Delhi District Court
State vs Nirmal Kumar//Fir No.914/04 on 24 September, 2010
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THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - I,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No.64/08.
FIR No.914/04.
PS : ASHOK VIHAR.
U/s. 302/397/379/411/120B/34 IPC
STATE
VERSUS
1. NIRMAL KUMAR
S/O. LACHMAN ASINGH
PERMANENT R/O. VILLAGE KONDHAVA
PS JAGDISH PUR
DISTRICT BHOJPUR ARA
BIHAR.
NOW R/O. A-9, LAL BAGH
PS ADARSH NAGAR, DELHI.
2. AVINASH KUMAR @ SANJAY
S/O. SAHAZANAND
PERMANENT R/O. VILLAGE SABAZPURA
PS DULIHAN BAZAR
TEHSIL & DISTRICT PATNA
BIHAR.
NOW R/O. WP-363, VILLAGE WAZIRPUR
PS ASHOK VIHAR, DELHI.
3. PRAKASH KUMAR @ MUNNA
S/O. SAHAZANAND
PERMANENT R/O. VILLAGE SABAZPURA
PS DULIHAN BAZAR
TEHSIL & DISTRICT PATNA
BIHAR.
NOW R/O. WP-363, VILLAGE WAZIRPUR
PS ASHOK VIHAR, DELHI.
4. PARVESH SHARMA @ SONU
S/O. LATE SH. KRISHAN MURARI
PERMANENT R/O. VILLAGE NIKHOB
PO SATLA, DISTRICT BULANDSHAHAR
U.P.
NOW R/O. N-9/C-11
RAMLILA GROUND
LAL BAGH, DELHI.
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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Date of Institution : 30.04.2005.
Date of receipt of case in this Court : 24.11.2008.
Arguments heard On : 16.09.2010.
Order Announced On : 24.09.2010.
Order on Sentence Announced On : 27.09.2010.
SHRI P.K. VERMA, APP FOR THE STATE.
SHRI RISHI PAL AND SHRI RAMBIR SINGH FOR ALL THE
ACCUSED PERSONS.
27.09.2010.
Present: Shri P.K. Verma, APP for the State.
All convict/accused persons in JC with their Cl.
Sh.Rishi Pal Singh and Rambir Singh.
1. It has been submitted by Shri Rishi Pal Singh and
Rambir Singh, learned counsels for the convicts that convict
Nirmal Kumar is aged about 30 years and married having a
wife and a child, who are dependent upon him. He is never
involved in any criminal activities prior to the present case.
Accused is a pauper having no financial status to pay any
fine. He request that lenient view may be taken.
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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2. It has been submitted by Shri Rishi Pal Singh and
Rambir Singh, learned counsels for the convicts that convict
Avinash Kumar is aged about 26 years and unmarried. He is
having old aged father and there is nobody else to lookafter
him. Accused is a pauper having no financial status to pay
any fine. He request that lenient view may be taken.
3. It has been submitted by Shri Rishi Pal Singh and
Rambir Singh, learned counsels for the convicts that convict
Prakash @ Munna is aged about 25 years and unmarried. He
is having old aged father and there is nobody else to
lookafter him. Accused is a pauper having no financial status
to pay any fine. He request that lenient view may be taken.
4. It has been submitted by Shri Rishi Pal Singh and
Rambir Singh, learned counsels for the convicts that convict
Parvesh Sharma @ Sonu is aged about 23 years and
unmarried. He belongs to respected family and is having old
aged parents to lookafter. He is never involved in any
criminal activities prior to the present case. He request that
lenient view may be taken.
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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5. On the other hand, Shri P.K. Verma, learned APP
for the State states that all the four convicts planned the
incident, in which, an innocent person running a factory was
murdered after committing robbery. Accused Parvesh
Sharma @ Sonu was joined by accused Nirmal Kumar to
execute the conspiracy. The accused Avinash Kumar earlier
also involved in a case FIR No. 787/02 PS Ashok Vihar under
Section 380/411/34 IPC. The accused Prakash @ Munna was
also involved in FIR No. 169/04 under Section 365 IPC PS
Adarsh Nagar and forged his date of birth documents.
Accused Nirmal Kumar played the role of active conspirator
to provide all the inside information as per criminal
conspiracy. Learned APP for State further points out that
accused persons during trial extended threat to PW-12 Ravi
and PW-19 Dr. Suresh Bansal and under the given facts and
circumstances of the case, convicts be awarded maximum
punishment.
6. Security of persons and property of the people is a
paramount function of the State which could be achieved
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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through machinery of criminal law. Protection of society and
stamping out criminal proclivity must be the object of law
which must be achieved by imposing appropriate sentence.
The facts and given circumstances in each case, the nature
of the crime, the manner in which it was planned and
committed, the motive for commission of the crime, the
conduct of the convicts. The nature of weapons used and all
other attending circumstances are relevant facts which would
enter into the area of consideration. Undue sympathy to
impose inadequate sentence 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 every court to
award proper sentence having regard to the nature of the
offence and the manner in which it was executed or
committed etc.
7. It was observed in case of Dhananjoy
Chatterjee @ Dhana Vs. State of West Bengal, 1995
AIR SCW 510 as under :--
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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"Of course, it is not possible to lay down any cut
and dry formula relating to imposition of
sentence but the object of sentencing should be
to see that the crime does not go unpunished
and the victim of crime as also the society has
the satisfaction that justice has been done to it
in imposing sentences, in the absence of specific
legislation. Judges must consider variety of
factors and after considering all those factors
and taking an overall view of the situation
impose sentence which they consider to be an
appropriate one. Aggravating factors cannot be
ignored and similarity mitigating circumstances
have also to be taken into consideration.
In our opinion, the measure of punishment in a
given case must depend upon the atrocity of the
crime; the conduct of the criminal and the
defenceless and unprotected state of the victim.
Imposition of appropriate punishment is the
manner in which the courts respond to the
society's cry for justice against the criminals.
Justice demands that courts should impose
punishment fitting to the crime so that the
courts reflects public abhorrence of the crime.
The Courts must not only keep in view the rights
of the criminal but also the rights of the victim of
crime and the society at large while considering
imposition of appropriate punishment."
8. It was also observed in case of Jashubha
Bharatsing Gohil Vs. State of Gujrat, (1994) 4 SCC 353
that the protection of the society and deterring the criminal is
the avowed object of law and that is required to be achieved
by imposing appropriate sentence.
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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9. It was held in the case of Siddarama & Others
Vs. State of Karnataka, (2007) 1 SCC (Cri) 72 :--
"the object should be to protect the society and
to deter the criminal in achieving the avowed
object to law by imposing appropriate sentence.
It is expected that the courts would operate the
sentencing system so as to impose such
sentence which reflects the conscience of the
society and the sentencing process has to be
stern where it should be.
Imposition of sentence without considering its
effect on the social order in many cases may be
in reality a futile exercise. The social impact of
the crime e.g. where it relates to offences
relating to narcotic drugs or psychotropic
substances which have great impact not only on
the health fabric but also on the social order and
public interest, cannot be lost sight of and per se
require exemplary treatment. Any liberal attitude
by imposing meagre sentences or taking too
sympathetic view merely on account of lapse of
time or personal inconveniences in respect of
such offences will be result wise
counterproductive in the long run and against
societal interest which needs to be cared for and
strengthened by a string of deterrence inbuilt in
the sentencing system."
10. It was observed in the case of Shivaji @ Dadya
Shankar Alhat Vs. State of Maharashtra, 2008 (4) RCR
(Criminal) 202 as under :--
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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"Proportions between crime and punishment is a goal
respected in principles, and in spite of errant notions,
it remains a strong influence in the determination of
sentences. The practice of punishing all serious crimes
with equal severity is now unknown in civilized
societies, but such a radical departure from the
principle of proportionality has disappeared from the
law only in recent times. Even now for a single grave
infraction drastic sentences are imposed. Anything
less than a penalty of greatest severity for any serious
crime is thought then to be a measure of toleration
that is unwarranted and unwise. But in fact, quite
apart from those considerations that make
punishment disproportionate punishment has some
very undesirable practical consequences."
11. In case State of Punjab Vs. Prem Sagar and
Others (2008) 7 SCC 550 it was observed that the Indian
Judicial System has not been able to develop legal principles
as regards sentencing. It was further observed that whether
the court while awarding sentence would take recourse to
the principle of deterrence or reform or invoke the doctrine
of proportionality would depend upon the facts and
circumstances of each case and while doing so nature of
offence said to have been committed by the accused plays
an important role. A wide discretion is conferred on the court
but said discretion must exercise judicially while sentencing
STATE VS NIRMAL KUMAR//FIR NO.914/04
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an accused. It would depend upon the circumstances in
which the crime has been committed and the mental state
and the age of the accused is also relevant. It was observed
as under :--
"In our judicial system, we have not been able to
develop legal principles as regards sentencing. The
superior courts except making observations with regard
to the purport and object for which punishment is
imposed upon an offender, have not issued any
guidelines. Other developed countries have done so.
Whether the court while awarding sentence would take
recourse to the principle of deterrence or reform or
invoke the doctrine of proportionality would no doubt
depend upon the facts and circumstances of each case.
While doing so, however, the nature of the offence said
to have been committed by the accused plays an
important role. The offences which affect public health
must be dealt with severely. For the said purpose, the
courts must notice the object for enacting Article-47 of
the Constitution of India.
A sentence is a judgment on conviction of a crime. It is
resorted to after a person is convicted of the offence. It
is the ultimate goal of any justice delivery system.
Parliament, however, in providing for a hearing on
sentence, as would appear from sub-section(2) of
Section 235, sub-section (2) of Section 248, Section 325
and also Section 360 and 361 of the Code of Criminal
Procedure, has laid down certain principles. The said
provisions lay down the principle that the court in
awarding the sentence must take into consideration a
large number of relevant factors; sociological backdrop
of the accused being one of them.
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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Although a wide discretion has been conferred on the
court but said discretion must exercise judicially. It
would depend upon the circumstances in which the
crime has been committed and the mental state. Age of
the accused is also relevant."
12. The punishment provided under Section 302 IPC
death or life imprisonment as a penalty for murder. The
Indian Penal Code has under gone multi facet changes for
the last three decades which indicates that the Parliament
has taken note of contemporary criminological thought and
movement. The Indian Penal Code reflects a definite swing
towards life imprisonment. Death sentence is ordinarily ruled
out and can only be imposed for "special reasons", as
provided in Section 354(3) Cr.P.C. It indicates that
reformation and rehabilitation of offenders and no
deterrence, are now among the foremost objects of the
administration of criminal justice in the country. Section
354(3) Cr.P.C. is a part of emerging picture of acceptance by
the legislature of the new trends in criminology. The
personality of an offender revealed by his age, character,
antecedents and other circumstances and the tractability of
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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the offender to reform must necessarily play the most
prominent role in determining the sentence to be awarded. A
judge has to balance the personality of the offender with the
circumstances, situations and the reactions and choose the
appropriate sentence to be imposed. The former rule that the
normal punishment for murder is death is no longer
operative and it is now within the discretion of the court to
pass either of the sentence prescribed in the Section 302 IPC.
13. In case Bachan Singh Vs. State of Punjab, AIR
1980 SC 898 it was observed that a real and abiding
concern for the dignity of human life postulates resistance to
taking a life through law's instrumentality. The ought not to
be done save in the rarest of rare cases when the alternative
option is unquestionably foreclosed.
14. In case Machhi Singh Vs. State of Punjab, AIR
1983 SC 957, the guidelines are laid down which are to be
kept in view, considering the question whether the case
belongs to the rarest of rare category. It was observed that
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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the following questions may be asked and answered as a test
to determine the 'rarest of the rare' case in which death
sentence can be inflicted:-
a) Is there something uncommon
about the crime which renders
sentence of imprisonment for
life inadequate and calls for
death sentence?
b) Are the circumstances of the
crime such that there is no
alternative but to impose death
sentence even after according
maximum weightage to the
mitigating circumstances which
speak in favour of the offender?
15. In the case of Machhi Singh (Supra), the
guidelines were culled out which are to be applied to the
facts of each individual case where the question of imposition
of death sentence arises. The following preposition emerges
from the Bachan Singh's case:--
i. The extreme penalty of death need not be
inflicted except in gravest cases of extreme
culpability.
ii. Before opting for the death penalty the
circumstances of the 'offender' also
required to be taken into consideration
alongwith the circumstances of the 'crime'.
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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iii. Life imprisonment is the rule and death
sentence is an exception. Death sentence
must be imposed only when life
imprisonment appears to be an altogether
inadequate punishment having regard to
the relevant circumstances of the crime,
and provided, and only provided, the option
to impose sentence of imprisonment for life
cannot be conscientiously exercised having
regard to the nature and circumstances of
the crime and all the relevant
circumstances.
iv. A balance sheet of aggravating and
mitigating circumstances has to be drawn
up and in doing so the mitigating
circumstances have to be accorded full
weightage and a just balance has to be
struck between the aggravating and the
mitigating circumstances before the option
is exercised.
16. In case Bablu @ Mubarak Hussain Vs. State of
Rajasthan, AIR 2007 SC 697, the Supreme Court observed
as under :--
"In rarest of rare cases when collective
conscience of the community is so shocked that
it will except the holders of the judicial power
center to inflict death penalty irrespective of
their personal opinion as regards desirability or
otherwise of retaining death penalty, death
sentence can be awarded. The community may
entertain such sentiment in the following
circumstances:
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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i. 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.
ii. 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 a 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 a course for betrayal of the
motherland.
iii. 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.
iv. 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.
v. When the victim of murder is an innocent
child, or helpless woman or old or infirm
person or a person vis-a-vis whom the
murder is in a dominating position or a
public figure generally loved and respected
by the community."
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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17. On the basis of above observations and discussion
in the present facts and circumstances of the case the
present case does not fall within the category of "rarest of
the rare category", as such, the death penalty cannot be
awarded to both the convicts. The latest decision of the
Hon'ble Supreme Cour tof India pertaining to imposition of
sentence in the case of Santosh Kumar Satishbhushan
Bariyar vs. State of Maharashtra, decided on
13.05.2009. Another important facet pertaining to
sentencing the procedure being considered. Imprisonment
for life as a penalty entails that the convicts must remained
in the imprisonment till his life i.e. would never to set free
from the jail. However, the code of Criminal Procedure
provides power to executive under Section 433 Cr.P.C. which
subject to the restrictions provided by Section 433 A Cr.P.C.
According to which a convict sentenced to imprisonment for
life for whose death sentence has been commuted to
imprisonment for life cannot be released from prison unless
served at least 14 years of imprisonment. The Hon'ble
Supreme Court of India in the case Swami Shraddhanand
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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vs. State of Karnataka 2008(13) SCC 767 imposed upon
State the condition that accused would not be entitled to any
commutation or premature release.
18. Hence, in the present case, I sentence all the
convicts/accused persons to undergo Rigorous
Imprisonment of life imprisonment alongwith fine of
Rs.1,000/- (Rupees One Thousand) each, in default of
payment of fine Simple Imprisonment for 6 (Six)
months for offence punishable under Section 120B
IPC. I further sentence all the convicts/accused persons to
undergo Rigorous Imprisonment of life imprisonment
alongwith fine of Rs.1,000/- (Rupees One Thousand)
each, in default of payment of fine Simple
Imprisonment for 6 (Six) months for offence
punishable under Section 302 IPC read with Section
120B IPC.
STATE VS NIRMAL KUMAR//FIR NO.914/04
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19. Convicts Nirmal Kumar, Avinash Kumar and
Prakash @ Munna further sentenced to undergo Rigorous
Imprisonment of 10 (Ten) years and fine of Rs.5,000/-
(Rupees Five Thousand) each, in default of payment
of fine, Simple Imprisonment for 01 (One) year
respectively for the offence punishable under Section
392 IPC read with Section 120B IPC.
20. All the convicts Nirmal Kumar, Avinash Kumar,
Prakash @ Munna and Parvesh Sharma @ Sonu further
sentenced to undergo Rigorous Imprisonment of 10
(Ten) years and fine of Rs.5,000/- (Rupees Five
Thousand) each, in default of payment of fine, Simple
Imprisonment of 01 (One) year respectively for the
offence punishable under Section 394 IPC read with
Section 120B IPC.
21. Convict Parvesh Sharma @ Sonu further
sentenced to undergo Rigorous Imprisonment of 10
(Ten) years and fine of Rs.5,000/- (Rupees Five
STATE VS NIRMAL KUMAR//FIR NO.914/04
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Thousand), in default of payment of fine, Simple
Imprisonment of 01 (One) year for the offence
punishable under Section 397 IPC read with Section
120B IPC.
22. Convict Parvesh Sharma @ Sonu further
sentenced to undergo Rigorous Imprisonment of 3
(Three) years and fine of Rs.2,000/- (Rupees Three
Thousand), in default of payment of fine, Simple
Imprisonment of 6 (Six) months for the offence
punishable under Section 27 Arms Act.
23. All sentence shall run concurrently and
benefit of Section 428 Cr.P.C. be given to all the
convicts.
24. It is made clear that in view of law laid down by
Hon'ble Supreme Court of India in the case of Swami
Shraddhanand (Supra) the appropriate sentence of
imprisonment of life is that all four convicts namely Nirmal
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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Kumar, Avinash Kumar, Prakash @ Munna and Parvesh
Sharma @ Sonu have to undergo actual sentence of 30
years and grant of remission shall not be considered till the
actual sentence of 30 years. Copy of judgment and that of
order on sentence be provided to the convict/accused, free
of cost, today itself. Sessions file be consigned to record
room.
(SANJAY KUMAR)
ADDL. SESSIONS JUDGE-01 (NW)
ROHINI COURTS: DELHI.
Announced in the open court
today i.e. 27.09.2010.
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - I,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No.64/08.
FIR No.914/04.
PS : ASHOK VIHAR.
U/s. 302/397/379/411/120B/34 IPC
STATE
VERSUS
1. NIRMAL KUMAR
S/O. LACHMAN ASINGH
PERMANENT R/O. VILLAGE KONDHAVA
PS JAGDISH PUR
DISTRICT BHOJPUR ARA
BIHAR.
NOW R/O. A-9, LAL BAGH
PS ADARSH NAGAR, DELHI.
2. AVINASH KUMAR @ SANJAY
S/O. SAHAZANAND
PERMANENT R/O. VILLAGE SABAZPURA
PS DULIHAN BAZAR
TEHSIL & DISTRICT PATNA
BIHAR.
NOW R/O. WP-363, VILLAGE WAZIRPUR
PS ASHOK VIHAR, DELHI.
3. PRAKASH KUMAR @ MUNNA
S/O. SAHAZANAND
PERMANENT R/O. VILLAGE SABAZPURA
PS DULIHAN BAZAR
TEHSIL & DISTRICT PATNA
BIHAR.
NOW R/O. WP-363, VILLAGE WAZIRPUR
PS ASHOK VIHAR, DELHI.
4. PARVESH SHARMA @ SONU
S/O. LATE SH. KRISHAN MURARI
PERMANENT R/O. VILLAGE NIKHOB
PO SATLA, DISTRICT BULANDSHAHAR
U.P.
NOW R/O. N-9/C-11
RAMLILA GROUND
LAL BAGH, DELHI.
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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Date of Institution : 30.04.2005.
Date of receipt of case in this Court : 24.11.2008.
Arguments heard On : 16.09.2010.
Order Announced On : 24.09.2010.
SHRI P.K. VERMA, APP FOR THE STATE.
SHRI RISHI PAL AND SHRI RAMBIR SINGH FOR ALL THE
ACCUSED PERSONS.
JUDGMENT
1. The factual matrix of the case is that on 10.12.2004 at PP Wazirpur Industrial Area, PS Ashok Vihar, at about 6.35 PM in the evening, DD No. 21 was received by ASI Rohtash Singh regarding the fact that one person was stabbed with knife at A-73 Group, Wazirpur Industrial Area, Pulsar Factory in front of Aggarwal Sweets. ASI Rohtash Singh alongwith Constable Manoj Kumar went at the spot of crime. There, they came to know that the injured had been removed to Sunder Lal Jain Hospital by his family members and no eye witness was present there. Thereafter, both the police officials went to Sunder Lal Jain Hospital. ASI Rohtash STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :22: Singh collected MLC of injured Ishwar Bansal and doctor declared him unfit for statement and nature of injury kept under observation. No eye witness was available at the hospital. Thereafter, ASI Rohtash Singh prepared rukka on the DD entry and sent for registration of case under Section 307 IPC.
2. The further investigation entrusted to SI Vimal Kumar and crime team was called. SI Vimal Kumar went to the spot and received documents from ASI Rohtash Singh. The crime team was consisting of SI Rajesh Kumar and Photographer HC Sajjan Kumar, who inspected the spot of crime and prepared the report and furnished to SI Vimal Kumar. SI Vimal Kumar prepared site plan of the spot of crime at A-73 Group, Wazirpur Industrial Area basement. It was discovered injured Ishwar Bansal's factory of utensils was there and having a cabin in the basement. The basement had been used as office, which is a open hall. In the office, there was a carpet, chairs, table, setti and iron almirah. The drawers of the table were open and all the STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :23: articles were scattered and on some articles blood stains were found. SI Vimal Kumar took into possession the seat cover of the chairs and two slippers having blood stains, upper drawer, one keyring having five keys and blood stains, one tube light starter having blood stains. From the second drawer of the table, one steel sheet and one lid having wet blood and blood gauze piece were also taken into possession by SI Vimal Kumar. All these articles were seized and sealed with the seal of VK.
3. On 10.12.2004 at about 9.45 PM at PP Wazirpur Industrial Area, DD No. 28 recorded on the basis of information given by Dr. Rakesh Gupta from Sunder Lal Jain Hospital that the injured Ishwar Bansal died. Accordingly, the FIR Section changed from 307 IPC to 302 IPC and further investigation handed over to Inspector P. L. Khera, SHO PS Ashok Vihar. On 11.12.2004, all inquest papers for postmortem of deceased body prepared and postmortem was conducted. The shirt and banian worn by the deceased at the time of postmortem were seized by the doctor STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :24: alongwith blood gauze piece and handed over to Constable Manoj Kumar alongwith sample seal, which were seized by Inspector P. L. Khera. After postmortem, Inspector P. L. Khera collected postmortem report alongwith the opinion on cause of death. Inspector P. L. Khera made effort to trace out accused persons but could not succeed.
4. On 19.01.2005, further investigation was entrusted to Crime Branch. Inspector Pankaj Sood started the investigation after receiving the documents and went to A-73 Group, Wazirpur Industrial Area where he called deceased Ishwar Bansal's son Anuj Bansal and elder brother Dr. Suresh Bansal. He inspected the spot of crime and made inquiries in detail with Anuj Bansal and Dr. Suresh Bansal. Inspector Pankaj Sood recorded statement of Anuj Bansal and came to know that at the time of incident, deceased Ishwar Bansal was wearing one gold chain and one gold ring, which were no traceable. Besides this, he stated that in November 2004, one mobile of his father was stolen and in the morning hours of the day of the incident, a wrist watch was handed STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :25: over by Dr. Suresh Bansal to his father for repair. On 09.12.2004, Dr. Bimla Bansal, wife of Dr. Suresh Bansal handed over a cheque of Rs.50,000/- to deceased Ishwar Bansal. The wrist watch and the cheque were also missing. Anuj Bansal further stated that usually driver Ravi and Nirmal used to collect payment from the parties and his father used to sit at about 5.30 PM to see the accounts. Anuj Bansal first of all reached at the factory and saw his father in injured condition and removed to the him to the hospital.
5. Inspector Pankaj Sood after recording of statement of Anuj Bansal started inquiries from driver Ravi on 19.01.2005, who stated that on 10.12.2004, he alongwith accused Nirmal went to Dimension Overseas, Okhla Industrial Area for delivery of utensils and collecting the payment of Rs.3,25,000/-. In the evening around 5.00 PM, accused Nirmal came out from the factory and went to telephone somebody. He also stated that when after receiving payment, he came out and telephoned Ishwar Bansal, then heard injured Ishwar Bansal saying that somebody had STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :26: stabbed him with knife, then Ravi immediately informed Anuj Bansal. He also stated that on 18.01.2005, he met Nirmal, who took him to his house and disclosed to him that he alongwith his associates Munna, Avinash and Sonu conspired to rob Ishwar Bansal. Accused Nirmal further stated to him that he tried to contact Munna from PCR Booth from Okhla but could not able to succeed, meanwhile all the remaining committed the crime.
6. Inspector Pankaj Sood then started search for accused Nirmal. On 31.01.2005, accused Nirmal was arrested at his room at A-9, Lal Bagh, Delhi and brought to Crime Branch Office, Chanakyapuri. Accused Nirmal was interrogated thoroughly and then, arrested. His disclosure statement recorded. Thereafter, as per pointing out of accused Nirmal at Central Market, Ashok Vihar, accused Avinash and accused Munna were apprehended at egg rehri. After interrogation, they were also arrested. Their separate disclosure statements were recorded. On 31.01.2005, Dr. Suresh Bansal also joined the investigation. Accused Parkash STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :27: @ Munna led them to his rented room at WP-363, Wazirpur Village, Delhi and at his pointing out, one mobile having SIM Card No. 9818127376 and set No. 351479600619374 and mobile set were recovered and seized. Dr.Suresh Bansal identified the mobile belonging to deceased Ishwar Bansal, which was stolen/lost in November, 2004 from the factory. Thereafter, accused Avinash got recovered one gold ring, which was identified by Dr. Suresh Bansal belonging to his deceased brother Ishwar Bansal and same was also taken into possession. Lateron on 31.01.2005, accused Nirmal Kumar led the police officials at his room and got recovered one golden chain from a glass under the cot in his room. It was identified by Dr. Suresh Bansal belonging to his deceased brother Ishwar Bansal and was was seized.
7. On 03.02.2005, accused Parvesh @ Sonu was searched at his house bearing No. N-9/C-11, Ramlila Ground, Lal Bagh, Delhi and apprehended. He was interrogated in front of accused Avinash at Crime Branch Office. During interrogation, accused Parvesh @ Sonu was wearing wrist STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :28: watch, which was pointed out by accused Avinash belonging deceased Ishwar Bansal. The wrist watch was taken into possession. The accused Parvesh @ Sonu was arrested and his disclosure statement was recorded. Thereafter, he led for recovery of weapons of offence i.e. knives, out of which, one is a dagger shaped knife and another is a button actuated knife, which were wrapped in a old newspaper and kept in a plastic polythene at Sharma Studio belonging to Manoj Sharma in front of his house and same were taken into possession.
8. During investigation, accused Avinash and Parkash @ Munna pointed out the place of crime on 31.01.2005 and accused Parvesh @ Sonu on 03.02.2005. During investigation on 09.02.2005, statement of Ravi recorded under Section 164 Cr.P.C. by learned MM Sh. Sanjay Kumar Aggarwal. The TIP of recovered articles were also conducted. The recovered knives were sent to FSL for analysis. Opinion was also sought by the Investigation Officer Inspector Pankaj Sood from Autopsy Surgeon at BJRM STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :29: after showing the weapons of offence. The Investigation Officer collected the call details of deceased Ishwar Bansal's mobile phone, which was stolen in November, 2004 having No.9891203018. According to call details, on 16.11.2004, this mobile number was used in set mobile instrument having No.35156800185350. the mobile No.9891203018 was used in another mobile phone set having No.520424806094410. On 20.11.2004, this SIM Card used in another mobile set No. 351479600619370. Similarly, call details of mobile phone recovered from accused Parkash @ Munna having No. 9818127376 collected. According to which, on 16.11.2004, this mobile number was operating on phone set No. 520424806094410. However in between this number was also operational in mobile phone set No. 351479600619370 and after 15.12.2004, this number becomes permanent on this mobile set. The analysis of call detail suggested that the deceased Ishwar Bansal's stolen/lost mobile was used by accused Prakash @ Munna.The accused used the SIM Card of the deceased in his own phone till November, 2004. Lateron, the deceased got card cancelled and issued a new SIM Card.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :30:
9. The Investigation Officer also collected call details of 10.12.2004 to find out PCO Booth at Okhla from where the accused Nirmal telephoned to accused Parkash @ Munna. It belong to one Anil Kumar. Another person Subhash Kumar examined by Investigation Officer, who made the payment on 10.12.2004 when accused Nirmal Kumar and Ravi delivered the utensils at Okhla factory and received Rs.3,25,000/-. The Investigation Officer also took into possession the bill of stolen phone of deceased Ishwar Bansal and also photocopy of payment receipt. The scaled site plan was also prepared by the Draftsman at the instance of witness Anuj Bansal. After completion of investigation, chargesheet filed for trial of offence punishable under Section 302/397/379/411/120B/34 IPC and 25/54/59 Arms Act.
10. The accused Parkash @ Munna was produced initially before Juvenile Justice Board whereas other three accused persons Nirmal Kumar, Avinash Kumar and Parvesh Sharma @ Sonu challaned before the learned MM. Learned STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :31: MM after compliance of Section 207 Cr.P.C., committed the case to the Court of Sessions.
11. Vide order dated 30.08.2005, my learned predecessor Sh. A. S. Jayachandra, the then ASJ framed the charge for trial of offences punishable under Section 302/392/394/397/34 IPC against accused Nirmal Kumar, Avinash Kumar and Parvesh Sharma. In addition to this charge, for commission of offence punishable under Section 411 IPC also framed against accused Nirmal Kumar and Avinash Kumar. In addition to it, charge under Section 411 IPC and 25 Arms Act framed against Parvesh @ Sonu.
12. Vide order dated 14.03.2006, my learned predecessor Ms. Anju Bajaj Chandna, the then ASJ framed the charge against accused Parkash @ Munna, who was sent back from Juvenile Justice Board to face the trial before the Sessions Court. A charge for trial of offences punishable under Section 392/34 IPC, 394/34 IPC, 302/34 IPC, 397/34 IPC and 411 IPC framed against accused Parkash @ Munna.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :32:
13. Vide order dated 03.02.2007, my learned predecessor Sh. Rajneesh Kumar Gupta, the then ASJ amended the charges against all the accused persons and framed the charge for trial of offences punishable under Section 120B IPC, 392/120 B IPC, 394/120B IPC, 302/120B IPC and 392/397 IPC, and under Section 411 IPC and 25/27/54/59 Arms Act against accused Parvesh Sharma @ Sonu only. On all the occasions, all the accused persons pleaded not guilty and claimed trial.
14. Prosecution in support of the present case examined PW-1 Dr. B. N. Acharya, who proved postmortem report of deceased Ex. PW-1/A and gave opinion Ex. PW-1/D on the weapon of offence, PW-2 Constable Hans Raj Mann, DD Writer, who proved DD entry No. 21 Ex. PW-2/A and No.23 Ex. PW-2/B, PW-3 Constable Om Prakash, DD Writer who proved DD entry No. 28 Ex. PW- 3/A, PW-4 Kishan Lal Jindal is the relative of deceased Ishwar Bansal, who identified the dead body, PW-5 ASI Baldev Singh is the Duty Officer, who got registered FIR Ex.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :33: PW-5/B, PW-6 Constable Manoj, PW-7 HC Sajjan Kumar, Police Photographer, PW-8 Dr. Bimla Bansal, Bhabhi of the deceased, PW-9 ASI Rohtash Singh, First Investigation Officer, PW-10 Anuj Bansal, son of the deceased, PW-11 HC Suresh Chand, PW-12 Ravi, driver of deceased, PW-13 Manoj Sharma, PW-14 R. K. Singh, Nodal Officer, PW-15 Subhash Kumar, who purchased utensils from deceased on 10.12.2004 and made payment of Rs. 3,25,000/-, PW-16 Anil Kumar, PCO Booth owner at Okhla, PW-17 SI Rajesh Singh, Incharge of Crime Team, PW-18 Constable Ghanshyam, PW-19 Dr. Suresh Bansal, brother of the deceased, PW-20 Sh.Sanjay Kumar Aggarwal, the then learned ASJ, PW-21 V. Shankar Na rain, Senior Scientific Assistant (Biology), PW-22 SI Mahesh Kumar, Draftsman, PW-23 Dr. Mohd. Arshad, CMO, Sunder Lal Jain Hospital, PW-24 SI Vimal Kumar, Second Investigation Officer, PW-25 Seema Nair, Nodal Officer, PW-26 ACP Prakash Kheda, PW-27 HC Bijender Singh, PW-28 ASI Dharamvir Singh and PW-29 Inspector Pankaj Sood, Last Investigation Officer, STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :34:
15. According to the statement of Shri P.K. Verma, learned APP for the State, the prosecution evidence was closed vide order dated 19.09.2009.
16. Statement of accused persons recorded under Section 313 Cr.P.C., to which, they pleaded their innocence and wished to examine witness in his defence.
17. Learned counsel for the accused persons examined DW-1 Sunil Kumar Mishra in defence evidence and closed defence evidence.
18. I have heard the learned APP for State Shri P.K.Verma and Shri Rishi Pal Singh and Rambir Singh, counsel for all accused persons and perused the record.
19. The prosecution case rest upon extra judicial confession, circumstantial evidence and recovery of incriminating articles and weapons of offence from the possession of accused persons. These important facts and circumstances are discussed hereinafter in detail.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :35: Extra Judicial Confession
20. The prosecution examined PW-12 Ravi, the driver of the deceased before whom accused Nirmal Kumar made extra judicial confession in respect of hatching conspiracy, robbery and murder of deceased Ishwar Bansal. The prosecution has to establish that the extra judicial confession is voluntary, true and made in fit state of mind, then only it is admissible and relied by the Court. Confessions may be divided into two classes i.e. judicial and extra judicial. Judicial confessions are those which are made before a Magistrate or a Court in the course of judicial proceedings. Extra judicial confessions are those which are made by the party elsewhere than before a Magistrate or Court. Extra judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. As to extra judicial confessions, two questions arise : (i) whether they are made voluntarily and (ii) are they true. A confession is not caused by any inducement or threat or promise, in STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :36: case of one element is present in the confession, then it is voluntary confession. The Section 24 of the Indian Evidence Act, 1872 laid down that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage, the question whether it is true or false does not arise. The principle of law recognized the deliberate and voluntary confession is one of the most effectual proof in the eyes of law.
21. The prosecution relied on testimony of PW-12 Ravi, according to whose testimony on 09.12.2004, he was working as driver with the deceased Ishwar Bansal, who was running a factory of utensils at Wazirpur Industrial Area. The accused Nirmal Kumar was also employee of the deceased Ishwar Bansal. As per direction of the deceased, on 09.12.2004, PW-12 Ravi alongwith accused Nirmal Kumar took the consignment on next day i.e. 10.12.2004 to Okhla. The testimony of PW-12 in this regard corroborated by PW- 15 Subhash Kumar of Dimension Overseas Pvt. Ltd., Okhla STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :37: Industrial Area, Phase-I, New Delhi. According to his testimony on 10.12.2004, he was working as Purchase Officer and he knew Ishwar Bansal doing the stainless steel utensils business at Wazirpur Industrial Area. On 10.12.2004, one Nirmal Kumar and Ravi came to his godown sent by deceased Ishwar Bansal to deliver utensils and this process completed at about 5.30/6.00 PM. A payment of Rs.3,20,000/- also made to PW-12 Ravi in the presence of accused Nirmal Kumar. However, this witness failed to identify accused Nirmal Kumar in the Court.
22. PW-12 Ravi in his testimony deposed that at about 5.00 PM, accused Nirmal Kumar alongwith PW-15 Subhash Kumar went outside as there was difference in weight. Thereafter, accused Nirmal Kumar went out by saying that he has to make a call and returned after 10-15 minutes. Prosecution examined PW-16 Anil Kumar, PCO Booth owner at Okhla to corroborate this important call detail. PW-16 Anil Kumar testified that he has been STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :38: running a PCO Booth of MTNL having telephone No. 26812628 for public. He proved the original telephone bill Ex. PW-16/A. This telephone was installed in his shop in the year 2000. however, he is not maintaining any documentary proof of ownership and call made from his PCO Booth by persons. However, PW-16 Anil Kumar is important witness to corroborate the fact that a call was made on the day of incident from Okhla PCO Booth on the mobile got recovered from accused Prakash @ Munna at around 5.00 PM. On that day, PW-12 Ravi have no relation with accused Prakash @ Munna, so there is no possibility of making call to co-accused Prakash @ Munna by PW-12 Ravi. These circumstances corroborates that accused Nirmal Kumar made the call to co- accused Prakash @ Munna from Okhla. The testimony of PW-12 Ravi in respect of 10.12.2004 visit to Okhla with accused Nirmal corroborated by important witness of prosecution PW-14 R.K.SIngh, Nodal Officer, Bharti Airtel Limited, who proved the call details of deceased mobile phone Ex. PW-14/A. According to the call detail as mentioned herein below :-
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :39: "on 10.12.2004 at about 4.59 PM from telephone No. 01126812628, a call was made to mobile No. 9818127376 recovered from the possession of co-accused Prakash @ Munna during the investigation. This mobile number belongs to deceased Ishwar Bansal, which was used in stolen/lost mobile Nokia phone by the deceased."
23. During investigation, another important fact came to light that in the month of November, 2004, the Nokia mobile phone having model No. 3315 and mobile No. 9891203018 of deceased Ishwar Bansal was stolen from the factory. This fact is proved by PW-10 Anuj Bansal. There is no cross-examination on this aspect by the defence counsel. No suggestion put that no such mobile was stolen or lost by the deceased. PW-19 Dr.Suresh Bansal is the witness to the recovery of mobile phone from the accused Prakash @ Munna. It has also come in the testimony of PW- 12 Ravi that at that time, he was carrying the mobile phone of deceased and he was in continue contact with the deceased. PW-12 Ravi alongwith accused Nirmal Kumar after delivery started to return to Wazirpur Industrial Area and they were in search of an auto and after covering some STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :40: distance, accused Nirmal Kumar asked him to call the deceased and during conversations, he heard Hello - Hello and then, the call was attended by PW-12 Ravi, who hears the voice of deceased saying "Maar Diya Maar Diya Chaku Maar Diya". Then PW-12 Ravi informed the son of the deceased. In his testimony, PW-10 Anuj Bansal testified that accused Nirmal Kumar was one of the employee of his father deceased Ishwar Bansal, who was having six permanent employees. On 10.12.2004, he had received a mobile call on his mobile No. 9868241730 of Ravi from his mobile No. 9213190362, which belong to his deceased father and given to Ravi for communication. PW-12 Ravi informed him that something happened in the factory, then he reached at the factory immediately alongwith his aunt Dr. Bimla Bansal. PW-8 Dr. Bimla Bansal also testified that on 10.12.2004 at about 6.15 PM, she was present at her house when her nephew Anuj Bansal came and he was nervous and disclosed that he has received a call from driver Ravi that some untoward incident had occurred in the factory. PW-10 Anuj Bansal and PW-8 Dr.Bimla Bansal corroborates the STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :41: fact of receiving information about some untoward happening at the factory of deceased from PW-12 Ravi.
24. PW-12 Ravi further testified that he alongwith accused Nirmal Kumar reached at the factory and saw crowd of people and police was also there. He delivered Rs.3,20,000/- to the relative of the deceased. He was subjected to detailed cross-examination and confronted with his statement under Section 164 Cr.P.C. as well as statement recorded by the police. The aspect of confrontation are not material. They are on the point that he did not specify the Esteem car of the deceased, in which, he was a driver. The duty hours and the conversations of preceding day i.e. 09.12.2004 between him and the deceased. Further confronted on the denomination of currency notes received by him from Okhla from one Subhash. He was also confronted with another material fact of searching of auto after delivery of consignment. Specially answered in the cross-examination that he was the confident person/employee of the deceased and therefore, he was sent STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :42: to collect such a huge amount. He admits that he did not disclose the fact of stabbing the deceased heard by him to his son Anuj Bansal. He was also confronted with the fact that whether he stated to the police that he is driver and accused Nirmal Kumar is Munim of deceased Ishwar Bansal. He further explained that he was called by the police after the incident upto 20.12.2004. He successfully passed the test of cross-examination on these aspects. The confrontation during cross-examination is not on material aspect of his testimony. The confrontation failed to establish that there is any material improvement made by him rather had explained the circumstances throughout the day on 10.12.2004, he delivered the consignment alongwith accused Nirmal Kumar and how he informed the family members of the deceased regarding the last conversations with the deceased.
25. PW-12 Ravi in his testimony testified the most important facts in respect of extra judicial confession made to him by accused Nirmal Kumar that on 18.01.2005, when STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :43: he met with accused Nirmal Kumar on a road near PP Wazirpur Industrial Area at about 5.00 PM, then they talked about the unemployment. Accused Nirmal Kumar asked him to accompany him to his house at Lal Bagh, Near Azadpur. The accused Nirmal Kumar took out a bottle of liquor and offered it to him but he told that he did not take liquor. Thereafter, accused Nirmal Kumar brought him a tea. The accused Nirmal Kumar after taking liquor started talking about unemployment and during those talks, he told him that he had restrained accused Prakash @ Munna not to visit the factory and when PW-12 Ravi asked him why, then he disclosed that he alongwith co-accused persons Munna, Sonu and Avinash hatched a conspiracy for looting the deceased Ishwar Bansal. He further disclosed that he was not thinking that such occurrence would take place and he has not done good. Thereafter, accused Nirmal Kumar started giving oath to Ravi that he should not disclose this fact to anyone. PW- 12 Ravi further testified that after hearing this, he became frightened and immediately ran to his room. These facts were disclosed by him to the police on the next day i.e. STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :44: 19.01.2005, when police recorded his statement and thereafter, he disclosed these facts on 09.02.2005 before the learned MM in his statement under Section 164 Cr.P.C. vide Ex. PW-12/A.
26. PW-20 Shri Sanjay Kumar Aggarwal, the then learned MM also testified that on the application of Investigation Officer Ex. PW-20/B, he recorded the statement of PW-12 Ravi EX. PW-12/A under Section 164 Cr.P.C. on 09.02.2005. He recorded the statement after general inquiry and after satisfying himself that PW-12 Ravi was making the statement without any undue influence or pressure. He proved the certificate issued by him EX. PW-20/A and supply of copy of the statement to the Investigation Officer vide order Ex. PW-20/C.
27. PW-12 Ravi during his cross-examination especially on the aspect of extra judicial confession of accused Nirmal Kumar on 18.01.2005 testified that after the death of Ishwar Bansal, he met accused Nirmal Kumar on STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :45: 18.01.2005. Earlier he and also accused Nirmal Kumar interrogated by the police but no statement was recorded. He further stated that accused Nirmal Kumar met him at about 6.30 PM near Wazirpur Industrial Area on 18.01.2005 and then, they talked about 15 minutes. He explained the distance between Lal Bagh and the place of meeting with the accused Nirmal Kumar was ½ or ¾ KM. He has given the location of room of accused Nirmal Kumar at first floor where they reached around 7.00/7.15 PM. Accused Nirmal went to take tea for him after about 10-15 minutes of their reaching there. He remained alone in the room for about 5-10 minutes. Although he is confronted with statement under Section 164 Cr.P.C. about these facts and why he restrained accused Prakash @ Munna when asked by him to accused Nirmal Kumar and the fact that on 19.01.2005, police came to his house. He denied the suggestion that accused Nirmal did not come to the factory on the day of occurrence. He denied that he is the main conspirator in commission of the offence. The learned counsel for the accused persons did not put any suggestion or question on extra judicial confession STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :46: and meeting of PW-12 Ravi with accused Nirmal Kumar on 18.01.2005 and on the next day i.e. 19.01.2005 to the police officials. There is no cross-examination or suggestion put to PW-12 Ravi in respect of denial of facts stated by PW-12 Ravi dated 18.01.2005. Further there is no suggestion or question on the state of mind or voluntariness of the extra judicial confession made to PW-12 Ravi. These important aspects remained unrebutted despite cross-examination that accused Nirmal Kumar met PW-12 Ravi on 18.01.2005 rather he explained in the cross-examination when and how accused Nirmal Kumar met him and disclosed the conspiracy with accused persons. There is no question or suggestion denying the facts of extra judicial confession dated 18.01.2005. Although defence counsel confronted on this aspect but does not establish any extraordinary improvement by PW-12 Ravi when he appeared before the Court.
28. Learned APP for State Shri P. K. Verma relied on judgments reported as under :-
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :47:
(i) Mulk Raj Vs. The State of U.P., AIR 1959 SC
902.
(ii) Sahoo Vs. State of Uttar Pradesh, AIR 1966 SC 40.
(iii) Ponnusamy Vs. State of Tamil Nadu, IV (2008) SLT 160.
(iv) Kusuma Ankama Rao Vs. State of A.P., 2008 Cri.L.J. 3502.
(v) Mohd. Azad @ Samin VS. State of West Bengal, AIR 2009 SC 1307.
29. Learned counsels Shri Rishi Pal and Shri Rambir Singh on behalf of all accused persons relied on the judgments as under :-
(i) Jagta Vs. State of Haryana, AIR 1974 SC 1545.
(ii) Kishore Chand Vs. State of Himachal Pradesh, AIR 1990 SC 2140.
(iii) C. K. Raveendran Vs. State of Kerala, AIR 2000 SC 369.
30. I have gone through the all the judgments relied by both the parties. The judgments relied on behalf of accused persons are distinguishable in the present facts and circumstances of the case. In the judgment of Jagta (supra) wherein extra judicial confession was not found to be truthful because it was in the presence of police officials at the time of making of confession. In the case of Kishore STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :48: Chand (supra) also made confession to Pradhan, who was accompanying alongwith police officials. In the judgment of C. K. Raveendran (supra), the accused as well as witness both consumed the liquor and then, extra judicial confession was made by accused. Secondly, this judgment is the exact words or near possible words were not stated by the witness before the Court. On the other hand, the judgments relied by the learned APP for State in the case Mulk Raj (supra) and Sahoo (supra) are three judges bench judgment and laid down fundamental principle of appreciating of admissibility of extra judicial confessions. These judgments reiterate the basic principle laid down in the case of Pakala Narayanaswami Vs. Emperor, AIR 1939 PC 47. The judgments relied by learned defence counsels are distinguishable in the present facts and circumstances of the case.
31. In the present fact and circumstances of the case, PW-12 Ravi is driver of the deceased to whom accused Nirmal Kumar, who is employee of the deceased made the STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :49: extra judicial confession. There was no pressure or influence applied on accused Nirmal Kumar by PW-12 Ravi. Accused Nirmal Kumar himself opened his heart to PW-12 Ravi on 18.01.2005 being co-employee. The accused Nirmal Kumar had used the words, which are reproduced by PW-12 Ravi when he appeared in the witness box. These words are near possible to the exact words uttered by him. At the time of making of extra judicial confession, only accused Nirmal Kumar consumed liquor at his own will and he was not under any influence or pressure. Accused Nirmal Kumar himself took PW-12 Ravi to his room at his own without any force. The circumstances establish that the extra judicial confession was made voluntarily and stated the true facts in the fit state of mind by accused Nirmal Kumar. Hence, the extra judicial confession is a valuable piece of evidence. It is pertinent to mention herein that hereinabove in detail it is discussed that apart from extra judicial confession proved by PW-12 Ravi, the other witnesses also corroborated all the circumstances relating to the incident and the circumstances, which led to making of extra judicial confession by accused Nirmal Kumar.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :50: On the basis of above observation and discussion, prosecution established the voluntary and truthfulness of extra judicial confession made by accused Nirmal Kumar beyond reasonable doubt. The prosecution also established and proved the link witnesses discussed hereinabove to the incident, which strongly points out the voluntary and truthfulness of extra judicial confession made by the accused Nirmal Kumar.
Recovery of Incriminating Articles of Deceased and Weapon of Offence
32. As per allegations in the charge sheet, the mobile phone stolen/lost in November, 2004 belonging to deceased from the possession of accused Prakash @ Munna. Recovery of gold ring from accused Avinash, recovery of gold chain from accused Nirmal Kumar, recovery of HMT Quartz Swarna white dial with golden chain from accused Parvesh @ Sonu and weapon of offence i.e. a dagger and a button actuated knife. In order to prove these allegations, prosecution STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :51: examined PW-10 Anuj Bansal, who testified that in mid of November, 2004, a mobile phone belonging to his deceased father bearing No. 9891203018 make Nokia 3315 misplaced and stolen by someone in the factory. The learned counsel for the accused persons did not cross-examine or put any suggestion on these facts stated by PW-10 Anuj Bansal. His father also had taken on the day of incident Rs.80,000/- for making payment to some party. PW-8 Dr.Bimla Bansal testified that one day prior to the incident, she handed over a cheque of Rs.50,000/-. PW-19 Dr.Suresh Bansal testified that after the Thervi of his deceased brother Ishwar Bansal, the family members recollected that the articles, which were worn by the deceased on the day of incident were missing. His deceased brother used to wear a gold chain, which was gifted by him about 10 years prior to the incident and a gold ring having engraved words I and C were found missing. The HMT Quartz Swarna white dial with golden chain wrist watch, which was given by him to his deceased brother in the morning of 10.12.2004 for repair also found missing.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :52:
33. The prosecution examined PW-19 Dr. Suresh Bansal, PW-28 ASI Dharamvir Singh and PW-29 Inspector Pankaj Sood in order to prove all the recovery from all the four accused persons. PW-19 Dr. Suresh Bansal testified that on 31.01.2005, he went to Chanakyapuri Crime Branch office where accused Nirmal, who was working as Munim of his deceased brother was present there. He testified the facts stated by accused Nirmal Kumar in his disclosure statement, which were disclosed to him by PW-29 Inspector Pankaj Sood. The disclosure statement of accused Nirmal and hearsay evidence narrated by PW-19 Dr. Suresh Bansal is not admissible as per law. It is barred by Section 24 of Indian Evidence Act, however as per Section 27 of Indian Evidence Act, the fact discovered thereafter are admissible. PW-19 Dr.Suresh Bansal further testified that he alongwith the police officials and Investigation Officer went to Central Market and on the way, his car developed some problem, therefore, he reached at Central Market, Ashok Vihar at about 5.30 PM whereas accused alongwith police officials went in a separate police vehicle. There, the police officials STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :53: apprehended two more boys, whose name revealed as Avinash and Prakash. Accused Avinash and Prakash led them to Ram Mandir, Near School in Wazirpur Industrial Village and then to the house having No. WP-363, Wazirpur Village at first floor room. The accused Prakash taken out a mobile phone from the tand lying with other articles and clothes. This mobile phone is of make Nokia 3315 of silver colour having one sticker pasted. PW-19 Dr. Suresh Bansal identified the mobile phone as being the same, which was stolen in November, 2004 belonging to his deceased brother. He proved the seizure and taking into possession by police vide memo Ex. PW-19/B. He also identified the mobile phone as Ex. P-8. PW-19 Dr. Suresh Bansal further testified that from a lota (utensil), accused Avinash produced a gold ring, which was identified by him to be belonging to his deceased brother having engraved words I and C. He proved the seizure vide memo Ex. PW-19/C and identified the gold ring as Ex. P-10.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :54:
34. PW-19 Dr. Suresh Bansal testified that from the place of accused Avinash Kumar and Prakash @ Munna, he alongwith police officials went to the house of accused Nirmal Kumar at Lal Bagh. Accused Nirmal Kumar led them to H. No. A-9, Gali No. 9, Lal Bagh at first floor and from the room under the cot, he took out a brass tumbler, from which, a gold chain produced by him and he identified that chain belonging to his deceased brother. The gold chain Ex. P-9 was seized vide memo Ex. PW-19/D and he identified the same. He further testified that he identified the HMT Quartz Swarna white dial wrist watch on 15.02.2005 during TIP proceedings as Ex. PW-11, which was given by him on the day of incident for repair to his deceased brother.
35. In the cross-examination on the aspect of joining the investigation by Dr. Suresh Bansal, he explained that the gold chain Ex. P-9 was gifted by him to his deceased brother on his wedding anniversary about 10 years prior to the incident and he has no documentary proof. He denied the suggestion that this gold chain like Ex. P-9 are easily STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :55: available in the market and falsely planted on the accused by the police. However the gold ring Ex. P-10 having specific design and identification mark i.e. words engraved I and C. He further reiterated that he had given his wrist watch to the deceased at home in the presence of other family members i.e. Anuj Bansal and Dr.Bimla Bansal for repair but he has no documentary proof of this watch. He also explained that the identification of wrist watch is HMA Quartz Swarna of white dial and golden chain. He denied that police falsely planted Ex. P-9 wrist watch on the accused. In the cross- examination, he further testified that the mobile phone EX. P- 8 was missing and his deceased brother might have lodged the report and thereafter, he purchased another mobile but he does not remember its make. He further explained that on 31.01.2005, he himself went to Crime Branch office to know the progress of the case and found accused Nirmal Kumar was sitting there. He admits that he did not inform any of his family members about the recovery of robbed articles. He further explained the surroundings of the house of the accused Prakash @ Munna, Avinash Kumar and Nirmal STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :56: Kumar. He also clarified that some public persons were asked to join the proceedings but none joined. He further testified that after the sealing of recovered articles, seal was given to him and after two days, a police officer came and took the seal but he does not remember his name. He denied the suggestion that no gold chain, gold ring or mobile phone recovered from the possession of accused persons and all the documents are fabricated.
36. Prosecution further relied on testimony of PW-28 ASI Dharamvir Singh, who testified that on 31.01.2005, he alongwith PW-29 Inspector Pankaj Sood, SI Ramesh Dabas, HC Amit Kumar, HC Satinder, HC Suresh and Constable Pratap went in a government vehicle driven by HC Sanjeevan to Lal Bagh and accused Nirmal Kumar was apprehended at about 10.30 AM and he was brought to Crime Branch office at Chanakyapuri. He proved the disclosure statement of accused Nirmal Kumar Ex. PW-28/A, his arrest vide memo Ex. PW-28/B and personal search vide memo Ex. PW-28/C. He corroborates the fact that on that day, around 2.45 PM, STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :57: Dr.Suresh Bansal, brother of the deceased also came. Then Investigation Officer PW-29 Pankaj Sood disclosed the progress of the case to Dr. Suresh Bansal and he joined the investigation. He further testified and proved the facts stated by PW-19 Dr. Suresh Bansal regarding the proceedings, investigation and recovery of articles. He proved the disclosure statement fo accused Avinash Kumar Ex. PW-28/D and disclosure statement of accused Prakash @ Munna Ex. PW-28/E. He further proved the arrest of accused Avinash Kumar vide memo Ex. PW-28/F and his personal search vide memo Ex. PW-28/H. The arrest memo of accused Prakash @ Munna is Ex. PW-28/G and his personal search memo vide memo Ex. PW-28/J. He denied that around 5.30 PM, Dr. Suresh Bansal reached there. He further testified that thereafter, they went to residential house of both the accused persons where mobile phone having Airtel SIM card and the mobile No. 9818127376 recovered from the possession of accused Prakash @ Munna, which is of the make Nokia 3315 Ex. P-8 and recovery of gold ring at the instance of accused Avinash Kumar Ex. P-10. He further STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :58: proved the recovery of gold chain at the instance of accused Nirmal Kumar Ex. P-9. He further proved the pointing out memo prepared at the instance of accused persons of the place of occurrence vide Ex. PW-28/K.
37. PW-28 ASI Dharamvir Singh testified that they tried to trace out the accused Parvesh Sharma @ Sonu. On 02.02.2005, police team again started search for the accused Parvesh Sharma. Accused Avinash Kumar gave a disclosure statement Ex. PW-28/L on 03.02.2005. thereafter, on the basis of secret information, they went to Kankhal, Haridwar but accused Parvesh Sharma could not be traced as he has already left Kankhal, Haridwar for Delhi. The police team arrived at about 1.00/1.30 PM to Delhi and went to H. No. N- 9/C-11, Lal Bagh and on the basis of secret information at about 2.00 PM, raid was conducted at the house of accused Parvesh Sharma. At that time, accused Parvesh Sharma alongwith his elder brother Durgesh or Durbesh Sharma were found available. Accused Parvesh Sharma was apprehended and interrogated by the Investigation Officer Pankaj Sood.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :59: He further testified that the HMT Swarna wrist watch from the hand of accused Parvesh Sharma was recovered having white dial and golden chain, which was seized vide memo Ex. PW-28/M. He was arrested vide memo Ex. PW-28/N, his personal search was conducted vide memo Ex. PW-28/O and his disclosure statement was recorded vide memo Ex. PW- 28/P.
38. He testified that thereafter, accused Parvesh Sharma led them to Sharma Studio owned by Manoj Sharma from where he produced a polythene kept in a shelf of the shop. It was handed over by Manoj Sharma and on checking, two knives were taken out wrapped in a English newspaper. Out of the said knives, one was dagger having blade of 20 cm long, width of 2.2 cm and length of handle 8.5 cm and another buttondar knife with length of blade 14 cm, handle 17.9 cm and width 3 cm. He proved the sketches of the dagger and button actuated knife Ex. PW-13/A and PW-1/DX. He proved the seizure of dagger and button actuated knife Ex. PW-13/B and further proved the supplementary STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :60: disclosure statement of accused Parvesh Sharma Ex. PW- 28/Q. He further proved the pointing out memo prepared at the instance of accused Parvesh Sharma of the spot of crime Ex. PW-28/R. He identified the HMT wrist watch Ex. P-11. He further identified button actuated knife Ex. P-1 and dagger Ex. P-2. The detailed cross-examination testified that at about 9.30 PM, Investigation Officer Inspector Pankaj Sood told him about the murder case. Driver Ravi did not gave any information in his presence to Investigation Officer Inspector Pankaj Sood. He explained the tempo number being Traveller No. 4283. The time of arrest may be 10.30 AM, when accused Nirmal Kumar was present in his room. Except Investigation Officer, no other police official interrogated him. He again corroborated the fact that PW-19 Dr.Suresh Bansal reached at the Investigation Officer Inspector Pankaj Sood's room on 31.01.2005 at Crime Branch office. The disclosure statements of accused Avinash Kumar and Prakash @ Munna recorded at the place of arrest while sitting in the vehicle. He explained the personal search of accused persons at the time of arrest. He explained the size STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :61: of the room of accused Avinash Kumar and Prakash @ Munna. He further identified the golden ring and the golden chain. He further explained that on 02.02.2005, they went in a Qualis government vehicle to Kankhal, Haridwar. He reiterates that at the residence of Parvesh Sharma @ Sonu, his brother Durgesh Sharma was found present. The disclosure statement of accused Parvesh Sharma was recorded at Crime Branch office. Nothing was recovered from personal search of accused Parvesh Sharma. He further corroborates the fact that from the Photo Studio of Manoj Sharma, accused got recovered from slb just over the entering gate of the shop a polythene containing one dagger and one button actuated knife. He denied the suggestion that nothing was recovered from the shop of Manoj Sharma. The statement of Mnaoj Sharm was also recorded by the Investigation Officer.
39. PW-13 Manoj Sharma turned out to be hostile witness. In the cross-examination by learned APP for State, he denied the knowledge that he know accused Parvesh STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :62: Sharma @ Sonu, however he admits that he is running a Photo Studio in front of N-9/C-11, Ram Leela Ground, Lal Bagh, Delhi. He denied his statement made to the police Ex. PW-13/A. He denied that accused Parvesh Sharma lives in his neighbourhood. He denied that on 24/25.12.2004, accused Parvesh Sharma gave him an envelope for taking care of the same. He denied the recovery of dagger and button actuated knife from his shop at the instance of accused. However, he admits his signature on the sketches of dagger and button actuated knife Ex. PW-13/A. He denied his signature on the seizure memo Ex. PW-13/B. He admits that he did not make any complaint to any authorities regarding taking his signature on blank papers.
40. Apart from above discussed prosecution witnesses, the Investigation Officer PW-29 Pankaj Sood, who corroborates the facts stated by PW-19 Dr. Suresh Bansal and PW-28 ASI Dharamvir regarding the investigation, recovery of mobile phone Ex. P-8, gold ring Ex. P-10, gold chain Ex. P-9, HMT wrist watch Ex. P-11 and STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :63: weapons of offence. The main arguments adavnced by the counsel for the accused persons is that all the recoveries were planted by the police. However as per material on record as discussed hereinabove, these submissions are devoid of merits. PW-19 Dr. Suresh Bansal's testimony cannot be brushed aside being the brother of the deceased. The important aspect that at that time of occurrence, the deceased was having the articles cannot be disbelieved. PW- 10 Anuj Bansal was not cross-examined on the aspect of the belongings, which were with the deceased on the day of incident. All the recovered articles were identified by Dr.Suresh Bansal. The HMT wrist watch Ex. P-11 also identified by him during TIP proceedings. In case, the police wanted to plant all these articles, then there was no need to join PW-13 Manoj Sharma at the time of recovery of weapons of offence as Dr. Suresh Bansal was available for joining the proceedings. The important aspect is that accused Parvesh Sharma @ Sonu led to the premises of PW- 13 Manoj Sharma. The hostile nature of PW-13 Manoj Sharma does not affect the prosecution case regarding STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :64: recovery of HMT wrist watch Ex. P-11 and weapons of offence i.e. dagger and knife Ex. P-2 and P-1. PW-13 Manoj Sharma admits his signature on all the memos, which were prepared during the proceedings by the Investigation Officer. In these circumstances, the testimony of PW-28 ASI Dharamvir Singh and PW-29 Investigation Officer Inspector Pankaj Sood corroborates and establish the recoveries from the accused Parvesh Sharma at his instance beyond reasonable doubt and also the recoveries of robbed articles belonging to deceased Ishwa Bansal made on 31.01.2005 at the instance of accused Avinash Kumar, Prakash @ Munna and Nirmal Kumar are also established beyond reasonable doubt.
Investigation Pertaining to Dead Body Identification and Postmortem
41. The deceased Ishwar Bansal is the victim in the present case. Prosecution relied to prove the proceedings regarding his postmortem and identification on the testimony of PW-23 Dr. Mohd. Arshad, who proved the MLC Ex. PW-
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :65: 23/A where the injured was initially admitted on 10.12.2004. In the MLC, he described the condition of the patient as unfit for statement and injuries were mentioned as stab injuries. This MLC was prepared by Dr. Manish Dhuppar but Dr.Mohd. Arshad identified his handwriting and signatures, who had left the services of the hospital. The MLC Ex. PW- 23/A proved that deceased Ishwar Bansal was admitted in the hospital on 10.12.2004 having stab injuries and he was not fit for statement. PW-3 Constable Om Prakash proved the fact that vide DD No. 28, he received the information regarding the death of Ishwar Bansal. Thereafter, prosecution proved that investigation was taken over by PW- 26 ACP Prakash Kheda.
42. PW-26 ACP Prakash Kheda testified that he had received the investigation from SI Vimal Kumar, who handed over to him four sealed pullanda, which were deposited to the MHC(M). On 11.12.2004, he went to Sunder Lal Jain Hospital and shifted the dead body to BJRM Mortuary for conducting postmortem. He proved inquest papers prepared STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :66: by him for autopsy i.e. Ex. PW-26/A1 to PW-26/A3. He further proved the fact that the dead body was identified by PW-4 Kishan Lal Jindal and PW-10 Anuj Bansal. He proved their statements Ex. PW-4/A and PW-10/A in this regard. He further testified that the inquest papers were deposited at Malkhana and after the postmortem, the dead body was handed over to PW-10 Anuj Bansal vide memo Ex. PW-4/C. He further proved that doctor handed over to him one sealed polythene bag containing the shirt and baniyan of the deceased Ishwar Bansal and one sealed envelope containing the blood gauze of deceased Ishwar Bansal alongwith one sample seal of the hospital, which were seized by him vide memo Ex. PW-6/E and handed over to Constable Manoj Kumar. PW-27 HC Bijender Singh further proved the fact that the case properties were deposited in the Malkhana on the relevant dates.
43. PW-1 Dr. B. N. Acharya, CMO, BJRM Hospital proved the postmortem on the dead body of deceased Ishwar Bansal. He proved his detailed postmortem report Ex. PW- 1/A. He further proved the opinion as under :-
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :67: "all the injuries are antemortem in nature and are caused by sharp edged weapon. Death is due to hemorrhagic shock consequent to injury to abdominal structure and vessels as described. Injury No.1 is sufficient to cause death in ordinary course of nature. Time since death is as mentioned in the hospital"
44. He further proved the fact that on 01.04.2005, PW-29 Inspector Pankaj Sood moved an application for subsequent opinion Ex. PW-1/B and duly sealed parcels containing knives. He proved the sketch of the knife Ex. Pw- 1/C and after examination, gave his detailed opinion vide Ex. PW-1/D. He also identified the knife Ex. P-1 and a dagger type knife Ex. P-2. In the cross-examination, he reiterated that during postmortem, digested food in the abdomen of deceased, which might have been taken before 4-5 hours from the death were found. He denied that he prepared a false sketch of the knife. He admitted that there is a difference in the sketch Ex. PW-1/C of the knife Ex. P-1 and Ex. PW-1/DX regarding the length of the handle. He denied that he prepared false report and opinion at the instance of Investigation Officer.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :68:
45. On the basis of above observation and discussion, prosecution proved beyond reasonable doubt that deceased Ishwar Bansal received stab injuries on 10.12.2004 and admitted to Sunder Lal Jain Hospital and expired on the same night. The postmortem report EX. PW-1/A establish that he died due to hemorrhagic shock consequent to injury to abdominal structure and vessels as described. Injury No.1 is sufficient to cause death in ordinary course of nature. It is further proved that the recovered knives Ex. P-1 and P-2 are the weapons of offence, through which, the stab injuries were caused to the deceased.
Initial Investigation and Scene of Crime
46. The prosecution examined PW-2 Constable Hans Raj Mann, who proved DD No. 21 Ex. PW-2/A and 23 Ex. PW- 2/B, which were received at Police Station regarding the incident and admission of injured at Sunder Lal Jain Hospital. The above said DD entries were entrusted to PW-9 ASI Rohtash Singh, who alongwith PW-6 Constable Manoj STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :69: visited the scene of crime. PW-9 ASI Rohtash Singh testified that on 10.12.2004 at about 6.35 PM on receiving DD No. 21, he went to A-73 Group, Wazirpur Industrial Area, Pulsar factory on the information regarding stabbing incident. The injured was already taken to Sunder Lal Jain Hospital. No eyewitness was available there. He went to the hospital adn received MLC. He proved the fact that he prepared the rukka Ex. PW-9/A on DD No. 21 and sent for registration of FIR. He also requested for Crime Team at the spot.
47. PW-17 SI Rajesh Singh, Incharge, Crime Team testified that he visited the spot of crime and prepared detailed crime report Ex. PW-16/A. In the cross-examination, he explained that he had reached around 9.00 PM at the spot. He further explained that he did not pay any heed to the article scattered and blood spot or blood drops on the table. The drawer of the table were in open condition. No attention given to the chairs lying in the office. However he carefully inspected the office and found there were some utensils and samples were there. He failed to recollect the STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :70: colour of the carpet, however there was no almirah and photographer took six photographs. PW-7 HC Sajjan Kumar testified that he took the photographs of the scene of crime as per instructions of the Investigation Officer Ex. PW- 7/7 to PW-7/12. He also proved the negatives Ex. PW-7/1 to PW-7/6. His testimony remained unrebutted despite opportunity given for cross-examination.
48. PW-6 Constable Manoj also appeared in the witness box, who joined the investigation with PW-9 ASI Rohtash Singh. His testimony is corroborated by PW-9 ASI Rohtash Singh. He testified that one blood stained iron jali Ex. P-1, one key ring containing bunch of keys Ex. P- 2, one steel lid Ex. P-3, one tube light starter Ex. P-4, one blood stained seat of the chair Ex. P-5, one pair of blood stained raxine chappal Ex. P-6 and one blood stained carpet Ex. P-7 were seized and sealed by the Investigation Officer PW-24 SI Vimal Singh in his presence. He proved the memos Ex. PW-6/A, PW-6/B, PW-6/C and PW-6/D. STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :71:
49. The facts stated by PW-6 Constable Manoj and PW-9 ASI Rohtash Singh further corroborated by PW-24 SI Vimal Kumar. He is also witness to the scene of crime and seizure of hereinabove referred articles at the scene of crime. In the cross-examination, PW-9 ASI Rohtash Singh as well as PW-24 SI Vimal Kumar admitted the fact that there are several persons present at the spot when they reached at the spot but they did not make inquiries from nearby Aggarwal Sweets. PW-9 ASI Rohtash Singh admits that there was one tea vendor at the gate of that factory but he did not inquire from him. The scene of crime was situated in the basement. The measurement of the office was bout 10 x 10 feet. He failed to explain the recoveries of the seat cover, carpet, raxine chappal and these facts were not mentioned in the rukka. PW-9 ASI Rohtash Singh admitted that tea vendor adjacent to the factory stated that the occurrence took place at around 5.30 PM. He did not spell out how many photographs were taken out by the Photographer, whether chance prints were taken out from the handle of the gate or not. He denied the suggestion that STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :72: he did not join the investigation.
50. PW-24 SI Vimal Kumar corroborates the facts deposed by PW-6 Constable Manoj and PW-9 ASI Rohtash Singh. In the cross-examination, he explained that he alongwith Constable Manoj went to the spot of crime. Constable Nafe informed him about the death information received at the Police Station. He admitted that at that time, there were 10-15 persons were present at the Aggarwal Sweets shop. He met ASI Rohtash Singh. He testified that one tea seller was sitting at the entrance gate. He admits and explained that crime team arrived at his presence but he does not remember whether chance prints were taken or not. He explained that the jali was round shape. He does not recollect whether chance prints were taken from the keys or not. He explained the colour of chappal as black but failed to remember the manufacturing companies name. He further explained that he remained at the spot till 10.15 PM. He further testified that he does not remember whether any mobile was found or not. He denied the suggestion that the STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :73: manipulation had taken place at the instance of driver Ravi of the deceased.
51. On the basis of above discussion and observation, prosecution established the scene of crime and initial investigation carried by police officials. The prosecution proved these seizure of articles i.e. iron jali Ex. P-1, one key ring containing bunch of keys Ex. P-2, one steel lid Ex. P-3, one tube light starter Ex. P-4, one blood stained seat of the chair Ex. P-5, one pair of blood stained raxine chappal Ex. P-6 and one blood stained carpet Ex. P-7, which were seized and sealed by him from the spot. He proved the memos Ex. PW- 6/A, PW-6/B, PW-6/C and PW-6/D. Criminal Conspiracy
52. The accused persons are charged for entering into criminal conspiracy for commission of all charged offences under Section 120B IPC, 392/120B IPC, 394/120B IPC, 302/120B IPC against all the accused persons and against STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :74: accused Parvesh Sharma @ Sonu and Avinash Kumar under Section 392/397 IPC read with Section 120B IPC. Criminal conspiracy, it must be noted in this regard, is an independent offence. It is punishable separately. A criminal conspiracy must be put to action; for, so long as a crime is generated in the mind of the accused, the same does not become punishable. Thoughts even criminal in character, often involuntary, are not crimes but when they take a concrete shape of an agreement to do or caused to be done an illegal act or an act which is not illegal, by illegal means then even if nothing further is done, the agreement would give rise to a criminal conspiracy.
53. The ingredients of the offence of criminal conspiracy are :
(i) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :75:
54. Condition precedent for holding the accused persons to be guilty of a charge of criminal conspiracy must, therefore, be considered on the anvil of the fact which must be established by the prosecution, viz., meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. However, while drawing an inference from the materials brought on record to arrive at a finding as to whether the charges of the criminal conspiracy have been proved or not, must always bear in mind that a conspiracy is hatched in secrecy and it is difficult, if not impossible, to obtain direct evidence to establish the same. The manner and circumstances in which the offences have been committed and the accused persons took part are relevant. For the said purpose, it is necessary to prove that the propounders had expressly agreed to it or caused it to be done, and it may also be proved by adduction of circumstantial evidence and/or by necessary implication.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :76:
55. The following passage from Russell on Crimes (12th Edn. Vol. 1) cited by Supreme Court in Kehar Singh and Ors. VS. State (Delhi Administration), 1988 (3) SCC 609 at 731 and AIR 1988 SC 1883, Para 268 brings out the legal position succinctly :
"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough".
Further it was noted in Kehar Singh (supra) that to establish the offence of criminal conspiracy '[i]t is not required that a single agreement should be entered into by all the conspirators at one time. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished.' STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :77:
56. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. Supreme Court in State of Maharashtra Vs. Som Nath Thapa [(1996) 4 SCC 659] and 1996 AIR SCW 1977 opined that it is necessary for the prosecution to establish that a particular unlawful use was intended, so long as the goods or services in question could not be put to any lawful use, stating :
"24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :78:
57. In the case of Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh and Anr. Vs. CBI, 2008 (14) SCALE 240 and AIR 2008 SC (supp) 938, Supreme Court held that :
"55. The principles which can be deduced from the above-noted judgments are that for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every details of the conspiracy so long as they are co-participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy."
Application of the Principles of Criminal Conspiracy
58. Applying the above discussed principle of law in the present fact and circumstances of the case has to be appreciated in what manner each accused participated and agreed to hatch and execute the conspiracy. The circumstances, which are crystalised after the examination in total 29 prosecution witnesses that deceased Ishwar Bansal STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :79: was carrying utensils work at his factory at A-73, Wazirpur Industrial Area. The documents pertaining to the business of the deceased were proved as Ex. PX-5 the income tax return, PX-6 the statement of income and PX-7 the rent agreement. The attendance register shows that the deceased was carrying his work in the name of Bansal's Work Metal. The attendance register Ex. PX-8 further establish, there were 12- 13 employees worked during the year 2004 in the factory of the deceased. The relevant month is December, 2004. These documents establish that accused Nirmal Kumar was the employee of deceased. He was resident of Lal Bagh within the jurisdiction of PS Adarsh Nagar. The co-accused Parvesh Sharma @ Sonu is also a resident of Lal Bagh area whereas co-accused Avinash Kumar and Nirmal Kumar, both are brothers and living in the same house at Village Wazirpur within the jurisdiction of PS Ashok Vihar. These residential situations and relation gives particular of meeting of minds of all the four accused persons. In order to hatch conspiracies, nowadays for the last one decade, the mobile phones plays important role. The most important fact proved on record is STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :80: that deceased's mobile make Nokia 3315 stolen/lost in November, 2004, one month prior to incident and recovered from accused Prakash @ Munna on 31.01.2005. In the present case also, the mobile phones are involved and also recovered alongwith SIM card. The Investigation Officer PW-29 Inspector Pankaj Sood collected call details of the involved mobile phones. These call details are proved by PW-25 Seema Nair, Nodal Officer, Idea Cellular Limited of the mobile Nokia 3315 of deceased having SIM No. 9891203018. According to call details Ex. PW-25/A, in the month of November 2004, this SIM Card of Idea was used in mobile phone set having IMEI No. 351479600619370. This instrument belongs to deceased Ishwar Bansal, which is proved vide Ex. PX-3, the receipt of purchase of the said mobile phone Nokia 3315. The analysis and scrutiny of Ex. PW-25/A, the call details of deceased, on 16.11.2004 at about 10.40 PM in the night, the IMEI number of SIM Card number of the deceased changed i.e. 520424806094410. This is the relevant time when as per material on record, mobile phone set of deceased was lost/stolen. The call details shows that STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :81: since 16.11.2004 to 19.11.2004 till 11.20 AM, this number remained in the changed IMEI number. Further call details shows that on 20.11.2004, again IMEI of mobile phone number is changed to 35156800185350. This is the new instrument purchased by deceased Ishwar Bansal.
59. Now after analysing and scrutinizing the call details proved by PW-14 R. K. Singh, Nodal Officer, Bharti Airtel Limited of the mobile No. 9818127376, this mobile number remained operational in mobile instrument having IMEI No. 520424806094410. As per material, this SIM of Airtel recovered at the instance of accused Prakash @ Munna from his room alongwith the stolen/lost mobile instrument of deceased Nokia 3315. The analysis shows that on 16.11.2004 around 2.39 PM, from this mobile number, a call was made at a landline No. 27372430. This landline number belongs to the factory of the deceased as per MTNL bill Ex. PX-1. The IMEI number in these call details is the same as discussed hereinabove while discussing the another details Ex. PW-25/A of deceased SIM and mobile. This IMEI STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :82: number is identical to the IMEI used from 16.11.2004 to 19.11.2004 prenoon and thereafter, deceased has purchased a new mobile phone and his number was not used in this IMEI number.
60. PW-14/A, call details having vital circumstantial evidence for hatching conspiracy. The recovered SIM from the possession of accused on 01.12.2004 shows that at about 10.48 AM in the morning, a call was made to the factory No. 27373444, whose landline bill of MTNL Ex. PX-2 is proved on record. Another important material and circumstance proved on record by this call detail is that on 10.12.2004 at about 4.59 PM in the evening, a call was made from No. 01126812628. According to PW-16 Anil Kumar, this telephone number belongs to his PCO. It is proved that accused Nirmal Kumar was at Okhla with PW-12 Ravi on 10.12.2004 at about 5.00 PM and made call to the mobile phone of co-accused Prakash @ Munna at mobile No. 9818127376. Further the analysis of call detail Ex. PW-14/A STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :83: establish that from 15.12.2004, the recovered SIM Card from the possession of accused Prakash @ Munna having No. 9818127376 used in IMEI No. 351479600619370. This is the instrument number of the deceased Ishwar Bansal, which was lost in November, 2004. It clearly establish that after the incident, the mobile instrument Nokia 3315 of the deceased remained in the possession of accused Prakash @ Munna till the end of the month. The call details further established that from 29.12.2004 to 31.12.2004, again the instrument was changed and it was again used in the IMEI No. 520424806094410.
61. On the basis of above observation and discussion, it is proved beyond reasonable doubt that there was meeting of mind of accused Nirmal Kumar, Avinash Kumar, Prakash @ Munna and Parvesh Sharma @ SOnu and there was agreement to carry out the robbery and murder, which was the common object of conspiracy.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :84:
62. In the conspiracy, the main role played by accused Nirmal Kumar, who was working with the deceased on the day of incident and he remained in constant touch with the co-accused persons. The vital call made from Okhla established and proved this fact. The role played by accused Parvesh Sharma @ Sonu. He is main assailant while committing the robbery and using the weapon. The co- accused Avinash Kumar, who is brother of accused Prakash @ Munna played the role of an active associate. The accused Avinash Kumar got recovered gold ring Ex. P-10 of deceased Ishwar Bansal. The vital call made from the Okhla to the mobile of Prakash @ Munna further establish the conspiracy that on that day, handsome amount to be received by deceased, which was the common object of robbery. The recovery at the instance of accused Nirmal Kumar is a gold chain Ex. P-9 and accused Prakash @ Munna got recovered a HMT wrist watch Ex. P-11 and weapons of offence i.e. the knife Ex. P-1 and the dagger Ex. P-2.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :85:
63. On the basis of above observation and discussion, prosecution established beyond reasonable doubt that all the four accused persons entered into criminal conspiracy with common object to commit robbery and murder of deceased Ishwar Bansal on 10.12.2004 at his factory A-73, Wazirpur Industrial Area.
Defence Witness and Conduct of Accused Persons
64. Accused Avinash Kumar and Prakash @ Munna examined DW-1 Sunil Kumar Mishra, who testified that he is running a security agency in the name and style of Rainbow Security and Detective Services having head office at LG-26, Lusa Tower, Azadpur, Delhi and a branch office at C-32, 2nd Floor, Sector-10, Noida, UP. The Noida office was started in October, 2004. he remained there for continuously for one year. He knew accused Avinash Kumar and Prakash STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :86: @ Munna as they were working as Peon at his Noida office for about two months in November and December, 2004. He explained the office hour from 8.00 AM to 8.00/9.00 PM. The salaries of accused persons were Rs.2,500/- per month each. Both left the services on 26.12.2004. He further testified that he has maintain any record of employment of both thew accused persons. He came to know about the present case about 5/6 months prior to deposition in the Court. In the cross-examination, he deposed that accused Avinash Kumar and Prakash @ Munna are real brothers and he knew them since they joined the duty at Noida. The premises at Noida was taken on monthly rent of Rs.1800/-. In October 2004, there were 70-80 employees at Azadpur opffice and 20-25 employees at Noida office. No employee was shown as permanent at Noida. The security agency was registered as partnership firm and another partner was Rakesh Kumar. He regularly file income tax returns. He showed his inability to produce any documentary proof of payment of salary through vouchers to non-permanent employees. He showed ESI returns Ex. DW-1/A from October, 2004 to March, 2005.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :87: He admits that these does not include the name of accused Avinash Kumar and Prakash @ Munna. During cross- examination, he was shown with photographs of the office at Noida Ex. DW-1/B and DW-1/C. He admits that there is no sign board of Rainbow Security Services. He denied the suggestion that accused Avinash Kumar and Prakash @ Munna never worked with him at Azadpur or Noida.
65. DW-1 Sunil Kumar Mishra examined by both the accused persons to establish their plea of alibi. However, DW-1 Sunil Kumar Mishra failed to show any documentary proof of employment of both the accused persons. There is no documentary proof produced by him, who is running a huge security services, having two offices and total number of about 100 employees. The oral testimony is not believable. He has no documentary proof that on 10.12.2004, accused Avinash Kumar and Prakash @ Munna were with him at the office from 8.00 AM to 8.00 PM. The accused Prakash @ Munna filed bail appalication dated STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :88: 30.05.2005 before learned ASJ Sh. A. S. Jayachandra. He had the opportunity to take the plea of alibi, however there is no mention of any fact of employment on the day of incident with Rainbow Security Services run by DW-1 Sunil Kumar Mishra. Another application filed on 11.02.2005 for bail but no such ground taken. Another bail application filed by Prakash @ Munna dated 16.11.2006, in this application also, no ground is taken. Another bail application filed by him on 22.08.2005 before Justive Juvenile Board, there is also no ground taken, which is in consonance to testimony of DW-1 Sunil Kumar Mishra. Similarly, accused Avinash Kumar also filed interim bail application on 07.07.2007 before the learned predecessor Sh. Rajneesh Kumar Gupta, ASJ, in which, no such ground has been mentioned. Another application filed by accused Avinash Kumar on 11.03.2008 for interim bail wherein also, no such ground has been taken, which connect him with the plea of alibi. The learned counsel for the accused persons did not put any suggestion or question on the aspect that accused Avinash Kumar and Prakash @ Munna ever worked with Rainbow Security STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :89: Services or that on 10.12.2004, accused Avinash Kumar and Prakash @ Munna were working with Rainbow Security Services from 8.00 AM to 8.00 PM to any material witnesses examined by prosecution especially PW-19 Dr. Suresh Bansal, PW-28 ASI Dharamvir Singh and PW-29 Inspector Pankaj Sood, the Investigation Officer during the entire trial. It is pertinent to mention here that the plea of alibi is contrary to the defence taken by both the accused persons during the trial. Hence, in view of above observation and discussion, the testimony of DW-1 is afterthought and does not inspire any confidence to believe. The accused Avinash Kumar and Prakash @ Munna failed to establish the plea of alibi.
66. It is pertinent to mention here the conduct of accused Prakash @ Munna during the trial. As per proceedings dated 02.08.2005, at the time of framing of charge, he pleaded that he is aged 17 years at the time of commission of offence and claimed himself to be juvenile and STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :90: furnished a proof of date of birth. My learned predecessor on this plea of accused sent the accused to Justice Juvenile Board. The Principle, Justice Juvenile Board vide order dated 29.11.2005 observed that accused Prakash @ Munna misused the process of law as learned ACMMMs. Madhu Jain vide order dated 07.04.2005 already set at rest the issue of accused being not juvenile. Learned ACMM observed that accused Prakash @ Munna himself had given the marriage application form mentioning his age 22 years when he was involved in FIR No. 169/04 dated 07.05.2004 under Section 365 IPC PS Adarsh Nagar. Even in his affidavit, he mentioned his date of birth as 10.02.1983. The SSLC certificate issued from Jagdev Prasad High School also shows the same. The accused Prakash @ Munna took the benefit because the FIR No. 169/04 was cancelled. He also produced one SSLC certificate showing his date of birth as 30.01.1988. The Court observed that it was forged.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :91:
67. The accused Prakash @ Munna once again pleaded that he is juvenile before the learned predecessor Ms. Anju Bajaj Chandna, ASJ. Learned ASJ also dismissed his plea vide order dated 02.03.2006. This was order was challenged before the High Court and criminal revision petition of accused dismissed on 28.09.2006 by Hon'ble Justice B. D. Ahmed, J. Despite that accused Prakash @ Munna once again filed another application claiming to be juvenile and sought the relief of bone X-ray for determination of his age and the same was dismissed by this Court on 18.03.2009.
68. On the basis of hereinabove detailed observation and discussion, the prosecution bring home guilt against all the four accused persons namely Nirmal Kumar, Avinash Kumar, Prakash @ Munna and Parvesh Sharma @ Sonu beyond reasonable doubt. Hence, all the accused persons convicted.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :92:
69. Accused Nirmal Kumar, Avinash Kumar, Prakash @ Munna and Parvesh Sharma @ Sonu are convicted of the offence punishable under Section 120B IPC and 302 IPC read with Section 120B IPC and 394 IPC read with Section 120B IPC. Accused Nirmal Kumar, Avinash Kumar and Prakash @ Munna are also convicted of the offence punishable under Section 392 IPC read with Section 120B IPC. Accused Parvesh Sharma @ Sonu further convicted of the offence punishable under Section 397 IPC read with Section 120B IPC and under Section 27 Arms Act.
(SANJAY KUMAR) ADDL. SESSIONS JUDGE-01 (NW) ROHINI COURTS: DELHI.
Announced in the open court today i.e. 24.09.2010.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :93: STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.