Delhi High Court
State vs Mahesh & Ors on 23 September, 2015
Author: Sanjiv Khanna
Bench: Sanjiv Khanna, Ashustosh Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRIMINAL APPEAL NO. 371/1998
Reserved on : 19th May, 2015
% Date of Decision: 23rd September, 2015
STATE ..... Appellant
Through Mr. Varun Goswami, APP for State
with SI Prakash Chand, PS Lodhi Colony.
versus
MAHESH & ORS ..... Respondent
Through Mr. Vivek Sood, Sr. Advocate with Ms.Shruti Kukreja, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE ASHUSTOSH KUMAR SANJIV KHANNA, J:
The State in Criminal Appeal No.371/1998 challenges the judgment dated 6th October 1997 acquitting Lokesh, Mukesh, Prem Shankar, Rajiv and Sanjay Yadav (since deceased) from charges under Sections 302/396/397/398 read with Section 120-B of the Indian Penal Code, 1860 ('IPC' for short) and Section 201 read with Section 34 IPC. The aforesaid respondents were charge-sheeted vide charge-sheet dated 25th September, 1995 after the completion of investigation in the FIR No.253/1995 registered at Police Station Lodhi Colony, relating to homicidal deaths of Anil Kumar Shokal, Vijender Kumar Shokal and H.P. Pandey, as a result of fire arm injuries, in late evening on 5th July, 1995.
2. One Pramod Kumar, could not be arrested and was declared a proclaimed offender. He was subsequently arrested after he surrendered in the Court on 7th January, 1998 i.e. after the judgment of CRL.A.Nos. 371/1998 Page 1 of 39 acquittal dated 6th October, 1997 in favour of Lokesh, Mukesh, Prem Shankar, Rajiv and Sanjay Yadav (since deceased) had been pronounced. The said Pramod Kumar by judgment dated 19 th January, 2004 has been convicted under section 302 read with Section 120-B IPC and Section 395 read with Section 120B IPC. By order on sentence dated 29th January, 2004, Pramod Kumar stands sentenced to imprisonment for life, fine of Rs.10,000/- and in default to undergo rigorous imprisonment for ten months for the offence under Section 302 read with Section 120-B IPC. For the offence under Section 395 read with section 120B IPC, Pramod Kumar has been sentenced to imprisonment for life, fine of Rs.10,000/- and in default of payment of fine, rigorous imprisonment for ten months. The sentences are to run concurrently.
3. We had heard arguments in Criminal Appeal No.371/1998 filed by the State against acquittal of Lokesh, Mukesh, Prem Shankar and Rajiv and in Criminal Appeal No.143/2004 filed by Pramod Kumar challenging his conviction. As there are two judgments and the evidence was separately recorded, we deem it appropriate to independently examine and deal with the evidence on record and pronounce two separate decisions.
4. At the outset, we record that one of the respondents, Sanjay Yadav, had died during the pendency of the present appeal by the State and the proceedings against him have abated. Mahesh, who has been arrayed as respondent No.1 was discharged vide order dated 20th February, 1997 and did not stand the trial. Learned Additional Public Prosecutor has accepted that the present appeal is not maintainable against Mahesh. The present State appeal, therefore, survives and we are required to adjudicate and decide on the question of involvement of Lokesh, Mukesh, Prem Shankar and Rajiv.
CRL.A.Nos. 371/1998 Page 2 of 395. The factum that Anil Kumar Shokal, Vijender Kumar Shokal and H.P. Pandey had died homicidal deaths as a result of fire arm injuries has been proved beyond doubt from the testimony of Dr. Alpana Sinha (PW32) and Dr. M.S. Sagar (PW33). Dr. Alpana Sinha (PW32) who had conducted post mortem on H.P. Pandey and Anil Kumar Shokal, vide post mortem reports Ex.PW32/A and Ex.PW32/B respectively, has opined that H.P. Pandey had ante-mortem entry wound present over left temple with blackening and exit wound triangular in shape present over right parietal region of the head and Anil Kumar Shokal had an entry wound over left side of the face over zygomatic arch. On internal examination, it was observed that H.P. Pandey had suffered fracture of right parietal bone and laceration of lateral surface of left parietal lobe. The cause of death was shock due to cranio-cerebral injury caused by a firearm injury to the head, which was fatal and sufficient in the ordinary course of nature to cause death. On internal examination of Anil Kumar Shokal, it was observed that he had suffered fracture of the right parietal bone with displaced bone fragments, subdural hematoma and defused subarachnoid haemorrhage over brain. Laceration on inferior surface of left parietal lobe was also noticed. One deformed bullet was recovered from the body of Anil Kumar Shokal and handed over to the police. The cause of death was shock due to cranio-cerebral injury due to firearm injury to head (injury no. 1 and 2) which is fatal and sufficient in the ordinary course of nature to cause death.
6. Dr. M.S. Sagar (PW33) proved the post-mortem report marked Ex.PW33/A of Vijender Kumar Shokal. The deceased Vijender Kumar Shokal had suffered ante-mortem entry wound over left temple with blackening and tattooing over bone and brain matter. The firearm wound had caused fracture of the temporal bone at the entry CRL.A.Nos. 371/1998 Page 3 of 39 point with a similar fracture line extending towards frontal and temporal regions and the exit point at parieto temporal bone. The brain matter was congested, with defused subdural and subarachnoid hemorrhage present over both cerebral hemisphere. The cause of death was coma as a result of anti-mortem head injuries produced by the firearm.
7. Dr. Alpana Sinha subsequently appeared as PW52 to prove the MLCs of Anil Kumar Shokal, Vijender Kumar Shokal and H.P. Pandey, marked Ex.PW52/A, Ex.PW52/B and Ex.PW52/C respectively, as Dr. Rajiv Singh who was then working in the All India Institute of Medical Sciences, Delhi and had prepared the MLCs, had left service and was untraceable. Signatures and handwriting of Dr. Rajiv Singh were identified by Dr. Alpana Sinha (PW52). The aforesaid MLCs record that Anil Kumar Shokal, Vijender Kumar Shokal and H.P. Pandey were declared as brought dead to the said hospital at 10.00 P.M. on 5th July, 1995.
8. There is also ample evidence to show that the dead bodies of Anil Kumar Shokal, Vijender Kumar Shokal and H.P. Pandey were found near or in the Maruti van bearing number DNB 1968, parked at the western gate of the Jawahar Lal Nehru Stadium at about 9.30 P.M. To avoid prolixity, we are not narrating and detailing the said evidence here, but would refer to the same while dealing with the testimonies of the witnesses.
9. We begin with Sumit (PW15) and Upasana (PW16), who had deposed being eye-witnesses to the aforesaid killings as they aver that they were present in the said Maruti van at the time of occurrence. The motive and objective was to commit dacoity by looting silver ornaments and cash. In other words, the prosecution claims that this is a case of deliberate shoot-out executed after meticulous planning with CRL.A.Nos. 371/1998 Page 4 of 39 dare devilry.
10. The trial court has disbelieved the testimony of Sumit (PW15) and Upasana (PW16) to acquit the respondents. The impugned judgment also refers to the "gaps" and "loopholes" in the prosecution case. Conscious and aware that a judgment of acquittal should not be lightly reversed by the High Court, we have applied the yardstick and test that the appellate courts while hearing appeals against acquittal have to be cautious, for an accused tried and acquitted is presumed to be innocent until proven guilty and is entitled to a fair trial and investigation, which in a case of judgment of acquittal gets reinforced. However, this does not mean that the appellate courts cannot disturb and upset finding of acquittal and convict. For reversal, there should be a compelling rationale and clear and cogent evidence. For this, the appellate court has the full power of review and should appreciate and consider the evidence upon which the order of acquittal is founded. The Code of Criminal Procedure, 1973 does not put any fetters, restriction or condition on exercise of the said power by the appellate court. The appellate Court can reach its own conclusion both on facts and law. Referring to the earlier judgments and reflecting on the case law on the subject in Chandrappa versus State of Karnataka (2007) 4 SCC 415, it has been observed that use of expressions like substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions and glaring mistakes are not intended to curtail extensive powers of the appellate court, but reflect and emphasize on the reluctance of the appellate court to interfere with the acquittal, rather than denude and deny power of re- examination of evidence and reach its own conclusion. Thus, the appellate court has full power to arrive at its own conclusion, if the findings of the court below are contrary to the evidence on record and CRL.A.Nos. 371/1998 Page 5 of 39 the approach of the trial court while dealing with the evidence is found to be patently illegal, leading to miscarriage of justice or is based on an erroneous understanding of the law and facts of the case [see State of Punjab v. Madan Mohan Lal Verma (2013) 14 SCC 153 and Sidhartha Vashishta @ Manu Sharma v. State (2010) 6 SCC 1]. As elucidated and endured below, there are good and sound reasons to hold that the trial court judgment suffers from latent defects and failure to appreciate evidence and law applicable.
WHETHER THE TRIAL COURT HAS RIGHTLY DISBELIEVED PRESENCE OF SUMIT (PW-15) AND UPASANA (PW-16) IN THE MARUTI VAN AT THE TIME OF COMMISSION OF CRIME ?
11. In the impugned judgment, the trial court has rejected the testimonies of Sumit (PW15) and Upasana (PW16) as incredible and untrustworthy on the ground that their clothes were not blood-stained and there was no reason as to why the culprits did not shoot the two children, since they had killed Anil Kumar Shokal, Vijender Kumar Shokal and H.P. Pandey. We have no hesitation in holding that the said findings of the trial court are inexorably fallacious and deserve annulment. Sumit (PW15) was about 16 years of age when his testimony was recorded in the Court on 22nd August, 1997 and was merely 14 years of age when the offence was committed on 5th July, 1995. Sumit (PW15) has affirmatively deposed that he along with his sister Upasana, father Anil Kumar Shokal, uncle Vijender Kumar Shokal and driver H.P. Pandey had on 5th July, 1995 driven in Maruti van number DNB1968 from Chandni Chowk to Madangir. His father had to collect payments and as this was taking time, they (Sumit and Upasana) were sent to the house of their maternal uncle at F-518, Pragati Vihar Hostel. At about 7.30 P.M., driver H.P. Pandey had CRL.A.Nos. 371/1998 Page 6 of 39 returned and picked them from Pragati Vihar Hostel. Sumit (PW-15) and Upasana (PW-16) met their father Anil Kumar Shokal and Uncle Vijender Kumar Shokal at Madangir. They started the return journey to their residence at about 8.30 P.M. Anil Kumar Shokal, at that time, was carrying a briefcase of grey colour and a handbag of mushroom colour with him. At about 9 - 9.30 P.M., they had stopped at the red light at T-point crossing located at the Joseph Tito Marg, when a Yamaha motorcycle of mehroon colour with four persons riding on it had halted on the left side of the Maruti van. One boy who was on the motorcycle came towards them and fired a shot at his father and seated himself in the van. Another person pushed his uncle Vijender Kumar Shokal, who was sitting next to the window of the left front side and forcibly entered in the van. Third person entered the van after pushing the driver and seated himself on the driver seat. The boy who had fired the shot at his father and was wearing a kurta-payajama and had tied a handkerchief on his head, fired another shot at the driver H.P. Pandey. When the signal turned green, the boy who was sitting on the driver seat drove the van. After they had travelled some distance, the boy who had earlier fired shots at his father Anil Kumar Shokal and driver H.P. Pandey, fired the third shot at his uncle Vijender Kumar Shokal. Sumit (PW15) in his court deposition has referred to one Chetak scooter, which had also halted and followed the Maruti van. The driver of the scooter was asked to go away by the boy who had entered the Maruti van from the left side after pushing Vijender Kumar Shokal. The scooter went underneath the Mool Chand flyover. The van was driven over the Mool Chand Flyover and stopped at the western gate of the Jawahar Lal Nehru Stadium. Thereafter, the three perpetrators alighted from the van and fled away from the spot on the same motorcycle which had followed them. The CRL.A.Nos. 371/1998 Page 7 of 39 person, who had fired the shots, took with him the briefcase, handbag, money and other articles from the pocket of his father Anil Kumar Shokal. Sumit (PW15) had then raised an alarm and on noticing a guard at the western gate of the Jawahar Lal Nehru Stadium, requested him to ring up the house of his maternal uncle Ram Chander at the Pragati Vihar Hostel. (Pragati Vihar Hostel, we observe, is adjacent to the Jawahar Lal Nehru Stadium). His maternal uncle Ram Chander thereafter came and took his sister Upasana (PW16) along with him to his residence at Pragati Vihar. Police came to the spot and recorded his statement Ex.PW15/A, which became the first information for recording the rukka/FIR in question.
12. Upasana (PW16) was aged about 11 years when her testimony was recorded in the Court on 22nd August, 1997. In other words, she was hardly 9 years of age at the time of occurrence on 5th July, 1995. Before recording her testimony, the Court had ascertained whether she could rationally reply and answer the questions put to her. On the said day, PW16 has affirmed that she and her brother Sumit (PW15) had gone to Chandni Chowk for PW16 was insisting that her father should present her a cycle as a birthday gift. One small cycle was recovered from the Maruti Van marked Ex.PW26/B. Upasana (PW16) has identically narrated the sequence of events; that her father, deceased Anil Kumar Shokal, had a jewellery shop in Chandni Chowk and on 5th July, 1995, she along with Sumit (PW15) and the three deceased persons had left for Kotla. From Kotla, they had visited Madangir and then they had left for their maternal uncle‟s residence at Pragati Vihar Hostel; they were picked up from Pragati Vihar Hostel in the Maruti van at about 6.30 P.M; they had left Madangir for their house in Rohini at about 8 P.M.; they had stopped at the red light crossing at about 9 P.M.; a motocycle with four persons also halted near the van;
CRL.A.Nos. 371/1998 Page 8 of 39one person got down from the motorcycle, fired a shot at her father and entered the van after pushing her father Anil Kumar Shokal; another person pushed the driver H.P. Pandey and sat on the driver seat; the third boy pushed her uncle Vijender Kumar Shokal and came inside the van; H.P. Pandey was also shot at by the boy who had fired at her father; the said boy was wearing kurta payajama and had tied a patka on his head and the boy on the driver seat drove the van when the signal turned green. Thereafter, the boy who had fired the shot on her father and the driver, fired the third shot at her uncle Vijender Kumar Shokal. The van was driven to the front gate of the Jawahar Lal Nehru Stadium. The boy who had fired the shots took away the grey coloured brief case, mushroom coloured handbag and money from her father‟s pocket. The culprits fled from the spot on the same motorcycle. Her brother Sumit (PW15) raised an alarm and the PCR van and her maternal uncle Shyam Verma came there. She being horrified by the frightful happening, was taken to the Pragati Vihar Hostel where her other maternal uncle used to reside. Upasana (PW16) affirmed that Sumit (PW15) had asked the watchman at the stadium to help them and take them to a hospital.
13. The aforesaid depositions of Sumit (PW15) and Upasana (PW16) are in seriatim. To us, it is clear that the two young children who had witnessed a cruel, violent and cataclysmic occurrence, have correctly and truthfully narrated the facts. PW15 and PW16 are not trumped up or planted witnesses who were not present in the van during the incident. They were witness to the occurrence when Anil Kumar Shokal, Vijender Kumar Shokal and H.P. Pandey were shot. They had seen the culprits. Their testimonies as to the occurrence cannot be rejected for the reason that the police/investigating officer did not take into custody the clothes then worn by PW15 and PW16.
CRL.A.Nos. 371/1998 Page 9 of 39The aforesaid failure and lapse on the part of the investigating officer would not decimate and erase their testimonies. The lapse palpably occurred as PW15 and PW16 had suffered extreme trauma and were terrorized having seen three persons; their father, uncle and driver, been shot dead. Without a second set of clothing, the clothes worn by them could not have been immediately handed over to the police. No one would have liked children of the said age to testify in the Court in the presence of purported perpetrators who had committed triple murders without any qualms and remorse at the loss of life for looting jewellery and money. It would have been extremely traumatic and scary for the terrified children to narrate the brutal occurrence all over again. Given a choice, the family/elders possibly would have never wanted the children to depose in the Court.
14. The second reason given by the trial court to disbelieve the presence of PW15 and PW16 in the Maruti van during the occurrence is that the perpetrators would not have left alive Sumit (PW15) and Upasana (PW16). This reason is equally presumptuous and erroneous. Conceivably, the perpetrators looking at the tender age of PW15 and PW16 did not perceive and believe that they were a threat or a danger to them. The perpetrators, by killing the three adults, had ensured that there would not be any resistance and no one would raise an alarm. It also appears that the perpetrators believed that they would never get identified and arrested. The perpetrators had committed cold-blooded and brutal murders, three in number, without any fear and nervousness of being caught. They were not afraid or fearful of identification by the two eye-witnesses i.e. Sumit (PW15) and Upasana (PW16). The fact that PW15 and PWs16 were spared and not murdered does not justify the inference and finding that the two eye-witnesses were not present and had not see the occurrence.
CRL.A.Nos. 371/1998 Page 10 of 3915. The presence of Sumit (PW15) and Upasana (PW16) in the Maruti Van at the Jawahar Lal Nehru Stadium is also affirmed by the testimony of other witnesses, namely, Shyam Verma (PW1), uncle of PW15 and PW16 and Uma Kant Mishra (PW58), the guard present on duty. Uma Kant Misra (PW58) has deposed that on 5th July, 1995, at about 9.15 P.M., he was on duty as a security guard on the western gate of the Jawahar Lal Nehru Stadium. A boy named Sumit came to him and had pleaded for help as his father and uncle had received gunshot wounds. Sumit had requested PW-58 to make a telephone call to his relatives living at Pragati Vihar and had given to him their telephone number. PW-58 had then made a call at the number given by Sumit and to the Police Control Room. PW1 was not cross- examined and his testimony has remained unchallenged. This important aspect remains unnoticed and is not referred to in the impugned judgment. Shyam Verma (PW1) has stated that on 5th July, 1995, at about 9.25 P.M., he was informed on telephone about the incident and that he should come at the western gate of the Jawahar Lal Nehru Stadium. He reached the said gate at about 9.40 P.M. and had met Sumit (PW15) and Upasana (PW16), who were in a shocked state and crying. PW1 learnt from them that their father had been shot dead by four assailants who had driven away on a motorcycle towards the Sewa Nagar Flyover. Blood could be seen in the Maruti van. Bodies of his brother-in-law and driver were lying dead inside the van and body of Vijender Kumar Shokal was lying on the road at a distance of about 10-15 feet from the Maruti van. He, thereupon, took Upasana (PW16) to Pragati Vihar Hostel and left her with his sister- in-law (Bhabhi). This portion of the deposition by Shyam Verma (PW1) remained unchallenged. In his cross-examination, PW1 has stated that after leaving Upasana (PW16) at home, he returned to the CRL.A.Nos. 371/1998 Page 11 of 39 spot and thereafter, had visited the hospital. In these circumstances, we do not think it to be appropriate to hold that Upasana (PW16) and Sumit (PW15) had not travelled and were not present in the Maruti Van, when the killings took place.
16. Sumit (PW15) in his examination-in-chief has stated that after some time, his maternal uncle Ram Chander had come to the spot and taken Upasana (PW16) with him to his house. The said statement of Sumit (PW15) is an obvious mistake and an error, which should not distract us from the core part of his testimony that he and Upasana (PW16) had seen the occurrence and they were present at the western gate of the Jawahar Lal Nehru Stadium. Upasana (PW16) was taken to the house of her maternal uncle Ram Chander by Shyam Verma (PW1). It is clearly and emphatically deposed by Shyam Verma (PW1), brother of Ram Chander. This is also the version of Upsana (PW16). This small and minor divergence in recollection on the part of Sumit (PW15) is insignificant and possibly due to lapse of time.
STATEMENT OF POLICE OFFICERS ON THE PRESENCE OF SUMIT (PW15) AND UPASANA (PW16)
17. Head Constable Naresh Kumar (PW31) was posted in the police control room and was attached to PCR Van Eagle 14. At about 9:30 p.m., he had received a wireless message that one person had been shot near the Jawaharlal Nehru Stadium. He was the first to reach the spot and had seen one Maruti Van standing near the western Gate of the Jawaharlal Nehru Stadium. Two others PCR officials thereafter reached the spot. He had taken one of the injured persons to AIIMS hospital but the person was declared brought dead. Two injured persons were taken to the hospital in the other PCR Vans. He had seen one boy and girl standing next to the Maruti Van when they CRL.A.Nos. 371/1998 Page 12 of 39 reached there and he had later learnt that their names were Sumit and Upasana. PW31 was not cross-examined. Head Constable Ranthuoran (PW13) has similarly deposed about the presence of one boy and one girl named Sumit and Upasana who were standing near the Maruti Van when they had reached the spot. PW13 was on duty with PCR Van Eagle 16. Head Constable Arjun Singh (PW29) was posted with PCR Van Eagle 20 and had reached the spot after information was communicated and affirms that he had also seen a boy near the Maruti Van.
18. Inspector Shivji Tiwari (PW63) and S.I. Sunil Srivastava (PW28) who had recorded the statement of Sumit (PW15) and Upasana (PW16) under Section 161 Cr.P.C., have affirmatively deposed about the presence of Sumit (PW15) and Upasana (PW16) at the western gate of the Jawaharlal Nehru Stadium and the eye-witness assertions made by them. Testimony of S.I. Ram Phal (PW26) and Head Constable Arjun Singh (PW-29) to the effect that they had not seen Upasana (PW16) at the spot but the boy named Sumit (PW15) was present at the spot, can be easily explained for the reason that Upasana (PW-16) was taken and dropped by Shyam Verma (PW-1) at the residence in Pragati Vihar Hostel and PW16's statement under Section 161 Cr.P.C., as per the testimonies of S.I. Sunil Srivastava (PW28) and Inspector Shivji Tiwari (PW-63), was recorded at the said residence.
19. The impugned judgment records that Dheeraj (PW11) has completely demolished the prosecution case as he was on duty from 12:00 midnight to 12:00 a.m. on 5.9.1995, whereas Rukka was received by the duty officer, Constable Ratan Singh, PW6, at 11:20 p.m. and thereafter, the FIR Ex.PW-6/C was recorded. The time when the FIR Ex.PW-6/C was recorded is documented as 11.20 P.M. SI Sunil CRL.A.Nos. 371/1998 Page 13 of 39 Srivastava (PW28) has stated that Dheeraj Singh (PW11) had accompanied him to the spot and he had joined investigation of the case at about 10:00 p.m. We do not think the aforesaid difference in timing, in view of the statement of Dheeraj Singh (PW11), demolishes the prosecution case, as has been observed in paragraph 13 of the impugned judgment. Contemporary documents on record negate the version given by Constable Dheeraj Singh (PW11) and would only show that possibly, he had got confused about the timing. In the cross- examination, he could not admit or deny whether he had reached the spot at 1:30 a.m. We also do not accept his version that he had seen a boy and a girl at the spot at that time. We would prefer to rely upon the version given by S.I. Sunil Srivastava (PW28) and Inspector Shivji Tiwari (PW63) as to the timing when they had reached the Jawaharlal Nehru Stadium. Looking at the nature of the crime, police officers would not have waited for over two hours after the DD entry No.24A (Ex.PW6/A) was recorded at 10:05 p.m. on 05.07.1995 in the Police Station Lodhi Colony. Some variation in time is always possible and should not without intelligible reasons, be treated as a major discrepancy. Such variation and time difference is natural and normal for witnesses are human beings and have imperfect memories and recollection of exact time with clock-wise precision is impractical and inconceivable.
INITIAL INVESTIGATION AND THE FIRST LEADS
20. Deposition of S.I. Sunil Srivastava (PW-28) exposits how the police were able to unravel and reach the perpetrators who had committed the crime in question. Initially, the only lead was that the perpetrators had used and fled on a mehroon motor-cycle of Yamaha make. The daring dacoity was pre-planned and dexterously executed. Someone who knew and was aware of the schedule and errand of the CRL.A.Nos. 371/1998 Page 14 of 39 deceased persons, the van number and that cash/jewellery was on board, were involved. On 1.11.1995, Sunil Srivastava (PW28) received information from S.I. Raman Lamba (PW-21) regarding seizure of a motor cycle (Yamaha make of mehroon colour). Thereafter, they had proceeded to Dakshinpuri area in connection with the investigation and had interrogated Ramesh Khichi, a painter, who had led them to one Mahesh (who was discharged vide order dated 20th February, 1997), resident of K-168, Dakshinpuri. Mahesh, on interrogation, had led to recovery of a motor-cycle number plate bearing No. DL1SC1211, which was painted by Ramesh Khichi, a painter. This number plate was seized vide seizure memo Ex.PW28/C. Thereupon, and on leads and tip-offs available, they tracked down and arrested the perpetrators. The aforesaid factum is proved and corroborated by Inspector Raman Lamba (PW21), who has testified that he along with others on 10.07.1995, was on patrolling duty, when at about 12:45 P.M., they had noticed one abandoned Yamaha motorcycle at Gali No.19 and 20, DDA Flats, Madangir. The motor vehicle was checked and the crime record office was informed on telephone. It was learnt that this motor-cycle was stolen in the year 1993 from the area within the jurisdiction of Police Station Chittaranjan Park. The motorcycle was seized under Section 102 Cr.P.C. vide seizure memo Ex.PW21/A. PW21 had learnt that this motor-cycle was involved in the commission of a triple murder in the area of Police Station, Lodhi Colony. On 11.7.1995, CFSL team was summoned and upon inspection of the motor-cycle, had lifted five blood-stain samples. Motor-cycle (Ex.P35) was identified by PW21. Inspector Raman Lamba (PW21) has accepted that on 5.7.1995, he had learnt about the involvement of a motor-cycle in the aforesaid offence, though this information was not recorded.
CRL.A.Nos. 371/1998 Page 15 of 3921. Kaushal Kumar (PW49), Scientific Assistant, Biological Division, CFSL, Lodhi Road Complex, has affirmed that on 11.7.1995, on the requisition of In-charge, Police Post, Madangir, he visited and inspected the Yamaha motor-cycle. He had lifted blood- stains, five in number from the said motor-cycle. The prosecution had produced K. Mitra (PW-17), owner of motor-cycle DL 3SB2364, Yamaha make 1992 model of mehroon colour, who has deposed that the said motor-cycle was stolen on 18.09.1993 and as it was insured, he had received his claim. He had produced photocopy of papers regarding the purchase of the motor-cycle, insurance receipt etc. PW17 was not cross-examined.
DOCK IDENTIFICATION OF THE ASSAILANTS/PERPETRATORS OF THE CRIME
22. Sumit (PW15) identified the respondents Sanjay Yadav (since deceased), Prem Shankar and Rajiv, who were present in the Court when his deposition was recorded on 22nd August, 1997. The Court while recording the deposition had specifically noticed that the five accused/respondents who were present in the Court, had their faces covered and were asked to uncover their faces. PW15 had pointed out towards Sanjay (since deceased) and stated that the said person had fired at his father Anil Kumar Shokal, uncle Vijender Kumar Shokal and driver H.P. Pandey. PW15 had then pointed out towards the respondent Prem Shankar and stated that the said boy was driving the motorcycle and the respondent Rajiv had pushed his uncle and entered the van. He, however, could not identify Lokesh or state about his exact role.
23. Upasana (PW-16) in her Court deposition recorded on 22nd July, 1997, had initially stated that she could identify the accused who had pushed her uncle and the person who had driven the van. She could CRL.A.Nos. 371/1998 Page 16 of 39 also identify the person among the accused, who had fired the shots. She had pointed out towards Prem Shankar and stated that she had identified him in the police station on 14 th July, 1995, but could not identify any other person present in the court. The Additional Public Prosecutor wanted to cross-examine PW16 but even before cross- examination could begin, PW16 had pointed towards Sanjay (Sanjay Yadav, since deceased) and stated that he had fired the shots. In her cross-examination, she has accepted as correct that there was mark of a mole on the forehead of respondent Prem Shankar and a distinct cut mark on his left cheek. Prem Shankar also had moustaches. She denied the suggestion that respondent Prem Shankar never came near their van while on the motorcycle.
24. We have no hesitation in holding and observing that the dock identification of the respondent Prem Shankar, Rajiv and Sanjay Yadav (since deceased) by Sumit (PW15) and also the testimony of Upasana (PW-16) and her identification of Prem Shankar and Sanjay Yadav (since deceased) have significant evidential worth in implicating the said respondents . As noted above, PW15 and PW16 have stated that they had seen four persons on a motorcycle. Sumit (PW15) had given the make of the motorcycle as „Yamaha‟ and colour as mehroon. Recovery of a motorcycle Ex.P35, with blood-stains affirms the said narration. The person, who had fired and killed Anil Kumar Shokal, Vijender Kumar Shokal and H.P. Pandey was described by PW15 and PW16 as a person wearing patka and kurta- payajama. Sumit (PW15) in his statement Ex.PW15A had specifically stated that one of the perpetrators was being addressed as Sanjay. A person identified and known as Sanjay Yadav (since deceased) was arrested and was subsequently charge-sheeted. Only a person who was present in the van at the time of the occurrence could CRL.A.Nos. 371/1998 Page 17 of 39 have named one the perpetrators. This supports and corroborates the prosecution version that Sumit (PW15) was an eye-witness. The said Sanjay Yadav (since deceased) was identified by both PW-15 and PW-16 as the person who had fired the three shots and killed Anil Kumar Shokal, Vijender Kumar Shokal and H.P. Pandey.
25. Noticeably, a pistol marked Ex.PW20/B recovered from Sanjay Yadav, as per the CFSL report Ex.PW51/A, matched and was used for firing shots in the Maruti Van. CFSL report Ex.PW51/A opines on the basis of the striation marks on the lead (Ex.P55) recovered from the roof of the Maruti Van and the lead recovered from the body of Anil Kumar Shokal that they were fired from the said pistol marked Ex.PW20/B. The fact that Upasana (PW16) could not identify Rajiv is no reason to distrust or repudiate identification of both Prem Shankar and Rajiv by Sumit (PW-15) or identification of Prem Shankar by Upasana (PW16). To do so, as held by the trial court, would be contrary to law and is unpalatable.
26. Similarly, the variation or time difference of about 30 minutes to one hour as mentioned by Sumit (PW15) and Upasana (PW16) regarding the events as to when they had reached Madangir, when they had started from Pragati Vihar hostel for Madangir and when they had left Madangir to return home, does not affect their core narration of facts. This variation is normal and natural and cannot be viewed as a deafening discrepancy as held in the impugned judgment. For identical reasons, whether the shot was fired after the assailant had entered the Van or while standing outside next to the Van before entering the Van, is a very minor aspect for the main issue in question is whether one of the assailants had fired the shot and killed Anil Kumar Shokal. The process of firing and entering the Van would be instantaneous with one following the other and almost simultaneously.
CRL.A.Nos. 371/1998 Page 18 of 39This cannot be treated as a discrepancy between the version of Sumit (PW-15), who has stated that the assailant came inside the Van and fired the first shot and Upasana (PW-16), who has stated that the assailant had first fired the shot at her father and then entered the Maruti Van.
27. As elucidated and reasoned below, we do not find any merit in the contention and the finding recorded in the impugned judgment that the respondent Lokesh cannot be implicated as in the FIR and in the statement Ex.PW-15/A, Sumit had affirmed presence of four persons on the motor-cycle and there was no reference to a two-wheeler scooter. However, we accept that Sumit (PW-15) and Upasana (PW-
16) could not recognize and identify Lokesh. This does dent the prosecution version that Sumit (PW-15) had identified Lokesh in the police station but we must recognize and accept that the said assertion assures that the identification of Prem Shanker and Rajiv has a halo of truth behind it and not an act of convolution or formality dubiously executed. It assures and endorses his testimony and dock identification of Prem Shankar and Rajiv.
28. Sumit (PW15) has deposed that on 14th July, 1995, he was called to the police station where he had gone with his sister Upasana (PW16) and maternal uncle Ram Chander. Over there, he had identified the person who had fired the shots at his father, uncle and driver. The said person was called Sanjay [the reference was to Sanjay Yadav (who has since expired)]. On the same day i.e. 14th July, 1995, another person/boy was shown to PW15 and he had identified him as the person who was driving the motorcycle. PW15 identified a third person after he was taken to the lock-up, where some persons/criminals were sitting. He identified the said person as the one who had pushed his uncle Vijender Kumar Shokal. He did not know CRL.A.Nos. 371/1998 Page 19 of 39 their names. Subsequently, on 20th July, 1995, he was called to the police station and had identified the person who was driving the scooter on the day of the incident. Lastly, on 31st July, 1995, he had identified the ornaments which were recovered. These ornaments were subsequently identified by PW15 in the Court on 7th September, 1995. The said deposition regarding identification of Lokesh on 20 th July, 1995 may be at variance with the statement of Shivji Tiwari (PW63), but mentioning of and reference to an incorrect or wrong date would not merit an order of acquittal. In any case, Sumit (PW15) did not recognize and identify Lokesh in the Court.
29. The judgment under challenge referring to the statement of Sumit (PW15) observes that PW15 had identified Rajiv on 14.7.1995 as the person who had entered the van after pushing Vijender Kumar Shokal. Rajiv as per the charge sheet was arrested on 16.7.1995 and therefore, the question of PW-15 identifying Rajiv on 14.7.1995 does not arise. To us, the answer given by Sumit (PW15) was a mistake and erroneous as to the date. This discrepancy should not be read and understood as a suppuration which justifies the conclusion that Sumit (PW15) was not present at the time of the occurrence. As per the prosecution version, respondents Mukesh and Lokesh were arrested on 11th July, 1995 and from them, silver jewellery weighing 2 Kgs. each was recovered. Respondents Prem Shankar and Rajiv were arrested on 11th July, 1995 and 16th July respectively and silver jewellery weighing 1.41kgs. and 3 Kgs. respectively, was recovered from them. The details of recovery of jewellery/silver articles from the five accused persons, including Sanjay Yadav (since deceased) are as under:
CRL.A.Nos. 371/1998 Page 20 of 39Name of accused Date of Place of arrest Recoveries Seizure arrest memo Lokesh 11.07.1995 Block A, 2 Kgs. Silver Ex.28/F Dakshinpuri jewellery Bill book of Sri Ram and Sons, Chandni Chowk, Delhi containing bills Sr. No. 1259 to 1300 out of which bills from Sr. No. 1201 to 1259 have been issued.
LIC payment slip in the name of Sh.
A.K. Shokal -
SLM 4961 Policy Ex.P-34 No. 111671253 for Rs. 1436/-
Bajaj Super Scooter
Sanjay Yadav 11.07.1995 Jhandpura, T- Desi katta and Ex.PW20/B
(since deceased) point cartridge Ex.PW20/C
Silver jewellery 1.6
Kgs
Silver ring
Mukesh 11.07.1995 Near 2 Kgs. Silver Ex.28/H
cremation jewellery
ground,
Dakshinpuri
Prem Shankar 11.07.1995 Jhandpura, T- Silver jewellery - Ex.PW23/B
point 1.41 Kgs. Ex.PW23/C
Silver ring
Rajiv 16.07.1995 Sainik Farm Silver jewellery - 3 Ex.PW28/L
Kgs.
Pass book of PNB
A/c No. 24385 of
M/s Rakesh Kumar
& Anil Kumar, 281
Hauz Qazi along
with one pay-in-slip
of Rs2925/- dated
17.01.1995
CRL.A.Nos. 371/1998 Page 21 of 39
It is noticeable that the silver jewellery recovered from the four contesting respondents is substantial. There is ample evidence and material to show that the deceased Anil Kumar Shokal was a partner in the jewellery firm M/s Shri Ram and Sons operating from Chandni Chowk. Vijender Kumar Shokal also used to work in the said firm. Rakesh Kumar Shokal (PW61) has testified that Anil Kumar Shokal was his younger brother and Vijender Kumar Shokal was his cousin. They used to do business of silver jewellery from a shop at Chandni Chowk in the name and style of M/S Shri Ram and Sons and they used to use the mark 'SRS' and 'SS' on the jewellery prepared by them, though they also use to deal with jewellery without the said marks. They would purchase jewellery from hawkers, and get the purity tested from a laboratory. He identified the bill Ex.PW61/F dated 8.12.94 which was in the handwriting of his brother Anil Kumar Shokal (deceased).
30. Rakesh Kumar Shokal (PW61) has affirmed and proved the carbon copies of bill Nos.1201 to 1259 in the bill book which had been issued by the deceased Anil Kumar Shokal recording sale of silver jewellery to different parties. The said bills were collectively marked Ex.P36. The bill book had bills from Sr. Nos.1201 to 1300.
Rakesh Kumar Shokal (PW61) had identified jewellery items marked Ex.P1 to Ex.P21 and Ex.P23 to Ex.P33 in the Court. He affirmed that the articles belonged to them and he had earlier identified them in the test identification proceedings held in the court of Mr. S.S. Handa, Metropolitan Magistrate.
31. Prem Shankar was arrested by the Special Staff, East District Police Station, Kalyanpuri along with Sanjay Yadav (since deceased) on 11th July, 1995. The aforesaid factum was proved by ASI Ramesh Kumar (PW-23), who has deposed that a button knife was recovered CRL.A.Nos. 371/1998 Page 22 of 39 from his possession vide memo Ex.PW23/E. One polythene bag containing jewellery weighing 1.241 kgs. was seized vide seizure memo Ex.PW23/B. Prem Shankar was then wearing a ring, which was seized vide Ex.PW23/C. A blood-stained pant was also taken into possession vide seizure memo Ex.PW23/D. ASI Ramesh Kumar (PW23) has affirmed that two persons, i.e., Prem Shankar and Sanjay Yadav (since deceased) were seen coming from the Noida side at about 6.30 P.M. on a scooter and that SI Manoj Dixit and Inspector Ram Meher and others were present with him.
32. SI Manoj Dixit (PW22) has similarly deposed that two boys, i.e., Prem Shankar and Sanjay Yadav (since deceased) were stopped at about 6.40 P.M. on 11.7.95 PW22 has affirmed recovery of a button knife and silver jewellery from Prem Shankar. Thereafter, FIR No. 305/1995 was registered at Police Station Kalyanpuri under the Arms Act. In cross-examination on behalf of Prem Shankar, PW22 has stated that they went back to the Police Station after completing the investigation only at 3.30 A.M. On further cross-examination by the counsel for Sanjay Yadav (since deceased), PW22 has stated that they had remained at the spot till 11.15 P.M. and the scooter was sent to the Police Station at the same time. In these circumstances, we do not think that it will be appropriate and correct to accept the defence contention that Prem Shankar was seen by Sumit (PW15) on 11 th September, 1995 at the Police Station Kalyanpuri. In fact, the said answer by PW15 is contrary to his earlier statement recorded in his examination-in-chief on 22nd August, 1997 that on 14th July, 1995, he was called to the Police Station, Lodhi Colony where he had gone with his sister and maternal uncle Ram Chander and at that time, he had identified the person who had fired the shot, i.e., Sanjay Yadav (since CRL.A.Nos. 371/1998 Page 23 of 39 deceased) and had also identified the person who was driving the motorcycle i.e., Prem Shankar.
33. L.S. Solanki (PW55), Metropolitan Magistrate, Karkardooma Courts has deposed that on 12th July, 1995, Prem Shankar was produced with a muffled face and was remanded to judicial custody. Similarly, Sudesh Kumar (PW56), Metropolitan Magistrate, Karkardooma Courts, has deposed that he had ordered that the accused, i.e., Prem Shankar and Sanjay Yadav (since deceased), who were produced before him were to be kept in muffled face vide order Ex.PW56/A. S.S. Handa (PW57), Metropolitan Magistrate has stated that Prem Shankar and Sanjay Yadav (since deceased) were produced with muffled faces before him at 5.10 P.M. on 12th July, 1995 and they were sent to judicial custody in the present FIR.
34. The third person identified by Sumit (PW15) was Rajiv who had entered the van after pushing Vijender Singh. Appellant-Rajiv was arrested on 16th July, 1995 and from him, a polythene bag with silver jewellery weighing 3 Kgs. was recovered as per seizure memo Ex.PW28/L, passbook of PNB Bank account of Rakesh Kumar and Anil Kumar (Ex.P3/A), one pay-in-slip of Rs.2925/- dated 17th September, 1995 (Ex.P3/B) and a blood-stained shirt which was seized vide seizure memo (Ex.PW28/N). The shirt was marked as Ex.P57. SI Sunil Srivastava (PW28) has deposed about the arrest of Rajiv and his personal search vide search memo Ex.PW28/K. The jewellery along with the white colour bag was identified as Ex.P23 to 33. The face of the appellant Rajiv was thereafter muffled. SI Sunil Srivastava (PW28) has deposed that the mark of SRA could be seen on 47 small samples and 16 locks.
35. Prem Shankar and Rajiv had refused to participate in the TIP proceedings before C.K. Chaturvedi (PW53), Metropolitan Magistrate CRL.A.Nos. 371/1998 Page 24 of 39 on 13th July, 1995 and 18th July, 1995 respectively, as per Ex.PW53/G in the case of Prem Shankar and Ex.PW53/B in the case of Rajiv. The importance and paramouncy of dock identification has been lucidly explained in Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1. This judgment elucidates to hold that even when there was no previous TIP, the Court can convict an accused when the dock identification is above board and trustworthy. TIP proceedings are not substantive evidence and are primarily for the purpose of helping the investigating agency in ascertaining facts as observed by the Supreme Court in Munshi Singh Gautam v. State of M.P. (2005) 9 SCC 631. TIP identification can be only used as a corroborative to the testimony in the Court. It is desirable that the TIP proceeding is conducted as soon as possible and this test is done at the investigation stage to enable the prosecution to decide whether all or any of the person could be cited as an eye witness. Such identifications are significant, though there is no provision or mandate in the CrPC or in the Evidence Act. As a general rule, the substantive evidence is the statement of the witness in the Court and prior test identification strengthens the trustworthiness of that evidence, for it could be urged that identification of an accused at the trial for the first time is inherently of a weak character. Therefore, rule of prudence requires corroboration in the form of earlier identification proceedings. This rule of prudence is not absolute or universal. In other words, weight to be attached to the identification would a matter for the courts to decide on the facts and in a given case identification can be accepted even without insisting on corroboration. (see Kanta Prashad Vs. Delhi Administration, AIR 1958 SC 350, Rameshwar Singh Vs. State of J & K (1971) 2 SCC 715, Harbhajan Singh Vs. State of J & K (1975) 4 SCC 480 and (2003) 5 SCC 746).
CRL.A.Nos. 371/1998 Page 25 of 3936. On the question of identification of the jewellery in the test identification proceedings, we have the testimony of S.S. Handa (PW57), Metropolitan Magistrate, who has deposed that an application Ex.PW57/F was moved on 5th September, 1995 and the TIP was conducted on 6th September, 1995. IO had been directed to bring case property along with similar goods. A part of the case property was correctly identified by Sumit (PW15), Rakesh Kumar Shokal (PW61) and Basant Lal vide proceedings Ex.PW57/G and the certificate by S.S. Handa, Metropolitan Magistrate was marked Ex.PW57/H. Another part of the case property was identified by the said witnesses on 7th September, 1995 vide TIP proceedings Ex.PW57/J and Ex.PW57/K. Sumit (PW15) in his court deposition had identified a part of the silver jewellery. More importantly, he has identified the jewellery with marks 'SS' and 'SRS' asserting that these were their marks. Reference can be made to the cross-examination of Sumit (PW15) on 22nd August, 1997 wherein silver pajayab Ex.P1 and Ex.P2 were shown and identified by him. He has also identified silver ear rings (Ex.P3), juda pin (Ex.P4), silver pandal (Ex.P5) etc. He has accepted that some articles did not bear the identification marks of their shop but he knew that they were manufactured or sold by their firm. He specifically identified different silver jewellery which was recovered from Prem Shankar and Rajiv while accepting that some of the items did not have the identification mark of their shop. In his cross-examination, Sumit (PW15) asserted that the articles with their trade name used to be sold to many parties including traders in Mandangir market and Kotla.
37. Over here, we would like to specifically take on record and notice the statement of Sumit (PW15) with regard to respondent Lokesh. Sumit (PW15) has deposed that the father of Lokesh had a CRL.A.Nos. 371/1998 Page 26 of 39 jewellery shop in Mandangir and he used to purchase similar type of articles from his father. Lokesh was arrested on 11 th July, 1995 along with a Bajaj Super Scooter and from the dickey/box of the said scooter, 2 kgs of silver jewellery was recovered. The said jewellery had identification mark SS/SRS of the shop and were seized vide seizure memo Exhibit PW28/F. Arrest of Lokesh is deposed by SI Sunil Srivastava (PW28). On opening the packet, gungru, chimti, ear rings, locks, pajayabs, some of which had the marks SS/SRS engraved thereon were identified by PW28.
38. SI Sunil Srivastava (PW28) has also deposed that they had the information that Mukesh Soni, who had a jewellery shop in the name of Gir Raj Jewellers, would be going towards the cremation ground at Dakshin Puri to conceal jewellery. Accordingly, they had arrested Mukesh Soni and from his right hand, had seized a white colour bag containing silver jewellery vide seizure memo Ex.PW28/H. Mukesh Soni's disclosure statement Ex.PW28/J was recorded and recoveries were made from his house. S.S. Handa (PW57) in his cross- examination regarding the TIP proceedings of the articles has stated that some of the balies could not be identified by Sumit (PW15). This failure on the part of an adolescent boy, in fact, affirms that the test identification proceedings were conducted objectively and fairly.
39. Rakesh Kumar Shokal (PW61), a jeweller by profession, was working with M/s Sri Ram and Sons. He identified silver jewellery marked Ex.P-1 to Ex.P21 and Ex.P23 to Ex.P33 and stated that the said articles belonged to them. In his cross-examination, he deposed that he used to sit on the gaddi of the shop.
40. Constable Satish Chander (PW46) has deposed that he had taken sealed parcels of jewellery on 6th September, 1995 and 7th September, 1995 from the malkhana for test identification proceedings before Mr. CRL.A.Nos. 371/1998 Page 27 of 39 S.S. Handa, Metropolitan Magistrate (PW57). The parcels were sealed and had not been shown to any person.
41. The Trial court, in the impugned judgment, has repeatedly referred to the two facts, that the jewellery was identified by Sumit (PW15) in the police station on 31st July, 1997 and that the TIP was belatedly conducted on 6th and 7th September, 1995. These reasons, to our mind, overlook the factum that a part of the recovered jewellery had the trademarks 'SS' and 'SRA' embossed on them. To this extent, there could be no doubt that the recovered jewellery was prepared or manufactured by M/s Sri Ram & Sons. Delay in TIP and previous identification by Sumit (PW15), thus, pale into insignificance. It is pertinent to mention that it was suggested to PW15 in his cross- examination by the counsel for Lokesh that the said Lokesh's father had a jewellery shop in Madangir Central Market and he used to purchase similar type of silver articles from the father of Sumit (PW15) i.e. the deceased Anil Kumar Shokal. The said suggestion given by the counsel for Lokesh is significant and admits two facts. Firstly, the jewellery produced before the court and stated to have been recovered from Lokesh, was sold or dealt with by M/s Sri Ram and Sons and secondly, Lokesh's father was a jeweller and had a shop in Madangir market, the market visited by the three deceased persons on the date of occurrence. Another suggestion put to Sumit (PW15) by the counsel for Lokesh was that there were other parties in Madangir Market to whom the deceased Anil Kumar Shokal used to supply jewellery articles.
42. Aforesaid circumstantial evidence thus reinforces and affirms dock identification of Prem Shankar and Rajiv by Sumit (PW15) and identification of Prem Shankar by Upasana (PW16). The aforesaid evidence and discussion elucidates and confirms our conclusion that CRL.A.Nos. 371/1998 Page 28 of 39 Sumit (PW15) had rightly identified the respondent Prem Shankar and Rajiv as the perpetrators who were present at the T-point. Rajiv had entered the Van and had travelled till the Jawaharlal Nehru Stadium and the motor-cycle was being driven by Prem Shankar. The aforesaid identification by Sumit (PW15) gets credence from the refusal of the said respondents to appear and participate in the TIP proceedings. Further, substantial jewellery and other articles stolen at the time of the occurrence were recovered from Prem Shankar and Rajiv and even from Lokesh. Some articles recovered had the marks SRA/SS inscribed on them. This affirms that the recovery was of jewellery and silver items dealt with and sold by M/s Sri Ram and Sons.
43. The observation of the trial court that Sumit (PW15) and Upasana (PW16) had not given description of any of the assailants in their statement to the police; and Prem Shankar had a mole mark on his forehead, cut mark on his left cheek and also supported moustaches should lead to the conclusion that PW15 and PW16 were not present at the spot, is fanciful and unrealistic. Ex.PW15/A was recorded immediately after the occurrence of the brutal crime and death of Anil Kumar Shokal, Vijender Shokal and H.P. Pandey. We do not think it would be appropriate and proper to discredit the two witnesses i.e. Sumit (PW15) and Upasana (PW16) on this score and for the reason that they had not given details as to the physical appearance of all the perpetrators. It would not have been easy to even narrate the occurrence to the Police in the intervening night or even thereafter on 7th October, 1997. The dock identification of Prem Shankar and Rajiv by Sumit (PW15) and of Prem Shankar by Upasana (PW16) should not be rejected for this reason.
EVIDENCE AGAINST LOKESH AND HIS INVOLVEMENT CRL.A.Nos. 371/1998 Page 29 of 39
44. The case against Lokesh, however is, somewhat different. He has not been identified by Sumit (PW15) as the person who was driving the scooter. Upasana (PW16) also did not identify and recognise him. However, they have deposed as to the presence of a Bajaj Scooter at the red light at Joseph Tito Marg, which followed them and on being asked to go away, had gone underneath the Mool Chand flyover. This scooter was identified by Sumit (PW15) and marked Ex.P34. Upasana (PW16) has also affirmed and narrated as to the presence of the scooter. It is correct that Sumit (PW-15) in his first statement or information to the police marked Ex.PW-15A had not spoken about the two wheeler scooter. However, this should not be a ground to discredit his court testimony, identifying and referring to one Bajaj Scooter, which had also halted on the left side of their Van near the red light and subsequently followed the Maruti Van. PW15 has testified that the boy who had entered the Maruti Van from the left side after pushing Vijender Kumar Shokal had asked the person driving the scooter to go away. Thereupon, the scooter went underneath the Moolchand flyover. It is plausible and should be accepted that when the statement Ex.PW-15/A was recorded, Sumit (PW-15) may not have connected and linked the said factum, with the four culprits, whom PW15 had seen on the motor-cycle. Sumit (PW-15) subsequently realized that the person driving the scooter was in fact an equal participant and connected with the crime. Upasana (PW16), when cross-examined by the Public Prosecutor had accepted that one two- wheeler scooter had stood on the side of their Van, but denied having heard any person in the Van ask the scooter driver to go away. This being the factual position, we would doubt whether Sumit (PW-15) could have recognized the said scooter driver, as possibly his concentration was diverted to the three intruders sitting in the Van and CRL.A.Nos. 371/1998 Page 30 of 39 the fourth perpetrator on the motor-cycle. Sumit (PW15) did not identify the person on the scooter. He was subjected to cross- examination by the public prosecutor but did not accept that he had seen Lokesh on the said scooter.
45. The contention that Sumit (PW15) in his court deposition had referred to Bajaj Chetak scooter, whereas the scooter in question marked Ex.P34 was a Bajaj Super model and, thus, presence of any scooter at crossing, identification of the scooter etc. is fallacious and unacceptable. The scooter was of Bajaj make. Sumit (PW15), a boy aged about 14 years at the time of occurrence may not be aware of the minimal observable difference between a Bajaj 'Chetak' and Bajaj 'Super' scooter as overall/physical features and design of the two were almost identical. The difference in their shape being marginal, a boy aged 14 years sitting in a Maruti Van in the given situation faced by Sumit (PW15) or Upasana (PW16), who was much younger in age, must be factored and given credence. They had recognized and recollected the make of the scooter, but could have easily missed or failed to differentiate whether the model of the scooter was Bajaj 'Chetak' or Bajaj 'Super'.
46. It is clear from the deposition of S.I. Sunil Srivastava (PW28) that Lokesh was arrested while riding a Bajaj scooter (Ex.P34). The said scooter was registered in the name of Pal and Pal Builder Ltd. and Daljit Singh (PW18) has deposed that the said scooter was given to and used by one of their employees named Babu Lal (PW19). On cross- examination, PW18 did try to exculpate Lokesh, stating that he did not know the date on which the scooter was handed over to Babu Lal nor was any receipt issued to that effect, but we would accept the version given by him in his examination-in-chief. Besides being immaterial, it was not necessary for Daljit Singh (PW18) or the company to obtain a CRL.A.Nos. 371/1998 Page 31 of 39 receipt from their employee (Babu Lal) in this regard. Babu Lal, who has deposed as PW19, has accepted that he was an employee of the aforementioned company and was given the scooter with the number DL-3SF 6033 (Ex.P34) for driving. He has accepted that on 11 th July, 1995, the police along with Lokesh had come to his residence, but claimed that on the said date, they took the scooter with them as it was required for further inquiry, assuring him that the scooter would be returned in an hour. He was cross-examined by the public prosecutor for he was resiling from his statement recorded under Section 161 Cr.P.C. He was confronted with the version that he had given the scooter on 5th July, 1995 to one boy named Rajiv with whom he had cordial relations. On the next date, the said Rajiv had conveyed to him that the scooter would be returned after 2-3 days, as it had been taken away by his friend Lokesh. He denied as incorrect the suggestion that on 12th July, 1995, he came to know that the police had apprehended Lokesh with the said scooter. It is clear from the testimony of Babu Lal (PW19) that he has accepted that the police along with Lokesh had come to his residence on 11th July, 1995 i.e. the date on which Lokesh was arrested with the scooter as per the deposition of S.I. Sunil Srivastava (PW28). Further, the said scooter was identified by Sumit (PW15) since it was seen by him during the occurrence. Pertinently, from the dicky of the said scooter, silver jewellery marked Ex.P1 to Ex.P8 were recovered and seized. The Trial court, in the impugned judgment, has stated that the keys of the dicky of the scooter from which the said jewellery was recovered had not been seized and produced before the court. No question on whether the dicky was locked and as to how the dicky was opened, was not put or confronted to S.I. Sunil Srivastava (PW28). The impugned judgment, therefore, proceeds on an unsubstantiated assumption that the dicky of the scooter CRL.A.Nos. 371/1998 Page 32 of 39 must have been locked and would have required a key to be opened. When PW28 was not questioned on the said aspect, the finding of the trial court does not appear justified and is rather far-fetched and presumptuous.
47. In terms of the discussion above, we have held that the scooter marked Ex.P34 was also present at the red-light crossing and had followed the Maruti Van till Moolchand crossing. We also accept the prosecution version that the said scooter was being used by Lokesh was borrowed from Babu Lal (PW19). Further 2 k.g. of silver jewellery etc. was recovered from dicky of the scooter. Some of the said jewellery had the marks SRA/ SS inscribed thereon. Lastly and significantly, father of Lokesh had a jewellery shop in Madangir Market and he used to purchase jewellery from the deceased Anil Kumar Sokal. This suggestion given on behalf of respondent Lokesh stands accepted and admitted by Sumit (PW15). The crime in question could not have been committed without the perpetrators having exact and precise information and details regarding jewellery and cash, time and date of visit to the Madangir market etc. Otherwise, no one could have guessed or assumed the particular date and time of travel and presence of silver jewellery/articles and cash in the quantity as was available in the Maruti Van. Lokesh was the insider and the person who knew the details and who had provided and furnished the requisite information and supported the crime in question. In fact, once we accept that Lokesh was driving the scooter, his direct involvement would be established. Recoveries from Lokesh reinforce and affirm his involvement and conviction for the murders and crime in question. Even otherwise, respondent Lokesh would be guilty for both the offences of murder and dacoity as a co-conspirator under Section 120B IPC with the actual participants. For conspiracy, there should be unity CRL.A.Nos. 371/1998 Page 33 of 39 of object and purpose, though there may be plurality of means, sometimes even unknown to the others amongst the conspirators, but the means adopted and the illegal acts done must be and should be purported to be in furtherance of the object of the conspiracy. As long as mutual interest is present, culpability would be established, even if some steps are resorted to by one or two conspirators without the knowledge of the others. Conspirators may play diverse roles and all conspirators need not agree to play the same or even an active role. The gist or essence of criminal conspiracy is unlawful agreement and not its accomplishment. Offence of criminal conspiracy may be complete even when there is no agreement as to the means by which the purpose is to be accomplished.
CASE AGAINST MUKESH
48. However, the case against Mukesh would be different. The evidence against Mukesh consists of recovery of 3kgs. jewellery and the fact that his father had a jewellery shop. There is no indication or evidence to show that he was an active participant or was present at the scene of crime at the red-light and when the Maruti Van was driven and taken to the Jawaharlal Nehru Stadium. To establish charge of conspiracy presence at the place of occurrence or in all acts is not necessary, but we do not think that the two aforesaid facts are sufficient to lead and affirm the prosecution case that Mukesh was a co-conspirator, who was party to the un-lawful agreement for committing dacoity etc. We accept and are conscious and aware that a conspiracy is hatched in secrecy and direct evidence is seldom available, however, it would be pretence and insufficient supposition to hold that the respondent Mukesh was a party to the agreement for committing dacoity etc. However, we accept the prosecution version CRL.A.Nos. 371/1998 Page 34 of 39 that the respondent Mukesh was found to be in possession of stolen silver articles / jewellery recovered from him. The recovery of 3 kgs. of silver articles is substantial. The said articles recovered belonged to and were being dealt with by the deceased. Hence, the charge under Section 411 IPC is established and proved beyond reasonable doubt against Mukesh.
OTHER GROUNDS REFERRED TO IN THE IMPUGNED JUDGMENT TO ACQUIT PREM SHANKAR, RAJIV, LOKESH AND MUKESH
49. The impugned judgment records that the murder was committed at the crossing of Joseph Tito Marg, New Delhi, which falls within the jurisdiction of P.S. Lajpat Nagar, but police officers from the said police station did not join the investigation. The said finding is perverse and should be completely spurned for acquitting the respondents. The Maruti Van had stopped at the Jawaharlal Nehru Stadium which falls within the jurisdiction of Police Station Lodhi Road. Even otherwise, the reason is contrary to the statutory mandate in Section 178 and 183, Cr.P.C.
50. The impugned judgment makes reference to the post-mortem report (Ex.PW32/A) of H.P. Pandey, the ante-mortem injuries in the form of gun-shot wounds and also the ante-mortem injuries found on Anil Kumar Shokal recorded in Ex.PW32/B. There was blackening around the wounds of the two dead bodies, indicative of firing from a close range. An injury of .7x.7 cm was noticed on Anil Kumar Shokal and an injury of 2.2x1.8 cm. was noticed in the post-mortem of H.P. Pandey. These were the entry wounds. Referring to the size of the wounds, the impugned judgment records and places reliance on the fact that the doctor who conducted the post-mortem examination had accepted in her cross-examination that it might be possible that if the CRL.A.Nos. 371/1998 Page 35 of 39 range of firing was same, then different bullets might have been used in causing the size of the wound which was found on the dead bodies. We disagree with this finding and reasoning. The entry wound can be of different sizes, depending upon the location of the wound and even minor difference in the distance from which the firing takes place. The reasoning given by the trial court is fallacious and deserves disapproval.
51. The contention predicated on the alleged failure of police to record statement of public witnesses who were present at the Joseph Tito Marg red light, accepted by the trial court, is clearly fallacious and amounts to misjudging the facts. The firing leading to the death of Anil Kumar Shokal, no doubt, had taken place at the red light, but the Van was instantaneously driven to the Jawahar Lal Nehru Stadium. The police had arrived at the said stadium and there was no way, they could have ascertained and identified any public person who would have seen the occurrence at the Joseph Tito Marg unless the said person had himself or herself come forward. In the present case, no one from the public had followed the van. The public present at the spot were probably too frightened and terrified to have followed the van or perhaps too involved and did not bother and remained benumbed to silence. The plea that the police should have prepared the site plan of the T-point is misconceived and does not justify the finding of acquittal.
52. It has been asserted that there was some delay in preparation of the documents/statements for SI Sunil Srivastava was not a signatory to the documents and statements recorded at the spot on 5 th July, 1995. The impugned judgment records that the documents prepared on 6 th July, 1995 were not in the handwriting of the Investigating Officer. This would not affect the prosecution case as long as the Investigating CRL.A.Nos. 371/1998 Page 36 of 39 Officer has signed the documents and affirms their execution. The reasoning that the statements and documents were written by SI Sunil Srivastava (PW28) should be rejected for he had not signed as a witness, is rather bleary and faint. Anyone present at the spot can be a witness. Presence of the witness when established or not doubted would be sufficient. Presence of one witness and his signature cannot justify the inference that others were not present. In any case, the said reason cannot be a ground to disbelieve presence of Sumit (PW17) and Upasana (PW16).
53. It is correct that as per Head Constable Om Prakash (PW9), Constable Mahesh Pal (PW20), SI Manoj Dixit (PW22) and ASI Ramesh Kumar (PW23) that Sanjay Yadav (since deceased) and Prem Shankar were arrested at the same time and FIR No. 304/1995 and 305/1995 were recorded at Police Station Kalyanpuri. It is asserted that in the first FIR, the time of occurrence is mentioned as 8.05 P.M. whereas the FIR No. 305/1995 records the time of occurrence as 6.45 P.M. This may reflect a discrepancy or divergence as to the time. However, the two FIRs were recorded one after the other. This time difference recorded in the FIR would not be a ground to acquit Prem Shankar. The aforesaid discrepancy in time is predicated on the time mentioned in the disclosure statement of Prem Shankar marked Ex.PW23/A which was recorded in FIR No. 304 dated 11.7.95, Police Station Kalyan Puri. The said document was proved by ASI Ramesh Kumar (PW23) who in his testimony has averred that he on 11.7.95 at about 6.30 P.M., along with SI Manoj Dixit had apprehended Prem Shankar and Sanjay Yadav (since deceased) at Mayur Vihar T-post when they were coming on a scooter. The aforesaid discrepancy as to the time recorded in Ex.PW23/A was not put and confronted to the said witness for explanation. We, for the purpose of record, note that digits CRL.A.Nos. 371/1998 Page 37 of 39 8 and 6 are almost identical except for the upper portion. We would not, therefore, read the said discrepancy as significant especially when this divergence was not put to ASI Ramesh Kumar (PW23) and no explanation was sought.
54. SI Manoj Dixit (PW22) has testified that Prem Shankar and Sanjay Yadav (since deceased) were apprehended at 6.40 P.M on 11.7.95. PW22 was also not cross-examined on the difference in time recorded in Ex.PW23/A and no explanation was sought from him.
55. It is true and correct that both Sanjay Yadav (since deceased) and Prem Shankar were acquitted in the two charge-sheet arising out of FIR No. 304/1995 and 305/1995 respectively. However, the reasons for acquittal are relevant. Judgment of acquittal in the case of Sanjay Yadav (since deceased) marked Exhibit PW22/DA records that two witnesses were examined and while the third witness was under
examination, the trial was adjourned for production of the case property. Thereafter, evidence of PW3 could not be recorded. SI Manoj Dixit had examined himself PW4 and in spite of 25 opportunities, further evidence was not recorded. For various technical lapses and lack of prosecution, the judgment of acquittal was passed. Judgment of acquittal in the case of Prem Shankar marked Exhibit PW23/DA records that in spite of repeated opportunities, only one PW was recorded. Thus, the accused Prem Shankar was entitled to acquittal. We do not think the aforesaid judgments justify an order of acquittal in the present charge-sheet.
CONCLUSION
56. In view of the aforesaid findings, we set aside the impugned judgment dated 6th October, 2007 acquitting Prem Shankar, Rajiv and Lokesh under Section 302 read with Section 120B IPC and under CRL.A.Nos. 371/1998 Page 38 of 39 Section 396 read with Section 120B IPC. Respondents Prem Shankar, Rajiv and Lokesh are convicted under Sections 302 read with 120B IPC for murder of Anil Kumar Shokal, Vijender Kumar Shokal and H.P. Pandey. Prem Shankar, Rajiv and Lokesh are further convicted under Section 396 read with Section 120B IPC for dacoity with murder. They are also convicted under Section 120B IPC. Mukesh is convicted under Section 411 IPC. Appeal against discharge of Mahesh is not maintainable and would fail.
57. List for hearing on the question of sentence on 24th September, 2015.
\ (SANJIV KHANNA) JUDGE (ASHUTOSH KUMAR) JUDGE SEPTEMBER 23rd, 2015 NA/VKR CRL.A.Nos. 371/1998 Page 39 of 39