Delhi District Court
S T A T E vs (1)Azad @ Iqbal on 17 March, 2009
1
IN THE COURT OF SH. GURDEEP SINGH:ASJ-04
NORTH-EAST DISTRICT: KARKARDOOMA COURTS:DELHI
FIR No: 267/2001
PS: Bhajanpura, Delhi
U/s: 302/380/458/34 IPC
& 27/54/59 of Arms Act
Sessions Case No. 76/08
Date of institution:-22/11/2001
Date of committal:-19/01/2002
Date on which reserved for order :- 07/03/2009
Date of delivery of Judgment:- 09/03/2009
S T A T E Versus (1)Azad @ Iqbal
S/o Sh. Shamshul Khan,
R/o Village: Khazuri, Badia,
PS: Murail Ganj,
District: Bagerhat, Bangaldesh.
(2)Hamidul
S/o Sh. Hasim,
R/o Village: Murial Ganj,
Chotabaura, PS: Murail Ganj,
District: Bagerhat, Bangaldesh.
(3)Mohd. Saleem @ Mohd. Apan
S/o Sh. Sattar,
R/o Village: Bagumtia.
PS: Kudalia, District: 24 Pargana,
West Bengal.
(4)Sher Mohd.
S/o Sh. Mohd. Sufiq,
R/o Dilshad Colony,
Jai Mandir, Seemapuri, Delhi.
JUDGMENT
1. Accused Azad @ Iqbal S/o Sh. Shamshul Khan, Hamidul S/o Sh. Hasim, Mohd. Saleem @ Mohd. Apan S/o Sh. Sattar, and Sher Mohd. S/o Sh. Mohd.
Contd. 2/-
2Sufiq were sent up for trial by police of PS: Bhajanpura, Delhi, for offences punishable 302/380/458/34 IPC & 27/54/59 of Arms Act.
2. The brief facts of the prosecution case are that on 01.08.2001, on the receipt of DD No. 30-A regarding the firing on watchman, ASI Ram Gopal and Constable Lal Singh reached at the spot i.e Gali No. 16, C-Block, Bhajanpura and came to know that some unknown persons had shot one watchman. No eye-witness was found and they came to know that injured was already removed to the GTB Hospital by the PCR. ASI alongwith the Constable reached at GTB Hospital and obtained the MLC of Ganesh, S/o Sh. Man Bahadur. The doctor kept him under observation for gun shot and declared him fit for the statement. His statement was recorded. He stated that he is living as tenant and is permanent resident of Nepal and he is working as night watchman at C-Block from Gali no. 12 to 25. At about 3.00 am, while patrolling, he reached in front of the TV Shop bearing No. C-502/2, Gali No. 22, Bhajanpura belonging to one Vidhya Bhushan, he found that the Contd. 3/-
3shutter of the shop was open and there were four persons in the age group of 20-25 years inside, out of them, one was tall and three were of medium height. Two of them were having country made pistols and one was having a knife. One boy had stolen one T.V from the shop and was coming out. He raised alarm of 'Chor Chor'. Two of them started chasing him and when while running, he reached at Gali no. 16, one of them, fired from his country made pistol on him. The bullet hit on his right hand and entered into his right side rib. When he raised alarm of 'bachao bachao', they fled away from the spot. He started bleeding and public persons gathered on hearing the alarm. Somebody called the police and PCR took him to GTB Hospital and he can identify those persons on seeing them.
On this statement, the FIR U/s 458/307/380/34 IPC was registered at police station, Bhajanpura, Delhi. The place of occurrence was inspected, its site plan was prepared and the place was photographed. The Crime Team also inspected the spot. The 'lathi', whistle and lock was taken into Contd. 4/-
4possession by the police. The blood was taken from the mattress on 'takhat' lying outside the shop of Hari Om Diary where injured was lying. Same was cut and sealed. The shirt of the injured was received from the hospital alongwith sample seal which was also seized. Thereafter, the investigation of this case was handed over to Inspector S.B Yadav. On 18.08.01, vide DD. No. 2-A, an information was received that injured Ganesh has died in the hospital. Postmortem of the injured was got conducted. The opinion was taken from the sealed clothes regarding corresponding cut mark. Thereafter, on 24.08.01, vide DD No. 12-A, an information was received that in the said occurrence, four accused persons were arrested by police of PS:
Sangam Vihar in case bearing FIR No. 469/01, U/s 402/186/353/307/34 IPC and U/s 25 and 27 of Arms Act and they had disclosed regarding their involvement in the present occurrence. They were produced at Patiala House Courts, Delhi. PW-32 S.I Arjun Singh was deputed for further investigation of the case. He obtained the relevant Contd. 5/-5
papers regarding the present case. After taking permission from the court, he interrogated the accused persons namely Azad, Hamidul, Mohd. Saleem and Sher Mohd. Thereafter, they were formally arrested. On 25.08.01, an application for conducting the Test Identification Parade was moved but the accused persons refused to join the said TIP proceedings before the Link Metropolitan Magistrate. One day police remand of accused Sher Mohd. was taken but stolen T.V could not be recovered. On 29.08.01, case property was brought from PS: Sangam Vihar and deposited in PS: Bhajanpura. The exhibits were sent to FSL for ballistic opinion and the remaining exhibits were deposited at FSL, Malviya Nagar for biological opinion. From the investigation, it was concluded that accused persons had stolen the colour TV, after breaking the shutter and when watchman raised the alarm, accused Azad having illegal arm chased him with the country made pistol and when he reached near Hari Om Diary, accused Azad fired at him and thereafter, they fled away with stolen TV. Later on, Contd. 6/-6
the FSL result was submitted. Thereafter, the accused persons were charge-sheeted for the abovesaid offences.
3. After supplying the copies to the accused persons, the case was committed to the court of sessions vide order dated 02/01/2002.
4. My Ld. Predecessor vide order dated 18/03/02, charged the accused persons for offences punishable U/Sections 458/34 IPC, 380/34 IPC and 302/34 IPC to which they pleaded not guilty and claimed trial.
5. During the course of trial, prosecution in support of their case examined as many as thirty-two witnesses.
PW-2 Gorakh Bahadur and PW-5 Kanahiya Lal are the eye-witnesses of this case. PW-4 Sh. Vidhya Bhushan Malhotra from whose shop the TV was stolen. These are the public witnesses. The prosecution examined PW-9 Constable Lal Singh who joined the investigation with PW-24 ASI Ram Gopal. PW-21 Inspector S.B Yadav partly investigated this case and prepared inquest report, Contd. 7/-
7made request for postmortem and handed over the dead body and also got the opinion regarding the bullet and proved the same as Ex.PW21/A, PW21/C, PW21/D and PW21/E. PW31-Asha Ram is the IO of the case of PS: Sangam Vihar, Delhi.
Prosecution also examined medical witnesses. PW-3 Dr. Gaurav Vinod Jain who conducted the postmortem and gave the opinion regarding cut marks. PW-26 Dr. R.K.B Chaudhary who proved the MLC of the injured who subsequently died, as the doctor who examined the injured had left the services of the hospital.
The prosecution also examined formal witnesses. PW-6 H.C Devender with whom the blood gauge was deposited by Constable Radhey Shyam and seized the same vide seizure memo Ex.PW6/A and deposited the same in the malkhana. PW-7 H.C Ram Singh took the photographs of the spot and proved the same as Ex.PW7/A to PW7/D and its negatives are Ex.PW7/E and PW7/H. PW-8 Smt. Ram Kali is the wife of the deceased who identified the dead body of her husband.
Contd. 8/-
8PW-10 ASI Purshottam Dutt had removed the injured Ganesh Bahadur in the PCR to GTB Hospital. PW-12 Constable Shiv Kumar searched for the finger prints from the spot but found none and proved the report as Ex.PW12/A. PW-13 Constable Mukesh brought the sealed parcel of the cloth of injured and one bullet on 01/08/01 and 18/08/01 respectively and handed over to the IO and proved the seizure memo Ex.PW9/C and Ex.PW13/A respectively. PW-14 Constable Satish Kumar deposited the sealed parcel to GTB Hospital Forensic Lab. PW-15 HC Satya Pal Singh was the duty officer who received the information from ASI Asha Ram, AATS, South District regarding the arrest of accused persons in FIR No. 469/01, U/s 402/307/186/353 IPC at PS Sangam Vihar and recorded the same as Ex.PW12/A and proved the same as Ex.PW15/A. PW-18 Constable Narender got the postmortem conducted on the dead body and handed over the dead body to the brother and wife of deceased vide memo Ex.PW18/A. PW-19 Constable Radhey Shyam is the witness of handing Contd. 9/-
9over of the dead body and brought the preserved gauge and deposited with the duty officer. PW-20 HC Rishi Pal was Duty Officer on 01.08.01 who registered the FIR in this case and proved the same as Ex.PW20/A. PW-25 Constable Dhanvir brought the Exhibits from PS Sangam Vihar and deposited the same at PS: Bhajanpura. PW-1 H.C Vijay Singh was MHC(M) with whom the exhibits were deposited and were sent to the FSL for opinion. PW-27 Mukesh Jain prepared the scaled site plan Ex.PW27/A. PW-11 Sh. Manoj Kumar Nagpal, Metropolitan Magistrate, who recorded the refusal of accused persons to join the Test Identification Parade Proceedings.
The prosecution also examined the witnesses of recovery who had recovered the weapon of offence in the other case i.e FIR bearing No. 469/01, PS Sangam Vihar. PW-22 H.C Manoj Kumar, PW-23 H.C Naresh Kumar, PW-28 Inspector Pankaj Singh, PW-29 Constable Subhash Chander are the witnesses of recovery from the accused persons. PW-17 Ct. Arun is the witness of arrest of four Contd. 10/-
10accused persons and proved the arrest memos as Ex.PW16/A to D. He is also the witness of disclosure statement of accused Sher Mohd., pointing out memo of the place of theft and place of murder. PW-17 Ct. Arun joined, IO/S.I Arjun Singh in the investigation who conducted the part investigation and filed the charge-sheet.
6. After the conclusion of the prosecution evidence, statement of all the accused persons were recorded U/s 313 Cr.PC. Accused persons denied the prosecution evidence and claimed innocence.
7. Accused Hamidul, Azad and Mohd. Saleem stated that they were lifted from their house as Delhi Police was apprehending Bangladesh Nationals and they were falsely implicated in three cases. They said that they would lead Defence Evidence. However, later on, they stated that they do not want to lead their defence evidence.
8. Accused Sher Mohd. stated that he was apprehended by the police thinking that he is Bangladeshi and they falsely implicated him in other three cases. He Contd. 11/-
11stated that he would lead the defence evidence and stated that he would file the certified copy of the judgment of the other case in which he has been acquitted. He has filed the same, however, he stated that he does not want to lead any defence evidence.
9. I have heard Ld. Addl. P.P for the State, Sh. Abdul Sattar, Advocate, Amicus Curiae for accused Mohd. Saleem and Sh. M.K Srivastava, Advocate, Amicus Curiae for remaining accused persons and also gone through the record.
10. The statement of deceased Ganesh Ex.PW24/A is admissible U/s 32 (1) of the Evidence Act as it relates to the circumstances of transaction which resulted in his death. PW-24 proved the dying declaration. In the cross-examination PW-24 stated that statement of the deceased was not attested by any Doctor of GTB Hospital or by his family members. He was given the suggestion that Ganesh Bahadur was illiterate and he had no knowledge how to sign and he (PW-24) himself put the signatures of Ganesh Bahadur on his statement. Apart from this Contd. 12/-
12suggestion, there is nothing on record that Ganesh Bahadur was illiterate and he was not knowing how to sign. PW-26 Dr. R. K. B. Chaudhary has proved the MLC of the deceased in which the patient was shown as conscious, oriented and no abnormality was detected. The same is also not questioned in the cross-examination. Therefore, there is no dispute that Ganesh Bahadur was fully conscious when he made his statement. Dying Declaration is consistent and trustworthy. There is no likelihood of his tutoring by any person as he has not even named the assailant. Therefore it is established from the statement of deceased Ganesh that he saw four boys in the age group of 20-25 years, out of them, one was tall and three were of medium height. Two were having country made pistol and one was having knife. One of them was coming out with small TV. Out of them two chased him. when he raised alarm of 'chor chor' and when he reached near Gali No. 16, one of them fired from the country made pistol on him and when he raised alarm of 'bachao bachao', they fled away from the spot. After hearing the Contd. 13/-
13alarm, many persons collected at the spot. Somebody had called the police. PCR came at the spot and took him to the GTB Hospital. PW-5 testified that on 01/08/01, he was coming in the night from St. Stephens Hospital after getting his brother medically examined from the doctor. He was going on foot. At about 3:00 am, when he reached at Gali No.16, he saw that two boys running behind chowkidar Ganesh Bahadur and the other two boys were standing at the short distance. When Ganesh Bahadur reached near Hari Om Diary, two boys fired at him with their country made pistols. After receiving injuries, Ganesh Bahadur fell down. He further stated that he cannot identify those boys. He was cross-examined by Ld. Addl. P.P for the State as he was resiling from his previous statement. In his cross-examination, he had admitted that Ganesh Bahadur raised the alarm of 'bachao bachao' and on this, one other chowkidar namely Gorak Bahadur alongwith other persons arrived there. He also stated that he himself, Gorak Bahadur and other public persons also chased those assailants to catch Contd. 14/-
14hold of them but when they were chasing them, they took out their country made pistols showed towards them and therefore, on account of fear, they have stayed there. He however categorically denied that those four boys were running with a T.V.
11. In the light of the 'dying declaration' of Ganesh Bahadur, the testimony of PW-2 and PW-5 is to be examined.
12. PW-2 Gorakh Bahadur, who is also father-in-law of the deceased testified that in the night of 31st and 1st of 2001 during rainy session, he was on duty as chowkidar for the area of Gali No. 11 to 16, C-Block, Bhajanpura. At about 3:15 am, he was present in Gali No. 15 and at that time, he heard the sound of firing coming from the Western direction. He rushed to Gali No. 16 and saw his son-in-law in an injured condition. He also saw four culprits running away from there and saw Ganesh Bahadur falling on the ground who was also working as chowkidar beyond gali No. 16, C- Block, Bhajanpura. He chased the culprits and he pointed towards accused Azad in the Contd. 15/-
15court who was present in the court who was fired at Ganesh Bahadur and who also showed him katta while running, when he chased them. He also identified the remaining three accused persons. He further stated that he has seen accused Azad firing at Ganesh Bahadur. He did not see any other katta with any other accused person except accused Azad showed him katta while fleeing.
He was also cross-examined by Ld. Addl. P.P for the State. He admitted that Ganesh Bahadur raised the alarm of 'bachao bachao' and he was running while raising alarm and the accused persons were chasing him. He also admitted that when Ganesh Bahadur reached near Hari Om Diary, accused Azad fired at him. The bullet hit on the right upper arm of Ganesh Bahadur and then entered into the right side rib. He also admitted that after the arrest of the accused persons, he had identified them and told their specific role. He also admitted that accused Hamidul was with accused Azad while chasing Ganesh Bahadur and two others were behind them and also stated that accused, Hamidul was having katta in Contd. 16/-
16his hand which he showed him when he tried to chase them. In his cross-examination he stated that he came to live in Delhi about four months prior to the occurrence. His son-in-law deceased used to live in a rented accommodation for about one year and they were living in the same accommodation, which was shared by them. He was Chowkidar for night from 11:00 p.m to 4:30 a.m. Ganesh Bahadur was also on duty at the same time. Before the occurrence at about 1:00 a.m, both of them met at corner of Gali No. 16 for smoke. The distance between the place where he was standing and from where the alarm of 'Bachao Bachao' came was about 15 feet. Police came at the spot after about ½ an hour. He did not take the deceased to the hospital immediately. He accompanied the police to the hospital when they took the deceased to the hospital. His sleeves of shirt also got blood stained. (There is one incomplete sentence which starts with "it is wrong to suggest that" thereafter there is change of paragraph and in which it is recorded that "I saw all the four accused persons in police post Amar Colony after 4-5 days of Contd. 17/-
17occurrence. I had been taken there by the police. Thereafter I never saw the accused persons." If this paragraph is the continuation of the suggestion then it would mean that he had denied that he had seen the accused persons in the PS after 4-5 days of the occurrence. However, if one closely scrutinizes the same, one finds that it will not make any sense if it is read with the suggestion as the sentence I had been taken there by police and thereafter I never saw the accused persons are independent sentences with independent meaning. Therefore I am of the opinion that it is not the part of the suggestion. Accordingly, it would not be treated as part of the suggestion.) He further stated that at PS Bhajanpura he had slapped all the four accused persons at the instance of the ACP. He, however, denied the suggestions that he had identified the accused persons at the instance of police only to falsely implicate them. He further denied that he was not present at the spot and has been falsely introduced as witness by the police. He further stated that Ganesh Bahadur was fired by accused Azad within his view after he reached at Gali Contd. 18/-
18No. 16. He further stated that he cannot say if a TV was small one or a big one nor he can tell whether it was in card-board box or otherwise.
13. PW10 ASI Purushottam Dutt from PCR in his cross-examination stated that crowd was collected and one person was lying in 'takhat' and he removed him to the hospital. He did not mention whether father-in-law of the deceased was also present at the spot.
14. Another main witness would be PW24 who reached at the spot on the receipt of DD entry and stated that no eye-witness met him there and thereafter he reached at the hospital and recorded the statement of Ganesh Bahadur. Further he stated that when he returned to the spot one Gorakh Bahadur and Kanhaiya Lal also met him and stated themselves to be eye-witness and he recorded their statement. Except the suggestion that Gorakh Bahadur has falsely planted as a witness in this case, there is nothing in the cross-examination of PW24 that Gorakh Bahadur is an introduced witness.
Contd. 19/-
19
15. Now the question arises whether PW Gorakh Bahadur is trustworthy and his testimony can be relied upon. It is the settled principle of law that the testimony of even hostile-witness can be relied upon. However, such testimony requires corroborations. PW5 and PW2 are consistent that Ganesh Bahadur was fired at and he was being chased by two accused persons. PW5 who is the independent witness categorically stated when he was cross-examined on behalf of the state that PW Gorakh Bahadur was also present. Although, he has not supported the prosecution in identification of accused, yet he deposed regarding the presence of Ganesh Bahdur at the spot. PW-10 would only be concerned with removal of injured to hospital at the earliest. Therefore, to expect him to remember or deposed that who are other persons present would not be correct. He has, however, stated that crowd was collected which does not rule out presence of PW-2 and PW-5 in the crowd.
16. Now coming to the identification of the accused persons, the accused persons were apprehended on Contd. 20/-
2024/08/01 and arrested in FIR No. 469/01 of PS Sangam Vihar, Delhi. PW32 SI Arjun had taken permission from the court for formal arrest on 24/08/01. They were formally arrested and they were produced at Karkardooma Courts, Delhi on 25/08/01. On the same day he moved the application for TIP of accused persons who were produced from Rahdari in muffled face. They were produced before Ld. Metropolitan Magistrate for conducting their TIP which they refused on the ground that they were shown to the witnesses at police post Amar Colony and PS Bhajanpura by police of PS Sangam Vihar.
17. PW-2 Gorakh Bahadur in his cross-examination stated that he saw four accused persons at Police Post Amar Colony after 4-5 days of occurrence. The occurrence was on 01/08/01 and on 18/08/01, Ganesh Bahadur was died. Accused persons were arrested on 24/08/01. Therefore meaning of occurrence for Gorakh Bahadur would be death of Ganesh Bahadur. It would be near 4-5 days between the death and the arrest of the accused persons by Contd. 21/-
21police officials of PS Sangam Vihar. He claimed that he saw all the accused persons at Police Post Amar Colony and again at PS Bhajanpura. He had slapped all the four accused persons at the instance of the ACP. As per the prosecution version he had no occasion to see them. The accused persons except accused Sher Mohd. in fact were never brought to PS: Bhajanpura for any purpose. Therefore I am of the opinion that accused persons were shown to PW Gorakh Bahadur before TIP.
18. Now the question to be considered is as to what is evidencing value of first time identification in the court in the absence of judicial TIP proceedings. The Hon'ble Supreme Court in case titled as "Mahabir V. State of Delhi", AIR 2008 SC 2343 held that non-conducting of TIP is not fatal to the prosecution. Further, the main object of holding the TIP is to test the memory of the witness based upon first impression and also to enable the prosecution to decide whether all or any of them can be cited as an eye-witness of the case.
Contd. 22/-
22
19. In the present case, the accused persons have refused to join the Test Identification Parade, therefore, PW-2 Sh. Gorakh Bahadur had no occasion to participate in the TIP and identify them. On the other hand, accused persons have refused to join the TIP proceedings on the pretext that they have been shown to the witnesses at Police Post Amar Colony and PS: Bhajanpura, Delhi. Therefore, it cannot be said that PW-2 Gorakh Bahadur identified them only at the instance of police. Even, if it is believed that Gorakh Bahadur had seen them at the Police Station Bhajanpura yet it cannot be believed that he would identify them in the Court. Therefore, I am of the opinion that identification by Gorakh Bahadur is trustworthy.
20. Now coming to the testimony of PW-2 Gorakh Bahadur, when he appeared as a witness, he identified in his examination-in-chief accused Azad as the person who had fired at the deceased namely Ganesh Bahadur and also showed him 'katta', when he chased the accused persons. With respect to the other remaining accused persons, he merely stated Contd. 23/-
23that they were also present and stated that no other person except accused Azad showed him 'katta' while fleeing. I shall deal with the role of accused Azad later on.
21. From the testimony of PW-2 and PW-5 Kanahiya Lal, who had supported the prosecution but could not identify the accused persons, had said that two persons were running behind Ganesh Bahadur and two others were standing at a short distance. As per the prosecution's case, accused Azad and Hamidul were chasing and the other two accused persons were standing behind them. There is not overt act on their part in chasing or firing on Ganesh Bahadur, the deceased.
22. There are allegations against all four of them that they have broken open the shop of PW-4 Sh. Vidhya Bhushan Malhotra and they had run away with one small T.V. There is no recovery of TV at the instance of accused Sher Mohd nor the witnesses examined had seen any of them breaking open the shop or stealing the TV. There are inconsistencies in the Contd. 24/-
24testimony of PW-2 and PW-5 with respect to the TV having being stolen by them. PW-5 categorically stated denied that accused persons were running with TV. PW-2 testified that the accused persons escaped with one TV. However, when PW-2 was cross-examined on behalf of accused Sher Mohd., he stated that he does not know whether it was a small TV or big one or whether it was kept in a card-board box or otherwise. In contrast to the dying declaration of Ganesh Bahadur, who categorically stated that it was a small TV. Therefore, as regards breaking open of the shop and stealing of TV, there is no evidence on record except the dying declaration.
23. In the dying declaration, Ganesh Bahadur has stated that there were four boys whereas one of the accused namely Sher Mohd. is aged about 60 years in the year 2009. He would be therefore, above the age of 50 years when the alleged occurrence took place, therefore, by no stretch of imagination, it can be said that accused Sher Mohd. was boy from appearance. Further, out of them, four accused person, one was tall in height and three accused Contd. 25/-
25persons were of medium height. However, as per their conviction slip their identification is recorded as, accused Sher Mohd. was of the height of 5 feet 5 inches and even, as per the police, his age was about 45 years. Accused Azad was of the height of 5 feet 2 inches, accused Mohd. Saleem was of the height of 5 feet 5 inches and Hamidul was of the height of 5 feet 1 inch. Therefore, the tallest amongst the accused persons were Mohd. Saleem and Sher Mohd. having height of 5 feet 5 inches. Accused Sher Mohd., in any case, does not fall within the description of the culprits given by the deceased. Accordingly, accused Sher Mohd. is entitled to the benefit of doubt.
24. As regards, Mohd. Saleem admittedly he was not chasing the deceased Ganesh Bahadur and was standing behind even, if one presumes that he was present yet, there is no evidence on record to suggest that there was a prior meeting of mind between all of them to fire at the deceased. There is no evidence on record that accused Mohd. Saleem had shared the common intention with accused Azad and Hamidul to fire at the deceased. Therefore, there is no Contd. 26/-
26evidence against accused Mohd. Saleem, as far as, Section 302 IPC is concerned
25. Now, coming to the role of accused Hamidul. PW-2 Gorakh Bahadur has not initially stated in his examination-in-chief that any person other than accused Azad had fired at him or showed him 'katta' when he chased them. Although, after the cross-examination by Ld. Addl. P.P for the State, he deposed that accused Hamidul was also having 'katta' in his hand and he showed to him when he tried to chase them. Therefore, as regards accused Hamidul, the testimony of PW-2 cannot be relied upon to the extent that accused Hamidul showed 'katta' to him, when he tried to chase him or accused Hamidul shared any common intention with accused Azad in firing upon the deceased, there is also inconsistency between PW-2 and PW-5. PW-5 stated that two persons fired whereas PW-2 stated that only one person fired. Therefore, in view of the inconsistency, accused Hamidul is also entitled to benefit of doubt, as far as, Section 302 IPC is concerned.
Contd. 27/-
27
26. Now, coming to the role of accused Azad. As regards, accused Azad, Gorakh Bahadur has categorically identified him being the person who had fired at Ganesh Bahadur. Further, the FSL result Ex.PW32/B with respect to the bullet taken out from the dead body during the postmortem marked as EB1 and the bullet fired from the country made pistol of .315" bore which was marked as Ex.F1 by the FSL had the identical striations as that of on the fired bullet EB1. This report is not challenged.
As per the register of Malkhana, Ex.PW1/D, on 02/11/01, five exhibits were sent to FSL, Malviya Nagar, Delhi for result. (1) country-made 'katta' was given as mark B, (2) parcel containing country-made 'katta' was given marked C, (3) one parcel containing one live cartridge was given as Mark C-1, (4) one parcel containing two live cartridges was given mark B-1 and (5) one parcel sealed with the seal of MLC GTB Hospital had a bullet. These five parcels were received by FSL, Malviya Nagar and were given their own mark as 'F1', 'F2', 'A1', 'A2 & A3' and 'EB1' Contd. 28/-
28respectively. Therefore 'F1' is the same parcel which was given mark B.
27. In the cross-examination, PW-32 S.I Arjun Singh has stated that country-made pistol/katta mark B which was recovered from accused Mohd. Saleem was used by accused Azad in the present case.
28. Coming to the recovery of this weapon. PW-28 Inspector Pankaj Singh deposed that one loaded 'katta' was recovered from accused Mohd. Saleem @ Apan which was taken taken into possession vide seizure memo Ex.PW22/B. PW-22 H.C Manoj Kumar, deposed that Constable Naresh and H.C Dharam Singh apprehended accused Mohd. Saleem @ Apan and seizure memo Ex.PW22/B was prepared with respect to recovery of pistol from him. Accused Azad made his disclosure statement Ex.PW22/C and accused Mohd. Saleem made his disclosure statement Ex.PW22/D.
29. As per the disclosure statement, accused Azad had handed over the 'katta' to Mohd. Saleem which was Contd. 29/-
29used by accused Azad which was recovered from his possession in case bearing FIR No. 469/01 of PS:
Sangam Vihar. Accused Azad has also confessed in his disclosure statement that the country-made pistol used by him was given by him to accused Mohd.Saleem. However, these disclosure statements were made by them in the custody of police, therefore, they are hit by Section 26 of the Indian Evidence Act. Section 27 of the Indian Evidence Act permits only so much of information in the confessional statement which distinctly leads to the discovery of a fact. In the celebrated judgment of "Pulukuri Kottaya V. Emperor, AIR 1947 P.C 119, it was held that in order to bring Section 27 of the Indian Evidence Act into the operation, the discovery of a fact as a consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved.
30. In the present case, the confessional statement of accused Azad and Mohd. Saleem that this Contd. 30/-
30country-made pistol was used by accused Azad and later on, handed over to accused Mohd. Saleem cannot be read being hit by Section 26 of the Indian Evidence Act 1872. Since, the same has not led to discovery of object, it is inadmissible U/s 27 of the Evidence Act. However, it is proved that the marking on bullet which are unique to fire-arm were the same as that of fire-arm recovered from accused Mohd. Saleem. However, the same cannot be linked to accused Azad.
31. Ld. Counsel on behalf of the accused persons vehemently contended that the eye-witnesses are planted as neither the PCR officials find the father- in-law of the deceased at the spot nor they were found at the hospital by the IO. However, as I have already observed above the presence of Gorakh Bahadur at the spot is beyond any doubt. Merely because, he was the father-in-law of the deceased, it cannot be said that being interested witness, he cannot be relied upon.
Contd. 31/-
31
32. Further, it is submitted that Ganesh Bahadur was chowkidar for Gali No. 12 to 25 and PW-2 claimed that he was chowkidar for Gali No. 11 to 16, therefore, there cannot be two watchmen for the same gali. This argument on the face of it appears to be interesting. However, no such suggestion has been given to this witness that he was not the chowkidar of Gali No. 16. Moreover, there would always be overlapping of area in the duties of chowkidar in different galis/streets, otherwise one area would be left unguarded and this does not create any doubt regarding the presence of Gorakh Bahadur as chowkidar.
33. Ld. Counsel further submitted that I.O. did not ask from any member of the Residence Welfare Association of C-Block, that PW-2 Gorakh Bahadur was worked as chowkidar for Gali No. 11 to 16 or not. As I have already observed that PW-5 was completely an independent witness. He has also deposed regarding the presence of Gorakh Bahadur on the spot. It leaves not doubt about the presence of Gorakh Bahadur at the spot.
Contd. 32/-
32
34. Ld. Counsel has also raised doubt about the credibility of PW-2 as he was declared hostile. The statement of this witness was recorded by the I.O. on the date of occurrence. Moreover, his testimony finds corroboration from the dying declaration of his son-in-law and other independent witnesses. Therefore, even if, he had turned hostile, it cannot be thrown. It is a settled law that even the testimony of the hostile witness can be relied upon for recording conviction, if the same finds corroboration. As I have already observed that the testimony of this witness finds corroboration from the dying declaration of the deceased and other independent witness PW-5.
35. Ld. Counsel further submitted that PW-2 in his initial statement had stated that he heard the sound of firing and he rushed to Gali No. 16 and saw his son-in-law in an injured condition and saw four culprits there. He also saw Ganesh Bahadur falling on the ground. He chased the culprits and accused Azad had fired at Ganesh Bahadur. This witness is a watchman by profession. Apparently, illiterate as he had put his thumb impression on his statement Contd. 33/-
33when recorded in the Court. He is not accustom to appear and depose in the Court. Therefore, keeping in view the background of the witness, minor slips may occur and are natural. The statement of this witness should be read as whole in order to find out the substance. The statement read as whole clearly shows that he had observed firing at Ganesh Bahadur and thereafter, he saw his son-in-law falling ground. The entire incident has taken place in such a short span of time that all the happenings are taking place simultaneously. The observation of the witness differs from one to another. I do not find the inconsistency in his testimony as regards, accused Azad is concerned.
36. Ld. Counsel has also raised doubt about the version of theft as PW-4 Vidhya Bhushan Malhotra has not given any written complaint regarding theft in his shop. This contention is again without any substance as the firing incident took place simultaneously with the theft and police had the knowledge of the same. No separate complaint was required to be given by PW-4 regarding theft in his Contd. 34/-
34shop.
37. Ld. Counsel has also raised out regarding the testimony of PW-5 that he saw two boys firing with country-made pistols in their hands but he did not raise any alarm. It is a normal human conduct when the firing incident take place, one always tries to save himself instead of raising alarm. In the late hours of night when the firing has already been done on one, nobody would raise such alarm. Since, PW-5 Kanahiya Lal did not raise any alarm, it cannot be said that he was not present at the spot.
38. Ld. Counsel has also pointed out that PW-22, PW-23 and PW-32 are the recovery witnesses in FIR No. 469/2001. They have stated that three 'kattas' were recovered, whereas, PW-31, PW-28 and PW-29 said that only two 'kattas' were recovered. Further, it is also stated that 'kattas' were recovered from different persons. The testimony of PW-31, if clearly read, one finds that he has stated that five accused persons alongwith four sealed parcels were handed over to him. In his cross-examination, he stated that only Contd. 35/-
35two 'kattas' were recovered in FIR No. 469/01, PS Sangam Vihar and he had informed to police of PS: Bhajanpura in the early morning. From the next very question, it clearly appears that he was infact referring to the case property connected with the present case. Although, FIR No is given incorrectly. There is no discrepancy in his statement. Moreover, this witness is not the witness of recovery, therefore, even if, there is any discrepancy, this does not in any manner discredit the recovery as he is not the witness of recovery.
39. PW-32 S.I Arjun Singh is the Investigating Officer of this case. He stated that three country made pistols were transferred from PS: Sangam Vihar. However, only two were concerning with the present case and remaining were returned. He is not the witness of recovery. He is merely stated regarding the case property concerning with the present case.
40. PW-29 Ct. Subhash Chander stated that two 'kattas' were recovered from the possession of the accused persons in the FIR No. 469/01. Apart from the Contd. 36/-
36inconsistency of PW-29, other thee police witnesses are consistent regarding the recovery. Moreover, the recovery was concerned in the trial in different FIR. In the present case, in pursuance to their disclosure statements, the present case property was identified.
41. Ld. Counsel further stated that even if, it is held that accused Azad had fired, the accused persons have no intention to kill deceased namely Ganesh Bahadur and their only intention was to run away with the stolen property.
42. Ld. Counsel has cited "Hari Ram V. State of Haryana", AIR 1983 SC 185. In the said case, the deceased was pushing his cart through the chowk in the village. It struck against platform belonging to one Hukum Chand. Hukum Chand and the appellant Hari Ram were sitting at some distance. Altercation ensued between them. He went to the side and brought one 'Jaali'. Raan Singh, the deceased ran from there and was chased and caught by Hukum Chand, held the arms of Raan Singh and thrust the prongs of 'Jaali' in his chest. When, It Contd. 37/-
37was withdrawn, Raan Singh fell down. The Hon'ble Supreme Court held that on the evidence it does not appear that there was any intention to kill the deceased Raan Singh and sustained conviction under second part of U/s 304 IPC.
43. Ld. Counsel also cited "Baldeo Singh & Ors V. State of Bihar", AIR 1972 Supreme Court 464 and "Kunju Muhammed @ Khumani & Anr. V. State of Kerala, SLC IV 2003 852.
In the Baldeo Singh's case, the Hon'ble Supreme Court cautioned in the cases of group rivalries, the Court should scrutinize evidence carefully and if discrepancy arises, the benefit of doubt should be give to the accused. This judgment is not applicable to the present case as this is not the case of group rivalry.
In Kunju Muhammed's case, it was held that in case the defence is able to establish that prosecution case in regard to time and place of incident highly doubtful and even evidence of eye-witness is full of contradictions and improbabilities. The conviction Contd. 38/-
38cannot be recorded. The incident is proved in the present case by dying declaration and the evidence of the witnesses is corroborated at material particulars. Therefore, this judgment has not application to the facts of the present case.
44. He also cited "Syed Peda Aowlia V. Public Prosecutor", 2008 VIII AD (S.C) 170. In the said case, The Hon'ble Supreme Court held that if two views are possible, the view which is favourable to the accused should be taken. There is no quarrel to this legal proposition.
45. Ld. Counsel has also cited "Mohd Anwar V. State of Delhi", (2000) 1 Supreme Court Cases 615 and "Pandurang V. State of Hyderabad", AIR 1955 SC 216 and argued that there is no evidence regarding the common intention. I find force in the argument of Ld. Counsel. As already observed, there was no evidence of the meeting of mind, as far as the firing incident is concerned.
46. Now coming to the injuries sustained by the deceased. The deceased has suffered gun shot Contd. 39/-
39injuries. He died after 18 days and the doctor in his postmortem report Ex.PW3/A found (1) A partially heeled infected wound with debrided edges measuring 4 cm x 2 cm x 1 cm was present obliquely over the outer side of right arm centred 12 cm above the elbow. Tattooing was present over an area of 8 cm x 7 cm near the upper front of the wound, (2) A partially heeled wound 1 x 1 cm present on the inner aspect of lower part of right arm centred 10 cm above the elbows, The wound was 12 cm deep. Injury 1 and 2 were connected by a track of granulation tissue involving the right humerous which was fractured and showing soft callus formation, and (3) A partially heeled wound 2.5 X .2 cm satured with 3 interrupted satures with epidermal closure complete, present obliquely over the upper right chest in the posterior axxiliary line 12 cm below the right nipple. The wound is 12.5 cm deep. The base shows granulation tissue which is extending a cross skin and the underlying tissue till the peritoneum.
Contd. 40/-
40The cause of death was opined as septicemia due to infected wound produced by firearm missile. Injury No. 1 and 3 were entry wound and injury no. 2 is exit wound.
47. The postmortem report shows that there was two bullets fired on him and one bullet was lodged in body. He died after about 18 days in the hospital on account of infection in the wound. One wound was on the chest.
48. Deceased namely Ganesh Bahadur has stated that when he raised alarm, two boys chased him and fired on him. This is not a case where the accused in order to make his escape good had fired to scare away the chowkidar but their act was more daring. They chased the person who raised alarm and after chasing him for some distance, fired at him. Firing in this manner, clearly shows that there was intention to cause death of Ganesh Bahadur who had raised alarm and the injury sustained by the deceased on the part of the body was such which would have been resulted in the death. Although, the Contd. 41/-
41cause of death is given as on account of septicemia in the infected wound but the injuries were such which would have caused death. His death got delayed on account of the treatment.
49. Accordingly, I hold that the prosecution has succeeded in proving that accused Azad has committed culpable homicide of Ganesh Bahadur with intention to cause his death. Thereby accused Azad has committed offence defined within the meaning of Section 300 part I, which is punishable U/s 302 IPC.
50. As regards, offences punishable U/s 458 IPC and 380 IPC, the deceased Ganesh Bahadur in his dying declaration has stated that he has seen the four persons who had entered in the shop and stolen a TV. The shop owner has also deposed regarding the same. As regards, accused Sher Mohd., keeping in view the description given by Ganesh Bahadur, he is entitled to the benefit of doubt.
51. As regards, other two accused persons namely accused Mohd. Saleem and Hamidul, Gorakh Contd. 42/-
42Bahadur had identified them being present there, however, his testimony with respect to the identification of other accused persons is not relied upon for the want of corroboration. Therefore, accused Mohd. Saleem and Hamidul are also entitled to the benefit of doubt. However, the incident of theft and house breaking at night and the firing at Ganesh Bahadur as the consequence thereof are so so inseparably connected with the dying declaration of Ganesh Bahadur points only towards accused Azad beyond any doubt as one of the person who had committed house breaking at night and had stolen TV from the said premises. Accordingly, I am of the opinion that prosecution has also succeeded in proving offences punishable U/s 458 IPC and U/s 380 IPC against accused Azad @ Iqbal. The defence of accused Azad is that of total denial. He claims that he was lifted from his house and was falsely implicated being Bagladeshi National. He has failed to bring any defence witness. The defence of accused does not improbablise the prosecution's case.
Contd. 43/-
43
52. Accordingly, as per the discussion above, I am of the opinion that the prosecution has proved their case against accused Azad @ Iqbal beyond reasonable doubt. Accused Azad is convicted for the offences punishable U/s 302 IPC, U/s 458 IPC and U/s 380 IPC. Accused Hamidul, Mohd. Saleem and Sher Mohd., as observed above, are entitled to the benefit of doubt. They are accordingly acquitted. Announced in the open court today i.e on 09/03/2009 (GURDEEP SINGH) ADDITIONAL SESSIONS JUDGE-04 NORTH-EAST DISTRICT KARKARDOOMA COURTS, DELHI Contd. 44/-
44IN THE COURT OF SH. GURDEEP SINGH:ASJ-04 NORTH-EAST DISTRICT: KARKARDOOMA COURTS:DELHI State V. Azad @ Iqbal etc. FIR No: 267/2001 PS: Bhajanpura, Delhi U/s: 302/380/458/34 IPC & 27/54/59 of Arms Act 17/03/2009 Order on Sentence Present: Sh. Virender Singh, Ld. Addl. P.P for State.
Accused/convict Azad in J/C with Sh. M.K Srivastava,Advocate, Amicus Curiae for accused. Heard on sentence for accused Azad @ Iqbal. It is submitted that convict is young person. He has no previous bad antecedents. He is the sole bread earner for his family. Therefore, lenient view is prayed for. It is further submitted that this case does not fall in the category of rarest of the rare case, therefore, the convict be given lesser imprisonment.
In the present case, the convict alongwith his accomplices were committing theft inside a shop, when the deceased, the watchman saw them and in order to scare him away or to finish the eye-witness, he was shot at. The Hon'ble Supreme Court in many cases has Contd. 45/-
45reiterated that life imprisonment is the rule and death penalty is the exception to be given only in the rarest of the rare case. In Lehna V. State of Haryana, 2002 SCC (Cri) 526, it was held that the death penalty can be awarded when:
(1)When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
(2)When the murder is committed for a motive which evinces total depravity and meanness, e.g., murder by hired assassin for money or reward, or cold-
blooded murder for gains of a person vis-
a-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.
(3)When murder of a member of a Scheduled Caste or minority community, etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of "bride burning" or "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
Contd. 46/-
46
(4)When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
(5)When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community. In the circumstances, I am of the opinion that the present case does not fall within the category of rarest of the rare case, Convict Azad @ Iqbal is accordingly sentenced to rigorous imprisonment for life for offence punishable U/s 302 IPC. He shall also be liable to pay fine of Rs. 25,000/-. The fine, if recovered, shall be paid as the compensation to the widow and children of the victim namely Sh. Ganesh Bahadur. In default of payment of fine, he shall further undergo simple imprisonment for the period of one year.
The convict is further sentenced to rigorous imprisonment for the period of three years and fine of Rs. 2,000/- for offence punishable U/s 458 I.P.C. In Contd. 47/-
47default of payment of fine, he shall further undergo simple imprisonment for 10 days.
The convict is further sentenced to rigorous imprisonment for one year and fine of Rs. 2,000/- for the offence punishable U/s 380 I.P.C. In default of payment of fine, he shall further undergo simple imprisonment for 15 days.
The benefit of Section 428 Cr.P.C be given to the convict. The sentences shall run concurrently.
Copy of the judgment alongwith the copy of charge, evidence, statement of accused and exhibited documents duly attested by the reader of the Court be given to the convict, free of cost. File be consigned to record room.
Announced in the open Court today i.e on 17/03/2009 (GURDEEP SINGH) ADDITIONAL SESSIONS JUDGE-04 NORTH-EAST DISTRICT KARKARDOOMA COURTS, DELHI Contd. 48/-
48FIR No.267/2001 PS Bhajanpura 17.03.09 Present: Sh. Virender Singh, Ld. Addl. P.P for the State.
Accused/convict Azad in J/C with Sh. M.K Srivastava,Advocate, Amicus Curiae for accused. Vide separate order on sentence announced today, convict Azad @ Iqbal is sentenced to rigorous imprisonment for life for offence punishable U/s 302 IPC. He shall also be liable to pay fine of Rs. 25,000/-. The fine, if recovered, shall be paid as the compensation to the widow and children of the victim namely Sh. Ganesh Bahadur. In default of payment of fine, he shall further undergo simple imprisonment for the period of one year.
The convict is further sentenced to rigorous imprisonment for the period of three years and fine of Rs. 2,000/- for offence punishable U/s 458 I.P.C. In default of payment of fine, he shall further undergo simple imprisonment for 10 days.
The convict is further sentenced to rigorous imprisonment for one year and fine of Rs. 2,000/- for the offence punishable U/s 380 I.P.C. In default of payment of fine, he shall further undergo simple imprisonment for 15 days.
The benefit of Section 428 Cr.P.C be given to the Contd. 49/-
49convict. The sentences shall run concurrently.
Copy of the judgment and order on sentence alongwith the copy of charge, evidence, statement of accused and exhibited documents duly attested by the reader of the Court be given to the convict, free of cost. File be consigned to record room.
(GURDEEP SINGH) Additional Sessions Judge Karkardooma Courts, Delhi 17.03.09 Contd. /-