Delhi District Court
State vs . Rusy @ Surender Etc. on 24 April, 2018
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No.......................................58155/16
FIR No. 152/12
PS South Rohini
U/s: 302/460/396/457/34 IPC
State
Versus
1. Rusy @ Surender S/o Sh. Thakur Das,
R/o H. No. D618, Gali no. 11,
Mangol Puri, Delhi.
2. Rajesh @ Tinku S/o Sh. Roop Singh
R/o F29/569, Mangol Puri, Delhi
Also at : Jhuggi No. FW29/182,
Mangol Puri, Delhi.
3. Ravinder @ Tunda S/o Sh. Rajesh
R/o Jhuggi Hanuman Mandir, Gali no. 22,
near RTV Bus Stand, Budh Vihar, Phase2, Delhi.
4. Mahesh @ Chikna Kaliya S/o Sh. Sunder @ Lala
R/o Jhuggi No. 248, Indira J.J. Camp, Sector3,
Rohini, Delhi.
Date of institution : 30.11.2012
Judgment reserved on : 20.03.2018
Judgment delivered on : 24.04.2018
ORDER/JUDGMENT: The accused persons namely Rusy @ Surender,
Rajesh @ Tinku and Ravinder @ Tunda are
convicted of the offence(s) u/S. 302/34 & 460
IPC, whereas accused Mahesh @ Chikna stands
acquitted of the offence(s) u/S.
302/457/460/395/396/34 IPC.
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J U D G M E N T
1. Brief facts as stated in the chargesheet are that on 24.07.2012,
on receipt of DD No. 6A at 2:15 am, Inspector V. Jha alongwith SI
Mohd. Imtiaz Alam and Ct. Anil reached the spot i.e. G30/340341,
Sector3, Rohini, where SHO alongwith staff and HC Rajesh were
already present. In the street, in front of the gate of the house in
question, blood was found scattered and inside the house, on a sofa,
in a room, one iron rod, house breaking tool was found. It was found
that the injured had been removed to Jaipur Golden Hospital.
Thereafter, leaving SI Imtiaz Alam at the spot, Inspector V. Jha
reached Jaipur Golden Hospital and obtained the MLC of Shanti Devi
W/o Bishan Lal having injuries intracabular region and patient was
declared brought dead at 2:30 am on 24.07.2012. Thereafter the
statement of eye witness Bhim S/o Bishan Lal was recorded as
under:
"That he was residing in the said house bearing no. G
30/340341, Sector3, Rohini and he was running a Cyber
Cafe in the area of Karol Bagh, as daily he came back to
his house after closing his shop at 9:30 pm and at around
10:30 pm, he and his family members went to their
respective rooms for sleeping, however, his mother as
usual slept in the drawing room adjoining the main room
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on the cot, whereas his father slept in the room from the
right side of the drawing room and he also slept in
another room on the ground floor, his other brothers also
went to sleep in their respective portions on the upper
floors. Before sleeping he had bolted the latch of the main
door from inside.
Around 1:301:45 am, in the night, he heard some noise
i.e. opening of almirah due to which his sleep got
disturbed then he saw that one unknown person was
going from his room towards drawing room. He got
suspicious that some thief had intruded into the house.
He immediately got up and put on the light of the drawing
room and caught hold of the said person and also raised
alarm. On hearing this, his mother also got up, who was
sleeping in the drawing room. She also caught the other
person who was present in the drawing room. Thereafter,
both of them raised an alarm of chorchor. They found
that the door of main gate was open and one more person
was standing outside the gate, who was having a knife in
his hand. He came inside saying that they should leave
his companions, failing which they will be killed, however,
the person whom he had called said that they should be
finished then only they would escape. Thereafter, the
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other thief also stated so and thereafter the said person,
who was standing at the main gate came inside the room
and stabbed his mother with a knife blow due to which
she started screaming. His father who was sleeping in the
adjoining room also got up. All of them started taking care
of their mother. Taking the advantage of the situation all
the thieves / accused persons ran away. In the said
episode, he also received injuries in his left wrist. He also
called his brothers from the top floor and also called PCR
and removed his mother in a private car in Jaipur Golden
Hospital, where his mother was declared brought dead.
He could identify all the accused persons, if brought
before him. He also gave the descriptions of the said
accused persons in the rukka. He also stated that he also
came to know that from the pant of his brother hanging
on the hook of his room, one brown colour purse was
missing alongwith RC, voter card and ATM card and
visiting cards and Rs.160/ and while running away the
accused persons had also left the iron rod on the sofa of
his room".
2. Thereafter, on the said statement, endorsement was made by
Inspector V. Jha and sent Head Constable Rajesh to the police
station for the registration of FIR. On the said rukka, FIR u/s
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460/302/34 IPC was registered at PS South Rohini.
The crime team, FSL team, dog squad were called. The dead
body was directed to be preserved. All the above teams reached at
the spot and inspected the spot and collected the relevant exhibits
from the spot. The inter lock was found free and was opened and
was seized, the autopsy of the dead body was got conducted at the
BSA Hospital. The supplementary statement of the complainant was
recorded. The statements of Sh. Bishan Lal, husband of deceased
Shanti Devi and that of Dilip Kumar, another son of deceased were
recorded.
The missing brown colour purse containing motorcycle RC, ATM
card, Rs.160/ and duplicate DL and visiting cards were found
missing as stated above. However, the missing purse was found at
the spot of another incident i.e. D17/252, Sector3, Rohini, whereas
ATM cards and money was found missing from the said purse
regarding which Inspector Anil was conducting the investigations.
3. The statements of witnesses were recorded. Case property was
deposited in the malkhana. The suspects were interrogated. The beat
constables were apprised regarding the description of the accused
persons.
On 25.07.2012, at around 8:30 pm, at the information of Ct.
Rajkumar, the park of H32, Sector3 was surrounded and three
suspects were apprehended namely Rusy @ Surender, Rajesh @
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Tinku, Ravinder @ Tunda. On the search of Rusy, from the dub of his
right pant one iron rod (house breaking implement) was recovered.
And on search of his pant, two ATM cards were also recovered. One
ATM card was in the name of Dilip Kumar and other was of SBI
Patiala. From his right pocket, one silver coin was recovered, which
he disclosed that he stolen from Sector3, two days ago.
On search of Rajesh @ Tinku, from his left dub of the pant, one
buttondar knife was recovered and from the left pocket one silver
coin was recovered, which he disclosed he had looted from one old
lady after wounding her.
On search of Ravinder @ Tunda, from the right dub of his pant
one buttondar knife was recovered and from his left pocket, one
silver coin was recovered. He also disclosed that the same was
looted few days ago as stated by the other accused persons. All of
them also disclosed that in both the incidents they were accompanied
by one more person namely Chikna, Kalia and one small boy Gora,
who were keeping watch at the time of the incident.
All the three accused persons were arrested, who were kept in
muffled face. At the instance of the accused persons, two more
accused persons Mahesh @ Chikna, Kalia and Amit @ Gora were
apprehended. The Amit @ Gora disclosed himself to be a juvenile,
thereafter, separate disclosure statements of all the accused persons
were recorded. All of them disclosed that at the time of stabbing their
clothes were bloods stained which they had kept concealed near
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BSA Hospital in bushes, which were recovered at their instance and
were seized. All the accused persons were produced in the court in
muffled face, whereas the juvenile Amit was sent to Observation
Home.
Section 25 of Arms Act was added to the FIR. Application for TIP
of accused Rusy @ Surender, Rajesh @ Tinku, Ravinder @ Tunda
and Mahesh @ Chikna were moved, however, all of them refused to
undergo TIP.
Accused Ravinder claimed himself to be a juvenile, but after
inquiry his age was found to be 18 years 4 months at the time of the
incident.
The purse recovered in FIR no. 153/12 which was seized in the
said FIR, the copy thereof was obtained and the statement of
Inspector Anil was recorded in this regard. The TIP of the said purse
was got conducted through Dilip Kumar, who correctly identified the
purse.
Thereafter, on 09.08.2012, the complainant Bhim and his father
Bishan Lal identified the accused persons in the court, as the
persons involved in the incident and they specifically identified Rusy
as the person who was caught by Bhim, whereas accused Rajesh @
Tinku was caught by Shanti Devi, his deceased mother, whereas
accused Ravinder @ Tunda had stabbed his mother at the
exhortation of the other two accused persons and all of them had ran
away after the incident.
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The postmortem report was obtained. As per the opinion of the
autopsy surgeon death was due to hemorrhagic shock, consequent
to Penetrating injury to the chest caused via injury no. 1. All injuries
were antemortem. Fresh at the time of death and injury no. 1 was
sufficient to cause death in ordinary course of nature. Subsequent
opinion qua the knife recovered from the accused Ravinder @ Tunda
qua the said injury was also obtained, which was found to be
positive. The relevant sample were sent to FSL Rohini for the
evaluation of clothes and other tangibles.
The photocopy of FSL report of FIR No. 153/12 was also
obtained. As per which the blood group of deceased Rasam Devi
was found to be A Group, whereas that of deceased Shanti Devi in
this case was found to be B Group.
4. After completion of investigations, the chargesheet u/s
302/460/396/380/457/34 IPC read with Section 25/27 Arms Act was
filed in the court.
5. On committal of the case to the Court of Sessions, vide detailed
order dated 23.07.2013, a charge u/s 302/457/460/395/396/34 IPC
was found to be made out against all the accused persons to which
all of them pleaded not guilty and claimed trial.
6. Thereafter, prosecution in support of its case have examined 25
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witnesses as under :
(a) PW1 is Bhim, son of Bishan, the eye witness and the
complainant, who has fully supported the prosecution story.
(b) PW2 is Dilip, the brother of the complainant, who had reached the
spot immediately after the incident.
(c) PW3 is B. K. Chhabra, the record incharge, Jaipur Golden
Hospital, who has proved the MLC of deceased Shanti Devi in the
absence of the concerned doctor Ex. PW3/A.
(d) PW4 is Surender Kumar Tanwar, postmortem technician who had
handed over the inquest papers and sealed pulanda containing
blood gauze to the IO of this case on 11.08.2012 vide Ex. PW4/A.
(e) PW5 Dr. Dinesh Varshney, who has proved the MLC of the PW1
Bhim Ex. PW5/A on which the nature of injuries were found to be
simple in nature.
(f) PW6 is SI Anil Kumar, the incharge, Mobile Crime Team, who
went to the spot on 24.07.2012, on receiving the call from the
control room at 2:30 am alongwith the relevant staff. He has
proved his report regarding scene of crime as Ex. PW6/A.
(g) PW7 is Ct. Manoj Kumar, who was posted as photographer in the
mobile crime team and who on 24.07.2012 had taken the
photographs of the spot from different angles and has proved the
photographs vide Ex. PW7/A1 to PW7/A14 and negatives
thereof Ex. PW7/B1 to Ex. PW7/B14.
(h) PW8 is SI Avdhesh, who had joined the investigations with SI
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Mohd. Imtiaz on 25.07.2012 and had apprehended the accused
persons alongwith Inspector V. N. Jha and Ct. Raj Kumar and had
also made recoveries at their instance, pursuant to their
disclosure statements as well as from their search.
(i) PW9 is Bishan Lal, the father of the complainant, who was also the
eye witness of the incident, who has also supported the
prosecution story.
(j) PW10 HC Rajesh Kumar, who was posted at PS South Rohini on
24.07.2012 and who on receipt of DD No. 4A Ex. PW10/A
reached the spot and got the FIR registered on the rukka written
by the IO.
(k) PW11 is HC Raj Kumar who was present alongwith the IO and
other police officials at the time of apprehension of the accused
from the park and subsequent recoveries pursuant to the
disclosure statements.
(l) PW12 is Dr. A. K. Diwan, who was working in BSA hospital and
was chairman of the medical board and who had given the report
Ex. PW12/A that the age of the accused Mahesh was more than
18 years and less than 20 years.
(m) PW13 HC Narender Singh who was working a a duty officer at
PS South Rohini who has proved the DD No. 4A and DD No. 9A
Ex. PW13/A and proved the FIR Ex. PW13/B and endorsement
on the rukka Ex. PW13/C.
(n) PW14 is Dr. Vijay Dhankar, the forensic expert who had
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conducted the postmortem on the body of the deceased and had
opined that death was due to hemorrhagic shock consequent to
Penetrating injury to the chest caused via injury no. 1. All injuries
were antemortem, fresh at the time of death and injury no. 1 was
sufficient to cause death in ordinary course of nature. He after
examining the knife opined that the said injuries were possible
through said knife vide his subsequent opinion Ex. PW14/B.
(o) PW15 is Ct. Sanjay Kumar who on 09.08.2012 took one sealed
parcel from the MHC (M) of PS South Rohini and produced the
same before the Ld. MM.
(p) PW16 is ASI Ravi Dutt of PCR who was posted in the PCR Outer
Zone at PCR van Libra14, at about 2:00 am, when a call was
received about stabbing and he reached at G30/340341, Sector
3, Rohini alongwith driver HC Jogender. HC Jogender, driver
parked the vehicle and he reached near the house and found
injured Shanti Devi W/o Bishan Lal was being shifting to the
hospital in private vehicle by her husband and her son Bhim.
Blood was found at the spot. He accompanied them to Jaipur
Golden Hospital in his PCR van, where Shanti Devi was admitted
in the hospital, who was declared dead at about 2:30 am on
24.07.2012.
(q) PW17 is Inspector Anil Kumar, the IO of the case bearing FIR No.
153/12 who had visited the spot of the said incident i.e. D17/252,
Sector3, Rohini, wherein incident of stabbing of old woman
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namely Rasam Devi had taken place on 24.07.2012 and during
the search of the house, one Jyoti D/o Rasam Devi had produced
one purse found in the clothes not belonging to the said
household containing one original RC DL8SAQ1008, Pulsar
motorcycle, one voter Icard of Dilip Kumar s/o Bishan Lal R/o G
30/340341, Sector3, Rohini, duplicate DL, whose number he
had mentioned in the seizure memo belonging to Prem Chand s/o
Bishan Lal, two passport size photographs and some other
documents including visiting cards which was seized vide Ex.
PW17/A.
(r) PW18 is Inspector Manohar Lal, who had prepared the scaled site
plan of the spot Ex. PW18/A.
(s) PW19 is Ct. Anil who on 28.09.2012 took three sealed parcels
alongwith the forwarding letter from the MHC (M) vide RC No.
132/21/12 to FSL Rohini and deposited the same there.
(t) PW20 is Ct. Mahender the computer operator who had typed the
FIR of the present case on the dictation of duty officer.
(u) PW21 is Sh. Parsuram Singh, Assistant Director (Physics), FSL
Rohini, who ha sproved his report Ex. PW21/A.
(v) PW22 is Naresh Kumar, Senior Scientific Officer (Biology), FSL,
who has proved his biological report and serological report Ex.
PW22/A and Ex. PW22/B respectively.
(w) PW23 is SI Imtiaz Alam, who was present throughout the
investigations including at the time of apprehension as well as
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recoveries made from the possession of the accused persons
and at their instance and also the arrest of the accused persons.
(x) PW24 is Ct. Anil who was posted at PS South Rohini as a Ct. who
took 16 sealed parcels from MHC(M) at the directions of the IO
and deposited the same at FSL Rohini for forensic evaluation.
(y) PW25 is Inspector V. N. Jha, the IO of the case, who has
deposed regarding the investigation as were carried out by him
during the course of the present case.
7. Separate statements of all the accused persons were recorded on
03.01.2018 in the presence of their counsels, in which the accused
persons admitted the TIP proceedings qua them and the TIP of the
case property, which were exhibited as PXI, PXII, PXIII, PXIV and the
TIP qua the case property as Ex. PW2/A.
8. Thereafter, statements of accused persons u/s 313 Cr.P.C. were
recorded in which the entire incriminating evidence appearing against
the accused persons was put to them in which the defence of the
accused Ravinder @ Tunda was that he had been falsely implicated
in this case and all the prosecution witnesses were interested
witnesses and they had deposed falsely against him and he had
been made to sign on blank papers. Nothing was recovered at his
instance. Similarly, the defence of the accused Mahesh @ Chikna
was that he had also been falsely implicated in this case and all the
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prosecution witnesses had falsely deposed against him and he was
made to sign on some blank papers which were converted into
documents against him .
9. The defence of the accused Rajesh @ Tinku was that he has also
been falsely implicated in this case and all the prosecution witnesses
were interested witnesses and they had deposed falsely against him.
Neither he nor any of his coaccused persons were present at the
spot, the police of PS South Rohini were under tremendous pressure
of the Joint CP to solve the present case as well as case FIR no.
153/12. Accused Rusy @ Surender and others being the bad
character had been falsely implicated by police officials in the present
case.
Similarly the defence of the accused Rusy @ Surender was that
he had also been falsely implicated in this case and all the
prosecution witnesses were interested witnesses and they had
deposed falsely against him. Neither he nor any of his coaccused
persons were present at the spot, the police of PS South Rohini were
under tremendous pressure of the Joint CP to solve the present case
as well as case FIR no. 153/12. He and others being the bad
character had been falsely implicated by police officials in the present
case.
10. I have heard the Ld. Amicus Sh. Shubham Asri for accused Rusy
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@ Surender and Rajesh @ Tinku and Sh. R. K. Singh, Ld. Counsel
for accused Mahesh @ Chikna as well as Sh. Yogesh Pandey, Ld.
Counsel for accused Ravinder @ Tunda and have also heard Ld.
Addl. PP for the State Sh. V. K. Negi.
11. The Ld. Counsel for the accused Mahesh @ Chikna has argued
that there is no legally admissible evidence qua the accused Mahesh
@ Chikna barring the disclosure statement of coaccused and that of
said accused himself. He has also argued that nothing was
recovered pursuant to the disclosure statement of said accused,
therefore, same is hit by Section 25 of the Evidence Act nor he was
involved in the transaction in question, therefore, he is liable to be
acquitted.
12. With regard to the other accused persons, the Ld. Defence
counsels have argued that identity of the said accused persons has
not been properly proved by the prosecution and the incident
admittedly had taken place in the dead of the night and there was no
lights available in the house of the deceased and in the rukka the
complainant had not given the detailed description about the accused
persons regarding their height, features etc., therefore, the accused
persons had been falsely implicated in this case in order to solve a
blind murder case, as two murders had taken place in the same night
within a distance of 1 KM and consequently police officials were
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under tremendous pressure to solve the said case somehow. They
have further argued that the alleged recoveries have been planted
and no public witness was joined in any of the said recoveries to lend
assurance to the same.
They have also argued that prosecution has failed to prove that
the said clothes which were allegedly got recovered from the
accused persons were indeed belonging to the accused persons, as
the accused persons were not made to wear the said clothes.
Further, as per FSL report, the blood group B and A was found on
the same, however, the same does not prove anything as many
persons on this planet would be having the same blood grouping
which is very common. They have further argued that as per the FSL
report there is no evidence that any tool or equipment i.e. rod had
been used to forcibly enter into the house. They have further argued
that nobody in the neighbourhood had seen the accused persons
either entering or leaving the house on the date of the incident. It is
also submitted that the RC and the other documents allegedly found
at the place of incident of FIR no. 153/12 have been planted by the
IO of this case in conjunction with the IO of the other case i.e. PW17
and ATM cards were also planted upon the accused Rusy @
Surender, therefore, they submit that as a whole there are lot of holes
in the prosecution story, the benefit of which should be given to the
accused persons and they are liable to be acquitted.
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13. On the other hand, Ld. Addl. PP for the State has strongly
controverted the above arguments and has argued that from the
testimony of complainant PW1 and PW9, the prosecution has totally
proved its case beyond any shadow of doubt. Both PW1 and PW9
have deposed that at the time of incident there was sufficient light
available at the spot as PW1 has deposed that he had put on the
light when he heard the noise of somebody in his room. PW1 also
stated that there was light in the passage which gave full light to the
room, therefore since PW1 and PW9 had seen the accused persons
from very close distance, therefore, there could not have been any
doubt in their minds regarding the identity of the accused persons. In
fact, PW1 had also suffered injuries on his hand during the said
scuffle which also supports and corroborates his version, he also
submits that all the accused persons had refused to undergo TIP as
they were aware they will be identified by PW1 and PW9 immediately
after the incident, therefore, despite warning they incurred the said
risk, which goes against them, therefore he submits that prosecution
has been able to establish the identity of the accused persons
beyond any shadow of doubt.
14. With regard to the recoveries he has argued that the testimony of
PW8 SI Avdhesh is corroborated by the testimony of PW23 SI Imtiaz
Alam and also by the testimony of PW25 IO regarding the arrest of
the accused persons from the park and the recovery of two ATM
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cards from the possession of accused Rusy @ Surender belonging to
PW2 and recovery of knife from accused Rajesh @ Tinku and
Ravinder @ Tunda as also the recovery of their blood stained clothes
pursuant to the disclosure statement concealed behind the bushes
which also corroborated the prosecution story. He also submits that
the FSL report proved on the record clearly corroborate the
prosecution story.
He has further submitted that the TIP of the case property i.e.
purse found at the spot of FIR No. 153/12 by PW2 Ex. PW2/A clearly
proves that accused persons were involved in this case as well as in
FIR No. 153/12 in which they have already been convicted.
Therefore, he submits that the prosecution has been able to prove its
case beyond any reasonable doubt against all the accused persons.
15. I have gone through the rival contentions.
16. The present case can be discussed under the following
headings :
DIRECT TESTIMONIAL EVIDENCE
PW1 Bhim in his testimonial deposition has deposed as under:
"That I am residing at the above mentioned address along
with my parents and four brothers with family and I am
running a Cyber Cafe at Karol Bagh, Delhi. On the night
intervening of 23/24.07.12, after taking meal. We left our
room for sleeping. I was sleeping in a room attached with
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the kitchen while my mother Shanti Devi since deceased
was sleeping in the drawing room. My father was
sleeping in another room at the ground floor. While my
brothers and their family were sleeping on first, second
and third floor.
At about 1.45 a.m., I heard the voice of knocking (khat
khat) from the side of Almirah lying in my room. I
immediately woke up and switch on the light. I found one
person who was wearing cap on his head leaving my
room and entered in the room where my mother was
sleeping. I immediately over powered him and during
scuffle the cap was removed from his head. I raised alarm
Chor Chor and started grappling with him. Thereafter, my
mother also woke up after hearing the noise. I also found
another boy found present in the room of my brother.
When he tried to come towards me, he was caught hold
by my mother Shanti Devi from his waist in the meanwhile
the third person who was present at the gate of my house
also entered in the house and he was carrying knife in his
hand. The person who was caught hold by me and other
accused who was caught hold by my mother exhorted
"Chaaku Mar Tabhi Hame Chodega". The third person
who was wearing white colour T shirt had given a knife
blow on the person of my mother Shanti Devi. Blood
started oozing out from stabbed injuries. When my
mother cried loudly my father Sh. Bishan Lal woke up and
came there. After seeing my father there, the third
accused who stabbed my mother ran away from there
with knife. My father helped my mother while she was in
drowsy condition. Due to fear, I also set free accused and
thereafter, remaining two accused persons also ran away
from there. Accused Rusi @ Surender present in the
court today (correctly identified by the witness) is the
person who entered my room with whom I grappled and
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accused Ravinder @ Tunda, present in the court today
(correctly identified by the witness) is the same person
who was present at the gate and he entered on the asking
of other two accused persons and he stabbed my mother
with his knife. Accused Rajesh @ Tinku, present in the
court today (correctly identified by the witness) is the
same person who was caught hold by my mother and he
was covering his face with black colour cloth which was
removed from his face during scuffle. I immediately
called my brothers and also informed police at 100
number from the mobile phone of my father. PCR
reached at the spot. By the time we had kept my mother
in our Alto car, PCR arrived and they also asked us and
accompanied us to Jaipur Golden Hospital where my
mother Shanti Devi declared as brought dead. Later on
from my brother Dilip I came to know that his purse
containing ATM cards, purse and RC of his motorcycle
and other articles and cash was found missing from the
pocket of his pant lying in my room. IO recorded my
statement in this case and the same is Ex.PW1/A bearing
my signatures at point A. I had told the police the
description including the age of those persons and also
told them that I can identify them if shown to me. After
the arrest of accused persons, I was informed by the IO
that I have to identify the accused persons in judicial TIP.
I accompanied the IO but I came to know that all the
accused persons have refused to join the TIP
proceedings. IO prepared the site plan of place of
occurrence. IO called the crime team, photographer and
dog squad at the spot who inspected the spot. IO lifted
one iron rod which accused person had thrown while
running from the spot and same were sealed by the IO in
the pulanda with the seal of VJ and was taken into
possession vide seizure memo Ex.PW1/B bearing my
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State Vs. Rusy @ Surender etc.
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signatures at point A. IO also lifted one hander chief of
black colour on which human skull was printed and same
was sealed in the pulanda with the seal of VJ and was
taken into possession vide memo Ex.PW1/C which bears
my signatures at point A. IO also lifted the blood from the
spot and the same were kept in plastic jar and was sealed
in a pulanda with the seal of VJ and was taken into
possession vide memo Ex.PW1/D which bears my
signatures at point A. IO also lifted blood stains from the
main gate of my house, from the door of the house and
the same were kept in separate envelopes and were
sealed with the seal of VJ and these samples were taken
into possession vide memo Ex.PW1/E bearing my
signatures at point A. IO also lifted earth control without
blood from the floor and same was kept in plastic jar and
sealed in the pulanda with the help of doctor tape with the
seal of VJ and was taken into possession vide memo
Ex.PW1/F bearing my signatures at point A. IO also lifted
the blood stained earth control (floor pieces) from the
spot and same were sealed in the jar with the seal of VJ
and was taken into possession vide memo Ex.PW1/G
bearing my signatures at point A. IO recorded my
supplementary statement in this regard on 24.07.12.
I can identify the case property, if shown to me.
At this stage, MHC(M) has produced one sealed pullanda
sealed with the seal of FSL. Same is opened and it found
to contain an iron rod about 42 c.m. in length (screw
driver type) and shown to the witness who correctly
identified the same rod which was lying at the spot and
the same was left at the spot by accused persons while
running from the spot. Rod is Ex.P1.
MHC(M) has produced another sealed pullanda sealed
with the seal of FSL. Same is opened and it found to
contain black and white colour printed handkerchief and
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State Vs. Rusy @ Surender etc.
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shown to the witness who correctly identified the same
being the said handkerchief which accused Rajesh was
wearing. Same is Ex.P2".
17. The aforesaid witness was subjected to crossexamination. In his
crossexamination, he submitted that he cannot tell the exact time
when he got awake. The light of the room of his mother was off, but
during the incident he put on the light. He also stated that there was
light in the passage which gives full light to the room. He after
apprehending the accused, raised an alarm. None of his brothers
came for help as they were sleeping in AC rooms so they may not
have heard the alarm.
From the testimony of PW1, it has emerged that accused Rusy @
Surender was the person with whom he grappled at the time of the
incident, whereas accused Ravinder @ Tunda was present at the
gate, who at exhortation of others stabbed his mother, whereas the
accused Rajesh @ Tinku was the person, who was caught by his
mother and his cap was also removed during the scuffle.
18. The testimony of PW1 is duly corroborated by the testimony of
PW9 Bishan Lal, the husband of the deceased regarding the time,
place as well as the manner of the incident. He has also stated that
he found accused Rusy @ Surender grappling with his son and two
boys were standing at outside the door of the house. Both of whom
he identified including the accused Rusy @ Surender. He also stated
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State Vs. Rusy @ Surender etc.
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that the blood was oozing out from the injuries of his wife. He
immediately supported his wife and asked his Bhim to inform the
police. In the meanwhile, his other son also reached there and all the
accused persons escaped from the spot.
The aforesaid witness was crossexamined. He stated in his
crossexamination that his son Dilip had told him about the missing of
his purse and the documents. He has also stated to the police
regarding the missing of purse of his son Dilip. However, his
statement was not recorded by the police to this effect. He also
stated that none of his sons chased the accused persons and he
cannot tell the colour of the clothes of the accused persons at the
time of the incident. He also stated in his crossexamination that
when he got up light was already on, but he had not seen the
stabbing incident. The lock of the gate of his house was broken and it
was free.
19. The another witness PW2 is Dilip, another son of the deceased,
who has also deposed regarding the fact that his mother on the date
of the incident was sleeping in the drawing room on the ground floor
and his brother Bhim and father Bishan Lal were sleeping in separate
rooms on the ground floor of his house. His purse containing driving
license of his brother Prem, his voter I card, two ATM cards and
some visiting cards and cash amount of Rs.160/ were lying in his
pant, which he had hanged on a hanger of his brother Bhim, as he
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State Vs. Rusy @ Surender etc.
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had changed his pant in the room where he used to sleep.
When he was sleeping, suddenly in the night his bhabhi knocked
the door, he woke up and immediately came down as his bhabhi told
him that some thieves had came into the house. When he came
down, he saw his injured mother was being removed in the car. PCR
van had also reached in the meanwhile and then took her to Jaipur
Golden Hospital. He also stated that he had participated in the
judicial TIP before the Ld. MM and identified the purse vide TIP
proceedings Ex. PW2/A. He also identified the said dark brown purse
as Ex. P3. He was also crossexamined. He stated that his elder
brother Prem was sleeping on first floor and on the second floor his
brother Rajender was sleeping and on the third floor he was sleeping
and on the ground floor his brother Bhim, his father and mother were
sleeping. He used to keep his clothes on the ground floor in the room
of his brother Bhim as he was unmarried at that time. He also stated
that it was correct that such like purse was easily available in the
market and many neighbourers had gathered at the spot.
20. The testimony of this witness is relevant under Section 7 of the
Evidence Act, post the transaction of injuring the deceased Shanti
Devi and it also shows that he had immediately reached the spot
after the incident of stabbing.
21. The testimonies of PW1 and PW9 duly corroborate the
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State Vs. Rusy @ Surender etc.
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prosecution story regarding the time, place as well as the manner of
the incident. The purpose of corroboration in any criminal trial is to
rule out any errors of perception, which may occur in the testimony of
a single witness due to various reasons, since if two person similarly
situated depose about the incident in a similar way, there the
chances of error in the testimony of one witness is ruled out by the
principle of confirmation of facts or corroboration. Therefore, it is
clearly established by the prosecution that accused Rusy @
Surender, Rajesh @ Tinku and Ravinder @ Tunda were present at
the house of deceased at the time of the incident.
IDENTITY OF THE ACCUSED
Regarding the identity of the accused, PW1 in his examinationin
chief had stated that when he woke up he switched on the light and
further in his crossexamination he stated that the light of the room of
his mother was off, but during the incident he put on the light. He also
stated that there was light in the passage, which gives full light to the
room. Similarly, PW9 in his crossexamination had stated that when
he got up light was already on. From the testimonies of PW1 and
PW9, it is crystal clear that there was sufficient illumination available
at the spot to see the faces of the accused persons. In fact, PW1
had grappled with one of the accused and in the scuffle, he had also
received minor injuries which are corroborated by his MLC Ex.
PW5/A as he had received an abrasion on his left forearm, which
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State Vs. Rusy @ Surender etc.
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injury was found to be simple. And PW9 had also woken up due to
the commotion and he had seen all the three accused persons from
close quarters.
PW1 has also stated that when he overpowered the person i.e.
Rusy @ Surender, his cap was removed, therefore, he had sufficient
opportunity to see him and his face from very close range. Since the
entire incident had taken place in a very small area and the light was
on, therefore, both PW1 and PW9 had clear view regarding the faces
and other features of the identities of the accused persons, merely
because their identity had not mentioned in the rukka does not make
any difference, as the rukka was written immediately after the
incident after the mother of PW1 and wife of PW9 had died due to the
fatal injuries received by her in the said incident, consequently, the
entire family would have been in a condition of utter shock, even then
the description of the assailants / accused persons has been
mentioned in the rukka Ex. PW1/A though it was not expected that
PW1 would reproduce the photogenic features of all the accused
persons immediately after the incident despite being in the condition
of utter shock.
22. All the accused persons refused to go undergo TIP. Their refusals
are Ex. PX1 to Ex. PXIV despite warning by the Ld. MM that the
same may go against them. The said fact also goes against the
accused persons that they did not wanted to participate in the TIP
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State Vs. Rusy @ Surender etc.
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proceedings to test the observational sensitivity of PW1 and PW9,
i.e. to say whether they had indeed seen them stabbing the
deceased Shanti Devi and thereafter running away. Their
explanation that they had been shown to the witnesses in the police
station does not hold any ground, as the IO PW25 has deposed that
after the medical examination all the accused persons were produced
in muffled face and on the next day on production of the accused
persons, he moved an application before Ld. MM for conducting the
TIP of the accused persons, but the accused persons refused to
undergo TIP.
PW1 has stated that he had told the description including the age
of the persons to the police and told them that he can identify them if
shown to him and after the arrest of the accused persons, he was
informed by the IO that he has to identify them in the TIP. He
accompanied the IO but he informed by the IO that the accused
persons had refused to undergo TIP. Similarly PW9 had stated that
on 09.08.2012, he had come to Rohini Court and on that day he
identified all the three accused persons who were brought in the
court in police custody and also correctly pointed out towards them.
23. Since the accused persons had refused to undergo TIP on
30.07.2012 and three of the accused persons namely Rusy @
Surender, Rajesh @ Tinku and Ravinder @ Tunda were duly
identified by PW9, who had actually seen them at the time of the
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State Vs. Rusy @ Surender etc.
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incident while being present in his house immediately after the
incident of stabbing of his wife, consequently, his observational
sensitivity to find out as to who the said persons were had been
tested in the Rohini court on 09.08.2012, as there was no other
alternative for the investigating agency to do the same, once accused
persons had refused to undergo TIP on 30.07.2012. Therefore,
identity of the accused persons namely Rusy @ Surender, Rajesh @
Tinku and Ravinder @ Tunda have been clearly established as PW1
and PW9 had sufficient opportunity to see them as there was
sufficient illumination available at the said place to clearly see their
faces. And the incident had taken place in a very small area,
therefore, the PW1 and PW9 had seen the above accused persons
from a very close range, therefore, there could not have been any
doubt in their minds regarding the identity of the accused persons.
Similarly, the observational sensitivity of PW1 had also been
tested immediately after the incident and he also correctly identified
the accused persons in his deposition recorded on 05.09.2013. The
faces of all the above accused persons must have been etched in
their memories, therefore, any chances of errors in perception or
observation are ruled out in these circumstances, further sufficient
time was available with PW1 & PW9 to clearly observe the physical
traits and other facial features of accused persons, as PW1 & PW9
have stated that had clearly seen the faces of the accused persons
from very close distance. Consequently, there is no doubt
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State Vs. Rusy @ Surender etc.
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whatsoever regarding the identity of the accused Rusy @ Surender,
Rajesh @ Tinku and Ravinder @ Tunda.
RECOVERIES
Regarding the recovery part, in this regard the testimonies of
PW8 SI Avdhesh, PW23 SI Imtiaz Alam and PW25 Inspector V. N.
Jha, IO are relevant. The relevant portion of the testimony of PW25
IO in this regard is reproduced as under :
"That on 25.07.2012, SI Imtiaz Alam, SI Awdhesh and HC
Rajesh joined the investigation with me and we went in
search of accused persons involved in this case. On the
way, I made inquiries from various persons and also met
the complainant Bhim and his father Bishan Lal and they
were also briefed and both of them also joined the
investigation and they gave me the descriptions of
accused persons. I also briefed the beat staff in this
regard. When we reached near H32 park, Sector3,
Rohini, Ct. Raj Kumar, beat staff met me and informed
that as per the given descriptions three boys of the same
description were present inside the park and on receiving
this information, all of us went there and found three
persons were sitting inside the park and they were
apprehended, who disclosed their names as Rusy @
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State Vs. Rusy @ Surender etc.
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Surender, accused present in the court today (correctly
identified by the witness), Rajesh @ Tinku accused also
present in the court today (correctly identified by the
witness) and Ravinder @ Tunda accused also present in
the court today (correctly identified by the witness).
They were interrogated. On the formal search of accused
Rusy @ Surender, one iron rod from the left dub was
recovered and one silver coin alongwith two ATM cards
were recovered from his back pocket. Same were
separately converted into pulandas and sealed with the
seal of VJ and taken into possession vide seizure memos
already Ex PW11/A, Ex. PW11/B and Ex. PW11/C all these
memos bears my signatures at point C respectively.
On the formal search of accused Rajesh @ Tinku, one
buttondar knife was recovered from the dub of his pant,
one silver coin was also recovered from the left side
pocket of his pant. I prepared the sketch of knife which is
already Ex. PW11/D and same was measured and
converted into a pulanda and sealed with the seal of VJ
and taken into possession vide seizure memo already Ex.
PW11/E which bears my signatures at point C and silver
coin was also converted into a pulanda and sealed with
the seal of VJ and taken into possession vide seizure
SC No. 58155/16, FIR No. 152/12, PS. South Rohini Page No. 30 of 55
State Vs. Rusy @ Surender etc.
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memo already Ex. PW11/F which also bears my
signatures at point C.
On the formal search of accused Ravinder @ Tunda, one
buttondar knife was recovered from the right side dub of
his pant and one silver coin was also recovered from the
left side pocket of his pant. I prepared the sketch of knife
which is already Ex. PW11/G and same was measured and
converted into a pulanda and sealed with the seal of VJ
and taken into possession vide seizure memo already Ex.
PW11/H which bears my signatures at point C and silver
coin was also converted into a pulanda and sealed with
the seal of VJ and taken into possession vide seizure
memo already Ex. PW11/I which also bears my signatures
at point C.
Accused Rusy @ Surender, Ravinder @ Tunda and
Rajesh @ Tinku were arrested vide arrest memos already
Ex. PW11/L, Ex. PW11/K and Ex. PW11/J which also bears
my signatures at point C respectively and their personal
search were conducted vide memos already Ex. PW11/O,
Ex. PW11/N and Ex. PW11/M, all these memos also bears
my signatures at point C respectively.
Thereafter, all the three accused persons separately
disclosed their disclosure statements which are already
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State Vs. Rusy @ Surender etc.
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Ex. PW11/R, Ex. PW11/Q and Ex. PW11/P which also bears
my signatures at point C respectively.
Accused Rajesh @ Tinku, Ravinder @ Tunda and
Surender @ Rusy were taken to the hospital for their
medical examination and efforts were also made to trace
the other associates of accused persons but all in vain.
On the same day i.e. in the morning of 26.07.12 at the
instance of all the three accused persons, we
apprehended one another accused namely Mahesh @
Chikna and Amit @ Gora. Accused Mahesh @ Chikna
present in the court today (correctly identified). Amit @
Gora was juvenile (tried in JJB). SI Avdhesh apprehended
the accused Amit @ Gora whereas accused Mahesh was
apprehended by SI Imtiaz Alam, from near BSA Hospital,
Rohini. On enquiry, accused Amit @ Gora was found to
be juvenile, the mother of the accused Amit @ Gora was
also called and SI Ravi from PS. South Rohini was called
for interrogation and investigation in respect of juvenile
accused Amit @ Gora. I arrested the accused Mahesh @
Chikna Kalia and prepared arrest memo already Ex.
PW8/A which bears my signature at point C and also
conducted his personal search memo already Ex. PW8/B
which also bears my signature at point C. I also
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State Vs. Rusy @ Surender etc.
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thoroughly interrogated the accused Mahesh and
recorded his disclosure statement already Ex. PW8/C
which also bears my signature at point C.
Thereafter, at the instance of accused Ravinder, Rajesh
and Rusy @ Surender, we reached the park situated in the
BSA Hospital and from near bushes, accused Ravinder @
Tunda got recovered one blood stained jeans and one
white Tshirt, I kept the same in a transparent polythene
and the same was kept in a piece of cloth duly stitched
and sealed with the seal of VJ and pullanda was marked
as BSC1. The same were taken into possession vide
seizure memo already Ex. PW8/D which bears my
signature at point C.
At the instance of accused Rajesh @ Tinku, one blood
stained Tshirt and light blue colour pant were recovered.
I kept the same in a transparent polythene and the same
was kept in a piece of cloth duly stitched and sealed with
the seal of VJ and pullanda was marked as BSC2. The
same were taken into possession vide seizure memo
already Ex. PW8/E which bears my signature at point C.
Thereafter, accused Rusy @ Surender got recovered one
blood stained Tshirt and one denim pant. I kept the same
in a transparent polyethene and the same was kept in a
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State Vs. Rusy @ Surender etc.
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piece of cloth duly stitched and sealed with the seal of VJ
and pullanda was marked as BSC3. The same were taken
into possession vide seizure memo already Ex. PW8/F
which bears my signature at point C".
24. The testimony of the IO PW25 on the aspect of recovery
converges with the testimonies of PW8 SI Avdhesh and PW23 SI
Imtiaz Alam, who have also deposed on the same lines. As per their
testimonies, accused Rajesh @ Tinku was apprehended by PW8 and
one buttondar knife and one silver coin was recovered from his
possession which was seized vide memo Ex. PW11/E (K1). Similarly,
the accused Ravinder @ Tunda was apprehended by PW25 and
from his possession one knife and one silver coin was also recovered
which were also seized vide memo Ex. PW11/H (K2). Lastly the
accused Rusy @ Surender was apprehended by PW23 SI Imtiaz
Alam and one iron rod, one silver coin and two ATM cards were
recovered from his possession, which were also seized vide memo
Ex. PW11/A and Ex PW11/B.
25. Pursuant to the disclosure statement of accused Ravinder @
Tunda, Ex PW11/Q, he got recovered his blood stained clothes i.e.
one white Tshirt and one black pant concealed under the bushes of
BSA Hospital, Rohini, which was seized vide memo Ex. PW8/D.
Similarly, pursuant to the disclosure statement of accused Rajesh
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State Vs. Rusy @ Surender etc.
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@ Tinku, Ex. PW11/P, he also got recovered his blood stained
clothes i.e. from the same place one blue colour Tshirt and one light
blue colour pant which was also seized vide memo Ex. PW8/E.
Similarly, pursuant to the disclosure statement of accused Rusy
@ Surender, Ex. PW11/R, he also got recovered his blood stained
clothes i.e. one Tshirt and one denim pant concealed from the same
place which was seized vide memo Ex. PW8/F.
26. The Ld. Defence counsels have argued admittedly no public
witness was joined in any of those recovery proceedings. Neither any
public witness was joined at the time of arrest of the accused persons
near the park, which was surrounded by number of residential
houses and also at the time of recovery of the alleged blood stained
clothes of the accused persons, as the said place was also a public
place. They have further argued that in any case the said place from
where the alleged recovery of blood stained clothes was made was
an open place accessible to the public at large, therefore anybody
else may have thrown those clothes there. In any case, number of
persons on this planet are having the same blood grouping as was
found on the said clothes and in any case the said clothes did not
belong to the accused persons.
27. Regarding the first contention, no public witness was joined in
recoveries, it is well known that public witnesses are most wary to
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State Vs. Rusy @ Surender etc.
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join any investigations these days due to assorted factors as they do
not want to depose in the court or to take side with any of the parties.
It is not the quantity of the witnesses, but the quality thereof, which is
necessary to prove the prosecution case. In this regard, the law is
well settled in Sanjay alias Kaka Vs. State of NCT of Delhi AIR
2001 SC 979 as under :
"That no independent witnesses were associated
with recovery (discovery) under S. 27 Evidence Act
is not sufficient to create doubt regarding truth of
prosecution version."
In view of the said judgment the non joining of the public witness
is not fatal to the prosecution case.
28. Regarding the next contention of Ld. counsel for the accused that
from the clothes of accused Ravinder @ Tunda Ex. 13 which was
sent to FSL and regarding which FSL report Ex. PW22/A has been
proved on the record. The blood grouping on those clothes was
found B grouping and as per the Ex. 4 and Ex. 5 as well as Ex. AB
the blood group of deceased was also having B grouping. However,
on the clothes of the accused Rajesh @ Tinku Ex. 14, the blood
grouping was found A and that of accused Rusy @ Surender Ex. 15
again blood grouping A was found which did not match with that of
the deceased.
No doubt there are above mentioned discrepancies. But the
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State Vs. Rusy @ Surender etc.
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prosecution has furnished an cogent explanation in this regard as two
murders had taken place in the same night at a short distance of
each other in the same area, therefore, the blood groping A found on
the clothes of accused Rajesh @ Tinku and that of accused Rusy @
Surender could be of other victim in fact, as per the prosecution story
all the accused persons involved in this case, were also involved in
the said case and in fact three of the accused persons have already
been convicted in FIR no. 153/12, PS South Rohini.
29. Regarding the clothes, whether belonging to accused persons or
not? Accused persons never stated at the time of production or
exhibition of the said clothes in the court by PW23 and PW25 in their
examinationinchief, that the said clothes did not belong to them,
therefore, this plea does not hold any force.
30. In fact, from the possession of accused Rusy @ Surender, two
ATM cards were also found at the time of his arrest on one of which
the word 'Dilip Kumar' was written which belonged to PW2. The said
PW2 Dilip also identified the purse and the other documents
belonging to him in the court and which were collectively exhibited as
Ex. P3. No explanation has been furnished by accused Rusy as to
how he was found in possession of ATM cards belonging to PW2 at
the time of his arrest. The explanation of PW2 that he used to keep
his clothes on the ground floor in the room of his brother Bhim i.e.
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State Vs. Rusy @ Surender etc.
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PW1 as he was unmarried at that time is found to be logical as
generally in joint families there is a community of interest and unity of
possession with respect to the joint family property, therefore, there is
nothing unnatural about PW2 keeping his clothes in the room of PW1
for the sake of convenience.
31. PW2 also identified the purse in the TIP proceedings of the case
property Ex. PW2/A recovered at another spot i.e. the scene of the
crime of FIR No. 153/12, PS South Rohini i.e. H. No. D17/252,
Sector3, Rohini, where another incident regarding stabbing of old
lady namely Rasam Rani had taken place. In this regard, PW17
Inspector Anil Kumar, IO of that case has deposed that he went to
the spot of the said case on 24.07.2012, one purse was produced by
one Jyoti D/o Rasam Rani which was found by her in the clothes kept
on the chair on the covered lobby and the said purse was not
belonging to the inhabitants of the said house which was brown
coloured. On checking the purse, it was found to contain one original
RC DL8SAQ1008, Pulsar motorcycle, one voter Icard of Dilip
Kumar S/o Bishan Lal R/o G30/340341, Sector3, Rohini, duplicate
DL, whose number he had mentioned in the seizure memo belonging
to Prem Chand S/o Bishan Lal, two passport size photographs and
some other documents including visiting cards and the said
documents were seized vide memo Ex. PW17/A. The said witness
was crossexamined.
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State Vs. Rusy @ Surender etc.
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In his crossexamination, he stated that he was in touch with the
IO of this case, which is logical as two murders had taken place in
the same area in a short span of time, therefore, both the IOs must
have been sharing the information with each other to work out the
case. He also admitted that purse Ex. P3 was easily available in the
market and the TIP of the purse was not conducted by him in the
present FIR which is also a logical explanation as the TIP of the
purse was got conducted by the IO of the present case.
32. PW25 has also deposed on this aspect that on 01.08.2012, he
received the copy of seizure memo of said purse from the IO of case
FIR No. 153/12, PS South Rohini as the said case property was part
of this case. The said seizure memo is Ex. PW17/B.
Since the said purse was discovered by the IO of FIR no. 153/12,
by sheer act of serendipity, therefore, there are no chances of
planting of the same upon the accused persons, as the said recovery
was made immediately by the IO of that case, when he went to the
spot of the said case looking for clues and the said purse, in fact had
been handed over to him by the inhabitants of the said house as not
belonging to them.
No doubt the said kind of purses would be freely available in the
market, however, a person has uncanny knack of identifying the
things belonging to him or her due to long usage. Specially the purse
and the mobiles which are generally kept by the individuals with them
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State Vs. Rusy @ Surender etc.
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all the time, therefore, one can identify them due to peculiar features
on them, due to the long association and usage over the period of
time.
It has been held in Earabhadrappa, Appellant v. State of
Karnataka, Respondent. AIR 1983 SUPREME COURT 446 as
under :
12. ...... Even if the seized ornaments could be treated to be ornaments in common use, this witness could never make a mistake in identifying the seized six silk sarees (M. Os. 10 to 15). It is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings, particularly articles of personal use in the family.
That apart, the description of the silk sarees in question shows that they were expensive sarees with distinctive designs. There is no merit in the contention that the testimony of these witnesses as regards the identify of the seized articles to be stolen property cannot be relied upon for want of prior test identification. There is no such legal requirement.
13. This is a case where murder and robbery are proved to have been integral parts of one and SC No. 58155/16, FIR No. 152/12, PS. South Rohini Page No. 40 of 55 State Vs. Rusy @ Surender etc. -41- the same transaction and therefore the presumption arising under Illustration (a) to Sec. 114 of the Evidence Act is that not only, the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction.........
The appellant had no satisfactory explanation to offer for his possession of the stolen property. On the contrary, he denied that the stolen property was recovered from him. The false denial by itself is an incriminating circumstance. The nature of presumption under Illustration (a) to See. 114, must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long SC No. 58155/16, FIR No. 152/12, PS. South Rohini Page No. 41 of 55 State Vs. Rusy @ Surender etc. -42- particularly when the appellant had been absconding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property.
33. The above judgment is squarely applicable to the facts of the present case, though in the present case PW2 was not a female, but the same logic applies to the articles of personal belongings as one has uncanny knack of identifying his/her personal belongings from several other articles. The recovery of the robbed articles immediately after the incident of murder and robbery from possession of accused persons clearly attracts presumption u/s 114 (a) of Evidence Act taking into account the common course of natural events and human conduct specially, when the accused persons Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda have failed to give any plausible explanations in this regard in their statements u/s 313 Cr.P.C. barring simple denial.
34. The recovery of the purse and the documents belonging to PW2 and also the ATM cards from one of the accused persons immediately after the incident clearly shows their culpability in the present case for which no explanation has been furnished. The said circumstance strongly goes against them.
SC No. 58155/16, FIR No. 152/12, PS. South Rohini Page No. 42 of 55 State Vs. Rusy @ Surender etc. -43-
35. Regarding the recovery of knives, no doubt, no finger print was found on those knives, but they were recovered from the possession of the accused persons and the said knives are not ordinary kitchen knives which are generally used by career criminals. As per the PW1, his mother was stabbed by the accused Ravinder @ Tunda with the knife, which is also corroborated by the postmortem report in which stab incised wound was found on the back of the left side of the chest of the deceased and the knife which was got recovered by the accused Ravinder @ Tunda, which was seized vide Ex. PW11/D it was also sent for subsequent opinion and as per subsequent opinion the stab injuries found on the body of the deceased could be caused by the said weapon vide subsequent opinion Ex. PW14/B, therefore, the said subsequent opinion rules out the possibility of planting the knife upon the accused Ravinder @ Tunda, as the death of the deceased as per the opinion of autopsy surgeon had taken place due to the injuries caused by said knife.
OTHER CORROBORATIVE EVIDENCE MEDICAL EVIDENCE
36. As per the MLC of the deceased Shanti Devi Ex. PW3/A, which was prepared at Jaipur Golden Hospital on 24.07.12, at 2:30 am, a lacerated wound of 5 cm was found on the inter scapular region which is region between the scapulae or shoulder blades.
37. Similarly, the MLC of the PW1 Bhim has been proved by PW5, as SC No. 58155/16, FIR No. 152/12, PS. South Rohini Page No. 43 of 55 State Vs. Rusy @ Surender etc. -44- per which a abrasion was found on his left forearm on the lateral aspect approximately 3 x .5 x .2 cm. The said injury was opined to be simple in nature. The testimony of PW1 that he had grappled with one of the accused is corroborated by the said injury, which he may have received during the said scuffle. The PW1 has also stated that accused Ravinder @ Tunda was the person whom he also identified, who had stabbed his mother with a knife blow on her body and blood started oozing out from the stab injuries.
38. PW9 Bishan Lal has also deposed that he got up from the sleep after hearing the noise of "chorchor maar diya, maar diya" and he saw the accused persons in his house and found blood oozing from the injuries of his wife and the blood was also lying on the floor in the lobby.
39. The autopsy surgeon in his postmortem report Ex. PW14/A had found following injuries on the body of deceased:
External injuries : Incised stab wound 3.7 cm x 1 cm x cavity deep present over the back of left side of chest 8 cm from the midline, 20 cm from the left shoulder. The wound was horizontally placed with clean cut margins and one angle acute and another comparatively obtuse. Cut intercostal muscles and rib was visible through the wound. Fluid blood was coming out of the wound. Internal Injuries in chest : On reflection of chest wall, the external injury was found to be upto the pleural cavity. Extravasation SC No. 58155/16, FIR No. 152/12, PS. South Rohini Page No. 44 of 55 State Vs. Rusy @ Surender etc. -45- of blood was present surrounding the track of the injury. Collar bone, sternum and Ribs showed no fractures. The intercostal muscles were cut between 9 th and 10th rib beneath the external injury with nicks on the adjoining ribs. Pleural cavities contained about 300 cc of fluid and clotted blood. Left lung was lacerated 3 cm x 1 cm on the posterior surface of the lower lobe. The wound was 4.5 cm deep. Both lungs were collapsed and pale. All internal organs were pale. Opinion :
After postmortem, he opined that death was due to hemorrhagic shock consequent to penetrating injury to the chest caused via injury no.1. All injures were antemortem, fresh at the time of death and injury no.1 was sufficient to cause death in the ordinary course of nature.
His detailed postmortem report running into seven pages including the diagram, is Ex. PW14/A bearing his signatures at point A on each page.
40. On 27.08.2012, he examined a weapon i.e. knife, produced before him regarding the injuries caused to the deceased. After examining the weapon, he opined that the injuries mentioned in the PM report could be caused by the weapon examined. His detailed report including the diagram in this regard is Ex. PW14/B bearing his signatures at point A. SC No. 58155/16, FIR No. 152/12, PS. South Rohini Page No. 45 of 55 State Vs. Rusy @ Surender etc. -46-
41. It appears that inadvertently the exhibit mark was not put on the said postmortem report Ex. PW14/A on the case file, but the same has been duly proved in the testimony of PW14 Dr. Vijay Dhankar. The subsequent opinion of the said forensic expert that the said injury was possible with the knife, which was seized from accused Ravinder @ Tunda which was also sent to him for evaluation clearly proves that the said injuries on the body of deceased had been caused by the accused Ravinder @ Tunda, which is also corroborated by the ocular version of PW1.
Therefore, the postmortem report coupled with the other medical evidence discussed above clearly proves that the said fatal injury had been caused by the accused Ravinder @ Tunda at the exhortation given by the other two accused persons namely Rusy @ Surender and Rajesh @ Tinku. Therefore, the medical evidence in this case also corroborates the ocular version of PW1 and PW9 with regard to the incident of stabbing of their mother/wife Shanti Devi.
COMMON INTENTION
42. The law regarding the common intention has been laid down in the judgment titled as Girija Shankar Vs. State of U.P., Appeal (crl.) 1034 of 1997 on 04.02.2004 of Hon'ble Supreme Court of India as under:
"Section 34 has been enacted on the principle of SC No. 58155/16, FIR No. 152/12, PS. South Rohini Page No. 46 of 55 State Vs. Rusy @ Surender etc. -47- joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true concept of Section is that if two or more SC No. 58155/16, FIR No. 152/12, PS. South Rohini Page No. 47 of 55 State Vs. Rusy @ Surender etc. -48- persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
The Section does not say "the common intention of all", nor does it say" and intention common to all".
Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is SC No. 58155/16, FIR No. 152/12, PS. South Rohini Page No. 48 of 55 State Vs. Rusy @ Surender etc. -49- liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v.
State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused."
43. The evidence on the record clearly shows that the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda shared the common intention to kill Shanti Devi as accused Rusy @ Surender as well as accused Rajesh @ Tinku exhorted Ravinder @ Tunda at the time when Rusy @ Surender was caught by PW1 and Rajesh @ Tinku had been caught by deceased Shanti Devi saying "chaku maar tabhi hume chodega" and thereafter the said accused Ravinder @ Tunda stabbed deceased Shanti Devi with the knife. Therefore, this clearly shows meeting of minds of the accused SC No. 58155/16, FIR No. 152/12, PS. South Rohini Page No. 49 of 55 State Vs. Rusy @ Surender etc. -50- persons to commit the offence in question.
It shows premeditation which developed at the spot before the commission of the offence i.e. stabbing the deceased Shanti Devi. It appears that they had come to the spot fully prepared that in case of any eventuality of being caught or surrounded, they would not spare the person, who tries to apprehend them in order to escape. Therefore, the confederacy or meeting of minds of the accused persons is clearly discernible in the present case. Therefore, by the principle of agency, all of them are liable for the acts of each other. Regarding the charge(s) u/s 395/396 IPC, the same are not made out in the present case, as the prosecution has failed to prove that the robbery had been committed by five or more persons as per discussion held above only three persons were involved in the incident, therefore, Sections 395/396 IPC are not been made out.
REGARDING SECTIONS 457/460 IPC:
44. From the testimonies of PW1, PW2 and PW9, it is evident that accused persons Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda had intruded into their dwelling house by breaking open the inter lock which was also seized vide memo Ex. PW23/B, which was found to be free on checking. And from the spot, one iron rod which was rusted was also found lying on the sofa of drawing room which was also seized by the IO from the spot vide memo Ex. PW1/B and in fact, one iron rod or house breaking implement was also recovered SC No. 58155/16, FIR No. 152/12, PS. South Rohini Page No. 50 of 55 State Vs. Rusy @ Surender etc. -51- from accused Rusy @ Surender at the time of his arrest on 25.07.2012, these facts/tangibles clearly show that the accused persons had committed the house trespass into the house of the above persons having taking precaution to conceal such house trespass without the consent of the occupants of the said house bearing no. G30/340341, Ground Floor, Sector2, Rohini, who had the right to exclude or reject the said trespassers and the same was done in the night i.e. at around 1:45 am on the intervening night of 23/24.07.2012 after sunset and before sunrise and while committing the lurking house trespass by night or house breaking while night, the accused Ravinder @ Tunda had stabbed deceased Shanti Devi, thereby causing her death, therefore, all the accused persons by the principle agency are liable for the act of each other jointly and severally, therefore all of them are liable to be convicted u/s 460 IPC.
45. Regarding the accused Mahesh @ Chikna, pursuant to his disclosure statement Ex. PW8/C nothing incriminating was recovered at his instance or from his possession, which was also admitted by the IO PW25 in his crossexamination that nothing was recovered from his possession or at his instance. And similarly, PW23 SI Imtiaz Alam also admitted that it was correct that pursuant to the disclosure statement of accused Mahesh @ Chikna nothing incriminating was recovered at his instance or from his possession. Therefore, said disclosure statement is hit by Section 25 of the Evidence Act. As per SC No. 58155/16, FIR No. 152/12, PS. South Rohini Page No. 51 of 55 State Vs. Rusy @ Surender etc. -52- the testimonies of PW1, PW2 and PW9, who were the eye witnesses to the incident, accused Mahesh @ Chikna was not found at the spot at the time of the incident nor anybody else had seen him coming inside the house in question or leaving the said house immediately after the incident. Therefore, there is no legally admissible evidence against the accused Mahesh @ Chikna. Therefore, there is no iota of evidence connecting him with the charge(s) framed against him in this case.
46. Now, what is net probative force of the prosecution case as a whole after this wholesome discussion. That is to say it is time to weight or analyze the probative force of entire mass of prosecution or defence evidence, which has been let in. Since the Evidence Act only speaks mainly about the rules of admissibility of evidence i.e what kind of evidence is safe, due to prudence and experience, therefore should be let in, or which is not, due to long drawn experience like hearsay which should be discarded. Therefore, Evidence Act mainly speaks about the admissibility or non admissibility of evidence. Now, once the entire evidence is let in, what is force or weight which has to be given to a particular piece or item of evidence. Then, to the entire cumulative force of evidence taken as a whole. After considering the counter pulls or countervailing evidence which pulls down the weight of prosecution evidence or supports the defence evidence. The answer to the same SC No. 58155/16, FIR No. 152/12, PS. South Rohini Page No. 52 of 55 State Vs. Rusy @ Surender etc. -53- can only be found in the principles of mathematical probability which are used to analyze the happening or non happening of any event on such probability scale.
47. In view of the above discussion given, considering the entire mass of prosecution and defence evidence discussed on the record, how likely is this evidence given that all the accused persons, who had made lurking house trespass into the house of the deceased Shanti Devi or committed lurking house trespass by night after sunset and before sunrise in furtherance of their common intention had killed deceased Shanti Devi by stabbing her, which can be termed as likelihoodI(propositionI) or how likely is this evidence given that the accused persons did not commit lurking house trespass or house breaking by night before sunrise and after sunset and had not killed deceased Shanti Devi by stabbing her in furtherance of their common intention, which can be termed as likelihoodII(propositionII). The probative force of this likelihood method depends upon the relative sizes of the two likelihoods i.e likelihoodI and likelihoodII. How much stronger is this evidence depends how much propositionI is greater than propositionII or vice versa. If likelihood propositionII is much greater than likelihood propositionI given the mass of entire evidence lead on the record by the prosecution or defence then the accused is likely to be acquitted & vice versa, the accused is liable to be convicted, if both SC No. 58155/16, FIR No. 152/12, PS. South Rohini Page No. 53 of 55 State Vs. Rusy @ Surender etc. -54- are equal then it can be said that both of them have equal probative value.
In view of the above discussion, it is apparent that the probative force of propositionI i.e likelihoodI is much much greater than the likelihoodII or propositionII, that is to say that the probative force of the evidence lead on the record in favour the propositionI is much much greater than propositionII i.e likelihoodI which favours the culpability of the accused.
On the scale of 1 to 10, where happening of any event is measured the probative force of the entire mass of the evidence lead on record taken as a whole is touching the point of certainty. It can be given 8 or 9 points on such scale of '10' i.e 80% or 90% probability '10' being the certainty or 100% (which though can never be achieved in reality). On such kind of evidence, it can be safely said that it were the accused persons who had killed the deceased in furtherance of their common intention after making lurking house trespass by night after sunset and before sunrise and is guilty of the offence for which he has been charged. The prosecution had to prove its case beyond reasonable doubt and on said scales, therefore, it should be touching the point of certainty if not ten, it should have been somewhere around 8 or 9 that is to say 80% and 90% which is the case in hand.
SC No. 58155/16, FIR No. 152/12, PS. South Rohini Page No. 54 of 55 State Vs. Rusy @ Surender etc. -55-
48. T o sum up :
From the aforesaid analysis of evidence, the probative force of the prosecution evidence as a whole is touching the point of certainty on the scales, where probability of happening of any event is assessed or measured, whereas the defence version is having very low probative force, which is almost touching the point of disbelief. As a consequence, the accused persons namely Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda stand convicted of the offence(s) u/S. 302/34 & 460 IPC, whereas the accused Mahesh @ Chikna stands acquitted of the offence(s) u/S. 302/457/460/395/396/34 IPC.
Announced in the open Court (Sanjeev Aggarwal) th on this day of 24 April, 2018. Addl. Sessions Judge02, North Rohini Courts, Delhi 24.04.2018 SC No. 58155/16, FIR No. 152/12, PS. South Rohini Page No. 55 of 55 State Vs. Rusy @ Surender etc.