Delhi District Court
State vs . Rizwan Etc. // Fir No. 898/06 on 22 March, 2011
1
THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - I,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No. 64/2009
FIR No. 898/2006
PS : SULTAN PURI
U/s. 302/452/34 IPC
STATE
VERSUS
1. RIZWAN S/O ABDUL HAMEED BAHADUR
R/O. E-2/156, PREM NAGAR-III, DELHI.
2. JANAK RAJ @ LAKHI S/O HEERA LAL SHARMA
C-11,12, RAJDHANI PARK, NANGLOI
DELHI.
Date of Institution : 21.09.2006
Date of receipt of case in this court : 26.11.2008
Arguments heard On : 07.03.2011
Order Announced On : 19.03.2011
Order on Sentence Announced on : 22.03.2011
SHRI P.K. VERMA, APP FOR THE STATE.
SHRI RAM NIWAS, COUNSEL FOR CONVICT RIZWAN.
State Vs. Rizwan etc. // FIR No. 898/06
PS : Sultan Puri // u/s 302/452/34 IPC
2
22.03.2011
Present : Sh. P. K. Verma, APP for the State.
Convict in JC with his counsel Sh. Ram Niwas.
1. It is submitted by counsel for convict that convict
Rizwan is aged about 40 years and is having elder and ailing
mother, illiterate wife, two small children and one mentally
retarded younger brother to look after. His mother is stated to
be mentally disturbed after the death of her husband. It is
further submitted that convict is in JC for the last five years.
Convict Rizwan is the sole bread winner of the family and is
having only one kidney. His family will be on the verge of
starvation in his absence. Counsel for convict requests that
lenient view may be taken against the convict.
2. On the other hand, Sh. P.K. Verma, Ld. APP for the
State states that the convict planned the incident, in which,
he murdered a small child of 2½ of age in front of his mother.
Ld. APP has vehemently submitted that convict be awarded
maximum punishment.
3. Security of persons and property of the people is a
paramount function of the State which could be achieved
through machinery of criminal law. Protection of society and
State Vs. Rizwan etc. // FIR No. 898/06
PS : Sultan Puri // u/s 302/452/34 IPC
3
stamping out criminal proclivity must be the object of law
which must be achieved by imposing appropriate sentence.
The facts and given circumstances in each case, the nature of
crime, the manner in which it was planned and committed,
the motive for commission of the crime, the conduct of the
convicts. The nature of weapons used and all other attending
circumstances are relevant facts which would enter into the
area of consideration. Undue sympathy to imposed
inadequate sentence 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 every court to award
proper sentence having regard to the nature of the offence
and the manner in which it was executed or committed etc.
4. It was observed in case of Dhananjoy Chatterjee @
Dhana Vs. State of West Bengal, 1995 AIR SCW 510 as under
:-
"Of course, it is not possible to lay down any cut
and dry formula relating to imposition of
sentence but the object of sentencing should be
to see that the crime does not go unpunished
and the victim of crime as also the society has
the satisfaction that justice has been done to it
State Vs. Rizwan etc. // FIR No. 898/06
PS : Sultan Puri // u/s 302/452/34 IPC
4
in imposing sentences, in the absence of specific
legislation. Judges must consider variety of
factors and after considering all those factors
and taking an overall view of the situation
impose sentence which they consider to be an
appropriate one. Aggravating factors cannot be
ignored and similarity mitigating circumstances
have also to be taken into consideration.
In our opinion, the measure of punishment in a
given case must depend upon the atrocity of the
crime; the conduct of the criminal and the
defenceless and unprotected state of the victim.
Imposition of appropriate punishment is the
manner in which the courts respond to the
society's cry for justice against the criminals.
Justice demands that courts should impose
punishment fitting to the crime so that the
courts reflects public abhorrence of the crime.
The courts must not only keep in view of the
rights of criminal but also the rights of the victim
of crime and the society at large while
considering imposition of appropriate
punishment."
5. It was also observed in case of Jashubha
Bharatsing Gohil Vs. State of Gujrat, (1994) 4 SCC 353
that the protectiion of the society and deterring the criminal is
avowed object of law and that is required to be achieved by
imposing appropriate sentence.
6. It was held in the case of Siddarama & others
Vs. State of Karnataka, (2007) 1 SCC (Cri) 72 :-
State Vs. Rizwan etc. // FIR No. 898/06
PS : Sultan Puri // u/s 302/452/34 IPC
5
"the object should be to protect the society and
to deter the criminal in achieving the avowed
object to law by imposing appropriate sentence.
It is expected that the courts would operate the
sentencing system so as to impose such
sentence which reflects the conscience of the
society and the sentencing process has to be
stern where it should be.
Imposition of sentencing without considering its
effect on the social order in many cases may be
in reality a futile exercise. The social impact of
the crime e.g. where it relates to offences
relating to narcotic drugs or psychotropic
substances which have great impact not only on
the health fabric but also on the social order and
public interest, cannot be lost sight of and per se
require exemplary treatment. Any liberal
attitude by imposing meagre sentences or taking
too sympathetic view merely on account of lapse
of time or personal inconveniences in respect of
such offences will be result wise
counterproductive in the long run and against
societal interest which needs to be cared for an
strengthened by a string of deterrence inbuilt in
the sentencing system."
7. It was observed in the case of Shivaji @ Dadya
Shankar Alhat Vs. State of Maharashtra, 2008 (4) RCR
(Criminal) 202 as under :-
"Proportions between crime and punishment is a
goal respected in principles, and in spite of
errant notions, it remains a strong influence in
the determination of sentences. The practice of
punishing all serious crimes with equal severity
State Vs. Rizwan etc. // FIR No. 898/06
PS : Sultan Puri // u/s 302/452/34 IPC
6
is now unknown in civilized societies, but such a
radical departure from the principle of
proportionality has disappeared from the law
only in recent times. Even now for a single grave
infraction drastic sentences are imposed.
Anything less than a penalty of greatest severity
for any serious crime is unwarranted and
unwise. But in fact, quite apart from those
considerations that make punishment
disproportionate punishment has some very
undesirable practical consequences."
8. In case State of Punjab Vs. Prem Sagar and
Others (2008) 7 SCC 550 it was observed that the Indian
Judicial System has not been able to develop legal principles
as regards sentencing. It was further observed that whether
the court while awarding sentence would take recourse to the
principle of deterrence or reform or invoke the doctrine of
proportioonality would depend upon the facts and
circumstances of each case and while doing so nature of
offence said to have been committed by the accused plays an
important role. A wide discretion is conferred on the court but
said discretion must exercise judicially while sentencing an
accused. It would depend upon the circumstances in which
the crime has been committed and the mental state and the
age of the accused is also relevant. It was observed as under :
State Vs. Rizwan etc. // FIR No. 898/06
PS : Sultan Puri // u/s 302/452/34 IPC
7
"In our judicial system, we have not been able to
develop legal principles as regards sentencing.
The superior courts except making observations
with regard to the purport and object for which
punishment is imposed upon an offender, have
not issued any guidelines. Other developed
countried have done so.
Whether the court while awarding sentence
would take recourse to the principle of
deterrence or reform or invoke the doctrine of
proportionality would no doubt depend upon the
facts and circumstances of each case. While
doing so, however, the nature of the offence
said to have been committed by the accused
plays an important role. The offences which
affect public health must be dealt with severely.
For the said purpose, the courts must notice the
object for enacting Article-47 of the Constitution
of India.
A sentence is a judgment on conviction of a
crime. It is resorted to after a person is
convicted of the offence. It is the ultimate goal
of any justice delivery system. Parliament,
however, in providing for a hearing a sentence,
as would appear from sub-section (2) of Section
235, sub-section (2) of Section 248, Section 325
and also Section 360 and 361 of the Code of
Criminal procedure, has laid down certain
principles. The said provisions lay down the
principle that the court in awarding the sentence
must take into consideration a large number of
relevant factors; sociological backdrop of the
accused being one of them. Although a wide
discretion has been conferred on the court but
said discretion must exercise judicially. It would
depend upon the circumstances in which the
crime has been committed and the mental state.
Age of the accused is also relevant."
State Vs. Rizwan etc. // FIR No. 898/06
PS : Sultan Puri // u/s 302/452/34 IPC
8
9. The punishment provided under Section 302 IPC is
death or life imprisonment as a penalty for murder. The Indian
Penal Code has under gone multi facet changes for the last
three decades which indicates that the Parliament has taken
note of contemporary criminological thought and movement.
The Indian Penal Code reflects a definite swing towards life
imprisonment. Death sentence is ordinarily ruled out and can
only be imposed for "special reasons". As provided in Section
354 (3) CrPC. It indicates that reformation and rehabilitation
of offenders and no deterrence, are now among the foremost
objects of the administration of criminal justice in the country.
Section 354(3) CrPC. is a part emerging picture of acceptance
by the legislature of the new trends in criminology. The
personality of an offender revealed by his age, characte4r,
antecedents and other circumstances and the tractability of
the offender to reform must necessarily play the most
prominent role in determining the sentence to be awarded. A
judge has to balance the personality of the offender with the
circumstances, situations and the reactions and choose the
State Vs. Rizwan etc. // FIR No. 898/06
PS : Sultan Puri // u/s 302/452/34 IPC
9
appropriate sentence to be imposed. The former rule that the
normal punishment for murder is death is no longer operative
and it is now within the discretion of the court to pass either
the sentence prescribed in Section 302 IPC.
10. In case Bachan Singh Vs. State of Punjab, AIR
1980 SC 899 it was observed that a real and abiding
concern for the dignity of human life postulates resistance to
taking a life through law's instrumentality. The ought not to be
done save in the rarest of rare cases when the alternative
option is unquestionably foreclosed.
11. In case Machhi Singh Vs. State of Punjab, AIR
1983, SC 957 the guidelines are laid down which are to be
kept in view, considering the question whether the case
belongs to the rarest of rare category. It was observed that
the following question may be asked and answered as a test
to determine the 'rarest of rare' case in which death sentence
can be inflicted:-
1. Is there something uncommon
about the crime which renders
sentence of imprisonment for
life inadequate and calls for
death sentence?
2. Are the circumstances of the
crime such that there is no
alternative but to impose death
State Vs. Rizwan etc. // FIR No. 898/06
PS : Sultan Puri // u/s 302/452/34 IPC
10
sentence even after according
maximum weightage to the
mitigating circumstances which
speak in favour of the
offender?
12. In the case of Machhi Singh (Supra) the
guidelines were culled out which are to be applied to the facts
of each individual case where the question of imposition of
death sentence arises. The following preposition emerges
from the Bachan Singh's case :-
i. The extreme penalty of death need not
be inflicted except in gravest cases of
extreme culpability.
ii. Before opting for the death penalty the
circumstances of the 'offender' also
required to be taken into consideration
along with the circumstances of the
'crime'.
iii. Life imprisonment is the rule and death
sentence is an exception. Death
sentence must be imposed only when
life imprisonment appears to be an
altogether inadequate punishment
having regard to the relevant
circumstances of the crime, and
provided, and only provided, the option
to impose sentence of imprisonment for
life cannot be conscientiously exercised
having regard to the nature and
circumstances of the crime and all the
relevant circumstances.
iv. A balance sheet of aggravating and
mitigating circumstances has to be
drawn up and in doing so the mitigating
circumstances have to be accorded full
State Vs. Rizwan etc. // FIR No. 898/06
PS : Sultan Puri // u/s 302/452/34 IPC
11
weightage and just balance has to be
struck between the aggravating and the
mitigating circumstances before the
option is exercised.
13. In case Bablu @ Mubarak Hussain Vs. State of
Rajasthan, AIR 2007 SC 697 the Supreme Court observed
as under :-
"In rarest of rare cases when collective conscience
of community is so shocked that it will except the
holders of the judicial power center to inflict death
penalty irrespective of their personal opinion as
regards desirability or otherwise of retaining death
penalty, death sentence can be awarded. The
community may entertain such sentiment in the
following circumstances :-
i. When the murder is committed, in an
extremely brutal, grotesque, diabolical,
revolting and dastardly manner so as to
arouse intense and extreme indignation of
the community.
ii. When the murder is committed for a
motive which evinces total depravity and
meanness; e.g murder by hired assassin
for money or reward or a cold-blooded
murder for gains of a person vis-a-vis
whom the murderer is in a dominating
position or in a position of trust, or murder
is committed in a course for betrayal of
the motherland.
iii. When murder of a member of a Scheduled
Caste or minority community etc., is
committed not for personal reasons but in
circumstances which arouse social wrath,
of in cases of 'bride burning' or 'dowry
State Vs. Rizwan etc. // FIR No. 898/06
PS : Sultan Puri // u/s 302/452/34 IPC
12
deaths' or when murder is committed in
order to remarry for the sake of extracting
dowry once again or to marry another
woman on account of infatuation.
iv. When the crime is enormous in proportion.
For instance when multiple murders, say
of all or almost all the members of a family
or a large number of persons of a
particular caste, community or locality,
are committed.
v. When the victim of murder is an innocent
child, or helpless woman or old or infirm
person or a person vis-a-vis whom the
murder is in a dominating position or a
public figure generally loved and
respected by the community."
14. On the basis of above observations and discussion
in the present facts and circumstances of the case, the
present case does not fall within the category of "rarest of the
rare category", as such, the death penalty cannot be
awarded to both the convicts. The latest decision of the
Hon'ble Supreme Court of India pertaining to imposition of
sentence in the case of Santosh Kumar Satishbhushan
Bariya vs. State of Maharashtra, decided on
13.05.2009. Another important facet pertaining to
sentencing the procedure being considered. Imprisonment for
life as a penalty entails that the convicts must remain in the
State Vs. Rizwan etc. // FIR No. 898/06
PS : Sultan Puri // u/s 302/452/34 IPC
13
imprisonment till his life i.e would never to set free from the
jail. However, the code of Criminal Procedure provides power
to executive under Section 433 CrPC which subject to the
restrictions provided by Section 433 CrPC. According to which
a convict sentenced to imprisonment for life for whose death
sentence has been commuted to imprisonment for life cannot
be released for prison unless served at least 14 years of
imprisonment. The Hon'ble Supreme Court of India in the case
of Swami Shraddhanand vs. State Karnataka 2008 (13)
SCC 767 imposed upon State the condition that accused
would not be entitled to any commutation or premature
release.
15. In this case, convict in most brutal manner killed a
child namely Roshan aged about 2½ years in front of his
mother eye witness PW1 Smt. Madhu Devi. Hence I sentence
convict Rizwan to undergo Rigorous Imprisonment for
life along with fine of Rs. 20000/- (twenty thousand), in
default of payment of fine, the convict shall further
undergo simple imprisonment for a period of 03 year
(three years) under Section 302/34 IPC.
State Vs. Rizwan etc. // FIR No. 898/06
PS : Sultan Puri // u/s 302/452/34 IPC
14
16. Convict Rizwan shall also undergo Rigorous
Imprisonment for a period of 07 years (seven years)
along with fine of Rs. 5000/- (five thousand), in default
of payment of fine, the convict shall further undergo
simple imprisonment for a period of 01 year (one year)
under Section 452/34 IPC.
17. All these sentences awarded to all three
convicts shall run concurrently. Benefit of section 428
Cr.P.C. Shall be given to the convicts.
18. It is made clear that in view of the law laid down by
Hon'ble Supreme Court of India in the case of Swami
Shraddhanand (Supra) the appropriate sentence of
imprisonment of life is that the convict namely Rizwan have to
undergo actual sentence of 30 years and grant of remission
shall not be considered till the actual sentence of 30 years.
Copy of judgment and that of order on sentence be provided
to the convict/accused, free of cost, today itself. Sessions
file be consigned to record room.
Announced in the open court (SANJAY KUMAR)
today i.e. 22.03.2011 ASJ-01 (NW),ROHINI
COURTS : DELHI
State Vs. Rizwan etc. // FIR No. 898/06
PS : Sultan Puri // u/s 302/452/34 IPC
15
THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - I,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No. 64/2009
FIR No. 898/2006
PS : SULTAN PURI
U/s. 302/452/34 IPC
STATE
VERSUS
1. RIZWAN S/O ABDUL HAMEED BAHADUR
R/O. E-2/156, PREM NAGAR-III, DELHI.
2. JANAK RAJ @ LAKHI S/O HEERA LAL SHARMA
C-11,12, RAJDHANI PARK, NANGLOI
DELHI.
Date of Institution : 21.09.2006
Date of receipt of case in this court : 26.11.2008
Arguments heard On : 07.03.2011
Order Announced On : 19.03.2011
SHRI P.K. VERMA, APP FOR THE STATE.
SHRI RAM NIWAS & SHRI JAI NARAIN, COUNSEL FOR
ACCUSED RIZWAN.
SH. ANIL SHARMA, COUNSEL FOR ACCUSED JANAK RAJ.
State Vs. Rizwan etc. // FIR No. 898/06
PS : Sultan Puri // u/s 302/452/34 IPC
16
JUDGMENT
1. The factual matrix of the case is that on 11.06.06 at 6.05 am, DD no. 5 was recorded by duty officer as per PCR information in respect of the fact that at Block E-2, Prem Nagar-III, Shani Bazar Road, Near Subhash STD 2-2½ year old son of Smt. Madhu Devi had been killed by her neighbour. On this information ASI Krishan Kumar along with staff reached the place of occurrence where Smt. Madhu Devi and her husband Ganesh Shah were present and dead body of their 2½ year old son Roshan was lying on the floor. Smt. Madhu told ASI Krishan Kumar that her neighbour accused Rizwan along with his associate has killed her son. On receipt of information SHO PS Sultan Puri and Insp. Meer Singh, Addl. SHO also reached the place of occurrence. Crime team was called at the spot and dead body of deceased Roshan was sent for post mortem through ASI Krishan Kumar to mortuary SGM hospital. Thereafter statement of Smt. Madhu Devi was recorded by Insp. Meer Singh.
2. In her statement to the police Smt. Madhu Devi told the police that she was residing at the above stated address and her husband used to work in a plastic factory at State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 17 Mundka. On 11.06.06 at about 2.45 am his elder son Deepak aged 4 years woke up to have some water. His younger son Roshan (deceased) also woke up with him and asked for some water. Deepak gave water to Roshan and said that he wanted to urinate. On this she told Deepak to open the bolt of the door and urinate near the tap. After some time Deepak came back running and he was frightened. She came outside with Roshan in her lap and saw that in the aangan two persons were standing and one of them was accused Rizwan who was their neighbour and they had a quarrel with him on the point of money transactions. The other person who was with accused Rizwan gagged her mouth and accused Rizwan went inside the room and after some time when he came back, he bolted the door of the room from outside leaving her husband inside the room. Thereafter accused Rizwan snatched her son Roshan from her and started strangulating him and when she tried to save her son, the associate of Rizwan gave her slaps. Thereafter accused Rizwan had put Roshan on the ground and started crushing his neck from his legs. Associate of accused Rizwan lifted Roshan from the ground and then again threw him on the floor and they both ran away from State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 18 there. Thereafter she started crying and raised alarm and made her husband awake and called the police from the house of her relatives in the neighbourhood.
3. On the statement of Madhu Devi, Insp. Meer Singh made endorsement and got the present case registered. During investigation scaled site plan was got prepared through draftsman. On 11.06.06 ASI Krishan Kumar got postmortem on the body of deceased Roshan conducted and the doctor in the postmortem report opined the cause of death as asphyxia as a result of pressure over neck structure subsequent to throttling. On 12.06.06 complainant made a statement that the other person who was with accused Rizwan in commission of offence on 10-11.06.06 was Janak Raj @ Lekhi, who is having grocery shop at D Block, Prem Nagar. She further stated that she had not disclosed the name of accused Janak Raj @ Lekhi earlier as he had threatened her not to disclose his name otherwise he would kill her second son also. She also stated that as she had lodged a complaint against accused Rizwan regarding theft at her house but later on with the intervention of neighbours the matter was settled.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 19 She further stated that accused Rizwan and Janak Raj @ Lekhi started threatening her that she had defamed accused Rizwan and they will take revenge for the same and they became enmical towards her. Due to this enmity, accused Rizwan and Janak Raj @ Lekhi committed murder of her son Roshan. On 15.06.06 accused Rizwan and Janak Raj @ Lekhi were arrested and their disclosure statements were recorded. Place of incident was got photographed. Viscera and blood gauge which were preserved by the doctor during postmortem were sent to FSL, Rohini for analysis. Statements of witnesses were recorded and thereafter challan was filed against accused persons for trial of offences punishable u/s 302/452/34 IPC.
4. Ld. MM after compliance of section 207 Cr.PC committed the case to the court of Sessions.
5. My learned Predecessor Sh. Sanjay Kumar Aggarwal, ld. ASJ vide order dated 05.03.07 framed the charge against both the accused persons for trial of offence U/s 302/452/34 IPC. The accused pleaded not guilty and claimed trial.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 20
6. Prosecution in support of its case examined following witnesses :-
Public witnesses :-
1. PW1 Madhu Devi : eye witness & Complainant
2. PW2 Sh. Sunder Giri : witness to compromise Ex.
PW1/D.
3. PW3 Chandrika Shah : call regarding murder was made from his shop
4. PW4 Ganesh Shah : father of deceased and husband of complainant
5. PW6 Budhi Ram : making call by PW1 Madhu Devi
6. PW7 Tribhuwan Kr. : Disclosing of murder by accused persons
7. PW8 Ranbeer Singh : witness to compromise Ex.
PW1/D.
8. PW10 Rajpal : Signatory in compromise Ex.
PW1/D. Medical Witnesses :-
1. PW5 Dr. Manoj Dhingra : conducted post mortem.
2. PW21 Sh Rajender Kumar, Assistant Director (Biology), FSL, Rohini.
Police Witnesses :-
1. PW9 ASI Mahanand : registered FIR No. 898/06.
2. PW11 SI Matadin : Incharge, Mobile Crime Team
3. PW12 Ct. Dalbir Singh : Photographer, Mobile Crime Team State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 21
4. PW13 SI Manohar Lal : Draftsman
5. PW14 HC Rajpal Singh : Filled up PCR form Ex. PW14/A.
6. PW15 SI Dinesh Dahiya : Witness of arrest of both accused
7. PW16 ASI Krishan Kumar: First Investigation Officer
8. PW17 HC Anil Kumar : Removed dead body to SGM hospital motruary for postmortem
9. PW18 Ct. Rati Bhan : Recorded DD No. 5 Ex. PW18/A.
10.PW19 HC Balraj : Deposited exhibits in FSL.
11.PW20 Ct. Gurmeet : Filled up PCR form Ex. Pw20/B (Copy)
12.PW22 Ct. Santosh Kr. : Munshi of MHC(M) PS Sultan Puri
13. PW23 Ct. Surender Kr. : Delivered copy of FIR to SR.
Officers.
14.PW24 Insp. Meer Singh : Investigation Officer
7. As per statement of Ld. APP Sh. P.K. Verma prosecution evidence was closed on 01.02.2011.
8. Statement of both accused persons Rizwan and Janak Raj @ Lekhi U/s 313 Cr.PC were recorded. They both wished not to examine any witness in their defence.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 22
9. I have heard the Ld. APP for the State and Sh. Jai Narain, counsel for accused Rizwan and Sh. Anil Sharma, counsel for accused Janak Raj @ Lekhi and have gone through the record.
Motive :
10. The prosecution has examined PW1 Madhu Devi, mother of deceased child. She has testified that on 5 th or 6th of that very month when the incident took place, accused Rizwan had committed theft of some jewellery and Rs. 3800/- in her house and she had reported the matter to the PCR. Thereafter PCR took accused Rizwan and she also went police post Prem Nagar-III where accused Rizwan confessed his guilt and returned her belongings. She has also deposed that with the intervention of respectables she entered into written compromise Ex. PW1/D with accused Rizwan and she put her thumb impression on Ex. PW1/D. Some other persons had also signed Ex. PW1/D. She further deposed that despite compromise, accused Rizwan threatened her that since he was insulted by her, he would avenge and go to jail only after committing murder of someone and after four days he State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 23 committed the murder of her son. She has stated that she had not taken the threat of accused Rizwan seriously but she had disclosed this threat to Vijender Giri who assured her not to worry and accused Rizwan was not going to do anything wrong.
11. She has also deposed that on earlier occasion i.e. prior to incident of 5/6 days of same month in which the incident took place, accused Rizwan had committed theft in her house. In that incident some jewellery and amount of Rs. 3800/- which was lying were taken away by him. She reported the matter to the police control room. PCR van arrived and took accused Rizwan. Thereafter she also went to the police post Prem Nagar III. Accused Rizwan confessed his guilt and returned her belongings with the intervention of respectables. She further deposed that she entered into a compromise with accused Rizwan and it was written. She proved the compromise Ex. PW1/D bearing her thumb impressing at point A and signatures of accused Rizwan as well as some other persons.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 24
12. She specifically deposed that after the compromise, accused Rizwan started threatening her that she had insulted him and that he would avenge her insult and go to jail after committing the murder of someone ("tune meri beizzati ki hai samaj mein, main iska badla loonga. Aise to main jail gaya nahin lekin murder karke jaonga") and after four days accused Rizwan committed murder of her son Roshan. She clarified in her examination in chief that she had not taken the threat of accused Rizwan seriously but disclosed the same to one Vijender Giri who assured her not to worry and accused Rizwan is not going to do anything wrong. PW2 Sunder Giri, who is the neighbour of PW1 Madhu Devi as well as of accused Rizwan has deposed that on 05.06.06 police persons came to him and told him that a compromise had taken place between accused Rizwan and PW1 Madhu Devi and obtained his signatures. The said compromise is Ex. PW1/D.
13. PW4 Ganesh Shah (husband of PW1) also deposed that a quarrel took place with accused Rizwan which was compromised in police post. He further corroborated the fact that accused Rizwan used to threat his wife and him to leave State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 25 the locality. In the cross examination by Ld. APP as well, he deposed that accused Rizwan had returned money to his wife under pressure and so he was having grudge against them.
14. It is pertinent to mention here that in the cross examination of PW1 Madhu Devi done by Ld. Counsel for accused Rizwan, she mentioned that a minor scuffle with accused Rizwan took place 4/5 days prior to incident. No suggestion or question was put regarding the earlier incident which took place between PW1 Madhu Devi and accused Rizwan which was compromised in the form of PW1/D. Similarly in the cross examination of PW4 Ganesh Shah by Ld. counsel for accused Rizwan, no suggestion or question was put in respect of compromise which took place at the police post after the quarrel and the threats extended by accused Rizwan to them to leave the locality.
15. Ex. PW1/D spells out that a compromise took place between PW1 Madhu Devi and accused Rizwan in which Rs. 10000/- valued articles were involved. The compromise is signed by PW1 Madhu Devi, accused Rizwan, Sunder Giri and State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 26 Rajpal and Ranbeer. Both these persons have appeared in the witness box and deposed that accused Rizwan and PW4 Ganesh Shah used to reside near their house. Accused Janak Raj is running a shop of general store. On 05.06.06 police officials came and told that a compromise had taken place between accused Rizwan and PW1 Madhu Devi in the court and on a paper their signatures were obtained. They identified their signatures on Ex. PW1/D.
16. PW8 Ranbeer Singh, who is a property dealer has not stated the exact date, month and year but deposed that two years back a quarrel had taken place between PW1 Madhu Devi and accused Rizwan. He went to police station where Sunder Giri and Rajpal were present and a compromise took place and he signed the same. He proved his signatures at point B on compromise Ex. PW1/D. In his cross examination he admitted that he went to police station on 05.06.06 for his own work. The police asked him to sign the compromise and therefore, he signed the same.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 27
17. PW10 Rajpal, another signatory of compromise Ex. PW1/D also appeared in witness box. He deposed that he was running milk dairy in the area and knew PW1 Madhu Devi and accused Rizwan being neighbours but he resiled from his earlier statement. He denied the contents regarding the compromise but admitted his signatures at point X on compromise Ex.PW1/D.
18. In view of the above observation and discussion that on 05.06.06 a quarrel took place between PW1 Madhu Devi and accused Rizwan which was settled at police post and and a written compromise Ex. PW1/D was made. Except Pw10 Rajpal, all witnesses who signed the compromise corroborated this fact. As discussed above, the Ld. Counsel for accused Rizwan has not assailed the testimony of signatories of Ex. PW1/D in this regard during cross examination. It is pertinent to mention here that another fact is corroborated regarding this incident on the basis of DD no. 6 Ex. PW24/E and DD no. 14 Ex. PW24/F. In cross examination no question was put about these two DDs to Insp. Meer Singh, who is the investigation officer of this case. Hence prosecution has been able to prove the incident dated 05.06.06.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 28
19. Now coming to the crucial material fact regarding the motive behind the present incident as deposed by PW1 Madhu Devi, as discussed herein above, is the threat extended by accused Rizwan after the incident dated 05.06.06. She also disclosed this fact to one Vigender Giri. On this crucial and important aspect, PW4 Ganesh Shah deposed that accused having grudge against them and after compromise accused used to given threats to them to leave the locality. This aspect in the examination in chief of PW1 Madhu Devi and PW4 Ganesh Shah during cross examination by counsel for accused Rizwan remained unrebutted. No suggestion or question was put to these two witnesses in respect of the threats given after the compromise Ex. PW1/D and the intentions of accused Rizwan, which developed after the compromise.
20. Ld. Counsel for accused Rizwan filed written synopsis and contended that the alleged motive is an after thought as PW1 Madhu Devi did not disclose the name of assailant for about 08 hours after the incident, although she was in touch with police since 4.19 am as per police PCR State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 29 memo Ex. PW20/B. The earlier scuffle or theft is not a motive for committing murder and Hon'ble Supreme Court of India has discarded such prosecution case in
1. (2004) 7 SCC 422; Rudrappa Ramappa Jainpur case.
2. (2003) 12 SCC 675; State of M.P. v. Kriparam case.
21. I have heard and perused the judgments put forward by Ld. defence counsels. In the case of Rudrappa (supra) it has been observed that each case must rest on its own facts. In the cited case, there was unlawful assembly with an common object of murder and causing dangerous injuries. Two groups clashed and they were having cordial relations with each and incident took place on dismental of public tap in the village. The other judgment relied upon State of M.P. (supra) there was delay in lodging of FIR as well as that two family prior to the incident were involved in a case of theft and complainant blaming the family of accused. It was found to be weak motive. Both the judgments are distinguishable in the present facts and circumstances of the case as in the present case a police complaint was made regarding the theft State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 30 of jewellary items and then a complaint was made to the police. It was compromised. The witnesses of compromise are also examined by the prosecution. In the present case accused Rizwan gave specific threats to PW1 Madhu Devi complainant. Hence both the judgments relied upon by the Ld. Defence Counsels are distinguishable.
22. The submissions made by Ld. Defence Counsels that motive is weak and flimsy. As discussed hereinabove PW1 Madhu Devi and her husband PW4 Ganesh Shah specifically explained and deposed about the incident that took place on 05.06.06. The incident is corroborated by two police DD entries i.e. DD no. 6 Ex. PW24/E and DD no. 14 Ex. PW24/F. It is pertinent to mention that on this important aspect no cross examination has been done and therefore, these facts established beyond reasonable doubt the motive of accused. The motive of accused is not weak and flimsy but substantial and proved upon actual incident and circumstances. The incident is further corroborated by PW2 Sunder Giri and PW8 Ranbeer Singh. I may mention here again that Pw2 Sunder Giri is having good relations with State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 31 accused Rizwan and he also stood surety for accused Rizwan when he was released on interim bail at the time of death of his father. I have also gone through the above mentioned judgments which are distinguishable in the present circumstances.
23. Hence in view of the above discussed circumstances, prosecution has succeeded in establishing the motive of accused Rizwan in the present incident in which a child named Roshan aged 2½ years was murdered. Medical Evidence :-
24. PW5 Dr. Manoj Dhingra appeared in witness box and proved that on 11.06.06 i.e. the day when murder took place at about 12.00 PM, he along with Dr. Ashish Jain conducted the postmortem on the body of deceased Roshan aged 2½ years. The body was sent by PW16 ASI Krishan Kumar. He spelled out the following external and internal injuries :-
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 32 External injuries : Multiple bruise mark present over front and side of neck, one on the right side of size 2 and ½ cm X 1½ cm with crescentic abrasion at outer end of size 1 x 0.1 cm and four mark on the left side of size 2 x 1 cm approximately parallel to each other, one above with crescentic of size 0.6 x 0.1 cm to 1 x 0.1 cm, 6 in number. On dissection there is subcutaneous hematoma on bilateral neck tissue with fracture of body of byoid bone.
Internal injuries : Brain matter congested and patechial hemorrhage in white matters. Bloody froth coming out from mouth.
25. According to opinion given by PW5 Dr. Manoj Dhingra, the cause of death was asphyxia as a result of pressure over neck structure subsequent to throttling. The time since death was approximately 10 hours. He also proved the inquest papers and the articles seized at the time of postmortem. He proved the postmortem report Ex. PW5/A.
26. In cross examination he has stated that postmortem of deceased is not ascertainable and cannot be said whether cause of death was done by male hands or female hands. The investigation aspect of sending the dead State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 33 body is proved by PW16 ASI Krishan Kumar who went to the spot of crime and met PW1 Madhu Devi and PW4 Ganesh Shah. He had seen the dead body of a child aged about 2½ years whose tongue was out. He prepared inquest papers Ex. PW16/A1 to PW16/A4.
27. PW17 HC Anil Kumar further corroborated the fact that he took the dead body of child Roshan as per instructions of ASI Krishan Kumar to Sanjay Gandhi Memorial Hospital mortuary for postmortem. He further proved the fact that after postmortem, the doctor handed over to him viscera and one gauze which was seized by the investigation officer vide memo Ex. PW16/B.
28. The identification of dead body is also proved by PW1 Madhu Devi by proving her statement recorded in this respect Ex. Pw1/C and PW4 Ganesh Shah also proved the identification of dead body by proving his statement Ex. PW3/A and also the receiving of dead body after postmortem vide memo Ex. PW3/B. State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 34
29. Ld. Counsel for both the accused persons submitted that the injuries and condition of dead body as per prosecution case is having material contradiction. PW5 Dr. Manoj Dhingra observed that bloody froth was coming from the mouth of body. PW12 Ct. Dalbir Singh stated that there was no sign of any wound on the body of the deceased. PW16 ASI Krishan Kumar deposed that no froth was present or coming from the mouth of body and there was no sign of blood. PW17 HC Anil Kumar observed that no blood spots were there on the body. PW24 Insp. Meer Singh also did not observe any blood stains on the body and floor. Ld. Defence counsels for both the accused persons relied upon (2004) 11 SCC 259; Ramsewak & Ors. v. State of M. P.
30. I have considered the submissions of Ld. Defence Counsels and perused the record. Ramsewak & Ors. (supra) is based upon the contradiction between the testimony of eye witness and medical evidence. There were absence of blood spots at the spot of incident which created doubt. No blood stain was found at the spot although allegations were that all three major incised wounds on the State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 35 body of deceased and the behaviour of PW1 was found to be unnatural and unusual. I have gone through the said judgment. In the present case PW1 Madhu Devi has not deposed that there was any blood on the body of the deceased. The medical evidence i.e PW5 Dr. Manoj Dhingra has also not observed from head or neck any blood oozing out. None of the police witnesses including the crime team witness PW11 SI Mata Din testified that they had seen any blood on the spot. In the present case the cause of death of deceased is asphyxia and it is not a case of incised wound where blood oozed out of the injuries. The 2½ years old son of PW1 Madhu Devi died due to pressing of his neck. Therefore, the judgment relied upon by Ld. defence counsels is distinguishable in the present circumstances of the case.
31. The doctor conducted the postmortem after about 08 - 09 hours after the death and the police witnesses had seen the dead body at about 6.00 am. There is every possibility of hemorrhage as observed in the internal injuries which resulted in the bloody froth coming out of the mouth after 08-09 hours after the death. So there is no material State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 36 contradiction between the testimonies of police witnesses as has been highlighted by Ld. Defence Counsels and the testimony of PW5 Dr. Manoj Dhingra who conducted the postmortem.
32. Hence on the basis of above observation and discussion, prosecution has proved the cause of death of deceased Roshan aged 2½ years as asphyxia as a result of pressure over neck structure subsequent to throttling, specially in the light of injuries observed by PW5 Dr. Manoj Dhingra.
Genesis of occurrence concealed :-
33. The Ld. Defence Counsels have vehemently contended that PW1 Madhu Devi deposed that occurrence took place at about 2.00 / 2.30 am but she made the call to PCR at no. 100 at 4.19 am that a quarrel had taken place. This call was taken by PW20 Ct. Gurmeet who filled form Ex. PW20/B. According to PCR, quarrel had taken place opposite State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 37 Subhash STD shop. The caller PW1 Madhu Devi specifically stated Gali No. 2, Prem Nagar III. It was not mentioned that accused Rizwan entered into her house and caught hold of her deceased son from the neck, pressed his neck and threw the deceased on the floor. PCR form Ex. PW20/B also mentioned that ASI Krishan Kumar PW16 of the local police reached at the spot at 4.45 am. Another DD no. 4 Ex. PW18/B recorded at 4.25 am stated that quarrel had taken place near Subhash STD Shop, Gali No. 2, Prem Nagar III. PW18 Ct. Rati Bhan recorded this DD no. 4. According to PW1 another call was made by her to the police at PCR no. 100 at 5.54 am that her son aged 2½ years had been murdered by her neighbour. It was received by PW14 HC. Rajpal Singh from the PCR who filled PCR form Ex. PW14/A. It establishes that till 5.54 am it was not known who committed the murder of deceased child Roshan. PW16 ASI Krishan Kumar as per these documents reached at the spot at Gali No. 2, Prem Nagar III. Ex. PW14/A mentions mobile no. 9811929653. The PCR form Ex. PW14/A remained blank when the same was produced in the court but in Ex. PW14/A part 2 and part 3 are duly filled up.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 38
34. It is further contended that PW3 Chandrika Shah is a close relative of PW1 Madhu Devi and PW4 Ganesh Shah but PW1 Madhu Devi did not disclose the real facts to them also. PW6 Budhi Ram from where PW1 Madhu Devi made a call, there also she did not disclose anything to him also. Testimony of PW11 SI Mata Din, Incharge Crime Team shows that PW1 Madhu Devi did not disclose the name of assailant. PW16 ASI Krishan Kumar had seen the dead body of child but PW1 Madhu Devi did not disclose any fact to him. Similarly PW17 HC Anil Kumar who removed the dead body also was not aware of the assailant. In the brief facts also it is not mentioned who was the assailant. The testimony of PW1 Madhu Devi and PW4 Ganesh Shah established that till the recording of their statement at 10.00 / 10.30 am by PW24 Insp. Meer Singh, no body was aware about the assailant. Therefore, the conduct and behaviour of PW1 does not inspire confidence and is not reliable. Ld. Defence Counsels have relied upon the following judgments : -
1. (2004) 11 SCC 259; Ramsewak and Ors v. State of M. P.
2. (2002) 9 SCC 431; Lalloo & Anr. v. State of U. P.
3. (2010) 1 SCC 108: Arun Kumar Sharma v. State of Bihar
4. (2001) 10 SCC 648; State of A. P. v. S. Appa Rao.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 39
35. I have gone through the judgments relied upon by Ld. Defence Counsels. Ramseak and Ors. has already been discussed above and the same is distinguishable. Lalloo & Anr. (Supra) is based on the conduct of the eye witness found to be unnatual and unreliable. However in the present case PW1 Madhu Devi's conduct is not found to be abnormal and immediately she rushed for help and called the police. This judgment is distinguishable in present facts and circumstances of the case. In Arun Kumar Sharma (supra) FIR was lodged after five days of the incident. In the present case the FIR was registered on the same day. In this case no statement u/s 164 CrPC was recorded. Hence the present judgment is of no help to the defence and is distinguishable. State of A.P. (supra) has also been discussed in the later part of this judgment.
36. In order to appreciate the submissions of Ld. Defence Counsels, let us peruse the testimony of all relevant witnesses.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 40
37. PW1 Madhu Devi, who is the mother of deceased, is the sole eye witness of the prosecution case. While appearing as witness she has deposed that in the year 2006 she used to reside in gali no. 2, Prem Nagar-III and on 10 th, month she could not remember, she had gone to bed with her two sons namely Deepak aged 04½ years and Roshan (deceased) aged 02½ years and her husband had also gone to bed. At about 2/2.30 am her son Deepak got up and told her he wanted to urinate and she told him to urinate near the tap. She has further deposed that main gate of their house was locked but the room in which they were sleeping was open. After urinating her son came back scared and on her asking he did not utter anything and embraced her and asked for water which she gave to him. In the meantime her second son Roshan (deceased) also got up and asked for water which Deepak gave to him. Thereafter she came out of the room and when she entered the courtyard, she found two persons present in the courtyard. One of them caught hold of her hand and the other slapped her. When she cried her mouth was gagged. She has testified that out of those two persons, one was accused Rizwan and the other person had muffled his face with handkerchief.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 41
38. She has further deposed that thereafter accused Rizwan caught hold of her son from his neck and lifted him and kept his neck pressed and then dropped him on the floor. She started crying upon which both the accused persons ran away. She further deposed that when accused Rizwan dropped her son on the ground, the person accompanying accused Rizwan put his foot on her son and while abusing retorted whether he was alive or dead. Thereafter she lifted her son and found him to be dead. She has deposed that her husband could not come to her rescue as the door of the room was bolted from outside by the accused persons. She made a call to the police from the house of uncle of her husband but while making call wrong gali number was mentioned by her due to which police could not reach immediately. She again made a call to police and police reached the spot and took her son to SGM hospital along with her husband. Her statement Ex. PW1/A was recorded by the police. She also signed the dead body identification memo vide Ex. PW1/B and dead body after postmortem was handed over to them vide memo Ex. PW1/C. State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 42
39. She has deposed that she could not properly see the associate of accused Rizwan because of darkness and because of the fact that he was having his face muffled with handkerchief.
40. This witness was declared hostile by the Ld. APP for the state and cross examined by him. In her cross examination she has stated that she knew accused Janak Raj as he was having a shop in the neighbourhood. She has further stated that she had signed some papers given to her by the police which were already written.
41. In her cross examination by counsel for accused Rizwan she has stated that she knew accused Rizwan as he was residing in her neighbourhood. She further stated that her another son Deepak recognizes accused Rizwan. She has also stated that her husband was also sleeping in the same room and when her son Deepak came back to the room where they were sleeping after urinating, he was a bit scared. She also stated that both the accused persons slapped her and she could identify accused Rizwan from his voice and the accused State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 43 persons were also muffled face when they entered her house. She further stated that she had told the police that she had a scuffle with accused Rizwan 4-5 days prior to the incident of this case. She has further stated that she could not recognize as to whether accused Rizwan was present at the spot at the time of incident.
42. PW3 Chandrika Shah has deposed that he is running STD and PCO shop in Prem Nagar III and complainant used to reside near his house. On 11.06.06 PW1 Madhu Devi came to his shop at 4/4.15 am while weeping and made a call to police. Later on he came to know that her son had been murdered.
43. PW4 Ganesh Shah has deposed that on 11.06.06 he went to sleep at about 11.30 pm and when he got up at 6.00 am his wife narrated the entire incident to him that in the night when her son got up for drinking water and came out of the room with her, she saw accused Rizwan standing there along with another person. He further stated that accused Rizwan put his hand on the mouth of his wife and State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 44 strangulated his son Roshan. He has further deposed that accused Rizwan and they had a quarrel with accused Rizwan and that quarrel was compromised at the police post and thereafter accuse Rizwan used to extend threats to them to leave the locality.
44. This witness was cross examined by Ld. APP for the State and during cross examination he stated that accused Rizwan had taken Rs. 3500/- and some articles from his wife and later on under pressure he returned Rs. 3500/- and articles to his wife and due to his reason he was having grudge against them.
45. In cross examination by counsel for accused that he is suffering from forgetfullness but he is not addicted to liquor. He denied the suggestion that his wife told him that accused Rizwan and some other person had strangulated their son in and around midnight.
46. PW14 HC Rajpal Singh has deposed on 11.06.06 he was posted at Command Room at Police Control Room to attend calls at no. 100. He has further deposed that at 5.54 am he received a call from Mobile no. 9811929653 and State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 45 informed that her son aged about 2/2½ years was murdered by her neighbour. She gave her address to him and he accordingly filled up the PCR form, copy of which is Ex. PW14/A. In his cross examination he has stated that Ex. PW14/A mentions the word padosi and that part II and part III of Ex. PW14/A are blank.
47. PW20 Ct. Gurmeet who was posted in PCR on 11.06.06 has deposed that on that day one lady namely Madhu informed through phone no. 5968859 at about 4.19 am that a quarrel had taken place at Prem Nagar III, Gali No. 3 in front of Subhash STD Shop near E-2/3. He accordingly filled PCR form and sent it for circulation.
48. PW16 ASI Krishan Kumar has deposed that on the night of 10-11.06.06 he was on emergency duty from 8.00 pm to 8.00 am as ASI at PP Prem Nagar PS Sultan Puri. He has deposed that on 11.06.06 at about 04.30 am he was given DD no. 4A regarding a quarrel at Prem Nagar III Subhash STD near Nahar and thereupon he along with Ct. Jagpravesh went to the said place but the exact location of the said place could not be ascertained as it was a kacchi colony. While he was coming back to police post, he received another DD no. 5 State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 46 from Ct. Krishan Kumar and it was regarding murder of a 02- 2½ years old child by its neighbour at E-2, Prem Nagar III. He along with Ct. Jagparvesh went to the above address the exact address as E-2/72A, Gali No. 3 Prem Nagar III. There he met PW1 Madhu Devi and PW4 Ganesh Shah and saw the dead body of child aged about 02-2½ years whose tongue was out. He inquired about the facts from PW1 Madhu Devi. Insp. Meer Singh, Crime Team and other Senior Officers also reached the spot.
49. Photographer of Crime Team took photographs and dead body was sent to SGM mortuary through Ct. Anil under his supervision. Thereafter he prepared inquest papers, recorded statements of PW1 Madhu Devi Ex. PW1/B and PW4 Ganesh Shah Ex. PW3/A with respect to identification of the dead body. After postmortem dead body was handed over to PW4 Ganesh Shah vide Ex. PW1/C. After postmortem doctor handed over one wooden box containing viscera, one sample seal and one blood gauze to him which were seized by him vide memo Ex. PW16/B and same were deposited with MHC (M) at the PS. State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 47
50. In his cross examination by counsel for accused Janak Raj, PW16 ASI Krishan Kumar has stated it as correct that DD no. 4 was regarding a quarrel while DD no. 5 was regarding murder by neighbour. He reached the spot at about 6.20 am and met PW1 Madhu Devi and PW4 Ganesh Shah but he did not record their statements and inquired orally from them. He has further stated that no blood stains were found over the dead body or from its surrounding. He has also stated that PW1 Madhu referred the name of accused Rizwan and also told that he is residing in the same locality. He has also stated that whatever PW1 Smt. Madhu told him, he mentioned it in the brief facts. He has then stated that no froth was coming out from the mouth of deceased and there was no blood or froth in the mouth of the deceased. He denied the suggestion that the documents were not prepared at the PS or that he did not participate in the investigation or that he never visited the spot or that he has not conducted any investigation or that he has no knowledge about the present case. He has further denied that he had fabricated the reports and deposed falsely at the instance of investigation officer.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 48
51. I have considered and gone through the submissions of Ld. Defence Counsels and perused the above discussed testimonies of the witnesses. PW1 Madhu Devi has testified that in the mid night on 11.06.06 at around 2.30 am her son Deepak went to urinate and thereafter he asked for water. She asked him to take water from the pitcher. In the meantime her younger son deceased Roshan also got up and asked for water. After deceased Roshan took water, she came out keeping deceased Roshan in her lap and then noticed two persons in her courtyard. The incident took place just at this moment that one person hold her hand and the other person slapped her. When she cried, her mouth was gagged. Out of those two persons one was muffled face. Accused Rizwan was identified by her who lifted her deceased son Roshan from his neck, pressed it and then dropped her son on the floor and she started crying and thereupon both the persons fled away. She lifted her son Roshan and found that he was dead. Her husband could not come as the door was bolted from outside. Thereafter she came out after opening the main gate and called the police from the house of her uncle PW3 Chandrika Shah.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 49
52. PW3 Chandrika Shah has testified that at about 4.15 am on 11.06.06 she knocked his door and made a call to police from his PCO and he also handed over the bill to police. His testimony remained unrebutted. There is a typographical error about the time as it is in the morning (am) and not night (pm). DD Ex. PW/20B was recorded at PCR Head Quarter which mentioned that "Subhash ki STD ki dukan se aage E2/3 nehar ke paas jhagda". PW1 admits that while making call she had mentioned wrong gali number and therefore police could not reach immediately.
53. PW16 ASI Krishan Kumar corroborated this fact that he had received DD no. 4A about the quarrel at Prem Nagar III but exact location could not be ascertained as it was a kacchi gali. PW1 further testified that she again made a call to police on which DD Ex. PW1/A was recorded. In this information, Gali No. 3, Prem Nagar III, Shani Bazar, Subhash Ki STD, Prem Nagar, Sultan Puri ( mere 2, 2½ saal ke bacche ka murder padosi ne kiya hai) was recorded. The PCR form Ex.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 50 PW20/B mentioned the name Madhu with telephone number 25968859 where as PCR form Ex. PW14/A mentioned the name Madhuri and mobile number 9811929653. However PW6 Budhi Ram has not supported in this regard but corroborated the fact that PW1 Madhu Devi came to him for making a call but he refused. Similary PW7 Tribhuwan Kumar also turned out to be hostile. However the testimony of PW1 Madhu Devi, PW20 Ct. Gurmeet Singh and PW14 HC Rajpal Singh from PCR corroborate the fact that police was informed at 4.15 am and 5.54 am about the incident.
54. The Ld. Defence Counsels contended that the police reached as per PCR form filled up part II and part III but in the PCR register brought in the court, these parts were blank. As per procedure described by Ld. APP a PCR form received by the police station is filled up and the original remain with the PCR is not completely filled up. This is the reason that when original PCR form was brought to the court, the two parts remained unfilled because they were filled by the local police. The other contention raised is that the police State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 51 officials came to know about the incident at first call itself because the second and third part has been filed up by PW16 on both occasions.
55. I have gone through the contents of Ex. PW20/B in which PW16 ASI Krishan Kumar reached at the spot at 4.45 am but observed that call is untraced. The contents of Ex. PW14/A shows that time of call is mentioned as 5.54 am from mobile no. 9811929653. The second and third part is filled up by the local police official concerned who had reached at the correct address and police reached at around 6.00 am or 5.54 am. In the PCR form Ex.PW14/A the informant name is mentioned as Madhuri. These circumstances have to be appreciated while considering in mind the mental condition of PW1 Madhu Devi when her 2½ year old son has been murdered by strangulation. At that time her husband was in another room which was closed from outside. When the dead body of her son is lying in front of her, how a normal person can react. The discrepancies mentioned in the informatioins are not material. The neighbours are not supporting her as per testimony of PW6 Budhi Ram and PW7 Tribhuwan Kumar.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 52 PW3 Chandrika Shah clearly mentioned that when she came at around 4.15 am she was weeping and made a call to police from his PCO. She again made a call to police but the neighbours are not supporting her version, however the police documents are sufficient to prove this fact.
56. I do not find any merit in the submissions of Ld. Defence Counsels regarding the discrepancies of the message and her not naming specifically the name of accused persons.
57. The other contentions raised by the Ld. Defence Counsels are that till 10.30 am the names of the assailants were not known to the police and no other witness, as mentioned in the submissions of Ld. Defence Counsels came to light of any police official or Dr. Manoj Dhingra. Ex. PW14/A shows that at 6.00 am, police came to know the name of assailant as accused Rizwan who is living in Gali no. 5 had trespassed in her house and pressed the neck of her 2½ year old son Roshan and consequently he died. The name of the other person is not known as he was muffled face.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 53
58. PW16 ASI Krishan Kumar testified that after reaching there he saw the dead body of the child and later on investigation officer PW24 Insp. Meer Singh and other senior police officials arrived there. In the cross examination PW16 Krishan Kumar specifically mentioned that PW1 Madhu Devi referred the name of accused Rizwan and also that he is residing in the same locality but he did not further inquired about accused Rizwan. He further explained that rukka was not prepared in his presence as he was basically involved in getting the postmortem on the body of deceased done and prepared all the inquest papers.
59. I find no merit in the submissions that prior to 10.30 am name of the assailant was not known to the police. The brief facts Ex. PW16/A2 also mentions the name of accused Rizwan and one associate who is involved in the incident. Hence on the basis of the above discussion and observation I find that there is no concealment of genesis of occurrence of information of accused Rizwan and one associate. There is no drastic improvement in the version of PW1 Mashu Devi regarding the incident and involvement of accused Rizwan.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 54 Evidence of PW1 Madhu Devi and PW4 Ganesh Shah un-reliable and not trustworthy :-
60. The next contention of Ld. Defence Counsels is that the testimony of PW1 Madhu Devi and PW4 Ganesh Shah is not trustworthy and reliable. In order to appreciate this contention I have already discussed in detail the testimony of PW1 Madhu Devi and PW4 Ganesh Shah. PW1 Madhu Devi is the eye witness to the incident. She explained how the incident took place at about 2.30 am. In the mid night her son Deepak got up for urinating. The main gate of the house was locked but the door of the room in which she was sleeping was open. Her son Deepak came out for urinating but got scared and embrassed her and then asked for water. He took water from the pitcher. In the meantime, her younger son Roshan also got up and asked for water. Deepak gave him water. Thereafter she came out keeping her son Roshan in her lap. When she entered the courtyard, she noticed that two persons were there. One person caught hold of her hand and the other slapped her. She cried and her mouth was gagged.
She identified one person as accused Rizwan and other person was muffled face. She described the role of accused State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 55 Rizwan that he caught hold of his deceased son from neck, lifted him, pressed his neck and then dropped him on the floor. She started crying and then accused Rizwan alogn with other person fled away. She also explained that when her deceased son Roshan was dropped by accused Rizwan on the floor, the other person put his foot on the body of his son and abused by retorting whether her son is dead or alive. She lifted her son and found him dead. Her husband could not come to rescue as the door was bolted from outside. Thereafter she described how she made the call and police arrived. She proved her statement Ex. PW1/A on which present case has been registered. She also testified the earlier incident which has already been discussed hereinabove which constitute the motive for the murder of her deceased son Roshan. In her further examination in chief she resiled and Ld. APP for the state cross examined her on the point of involvement of co-accused Janak Raj @ Rekhi and his identity. Her testimony in witness box and statement Ex. PW1/A are both complementary to each other and there is no improvement in regard to the incident dated 11.06.06. She further proved the arrest of accused persons on 15.06.06.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 56
61. In the cross examination by Ld. Counsel for accused Rizwan, she explained that she has been living in the locality for the last 09-10 years and accused Rizwan also used to live and accused Rizwan also used to live in the same mohalla. There are many constructed and vacant plots in the locality. She knew accused Rizwan for the last 2-3 years but she had no interaction with him. She admits that her son Deepak recognizes accused Rizwan. She further corroborated that her son Deepak had gone for loo but he disclosed the identity of accused. To a specific question that both persons were muffled face, she replied that she could not say about the same with certainty but both persons slapped her. Again she replied specifically as to whether she identified accused Rizwan on the basis of his voice, to which she replied that there was no exchange of arguments between them. She further admitted that many locality persons gathered there. She has also stated that she is illiterate but can sign and put thumb impression. She further corroborated the fact that police reached there house at about 6.00 am. She explained that she was not in complete conscious and crying. This conduct is natural about the mother whose son's dead body is State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 57 lying in front of her and who was killed in her presence. She further explained that she disclosed the earlier incident with accused Rizwan. She also replied to the specific questions regarding her mental condition when insisted on presence of accused Rizwan at the place of occurrence.
62. PW4 Ganesh Shah, who is not an eye witness to the incident, has deposed the hear-say facts which are not admissible. However he denied that he had forgotten the facts about the identity of accused Rizwan and Janak Raj. In cross examination he explained that his wife told him in the morning that accused Rizwan and one other person killed their son Roshan (deceased). He is not an eye witness to the incident which took place in the mid night at about 2.00 / 2.30 am.
63. In support of his contentions, Ld. Defence Counsels has relied upon the following judgments : -
1. (2002) 9 SCC 431; Lalloo & Ors. v. State of U.P.
2. (2002) 3 SCC 1; Hasan Murtza v. State of Haryana.
3. (2003) 12 SCC 695; State of T. N. v. Sunder.
4. (2010) 1 SCC 108; Arun Kumar Sharma v. State of Bihar.
5. (2002) 8 SCC 372; Sardul Singh v. State of Haryana.
6. (2004) 12 SCC 101; State of H. P. v. Sukhvinder Singh.
7. (2001) 10 SCC 648; State of A. P. v. S. Appa Rao.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 58
64. I have gone through the above mentioned judgments and have considered the same. Lalloo & Anr. (Supra) is based on the conduct of the eye witness found to be unnatual and unreliable. However in the present case PW1 Madhu Devi's conduct is not found to be abnormal and immediately she rushed for help and called the police. This judgment is distinguishable in present facts and circumstances of the case. In Arun Kumar Sharma (supra) FIR was lodged after five days of the incident. In the present case the FIR was registered on the same day. In this case no statement u/s 164 CrPC was recorded. Hence the present judgment is of no help to the defence and is distinguishable. In Hasan Murtza (supra) there was only sole eye witness and could observed that the testimony contained material improvements and was unsafe to rely. However in the present case the testimony of PW1 Madu Devi does not suffer from any improvement. Her statement is on the basis of statement recorded on 11.06.06 and 12.06.06. In the present case there is no burning incident which took place where PW1 had any chance to save his son from burning. The present State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 59 judgment relied upon by Ld. Defence Counsels is distinguishable in the present circumstances of the case. In State of H. P. (supra) there were more than one eye witnesses who saw the incident but in witness box they deposed contradictory facts. However in the present case there is sole eye witness of the incident PW1 Madhu Devi and she reiterated whatever she said before the police in the court also. Hence the present judgment is also of no help to the defence and is distinguishable. In State of T. N. (supra) there was contradiction on the date and time of the incident. However in the present case there is no contradiction on the time and date and hence the same is distinguishable in the present facts and circumstances of the case. In Sardul Singh (supra) the same is based on the theory of interested witnesses. It lays down the testimony of interested witnesses. In the present case the only sole witness of the incident is PW1 Madhu Devi, mother of the deceased and her testimony has been scrutinized with utmost care and found that it has a ring of truth and inspire confidence and hence the same is distinguishable in the present facts and circumstances of the case. In State of A. P. (supra) there were two diametrically State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 60 adverse statements given by witnesses. However in the present case only sole witness is PW1 Madhu Devi and no adverse stand has been taken by her during her testimony and hence the same is distinguishable in the present facts and circumstances of the case.
65. On the basis of the above observation and discussion, I find that there is no element which makes the testimony of PW1 Madhu Devi and PW4 Ganesh Shah non- trustworthy and non-reliable. PW1 Madhu Devi being illiterate lady explained the incident as she understood it. She reiterated and confirmed the identity of accused Rizwan. However she is shaky in her examination in chief as well as in her cross examination about the identity of accused Janak Raj. Place of Occurrence highly suspicious :-
66. The Ld. Defence Counsels further contended that place of occurrence is highly suspicious. PW1 Madhu Devi has deposed that she used to reside in Gali No. 2, Prem Nagar but did not recollect the house number. PW16 ASI Krishan Kumar State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 61 has deposed that the exact address is E-2/72A, Gali No. 3, Prem Nagar III and same are correctly mentioned in the brief facts. PW11 SI Mata Din of mobile crime team mentioned the address as H. No. E-2/72A, Gali No. 3, Aman Enclave, Nangloi, Delhi. PW24 Insp. Meer Singh, investigation officer mentioned the spot as House no. E-2/72A, Gali No. 3, Prem Nagar III. Therefore, these witnesses create suspicion regarding the place of incident. As per statement of PW1 Madhu Devi Ex. PW1/A, her address is E-2/72A, Gali No.3, Prem Nagar III. She is an illiterate lady and was examined about one year after the incident. Since she could not recollect her earlier address, does not mean that she stated some wrong address which could create suspicion. Rukka Ex. PW24/A specifically mentions place of occurrence as E-2/72A, Gali No. 3, Prem Nagar III, Delhi. PW16 ASI Krishan Kumar also mentioned the same address. PW11 SI Mata Din has mentioned the same address also but added Aman Enclave, Nangloi. However his report Ex. PW11/A specifically mentions the place of incident as H. No. E-2/72A, Gali No. 2, Prem Nagar III. PW11 SI Mata Din was examined after about three years of the incident and not immediately and if he included Aman Enclave does not State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 62 include any suspicion because his report mentions the correct place of occurrence.
67. In support of his contentions, Ld. Defence Counsels has relied upon the following judgments : -
1. (2004) 9 SCC 193; Kunju Muhammed v. State of Kerala.
2. (2004) 11SCC 259; Ramsewak & Ors. v. State of M.P.
68. I have gone through the above mentioned judgments and have considered the same. Ramsewak & Ors. (supra) has already been discussed above and the same is distinguishable in the present facts and circumstances of this case. The other judgment relied upon by Ld. Defence Counsels is also distinguishable in the present circumstances of the case.
69. I do not find any merit in the submission that the place of occurrence became highly suspicious. On the contrary all these prosecution witnesses and documents proved by them established the exact place of occurrence.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 63 Dead body shifted and no blood stains found at the place of occurrence :-
70. The Ld. Defence Counsels further pointed out that dead body of the deceased was shifted and no blood stains were found. PW1 Madhu Devi testified that accused Rizwan dropped her deceased son on the floor. PW16 ASI Krishan Kumar also explained that dead body was lying on bricks. PW12 Ct. Dalbir Singh, photographer took the photographs Ex. PW12/1 to PW12/10 which shows that dead body was lying on pink colour mattress. PW11 SI Mata Din pointed out that dead body of deceased Roshan was lying on the left side of the room. PW24 Insp. Meer Singh testified that the dead body was lying exactly in front of the door of the room in the right side. Therefore, as per witnesses the place of dead body established that it was shifted and not found at actual place.
71. In support of his contentions, Ld. Defence Counsels has relied upon the following judgments : -
1. (2004) 9 SCC 193; Kunju Muhammed v. State of Kerala.
2. (2004) 11SCC 259; Ramsewak & Ors. v. State of M.P.
3. (2001) 10 SCC 648; State of A. P. v. S. Appa Rao
4. (2002) 1 SCC 702; Subhash Chand v. State of Rajasthan.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 64
72. I have gone through the above mentioned judgments and have considered the same. The judgments relied upon by Ld. Defence Counsels have already been discussed above in this case and are distinguishable in the present circumstances of the case.
73. I have considered respective submissions and perused the record. PW11 SI Mata Din in his crime team report Ex. PW11/A mentioned that in H. No. E-2/72, Gali No.2, Prem Nagar III, the dead body was found. In his testimony, he proved his crime team report. In the cross examination he explained that the dead body was lying on the floor outside the room on the left side but this fact is not recorded in his report. PW12 Ct. Dalbir Singh, photographer admitted that the dead body was lying on the hand made mattress and he took the photographs. No suggestion was put to these witnesses that dead body was shifted from the actual place and no actual place has been put to these two witnesses during cross examination.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 65
74. PW16 ASI Krishan Kumar also corroborated that dead body was lying outside the room. PW16 ASI Krishan Kumar and PW24 Insp. Meer Singh both corroborated each other that the dead body was lying on the brick floor. No suggestion or question was put to them that whether the mattresses were there or not as per photographs. The photographs shows that the dead body was not lying in the room but was on the floor. The photographs taken by PW12 Ct. Dalbir Singh shows that the dead body was lying at the place of occurrence. No suggestion was given to PW1 Madhu Devi that she shifted the dead body from the actual place i.e. where it was lying just after the incident. It might be possible that PW1 Madhu Devi being illiterate lady prior to reaching of the police might have put some mattress under the dead body at the same place where it was left by accused Rizwan and his associate. These facts have to be appreciated by analyzing the state of mind of a mother in whose presence her 2½ year old son has been killed and thrown on the floor. Therefore, I do not find any substance in the contention of the Ld. Defence Counsels that the dead body was shifted from actual place of occurrence.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 66 No independent witness examined by prosecution :-
75. Ld. Defence Counsels further contended that no independent witness was examined. As per prosecution case there was no independent witness of the incident. The investigation officer joined all the witnesses i.e. PW3 Chandrika Shah, PW4 Ganesh Shah, PW6 Budhi Ram and PW7 Tribhuwan Kumar who are connected with the incident. Therefore, there is no substance in the submission that when there was no eye witness, how the investigation officer can join them. There is no need to join any spectator after the incident during investigation.
76. In support of his contentions, Ld. Defence Counsels has relied upon the following judgments : -
1. (2002) 2 SCC 755; Chander Pal v. State of Haryana
2. (2002) 7 SCC 543; Balu Sonba Shinde v. State.
3. (2002) 6 SCC 470; Harijana Thirupala & Ors. v.
Public Prosecutor.
77. I have gone through the above mentioned judgments and have considered the same. The judgments relied upon by Ld. Defence Counsels are distinguishable in the present circumstances of the case.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 67 Entry to the house of occurrence not proved :-
78. Another contention raised by Ld. Defence Counsels is that prosecution has not proved the entry to the house. My attention has been drawn to the testimony of PW11 SI Mata Din, PW1 Ct. Dalbir Singh, PW1 Madhu Devi and PW24 Insp. Meer Singh. PW11 in cross examination described that there was a wall of around six foot on the main gali in the house. In the mid night around 2.30 am nobody will knock the door to enter the house and commit such a crime. Further all these three witnesses i.e. PW11 SI Mata Din,PW24 Insp. Meer Singh and PW1 Madhu Devi corroborate the fact that there is a 5-6 feet high wall. This height of wall can be jumped by a person who has intention to commit such crime. Therefore, there is no substance in the contention that no entry has been proved by prosecution into the house at the time of incident. Testimony of PW24 Insp. Meer Singh, Investigation Officer is not trustworthy and having contradictions :-
79. Ld. Defence Counsels also highlighted the contradiction in the testimony of PW24 Insp. Meer Singh which are stated to be material and vital points. PW24 Insp. Meer Singh in cross examination has explained that he reached at State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 68 the spot at 09.00 am and came to know the name of accused when statement of PW1 Madhu Devi was recorded at around 10.00/10.30 am. The dead body at that time was already removed to SGM Hospital Mortuary by PW16 ASI Krishan Kumar. The Ld. Defence Counsels picked up one line from the cross examination of PW1 Madhu Devi about signature on already written papers. This line appeared regarding the incident that took place earlier and not on 11.06.06. PW11 SI Mata Din and PW12 Ct. Dalbir Singh explained that investigation officer did not tell them to take photograph and at the time of inspection of the spot no body was allowed near the dead body. I find no material contradiction in the facts stated by these two witnesses and PW24 Insp. Meer Singh.
80. Further there is no contradiction that investigation officer PW24 Insp. Meer Singh had himself at the spot not seen the dead body. He correctly deposed that the dead body was already removed to the hospital by PW16 ASI Krishan Kumar. This fact is corroborated by PW16 ASI Krishan Kumar. Another point has been made that according to PW11 SI Mata Di and PW12 Ct. Dalbir Singh there were 100 to 60 people gathered at the spot. These persons are gathered as State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 69 spectators after the incident but it does not show that material contradiction has been created in the statement of investigation officer PW24 Insp. Meer Singh.
81. In support of his contentions, Ld. Defence Counsels has relied upon the following judgments : -
1. (2004) 11 SCC 259; Ramsewak & Ors. v. State of M.P.
2. (2003) 12 SCC 695; State of T. N. v. Sunder.
3. (2004) 9 SCC 193; Kunju Muhammed v. State of Kerala.
4. (2004) 12 SCC 101; State of H. P. v. Sukhvinder Singh.
5. (2001) 10 SCC 648; State of A. P. v. S. Appa Rao.
6. (2002) 1 SCC 702; Subhash Chand v. State of Raj.
82. I have gone through the above mentioned judgments and have considered the same. The judgments relied upon by Ld. Defence Counsels have already been discussed above and are distinguishable in the present circumstances of the case.
Arrest of accused persons not proved by prosecution :-
83. Ld. Defence Counsels lastly pointed out that prosecution has failed to prove the arrest of all the accused persons on 15.06.06. They pointed out the testimony of State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 70 PW15 SI Dinesh Dahiya, PW1 Madhu Devi, PW4 Ganesh Shah and PW24 Insp. Meer Singh. Both the Ld. Defence Counsels contended that Ct. Suresh Kumar on whose identification accused persons were arrested is not examined by the prosecution. The testimony of these witnesses highlights that both the accused persons were arrested at five different places. Accused Rizwan and Janak Raj were shown to be arrested from grocery store, from a plot, residential area, Prem Nagar and Police post Prem Nagar. I have gone through the testimony of all the above stated witnesses. PW15 SI Dinesh Dahiya deposed that he received information about both accused persons namely Accused Rizwan and Janak Raj at Janak Raj grocery store, D block, Prem Nagar at around 7.20 am. He accordingly informed the investigation officer PW24 Insp. Meer Singh and on his directions he along with Ct. Suresh Kumar reached there. Ct. Suresh Kumar recognized them and brought them to PP Prem Nagar. In the meanwhile, PW24 Insp. Meer Singh also reached there. He proved the arrest of accused Rizwan and Janak Raj vide memo Ex. PW1/E1 and PW1/E2 and their disclosure statements were recorded vide memo Ex. PW15/A and PW15/B. He further State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 71 proved the personal search of both accused persons vide memo Ex. PW1/E3 and PW1/E4. He further deposed that PW1 Madhu Devi and her husband PW4 Ganesh Shah also came to the police post. PW24 Insp. Meer Singh interrogated them and accused persons were arrested and taken to SGM Hospital for medical examination.
84. In the detailed cross examination PW15 SI Dinesh Dahiya explained that accused persons were arrested near a plot where shot was situated. He denied that accused were lifted from their houses and falsely implicated in this case. In detailed cross examination by Ld. counsel for accused Rizwan, specially regarding incident dated 11.06.06 all irrelevant cross was conducted. Ld. Defence Counsels for accused Rizwan also put irrelevant questions regarding the informer. He also explained that he had no role in this case from 11.06.06 to 15.06.06 till 7.00 am. He explained that accused Rizwas was arrested in residential area. He also explained the personal search of accused Rizwan. He also explained that except disclosure statement, arrest and personal search, no other document was signed by him.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 72
85. PW1 Madhu Devi during her examination in chief when Ld. APP for state cross examined her testified that on 15.06.06 she joined the investigation and proved the arrest memo and personal search memo of both the accused persons. PW4 Ganesh Shah testified that he does not remember that his statement was recorded on 15.06.06 and went to police post along with his wife but he specifically stated that accused Rizwan and Janak Raj were arrested by police. On this there is no question put by Ld. Defence Counsels and no cross examination has been conducted by them.
86. PW24 Insp. Meer Singh further corroborated the testimony of PW15 in respect of the arrest of accused persons, interrogation and disclosure statement made by accused persons. The testimony of these above discussed four witnesses did not establish five places of arrest of accused persons. They were found at grocery store or near the store in residential area near a plot and brought to Prem Nagar Police Post where they were arrested. In view of the State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 73 above discussion, I do not find any merit in the contentions of Ld. Defence Counsels on the point of arrest of accused persons.
87. The above detailed discussion on the testimonies of prosecution witnesses and the submissions made by both the defence counsels is discussed on the basis of analysis of evidence led in this case. The prosecution has to establish the identity of both the accused persons beyond reasonable doubt. Accused Rizwan as per testimony of PW1 Madhu Devi is her neighbour and at the time of incident on 11.06.06 at about 2.00 / 2.30 am, identified and described the role that he caught hold of his deceased son Roshan, lifted him, then pressed his neck and dropped him on the floor. The prosecution further established the motive of accused Rizwan which is discussed herein above in detail for commission of the offence. The identity of accused Rizwan is established beyond reasonable doubt by the prosecution. Accused Rizwan was not alone at that time as per testimony of PW1 Madhu Devi. He was having an associate whose face was muffled State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 74 with handkerchief. That associate put his foot on the deceased son of PW1 Madhu Devi and abused and retorted whether son of PW1 Madhu Devi was alive or dead.
88. In the examination in chief PW1 Madhu Devi turned hostile and Ld. APP for the state cross examined her. In her cross examination she testified that she knew accused Janak Raj who was having shop in the neighbourhood. She admits that on 12.06.06 police made inquired from her and then she disclosed that the person who accompanied accused Rizwan on the intervening night of incident was Janak Raj @ Lekhi. She identified him. She further explained that the other person who was muffled and threatened her that in case she disclosed the name of anyone then he will kill her other son also. At this juncture, a court question was put by Ld. Predecessor about the identity of Janak Raj @ Lekhi. She answered the question that she cannot say specifically but from the identification of voice the said person was not Janak Raj @ Lekhi. It is natural that if muffled face person is to be identified the only factor is the voice. A person who has a shop in the neighbourhood and is muffled face can only be State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 75 identified on the basis of his voice. PW1 Madhu Devi in respect of the identification of accused Janak Raj @ Lekhi was the associate of accused Rizwan is shaky. Initially she did not named him. In the examination in chief Ld. APP cross examined her then she admitted the question and suggestion put to her. However when court asked a specific question to fix the identity of Janak Raj @ Lekhi then she again took a somersault and replied that on the basis of voice identification she cannot say that Janak Raj @ Lekhi was the associate of accused Rizwan on the intervening night of incident have his face muffled with handkerchief.
89. After analyzing and appreciating the testimony of PW1 Madhu Devi, the sole eye witness of the incident, in respect of the identity of accused Janak Raj @ Lehi, raises doubt about the identity that he was the same person who trespassed with accused Rizwan in muffled face in the house of PW1 Madhu Devi. The shaky and doubtful testimony of PW1 Madhu Devi on this aspect generated doubts, therefore, accused Janak Raj @ Lekhi is entitled to benefit of doubt.
State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC 76
90. On the basis of above observation and discussion, accused Janak Raj @ Lekhi is given benefit of doubt and is accordingly acquitted of the charges framed against him in this case. However, accused Rizwan is convicted for commission of offence punishable u/s 452/34 IPC & 302/34 IPC.
Announced in the open court (SANJAY KUMAR) today i.e. 19.03.2011 ASJ-01 (NW),ROHINI COURTS: DELHI State Vs. Rizwan etc. // FIR No. 898/06 PS : Sultan Puri // u/s 302/452/34 IPC