Delhi District Court
State vs . on 25 January, 2010
IN THE COURT OF SH. RAJ PAUL SINGH TEJI
ADDITIONAL SESSIONS JUDGE: FAST TRACK COURT
NORTH- EAST: KARKARDOOMA COURTS: DELHI
State
Vs.
1. Akram
S/o Abdul Bakar
2. Miraj @ Jakir
S/o Abdul Gaffar
3. Asif @ Naeem
S/o Abdul Rubmunshi
All three R/o E-364, New Seema Puri
Delhi.
4. Salam Kaviraj @ Chuha
S/o Subhan Kaviraj
R/o E-109, New Seema Puri, Delhi
5. Mohd. Illyas
S/o Abdul Khaliq
R/o E-429, New Seema Puri, Delhi
6. Shahin @ Bushle
S/o Asfaq Bali
R/o 700, Gopalpur, Wazirabad, Delhi
Sessions Case No. : 74/06
Page 1 of 39
FIR No : 284/2004
Police Station : M.S. Park
U/Sec : 412/449/396 IPC
& 25/27 Arms Act
Date of Institution of Case : 17.02.2006
Final Arguments Heard on : 18.11.2009 & 20.01.2010
Date of Judgment : 25.01.2010
JUDGMENT:
(1) All the six accused persons have been sent to face trial for the commission of offence punishable U/s 396/449/412 IPC & 25/27 Arms Act by the police of P.S. M.S. Park. The charges framed against the accused persons by Sh Sunil Gaur, the then Ld. ASJ read as under:
''That on 6.8.2004 at about 2.30 A.M. in house No. B-73, M.S. Park, Delhi within the jurisdiction of P.S. M.S. Park, you all in furtherance of your common intention committed house trespass in order to commit an offence of dacoity i.e. offence punishable with life and thereby Page 2 of 39 committed an offence punishable under Section 449/34 IPC and within my cognizance.
Secondly on the said date, time and place you all conjointly committed dacoity of gold chain from the person of Ms Ritu Kural and during this you caused the injuries to Surender Nath, her father who succumbed to injuries and died and thereby committed an offence punishable U/s 396 IPC and within my cognizance.
(2) Separate charges for the offence punishable U/s 412 IPC & Arms Act were also framed against accused persons namely Mohd. Illyas, Asif & Shahin. Accused persons namely Miraj, Shahin and Asif were also charged for the offence punishable U/s 25/27 Arms Act.
(3) Accused persons pleaded not guilty to the aforesaid charges and claimed trial.
(4) The case of prosecution in brief is that on 6.8.2004 at about Page 3 of 39
2.36 A.M. a PCR call was received at Police Station M.S. Park to the effect that thieves have entered into house No. B- 73, M.S. Park. The said information was reduced into writing vide DD No. 42 A which was entrusted to SI Partap Singh who alongwith Ct. Satpal reached at the spot. On receipt of this information, SHO alongwith staff also reached the spot where they came to know that injured has already been taken to SDN hospital. Thereafter HC Tara Chand informed from SDN hospital that injured Surender Nath has been declared brought dead by the doctor. Reeta Kural D/o Sh Surender Nath Kural met them at the spot and got recorded her statement Exb. PW 9/A. On the statement of Reeta Kural, present case FIR No. 284/04 IPC was registered. One of the assailant namely Akram who was apprehended on the spot, was taken into custody. Thereafter SHO alongwith SI Pratap Singh & Ct. Satpal reached SDN hospital and collected the MLC of deceased. Post-mortem on the body of Surender Nath was got conducted. SHO alongwith SI Pratap Singh returned to the spot and inspected the spot. The blood was Page 4 of 39 scattered in the bed room and blood stained dagger was found lying in the back portion of the house near the bath-room. Two chappals of different foot & one handkerchief were also found lying in the room. Crime team and photographer were called at the spot. Spot was got photographed. Crime team lifted the chance prints from the dagger. Exhibits were collected from the spot. One broken chain was also taken into possession from the spot. Site plan was prepared. Statement of witnesses U/s 161 Cr.P.C. were recorded. Dead body was handed over to the legal heirs of deceased. Accused Akram was interrogated who made disclosure statement regarding the commission of offence. Accused Akram was arrested in this case. Thereafter remaining accused persons i.e. namely Miraj, Asif, Salam Kaviraj, Mohd. Ilyas and Shahin were arrested who were identified by PW Reeta Kural. They were also interrogated who too made disclosure statements regarding the commission of offence. Accused persons namely Mohd. Illyas, Shahin & Asif got recovered the daggers used in the commission of offence. Page 5 of 39
Stolen articles were recovered from the possession of accused persons. Post-mortem report was collected. Case property was sent to FSL for analysis. After completion of investigation, charge-sheet for the offence punishable U/s 449/396/412/34 IPC & 25/27 Arms was filed against the accused persons in the concerned court of Ld. M.M. Since the offence committed by accused persons was exclusively triable by court of Sessions, the case was committed to the court of Ld. District & Sessions Judge. Thereafter, this case was assigned to this court for trial.
(5) Prosecution in support of its case has examined as many as 31 witnesses.
(6) PW 1 is HC Tara Chand who has deposed that on 6.8.2004 he was posted as duty constable in SDN hospital. On that day one Surender was admitted in the hospital by his son who was declared as brought dead by the doctor. This witness gave information to Police Station Mansarovar Park upon which a DD No. 80B, copy of which is Exb. PW 1/A was Page 6 of 39 recorded. He has further deposed that SI Pratap Singh from P.S. Mansarovar Park came there and he handed over the copy of the MLC of the deceased to him.
(7) PW 2 Ct. Dinesh is a formal witness who took 12 sealed pullandas and five sample seals to CFSL, Calcutta vide RC No. 37/21/04 and deposited the same there.
(8) PW 3 Ct. Sushil Kumar is a photographer who took photographs of the spot which are Exb. as PW 3/1 to PW 3/8. He has proved the negatives as Exb. PW 3/1A to PW 3/8A. (9) PW 4 is M.N.Kural who has deposed that on the intervening night of 5th and 6th August 2004 at about 2.30 A.M. his nephew Bhupinder Nath came to his house who was perplexed and shouted that dacoits have entered in their house. He immediately rushed to their house alongwith him and saw that his niece Reeta and nephew Virender had caught hold of one person whose name was later on known as Akram. He has further deposed that his brother Surender Kural was lying on the bed in a pool of blood. He alongwith Page 7 of 39 his nephew Virender took him to SDN hospital. He has further deposed that his brother died in the midway. Police reached there in the hospital. Dead body was taken to mortuary of GTB hospital for post-mortem. He has further deposed that at about 11.00 A.M. he alongwith Virender went to GTB hospital and identified the dead body of his brother vide identification memo Exb. PW 4/A which bears his signature at point A. This witness has identified the accused Akram, present in the court.
(10) PW 5 Bhupender Nath Kural has deposed that on the intervening night of 5th & 6th August 2004 at about 1.00 A.M. he was present at his house i.e. B-73, M.S. Park and was sitting with his elder brother namely Virender Nath Kural in bed room of his parents. He has further deposed that after having a conversation for about half an hour, they went to their respective bed rooms. At about 2.30 A.M. he heard a shriek from the bed room of his parents. He got up and went towards that room and found that it was bolted from outside. He thrashed the door after hearing noise. His sister-in-law Page 8 of 39 Usha Kural opened the door. He has further deposed that he found that his father was lying on bed in a pool of blood. His brother Virender and sister Rita had caught hold of a boy i.e. accused Akram present in the court. He was perplexed and called his uncle Mahender Nath Kural from his house who was residing in the adjacent house. His uncle came in their house. His uncle and his brother Virender took his father to SDN hospital. He called the police. Police came there and accused Akram was handed over to the police. After some time his brother and uncle informed him that his father has succumbed to the injuries. He has further deposed that on being checked, some household articles i.e. wrist watch, chain & some cash were found missing from their house. Police recorded his statement.
(11) PW 6 Dr. Pramod Kumar examined the injured Surender Nath vide MLC Exb. PW 6/A which bears his signature at point A. (12) PW 7 Dr. Arvind Kumar conducted the post-mortem Page 9 of 39 examination on the dead body of deceased Surender Nath and gave his report Exb. PW 7/A which bears his signature at point A. According to him the cause of death was haemorrogic shock due to ante-mortem injury on lungs and liver produced by single edge sharp weapon. He has further deposed that antemortem injury No.1 & 2 are sufficient to cause death in the ordinary course of nature. He has also given opinion regarding the weapon of offence vide his report Exb. PW 7/B which bears his signature at point A. (13) PW 8 HC Santosh Kumar is a duty officer who recorded DD No. 42A & 43A and proved the copies of the same which are Exb. PW 8/A & PW 8/C . He has further deposed that he also recorded FIR No. 284/04 and proved the copy of the same which is Exb. PW 8/B which bears his signature at point A. (14) PW 9 Rita Kural is an eye-witness of the occurrence. (15) PW 10 HC Ram Avtar is a formal witness who proved the entry Exb. PW 10/A. Page 10 of 39 (16) PW 11 HC Mohd Hussain took a sealed pullanda vide RC No. 104/21 from MHC(M) M.S. Park and deposited the same at FSL, Malviya Nagar.
(17) PW 12 is Ct. Mahavir Singh who has deposed that on 6.10.2004 MHC(M) gave him six pullandas which were in sealed conditions and he handed over the same to I.O. Rajender Singh in the court. He has further deposed that after TIP, three pullandas were given to him by the I.O. and he deposited all these three pullandas in malkhana. He has further deposed that so long as the pullandas remained in his custody, it was not tampered with.
(18) PW 13 Ravi Kumar is a witness to the recovery of the articles which were taken away by the accused persons. He has deposed that about three-four years back i.e. in the year 2004 SHO came to his house. One person namely '' Chuha' was in the custody of police. The said person Chuha took the police to a room in the same building in which Ilyas was found present. He has further deposed that Ilyas brought out Page 11 of 39 one purse of brown colour, one broken golden chain, cash of Rs. 1100/- plus some coins, one chunni of red colour, two invitation cards, one key ring having photo of Sai Baba and another key ring having photo of goddess Durga. He has further deposed that these articles were recovered from that purse and the same were seized by police after sealing the same in a pullanda. He has identified the articles to be the same which were recovered from that room at the instance of accused Chuha. He was declared hostile by Ld. APP and in cross-examination he has identified the accused Salam Kaviraj @ Chuha who was brought by the police. He has also correctly identified the accused Illyas. (19) PW 14 ASI Sajid Hasan is a Finger print proficient. He has deposed that on 6.8.2004 on the request of I.O. he visited the spot i.e. B-73, M S Park alongwith other members of the team. After inspection of the spot, he noticed two blood prints on a polythene bag which were marked as Q1 & Q2. He also found one dagger lying near hand pump which was seized by SI Rohtash. He has proved his report as Exb. PW Page 12 of 39 14/A which bears his signature at point A. (20) PW 15 HC Subhash is a duty officer who recorded DD No. 80B and proved the copy of the same which is Exb. as PW 1/A. (21) PW 16 is Ct. Satpal who has deposed that on 6.8.2004 on receipt of DD No. 42A he alongwith SI Pratap Singh went to the spot i.e. house No. B-73, M.S. Park where PW Rita met them there. In the meanwhile SHO also reached there. Injured was also already taken to hospital. Thereafter he alongwith SHO and SI Pratap Singh reached SDN hospital where injured Surender Nath was declared as brought dead. They took the dead body to GTB hospital for its post- mortem. SHO and SI Pratap Singh went away after leaving him to protect the dead body. He got conducted the post- mortem on the dead body. He has further deposed that after post-mortem, dead body was handed over to legal heirs of deceased. Doctor had given him two pullandas and one sample seal and he handed over the same to the SHO who Page 13 of 39 seized the same vide memo Exb. PW 16/A which bears my signature at point A. (22) PW 17 ASI Sushil Kumar has deposed that on 10.8.2004 he was posted in Finger Print Bureau, PTS Malviya Nagar, Delhi. He has further deposed that a parcel sealed with the seal of RS was marked to him by Director which was found containing a dagger. He examined the dagger and noticed one chance print on the same. He lifted the chance print and developed the same. He has proved the photo of the chance print as Exb. PW 17/A. He compared the same with the seven specimen finger prints sent by the I.O. He gave his report as Exb. PW 17/B which bears his signature at point A. He has further deposed that chance print lifted by him was found identical with right thumb impression mark SI . He has further deposed that mark SI was developed by him and proved the developed photo as Exb. PW 17/C. He has also identified the signature of their Director Sh R.K. Vajpai at point A on the projection report Exb. PW 17/D. Page 14 of 39 (23) PW 18 Ct. Krishan Kumar is a formal witness who took one pullanda sealed with the seal of FPB from FSL, Malviya Nagar alongwith sample seal & report and deposited the same in the malkhana.
(24) PW 19 Virender Nath Kural is an eye-witness of the occurrence and his testimony will be discussed later on. (25) PW 20 Ct. Iqbal Khan is a witness to the arrest of accused persons namely Miraj @ Jakir & Asif @ Naeem, Salam Kaviraj @ Chuha, Ilyas & Shahin @ Bushle. In his presence, accused persons made disclosure statements regarding the commission of offence. He is also a witness to the recovery of case property recovered at the instance of accused persons. He has correctly identified the accused persons as well as the case property which is Exb. as PW 20/article 1 to 7. (26) PW 21 SI Anil Kumar joined the investigation of this case with I.O. He has deposed that on 6.8.2004 he alongwith Inspector R.S. Yadav, SI Ajay Bali, SI Bhushan Azad, SI S.P.Singh and two/three other police officials went to house Page 15 of 39 No. B-73, M.S. Park where they found a large crowd gathered at the spot. He has further deposed that some persons inside that house had overpowered one person i.e. accused Akram present in the court. Injured who was stabbed by the offenders had already been taken to the hospital. Some blood was lying on the bed and on the floor. He was deputed by the I.O. outside that house to control the crowd. He has further deposed that at about 5.00 A.M. I.O. gave him rukka for getting the case registered. He went to the P.S. and got the case registered. He has further deposed that on 13.9.2004 on the directions of the I.O. he went to GTB hospital and collected post-mortem report of the deceased. He has further deposed that doctor handed over to him his subsequent opinion, sketch of dagger, dagger sealed in a pullanda sealed with the seal of AK and sample seal. He has further deposed that dagger and sample seal were deposited in the malkhana and rest of the articles were handed over to the I.O.
(27) PW 22 Ct. Naresh is a witness to the arrest of accused Salam Page 16 of 39 Kaviraj. He has deposed that accused Salam Kaviraj was arrested vide memo Exb. PW 20/M and his personal search was taken vide memo Exb. PW 20/L. (28) PW 23 SI Mukesh Jain is a draftsman who prepared the scale site plan and proved the same which is Exb. as PW 23/A. (29) PW 24 Inspector Rajender Singh is the I.O. of the case. (30) PW 25 HC Sukhram Singh is a MHC(M) with whom the case property was deposited regarding which he made the entries in register No. 19. He has proved the true extracts of the relevant entries which are Exb. as PW 25/A to PW 25/D. (31) PW 26 SI Bhushan Kumar is a witness to the recovery of articles which were recovered at the instance of accused Mohd. Ilyas.
(32) PW 27 SI Partap Singh joined the investigation and visited the spot on receipt of DD No. 42A. In his presence, exhibits were lifted from the spot, statement of Rita Kural was recorded and rukka was sent to P.S. through SI Anil Gandhi Page 17 of 39 for registration of the case, spot was got photographed & site plan was prepared. Accused Akram who was overpowered by the complainant, was interrogated and his disclosure statement Exb. PW 24/C was recorded. In his presence, other accused persons were also arrested who too made disclosure statement regarding the commission of offence. Accused persons also got recovered the articles which were taken away by them. He has correctly identified the accused persons present in the court.
(33) PW 28 Sh Rakesh Kumar, the then Ld. M.M. conducted the TIP of accused Salam Kaviraj @ Chuha and proved the TIP proceedings as Exb. PW 28/A, statement of accused as Exb. PW 28/B and certificate regarding the truthfulness of the proceedings as Exb. PW 28/C. (34) PW 29 Sh Rajneesh Kumar Gupta, the then Ld. M.M. conducted the TIP of accused Asif @ Naim, Miraj @ Jakir, Shahin @ Bushle and proved their TIP proceedings as Exb. PW 29/A, PW 29/B & PW 29/F. Ld. M.M. also conducted Page 18 of 39 the TIP of case property vide Exb. PW 29/J. Ld. M.M. gave certificate regarding the correctness of the TIP proceedings which is Exb. PW 29/K. (35) PW 30 Sh B.Manna, Sr. Scientific Officer(Retd.) from CFSL examined the exhibits of this case and proved his report which is already Exb. as PW 24/1. He has also proved his report Exb. PW 30/A which bears his signature at point A. (36) PW 31 B.C. Purkait also examined the exhibits marked as Exb. P.5 & P.9 and proved his report as Exb. PW 31/A. He has also identified the signature of Sh M.K. Mazumdar, Sr. Scientific Officer and Sh P.K. Kumar, Jr. Scientific Officer on their reports Exb. PW 31/B & PW 31/C at point A. He has further deposed that reports Exb. PW 31/A, PW 31/B and PW 31/C were attested by Baijayanta Mukhopadhyay, Jr. Scientific Officer of their department and the same bears his signature at point B. He has proved the serological report Exb. PW-31/D which bears the signature of P.Kumar at Point-A and the signature of D. Kuila, Sr. Scientific Officer Page 19 of 39 at Point B. (37) Thereafter statement of accused persons U/s 313 Cr.P.C. was recorded wherein they have denied the allegations against them and stated that they are innocent and have been falsely implicated in the present case. Accused persons did not lead any evidence in their defence.
(38) I have heard Sh Sukhbeer Singh, Ld. APP for the State as well as Ld. Counsel for accused persons Sh Mohd. Hassan, Amicus-curiae and given my thoughtful considerations to the rival submissions made by them. I have also gone through the written submissions filed on record by both the parties. (39) Ld. APP has submitted that prosecution has successfully proved its case against the accused persons and they are liable to be convicted. He has submitted that public witnesses i.e. PW 4, PW 5, PW 9 & PW 19 have fully supported the case of prosecution and Ld. Counsel for accused persons has failed to shatter their testimonies during lengthy cross-examination. He has submitted that police officials as well as other Page 20 of 39 witnesses including the doctors and experts from CFSL have too supported the case of prosecution. He has further submitted that accused persons as well as articles seized by the police have been identified by the eye-witnesses. He has submitted that prosecution has proved on record that it was the accused persons and none else who in furtherance of their common intention committed house trespass in order to commit the dacoity and all committed dacoity and also caused injuries to Surender Nath who succumbed to those injuries and died. He has further argued that recovery of stolen articles from the possession of accused persons has also been proved on record. He has submitted that prosecution has proved its case beyond reasonable doubt and hence accused persons are liable to be convicted. (40) On the other hand Sh Mohd. Hasan, Amicus-curiae for accused persons has vehemently argued that accused persons have not committed any offence as alleged by the prosecution and accused persons have been falsely implicated in this case. He has further argued that nothing was recovered from the Page 21 of 39 accused persons as alleged and all the alleged recoveries are planted one. He has further argued that public witnesses examined by the prosecution i.e. PW 4, PW 5, PW 9 & PW 19 have made contradictory statement to each other and hence no reliance can be placed on their testimonies. He has further argued that PW 4, PW 5, PW 9 & PW 19 are related witnesses hence no credence can be given to their testimonies. He has further argued that testimonies of police officials suffers from material discrepancies which go to the root of the matter and create serious doubt in the prosecution case. He has further submitted that no public witness was joined at the time of arrest of accused persons and police officials have given a stereo-type statement that public witnesses were asked but they refused to join. He has further argued that report of finger print expert cannot be relied upon as the same has been prepared on the asking of the police just to trace out the case. He has further submitted that FSL report Exb. PW 17/D is also manipulated one. (41) It has also been argued that in fact accused Akram was Page 22 of 39 returning to his house from his job and he was overpowered by PW 9 & PW 19 mistakenly and was handed over to the police whereas the main culprits had already ran away from the spot. He has further submitted that rest of the accused persons are the friends/relatives of accused Akram and they too have been falsely implicated in this case. On these grounds, Ld. Counsel for accused persons has prayed that accused persons are liable to be acquitted. (42) The complainant Rita Kural who was examined as PW 9 reiterated version of her statement Exb. PW 9/A and described the incident again in following words.
"On the intervening night of 5th and 6th August 2004 at about 1.00 A.M. they were present in their house. Her mother was not feeling well. She and her father were attending the ailing mother in latter's room. Rest of family members had gone to sleep in their respective rooms. She has further deposed that doors of verandah were opened to allow fresh air to come due Page 23 of 39 to his ailing mother. She has further deposed that between 2.00 -2.30 A.M. five unknown persons aged between 18-20 years entered in their house. One of them came near to him and two near the bed of her mother. Both of them were having 'Churas' in their hands. She has further deposed that one stood near her father and one near the gates having armed with similar 'Chura'. She has further testified that the boy who was standing near him shut his mouth by hands and forbade her to raise any voice. The said boy snatched golden chain from her neck which she was wearing that time. She has further deposed that he also started putting off her golden bangles and finger ring. In the meanwhile his father opposed the same asking them as what they wanted from them. She has further deposed that one of those boys asked his other associates to tie her father. She has further deposed that the boy who was standing near her father stabbed her father on his back by that chura 3-4 times. She tried to save her father. She has further deposed that her Page 24 of 39 father fell down on the cot. That boy again shut her mouth by his hand forcibly but despite that she was able to raise an alarm. Apart from that she knocked at the door of his brother's bed room. After hearing the same, her brother Virender woke up and came there. She alongwith her brother overpowered two of those boys. One of them succeeded in escape. She has further deposed that the boy who was overpowered by them came to be known as Akram. She has correctly identified the accused Akram, present in the court. She has further deposed that her sister-in-law opened the doors of her younger brother which were latched from outside by those offenders. Her brother went to call his uncle Mahender Nath Kural who is residing in an adjoining house. She has further deposed that thereafter her uncle with the assistance of her brother namely Virender Nath took her father to SDN hospital.
Police came to their house. She was interrogated and her statement Exb. PW 9/A was recorded by the police. She has further deposed that public gathered at Page 25 of 39 their house after hearing commotion. She has further deposed that public persons gave beatings to Akram. Police seized the bed sheet, two pillows and her gown which she was wearing at that time. Her gown was seized vide memo Exb. PW 9/D. All these articles were stained with blood. She has further deposed that police also picked up blood from floor of that room with the help of gauge and was kept in a vial and was converted into a pullanda. She has further deposed that police also seized a piece of golden chain(broken) having 18 hooks(ladis) and a kunda which was lying on the ground vide memo Exb.
PW 9/C. She has further deposed that police also seized two slippers of different pairs, two handkerchiefs which were lying in that room and near a hand pump. She has further deposed that offenders had also left a blood stained chura near hand pump which was also seized by the police. She has further deposed that one pocket of shirt of one of those offenders was also torn in the incident and the same was found fallen near stairs and the same was seized by the Page 26 of 39 police vide memo Exb. PW 9/B. One baniyan(vest) and an underwear of his brother which were stained in blood in that incident were also seized by the police. She has further deposed that offenders had taken away a piece of golden chain, one purse of dark brown colour made of racksene containing cash of Rs. 1100/-, one purse of his brother containing cash of Rs. 2,500/-, her wrist watch 'Purewall ' and one wrist watch of her brother. She had identified the accused Miraj and Asif present in the court and stated that she had identified them in the police station on 7.8.2004. She has further deposed that they are the same boys who were standing before the bed of her mother. The boy who was standing with her was accused Akram, present in the court. She has further deposed that the boy who had stood with her father is Salam Kaviraj @ Chuha to whom she had identified him near the Shahdra flyover in the custody of police.
She has further deposed that it was Salam Kaviraj who killed her father. She has further deposed that the boy who stood Page 27 of 39 near gate having knife in his hand was Shahin to whom she had identified in the court premises on 31.8.2004. She identified the accused Shahin correctly in the court. She has further deposed that she had identified her wrist watch, purse containing cash and golden chain in the TIP proceedings. She has identified the case property i.e. two slippers make Relaxo as Exb. PW 9/article 1 & 2, third slipper make Suji as Exb. PW 9/article 3, shirt of red and black colour as Exb. PW 9/article 4, cloth piece alongwith jar as Exb. PW 9/article 5, dagger as Exb. PW 9/article 6, two pillows as Exb. PW 9/article 7 & 8, bed sheet as Exb. PW 9/article 9, lungi as Exb. PW 9/article 10, ladies gown as Exb.
PW 9/article 11, shirt of grey color(checkdar) as Exb. PW 9/article 12, baniyan and underwear as Exb.PW 9/article 13 & 14, shirt of mehroon color as Exb. PW 9/article 15, white color underwear and payjama Exb. PW 9/16 & 17, handkerchief as Exb. PW 9/article 18 & 19, small glass bottle alongwith cotton as Exb. PW 9/article 20 collectively, hanuman Page 28 of 39 Chalisa as Exb. PW 9/article 25, one rupee coin as Exb. PW 9/article 26, ladies purse woodland alongwith wrist watch, piece of golden chain and cash as Exb. PW 9/article 27 collectively, small chunni alongwith one coin of Rs. 2, two coins of 50 paise as Exb. PW-9/article 28 collectively, key ring having photo of Saibaba, one small showpiece, four coins, visiting cards and envelope containing invitation card Exb. PW 9/article 29 collectively.
(43) PW 19 Virender Nath Kural who is the brother of complainant i.e. Rita Kural(PW 9) has tautologized the story as told by PW 9. He has also identified the accused persons correctly.
(44) Ld. Counsel for the accused persons has argued that both the eye-witnesses i.e. PW 9 & PW 19 have made contradictory statement to each other hence no reliance can be placed on their testimonies.
(45) I find no weight in the submission of Ld. Counsel for accused Page 29 of 39 persons on this score. I have carefully perused the testimonies of both the eye-witnesses i.e. PW 9 & PW 19 and both of them have fully supported the case of prosecution and their testimonies seems to be truthful and reliable. No doubt, there are minor discrepancies in their witnesses but that does not mean that the testimonies of such witnesses becomes unreliable and unworthy of credence.
(46) It has also been argued that public witnesses examined in this case are close relations of the deceased and hence they are interested in the conviction of the accused persons and the accused persons cannot be convicted on the basis of evidence of interested witnesses. I do not agree with this contention of the Ld. Counsel for the accused persons. I have gone through the testimonies of PW 4, PW 5, PW 9 and PW 19 and I do not find any major discrepancy in the statement of all these four witnesses. The statements of all these witnesses seems to be trustworthy and reliable. I have also gone through the cross-examination of these witnesses and Ld. Counsel for the accused persons could not make any dent Page 30 of 39 in the cross-examination of these witnesses which would impeach their credibility. Simply because all these four witnesses are the close relations of the deceased is no ground to acquit the accused persons. Reliance can be placed on the judgment of Hon'ble Supreme Court in the case of Sher Singh and another Vs. State of Haryana reported as 1994 Crl. L.J. 1980(SC)wherein it has been held that relationship with deceased itself is no ground to reject their testimony. On the other hand such persons would not implicate somebody falsely. Conviction can be based on their testimony.
(47) It has also been argued by Ld. Counsel for accused persons that accused Akram was returning to his house from his job and he was overpowered by PW 9 & PW 19 mistakenly and was handed over to the police whereas the main culprits had already ran away from the spot.
(48) First of all I would like to mention here that no documentary or oral proof has been produced on record regarding the employment of accused Akram or that he was returning from Page 31 of 39 the said employment and hence it cannot be believed that he was returning to his house from his job. Rather by taking such a defence, accused Akram has admitted his presence on the spot.
(49) It has also been argued that alleged recoveries are planted one and that nothing was recovered from the accused persons or at the instance of accused persons. I have carefully gone through the testimonies of witnesses examined by the prosecution. PW 9 Rita Kural has specifically deposed that offenders had left a blood stained chura near hand pump which was seized by the police . She has further deposed that police seized two slippers of different pairs, two handkerchiefs & one pocket of shirt of one of those offenders which was also torn in the incident and the same was found fallen near stairs and the same was seized by the police.
Further, it has also been proved on record by the prosecution witnesses that accused Mohd. Ilyas got recovered one ladies purse of brown colour which was found containing one key ring, one monogram of 'Vaishno', one invitation card Page 32 of 39 addressed to complainant Rita Kural, one piece of golden chain and cash of Rs. 1100/-. One chunni on the knot of which three coins were tied was also got recovered by accused Mohd. Ilyas. It has also been proved on record one ladies wrist watch was recovered from the possession of accused Asif whereas accused Miraj got recovered one shirt having red and black colour strips from the bushes and that pocket and front two buttons of the said shirt were found missing. Witnesses have further deposed that it was accused Asif who got recovered one slipper of 'Relaxo' hidden under the bushes near railway track. Prosecution witnesses have also deposed that accused Asif, Miraj & Shahin also got recovered daggers from different places. Further accused Salam Kaviraj got recovered one white shirt from the bushes one arm of which was missing and that shirt was having dark blood like stains on its front side. It has also been proved on record that accused Shahin led the police party to the shop of a Kabari at Village Gokulpur and got recovered one purse from an iron box kept in that shop and the said purse was Page 33 of 39 found containing some visiting cards, one pocket book of Hanuman Chalisa, one chunni of red colour & one wrist watch make 'Timestar' and these articles were taken into possession by the police. After perusing the testimonies of witnesses examined by the prosecution, I am not convinced with the contention of Ld. Counsel for accused persons that recoveries are planted one or that it was not got recovered by accused persons. Therefore, the contention of Ld. Counsel of accused persons is devoid of any merit.
(50) It has also been argued by Ld. Counsel for accused persons that no public witnesses was joined at the time of arrest of accused persons. As discussed above, accused Akram was overpowered by PW 9 Rita Kural and PW 19 Virender Kural at the spot whereas remaining accused persons were arrested on different dates separately. Simply because that public witnesses were not joined at the time of arrest of accused persons, the entire prosecution case cannot be thrown away. It is merely an irregularity on the part of the Investigating Officer and no benefit can be given to the accused persons on Page 34 of 39 this ground. It was held by the Apex Court in case State of UP vs Hari Mohan and ors 2000 VIII AD (SC) 389 (DB) that defective investigation cannot be made a basis for acquitting the accused if despite such defects and failures of the investigation, a case is made out against all the accused or any of them.
(51) Ld counsel for accused persons has pointed out some contradictions/discrepancies cropped up in the statements of witnesses. He has submitted that discrepancies go to the root of the matter and create serious doubt in the prosecution story.
(52) I have carefully gone through the testimonies of witnesses examined by the prosecution. It is true that there are minor contradictions in the testimonies of witnesses and I think such minor discrepancies are natural particularly when the witnesses are examined years after the incident. Moreover, it is well settled law that overmuch importance cannot be Page 35 of 39 given to minor discrepancies. Hence, the contention of Ld. Counsel for accused persons is devoid of any merit. (53) From the evidence available on record, prosecution has successfully proved on record that it was the accused persons who all in furtherance of their common intention committed house trespass by entering into house No. B-73, M.S. Park, Delhi in order to commit dacoity. It has also been proved on record that they conjointly committed dacoity and while committing the dacoity they also caused injuries to Surender Nath who succumbed to those injuries and died. Recovery of stolen articles from the possession of Mohd. Ilyas, Asif, Shahin & Miraj has also been proved on record. Recovered stolen property from the accused persons has been identified by PW 9 & 19 in the TIP proceedings. It has also been proved on record that when accused Salam Kaviraj @ Chuha tried to flee away, the dagger fell on the earth to which accused Miraj picked up and PW 19 tried to overpower him and in that effort, his right pocket of the shirt came in the hand of PW 19 and dagger slipped from his hand and fell Page 36 of 39 down on the earth . Further as per report Exb. PW 31/C, human blood has been detected on the dagger which was recovered from the spot. This clearly shows that said weapon was used in the commission of offence. One chance print was also found on the said dagger. Specimen finger prints of accused Miraj was also taken and was sent to Finger Print Bureau and as per report Exb. PW 17/B, chance print was found identical with the thumb impression of accused Miraj. Further cloth piece i.e. pocket of shirt and shirt got recovered by accused Miraj was sent to CFSL . As per CFSL report Exb. PW 24/1 & PW 31/A ,shirt and cloth piece were found to be similar and it was opined that torn piece of cloth was that of shirt got recovered by accused Miraj. Further sleeper of make 'Relaxo' recovered from the spot and the sleeper which was got recovered by accused Asif has been found to be similar as per the report Exb. PW 24/1. As per the report Exb. PW 31/C, blood was detected on the shirt got recovered by Salam Kaviraj and there is no explanation on the part of accused Salam Kaviraj as to how human blood was detected Page 37 of 39 on the shirt. Further accused Akram has failed to give any plausible explanation regarding his presence on the spot. These circumstances leads to a legitimate inference that it was the accused persons and none else who after entering into the house bearing No. B-73, M.S. Park committed dacoity and caused injuries to Surender Nath Kural who lateron succumbed to those injuries and died. Recovery of stolen property from the possession of accused persons namely Ilyas, Asif & Shahin has been proved on record. It has also been proved on record that accused persons namely Miraj, Shahin & Asif got recovered dagger used in the commission of offence. Accused persons as well as case property has been identified by the witnesses in the court. (54) Keeping in view the aforesaid facts & circumstances of the case, I am of the opinion that prosecution has successfully proved its case against the accused persons. Consequently, all the accused persons are convicted for the offence punishable U/s 449/34 & 396 IPC. Accused persons namely Illyas, Shahin & Asif are also held guilty U/s 412 IPC. Page 38 of 39
Accused Miraj, Shahin & Asif are also held guilty U/s 27 Arms Act. Let the accused persons be heard on the point of sentence.
Announced in Open court (RAJ PAUL SINGH TEJI) on 25.01.2010 ADDL.SESSIONS JUDGE (FTC) KARKARDOOMA COURTS: SHAHDRA Page 39 of 39