at the house of the victims. ➢ That on the date of the incident i.e. on 9.6.2012 Bimlesh went away during lunch and told the victim Kamla Devi that she would return by 4:00 PM on the pretext that she was feeling very hot (whereas normally she was required to return by 2:00 PM). ➢ That on the date of incident on 9.6.2012 at about 3 to 3:15 PM Kali Charan called out to them from outside asking them to purchase Kharbujas on which Kishan Lal Manchanda went outside for making payment of the Kharbujas to Kali Charan. ➢ That Smt. Kamla Devi heard loud noise and soon she saw outside that there were two persons out of whom one was wearing check shirt and other one was wearing spectacles/ Chasma (i.e. accused Chander Bhan) who all were pushing her husband inside the room and all the Kharboojas were scattered.
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 179 ➢ That the said two men pushed her husband down and were on him and hitting him and she saw one of them moving the knife on his face.
➢ That when she raised alarm the other person who was in the check shirt (PO accused Anil) came inside the room to her and pressed her mouth and asked her to come outside near her husband on which she told them that she is immobile and cannot move. ➢ That thereafter she wanted to make a telephone call to her sons but as soon as she caught hold of her mobile phone to make a call, these boys snatched the mobile phone from her hand.
➢ That the person who had come inside already knew where the keys of the almirah were kept and he took the keys and opened the almirah and took away her two gold karas, chain and cash amount which was kept there.
➢ That Smt. Kamla could hear the alarm and voices of "chorchor"
coming from outside after which the two persons who were standing outside and two persons who had come inside the house i.e. all the four of them ran away.
➢ That on 9.6.2012 at about 3:15 PM Sh. D.P. received a telephone call from the Receptionist of the clinic that noise was coming out from the house of K.L. Manchanda as if K.L. Manchanda was scolding someone.
➢ That D.P. Sharma being aware that both the tenants were senior St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 180 citizens, initially ignored as Sh. K.L. Manchanda was habitual in speaking in loud voices.
➢ That Sh. D.P. Sharma went to the ground floor to pickup his purse but found the entrance gate of K.L. Manchanda open and found it unusual since it was normally closed and got suspicious. ➢ That on this he looked inside the room and found an unknown person dressed in sky blue coloured shirt (accused Sarvesh) standing inside the house, on which he (D.P. Sharma) asked him what was the matter, where was Mr. Manchanda call him out "kya baat hai, Mancanhda Sahab kahan hai, unhe bahar bulao."
➢ That the said person (accused Sarvesh) went inside while D.P. Sharma kept standing on the gate and after some time the said person (accused Sarvesh) came outside and told him that Mr. Manchanda was not well (unki tabiyat kharab hai).
➢ That as soon as D.P. Sharma had taken about one or two steps into the house, the said man (accused Sarvesh) shouted "aa gaya" on which D.P. Sharma tried to stop the said person (accused Sarvesh) and there was hathapai and he raised an alarm of chorchor. ➢ That while D.P. Sharma was still grappling with the said person, they came outside and the said person managed (accused Sarvesh) to get himself freed from his grip and ran away leaving behind his chappals.
➢ That soon D.P. Sharma noticed three more persons coming out from St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 181 the house of Mr. Manchanda one after the other and ran behind the first person in quick succession.
➢ That the person following the first person with blue shirt (i.e. accused Sarvesh) was wearing a double coloured sweat shirt (i.e. accused Amit @ Mangru who was in close contact on mobile phone with accused Kali Charan i.e. person with white head gear/ pagri who was the first to come to the premises and leave after securing the entry for the others) and it is Amit @ Mangru who had left behind his towel (accused Amit @ Mangru) and the last person (accused Chander Bhan) pulled out a knife and directed a slash blow on his neck but he (witness D.P. Sharma) ducked and saved himself.
➢ That on hearing the alarm some public persons including his family members gathered and they immediately informed the police and some of the public persons entered in the house of Mr. Manchanda who was found him lying on the floor.
➢ That they decided to shift Mr. Manchanda to the hospital first and in the meanwhile the other family members of Mr. Manchanda who were residing a little away from the said house also reached the spot. ➢ That daughter in law of the deceased (i.e. Smt. Neelam Manchanda PW26), son of D.P. Sharma (Dr. Vivek Sharma) and another boy from neighbourhood shifted K.L. Manchanda to Pentamed Hospital and D.P. Sharma later came to know that he was no more. St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 182 ➢ That there was a CCTV Camera installed outside the house of D.P. Sharma as well as in many other houses in the neighbourhood in the same street and police checked the recording of the visuals of CCTV Camera installed in his house on the same day where they found the movements of the accused persons recorded. ➢ That police asked D.P. Sharma to hand over the recordings of the visuals of the CCTV Camera of that day in a CD.
➢ That on receiving this request from the police D.P. Sharma asked the agency who had installed the CCTV Camera at his house i.e. A to Z Infolink, situated at Subhash Place, Delhi to prepare the CD of the footage pursuant to which the officials from the agency took the hard drive of the camera and copied the visuals in a pen drive. ➢ That when D.P. Sharma noticed that it was in a pen drive he directed his PSO to get the CD of the same prepared which he did and thereafter on the same day he handed over the CD to the police which CD was seized by the police.
(182) The postmortem report of the deceased Kishan Lal Manchanda established that he had died a natural death due to shock consequent upon blockage of coronaries and the injuries present on his body were caused by blunt force/ surface impact. The medical evidence on record is compatible to the testimony of Smt. Neelam Manchanda that she had taken her father in law to Pentamed Hospital where he was declared brought dead. No doubt the deceased had suffered shock St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 183 consequent upon blockage of coronaries, yet it is writ large that for an old man aged about 75 years having a history of coronary blockage, any use of force on chest or shock is likely to be fatal and this fact was well within the knowledge of the assailants. The medical evidence hence confirms the version of the prosecution and the knowledge so attributed to the accused as contemplated under Section 299 Indian Penal Code. (183) Further, the electronic evidence in the form of Call Detail Records connects the accused Kali Charan and Amit @ Mangru with the offence and lends credence to the version of the eye witnesses and confirms the CCTV visuals which conclusively connects the accused Kali Charan, Sarvesh Kumar, Chander Bhan and Amit @ Mangru with the alleged offence.
(184) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (185) In so far as the accused Kali Charan, Sarvesh Kumar, Amit @ Mangru, Chander Bhan and Bimlesh are concerned, the prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 184 including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
(186) This being the background, I hereby hold that the prosecution has been able to successfully establish the allegations against the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana, Amit @ Mangru and Bimlesh along with PO accused Anil of having hatched a criminal conspiracy to commit dacoity in the house of Sh. K.L. Manchanda at House No. A176, Gujranwala Town, PartI, Delhi for which the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana, Amit @ Mangru and Bimlesh are held guilty of the offence under Section 120B read with 395 Indian Penal Code.
(187) Further, the prosecution has also been able to prove and substantiate the allegations against the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana and Amit @ Mangru along with PO accused Anil of having committed dacoity at the house of Sh. K.L. St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 185 Manchanda at House No. A176, Gujranwala Town, PartI, Delhi for which the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana and Amit @ Mangru are held guilty of the offence under Section 395 Indian Penal Code.
(188) Further, in so far as the accused Chander Bhan @ Kana is concerned, the prosecution has been able to successfully establish that while committing dacoity it was the accused Chander Bhan who used a knife, a deadly weapon, which he had first shown to the victims and particularly to the deceased Kishan Lal Manchanda on whose face he had moved the knife while sitting on his chest and directing the blows on him and then to Sh. D.P. Sharma while running away when he showed him this knife by directing a slash blow towards Sh. D.P. Sharma when D.P. Sharma tried to stop him. I hereby hold the accused Chander Bhan guilty of the offence under Section 397 Indian Penal Code. (189) Further, in so far as the charge under Section 412 Indian Penal Code against the accused Amit @ Mangru is concerned, it stands established that on 12.10.2012 pursuant to his disclosure statement the accused Amit @ Mangru got recovered two gold karas from his residence i.e. C178, Lalbag Jhuggi, Azadpur, Delhi which were seized and the victim Smt. Kamla Devi has correctly identified the said karas in the Court as Ex.P3 and Ex.P4. Therefore, I hold the accused Amit @ Mangru guilty of the offence under Section 412 Indian Penal Code. The St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 186 prosecution having failed to prove and establish the use of the deadly weapon, he is hereby acquitted of the charges under Sections 397/398 Indian Penal Code.
(190) Further, in so far as the aspect of causing death of Sh. K.L. Manchanda is concerned, I hereby hold the prosecution has been able to prove and substantiate the allegations against the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana and Amit @ Mangru along with PO accused Anil of doing an act in furtherance of their common intention with the knowledge that it is likely to cause death of Kishan Lal Manchanda for which the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana and Amit @ Mangru are held guilty of the offence under Section 304 PartII read with Section 34 Indian Penal Code. All the above accused are accordingly convicted. (191) However, in so far as the accused Ram Kumar is concerned, neither the CD containing the CCTV Footage confirms the presence of accused Ram Kumar with any of the accused nor has anybody identified him as one of the assailants nor his presence at the spot stands confirmed nor there is any other evidence to show that it was the accused Ram Kumar who passed on the information to the accused Kali Charan. Under these circumstances, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Ram Kumar beyond reasonable doubt and hence Benefit of Doubt is given to the St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 187 accused Ram Kumar who is acquitted of the charges invoked against him (i.e. under Section 120B read with 395 and 304 Indian Penal Code). (192) Be listed for arguments on sentence qua the convicts Kali Charan, Sarvesh Kumar, Amit @ Mangru, Chander Bhan and Bimlesh for 4.4.2014.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 29.3.2014 ASJII(NW)/ ROHINI
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 188
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE II (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 89/2012 Unique Case ID No.: 02404R0241752012 State Vs. (1) Kali Charan S/o Sh. Hori Lal R/o Jhuggi No. C374, Lal Bagh, Azadpur, Delhi (Convicted) (2) Ram Kumar S/o Sh. Ram Sewak R/o Jhuggi No. F121, Jailer Wala Bagh, PhaseII, Ashok Vihar, Delhi Permanent resident of Village Ram Nagar, PO Shidhana, Distt. Azamgarh, PS Mohazpur, Uttar Pradesh (Acquitted) (3) Sarvesh Kumar S/o Sh. Shyam Dev R/o Jhuggi No. F121, Jailer Wala Bagh, PhaseII, Ashok Vihar, Delhi Permanent resident of Village Ram Nagar, PO Shidhana, Distt. Azamgarh, PS Mohazpur, Uttar Pradesh (Convicted) St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 189 (4) Chander Bhan @ Pathak @ Kana S/o Sh. Kirpal Singh R/o Kasba Shikarpur, Mohalla Ambedkar Nagar, Near Bara Khamba Road, ByePass, Distt. Bulandsher, UP (Convicted) (5) Bimlesh W/o Sh. Satish R/o Jhuggi No. B297, Lal Bagh, Azadpur, Delhi (Convicted) (6) Amit @ Mangroo S/o Sumant Maurya R/o House No. A386, Chandra Shekhar Colony, WPIA, Delhi.
Also at: C178, Jhuggi Lal Bagh,
Azadpur, Delhi
(Convicted)
(7) Anil
S/o Sant Lal
R/o Jhuggi No. C340,
Jailer Wala Bagh, Ashok Vihar,
Delhi
(Proclaimed Offender)
FIR No.: 138/2012
Police Station: Model Town
Under Sections: 392/395/397/304/120B IPC
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 190
Date of conviction: 29.3.2014
Arguments concluded on: 15.4.2014
Date of Sentence: 16.4.2014
APPEARANCE:
Present: Sh. Tofeeq Ahmed, Addl. Public Prosecutor for the State.
All convicts are in Judicial Custody with Sh. R.K. Bharti, Sh. S.K. Bhagat and Sh. Hitender Sakarwal Advocates/ Amicus Curiae.
ORDER ON SENTENCE:
The present case is a glaring example of increasing crime against senior citizens who are staying alone and are vulnerable targets. The victim Kishan Lal Manchanda aged about 76 years and his wife Smt. Kamla Devi aged about 70 years were residing on rent at House No. A176, Ground Floor, Gujrawalan Town, PartI, Delhi while their sons and their families were residing at House No. A130 Gujranwala Town, Phase I, Delhi which was under construction at that time. However, Kishan Lal Manchanda and Smt. Kamla Devi continued to reside on rent since it was a ground floor accommodation which was convenient to the senior citizen couple. Smt. Kamla Devi being totally immobile as she was paralytic waist down. While Smt. Kamla Devi is unable to move at all and is totally dependent upon an attendant whereas Kishan Lal Manchanda, aged about St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 191 75 years was suffering from multiple ailments including coronary artery disease. The accused Kali Charan was a fruit seller in the area and used to sell fruits on Rehri for the last many years and has been visiting the couple and easily won the confidence of Sh. Kishan Lal Manchanda. Kali Charan introduced the accused Bimlesh to the couple for purposes of domestic help and for attending to Kamla. This Bimlesh was the sister of one Kamlesh who was earlier working with the victim's family and the senior citizens being totally dependent upon attendant finding no alternative had employed Bimlesh at their house a few days before the incident. According to the prosecution version it was the accused Bimlesh who was to keep a watch/ recce in the house as to where the money was kept and passed on regular information to the accused Kali Charan and even on the date of incident had passed on this information to them and left the house by 1:30 PM to return by 4:00 PM (though normally she returned by 2:00 PM) leaving sufficient opportunity and time for others to execute their plan.
As per allegations on or before 9.6.2012 all the accused namely Kali Charan, Ram Kumar, Sarvesh Kumar, Chander Bhan @ Pathak @ Kana, Bimlesh and Amit @ Mangru hatched a criminal conspiracy along with their coaccused Anil (Proclaimed Offender) to commit dacoity at House No. A176, Ground Floor, Gujrawala Town, Part I, Delhi belonging to the complainant Kamla Devi and deceased Kishan Lal Manchanda. It has been alleged that on 9.6.2012 at about 3:10 PM the accused Kali Charan, Ram Kumar, Sarvesh Kumar, Chander Bhan @ St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 192 Pathak @ Kana and Amit @ Mangru along with their coaccused Anil (Proclaimed Offender) committed dacoity at the above said house and took away mobile phone belonging to Smt. Kamla Devi and caused the death of Kishan Lal Manchanda aged about 75 years by causing injuries to him and by pushing him on the ground with intention of causing his death or with the intention to cause such bodily injuries as is likely to cause death or with the knowledge that by their act they would likely to cause death of Kishan Lal Manchanda. It has also been alleged that at the time of committing dacoity the accused Amit @ Mangru and Chander Bhan were armed with deadly weapon i.e. knives. Further, as per the allegations on 13.10.2012 at Jhuggi No. C178 the accused Amit @ Mangru dishonestly received or retained two gold karas jewellery, a stolen property, the possession whereof he knew or having reasons to believe to have been transferred by the commission of dacoity.
On the basis of the testimonies of the various prosecution witnesses particularly the testimonies of D.P. Sharma the landlord; Ms. Neelam Manchanda the daughter in law of the deceased and Smt. Kamla the wife of the deceased and an eye witness to the incident and also on the basis of the medical, electronic and other circumstantial evidence on record this Court vide a detail judgment 29.3.2014 held the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana, Amit @ Mangroo and Bimlesh guilty of the offence under Section 120B read with 395 Indian Penal Code. Further, the accused Kali Charan, Sarvesh Kumar, Chander St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 193 Bhan @ Kana and Amit @ Mangroo have been held guilty of the offence under Section 395 Indian Penal Code. The accused Chander Bhan has also been held guilty of the offence under Section 397 Indian Penal Code. The accused Amit @ Mangroo has been held guilty of the offence under Section 412 Indian Penal Code but acquitted of the charges under Sections 397/398 Indian Penal Code. Also, the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana and Amit @ Mangroo have been held guilty of the offence under Section 304 PartII read with Section 34 Indian Penal Code. However, benefit of doubt has been given to the accused Ram Kumar who has been acquitted of the charges invoked against him (i.e. under Section 120B read with 395 and 304 Indian Penal Code).
Vide the detail judgment this Court has observed that the prosecution has been able to establish that Kishan Lal Manchanda along with his wife Smt. Kamla Devi was residing on rent on the backside portion of the ground floor portion of House No. A176, Gujranwala Town, PartI, Delhi which is owned by Sh. D.P. Sharma Presiding Officer of a Judicial Tribunal and at the front side there is a dental clinic of wife of Dr. Vivek Sharma who is the son of Sh. D.P. Sharma; that Smt. Kamla Devi is totally paralytic waistdown and cannot move at all without help being bed ridden due to which reason they kept a maid who used to come in the morning and leave in the evening; that Kamlesh sister of accused St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 194 Bimlesh used to work at their house previously after which one Mamta had worked for some time and then Bimlesh had joined the services at their house as maid for a few months prior to the incident and used to attend to her; that Bimlesh used to come at 7:00 AM in the morning and leave in the evening with a break of about half an hour i.e. between 1:00 to 1:30 PM but used to positively return by 2:00 PM and even had her lunch with the employers; that Bimlesh was aware of most all the details and particulars of the family of the employer; that the accused Kali Charan is a fruit seller and used to regularly supply fruits in the locality and also at the house of the victims.
It has been observed that the prosecution has also been able to establish that on the date of the incident i.e. on 9.6.2012 Bimlesh went away during lunch and told the victim Kamla Devi that she would return by 4:00 PM on the pretext that she was feeling very hot (whereas normally she was required to return by 2:00 PM); that on the date of incident on 9.6.2012 at about 3 to 3:15 PM Kali Charan called out to them from outside asking them to purchase Kharbujas on which Kishan Lal Manchanda went outside for making payment of the Kharbujas to Kali Charan; that Smt. Kamla Devi heard loud noise and soon she saw outside that there were two persons out of whom one was wearing check shirt and other one was wearing spectacles/ Chasma (i.e. accused Chander Bhan) who all were pushing her husband inside the room and all the Kharboojas were scattered; that the said two men pushed her husband down and were St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 195 on him and hitting him and she saw one of them moving the knife on his face; that when she raised alarm the other person who was in the check shirt (PO accused Anil) came inside the room to her and pressed her mouth and asked her to come outside near her husband on which she told them that she is immobile and cannot move; that thereafter she wanted to make a telephone call to her sons but as soon as she caught hold of her mobile phone to make a call, these boys snatched the mobile phone from her hand; that the person who had come inside already knew where the keys of the almirah were kept and he took the keys and opened the almirah and took away her two gold karas, chain and cash amount which was kept there; that Smt. Kamla could hear the alarm and voices of "chorchor"
coming from outside after which the two persons who were standing outside and two persons who had come inside the house i.e. all the four of them ran away.
Further, the prosecution has been able to establish that on 9.6.2012 at about 3:15 PM Sh. D.P. received a telephone call from the Receptionist of the clinic that noise was coming out from the house of K.L. Manchanda as if K.L. Manchanda was scolding someone; that D.P. Sharma being aware that both the tenants were senior citizens, initially ignored as Sh. K.L. Manchanda was habitual in speaking in loud voices; that Sh. D.P. Sharma went to the ground floor to pickup his purse but found the entrance gate of K.L. Manchanda open and found it unusual since it was normally closed and got suspicious; that on this he looked St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 196 inside the room and found an unknown person dressed in sky blue coloured shirt (accused Sarvesh) standing inside the house, on which he (D.P. Sharma) asked him what was the matter, where was Mr. Manchanda call him out "kya baat hai, Mancanhda Sahab kahan hai, unhe bahar bulao"; that the said person (accused Sarvesh) went inside while D.P. Sharma kept standing on the gate and after some time the said person (accused Sarvesh) came outside and told him that Mr. Manchanda was not well (unki tabiyat kharab hai); that as soon as D.P. Sharma had taken about one or two steps into the house, the said man (accused Sarvesh) shouted "aa gaya" on which D.P. Sharma tried to stop the said person (accused Sarvesh) and there was hathapai and he raised an alarm of chor chor; that while D.P. Sharma was still grappling with the said person, they came outside and the said person (accused Sarvesh) managed to get himself freed from his grip and ran away leaving behind his chappals; that soon D.P. Sharma noticed three more persons coming out from the house of Mr. Manchanda one after the other and ran behind the first person in quick succession; that the person following the first person with blue shirt (i.e. accused Sarvesh) was wearing a double coloured sweat shirt (i.e. accused Amit @ Mangru who was in close contact on mobile phone with accused Kali Charan i.e. person with white head gear/ pagri who was the first to come to the premises and leave after securing the entry for the others) and it is Amit @ Mangru who had left behind his towel at the spot and the last person (accused Chander Bhan) pulled out a knife and St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 197 directed a slash blow on his neck but he (witness D.P. Sharma) ducked and saved himself; that on hearing the alarm some public persons including his family members gathered and they immediately informed the police and some of the public persons entered in the house of Mr. Manchanda who was found him lying on the floor; that they decided to shift Mr. Manchanda to the hospital first and in the meanwhile the other family members of Mr. Manchanda who were residing a little away from the said house also reached the spot; that daughter in law of the deceased (i.e. Smt. Neelam Manchanda), son of D.P. Sharma (Dr. Vivek Sharma) and another boy from neighbourhood shifted K.L. Manchanda to Pentamed Hospital and D.P. Sharma later came to know that he was no more.
This Court has further observed that the prosecution has been able to establish that there was a CCTV Camera installed outside the house of D.P. Sharma as well as in many other houses in the neighbourhood in the same street and police checked the recording of visuals in CCTV Camera installed in his house on the same day where they found the movements of the accused persons recorded; that police asked D.P. Sharma to hand over the recordings of the visuals of the CCTV Camera of that day in a CD; that on receiving this request from the police D.P. Sharma asked the agency who had installed the CCTV Camera at his house i.e. A to Z Infolink, situated at Subhash Place, Delhi to prepare the CD of the footage pursuant to which the officials from the agency took the hard drive of the camera and copied the visuals in a pen drive; that when St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 198 D.P. Sharma noticed that it was in a pen drive he directed his PSO to get the CD of the same prepared which he did and thereafter on the same day he handed over the CD to the police which CD was seized by the police.
It has been observed that the postmortem report of the deceased Kishan Lal Manchanda establishes that he had died a natural death due to shock consequent upon blockage of coronaries and the injuries present on his body were caused by blunt force/ surface impact. The medical evidence on record has been found to be compatible to the testimony of Smt. Neelam Manchanda that she had taken her father in law to Pentamed Hospital where he was declared brought dead. No doubt the deceased had suffered shock consequent upon blockage of coronaries, yet it is writ large that for an old man aged about 75 years having a history of coronary blockage, any use of force on chest or shock is likely to be fatal and this fact was well within the knowledge of the assailants. The medical evidence hence confirmed the version of the prosecution and the knowledge so attributed to the accused as contemplated under Section 299 Indian Penal Code.
Further, it has been observed by this Court that the Electronic Evidence in the form of Call Detail Records connects the accused Kali Charan and Amit @ Mangroo with the offence and lends credence to the version of the eye witnesses and confirms the CCTV visuals which conclusively connects the accused Kali Charan, Sarvesh Kumar, Chander Bhan and Amit @ Mangroo with the alleged offence. St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 199
This being the background, this court has held that the prosecution has been able to successfully establish the allegations against the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana, Amit @ Mangroo and Bimlesh along with PO accused Anil of having hatched a criminal conspiracy to commit dacoity in the house of Sh. K.L. Manchanda at House No. A176, Gujranwala Town, PartI, Delhi for which the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana, Amit @ Mangroo and Bimlesh have been held guilty of the offence under Section 120B read with 395 Indian Penal Code.
Further, it has been observed that the prosecution has also been able to prove and substantiate the allegations against the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana and Amit @ Mangroo along with PO accused Anil of having committed dacoity at the house of Sh. K.L. Manchanda at House No. A176, Gujranwala Town, PartI, Delhi for which the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana and Amit @ Mangroo have been held guilty of the offence under Section 395 Indian Penal Code.
Further, in so far as the accused Chander Bhan @ Kana is concerned, this Court observed that the prosecution has been able to successfully establish that while committing dacoity it was the accused Chander Bhan who used a knife, a deadly weapon, which he had first shown to the victims and particularly to the deceased Kishan Lal St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 200 Manchanda on whose face he had moved the knife while sitting on his chest and directing the blows on him and then to Sh. D.P. Sharma while running away when he showed him this knife by directing a slash blow towards Sh. D.P. Sharma when D.P. Sharma tried to stop him. Therefore the accused Chander Bhan has been held guilty of the offence under Section 397 Indian Penal Code.
Further, in so far as the charge under Section 412 Indian Penal Code against the accused Amit @ Mangroo is concerned, this Court observed that it has been established that on 12.10.2012 pursuant to his disclosure statement the accused Amit @ Mangroo got recovered two gold karas from his residence i.e. C178, Lalbag Jhuggi, Azadpur, Delhi which were seized and the victim Smt. Kamla Devi has correctly identified the said karas in the Court. Therefore the accused Amit @ Mangroo has been held guilty of the offence under Section 412 Indian Penal Code. The prosecution having failed to prove and establish the use of the deadly weapon, he is hereby acquitted of the charges under Sections 397/398 Indian Penal Code.
In so far as the aspect of causing death of Sh. K.L. Manchanda is concerned, this Court observed that the prosecution has been able to prove and substantiate the allegations against the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana and Amit @ Mangroo along with PO accused Anil of doing an act in furtherance of St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 201 their common intention with the knowledge that it is likely to cause death of Kishan Lal Manchanda for which the accused Kali Charan, Sarvesh Kumar, Chander Bhan @ Kana and Amit @ Mangroo have been held guilty of the offence under Section 304 PartII read with Section 34 Indian Penal Code. All the above accused have been accordingly convicted.
However, in so far as the accused Ram Kumar is concerned, this Court observed that neither the CD containing the CCTV Footage confirms the presence of accused Ram Kumar with any of the accused nor has anybody identified him as one of the assailants nor his presence at the spot stands confirmed nor there is any other evidence to show that it was the accused Ram Kumar who passed on the information to the accused Kali Charan. Under these circumstances, Benefit of Doubt has been given to the accused Ram Kumar who has been acquitted of the charges invoked against him (i.e. under Section 120B read with 395 and 304 Indian Penal Code).
Heard arguments on the point of sentence qua the convicts Kali Charan, Sarvesh Kumar, Amit @ Mangroo, Chander Bhan and Bimlesh. The accused Kali Charan is stated to be aged about 48 years having a family comprising of aged parents, wife, three sons and one daughter. He is totally illiterate and is a fruit seller by profession.
The accused Sarvesh Kumar is stated to be aged about 33 St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 202 years having a family comprising of aged parents, wife, one younger brother and married sister. He is 7th class pass and was putting a rehri of colddrinks.
The accused Chander Bhan is stated to be aged about 30 years having a family comprising of aged parents, one elder & one younger brother and one younger sister. He is 8th class pass and is a vegetable seller by profession.
The accused Bimlesh is stated to be aged about 30 years having a family comprising of husband, two sons and one daughter. She is totally illiterate and is a domestic help by profession.
The accused Amit Mangru is stated to be aged about 26 years having a family comprising of aged father, four younger brothers, one son and one daughter. He is 7th class pass and is a fruit seller by profession.
Ld. Counsels for the convicts have vehemently argued that the convicts Sarvesh Kumar, Kali Charan and Bimlesh are first time offenders and have no previous involvements. It is also pointed out that the mother of the convict Sarvesh Kumar is a cancer patient and the Kali Charan is the sole bread earner of his family. It is further submitted that the convict Bimlesh has two minor sons and one daughter. It is requested that a lenient view be taken against them.
On the other hand the Ld. Addl. Public Prosecutor has prayed for a stern view against the convicts. He submits that though the convicts St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 203 Sarvesh Kumar, Kali Charan and Bimlesh are first time offenders yet the convict Chander Bhan and Amit @ Mangroo are involved in other cases. He has pointed out that the convict Chander Bhan is involved in five other cases details of which are as under:
1. FIR No. 167/2012, PS Model Town, under Section 25/54/59 of Arms Act, which is pending trial.
2. FIR No. 96/2010, PS Model Town, under Section 395/ 353/ 386 IPC wherein he has been convicted.
3. FIR No. 49/2007, PS Swaroop Nagar, under Section 25/54/59 of Arms Act wherein he has been acquitted.
4. FIR No. 644/2007, PS Jahangir Puri, under Section 392/397 IPC wherein he has been Convicted.
5. FIR No. 856/2003, PS South Rohini, under Section 25/54/59 of Arms Act.
He has also pointed out that the convict Amit @ Mangroo is involved in Four other cases details of which are as under:
1. FIR No. 326/2011, PS Adarsh Nagar, under Section 452/ 307/ 308/ 323/ 506/ 427/34 IPC which is pending trial.
2. FIR No. 323/2009, PS Model Town, under Section 392/ 395/ 397 IPC wherein he has been convicted.
3. FIR No. 88/2009, PS Narela, under Section 457/ 380/ 411/34 IPC which is pending trial.
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 204
4. FIR No.65/2009, PS Samai Pur Badli, under Section 457/ 380/ 411/ 34 IPC which is pending trial.
He has prayed that keeping in view the criminal involvements of the above convicts, maximum punishment be awarded to them.
I have considered the rival contentions. I may observe that in the recent past Delhi has experienced a spurt and rise in the incidents of snatching, robbery, dacoity, murder and other kinds of crime. There has been a 43.6 percent increase in Delhi's crime graph in 2013 over 2012. A staggering 73,958 cases were registered under the Indian Penal Code in 2013 up from 51,479 in the previous year.
The deteriorating law and order problem of the City is a matter of serious concern and immediate steps are required to be taken at all levels for ensuring security and safety of the citizens. Instances of young persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, are also on rise. Criminals are unhesitatingly and indiscriminately using dangerous arms/ weapons on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system. The courts are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges. The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 205 and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is desirability to keep the offender out of circulation.
There was no previous animosity between the convicts and the victims and the intent was solely monetary gain. Undue sympathy, under these circumstances, to impose inadequate sentence upon the convicts who are habitual and repeat offenders would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463).
In the present case the victims were the soft/ vulnerable targets since the victim Sh. K.L. Manchanda was an old man aged about 75 years and his wife Smt. Kamla Devi was paralytic waist down and was totally dependent upon attendant. The manner in which the offence has been committed in broad daylight shows that the convicts have no respect for law and legal process of this Country and they have an impression that perhaps the Legal System of this Country is incompetent to hold them St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 206 back for their illegal activities. No doubt, the Indian Legal System particularly the Criminal Justice Mechanism has certain practical failings which is highly disturbing and to some extent appears to have shaken the faith of the people resulting into emboldening of the wrong doers but still I hold that things are not as bad as they may appear.
Coming first to the convict Bimlesh. She is a lady aged about 30 years having two minor children. She has not actively participated in the actual crime and has been held guilty only for hatching a criminal conspiracy to commit dacoity. Therefore, she is sentenced to Rigorous Imprisonment for a period of Four (4) Years and fine to the tune of Rs. 2,000/ for the offence under Section 120B r/w 395 IPC. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of Seven Days.
Coming next to the convict Kali Charan. He was the fruit seller in the area and was known to the victims even prior to the incident. It was the convict Kali Charan who facilitated the entry of the other convicts in the house of the victims. He deserves no leniency and hence I award following sentences to the convict Kali Charan:
1. For the offence under Section 120B r/w 395 IPC the convict shall undergo Rigorous Imprisonment for a period of Four (4) years and fine to the tune of Rs.2,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 207 Seven Days.
2. For the offence under Section 395 IPC the convict shall undergo Rigorous Imprisonment for Life and fine to the tune of Rs.2,000/.
In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of Seven Days.
3. For the offence under Section 304 Part II IPC the convict shall undergo Rigorous Imprisonment for a period of Ten (10) Years and fine to the tune of Rs.10,000/ (Rs. Ten Thousand). In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month.
All the above sentences shall run concurrently.
In so far as the convict Sarvesh Kumar is concerned, he remained at the door of the house of the victims and kept a watch there and on noticing by Sh. D.P. Sharma, he went inside and altered the assailants who were inside the room. He deserves no leniency and hence I award following sentences to the convict Sarvesh Kumar:
1. For the offence under Section 120B r/w 395 IPC the convict shall undergo Rigorous Imprisonment for a period of Four (4) years and fine to the tune of Rs.2,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of Seven Days.
2. For the offence under Section 395 IPC the convict shall undergo St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 208 Rigorous Imprisonment for Life and fine to the tune of Rs.2,000/.
In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of Seven Days.
3. For the offence under Section 304 Part II IPC the convict shall undergo Rigorous Imprisonment for a period of Ten (10) Years and fine to the tune of Rs.10,000/ (Rs. Ten Thousand). In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month.
All the above sentences shall run concurrently.
Coming next to the convict Chander Bhan @ Kana. He has previous criminal involvements in Five other cases and has been convicted in two cases. He was the one who was armed with a deadly weapon i.e. knife and used the same while committing the offence. It is he who climbed over the body of the deceased and gave blows to him on his chest and used force on Sh. K.L. Manchanda a senior citizen aged about 75 years suffering from multiple ailments. Therefore, he deserves no leniency and I award following sentences to him:
1. For the offence under Section 120B r/w 395 IPC the convict shall undergo Rigorous Imprisonment for a period of Four (4) years and fine to the tune of Rs.2,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of Seven Days.
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 209
2. For the offence under Section 395 IPC the convict shall undergo Rigorous Imprisonment for Life and fine to the tune of Rs.2,000/.
In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of Seven Days.
3. For the offence under Section 397 IPC the convict shall undergo Rigorous Imprisonment for a period of Ten (10) Years.
4. For the offence under Section 304 Part II IPC the convict shall undergo Rigorous Imprisonment for a period of Ten (10) Years and fine to the tune of Rs.10,000/ (Rs. Ten Thousand). In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month.
All the above sentences shall run concurrently.
In so far as the convict Amit @ Mangru is concerned, he was in close contact with the convict Kali Charan during the commission of offence and remained at the door of the house of the victims to keep a vigil/ watch. He is involved in Four other criminal cases and in fact has already been convicted in another case of armed robbery. Therefore, I hold that he deserves no leniency and I award following sentences to him:
1. For the offence under Section 120B r/w 395 IPC the convict shall undergo Rigorous Imprisonment for a period of Four (4) years and fine to the tune of Rs.2,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 210 Seven Days.
2. For the offence under Section 395 IPC the convict shall undergo Rigorous Imprisonment for Life and fine to the tune of Rs.2,000/.
In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of Seven Days.
3. For the offence under Section 304 Part II IPC the convict shall undergo Rigorous Imprisonment for a period of Ten (10) Years and fine to the tune of Rs.10,000/ (Rs. Ten Thousand). In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month.
4. For the offence under Section 412 IPC the convict shall undergo Rigorous Imprisonment for a period of Four (4) Years and fine to the tune of Rs.2,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of Seven Days.
All the above sentences shall run concurrently.
Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period already undergone by them, as per rules.
In so far as the convicts Chander Bhan and Amit @ Mangru are concerned this Court has been informed about their convicts in other cases. It is clarified that the sentences in the present St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 211 FIR shall run CONSECUTIVELY to the sentences awarded to these convicts in other cases.
The convicts have been informed that they have a right to prefer an appeal against the judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to the convicts free of costs and one copy of order on sentence be attached with their jail warrants.
File be consigned to Record Room to be taken up on the arrest of accused Anil who is Proclaimed Offender.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 16.04.2014 ASJ (NW)II: ROHINI
St. Vs. Kali Charan Etc., FIR No. 138/12, PS Model Town Page No. 212