Delhi District Court
State vs . Munir Chota Etc. on 24 December, 2011
1
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-04, NORTH-EAST DISTRICT
KARKARDOOMA COURTS:DELHI
State Vs. Munir Chota etc.
FIR No. : 91/2009
PS : Harsh Vihar, Delhi
U/s : 395 IPC& 25/27 of Arms Act
ORDER ON SENTENCE
24.12.2011
Pr. : Sh. Virender Singh, Ld. Addl. P.P for State.
Convict Munir @ Chota produced in Judicial Custody.
Sh. R.P Singh, Advocate for convict Munir @ Chota.
An application is moved by the convict for giving less punishment.
Arguments heard on sentence.
It is submitted that the convict Munir @ Chota is a young person, aged
about 32 years. It is further submitted that he has old aged mother and two
daughters to support. His father has expired and he is the sole bread earner
of his family. Therefore, lenient view is prayed for.
On the other hand, Ld. Addl. P.P. submitted that the manner in which
the offence has been committed is very grave and punishment should be
given which is commensurate with the gravity of offence.
The Hon'ble Supreme Court in the recent judgment of "Akram Khan
V/s. State of West Bengal" 2011 XII AD (S.C) 288, has relied upon the
judgment of "Mulla and Another Vs. State of Uttar Pradesh" (2010) 3 SCC
508, wherein, it was observed as under :-
It is settled legal position that the punishment must fit the crime. It is
the duty of the court to impose proper punishment depending upon
the degree of criminality and desirability to impose such punishment.
As a measure of social necessity and also as a means of deterring
other potential offenders, the sentence should be appropriate
befitting the crime."
In the present case, the convicts had committed dacoity where
FIR No. : 91/09, PS : Harsh Vihar Page 1 of 35
2
marriage of a young girl was to take place and money, jewelery & Sarees etc.
were arranged for her marriage. The convict with others were armed with
deadly weapons and when, the witness Satender got-up, they gave him
beatings and caused injuries to him with knife and after, robbing the money,
they fled away while firing on the public persons when they were chased.
There is no mitigating circumstance against the convict. Therefore, no
leniency can be shown to the convict.
The convict Munir @ Chota has been convicted for offence punishable
under Section 395 IPC.
The offence punishable U/s 395 IPC provides as under:-
Punishment for dacoity- "Whoever commits dacoity shall be
punished with imprisonment for life, or with rigorous
imprisonment for a term which may extend to ten years, and
shall also be liable to fine.
Keeping in view the facts and circumstances of the case and the
manner in which the offence has been committed, I am of the opinion that the
ends of justice would be met in sentencing the convict Munir @ Chota to
undergo Rigorous Imprisonment for a period of 10 years and fine of Rs.
20,000/- for offence punishable U/s 395 IPC. In default of payment of fine, he
shall further undergo Simple Imprisonment for a period of one year.
The benefit of Section 428 Cr.P.C be given to the convict.
Copy of the judgment and order on sentence (duly attested) be given to
the convict, free of cost. The case property, if any, be destroyed after the
expiry of the period of appeal.
File be consigned to record room.
Announced in the open court
today i.e. on 24.12.2011 GURDEEP SINGH
ASJ-04/NE/KKD/DELHI/24.12.2011
FIR No. : 91/09, PS : Harsh Vihar Page 2 of 35
3
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-04, NORTH-EAST DISTRICT
KARKARDOOMA COURTS:DELHI
State Vs. Munir Chota etc.
FIR No. : 91/2009
PS : Harsh Vihar, Delhi
U/s : 395 IPC& 25/27 of Arms Act
ORDER ON SENTENCE
24.12.2011
Pr. : Sh. Virender Singh, Ld. Addl. P.P for State.
Convict Harun produced in Judicial Custody.
Sh. R.P Singh, Advocate for convict Harun.
An application is moved by the convict for giving less punishment.
Arguments heard on sentence.
It is submitted that the convict Harun is a young person, aged about 35
years. It is further submitted that he has old aged father, wife, two daughters
aged about 15 years and 13 years and one son aged about 7 years to support.
His elder daughter is of marriageable age. It is further submitted that he is the
sole bread earner of his family. Therefore, lenient view is prayed for.
On the other hand, Ld. Addl. P.P. submitted that the manner in which the
offence has been committed is very grave and punishment should be given which
is commensurate with the gravity of offence.
The Hon'ble Supreme Court in the recent judgment of "Akram Khan V/s.
State of West Bengal" 2011 XII AD (S.C) 288, has relied upon the judgment of
"Mulla and Another Vs. State of Uttar Pradesh" (2010) 3 SCC 508, wherein, it
was observed as under :-
It is settled legal position that the punishment must fit the crime. It is
the duty of the court to impose proper punishment depending upon the
degree of criminality and desirability to impose such punishment. As a
measure of social necessity and also as a means of deterring other
potential offenders, the sentence should be appropriate befitting the
FIR No. : 91/09, PS : Harsh Vihar Page 3 of 35
4
crime."
In the present case, the convicts had committed dacoity where marriage of
a young girl was to take place and money, jewelery & Sarees etc. were arranged
for her marriage. The convict with others were armed with deadly weapons and
when, the witness Satender got-up, they gave him beatings and caused injuries
to him with knife and after, robbing the money, they fled away while firing on the
public persons when they were chased. There is no mitigating circumstance
against the convict. Therefore, no leniency can be shown to the convict.
The convict Harun has been convicted for offence punishable under
Section 395 IPC.
The offence punishable U/s 395 IPC provides as under:-
Punishment for dacoity- "Whoever commits dacoity shall be
punished with imprisonment for life, or with rigorous imprisonment
for a term which may extend to ten years, and shall also be liable
to fine.
Keeping in view the facts and circumstances of the case and the manner
in which the offence has been committed, I am of the opinion that the ends of
justice would be met in sentencing the convict Harun to undergo Rigorous
Imprisonment for a period of 10 years and fine of Rs. 20,000/- for offence
punishable U/s 395 IPC. In default of payment of fine, he shall further undergo
Simple Imprisonment for a period of one year.
The benefit of Section 428 Cr.P.C be given to the convict.
Copy of the judgment and order on sentence (duly attested) be given to
the convict, free of cost. The case property, if any, be destroyed after the expiry
of the period of appeal.
File be consigned to record room.
Announced in the open court
today i.e. on 24.12.2011
GURDEEP SINGH
ASJ-04/NE/KKD/DELHI/24.12.2011
FIR No. : 91/09, PS : Harsh Vihar Page 4 of 35
5
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-04, NORTH-EAST DISTRICT
KARKARDOOMA COURTS:DELHI
State Vs. Munir Chota etc.
FIR No. : 91/2009
PS : Harsh Vihar, Delhi
U/s : 395 IPC& 25/27 of Arms Act
ORDER ON SENTENCE
24.12.2011
Pr. : Sh. Virender Singh, Ld. Addl. P.P for State.
Convict Dulal produced in Judicial Custody.
Sh. R.P Singh, Advocate, Amicus Curiae for convict Dulal.
An application is moved by the convict for giving less punishment.
Arguments heard on sentence.
It is submitted that the convict Dulal is a young person, aged about 25
years. He has old aged father and two children to support. It is further submitted
that he is the sole bread earner of his family. Therefore, lenient view is prayed
for.
On the other hand, Ld. Addl. P.P. submitted that the manner in which the
offence has been committed is very grave and punishment should be given which
is commensurate with the gravity of offence.
The Hon'ble Supreme Court in the recent judgment of "Akram Khan V/s.
State of West Bengal" 2011 XII AD (S.C) 288, has relied upon the judgment of
"Mulla and Another Vs. State of Uttar Pradesh" (2010) 3 SCC 508, wherein, it
was observed as under :-
It is settled legal position that the punishment must fit the crime. It is
the duty of the court to impose proper punishment depending upon the
degree of criminality and desirability to impose such punishment. As a
measure of social necessity and also as a means of deterring other
potential offenders, the sentence should be appropriate befitting the
crime."
FIR No. : 91/09, PS : Harsh Vihar Page 5 of 35
6
In the present case, the convicts had committed dacoity where marriage of
a young girl was to take place and money, jewelery & Sarees etc. were arranged
for her marriage. The convict with others were armed with deadly weapons and
when, the witness Satender got-up, they gave him beatings and caused injuries
to him with knife and after, robbing the money, they fled away while firing on the
public persons when they were chased. There is no mitigating circumstance
against the convict. Therefore, no leniency can be shown to the convict.
The convict Dulal has been convicted for offence punishable under Section
395 IPC.
The offence punishable U/s 395 IPC provides as under:-
Punishment for dacoity- "Whoever commits dacoity shall be
punished with imprisonment for life, or with rigorous imprisonment
for a term which may extend to ten years, and shall also be liable
to fine.
Keeping in view the facts and circumstances of the case and the manner
in which the offence has been committed, I am of the opinion that the ends of
justice would be met in sentencing the convict Dulal to undergo Rigorous
Imprisonment for a period of 10 years and fine of Rs. 20,000/- for offence
punishable U/s 395 IPC. In default of payment of fine, he shall further undergo
Simple Imprisonment for a period of one year.
The benefit of Section 428 Cr.P.C be given to the convict.
Copy of the judgment, order on sentence, charge, evidence, statement of
accused, exhibited documents etc. (duly attested) be given to the convict, free of
cost. The case property, if any, be destroyed after the expiry of the period of
appeal.
File be consigned to record room.
Announced in the open court
today i.e. on 24.12.2011
GURDEEP SINGH
ASJ-04/NE/KKD/DELHI/24.12.2011
FIR No. : 91/09, PS : Harsh Vihar Page 6 of 35
7
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-04, NORTH-EAST DISTRICT
KARKARDOOMA COURTS:DELHI
FIR No. : 91/09
PS : Harsh Vihar
U/s : 395 IPC & 25 Arms Act.
Unique Case ID : 02402R0 233382009
In the matter of
The State
Versus
1. Munir @ Chota s/o Hasmat Ali
R/o :Jhuggi, New Seemapuri
Delhi.
2. Dulal s/o Salam
R/o :D-551 Gali NO.4, Ashok Nagar
Delhi.
3. Harun s/o Fazh Rehman
R/o : 3/693, Dakshin Puri
Delhi.
4. Yamin Kalia s/o Md. Anees
R/o : E-44/A-108, New Seemapuri
Delhi.
5. Aftab @ Daboo s/o Md. Afaque
R/o : E-44/A-107 Jhuggi New Seemapuri
Delhi.
...ACCUSED
Session Case No. : 37/10
Date of Institution : 13.08.2009
Date of Committal : 03.09.2009
Date of reserving judgment/order : 19.12.2011
Date of pronouncement : 19.12.2011
FIR No. : 91/09, PS : Harsh Vihar Page 7 of 35
8
J U D G M E N T
1. Accused persons namely Munir Chota, Dulal, Harun, Yamin Kalia, Aftab @ Daboo, Rahim, Munir Bada, Shakir and Kamal were sent up to stand trial by police of PS Harsh Vihar for offence punishable u/s 395 IPC and 25/27 Arms Act.
2. Prosecution case is that on 23.05.2009 on the receipt of DD No. 7B PCR Call ASI Rakesh Tyagi alongwith HC Rishi Raj reached at the spot i.e. H. No. A-181, Gali No.6, Mandoli Extn. Samuday Bhawan where he came to know that injured has been removed to GTB Hospital by PCR. On this ASI Rakesh Tyagi left HC Rishi Raj at the spot to guard the same and reached at GTB Hospital where he obtained the MLC of Satender who was declared fit for statement. His statement was recorded wherein Satender stated that marriage of his sister Rekha was fixed for 30.05.2009 and his parents had gone to village to distribute the marriage cards and he alongwith his four sisters namely Rekha, Vimlesh, Rinky and Reena and younger brother Pradeep were present in the house. He was sleeping in the varandah (Chok) and the remaining were sleeping inside the room. At about 1:50 a.m. (night) three/four boys after climbing the wall came inside and taken purse containing Rs.19,500/- cash, one gold ring and his purse containing his school I-card and when he resisted one of them gave knife blow as a result of which he sustained injury on his left leg near knee and scratches on his right hand and FIR No. : 91/09, PS : Harsh Vihar Page 8 of 35 9 armpits and thereafter they fled away. They were aged about 24/25 years and he can identify them on seeing them. In the meantime, someone called the police over 100 number after hearing the alarm and police taken him to the hospital. He also stated that during the robbery, one boy said Aslam Bhai Bhago Nahi To Pakare Jayange. On the basis of the statement, FIR u/s 394/34 IPC was registered. On the identification of Naresh who is cousin brother of Satender, three empty cartridges were recovered which dacoits had fired upon the public persons in order to save themselves and they were seized. Photographs of the house and chance prints were taken. On 30.05.2009 on the receipt of DD No. 2B regarding arrest of accused persons by South District Special Staff u/s 399/402 IPC, PS Mehrauli wherein accused persons namely Harun, Rahim, Shakir, Munir Chota, Munir Bada, Dulal, Kamal had disclosed regarding docoity in the present case. On this they were formally arrested. Accused persons namely Yamin Kalia and Aftab were also arrested in case FIR No. 152/09, u/s 392/394 IPC PS Nand Nagri wherein they also confessed the offence of the present case. They were also formally arrested in this case from Tihar Jail. They were taken on p/c remand. Yamin Kalia could not be produced and therefore p/c remand of accused Yamin Kalia could not be taken within stipulated time. Accused Aftab got recovered one I-card which was thrown at Bank Colony Stand in the corner of the Park. The TIP of Chota Munir, Harun, Yamin Kalis was got FIR No. : 91/09, PS : Harsh Vihar Page 9 of 35 10 conducted wherein accused Yamin @ Kalia has refused to participate in TIP whereas accused Chota Munir and Harun were correctly identified by the complainant Satender in the judicial TIP proceedings. The pajama of the complainant Satender was also taken into police custody and was deposited in mall khana. Thereafter offence punishable 395 IPC and 25/27/54/59 Arms Act concluded. After completion of the investigation, the accused persons were chargesheeted.
3. After supplying the necessary copies, the case was committed to the court of session vide order dated 3.9.2009 by Ld. MM.
4. My Ld. Predecessor vide order dated 12.03.2010 discharged accused persons namely Rahim, Munir Bada, Kamal and Shakir and directed for framing of charge for punishable u/s 395 IPC r/w Section 25/27 Arms Act against accused persons namely Munir Chota, Dulal and Harun and offence u/s 395 IPC against accused Aftab and Yamin @ Kalia. The charge was directed to be framed on 7.4.2010 but on 7.4.2010 it was directed that charge u/s 395 IPC be framed against all accused persons namely Munir Chhota, Dulal, Harun, Aftab and Yamin Kalia and charge u/s 25/27 Arms Act is dropped against accused persons namely Munir Chhota, Dulal and Harun. Accused persons namely Munir Chhota, Dulal, Harun, Aftab and Yamin Kalia were charged for offence punishable u/s 395 IPC to which they pleaded not guilty and claimed trial.
FIR No. : 91/09, PS : Harsh Vihar Page 10 of 35 115. The prosecution in support of their case examined as many as 21 witnesses.
6. The prosecution examined following material witnesses :
i) PW-1 Sh. Naresh Kumar is the nighbour of the complainant who woke up after hearing the noise of screaming, and pelted stones upon the accused persons and witness of seizure of three empty cases of cartridges fired by the accused persons to save themselves and proved the seizure memo of the same as Ex.PW-1/A and its sketch memo as Ex.PW-1/B.
ii) PW-3 Sh. Satender Kumar is the complainant and material witness, he proved his statement Ex.PW-3/A, site plan as Ex.PW-3/B, seizure memo of pajama Ex.PW-3/C, photographs of the house as Ex.PW-3/P1 to P4, I-card as Ex.PW-3/P5 and TIP proceedings of accused Harun as Ex.PW-3/D collectively and TIP proceedings of accused Chhota Munir as Ex.PW-3/E collectively and identified his pajama as Ex.PW-3/Article-1. He was partly turned hostile towards the prosecution with respect to the identification of accused Yamin @ Kalia and Aftab.
iii) PW-4 Ms. Vimlesh is the sister of the complainant and is witness of occurrence.
iv) PW-5 Ms. Rekha is also the sister of the complainant and FIR No. : 91/09, PS : Harsh Vihar Page 11 of 35 12 is also witness of occurrence.
v) PW-6 Ms. Rinki is also the sister of the complainant and is also witness of occurrence.
7. The prosecution also examined following formal witness :
i) PW-2 HC Har Dayal Singh is the duty officer who recorded FIR on the basis of rukka sent by ASI Rakesh Tyagi through HC Rishi Raj and proved the copy of the FIR as Ex.PW-2/A and his endorsement on rukka as Ex.PW-2/B.
ii) PW-7 Ct. Neeraj Kumar was the photographer, Mobile Crime Team, NE District who took 4 photographs of the place of incident and proved the same as Ex.PW-3/P1 to P4 and its negatives as Ex.PW-3/N1 and N4.
iii) PW-8 SI U. Balashankaram was the Incharge Crime Team, NE District who inspected the spot and proved report as Ex.PW-8/A.
iv) PW-16 Ms. Such Laler, Ld. Metropolitan Magistrate is the witness who conducted test identification parade (TIP) of accused persons namely Harun, Yamin Kalia and Chhota Munir. In addition to other memos, she proved the application for conducting TIP of accused Harun and Yamin Kalia as Ex.PW-16/A, certificate as Ex.PW-16/B, the application assigned to her to conduct TIP of accused Yamin Kalia and Chhota Munir as Ex.PW-16/C and her FIR No. : 91/09, PS : Harsh Vihar Page 12 of 35 13 endorsement at encircled portion, 'X', TIP proceedings of accused Yamin Kalia as Ex.PW-16/D, certificate as Ex.PW-16/E and certificate regarding correctness of the TIP proceedings of accused Chhota Munir as Ex.PW-16/H.
v) PW-17 HC Viswa Mitra is the witness who deposited one sealed parcel at FSL Rohini vide R/C No. 31/21/09.
vi) PW-18 HC Sandeep Tyagi is the MHC(M) with whom the case properties were deposited and who got deposited the parcel at FSL Rohini and received the result and proved the copy of extract of entry as Ex.PW-8/A and copy of RC as Ex.PW-8/B. He also proved copy of extract of entry no.
771/10 as Ex.PW-8/C.
vii) PW-19 Ct. Mandeep Singh is the witness who deposited three parcels duly sealed at FSL Rohini vide R/C No. 61/21/10 after receiving the same from MHC(M).
8. The prosecution also examined following witnesses of arrest and investigation :-
i) PW-9 HC Rishi Raj is the witness who initially alongwith ASI Rakesh Tyagi on the receipt of DD No. 7B reached at the spot and took the rukka to PS and got the FIR registered. He is also witness of seizure of three empty cases of cartridges, and seizure of pajama and proved site plan Ex.PW-9/A. He identified the three empty cases of FIR No. : 91/09, PS : Harsh Vihar Page 13 of 35 14 cartridges as Ex.PW-9/Article 1 to 3 in addition to pajama of complainant.
ii) PW-10 HC Rajinder Singh, Special Staff, is the witness of arrest of seven accused persons in case FIR No. 267/09, u/s 399/402 IPC and 25 Arms Act, PS Mehrauli in which they made disclosure about the present case. He proved the disclosure statement of accused Harun as Ex.PW-10/A, seizure memo of country made pistol and cartridges recovered from the possession of accused Harun as Ex.PW-10/B, and their sketch as Ex.PW-10/C.
iii) PW-11 HC Vijay, Special Staff, is also the witness of arrest of seven accused persons in case FIR No. 267/09, u/s 399/402 IPC and 25 Arms Act, PS Mehrauli in which they made disclosure about the present case. He proved the disclosure statement of accused Munir @ Chhota as Ex.PW-11/A, seizure memo of country made pistol and cartridges recovered from the possession of accused Munir @ Chhota as Ex.PW-11/B.
iv) PW-12 Inspector Surender Dahiya, Special Staff, is the IO who arrested seven accused persons in case FIR No. 267/09, u/s 399/402 IPC and 25 Arms Act, PS Mehrauli in which they made disclosure about the present case and used the recovered weapons. He in addition to other memos, proved the seizure memo of country made pistol FIR No. : 91/09, PS : Harsh Vihar Page 14 of 35 15 and cartridges recovered from accused Dulal as Ex.PW-12/A, its sketch as Ex.PW-12/C and sketch memo of country made pistol and cartridges recovered from possession of accused Chhota Munir as Ex.PW-12/B and disclosure statement of accused Dulal as Ex.PW-12/G. He identified the country made pistols and cartridges recovered from the possession of accused persons namely Harun, Chhota Munir and Dulal as Ex.PW-12/Article-1, Ex.PW-12/Article-2 collectively, Ex.PW-12/Article-3, Ex.PW-12/Article-4 collectively, Ex.PW-12/Article-5 and Ex.PW-12/Article-6 collectively respectively.
v) PW-13 Ct. Krishan Kumar is the witness who joined the investigation when accused Shakir, Munir Bada, Aftab @ Dabbu and Rahim were taken on police remand and witness of pointing out of the place of occurrence and recovery of I-card at the instance of accused Aftab @ Dabbu. He proved the pointing out memo as Ex.PW-13/D and seizure memo-cum-pointing out memo as Ex.PW-13/E and identified the I-card of Satender Kumar as Ex.PW-13/P5.
vi) PW-14 HC Naresh Kumar is also the witness of taking accused Shakir, Munir Bada, Aftab @ Dabbu and Rahim on police remand, pointing out of the place of occurrence, FIR No. : 91/09, PS : Harsh Vihar Page 15 of 35 16 recovery of I-card at the instance of accused Aftab @ Dabbu.
vii) PW-15 HC Anil Kumar is the witness of arrest of accused Yamin @ Kali and Aftab @ Dabbu in case FIR No. 152/09, PS Nand Nagri wherein they made disclosure statement regarding their involvement in the present case.
viii) PW-20 ASI Shiv Kumar is also the witness of arrest of seven accused persons case FIR No. 267/09, u/s 399/402 IPC and 25 Arms Act, PS Mehrauli in which they made disclosure about the present case and he is also witness of seizure of recovered weapons which were also used in this case by the accused persons and identified the country made pistols and cartridges.
ix) PW-21 SI Rakesh Tyagi is the investigating officer of this case. He in addition to other memos proved his endorsement as Ex.PW-21/A, disclosure statements of accused Yamin Kalia and Aftab as Ex.PW-21/B and Ex.PW-21/C, arrest memos of accused Yamin Kali, Aftab, Harun, Dulal and Chhota Munir as Ex.PW-21/D, Ex.PW-21/E, Ex.PW-21/F, Ex.PW-21/G and Ex.PW-21/H respectively and disclosure statements of accused Harun, Chhota Munir, Dulal, Yamin Kalia and Aftab Ex.PW-21/I, Ex.PW-21/J, Ex.PW-21/K, Ex.PW-21/L and Ex.PW-21/M respectively. He also proved FSL reports as Ex.PW-21/N FIR No. : 91/09, PS : Harsh Vihar Page 16 of 35 17 and Ex.PW-21/O.
9. The statement of accused persons were recorded U/s 313 Cr.PC. Accused persons denied the prosecution evidence and claimed the innocence.
i) Accused Harun stated that this is a false and fabricated case and witnesses are false and interested witnesses. He further stated that he was falsely arrested by police of PS Mehrauli in the year 2009 from Pushp Vihar Bus Stand and he was identified in the TIP proceedings by the complainant Satender as he was shown him at PS Mehrauli by the police officials. IO asked Satender to identify him. Nothing has been recovered from his possession. Country made pistol and cartridges are planted upon him by the police, in order to falsely implicate him in this case. He did not make any disclosure statement. Police obtained his signatures on blank papers forcibly and he is innocent. However, he chose not to lead evidence in his defence.
ii) Accused Dulal also stated that this is a false and fabricated case and witnesses are false and interested witnesses. He also stated that he was falsely arrested by police of PS Mehrauli in the year 2009 from Ashok Nagar when he visited the house of his sister. He was shown to the complainant in the PS Mehrauli and despite that, he FIR No. : 91/09, PS : Harsh Vihar Page 17 of 35 18 had moved the application for his TIP but his TIP was not got conducted. He was previously shown to the complainant Satender, therefore, he identified him in the court. Nothing has been recovered from his possession. Country made pistol and cartridges are planted upon him by the police, in order to falsely implicate him in this case. He did not make any disclosure statement. Police obtained his signatures on blank papers forcibly and he is innocent. However, he also chose not to lead evidence in his defence.
iii) Accused Munir @ Chhota also stated that this is a false and fabricated case and witnesses are false and interested witnesses. He further stated that he was identified in the TIP proceedings by the complainant Satender as he was shown him as PS Mehrauli by the police officials. IO asked Satender to identify him. Nothing has been recovered from his possession. Country made pistol and cartridges are planted upon him by the police, in order to falsely implicate him in this case. He did not make any disclosure statement. Police obtained his signatures on blank papers forcibly and he is innocent. However, he also chose not to lead evidence in his defence.
iv) Accused Yamin Kalia also stated that this is a false and fabricated case and witnesses are false and interested FIR No. : 91/09, PS : Harsh Vihar Page 18 of 35 19 witnesses. He further stated that he was falsely arrested by police of Special Staff from his shop at Seemapuri. He refused to participate in the TIP proceedings as his photographs were taken by the police and same were shown to the complainant Satender. He did not make any disclosure statement. Police obtained his signatures on blank papers forcibly. He is innocent and have been falsely implicated in this case.
v) Accused Aftab @ Daboo also stated that this is a false and fabricated case and witnesses are false and interested witnesses. He further stated that he was falsely arrested by police of Special Staff from Seemapuri and they had taken him to the office of Special Staff at Mehrauli and thereafter, after keeping him there for one day, he was handed over to police of PS Harsh Vihar and they falsely implicated him in this case. He also stated that nothing was recovered from his possession or at his instance. He did not make any disclosure statement. Police obtained his signatures on blank papers forcibly and he is innocent and has been falsely implicated in this case. However, he also chose not to lead evidence in his defence.
10. I have heard Sh. Virender Singh, Ld. Addl. PP for the state, Sh.
K. K. Sharma, Advocate Amicus Curiae for accused Yamin @ Kalia and Aftab @ Daboo and Sh. R. P. Singh, Advocate for FIR No. : 91/09, PS : Harsh Vihar Page 19 of 35 20 accused Chhota Munir and Harun and Amicus Curiae for accused Dulal. I have also gone through the record.
11. PW-3 : Sh. Satender Kumar is the star witness of the prosecution. He testified that on the intervening night of 22/23.05.2009, at about 1.30/2.00 AM (night), he alongwith his sisters Rekha, Rinki, Vimal and Reena and his younger brother Pradeep were present in their our house and his elder brother and his parents had gone to distribute the marriage cards of his sister to Kithour, U.P. There is only one room and one varanda in their house. He was sleeping in 'varanda' and his sisters were sleeping in the room. In the meantime, i.e. about 1.30/2.00 AM (night), 3-4 boys entered into their house by jumping the wall of the house and they entered into their house and started searching the items and when those boys entered into their house by jumping the wall, he woke up and when he tried to stop them, they started gave him beatings and one of them inflicted knife injuries on his left leg below the knee, below his right arm and on his right forearm. Those boys robbed Rs. 19,500/- which were lying in the drawer of the bed, his school purse containing his I-card and one gold ring which was purchased for his would be brother-in-law. They also robbed 3-4 saris which were purchased for the marriage of his sister. His sisters were sleeping in the same room from where 3-4 boys committed the robbery. His sisters were also wake up. Those 3-4 boys had FIR No. : 91/09, PS : Harsh Vihar Page 20 of 35 21 threatened his sisters and him not to raise alarm, otherwise, they would kill them. Thereafter, they ran away from there. Thereafter, he raised alarm. Neighbourers gathered there and someone from the neighbourhood called the police. Police officials reached there and they recorded his statement. Police officials also taken him to GTB Hospital for his medical examination. He shown the place of occurrence to the police officials and they prepared site plan. He had also produced his blood stained pajama of blue colour which was having the cut mark on the left side near knee and the same was seized by the police official.
12. PW-4 Ms Vimlesh similarly deposed that her mother and father had gone to village to distribute the marriage card of her elder sister namely Rekha and at about 2:00 a.m. (mid night) on hearing the noise of his brother Satender, she, her brother Pradeep and sisters got wake up and saw that some persons entered in the house and apprehended his brother and giving him beatings and those persons were having the pistol and knife in their hands and one of them had given knife blow on the leg of her brother. They brought them in the room and confined them and robbed one gold ring and some cash and thereafter they ran away from there. However, she cannot identify those criminals as she could not see them on account of fear.
13. Similarly PW-5 Ms. Rekha testified on the same line and stated FIR No. : 91/09, PS : Harsh Vihar Page 21 of 35 22 that they robbed Rs. 19,500/- which were kept in the purse which was lying near the bed in the room and the neighbours gathered and raised alarm and on this, they ran away from there. She also stated that she cannot identify those criminals as she could not see them on account of fear and they had also covered their faces with clothes up to eyes and her marriage was fixed for 30.05.2009. PW-6 Ms. Rinki also deposed on the same line.
14. They were further corroborated by PW-1 Sh. Naresh Kumar their neighbourer. He testified that on the intervening night of 22/23.5.2009, he was sleeping on the roof of adjoining house, and at about 1:30/1:45 am he heard noise of screaming. He woke up and saw five/six persons had entered in the house of Mr. Satender and they had covered their face with the help of clothes. On hearing the noise of screaming, other people of the locality also woke up and came in the street and started raising alarm. On hearing our noise, all persons who were inside the house of Satender and started running. They pelted stones upon them. Those persons fired at them in retaliation. On account of firing, they got scared and they managed to escape. Satender came out. He asked him about the incident and he told him that they have robbed Rs,19,500/- cash and one ring and one identity card. Someone called the police over 100 number. Satender had stabbing injury on his leg and under arm. Police reached there and took the Satender to GTB Hospital. The police officials FIR No. : 91/09, PS : Harsh Vihar Page 22 of 35 23 recovered three empty cases of cartridge from the spot i.e. street outside the house of Satender and seized the same and prepared the sketch of the cartridges.
15. Ld. Defence Counsel submitted there are material inconsistencies in the testimonies of witnesses with respect to number of person who entered in the house. PW Naresh stated that he saw five/six persons had entered in the house of Mr. Satender whereas Satender claims that three/four boys entered in the house by jumping the wall and they had threatened. Ms. Vimlesh and Ms. Rekha stated in their examination that some persons had entered in their house and Ms. Vimlesh stated in her cross-examination that they were about 6/7 persons whereas Ms. Rekha stated in her cross-examination that she cannot tell the number of persons but stated three-four persons were near his brother and one was near them. PW-6 Ms Rinki stated that four/five persons entered in the house and in her cross-examination stated that 2 accused persons were standing near Satender and two had confined them in the room.
16. It was night hours and they were inside their house and they were frightened by the accused persons but most of them had stated that they were three/four persons whereas Naresh who was outside had seen five/six persons. In this cross-examination, he stated that there were four/five other persons gathered in the street. Therefore as per the statement of the witnesses, the FIR No. : 91/09, PS : Harsh Vihar Page 23 of 35 24 number of total persons involved in the occurrence were five or more. There is no cross-examination of PW-1 Sh. Naresh with respect to the total number of the persons involved in the occurrence. As regards the incident, the statement of PW Satender is corroborated by other witnesses and also corroborated by the medical evidence and blood stained pajama. Therefore as regards the occurrence, it stands established.
17. Now coming to the identity of the accused persons. Firstly, as regards accused Munir Chhota, Harun and Dulal, PW-12 Inspector Surender Dahiya testified that on 25.05.2009, he was posted as Sub-Inspector at office of Special Staff, South District, Delhi and on that day, he alongwith the police staff in the investigation of case FIR No. 267/2009, u/s 399/402 IPC and 25 Arms Act, PS Mehrauli were present near T. B. Hospital, DDA Park, Near Mehrauli wherein accused namely Chota Munir, Dulal, Harun, Kamal, Bada Munir, Rahim, Sakir were apprehended and arrested and one loaded country made pistol each was recovered from the possession of Chota Munir, Dulal and Harun. They were also found in possession of one live cartridge each. Remaining accused persons were found in possession of illegal arms like knife and iron rods. All the above said accused persons disclosed that they alongwith accused Aftab and Yamin had committed the offence of the present case. Accused Chota Munir, Dulal and Harun had also disclosed that FIR No. : 91/09, PS : Harsh Vihar Page 24 of 35 25 they had used the recovered country made pistols in the present case. He further stated that he informed the IO of the present case regarding the disclosure statement of the accused persons. PW-10 HC Rajinder Singh also corroborated regarding arrest of accused persons alongwith illegal weapons in case FIR No. 267/09 wherein accused Harun, Chota Munir and Dulal made their disclosure statement regarding their involvement in this case and proved disclosure statement of accused Harun and seizure memo of country made pistol and cartridges recovered from the possession of accused Harun. PW-11 HC Vijay also corroborated other witnesses and stated that accused Chhota Munir confessed that he used the country made pistol in the present case and proved his disclosure statement and seizure memo of the country made pistol and cartridge. PW-20 ASI Shiv Kumar also corroborated other witnesses regarding disclosure statements of accused Chota Munir, Dulal and Harun regarding their involvement in the present case, recovery of country made pistols.
18. The recovered cartridges in the present case outside the house of PW Satender were matched with the country made pistols recovered from the possession of accused Chota Munir, Harun and Dulal in case FIR No. 267/2009, PS Mehrauli, u/s 399/402 IPC and 25 Arms Act. As per the FSL result, they were having found identical mark with test fired cartridges. PW-3 Satender FIR No. : 91/09, PS : Harsh Vihar Page 25 of 35 26 had identified accused Chota Munir and Harun in the judicial test identification parade (TIP) conducted. He identified them in the court also and in addition to them he also identified accused Dulal as the person being involved in the occurrence, however, he could not identify other accused persons namely Yamin Kalia and Aftab.
19. Ld. Defence Counsels submitted that version of arrest and recovery of country made pistols from the possession of accused Chota Munir, Harun and Dulal is doubtful and it were planted upon them. Further identification of the accused persons namely Chota Munir and Harun in judicial TIP was done as they were shown to the complainant in the PS Mehrauli after their arrest. As regards accused Dulal, Ld. Defence Counsel submitted that he has been identified in the court for the first time and even as per the prosecution case accused Dulal was not present inside the house but was present outside and therefore he could not have been identified by PW Satender.
20. PW-12 Inspector Surender Dahiya stated in this cross-examination that seven accused persons were arrested from DDA Park in case FIR No. 267/09, PS Mehrauli on 25.05.2009 at about 8:30 p.m. There was residential colony at some distance from DDA Park. There were residential houses at a distance of about ½ km from the park. There were one-two public present at that time, in the park. He asked four/five public FIR No. : 91/09, PS : Harsh Vihar Page 26 of 35 27 persons to join the investigation at the time of forming the raiding party but they refused. He did not give any notice to those public persons. They reached at the gate of park at about 2:15 p.m. and raiding party was formed at about 2:25 p.m. They left the DDA Park at about 9 p.m. Accused persons came in the park at about 3/3:15 p.m. one by one and they were apprehended at about 3:25 p.m. He recorded disclosure statements of accused persons in their office of speical staff. They reached at their office at about 9:30 p.m. He has no conversation with the complainant of this case. He did not inform the complainant of this case about the arrest of accused persons. On the next day of arrest of the accused persons, he informed IO of this case.
21. PW-11 HC Vijay stated in his cross-examination the country made pistol was recovered from accused Munir @ Chota at about 3:30-3:45 p.m. and his disclosure statement was recorded at about 9:30 p.m. They started from the office of special staff at about 2 pm in connection with FIR No. 267/09 and reached at 2:30 p.m. and they all started together in mini bus of police. The distance between their office and the place of occurrence is about 10 kms. The accused perseons came in the park one by one after their arrival. The disclosure statement of accused Chota Munir was recorded in the office of special staff. PW-20 ASI Shiv Kumar stated in his cross-examination that they reached at DDA Park, Mehrauli, near T.B. Hospital at about 2:15 p.m. They left FIR No. : 91/09, PS : Harsh Vihar Page 27 of 35 28 the DDA Park at about 9:00/9:15 p.m. The distance between the office of special staff and said DDA Park is about 7/8 km. They reached at the DDA Park in government vehicle make TATA 407. Some public persons were coming and going from there. IO had asked four/five public persons to join the investigation prior to the raiding but they refused to join the investigation. IO did not serve any notice upon the persons who have refused to join the investigation. He did not notice any residential colony nearby the spot. Writing works were conducted in the park. Disclosure statements of accused persons were recorded in the office of special staff.
22. PW-10 HC Rajinder Singh stated in his cross-examination that accused persons were arrested in the evening hours at about 6:00/7:00 from park near T. B. Hospital, Mehrauli, Delhi. He further stated that public perseons were present in the park, however, no agreed to join the investigation and no notice was served upon the public persons on their refusal. Confession was recorded at the place of arrest of accused persons. On 26.05.2009 duty officer of special staff had given the message regarding disclosure statement made by the accused persons regarding commission of the present offence to the IO of the present case.
23. In the cross-examination of the witnesses apart from the fact that public witnesses were present but they were not join and some FIR No. : 91/09, PS : Harsh Vihar Page 28 of 35 29 inconsistencies with respect to the vehicle in which they had gone to the spot, there is nothing material which has come out which could discredit the witnesses. It is common knowledge that public witnesses do not come forward in the cases to become witness and it is settled law that if the testimony of police witnesses are found trustworthy it can be relied upon. All the police witnesses are consistent with respect to the arrest and recovery and nothing material has come in the cross-examination which could discredit them. The inconsistencies pointed out are minor in nature and can be safely ignored. Therefore it is established on record that accused Munir Chota, Harun and Dulal were arrested and they were found in possession of country made pistol each. The said country made pistols have been connected with the cartridges found outside the house of PW Satender used in the present case. The accused persons had also disclosed that these country made pistols were used by them in the present case. This fact was not within the knowledge of police and therefore this part of the disclosure statement is admissible against them u/s 27 of Indian Evidence Act that these are the same country made pistols which were used in the present case. This fact has also been corroborated by the FSL result.
24. Now coming to the identification of accused persons. There is only one witness regarding their identification and he is PW-3 Sh.
FIR No. : 91/09, PS : Harsh Vihar Page 29 of 35 30Satender. He identified Munir Chota and Harun by touching them in the court and they were also identified by him in the judicial test identification parade (TIP). In his cross-examination he stated that he after about 7/8 days of the incident, he came to know that some of the assailants have been arrested by the police and he received the said information from the police official of special staff. The police official of Special Staff had come to his home and informed the same to him. He does not remember the exact time on which he came to know in this regard. He does not know the name of accused who was shown to him by the police at PS Mehroli. He does not remember as to whether on that day, ASI Rakesh Tyagi was also with him or not. He denied the suggestion that accused Munir Chotta was shown to him in PS Mehroli. He admitted that he had shown that boy at PS Mehrauli and told to him by the police that he is one of the boys who was involved in the incident. He also denied the suggestion that he was stated by the police official to identify that boy in the TIP proceedings at Tihar Jail. He admitted that he had identified that boy in TIP proceedings as he was shown to him at PS Mehrauli. Therefore, although he admitted the suggestion that he had identified that boy as he was shown at PS Mehrauli yet he denied the suggestion that it was Munir @ Chota who was shown at PS Mehrauli. He was re-examined on this point by Ld. Addl. PP in which he categorically stated that the boy shown to him at PS Mehrauli was not involved in the present case. Therefore it FIR No. : 91/09, PS : Harsh Vihar Page 30 of 35 31 settles the issue that the accused Munir @ Chota and Harun were not shown to him at PS Mehrauli. Moreover, the recovery of country made pistol which was connected with the bullets, reassures this court regarding the involvement of the accused Munir@Chota, therefore the identity of the accused is established as the witness has categorically denied the suggestion that it was Munir @Chota who was shown at PS Mehrauli.
25. Now as regards accused Harun, he denied the suggestion that he had been identified at the instance of the police in TIP or that he was also shown to him at PS Mehrauli. Therefore there is no dispute regarding Harun. However, the witness has stated that he had identified one person in TIP on the asking of police and it was not Munir. However, the re-examination of witness lays the controversy at rest. The recovery effected from him which connects with the bullet recovered in this case re-assures this court about his presence at the spot.
26. Now coming to the accused Dulal. The TIP of accused Dulal was not conducted and he was identified by the witness in the court for the first time. In his cross-examination, he stated that accused Dulal was seen by him on the date of incident in his house at the time of robbery. He categorically denied that police had shown him the photographs of accused Dulal. He also denied that accused Dulal was present outside the house, at the time of incident and he voluntarily stated that he was inside the house in FIR No. : 91/09, PS : Harsh Vihar Page 31 of 35 32 the room where the robbery was committed. Now the question arises whether first time identification by the witness in the court is weak type of evidence. As per prosecution, accused Dulal was present outside the house, therefore his TIP was not conducted. Prosecution case appears to be based on disclosure statement made by the accused and it is not unlikely that the accused had stated falsehood in his confessional statement to mislead the police. Moreover, the TIP is only test of observing memory of witness. The substantiative evidence is statement made in the court. Reference can be made to the judgment of our own High Court in case title as State vs. Kiran, CRL. Rev. No. 731 / 2003, decided on 12.05.2010. However, by the own suggestion of the accused that he was present outside the house would clearly shows that he was involved in the occurrence. Recovery of country made pistol effected from him which was also connected with the bullets recovered from the spot further re-assures this court regarding his involvement.
27. Now coming to the accused Aftab and Yamin @ Kalia. They were not identified by the witness. PW-21 ASI Rakesh Tyagi stated that on 30.05.2009, he received message vide DD No.2B regarding arrest of accused Yamin Kalia and Aftab in case FIR No. 152/09, PS Nand Nagri and making their disclosure statements regarding the confession of commission of present case. He met IO of the said FIR of PS Nand Nagri and collected FIR No. : 91/09, PS : Harsh Vihar Page 32 of 35 33 the disclosure statements of both accused. He further stated that on 9.6.2009, he obtained PC remand of accused Rahim, Munir Bada, Shakir and Aftab and accused Aftab led them at Park near Wazirabad Road, Mandoli Extension behind Water Pump and Latrine where he thrown the school I-card of Satender, the complainant of this case and pointed out the same and he took out the same which was lying near the latrine and water pump and produced the same before him and he seized the same. There is no cross-examination, however, on this aspect. However, admittedly, the said I-card was recovered many days after the incident from an open place accessible to public, therefore, the recovery cannot be linked to the accused Aftab. Therefore, I am of the opinion that accused Aftab is entitled to benefit of doubt. There is no evidence against accused Yamin @ Kalia to connect with the offence of the present case. Therefore accused Yamin @ Kalia is entitled to acquittal.
28. Accordingly I am of the opinion that prosecution has succeeded in proving offence punishable u/s 395 IPC against accused Munir @ Chota, Harun and Dulal.
29. Now coming to the defence of the accused persons namely Munir @ Chota, Harun and Dulal. Accused Harun stated he was falsely arrested by police of PS Mehrauli in the year 2009 from Pushp Vihar Bus Stand and he was identified in the TIP proceedings by the complainant Satender as he was shown him FIR No. : 91/09, PS : Harsh Vihar Page 33 of 35 34 at PS Mehrauli by the police officials. IO asked Satender to identify him. Nothing has been recovered from his possession.
30. Accused Dulal also stated that he was falsely arrested by police of PS Mehrauli in the year 2009 from Ashok Nagar when he visited the house of his sister and he was shown to the complainant in the PS Mehrauli and despite that, he had moved the application for his TIP but his TIP was not got conducted. He was previously shown to the complainant Satender, therefore, he identified him in the court. Nothing has been recovered from his possession.
31. Accused Munir @ Chhota also stated he was identified in the TIP proceedings by the complainant Satender as he was shown him as PS Mehrauli by the police officials.
32. The issue of TIP of accused Harun and Chota Munir have already been dealt with in above discussion. The defence of accused persons having not been substantiated. Apart from the identification, there are other material evidences against them on record which show their involvement and presence at the spot. As regards defence of accused Dulal that he was shown to the witness in PS Mehraulti, yet he had moved an application for TIP, is not understandable. It is inconsistent as on one hand he states that he has been shown to the witness and despite that he wanted his TIP. The defence is also not substantiated and he is FIR No. : 91/09, PS : Harsh Vihar Page 34 of 35 35 identified and apart from being identified by the complainant there and other material evidence against him which shows his presence and involvement in the occurrence.
33. Therefore as per above discussion, I am of the opinion that prosecution has succeeded in proving offence punishable u/s 395 IPC against accused Munir @ Chota, Harun and Dulal beyond reasonable doubt. However, prosecution has failed to prove their case against accused Aftab beyond reasonable doubt and therefore, I am of the opinion that Aftab is entitled to benefit of doubt. The prosecution has miserably failed to prove their case against accused Yamin Kalia and therefore, I am of the opinion that he is entitled to acquittal. Accordingly accused Yamin Kalia and Aftab are acquitted of charges. Accused Yamin Kalia is in J/C in this case, he be released from J/C forthwith, if not required in any other case. Bail bond of accused Aftab stands cancelled. His surety discharged.
34. Let the accused Chota Munir, Harun and Dulal be heard on order on quantum of sentence.
Announced in the open court today i.e. on 19.12.2011 GURDEEP SINGH ASJ-04/NE/KKD/DELHI FIR No. : 91/09, PS : Harsh Vihar Page 35 of 35