Delhi District Court
State vs . Raj Kumar And Others on 28 September, 2013
SC No. 10/08/07
FIR No.334/07
PS: Mayapuri
State Vs. Raj Kumar and others
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDL. SESSIONS JUDGE : DWARKA COURTS:
NEW DELHI
In the matter of :
SC No. : 10/08/07
FIR No. : 334/07
Police Station : Mayapuri
Under Section : 412/396/397 IPC and 25/27
Arms Act
Received on assignment : 31.01.2008
Reserved for orders on : 18.09.2013
Judgment announced on : 28.09.2013
State Vs. Raj Kumar
S/o Sh. Jaskaran Yadav
R/o Village Gothia
PS and Post Mankapur
Distt. Gondha, UP
Mohd. Illiyas
S/o Mohd. Abbas
R/o Jhuggi No. 97
Mayapuri, New Delhi
Fayaz Ahmad
S/o AmirUlHassan
R/o House No. 15
Sector 16A, Dwarkax
New Delhi
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FIR No.334/07
PS: Mayapuri
State Vs. Raj Kumar and others
Amit Chauhan
S/o Sh. Ram Singh Chauhan
R/o RZ130/177
Sagarpur, New Delhi.
Kallu
S/o Late Sh. Babu
R/o Village Gargh
Distt. Hapur, UP
J U D G E M E N T
1. Accused persons have been sent up for trial for the offence punishable under section 412/396/397 IPC and 25/27 Arms Act.
2. Stating briefly, as per prosecution story, it is alleged that SI Kashmiri Lal on receipt of DD No. 7A dated 11.09.2007 to the effect that 34 thieves had came in the factory at C274, Mayapuri, PhaseII (hereinafter referred to as the said premises), who had stabbed one person, reached the spot of incident and found that the injured has already been shifted to hospital. In the mean time, another DD No.8A was received and SI Kashmiri Lal after leaving Const. Mukesh at the spot of incident to guard the same, went to DDU hospital where he SC No 10/08/07 Page 2 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others found Nagender, S/o Sh. Dhaneshwar Yadav, R/o C274, Backside PhaseII, Mayapuri admitted who was declared unfit for making statement and another injured witness Suresh Bahadur, S/o Sh. Amar Bahadur, R/o C274, Backside PhaseII, Mayapuri was also admitted but Suresh Bahadur had left the hospital. It is further alleged that one Surender Prasad Mehto was found present who got recorded his statement stating therein that he is residing near Raghuvir Public School, Deepak Vihar, Hastsal Village, New Delhi for the last two and half years and working as a helper at the said premises and on intervening night of 10/11.09.2007, he was on duty, then, at about 2:30 am, some persons started pushing the gate of the said premises and on account of said pushing, the door of the said premises opened and four persons armed with weapons barged into and out of said persons, one person was tall and others were of middle height and all said persons were in the age group of 2530 years and after having entered into the factory accused persons asked to stop the machines and complainant and his companions stopped the machines and accused persons further threatened all the persons present there by saying that if they raised alarm, they will be killed. It is further stated that two accused persons were standing outside the factory and two accused persons started putting the aluminium slabs and SC No 10/08/07 Page 3 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others finished goods in the rickshaw and when Nagender opposed the said lifting of goods then one of the accused stabbed in the stomach of the Nagender and Nagender got injured and accused persons after taking the said articles fled away after bolting the doors of the said premises from outside and after sometime, some boys had opened the gate and the complainant made a call to the owner of the factory and the owner of the factory alongwith his son came at the spot of incident and Joginder Singh called at 100 number and injured Nagender was shifted to DDU hospital by owner of the factory and complainant could identify all the accused persons if brought before him.
3. It is further alleged that on the statement of the complainant, IO prepared rukka by making endorsement and got registered the FIR under section 394/397 IPC through constable Mukesh and after registration of the FIR, investigation of the case was handed over to inspector Virender Singh and inspector inspected the scene of crime and prepared the rough site plan at the instance of complainant and crime team was summoned at the spot. Blood stained earth control was lifted and sealed and seized. IO/Inspector Virender Singh went DDU Hospital where doctor declared injured Nagender as dead and section 396 IPC was added. On 13.09.2009, postmortem of the SC No 10/08/07 Page 4 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others deceased was got conducted at DDU hospital and dead body was handed over to the relatives of the deceased and sealed parcels were handed over by the autopsy surgeon were seized and got deposited with the MHC(M).
4. It is further stated that on 17.09.2009, Inspector Virender Singh alongwith police party reached Dayabasti Railway Station on getting the information through secret informer and apprehended and arrested accused Fayaz Ahmed and Amit Chauhan and on the disclosure statement of these two persons apprehended other accused Raj Kumar and Mohd. Illiyas near Delhi Cantt. Railway Station. Accused persons suffered their disclosure statement and case property was recovered from the jhuggi belonging to the accused Kallu which was sealed in different parcels and seized and the accused Kallu, Nadeem, Afsar Ali were arrested for keeping the property received from dacoity. It is further alleged that during course of investigation, accused Mohd. Illiyas and Fayaz Ahmed got recovered weapon of offence and accused were produced in the court and on 19.09.2007 at the pointing out of accused Amit Chauhan, IO got recovered weapon of offence. It is further alleged that on 20.09.2007, accused Raj Kumar was produced before the court of Ld. MM and on 21.09.2007, the police party headed by ASI SC No 10/08/07 Page 5 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others Harpal Singh went to the village of accused Raj Kumar i.e village Gothia, Post Manakpur, Distt. Gondha, UP and at his pointing out, accused Raj Kumar got recovered the knife which was used in the commission of dacoity and the police party came to Delhi on 22.09.2007 and accused Raj Kumar got recovered blood stained clothes worn by him on the date of incident and got recovered two rickshaws/handcarts to the ASI Harpal Singh. It is further alleged that on 22.09.2007, application was moved by SI Kashmiri Lal for conducting TIP of the accused persons which was adjourned for 03.10.2007 and on 03.10.2007, SI Kashmiri Lal alongwith witnesses Surender Prasad Mehto, Pankaj Bahadur and Ravinder Kumar went to jail No.5, Tihar which was successfully conducted qua accused Mohd. Illiyas and Amit Chauhan and on 25.09.2007, Inspector moved an application for TIP in respect of accused Raj Kumar and on 11.10.2007, SI Kashmiri Lal alongwith witnesses went to Tihar Jail but accused Fiyaz Ahmed and Raj Kumar refused to participate in the TIP. Seized parcels were sent to FSL Rohini and, thereafter, on 12.11.2007, SI Kashmiri Lal moved an application for conducting TIP of the case property which was got recovered from the instance of accused persons and said application was dismissed by Ld. MM. During the course of arguments, accused Habiba was tried to be traced but his location could not be ascertained SC No 10/08/07 Page 6 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others and NBWs qua accused Habiba were taken but those could not be executed and chargesheet under section 396/397 IPC was filed.
5. After supplying copy of the charge sheet to the accused by Ld. Metropolitan Magistrate, case was committed to the Session and charge under section 412/396/397 IPC and 25/27 Arms Act was framed against the accused persons to which they pleaded not guilty and claimed trial.
6. Prosecution was called upon to adduce evidence to establish its case as per law. Prosecution has tendered 30 witnesses in all in support of its case namely:
PW1 Dr. Megha, Medical Officer, DDU
Hospital, New Delhi.
PW2 HC Raj Kumar
PW3 Sh. Joginder
PW4 HC Ishwar Singh
PW5 Const. Dinesh
PW6 ASI Harpal Singh
PW7 Const. Naresh
PW8 Const. Mukesh Kumar
PW9 Sh. Ravinder Kumar Yadav
PW10 Const. Bali Ram Singh Kushwah
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PS: Mayapuri
State Vs. Raj Kumar and others
PW11 HC Ramchander
PW12 Sh. Surender Prasad Mehto
PW13 Sh. Suresh Bahadur
PW14 Const. Rajender Kumar
PW15 Sh. Dhaneshwar Yadav
PW16 Dr. Vinal Sharma, Medical Officer, DDU Hospital, New Delhi.
PW17 Dr. l.C.Gupta, Specialist Forensic Medicine, Aruna Asaf Ali Hospital, Delhi. PW18 Sh. Nanku Prasad Gupta PW19 ASI Rohtash Kumar PW20 Sh. Raj Kumar PW21 Const. Dev Kumar PW22 HC Kalyan Sahai PW23 Const. Raj Kumar PW24 HC Vishal PW25 Const. Hardeep Singh PW26 SI Kashmiri Lal PW27 HC Bhona Ram PW28 Sh. Kuldeep Narayan, CCJ/ARC, Karkardooma Courts, Delhi.
PW29 Dr. Narender Solanki, Medical Officer, DDU Hospital, New Delhi.
PW30 Retd. Inspector Virender Singh SC No 10/08/07 Page 8 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others
7. PW1 is Dr. Megha, Medical Officer, DDU Hospital, who has deposed that injured Suresh Bahadur was medically examined by Dr. Rahul on 11.09.2007 in terms of Ex. PW1/A and the injuries were simple, caused by blunt weapon.
8. PW2 is HC Raj Kumar, who has deposed that on 11.09.2007, he was posted in PS Hari Nagar and at about 4:00 am, he informed PS Mayapuri regarding admission of two persons namely Nagender and Suresh in DDU Hospital in terms of DD No. 8A (Ex. PW2/A).
9. PW3 is Joginder, owner of the said premises and at about 3:00 am, chokidar of the area gave him a call and informed that some persons had locked his employees inside the said premises and after robbing them, they had also stabbed deceased Nagender and on that fateful day, Nagender, Surender and Ravinder were working in the factory and after receiving this information, PW3 alongwith his father rushed to the said premises which was found locked from outside and the lock was broken and PW3 found that deceased Nagender was having stabbed wound and after checking the said premises, he found that 84 aluminium bricks, one bag of brake shoes and two bags of mixie blades were missing from the said premises and he had SC No 10/08/07 Page 9 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others identified case property Ex.P1 (consisting 48 aluminium bricks, Ex.P2 consisting 560 pieces of mixie fans) and Ex.P3 (consisting 375 pieces of brake shoes).
10. During cross examination, PW3 has admitted that he has informed the police about missing of 80 aluminium bricks and prepared goods and he further admitted that he informed police No.100 immediately after seeing the injured Nagender and he was having permission to run the factory in night and he further denied the suggestion that any person namely Rupender was working on the fateful day and he further admitted that there was common chokidar/guard for three factories.
11. PW4 is HC Ishwar Singh, who has recorded DD No. 7 Ex.PW4/A at about 3:37 am on the intervening night of 10/11.09.2007 and recorded FIR Ex. PW4/B at about 6:05 am on 11.09.2007 on the basis of rukka sent by SI Kashmiri Lal through constable Mukesh Kumar and made his endorsement Ex. PW4/C on the said rukka.
12. PW5 is Const. Dinesh, who was posted in DDU hospital as Duty Constable on 11.09.2007 and he has supplied SC No 10/08/07 Page 10 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others information regarding death of the deceased Nagender to PS Mayapuri.
13. PW6 is ASI Harpal Singh, who has deposed that on 20.09.2007, he alongiwth HC Bhona Ram, Const. Naresh and Const. Rajinder went to village Gothia PS Mankapur, District Ghonda, UP and accused Raj Kumar led the police party to the hut made of khaprel, in front of his house and from a room accused Raj Kumar got recovered a knife which was seized vide seizure memo Ex. PW6/A in presence of one Nanku Prasad of village Gothia and, thereafter, this witness prepared the site plan of the room from where the said knife was recovered vide Ex. PW6/B and he had also prepared the sketch of the said knife vide Ex. PW6/C and on 22.09.2007, PW6 alongwith accused Raj Kumar, case property and police officials returned to Delhi in the area of PS Mayapuri, Railway Line and accused Raj Kumar led the police party towards bushes situated near railway line, Delhi Cantt and got recovered his Tshirt and pant which he was wearing on the day of incident and the same were seized vide seizure memo Ex. PW6/D and, thereafter, accused Raj Kumar got recovered two cyclerikshaws near Shauchalya Sabzi Mandi, Khazan Basti, which were used in the commission of offence for carrying the luggage which were seized vide Ex. PW6/C. This SC No 10/08/07 Page 11 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others witness has also identified the case property i.e knife Ex.P4, T shirt and jeans pant Ex. P5 and Ex.P6 got recovered at the instance of accused Raj Kumar.
14. PW7 is Const. Naresh, who has deposed that on 17.09.2007, he had joined the investigation alongwith SI Kashmiri Lal, HC Bhona Ram, HC Vishal, HC Rohtash, Const. Ram Chander and Const. Rajbir and he alongwith police party and IO went to Rewari Railway Line, Delhi Cantt. and on the pointing out of secret informer, accused Fayaz Ahmed and Amit Chauhan were apprehended and interrogated and they suffered their disclosure statements and admitted their involvement as well as of accused Raj Kumar and one Khan and accused Mohd. Illiyas has been identified by this witness as said Khan and four accused persons were arrested. He has further deposed that accused Raj Kumar suffered his disclosure statement about the knife used on the day of incident and got recovered the said knife from his residence at Gonda, UP on 21.09.2007 and said knife was recovered and local police was informed and joined in the investigation and he has also deposed on the line of ASI Harpal regarding the investigation conducted in the village of Raj Kumar and this witness has also identified the case property i.e rehri Ex. P7.
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15. During cross, PW7 has stated that on 17.09.2007 in the evening, the police party went in police gypsy alongwith SI Kashmiri Lal and said gypsy was parked near the flyover and accused persons i.e Fayaz Ahmed and Amit Chauhan were at the distance of about 150 meters when they were apprehended. This witness further denied the suggestion that accused Fayaz was lifted from the jhuggi of his relatives from near Dayabasti Railway Station.
16. PW8 is Const. Mukesh Kumar, who has accompanied SI Kashmiri Lal on 10/11.09.2007 after getting the information regarding stabbing of a person and reached the spot of incident and IO/SI Kashmiri Lal left him at the spot and went to DDU hospital. After some time, IO/SI Kashmiri Lal returned to the spot and he lifted blood sample from the spot and IO prepared the rukka and got the FIR registered.
17. PW9 is Ravinder Kumar Yadav, who has deposed that on the fateful intervening night at about 3:00 pm, he alongwith Surender and Nagender were working in the factory then suddenly ten persons forcibly came in the factory but he failed to identify them and accused persons started beating SC No 10/08/07 Page 13 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others them and one of them was having sword and other accused was having wooden stick and Nagender had sustained stab injuries in his stomach from the accused persons but he could not say who had caused said injuries to the Nagender and accused persons had taken the aluminium slabs after bolting the door from outside and some watchman of the area opened the gate of the said premises and owner of the said premises was informed and Nagender was shifted to DDU hospital and during cross examination by Ld. State Counsel, he has admitted that he told police that tall boy was having sword in his hand while the shorter boys were having knives. He has further admitted that two boys entered inside the said premises and started taking up aluminium slabs. He has further admitted that four accused persons namely Raj Kumar, Mohd. Illiyas, Fiyaz Ahmed and Amit Chauhan as pointed out to him are the same person who had come to said premises on the fateful night and assaulted them and stabbed Nagender and fled away with aluminium slabs and other articles.
18. During cross by Ld. Defence Counsel, PW9 has stated that he was working in the said premises at that time and further stated that one of the accused was having sword and other three accused were having knives and others were having SC No 10/08/07 Page 14 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others wooden sticks and rods and assailants remained in the factory at said premises for about 1015 minutes and watchman had telephoned police by informing owner. During court questioning, he admitted that he has identified the accused persons himself and without being pointed out by the state counsel. He has further denied the suggestion that he had seen the accused persons when his statement was recorded under section 161 Cr.PC in the police station and police verified from him whether the persons in custody were actual assailants or not and he had identified the accused persons as the assailants who had committed dacoity on the fateful day.
19. PW10 is Const. Bali Ram Singh Kushwah, who has deposed that on 21.09.2007, he was posted as contable in PS Mankapur, Distt. Bhonda, UP and on that day, he had joined the investigation alingwith SO Shishupal Singh and one ASI of Delhi Police and accused Raj Kumar was in the custody of SO. He has further deposed that he alongwith SO Shishupal Singh, accused Raj Kumar and other police staff went to village Gothia, Kalainia, PS Mankapur and accused Raj Kumar led the police party to a kachcha house opposite his house and from kachcha house, accused Raj Kumar got recovered one knife and ASI of Delhi police prepared the sketch of the knife Ex. PW6/C and same was SC No 10/08/07 Page 15 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others seized vide seizure memo Ex. PW6/A and he identified the said knife as Ex.P4. During cross, he stated accused Raj Kumar was brought by three police officials on 21.09.2007. He has stated that Delhi Police Officials were also carrying 12 bags with them which might be consisting of daily need articles as he was the incharge of beat so he had accompanied Delhi police party to the village of the accused Raj Kumar and public witness Nanku was joined in investigation and, thereafter, they had gone to the house of accused Raj Kumar and it is further stated that accused Raj Kumar voluntarily led the police party to khaprael and took out the knife from the wooden shelf and gave it to the police. He denied the suggestion the accused Raj Kumar has not got recovered the knife from his house.
20. PW11 is HC Ram Chander, who has deposed that on 17.09.2007, he was posted at PS Mayapuri and on that day, he had joined investigation of this case and he alongwith Inspector Virender Singh, SI Kashmiri Lal, Const. Rohtash, Const. Rajender, Const. Naresh and HC Bhona Ram reached Rewari Railway line and secret informer led the police party to Daya Basti Railway Station and at the instance of the secret informer, accused Fayaz Ahmad and Amit Chauhan were arrested and their personal search was conducted and their disclosure SC No 10/08/07 Page 16 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others statements were reduced into writing and in their disclosure statements, they offered to get their two other coaccused arrested and, thereafter, accused Fayaz Ahmad and Amit Chauhan led the police party to jhuggies near Delhi Cantt. Railway Station and at their instance, accused Raj Kumar and Mohd. Iliyas were apprehended, arrested and their personal search was conducted. Disclosure statements of accused Raj Kumar and Mohd. Iliyas were recorded and disclosure statement of accused Mohd. Illiyas is Ex. PW11/A and, thereafter, all the four accused were lodged in lock up. It is further stated that on 18.09.2007, PW11 again joined the investigation in the present case alongwith Inspector Virender Singh, SI Kashmere Lal, HC Bhona Ram, HC Rohtash and HC Vishal and all the accused persons in muffled face led the police party to Rewari Railway Lone, Jhhuggi No. B1009 and got recovered the case property and all the accused persons pointed out towards two boys and one man standing there and stated that they had given the robbed articles to the aforesaid persons whose name later on revealed as Kally, Naim and Afsar Ali. The recovered articles consisting of Aluminium slabs 43 Brake shoes 327 Silved coloured 755 SC No 10/08/07 Page 17 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others pieces of the shape of fins and said articles were taken into possession vide seizure memo Ex. PW11/B and accused Kallu, Naim and Afsar Ali were arrested and their disclosure statements were recorded and, thereafter, Inspector Virender Singh, SI Kashmiri Lal and HC Vishal had taken accused Fayaz Ahmad and Mohd. Illiyas with them by giving safe custody of the other accused persons alongwith the case property to PW11 and after some time Inspector Virender Singh, SI Kashmiri Lal and HC Vishal and accused Fayaz Ahmed and Mohd. Illiyas returned to the jhuggi of accused Kallu and police party alongwith all the accused and sealed case property returned to the PS and case property was deposited with malkhana and all the seven accused were taken to Patiala House Courts. This witness has also stated that he can identify the case property .
21. During cross examination by the counsel for the accused Fayaz Ahmad and Raj Kumar, this witness has deposed that he had joined investigation at the instance of Inspector Virender Singh and further stated that Rewari line started from FCI Godown, Mayapuri and ends at Pankha Road in the SC No 10/08/07 Page 18 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others jurisdiction of PS Mayapuri. He has further stated that so far as he remembers, the police party went to spot of incident from where accused persons were arrested in Toyota Qualis vehicle driven by a private driver. PW11 further stated that he went to Dayabasti Railway Station at about 7:00 pm. He further stated that Inspector IO Virender Singh has not met with the station master of Dayabasti Railway Station or any police official of RPF Post. He further stated that he did not remember whether Inspector Virender Singh asked any person to join investigation or not. He further stated that police party remained at the spot i.e platform Daya Basti Railway Station for half an hour and IO has recorded the disclosure statement of accused Fayaz Ahmad and amit Chauhan at platform of Daya Basti Railway Station at about 7:45 pm. He further stated that vehicle was parked outside the railway station. It is further stated that when the accused persons were arrested, they were sitting on the bench. He further stated that he did not remember whether any search of the accused persons was conducted at the spot. It is further stated that police party left the spot at about 8:30 pm alongwith the accused persons and police party went to Delhi Cantt. Railway Station as accused Fayaz Ahmad and Amit Chauhan had disclosed that their associates namely Raj Kumar and Mohd. Illiyas were in the jhuggi near Delhi Cantt. Railway SC No 10/08/07 Page 19 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others Station and, thereafter, police party reached Delhi Cantt. Railway Station at about 10:00 pm and accused Raj Kumar and mohd. Illiyas were arrested when they were standing outside the jhuggi and arrest memos of accused Raj Kumar and Mohd. Illyas were prepared by the Inspector and police party left Delhi Cantt. Railway Station at about 11:30 pm and at 12:00 pm, police party reached the PS in Toyota Qualis. He further stated that he did not remember whether the accused persons were interrogated by the IO or were lodged in the lock up. He further stated that he did not remember if IO had recorded the disclosure statement of accused Raj Kumar and Mohd. Illiyas in the PS in his presence on 17.09.2007.
22. He further stated that he again joined investigation at around 11 am on 18.09.2007 and police party left the PS at about 11:30 am alongwith accused persons for Rewari Railway Line. He further stated that he did not remember whether IO has asked any public person to join the investigation at that time and he do not remember which particular accused has pointed out the place of recovery of articles as detailed in seizure memo Ex. PW11/B and accused persons had told and pointed out towards three persons standing there namely Kallu, Nayeem and Afsar Ali and disclosed that they had sold the SC No 10/08/07 Page 20 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others robbed articles to those three persons. He has further deposed that accused Fayaz Ahmad and Mohd. Illiyas had led inspector Virender, SI Kashmiri and HC Vishal to another jhuggi and got recovered some articles from there and at that time, police party remained at the spot and Inspector Virender, SI Kashmiri, HC Vishal, accused Fayaz Ahmad and accused Mohd Illiyas returned from another jhuggi alongwith two white coloured sealed parcels and police party left the spot at about 2:00 pm. It is further stated that recovered articles were kept in a cycle rehri/ Rickshaw (cart) and one member of the police team had come alongwith said recovered articles in cycle rehri/rickshaw while remaining persons had returned in Qualis and the case property was deposited with MHC(M). He denied the suggestion that accused Fayaz Ahmad was arrested from Delhi Cantt. Railway Station. He further denied the suggestion that accused Mohd Illiyas was lifted from Bawana, threefour days prior to 17.09.2007.
23. PW12 is Sh. Surender Prasad Mehto, whose testimony will be discussed in later part of the judgment.
24. PW13 is Suresh Bahadur, who was working as watchman in the Industrial Area of Mayapuri and on 10.09.2007 SC No 10/08/07 Page 21 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others at about 12 :00 pm, he was patrolling in a gali and he saw some boys were taking something away and when he asked them about their identity on which one of them assulted him with a sword due to which he sustained injury on his right shoulder and, thereafter he ran away from that gali and after sometime, he went to the said premises where the owner of the factory and his son were present alongwith one injured labour and injured was taken to DDU hospital. He further deposed that he could not identify the accused persons and hence, he has not supported the case of prosecution story.
25. PW14 is Const. Rajender Kumar, who has deposed that on 17.09.2007, he had joined the investigation of this case and he alongwith Inspector Virender, SI Kashmiri Lal, HC Rohtash, HC Vishal, HC Bona Ram, Const. Ram Chander and Const. Naresh went to Riwari Railway Line as IO/Inspector got secret information that accused involved in this case would come at Dayabasti Railway Station and accused Fayaz Ahmad and Amit Chauhan were apprehended and arrested and in the disclosure statements, they disclosed that two coaccused involved in this present case namely Raj Kumar and Mohd. Illiyas would be present at Jhuggis near Railway Line, Delhi Cantt and both accused were apprehended and, thereafter, SC No 10/08/07 Page 22 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others police party came to police station. He has further deposed that on 20.09.2007, he alongwith ASI Harpal Singh, HC Bhona Ram, Const. Naresh and accused Raj Kumar went to Distt. Gonda, UP and reached in the village of PS Mankapur on 21.09.2007 and police party took the assistance of local police and accused Raj Kumar led the police party to his house and got recovered the knife from slab of kachcha house which was sealed by ASI Harpal and taken into possession and thereafter, police party returned to Delhi alongwith accused accused Raj Kumar on 22.09.2007 and accused Raj Kumar got recovered his blood stained Tshirt and pant from bushes near Railway line which were sealed and seized by ASI Harpal and, thereafter, accused Raj Kumar led the police party to Shulabh Shochalaya, Khajan Basti and got recovered two rehdis (hand cart) which were used in the commission of offence.
26. During cross, he has admitted that he do not know the jhuggi number where the inspector met the informer and he has stated that police party had gone in a private Qualis vehile and police party reached railway line at 6:50 pm and reached Dayabasti Railway Station at about 7:15 pm. He further stated that he did not remember whether IO had asked any public person to join the investigation or not. He further stated that he SC No 10/08/07 Page 23 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others did not remember whether accused Fayaz Ahmad and Mohd. Illiyas were sitting under the sheds at that time and police party remained at the spot i.e Dayabasti Railway Station at about 2530 minutes after apprehending the accused persons and accused Amit Chauhan and Fayaz Ahmad were arrested at about 7:45 pm to 8:20 pm respectively and, thereafter, police party reached Delhi Cantt. Railway Station. He has further denied the suggestion that there were bushes on both the sides. He further volunteered that bushes were only on the side of DelhiCantt. and on the other side, there were jhuggis. He further stated that no public persons was joined when accused Mohd. Illiyas and Raj Kumar were arrested but IO had asked some persons to join investigation but none agreed.
27. PW15 Dhaneshwar Yadav is father of the deceased, who has identified the dead body of his son vide statement Ex. PW15/A on 23.09.2007.
28. PW16 is Dr. Vinal Sharma, Medical Officer, DDU Hospital, who had examined the deceased Nagender in terms of MLC No. 21437 vide Ex. PW16/A and after examination of the deceased, he found one lacerated wound present on the right side just above umbilicus.
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29. PW17 is Dr. L.C.Gupta, Specialist Forensic Medicine who alongwith Dr. Anita Jha had conducted postmortem examination on the body of deceased. He further deposed that deceased was brought to the casualty of the hospital at about 3:50 am on 11.09.2007 in conscious and oriented state and after surgery, he declared dead at 8:45 am on the same day and on examination of the deceased and following antemoretem injuries were noticed.
1. Stitched dissected wound of 5 cm length, having three black coloured thread stitched at its middle and on further dissection underneath sub scalp and sub periostel hemtoma was detected out in an area of 7 cm x 2 cm. It was reddish in colour and present at mid line of hand.
2. Incised stitched wound of elephtical shape with three stitches present at right side sub costal ara just above umblicus and 2 cm lateral to the mid line. Dried blood was present over it.
3. Stitched incised wound was present in mid line of abdomen extending from Xiphisternum to public symphysis. It was 27 cm in length and having 16 black colour stitches and four tension sutures. It was surgically made incised wound which was stitched layer by layer. On SC No 10/08/07 Page 25 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others opening of the abdomen and chest, incised wound of elephtical shape was found vertically in inferior vena cava at just below the side of sub diphagragmatic area where a gauge piece packing was also present with local collection of blood and blood clot.
30. Blood and blood gauge were preserved, sealed and were handed over to the IO alongwith inquest papers and opinion cause of death was opined as internal hamorrhagic shock and the postmortem report is Ex. PW17/A and the same was prepared by Dr. Anita Jha, Junior Resident under her handwriting.
31. In cross examination, Ld. Defence counsel has asked that deceased could had been saved if he was brought to hospital one and half hours before his actual time of arrival in the hospital and this witness answered that deceased may or may not have survived even after he was treated at the site of incident, immediately after infliction of injury as in this case, major blood vessels had been injured and the wound was quite big which was sufficient to drain out the whole blood of the body within few minutes.
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32. PW18 Nanku Prasad Gupta is a public witness of recovery effected on 21.09.2007 but he turned hostile and admitted that Ex. PW6/A and PW6/C bear his signature and in cross examination, he did not come on the line of prosecution story.
33. PW19 is ASI Rohtash Kumar, who on 17.09.2007 joined investigation with Inspector Virender, SI Kashmiri Lal, Const. Ram Chander, Const. Rajender and Const. Naresh and on that day, he alongwith police party reached Dayabasti Railway Station and at the instance of secret informer, two accused Fayaz Ahmad and Amit Chauhan were apprehended and arrested and they admitted their involvement in the present case and their disclosure statements recorded. Thereafter, accused Fayaz Ahmad and Amit Chauhand led the police party near Delhi Cantt. Railway Station and at their instance, accused Mohd. Illiyas and Raj Kumar were apprehended and accused Raj Kumar suffered his disclosure statement vide Ex. PW19/A. Thereafter, all the accused persons were taken to DDU hospital and police party returned to police station and accused were lodged in lock up and on the next day i.e 18.09.2007, all the accused persons led the police party to jhuggi No. B1009, Near Rewari Railway Line, Delhi Cantt and got recovered the articles SC No 10/08/07 Page 27 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others i.e 43 alumium slabs and other items from the said jhuggi and all the four accused persons pointed out towards three persons who had purchased said robbed items from these accused persons. Accused Kalu was arrested vide arrest memo Ex. PW19/B and his personal search was taken vide memo Ex. PW19/C. He further deposed that on 19.11.2007, accused Amit Chauhan was taken out from the lock up and joined investigation and he got recovered iron rod near the wall of railway station, Delhi Cantt. near railway line. And accused Amit Chauhan and Fayaz Ahmad were apprehended at Dayabasti Railway Station. It is further stated that he did not remember the platform number from where the accused persons were arrested and arrest memo and search memo of accused persons were prepared at the spot and further stated that he did not know whether any public witness had joined investigation or not. During cross examination, he further stated that he did not remember whether IO had sent any police official to call any RPF and GRP employee and from the place of arrest, accused persons were asked to cover their faces. He has further stated that Mohd. Illiyas and Raj Kumar were arrested from Delhi Cantt. Railway Station and he did not remember the platform number from where the accused persons were arrested and on 18.09.2007, police party went in a private vehicle SC No 10/08/07 Page 28 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others including accused persons at the jhuggi No. B1009, Kanchan Basti near Rewari Railway Line where police party got recovered robbed articles but he did not remember as to who brought the recovered articles to PS and by which mode. He denied the suggestion that during the whole investigation, all the accused persons were in unmuffled face.
34. PW20 Raj Kumar is a witness to the recovery and has turned hostile and during cross examination, he has not come on the line of the prosecution story but he has admitted his signatures on seizure memo Ex. PW20/A. He denied the suggestion that accused persons had got recovered articles or accused Kalu had kept the articles in his jhuggi after unloading the same from goods carrier rickshaw.
35. PW21 is Const. Dev Kumar, who has deposed that on 19.09.2007, he alongwith SI Kashmiri Lal, HC Rohtash, HC Bhuna Ram, HC Vishal and accused Amit Chauhan had gone to Rewari Railway Line, Near Jhuggi and got recovered one knife after digging the land. Therefore, IO prepared the sketch of the knife and seized the same after converting the same into sealed parcel and, therefore, police party returned to police station and IO deposited the case property with MHC(M).
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36. PW22 is HC Kalyan Sahai, who has deposed that on 11.09.2007, Inspector Virender had deposited with him two sealed parcels alongwith sample seal which he deposited the same in malkhana and made entry in this regard at serial No. 1180 in register No.19 vide Ex. PW22/A. He further deposed that on 13.09.2007, Inspector Virender had deposited with him three sealed parcels alongwith sample seal which he deposited the same in malkhana and made entry in this regard at serial No. 1182 in register No.19 vide Ex. PW22/B. He further deposed that on 18.09.2007, Inspector Virender had deposited with him three sealed parcels alongwith sample seal which he deposited the same in malkhana and made entry in this regard at serial No. 1189 in register No.19 vide Ex. PW22/C. He further deposed that on 19.09.2007, Inspector Virender had deposited with him one sealed parcel alongwith sample seal which he deposited the same in malkhana and made entry in this regard at serial No. 1190 in register No.19 vide Ex. PW22/D. He further deposed that on 21.09.2007, Inspector Virender had deposited with him one sealed parcel alongwith sample seal which he deposited the same in malkhana and made entry in this regard at serial No. 1191 in register No.19 vide Ex. PW22/E. He further deposed that on 22.09.2007, Inspector Virender had deposited with him two SC No 10/08/07 Page 30 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others sealed parcels alongwith sample seal which he deposited the same in malkhana and made entry in this regard at serial No. 1194 in register No.19 vide Ex. PW22/F.
37. He further deposed that on 25.10.2007, he sent five sealed parcels alongwith sample seal to FSL Rohini through HC Rohtash vide RC No. 77/21 vide Ex. PW22/G and after depositing the exhibits in FSL Rohino, HC Rohtash handed over him the acknowledgment vide Ex. PW22/H.
38. PW23 Const. Raj Kumar is a member of crime team led by ASI Khajan Singh and he went to the spot i.e the said premises and injured had already been shifted to the hospital and blood spot (one drop0 was found at the spot and on the direction of the IO and Crime Team Incharge, he had taken five photographs of the spot vide Ex. PW23/A1 to PW23/A5 and their corresponding negatives are Ex. PW23/B1 to Ex. PW23/B5 and after developing the photographs, he handed over the same to the IO and, thereafter, IO recorded his statement.
39. PW24 is HC Vishal, who has deposed that on 17.09.2007, he had joined the investigation of this case alongwith Inspector Virender, SI Kashmiri Lal, HCRohtash, HC SC No 10/08/07 Page 31 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others Bhona Ram, Const. Rajender, Const. Ram Chander and Const. Naresh and went to Rewari Railway Line and on information that suspect would be available at Daya Basti Railway Station, police party went to Railway Station, Daya Basti and at the instance of the secret informer, accused Fayaz Ahmed and Amit Chauhan were apprehended and arrest memo of accused Fayaz Ahmed is Ex. PW24/A and, thereafter, disclosure statements of both the accused were recorded and the disclosure statement of accused Fayaz Ahmed is Ex. PW24/B. Thereafter, accused Fayaz Ahmed and Amit Chauhan informed Inspector Virender that their two associates could be apprehended from Delhi Cantt. Railway Station and, thereafter, police party alongwith both the accused went to Delhi Cantt. Railway Station and at the instance of accused Amit Chauhan and Fayaz Ahmed, accused Raj Kumar and Mohd. Illiyas were apprehended and, thereafter, both the accused were interrogated and arrested and all the accused were lodged in the lock up. The arrest memo of accused Mohd. Illiyas is Ex. PW24/E and the personal search memo of accused Mohd. Illiyas is Ex. PW24/F.
40. He further deposed that on 18.09.2007, he alongwith Inspector Virender, SI Kashmiri lal, HC Bhona Ram, HC Rohtash and Const. Ram Chander and all the four accused persons went SC No 10/08/07 Page 32 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others to Jhuggi No. B1009, Kanchan Basti near Rewari Railway Line where accused persons pointed out the articles namely 4243 aluminium slabs, one bag containing brake shoes and one bag containing aluminium dye in fish shape kept in the jhuggi and told the IO that said articles were out of the robbed articles and during investigation, 56 persons had gathered outside the jhuggi and one of the accused persons pointed towards one person among those 56 persons, who were standing with two boys and told the IO that said persons had purchased the robbed articles from them on 11.09.2007 and, thereafter, said person alognwith two boys were apprehended. He further deposed that he alongwith Inspector Virender, SI Kashmiri Lal, accused Fayaz Ahmed and Illiyas went to jhuggi of Mohd. Illiyas where he got recovered one iron rod and same was sealed and seized vide memo Ex. PW24/D and, thereafter, he alongwith police party and accused Fayaz and Illiyas went to Rewari Railway Line where accused Fayaz Ahmed got recovered one sword from a pit and same was seized by the IO vide seizure memo Ex. PW24/C and, thereafter, police party alongwith alongwith accused persons went to police station. This witness has also identified the case property i.e one sword Ex. PY1 (recovered at the instance of accused Mohd. Fayaz Ahmed, iron rod Ex. PY2 (recovered at the instance of accused Mohd. Illiyas).
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41. PW25 is Const. Hardeep Singh, who has deposed that on 28.07.2007, he alongwith SI Kashmiri Lal and Inspector Virender went to the spot where one eye witness Surender Prasad Mehto met the police party and at the instance of the said witness, he had took the measurements and rough notes and prepared scaled site plan vide Ex. PW25/A and same was handed over to the IO on 03.12.2007.
42. PW26 is SI Kashmiri Lal, who has deposed that on 11.09.2007, on receipt of DD No. 7A, he alongwith Const. Mukesh went to the spot where he came to know that injured had already been shifted to the hospital and in the meantime, he received a DD No. 8A through const. Dev Kumar regarding admission of two injured persons namely Nagender and Suresh Bahadur in DDU hosptial vide MLC No. 21437 and 21379 and went to the hospital leaving Const. Mukesh at the spot and in the hospital, injured Nagender was declared unfit for statement and injured Suresh Bahadur was not available. He further deposed that he recorded the statement of complainant Surender Prasad Mehto and, thereafter, he returned to the spot and prepared rukka Ex. PW26/A and he sent Const. Mukesh to police station for registration of FIR and after registration of FIR, SC No 10/08/07 Page 34 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others investigation of this case was assigned to Inspector Virender Singh. He further deposed that IO prepared the rough site plan at the spot and photographer of crime team took the photographs and IO seized the blood stained earth and earth control from the spot vide seizure memo Ex. PW26/B and PW26/C. He further deposed that he alongwith IO went to the hospital where he came to know that Nagender had expired in the hospital and, thereafter, they returned to the police station and deposited the exhibits with MHC(M).
43. He further deposed that on 13.09.2007, he alongwith IO went to DDU hospital mortuary where doctor after postmortem of Nagender, handed over two sealed parcels alongwith seal to the IO and same were seized vide seizure memo Ex. PW26/D and, thereafter, they returned to police station and deposited the exhibits with MHC(M).
44. He further deposed that on 17.09.2007, raiding team went to the area of Jhuggis near Rewari Railway Line where secret informer informed Inspector Virender Singh that two persons involved in this cae would be available at Daya Basti Railway Station and, thereafter, raiding team alongwith secret informer went to Daya Basti Railway Station and at about 8:00 SC No 10/08/07 Page 35 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others pm, at the instance of secret informer, accused Fayaz Ahmed and Amit Chauhan were apprehended, interrogated and arrested and the arrest memo of accused Amit Chauhan is Ex. PW26/E and personal search memo of accused Fayaz Ahmed is Ex. PW26/F and disclosure statements of accused Amit Chauhan is Ex. PW26/C and Fayaz Ahmed is already Ex. PW24/B and both the accused disclosed that their two associates would be available at Delhi Cantt. Railway Station and, thereafter, police party alonwith accused Amit Chauhan and Fayaz Ahmed went to Delhi Cantt. Railway Station where accused Mohd. Illiyas and Raj Kumar were apprehended, interrogated and arrested. Accused Raj Kumar was arrested vide memo Ex. PW26/H and accused Mohd. Illiyas was arrested vide memo Ex. PW24/E and, thereafter, their personal search was taken and personal search of accused Mohd. Illiyas was already Ex. PW24/F and personal search of accused Raj Kumar was taken vide memo Ex. PW26/I and, thereafter, disclosure statement of accused Mohd. Illiyas and Raj Kumar were recorded.
45. He further deposed that on 18.09.2007, he alongwith raiding team and all the four accused persons in muffled faced went to the area of jhuggis near Rewari Railway Line and accused persons led the police party to jhuggi No. B1008 and SC No 10/08/07 Page 36 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others got recovered 43 aluminium slabs, one bag containing 360 brake shoes and one bag containing 750 dyes of fish shape and same were seized by the IO already Ex. PW1/B. Thereafter, accused Mohd. Illiyas led the police party to his house in the area of Kanchan Basti and got recovered one iron rod and same was seized vide seizure memo already Ex. PW4/D and, thereafter, accused Fayaz Ahmed led the police party to Rewari Railway Line and got recovered one sword near Railway Line from a pit and same was seized vide seizure memo already Ex. PW24/B and, thereafter, police party returned to jhuggi No. D1008 from where three persons namely Kallu, Naeem and Afsar Ali were arrested at the instance of all the four accused persons as they had sold the robbed articles to those three persons. The arrest memo of Afsar Ali and Naeem are Ex. PW26/J and PW26/K and the personal search memo of Afsar Ali and Naeem are Ex. PW26/L and PW26/M and the disclosure statements of accused persons were recorded and, thereafter police party returned to police station and the case property was deposited with the malkhana.
46. He further deposed that on 19.09.2007, he alongwith Inspector Virender Kumar and accused Amit Chauhan joined the investigation and accused Amit Chauhan led the police SC No 10/08/07 Page 37 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others party to Rewari Railway line and gone recovered one knife from a pit near jhuggis and same was seized vide seizure memo already Ex. PW20/A and at the time of recovery of knife, one independent witness Raj Kumar had joined the investigation and he had put his signatures on the seizure memo.
47. This witness has also identified the case property containing 43 aluminium slabs Ex. P1 (Colly) (recovered at the instance of accused Fayaz Ahmed, Amit Chauhan, Raj Kumar and Mohd. Illiyas), 755 aluminium mix fans Ex. P2 (recovered at the instance of accused Fayaz Ahmed, Amit Chauhan, Raj Kumar and Mohd. Illiyas, 327 aluminium brake shoes Ex.P3 (colly) (recovered at the instance of accused Fayaz Ahmed, amit Chauhan, Raj Kumar and Mohd. Illiyas), one sword Ex. PY1 (recovered at the instance of accused Fayaz Ahmed), one iron rod Ex. PY2 (recovered at the instance of accused Mohd. Illiyas), one buttondar knife Ex. PZ1 (recovered at the instance of accused Amit Chauhan).
48. PW27 is HC Bhona Ram, who has also deposed on the line of PW26 SI Kashmiri Lal regarding apprehension, arrest and interrogation of the accused persons as well as recovery of articles. He further deposed that on 20.09.2007, he alongwith SC No 10/08/07 Page 38 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others ASI Harpal, Const. Rajender and Const. Naresh and accused Raj Kumar went to police station Mankapur, Distt. Gonda, UP and reached there on 21.09.2007 and reported the local police station at village Gothiya. He further deposed that accused Raj Kumar led the police party to his house and got recovered one knife and, thereafter, sketch of the knife was prepared which is already Ex. PW6/C and ASI Harpal seized the same and, thereafter, police party returned to Delhi on 22.09.2007 and after reaching Delhi, accused Raj Kumar got recovered his clothes from Rewari Railway line from the bushes and same were seized vide seizure memo already Ex. PW6/D and, thereafter, accused Raj Kumar got recovered one trycycle rickshaw used for carrying goods and same was seized vide seizure memo already Ex. PW6/C and, thereafter, case property was deposited in the malkhana and on 23.09.2007, his statement was recorded by the IO.
49. PW28 is Sh. Kuldeep Narayan, CCJ/ARC, Karkardooma Courts, who has deposed that on 03.10.2007, SI Kashmiri Lal has moved application Ex. PW28/A for conducting TIP of accused Mohd. Illiyas, Amit Chauhan and Fayaz Ahmed and on that day, he went to Tihar Jail where the TIP of accused Amit Chauhan was conducted through PW Pankaj Bahadur, SC No 10/08/07 Page 39 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others Surender and Ravinder and during TIP, PW Pankaj had corectly identified accused Amit Chauhan, however, PW Surender and Ravinder did not identify the accused and, thereafter, he had recorded their statements to that effect. He had also proceeded for the TIP of accused Mohd. Illiyas in respect of witness Ravinder but he could not identify the accused. The TIP proceedings in respect of accused Amit Chauhan and Mohd. Illiyas is EX. PW28/B.
50. He further deposed that on 11.10.2007, IO SI Kashmiri Lal has moved application Ex. PW28/C for conducting TIP of accused Raj Kumar and Fayaz Ahmed and he had proceeded for conducting the TIP of both the accused but both the accused persons refused to take part in TIP proceedings and, therefore, he had recorded their statements to that effect. The TIP proceeding in respect of accused Raj Kumar is Ex. PW28/D and accused Fayaz Ahmad is Ex. PW28/E and on the application of the IO, copy of TIP proceedings were supplied to him.
51. PW29 is Dr. Narender Solanki who has deposed on behalf of Dr. Rakesh Kumar Sinha as he has left the services of the DDU hospital and he is well conversant with the handwriting and signature of Dr. Rakesh Kumar Sinha. He has SC No 10/08/07 Page 40 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others deposed that as per record, on 11.09.2007 at about 3:50 am, injured Nagender was bought to DDU hospital and, thereafter, injured Nagender was referred to ICU and after operation in the supervision of Dr. Rakesh Kumar Sinha, injured Nagender expired and, thereafter, Dr. Payal, Junior Resident, ICU prepared the death summary of deceased Nagender Ex. PW29/A on the direction of Dr. Rakesh Kumar Sinha and photocopy of the CPR notes is Ex. PW29/B.
52. PW30 is Retd. Inspector Virender Singh, who has deposed that on 11.09.2007, he was handed over the investigation of this case on the request of SI Kashmiri Lal and, thereafter, he alongwith Const. Mukesh Kumar proceeded to the scene of crime where he met SI Kashmiri Lal and he alongwith SI Kashmiri Lal and the complainant namely Surender Mehto inspected the scene of crime and made a rough site plan Ex. PW30/A and lifted the blood soak and earth control from the spot and seized the same vide seizure memo Ex. PW26/B and PW26/C and deposited the case property with MHC(M). He further deposed that on 13.09.2007, the postmortem of the deceased Nagender was got conducted vide inquest papers Ex. PW30/B and after postmortem doctor handed over to him blood sample, blood in gauze and sample seal which he seized the SC No 10/08/07 Page 41 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others same vide seizure memo Ex. PW26/D. Now this witness also deposed on the line of PW26 SI Kashmiri Lal and PW6 ASI Harpal regarding apprehension, interrogation and arrest of accused persons as well as recovery of robbed articles as well as recovery of knife, sword, rickshaw rehdi and blood stained clothes of accused Raj Kumar.
53. He further deposed that accused Amit Chauhan and Mohd. Illiyas were produced for judicial TIP on 03.10.2007 and they were correctly identified by the witness and the other two accused persons namely Raj Kumar and Fayaz Ahmed refused in taking part in TIP on 11.10.2007. He further deposed that he had collected the medical record of injured and post mortem report of the deceased and, thereafter, he sent the exhibits to FSL Rohini and recorded the statement of witnesses. He further stated that on completion of investigation, he had prepared the chargesheet and file the same in the court.
54. Ld. Addl. PP for the State has contended that accused persons had committed murder of the deceased Nagender while committing dacoity in the said premises owned by PW3 Joginder and they fled away with the robbed articles i.e 48 aluminium bricks, 560 pieces of mixie fans and 375 pieces of SC No 10/08/07 Page 42 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others brake shoe and they were apprehended at the instance of secret informer and they were got identified by the prosecution witnesses in TIP and two accused were identified by the prosecution witnesses and other two accused had refused to participate in the TIP and adverse inference has to be drawn against the accused persons. It is further contended that the case property/stolen property was recovered at the joint disclosure statement and joint pointing out memo of the accused persons from the residence of accused Kallu and prosecution has proved on record that the accused persons had murdered the deceased while committing the dacoity in the premises of PW3. Therefore, the accused deserve to be convicted.
55. On the other hand, Ld. Counsels for the defence have contended that accused persons have been falsely implicated in the present case and they have no concern whatsoever with the alleged offence in which the deceased Nagender has been murdered as the accused persons had neither committed any dacoity nor they have murdered the deceased Nagender. It is further contended that alleged eye witnesses had failed to identify the accused persons in TIP and two accused persons namely Raj Kumar and Amit Chauhan had refused to participate SC No 10/08/07 Page 43 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others in the TIP as they were already shown to the witnesses in the police station. Therefore, dock identification of accused persons by witnesses in the court is of no consequence and such testimony has no relevance under law. It is further contended that recovery has been affected at the joint disclosure statements and joint pointing out memos by the accused persons also inadmissible in the evidence and prosecution has left with no evidence on record to connect the accused persons with the alleged offence, otherwise also, prosecution case is full of material contradictions and vital discrepancies which caste a doubt upon the prosecution story regarding involvement of the accused persons in the present case, therefore, accused deserve to be acquitted by giving benefit of doubt.
56. I have Ld. Addl. PP for the State and Ld. Counsel for the defence and gone through the record.
57. The present case is based on eye witness account as well as circumstantial evidence. As per prosecution story, the accused persons had entered into the said premises owned by PW3 Joginder where PW9 Ravinder Kumar Yadav and PW12 Surender Prasad Mehto were working as employee in the night shift alongwith deceased Nagender and at about 2:30 am as per SC No 10/08/07 Page 44 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others the deposition of PW9 and PW12, accused persons had committed dacoity in the said premises owned by PW3 and after stabbing the injured, they had fled away by taking the robbed articles on rickshaws.
58. The first question arises for consideration is whether the deceased Nagender died of homicidal death or not. To prove that the deceased died of homicidal death, PW3 Joginder has stated that he was running an aluminium dye casting factory at the said premises on 11.09.2007 at about 3:00 am, chokidar of the area had gave him a call and informed that some unknown persons had locked his employees inside the said premises after robbing them and one of the employee namely Nagender has been stabbed. PW3 has further corroborated the prosecution story that deceased alongwith another employees namely PW9 Ravinder Kumar Yadav and PW12 Surender Prasad Mehto was working in the factory at the said premises and, thereafter, PW3 alongwith his father rushed to the said premises and on reaching there, he found that factory was locked from outside and then they broke open the locks and observed that deceased Nagender was bleeding as he was having stab wound in his stomach and he was shifted to DDU hospital in his car by PW3 but he could not be saved.
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59. The fact regarding admission of the deceased in DDU hospital is further corroborated by the testimony of PW2 HC Raj Kumar who had deposed that on 11.09.2007 at about 4:00 am, he informed PS Mayapuri on telephone that injured Nagender and Suresh has been admitted in DDU hospital and DD No. 8A (Ex. PW2/A) was recorded in this regard. The deceased died of homicidal death is further proved by PW16 Dr. Vinal Sharma, who has deposed that the deceased was admitted in DDU hospital at 3:50 am on 11.09.2007 with the alleged history of assault and he found one lacerated wound approx. 5x1x3 cm on the right side just above the umbilicus in terms of MLC Ex. PW16/A and in cross examination, he had admitted that he could not say which injury present on the injured Nagender could have been fatal if proper treatment was not given within one hour of sustaining injury. He further volunteered that the injuries so sustain by the injured Nagender were fatal.
60. PW17 is Dr. I.C.Gupta, who has conducted the postmortem on the body of the deceased has observed three incized stitches on the body of the deceased and as per his testimony, the cause of death was internal hemorrhagic shock SC No 10/08/07 Page 46 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others caused by sharp injury at upper abdominal area by the other party, leading into perforation of inperior vena cava and said injury was sufficient to cause death in the ordinary course of nature.
61. From the above discussion, I am of the opinion that the prosecution has proved on record that the deceased had received injuries when he tried to stop the accused persons from committing robbery on the deceased as well as other colleagues namely Surender Prasad Mehto and Ravinder Kumar Yadav at the said premises and deceased Nagender was shifted to DDU hospital and he died on account of the fatal injuries sustained by him in the act of committing dacoity by the accused persons at the said premises owned by PW3.
62. The contention of the counsel for the accused persons that PW16 Dr. Vinal Sharma has opined that the deceased has sustained only lacerated wound, otherwise as per prosecution witnesses PW9 Ravinder Kumar Yadav and PW12 Surender Prashad Mehto, the accused had given stabbed injuries to the deceased, so the medical evidence is contrary to the ocular evidence led by the prosecution but this contention appears to be attractive but same is found falacious in as much SC No 10/08/07 Page 47 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others as the Pws in very categoric terms have deposed that the deceased had been stabbed by accused persons while he intervened in the act of the accused persons committing dacoity in the said premises, and deceased was present alongwith PW9 and PW12.
63. PW17 Dr. I.C.Gupta , who has conducted the postmortem of the deceased has opined that the dead body of the deceased was having three incised stitched wounds and, thereafter, the medical evidence in the shape of testimony of PW16 that the injured Nagender has sustained single lacerated wound pales into insignificance in view of the impacable testimony of PW9 and PW12 that the deceased Nagender was stabbed with a knife and their testimony is further corroborated by the testimony of PW17 that he found three incised stitched wounds in the dead body. Therefore, there is no contradiction in the testimony of PW's ocular evidence with that of the medical evidence in the shape of testimony of PW16.
64. It may be noted here that as per prosecution story, accused persons were not apprehended at the spot nor they were named by any of the eye witnesses who were present at the time of commission of offence in question. But two accused SC No 10/08/07 Page 48 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others namely Mohd. Fiyaz and Amit Chauhan were apprehended by the police party on 17.09.2007 from Dayabasti Railway Station and at the instance of accused Fayaz Ahmed and Amit Chauhan, another accused persons namely Mohd. Illiyas and Raj Kumar were apprehended later on.
65. As per prosecution story, the police party led by PW30 Inspector Virender Singh consisting of PW7 Const. Naresh, PW11 Ram Chander, PW14 Rajender Kumar, PW19 Rohtash, PW24 HC Vishal, PW26 SI Kashmiri Lal, PW27 HC Bhona Ram had received a secret information on 17.09.2007 regarding presence of two accused persons involved in the present case at Dayabasti Railway Station and the above said police party went to Kanchan Basti near Rewari Line where secret informer met them and apprehended them and their names were later on known as Fayaz Ahmed and Amit Chauhan and these two accused were arrested vide memo Ex. PW24/A and PW26/E and the accused persons Fayaz Ahmed and Amit Chauhan made their disclosure statements Ex. PW26/G and PW26/B respectively and in their disclosure statements, both the accused persons stated that their coaccused would be available at Delhi Cantt. Railway Station and police party alongwith accused persons went to Delhi Cantt.Railway Station SC No 10/08/07 Page 49 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others and accused Raj Kumar and Mohd. Illiyas were apprehended and arrested vide arrest memo Exd. PW26/H and PW24/E and they also made their disclosure statements vide Ex. PW11/A and PW19/A respectively.
66. It is further the prosecution case and police witnesses had deposed that on 18.09.2007, PW30 alongwith PW26, PW7, PW11, PW14, PW19 and accused persons left police station for investigation of this case and in terms of their disclosure statements, accused persons led the police party to the jhuggi area near Rewari Railway Line in the PS Mayapuri and they made a joint pointing memo and pointed out towards jhuggi No. B1009 and from that jhuggi, case property ie 43 aluminium slabs, brake shoe 327 and silver coloured pieces of the shape of fins 755 were recovered. Police party headed by PW30 had taken out four pieces of each from recovered articles and same were sealed and seized vide seizure memo Ex. PW11/B and, thereafter, PW30 has further deposed that accused Mohd. Illiyas led the police party to Khazan Basti near Rewari Railway Line and got recovered one iron rod which was seized and sealed vide seizure memo Ex. PW4/D and, thereafter, accused Fayaz Ahmed led the police party near Rewari Railway station from where he got recovered one sword from a pit near SC No 10/08/07 Page 50 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others Railway Line and the said sword was converted into sealed parcel and seized vide seizure memo Ex. PW24/B. The testimony of PW30 is further corroborated by other members of police party consisting of PW26, PW7, PW11, PW14 and PW19 and they had also deposed on the line of PW30 so far as the recoveries are affected at the instance of accused persons of the robbed articles as well as the weapon of offence namely the iron rod from Mohd. Illiyas and sword from Fayaz Ahmed.
67. PW30 has further deposed that on 19.09.2007, police party proceeded for investigation of this case and during the course of investigation, accused Amit Chauhan took the police party near Kanchan Basti and he got recovered one spring actuated knife and same was sealed and seized vide seizure memo Ex. PW20/A. It is relevant to note here that on receipt of information that one person has been stabbed in the factory premises in Mayapuri, DD No.7A (Ex. PW4/A) was recorded in the PS Mayapuri on 11.09.2007 and PW26 alongwith PW8 went to the spotof incident and in the mean time, PW26 received another DD No.8A (Ex.PW2/A) through constable Dev Kumar that two injured Suresh and Nagender have been admitted in hospital and PW26 went to DDU hospital leaving constable Mukesh at the spot and he found injured Nagender not fit for SC No 10/08/07 Page 51 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others statement and injured Surender Prasad Mehto was not available and he found complainant Joginder present in the hospital and he recorded his statement Ex. PW12/A and he returned to the spot and prepared rukka Ex. PW26/A and sent PW8 constable Mukesh Kumar for registration of FIR and investigation of this case was assigned to Inspector PW30 who after sometime constable Mukesh returned to the spot. Thereafter, investigation was handed over to PW30 Inspector Virender Singh and he prepared rough site plan. Crime team was also called at the spot and IO seized the blood stained earth control and earth control from the spot of incident Ex. PW26/B and PW26/C respectively and PW26 went to hospital where he came to know that deceased Nagender has been expired. PW26 SI Kashmiri Lal has further deposed that on 13.09.2007, he got conducted the postmortem of the deceased and doctor handed over two sealed parcels after conducting the postmortem which were seized vide Ex. PW26/D and he deposited the said exhibits to the MHCM.
68. So far as the contention of the counsel for the accused that there is delay in lodging the FIR is concerned, the said contention is falacious as FIR was lodged at about 6:30 am in the morning on 11.09.2007 and incident has took place at about 3:00 am, so there is no delay in lodging the FIR.
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69. So far as the contention of the counsel for the accused persons with the accused has not been arrested from the place as has been shown by the police party is concerned. The said contention is also falacious and is hereby rejected as police party consisting of PW30 IO/Inspector Virender Singh, PW19 Rohtash, PW26 SI Kashmiri Lal, PW14 Rajender Kumar and PW11 Ram Chander, PW24 HC Vishal and PW27 Bhona Ram have deposed in unequivocal terms that the secret information was received that two accused involved in the present case were available at Dayabasti Railway Station and police party headed by PW30 went to Dayabasti Railway Station and apprehended the same namely Fayaz Ahmed and Amit Chauhan and PW7has stated in his chief that he alongwith said police party went to Rewari Railway line, Delhi Cantt and PW26 gave instructions to PW7 and another members of police party that accused persons should not escape and they should be apprehended and it is contended by Counsel for the accused persons that PW7 has contradicted other witnesses consisting of police party that accused persons were apprehended at Dayabasti Railway Station.
70. It may be relevant to note here that PW7 has stated SC No 10/08/07 Page 53 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others that the police party had gone towards Rewari Railway Line consisting of railway track falling within jurisdiction of PS Mayapuri which include Dayabasti Railway Station and some part of the Delhi Railway Station and during cross examination, PW7 has denied this suggestion that accused persons namely Fayaz Ahmed and Amit Chauhan were not arrested from near Dayabasti Railway Station and this witness has not stated Rewari Railway Line is not falling on the way to Daya Basti Railway Station. Other Pws consisting of said police party had also deposed on the line of the prosecution story that accused Fayaz Ahmed and Amit Chauhan were arrested near Railway Station. Therefore, it can safely be inferred that accused Fayaz Ahmed and Amit Chauhan were arrested from Dayabasti Railway Station.
71. So far as the contention of the counsel for the accused persons is that police witnesses had contradicted each other with regard to the vehicle in which they had gone to the railway station as some witnesses had stated that they had gone in police gypsy, whereas, other witnesses stated that they had gone in Toyota Qualis to Daya Basti Railway Station. In this regard, it may be noted that PW7 in his cross examination by counsel for the accused Amit stated that police party had gone SC No 10/08/07 Page 54 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others in police gypsy and said gypsy was parked near flyover and secret informer who was already present near the place where the said police gypsy was parked whereas PW11 in his cross has stated that the police party consisting of Inspector Virender Singh, SI Kashmiri Lal, HC Rohtas, Const. Rajender, HC Bhina Ram and Const. Naresh went to the spot in a private vehicle but he did not remember the make, registration and colour of the said vehicle and said vehicle might be Toyota Qualis and he further deposed that he did not know who was driving the said vehicle but driver was a private driver and he did not know who had hired the said vehicle. Police party went at Daya Basti Railway Station at about 7:00 pm in Qualis itself but this contradiction with regard to the vehicle in which the police party had went to Dayabasti Railway Station is neither a material contradiction nor vital discrepancy as with the passage of time, human memory fades away and witness cannot be expected to have a parrot like version of all the facts which took place in his presence. Therefore, this alleged contradictions regarding the fact that PW7 has stated that they had gone in police gypsy whereas PW11 has stated that the police party had gone in Toyota Qualis is not a material contradiction which may cause a dent in the prosecution story.
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72. Another contention of the counsels for the accused persons is that the case property as per the prosecution story was consisting of 84 aluminium bricks, one bag of brake shoes and two bags of mixie blades as deposed by PW3 but deficient case property has been recovered which has raised cloud of suspicion on the alleged recovery by the police at the instance of the accused persons. But this deficient recovery of the case property from the accused persons is not going to cause a dent in the prosecution story as the accused might have disposed off some part of the stolen property to some other persons who are not accused in the present case, otherwise, the said recovery which had been got recovered at the instance of the accused persons has been got identified by PW3 Jogender, PW9 Ravinder Kumar Yadav and PW12 Surender Prasad Mehto. PW3 is the owner of the said case property. Therefore, this deficient case property recovered at the instance of the accused persons is not going to cause any dent in the prosecution story.
73. Similarly the contention of the counsel for the accused persons is that PW19 ASI Rohtash Kumar as stated that the accused Amit Chauhan had got recovered one iron rod which is contradictory to the testimony of other witnesses who had stated that knife was got recovered at the instance of SC No 10/08/07 Page 56 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others accused Amit Chauhan and in cross examination, PW19 had stated that accused Amit Chauhan got recovered an iron rod. But this contradiction is immaterial as PW19 who has turned hostile and has deposed while cross examined by State counsel that the seizure memo Ex. PW20/A bears his signature in terms of which accused Amit Chauhan had got recovered a knife. Apart from this, other members of police party who had conducted raid and apprehended accused on 17.09.2007 namely PW26 SI Kashmiri Lal and PW27 HC Bhona Ram had deposed in unequivocal terms that accused Amit had got recovered knife, therefore the alleged contradictions that one of the Pws has deposed that accused Amit Chauhan had got recovered a knife is wholly falacious and is hereby rejected.
74. Now coming to the next contention of the counsel for the accused persons that no person had been joined in the process of making recoveries at the instance of accused persons and only public witness PW20 Raj Kumar who had joined by the police party at the time of alleged recoveries at the instance of accused persons has not supported the prosecution case even after being subjected to cross examination by State counsel and he has stated that police had taken his signatures on blank papers whereas from the recoveries made at the join disclosure SC No 10/08/07 Page 57 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others statement as well as joint pointing out memo of the accused persons is shrouded in the clouds of suspicion and no recovery has been affected at the instance of the accused persons but this contention is also falacious and is liable to be rejected and as much as provision of section 100 Cr.PC is not mutatis mutandi applicable to the provision of section 27 of the Indian Evidence Act. Otherwise also, the recoveries affected at the instance of the accused persons is not to be doubted and if the recoveries appears to have been made in the ordinary course of nature then those recoveries cannot be doubted, otherwise, those recoveries also relevant under section 8 of the Indian Evidence Act. In this regard, I found support from the observation of Hon'ble High Court in Delhi in Updesh @ Chintu vs State 2012IIAD(delhi) 626 is also relevant which is reproduced hereunder:
A perusal of the testimony of PW6, PW7 and PW8 shows that recovery of the arms and ammunition was made pursuant to his disclosure in case FIR No. 154/09. Thus, recording of a disclosure statement in the present case could not have taken place. The contention of the learned counsel that recovery was not pursuant to disclosure SC No 10/08/07 Page 58 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others statement of the appellant is liable to be rejected. The recovery of the articles is pursuant to disclosure statement which is admissible under section 27 of the Indian Evidence Act. The registration of FIR is not a sine qua non for the recovery to be effected. Recovery can be effected even on an oral disclosure statement. Further the conduct of the accused leading the police party to his house and the specific place in the house from where the recovery of arms and ammunitions is consequently made is also admissible under section 8 of the Evidence Act. Reference in this regard is made of Himachal Pradesh Administration vs. Om Prakash MANU/SC/0118/1971: (1972) 1 SCC 249.
75. It may be noted here that the testimony of police personnel have to be treated in the same manner as testimony of any other witnesses and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a SC No 10/08/07 Page 59 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others person acts honestly applies, as much in favour of police personnel as of other person and it is not a proper judicial approach to distrust and suspect them without good ground. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down. In this regard, I found support from Karanjit Singh Vs. State (Delhi Admn.) 2003 5 SCC 291, C. Ronald & Anr. Vs. Union Territory of Andaman & Nicobar Islands, (2001) 1 SCC (Crl.) 596 and Supreme Court in Sunil Clifford Daniel vs. State of Punjab, 2012 11 SCC 205 referred to State Govt. of NCT of Delhi vs. Sunil (2001) 1 SCC 652, wherein Court held as under: "20. ... But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.
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21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust.....At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way round. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of SC No 10/08/07 Page 61 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
76. Record reveals that no illwill or animus has been alleged against any of the police officials for which reason they will falsely implicate the accused persons in the present case.
77. Now coming to the recovery affected at the instance of accused Raj Kumar from his native village. It may be noted here that police party consisting of PW6, PW14, PW7 alongwith accused Raj Kumar went to PS Manakpur, District Gondha, UP on 21.09.2007 and brought the matter to the knowledge of local police of village Gothia. PW6 ASI Harpal Singh has deposed that he alongwith above said police party on 20.09.2007 and accused Raj Kumar had gone to village Gothia SC No 10/08/07 Page 62 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others and he joined local police as well as one independent witness in the investigation namely PW10 Const. Bali Ram and PW18 Nanku Prasad Gupta and PW6 has further deposed that accused Raj Kumar led to a hut made from khaprael in front of his house in his village Gothia and from a room, accused Raj Kumar got recovered a knife which was seized vide seizure memo Ex. PW6/A and prepared the site plan of the place from where the said knife was recovered vide Ex. PW6/B and prepared the sketch of said knife as Ex. PW6/C.
78. PW7 Const. Naresh as well as PW14 Const. Rajender Kumar and PW27 HC Bhona Ram have also deposed on the line of PW6 ASI Harpal Singh, so far as, recovery of knife at the instance of accused Raj Kumar is concerned. Apart from this PW10 Const. Bali Ram Singh Kushwah who is officer of UP police has deposed that police party consisting of PW6 and other members had approached the police station and he alongwith police party came from Delhi had gone to the house of accused Raj Kumar from where accused Raj Kumar got recovered knife. Although, PW18 Nanku Prasad Gupta has turned hostile, so far as, recovery of knife from accused Raj Kumar in village Gothia is concerned. But this witness PW18 has admitted his signatures in the document Ex. PW6/A and SC No 10/08/07 Page 63 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others PW6/C whereas alleged weapon of offence I.e knife got recovered at the instance of accused Raj Kumar from his village in Gothia. Therefore, even after the witness PW18 has turned hostile. The recovery of knife from the accused Raj Kumar cannot be doubted for the reasons which I have discussed in foregoing para.
79. It is further deposed by PW6that the police party consisting of PW7 Const Naresh, PW14 Const. Rajender Kumar and PW27 HC Bhona Ram rturned to Delhi on 22.09.2007 and PW6 alongwith accused and case property went in the area of PS Mayapuri Railway Line and accused Raj Kumar led the police party consisting of PW6 ASI Harpal Singh, PW7 Const. Naresh, PW14 Const. Rajender Kumar and PW27 HC Bhona Ram and accused Raj Kumar got recovered his Tshirt and pant which he was wearing on the date of incident and same was seized and thereafter, accused Raj Kumar got recovered two cycle rickshaws near Shauchalya Sabzi Mandi, Khazan Basti vide seizure memo Ex. PW6/E. This witness has also identified the case property namely knife, Tshirt and jeans pant got recovered from accused Raj Kumar.
80. So far identity of the accused persons is concerned.
SC No 10/08/07 Page 64 of 94SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others None of the alleged eye witnesses had stated to the police either the name of the accused persons involved in the present case or their features to the police and the accused were apprehended at the instance of the secret informer on 17.09.2007 and TIP were conducted in respect of accused Mohd. Illiyas, Amit Chauhan and accused Raj Kumar and Fayaz Ahmed refused to participate in TIP.
81. PW28 Sh. Kuldeep Narayan, who has conducted the TIP in respect of the accused Mohd. Illiyas in terms of Ex. PW28/B has deposed that while conducting the TIP in respect of accused Mohd Illiyas, first of all, he called Pankaj Bahadur, who was a prosecution witness who could not be produced by prosecution as he was not available and went to his native village in Nepal and Pankaj Bahadur has identified accused Mohd. Illiyas as the person who was involved in this offence and, thereafter, PW28 got conducted TIP of accused Mohd. Illiyas in respect of PW12 Surender Prasad Mehto and PW9 Ravinder Kumar Yadav and both these witnesses failed to identify accused Mohd. Illiyas in TIP.
82. So far as the TIP of accused Amit Chauhan is concerned. PW28 has deposed that he had conducted TIP of SC No 10/08/07 Page 65 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others accused Amit Chauhan and witness Pankaj Bahadur failed to identify the accused Amit Chauhan in TIP. Thereafter, PW28 got conducted TIP in respect of witness PW12 Surender Prashad Mehto but PW12 has also failed to identify the accused Amit as the person who has involved in the commission of offence and thereafter PW28 got conducted TIP in respect of witness PW9 and witness PW9 has identified the accused Amit as the person involved in the commission of the offence in which the deceased Nagender was stabbed and dacoity was committed by the accused persons at the said premises. Accused Raj Kumar and Fayaz Ahmed had refused to participate in the TIP proceedings by saying that they have been shown to the eye witnesses. But adverse inference is to be drawn against accused Raj Kumar and Fayaz Ahmed as per the mandate of section 114 of the Indian Evidence Act.
The TIP proceedings results are reproduced hereunder:
Witness Accused Mohd. Accused Amit
Illiyas Chauhan
Pankaj Bahadur Identified Failed to identify
Ravinder Kumar Failed to identify Identified
Yadav
Surender Prashad Failed to identify Failed to identify.
Mehto
SC No 10/08/07 Page 66 of 94
SC No. 10/08/07
FIR No.334/07
PS: Mayapuri
State Vs. Raj Kumar and others
83. It is settled law that substantive evidence in a trial is the evidence pertaining to identification of an accused, the substantive evidence is the evidence of identification in court and under section 9 of the Evidence Act, facts which establish the identity of the accused are relevant and corroborative in nature. TIP pertains to the domain of investigation. There is no provision of law which obliges the investigating agency to hold TIP and TIP do not constitute substantive evidence and are generally governed by 162 Cr.PC. It is, no doubt, true that absence of corroboration by TIP may not assume any materiality if either the witnesses had known the accused earlier or where the reasons for gaining an enduring impress of the identity on the mind and memory of he witnesses are, otherwise, brought out.
84. Now, I would like to discuss the eye witness account of PW9and PW12 so far as the identification of accused by these witnesses is concerned. PW9 Ravinder Kumar Yadav has deposed that he was working in aluminium factory owned by Sardarji and on the date of incident, he was on duty from 9:00 pm to 9:00 am and Surender and Nagender were also present in the said premises and working with him and at about 3:00 am, SC No 10/08/07 Page 67 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others when they were working, the gate of the factory at the said premises was closed but not bolted then suddenly about ten persons forcibly came into the factory and started beating them. One of them, one was having a sword and others were having wooden sticks and iron rods and one of them was also having knife. He further deposed that Nagender had sustained injury with knife in his stomach caused by assailants but he did not see who had caused that injury to Nagender and, thereafter, they took aluminum slabs with them and fled away from the said premises after bolting the door from outside and some watchman of the area opened the gate from outside. Therefore, they informed the owner of the factory i.e PW3, who came there and took Nagender to hospital and police had recorded his statement. Thereafter, this witness was declared hostile and in cross examination he denied the suggestion having told police that the door of factory was bolted from inside and they heard noise of knocking. He further denied the suggestion that when the door was opened, four boys entered in the factory or that one of them was tall while others were of medium height. He further denied the suggestion having told police that tall boy was having sword in his hand while the shorter boys were having knives. He further denied the suggestion that he told police that those persons asked them to switch off the machines SC No 10/08/07 Page 68 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others and they stopped working. He further denied the suggestion that accused persons had also started collecting the manufactured goods and he further denied the suggestion having told police that when Nagender objected to activities of those persons then one of them gave a knife blow in the stomach of Nagender.
85. In the cross conducted by counsel for the accused persons Fayaz Ahmed and Raj Kumar, this witness has stated that he was working in a factory but do not have any identity card and he has been summoned by the court. He further stated that the assailants were of mix heights and some of them were thin while other were taller and one of them was having sword and three were having knives. Others were having wooden sticks and rods and assailants remained in the factory for about 1015 minutes and thereafter, owner was informed by telephone by area of the watchman and he reached after about 45 minutes in the factory. It is further stated that he did not call police as telephone as destroyed by accused persons and his statement was recorded in the next morning. He has further denied the suggestion that he has identified the accused persons/assailants of the incident in which the deceased was murdered and dacoity was committed by the accused persons only at the asking of the SC No 10/08/07 Page 69 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others Ld. Add. PP for the State and during the court question, he had admitted that he had identified the accused persons as the assailants because he could identify the accused persons himself. He further stated that he had seen accused persons in the police station also as they were in the custody of the police and further denied the suggestion that he had identified the accused persons in the police station at the time when statement under section 161 Cr.PC was recorded and police has asked him whether the persons in custody of police were the actual assailants or not and he identified the accused persons as the assailants and robbers who had committed the offence on the fateful day. He further admitted that the deceased was alive till the door of the factory was opened by the watchman. He further denied the suggestion that he alongwith his colleagues deliberately had not taken the deceased to the hospital. He has further denied the suggestion that no persons in the name of Rupender was working in the factory on the fateful day and he further stated that he did not the watchman who had opened the gate of the factory.
86. PW12 Surender Prasad Mehto has stated that in September 2007, he was working in a factory in Mayapuri and Nagender and Ravinder were also working there and at about SC No 10/08/07 Page 70 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others 2:30 am on that night, four persons entered in the factory at said premises having knives and swords in their hands and they got the machines switched off. This witness has correctly identified all the accused persons except Kallu. He further stated that out of them two accused persons started beating them and other two accused persons started loading the slabs of aluminium in a 'Thela' and his associate Nagender tried to stop the accused persons from robbing but accused persons assaulted him in his stomach with a knife and, thereafter, accused persons ran away from the spot alongwith robbed items after bolting the door of the factory from the outside and, thereafter, they raised alarm and the watchman of the area opened the door from outside and PW12 informed his owner about the incident on the telephone and, thereafter, police came at the factory and Nagender was taken to DDU hospital and he had also gone there and from the hospital, they were taken to police station where his statement was recorded vide Ex. PW12/A and PW12 had gone to Tihar Jail for TIP of the accused.
87. During cross, PW12 has stated that on 07.03.2011, he was sitting outside the court and four police persons had read over a file to him and told that what he have to say. But during the court question, this witness has stated that he has SC No 10/08/07 Page 71 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others given his statement as per the incident took place on the fateful day but the police official got refreshed his memory on that day. He further denied the suggestion that deceased Nagender was died by the time PW3 reached the spot. He further denied the suggestion that he did not remember exactly whether on the day of incident, he was attacked by sword by Mohd. Illiyas or not.
88. PW13 has deposed that in September 2007, he was on patrolling duty as on the intervening night of 10/11.09.2007, he saw some boys had taken something and when he reached near those boys and asked them about their identity on which one of them assaulted him with a sword due to which he sustained injury on his right shoulder and thereafter, he ran away from that gali but he failed to identify those persons, who had caused injuries to him on account of darkness.
89. The conjoint reading of the testimony of PW9 Ravinder Kumar Yadav and PW12 Surender Prasad Mehto leads to the irresistible conclusion that the accused persons were the perpetrator of crime involved in the present case.
90. The contention of the counsel for the accused persons is that accused persons have been identified by the SC No 10/08/07 Page 72 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others witnesses first time in the court and such identification of the accused persons by the prosecution witnesses is no value as prosecution witnesses had failed to identify the accused persons in TIP. It may be relevant to observe here that as per the TIP chart detailed in para No.82,accused Amit Chauhan has been identified by PW9 Ravinder Kumar Yadav during the TIP proceedings and accused Mohd. Illiyas was identified by prosecution witness Pankaj Bahadur. Although, Pankaj Bahadur has not been produced as a witness by the prosecution as he has left for his native village in Nepal and his whereabouts could not be traced out by the prosecution. But identification of the accused Mohd. Illiyas by witness Pankaj Bahadur is having no relevancy so far as the involvement of the accused Mohd. Illiyas is concerned because it is settled law if a witness failed to identify the accused in TIP, his dock identification of accused is no value as the first opportunity to identify the accused to such witness was in TIP where he could not identify the accused and witness Pankaj Bahadur was not produced as a witness who identified accused Mohd. Illiyas in TIP. Other two accused Raj Kumar and Fayaz Ahmed had refused to participate in the TIP proceedings and law is well settled that refusal to participate in the TIP proceedings by the accused persons, the court is empowered to draw a presumption under section 114 Evidence SC No 10/08/07 Page 73 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others Act and I hereby draw that presumption against the accused persons.
91. Admittedly, PW9 and PW12 had failed to identify Mohd. Illiyas during TIP proceedings, therefore, identification of accused Mohd. Illiyas by two witnesses in the court cannot lead credence to the prosecution story that Mohd. Illiyas was also involved in the present offence because at the first opportunity, PW9 and PW12 failed to identify accused Mohd. Illiyas in TIP and, therefore, the identification of accused Mohd. Illiyas by PW9 and PW12 is of no value. So far as, contention of the counsel for the accused persons that PW9 has turned hostile and not supported the case of the prosecution but during cross examination by State counsel, he has supported the case of the prosecution in material particulars and law is well settled that a witness who has turned hostile such part of his testimony may be taken into consideration by the court which corroborates the prosecution story in material particulars. In this regard, I found support from a recent judgment delivered by the Apex Court reported as 1(2012) DLT (Crl.) 934 (SC) =II(2012) SLT 665 Bhajju @ Karan Singh vs. State of M.P. Wherein it has been held as under:
SC No 10/08/07 Page 74 of 94SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others "19. Now we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the appellant/accused. Normally when a witness deposes contrary to teh stand of the prosecution and his own statement recorded under section 161 of the Code of Criminal Procedure, the prosecutor, with the permission of the court can pray to the court for declaring the witness hostile and for granting leave to cross examine the said witness. If such a permission is granted by the court then the witness is subjected to cross examination by the prosecutor as well as an opportunity is provided to the defence to cross examine such witnesses, if he so desires.
In other words, there is limited examination inchief, crossexamination by the prosecutor and cross examination by the Counsel for the accused. It is admissible to use the examinationinchief as well as the cross examination of the said witness in so far as it supports the case of the prosecution. It is SC No 10/08/07 Page 75 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witness cannot be treated as washed off the records, it remains admissible in trial and thee is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in crossexamination by the adverse party. The view that the evidence of the witness who has been called and cross examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct position of law. The courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of SC No 10/08/07 Page 76 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others criminal jurisprudence that the part which has been allowed to be crossexamined can also be relied upon by the prosecution."
92. And PW9 has further categorically stated in cross question that he had identified the accused persons on his own and PW9 Ravinder Kumar Yadav also identified the accused Amit Chauhan in TIP proceedings as well as in the court.
93. So far as PW12 is concerned. He has identified all the accused persons in the court and he has also corroborated the testimony of PW9 that the accused persons threatened to kill him and when deceased tried to stop the accused persons from robbing, accused persons assaulted the deceased in his stomach and fled away with robbed articles by bolting the door from outside. Nothing could be elicited during his cross examination of PW12 which could cast a doubt with regard to the trustworthiness and trustfulness of the testimony of this witness.
94. As far as the contention of the counsels for the accused persons that accused Mohd. Illiyas was not identified either by PW9 Ravinder Kumar Yadav and PW12 Surender SC No 10/08/07 Page 77 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others Prasad Mehto in TIP and Pankaj Bahadur, who was only witness who identified accused Mohd. Illiyas in TIP proceedings, has not produced as a prosecution witness and such identification of the Mohd. Illiyas by witness Pankaj Bahadur who has not deposed in the court is having no value in the eyes of law and first time identification of accused Mohd. Illiyas by PW9 and PW12 in the court is inadmissible and it may be unsafe to convict Mohd. Illiyas on the uncorroborated testimony of prosecution witnesses as TIP proceedings are corroborative in nature and in case Mohd. Illiyas that corroboration is lacking. Law with regard to appreciation of TIP proceedings has been laid down by the Supreme Court in Dana Yadav @ Dahu and others vs State of Bihar in criminal appeal No. 11561157/2001 and six principles have been laid down which are to be kept in mind while taking into consideration the TIP proceedings which are reproduced hereunder:
(a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same.
(b) In cases where according to the prosecution the accused is known to the prosecution witnesses from before, but the said fact is denied by him and he challenges his identity by the SC No 10/08/07 Page 78 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others prosecution witnesses by filing a petition for holding test identification parade, a court while dealing with such a prayer, should consider without holding a mini inquiry as to whether the denial is bona fide or a mere pretence and/or made with an ulterior motive to delay the investigation. In case court comes to the conclusion that the denial is bona fide, it may accede to the prayer, but if, however, it is of the view that the same is a mere pretence and/or made with an ulterior motive to delay the investigation, question for grant of such a prayer would not arise. Unjustified grant or refusal of such a prayer would not necessarily enure to the benefit of either party nor the same would be detrimental to their interest. In case prayer is granted and test identification parade is held in which a witness fails to identify the accused, his socalled claim that the accused was known to him from before and the evidence of identification in court should not be accepted. But in case either prayer is not granted or granted but no test identification parade held, the same ipso facto can not be a ground for throwing out evidence of identification of an accused in court when evidence of the witness, on the question of identity of the accused from before, is found to be credible. The main thrust should be on answer to the question as to whether evidence of a witness in court to the identity of the accused from before is trustworthy or not. In case SC No 10/08/07 Page 79 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others the answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or although granted, but no such parade was held, would not in any manner affect the evidence adduced in court in relation to identity of the accused. But if, however, such an evidence is not free from doubt, the same may be a relevant material while appreciating the evidence of identification adduced in court.
(c) Evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of accused by a witness in court.
(d) Identification parades are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable despatch for the purpose of enabling the witnesses to identify either the properties which are subject matter of alleged offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits.
(e) Failure to hold test identification parade does not make the SC No 10/08/07 Page 80 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.
(f ) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction.
(g) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above.
95. In view of the underlined principle as stated above, SC No 10/08/07 Page 81 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others even if the TIP proceedings are failed qua one accused but if other evidence is there to connect the accused with the alleged offence then even if the witnesses have failed to identify the said accused in the TIP proceedings. The said accused can be convicted if other evidence is there on record to corroborate the testimony of other witnesses that accused had played a part in the commission of the offence. In the present case, accused Mohd. Illiyas has been identified by one of the PWs i.e Pankaj Bahadur who could not depose in the court on account of his non availability in the court but this, heavy recovery of stolen property/booty had been made at the instance of four accused in terms of their joint pointing out memo and joint pointing out memo is admissible under section 27 of the Indian Evidence Act.
96. I found no force in the contention of the counsel for the accused and joint disclosure/joint pointing out memo is inadmissible. In view of these authoritative pronouncements, there is no legal bar to the admissibility of two simultaneous disclosure statements made by accused persons which leads to discovery of certain facts as in Crl. A. Nos. 1052/2010 & 845 /2010 more popularly known as "Parliament attack case", where dwelling on Section 27 of the Evidence Act with particular SC No 10/08/07 Page 82 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others reference to joint disclosures, it was held as under: "Joint disclosures to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27 of the Evidence Act, 1872. A person accused need not necessarily be a single person, but it could be plurality of accused. It seems that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have given unequivocal nod to what has been said by the first person. Or, two persons is custody may be interrogated separately and simultaneously and both of them may SC No 10/08/07 Page 83 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. But such disclosures by two or more persons in police custody do not go out of the purview of Section 27 altogether. If information is given one after the other without any break almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section
97. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the standpoint of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, whether and to what extent SC No 10/08/07 Page 84 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence."
98. It may be noted here that Hon'ble High Court of Delhi in Vijay Kumar Vs. State (GNCT) of Delhi, 2008 (101) DRJ 725; State Vs. Kiran, 2010 (117) DRJ 647; Raj Kumar Vs. State in Crl.A.56/2009 after relying upon Navjot (supra) has observed that there is nothing in this judgment which suggests that simultaneous disclosures by more than one accused do not at all enter into the arena of Section 27, as a proposition of law.
99. The legal position on joint disclosures as it emerges is that the same per se are admissible under Section 27 of the Evidence Act as the case property was detected in furtherance of the voluntary information furnished by them.
100. Therefore, from the above discussion, I am of the opinion that accused Mohd. Illiyas has not participated in the commission of offence as none of the witness namely PW9 Ravinder Kumar and PW12 Surender Kumar had not identified him in TIP proceedings but their identification of Mohd. Illiyas in court first time in the year 2011 is of no value as it is not SC No 10/08/07 Page 85 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others corroborated by TIP and witnesses who had identified him had not come forward to depose against him. I am of the opinion that accused Mohd. Illiyas cannot be convicted alongwith co accused because only piece of evidence against accused Mohd. Illiyas is recovery of articles/case property on the basis of joint disclosure/pointing out memo. Therefore, accused Mohd, Illiyas is hereby acquitted of all the charges.
101. Now question arises whether the offence under section 396 IPC is made out or not. The contention of the counsel for the accused persons is that the testimony of the prosecution witnesses leads to the inference that only four persons were involved in the commission of the offence on the fateful day and in the absence of five persons, no offence under section 396 IPC is made out. I found force in the submission of the counsel for the accused persons that none of the prosecution witnesses had stated that more than four persons had come inside the factory premises where the alleged dacoity has been taken place or some assailants were there which they could identify if brought before them and resultantly, the deceased was murdered.
102. PW9 and PW12 had stated that only four persons SC No 10/08/07 Page 86 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others had come inside and two were threatening them and two were loading the aluminium slabs in the rickshaws. Therefore, the prosecution has failed to prove that more than 5 persons were involved in the commission of offence. Therefore, no conviction can be recorded under section 396 IPC but law is well settled that in case, prosecution has failed to prove the commission of offence under section 396 IPC, accused can be convicted for other offence under section 302 IPC as well as 392 IPC. In this regard, I found support from judgment by Supreme Court in Criminal Appeal No. 656/2005 Rafiq Ahmed vs Rafi wherein it has been stated as under:
31. As is evident from the above stated principles of law in various judgments, there is no absolute bar or impediment, in law, in punishing a person for an offence less grave than the offences for which the accused was charged during the course of the trial provided the essential ingredients for adopting such a course are satisfied.
32. In the present case, we are primarily concerned with an offence punishable under Section 396 IPC and in alternative for an offence under Section 302 of the IPC. The SC No 10/08/07 Page 87 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others offence under Section 396 consists of two parts: firstly, dacoity by five or more persons, and secondly, committing of a murder in addition to the offence of dacoity. If the accused have committed both these offences, they are liable to be punished with death or imprisonment for life or rigorous imprisonment for a term which may extend to ten years and be liable to pay fine as well.
Under Section 302 IPC, whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to pay fine. The offence of murder has been explained under Section 300 IPC. If the act by which the death is caused is done with the intention of causing death, it is murder. It will also be a murder, if it falls in any of the circumstances secondly, thirdly and fourthly of Section 300 and it is not so when it falls in the exception to that Section.
33. On the conjoint reading of Sections 396 and 302 IPC, it is clear that the offence of murder has been lifted and incorporated in SC No 10/08/07 Page 88 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others the provisions of Section 396 IPC. In other words, the offence of murder punishable under Section 302 and as defined under Section 300 will have to be read into the provisions of offences stated under Section 396 IPC. In other words, where a provision is physically lifted and made part of another provision, it shall fall within the ambit and scope of principle akin to `legislation by incorporation' which normally is applied between an existing statute and a newly enacted law. The expression `murder' appearing in Section 396 would have to take necessarily in its ambit and scope the ingredients of Section 300 of the IPC. In our opinion, there is no scope for any ambiguity. The provisions are clear and admit no scope for application of any other principle of interpretation except the `golden rule of construction', i.e., to read the statutory language grammatically and terminologically in the ordinary and primary sense which it appears in its context without SC No 10/08/07 Page 89 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others omission or addition. These provisions read collectively, put the matter beyond ambiguity that the offence of murder, is by specific language, included in the offences under Section 396. It will have the same connotation, meaning and ingredients as are contemplated under the provisions of Section 302 IPC.
34. In light of the principles aforestated, now we may revert to the facts and circumstances of the case in hand. It is admittedly a case of circumstantial evidence and, thus, the evidence has to be examined in that context. There is no dispute to the fact that the charge under Sections 396 and 201 IPC had been framed against the accused. The Trial Court had acquitted the four accused but convicted the present appellant for an offence under Sections 302 and 201 while convicting another accused, namely Ahsan, for an offence punishable under Section 411 IPC. The judgment of the trial court was upheld by the High Court in SC No 10/08/07 Page 90 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others so far as the acquittal of the four accused for the offences under Section 396 was concerned as well as the conviction of the present appellant under Section 396 IPC. However, the High Court acquitted Ahsan for the offence under Section 201 IPC which does not concern us in the present appeal. The charge being under Section 396 alone whether the accused could have been convicted for an offence under Section 302 IPC without alteration of charge is the short question involved in the case before us. Let us examine the evidence for conviction of the appellant on the basis of the circumstantial evidence. The High Court in paragraph 35 of its judgment has stated the following circumstances which undoubtedly point towards the guilt of the accused.
103. Therefore, I am of the opinion that accused persons are liable to be acquitted for the offence under section 396 IPC so they are hereby acquitted by the offence under section 396 IPC but accused had committed the murder by sharing SC No 10/08/07 Page 91 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others common intention, therefore, accused persons namely Raj Kumar, Amit Chauhan and Fayaz Ahmad are hereby convicted for the offence under section 302/34 IPC and accused persons had also robbed the stolen articles namely 84 aluminium bricks, one bag of brake shoes and two bags of mixie blades, so they are convicted for the offence under section 392/34 IPC.
104. PW9 and PW12 had deposed that accused were having weapons in their hands namely Raj Kumar was having knife, Mohd. Illiyas was having sword and other accused persons were having other weapons in their hands and police witnesses have got recovered the said weapons of offence at the instance of the accused persons, therefore, I am of the opinion that accused persons had also used the deadly weapon while committing the robbery at the spot of incident so accused Raj Kumar, Fayaz Ahmed and Amit Chauhan are hereby convicted for the offence under section 397 IPC.
105. So far as accused Kallu is concerned. No evidence has been led by the prosecution that he was owner of jhuggi No. B1009, Kianchan Basti near Rewari Line except the disclosure statement of the accused perosns that they had disposed off the stolen property to accused Kallu, Afsar Ali and Nadeem.
SC No 10/08/07 Page 92 of 94SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others
106. It may be noted here that PW20 has turned hostile and has denied that the alleged recovery of case property namely 84 aluminium bricks, one bag of brake shoes and two bags of mixie blades had been met from Jhuggi No. B1009, Kanchan Basti near Rewari Line and possessed by accused Kallu. No other evidence led by the prosecution except the oral statement of police witnesses that the recovery of the stolen articles was made from the residence of accused Kallu. No document has been placed on record that said Jhuggi No. B1009, Kanchan Basti near Rewari Line was ever being possessed by accused Kallu. Therefore, only on the solitary evidence I.e by way of disclosure statement of the coaccused, no conviction can be recorded against accused Kallu, so accused Kallu is hereby acquitted of the charges under section 412 IPC by giving benefits of doubt.
107. From the above discussion, I am of the opinion that prosecution has proved that the deceased Nagender was murdered by the accused persons after committing robbery at the said premises. Therefore, accused persons namely Raj Kumar, Fayaz Ahmed and Amit Chauhan are hereby convicted for the offence punishable under section 302/392 read with SC No 10/08/07 Page 93 of 94 SC No. 10/08/07 FIR No.334/07 PS: Mayapuri State Vs. Raj Kumar and others section 34 IPC and section 397 IPC as well as 25/27 of the Arms Act.
108. Put up for order on sentence on 30.09.2013.
Announced in the open court (Vijay Kumar Dahiya) on the 28 Day of September 2013 ASJ/ Dwarka Courts th New Delhi/28.09.2013 SC No 10/08/07 Page 94 of 94