Delhi District Court
State vs . (1) Rusy @ Surender on 12 August, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE
II (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 32/2013
Unique Case ID No.: 02404R0303802012
State Vs. (1) Rusy @ Surender
S/o Sh. Thakur Das
R/o D618, Gali No. 11,
Mangol Puri, Delhi
(Convicted)
(2) Rajesh @ Tinku
S/o Roop Singh
R/o F29/569, Mangol Puri,
Delhi
(Convicted)
(3) Ravinder @ Tunda
S/o Rajesh
R/o Jhuggi Hanuman Mandir,
Gali No.22, Near RTV Bus Stand,
Budh Vihar, PhaseII,
Delhi
(Convicted)
(4) Mahesh @ Chikna Kaliya
S/o Thakur Das
R/o Jhuggi No. 248, Indira JJ Camp,
Sector3, Rohini, Delhi
(Acquitted)
FIR No.: 153/2012
Police Station: South Rohini
Under Section: 302/460/396/34 Indian Penal Code
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 1
Date of committal to sessions court: 30.11.2012
Date on which orders were reserved: 5.8.2014
Date on which judgment pronounced:5.8.2014
JUDGMENT:
(1) As per the allegations on 24.7.2012 at about 2:15 AM at House No. B17/252, Sector3, Rohini, Delhi the accused Rusy @ Surender, Rajesh @ Tinku @ Kanta, Ravinder @ Tunda and Mahesh @ Chikna Kaliya along with their coaccused namely Amit @ Gora (juvenile) in furtherance of their common intention committed lurking house trespass or house breaking at the above said house and voluntarily cased death of Smt. Resham Rani. All the above accused committed dacoity at the said house and robbed threefour silver coins, one wrist watch, Rs.1,000/ to Rs.1,200/, one ear ring and one gold ring from the possession of Smt. Resham Rani and while committing dacoity they inflicted knife injuries to the victim Resham Rani thereby committing her murder. It has also been alleged that at the time of committing dacoity the accused Rajesh @ Tinku used a deadly weapon i.e. buttondar knife with which he inflicted injuries upon the victim.
BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 24.07.2012 at about 2:45 AM DD No. 4B was received at Police Station South Rohini pursuant to St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 2 which Inspector Anil Kumar along with SI Ravi and Ct. Sanjay reached the spot at D17/252, Sector - 3, Rohini where they found blood scattered in and outside the room. The Investigating Officer came to know that the injured Resham Rani W/o Jagdish Lal was sifted to BSA Hospital by the PCR officials on which Ct. Amar was deputed at the spot for preservation of the same whereas Inspector Anil Kumar along with SI Ravi went to BSA Hospital where the injured Resham Rani was under treatment and was declared unfit for statement. A sealed pullanda duly sealed with the seal of the BSA Hospital containing clothes of the injured and sample seal were given to the Investigating Officer by the Duty Head Constable Ram Pravesh, which was taken into possession. One Shishu Pal the son in law of the injured was present in the hospital who informed the police that at around 22:15 AM (midnight) he heard loud voices of his mother in law Resham Rani who was screaming and calling for his wife by her name and was shouting "Jyoti, Jyoti" on which he rushed downstairs and found blood scattered all over the place inside the house near the door and also outside and found his mother in law Resham Rani lying on the bed and crying in pain. Shishu Pal also informed the police that he noticed that her mother in law was bleeding heavily from the left side stomach on which he asked her what had happened and she informed him that two persons had come who were wearing black clothes and had stabbed her and run away. According to Shishu Pal he also noticed that blood was scattered all over the floor, the almirah was open, the drawers of the TV St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 3 trolley was also open and the window under AC was broken and the articles of the house had been disturbed and were lying scattered and thereafter they rushed Smt. Resham Rani to the hospital.
(3) In the meanwhile the injured Smt. Resham Rani had expired.
On the basis of statement of Shishu Pal the present FIR was registered. Thereafter the police returned to the spot i.e. D17/252, Sector 3, Rohini, Delhi alongwith Shishu Pal. The scene of crime was inspected by Crime Team and also by the Forensic Experts. The Investigating Officer made inquiries from Smt. Jyoti Satija who informed him that she had seen three assailants running away. She had given the description of the assailants and informed the Investigating Officer that one person was of fair complexion with small hair whereas the other persons were of thin stature and dusky/ sanwla complexion and all the persons were within the age group of 2025 years.
(4) Smt. Jyoti was instructed to find out the other articles which could be stolen on which she was started taking the search of household articles and when she lifted the clothes from a chair in the lobby a purse fell on the ground about which she informed that the same was not belonging to them. The purse was photographed and the same was checked and it found to contain one RC of motorcycle DL 8S AQ 1008 and original voter ID Card in the name of Dalip s/o Bishan Lal, one duplicate driving licence of Prem Chand S/o Bishan Lal, some papers and visiting card and two photographs. The various exhibits were then lifted St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 4 and seized.
(5) During investigations it was revealed that a similar incident had taken place in the same area pursuant to which FIR No. 152/2012 had already been registered same at Police Station i.e. Police Station South Rohini. During the investigations of FIR No. 152/2012 on the basis of the description given by the witnesses in the said case, the accused Rusy @ Surender, Rajender @ Tinku and Ravinder @ Tunda were apprehended on 25.7.2012 from the Park H32, Sector 3, Rohini. From the possession of accused Rusy @ Surender one iron rod, two ATM cards, one silver coin were recovered; from the possession of Rajesh @ Tinku one silver coin, one knife were recovered and from the possession of Ravinder one knife and one coin were recovered. The accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda were arrested and their disclosure statements were recorded. At the instance of accused persons the other coaccused namely Mahesh @ Chikna @ Kalia and Amit @ Gora (juvenile) were arrested. Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda got recovered their blood stained clothes from the park and also disclosed their involvement in the present case. (6) The Investigating Officer of the present case moved an application seeking production of accused persons before Ld. MM pursuant to which on 09.08.2012 all the accused were produced and after due permission from the Ld. MM the accused were arrested in the present case and their disclosure statements were also recorded. The accused St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 5 were subjected to Test Identification Parade but all the accused refused to take participate in the same. On 10.08.2012 the accused lead the Investigating Officer to D17/252, Sector 3 Rohini and pointed out the place of incident where they had broken the jali/ wiremesh of the window and entered the house after which they committed the robbery and stabbed the victim and escaped. While the accused were present at the spot, Smt. Jyoti Satija identified Ravinder, Surender and Rajesh as the assailants whom she had seen while she was at the second floor and they were coming out of the house from the ground floor and running away at the time of the incident. On 29.09.2012 the Judicial Test Identification Parade of the case property was got conducted from the Ld. MM wherein complainant Shishu Pal correctly identified the case property. After completion of investigations, charge sheet was filed in the court. CHARGES:
(7) Charges under Sections 460/34, 395, 396 and 302/34 Indian Penal Code were settled against the accused Rusy @ Surender, Rajesh @ Tinku @ Kanta, Ravinder @ Tunda and Mahesh @ Chikna Kaliya to which they pleaded not guilty and claimed trial. Further, charges under Section 397 IPC and Section 27 Arms Act were settled against the accused Rajesh @ Tinku to which he pleaded not guilty and claimed trial.St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 6
(8) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of witnesses:
Sr. PW No. Name of the witness Details of the witness No.
1. PW1 SI Anil Police Witness - Crime Team Incharge
2. PW2 Ct. Manoj Police Witness - Crime Team Photographer
3. PW3 HC Satish Police Witness - Finger Print Proficient
4. PW4 HC Narender Police Witness - Duty Officer
5. PW5 Ct. Mahendra Police Witness - Computer Operator
6. PW6 Ct. Sanjay Police Witness who had taken the rukka to the Police Station and got the FIR registered
7. PW7 Ct. Umesh Police Witness who has proved the formal arrest of the accused persons
8. PW8 HC Ram Parvesh Police Witness - Duty Constable at BSA Hospital
9. PW9 SI Manohar Lal Police Witness - Draftsman
10. PW10 Sushil Kumar Official Witness - Finger Print Expert
11. PW11 Ct. Arvind Police Witness who had deposited the exhibits with FSL
12. PW12 HC Raj Kumar Police Witness who had deposited the exhibits with FSL
13. PW13 Ct. Vishram Police Witness - Special Messenger
14. PW14 Ct. Ram Sewak Police Witness - PCR Official
15. PW15 Ct. Amar Police Witness who had preserved the scene of crime
16. PW16 Indresh Kumar Mishra Forensic Expert
17. PW17 Naresh Kumar Forensic Expert St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 7 Sr. PW No. Name of the witness Details of the witness No.
18. PW18 Parshuram Singh Forensic Expert
19. PW19 Dr. Manoj Witness from BSA Hospital who has proved the MLC of the deceased
20. PW20 Dr. Manish Witness from BSA Hospital who has proved the Death Report of the deceased
21. PW21 Sh. Surender Kumar Postmortem Technician who has proved the seizure of clothes of the deceased
22. PW22 Shishu Pal Satija Public Witness - Son in law of the deceased
23. PW23 Pawan Kumar Satija Public Witness who had identified the dead body of the deceased
24. PW24 Dharmender Sehrawat Official Witness - Ahlmad in the court of Sh. Rajneesh Bhatnagar, Ld. ASJ
25. PW25 Jyoti Satija Public Witness - Daughter of the deceased who had seen the assailants running away and give their description to the police at the first instance
26. PW26 Dr. Vijay Dhankar Autopsy Surgeon who has proved the postmortem report of the deceased
27. PW27 Dr. Bhawana Jain Witness from BSA Hospital who has proved the MLC of the deceased
28. PW28 HC Virender Police Witness - MHCM
29. PW29 ASI Surender Police Witness who had reached the spot at the first instance
30. PW30 SI Mohd. Imtiaz Police/ Official Witness who has proved the apprehension and arrest of the accused in FIR No. 152/12, PS South Rohini
31. PW31 SI Avdhesh Police/ Official Witness who has proved the apprehension and arrest of the accused in FIR No. 152/12, PS South Rohini
32. PW32 HC Raj Kumar Police/ Official Witness who has proved the apprehension and arrest of the accused in FIR No. 152/12, PS South Rohini St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 8 Sr. PW No. Name of the witness Details of the witness No.
33. PW33 SI Ravi Kumar Police Witness who had reached the spot with Inspector Anil Kumar
34. PW34 Insp. V N Jha Investigating Officer of FIR No. 152/2012, PS South Rohini
35. PW35 Insp. Anil Kumar Investigating Officer of the present case List of documents exhibited:
Sr. Exhibit Details of documents Proved by
No. No.
1. PW1/1 Affidavit of evidence of SI Anil Kumar SI Anil Kumar
2. PW1/A Crime Team Report
3. PW2/1 Affidavit of evidence of Ct. Manoj Ct. Manoj
4. PW2/A1 to Photographs of place of incident
A17
5. PW2/B Negatives of the photographs
6. PW3/1 Affidavit of evidence of HC Satish HC Satish
7. PW4/1 Affidavit of evidence of HC Narender HC Narender
8. PW4/A Copy of FIR 153/12
9. PW4/B Endorsement on Rukka
10. PW5/1 Affidavit of evidence of Ct. Mahender Ct. Mahender
11. PW5/A Certificate U/s 65B
12. PW6/1 Affidavit of evidence of Ct. Sanjay Ct. Sanjay
13. PW7/1 Affidavit of evidence of Ct. Umesh Ct. Umesh
14. PW7/A Arrest memo of Ravinder Ravinder
15. PW7/B Disclosure Statement of Ravinder
16. PW7/C Arrest memo of Mahesh
17. PW7/D Disclosure Statement of Mahesh
18. PW7/E Arrest memo of Rajesh
19. PW7/F Disclosure statement of Rajesh
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 9
Sr. Exhibit Details of documents Proved by
No. No.
20. PW7/G Arrest memo of Rusy @ Surender
21. PW7/H Disclosure Statement of Rusy @
Surender
22. PW 8/1 Affidavit of HC Ram Parvesh HC Ram Parvesh
23. PW9/1 Affidavit of evidence of SI Manohar Lal SI Manohar Lal
24. PW9/A Scaled Site plan
25. PW10/1 Affidavit of evidence of Sushil Kumar Sushil Kumar
(Finger Print Expert)
26. PW10/A Finger print examination report
27. PW11/1 Affidavit of Ct. Arvind Ct. Arvind
28. PW11/A Copy of entry at Sr. No. 130/21/12
29. PW11/B FSL Receipt
30. PW12/1 Affidavit of HC Raj Kumar HC Raj Kumar
31. PW12/A Copy of Reg No. 21 vide Sr. No.
85/21/12
32. PW12/B FSL Receipt
33. PW13/1 Affidavit of evidence of Ct. Vishram Ct. Vishram
34. PW14/1 Affidavit of evidence of Ct. Ram Sewak Ct. Ram Sewak
35. PW14/A PCR Form
36. PW15/1 Affidavit of evidence of Ct. Amar Ct. Amar
37. PW16/A FSL Report Indresh Mishra Mishra
38. PW17/A Biological Report Naresh Kumar
39. PW17/B Serological Report
40. PW17/C Biological Report in FIR No.152/12
41. PW17/D Serological Report in FIR No.152/13
42. PW18/A Crime scene report of FSL Parshuram Singh
43. PW19/A MLC of Resham Rani Dr. Manoj
44. PW19/B Death summary
45. PW20/A Death report Dr. Manish
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 10
Sr. Exhibit Details of documents Proved by
No. No.
46. PW21/A Seizure memo of Blood gauze Surender Kumar
47. PW22/A Statement of Shishu Pal under Section Shishu Pal
161 Cr.P.C.
48. PW22/B Site plan
49. PW22/C Seizure memo of Foot Print
50. PW22/D Seizure memo of Election I Card
51. PW22/E Seizure memo of Towel
52. PW22/F Seizure memo of Blood Gauze and earth
control
53. PW22/G Seizure memo of Chunni
54. PW22/H Seizure memo of Wooden Chaukhat
55. PW22/I Seizure memo of Blood sample
56. PW22/J Seizure memo of Chappals
57. PW22/K Dead body identification statement
58. PW22/L Dead body handing over memo
59. PW23/A Dead body identification statement Pawan Kumar
60. PW24/A Copy of Arrest memo of Mahesh@ Dharmender Sehrawat
Chikna
61. PW24/B Copy of Arrest memo of Rajesh @
Tinku
62. PW24/C Copy of Arrest memo of Ravinder @
Tunda
63. PW24/D Copy of Arrest memo of Rusy @
Surender
64. PW24/E Copy of Personal search memo of
Mahesh
65. PW24/F Copy of Personal search memo of Rajesh
66. PW24/G Copy of Personal search memo of
Ravinder
67. PW24/H Copy of Personal search memo of Rusy
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 11
Sr. Exhibit Details of documents Proved by
No. No.
68. PW24/I Copy of Disclosure Statement of
Mahesh
69. PW24/J Copy of Disclosure Statement of Rajesh
70. PW24/K Copy of Disclosure Statement of
Ravinder
71. PW24/L Copy of Disclosure Statement of Rusy
72. PW24/M Copy of Seizure memo of buttondar
knife
73. PW24/N Copy of Seizure memo of iron rod
74. PW25/A18 Photographs of articles taken at the time Jyoti Satija of the release
75. PW26/A Postmortem Report Dr. Vijay Dhankar
76. PW26/B Subsequent Opinion
77. PW28/1 Affidavit of HC Virender HC Virender
78. PW28/A Copy of Reg No. 19 Sr. No. 3716/12
79. PW28/B Copy of Reg No. 19 Sr. No. 3717/12
80. PW28/C Copy of Reg No. 19 Sr. No. 377/12
81. PW29/A Seizure memo of cloths of deceased ASI Surender
82. PW30/A Seizure memo of silver coin recovered SI Mohd. Imteyaz from the possession of accused Rusy
83. PW30/B Seizure memo of silver coin recovered from the possession of accused of Ravinder
84. PW30/C Seizure memo of silver coin recovered from the possession of accused of Rajesh
85. PW30/D1 Seizure memo of clothes of accused to D3
86. PW30/E Site plan
87. PW31/A Sketch of knife recovered from Rajesh SI Avdesh
88. PW31/B Seizure memo of knife St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 12 Sr. Exhibit Details of documents Proved by No. No.
89. PW31/C Sketch of knife recovered from Ravinder
90. PW35/A Copy of DD No. 4/B Inspector Anil Kumar
91. PW35/B Copy of DD No. 10B
92. PW35/C Rukka
93. PW35/D Inquest form 25:35
94. PW35/E Brief Facts
95. PW35/F Pointing out memo by Rajesh
96. PW35/G Pointing out memo by Mahesh
97. PW35/H Pointing out memo by Ravinder
98. PW35/I Pointing out memo by Rusy @ Surender EVIDENCE:
(9) In order to prove its case the prosecution has examined as many as Thirty Five Witnesses as under:
Public witnesses:
(10) PW22 Sh. Shishu Pal Satija has deposed that he is residing at D17/252, Sector 3, Rohini, Delhi along with his family for the last almost three years. According to the witness, Smt. Resham Rani was his mother in law/Saas who had no son and Jyoti Satija, his wife is her only daughter.
Witness has further deposed that the house bearing No. D17/252 has been constructed upto four floors including the ground floor where his mother in law Smt. Resham Rani used to reside and on the first floor his mother Mohini Satija resides and his daughter used to sleep with her whereas he St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 13 along with his wife and two sons are residing on the second floor where they used to sleep whereas the third floor is having one store room. Witness has further deposed that on the intervening night of 23/24.07.2012 they had taken their dinner at around 11 PM and gone to sleep. He has also deposed that at around 22:15 AM (midnight) he heard loud voices of his mother in law Resham Rani who was screaming and calling for his wife by her name and was shouting "Jyoti, Jyoti" on which he rushed downstairs and found blood scattered all over the place inside the house near the door and also outside and found his mother in law Resham Rani lying on the bed and crying in pain "bed par pari tarap rahi thi". The witness has further deposed that in the meantime the other persons from the neighbors had also started collecting and he noticed that her mother in law was bleeding heavily from the left side stomach on which he asked her what had happened. According to the witness, she (Resham Rani) informed him that two persons had come who were wearing black clothes and they had stabbed her and run away "Do admi kale rang ke kapre pehen kar aye thai aur chaku mar kar bhag gaye". Witness has further deposed that he also noticed that there was blood scattered all over the floor, the almirah was open, the draws of the TV trolley was also open. He also noticed that the window under the AC was broken and the articles of the house had been disturbed and were lying scattered. Witness has further deposed that he also noticed two brown color chappals lying in front of the window underneath the AC which were broken and there was St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 14 blood stains on the window and it appeared that the assailants had entered by breaking the window under the AC. According to the witness he made a 100 number call and after about five to ten minutes the police came to the spot and immediately she was shifted to BSA Hospital and he along with his neighbors also rushed to the BSA Hospital. Witness has further deposed that during the time of her treatment, his mother in law Resham Rani expired. He has also deposed that he also made a call to his wife from the hospital and asked her to find out if there were some articles missing from the house, on which she informed that threefour silver coins kept in a red thaili, a sum of Rs.1,200/ appeared to be missing. Witness has further deposed that thereafter the police recorded his statement at the BSA Hospital which is Ex.PW22/A after which he returned to his house. (11) According to the witness, on 24.07.2012 in his presence the Crime Team had also visited at his house and had taken chance prints, photographs and also lifted the exhibits. He has also deposed that the chunni of his mother in law was also lying at the spot from which they lifted blood stains along with the bed sheet/chaddar on which blood stains were present. He has proved that the police also lifted the blood stains from the AC window and chappals lying in the room and the other blood stained articles. According to him, the police also found a purse and other articles lying in the room which were not belonging to them and perhaps had left behind by the assailants. Witness has further deposed that after which the photographs of the entire room was got done and the site plan St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 15 of the room was prepared which is Ex.PW22/B. According to the witness there was a two wheeler scooter parked outside the boundary wall adjoining the window from where the assailants had entered on which there were some foot prints which were lifted by the police vide memo Ex.PW22/C. He has testified that the purse which was left behind the assailants was lifted by the police was checked and found to contain some documents in the name of some Dalip Kumar which contained an ATM card, some documents, election ID card and some other documents which he does not recollect were converted into pullanda and seized vide memo Ex.PW22/D. (12) Witness has further deposed that the seizure memos of the various other articles i.e. towel, blood gauze earth control, bed sheet, chunni, blood stained wooden chaukhat and blood stains lifted from various places of the room are Ex.PW22/E, Ex.PW22/F, Ex.PW22/G, Ex.PW22/H, Ex.PW22/I, chappals left by the assailants were converted into pullanda and seized vide memo Ex.PW22/J. He has testified that on the same day the postmortem on the dead body of his mother in law was conducted and he and Sh. Pawan Satija, his cousin brother identified the dead body vide memo Ex.PW22/K after which they received the said body from the mortuary vide memo Ex.PW22/L. According to him, on 29.09.2012 he identified the three silver coins belonging to his mother in law before Ld. MM vide TIP Proceedings Ex.PX3 collectively. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 16 (13) Witness has identified the silver coins, one of whom is having symbol of Radha Krishna and the other two having the symbol of Laxmi Ganesh as the same as belonging to her mother in law which are Ex.P1, Ex.P2 and Ex.P3; two bed sheets and one chunni seized by the police which bed sheets are Ex.P4 & Ex.P5 and chunni is Ex.P6; wooden piece of chaukhat as the same as seized by the police which is Ex.P7; blood stained mattress piece which was seized by the police, which is Ex.P8; one towel of green color which was seized by the police which is Ex.P9 and one pair of slippers of G Star which was seized by the police which is Ex.P10 collectively.
(14) With the permission of the Court, leading questions were put to the witness by the Ld. Addl. PP for the State on which the witness has admitted that the various exhibits which were lifted from the spot were converted into pullanda and thereafter sealed with the seal of RK and has voluntarily added that he has forgotten this fact on account of passage of time.
(15) In his cross examination by Ld. Defence Counsels, witness has deposed that he has the document in the form of voter ID Card showing that he is living at the present address i.e. D17/252, sector 3, Rohini, Delhi. According to the witness he reached before his Jyoti Jyoti when his mother in law was crying for help. Witness has further deposed that he has stated in his statement to the police Ex.PW22/A as well as St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 17 Ex.PW22/DA that one brown purse was left behind by the accused persons containing the ATM Card in the name of Dalip Kumar, visiting cards, two passport size photographs and some other documents were seized in his presence. However, when confronted with statement Ex.PW22/A as well as Ex.PW22/DA the above fact was not found so recorded. Witness has admitted that seizure memo regarding the purse was prepared in his presence by the Investigating Officer at the place of incident. According to the witness the purse was recovered beneath the quilt. He has also deposed that there were eight to ten silver coins when he was called by the Ld. MM for the TIP of the silver coins. Witness has admitted that some of the coins at the time of TIP some were bigger in size, some were smaller in size, some were faded and some were black and has clarified that they were of the similar size and the silver coins were having different symbols at the time of TIP. He has denied the suggestion that the PCR 100 call was made by Chunia W/o Janam Raj, R/o 2603, Hudson line, Vijay Nagar, Timarpur. He has also denied that the seizure memo of purse does not bears his signatures as he was not present there. The witness has also denied the suggestion that the purse was planted by the police officials later on to falsely implicate the accused persons in the present case or that his statement was recorded on in the early morning of 25.07.2012 and on the basis of that FIR was registered. Witness has denied the suggestion that he was deposing falsely at the instance of the Investigating Officer to boost the present false case. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 18 (16) PW25 Mrs. Jyoti Satija has deposed that she is a house wife and is residing at D17/252, Sector 3, Rohini, Delhi along with her husband, two sons, one daughter and her mother in law Mohini Satijia and her mother Resham Rani was also residing in the house. According to the witness she along with her husband and children resided at the second floor of the house whereas her mother in law resided at first floor and her mother resided at the ground floor. Witness has further deposed that on 23.07.2012 at about 11:00 PM after taking dinner they slept and in the intervening night on 23/24.07.2012 at about 22:15 AM (midnight) she heard the shouting of her mother Resham Rani who was calling her by name JyotiJyoti. According to the witness she woke up and rushed to the gallery and saw three boys running away from her house "ghar ke taraf se/ground floor se nikal kar bhag rahe thai". Witness has further deposed that one person was of fair complexion with small hair "gora tha aur uske baal chote chote thai, whereas the other persons were of thin stature and dusky/ sanwla complexion "sawle color ke thai aur patle se thai aur unki umar 2025 saal thi". According to the witness her husband also woke up and rushed downstairs by using the stairs which were inside the house and she followed her. Witness has further deposed that she found that her mother Resham Rani in an injured condition with stab injury of knife on her stomach and lot of blood in the room. According to the witness one pair of slippers and one towel with lines were found near the window and also the mesh of the window was found broken. She has St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 19 testified that her husband immediately called the police on which police came there and took his mother Resham Rani to BSA Hospital. According to the witness her husband also accompanied with the other neighbors and after some time her husband made a call to her and asked her to check the missing articles of the house. Witness has further deposed that she checked the house and found that the wrist watch of her father, 34 silver coins having symbols of Ganesh and Laxmi and Rs.1,000/ to Rs.1,200/ of pension money of her mother was missing on which she informed her husband immediately about these missing items. Witness has further deposed that one ear ring and one gold ring which her mother used to wear was found missing and her mother used to wear only one ear ring on account of the fact that her other ear was cut due to the weight of the ear ring and had not been stitched. She has testified that police conducted their proceedings at the spot and on their asking she again checked her house and she found that one gents purse under the clothes and the quilt on the chair and one voter I card, driving license, photographs were in the purse which were in the room of her mother. According to the witness, police sealed the purse with its contents in a cloth pullanda and sealed the same with the same and seized the same thereafter. She has also deposed that the police had lifted a large number of exhibits which included the blood stained gadda, bed sheet, curtain, chunni, piece of wood from window/ chaukhat, blood St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 20 stained earth, earth control etc. Witness has further deposed that the sniffer dogs had come to the house and the crime team/forensic team had also come and lifted blood stained finger prints/chance prints and also taken photographs of the room and area where the incident had taken place. She has proved the seizure memo of the purse left behind by the assailants and its contents was prepared by the police which is Ex.PW22/D. Witness has further deposed that G30/340 Sector 3 Rohini, Delhi was written on the documents found in the purse. According to the witness her mother was declared dead by the doctors. (17) She has further deposed that on 24.07.2012 postmortem was conducted on the body of her mother and at the evening time, the dead body was handed over to them and thereafter her statement was recorded by the police. The witness has correctly identified the accused Surender @ Rusy, Ravinder and accused Rajesh by pointing out towards them as the persons whom she had seen running away from her house. (18) She has also identified the case property i.e. purse containing RC, Voter I Card, driving license, two photos and some documents were released on superdari to Bishan Lal, S/o Parmanand R/o G30/340341, Sector 3, Rohini, on superdari of Rs.15,000/ from the photographs which are Ex.PW25/A1, Ex.PW25/A2, Ex.PW25/A3, PW25/A4, PW25/A5, Ex.PW25/A6, Ex.PW25/A7 and Ex.PW25/A8. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 21 (19) In her cross examination by Ld. Defence Counsels, witness has deposed that the staircase upto first floor are from outside the house and from first floor upto second floor they are built inside the house. According to the witness she had seen the accused running away when she opened the door to her gallery/ balcony. She is unable to tell the distance from which she had seen the accused persons running away and has voluntarily added that she had seen them running away when she was standing in the balcony which is on the second floor and must be around 20 feet in height. According to the witness she could see the accused clearly from the side though they were running away from her directions and has voluntarily added that they were running to one side and hence she could see their side faces. Witness has further deposed that she had given the details of the looks/ description of the accused persons to the police when her statement was recorded. She has testified that she did not go to the Police Station and police did not get any sketch prepared from her and has voluntarily added that she has identified the accused after about 1415 days of the incident when she was standing outside her house and she saw the police coming along with some persons when she identified them as assailants. She has also deposed that she was not going to the Police Station regularly to find out the fate of the present case and has voluntarily added that she was in a condition to go to the Police Station but the police officials were regularly in contact with her husband and kept them informed about the development. Witness has St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 22 denied the suggestion that it was only after the police showed the accused Surender @ Rusy, Ravinder and accused Rajesh to her and told her that they were the one who had killed her mother that she identified them as such and has voluntarily explained that she had identified the accused herself when they had come with the police near her house. Witness has denied the suggestion that after the arrest of the accused, she was called to the Police Station and shown the accused persons Surender @ Rusy, Ravinder and accused Rajesh after which the police tutored her to identify them as the assailants of her mother.
(20) She has admitted that she did not tell the police in her statement the details of the clothes which the assailants were wearing when she saw them running away and has voluntarily added that they were wearing some dark/black clothes but she did not tell the same to the police. According to the witness the electricity pole is hardly distance of about 15 feet from her house and has voluntarily added that there is a huge mercury light installed in the said pole from where there is sufficient light. Witness has admitted that she did not tell the police in her statement that accused were carrying some arms and has voluntarily explained that she could not see whether they were carrying anything in their hands because the entire event took place in a quick sequence. Witness has further deposed that the moment she and her husband had came downstairs simultaneously even the neighbors had St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 23 gathered and come on account of the shouting of her mother. She has also testified that there is no RWA in their area nor any chowkidar posted. According to the witness, Block G30, sector 3, Rohini is hardly five to ten minutes walking from her house but she cannot tell the area in kilometers and states that the main road which leads towards G30, Sector 3 is at a distance of hardly twothree minutes from her house. (21) Witness has further deposed that from the direction in which the accused persons were running, none of the neighbors had come and has voluntarily added that their house is situated in the middle of a square block and her mother's voice could be heard on the back side but not on the front side from where the accused had run away. Witness has admitted that no person followed the accused persons and has voluntarily added that by the time they came downstairs and the neighbors collected the accused had already run away. She has stated that the accused had run away/ escape at a great speed. She has testified that she searched the entire ground floor for the first time after she received the telephonic call from her husband regarding the missing articles. According to the witness she did not make any attempt before the receiving of the telephone call from her husband and has voluntarily explained that the police officials asked her not to touch anything. Witness has further deposed that she had shown the police the purse left behind by the assailants when the crime team had visited the spot and has voluntarily added that the police had asked her to check what articles were missing and when she lifted the St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 24 scattered articles from the chair in front of the almirah, the purse was found lying on the chair and she immediately brought this to the notice of the police that this does not belongs to them. She has admitted that the purse recovered at the spot is easily available in the market. (22) She has denied the suggestion that she has been planted as a witness by the prosecution much later due to which reason her statement was anti dated by the police or that she was planted as a false witness regarding the identification of the accused persons at the time of running from the spot. Witness has denied the suggestion that she was called up in the Police Station and asked by the Investigating Officer to identify the present accused person as the assailants in the present case or that the purse was planted later on by the police officials to as to connect the accused persons in the present case. She has also denied the suggestion that she has been made a false witness regarding the recovery of the said purse or that all the documentations were done much later which she signed later on at the instance of the police officials. (23) PW23 Pawan Kumar has proved that on 24.7.2012 he had identified the dead body of Smt. Resham Rani at BSA Hospital vide memo Ex.PW23/A and after postmortem they received the dead body vide memo Ex.PW22/L. (24) He has not been crossexamined by the Ld. Defence Counsels despite opportunity granted in this regard.
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 25 Witnesses of medical record:
(25) PW19 Dr. Manoj has deposed that on 24.07.2012 he was working as SR Surgery in BSA Hospital and on that day at about 3:15 AM patient Resham Rani was brought by her son in law S.P. Sateja with the alleged history of stabbing, one hour back as told by the patient herself by two unknown persons. According to the witness she was examined in the casualty vide MLC No. 3770/12 which is Ex.PW19/A and at that time, patient was conscious and oriented. Witness has further deposed that she was referred for SR Surgery for further management and examined her and on her local examination the following injuries were observed on her body part:
1. Two Stab Wounds over abdomen, one at the left iliac fossa about 3 x 1 cm with peritonial breach through which omentum coming out.
2. Stab Wound over left hypochondrium, size was about 5cm x 2cm, peritonial breach was not clear.
3. Wound at right Para Spinal region at base of neck and wound size is about 3cm x 1cm with 56 cm depth.
(26) Witness has further deposed that patient was planned for OT, despite all life saving procedures and CPR by Anaesthestis, patient declared dead at 4:30 AM and the above said MLC bears his signatures St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 26 at point A. According to the witness Death Summary report of above said patient was prepared by Dr. Manish under his supervision which is Ex.PW19/B. This witness was not cross examined by Ld. Defence Counsels, despite opportunity granted in this regard. (27) PW20 Dr. Manish has deposed that on 24.07.2012 he was working as DNB (Surgery) at BSA Hospital and on that day he prepared the Death Report of deceased Resham Rani who expired at their hospital which report is Ex.PW20/A. According to the witness as per his report, the cause of death was Cardio Respiratory arrest due to hemorrhagic shock following stab injury. He has proved having prepared the death summary report which is Ex.PW19/B. This witness was not cross examined by Ld. Defence counsel, despite opportunity granted in this regard.
(28) PW21 Sh. Surender Kumar Postmortem Technician, BSA Hospital, Forensic Department, Delhi has proved that on 24.07.2012 postmortem of Smt. Resham Rani was conducted vide PM report No. 408/2012 and he preserved the blood gauze of the deceased and sealed the same with the seal of the hospital after which he handed over the sealed blood gauze exhibit and sample seal to the Investigating Officer who seized the same vide seizure memo Ex.PW21/A. This witness was not cross examined by Ld. Defence counsel, despite opportunity granted in this regard.
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 27 (29) PW26 Dr. Vijay Dhankar has deposed that on 24.07.2012 between 5.30PM to 6.30PM he conducted the postmortem on the dead body of Smt. Resham Rani W/o Late Sh. Jagdish Lal on the request of Inspector Anil Kumar and the dead body was identified by Shishu Pal and Pawan Kumar. According to the witness the alleged history was that the deceased as assaulted by knife on 24.07.2012 at about 2.15AM at her house. The witness has proved that on external examination he found following injuries.
1. Incised Stab Wound 5.2cm x 1.5cm present over the left side of front of abdomen in the upper part. The injury is obliquely placed 12cm upper and outer to the umbilicus. The margins are clean cut and one angle is acute while the other is comparatively obtuse. The anterior abdominal wall is thick with wall fact visible to a depth of about 3cm.
2. Incised Stab Wound 3.4cm x 1.2cm present over the left side of front of abdomen in the lower part. The injury is obliquely placed 10cm below and outer to the umblicus and is 12cm below injury no1. The martins are clean cut and one angle is acute while the other is comparatively obtuse. The anterior abdominal wall is thick with wall for visible to a depth of about 3cm.
3. Incised Stab Wound 3.5cm long present over the back of lower part of neck. The injury is horizontally placed with opposed St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 28 margins. The margins are clean cut and both angles appearing acute.
4. Abrasion 2.5cm x 0.5cm curved shape present over the left inguinal region of the front of abdomen.
(30) According to the witness on internal examination he found cut in the mesentarony of small intestine corresponding with the external injury no.1. He has proved that the death was due to hemorrhagic shock consequent to penetrating injury to the abdomen and neck via injury no. 1 to 3 and all injuries were antemortem, fresh at the time of death and injury no.1 individually as well as combined with injury no. 2 to 3 are sufficient to cause death in the ordinary course of nature, though death could have been prevented by medical treatment. He has proved his detailed report which is Ex.PW26/A. He has testified that after postmortem he handed over 14 inquest papers, sealed blood on gauze of the deceased and sample seal of the department to the Police. (31) The witness has further deposed that on 23.8.2012 he received one sealed pullanda with the seal of VJ for subsequent opinion and on opening the pullanda he found a buttondar knife and he prepared the schematic diagram of the knife and took the measurements of the same which he mentioned in the diagram. According to the witness after examining the postmortem report Ex.PW26/A and the knife, he gave his St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 29 subsequent opinion that the injures mentioned in the Postmortem Report could be caused by the weapon examined by him which subsequent opinion in this regard is Ex.PW26/B. According to the witness thereafter he resealed the knife in a cloth pullanda with the seal of Department and handed over the same to the police along with sample seal. He has correctly identified a knife as the same which he has examined which knife is Ex.P11.
(32) This witness was not cross examined by Ld. Defence counsel, despite opportunity granted in this regard.
(33) PW27 Dr. Bhavana Jain has deposed that on 24.07.2012 at about 3:15 AM, patient namely Resham Rani W/o Late Sh. Jagdish, aged 65 years, R/o D/17/252, Sector 3, Rohini, Delhi, brought by HC Rajbir, with alleged history of stab injury approximately one hour back by two unknown persons, as stated by patient herself. According to the witness she medically examined the patient and started resuscitative treatment and referred to patient to senior resident Surgery for further examination treatment and opinion vide MLC No. B3770 which is Ex.PW19/A and his observations are present on bracketed portion X to X1. Witness has further deposed that patient's clothes collected, sealed and were handed over to the Investigating Officer. (34) This witness was not cross examined by Ld. Defence counsel, despite opportunity granted in this regard.
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 30 FSL Experts:
(35) PW16 Sh. Indresh Kumar Mishra, SSO (Biology) has deposed that on 24.07.2012 on request of Inspector Anil Kumar Police Station South Rohini, he examined the scene of crime i.e. D17/252, Ground Floor, Sector 3, Rohini, Delhi. According to the witness the scene of crime was thoroughly examined for the presence of blood and other biological clue materials before Inspector Anil Kumar and other police officials. Witness has further deposed that blood was detected on the floor before the gate, on the floor of the drawing room, two bed sheets, one chunni, one mattress lying on the bed and wooden portion of the window. According to the witness Inspector Anil Kumar was advised to forward the above mentioned blood stains prepared from the floor before the gate, blood stains prepared from the floor of the drawing room, two bed sheets, chunni, blood stained cutting of the mattress and wooden portion of the window to FSL for further examination. He has proved his detailed report in this regard which is Ex.PW16/A. This witness was not cross examined by Ld. Defence counsel, despite opportunity granted in this regard.
(36) PW17 Sh. Naresh Kumar, SSO (Biology) has deposed that on 27.09.2012, 14 sealed parcels, sealed with the seal of as mentioned in the forwarding letter were received in the FSL in the present case.
According to the witness at the time of opening the parcels, seals were St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 31 compared with the specimen seal and found intact. Witness has further deposed that contents of the parcels were examined and exhibits were marked as mentioned in the report. According to the witness on biological examination blood was detected on exhibit 1a, 1b, 2, 3, 4, 5, 6, 8, 9, 10, 12a, 12b, 12c, 13 and 14 and blood could not be detected on exhibit 7 and
11. Witness has further deposed that on serological examination human blood was found on the exhibits and blood group A was ascertain on exhibit 1a, 1b, 3, 5, 6, 8, 10, 12a, 12b, 12c, 13 and 14. According to the witness after examination parcels were resealed with the seal of NK FSL DELHI. He has proved the detailed biological report which is Ex.PW17/A and serological report which is Ex.PW17/B. (37) Sh. Naresh Kumar (PW17) Senior Scientific Officer (Biology) has been recalled for further examination wherein he has proved that on 21.9.2012 sixteen sealed parcels sealed with the seal as mentioned in the forwarding letter were received in the office of the FSL Rohini in case FIR No. 152/2012 Police Station South Rohini. He has proved having examined the exhibits biologically and on examination the contents of the exhibits, blood was detected on all the exhibits. He has proved his biological report which is Ex.PW17/C. He has also proved that he examined the exhibits serologically and Blood Group 'B' was found on Ex.3 (blood gauze), Ex.4 (blood stained gauze), Ex.5 (blood stained gauze), Ex.8b (peticot), Ex.9a (baniyan), Ex.9b (payjama), Ex.10a (baniyan), Ex.10 b (shirt), Ex.12 (knife), Ex.13a (Tshirt), Ex.13b (jeans St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 32 pant) and Ex.16 (blood stained gauze) and blood group "A" was found on Ex.14a (T shirt), Ex.14b (jeans pant) Ex.15a (Tshirt) and Ex.15b (jeans pant) whereas Human Blood was detected on Ex.1 (blood stained earth), Ex.2 (concrete piece), Ex.6 (cotton wool swab), Ex.7 (Handkerchief), Ex. 8a (blouse) and Ex.11 (Knife). He has proved the serological examination report in this regard which is Ex.PW17/D. This witness was not cross examined by Ld. Defence counsel, despite opportunity granted in this regard.
(38) PW18 Sh. Parshuram Singh, Assistant Director (Physics) has proved that on 24.07.2012 he along with Sh. Indresh Kumar Mishra, SSO (Biology) visited the scene of crime i.e. D17/252, Sector 3, Rohini, Delhi where the scene was examined and following observations were made :.
1. The place of occurrence was on the ground floor of the building which consists of one room in front portion, a kitchen area in the middle portion and inner area.
2. There was a window in the front portion of first room. In upper portion of window an AIR conditioner was fixed. In lower portion of window mesh was fixed from outside. The iron mesh was found partially removed. Some impressions marks observed on the frame of the window. On examination of the window, it was found that the mesh was removed from outside.
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 33
3. Dark brown stains was observed on the lower portion of the window frame.
4. Blood like stains were observed on the bed sheet and also on the floor.
5. No breakage, bending or striking marks on the locking system and latch of the door of the entrance were observed.
(39) He has proved having prepared his detailed report in this regard which is Ex.PW18/A. Police/ Official witnesses:
(40) PW1 SI Anil is a formal witness being the Crime Team Incharge who has been examined by way of affidavit Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having prepared the Crime Team Report which is Ex.PW1/A. (41) In his cross examination by the Ld. Defence Counsels the witness has admitted that whatever incriminating articles connected to case were recovered at the spot, he advised the Investigating Officer Inspector Anil Kumar to take same into possession. Witness has admitted that as per the matter of procedure whatever incriminating articles is recovered in his possession, the details of the same are mentioned in the record.
(42) PW2 Ct. Manoj is a formal witness being the Crime Team Photographer who has been examined by way of affidavit Ex.PW2/1 (as St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 34 per the provisions of Section 296 Cr.P.C.) wherein he has proved having taken visited the scene of crime and having taken the photographs Ex.PW2/A1 to Ex.PW2/A17 and negatives of the same are collectively Ex.PW2/B. This witness was not cross examined by Ld. Defence counsel, despite opportunity granted in this regard.
(43) PW3 HC Satish is a formal witness being the Finger Print Proficient who has been examined by way of affidavit Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having visited the scene of crime and took chance prints from the spot. This witness was not cross examined by Ld. Defence counsel, despite opportunity granted in this regard.
(44) PW4 HC Narender is a formal witness being the Duty Officer who has been examined by way of affidavit Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having registered the FIR No. 153/12 copy of which is Ex.PW4/A and having made his endorsement on the rukka which is Ex.PW4/B. (45) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that the FIR was anti dated.
(46) PW5 Ct. Mahendra is a formal witness being the Computer Operator who has been examined by way of affidavit Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that he fed the original rukka in the computer and recorded the FIR in the present St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 35 case. He has proved the Certificate U/s 65(B) Indian Evidence Act which is Ex.PW5/A. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard.
(47) PW6 Ct. Sanjay is a formal witness who has been examined by way of affidavit Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 24.7.2012 the Investigating Officer handed over to him a rukka on which he reached the Police Station and handed over the rukka to the Duty Officer and after registration of FIR he reached the place of occurrence and handed over the copy of FIR and original rukka to the Investigating Officer. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard.
(48) PW7 Ct. Umesh is a formal witness who has been examined by way of affidavit Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the arrest memo of accused Ravinder @ Tunda which is Ex.PW7/A, his disclosure statement which is Ex.PW7/B;
arrest memo of accused Mahesh @ Chikna Kalia which is Ex.PW7/C, his disclosure statement which is Ex.PW7/D; arrest memo of accused Rajesh @ Tinku @ Kanta which is Ex.PW7/E, his disclosure statement which is Ex.PW7/F; arrest memo of accused Rusy @ Surender which is Ex.PW7/G and his disclosure statement Ex.PW7/H. This witness was not cross examined by Ld. Defence counsel, despite being granted an St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 36 opportunity in this regard.
(49) PW8 HC Ram Parvesh is a formal witness being the Duty Constable at BSA Hospital who has been examined by way of affidavit Ex.PW8/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 24.7.201 the Investigating Officer had taken the pullanda of clothes of the injured into possession. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard.
(50) PW9 SI Manohar Lal is a formal witness being the Draftsman who has been examined by way of affidavit Ex.PW9/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having prepared the scaled site plan which is Ex.PW9/A. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard.
(51) PW10 Sh. Sushil Kumar is a formal witness being the Finger Print Expert who has been examined by way of affidavit Ex.PW10/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 18.10.2012 he received the scene of crime examination report, photographs of chance prints and a request letter from SHO South Rohini. He has proved having prepared the Finger Print Examination Report which is Ex.PW10/A. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 37 (52) PW11 Ct. Arvind is a formal witness who has been examined by way of affidavit Ex.PW11/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 27.09.2012 he had taken the exhibits of this case from the MHCM vide RC No. 130/21/12 copy of which is Ex.PW11/A and deposited the same in the FSL vide receipt which is Ex.PW11/B. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard. (53) PW12 HC Raj Kumar is a formal witness who has been examined by way of affidavit Ex.PW12/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 18.8.2012 he took the exhibits containing the weapon of offence from the MHCM vide RC No. 85/21/12 copy of which is Ex.PW12/A and deposited the same at Mortuary BSA Hospital vide receipt Ex.PW12/B. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard.
(54) PW13 Ct. Vishram is a formal witness being the Special Messenger who has been examined by way of affidavit Ex.PW13/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having supplied the copies of FIR to the senior officers and the Ld. MM. (55) In his cross examination by Ld. Defence counsel, witness has deposed that he had delivered the copy of the FIR to the Ld. MM at 10:00 AM on 24.07.2012. Witness has denied the suggestion that he handed St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 38 over the copy of the FIR to the Ld. MM on 25.07.2012 i.e. next day of the incident and has voluntarily added that he had made his departure entry int he Police Station in the form of DD No. 15A on 24.07.2012 after which he had gone to the court and delivered the copy to the Ld. MM. (56) PW14 Ct. Ram Sewak is a formal witness being the PCR official who has been examined by way of affidavit Ex.PW14/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the PCR Form which is Ex.PW14/A. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard. (57) PW15 Ct. Amar is a formal witness who has been examined by way of affidavit Ex.PW51/1(as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 24.7.2012 on receipt of information he along with ASI Surender reached the spot of incident where he preserved the scene of crime. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard. (58) PW24 Sh. Dharmender Sehrawat, Ahlmad in the court of Sh. Rajneesh Bhatnagar, ASJII, North, Rohini has brought the summoned record i.e. case FIR No. 152/12 PS South Rohini titled State Vs. Rusy @ Surender under Section 302/460/396/380/457/34 IPC. He has placed on record the copy of arrest memo of accused Mahesh which is Ex.PW24/A; copy of arrest memo of accused Rajesh @ Tinku which is Ex.PW24/B; copy of arrest memo of accused Ravinder @ Tunda which is Ex.PW24/C; St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 39 copy of arrest memo of accused Rusy @ Surender is Ex.PW24/D; copy of personal search memo of accused Mahesh which is Ex.PW24/E; copy of personal search memo of accused Rajesh @ Tinku which is Ex.PW24/F; copy of personal search memo of accused Ravinder @ Tunda which is Ex.PW24/G; copy of personal search memo of accused Rusy @ Surender is Ex.PW24/H; copy of disclosure statement of accused Mahesh which is Ex.PW24/I; copy of disclosure statement of accused Rajesh @ Tinku which is Ex.PW24/J; copy of disclosure statement of accused Ravinder @ Tunda which is Ex.PW24/K; copy of disclosure statement of accused Rusy @ Surender is Ex.PW24/L; copy of seizure memo of buttondar knife recovered from accused Rajesh @ Tinku which is Ex.PW24/M; copy of seizure memo of buttondar knife recovered from accused Ravinder @ Tunda which is Ex.PW24/N; copy of seizure memo of iron rod which is Ex.PW24/O and copy of seizure memo of iron rod which is Ex.PW24/P. This witness was not cross examined by Ld. Defence counsel, despite an opportunity being granted in this regard. (59) PW28 HC Virender is a formal witness being the MHCM who has been examined by way of affidavit Ex.PW28/1(as per the provisions of Section 296 Cr.P.C.) wherein he has proved entry in register No. 19 vide Mud No. 3716/12 dated 24.07.2012 copy of which is Ex.PW28/A; copy of Mud No. 3717 dated 25.07.2012 which is Ex.PW28/B, entry in register No. 21 vide RC No. 85/21/12, RC No. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 40 130/21/12, copies of which are Ex.PW12/A and Ex.PW11/A respectively and FSL Receipt copies of which are Ex.PW12/B and Ex.PW11/B respectively. He has also proved the copy of Mud No. 3772 dated 28.08.2012, copy of which is Ex.PW28/C. (60) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that he has fabricated the entries on the directions of the Investigating Officer later on or that the case property was tampered during its possession with him.
(61) PW29 ASI Surender has deposed that in the intervening night of 23/24.07.2012 he was posted at Police Station South Rohini and was on emergency duty from 8PM to 8AM. According to the witness on that day at about 2:45 AM after receiving DD No. 4B through telephone, he along with Ct. Amar reached at B16/252, Sector 3, Rohini, Delhi where he found large number of blood lying in and outside the place of spot of incident. Witness has further deposed that after some time Inspector Anil Kumar along with SI Ravi Kumar and Ct. Sanjay reached the spot and inspected the spot of incident and came to know that injured Resham Rani has been shifted to Dr. BSA hospital through PCR Van. According to the witness, he along with Inspector Anil Kumar, SI Ravi Kumar and Ct. Sanjay reached at the BSA Hospital while leaving Ct. Amar at the spot to preserve the same. He has testified that Inspector Anil Kumar collected the MLC of the injured on which the patient was opined to be unfit for statement. Witness has further deposed that there they met St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 41 son in law (damad) namely Sishu Pal of the injured Resham Rani who informed them regarding the death of the injured and Duty Constable HC Ram Parvesh handed over the sealed pullanda of clothes of the deceased to him on which the Investigating Officer prepared the seizure memo of the same vide Ex.PW29/A. Witness has also deposed that Inspector Anil Kumar recorded the statement of Shishu Pal in the hospital and converted the same into tehrir by making his endorsement on the same and handed over to Ct. Sanjay with the directions to take the same to the Police Station for getting the FIR registered. According to the witness Inspector Anil Kumar thereafter collected the death report and death summary of the deceased and directed him (witness) to get preserved the dead body of the deceased for 72 hours. The witness has proved that he gave a request to the Incharge Mortuary to preserve the dead body for conducting the postmortem and thereafter he along with Inspector Anil Kumar, SI Ravi and Shishu Pal reached the spot of the incident where Crime Team was already present. Witness has further deposed that Inspector Anil got the scene of crime photographed and got inspected the scene of crime and Ct. Sanjay returned to the spot of incident along with copy of FIR and original rukka and handed over the same to Inspector Anil Kumar. According to him, they also found daughter of the deceased namely Jyoti at the spot and Investigating Officer Inspector Anil Kumar directed her to conduct the formal search of their house as if anything was found missing from their house. He has testified that thereafter Jyoti conducted the St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 42 search of her house and found that one purse was lying on the chair under the clothes and informed the Investigating Officer that this purse did not belong to them. The witness has also deposed that the Investigating Officer then got photographed the said purse from Crime Team photographer and on checking the said purse one RC, one ID proof and one duplicate driving licence were found.
(62) Witness has further deposed that thereafter Investigating Officer converted the same into pullanda with the help of cloth and sealed the same with the seal of RK and thereafter Investigating Officer lifted the blood lying outside the house with the help of cotton and put the same in the plastic jar and sealed the same with the seal of RK. According to the witness Investigating Officer also lifted the blood stained earth control and sample earth control and put the same into different plastic containers and sealed the same with the seal of RK. The Investigating Officer lifted the blood lying inside the house with the help of cotton and put the same in the plastic jar and sealed the same with the seal of RK and Investigating Officer also lifted the blood stained earth control and sample earth control and put the same into different plastic containers and sealed the same with the seal of RK and given different numbers to all above said containers. Witness has further deposed that Investigating Officer also lifted the chappals from the spot and converted the same into pullanda with the help of cloth and sealed the same with the seal of RK and Investigating Officer also lifted one towel of green color which was found lying on slab inside St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 43 the house and prepared the pullanda of the same with the help of cloth and sealed the same with the seal of RK and Investigating Officer also took the foot prints marks on the seat cover of the scootey lying outside the house. According to the witness the same was cut by the Investigating Officer and was taken into possession by putting the same in a wooden box and sealed the same with the seal of RK and thereafter Investigating Officer also taken into possession the piece of bed sheet which was blood stained and piece of blood stained chunni which was also lying on the bed and converted both into pullanda with the help of cloth and sealed with the seal of RK. Witness has further deposed that after some time FSL team reached the spot of incident who lifted blood with the help of cotton, from outside the house and from inside the house and converted the same into brown color envelope and sealed the same with the seal of RK and FSL team also lifted the sample of blood stained bed sheet and sample of chunni and put the same in the brown color envelope and sealed the same with the seal of RK. Witness has further deposed that thereafter Investigating Officer taken into possession the remaining bed sheet and remaining part of chunni with the help of cloth and sealed the same with the seal of RK and Investigating Officer thereafter took the sample of blood stained part of chaukhat and converted the same into pullanda with the help of cloth and sealed the same with the seal of RK. According to the witness the seal after use was handed over to SI Ravi Kumar at the spot itself. Witness has further deposed that in the meanwhile Dog Squad St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 44 Team reached the spot who also inspected the scene of crime. According to the witness Investigating Officer thereafter seized all the above said articles. He has proved the seizure memo of foot prints which is Ex.PW22/C, the seizure memo of Towel which is Ex.PW22/E, the seizure memo of blood gauze sample and earth control which is Ex.PW22/F, the seizure memo of blood stained bed sheet and chunni which is Ex.PW22/G, the seizure memo of blood stained wooden chaukhat which is Ex.PW22/H, the seizure memo of blood sample which is Ex.PW22/I and the seizure memo of pair of chappals which is Ex.PW22/J. He has testified that thereafter the inquest proceedings were carried out by the Investigating Officer who took the relatives of the deceased to the BSA Hospital for getting the postmortem conducted and after the postmortem the dead body of the deceased was handed over to the relatives and his statement was recorded in the hospital. According to the witness thereafter he along with Investigating Officer went to Crime Team Office and thereafter returned back to the Police Station where case property was deposited in the malkhana.
(63) With the permission of the Court, leading questions were put by Ld. Addl. PP for the State to the witness who has admitted that the purse was containing one original RC of motorcycle No. DL8SAQ1008 in the name of Dalip Kumar, one voter ID card of Dalip Kumar, one copy of driving licence of Prem Chand and some other papers which were St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 45 seized by the Investigating Officer vide seizure memo Ex.PW22/D. (64) The witness has correctly identified the case property i.e. two bed sheets which are Ex.P4 & Ex.P5, chunni is Ex.P6; wooden piece of chaukhat which is Ex.P7; one towel of green color which is Ex.P9; one pair of slippers of G Star which are collectively Ex.P10; seat cover of scooty which is Ex.P11A (wrongly mentioned as Ex.P11 since Ex.P11 is the knife which had been allegedly recovered from the accused Rajesh); purse containing RC, voter ID Card, driving licence, two photographs and some documents were released on superdari to Bishan Lal, S/o Parmanand, R/o G30/340341, Sector 3, Rohini, on superdari of Rs 15,000/ from the photographs Ex.PW25/A1, Ex.PW25/A2, Ex.PW25/A3, PW25/A4, Ex.PW25/A5, Ex.PW25/A6, Ex.PW25/A7 and Ex.PW25/A8.
(65) In his cross examination by Ld. Defence Counsels, the witness has deposed that he along with Ct. Amar reached at the spot by his personal motorcycle make Hero Honda of red color bearing No. 4950 whose complete number he does not recollect. According to the witness the spot in question is ground floor and the blood was lying outside as well as inside the house. Witness has further deposed that he reached the spot at about 3:00 AM whereas Inspector Anil Kumar reached the spot with other staff within five minutes of his reaching there. He has testified that they reached the BSA hospital at about 3:30 AM in a government St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 46 gypsy which was being driven by Ct. Sanjay. According to the witness Ct. Sanjay took the tehrir to the Police Station at about 4:30 AM and reached back at the spot along with copy of the FIR and original tehrir at about 6 AM. He has testified that except statement of Shishu Pal, no other statement was recorded by the Investigating Officer in the hospital. Witness has further deposed that they reached the spot at about 4:30 AM but he does not recollect how many members of the crime team were present at the spot and has voluntarily added that only the Investigating Officer could tell. According to the witness at the time of recording the statement of Jyoti Shishu Pal was present but no other family member was present there. He has also deposed that twothree public persons were present at the outside of the house but he cannot tell their names and no public persons were joined in the investigations neither their statements were recorded. He does not recollect the color of the purse but the same was of leather and he left the spot at about 9AM. Witness has denied the suggestion that he never visited the place of incident or that all the case property were seized later on by the Investigating Officer or that his signatures were obtained on the seizure memos later on while sitting in the Police Station. Witness has also denied the suggestion that the purse was planted along with the documents upon the accused persons while sitting in the Police Station to connect them in the present case or that Inspector Anil Kumar was not present at the spot and this is the reason that all the seizure memos were prepared with the seal of RK. Witness St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 47 has denied the suggestion that the statement of the complainant Jyoti was written later on or that the FIR was ante timed and this is the reason the brief facts does not contain the number of accused involved in the present case.
(66) PW30 SI Mohd. Imteyaz Alam has joined the investigations along with Investigating Officer in case FIR No.152/2012, PS South Rohini relating to same set of accused. It has been observed by this Court that the statement of this witness under Section 161 Cr.P.C. is not a part of the charge sheet and has been permitted to be taken on record along with the copies which were handed over to the Ld. Defence Counsels who then crossexamined the witness.
(67) The witness has further deposed that on 25.07.2012 he was posted at Police Station South Rohini and on that day he was assisting the Investigating Officer of the FIR No. 152/12 U/s 302/34 IPC of Police Station South Rohini. According to the witness during the investigations, they searched the accused persons involved in that case and along with Investigating Officer interrogated several suspects regarding their involvement in FIR No. 152/12 and thereafter they met complainant in case FIR No. 152/12. Witness has further deposed that the complainant in the present case gave the physical description of the accused persons in the present case and thereafter Investigating Officer of the case FIR No. 152/12 called the beat staff and give the description regarding the assailants and they all tried to search for the assailants. According to the St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 48 witness when they reached near park of H32, Sector 3, Rohini, Ct. Raj Kumar met them and informed that three persons whose features were matching with the suspects were present in the said park on which they covered the park and caught three persons and on interrogation. He has testified that the the name of the person who was apprehended by him was came to know as Rusy @ Surender, the name of the person who was apprehended by SI Avdesh was known to be Rajesh @ Tinku and the name of the third person who was apprehended by Inspector V.N. Jha was came to know as Ravinder @ Tunda. According to the witness thereafter their formal search was conducted and from the possession of Surender one iron rod, two ATM cards, one silver type metal coin were recovered; from the possession of Rajesh one silver metal coin, one knife were recovered and from the possession of Ravinder one knife and one silver metal coin were recovered. Witness has further deposed that Investigating Officer thereafter arrested all the accused persons. He has proved the arrest memo of accused Rusy @ Surender which is Ex.PW24/D, arrest memo of accused Rajesh @ Tinku which is Ex.PW24/B, arrest memo of accused Ravinder @ Tunda which is Ex.PW24/C and their personal search were also conducted vide memos Ex.PW24/H, Ex.PW24/F and Ex.PW24/G. Witness has further deposed that thereafter Investigating Officer Inspector V.N. Jha converted all the articles into different pullandas with the help of plastic container and sealed with the seal VJ St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 49 and thereafter seized the same and the seizure memo of Iron rod recovered from the possession of accused Rusy @ Surender is Ex.PW24/P, seizure memo of knife recovered from the possession of accused Ravinder @ Tunda is Ex.PW24/N, seizure memo of knife recovered from the possession of accused Rajesh @ Tinku is Ex.PW24/M. He has also proved the seizure memo of silver coin recovered from the possession of accused Rusy @ Surender which is Ex.PW30/A, seizure memo of silver coin recovered from the possession of accused Ravinder @ Tunda which is Ex.PW30/B; seizure memo of silver coin recovered from the possession of accused Rajesh @ Tinku which is Ex.PW30/C. Witness has also deposed that Investigating Officer interrogated all three persons who disclosed their involvement in the case FIR No.152/12 and thereafter Investigating Officer also recorded their disclosure statements. He has proved the disclosure statement of accused Rusy @ Surender which is Ex.PW24/L, disclosure statement of accused Rajesh @ Tinku which is Ex.PW24/J and disclosure statement of accused Ravinder @ Tunda which is Ex.PW24/K. Witness has also deposed that thereafter all the accused were taken to BSA hospital for their medical examination. He has testified that during interrogation the accused persons also disclosed that there were two more assailants who were involved with them in that case and they can be apprehended. The witness has further deposed that after the medical examination of the accused persons they tried to search for St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 50 other accused persons. According to the witness the accused persons led them to near gate of BSA hospital where two boys were found standing and all the three accused persons pointed out towards them as their associates who were also involved in the incident of case FIR No. 152/12. Witness has further deposed that on their pointing out he apprehended one boy whose name on interrogation came to known as Chikna @ Kalia and the other boy was apprehended by SI Avdesh whose name on interrogation came to know as Amit @ Gora who disclosed his age as 1617 years. The witness has proved that thereafter the Investigating Officer arrested the accused Mahesh @ Chikna Kalia vide memo Ex.PW24/A, his personal search was conducted vide memo Ex.PW24/E and his disclosure statement was also recorded vide memo Ex.PW24/I. He has testified that thereafter medical examination of Chikna @ Kalia and Amit @ Gora were also got conducted at BSA Hospital and on interrogation all the accused persons disclosed that the clothes which were worn by them at the time of incident were hidden by them in the bushes of the park inside the BSA Hospital. According to him thereafter the accused persons led them to the said park and got recovered their clothes which were found to be blood stained after which the Investigating Officer converted those clothes into pullanda and were sealed with the seal of VJ and given mark BSC1 of accused Ravinder, mark BSC2 of accused Rajesh @ Tinku and mark BSC3 of accused Rusy @ Surender were taken into possession. He has proved that the Investigating Officer then seized the same vide seizure St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 51 memo Ex.PW30/D1 to Ex.PW30/D3. Witness has further deposed that thereafter accused persons led them to the house where they had committed the robbery i.e. G30/340341, Sector 3, Rohini, Delhi and Investigating Officer thereafter prepared the site plan of place of recovery which is Ex.PW30/E. According to him, the juvenile Amit @ Gora was handed over to SI Ravi who conducted the proceedings in his regard. He has also deposed that thereafter all the remaining accused persons were produced before the Ld. Illaka Magistrate and were remanded to Judicial Custody. According to him, thereafter they returned to the Police Station where the seized articles were deposited in the Malkhana and his statement was recorded by the Investigating Officer. (68) The witness has correctly identified the accused Rusy @ Surender, Rajesh @ Tinku, Ravinder @ Tuna and Mahesh @ Chikna Kaliya in the court. He has also identified the silver coins, one of the which is having symbol of Radha Krishna and the other two having the symbol of Laxmi Ganesh as the same which were recovered from the possession of accused persons which silver coins are Ex.P1, Ex.P2 and Ex.P3; knife recovered from the possession of accused Rajesh @ Tinku which is Ex.P11; buttondar knife recovered from the possession of accused Ravinder @ Tunda which is Ex.P12; one white Tshirt having brown stains, one black jeans pant having brown stains belonging to the accused Ravinder @ Tunda which are collectively Ex.P13; one blue T St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 52 shirt having brown stains, one light blue jeans pant having brown stains belonging to the accused Rajesh @ Tinku. Same which are collectively Ex.P14; one black color Tshirt having brown stains, one black jeans pant having brown stains belonging to the accused Rusy @ Surender which are collectively Ex.P15.
(69) In his crossexamination by the Ld. Defence Counsels the witness has admitted that on the intervening night of 23/24.07.2012 two FIR were registered of similar nature and similar section in Police Station South Rohini. According to the witness both the cases i.e. FIR No. 152/12 and 153/12 Police Station South Rohini remained unsolved till 26.07.2012 and were blind cases. He has deposed that no sketch was got prepared at the instance of the complainant and her father in FIR No.152/12 by the Investigating Officer or by him. Witness has also admitted that the physical description of the accused persons as narrated by the complainant and her father in FIR No. 152/12 is not stated in his statement U/s 161 Cr.P.C. Witness has further deposed that at the time when the physical description of the accused persons were narrated he along with SI Avdesh Kumar and Investigating Officer were present. According to him, they did not make any DD entry regarding the passing of information or regarding the physical description of accused persons as narrated by the complainant/ eye witness. He has testified that the height of the boundary wall of H32 Park where the accused persons were apprehended was of twothree feet and after that there is a iron grill. Witness has admitted that St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 53 if someone is standing adjacent to the boundary wall he can see each and every corner of the park from where the accused persons were apprehended. He has also admitted that during entire investigations in FIR No.152/12 he remained in investigations along with Inspector V. N. Jha. He has also admitted that in his statement U/s 161 Cr.P.C. Ex.PW30/DX1 he has not stated the fact of involvement of accused person in case FIR No. 153/12 Police Station South Rohini and the place of incident in FIR No. 153/12 Police Station South Rohini. The witness has further admitted that the sketch memo of the two knives recovered from the accused person in FIR No. 152/12 Police Station South Rohini does not depict blood stains in it. Witness has further deposed that many persons were present at the time when the blood stained clothes were recovered at the instance of accused persons. He has testified that the accused were arrested in the H32 Park where the arrest memo of concerned accused persons were made and immediately after that the disclosure statement of the accused persons were recorded. Witness has denied the suggestion that in his statement Ex.PW30/DX1 from point A to A it has been mentioned that the sustained interrogation of the accused took place after return from BSA Hospital but the witness has voluntarily explained that the interrogation was done before they had taken him to hospital. The witness has also deposed that they reached at BSA hospital at about 10:00 AM and the accused Mahesh was arrested at about 10:3010:45 AM and they left BSA Hospital at about 11:30 PM. He has St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 54 denied the suggestion that the disclosure statements of accused persons were false and fabricated while sitting in the Police Station after due deliberation and consultation of senior officers and Investigating Officer of FIR No.153/12 and FIR No.152/12 of Police Station South Rohini only to work out the said cases. Witness has denied the suggestion that accused persons have been falsely implicated in the present case to solve the blind cases or that nothing was recovered at the instance of the accused persons. He has also denied the suggestion that the accused persons were not apprehended in the manner narrated by him in the court or that none of the public persons were joined in the investigations as all the paper work were done while sitting in the Police Station. Witness has further denied the suggestion that the blood was planted upon the knives while sitting in the Police Station.
(70) PW31 SI Avdesh has deposed that on 25.07.2012 he was posted at Police Station South Rohini and on that day he had joined the investigations along with Investigating Officer in case FIR No. 152/12 and SI Imteyaz Alam and HC Rajesh were also with them in the investigations. According to the witness on that day they made the search of the accused persons but could not find them and thereafter they contacted complainant and asked from him about the description of the accused persons wanted in case FIR No. 152/12. He has testified that thereafter Investigating Officer Inspector V.N. Jha called all the beat staff and informed them about the description of the accused persons as told by the complainant St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 55 and were directed to perform the duty carefully. Witness has further deposed that thereafter they reached at H32 park, Sector 3, Rohini, Delhi where Ct. Raj Kumar met them who informed to Inspector V.N. Jha that the description which are explained to them, three persons of similar features were sitting in the park. According to him, pursuant to the said information Inspector V.N. Jha formed a raiding party comprising of SI Mohd. Imteyaz, himself and Ct. Raj Kumar and reached in the park at about 9:3010 PM. He has testified that thereafter accused Rusy @ Surender was apprehended by SI Mohd. Imetyaz and Ct. Raj Kumar whereas he (witness) apprehended accused Rajesh @ Tinku and the accused Ravinder @ Tunda was apprehended by Inspector V.N. Jha. Witness has further deposed that thereafter all the three accused persons were apprehended and they were interrogated after which they were arrested in case FIR No.152/12. He has proved the disclosure statement of accused Rusy which is Ex.PW24/L, disclosure statement of accused Ravinder @ Tunda which is Ex.PW24/K and disclosure statement of accused Rajesh @ Tinku which is Ex.PW24/J. According to the witness when formal search of the accused persons were carried out, from the formal search of accused Rajesh a buttondar knife was recovered and Investigating Officer prepared the sketch of the knife which is Ex.PW31/A and took the measurements of the knife. He has explained that the length of the blade was 15 cm, width of the blade was 3 cm and St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 56 total length of the knife was 32 cm and the said knife was given serial No. K1 after which the Investigating Officer converted the same into pullanda and sealed with the seal of VJ and taken into possession vide memo Ex.PW31/B. Witness has further deposed that thereafter from the search of accused Rusy a coin of silver type was recovered which coin was converted into pullanda in a plastic dibbi and was sealed with the seal of VJ and was marked as SC1 after which plastic dibbi was sealed with the seal of doctor tape and thereafter the same was taken into possession vide memo Ex.PW30/A. He has testified that from the search of accused Ravinder a coin of silver type was also recovered which coin was converted into pullanda in a plastic dibbi which was sealed with the seal of VJ and was marked as SC2 after which the plastic dibbi was sealed with the seal of doctor tape and thereafter the same was taken into possession vide memo Ex.PW30/B. According to him, from the search of accused Rajesh @ Tinku a coin of silver type was also recovered which coin was converted into pullanda in a plastic dibbi which was sealed with the seal of VJ and was marked as SC3 and plastic dibbi was sealed with the seal of doctor tape after which it was taken into possession vide memo Ex.PW30/C. He has also deposed that thereafter they made the search of other accused persons but on that day on other accused were arrested and thereafter at about 2:30 AM accused persons were got medically examined. The witness has further deposed that thereafter accused persons disclosed that other two accused persons involved in the present St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 57 case may be found available in BSA hospital in the morning hours as usually they used to came there. Witness has further deposed that thereafter they started waiting for the movement in BSA Hospital and at about 10:00 AM other accused namely Mahesh @ Chikna Kalia and Amit @ Gora (since juvenile) were apprehended at the instance of other accused persons. He has testified that the accused Mahesh @ Chikna also made his disclosure statement which is Ex.PW24/I and thereafter accused Ravinder @ Tunda, Rajesh @ Tinku, Rusy @ Surender got recovered their blood stained clothes which they had buried behind BSA Hospital. Witness has further deposed that the blood stained clothes of the above said accused persons were converted into pullandas and were sealed with the seal of VJ and given serial No. BSC1, BSC2 and BSC3 respectively and were taken into possession vide memos Ex.PW30/D1 to Ex.PW30/D3 respectively. According to the witness the seal after use was handed over to SI Imetyaz and he carried out the proceedings in respect of coaccused Juvenile. The witness has also deposed that thereafter accused persons pointed out the place of incident in respect of FIR No. 152/12. He has also deposed that during investigations accused Ravinder also got recovered a knife on which the Investigating Officer prepared the sketch of the knife which is Ex.PW31/C and took its measurements. According to the witness total length of the knife was found 25cm, blade was 11.3 cm, width of the blade was 2.5cm and thereafter the knife was converted into pullanda and sealed with the seal St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 58 of VK and then taken into possession vide seizure memo Ex.PW24/N and it was given mark K2. Witness has also deposed that when the search of the accused Rusy @ Surender was carried out, from his right side an iron rod (rusted) was recovered which he was hiding on his left side. According to the witness the length of the iron rod was found 30 cm and the Investigating Officer converted the said rod into a pullanda and sealed with the seal of VJ and took the same into possession vide memo Ex.PW24/P. He has also deposed that the seal after use was handed over to SI Imteyaz. He has proved that the accused Mahesh, Rajesh, Ravinder and accused Rusy @ Surender were arrested vide memo Ex.PW24/A to Ex.PW24/D respectively and their personal search were carried out vide memos Ex.PW24/E to Ex.PW24/H respectively. He has further deposed that thereafter police party along with the accused persons returned to the Police Station and Investigating Officer deposited the case property with MHC(M).
(71) The witness has correctly identified the accused Rusy @ Surender, Rajesh @ Tinku, Ravinder @ Tuna and Mahesh @ Chikna Kaliya in the court. He has also identified the silver coins, one of the which is having symbol of Radha Krishna and the other two having the symbol of Laxmi Ganesh as the same which were recovered from the possession of accused persons which silver coins are Ex.P1, Ex.P2 and Ex.P3; knife recovered from the possession of accused Rajesh @ Tinku St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 59 which is Ex.P11; buttondar knife recovered from the possession of accused Ravinder @ Tunda which is Ex.P12; one white Tshirt having brown stains, one black jeans pant having brown stains belonging to the accused Ravinder @ Tunda which are collectively Ex.P13; one blue T shirt having brown stains, one light blue jeans pant having brown stains belonging to the accused Rajesh @ Tinku. Same which are collectively Ex.P14; one black color Tshirt having brown stains, one black jeans pant having brown stains belonging to the accused Rusy @ Surender which are collectively Ex.P15 and an iron rod which is Ex.P16. (72) In his cross examination by Ld. Defence counsels, witness has admitted that the Investigating Officer briefed about the present case to their team and that at that time they were not having any rough sketch of the accused who were involved in the incident. According to the witness the complainant in the case FIR No. 152/12 and FIR No. 153/12 were not accompanying them at the time when the raiding party were searching for the accused persons. Witness has also admitted that even Ct. Raj Kumar who met them at Sector 3 Rohini park was not carrying/ having the rough sketch of the accused person who were involved in the present case. He is unable to tell even by approximation about the distance between the accused persons sitting in the park and the raiding party. According to the witness, none of the accused persons used their weapons when they as a raiding party were trying to apprehend them. He is unable to tell as to where and in what position the accused persons were sitting and even the St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 60 place in the park where the accused persons were sitting. He is not aware whether any information regarding the arrest of the accused person was transmitted to senior police officers or not. Witness has admitted that SI Imetyaz and he remained together during the entire investigations dated 25.07.2012 and has also admitted that even SI Imteyaz did not pass on the information regarding arrest of accused persons to the senior police officers. The witness has further admitted that the iron rod recovered from the accused Rusy @ Surender is easily available at the construction site and has voluntarily explained that it was flat from one side "aage se uske chapta numa shape thi". He is unable to tell whether or not the knife recovered from accused Rajesh were bearing blood stains or not. He has admitted that silver coin recovered from accused Rusy @ Surender and accused Rajesh @ Tinku are easily available in goldsmith shop. The witness has also admitted that at the time of apprehension of accused persons no public witness was joined by the Investigating officer. Witness has denied the suggestion that they falsely took accused Rusy @ Surender and Rajesh @ Tinku as one of the accused persons or that disclosure statement of all the accused persons were fabricated. He has further denied the suggestion that the iron rod was planted upon the accused Rusy @ Surender or that buttondar knife were planted upon the accused persons. Witness has denied the suggestion that he was not able to tell the approximate distance between the accused persons and the raiding party as no such incident took place or that the accused persons were St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 61 apprehended from their houses or that they were planted falsely in the present case so as to solve the blind murder case. He has also denied the suggestion that accused persons did not made any disclosure statement or that the same were recorded by the Investigating Officer of his own or that accused persons were compelled to sign certain blank papers which were later on converted into various memos. Witness has denied the suggestion that all the documents were prepared while sitting in the Police Station or that he merely signed the same on the asking of the Investigating Officer. (73) PW32 HC Raj Kumar is the official who was posted in Police Station South Rohini and has proved that on 25.07.2012 at about 8:00 PM Inspector V.N. Jha called all the Beat Staff and had explained about the description of the suspects as told to him by the complainant. He has deposed that on the same day at at H32 Park, Sector 3, Rohini, Delhi he noticed three persons sitting in the park whose descriptions were resembling with the description given by Inspector V.N. Jha to the Beat Staff on which he immediately informed Inspector V.N. Jha after which Inspector V.N. Jha formed a raiding party comprising of SI Mohd. Imteyaz, himself and SI Avdesh and they all reached in the park at about 9:3010:00 PM. The witness has corroborated the testimony of SI Mohd. Imtiyaz, SI Avdhesh and Inspector V.N. Jha to the extent that he and SI Imtiyaz Ahmed apprehended the accused Rusy @ Surender, SI Avdesh apprehended accused Rajesh @ Tinku and Inspector V.N. Jha apprehended the accused Ravinder @ Tunda. He has also corroborated St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 62 the testimonies of SI Mohd. Imtiyaz (PW30) and SI Avdhesh (PW31) in toto on the aspect of arrest, personal search and interrogation of the accused and recording of the disclosure statements of the accused persons concerned and also the recoveries of silver coins and weapons from their possession i.e. knives from the possession of accused Rajesh @ Tinku and Ravinder @ Tunda and iron rod from the possession of accused Rusy @ Surender and preparation of the documents. He has further corroborates the testimonies of other members of the police party on the aspect of apprehension and arrest of the accused Mahesh @ Chikna and Amit @ Gora (since juvenile) at the instance of the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda from BSA Hospital and the recovery of their blood stained clothes from the park of BSA Hospital which clothes the accused were allegedly wearing on the date of incident. (74) In addition to that he has deposed that on 18.08.2012 he collected two sealed parcels from MHC(M) and deposited the same in Dr. BSA hospital in the forensic department and after depositing the same he handed over the acknowledgment to MHC(M) and so long the sealed parcels were remained in his custody, same were not tampered with. (75) The witness has correctly identified the accused Rusy @ Surender, Rajesh @ Tinku, Ravinder @ Tuna and Mahesh @ Chikna Kaliya in the court. He has also identified the silver coins, one of the which is having symbol of Radha Krishna and the other two having the symbol of Laxmi Ganesh as the same which were recovered from the St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 63 possession of accused persons which silver coins are Ex.P1, Ex.P2 and Ex.P3; knife recovered from the possession of accused Rajesh @ Tinku which is Ex.P11; buttondar knife recovered from the possession of accused Ravinder @ Tunda which is Ex.P12; one white Tshirt having brown stains, one black jeans pant having brown stains belonging to the accused Ravinder @ Tunda which are collectively Ex.P13; one blue T shirt having brown stains, one light blue jeans pant having brown stains belonging to the accused Rajesh @ Tinku. Same which are collectively Ex.P14; one black color Tshirt having brown stains, one black jeans pant having brown stains belonging to the accused Rusy @ Surender which are collectively Ex.P15 and an iron rod which is Ex.P16. (76) In his cross examination by the Ld. Defence counsels, the witness has deposed that no public witness was joined at the time of apprehension of accused Mahesh who was apprehended at about 10:00 AM. He has admitted that the Investigating Officer briefed about the present case to their team and that at that time they were not having any rough sketch of the accused who were involved in the incident and has voluntarily explained that the general description of accused persons were told to them by the Investigating Officer. According to the witness the complainant in case FIR No.152/12 and FIR No.153/12 were not accompanying them at the time when the raiding party were searching for the accused persons. He has further deposed that the distance between the St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 64 accused persons sitting in the park and the raiding party was approximately 50100 meters. The witness has further admitted that the accused persons were easily visible from the place from where they all as a raiding party were standing. He has also deposed that none of the accused persons used their weapons when they as a raiding party were trying to apprehend them. He is unable to tell the colours of the clothes along with the pattern of clothes which the accused persons were wearing at the time of their apprehension. He has testified that he was the Beat Constable at that time within whose jurisdiction this park was situated. He has admitted that the road in front of the park is quite a busy road and people were passing away. Witness has further deposed that the information was passed on by SI Imetyaz and by SI Avdesh to the senior police officers regarding the arrest of accused persons wanted in the present case. He has denied the suggestion that the iron rod recovered from the accused Rusy @ Surender is easily available at the construction site. According to the witness there was no blood stains on the blade of knife recovered from accused Rajesh. He is not aware whether the silver coin recovered from accused Rusy @ Surender and accused Rajesh @ Tinku are easily available in gold smith shop or not. Witness has admitted that at the time of apprehension of accused persons no public witness was joined by the Investigating Officer. He has denied the suggestion that they falsely took accused Rusy @ Surender and Rajesh @ Tinku as one of the accused persons or that disclosure statement of all the accused persons St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 65 were false and fabricated or that the iron rod was planted upon the accused Rusy @ Surender or that buttondar knife were planted upon the accused persons. He has denied the suggestion that he was not able to tell the approximate distance between the accused persons and the raiding party as no such incident took place or that the accused persons were apprehended from their houses or that they were planted falsely in the present case so as to solve the blind murder case. Witness has also denied the suggestion that accused persons did not made any disclosure statement or that the same were recorded by the Investigating Officer of his own. Witness has denied the suggestion that accused persons were compelled to sign certain blank papers which were later on converted into various memos or that all the documents were prepared while sitting in the Police Station or that he merely signed the same on the asking of the Investigating Officer.
(77) PW33 SI Ravi Kumar has deposed that on 24.07.2012 he was posted as Sub Inspector in Police Station South Rohini and on that day he joined the investigation of this case alongwith Inspector Anil Kumar. According to the witness on receipt of DD No.4B he alongwith Ct. Sanjay and Investigating Officer reached H.No. D17/252 Sector3, Rohini, Delhi where they met ASI Surender and Ct. Amar who informed that the injured Resham Devi, aged 65 years had been removed to the BSA Hospital by the PCR official. Witness has further deposed that they found a lot of blood scattered on the ground floor in the Aangan and the drawing room and St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 66 they then went to the BSA Hospital where the injured Resham Devi was unfit for statement and her MLC was collected. According to the witness a sealed pullanda duly sealed with the seal of the BSA Hospital containing the clothes of the injured and sample seal were given to the Investigating Officer by the Duty Constable. He has testified that they also met one public person by the name of Shishu Pal who claimed to be an eye witness to the incident and was the son in law of the injured. Witness has further deposed that while they were interrogating Shishu Pal they came to know that injured Resham Devi had expired on which Investigating Officer recorded statement of Shishu Pal and converted the same into rukka and handed over the same to Ct. Sanjay with the direction to take the same to the Police Station for registration of the case. According to the witness the dead body was got preserved in the mortuary for 72 hours after which they returned to the spot i.e. D17/272, Sector 3, Rohini, Delhi alongwith Shishu Pal where there was a scooty parked outside the house on which footprint was noticed and they also found a towel on the AC window just while entering the the house and a pair of chappal under the AC window. He has also deposed that inside the drawing room there were two bedding and both the bed sheets were smeared with blood. According to the witness one blood stained chunni was also lying on the bed and the internal ground floor rooms were found ransack and the AC window was broken with blood on the chaukhat of the window. Witness has further deposed that the Crime Team came to the spot, inspected the same, took St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 67 photographs and lifted chance prints and the FSL team was also called to the spot by the Investigating Officer who examined the spot. According to the witness, in the meanwhile the Investigating Officer also asked the daughter of the deceased namely Jyoti to check the belongings in the house and to tell if any other thing was missing on which after checking Jyoti informed that she had found a brown colored gents purse in the lobby which did not belong to anybody in the family after which the photographs of the said purse were also got taken from the crime team photographer. He has testified that Investigating Officer Inspector Anil Kumar then lifted exhibits from the spot i.e. blood stained floor from the Angan with the help of cotton and gauze, blood from the drawing room, cuttings of the blood stained bed sheets, towel lying near the AC window, one pair chappals, footprint by the cutting of seat cover, blood stained Chunni, blood stained Chaukhat of AC window by breaking the one side of the AC window and gents purse of brown colour containing RC of DL 8 SA Q 1008 in the name of Dalip Kumar and a voter ID Card in the name of Dalip and a photocopy of driving licence in the name of Prem Chand and some papers.
(78) The witness has proved that all the exhibits were converted into separate pullandas and were sealed with the seal of RK which was his seal as Inspector Anil Kumar was not carrying his seal. The witness has testified that he then seized the above exhibits, seizure memo of foot prints is Ex.PW22/C, the seizure memo of the purse is Ex.PW22/D, the seizure St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 68 memo of Towel is Ex.PW22/E, the seizure memo of blood gauze sample and earth control is Ex.PW22/F, the seizure memo of blood stained bed sheet and chunni is Ex.PW22/G, the seizure memo of blood stained wooden chaukhat is Ex.PW22/H, the seizure memo of blood sample is Ex.PW22/I and the seizure memo of pair of chappals is Ex.PW22/J. According to him, the seal after use was handed over to him. The witness has also deposed that the Dog Squad was also called at the spot who inspected the scene of crime. He has further testified that the Investigating Officer then interrogated Jyoti and Shishu Pal at length. Witness has further deposed that in the evening he accompanied the Investigating Officer to the hospital where the postmortem was conducted on the dead body and after the postmortem the dead body was handed over to the son in law of the deceased namely Shishu Pal. He has also deposed that his statement was recorded by the Investigating Officer after which he was relieved from the hospital itself.
(79) The witness has correctly identified the case property i.e. two bed sheets which are Ex.P4 & Ex.P5, chunni which is Ex.P6, wooden piece of chaukhat which is Ex.P7; one towel of green color which is Ex.P9; one pair of slippers of G Star which is Ex.P10; seat cover of scooty as the same as seized from the spot which is Ex.P17 and the purse containing RC, voter ID Card, driving licence, two photos and some documents were released on Superdari to Bishan Lal, S/o Parmanand, R/o St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 69 G30/340341, Sector 3, Rohini from the photographs which are Ex.PW25/A1, Ex.PW25/A2, Ex.PW25/A3, Ex.PW25/A4, Ex.PW25/A5, Ex.PW25/A6, Ex.PW25/A7 and Ex.PW25/A8. (80) In his cross examination by Ld. Defence counsel, witness has deposed that he had reached the spot along with Ct. Sanjay and Inspector Anil Kumar in the official Gypsy at 3.00AM and when they reached the place of incident he does not recollect whether the Investigating Officer met any eye witness and has voluntarily explained that as soon as they came to know that the injured had been shifted to the hospital, they rushed to the Hospital after leaving Ct. Amat at the spot for preserving the same. On a specific Court Question the witness has explained that when they reached the spot, a large number of public persons were present but they could not find any family member of the injured there. He has denied the suggestion that he never participated in the investigation or that he had signed the seizure memos on the asking of senior officer at a later stage. Witness has further denied the suggestion that no exhibits were lifted from the spot in his presence or that the brown colour purse was planted later on in order to connect the accused with the offence and to work out the same. According to the witness, he did not make any separate departure entry when he left the Police Station nor he made a separately arrival entry. Witness has denied the suggestion that he has not made said entries as he had not reached the spot as stated by him.
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 70 (81) PW34 Inspector V.N. Jha is the Investigating Officer of FIR No. 152/2012. He has deposed that on 25.07.2012 he was posted at Police Station South Rohini as ATO and on that day he had proceeded for the investigations of case FIR No. 152/12 with SI Imteyaz Alam, SI Avdesh and HC Rajesh and they made the search of the accused persons but could not found. According to the witness he contacted the complainant and asked from him about the description of the accused persons wanted in case FIR No. 152/12 and thereafter he called all the beat staff and briefed them about the description of the accused persons as told by the complainant and were directed to perform their duty carefully. He has also deposed that thereafter they reached at H32 Park, Sector 3, Rohini, Delhi where Ct. Raj Kumar met them who informed him that he had seen three assailants according to the description told to him. According to the witness, on this information he formed a raiding party comprising of SI Mohd. Imteyaz, SI Avdesh and Ct. Raj Kumar and reached in the park at about 9:3010 PM. Witness has further deposed that thereafter accused Rusy @ Surender was apprehended by SI Mohd. Imetyaz and Ct. Raj Kumar whereas SI Avdesh apprehended accused Rajesh @ Tinku and the accused Ravinder @ Tunda was apprehended by him. Witness has further deposed that thereafter all the three accused persons interrogated and thereafter they were arrested in case FIR No. 152/12. He has proved the disclosure statement of accused Rusy which is Ex.PW24/L, disclosure statement of accused Ravinder @ Tunda which is Ex.PW24/K and St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 71 disclosure statement of accused Rajesh @ Tinku which is Ex.PW24/J. According to the witness when formal search of the accused persons were carried out, from the formal search of accused Rajesh a buttondar knife is recovered and he prepared the sketch of the knife which Ex.PW31/A and he took the measurements of the knife. He has explained that the length of the blade was 15 cm, width of the blade was 3cm and total length of the knife was 32 cm and the said knife was given serial No. K1 after which he converted the same into pullanda and sealed with the seal of VJ and took the same into possession vide memo Ex.PW31/B. According to the witness thereafter from the search of accused Rusy a coin of silver type was recovered which coin was converted into pullanda in a plastic dibbi which was sealed with the seal of VJ and was marked as SC1 after which plastic dibbi was sealed with the seal of doctor tape and thereafter the same was taken into possession vide memo Ex.PW30/A. Witness has further deposed that from the search of accused Ravinder a coin of silver type was also recovered and the said coin was converted into pullanda in a plastic dibbi and was sealed with the seal of VJ which was marked as SC3 after which the plastic dibbi was sealed with the seal of doctor tape and thereafter the same was taken into possession vide memo Ex.PW30/B. According to the witness from the search of accused Rajesh @ Tinku a coin of silver type was also recovered which coin was also converted into pullanda in a plastic dibbi which was sealed with the seal of VJ and was marked as SC2 and the plastic dibbi was sealed with the St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 72 seal of doctor tape and thereafter the same was taken into possession vide memo Ex.PW30/C. He has testified that thereafter they made the search of other accused persons but on that day on other accused were arrested. According to him, two ATM cards of SBI belongs to Dalip, brother of complainant in case FIR No. 152/12, has been recovered from the possession of accused Rusy @ Surender. The witness has also deposed that thereafter at about 2:30 AM accused persons were got medically examined and thereafter the accused persons disclosed that the other two accused persons involved in the present case may be found available in BSA hospital in the morning hours as usually they used to came there. According to the witness thereafter they started waiting for the movement in BSA Hospital and at about 10:00 AM other accused namely Mahesh @ Chikna Kalia and Amit @ Gora (since juvenile) apprehended at the instance of other accused persons. Witness has further deposed that accused Mahesh @ Chikna also made his disclosure statement vide Ex.PW24/I. He has testified that thereafter accused Ravinder @ Tunda, Rajesh @ Tinku and Rusy @ Surender got recovered their blood stained clothes which they had buried behind BSA Hospital and the blood stained clothes of the above said accused persons were converted into pullandas and were sealed with the seal of VJ and given serial No. BSC1, BSC2 and BSC3 respectively and were taken into possession vide memo Ex.PW30/D1 to Ex.PW30/D3 respectively. According to the witness seal after use was handed over to SI Imetyaz. Witness has further deposed St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 73 that he carried out the proceedings in respect of juvenile accused and thereafter accused persons pointed out the place of incident in respect of FIR No.152/12. Witness has further deposed that during investigations accused Ravinder also got recovered a knife and he (witness) prepared the sketch of the knife which is Ex.PW31/C. He has proved having taken the measurements of the said knife during which the total length of the knife was found 25cm, blade was 11.3 cm, width of the blade was 2.5cm and thereafter the knife was converted into pullanda and sealed with the seal of VJ and thereafter taken into possession vide seizure memo Ex.PW24/N and it was given mark K2. Witness has further deposed that when the search of the accused Rusy @ Surender was carried out, from his right side an iron rod (rusted) was recovered which he was hiding on his left side. He has testified that the length of the iron rod was found 30 cm, he converted the said rod into a pullanda and sealed with the seal of VJ and was taken into possession vide memo Ex.PW24/P. Witness has further deposed that seal after use was handed over to SI Imteyaz. He has proved that the accused Mahesh, Rajesh, Ravinder and accused Rusy @ Surender were arrested vide memo Ex.PW24/A to Ex.PW24/D respectively and their personal search were carried out vide memos Ex.PW24/E to Ex.PW24/H respectively. He has testified that thereafter police party along with the accused persons returned to the Police Station and he deposited the case property with MHC(M). According to the witness recovery of the case property of this case and the weapons used in the St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 74 present case were effected in case FIR No. 152/12, Police Station South Rohini. The witness has also deposed that on 01.08.2012 he obtained the photocopy of seizure memo of purse belongs to Dalip Kumar, brother of complainant in case FIR No. 152/12 from the Investigating Officer of the present case i.e. Inspector Anil Kumar and his statement was recorded by the Investigating Officer of case FIR No. 153/12, Police Station South Rohini.
(82) The witness has correctly identified the accused Rusy @ Surender, Rajesh @ Tinku, Ravinder @ Tuna and Mahesh @ Chikna Kaliya in the court. He has also identified the silver coins, one of the which is having symbol of Radha Krishna and the other two having the symbol of Laxmi Ganesh as the same which were recovered from the possession of accused persons which silver coins are Ex.P1, Ex.P2 and Ex.P3; knife recovered from the possession of accused Rajesh @ Tinku which is Ex.P11; buttondar knife recovered from the possession of accused Ravinder @ Tunda which is Ex.P12; one white Tshirt having brown stains, one black jeans pant having brown stains belonging to the accused Ravinder @ Tunda which are collectively Ex.P13; one blue T shirt having brown stains, one light blue jeans pant having brown stains belonging to the accused Rajesh @ Tinku, which are collectively Ex.P14; one black color Tshirt having brown stains, one black jeans pant having brown stains belonging to the accused Rusy @ Surender which are St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 75 collectively Ex.P15 and an iron rod which is Ex.P16. (83) In his cross examination by Ld. Defence counsels, the witness has deposed that the distance between the spot of the first incident which took place at G30/340341, Sector 3, Rohini and the place of the present incident i.e. D17/252, Sector 3, Rohini is about half a kilometer or even less. He is however unable to tell the distance in terms of the time covered on foot, whether it will take ten minutes, fifteen minutes or half an hour to reach the second spot (D17/252) from the spot (G30/340341) and has voluntarily added that he has never measured the same. Witness has denied the suggestion that the Investigating Officer of the present case Inspector Anil Kumar was clueless about the assailants of the present case and had sought help from him and asked him to inform if he had any information regarding the assailants of the case which he was investigating in FIR No. 152/12, Police Station South Rohini and has voluntarily added that they had discussed about the facts in Police Station on 24.07.2012. According to the witness he came to know about the second incident at G30/340341 Sector 3, Rohini, within half an hour and he came to know that the purse which was stolen from G30/340341 had been found in D17/252, Sector 3, Rohini, Delhi at about 7AM.
(84) The witness has further deposed that he had made separate departure or arrival entry at the time when he had gone in search of the St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 76 accused persons but he cannot give their details at present. According to the witness no public witnesses were present or joined at the time of apprehension and arrest of the accused persons. He has admitted that the silver coins of Laxmi Ganesh are easily available in the market. He has denied the suggestion that he along with Inspector Anil Kumar in order to work out both the cases i.e. FIR No.152/12 and FIR No.153/12 had fabricated evidence to work out both the cases on account of huge public out cry and pressure and created evidence against the accused to work out both the cases. Witness has also denied the suggestion that the accused persons picked up from their houses of account of their previous criminal involvements after which their disclosures were fabricated and they were compelled to sign various blank documents which were converted into memos. Witness has further denied the suggestion that accused Rusy @ Surender, Rajesh @ Tinku, Ravinder @ Tunda and Mahesh @ Chikna did not make any disclosure statements at any point of time nor pointed out any place of incident or all the documents were fabricated. Witness has denied the suggestion that the brown purse belonging to the residents of house No. G30/340341 was planted at a later stage in house No. D17/252, Sector 3, Rohini only to connect both the cases to show that they had been committed by same set of persons to work out both the cases simultaneously.
(85) PW35 Inspector Anil Kumar is the Investigating Officer of the present case who has deposed that on 24.07.2012 he was posted as St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 77 Inspector in Police Station South Rohini and on that day he received DD No. 4B copy of the same is Ex.PW35/A and reached at the spot at D17/252 alongwith SI Ravi and Ct. Sanjay. According to the witness on reaching there he found blood scattered in an outside the room and they came to know that the injured Resham Rani W/o Jagdish Lal was sifted to BSA Hospital by the PCR official. Witness has further deposed that Ct. Amar was deputed for the preservation of the spot and he alongwith other staff went to the BSA Hospital where the injured Resham Rani was under
treatment vide MLC and was declared unfit for statement and her MLC was collected. According to the witness a sealed pullanda duly sealed with the seal of the BSA Hospital containing clothes of the injured and sample seal were given to him by the Duty Head Constable Ram Pravesh, which was taken into possession vide memo Ex.PW29/A. Witness has further deposed that they also met one public person by the name of Shishu Pal who claimed to be the eye witness of the incident and was the son in law of the injured and while they were interrogating him they came to know that injured Resham Rani had expired. According to the witness he received an information about the death of the injured vide DD No.10 A which is Ex.PW35/B and he recorded statement of Shishu Pal which is Ex.PW22/A on which he also made his endorsement vide Ex.PW35/C and converted the same into rukka and handed over the same to Ct. Sanjay with the direction to take the same to the Police Station for registration of the case and to report at the spot after getting registered the case with St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 78 copy of FIR. Witness has further deposed that he received the death summary Ex.PW19/B and death report Ex.PW20/A of the injured after which the dead body was got preserved in the mortuary for 72 hours.
(86) He has further deposed that thereafter they returned to the spot i.e. D17/252, Sector 3, Rohini, Delhi alongwith Shishu Pal where Crime Team was present and photographed the scene of crime. According to him, in the meanwhile he instructed Smt. Jyoti Satija to find out the other articles which could be stolen on which she was started taking the search of household articles and when she lifted the clothes from a chair in the lobby a purse fell on the ground about which she informed that the same was not belonging to them. Witness has further deposed that the purse was photographed and the same was checked and it found to contain one RC of motorcycle DL 8S AQ 1008 and original voter ID Card in the name of Dalip s/o Bishan Lal, one duplicate driving licence of Prem Chand S/o Bishan Lal, some papers and visiting card and two photographs. The witness has proved that the same were taken into possession vide memo Ex.PW22/D. Witness has further deposed that he obtained the crime team report and after a thorough inspection of the crime scene he prepared rough site plan which is Ex.PW22/B. According to him there was a scooty parked outside the house on which footprint was noticed and they also found a towel on the AC window just while entering the house and a pair of chappal under the AC window and inside the drawing room there were two bedding and both the bed sheets were St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 79 smeared with blood. Witness has further deposed that one blood stained chunni was also lying on the bed and the internal ground floor rooms were found ransacked and the AC window was broken with blood on the chaukhat of the window. According to the witness he then lifted exhibits from the spot i.e. blood stained floor from the Angan with the help of cotton and gauze, blood from the drawing room, cuttings of the blood stained bed sheets, towel lying near the AC window, one pair chappals, footprint by the cutting of seat cover, blood stained Chunni, Blood Chaukhat of AC window by breaking the one side of the AC window and gents purse of brown colour containing RC of DL 8 SA Q 1008 in the name of Dalip Kumar and a voter ID Card in the name of Dalip and a photocopy of driving licence in the name of Prem Chand and some papers. Witness has further deposed that all the exhibits were converted into separate pullandas and were sealed with the seal of RK which was the seal of Ravi Kumar as he was not carrying his seal at that time and the seal after use was handed over to SI Ravi Kumar. He has proved the seizure memo of foot prints which is Ex.PW22/C, seizure memo of purse which is Ex.PW22/D, seizure memo of Towel which is Ex.PW22/E, seizure memo of blood gauze sample and earth control which is Ex.PW22/F, seizure memo of blood stained bed sheet and chunni which is Ex.PW22/G, seizure memo of blood stained wooden chaukhat which is Ex.PW22/H, seizure memo of blood sample which is Ex.PW22/I and the St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 80 seizure memo of pair of chappals which is Ex.PW22/J. The witness has also deposed that the Dog Squad had also been called at the spot but there was no trail and thereafter he alongwith staff reached at the hospital where he prepared the inquest papers and got the dead body identified from her relatives. He has proved having prepared the the inquest Form 25.35 (1) (B) which is Ex.PW35/D, the Identification memo of dead body vide Ex.PW22/K and Ex.PW23/A, having prepared the brief facts which are Ex.PW35/E. According to the witness after the postmortem examination the dead body was handed over to her relatives vide Ex.PW22/L. Witness has further deposed that he recorded the statement of SI Ravi and ASI Surender and relieved them and he then reached the spot alongwith the remaining staff and recorded the statement of Ms. Jyoti and Shishu Pal.
The witness has testified that he thereafter reached the office of crime team and recorded statement of members of the crime team and then returned to the Police Station and deposited the case property in the Malkhana and recorded statement of Ct. Amar and relieved them. (87) The witness has further deposed that during the investigation he received the documents, disclosure statements, recovery memos, memo of weapon of offence, seizure memo from Inspector V N Jha and came to know about the arrest of accused Surender, Rajesh, Ravinder and Mahesh in FIR No.152/12 Police Station South Rohini wherein they had disclosed their involvement in this case. According to the witness, he moved an application seeking production of accused persons before Ld. MM St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 81 pursuant to which on 09.08.2012 all the accused were produced before them and after due permission from the Ld. MM he arrested them. He has proved the arrest memo of accused Ravinder which is Ex.PW7/A, his disclosure statement which is Ex.PW7/B; arrest memo of accused Mahesh which is Ex.PW7/C and his disclosure statement which is Ex.PW7/D; arrest memo of accused Rajesh @ Tinku which is Ex.PW7/E and his disclosure statement which is Ex.PW7/F; arrest memo of accused Rusy @ Surender which is Ex.PW7/G and his disclosure statement which is Ex.PW7/H. According to the witness the accused were in muffled faces and he made a request to the Ld. MM for getting conducted the TIP of the accused persons which application is Ex.PX6, but the accused persons refused for the same. Witness has further deposed that after getting conducted the said proceedings, he obtained the copy of the proceedings which are Ex.PX7, Ex.PX8, Ex.PX9 and Ex.PX10 and he then obtained the three days police custody remand of all the four accused on 09.08.2012.
(88) The witness has further deposed that on 10.08.2012 the accused lead them to D17/252, Sector 3 Rohini and pointed out the place of incident where they broken the jali of the window and entered the house after which they committed the robbery and stabbed an old lady and escaped. He has proved the pointing out memo by accused Rajesh @ Tinku which is Ex.PW35/F, pointing out memo by accused Mahesh @ St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 82 Chikna Kalia which is Ex.PW35/G, pointing out memo of accused Ravinder @ Tunda which is Ex.PW35/H, pointing out memo by accused Rusy @ Surender which is Ex.PW35/I. According to the witness while the accused were present at the spot, Smt. Jyoti Satija came out of the house and identified Ravinder, Surender and Rajesh as the assailants whom she had seen while she was at the second floor and they were coming out of the house from the ground floor and running away at the time of the incident. Witness has further deposed that he came to know that three robbed articles i.e. Bali/ ear ring, watch and ring had not been recovered and he then tried to search for the said articles and interrogated the accused but they did not get the same recovered. According to the witness after the completion of period of police custody remand the accused were produced before the Ld. MM and got remanded to Judicial custody. According to the witness, on 18.08.2012 he sent the weapon of offence to Autopsy Surgeon through Ct. Raj Kumar and after return of Ct. Raj Kumar recorded his statement. He has further deposed that on 28.08.2012 he alongwith Ct. Raj Kumar went to the mortuary of BSA Hospital and obtained the subsequent opinion of Autopsy Surgeon on the weapon of offence and also received the weapon of offence in sealed condition alongwith a blood gauze both were sealed with the seal of hospital. He has proved having seized the blood gauze alongwith the sample seal vide Ex.PW21/A. According to the witness he reached at the Police Station and deposited the case property in the Malkhana. He has St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 83 further deposed that on 14.09.2012 he got the scaled site plan prepared from Draftsman SI Manohar Lal and recorded his statement and relieved him. The witness has also deposed that on 27.09.2012 he sent the various exhibits to FSL Rohini through Ct. Arvind and thereafter recorded his statement and relieved him and he then recorded statement of other witness, prepared the charge sheet and filed the same in the court. According to the witness, on 29.09.2012 he got conducted the TIP proceedings of Case property from the concerned MM which was duly identified by complainant Shishu Pal. He has proved having collected the FSL report Ex.PW17/A and prepared supplementary charge sheet which he filed in the court.
(89) The witness has correctly identified the accused persons in the Court and also identified the case property i.e. two bed sheets which are Ex.P4 & Ex.P5, chunni which is Ex.P6, wooden piece of chaukhat which is Ex.P7; one towel of green color which is Ex.P9; one pair of slippers of G Star which is Ex.P10; seat cover of scooty as the same as seized from the spot which is Ex.P17 and the purse containing RC, voter ID Card, driving licence, two photos and some documents were released on Superdari to Bishan Lal, S/o Parmanand R/o G30/340341, Sector 3, Rohini from the photographs which are Ex.PW25/A1, Ex.PW25/A2, Ex.PW25/A3, PW25/A4, Ex.PW25/A5, Ex.PW25/A6, Ex.PW25/A7 and Ex.PW25/A8.
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 84 (90) In his cross examination by Ld. Defence counsels, the witness has deposed that on 24.07.2012 he received information regarding the incident at about 2:45 AM (midnight) and he reached along with staff within fivesix minutes. According to the witness, he recorded the statement of Jyoti on 24.07.2012 at about 7:00 PM at her residence. He has further deposed that he recorded the statement of Jyoti twice and recorded the statement of Shishu Pal two times i.e. first statement i.e. rukka in the hospital and second was at the spot. Witness has further deposed that he has not recorded the statement of any public witnesses except relatives of deceased and has explained that they had visited the spot of incident along with accused four times. According to the witness public persons and relatives of deceased including Jyoti and Shishu Pal were present there at that relevant time. He has also deposed that he had reached the spot along with Ct. Sanjay and SI Ravi Kumar in the official Gypsy. He does not remember the registration number of the official gypsy and has explained when they reached at the spot he noticed daughter of deceased, twothree other ladies and other neighbors at the spot. According to the witness, he along with SI Ravi Kumar, ASI Surender and Ct. Sanjay left the spot after about tenfifteen minutes and left for the hospital and when they reached the hospital, Rasham Rani was alive but she was not fit for statement.
(91) Witness has further deposed that he had recorded the statement of Shishu Pal while sitting in the corridor in the hospital. He St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 85 has also deposed that he left the hospital at about 5:40 AM and Ct. Sanjay left the hospital along with rukka at about 5:30 AM and he returned back at about 6:30 AM at the spot. He does not recollect the number of photographs which were taken by photographer of crime team. According to the witness the house where incident took place is constructed upto fourth floor and when they reached the spot, the front gate of boundary wall as well as gate of room was found open. He also does not recollect the make of the chair from where the purse was allegedly got recovered. The witness has also deposed that whenever he proceeded for investigations he recorded the DD entry and he had not made any specific entry for the departure of the spot along with accused. (92) According to the witness at the time of formal arrest and on arrival to the Police Station he had recorded the DD entries but he does not recollect the DD entries now. Witness has denied the suggestion that he had not conducted the investigation in fair and proper manner or that no exhibits were lifted by him from the spot. Witness has denied the suggestion that the brown colour purse was planted later on in order to connect the accused with the offence and to work out the same or that accused persons did not made any disclosure statements or that the same were recorded by him of his own. He has also denied the suggestion that accused persons were compelled to sign on certain blank papers which were later on converted into various memos or that all the documentations were conducted while sitting in the Police Station or that the police St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 86 officials had signed the various memos at his instance. Witness has denied the suggestion that accused persons did not pointed out the spot or that the pointing out memo was prepared by him of his own or that accused were falsely implicated in the present case only because of their previous criminal involvement in the other cases. STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(93) After completion of prosecution evidence the statements of the accused have been recorded under Section 313 Cr.P.C. wherein all the incriminating material was put to them which they have denied. The accused Rusy @ Surender has stated that he is innocent and has been falsely implicated by the police only to work out a blind case. According to the accused, he did not make any disclosure statement and his signatures were forcibly obtained by the police on blank papers which were later on converted into various memos including his disclosure. He has further stated that the alleged recoveries has aforesaid has been planted upon him by the police officials. According to the accused he refused to participate in the Judicial Test Identification Parade proceedings because his photographs were already shown to the witnesses by the police prior to the Test Identification Parade proceedings.
(94) The accused Rajesh @ Tinku has similarly stated that he is innocent and has been falsely implicated by the police only to work out the blind case after lifting him from his house. According to the accused, he St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 87 did not make any disclosure statement and his signatures were forcibly obtained by the police on blank papers which were later on converted into various memos including his disclosure. He has further stated that the alleged recoveries has aforesaid has been planted upon him by the police officials. According to the accused he refused to participate in the Judicial Test Identification Parade proceedings because his photographs were already shown to the witnesses by the police prior to the Test Identification Parade proceedings.
(95) The accused Ravinder @ Tunda has stated that he is innocent and has been falsely implicated by the police only to work out the blind case. According to the accused, he did not make any disclosure statement and his signatures were forcibly obtained by the police on blank papers which were later on converted into various memos including his disclosure. He has further stated that the alleged recoveries has aforesaid has been planted upon him by the police officials. According to the accused he refused to participate in the Judicial Test Identification Parade proceedings because his photographs were already shown to the witnesses by the police prior to the Test Identification Parade proceedings.
(96) The accused Mahesh @ Chikna has stated that he is innocent and has been falsely implicated by the police only to work out the blind case after lifting him from his house. According to the accused, he did not make any disclosure statement and his signatures were forcibly obtained by the police on blank papers which were later on converted into various St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 88 memos including his disclosure.
(97) However, the accused have preferred not to examine any witness in their defence.
FINDINGS:
(98) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written memorandum of arguments filed by the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition No. witness Public witnesses:
1. Shishu Pal Satija He is the brother in law of the deceased and has proved (PW22) the following aspects:
1. That he is residing at D17/252, Sector 3, Rohini, Delhi along with his family for the last almost three years.
2. That Smt. Resham Rani was his mother in law/ Saas who had no son and Jyoti Satija, his wife was her only daughter.
3. That the house bearing No. D17/252 has been constructed upto four floors including the ground floor where his mother in law Smt. Resham Rani used to reside and on the first floor his mother Mohini Satija resides and his daughter used to sleep with her whereas he along with his wife and two sons are residing on the second floor where they used to sleep whereas the third floor is having one store room.
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 89
4. That on the intervening night of 23/24.07.2012 they had taken their dinner at around 11 PM and gone to sleep.
5. That at around 22:15 AM (midnight) he heard loud voices of his mother in law Resham Rani who was screaming and calling for his wife by her name and was shouting "Jyoti, Jyoti" on which he rushed downstairs and found blood scattered all over the place inside the house near the door and also outside and found his mother in law Resham Rani lying on the bed and crying in pain "bed par pari tarap rahi thi".
6. That in the meantime the other persons from the neighbors had also started collecting and he noticed that her mother in law was bleeding heavily from the left side stomach on which he asked her what had happened.
7. That she (Resham Rani) informed him that two persons had come who were wearing black clothes and they had stabbed her and run away "Do admi kale rang ke kapre pehen kar aye thai aur chaku mar kar bhag gaye".
8. That he also noticed that there was blood scattered all over the floor, the almirah was open, the draws of the TV trolley was also open.
9. That he also noticed that the window under the AC was broken and the articles of the house had been disturbed and were lying scattered.
10. That he also noticed two brown color chappals lying in front of the window underneath the AC which were broken and there was blood stains on the window and it appeared that the assailants had entered by breaking the window under the AC.
11. That he made a 100 number call and after about five to ten minutes the police came to the spot and immediately she was shifted to BSA Hospital and he along with his neighbors also rushed to the BSA Hospital.
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 90
12. That during the time of her treatment, his mother in law Resham Rani expired.
13. That he also made a call to his wife from the hospital and asked her to find out if there were some articles missing from the house, on which she informed that threefour silver coins kept in a red thaili, a sum of Rs.1,200/ appeared to be missing.
14. That the police recorded his statement at the BSA Hospital which is Ex.PW22/A after which he returned to his house.
15. That on 24.07.2012 in his presence the Crime Team had also visited at his house and had taken chance prints, photographs and also lifted the exhibits.
16. That the chunni of his mother in law was also lying at the spot from which they lifted blood stains along with the bed sheet/chaddar on which blood stains were present.
17. That the police also lifted the blood stains from the AC window and chappals lying in the room and the other blood stained articles.
18. That the police also found a purse and other articles lying in the room which were not belonging to them and perhaps had left behind by the assailants.
19. That after which the photographs of the entire room was got done and the site plan of the room was prepared which is Ex.PW22/B.
20. That there was a two wheeler scooter parked outside the boundary wall adjoining the window from where the assailants had entered on which there were some foot prints which were lifted by the police vide memo Ex.PW22/C.
21. That the purse which was left behind the assailants was lifted by the police was checked and found to contain some documents in the name of some Dalip Kumar which contained an ATM card, some documents, Election ID Card and St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 91 some other documents which he does not recollect were converted into pullanda and seized vide memo Ex.PW22/D.
22. That the seizure memos of the various other articles i.e. towel, blood gauze earth control, bed sheet, chunni, blood stained wooden chaukhat and blood stains lifted from various places of the room are Ex.PW22/E, Ex.PW22/F, Ex.PW22/G, Ex.PW22/H, Ex.PW22/I, chappals left by the assailants were converted into pullanda and seized vide memo Ex.PW22/J.
23. That on the same day the postmortem on the dead body of his mother in law was conducted and he and Sh. Pawan Satija, his cousin brother identified the dead body vide memo Ex.PW22/K after which they received the said body from the mortuary vide memo Ex.PW22/L.
24. That on 29.09.2012 he identified the three silver coins belonging to his mother in law before Ld. MM vide TIP Proceedings Ex.PX3 collectively.
Witness has identified the silver coins, one of whom is having symbol of Radha Krishna and the other two having the symbol of Laxmi Ganesh as the same as belonging to her mother in law which are Ex.P1, Ex.P2 and Ex.P3; two bed sheets and one chunni seized by the police which bed sheets are Ex.P4 & Ex.P5 and chunni is Ex.P6; wooden piece of chaukhat as the same as seized by the police which is Ex.P7; blood stained mattress piece which was seized by the police, which is Ex.P8; one towel of green color which was seized by the police which is Ex.P9 and one pair of slippers of G Star which was seized by the police which is Ex.P10 collectively.
2. Mrs. Jyoti Satija She is the daughter of the deceased and has deposed on (PW25) the following aspects:
1. That she is residing at D17/252, Sector 3, Rohini, Delhi along with her husband, two sons, one daughter and her mother in law Mohini Satijia St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 92 and her mother Resham Rani was also residing in the house.
2. That she along with her husband and children resided at the second floor of the house whereas her mother in law resided at first floor and her mother resided at the ground floor.
3. That on 23.07.2012 at about 11:00 PM after taking dinner they slept and during the intervening night on 23/24.07.2012 at about 22:15 AM (midnight) she heard the shouting of her mother Resham Rani who was calling her by name JyotiJyoti.
4. That she woke up and rushed to the gallery and saw three boys running away from her house "ghar ke taraf se/ground floor se nikal kar bhag rahe thai".
5. That one person was of fair complexion with small hair "gora tha aur uske baal chote chote thai, whereas the other persons were of thin stature and dusky/ sanwla complexion aged about 2025 years "sawle color ke thai aur patle se thai aur unki umar 2025 saal thi".
6. That her husband also woke up and rushed downstairs by using the stairs which were inside the house and she followed her.
7. That she found her mother Resham Rani in an injured condition with stab injury of knife on her stomach and lot of blood in the room.
8. That one pair of slippers and one towel with lines were found near the window and also the mesh of the window was found broken.
9. That her husband immediately called the police on which police came there and took his mother Resham Rani to BSA Hospital.
10. That her husband also accompanied with the other neighbors and after some time her husband made a call to her and asked her to check the missing articles of the house.
11. That she checked the house and found that the wrist watch of her father, 34 silver coins having St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 93 symbols of Ganesh and Laxmi and Rs.1,000/ to Rs.1,200/ of pension money of her mother was missing on which she informed her husband immediately about these missing items.
12. That one ear ring and one gold ring which her mother used to wear was found missing and her mother used to wear only one ear ring on account of the fact that her other ear was cut due to the weight of the ear ring and had not been stitched.
13. That police conducted their proceedings at the spot and on their asking she again checked her house and she found that one gents purse under the clothes and the quilt on the chair and one voter I card, driving license, photographs were in the purse which were in the room of her mother.
14. That G30/340 Sector 3 Rohini, Delhi was written on the documents found in the purse.
15. That police sealed the purse with its contents in a cloth pullanda and sealed the same with the same and seized the same vide Ex.PW22/D.
16. That the police had lifted a large number of exhibits which included the blood stained gadda, bed sheet, curtain, chunni, piece of wood from window/ chaukhat, blood stained earth, earth control etc.
17. That the sniffer dogs had come to the house and the crime team/forensic team had also come and lifted blood stained finger prints/chance prints and also taken photographs of the room and area where the incident had taken place.
18. That the seizure memo of the purse left behind by the assailants and its contents was prepared by the police which is Ex.PW22/D.
19. That her mother was declared dead by the doctors.
20. That on 24.07.2012 postmortem was conducted on the body of her mother and at the evening time, the dead body was handed over to them and thereafter her statement was recorded by the police.St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 94
21. That after about 1415 days of the incident when she was standing outside her house, she saw the police coming along with some persons when she identified them as assailants The witness has correctly identified the accused Surender @ Rusy, Ravinder and accused Rajesh by pointing out towards them as the persons whom she had seen running away from her house.
3. Pawan Kumar He is a formal witness who has proved that on 24.7.2012 (PW23) he identified the dead body of Smt. Resham Rani at BSA Hospital vide memo Ex.PW23/A and after postmortem they received the dead body vide memo Ex.PW22/L. Witnesses of Medical Record:
4. Dr. Manoj (PW19) This witness has proved that 24.07.2012 at about 3:15 AM patient Resham Rani was brought to BSA Hospital by her son in law S.P. Satija with the alleged history of stabbing, one hour back as told by the patient herself by two unknown persons. He has proved having examined the patient in the casualty vide MLC which is Ex.PW19/A and at that time, patient was conscious and oriented. On local examination the following injuries were observed on her body parts:
1. Two Stab Wounds over abdomen, one at the left iliac fossa about 3 x 1 cm with peritonial breach through which omentum coming out.
2. Stab Wound over left hypochondrium, size was about 5cm x 2cm, peritonial breach was not clear.
3. Wound at right Para Spinal region at base of neck and wound size is about 3cm x 1cm with 56 cm depth.
Witness has further deposed that patient was planned for OT, despite all life saving procedures and CPR by Anesthetist, patient was declared dead at 4:30 AM and Death Summary report of above said patient was prepared by Dr. Manish under his supervision which is Ex.PW19/B. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 95
5. Dr. Manish This witness has proved having prepared the Death (PW20) Report of deceased Resham Rani which report is Ex.PW20/A according to which cause of death was Cardio Respiratory arrest due to hemorrhagic shock following stab injury. He has also proved having prepared the death summary report which is Ex.PW19/B.
6. Sh. Surender He is the Postmortem Technician, BSA Hospital, Forensic Kumar (PW21) Department, Delhi who has proved that on 24.07.2012 postmortem of Smt. Resham Rani was conducted vide PM report No. 408/2012 and he preserved the blood gauze of the deceased and sealed the same with the seal of the hospital after which he handed over the sealed blood gauze exhibit and sample seal to the Investigating Officer who seized the same vide seizure memo Ex.PW21/A.
7. Dr. Vijay Dhankar He is the Autopsy Surgeon who has proved having (PW26) conducted the postmortem report of the deceased which is Ex.PW26/A according to which on external examination he found following injuries.
1. Incised Stab Wound 5.2cm x 1.5cm present over the left side of front of abdomen in the upper part. The injury is obliquely placed 12cm upper and outer to the umbilicus. The margins are clean cut and one angle is acute while the other is comparatively obtuse. The anterior abdominal wall is thick with wall fact visible to a depth of about 3cm.
2. Incised Stab Wound 3.4cm x 1.2cm present over the left side of front of abdomen in the lower part. The injury is obliquely placed 10cm below and outer to the umblicus and is 12cm below injury no1. The martins are clean cut and one angle is acute while the other is comparatively obtuse.
The anterior abdominal wall is thick with wall for visible to a depth of about 3cm.
3. Incised Stab Wound 3.5cm long present over the back of lower part of neck. The injury is horizontally placed with opposed margins. The St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 96 margins are clean cut and both angles appearing acute.
4. Abrasion 2.5cm x 0.5cm curved shape present over the left inguinal region of the front of abdomen.
He has proved that the death was due to hemorrhagic shock consequent to penetrating injury to the abdomen and neck via injury no. 1 to 3 and all injuries were antemortem, fresh at the time of death and injury no.1 individually as well as combined with injury no.2 to 3 are sufficient to cause death in the ordinary course of nature, though death could have been prevented by medical treatment.
The witness has further deposed that on 23.8.2012 he received one sealed pullanda with the seal of VJ for subsequent opinion and on opening the pullanda he found a buttondar knife and he prepared the schematic diagram of the knife and took the measurements of the same which he mentioned in the diagram. According to the witness after examining the postmortem report Ex.PW26/A and the knife, he gave his subsequent opinion that the injures mentioned in the Postmortem Report could be caused by the weapon examined by him which subsequent opinion in this regard is Ex.PW26/B.
8. Dr. Bhavna Jain This witness has proved that on 24.07.2012 at about 3:15 (PW27) AM, patient namely Resham Rani W/o Late Sh. Jagdish, aged 65 years, R/o D/17/252, Sector 3, Rohini, Delhi, was brought to BSA Hospital by HC Rajbir, with alleged history of stab injury approximately one hour back by two unknown persons, as stated by patient herself. According to the witness she medically examined the patient and started resuscitative treatment and referred to patient to senior resident Surgery for further examination treatment and opinion vide MLC Ex.PW19/A and her observations are present on bracketed portion X to X1. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 97 FSL Experts
9. Sh. Indresh He is the Senior Scientific Officer (Biology) who has Kumar Mishra proved the following aspects:
(PW16) 1. That on 24.07.2012 on request of Inspector Anil Kumar Police Station South Rohini, he examined the scene of crime i.e. D17/252, Ground Floor, Sector 3, Rohini, Delhi.
2. That the scene of crime was thoroughly examined for the presence of blood and other biological clue materials before Inspector Anil Kumar and other police officials.
3. That blood was detected on the floor before the gate, on the floor of the drawing room, two bed sheets, one chunni, one mattress lying on the bed and wooden portion of the window.
4. That Inspector Anil Kumar was advised to forward the above mentioned blood stains prepared from the floor before the gate, blood stains prepared from the floor of the drawing room, two bed sheets, chunni, blood stained cutting of the mattress and wooden portion of the window to FSL for further examination.
5. The he prepared his detailed report which is Ex.PW16/A.
10. Sh. Naresh Kumar He is the Senior Scientific Officer (Biology) who has (PW17) proved the Biological and Serological Reports in respect of the exhibits sent to him for examination. He has proved that on biological examination blood was detected on exhibit exhibit 1a (lady's shirt), 1b (salwar), 2 (cotton wool swab), 3 (gauze cloth piece), 4 (Cotton wool swab), 5 (Gauze cloth piece), 6 (blood stained surface), 8 (blood sample from floor), 9 (gauze clothe piece blood sample), 10 (blood stained mattress), 12a (dark brown colour bed sheet), 12b (pink colour bedsheet), 12c (chunni having brown stains), 13 (wooden piece) and 14 (blood sample of the deceased), however, blood could not be detected on exhibit 7 (piece of surface) and 11 (towel). He has proved the biological examination report which is Ex.PW17/A. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 98 Further, he has proved that on serological examination human blood was found on the exhibits and Blood Group A was detected on exhibit 1a (lady's shirt), 1b (salwar), 3 (gauze cloth piece), 5 (Gauze cloth piece), 6 (blood stained surface), 8 (blood sample from floor), 10 (blood stained mattress), 12a (dark brown colour bedsheet), 12b (pink colour bedsheet), 12c (chunni having brown stains), 13 (wooden piece) and 14 (blood sample of the deceased). The witness has proved the detailed Serological Report in this regard which is Ex.PW17/B. Sh. Naresh Kumar (PW17) Senior Scientific Officer (Biology) he has also proved that on 21.9.2012 sixteen sealed parcels sealed with the seal as mentioned in the forwarding letter were received in the office of the FSL Rohini in case FIR No. 152/2012 Police Station South Rohini (relating to incident prior to the present incident). He has proved having examined the exhibits biologically and on examination the contents of the exhibits, blood was detected on all the exhibits. He has proved his biological report which is Ex.PW17/C. He has also proved that he examined the exhibits serologically and Blood Group 'B' was found on Ex.3 (blood gauze), Ex.4 (blood stained gauze), Ex.5 (blood stained gauze), Ex.8b (peticot), Ex.9a (baniyan), Ex.9b (payjama), Ex.10a (baniyan), Ex.10 b (shirt), Ex.12 (knife), Ex.13a (Tshirt), Ex.13b (jeans pant) and Ex.16 (blood stained gauze) and blood group "A" was found on Ex.14a (T shirt), Ex.14b (jeans pant) Ex.15a (Tshirt) and Ex.15b (jeans pant) whereas Human Blood was detected on Ex.1 (blood stained earth), Ex.2 (concrete piece), Ex.6 (cotton wool swab), Ex.7 (Handkerchief), Ex.8a (blouse) and Ex.11 (Knife). He has proved the serological examination report in this regard which is Ex.PW17/D.
11. Sh. Parshuram He is the Assistant Director (Physics) who has proved that Singh (PW18) on 24.07.2012 he along with Sh. Indresh Kumar Mishra, SSO (Biology) visited the scene of crime i.e. D17/252, Sector 3, Rohini, Delhi where the scene was examined and following observations were made : St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 99
1. The place of occurrence was on the ground floor of the building which consists of one room in front portion, a kitchen area in the middle portion and inner area.
2. There was a window in the front portion of first room. In upper portion of window an AIR conditioner was fixed. In lower portion of window mesh was fixed from outside. The iron mesh was found partially removed. Some impressions marks observed on the frame of the window. On examination of the window, it was found that the mesh was removed from outside.
3. Dark brown stains was observed on the lower portion of the window frame.
4. Blood like stains were observed on the bed sheet and also on the floor.
5. No breakage, bending or striking marks on the locking system and latch of the door of the entrance were observed.
He has proved having prepared his detailed report in this regard which is Ex.PW18/A. Police / Official witnesses:
12. SI Anil (PW1) He is a formal witness being the Crime Team Incharge who has proved having prepared the Crime Team Report which is Ex.PW1/A.
13. Ct. Manoj (PW2) He is a formal witness being the Crime Team Photographer who has proved having taken visited the scene of crime and having taken the photographs Ex.PW2/A1 to Ex.PW2/A17 and negatives of the same are collectively Ex.PW2/B.
14. HC Satish (PW3) He is a formal witness being the Finger Print Proficient who has proved having visited the scene of crime and took chance prints from the spot.
15. HC Narender He is a formal witness being the Duty Officer who has (PW4) proved having registered the FIR No. 153/12 copy of which is Ex.PW4/A and having made his endorsement on the rukka which is Ex.PW4/B. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 100
16. Ct. Mahendra He is a formal witness being the Computer Operator who (PW5) has proved that he fed the original rukka in the computer and recorded the FIR in the present case and had issued the Certificate U/s 65(B) Indian Evidence Act which is Ex.PW5/A.
17. Ct. Sanjay (PW6) He is a formal witness who has proved that on 24.7.2012 the Investigating Officer handed over to him a rukka on which he reached the Police Station and handed over the rukka to the Duty Officer and after registration of FIR he reached the place of occurrence and handed over the copy of FIR and original rukka to the Investigating Officer.
18. Ct. Umesh (PW7) He is a formal witness who has proved the formal arrest of accused Ravinder @ Tunda vide memo Ex.PW7/A, his disclosure statement which is Ex.PW7/B; arrest memo of accused Mahesh @ Chikna Kalia which is Ex.PW7/C, his disclosure statement which is Ex.PW7/D; arrest memo of accused Rajesh @ Tinku @ Kanta which is Ex.PW7/E, his disclosure statement which is Ex.PW7/F; arrest memo of accused Rusy @ Surender which is Ex.PW7/G and his disclosure statement Ex.PW7/H.
19. HC Ram Parvesh He is a formal witness being the Duty Constable at BSA (PW8) Hospital who has proved that on 24.7.201 the Investigating Officer had taken the pullanda of clothes of the injured into possession.
20. SI Manohar Lal He is a formal witness being the Draftsman who has (PW9) proved having prepared the scaled site plan which is Ex.PW9/A.
21. Sushil Kumar He is a formal witness being the Finger Print Expert who (PW10) has proved that on 18.10.2012 he received the scene of crime examination report, photographs of chance prints and a request letter from SHO South Rohini. He has proved having prepared the Finger Print Examination Report which is Ex.PW10/A.
22. Ct. Arvind (PW11) He is a formal witness who has proved that on 27.09.2012 he had taken the exhibits of this case from the MHCM vide RC No. 130/21/12 copy of which is Ex.PW11/A and St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 101 deposited the same in the FSL vide receipt which is Ex.PW11/B.
23. HC Raj Kumar He is a formal witness who has proved that on 18.8.2012 (PW12) he took the exhibits containing the weapon of offence from the MHCM vide RC No. 85/21/12 copy of which is Ex.PW12/A and deposited the same at Mortuary BSA Hospital vide receipt Ex.PW12/B.
24. Ct. Vishram He is a formal witness being the Special Messenger who (PW13) has proved having supplied the copies of FIR to the senior officers and the Ld. MM.
25. Ct. Ram Sewak He is a formal witness being the PCR official who has (PW14) proved the PCR Form which is Ex.PW14/A.
26. Ct. Amar (PW15) He is a formal witness who has proved that on 24.7.2012 on receipt of information he along with ASI Surender reached the spot of incident where he preserved the scene of crime.
27. Dharmender He is the Ahlmad in the court of Sh. Rajneesh Bhatnagar, Sehrawat (PW24) ASJII, North, Rohini has brought the summoned record i.e. case FIR No. 152/12 PS South Rohini titled State Vs. Rusy @ Surender under Section 302/460/396/380/457/34 IPC and has proved the copy of arrest memo of accused Mahesh which is Ex.PW24/A; copy of arrest memo of accused Rajesh @ Tinku which is Ex.PW24/B; copy of arrest memo of accused Ravinder @ Tunda which is Ex.PW24/C; copy of arrest memo of accused Rusy @ Surender is Ex.PW24/D; copy of personal search memo of accused Mahesh which is Ex.PW24/E; copy of personal search memo of accused Rajesh @ Tinku which is Ex.PW24/F; copy of personal search memo of accused Ravinder @ Tunda which is Ex.PW24/G; copy of personal search memo of accused Rusy @ Surender is Ex.PW24/H; copy of disclosure statement of accused Mahesh which is Ex.PW24/I; copy of disclosure statement of accused Rajesh @ Tinku which is Ex.PW24/J; copy of disclosure statement of accused Ravinder @ Tunda which is Ex.PW24/K; copy of disclosure statement of accused Rusy @ Surender is St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 102 Ex.PW24/L; copy of seizure memo of buttondar knife recovered from accused Rajesh @ Tinku which is Ex.PW24/M; copy of seizure memo of buttondar knife recovered from accused Ravinder @ Tunda which is Ex.PW24/N; copy of seizure memo of iron rod which is Ex.PW24/O and copy of seizure memo of iron rod which is Ex.PW24/P.
28. HC Virender He is a formal witness being the MHCM who has proved (PW28) entry in register No. 19 vide Mud No. 3716/12 dated 24.07.2012 copy of which is Ex.PW28/A; copy of Mud No. 3717 dated 25.07.2012 which is Ex.PW28/B, entry in register No. 21 vide RC No. 85/21/12, RC No. 130/21/12, copies of which are Ex.PW12/A and Ex.PW11/A respectively and FSL Receipt copies of which are Ex.PW12/B and Ex.PW11/B respectively. He has also proved the copy of Mud No. 3772 dated 28.08.2012, copy of which is Ex.PW28/C.
29. ASI Surender This witness had reached the spot of incident pursuant to (PW29) DD No. 4B. He has proved the following documents:
Ex.PW29/A Seizure memo of the clothes of the
deceased
Ex.PW22/C Seizure memo of foot prints
Ex.PW22/D Seizure memo of purse containing one
original RC of motorcycle No.
DL8SAQ1008, one voter ID card of
Dalip Kumar, one copy of driving licence
of Prem Chand and some other papers
Ex.PW22/E Seizure memo of towel
Ex.PW22/F Seizure memo of blood gauze sample and
earth control
Ex.PW22/G Seizure memo of blood stained bed sheet
and chunni
Ex.PW22/H Seizure memo of blood stained chaukhat
Ex.PW22/I Seizure memo of blood sample
Ex.PW22/J Seizure memo of chappals
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 103
30. SI Mohd. Imtiyaz They are the witnesses who have apprehended and (PW30), SI arrested the accused persons in case FIR No. 152/2012, Avdhesh (PW31), Police Station South Rohini. All these witnesses have HC Raj Kumar proved the following aspects:
(PW32) and 1. That on 25.07.2012 they proceeded for the Inspector V.N. Jha investigations of case FIR No. 152/12 and tried to (PW34) search for the accused persons but they could not found.
2. That Inspector V.N. Jha contacted the complainant and asked from him about the description of the accused persons wanted in case FIR No. 152/12 and thereafter he called all the beat staff and briefed them about the description of the accused persons as told by the complainant.
3. That thereafter they reached at H32 Park, Sector 3, Rohini, Delhi where Ct. Raj Kumar met them who informed that he had seen three assailants according to the description told to him.
4. That on this information the police party reached in the park at about 9:3010 PM.
5. That accused Rusy @ Surender was apprehended by SI Mohd. Imetyaz and Ct. Raj Kumar whereas SI Avdesh apprehended accused Rajesh @ Tinku and the accused Ravinder @ Tunda was apprehended by Inspector V.N. Jha.
6. That all the three accused persons were interrogated and they were arrested in case FIR No. 152/12.
7. That the disclosure statement of accused Rusy was recorded vide Ex.PW24/L, disclosure statement of accused Ravinder @ Tunda vide Ex.PW24/K and disclosure statement of accused Rajesh @ Tinku vide Ex.PW24/J.
8. That formal search of the accused persons were carried out, from the formal search of accused Rajesh a buttondar knife is recovered and the Inspector V.N. Jha prepared the sketch of the knife vide Ex.PW31/A. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 104
9. That Inspector V.N. Jha took the measurements of the knife and the total length of the blade was 15 cm, width of the blade was 3cm and total length of the knife was 32 cm and the said knife was given serial No. K1 after which the same was converted into pullanda and sealed with the seal of VJ and took the same into possession vide memo Ex.PW31/B.
10. That from the search of accused Rusy a coin of silver type was recovered which coin was converted into pullanda in a plastic dibbi which was sealed with the seal of VJ and was marked as SC1 after which plastic dibbi was sealed with the seal of doctor tape and thereafter the same was taken into possession vide memo Ex.PW30/A.
11. That two ATM cards of SBI belonging to Dalip, brother of complainant in case FIR No. 152/12, have been recovered from the possession of accused Rusy @ Surender.
12. That from the search of accused Ravinder a coin of silver type was also recovered and the said coin was converted into pullanda in a plastic dibbi and was sealed with the seal of VJ which was marked as SC3 after which the plastic dibbi was sealed with the seal of doctor tape and thereafter the same was taken into possession vide memo Ex.PW30/B.
13. That from the search of accused Rajesh @ Tinku a coin of silver type was also recovered which coin was also converted into pullanda in a plastic dibbi which was sealed with the seal of VJ and was marked as SC2 and the plastic dibbi was sealed with the seal of doctor tape and thereafter the same was taken into possession vide memo Ex.PW30/C.
14. That thereafter the police team made the search of other accused persons but on that day on other accused were arrested.
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 105
15. That thereafter at about 2:30 AM accused persons were got medically examined and the accused persons disclosed that the other two accused persons involved in the present case may be found available in BSA hospital in the morning hours as usually they used to came there.
16. That the police team started waiting for the movement in BSA Hospital and at about 10:00 AM other accused namely Mahesh @ Chikna Kalia and Amit @ Gora (since juvenile) apprehended at the instance of other accused persons.
17. That accused Mahesh @ Chikna also made his disclosure statement vide Ex.PW24/I.
18. That thereafter accused Ravinder @ Tunda, Rajesh @ Tinku and Rusy @ Surender got recovered their blood stained clothes which they had buried behind BSA Hospital.
19. That the blood stained clothes of the accused persons were converted into pullandas and were sealed with the seal of VJ and given serial No. BSC1, BSC2 and BSC3 respectively and were taken into possession vide memo Ex.PW30/D1 to Ex.PW30/D3 respectively.
20. That seal after use was handed over to SI Imetyaz.
21. That accused persons pointed out the place of incident in respect of FIR No.152/12.
22. That during investigations accused Ravinder also got recovered a knife and Inspector V.N. Jha prepared the sketch of the knife which is Ex.PW31/C.
23. That the total length of the knife was found 25cm, blade was 11.3 cm, width of the blade was 2.5cm and thereafter the knife was converted into pullanda and sealed with the seal of VJ and thereafter taken into possession vide seizure memo Ex.PW24/N and it was given mark K2.
24. That when the search of the accused Rusy @ Surender was carried out, from his right side an iron rod (rusted) was recovered which he was St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 106 hiding on his left side.
25. That the length of the iron rod was found 30 cm and Inspector V.N. Jha converted the said rod into a pullanda and sealed with the seal of VJ and was taken into possession vide memo Ex.PW24/P.
26. That seal after use was handed over to SI Imteyaz.
27. That the accused Mahesh, Rajesh, Ravinder and accused Rusy @ Surender were arrested vide memo Ex.PW24/A to Ex.PW24/D respectively.
28. That their personal search were carried out vide memos Ex.PW24/E to Ex.PW24/H respectively.
29. That on 01.08.2012 Inspector V.N. Jha obtained the photocopy of seizure memo of purse belonging to Dalip Kumar, brother of complainant in case FIR No. 152/12 from the Investigating Officer of the present case i.e. Inspector Anil Kumar.
31. SI Ravi Kumar This witness had reached the spot along with Inspector (PW33) Anil Kumar and has proved the following aspects:
1. That on 24.07.2012 he he joined the investigation of this case alongwith Inspector Anil Kumar.
2. That on receipt of DD No.4B he alongwith Ct.
Sanjay and Investigating Officer reached H.No. D17/252 Sector3, Rohini, Delhi where they met ASI Surender and Ct. Amar who informed that the injured Resham Devi, aged 65 years had been removed to the BSA Hospital by the PCR official.
3. That they found a lot of blood scattered on the ground floor in the Aangan and the drawing room and they then went to the BSA Hospital where the injured Resham Devi was unfit for statement and her MLC was collected.
4. That a sealed pullanda duly sealed with the seal of the BSA Hospital containing the clothes of the injured and sample seal were given to the Investigating Officer by the Duty Constable.
5. That they also met one public person by the name of Shishu Pal who claimed to be an eye witness to the incident and was the son in law of the injured. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 107
6. That while they were interrogating Shishu Pal they came to know that injured Resham Devi had expired on which Investigating Officer recorded statement of Shishu Pal and converted the same into rukka and handed over the same to Ct. Sanjay with the direction to take the same to the Police Station for registration of the case.
7. That the dead body was got preserved in the mortuary for 72 hours after which they returned to the spot i.e. D17/272, Sector 3, Rohini, Delhi alongwith Shishu Pal.
8. That a scooty was parked outside the house on which footprint was noticed and they also found a towel on the AC window just while entering the the house and a pair of chappal under the AC window.
9. That inside the drawing room there were two bedding and both the bed sheets were smeared with blood.
10. That one blood stained chunni was also lying on the bed and the internal ground floor rooms were found ransack and the AC window was broken with blood on the chaukhat of the window.
11. That the Crime Team came to the spot, inspected the same, took photographs and lifted chance prints and the FSL team was also called to the spot by the Investigating Officer who examined the spot.
12. That in the meanwhile the Investigating Officer also asked the daughter of the deceased namely Jyoti to check the belongings in the house and to tell if any other thing was missing.
13. That after checking Jyoti informed that she had found a brown colored gents purse in the lobby which did not belong to anybody in the family after which the photographs of the said purse were also got taken from the crime team photographer.
14. That Investigating Officer Inspector Anil Kumar then lifted exhibits from the spot i.e. blood stained floor from the Angan with the help of cotton and St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 108 gauze, blood from the drawing room, cuttings of the blood stained bed sheets, towel lying near the AC window, one pair chappals, footprint by the cutting of seat cover, blood stained Chunni, blood stained Chaukhat of AC window by breaking the one side of the AC window and gents purse of brown colour containing RC of DL 8 SA Q 1008 in the name of Dalip Kumar and a voter ID Card in the name of Dalip and a photocopy of driving licence in the name of Prem Chand and some papers.
15. That all the exhibits were converted into separate pullandas and were sealed with the seal of RK which was his seal as Inspector Anil Kumar was not carrying his seal.
16. That the Investigating Officer then seized the above exhibits, seizure memo of foot prints is Ex.PW22/C, the seizure memo of the purse is Ex.PW22/D, the seizure memo of Towel is Ex.PW22/E, the seizure memo of blood gauze sample and earth control is Ex.PW22/F, the seizure memo of blood stained bed sheet and chunni is Ex.PW22/G, the seizure memo of blood stained wooden chaukhat is Ex.PW22/H, the seizure memo of blood sample is Ex.PW22/I and the seizure memo of pair of chappals is Ex.PW22/J.
17. That the seal after use was handed over to him.
18. That the Dog Squad was also called at the spot who inspected the scene of crime.
19. That the Investigating Officer then interrogated Jyoti and Shishu Pal at length.
20. That in the evening he accompanied the Investigating Officer to the hospital where the postmortem was conducted on the dead body and after the postmortem the dead body was handed over to the son in law of the deceased namely Shishu Pal.
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 109
32. Inspector Anil He is the Investigating Officer of the present case and has Kumar (PW35) proved the following aspects:
1. That on 24.07.2012 he was posted as Inspector in Police Station South Rohini and on that day he received DD No. 4B copy of the same is Ex.PW35/A and reached at the spot at D17/252 alongwith SI Ravi and Ct. Sanjay.
2. That on reaching there he found blood scattered in an outside the room and they came to know that the injured Resham Rani W/o Jagdish Lal was sifted to BSA Hospital by the PCR official.
3. That Ct. Amar was deputed for the preservation of the spot and he alongwith other staff went to the BSA Hospital where the injured Resham Rani was under treatment vide MLC and was declared unfit for statement and her MLC was collected.
4. That a sealed pullanda duly sealed with the seal of the BSA Hospital containing clothes of the injured and sample seal were given to him by the Duty Head Constable Ram Pravesh, which was taken into possession vide memo Ex.PW29/A.
5. That they also met one public person by the name of Shishu Pal who claimed to be the eye witness of the incident and was the son in law of the injured and while they were interrogating him they came to know that injured Resham Rani had expired.
6. That he received an information about the death of the injured vide DD No.10A which is Ex.PW35/B.
7. That he recorded statement of Shishu Pal which is Ex.PW22/A on which he also made his endorsement vide Ex.PW35/C and converted the same into rukka and handed over the same to Ct.
Sanjay with the direction to take the same to the Police Station for registration of the case and to report at the spot after getting registered the case with copy of FIR.
8. That he received the death summary Ex.PW19/B and death report Ex.PW20/A of the injured after which the dead body was got preserved in the St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 110 mortuary for 72 hours.
9. That thereafter they returned to the spot i.e. D17/252, Sector 3, Rohini, Delhi alongwith Shishu Pal where Crime Team was present and photographed the scene of crime.
10. That in the meanwhile he instructed Smt. Jyoti Satija to find out the other articles which could be stolen on which she was started taking the search of household articles and when she lifted the clothes from a chair in the lobby a purse fell on the ground about which she informed that the same was not belonging to them.
11. That the purse was photographed and the same was checked and it found to contain one RC of motorcycle DL 8S AQ 1008 and original voter ID Card in the name of Dalip s/o Bishan Lal, one duplicate driving licence of Prem Chand S/o Bishan Lal, some papers and visiting card and two photographs.
12. That the purse along with its contents was taken into possession vide memo Ex.PW22/D.
13. That he obtained the crime team report and after a thorough inspection of the crime scene he prepared rough site plan which is Ex.PW22/B.
14. That there was a scooty parked outside the house on which footprint was noticed and they also found a towel on the AC window just while entering the house and a pair of chappal under the AC window and inside the drawing room there were two bedding and both the bed sheets were smeared with blood.
15. That one blood stained chunni was also lying on the bed and the internal ground floor rooms were found ransacked and the AC window was broken with blood on the chaukhat of the window.
16. That he then lifted exhibits from the spot i.e. blood stained floor from the Angan with the help of cotton and gauze, blood from the drawing room, cuttings of the blood stained bed sheets, towel St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 111 lying near the AC window, one pair chappals, footprint by the cutting of seat cover, blood stained Chunni, Blood Chaukhat of AC window by breaking the one side of the AC window and gents purse of brown colour containing RC of DL 8 SA Q 1008 in the name of Dalip Kumar and a voter ID Card in the name of Dalip and a photocopy of driving licence in the name of Prem Chand and some papers.
17. That all the exhibits were converted into separate pullandas and were sealed with the seal of RK which was the seal of Ravi Kumar as he was not carrying his seal at that time and the seal after use was handed over to SI Ravi Kumar.
18. That foot prints were seized vide Ex.PW22/C, purse was seized vide memo Ex.PW22/D, Towel was seized vide memo Ex.PW22/E, blood gauze sample and earth control was seized vide memo Ex.PW22/F, blood stained bed sheet and chunni were seized vide memo Ex.PW22/G, blood stained wooden chaukhat was seized vide memo Ex.PW22/H, blood sample was seized vide memo Ex.PW22/I and the pair of chappals was seized vide memo Ex.PW22/J.
19. That the Dog Squad had also been called at the spot but there was no trail and thereafter he alongwith staff reached at the hospital where he prepared the inquest papers and got the dead body identified from her relatives.
20. That he prepared the inquest Form 25.35 (1)(B) which is Ex.PW35/D, the Identification memo of dead body vide Ex.PW22/K and Ex.PW23/A, also prepared the brief facts which are Ex.PW35/E.
21. That after the postmortem examination the dead body was handed over to her relatives vide Ex.PW22/L.
22. That he recorded the statement of SI Ravi and ASI Surender and relieved them and he then reached the spot alongwith the remaining staff and St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 112 recorded the statement of Ms. Jyoti and Shishu Pal.
23. That he thereafter reached the office of crime team and recorded statement of members of the crime team and then returned to the Police Station and deposited the case property in the Malkhana and recorded statement of Ct. Amar and relieved them.
24. That during the investigation he received the documents, disclosure statements, recovery memos, memo of weapon of offence, seizure memo from Inspector V N Jha and came to know about the arrest of accused Surender, Rajesh, Ravinder and Mahesh in FIR No.152/12 Police Station South Rohini wherein they had disclosed their involvement in this case.
25. That he moved an application seeking production of accused persons before Ld. MM pursuant to which on 09.08.2012 all the accused were produced before them and after due permission from the Ld. MM he arrested them.
26. That he arrested the accused Ravinder vide Ex.PW7/A, his disclosure statement was recorded vide Ex.PW7/B.
27. That he arrested accused Mahesh vide Ex.PW7/C and recorded his disclosure statement which is Ex.PW7/D.
28. That he arrested the accused Rajesh @ Tinku vide memo Ex.PW7/E and his disclosure statement was recorded vide Ex.PW7/F.
29. That he arrested the accused Rusy @ Surender vide memo Ex.PW7/G and his disclosure statement was recorded vide Ex.PW7/H.
30. That the accused were kept in muffled faces and he made a request to the Ld. MM for getting conducted the TIP of the accused persons which application is Ex.PX6, but the accused persons refused for the same.
31. That after getting conducted the said proceedings, he obtained the copy of the proceedings which are St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 113 Ex.PX7, Ex.PX8, Ex.PX9 and Ex.PX10.
32. That he then obtained the three days police custody remand of all the four accused on 09.08.2012.
33. That on 10.08.2012 the accused led them to D17/252, Sector 3 Rohini and pointed out the place of incident where they broken the jali of the window and entered the house after which they committed the robbery and stabbed an old lady and escaped.
34. That he prepared the pointing out memo by accused Rajesh @ Tinku which is Ex.PW35/F, pointing out memo by accused Mahesh @ Chikna Kalia which is Ex.PW35/G, pointing out memo of accused Ravinder @ Tunda which is Ex.PW35/H, pointing out memo by accused Rusy @ Surender which is Ex.PW35/I.
35. That while the accused were present at the spot, Smt. Jyoti Satija came out of the house and identified Ravinder, Surender and Rajesh as the assailants whom she had seen while she was at the second floor and they were coming out of the house from the ground floor and running away at the time of the incident.
36. That he came to know that three robbed articles i.e. Bali/ ear ring, watch and ring had not been recovered and he then tried to search for the said articles and interrogated the accused but they did not get the same recovered.
37. That after the completion of period of police custody remand the accused were produced before the Ld. MM and got remanded to Judicial custody.
38. That on 18.08.2012 he sent the weapon of offence to Autopsy Surgeon through Ct. Raj Kumar and after return of Ct. Raj Kumar recorded his statement.
39. That on 28.08.2012 he alongwith Ct. Raj Kumar went to the mortuary of BSA Hospital and obtained the subsequent opinion of Autopsy St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 114 Surgeon on the weapon of offence and also received the weapon of offence in sealed condition alongwith a blood gauze both were sealed with the seal of hospital.
40. That he seized the blood gauze alongwith the sample seal vide Ex.PW21/A.
41. That he reached at the Police Station and deposited the case property in the Malkhana.
42. That on 14.09.2012 he got the scaled site plan prepared from Draftsman SI Manohar Lal and recorded his statement.
43. That on 27.09.2012 he sent the various exhibits to FSL Rohini through Ct. Arvind and thereafter recorded his statement and relieved him and he then recorded statement of other witness, prepared the charge sheet and filed the same in the court.
44. That on 29.09.2012 he got conducted the TIP proceedings of Case property from the concerned MM which was duly identified by complainant Shishu Pal.
45. That he collected the FSL report Ex.PW17/A and prepared supplementary charge sheet which he filed in the court.
(99) Coming now to the microscopic evaluation of the evidence against the accused persons.
Promptness in registration of FIR:
(100) Promptness in registration of FIR rules out any possibility of tutoring, tempering and padding by the police. The Hon'ble Apex Court in the case of Bhag Singh Vs. State of Punjab reported in 1971 Cr.L.J. 903 has held that ".... The promptness in lodging report justifies the inference in the circumstance of the case that the report was not a St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 115 concocted story. Where soon after occurrence FIR is lodged, it is difficult to believe that false story was cooked up...".
(101) In the present case, Shishu Pal Satija the son in law of the deceased Resham Rani is the complainant who was the person to whom the deceased had last spoken and informed that two persons in black clothes had come and had stabbed her and run away. It was Shishu Pal Singh who had made a call at 100 number and called the PCR. He at the first instance had informed the Investigating Officer that when he came downstairs on hearing the alarm raised by her mother in law, he asked her as to what had happened on which her mother in law informed him that two persons in black clothes had come and had stabbed her and run away. It is evident from the record that after Shishu Pal Satija made his statement to Inspector Anil Kumar (Ex.PW22/A), the rukka Ex.PW35/C was prepared at 5:30 AM on the basis of which the FIR Ex.PW4/A was registered at 5:50 AM which aspect has been duly proved by the Duty Officer HC Narender (PW4) and Inspector Anil Kumar (PW35) and has gone uncontroverted.
(102) Here, I may observe that perusal of the FIR No. 152/2014, Police Station South Rohini under Sections 302/460/34 IPC which is relating to the incident which had taken place a few minutes earlier to the present case, shows that the said FIR was registered prior to the present FIR at 5:15 AM by the Duty Officer HC Narender on the statement of St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 116 Bhim S/o Bishan Singh who had specifically mentioned that he can identify all the three assailants as he had been able to apprehend one of the assailant whereas his deceased mother had apprehended another assailant who had managed to escape after she was stabbed. In the FIR the description of the boy who had been caught by Bhim has been given by him as thin and fair wearing a cap (in the present case i.e. FIR No. 153/2012 even Jyoti says that one boy was fair with very small hairs). Further, in FIR No. 152/2012 the complainant Bhim has given the description of the boy who was caught by his mother Shanti Devi (deceased therein) as medium built with small hair and wearing a black pants and the assailant who had inflicted injuries on his mother as medium built wearing a white Tshirt and all the boys being in the age group of 2025 years (in the present FIR i.e. 153/2012 even Jyoti states that all the three boys were of the age group of 2025 years and was wearing dark clothes whereas the deceased Resham Rani had informed Shishu Pal before her death that two boys wearing black clothes had given her stab injuries). It cannot be a coincidence that the description of the assailants in both the cases given to the police at the first instance is so similar and matches with the accused whose identity came to be known to the victim as well as to the police much later. In the said case i.e. FIR no. 152/2012 the complainant Bhim has also mentioned that a brown coloured purse which was in the pocket of the pants of his brother Dalip which pants was hanging on the nail inside the room where the incident had St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 117 taken place, was missing which purse was containing RC, voter I Card, old ATM cards, other visiting cards and cash of Rs.160/. It again cannot be a coincidence that his purse with all the documents except the cash of Rs. 160/ was found in the room of the victim Resham Rani. It only confirms that the assailants who had committed the first incident in respect of which FIR No. 152/2012 was registered, were the same who committed the second incident in respect of which FIR No. 153/2012 (present FIR was registered).
(103) This promptness in registration of both the FIRs lends credibility to the version put forth by the prosecution particularly on the aspect of the identity of the accused persons and the manner of commission of offences in both the cases and rules out the possibility of the story being cooked up later as an afterthought. Motive of the Offence/ Common Intention:
(104) The case of the prosecution is that the sole motive for the offence in question was House Lurking Trespass and an Armed Dacoity/ Robbery with an intent to kill and silence the victim in case of any resistance. Both the sides i.e. the victim as well as the accused persons were not known to each other. The case of the prosecution is that on the intervening night of 2324.7.2012 two similar incidents of lurking house trespass had been committed in the same area by same set of accused i.e. Rusy @ Surender, Rajesh @ Tinku, Ravinder @ Tunda, St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 118 Mahesh @ Chikna and juvenile accused Amit @ Gora. All the accused got together on the intervening night and first they entered House No. G30/340341, Sector 3, Rohini, Delhi for committing robbery but the occupants of the said house namely Bhim and Shanti Devi wokeup and caught hold of them and hence in order to free themselves and escape the assailants in furtherance of their common intention inflicted stab injuries to the victim, after which they escaped from the spot. When they checked the looted articles from the said house and distributed the looted articles they found that the same were not sufficient and hence they decided to enter another house situated in the same area at the corner of the Block.
when they found that they could enter the same through the AC window. It is also the case of the prosecution that there was a scooty standing outside the house on which the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda entered the house whereas the accused Mahesh @ Kaliya and juvenile Amit @ Gora remained outside the house to keep a watch. While the accused were in the process of committing robbery the victim Resham Rani who was sleeping in the room woke up and raised an alarm. The accused threatened her to keep quite but she continued to raise an alarm on which Rajesh @ Tinku stabbed her after which all the accused escaped from the spot.
(105) I may observe that the Motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive would only St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 119 strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
(106) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence. (107) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused. [Ref.:
IV (2012) SLT 257].St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 120
(108) Moreover, in a case where there is clear proof of motive for the commission of a crime, it affords added support to the finding of the court that the accused is guilty of the offence charged with. However, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to certain course of action leading to the commission of the crime [Ref.: State of U.P. Vs. Bahu Ram reported in 2000 (4) SCC 515 and Ujjagal Singh Vs. State of Punjab reported in 2007 (14) SCALE 428].
(109) In so far as the aspect of common intention shared by the accused is concerned, I may observe that Section 34 Indian Penal Code has been enacted on the principal of 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 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 St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 121 evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if prearranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more 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 Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements 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 intentions of all" nor does it say "an 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 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 St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 122 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 Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. 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 over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P. reported in 2004(3) SCC 793 and reference in this regard is also being made to the decision of the Delhi High Court in the case of Mohd. Saleem Vs. State, Crl. Appeal No. 484/2011 decided on 31.5.2013 by the Bench headed by Hon'ble Mr. Justice Sanjiv Khanna. (110) Applying the settled principles of law to the facts of the present case, it is evident that Firstly both the parties i.e. the accused and the victims were not known to each other nor there is any history of animosity between the parties and the motive of the commission of offence was sole monetary gain and to silence anyone who tried to raise an alarm.
(111) Secondly the robbed articles belonging to the victim i.e. Three silver coins Ex.P1, Ex.P2 and Ex.P3 were recovered from the possession of the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda at the time of their apprehension (as discussed herein above) which stand established. (Here, I note that there is no recovery St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 123 from Mahesh @ Chikna).
(112) Thirdly the accused had looted a brown coloured purse from house No. G30/340, Sector 3, Rohini, Delhi (FIR No. 152/2012) which purse they had left at the house of victims in the present case i.e. property bearing No. G30/340 Sector 3 Rohini, Delhi. When the police reached the spot of incident and asked Smt. Jyoti Satija to check and give the details of the robbed articles, Smt. Jyoti Satija found the said purse under the quilt which she handed over to the police informing that it did not belong to them. On checking the purse it found to contain one RC of motorcycle DL 8S AQ 1008 and original voter ID Card in the name of Dalip S/o Bishan Lal, one duplicate driving licence of Prem Chand S/o Bishan Lal, some papers having the address of G30/340 Sector 3 Rohini, Delhi, visiting card and two photographs (as confirmed from the contents of the FIR No.152/2012, Police Station South Rohini, under Section 460/302/34 IPC). The said purse and its contents were also got photographed and the above witnesses have identified the said purse and its contents from the photographs which are Ex.PW25/A1, Ex.PW25/A2, Ex.PW25/A3, Ex.PW25/A4, Ex.PW25/A5, Ex.PW25/A6, Ex.PW25/A7 and Ex.PW25/A8. The above aspect has been duly proved by Shishu Pal Satija (PW22), Smt. Jyoti Satija (PW25), SI Ravi Kumar (PW33) and Inspector Anil Kumar (PW35) which establishes that prior to committing the incident of lurking house trespass and robbery in the present case, the accused had already committed a St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 124 similar offence in the same area i.e. in House No. G30/340 Sector 3 Rohini, Delhi which is hardly 500 meters from the spot of incident in the present FIR.
(113) Fourthly it is evident from the testimonies of the various prosecution witnesses and the photographs of the scene of crime which show that blood spots were found in and outside the room and also on the chaukhat of AC window which explains that the victim was probably trying to catch the assailants before she fell on her bed when her son in law reached her (MLC shows that victim was conscious when she was brought to the hospital and was speaking).
(114) Fifthly I may observe that the forensic expert Sh. Parshuram Singh (PW18) has proved that on 24.07.2012 he along with Sh. Indresh Kumar Mishra, SSO (Biology) visited the scene of crime i.e. D17/252, Sector 3, Rohini, Delhi where the scene was examined and he had observed that iron mesh was found partially removed. The wiremesh of the AC window was turned outside the house confirming that the entry in the house has been secured from outside.
(115) Sixthly the knife so recovered from the possession of accused Rajesh @ Tinku which is Ex.P11 establishes the presence of Human Blood on the same. Further, the clothes recovered at the instance of the accused Rusy @ Surender and Rajesh @ Tinku establishes the presence of Human Blood of 'A' Group i.e. the blood of the victim Smt. Resham Rani which connects the accused with the offence.
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 125 (116) Seventhly the knife so recovered from the possession of accused Ravinder @ Tunda which is Ex.P12 shows the presence of Human Blood of 'B' Group i.e. the same blood group as of victim in case FIR No. 152/2012, Police Station South Rohini. Also, the clothes of the accused Ravinder @ Tunda show the presence of Human Blood of 'B' Group i.e. the blood of the victim Shanti Devi in FIR No. 152/2012, Police Station South Rohini, under Section 460/302/34 IPC. (117) Lastly the manner in which the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda acted in consortium and committed house lurking and trespass and robbery and then in order to silence the victim inflicted repeated stab injuries upon Smt. Resham Rani on her vital parts establishes that their intent to commit armed robbery and to silence the victim in case of resistance offered to them. (118) In view of the above, I hereby hold that there is ample material on record to prove that the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda shared common intention. This being so, although actual stabbing was done by accused Rajesh @ Tinku but all the accused are liable for his acts which resulted into death of Smt. Resham Rani. The manner in which the incident had been given effect confirms and establishes that not only the motive of the offence in question was to commit an Armed robbery but the use of dangerous weapon i.e. knife upon the victim on her vital parts conclusively establishes the intention which was to kill and silence the victim because of the resistance offered St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 126 by him. Further, the recovery of robbed silver coins belonging to the victim and the weapon of offence which the forensic evidence conclusively confirms had been used in the murder of the deceased conclusively establishes the motive so alleged i.e. to commit an armed robbery and to silence the victim in case of resistance offered to them. Medical Evidence:
(119) The case of the prosecution is that on the intervening night of 2324.7.2012there was an armed robbery/ dacoity in house bearing No. B17/252, Sector3, Rohini, Delhi where the victim Smt. Resham Rani was residing on the ground floor whereas her daughter, son in law and other family members were residing on the top floors. While the robbery had taken place in the midnight the victim Smt. Resham Rani who was sleeping on the ground floor had woken up and on seeing the robbers raised an alarm on which she was brutally stabbed by the assailants and as many as four injuries were inflicted to her (of which three were stab injuries). In this regard the prosecution has placed its reliance on the testimonies of Dr. Manoj (PW19), Dr. Manish (PW20), Dr. Vijay Dhankar (PW26) and Dr. Bhavna Jain (PW27).
(120) Coming first to the testimony of Dr. Manoj (PW19) who has proved that on 24.07.2012 at about 3:15 AM patient Resham Rani was brought to BSA Hospital by her son in law S.P. Sateja with the alleged history of stabbing, one hour back as told by the patient herself by two St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 127 unknown persons, pursuant to which she was examined in the Casualty vide MLC No. 3770/12 which is Ex.PW19/A and at that time, patient was conscious and oriented. Dr. Manoj has proved that on local examination the following injuries were observed on her body:
1. Two Stab Wounds over abdomen, one at the left iliac fossa about 3 x 1 cm with peritonial breach through which omentum coming out.
2. Stab Wound over left hypochondrium, size was about 5cm x 2cm, peritonial breach was not clear.
3. Wound at right para spinal region at base of neck and wound size is about 3cm x 1cm with 56 cm depth.
(121) He has also proved the Death Summary prepared by Dr. Manish under his supervision which Death Summary is Ex.PW19/B. Dr. Manish (PW20) has also proved the Death Summary Ex.PW19/B and the death report in respect of the deceased Resham Rani which is Ex.PW20/A according to which the death was Cardio Respiratory arrest due to Hemorrhagic Shock following stab injuries. Dr. Bhavna Jain (PW27) has also proved having examined the patient Resham Rani and that the history of stabbing by two unknown persons was given by the patient Resham Rani herself. She has proved the MLC of the victim Ex.PW19/A according to which she started resuscitative treatment and referred to patient to SR Surgery for further examination.
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 128 (122) Coming now to the testimony of Dr. Vijay Dhankar (PW26) the Autopsy Surgeon. He has proved having conducted the postmortem examination on the dead body of the deceased Resham Rani vide postmortem report Ex.PW26/A according to which on external examination he found following injuries and their nature:
1. Incised Stab Wound 5.2cm x 1.5cm present over the left side of front of abdomen in the upper part, which injury was obliquely placed 12 cm upper and outer to the umbilicus. The margins of the injury were clean cut with one angle acute while the other comparatively obtuse. The anterior abdominal wall is thick with wall fact visible to a depth of about 3cm.
2. Incised Stab Wound 3.4cm x 1.2cm present over the left side of front of abdomen in the lower part which injury was obliquely placed 10cm below and outer to the umblicus and was 12 cm below injury no.1. The margins were clean cut with one angle acute while the other was comparatively obtuse. The anterior abdominal wall is thick with wall for visible to a depth of about 3 cm.
3. Incised Stab Wound 3.5cm long present over the back of lower part of neck which injury was horizontally placed with opposed margins which margins were clean cut and both angles appearing acute.St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 129
4. Abrasion 2.5cm x 0.5cm curved shape present over the left inguinal region of the front of abdomen.
(123) He has further proved that on internal examination he found cut in the mesentarony of small intestine corresponding with the external injury no.1. He has proved having opined that the death was due to hemorrhagic shock consequent to penetrating injury to the abdomen and neck via injury no. 1 to 3, all injuries were antemortem, fresh at the time of death and injury no.1 individually as well as combined with injury no.2 to 3 are sufficient to cause death in the ordinary course of nature, though death could have been prevented by medical treatment. (124) The Autopsy Surgeon has further proved that on 23.8.2012 he received one sealed pullanda with the seal of VJ for subsequent opinion and on opening the pullanda he found a buttondar knife on which he prepared the schematic diagram of the knife and took the measurements of the same. He has proved that after examining the postmortem report and the knife he gave his subsequent opinion that the injures mentioned in the Postmortem Report could be caused by the weapon examined by him, which subsequent opinion in this regard is Ex.PW26/B. He has identified the knife which is Ex.P11. (125) The above medical evidence has not been controverted by the accused whose counsels have not examined the above witnesses at all. I St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 130 may observe that as many as three stab wounds have been inflicted upon the victim i.e. incised stab wound 5.2 cm x 1.5 cm over the left side of front of abdomen in the upper part; incised stab wound 3.4 cm x 1.2 cm over the left side of front of abdomen in the lower part and the incised stab wound 3.5 cm long present over the back of lower part of neck of which the injury on the front of abdomen and left side of abdomen were acute on one side and obtuse on the other side. These injuries match the sketch Ex.PW26/A of the knife Ex.P11 which shows that the shape of the blade was peculiar towards the end i.e. acute from one side and obtuse from the other which sketch was prepared and proved by Dr. Vijay Dhankar (matches with the knife Ex.P11) which knife was recovered from the possession of accused Rajesh @ Tinku and the FSL report confirms Human Blood on the same. It is this shape of the blade of the knife which connects the use of knife Ex.P11 upon the victim as of the injuries particularly the Injury no.1 i.e. Incised Stab Wound 5.2cm x 1.5cm over the left side of front of abdomen in the upper part, which injury was obliquely placed 12 cm upper and outer to the umbilicus having margins which were clean cut with one angle acute while the other comparatively obtuse and Injury no.2 i.e. Incised Stab Wound 3.4cm x 1.2cm present over the left side of front of abdomen in the lower part which injury was obliquely placed 10cm below and outer to the umblicus and was 12 cm below injury no.1. Further, the presence of St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 131 Human Blood on the same corroborates this medical evidence. (126) I may observe that the victim Smt. Resham Rani was a frail old lady of 65 years and all the above stab injuries have been inflicted on vital parts and the manner in which she had been repeatedly stabbed on her right para spinal region at base of neck and abdomen, establishes that it was the work of more than one person and it also establishes that the intention of the assailants was to cause her death so that she does not remain alive to confirm their identity.
(127) This being the background, I hereby hold that the medical evidence on record corroborates and establishes the prosecution version that the death of the deceased was due to hemorrhagic shock consequent to penetrating injury to the abdomen and neck via injury no. 1 to 3 and the injury no.1 individually as well as combined with injury no.2 to 3 are sufficient to cause death in the ordinary course of nature. Further, it also confirms and corroborates the prosecution version to the effect that the above stab injuries had been caused by the knife Ex.P11 allegedly recovered from the possession of accused Ravinder @ Tunda and the FLS Report confirms the presence of human blood on the same. Forensic Evidence:
(128) The case of the prosecution is that two incidents of house lurking and robbery/ dacoity had been committed by the same set of assailants on the intervening night of 2324.7.2012 in the area of Sector 3, St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 132 Rohini and victims in both the incidents were ladies who were senior citizens. First the accused committed the incident of armed robbery at G30/340, 341, Sector3, Rohini at about 1:301:45 AM when they had stabbed and killed a lady (Smt. Shanti Devi) pursuant to which FIR No. 152/12 had been registered at Police Station South Rohini. Thereafter on the same night within a few minutes of the first incident the accused went to the house of victim at D17/252, Sector3, Rohini which is hardly about 500 meters from House No. G30/340341, Sector 3, Rohini where they committed the present incident in a similar manner i.e. by entering the house by breaking through the AC window and when the victim Smt. Resham Rani raised an alarm she was repeatedly stabbed by these assailants who then escaped with whatever they could lay their hands on.
Soon after the incident when information was sent to the Police and they reached the spot, the victim was taken to the hospital where she expired. Thereafter the FIR was registered on the statement of her son in law Shishu Pal and the spot of incident was also inspected by the forensic team and various exhibits were lifted by the forensic experts which exhibits were then sent to FSL for expert opinion. In this regard the prosecution has placed its reliance on the testimonies of Sh. Indresh Kumar Mishra (PW16), Sh. Naresh Kumar (PW17) and Sh. Parshuram Singh (PW18). (129) Coming first to the testimony of Sh. Indresh Kumar Mishra (PW16) Senior Scientific Officer (Biology) who has proved that on 24.07.2012 on request of Insp. Anil Kumar of Police Station South Rohini, St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 133 he thoroughly examined the scene of crime i.e. D17/252, Ground Floor, Sector 3, Rohini, Delhi for the presence of blood and other biological clue materials. The witness has proved that Blood was detected on the floor before the gate, on the floor of the drawing room, two bed sheets, one chunni, one mattress lying on the bed and wooden portion of the window after which Inspector Anil Kumar was advised to forward the above mentioned blood stains prepared to FSL for further examination. He has proved his detailed report which is Ex.PW16/A. Further, Sh. Parshuram Singh (PW18) Assistant Director (Physics) has proved that on 24.07.2012 he along with Sh. Indrresh Kumar Mishra, SSO (Biology) visited the scene of crime i.e. D17/252, sector 3, Rohini, Delhi where the scene was examined and following observations were made :.
1. The place of occurrence was on the ground floor of the building which consists of one room in front portion, a kitchen area in the middle portion and inner area.
2. There was a window in the front portion of first room. In upper portion of window an AIR conditioner was fixed. In lower portion of window mesh was fixed from outside. The iron mesh was found partially removed. Some impressions marks observed on the frame of the window. On examination of the window, it was found that the mesh was removed from outside.
3. Dark brown stains was observed on the lower portion of the window frame.
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 134
4. Blood like stains were observed on the bed sheet and also on the floor.
5. No breakage, bending or striking marks on the locking system and latch of the door of the entrance were observed.
(130) In this regard Sh. Parshuram Singh has proved his detailed report which is Ex.PW18/A. (131) Further, Sh. Naresh Kumar (PW17) Senior Scientific Officer (Biology), FSL, Rohini, Delhi has proved that on 27.09.2012, fourteen sealed parcels, sealed with the seal of as mentioned in the forwarding letter were received in the FSL in the present case. He has confirmed that at the time of opening the parcels, seals were compared with the specimen seal and found intact after which the contents of the parcels were examined and on biological examination blood was detected on exhibit 1a (lady's shirt), 1b (salwar), 2 (cotton wool swab), 3 (gauze cloth piece), 4 (Cotton wool swab), 5 (Gauze cloth piece), 6 (blood stained surface), 8 (blood sample from floor), 9 (gauze clothe piece blood sample), 10 (blood stained mattress), 12a (dark brown colour bedsheet), 12b (pink colour bedsheet), 12c (chunni having brown stains), 13 (wooden piece) and 14 (blood sample of the deceased), however, blood could not be detected on exhibit 7 (piece of surface) and 11 (towel). He has proved the biological examination report which is Ex.PW17/A. According to the witness, on serological examination human blood was found on the St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 135 exhibits and Blood Group A was detected on exhibit 1a (lady's shirt), 1b (salwar), 3 (gauze cloth piece), 5 (Gauze cloth piece), 6 (blood stained surface), 8 (blood sample from floor), 10 (blood stained mattress), 12a (dark brown colour bedsheet), 12b (pink colour bedsheet), 12c (chunni having brown stains), 13 (wooden piece) and 14 (blood sample of the deceased). The witness has proved the detailed Serological Report in this regard which is Ex.PW17/B. Sh. Naresh Kumar (PW17) Senior Scientific Officer (Biology) has also proved that on 21.9.2012 sixteen sealed parcels sealed with the seal as mentioned in the forwarding letter were received in the office of the FSL Rohini relating to case FIR No. 152/2012 Police Station South Rohini which is pertaining to incident which took place prior to this incident. He has proved having examined the exhibits biologically and on examination the contents of the exhibits, blood was detected on all the exhibits. He has proved his biological report which is Ex.PW17/C. He has also proved that he examined the exhibits serologically and Blood Group 'B' was found on Ex.3 (blood gauze), Ex. 4 (blood stained gauze), Ex.5 (blood stained gauze), Ex.8b (peticot), Ex.9a (baniyan), Ex.9b (payjama), Ex.10a (baniyan), Ex.10 b (shirt), Ex.12 (knife), Ex.13a (Tshirt), Ex.13b (jeans pant) and Ex.16 (blood stained gauze) and blood group "A" was found on Ex.14a (T shirt), Ex.14b (jeans pant) Ex.15a (Tshirt) and Ex.15b (jeans pant) whereas Human Blood was detected on Ex.1 (blood stained earth), Ex.2 (concrete St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 136 piece), Ex.6 (cotton wool swab), Ex.7 (Handkerchief), Ex.8a (blouse) and Ex.11 (Knife). He has proved the serological examination report in this regard which is Ex.PW17/D. (132) Here, I may observe that two incidents were committed on the same intervening night allegedly by the same set of persons and in respect of both the incidents two separate FIRs have been registered i.e. FIR No. 152/2012 under Sections 460/302/34 IPC and FIR No. 153/2012 under Section 302/460/396/34 IPC at Police Station South Rohini. (133) The above Forensic Evidence on record establishes that the Blood Group of the deceased Resham Rani was 'A' Group. The crime in the present case i.e. the murder of Resham Rani had taken place after the first incident which had taken place at G30/340, 341, Sector3, Rohini at about 1:301:45 AM pursuant to which FIR No. 152/12 had already been registered at Police Station South Rohini. The exhibits lifted from the said spot of incident (i.e. G30/340, 341, Sector3, Rohini) in FIR No. 152/2012 shows the presence of Blood Group B thereby confirming that the blood group of the victim in the said case was B Group. Further, the clothes got recovered by the accused which they claimed were wearing at the time of incident, were also sent to FSL and the Serological Report Ex.PW17/D establishes that the Blood Group of the deceased Resham Rani (victim Resham Rani in the present case) i.e. of 'A' Group was detected on the clothes of the accused Rajesh @ Tinku and Rusy @ St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 137 Surender i.e. Ex.14a (Tshirt belonging to accused Rajesh @ Tinku), Ex.14b (Jeans Pant belonging to accused Rajesh @ Tinku), Ex.15a (T shirt belonging to accused Rusy @ Surender), Ex.15b (Jeans Pant belonging to accused Rusy @ Surender) whereas the clothes of the accused Ravinder i.e. Ex.13a and Ex.13b show the presence of blood group 'B' i.e. the blood group of victim in FIR No. 152/2012. (134) Here, I may note that the accused Surender, Ravinder and Rajesh were all arrested on the day next to the incident i.e. on 25.7.2014 (date of incident is in the intervening night of 2324.7.2012) within less than 48 hours of the incident and pursuant to their interrogation the accused not only got recovered their clothes which they were wearing on the intervening night of 2324.7.2012 but also the weapon of offence i.e. knife used in the killing of victim. The Forensic Evidence confirms the prosecution version to the effect that after committing the offence in FIR No. 512/2012 the assailants who are professional robbers had broken the house of the victim Resham Rani by breaking the wiremesh on the AC window of the ground floor room. The clothes got recovered by the Surender @ Rusy and Rajesh @ Tinku had the blood stains of 'A' Group i.e. the same as of victim Resham Rani whereas the clothes of the accused Ravinder had blood of 'B' Group i.e. the same as of victim Shanti Devi in FIR No. 152/2012 which incident was committed prior to the present house breaking. Further, the knife Ex.P11 recovered from the possession of accused Rajesh @ Tinku shows the presence of Human Blood whereas St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 138 the knife recovered from the possession of the accused Ravinder @ Tunda shows the specific presence of Blood Group 'B' (i.e. the blood of the victim in FIR No. 152/2012, PS South Rohini). It confirms the persecution version that the deceased Resham Rani was stabbed with the knife Ex.P11 got recovered by the accused Rajesh @ Tinku which finds independent confirmation from medical evidence brought before the Court establishing the use of this specific knife Ex.P11 (nature of injuries which are acute on one side and obtuse on the other side are peculiar and match with the shape of the blade of the knife which towards the end if curved i.e. acute on one side and obtuse on the other). Ocular Evidence:
(135) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies.
(136) In the present case there is no direct eye witness account and the entire prosecution case rests upon the testimonies of Smt. Jyoti the daughter of the deceased who while on the balcony of the second floor had seen the assailants running away from the ground floor of their house St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 139 and also on the testimony of Sishu Pal Satija the son in law of the deceased who was the first person whom the deceased had spoken and informed him that two boys in black clothes had come and had stabbed her. The prosecution also relies upon the MLC of the victim Resham Rani and testimony of the doctors who first examined her as she had disclosed to them that two unknown persons had caused injuries to her.
(137) Since the prosecution is placing its heavy reliance mainly on the testimonies of Shishu Pal Satija (PW22 - son in law of the deceased) and Smt. Jyoti (PW25 - daughter of the deceased) hence it is necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 140 require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox;
their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978). (138) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of cross examination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 141 of Bihar reported in AIR 2002 SC 1965).
(139) Applying the settled principles of law to the facts of the present case and coming first to the testimony of Shishu Pal Satija (PW22) the relevant portion of the same is as under:
"........ I am residing at the aforementioned address along with my family for the last almost three years. Smt. Resham Rani was my mother in law/Saas. She had no son and Jyoti Satija, my wife is her only daughter. The house bearing No. D17/252 has been constructed uptill four floors including the ground floor where my mother in law Smt. Resham Rani used to reside. On the first floor my mother, Mohini Satija resides and my daughter used to sleep with her. On the second floor I am residing along with my wife and two sons and we sleep there. The third floor is having one store room. On the intervening night of 23/24.07.2012 we had taken our dinner at around 11 PM and gone to sleep. At around 22:15 AM(midnight) I heard loud voices of my mother in law Resham Rani who was screaming and calling for my wife by her name. "She was shouting Jyoti, Jyoti". When I heard the voice I rushed downstairs and found blood scattered all over the place inside the house near the door and also outside. I found my mother in law Resham Rani lying on the bed and crying in pain "bed par pari tarap rahi thi". In the meantime the other persons from the neighbors had also started collecting. I noticed that she was heavily bleeding from the left side stomach. I asked her what had happened. She informed me that two persons had come who were wearing black clothes and they had stabbed her and run away. "Do admi St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 142 kale rang ke kapre pehen kar aye thai aur chaku mar kar bhag gaye". I also noticed that there were blood scattered all over the floor, the almirah was open, the draws of the TV trolley was also open. I further noticed that the window under the AC was broken. The articles of the house had been disturbed and were lying scattered. I also noticed two brown color chappals lying in front of the window underneath the AC which had been broken. There was blood stains on the window and it appeared that the assailants had entered by breaking under the AC. I made a 100 number call. After about 510 minutes the police came to the spot and immediately she was shifted to BSA Hospital. I along with my neighbors also rushed to the BSA Hospital. At the time of her treatment, my mother in law Resham Rani expired. I also made a call to my wife from the hospital and asked her to find out if there were some articles missing from the house. On which she informed that 34 silver coins kept in a red thaili, a sum of Rs.1,200/ was also appeared to be missing. Thereafter the police recorded my statement at the BSA Hospital which statement is Ex.PW22/A bearing my signatures at point A. I thereafter returned to my house.
On 24.07.2012 in my presence the crime team had also visited at my house and had taken chance prints, taken photographs and taken exhibits. The chunni of my mother in law was also lying there from which they lifted blood stains along with the bed sheet/chadar on which blood stains were present. They also lifted the blood stains from the AC window. They also lifted chappals lying in the room and the blood stained articles. The police had also found some purse and other articles lying in the room which were not St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 143 belonging to us and perhaps had left by the assailants. After which the photography of the entire room was got done. The site plan of the room was prepared which is Ex.PW22/B bearing my signatures at point A. There was a two wheeler scooter parked outside the boundary wall adjoining the window from where the assailants had entered on which there were some foot prints which were lifted by the police vide memo Ex.PW22/C bearing my signatures at point A. The purse which was left behind the assailants was lifted by the police was checked and found to contain some documents in the name of some Dalip Kumar which contained ATM card, some documents, election I card and some other documents which I do not recollect was converted into pullanda and seized vide memo Ex.PW22/D. The seizure memos of the various other articles i.e. towel, blood gauze earth control, bed sheet, chunni, blood stained wooden chaukhat and blood stains lifted from various places of the room are Ex.PW22/E, Ex.PW22/F, Ex.PW22/G, Ex.PW22/H, Ex.PW22/I, the chappals left by the assailants were converted into pullanda and seized vide memo Ex.PW22/J all bearing my signatures at point A. On the same day the postmortem on the dead body of my mother in law was conducted and I and Sh. Pawan Satija, my cousin brother identified the dead body vide memo Ex.PW22/K bearing my signatures at point A. Thereafter we received the said body from the mortuary vide memo Ex.PW22/L bearing my signatures at point A. On 29.09.2012 I identified three silver coins belonging to my mother in law before Ld. MM. TIP Proceedings Ex.PX3 collectively bears my signatures at St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 144 point A. I can identify the seized articles if shown to me.
At this stage, MHC(M) has produced three plastic containers in sealed condition with the seal of DM. Same are open after breaking the seal and one silver coin is taken out from each plastic container, one of whom is having symbol of Radha Krishna and the other two having the symbol of Laxmi Ganesh and same are shown to the witness who correctly identified the same as belonging to her mother in law. Same are Ex.P1, Ex.P2 and Ex.P3.
At this stage, MHC(M) has produced parcel No. 12 i.e. bag in sealed condition duly sealed with the seal of NK FSL Delhi and same is open after breaking the seal and two bed sheets and one chunni are taken out and same are shown to the witness who correctly identified the same as seized by the police. Two bed sheets are Ex.P4 and Ex.P5 and chunni is Ex.P6.
At this stage, MH(M) has also produced bag No. 13 duly sealed with the seal of NK FSL Delhi. Same is open after breaking the seal and wooden piece of chaukhat is taken out and same is shown to the witness who correctly identified the same as seized by the police. Same is Ex.P7.
At this stage, MH(M) has also produced parcel No. 10 duly sealed with the seal of NK FSL Delhi. Same is open after breaking the seal and blood stained mattress piece is taken out and same is shown to the witness who correctly identified the same as seized by the police. Same is Ex.P8.
At this stage, MH(M) has also produced parcel No. 11 duly sealed with the seal of NK FSL Delhi. Same is open after breaking the seal and one towel of green color is taken out and same is shown to the witness who St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 145 correctly identified the same as seized by the police. Same is Ex.P9.
At this stage, MH(M) has also produced one pullanda duly sealed with the seal of RK. Same is open after breaking the seal and one pair of slippers of G Star are taken out and same is shown to the witness who correctly identified the same as seized by the police. Same is Ex.P10 collectively.
At this stage, Ld. APP for the state seeks permission to put leading questions regarding putting the seal on the exhibits.
Heard, Permission granted.
It is correct that the various exhibits which were lifted from the spot were converted into pullanda and thereafter sealed with the seal of RK. Vol. I have forgotten this fact on account of passage of time. ...."
(140) He has been exhaustively crossexamined by the Ld. Defence Counsels and has explained that when his mother in law was shouting for help, it was he who reached first before his wife Jyoti reached. He has further explained that he had stated in his statement to the police that one brown purse was left behind by the assailants which purse was recovered beneath the quilt and was containing the ATM Card in the name of Dalip Kumar, visiting cards, two passport size photographs and some other documents. He has also explained that there were eightten silver coins when he was called by the Ld. MM for the TIP of silver coins which coins were of similar size having different symbols at the time of TIP. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 146 (141) Coming next to the testimony of the most material witness of the prosecution i.e. Ms. Jyoti Satija (PW25) the relevant portion of her examination in chief is as under:
"......... I am a housewife. I have been residing at the aforementioned address along with my husband, two sons, one daughter and my mother in law Mohini Satijia. My mother Resham Rani was also residing in the house. I along with my husband and children resided at the second floor of the house, my mother in law resided at first floor and my mother resided at ground floor. On 23.07.2012 at about 11 PM after taking dinner we slept. In the intervening night on 23/24.07.2012 at about 22:15 AM (midnight) I head shouting of my mother Resham Rani and she was calling me by my name JyotiJyoti. I woke up and rushed to the gallery and saw three boys running away from my house "ghar ke taraf se/ground floor se nikal kar bhag rahe thai". One person was "gora tha aur uske baal chote chote thai. The other persons were "sawle color ke thai aur patle se thai aur unki umar 2025 saal thi". My husband also woke up and rushed downstairs by using the stairs which were inside the house and I followed him. I found that my mother Resham Rani was in injured condition and the stab injury of knife on her stomach and lot of blood was found in the room. One pair of slippers and one lining towel were found near the window and also the mesh of the window was also found broken. My husband immediately called the police and police came there and PCR police took my mother Resham Rani to BSA hospital. My husband St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 147 also accompanied with the other neighbors. After some time my husband made a call to me and asked me to check the missing articles of the house. I checked the house and found that the wrist watch of my father, 34 silver coins having symbols of Ganesh and Laxmi and Rs 1000/ to Rs 1200/ of pension money of my mother was missing. I informed my husband immediately about these missing items. One ear ring and one gold ring which my mother used to wear was found missing. My mother used to wear only one ear ring on account of the fact that her other ear was cut on account of the weight of the ear ring and had not been stitched. Police had conducted their proceedings at the spot. On their asking I again checked my house and I found in the room of my mother that one gents purse under the clothes and the quilt on the chair. One voter I card, driving licence, photographs were found in the purse. Police sealed the purse with the its contents in a cloth pullanda and sealed the same with the same and seized the same thereafter. Police had lifted a large number of exhibits which included the blood stained gadda, bed sheet, curtain, chunni, piece of wood from window/ chaukhat, blood stained earth, earth control etc. The sniffer dogs had also come to the house. The crime team/forensic team had also come and lifted blood stained finger prints/chance prints and also taken photographs of the room and area where the incident had taken place. The seizure memo of the purse and its contents which had been left behind which was seized by the police is already Ex.PW22/D bearing my signatures at point A. G30/340 sector 3 Rohini, Delhi was written on the documents found in the purse. My mother was St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 148 declared dead by the doctors.
On 24.07.2012 postmortem was conducted on the body of my mother. At the evening time, the dead body was handed over to us and thereafter my statement was recorded by the police. I can identify the assailants if shown to me.
At this stage, witness has correctly identified the accused Surender @ Rusy, Ravinder and accused Rajesh by pointing out towards them as the persons whom she had seen running away from her house.
I can identify the seized articles if shown to me. At this stage, MHC(M) stated that the case property i.e. purse containing RC, Voter I Card, driving licence, two photos and some documents were released on superdari to Bishan Lal, S/o Parmanand, R/o G30/340341, Sector 3, Rohini, on superdari of Rs.15000/.
At this stage, MHC(M) has produced the photographs of the above said articles taken at the time of the release. Photograph Ex.PW25/A1, Ex.PW25/A2, Ex.PW25/A3, PW25/A4, PW25/A5, PW25/A6, PW25/A7 and Ex.PW25/A8 are shown to the witness and witness identified the purse and its contents in the photograph......."
(142) She has also been crossexamined at length by the Ld. Defence Counsels but she stood by her grounds. She has confirmed and corroborated the testimony of her husband Shishu Pal Satija (PW22). She has similarly stated that she has been residing at the second floor of the premises whereas her mother was residing on the ground floor. She has specifically explained that she saw the assailants running outside from her St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 149 house when she opened the door of her gallery/ balcony which is about 20 feet in height. She has explained that she could see the faces of the accused clearly since there was a huge mercury light installed on the pole which is hardly at a distance of 15 feet from her house and there was sufficient light. She has further stated that she had given the detail description of the assailants in her statement under Section 161 Cr.P.C. Here, I may note that the first statement of the witness Smt. Jyoti Satija recorded under Section 161 Cr.P.C. confirms that she had given the description of the assailants. She has in her first statement to the police specifically stated that "...... Mainne turant gate khola aur niche jhaank kar dekha to tin larke humare ground floor se nikalte va bhagte nazar aaye jinme ek larka goratha tatha jiske sir ke baal kate hue thai tatha duse larke kuch sanwle se tatha patlepatle se thai jin sab ki umar 2025 ke lagbhag thi...."
(143) Smt. Jyoti Satija (PW25) has further explained that it was about 1415 days after the incident that while she was standing outside her house, she saw police officials along with some persons and she identified them as the assailants. She has specifically denied that the police had shown the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda to her and informed her that they were the one who had killed her mother and due to this reason she has identified them in the Court and has added that she had identified the accused persons herself when they came near her house with the police. She has further in her crossexamination St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 150 explained that none of the public persons had followed the assailants because by the time the neighbours had collected the assailants had already escaped from the spot.
(144) From the testimonies of Shishu Pal and Jyoti it stands established and is also not disputed that the victim Resham Rani was residing on the ground floor portion of the premises, whereas on the first floor the mother of Shishu Pal was residing and on the second floor Shishu Pal was residing along with his wife Jyoti Satija and their children. Hence, when we test the deposition of the witnesses Shishu Pal and Jyoti on the touch stone of truthfulness, it is only natural that under the given circumstances where Shishu Pal was the only adult male member in the household, he was the first who reached the spot on hearing the desperate calls of his mother in law Resham Rani on the ground floor. It is borne out from his testimony that as soon as he reached his mother in law Smt. Resham Rani, he asked her as to what had happened on which she told him that two persons had come in black clothes and stabbed her (Do admi kale rang ke kapre pehen kar aye thai aur chaku mar kar bhag gaye). I may observe that the medical evidence on record establishes that she was conscious at the time when she was taken to BSA Hospital and she herself had given the history to the doctors that two unknown persons had stabbed her. This aspect has been duly proved by Dr. Manoj (PW19) and Dr. Bhawna Jain (PW27). This confirms the version given by Shishu Pal (PW22) of what Smt. Resham Rani had first told him and then to the St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 151 doctors (that two unknown persons had stabbed her) which is in the nature of Dying Declaration. Shishu Pal Satija had specifically mentioned this fact (that when he asked Resham Rani as to what had happened she told that two boys in block clothes had stabbed her) to the Investigating Officer in his first statement which is Ex.PW22/A on the basis of which the present FIR was registered. The witness Smt. Jyoti Satija (PW25) has corroborated the above testimony of her husband Shishu Pal Satija and has confirmed that her husband was the first one who reached the victim whereas on hearing the cries of her mother, she rushed towards the balcony which is outside her room and is about twenty feet high from the ground from where she could see three persons running away from her house (ghar ke taraf se ground floor se nikal kar bhag rahe thai). She has explained that there was sufficient light in front of her house where huge mercury lights have been installed and she had seen the faces of the assailants from the side while she was standing on the balcony of her house. She has specifically identified all three of them i.e. accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda in the Court as the assailants whom she had seen while running away from her house. In her first statement Smt. Jyoti Satija has given the descriptions of the assailants as one boy was of fair complexion with small hair whereas other persons were of thin stature and dusky/ sanwla complexion of the age group of 2025 years, which description is matching to the description of the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda. The St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 152 accused Rusy @ Surender is of fair complexion whereas the accused Rajesh @ Tinku and Ravinder @ Tunda are of shallow complexion. Further, when the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda were apprehended they had got recovered their blood stained clothes. The accused Rusy @ Surender got recovered his black T shirt and Black jeans pants, the accused Rajesh @ Tinku got recovered his blue Tshirt and blue jeans pants and the accused Ravinder @ Tunda got recovered his white Tshirt and black jeans pants. The FSL Report Ex.PW17/D confirms the presence of blood of victim Resham Rani i.e. blood group 'A' on the clothes got recovered by the accused Rusy @ Surender and Rajesh @ Tinku.
(145) Ld. Defence Counsels have vehemently argued that there is a very serious discrepancy in the testimonies of the various prosecution witnesses since according to Shishu Pal Satija his mother in law had told him that two unknown persons in black clothes had stabbed her and even she in her first statement to the Doctors Smt. Resham Rani had stated that the assailants were wearing dark clothes whereas the clothes got recovered by the accused would show that it was the accused Rusy @ Surender who was wearing Black Tshirt and Black trousers whereas the accused Rajesh @ Tinku was wearing Blue Tshirt and Blue Trousers and the accused Ravinder @ Tunda was wearing White Tshirt and Black trousers. In this regard I may observe that in the case of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 153 SC 7453 (1) the Hon'ble Apex Court has observed that the powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. In the present case the incident had taken place during midnight hours (at 2:15 AM) and the place of incident i.e. room of Smt. Resham Rani was situated on the ground floor and the house breaking had taken place while she was sleeping and apparently no light was switched on. Hence, when Resham Rani had seen the assailants it must be dark in the room due to which reason the assailants appeared to be wearing black clothes whereas according to the observation made by Jyoti Satija who had seen them from the balcony in the mercury light installed in the street they appeared to be wearing dark/ black clothes. She has explained that she had seen the assailants from the height of twenty feet and she had seen their faces through the side. Therefore, it is not possible to expect a victim whose mother had been attacked, who is in a state of shock and nervousness to remember the exact details of the clothes being worn by each and every assailant since it is only a guess work and on the basis of what the victim might have remembered instantaneously by way of observations that the details are given the police at the first instance. Being a natural and truthful witness such discrepancies are only natural and rather lends credence to the version given by such a witness, for full proof evidence are only expected in cases where there can be no perfections. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 154 (146) Further, the various clothes got recovered by the accused Rusy @ Surender and Rajesh @ Tinku confirmed to be having the blood stains of the victim Smt. Resham Rani i.e. Blood Group 'A' whereas the clothes recovered by the accused Ravinder @ Tunda confirmed to be having the blood stains of Blood Group 'B' belonging to the victim Smt. Shanti Devi in FIR No. 152/2012, under Sections 302/460/34 IPC, Police Station South Rohini where the incident had taken place between 1:30 - 1:45 AM (as evident from FIR No. 152/2012). I may also note that the incident in question had taken place on the intervening night of 2324.7.2012 and the accused Surender @ Rusy, Rajesh @ Tinku and Ravinder @ Tunda had been apprehended on the very next day i.e. 25.7.2012 and the looted articles (duly identified by the complainant in Judicial Test Identification Parade) recovered from their possession as well as the knife used in the commission of offence (confirmed to be having Human Blood on the same as confirmed by both medical and forensic evidence) and the clothes which they were wearing at the time of the incident (the clothes of the accused Rajesh @ Tinku and Rusy @ Surender found stained with the blood of same group as of deceased i.e. 'A' Group).
(147) While assessing the truthfulness of the testimonies of both these witnesses Shishu Pal and Jyoti at the very Outset I may observe that the star witness of the prosecution i.e. Smt. Jyoti Satija (PW25) is the daughter of the deceased whereas Shishu Pal is her husband and son in St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 155 law of the deceased.
(148) Secondly she has no previous history of any animosity with the accused persons and there is no reason why she should tell a lie. No doubt, she was aggrieved by the death of her mother but there is no reason for her to falsely implicate the accused in case if they are innocent or not the one's she had seen.
(149) Thirdly she is residing in the same house and her room is on the second floor. It is only natural and probable that when she heard the cries of her mother from the ground floor and her husband was the first to reach on the ground floor while she was still in her room on the second floor with her son when there was commotion on the ground floor and she came on the balcony attached to her room from where she saw the assailants running away. Different people reach differently to a situation. While Shishu Pal immediately rushed to the ground floor on hearing the cries of Smt. Resham Rani, the witness Jyoti whose son was also sleeping with her in the same room rushed to the balcony to check what had happened when she saw the accused coming out of her house and running away. Her version appears to be as natural and probable as that of Shishu Pal and cannot be doubted since she had in her first statement to the Investigating Officer given the description of the assailants whom she had seen running away.
(150) Fifthly the description of the assailants so given by Jyoti Satija matches with the description of the assailants given in FIR No. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 156 152/2012, under Sections 302/460/34 IPC, Police Station South Rohini where a similar incident was committed before the present incident. I may note that the perusal of FIR No. 152/2012 shows that the complainant Bhim who had confronted the assailants therein who had entered his house and killed his mother, had given the description of the boy caught by him as thin and fair with a cap whereas in the present case Jyoti has stated that one of the boy was fair with very small hairs. Further, in FIR No. 152/2012 the complainant Bhim had informed that the boy who was caught by his mother Shanti Devi was medium built with small hair and wearing a black pants and the assailant who had inflicted injuries on his mother as medium built wearing a white Tshirt and all the boys being in the age group of 2025 years as also in the present FIR i.e. 153/2012 Jyoti similarly states that all the three boys were of the age group of 2025 years and was wearing dark clothes whereas the deceased Resham Rani had informed Shishu Pal before her death that two boys wearing black clothes had given her stab injuries. This cannot be a mere coincidence that victims/ eye witnesses unknown to each other in respect of two different incidents are giving similar description of the assailants. (151) Sixthly the victim Resham Rani had informed her son in law immediately when he reached her that two men in black clothes had attacked her with knife which fact she also confirmed to the doctors when she herself gave the history to the doctors of assault by two unknown persons, on reaching the hospital [as mentioned in the MLC Ex.PW19/A St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 157 and proved by Dr. Manoj (PW19) and Dr. Bhawna Jain (PW27)]. (152) Seventhly the Medical evidence on record shows that the injury no. 1 (Incised Stab Wound 5.2cm x 1.5cm over the left side of front of abdomen in the upper part, which injury was obliquely placed 12 cm upper and outer to the umbilicus. The margins of the injury were clean cut with one angle acute while the other comparatively obtuse. The anterior abdominal wall is thick with wall fact visible to a depth of about 3cm.) and injury no. 2 (Incised Stab Wound 3.4cm x 1.2cm present over the left side of front of abdomen in the lower part which injury was obliquely placed 10cm below and outer to the umblicus and was 12 cm below injury no.1) matches with the peculiar knife recovered from the possession of Rajesh @ Tinku as evident from the sketch Ex.PW26/A showing the shape of the blade was peculiar towards the end i.e. acute from one side and obtuse from the other, lending credence to the testimony of Jyoti and Shishu Pal.
(153) Lastly the Forensic Evidence confirms the blood of same group as of deceased Resham Rani ('A' Group) on the clothes got recovered by the accused Rusy @ Surender and Rajesh @ Tinku and also Human Blood on the knife with curved blade got recovered by Rajesh @ Tinku lends independent confirmation and authenticity to the versions given by both Shishu Pal (PW22) and Jyoti (PW25) which finds independent corroboration and confirmed from the medical, forensic and circumstantial evidence which has come on record. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 158 (154) This being the background, I hereby hold that the testimonies of both the eye witnesses Shishupal Satija (PW22) and Jyoti Satija (PW25) are reliable, credible and truthful and independently lends credence to the medical and circumstantial evidence brought on recorded by the prosecution and conclusively establishes the identity of the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda as the assailants who on the intervening night of 2324.7.2012 at around 2:15 AM had entered the premises No. B17/252, Sector3, Rohini, Delhi by breaking the wire mesh of the window of AC and while committing robbery brutally stabbed deceased Resham Rani and escaped after leaving the purse belonging to Dalip a resident of G30/340341, Sector 3, Rohini where the earlier incident of House Lurking Trespass, armed Robbery and Killing had taken place.
Apprehension & Arrest of the accused - Recoveries pursuant to their Disclosure Statements:
(155) The case of the prosecution is that two incidents had taken place in quick succession in the same are by the same gang of assailants.
First in house No. G30/340341, Sector 3, Rohini pursuant to which the FIR No. 152/2012 under Sections 302/460/34 IPC was registered at Police Station South Rohini and thereafter in house No. D17/252, Sector3, Rohini pursuant to which the present FIR No. 153/2012 under Sections 302/396/460/34 IPC was registered. The case of the prosecution is that on 25.7.2012 during the investigations of FIR No. 152/2012, Police Station St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 159 South Rohini Inspector V.N. Jha, SI Imtiyaz Alam, SI Avdhesh and HC Rajesh searched the accused persons involved and interrogated several suspects regarding their involvement. The complainant in the said case i.e. FIR No. 152/2012 had also explained the physical description of the accused persons also the daughter of the deceased i.e. Jyoti to gave the description. Thereafter the beat staff was called and all members of police party and beat staff was given the description regarding the assailants (i.e. one person was of fair complexion with thin stature wearing a cap; another was of medium built with small hair and was wearing black trousers whereas the third assailant was of medium built wearing a white Tshirt and all were in the age group of 2025 years) after which the search for the assailants began. On 25.7.2012 When the police team reached near park of H32, Sector 3, Rohini Ct. Raj Kumar met them and informed that three persons whose features are matching with the suspects were present in the said park on which the police caught the said persons whose name were revealed as Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda. From the possession of Surender one iron rod, two ATM cards, one silver coin were recovered; from the possession of Rajesh one silver coin and one knife were recovered whereas from the possession of accused Ravinder one knife and one silver coin were recovered. The accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda were thereafter arrested and their personal search memos were also prepared. An Iron rod recovered from the possession of St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 160 accused Rusy @ Surender was seized vide memo Ex.PW24/P, knife recovered from the possession of accused Ravinder @ Tunda was sized vide memo Ex.PW24/N and the knife recovered from the possession of accused Rajesh @ Tinku was seized vide memo Ex.PW24/M. Further, the silver coins recovered from the accused persons were also seized vide memos Ex.PW30/A, Ex.PW30/B and Ex.PW30/C. Thereafter the disclosure statements of the accused persons were also recorded which are Ex.PW24/L, Ex.PW24/J and Ex.PW24/K respectively. Pursuant to their disclosure statements the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda led the Investigating Officer near gate of BSA hospital from where at their instance the accused Chikna @ Kalia and Amit @ Gora (Juvenile accused) were apprehended. The accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda disclosed that the clothes which they were wearing at the time of incidents during the intervening night of 2324.7.2012 were hidden by them in the bushes of the park inside the BSA Hospital. Pursuant to the same the accused persons led the police party to the said park and got recovered their clothes which were found to be blood stained after which the clothes of the accused were seized vide memos Ex.PW30/D1 to Ex.PW30/D3 respectively.
(156) In this regard the prosecution has placed its reliance on the testimonies of SI Mohd. Imtiyaz (PW30), SI Avdhesh (PW31), HC Raj Kumar (PW32) and Inspector V. N. Jha (PW34).
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 161 (157) However, before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
(158) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
1. Anything, state of things, or relation of things, or capable of being perceived by the senses,
2. Any mental condition of which any person is conscious.
(159) It further provides five illustrations as to what would constitute a fact which are as under:
1. That there are certain objects arranged in a certain order in a certain place, is a fact
2. That a man heard or saw something, is a fact.
3. That a man said certain words, is a fact.
4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 162 conscious of a particular sensation, is a fact.
5. That a man has a certain reputation, is a fact.
(160) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles". (161) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 163 Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: "......Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 164
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
(162) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 165 statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 166 and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence. ..."
(163) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence....."St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 167
(164) In the said case the Hon'ble Supreme Court further went to explain that:
"..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(165) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 168 which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible.
(166) Applying the settled principles of law to the facts of the present case, I may observe that two incidents in quick succession had taken place in the same area during the intervening night of 2324.7.2012 and allegedly by the same set of assailants. This aspect is established from the fact that while the police was conducting investigations at the spot of the incident a brown coloured purse was found lying in the room of Smt. Resham Rani where incident had taken place which purse is also visible in the photographs taken by the Crime Team Ex.PW2/A4 & Ex.PW2/A5). Earlier the police team which had reached the house of the victim Resham Rani was not aware that this purse did not belong to the victim and her family and the inspection was done as a routine. It was only when Smt. Jyoti Satija (PW25) was specifically asked to check and inform if something was amiss that she informed that one gents purse St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 169 lying under the clothes and the quilt on the chair in the room of her mother which purse was containing a RC, Voter I Card, driving license, two photos and some documents on which G30/340341, Sector 3, Rohini were written did not belong to any one of them and appeared to have been left behind by the assailants that the purse along with its contents was seized vide Ex.PW22/D. This purse belonged to the family of the victims in FIR No. 152/2012, Police Station South Rohini (specifically mentioned in FIR No. 152/2012 as robbed from their house) where the assailants had committed the first house breaking and robbery and left in the house of Resham Rani after removing the cash from the same. It is this which connects the present incident to the incident which took place at House No. G30/340341, Sector3, Rohini.
(167) Now coming to the disclosure made by individual accused and the recoveries pursuant to their disclosure or from their possession, for the sake of convenience I am putting the allegations against the individual accused in a tabulated form as under:
S. Name of Disclosure made by the Discoveries/ Recoveries and No. Accused accused admissible in witnesses to the same evidence u/s. 27 of Evidence Act and not hit by Section 25 of Evidence Act
1. Rusy @ ➢ That after committing the ➢ One Silver Coin Ex.P1 Surender first incident of robbery was recovered from the S/o Thakur nothing much came to possession of accused Das their share and hence they Rusy @ Surender, which planned to commit other silver coin has been duly robbery. identified by Shishupal (PW22) and Jyoti (PW25) St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 170 S. Name of Disclosure made by the Discoveries/ Recoveries and No. Accused accused admissible in witnesses to the same evidence u/s. 27 of Evidence Act and not hit by Section 25 of Evidence Act ➢ That it was he who broke in the Judicial TIP Ex.PX3 the wiremesh on which and also in the Court as Ravinder @ Tunda robbed from the room of entered the house and Resham Rani (also finds opened the door from mentioned in the FIR).
inside on which he and ➢ One Iron Rod Ex.P16 and Rajesh also entered the two ATM cards (belonging house. to the victim in case FIR ➢ That Ravinder @ Tunda No.512/12) were recovered. lifted three silver coins ➢ Pursuant to his disclosure whereas he lifted a wrist statement the accused got watch. recovered his blood stained ➢ That in the meantime the clothes i.e. black Tshirt old lady woke up on and Black jeans (Ex.P15) which Rajesh @ Tinku from the bushes of park of showed her a knife and BSA Hospital. Here, I may threatened her to keep note that the deceased quite. Resham Rani had informed ➢ That the old lady then Shishu Pal that two raised an alarm on which unknown persons in dark Rajesh @ Tinku stabbed clothes had stabbed her and her on their instigation. clothes of accused Surender ➢ That while leaving Rajesh are black. Resham Rani @ Tinku also removed an had similarly told the ear ring from the ear of doctors that she had been old lady and a gold ring attacked by two unknown from her hand after which persons. (FSL report they all fled away from confirms the presence of the spot. blood of victim Resham ➢ That after removing the Rani i.e. 'A' Blood Group cash and ATM cards from on the above clothes of the the purse which they accused).
robbed from the house of ➢ The above recoveries of D Block, he left the said Iron Rod (Ex.P16), Silver purse at the spot in order St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 171 S. Name of Disclosure made by the Discoveries/ Recoveries and No. Accused accused admissible in witnesses to the same evidence u/s. 27 of Evidence Act and not hit by Section 25 of Evidence Act to misguide the police. Coin (Ex.P1), clothes ➢ That he, Rajesh @ Tinku (Ex.P15) and ATM cards and Ravinder @ Tunda of victim in FIR No. distributed the silver 152/2012 have been duly coins amongst them proved by SI Mohd.
selves. Imtiyaz (PW30), SI
Avdhesh (PW32), HC Raj
Kumar (PW33) and
Inspector V.N. Jha (PW34)
and have not been duly
controverted.
2. Rajesh @ ➢ That after committing the ➢ One Silver Coin Ex.P2
Tinku S/o first incident of robbery was recovered from the
Roop Singh nothing much came to possession of accused
their share and hence they Rajesh @ Tinku which
planned to commit other silver coin has been duly
robbery. identified by Shishupal
➢ That it was Rusy (PW22) and Jyoti (PW25)
Surender who broke the in the Judicial TIP Ex.PX3
wiremesh on which and also in the Court as
Ravinder @ Tunda robbed from the room of
entered the house and Resham Rani (also finds
opened the door from mentioned in the FIR).
inside on which he and ➢ A knife Ex.P11 was also Rusy also entered the recovered from the house. possession of accused ➢ That Ravinder @ Tunda Rajesh @ Tinku with a lifted three silver coins curved end (acute on one whereas Rusy @ side and obtuse on other).
Surender lifted a wrist Here, I may observe that
watch. not only the FSL report
➢ That in the meantime the confirms the presence of
old lady woke up on Human Blood on the same
which he showed her a but even the postmortem
knife and threatened her
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 172
S. Name of Disclosure made by the Discoveries/ Recoveries and
No. Accused accused admissible in witnesses to the same
evidence u/s. 27 of Evidence
Act and not hit by Section
25 of Evidence Act
to keep quite. report of the deceased and
➢ That the old lady then the report of the Autopsy
raised an alarm on which surgeon confirms its use in
he stabbed her on the view of the peculiar shape
instigation of Rusy and of the knife which matches
Ravinder. with the shape and size of
➢ That while leaving he also injuries particularly injury
removed an ear ring from No. 1 and 2 which are acute
the ear of old lady and a on one side and obtuse on
gold ring from her hand the other side).
after which they all fled ➢ Pursuant to his disclosure away from the spot. statement the accused got ➢ That he, Rusy @ recovered his blood stained Surender and Ravinder @ clothes i.e. blue Tshirt and Tunda distributed the one blue jeans pant silver coins amongst (Ex.P14) from the bushes themselves. of park of BSA Hospital.
FSL report confirms the presence of blood of victim Resham Rani i.e. 'A' Blood Group on the above clothes of the accused Rajesh @ Tinku. Here, I may note that the deceased Resham Rani had informed Shishu Pal that two unknown persons in dark clothes had stabbed her. The Tshirt of accused Rajesh @ Tinku is deep blue and Surender was wearing black Tshirt and black pant and the clothes of both these accused have blood of 'A' Group i.e. of Resham Rani in the same St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 173 S. Name of Disclosure made by the Discoveries/ Recoveries and No. Accused accused admissible in witnesses to the same evidence u/s. 27 of Evidence Act and not hit by Section 25 of Evidence Act confirming that she had noticed Surender and Rajesh).
➢ The above recoveries i.e.
silver coin (Ex.P2), clothes
(Ex.P14) and knife
(Ex.P11) have been duly
proved by SI Mohd.
Imtiyaz (PW30), SI
Avdhesh (PW32), HC Raj
Kumar (PW33) and
Inspector V.N. Jha (PW34)
and have not been duly
controverted.
3. Ravinder @ ➢ That after committing the ➢ One Silver Coin Ex.P3 Tunda S/o first incident of robbery was recovered from the Rajesh nothing much came to possession of accused their share and hence they Ravinder @ Tunda, which planned to commit other silver coin has been duly robbery. identified by Shishupal ➢ That it was Rusy @ (PW22) and Jyoti (PW25) Surender who broke the in the Judicial TIP Ex.PX3 wiremesh on which he and also in the Court as entered the house and robbed from the room of opened the door from Resham Rani (also finds inside and thereafter mentioned in the FIR).
Rajesh @ Tinku and Rusy ➢ A knife Ex.P12 was also also entered the house. recovered from the ➢ That he lifted three silver possession of accused coins whereas Rusy @ Ravinder @ Tunda (FSL Surender lifted a wrist report confirms the watch. presence of Blood Group ➢ That in the meantime the 'B' on the same i.e. the old lady woke up on blood group of victim in St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 174 S. Name of Disclosure made by the Discoveries/ Recoveries and No. Accused accused admissible in witnesses to the same evidence u/s. 27 of Evidence Act and not hit by Section 25 of Evidence Act which Rajesh @ Tinku case FIR No. 152/2012).
showed her a knife and ➢ Pursuant to his disclosure threatened her to keep statement the accused got quite. recovered his blood stained ➢ That the old lady then clothes i.e. white Tshirt raised an alarm on which and black jeans pant Rajesh @ Tinku stabbed (Ex.P13) from the bushes her on their instigation. of park of BSA Hospital ➢ That while leaving Rajesh both of which have been @ Tinku also removed an confirmed to be having ear ring from the ear of Blood Group 'B' (same as old lady and a gold ring of victim Shanti Devi in from her hand after which FIR No. 152/2012 they all fled away from confirming that both the the spot. incidents had been ➢ That he, Rusy @ committed by same set of Surender and Rajesh @ persons.
Tinku distributed the ➢ The above recoveries of silver coins amongst coin (Ex.P3), knife themselves. (Ex.P12) and clothes (Ex.P13) and have been duly proved by SI Mohd.
Imtiyaz (PW30), SI Avdhesh (PW32), HC Raj Kumar (PW33) and Inspector V.N. Jha (PW34) and have not been duly controverted.
(168) It is evident from the evidence on record that prior to the arrest of accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda the Investigating Agency was not aware of the details of the St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 175 assailants i.e. who they were or how many they were in number and also about the manner in which the offence was committed and the crime was given effect. It was pursuant to the disclosure statements of the accused persons Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda that the police came to know their names. Further, it was also not known to the Investigating Agency that it was the accused Rusy @ Surender who had broken the wiremesh. It was only when the accused Rusy @ Surender disclosed about the same to the police on his arrest that this fact came to be known. It was also not known to the Investigating Agency as to who had stabbed the victim and it was only pursuant to the disclosure statements of the accused that the Investigating Agency came to know that it was the accused Rajesh @ Tinku who had stabbed the victim Resham Rani since she raised an alarm. (The FSL Report Ex.PW17/D establishes the presence of Human Blood on the knife Ex.P11 recovered from the possession of accused Rajesh @ Tinku). Further, the Investigating Agency was not aware as to what clothes were worn by the accused and where they had been concealed. It was only pursuant to their disclosure statements that the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda led the police team to the bushes in the park at BSA Hospital and got recovered their blood stained clothes. (The FSL Report Ex.PW17/D establishes the presence of human blood of 'A' Group (i.e. the blood group of the victim Resham Rani) on the clothes of the accused Rusy @ Surender and Rajesh @ Tinku). This circumstantial evidence St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 176 confirms the oral testimony of Smt. Jyoti regarding the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda being the assailants and their physical appearance and age as also the clothes which they were wearing at the time of the incident matches with the description given by Jyoti Satija the daughter of the deceased in the present case and with the description given by Bhim Singh S/o Bishan Singh the complainant and eye witness in FIR No. 152/2012 Police Station South Rohini as also mentioned in the said FIR where the first incident of robbery had taken place.
(169) In view of my aforesaid discussion I hereby hold that the disclosures made by the accused leading to the discovery of persons involved in the offence, the manner in which the crime was executed and also the destination of looted articles are all incriminating qua the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda and conclusively establishes their involvement in the crime. Allegations against the accused Mahesh @ Kaliya @ Chikna:
(170) The case of the prosecution is that which the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda were committing lurking house trespass and robbery, the accused Mahesh @ Kaliya @ Chikna along with Amit @ Gora (juvenile accused) remained outside for keeping a watch. In so far as juvenile Amit @ Gora is concerned, I am refraining from making any observations qua him since his trial is pending St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 177 adjudication before the Juvenile Justice Board. However, in so far as the accused Mahesh @ Chikna @ Kaliya is concerned, the evidence which has come on record is his own disclosure statement as well as the disclosure statements of the coaccused. No public witness has identified him as the assailant nor there is any recovery from his possession or at his instance to connect him with the alleged offence. The eye witness Jyoti Satija who had seen the assailants escaping only mentions of three boys and makes no mention of involvement of any other person nor identifies Mahesh. Also, in FIR No. 152/2912, under Section 302/460/34 IPC, Police Station South Rohini the complainant therein similarly gives the involvement of three persons. Hence, in this background there being no credible evidence to show the presence of Mahesh @ Chikna at the spot benefit of doubt is being given to the accused Mahesh @ Chikna @ Kaliya.
Charges established against the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda:
(171) Initially on the basis of the primafacie material placed on record, charges under Sections 460/34, 395, 396 and 302/34 Indian Penal Code were settled against the accused Rusy @ Surender, Rajesh @ Tinku @ Kanta, Ravinder @ Tunda and Mahesh @ Chikna Kaliya.
Further, charges under Section 397 IPC and Section 27 Arms Act were also settled against the accused Rajesh @ Tinku. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 178 (172) Now, on the basis of the evidence which has come on record in the form of oral testimonies of the various witnesses, forensic report, medical report and other circumstantial evidence I hereby hold that the prosecution has been able to successfully establish that on the intervening night of 2324.7.2012 the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda committed lurking house trespass and entered the house of the victim Smt. Resham Rani i.e. House No. B17/252, Sector3, Rohini, Delhi by removing the wiremesh of the AC window. Further, the prosecution has been able to prove and establish that the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda had in furtherance of their common intention committed robbery by lifting three silver coins and other belongings from the room of the victim and when the victim Smt. Resham Rani got up and raised an alarm it was the accused Rajesh @ Tinku inflicted knife injuries on her vital parts thereby causing her death. The fact that the purse of the victim in FIR No. 152/2012, under Sections 302/460/34 IPC, Police Station South Rohini in respect of similar incident which took place at G30/340, 341, Sector3, Rohini (as specifically mentioned in FIR No.152/2012) was found in the house of Resham Rani the victim in the present case confirms the allegations of house lurking trespass by night and also connects them to the earlier incident.
(173) However, since the prosecution has not been able to establish and prove the involvement of the accused Mahesh @ Kaliya @ Chikna in St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 179 the commission of robbery, therefore the provisions of Sections 395/ 396 IPC (dacoity) would not apply and hence, the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda are acquitted of the charge under Sections 395/396 Indian Penal Code.
(174) In view of the above I hereby conclude that the following charges stand established against the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda herein under for which they are hereby convicted:
1. The accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda are held guilty of the offence under Section 460/34 Indian Penal Code (for committing lurking house trespass by night).
2. The accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda are held guilty of the offence under Section 302/34 Indian Penal Code (for committing the murder of Smt. Resham Rani by inflicted knife injuries).
3. The accused Rusy @ Surender and Ravinder @ Tunda are held guilty of the offence under Section 392 Indian Penal Code (for committing robbery).
4. The accused Rajesh @ Tinku is held guilty of the offence under Section 392 r/w 397 Indian Penal Code and Section 27 of Arms Act (for using a deadly weapon i.e. knife at the time of commission of robbery).St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 180
(175) In so far as the accused Mahesh @ Chikna @ Kaliya is concerned, the evidence which has come on record is his own disclosure statement as well as the disclosure statements of the coaccused. No public witness has identified him as the assailant nor there is any recovery from his possession or at his instance to connect him with the alleged offence. Under these circumstances, benefit of doubt is being given to the accused Mahesh @ Chikna @ Kaliya who is acquitted of the charges under Section 460/34, 395, 396 and 302/34 Indian Penal Code. FINAL CONCLUSIONS:
(176) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 181
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(177) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officers. On the basis of the testimonies of the various witnesses the following aspects stand established:
➢ That Smt. Resham Rani (deceased) was residing at House No. B17/252, Sector3, Rohini, Delhi along with her daughter Smt. Jyoti Satija, her son in law Shishupal Satija and their family (proved by Shishu Pal and Jyoti Satija - not disputed).
➢ That Smt. Jyoti Satija along with her husband and children were staying on the second floor of the house whereas the mother of the complainant Shishu Pal is residing at first floor and the victim Smt. Resham Rani was residing on the ground floor and all the floors were connected through a common stair case constructed inside the building (proved by Shishu Pal and Jyoti Satija - not disputed).
➢ That on the intervening night of 2324.7.2014 at around 22:15 AM (midnight) Shishu Pal Satija heard loud voices of his mother St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 182 in law Resham Rani who was screaming and calling for his wife by her name and was shouting "Jyoti, Jyoti" (proved by Shishu Pal and Jyoti Satija).
➢ That Smt. Jyoti Satija woke up and rushed to the gallery and saw three boys running away from her house "ghar ke taraf se/ground floor se nikal kar bhag rahe thai" while Shishu Pal rushed to the ground floor (proved by Jyoti Satija).
➢ That Jyoti noticed that out of these three persons who were rushing out of their house one person was of fair complexion with small hair "gora tha aur uske baal chote chote thai"
whereas the other persons were of thin stature and dusky/ sanwla complexion and were in the age group of 2025 years "sawle color ke thai aur patle se thai aur unki umar 2025 saal thi" (proved by Jyoti Satija).
➢ That when Shishu Pal rushed downstairs, he found blood splattered all over the place inside the house near the door and also outside and found Smt. Resham Rani lying on the bed and crying in pain (proved by Shishu Pal and Jyoti Satija). ➢ That Shishu Pal Satija asked Smt. Resham Rani as to what had happened on which she informed him that two persons had come who were wearing black clothes and they had stabbed her and run away "Do admi kale rang ke kapre pehen kar aye thai aur chaku mar kar bhag gaye" (proved by Shishu Pal). St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 183 ➢ That in the meantime the other persons from the neighborhood had also started collecting (proved by Shishu Pal and Jyoti Satija).
➢ That Jyoti also reached the ground floor and both Shishu Pal and Jyoti Satija noticed that Smt. Resham Rani was bleeding heavily from the left side of her stomach (proved by Shishu Pal and Jyoti Satija).
➢ That both Shishu Pal and Jyoti Satija also noticed that there was blood scattered all over the floor, the almirah was open, the drawers of the TV trolley was also open, the window under the AC was broken by pulling the wiremesh outside and the articles of the house had been disturbed and were lying splattered (proved by Shishu Pal, Jyoti Satija, Crime Team Incharge SI Anil, Forensic Expert Sh. Parshuram, SI Ravi and Inspector Anil).
➢ That two brown colored chappals were lying in front of the window underneath the AC and the wiremesh of the window was broken by pulling the same outside showing that the intruders had broken into the house from there (proved by Shishu Pal, Jyoti Satija, Crime Team Incharge SI Anil, Forensic Expert, SI Ravi and Inspector Anil Kumar).
➢ That it was Shishu Pal who made a 100 number call and after about five to ten minutes the police came to the spot and Smt. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 184 Resham Rani was shifted to BSA Hospital and Shishu Pal along with his neighbors also rushed to the BSA Hospital and at that time Resham Rani was conscious (PCR form duly proved by Ct. Ram Sewak showing that as per the WT messages reflected in PCR Form Ex.PW14/A at 3:27 AM Resham Rani when admitted in the hospital was still conscious and it was at 3:31 AM that she became semiconscious).
➢ That at about 3:15 AM Resham Rani was admitted in the BSA Hospital and she herself gave the history to the doctor of stabbing by two unknown persons an hour back (Dr. Manoj and Dr. Bhawna Jain).
➢ That Shishu Pal who was with Resham Rani in the hospital made a call to his wife Smt. Jyoti Satija from the hospital and asked her to find out if some articles missing from the house, on which Jyoti checked the room of Resham Rani and informed that three four silver coins kept in a red thaili, a sum of Rs.1,200/ were missing (proved by Shishu Pal and Jyoti Satija and also mentioned in the FIR).
➢ That pursuant to the information given to the Police Station South Rohini, Inspector Anil Kumar alongwith SI Ravi and Ct. Sanjay reached the spot (proved by Inspector Anil Kumar, SI Ravi and Ct. Sanjay).
➢ That Ct. Sanjay was left at the spot for preservation of the Scene St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 185 of Crime whereas Inspector Anil Kumar along with SI Ravi Kumar went to the BSA Hospital where the injured Resham Rani was under treatment vide MLC and was declared unfit for statement (proved by Inspector Anil Kumar, SI Ravi and Ct. Sanjay).
➢ That during treatment Smt. Resham Rani expired at 4:30 AM (Death Summary proved by Dr. Manish).
➢ That Inspector Anil Kumar recorded the statement of Shishu Pal on the basis of which the present case was registered (proved by Inspector Anil Kumar and SI Ravi).
➢ That Inspector Anil Kumar then returned to the spot alongwith Shishu Pal (proved by Shishu Pal, Jyoti Satija, Inspector Anil Kumar, SI Ravi and Ct. Sanjay).
➢ That Inspector Anil Kumar instructed Smt. Jyoti Satija to find out the other articles which could be stolen on which she started taking the search of household articles and when she lifted the clothes from a chair in the lobby a purse fell on the ground on which she informed that the same was not belonging to them (proved by Shishu Pal, Jyoti Satija, Inspector Anil Kumar and SI Ravi).
➢ That the Scene of Crime was Inspected and photographed by the Crime Team (proved by Shishu Pal, Jyoti Satija, Ct. Manoj, SI Anil, SI Ravi and Inspector Anil Kumar).
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 186 ➢ That the purse was photographed and the same was checked and it was found to contain one RC of motorcycle DL 8S AQ 1008 and original voter ID Card in the name of Dalip S/o Bishan Lal, one duplicate driving license of Prem Chand S/o Bishan Lal, some papers and visiting card and two photographs (proved by Shishu Pal, Jyoti Satija, Ct. Manoj, SI Ravi and Inspector Anil Kumar).
➢ That the said purse found in the room of Resham Rani belonged to one Dalip S/o Bishan Singh the brother of the complainant in case FIR No. 152/2012 namely Bhim S/o Bishan Lal which purse the assailants had left behind at the spot i.e. House No. B17/252, Sector3, Rohini in the room of Smt. Resham Rani while fleeing away (proved by Shishu Pal, Jyoti Satija, SI Ravi and Inspector Anil Kumar).
➢ That the scene of crime was also got examined through the FSL Experts Sh. Parshuram Singh and Sh. Indresh Kumar Mishra (proved by Parshuram Singh, Indresh Kumar Mishra, SI Ravi and Inspector Anil Kumar).
➢ That the said purse was taken into possession and thereafter the various exhibits i.e. foot prints, towel, bed sheet, blood stained chaukhat, blood sample and chappals were also lifted from the spot (proved by SI Ravi and Inspector Anil Kumar). ➢ That information of a similar incident of Armed Robbery having St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 187 taken place on the same intervening night at G30/340, 341, Sector3, Rohini at about 1:301:45 AM i.e. before the present incident had also been received at Police Station South Rohini, which call was being attended to by Inspector V.N. Jha when the information of the present incident was received and pursuant to the receipt of earlier information FIR No. 152/12 was registered at Police Station South Rohini in respect of the said incident (proved by Inspector Anil Kumar and Inspector V.N. Jha). ➢ That on 25.7.2012 Inspector V.N. Jha, SI Mohd. Imtiyaz, SI Avdhesh and HC Raj Kumar proceeded for the investigations of case FIR No. 152/12 and tried to search for the accused persons (proved by HC Raj Kumar, SI Mohd. Imtiyaz, SI Avdhesh and Inspector V.N. Jha).
➢ That Inspector V.N. Jha contacted the complainant and asked from him about the description of the accused persons wanted in case FIR No.152/12 and thereafter he called all the Beat Staff and briefed them about the description of the accused persons as told by the complainant (proved by HC Raj Kumar, SI Mohd. Imtiyaz, SI Avdhesh and Inspector V.N. Jha).
➢ That thereafter the police team reached at H32 Park, Sector 3, Rohini, Delhi where Ct. Raj Kumar met them and informed that he had seen three assailants according to the description told to him (proved by HC Raj Kumar, SI Mohd. Imtiyaz, SI Avdhesh St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 188 and Inspector V.N. Jha).
➢ That on this information the police party reached in the park at about 9:3010 PM and apprehended the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda from H32 Park, Sector 3, Rohini, Delhi on the basis of the description available to them (proved by HC Raj Kumar, SI Mohd. Imtiyaz, SI Avdhesh and Inspector V.N. Jha).
➢ That the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda were interrogated and they admitted their involvement in the incident of armed robbery in the present case (proved by HC Raj Kumar, SI Mohd. Imtiyaz, SI Avdhesh and Inspector V.N. Jha).
➢ That from the formal search of accused Rajesh @ Tinku a buttondar knife was recovered which was taken into possession (proved by HC Raj Kumar, SI Mohd. Imtiyaz, SI Avdhesh and Inspector V.N. Jha).
➢ That from the formal search of accused Ravinder @ Tunda a knife was recovered which was taken into possession (proved by HC Raj Kumar, SI Mohd. Imtiyaz, SI Avdhesh and Inspector V.N. Jha).
➢ That from the search of accused Rusy @ Surender, an iron rod (rusted) was recovered from his right side which he was hiding on his left side, which rod was also taken into possession St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 189 (proved by HC Raj Kumar, SI Mohd. Imtiyaz, SI Avdhesh and Inspector V.N. Jha).
➢ That from the search of accused Rusy @ Surender a silver coin was recovered which coin was taken into possession (proved by HC Raj Kumar, SI Mohd. Imtiyaz, SI Avdhesh and Inspector V.N. Jha).
➢ That from the search of accused Ravinder @ Tunda a silver coin was also recovered which was taken into possession (proved by HC Raj Kumar, SI Mohd. Imtiyaz, SI Avdhesh and Inspector V.N. Jha).
➢ That from the search of accused Rajesh @ Tinku a silver coin was recovered which coin was also taken into possession (proved by HC Raj Kumar, SI Mohd. Imtiyaz, SI Avdhesh and Inspector V.N. Jha).
➢ That two ATM cards of SBI belonging to Dalip, brother of complainant in case FIR No. 152/12, were also recovered from the possession of accused Rusy @ Surender (proved by HC Raj Kumar, SI Mohd. Imtiyaz, SI Avdhesh and Inspector V.N. Jha). ➢ That the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda were then arrested in FIR No. 152/2012 and their disclosure statements were also recorded (proved by HC Raj Kumar, SI Mohd. Imtiyaz, SI Avdhesh and Inspector V.N. Jha).
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 190 ➢ That pursuant to their disclosure statements and at their instance the accused Mahesh @ Chikna Kalia and Amit @ Gora (since juvenile) were apprehended from BSA Hospital (proved by HC Raj Kumar, SI Mohd. Imtiyaz, SI Avdhesh and Inspector V.N. Jha).
➢ That pursuant to their disclosure statements the accused Ravinder @ Tunda, Rajesh @ Tinku and Rusy @ Surender got recovered their blood stained clothes from the park of BSA Hospital, which were then taken into possession (proved by HC Raj Kumar, SI Mohd. Imtiyaz, SI Avdhesh and Inspector V.N. Jha).
➢ That the accused Rusy @ Surender, Rajesh @ Tinku, Ravinder @ Tunda and Mahesh @ Chikna disclosed their involvement in the present case (proved by HC Raj Kumar, SI Mohd. Imtiyaz, SI Avdhesh and Inspector V.N. Jha).
➢ That on 9.8.2012 pursuant to the application moved by the Investigating Officer the accused Rusy @ Surender, Rajesh @ Tinku, Ravinder @ Tunda and Mahesh @ Chikna were produced before the Ld. MM after which the accused persons were formally arrested in the present case and their disclosure statements were recorded (proved by Ct. Umesh and Inspector Anil Kumar).
➢ That the accused Rusy @ Surender, Rajesh @ Tinku and St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 191 Ravinder @ Tunda were then tendered for Judicial Test Identification Parade but the accused Rusy @ Surender, Rajesh @ Tinku, Ravinder @ Tunda and Mahesh @ Chikna refused to take participate in the same (proved by Inspector Anil Kumar). ➢ That the silver coins recovered from the possession of accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda were subjected to Judicial Test Identification Parade wherein Shishu Pal identified all the three coins as the one's which were robbed from the room of Smt. Resham Rani (proved by Shishu Pal and Inspector Anil Kumar).
➢ That during investigations on 10.08.2012 when the accused persons led the Investigating Officer to the place of incident i.e. D17/252, Sector 3, Rohini, Delhi and pointed out the same Smt. Jyoti Satija who was in her house came out of the house and identified Ravinder, Surender and Rajesh as the assailants whom she had seen from her second floor while they were coming out of her house from the ground floor and running away at the time of the incident (proved by Jyoti Satija and Inspector Anil Kumar).
(178) The accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda have been specifically identified by Smt. Jyoti Satija as the assailants whom she had seen while running away from the spot. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 192 The ocular evidence in the form of testimonies of Shishu Pal Satija (PW22) and Jyoti Satija (PW25) has been held reliable, credible and truthful which conclusively establish the involvement of the accused in the crime.
(179) The Medical Evidence on record establishes that as many as three stab wounds have been inflicted upon the victim on her vital parts of which the injury on the front of abdomen and left side of abdomen were acute on one side and obtuse on the other side. These injuries match the sketch Ex.PW26/A of the knife Ex.P11 which shows the shape of the blade was peculiar towards the end i.e. acute from one side and obtuse from the other which knife was recovered from the possession of accused Rajesh @ Tinku and the FSL report confirms Human Blood on the same. It is established that the victim Smt. Resham Rani was a frail old lady of 65 years and all the stab injuries have been inflicted on vital parts and the manner in which she had been repeatedly stabbed on her right para spinal region at base of neck and abdomen, confirms that it was the work of more than one person and it also confirms the intent of the accused to cause her death. The medical evidence on record establishes the prosecution version that the death of the deceased was due to hemorrhagic shock consequent to penetrating injury to the abdomen and neck via injury no. 1 to 3 and the injury no.1 individually as well as combined with injury no.2 to 3 were sufficient to cause death in the ordinary course of nature.
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 193 (180) The Forensic Evidence confirms the prosecution version to the effect that after committing the offence in FIR No.512/2012 the assailants had broken the house of the victim Resham Rani by breaking the wiremesh on the AC window of the ground floor room. The clothes got recovered by the Surender @ Rusy and Rajesh @ Tinku had the blood stains of 'A' Group i.e. the same as of victim Resham Rani and the clothes of the accused Ravinder had blood of 'B' Group i.e. the same as of victim Shanti Devi in FIR No. 152/2012 which incident was committed prior to the present house breaking. Further, the knife Ex.P11 recovered from the possession of accused Rajesh @ Tinku shows the presence of Human Blood whereas the knife recovered from the possession of the accused Ravinder @ Tunda shows the specific presence of Blood Group 'B' (i.e. the blood of the victim in FIR No. 152/2012, PS South Rohini). (181) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (182) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 194 postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link. (183) However, since the prosecution has not been able to establish and prove the involvement of the accused Mahesh @ Kaliya @ Chikna in the commission of robbery, therefore the provisions of Section 396 IPC (dacoity) would not apply and the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda are acquitted of the charge under Section 395/ 396 Indian Penal Code. In view of the above I hereby conclude that the following charges stand established against the accused herein under for which they are hereby convicted:
1. The accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda are held guilty of the offence under Section 460/34 Indian Penal Code (for committing lurking house trespass by night).
2. The accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda are held guilty of the offence under Section 302/34 Indian Penal Code (for committing the murder of Smt. Resham Rani by St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 195 inflicted knife injuries).
3. The accused Rusy @ Surender and Ravinder @ Tunda are held guilty of the offence under Section 392 Indian Penal Code (for committing robbery).
4. The accused Rajesh @ Tinku is held guilty of the offence under Section 392 r/w 397 Indian Penal Code and Section 27 of Arms Act (for using a deadly weapon i.e. knife at the time of commission of robbery).
(184) In so far as the accused Mahesh @ Chikna @ Kaliya is concerned, the evidence which has come on record is his own disclosure statement as well as the disclosure statements of the coaccused. No public witness has identified him as the assailant nor there is any recovery from his possession or at his instance to connect him with the alleged offence. Under these circumstances, benefit of doubt is being given to the accused Mahesh @ Chikna @ Kaliya who is acquitted of the charges under Section 460/34, 395, 396 and 302/34 Indian Penal Code. (185) Be listed for arguments on sentence on 11.8.2014.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 5.8.2014 ASJII(NW)/ ROHINI
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 196
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE II (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 32/2013 Unique Case ID No.: 02404R0303802012 State Vs. (1) Rusy @ Surender S/o Sh. Thakur Das R/o D618, Gali No. 11, Mangol Puri, Delhi (Convicted) (2) Rajesh @ Tinku S/o Roop Singh R/o F29/569, Mangol Puri, Delhi (Convicted) (3) Ravinder @ Tunda S/o Rajesh R/o Jhuggi Hanuman Mandir, Gali No.22, Near RTV Bus Stand, Budh Vihar, PhaseII, Delhi (Convicted) (4) Mahesh @ Chikna Kaliya S/o Thakur Das R/o Jhuggi No. 248, Indira JJ Camp, Sector3, Rohini, Delhi (Acquitted) FIR No.: 153/2012 Police Station: South Rohini Under Section: 302/460/396/34 Indian Penal Code St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 197 Date of Conviction: 5.8.2014 Arguments heard on: 11.8.2014 Date of sentence: 12.8.2014 APPEARANCE:
Present: Sh. Tofeeq Ahmed, Ld. Addl. PP for the State.
Convict Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda in Judicial Custody with Sh. Shubham Asri and Ms. Dhaneshwari Advocates/ Amicus Curiae.
ORDER ON SETNENCE:
As per the allegations on 24.7.2012 at about 2:15 AM at House No. B17/252, Sector3, Rohini, Delhi the accused Rusy @ Surender, Rajesh @ Tinku @ Kanta, Ravinder @ Tunda and Mahesh @ Chikna Kaliya along with their coaccused namely Amit @ Gora (juvenile) in furtherance of their common intention committed lurking house trespass or house breaking at the above said house and voluntarily cased death of Smt. Resham Rani. All the above accused committed dacoity at the said house and robbed threefour silver coins, one wrist watch, Rs.1,000/ to Rs.1,200/, one Ear Ring and one gold ring from the possession of Smt. Resham Rani and while committing dacoity they inflicted knife injuries to the victim Resham Rani thereby committing her murder. It has also been alleged that at the time of committing dacoity the accused Rajesh @ Tinku used a deadly weapon i.e. buttondar knife with St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 198 which he inflicted injuries upon the victim.
On the basis of the testimonies of the various prosecution witnesses including Shishupal Satija & Smt. Jyoti Satija and also on the basis of the medical, forensic and circumstantial evidence on record, this Court had observed that the prosecution has successfully established that Smt. Resham Rani (deceased) was residing at House No. B17/252, Sector3, Rohini, Delhi along with her daughter Smt. Jyoti Satija, her son in law Shishupal Satija and their family; that Smt. Jyoti Satija along with her husband and children were staying on the second floor of the house whereas the mother of the complainant Shishu Pal is residing at first floor and the victim Smt. Resham Rani was residing on the ground floor and all the floors were connected through a common stair case constructed inside the building; that on the intervening night of 2324.7.2014 at around 22:15 AM (midnight) Shishu Pal Satija heard loud voices of his mother in law Resham Rani who was screaming and calling for his wife by her name and was shouting "Jyoti, Jyoti"; that Smt. Jyoti Satija woke up and rushed to the gallery and saw three boys running away from her house "ghar ke taraf se/ground floor se nikal kar bhag rahe thai" while Shishu Pal rushed to the ground floor; that Jyoti noticed that out of these three persons who were rushing out of their house, one person was of fair complexion with small hair "gora tha aur uske baal chote chote thai" whereas the other persons were of thin stature and dusky/ sanwla complexion and were in the age group of 2025 years "sawle color ke thai aur patle se thai aur St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 199 unki umar 2025 saal thi".
The prosecution has also been able to prove and establish that when Shishu Pal rushed downstairs, he found blood splattered all over the place inside the house near the door and also outside and found Smt. Resham Rani lying on the bed and crying in pain; that Shishu Pal Satija asked Smt. Resham Rani as to what had happened on which she informed him that two persons had come who were wearing black clothes and they had stabbed her and run away "Do admi kale rang ke kapre pehen kar aye thai aur chaku mar kar bhag gaye"; that in the meantime the other persons from the neighborhood had also started collecting; that Jyoti also reached the ground floor and both Shishu Pal and Jyoti Satija noticed that Smt. Resham Rani was bleeding heavily from the left side of her stomach; that both Shishu Pal and Jyoti Satija also noticed that there was blood scattered all over the floor, the almirah was open, the drawers of the TV trolley was also open, the window under the AC was broken by pulling the wiremesh outside and the articles of the house had been disturbed and were lying splattered; that two brown colored chappals were lying in front of the window underneath the AC and the wiremesh of the window was broken by pulling the same outside showing that the intruders had broken into the house from there; that it was Shishu Pal made a 100 number call and after about five to ten minutes the police came to the spot and Smt. Resham Rani was shifted to BSA Hospital and Shishu Pal along with his neighbors also rushed to the BSA Hospital and at that time Resham Rani was St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 200 conscious; that at about 3:15 AM Resham Rani was admitted in the BSA Hospital and she herself gave the history to the doctor of stabbing by two unknown persons an hour back.
This Court has also observed that the prosecution has been able to prove and establish that Shishu Pal who was with Resham Rani in the hospital made a call to his wife Smt. Jyoti Satija from the hospital and asked her to find out if some articles missing from the house, on which Jyoti checked the room of Resham Rani and informed that threefour silver coins kept in a red thaili, a sum of Rs.1,200/ were missing; that pursuant to the information given to the Police Station South Rohini, Inspector Anil Kumar alongwith SI Ravi and Ct. Sanjay reached the spot; that Ct. Sanjay was left at the spot for preservation of the Scene of Crime whereas Inspector Anil Kumar along with SI Ravi Kumar went to the BSA Hospital where the injured Resham Rani was under treatment vide MLC and was declared unfit for statement; that during treatment Smt. Resham Rani expired at 4:30 AM; that Inspector Anil Kumar recorded the statement of Shishu Pal on the basis of which the present case was registered; that Inspector Anil Kumar then returned to the spot alongwith Shishu Pal.
The prosecution has also been able to prove and establish that Inspector Anil Kumar instructed Smt. Jyoti Satija to find out the other articles which could be stolen on which she started taking the search of household articles and when she lifted the clothes from a chair in the St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 201 lobby a purse fell on the ground on which she informed that the same was not belonging to them; that the Scene of Crime was Inspected and photographed by the Crime Team; that the purse was photographed and the same was checked and it was found to contain one RC of motorcycle DL 8S AQ 1008 and original voter ID Card in the name of Dalip S/o Bishan Lal, one duplicate driving license of Prem Chand S/o Bishan Lal, some papers and visiting card and two photographs; that the said purse found in the room of Resham Rani belonged to one Dalip S/o Bishan Singh the brother of the complainant in case FIR No. 152/2012 namely Bhim S/o Bishan Lal which purse the assailants had left behind at the spot i.e. House No. B17/252, Sector3, Rohini in the room of Smt. Resham Rani while fleeing away; that the scene of crime was also got examined through the FSL Experts Sh. Parshuram Singh and Sh. Indresh Kumar Mishra; that the said purse was taken into possession and thereafter the various exhibits i.e. foot prints, towel, bed sheet, blood stained chaukhat, blood sample and chappals were also lifted from the spot; that information of a similar incident of Armed Robbery having taken place on the same intervening night at G30/340, 341, Sector3, Rohini at about 1:301:45 AM i.e. before the present incident had also been received at Police Station South Rohini, which call was being attended to by Inspector V.N. Jha when the information of the present incident was received and pursuant to the receipt of earlier information FIR No.152/12 was registered at Police Station South Rohini in respect of the said incident. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 202
It has also been observed by this court that the prosecution has been able to prove and establish that on 25.7.2012 Inspector V.N. Jha, SI Mohd. Imtiyaz, SI Avdhesh and HC Raj Kumar proceeded for the investigations of case FIR No. 152/12 and tried to search for the accused persons; that Inspector V.N. Jha contacted the complainant and asked from him about the description of the accused persons wanted in case FIR No. 152/12 and thereafter he called all the Beat Staff and briefed them about the description of the accused persons as told by the complainant; that thereafter the police team reached at H32 Park, Sector 3, Rohini, Delhi where Ct. Raj Kumar met them and informed that he had seen three assailants according to the description told to him; that on this information the police party reached in the park at about 9:3010 PM and apprehended the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda from H32 Park, Sector 3, Rohini, Delhi on the basis of the description available to them; that the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda were interrogated and they admitted their involvement in the incident of armed robbery in the present case; that from the formal search of accused Rajesh @ Tinku a buttondar knife was recovered which was taken into possession; that from the formal search of accused Ravinder @ Tunda a knife was recovered which was taken into possession; that from the search of accused Rusy @ Surender, an iron rod (rusted) was recovered from his right side which he was hiding on his left side, which rod was also taken into possession; that from the search of accused Rusy St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 203 @ Surender a silver coin was recovered which coin was taken into possession; that from the search of accused Ravinder @ Tunda a silver coin was also recovered which was taken into possession; that from the search of accused Rajesh @ Tinku a silver coin was recovered which coin was also taken into possession; that two ATM cards of SBI belonging to Dalip, brother of complainant in case FIR No. 152/12, were also recovered from the possession of accused Rusy @ Surender; that the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda were then arrested in FIR No. 152/2012 and their disclosure statements were also recorded; that pursuant to their disclosure statements and at their instance the accused Mahesh @ Chikna Kalia and Amit @ Gora (since juvenile) were apprehended from BSA Hospital; that pursuant to their disclosure statements the accused Ravinder @ Tunda, Rajesh @ Tinku and Rusy @ Surender got recovered their blood stained clothes from the park of BSA Hospital, which were then taken into possession; that the accused Rusy @ Surender, Rajesh @ Tinku, Ravinder @ Tunda and Mahesh @ Chikna disclosed their involvement in the present case.
The prosecution has also been able to prove and establish that on 9.8.2012 pursuant to the application moved by the Investigating Officer the accused Rusy @ Surender, Rajesh @ Tinku, Ravinder @ Tunda and Mahesh @ Chikna were produced before the Ld. MM after which the accused persons were formally arrested in the present case and their disclosure statements were recorded; that the accused Rusy @ Surender, St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 204 Rajesh @ Tinku and Ravinder @ Tunda were then tendered for Judicial Test Identification Parade but the accused Rusy @ Surender, Rajesh @ Tinku, Ravinder @ Tunda and Mahesh @ Chikna refused to take participate in the same; that the silver coins recovered from the possession of accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda were subjected to Judicial Test Identification Parade wherein Shishu Pal identified all the three coins as the one's which were robbed from the room of Smt. Resham Rani; that during investigations on 10.08.2012 when the accused persons led the Investigating Officer to the place of incident i.e. D17/252, Sector 3, Rohini, Delhi and pointed out the same Smt. Jyoti Satija who was in her house came out of the house and identified Ravinder, Surender and Rajesh as the assailants whom she had seen from her second floor while they were coming out of her house from the ground floor and running away at the time of the incident.
This Court has further observed that the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda have been specifically identified by Smt. Jyoti Satija as the assailants whom she had seen while running away from the spot. The ocular evidence in the form of testimonies of Shishu Pal Satija and Jyoti Satija has been held reliable, credible and truthful which conclusively establish the involvement of the accused in the crime.
Further, the Medical Evidence on record established that as many as three stab wounds have been inflicted upon the victim on her St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 205 vital parts of which the injury on the front of abdomen and left side of abdomen were acute on one side and obtuse on the other side. These injuries match with the sketch of the knife which shows the shape of the blade was peculiar towards the end i.e. acute from one side and obtuse from the other which knife was recovered from the possession of accused Rajesh @ Tinku and the FSL report confirms Human Blood on the same. It has been established that the victim Smt. Resham Rani was a frail old lady of 65 years and all the stab injuries have been inflicted on vital parts and the manner in which she had been repeatedly stabbed on her right para spinal region at base of neck and abdomen, confirmed that it was the work of more than one person and it also confirmed the intent of the accused to cause her death. The medical evidence on record established the prosecution version that the death of the deceased was due to hemorrhagic shock consequent to penetrating injury to the abdomen and neck via injury no. 1 to 3 and the injury no.1 individually as well as combined with injury no.2 to 3 were sufficient to cause death in the ordinary course of nature.
The Forensic Evidence on record confirmed the prosecution version to the effect that after committing the offence in FIR No.512/2012 the assailants had broken the house of the victim Resham Rani by breaking the wiremesh on the AC window of the ground floor room. The clothes got recovered by the Surender @ Rusy and Rajesh @ Tinku had the blood stains of 'A' Group i.e. the same as of victim Resham Rani and St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 206 the clothes of the accused Ravinder had blood of 'B' Group i.e. the same as of victim Shanti Devi in FIR No. 152/2012 which incident was committed prior to the present house breaking. Further, the knife recovered from the possession of accused Rajesh @ Tinku showed the presence of Human Blood whereas the knife recovered from the possession of the accused Ravinder @ Tunda shows the specific presence of Blood Group 'B' (i.e. the blood of the victim in FIR No. 152/2012, PS South Rohini).
However, since the prosecution has not been able to establish and prove the involvement of the accused Mahesh @ Kaliya @ Chikna in the commission of robbery, therefore the provisions of Section 396 IPC (dacoity) would not apply and the accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda have been acquitted of the charge under Section 395/ 396 Indian Penal Code. In view of the above this Court has concluded that the following charges stand established against the accused herein under for which they have been convicted:
1. The accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda have been held guilty of the offence under Section 460/34 Indian Penal Code (for committing lurking house trespass by night).
2. The accused Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda have also been held guilty of the offence under Section 302/34 Indian Penal Code (for committing the murder of Smt. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 207 Resham Rani by inflicted knife injuries).
3. The accused Rusy @ Surender and Ravinder @ Tunda have also been held guilty of the offence under Section 392 Indian Penal Code (for committing robbery).
4. The accused Rajesh @ Tinku has been held guilty of the offence under Section 392 r/w 397 Indian Penal Code and Section 27 of Arms Act (for using a deadly weapon i.e. knife at the time of commission of robbery).
In so far as the accused Mahesh @ Chikna @ Kaliya is concerned, this court has observed that the evidence which has come on record is his own disclosure statement as well as the disclosure statements of the coaccused. No public witness has identified him as the assailant nor there is any recovery from his possession or at his instance to connect him with the alleged offence. Under these circumstances, benefit of doubt has been given to the accused Mahesh @ Chikna @ Kaliya who has been acquitted of the charges under Section 460/34, 395, 396 and 302/34 Indian Penal Code.
Heard arguments on the point of sentence. The convict Rusy @ Surender is stated to be a young boy of 23 years having a family comprising of aged parents and five sisters out of whom two are married and three are still studying. He is 5th class pass and is a Halwai by profession.
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 208
The convict Rajesh @ Tinku is stated to be aged about 34 years having a family comprising of aged widow mother who is blind. He is 6th class pass and was working in a factory of shoes.
The convict Ravinder @ Tunda is stated to be a young boy of 23 years having a family comprising of aged parents, one younger brother and two younger sisters. He is totally illiterate and was a conductor in Gramin Seva.
Ld. Counsels appearing on behalf of the convicts have vehemently argued that all the convicts are young boys and keeping in view their family background a lenient view be taken against them.
On the other hand the Ld. Addl. Public Prosecutor has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convicts. It is also stated that the convicts have not been able to show any mitigating circumstances in their favour which could make out a case for imposition of sentence of imprisonment for life.
I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 209 (Supra) which are required to be keep in mind before awarding a death sentence in any given case.
The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) Where the murder has been committed after previous planning and involves extreme brutality; or
(b) Where the murder involves exceptional depravity.
The mitigating circumstances which were mentioned in that judgment were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 210 constitute a continuing threat to society;
(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a helpless woman is committed.
It was also observed by the Hon'ble Court that at the same time it must be kept in mind that the principle of there being a proportion St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 211 between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is the desirability to keep the offender out of circulation.
Now, coming to the case in hand, I would like to draw a balance sheet of aggravating and mitigating factors. The mitigating factors in the present case are that all the convicts are young boys in their twenties, belonging to poor families and are helping hands to their respective families. In so far as the convict Ravinder @ Tunda is concerned he has no criminal background and is a first time offender.
The aggravating factors are firstly that the victim in the present case namely Smt. Resham Rani was a senior citizen aged 65 years. St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 212 Secondly the offence of lurking house trespass had been committed after Sunset and before Sunrise which in itself is an aggravating factor in cases of robbery for which higher degree of punishment is contemplated. Thirdly there was no history of any dispute or enmity between the victim and the assailants and the murder of Smt. Resham Rani had been committed only because of monetary gains since the convicts wanted to rob her belongings which was resisted by the victim. Lastly the convicts Rusy @ Surender and Rajesh @ Tinku are repeat offenders and professionals being involved in number of cases, the details and status of which cases are as under:
The convict Rusy @ Surender is involved in Four other cases details of which are as under:
S. FIR No. Section Police Station Status of Case No.
1. 179/2011 308/34 IPC Mangol Puri Pending Trial
2. 178/2012 334 IPC Mangol Puri Convicted
3. 11/2011 25/54/59 Arms Act Manogl Puri Acquitted
4. 152/2012 302/460/34 IPC South Rohini Pending Trial The convict Rajesh @ Tinku is involved in Five other cases details of which are as under:
S. FIR No. Section Police Station Status of Case No.
1. 918/2007 457/380 IPC Mangol Puri Convicted St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 213
2. 919/2007 457/380 IPC Mangol Puri Convicted
3. 109/2007 20/61/85 NDPS Act Manogl Puri Convicted
4. 548/2010 324/34 IPC Mangol Puri Pending Trial
5. 152/2012 302/460/34 IPC South Rohini Pending Trial In so far as the convict Ravinder @ Tunda is concerned he is involved in another case bearing FIR No. 152/2012, under Sections 302/460/34 IPC, PS south Rohini.
I may observe that in the recent past Delhi is experiencing a spurt and rise in the incidents of snatching, robbery, dacoity, murder and other kinds of crime. There has been a 43.6 percent increase in Delhi's crime graph in 2013 over 2012. A staggering 73,958 cases were registered under the Indian Penal Code in 2013 up from 51,479 in the previous year.
The deteriorating law and order problem of the City is a matter of serious concern and immediate steps are required to be taken at all levels for ensuring security and safety of the citizens. Instances of young persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, are also on rise. Criminals are unhesitatingly and indiscriminately using dangerous firearms on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system. These young offenders appear to be graduating in St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 214 crime with every passing incident throwing a challenge upon the Law Enforcement Agencies. The courts are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges. The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is desirability to keep the offender out of circulation.
The convicts are professional criminals operating in area who move around undeterred looking for vulnerable victims and on the same night two incident were committed in the same area both involving senior citizens. Undue sympathy, under these circumstances, to impose inadequate sentence upon the convicts who are habitual and repeat offenders would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed.
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 215
After having considered the submissions made before me and the various aggravating and mitigating factors and particularly the fact that the convicts who are young boys belong to extremely poor families and the offence in question was committed in lure for easy money. The convict Ravinder has no previous background of crime and in so far as Rusy @ Surender and Rajesh @ Tinku are concerned the chances of their reformation cannot be ruled out and hence, I hold that the case in hand certainly does not fall within the category of Rarest of Rare or least even in category of Rare Case and I, therefore, award the following sentences to the convicts:
Convict Rusy @ Surender:
1. For the offence under Section 460 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.2,000/ (Rs. Two Thousand). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Week.
2. For the offence under Section 302 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine for a sum of Rs.10,000/ (Rs. Ten Thousand). In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month.
3. For the offence under Section 392 Indian Penal Code the convict St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 216 is sentenced to Rigorous Imprisonment for a period of Ten (10) Years and fine to the tune of Rs.2,000/ (Rs. Two Thousand). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Week.
Convict Rajesh @ Tinku:
1. For the offence under Section 460 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.2,000/ (Rs. Two Thousand). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Week.
2. For the offence under Section 302 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine for a sum of Rs.10,000/ (Rs. Ten Thousand). In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month.
3. For the offence under Section 392 r/w 397 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.2,000/ (Rs. Two Thousand) . In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Week.
4. For the offence under Section 27 Arms Act the convict is St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 217 sentenced to Rigorous Imprisonment for a period of Five (5) Years and fine to the tune of Rs.2,000/ (Rs. Two Thousand). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Week.
Convict Ravinder @ Tunda:
1. For the offence under Section 460 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.2,000/ (Rs. Two Thousand). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Week.
2. For the offence under Section 302 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine for a sum of Rs.10,000/ (Rs. Ten Thousand). In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month.
3. For the offence under Section 392 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Ten (10) Years and fine to the tune of Rs.2,000/ (Rs. Two Thousand) . In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Week.
It is directed that all substantive period of sentences of St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 218 imprisonment of the convicts in the present case shall run concurrently. Benefit of Section 428 Cr.P.C. shall be given to all the convicts for the period undergone by them during the trial as per rules.
IT IS CLARIFIED THAT THE SENTENCE IN THE PRESENT FIR SHALL RUN CONSECUTIVELY TO THE SENTENCE AWARDED TO THE CONVICTS IN ANY OTHER CASE.
The convicts have been informed that they have a right to prefer an appeal against the judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to all the convicts free of costs and one copy of order on sentence be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 12.8.2014 ASJII(NW)/ ROHINI
St. Vs. Rusy @ Surender Etc., FIR No. 153/12, PS South Rohini Page No. 219