Delhi District Court
State vs . (1) Jahangir @ Ikka @ Ibrahim on 9 August, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 31/2011
Unique Case ID: 02404R0163782011
State Vs. (1) Jahangir @ Ikka @ Ibrahim
S/o Abdul Hakeem
R/o Village : Moralganj
PS : Bagarghut, Distt.: Khulva,
Bangladesh.
(Convicted)
(2) Mohd. Kareem @ Rahul
S/o Abdul Kadim
R/o Village : Moralganj
PS : Bagarghut, Distt.: Khulva,
Bangladesh.
(Convicted)
(3) Jagdish @ Lachhu
S/o Beenu Das
R/o Village Shakra,
PS Garpura, Distt.: Begusarai
Bihar. : (Acquitted)
FIR No. : 41/2011
Police Station : Ashok Vihar
Under Section : 395/397/34 Indian Penal Code
Date of committal to Sessions Court : 30.07.2011
Date on which orders were reserved : 05.07.2012
Date on which judgment pronounced : 25.07.2012
FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 1 of 92
JUDGMENT
Brief Facts:
(1) As per the allegations, on 08.02.2011, between 3:00 AM to 3.30 AM, at House No. E39, Phase1, Ashok Vihar, Delhi, the accused Jahangir @ Ikka @ Ibrahim, Mohd. Kareem @ Rahul and Jagdish @ Lachhu, in furtherance of their common intention, entered in the house of Smt. Raj Kumari W/o Devender Pal and committed robbery of one Mangalsutra, one mobile phone make Nokia having number 7838428736 and caused injury on the wrist of right hand, right ear and left thumb of Smt. Raj Kumari and on the right wrist and scalp of her son Gaurav. Further, while committing the said robbery, the accused Jahangir @ Ikka @ Ibrahim used a country made pistol / desi katta, the accused Kareem used a knife while the accused Jagdish allegedly used a rod and after committing the robbery, they fled from the spot.
Case of prosecution in brief:
(2) The case of the prosecution in brief is that on 8.2.2011 the Duty Officer of Police Station Ashok Vihar received a call from Police Control Room, West District, at about 3.45 AM, regarding dacoity at House No. E39, Ashok Vihar PhaseI, which call was reduced into writing vide DD No. 7A and was marked to ASI Om Pal Singh. Thereafter, ASI Om Pal Singh along with Ct. Ashok Kumar FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 2 of 92 reached at the spot and came to know that the injured had already been shifted to Bara Hindu Rao Hospital. ASI Om Pal reached at Hindu Rao Hospital and collected the MLCs of the injured namely Raj Kumari and Gaurav. Thereafter, ASI Om Pal recorded the statement of complainant / injured Raj Kumari, who informed them that she was residing at House No. E39, Ashok Vihar PhaseI, on rent along with her family and on 8.2.2011 at about 3 to 3:30 AM, she along with her family was sleeping in the house. According to the complainant, while she, her husband Devender Pal and son Gaurav were sleeping in one room, her daughter Nisha and Disha were sleeping in another room, when suddenly her daughters raised an alarm on which she, her husband and son wake up and saw that 6 to 7 persons had entered in their room and on seeing those boys, they (victims) raised alarm. She further told the police that one of the boys snatched her earrings while there was scuffle between her, her husband and son on one side with the assailants on the other side. Raj Kumari further told the police that assailants were having knives and were making threatening gestures to them not to raise any alarm.
However, during the scuffle, her son sustained knife injury on the wrist of his right hand and head while she sustained knife injuries on her left hand and also on her right ear when the accused snatched her earrings. She further told the police that thereafter the assailants ran away from the spot and when they (victims) searched their household FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 3 of 92 goods, they found that the assailants had taken away her Mangalsutra, her earrings and mobile phone make Nokia containing SIM No. 7838428736.
(3) On the basis of the above statement of the Raj Kumari, rukka was prepared and FIR was registered and investigations were initiated. During the course of investigations, an information was received by the investigating officer from Police Station Anand Vihar regarding the arrest of three boys namely Jahangir @ Ikka @ Ibrahim, Mohd. Kareem @ Rahul and Jagdish @ Lachhu, in another case who had disclosed their involvement in the present case. Pursuant to the same, they were formally arrested in this case. After completing the investigations, the charge sheet was filed in the court. CHARGE:
(4) Charge under Section 395/397/34 Indian Penal Code were settled against the accused Jahangir @ Ikka @ Ibrahim, Mohd.
Kareem @ Rahul and Jagdish @ Lachhu to which they pleaded not guilty and claimed trial.
EVIDENCE:
(5) In order to discharge the onus upon it, the prosecution has examined as many as twenty two witnesses FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 4 of 92 Public Witnesses:
(6) PW5 Raj Kumari has deposed that on 08.02.2011 she along with her family members were sleeping in the house.
According to the witness, while she, her husband and her son Gaurav were sleeping in one room, her daughters Nisha and Disha were sleeping in other room. She has deposed that at about 3:30 AM, she heard cries of her daughters on which she, her husband and her son Gaurav got up, when they found 6 to 7 boys in their house and on seeing them, they also raised an alarm. The witness has deposed that one of the boys snatched the bali (earrings) from her ear and when she objected, they all started beating them (victims). According to her, those boys were having knives in their hands and were making threatening gesture towards them (victims) to keep quite by showing the knives. The witness has deposed that there was scuffling between her son, husband on one side and these boys on the other side. She has further deposed that one of those boys, gave a cut on the right hand of her son Gaurav while he also sustained injuries on his head. She has further deposed that one of those boys, gave a knife blow on her left hand after which they all (victims) started crying on which those boys ran away from the spot. The witness has further deposed that thereafter when they checked their households, she found that the said boys had taken away her Mangulsutra and one mobile phone make NOKIA. According to the witness, some public persons FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 5 of 92 from nearby houses collected there and one of them made the call to the police on which PCR came and took her and her son Gaurav to hospital where they were medically examined though she does not recollect the name of that hospital. According to the witness, her statement was recorded by the investigating officer vide Ex.PW5/A. The witness has further deposed that one blood stained bed sheet and cover of quilt were taken by the investigating officer. According to the witness, she had also gone to Tihar Jail to participate in TIP proceedings but she could not identify the assailants. (Here I may note that she was unable to identify the accused Jagdish while Jahangir and Mohd. Kareem had refused to participate in the Judicial Test Identification Parade proceedings).
(7) The witness has correctly identified all three accused namely Jahangir Ikka @ Ibrahim, Mohd. Kareem @ Rahul and Jagdish @ Lachi in the court as the persons who were having knives and were threatening them (victims) on the point of knives. The witness has identified the case property i.e bed sheet Ex.P1 and cover of quilt as Ex.P2.
(8) In her crossexamination, the witness has deposed that there were four rooms in their house and if somebody came to their house, their room fell first. According to the witness about four to five boys entered in the room of their daughters and at the same time those boys also entered their room. The witness has deposed that the FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 6 of 92 accused persons snatched her bali (earring) from her left ear but she is unable to tell whether the person who had snatched her earring and mangalsutra is one amongst the accused so present in the court and has voluntarily explained that she was scared and perplexed at that time since all the accused were carrying knives and were asking her to keep shut and not to make any noise. She has denied the suggestion that she is unable to identify the said accused because the accused before this court were not present at the time of the incident and has voluntarily added that she had seen all of them in her house duly armed with knives by which they had threatened her. She has admitted the suggestion that the earring which the accused had snatched was later found lying in her house and has voluntarily explained that it has been dropped by the accused. The witness has further deposed that she did not receive any injury on her ear when the earring was snatched and has voluntarily explained that she had received injuries on her other ear on which the knife blow was inflicted. According to the witness, her neighbours had made the call to the PCR but she is unable to tell their names and has explained that they had now left the area. The witness has deposed that she was taken to Ram Manohar Lohia hospital by the PCR Van for her treatment and the police had recorded her statement after which she had returned home.
FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 7 of 92 (9) On the asking of the Court whether the police had interrogated her while they were taking her to the hospital, the witness has replied that it was after two days that her statement was recorded. According to the witness she did not recollect having signed any documents. She has stated that she told the police that one of the boys was also armed with a desi katta but when the witness was confronted with her statement Ex.PW5/A this fact is not found mentioned. The witness however states that the three accused who were present in the court were only having knives. The witness has deposed that she had also gone to the Tihar Jail for identification of the accused persons. She has admitted that in the jail she could not identify the accused Jahangir Ikka, Jagdish and Mohd. Karim. (Court Observation: Jahangir and Mohd, Karim had refused to participate in the Test Identification Parade and Jagdish could not be identified). Witness has denied the suggestion that she had identified the accused in the court after they had been shown to her by the investigating officer and it is for this reason she could not identify them earlier. She has further denied the suggestion that the accused were not the persons who had entered her house to commit robbery or that she had falsely implicated them. According to the witness, the mobile phone which had been taken away by the robbers was belonging to her and has voluntarily explained that she was using the same but she is unable to tell in whose name it was FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 8 of 92 purchased. She does not recollect the mobile number which she was using and has further denied the suggestion that no mobile phone was taken away by the robbers and she was making a false statement in that regard.
(10) PW7 Devender Pal Singh has deposed that he is residing at E39, Ashok Vihar, PhaseI, Delhi with his family for the last one and a half years and is doing a private job at Vidya Metal Manufacturing Company Pvt. Ltd. at Central Market at the post of Executive Administrative. He has further deposed that on 08.02.2011 at about 3.00 to 3.30 AM, he along with his wife were sleeping in one room whereas in another room his son and daughters Disha and Nisha were sleeping. According to the witness, he suddenly woke up and heard the cries of his daughters and felt that somebody had put barrel of the country made pistol in his mouth and he noticed that there were 6 to 7 boys in their room and one of them had put the barrel of country made pistol in his mouth and was threatening him not to raise any alarm and he could hear his children's shouting and saw that one person was grappling with his son and hit him with the knife in his hand.
(11) The witness has identified the accused Jahangir in the court as the person who was having a country made pistol in his hand which he put inside his mouth. He has also identified the accused Mohd. Kareem in the court as the person who was having a knife in FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 9 of 92 his hand and inflicted injuries on his son and Jagdish as the person who was carrying a iron rod of about 1 to 1.25 ft. and was present along with other assailants. The witness has further explained that the person who had snatched mangalsuter from the neck of his wife, was not amongst the accused persons named in the present case. (12) The witness has deposed that the accused persons robbed mangalsuter and earrings from his wife and one mobile phone make Nokia but due to scuffling the earrings of his wife had dropped on the floor which they recovered later on. According to the witness, after committing the robbery the accused persons fled away from the spot and has explained that when they (victims) raised an alarm, their neighbours gathered there and one of them made a PCR call pursuant to which PCR Van came to the spot who took him, his wife and son to Bara Hindu Rao Hospital where his wife and his son were medically treated as they were having injuries whereas he himself had not received any external injuries. According to the witness, he met ASI Om Pal at Bara Hindu Rao Hospital and returned with him to his house where his his statement was recorded by ASI Om Pal who also took into possession the cover of the quilt, the bed sheet both having blood spots and also the cartridge lying on the floor in the gallery which he sealed and seized in his presence. (13) The witness has further deposed that he had also gone to Central Jail Tihar and participated in the Judicial Test Identification FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 10 of 92 Parade proceedings but he could not identify the accused Jagdish as he was very disturbed and perplexed at that time. The witness has deposed that on 30.05.2011, he had received summons from the court of Sh. S.K. Sarvaria, Ld. District Judge, Rohini, during the hearing of the bail application, where he appeared and identified one of the accused whose name he came to know as accused Jagdish. According to the witness, on 08.06.2011 he had come to Rohini Court for his personal work and while he was passing by the side of the court of Sh. Bhupender Singh Ld. MM, he saw the accused persons in the custody of the police and at that time he pointed out towards the accused whom he identified in the court i.e. accused Kareem and Jahangir as the person who had come to his house and committed robbery and assaulted his family with arms. The witness has identified the case property i.e. bed sheet Ex.P1 and the quilt cover Ex.P2. He has also identified the cartridge which was recovered from the spot which is Ex.P3.
(14) In his crossexamination, the witness has deposed that he had four rooms in his home and the room at the end was occupied by his daughters. According to him, it was at about 3 to 3.30 AM, that his daughters raised an alarm. He has explained that there was totally darkness in the rooms of his house and he had switched on the tube light of his room. According to the witness, there were 4 to 5 FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 11 of 92 persons in his room. He does not remember the number of the phone which was taken away and has explained that the number was in his name which was being used by by his wife. The witness has further deposed that they had spent about 3 to 4 hours in the hospital during medical examination of his wife and son at Bara Hindu Rao Hospital and reached at home at about 9.30/10.00 AM. He does not recollect the date when he visited the Tihar Jail for Judicial Test Identification Parade proceedings and has admitted the suggestion that he did not identify the accused Jagdish in Judicial Test Identification Parade proceedings. He has denied the suggestion that the accused persons were not present on 08.02.2011 in his home at the time of robbery. The witness has deposed that he had come in the Court on 08.06.2011 in connection with his challan of two wheeler scooter. He does not recollect the registration number of his scooter but has explained that the challan was made by the police officials at the red light. He is unable to recollect the exact spot where he challaned by the police officials and also does not recollect the cause of challan and adds that the penalty of challan was of Rs. 500/. He does not remember which document was seized by the police at the time of challan. He has denied the suggestion that he did not come to court on 08.06.2011 or that he did not identify the accused in the court. He has further denied the suggestion that the statement recorded on 08.06.2011 was at in the police station and not in the court complex. FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 12 of 92 He does not know whether the round was live or used. He has denied the suggestion that the accused persons were present at the spot. He further denied the suggestion that he is identifying the accused persons on the asking of police officials.
(15) PW8 Anil Kumar Aggarwal has deposed that he is a bank employee. According to him, on 08.02.2011, at about 3.30 to 4.00 AM (in the intervening night), he woke up when his neighbours rang the bell of his house and when he came out, he was told by his neighbour that thieves had entered the house of his neighbour Devender Pal at E37, Ashok Vihar, PhaseI and had also done marapiti with his wife and son. According to the witness, he noticed that the grill of the window of his house was also broken. He noticed that PCR Van had also come and taken the injured to the hospital. This witness has not been crossexamined on behalf of the accused and his testimony has gone uncontroverted.
(16) PW12 Disha is the daughter of the complainant and has deposed that she is residing at E39, PhaseI, Ashok Vihar along with her parents and her younger brother and is doing B. Com Final from Delhi University. According to the witness, on 08.02.2011 at about 3.00 to 3.30 AM, she was sleeping in her room along with her sister Nisha whereas her brother and parents were sleeping in another room. The witness has deposed that, she suddenly felt some movement in the house and she woke up when she noticed two FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 13 of 92 persons carrying pistol and knife had entered her room. According to the witness, she immediately raised an alarm on which they caught hold of her and dragged her to the adjoining room where her parents and brother were sleeping. According to the witness, there she noticed that there were more persons and her parents and brother had also been caught by them while one of them was grappling with her brother when in the meanwhile her sister also woke up and started raising an alarm. The witness has deposed that those persons snatched the earring and mangalsutra of her mother and also the mobile which was lying in their room. The witness has further deposed that due to the scuffle, one of the earrings of her mother had fallen on the floor which they recovered later on. According to the witness, after committing the robbery, the accused persons fled away from the spot. The witness has deposed that her neighbours gathered at the spot when she raised an alarm and somebody made a PCR call. According to the witness, her parents and brother were taken to the hospital by the police but she and her sister remained at home. The witness has deposed that the police also took into possession the cover of the quilt, the bed sheet both having blood spots which were sealed and seized in her presence. She is unable to identify any of the assailants as she had not seen them properly. She has identified the case property i.e bed sheet Ex.P1 and the quilt cover Ex.P2. FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 14 of 92 (17) In her crossexamination, this witness has deposed that she cannot tell whether the present accused persons were amongst the persons who had entered their house and assaulted her family and has voluntarily explained that it was dark at night when they entered and she could not see their faces properly.
(18) PW13 Nisha is also the daughter of the complainant and has deposed that she is residing at E39, PhaseI, Ashok Vihar along with her parents and her younger brother and is doing B. Com (Second Year) from Hansraj College, Delhi University. According to the witness, on 08.02.2011 around 3.30 AM, she was sleeping in her room along with her sister Disha whereas her brother and parents were sleeping in another room. The witness has deposed that she suddenly heard her sister screaming and when she woke up she noticed the blinking of the lights of mobiles. She also noticed that her sister was not in the room and lots of noises were coming from the adjoining room where her parents and brother were sleeping. The witness has deposed that when she went to that room, she noticed that her brother had received some injuries and her mother was also bleeding from the ears and there were 6 to 7 persons in the said room who were threatening her family. On seeing this, she started screaming and raised an alarm. The witness has deposed that those persons snatched the earring and mangalsutra of her mother and also the mobile phone which was lying in their room. The witness has FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 15 of 92 further deposed that due to the scuffle, one of the earrings of her mother had fallen on the floor which they recovered later on. The witness has further deposed that after committing the robbery those persons fled from the spot. According to the witness when they raised an alarm, their neighbours gathered there and somebody made a PCR call after which the PCR Van reached there who took her parents and brother to the hospital but she and her sister remained at home. The witness has deposed that the police took into possession the cover of the quilt, the bed sheet both having blood spots which were sealed and seized in her presence. The witness has identified the case property i.e bad sheet and cover of quilt Ex.P1 and Ex.P2. She could not identify any of the assailant as she had not seen them properly.
(19) In her crossexamination, this witness has deposed that she cannot tell whether the accused persons were amongst the persons who had entered their house and assaulted her family and has voluntarily explained that it was dark at night and she was very scared due to which reason she could notice anything.
(20) PW14 Gaurav Pratap Singh is the son of the complainant who has deposed that he is residing at E39, PhaseI, Ashok Vihar along with his parents and two sisters and is a student of Class 10th in Government Boys Secondary School, Rajouri Garden. According to the witness, on 08.02.2011 at about 3.00 to FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 16 of 92 3.30 AM, he along with his parents were sleeping in one room whereas his sisters Disha and Nisha were sleeping in another room. The witness has deposed that he suddenly heard some noises (shor hua tha) and heard the cries of his sister on which he woke up and immediately somebody switched on the lights of their room and two to three persons surrounded him and his parents. According to the witness, on this he caught hold of the neck of one of these persons but that person gave him a knife blow on his right hand. Here I may observe that even in the court it was observed that there was a slash injury still visible on the right hand around the wrist of the witness. Witness has further deposed that his mother intervened to save him but those persons snatched her earrings and mangalsutra. The witness has also deposed that they (assailants) were 6 to 7 boys who had entered his house and were assaulting his family while his sisters were raising a hue and cry.
(21) The witness has deposed that the accused persons robbed mangalsuter and earrings from his mother and one mobile phone make Nokia but due to scuffling the earrings of his mother had fallen on the floor which they recovered later on. The witness has further deposed that after committing the robbery, the accused persons fled away from the spot. According to the witness when they raised an alarm, on which their neighbours also gathered at the spot and one of them made a PCR call and the PCR official came there and took him FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 17 of 92 and his parents to Bara Hindu Rao Hospital where he and his mother were medically examined. The witness has deposed that he returned to his house after the treatment on the same day and his statement was recorded by the investigating officer. According to him, the police took into possession the cover of the quilt, bed sheet both having blood spots and also the cartridge which was lying on the floor in the gallery which was sealed and seized in his presence. (22) According to the witness, he had also gone to Tihar Jail and participated in the Judicial Test Identification Parade Proceedings but he could not identify the accused on account of passage of time. The witness has identified the case property i.e bed sheet Ex.P1 and the quilt cover Ex.P2 and the used cartridge Ex.P3. (23) In his crossexamination, the witness has deposed that he cannot tell whether the present accused persons were amongst the persons who had entered his house and assaulted his family and has voluntarily explained that he was very scared and perplexed at that time.
(24) PW16 Nirmal Singh is the neighbour of the complainant who had made a all to the police. He has deposed that earlier in the month of February 2011, he was residing at E39, First Floor, Ashok Vihar, Phase I, Delhi. According to him, in the intervening night of 7/8.02.2011, at about 3.30 AM, he was present at his house when he heard some noise from the ground floor where Devender Pal was FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 18 of 92 residing with his family members and they saw that four persons were running from the house of Devender Pal towards the nearby park however he could not see their faces. According to the witness, he immediately called the police at 100 number by his mobile phone number 9810907377 and police immediately reached there and took the wife and one child of Devender Pal to the hospital was were injured. This witness has not been cross examined on behalf of the accused persons and his testimony has gone uncontrovered. Medical Evidence:
(25) PW6 Dr. Bhupender Partap Bharti has deposed on behalf of Dr. Vardhman Jain. According to him, as per record on 08.02.2011 Dr. Malti Madhu examined the injured Raj Kumari and Gaurav vide MLCs vide Ex.PW6/A and Ex.PW6/B. He has deposed that Dr. Vardhman Jain was also working in the said Hospital as EMO, Orthopaedics who had given the opinion of injury as Simple on both the MLCs at point A. The witness has identified the signatures of Dr. Vardhman on MLCs at point B as he is well conversant with the handwriting and signature of Dr. Vardhman Jain having seen him while writing and signing in due course of his official duty. This witness has not been crossexamined on behalf of the accused and his testimony has gone uncontroverted. FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 19 of 92
Police/ Official Witnesses:
(26) PW1 ASI Prem Chand is a formal witness and has been examined by way of affidavit in terms of the provisions of Section 296 Cr.PC which affidavit is Ex.PW1/1. According to the witness, on 11.3.2011 he was working as duty officer and on the basis of the telephonic message received from SI Vijay Kumar of Police Station Anand Vihar, the DD No. 32 B was recorded copy of which is Ex.PW1/A regarding the arrest of the accused Jahangir, Mohd.
Kareem and Jagdish.
(27) In his crossexamination, the witness has deposed that the information was received from Police Station Anand Vihar on 11.03.2011 at about 12:0512:10 Noon and the said DD was not in his handwriting. He attended the call on telephone and conveyed the information to L/Ct. Kusum who was working as DD writer at that time. He has denied the suggestion that he did not receive any call from Police Station Anand Vihar or that the said DD was not recorded by L/Ct. Kusum.
(28) PW2 HC Mukesh Kumar is a formal witness and has been examined by way of affidavit in terms of the provisions of Section 296 Cr.PC which affidavit is Ex.PW2/1. According to the witness on 8.2.2011 he was working as MHC (M). He has proved the Entry No. 3335 of Register No. 19 copy of which is Ex.PW2/A, Entry No. 41/21/11 dated 06.06.2011 of Register No. 21 copy of FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 20 of 92 which is Ex.PW2/B. He also received the acknowledgment of FSL after getting the exhibits deposited at FSL copy of which acknowledgment is Ex.PW2/C. This witness has not been cross examined on behalf of the accused and the testimony of the witness has gone uncontroverted.
(29) PW3 Ct. Rajender is a formal witness and has been examined by way of affidavit in terms of the provisions of Section 296 Cr.PC which affidavit is Ex.PW3/1. According to the witness, on 6.6.2011 he received the case property of this case from the MHC (M) and deposited the same in the FSL vide RC No. 41/21/11 dated 6.6.2011 and after deposing the same at FSL, he handed over the RC to the MHC (M). He has not been crossexamined on behalf of the accused and the testimony of the witness has gone uncontroverted. (30) PW4 SI Surjeet Singh is a formal witness and has been examined by way of affidavit in terms of the provisions of Section 296 Cr.PC which affidavit is Ex.PW4/1. According to the witness on 8.2.2011 he was working as duty officer and on receipt of the Rukka at about 6.45 hrs. brought by Ct. Ashok, he registered the present FIR copy of which is Ex.PW4/B and also made endorsement on Rukka which is Ex.PW4/C. He also relied upon documents i.e. DD No. 9A which is Ex.PW4/A. FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 21 of 92 (31) In his crossexamination the witness has deposed that the DD No. 9A was in his hand writing but same were not signed by him. He has admitted that the FIR in this case was not signed by him. He has denied the suggestion that he did not get the said FIR recorded therefore his signatures were missing on the FIR. He has further denied the suggestion that his name has been mentioned by the investigating officer later on, as duty officer only to connect the accused with the said FIR. According to him, he took about 30 minutes in reducing the FIR into writing and handed over the copy of FIR and original rukka to Ct. Ashok at about 7:15 AM. (32) PW9 SI Devender Singh has deposed that on 08.02.2011 at about 4.30 AM, he received information from the control room to reach the House No. E39, PhaseI Ashok Vihar and when he reached the spot along with the team at about 5.00 AM, he met the SHO, IO and the other staff from Police Station Ashok Vihar. He inspected the spot and found blood on the floor, on the cover of the quilt and on the double bed sheet. He also found live cartridge near the door on which KF 8 MM was written. According to the witness, the photograph of the spot was taken by Ct. Parvinder and finger print proficient HC Vikas lifted four chance print.
(33) In his crossexamination, the witness has deposed that he did not prepare any report at the spot and has voluntarily explained that since the finger prints were lifted by HC Vikas, he prepared the FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 22 of 92 report.
(34) PW10 Ct. Parvinder has deposed that on 08.02.2011, he reached the spot i.e. E39, PhaseI, Ashok Vihar, along with Inchagre, Crime Team, SI Devender Singh and Finger Print Proficient HC Vikas. According to the witness, on the directions of Incharge, Crime Team and the SHO / IO, he took the photographs of the spot which are Ex.PW10/A1 to PW10/A16 and the negatives of the same are Ex.PW10/B (collectively). The witness has deposed that he had taken total 18 photographs out of which two were washed out. This witness has not been crossexamined on behalf of the accused and his testimony has gone uncontroverted. (35) PW11 Ct. Ashok Kumar has deposed that on 08.02.2011 he was posted as constable at police station Ashok Vihar. According to him, in pursuance to the PCR call received vide DD No. 7A Ex.PW4/A, he along with ASI Om Pal Singh reached E39, PhaseI, Ashok Vihar, where they found a large number of persons had gathered and when they entered the house, he found blood splashed over the floor, bed sheet, quilt and also noticed a round / cartridge in the gallery. According to the witness, they also came to know that the injured had been shifted by the PCR to Hindu Rao hospital. The witness has deposed that ASI Om Pal Singh left him at the spot for guarding the place of the incident and went to Hindu Rao Hospital. According to the witness after about one hour 45 minutes ASI Om FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 23 of 92 Pal returned to the spot and prepared a teharir Ex.PW5/A and handed over the same to him (witness) for registration of the cases. The witness has deposed that he took the tehrir to the police station and handed over the same to the Duty Officer who after registration of the case handed over the copy of the FIR Ex.PW4/B and the original tehrir to him which he brought back to the spot and handed over to ASI Om Pal Singh. The witness has deposed that the Crime Team also reached the spot who took the photographs and lifted the chance prints and thereafter, ASI Om Pal Singh took into possession the blood stained bed sheet, cover of the quilt and converted the same into a pullanda with the help of polythene and white cloth and sealed the same with the seal of OPS. According to the witness, the empty cartridge was also picked up and prepared khakha / sketch of the same which Khakha is Ex.PW11/A and thereafter measured the same and it was found to be 7.5 CM with the words KF. 8 mm written on it. The witness has deposed that the cartridge was converted into a pullanda and sealed with the seal OPS and seizure memo of the same was prepared. The witness has deposed that the seizure memo of the bed sheet and the quilt cover is Ex.PW11/B and the seizure memo of empty cartridge is Ex.PW11/C and the seal after use was handed over to him. According to the witness, thereafter, he accompanied ASI Om Pal for the search of the accused but they could not find. This witness has identified the case property FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 24 of 92 i.e bed sheet Ex.P1, quilt cover Ex.P2 and used cartridge EXP3. (36) In his crossexamination, this witness has deposed that they had received the information at about 3.45 AM and reached the spot at about 4.00 AM, on foot. The witness has deposed that when they reached the spot around 10 to 15 persons were present there but he is unable to tell whether the persons from the victim family were present there or not. He is also unable to tell the name of any public person who was present at the spot and has explained that he did not inquire about the same. He is not aware if any of the person present there were eye witnesses or not and has voluntarily explained that only IO can tell as he was making inquiries. He has denied the suggestion that he did not reach the spot along with ASI Om Pal and is therefore unable to tell the details of the investigation. He has also denied the suggestion that all the documentation was done while sitting in the police station which he signed on the directions of the investigating officer and has voluntarily added that it was done at the spot of the incident. The witness has deposed that the round / cartridge was found in the gallery. He has deposed that there was no injured present at the spot and the injured had returned back from the hospital along with investigating officer at about 5.45 to 6.00 AM. According to him, his statement was recorded on 08.02.2011 at about 5.00 PM. He has denied the suggestion that his statement was recorded on 09.02.2011. Witness was confronted with statement FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 25 of 92 Ex.PW11/DX1 showing that it was recorded on 09.02.2011 and not on 08.02.2011.
(37) PW15 Bhim Singh Rawat, (Court Ahlmad) has brought the record pertaining to the case under the title 'State Vs. Mohd. Kareem etc.' bearing FIR No.76/2011 under Section 399/402/34 IPC read with Section 25/54/59 Arms Act Police Station Anand Vihar. The arrest memo of the accused Jagdish @ Lachchi S/o Binu Dass is Ex.PW15/A (Original of which is seen and returned), his personal search is Ex.PW15/B (Original of which is seen and returned) and his disclosure is Ex.PW15/C (Original of which is seen and returned). The arrest memo of the accused Jahangir S/o Abdul Hakim is Ex.PW15/D (Original of which is seen and returned), His personal search is Ex.PW15/E (Original of which is seen and returned) and his disclosure is Ex.PW15/F (Original of which is seen and returned). The arrest memo of the accused Mohd. Kareem @ Rahul S/o Abdul Kadir is Ex.PW15/G (Original of which is seen and returned), his personal search is Ex.PW15/H (Original of which is seen and returned) and his disclosure is Ex.PW15/I (Original of which is seen and returned). The rukka in the said case is Ex.PW15/J and the FIR is Ex.PW15/K (Original of which is seen and returned). The seizure memo of the country made pistol recovered from possession of accused Jahangir in the said case is FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 26 of 92 Ex.PW15/L (Original of which is seen and returned), seizure memo of the iron rod recovered from the possession of accused Jagdish in this case is Ex.PW15/M (Original of which is seen and returned) and seizure memo of the knife recovered from the accused Kareem in this case is Ex.PW15/N. (Original of which is seen and returned) (objected to by the Ld. Defence counsel with regard to the mode of proof). This witness has not been cross examined on behalf of the accused persons and his testimony has gone uncontroverted. (38) PW17 SI Vijay Kumar has deposed that on 10.03.2011, he was posted at police station Anand Vihar. According to the witness, on the intervening night of 9/10.03.2011 at about 12.05AM (midnight), the investigations of case FIR No. 76/11 U/s 399/402 IPC and Section 25 Arms Act and Section 14 Foreigners Act of Police Station Anand Vihar was marked to him for further investigations. The witness has deposed that he along with Ct. Ismile reached near G. D. Goenka Public School, Birla Lane, near Karkardooma Metro Station. According to the witness, SI Bhim Sen, SI K K Sharma, ASI Shahid Ali, ASI Shahid Khan, HC Umesh, HC Rajiv, HC Ved Pal, Ct. Sukhbir, Ct. Jag Sharan and two more constables met him there. The witness has deposed that SI Bhim Sen produced before him four accused namely Jahangir @ Ekka, Mohd. Kareem @ Rahul, Jagdish and Shafigul along with four pullandas in FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 27 of 92 sealed condition with the seal of BS containing allegedly recovered weapons from the above said accused persons. According to the witness, he prepared the site plan at the instance of SI Bhim Sen and interrogated the above said accused persons and thereafter arrested accused Jagdish vide Ex.PW15/A and took his personal search vide Ex.PW15/B and recorded his disclosure statement vide Ex.PW15/C. The witness has deposed that accused Jahangir @ Ikka was arrested vide Ex.PW15/D, his personal search was conducted vide Ex.PW15/E and his disclosure statement was recorded vide Ex.PW15/F. The witness has deposed that he also arrested the accused Mohd. Kareem vide Ex.PW15/G and took his personal search vide Ex.PW15/H and recorded his disclosure statement vide Ex.PW15/I. The witness has further deposed that he also arrested the accused Shafigul Islam vide Ex.PW17/A and took his personal search vide Ex.PW17/B. (39) According to the witness, the accused Jahangir @ Ikka and Jagdish disclosed that about one month before, they had committed dacoity at a house at Ashok Vihar PhaseI, Delhi along with his other associates. The witness has further deposed on this he immediately informed Police Station Ashok Vihar about the arrest and disclosure of accused Jahangir, Mohd. Kareem and Jagdish. Thereafter, the officials of Police Station Ashok Vihar obtained the FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 28 of 92 photocopies of the documents of case FIR No. 76/11, Police Station Anand Vihar from him. According to the witness, during the investigations, 17 mobiles (without battery), two TV, one commercial cylinder, five house breaking instruments, one Axe and four dagger type knives were recovered from the house of Jahangir @ Ikka at his instance vide Ex.PW17/C. The witness has further deposed that thereafter he was transferred from the Police Station Anand Vihar and the investigations of this case was handed over to some other officer. The witness has correctly identified the accused persons in the court.
(40) In his crossexamination, this witness has deposed that he had reached the G D Goenka Public School at about 12.15 AM (midnight). The witness has further deposed that no public person was present when he recorded disclosure statements of the accused. The witness has further deposed that the information regarding arrest of Jagdish was given to one lady who was a relative of Jagdish but he does not remember her name or her relationship with accused Jagdish. According to him, he informed police of Police Station Ashok Vihar on 10.03.2011 and DD was recorded at Police Station Anand Vihar as well as Ashok Vihar but he does not remember the number of both the DDs. He has denied the suggestion that the accused persons were not arrested at the place as deposed by him in his examination in chief. He has further denied the suggestion that FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 29 of 92 accused Jahangir, Mohd. Kareem and Jagdish were lifted from their respective houses or that they were falsely implicated in case FIR No. 76/11 of PS Anand Vihar. He has further denied the suggestion that the accused persons did not make any disclosure statement to him or that they put their signatures or thumb impressions at the police station after fabricating their disclosure statement. (41) PW18 SI Shahid Khan has deposed that on 09.03.2011 he was posted at Police Station Anand Vihar as ASI and on that day at about 7.45 PM, he along with SI Bhim Sen, SI K K Sharma, ASI Shahid Ali, HC Umesh, HC Manoj, HC Rajiv, HC Ved Pal, Ct. Sukhbir, Ct. Jag Sharan, Ct. Birbal, reached at Birla Lane, near Metro Piller No. 137, near Karkardooma Metro Station, after receiving the secret information. According to the witness, they apprehended four persons from there while they were assembling for commission of dacoity and were making preparation of commission of dacoity but three of them ran away from there. The witness has deposed that he apprehended Mohd. Kareem and one buttondar knife was recovered from his possession. The witness has further deposed that the accused Jahangir was apprehended by SI Bhim Sen and HC Umesh and one loaded katta and one live cartridge were recovered from his possession. According to the witness, the Accused Jagdish was apprehended by ASI Shahid Ali and one iron rod was recovered from his possession. He has further deposed that the accused FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 30 of 92 Shafigul was apprehended by HC Manoj and one dagger was recovered from his possession. According to him, SI Bhim Sen conducted the proceedings and prepared the rukka, seizure memos and sketches of the weapons and on the basis of rukka FIR No. 76/11 U/s 399/402 IPC and Section 25 Arms Act and Section 14 Foreigners Act was registered at Police Station Anand Vihar. (42) The witness has also stated that SI Vijay conducted the further proceedings after registration of FIR and he arrested the accused persons in that case and took personal search of accused persons and he also recorded their disclosure statements after their interrogation. The witness has further deposed that SI Bhim Sen prepared the sketch of knife vide Ex.PW18/A and the same was seized vide Ex.PW15/N. According to the witness the accused Mohd. Kareem made a disclosure statement vide Ex.PW15/I and in their disclosure statements, the accused Jahangir @ Ekka, Jagdish and Mohd. Kareem had disclosed that they had committed a dacoity in the house at Ashok Vihar PhaseI one month before. The witness has correctly identified the accused Jahangir @ Ekka, Jagdish and Mohd. Kareem in the court.
(43) In his crossexamination, this witness has denied the suggestion that the accused persons were not arrested at the place as deposed by him in his examinationinchief. He has further denied the suggestion that the accused Jahangir, Mohd. Kareem and Jagdish FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 31 of 92 were lifted from their respective houses or that they were falsely implicated in case FIR No. 76/11 of PS Anand Vihar. He has further denied the suggestion the accused persons did not make any disclosure statement or that the investigating officer had compelled the accused to put their signatures or thumb impressions at the police station after fabricating their disclosure statements. (44) PW19 HC Umesh has deposed that 09.03.2011, he was posted at the Police Station Anand Vihar and on that day he departed from the police station at about 8.05 PM along with SI Bhim Sen, SI K K Sharma, ASI Shahid Ali, ASI Shahid Khan, HC Manoj, HC Rajiv, HC Ved Pal, Ct. Sukhbir, Ct. Jag Sharan, Ct. Birbal and Ct. Sudhir reached at Birla Lane, near Metro Piller No. 137, near Karkardooma Metro Station after receiving the secret information. According to the witness, they apprehended four persons namely Jahangir @ Ekka, Mohd. Karim, Jagdish @ Lachhu and Shafigul from there while they were assembled for commission of dacoity and were making preparation of commission of dacoity while three of them ran away. The witness has deposed that ASI Shahid Khan apprehended Mohd. Kareem and one buttondar knife was recovered from his possession; Jahangir was apprehended by him and SI Bhim Sen and one loaded katta and one live cartridge were recovered from his possession; Jagdish was apprehended by ASI Shahid Ali and Ct. Birbal and one iron rod was recovered from his possession while FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 32 of 92 Shafigul was apprehended by SI K K Sharma and HC Manoj and one dagger was recovered from his possession. The witness has further deposed that SI Bhim Sen conducted the proceedings and prepared the rukka, seizure memos and sketches of the weapons and on the basis of rukka FIR No. 76/11 U/s 399/402 IPC and 25 Arms Act was registered at PS Anand Vihar. The witness has further deposed that SI Vijay conducted the further proceedings after registration of FIR and he arrested the accused persons in that case and took personal search of the accused persons and he also recorded their disclosure statements after their interrogation. According to the witness, SI Bhim Sen also prepared the sketch of katta and two live cartridges vide Ex.PW19/A and the same was seized by SI Bhim Sen vide Ex.PW15/L. According to the witness, the accused Jahangir @ Ikka made a disclosure statement vide Ex.PW15/F and in their disclosure statements, the accused Jahangir @ Ekka, Jagdish and Mohd. Kareem, had disclosed about having committed a dacoity in the house at Ashok Vihar PhaseI about one month back. The witness has correctly identified the accused persons in the court. (45) In his crossexamination, this witness has deposed that the disclosure statements of the accused persons were recorded in the police station but he does not recollect the time. According to him, they reached at the police station at about 2.45 AM on 10.03.2011. He is not aware as to who was informed by the investigating officer FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 33 of 92 about the arrest of the accused persons in case FIR No. 76/11 of Police Station Anand Vihar. He has denied the suggestion that accused persons were not arrested at the place as deposed by him in his examinationinchief. He has denied the suggestion that accused Jahangir, Mohd. Kareem and Jagdish were lifted from their respective houses or that they were falsely implicated in case FIR No. 76/11 of PS Anand Vihar. He has further denied the suggestion that accused persons did not make any disclosure statement or that the investigating officer compelled the accused to put their signatures or thumb impressions at the police station after fabricating their disclosure statements.
(46) PW20 Ct Sunny Rana has deposed that on 31.03.2011 he along with Inspector Dharmender reached at Rohini Courts and the accused Jahangir, Mohd. Kareem and Jagdish were produced before the Court and one day Police Custody Remand of the accused persons was obtained after which accused persons were taken to BJRM Hospital for their medical examination. The witness has further deposed that on 01.04.2011 Inspector Dharmender Kumar interrogated the above said accused persons and accused Jagdish made his disclosure statement vide Ex.PW20/A and he made his disclosure statement vide Ex.PW20/B. The witness has further deposed that the accused Mohd. Kareem made his disclosure statement vide Ex.PW20/C and also pointed out the place of incident FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 34 of 92 E39, Phase I, Ashok Vihar, Delhi vide Ex.PW20/D. Further, the accused Jahangir @ Ikka also pointed out the place of incident E39, Phase I, Ashok Vihar, Delhi vide Ex.PW20/E while the accused Jagdish pointed out the place of incident E39, Phase I, Ashok Vihar, Delhi, vide Ex.PW20/F. The witness has deposed that after their medical examination, the accused were produced before the court and sent to judicial custody.
(47) In his crossexamination, this witness has deposed that the disclosure statements of the accused persons were recorded in the police station in the IO room but he does not remember the time. He has denied the suggestion that accused persons did not make any disclosure statement or that he put his signatures on the documents at the instance of the Investigating Officer. He has further deposed that no public person was asked to join the investigation by the Investigating Officer while accused persons pointed out the place of incident. He has admitted that the place of incident is a residential area but has denied the suggestion that the accused did not point out the place of incident or that he put his signatures on the pointing out memo at the instance of the Investigating Officer at police station which was prepared by him at the Police Station.
(48) PW21 ASI Om Pal Singh has deposed that on 07.02.2011 he was posted at police station Ashok Vihar and on the intervening night of 7/8.02.2011, he was on emergency duty from FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 35 of 92 8:00 PM to 8:00 AM. According to him, at about 3:45 AM, he received DD No.7A Ex.PW4/A about some dacoits having entered in the House No. E39, Phase I, Ashok Vihar, Delhi. The witness has deposed that thereafter he along with Ct. Ashok immediately reached there where public persons met him and he came to know that injured had already been taken to Hindu Rao Hospital by PCR Van. According to the witness, he found one live cartridge and some articles in scattered condition at the spot. He left Ct. Ashok at the spot while he himself went to Hindu Rao Hospital and collected MLC of the son and wife of Devender Pal. According to the witness, he recorded statement of wife of Devender Pal namely Raj Kumari vide Ex.PW5/A. Thereafter, he along with Devender Pal, his wife Raj Kumari and injured son reached at the place of incident and lifted the live cartridge from the spot and prepared the sketch of the same vide Ex.PW11/A and he took measurement of the cartridge which was found 7.5 cms long and thereafter it was taken into possession vide memo Ex.PW11/C. According to the witness, he also seized one blood stained bed sheet and quilt cover from the bed lying in the room of Devender Pal on the ground floor and he kept the bed sheet and quilt cover in a cloth pullanda and sealed the same with the seal of OPS and seized the same vide memo Ex.PW11/B. He has deposed that he prepared the rukka Ex.PW21/A and got the FIR registered through Ct. Ashok and thereafter he prepared the site plan FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 36 of 92 Ex.PW21/B at the instance of Raj Kumari and Devender Pal. The witness has deposed that on 08.03.2011, investigations of this case was handed over to Inspector Dharmender. On 23.03.2011 he along with Inspector Dharmender reached at Rohini Courts and accused Mohd. Karim, Jagdish and Jahangir @ Ikka were produced before the court in muffled faces on the production warrant. According to the witness, inspector Dharmender interrogated the above said accused persons with the permission of the court who disclosed that about 1 - 1 ½ months back they had committed dacoity at a Kothi at Ashok Vihar PhaseI with their other associates. The witness has deposed that thereafter Inspector Dharmender arrested the accused Mohd. Kareem, Jagdish and Jahangir vide memos Ex.PW21/C, Ex.PW21/D and Ex.PW21/E. The witness has further deposed that disclosure statement of accused Jagdish was recorded vide memo Ex.PW21/F, disclosure statement of accused Jahangir was recorded vide memo Ex.PW21/G and the disclosure statement of accused Mohd. Kareem was recorded vivde memo Ex.PW21/H. According to the witness, the investigating officer moved an application for Judicial TIP of accused persons. The witness has correctly identified the accused Jahangir, Mohd. Kareem and Jagdish in the court. He has also correctly identified case property i.e bed sheet Ex.P1 and the quilt cover Ex.P2. He has also identified one empty / fired cartridge FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 37 of 92 as Ex.P3. Witness has further deposed that the cartridge was live and the time of recovery.
(49) In his crossexamination, the witness has deposed that the cartridge was found by him in the gallery inside of the house of Devender Pal which was measured with the help of a plastic scale. He has also stated that he had recorded the statement of neighbours of Devender Pal regarding the incident. According to him, he reached at Hindu Rao Hospital at about 4.30 AM and also called the crime team officials but no chance prints were found at the spot. The witness has deposed that the disclosure statements of accused persons were recorded by the investigating officer in the Rohini Court Complex but no request was made to any public person to be the witness to the disclosure statement. He has admitted the suggestion that nothing was recovered from the accused persons in his presence. He has denied the suggestion that accused persons did not make any disclosure statement in his presence or that investigating officer obtained his signatures on a blank papers and fabricated the same as disclosure statement of accused persons.
(50) PW22 Inspector Dharmender Kumar has deposed that on 11.03.2011 he was posted at police station Ashok Vihar as Inspector Investigations and on that day investigation of this case was marked to him. According to him, on the same day he received DD No. 32B Ex.PW1/A about the arrest of accused Jahangir @ FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 38 of 92 Ekka, Mohd. Kareem and Jagdish by the police of police station Anand Vihar. The witness has deposed that he immediately reached at the police station Anand Vihar and collected the documents i.e. copy of FIR, sketches of weapons, seizure memos of weapons and disclosure statements of accused persons and the same are Ex.PW22/A (collectively) (total pages 18) of case FIR No. 76/11 U/s 399/402 IPC, 25 Arms Act and 14 Foreigners Act from SI Vijay, IO of that case. He also recorded the statement of SI Vijay and thereafter he returned back to the police station Ashok Vihar. The witness has deposed that on 14.03.2011 on his direction, ASI Om Pal Singh moved application for production of accused persons in this case. According to the witness, on 23.03.2011, he along with ASI Om Pal Singh reached at Rohini Courts and accused Mohd. Karim, Jagdish and Jahangir @ Ikka were produced before the court in muffled faces on the production warrant. He interrogated the above said accused persons with the permission of the court and they disclosed that about one or one and a half months before, they had committed dacoity at a Kothi at Ashok Vihar PhaseI with other associates. The witness has deposed that he thereafter arrested the accused Mohd. Kareem vide memo Ex.PW21/C; Jagdish was arrested vide Ex.PW21/D and Jahangir @ Ikka was arrested vide memo Ex.PW21/E. He also recorded their disclosure statements vide memos Ex.PW21/F, Ex.PW21/G and Ex.PW21/H. He moved an FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 39 of 92 application for Judicial TIP of accused which was fixed for 30.03.2011 and accused were sent to judicial custody in muffled face. (51) The witness has deposed that on 30.03.2011 the accused Jahangir and Kareem refused to take part in the Judicial TIP and the TIP of accused Jagdish failed as the victim could not identify him. Thereafter, on 31.03.2011, all three accused were produced before the court and one day police custody Remand was granted and thereafter accused persons were taken to BJRM Hospital for their medical examination. According to the witness, on 01.04.2011 he interrogated the above said accused persons and recorded their disclosure statements vide memos Ex.PW20/A, Ex.PW20/B and Ex.PW20/C. He also prepared the pointing out memo of the spot i.e. E39, Phase I, Ashok Vihar, Delhi, at the instance of the accused persons which memos are Ex.PW20/D, Ex.PW20/E and Ex.PW20/F. The witness has deposed that during investigations, he collected photographs and opinion of the doctors about injuries and recorded statement of the witnesses. The witness has further deposed that on 06.06.2011 the seized cartridge was sent to FSL Rohini through Ct. Rajender and after completion of investigation he submitted the charge sheet against accused Jahangir @ Ekka, Jagdish and Mohd. Karim. The witness has further deposed that he collected ballistic expert report Ex.PW22/B and thereafter submitted charge sheet against the accused persons. He has correctly identified the FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 40 of 92 accused Jahangir, Mohd. Kareem and Jagdish in the court. (52) In his crossexamination, this witness has deposed that he had made departure entry at police station Ashok Vihar for going to police station Anand Vihar but he does not remember the said DD number nor he had submitted that DD entry with the charge sheet. According to him, he recorded disclosure statement of the accused persons outside of the court room at Rohini Courts Complex but did not ask any public person to join the police proceedings at that time. He admits that no recovery was effected in his presence. According to the witness, the accused persons were taken to the spot at about 10.0011.00AM on 01.04.2011 and that the second disclosure statement of the accused persons were recorded at the police station at about 7.008.00AM on 01.04.2011 when no public person was joined in the investigations. The witness has deposed that the pointing out memos were prepared at the spot but he did not joined any public person at the time of preparing of pointing out memos. The witness has denied the suggestion that the accused persons did not make any disclosure statement or that he prepared the same of his own and obtained the signatures of accused persons on blank papers and fabricated the same. He has denied the suggestion that all documentation was done while sitting in his office and the members of investigating team only signed on his direction. The witness has admitted that in his presence no recovery had been effected from the FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 41 of 92 accused persons.
Statement of Accused and Defence Evidence:
(53) After completing the prosecution evidence, statements of accused Jahangir @ Ikka @ Ibrahim, Mohd. Kareem @ Rahul and Jagdish @ Lachhu, were recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to them which they have denied. None of the accused have examined any witness in defence. According to the accused persons they are innocent and have been falsely implicated in this case. The have stated that they have nothing to do with the alleged incident and the witnesses have deposed against them and identified them only at the instance of the investigating officer and that nothing was recovered from their possession or at their instance.
FINDINGS:
(54) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel for the accused. I have also considered the testimonies of various witnesses examined by the prosecution and also the written memorandum of arguments filed on behalf of the accused. My findings are as under:
Identity of the Accused:FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 42 of 92
(55) In so far as the identity of the accused is concerned, Firstly none of them have been specifically named in the FIR not being previously known to the complainant or any of her family members. Secondly, in so far as the accused Jahangir and Mohd.
Kareem are concerned, they had refused to participate in the Judicial Test Identification Parade vide proceedings Ex.PX2 and Ex.PX4, respectively, on the pretext that their photographs were taken in the Police Station. This does not appear to be correct. It is borne out from the record that they had been kept in muffled faces till the time of their Test Identification Parade. Had it been so, even Jagdish who had participated in the Judicial Test identification Parade would have been identified by the victims which is not the case. This establishes that the excuse of their photographs being taken in the police station and shown to the victims is factually incorrect and therefore an adverse inference is drawn against them for the same. Thirdly, after the refusal of the accused Jahangir and Mohd. Karim to participate in the Judicial Test Identification Parade, the victim Devender Pal Singh identified the accused Jahangir and Mohd. Kareem on 8.6.2011 in the court of Sh. Bhupender Singh, Ld. MM. Fourthly during their depositions in the Court, the complainant/ victim Smt. Raj Kumari (PW5) and her husband Devender Pal (PW7) have specifically identified the accused Jahangir and Mohd. Karim as the persons who were amongst the six to seven assailants who entered their house and FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 43 of 92 had committed armed dacoity. Fifthly in so far as the accused Jagdish is concerned, at the first instance he was not identified by any of the victims during the Judicial Test Identification Parade proceedings Ex.PX7 and it was only during the hearing of his bail application that he came to the Court of the Ld. District Judge, Rohini (Sh. S.K. Sarvaria) and identified him as one of the assailants in the Court, which does not appear to be credible. The possibility of the victim having done so under the influence of the Investigating Officer cannot be ruled out. Lastly there is nothing on record to show that the victim were previously known to the accused or were inimical to them and therefore, there is no reason why they would falsely implicate the accused.
(56) This being the background, I hold that in so far as the accused Jahangir and Mohd. Kareem are concerned, their identities stand established but in so far as the accused Jagdish is concerned, the benefit of doubt is being given to him.
Apprehension and Arrest of the Accused:
(57) The case of the prosecution is that at the time of the incident the family members of the complainant raised an alarm on which the neighbours started collecting and the accused having panicked escaped from the spot. It is one of the neighbours namely Nirmal Singh (PW16) who immediately made a call to the police and FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 44 of 92 it was then that it was realized that there was an attempt to break into house of another neighbour namely Anil Kumar Agarwal resident of E38, PhaseI, Ashok Vihar (the house adjoining house of the complainant Smt. Raj Kumari) where grill of the window was also found broken/ cut. The witness Nirmal Singh in his deposition has stated that when he heard the alarm and came out, he noticed four persons running towards the nearby park though none of the accused could be identified at that time. Hence it is writ large that on the date of the incident nobody was aware of the identity of any of the assailants.
(58) It is borne out from the evidence on record that it was for the first time on 9.3.2011, when the accused were apprehended in another case bearing FIR No. 76/2011 under Section 399/402/34 IPC read with Section 25/54/59 Arms Act of Police Station Anand Vihar that during interrogations they disclosed their involvement in the present case of Police Station Ashok Vihar and this fact that the housebreaking and dacoity incident in the house of the complainant was committed by the accused came to be known to them. After receiving this information, the officials of Police Station Ashok Vihar formally arrested the accused Jahangir @ Ikka, Mohd. Kareem and Jagdish in the present case after due permission of the Ld. MM, which aspect has not been disputed.
(59) I may observe that SI Vijay Kumar (PW17), SI Shahid FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 45 of 92 Khan (PW18) and HC Umesh (PW19) who were the members of the police party, have duly proved the apprehension and arrest of the accused in case bearing FIR No. 76/2011 under Section 399/402/34 IPC read with Section 25/54/59 Arms Act of Police Station Anand Vihar. These witnesses have corroborated each other on material particulars and have proved that on receipt of a secret information that some persons were assembled for commission of dacoity and had making preparation for the same, a police party was constituted comprising of SI Bhim Sen, SI K K Sharma, ASI Shahid Ali, HC Umesh, HC Manoj, HC Rajiv, HC Ved Pal, Ct. Sukhbir, Ct. Jag Sharan, Ct. Birbal and at about 7:45 PM the police party reached near the Birla Lane, near Metro Piller No. 137, near Karkardooma Metro Station and saw that seven persons assembled there out of which four persons were apprehended by the police party whereas three of them ran away. These witnesses have proved that the accused Mohd.
Kareem had been apprehended and one buttondar knife was recovered from his possession, accused Jahangir @ Ikka was apprehended and one loaded katta and one live cartridge were recovered from his possession and the accused Jagdish was apprehended and one road was recovered from his possession. They have also proved that another accused namely Safigul was also apprehended and one dagger was recovered from his possession. According to these witnesses, during the interrogation, the accused FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 46 of 92 Jahangir @ Ikka, Mohd. Kareem and Jagdish have disclosed their involvement in the present case and pursuant to the same the information was given to the officials of Police Station Ashok Vihar. The formal arrest of the accused in the present case (after due permission from the Ld. MM) is not disputed and otherwise established.
Medical Evidence:
(60) The case of the prosecution is that during the incident the complainant Raj Kumari and her son Gaurav had received injuries and were rushed to the hospital. PW6 Dr. Bhupender Partap Bharti of Bara Hindu Rao Hospital has duly proved the MLCs of Raj Kumari and Gaurav which are Ex.PW6/A and Ex.PW6/B which reflects that they were brought to the hospital with alleged history of assault. (61) The MLC of Raj Kumari shows three injuries i.e. clean cut wound over right lateral aspect of writ of right hand, 0.5 cm CLW over right ear and clean cut would 0.5 cm x 3 cm over left throat. The injured Gaurav had sustained two injuries i.e. clean cut wound 0.8 cm x 3.5 cm over right wrist and 0.5 cm cut mark over scalp.
(62) It is evident that the MLCs were prepared under the supervision of Dr. Malti Madhu who has not been examined in the Court. It is also reflected that it was Dr. Vardhman Jain, SR Aurtho FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 47 of 92 II, who had examined the the victims pursuant to which he gave the opinion with regard to the injuries as 'Simple' and the weapon of offence as 'Blunt'. Both Dr. Malti Madhu and Dr. Vardhman Jain have not been personally examined as they are no longer working in the said hospital and have left the job. A Medical Board was constituted on the request of the Investigating Officer for purposes of giving an opinion regarding the weapon of offence i.e. knife recovered from the possession of the accused Mohd. Kareem when he was arrested in FIR No. 76/11, under Section 399/402 IPC, 25 Arms Act & 14 Foreigners Act at Police Station Anand Vihar but the doctors of the Board were unable to give any opinion as they had not personally seen the patient. The record further reveals that the Investigating Officer Inspector Dharmender Kumar had even asked Dr. Malti Madhu (ExCMO) to give opinion on the weapon of offence in the context of the injuries received but she had refused stating that the opinion regarding the weapon would be given at the time of evidence in court of law but incidentally she has not even bothered to appear in the court to depose nor has been served by the prosecution/ Investigating officer and as per the record of the Hospital, her further address is not available. (63) The MLCs of the victims have been proved by Dr. Bhupender (PW6) on the basis of the official record and hence in this background, it was not possible for this court to have confronted Dr. FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 48 of 92 Malti Madhu and Dr. Vardhman Jain with regard to the observations made by them regarding the weapon used as blunt. The nature of injuries received by the victims reflect clean cut wounds showing that the weapon used was sharp edged and under no circumstances could have been blunt and hence under these circumstances, I reject the opinion given by the doctor with regard to the weapon of offence (by showing it as blunt keeping in view the nature of injuries which were clean cut).
(64) I may observe that this aspect as the whether the injuries in question were actually caused by the knife got recovered from the accused Mohd. Kareem or not, is an aspect which has not been proved by the prosecution but the fact that at the time of dacoity the accused Mohd. Kareem was having a knife in his hand with which he had inflicted injuries upon Gaurav Pal (son of the complainant), stands conclusively established from the oral testimonies of the eye witnesses/ victims Devender Pal and Smt. Raj Kumari and there is no reason to doubt the same.
Forensic Evidence/ Ballistic Report:
(65) The case of the prosecution is that at the time of the incident it was Jahangir @ Ikka who had come with the country made pistol / desi katta from which one cartridge which is Ex.P3 was dropped which was later on recovered from the gallery of the house FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 49 of 92 by the Crime Team and was duly seized. After the arrest of the accused and recovery of the country made pistol / desi katta from the accused Jahangir, the said recovered country made pistol and the cartridge Ex.P3 were sent to the FSL. The ballistic report Ex.PW22/B prepared by Dr. N. P. Waghmare, Assistant Director (Ballistics), which report is admissible into evidence as per Section 293 Cr.PC and is not disputed in the court, shows that the 8mm / .
315" cartridge marked 'A1' was loaded and successfully test fired through country made pistol marked 'F1' and it has been opened that 8mm/ .315" cartridge marked 'A1' was live ammunition before it was test fired in the laboratory. It was further opined that 8mm / .315"
cartridge marked 'A1' is an ammunition as defined in the Arms Act, 1959.
(66) Ld. Defence Counsel has vehemently argued that the ballistic report only confirms that the country made pistol and the cartridge were arms and ammunition, but it does not confirm that it is the ammunition of the same pistol which was allegedly being carried by the accused Jahangir @ Ikka. I may note that here the testimony of the victim Devender Pal Singh becomes most relevant wherein he has actually identified the accused Jahangir @ Ikka as the assailant who was carrying the pistol which he had put in his mouth at the time of the incident. Further, it also stands established that cartridge was recovered from the corridor of the house of the victims which FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 50 of 92 apparently dropped on the ground at the time when the assailants were fleeing from the spot after the victims had raised an alarm.
Since it was not a fired cartridge there was no possibility of matching the same by way of comparison of striation marks (bridges and fringes). Hence, in this background, I hold that the recovery of the country made pistol from the accused Jahangir @ Ikka of .315 bore and also the recovery of the cartridge from the spot of incident of 8 mm (i.e. 7.5 cm long on which KF 8MM was written), also connects/ establishes the presence of accused Jahangir @ Ikka with them.
Allegations against the accused Jagdish:
(67) At the very out set I may observe that in so far as the accused Jagdish is concerned, his case is not similar to the co accused Jahangir and Mohd. Kareem. Jagdish is the only accused who had submitted for the Judicial Test Identification Parade Proceedings wherein he has not been identified by any of the victims.
Further, four chance prints were allegedly lifted from the spot but none of them connects the accused Jagdish as one of the assailants. Further, there is no recovery of any article so allegedly stolen from the house of the complainant from the possession of accused Jagdish. Even otherwise, it is evident from the record that in so far as the accused Jahangir @ Ikka and Mohd. Kareem are concerned, they are FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 51 of 92 the resident of the Bangladesh whereas the accused Jagdish @ Lachhu is a resident of district Begu Sarai, Bihar. Further, there is nothing on record to conclusively connect the accused Jagdish was the part of the gang of dacoits who had entered the house of the victims or was involved in the crime with them. Under the given circumstances, benefit of doubt is liable to be given to the in so far as the accused Jagdish is concerned.
Allegations against the accused Jahangir @ Ekka and Mohd. Karim @ Rahul:
(68) The present case was registered on the basis of the complaint given by Smt. Raj Kumari wife of Devender Pal who had received injuries in the incident along with her son Gaurav Pratap Singh and had to be medically treated for the same. Both, Raj Kumari (PW5) and her husband Devender Pal Singh (PW7) have correctly identified the accused Jahangir, Mohd. Kareem and Jagdish in the court by pointing out towards them.
(69) The case of the prosecution is that about six to seven persons had committed house breaking while complainant and her family members were sleeping. The complainant Raj Kumari, her husband Devender Pal and son Gaurav were sleeping in one room whereas her daughters Nisha and Disha were sleeping in another room. The case of the prosecution is that at about 3:30 AM the complainant noticed that six to seven boys had entered into their FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 52 of 92 house and one of them snatched the earrings (bali) from her ears and when she objected, that boy started beating the complainant and her family members. It is further alleged that the said boys were having arms / knives and were making gestures towards them (victims) to keep silent. There was a scuffle between the son of the complainant namely Gaurav and the assailants on which Gaurav received injuries on his hands and as soon as the victims started crying, the accused ran away from the house. Later they (victims) noticed that the assailants ran away with the Mangalsutra and earrings of Raj Kumari and with a mobile phone make Nokia which they had picked up from her room. It is further alleged that while running away due to scuffling, one of the earrings snatched from the complainant, dropped on the floor which was recovered later. In this regard, the testimonies of complainant Raj Kumari and her husband Devender Pal Singh is most relevant since they have both identified the accused persons and attributed specific roles to them. (70) The relevant portion of the testimony of Raj Kumari (PW5) is reproduced as under:
"I am a housewife. On 08.02.2011 I along with my family members were sleeping in the house. I and my husband along with my son Gaurav were sleeping in one room and my daughters namely Nisha and Disha were sleeping in other room. At about 3:30 AM I heard cries of my daughters. I, my husband and my son Gaurav got up, we found 67 FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 53 of 92 boys in our house. On seeing them we also raised alarm. One of them snatched the bali from my ear, when I objected they all started beating us. The aforesaid boys were having knives in their hands. They were making gesture towards us to keep quite showing the knives. There was scuffling between my son, husband and those boys. One of them has given cut on the right hand of my son Gaurav and he also sustained injuries on his head. One of them hit the knife blow on my left hand. We all started crying, on which they ran away from the spot. When we checked our house holds, I found that they had taken away my mangulsutra, one mobile phone NOKIA. Some public persons from near by houses also collected there when the boys ran away from the spot. One of them made the call to the police. PCR came to our house which took me and my son Gaurav to government hospital where we were medically examined. I do not remember the name of that hospital. My statement was recorded by the IO same is Ex.PW5/A bearing my signatures at point A. One blood stained bed sheet and cover of quilt were taken by the investigating officer. I had gone to Tihar Jail to participate in TIP proceedings in which I had not identified the assailant. I can identify the accused persons. At this stage the witness has correctly identified all the three accused persons (who were having knives and threatening them on the point of knives) namely Jahangir Ikka @ Ibrahim, Mohd. Karim @ Rahul and Jagdish @ Lachi who are present in the court today in judicial custody."
(71) In her crossexamination, the witness Raj Kumari is FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 54 of 92 unable to tell whether the person who had snatched her Mangalsutra is one of the accused present in the court and states that at the relevant time she was very scared on seeing the knives carried by the accused who were asking her to keep shut. She has admitted that the earring which the accused had snatched, was later found lying in the house which was left by the assailants. She has further admitted that she did not receive any injury in her ear when the earring was snatched by the assailants and has explained that she received the injury on her ear when knife blow was inflicted upon her by the accused. Raj Kumari has further admitted that a large number of public persons also gathered at the house on hearing the commotion and alarm raised by them. She has stated that she told the police that one of the boys who entered the house was armed with country made pistol, though this fact has not been found mentioned in her statement under Section 161 Cr.PC. According to her, the accused present in the court were only armed with knives at the time of the incident. (72) Coming now to the testimony of Devender Pal Singh (PW7), relevant portion of which is reproduced as under:
"I am residing at the aforementioned address with my family for the last 1½ years. I am doing a private job at Vidya Metal Manufacturing Company Pvt.
Ltd. with his office at Central Market at the post of Executive Administrative. On 08.02.2011 at about 3.00/3.30a.m. I alongwith my wife whereas in another room my son and daughters Disha and FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 55 of 92 Nisha were sleeping in another room. I suddenly woke up and I heard the cries of my daughters and felt that somebody had put barrel of the country made pistol in my mouth. I noticed that there were 67 boys in there room and one of them had put the barrel of country made pistol in my mouth and threatened me not to raise any alarm. I could hear my children's shouting and I saw that one person was grappling with my son and had hit him with the knife in his hand. The witness has pointed out towards the accused Jahangir present in the court today as the person who was having a country made pistol in his hand which he put inside his mouth. The witness has pointed out towards the accused Karim present in the court today as the person who was having a knife in his hand and inflicted injuries to his son. The witness has also identified the accused Jagdish as the person who was carrying a iron rod of about 11.25 ft. and was present alongwith other assailants. The person who had snatched mangalsuter from the neck of my wife is not present in the court today. Accused persons robbed mangalsuter and ear rings from my wife and one mobile phone make Nokia. However, due to scuffling the ear rings of my wife were dropped on the floor which we recovered later on. After robbing accused persons fled away from the spot. When we raised alarm our neighbours gathered and one of them made a PCR call. After the PCR official came I alongwith my wife and son were taken to Bara Hindu Rao Hospital. My wife and my son were medically examined as they were having injuries. I did not have any external injuries therefore, I was not treated. I met ASI Om Pal at Bara Hindu Rao FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 56 of 92 hospital and I returned with him to my house where he interrogated me and recorded my statement. ASI Om Pal took into possession the cover of the quilt, the bed sheet both having blood spots and also the cartridge lying on the floor in the gallery which he sealed and seized in my presence."
(73) In his cross examination, Devender Pal has explained that he has also gone to jail to participate in the Judicial Test Identification Parade proceedings but could not identify the accused Jagdish being extremely disturbed at that time. He has stated that later, on 30.5.2011 he received a summon from the Court of Sh. S. K. Sarvaria, for the hearing of bail application where he had identified the accused Jagdish as one of the assailants. He has further explained that on 6.8.2011 he had come to the Rohini Court for his personal work and was passing through the Court of Sh. Bhupender Singh, Ld. MM, when he pointed out towards the accused Mohd. Kareem and Jahangir @ Ikka, as the persons who had come to his house and committed the robbery. This witness had been exhaustively cross examined wherein he has stated that he is unable to remember the phone number of his wife which was taken away by the robbers. When asked to explain why he came to the Court on 8.6.2011, he explained that there was a challan of his scooter and he had come to attend the said date. He has denied the suggestion that he had never come to the Rohini Court Complex at all.
(74) The daughters of the victim namely Disha (PW12) and FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 57 of 92 Nisha (PW13), who were sleeping in the other room, have corroborated the testimony of their parents with regard to the incident but they have not been able to identify the assailants not having properly seen them being in the other room. PW2 Disha has specifically deposed that on 8.2.2011 at about 3:00 to 3:30 AM, she was sleeping in the room along with her sister Nisha when she suddenly heard some movement in the house and she woke up and noticed two persons carrying pistol and knife entering her room. The relevant portion of the testimony of Disha is reproduced as under:
"On 08.02.2011 at about 3.00/ 3.30 a.m. I was sleeping in my room alongwith my sister Nisha whereas my brother and parents were sleeping in another room. I suddenly felt some movement in the house and woke up and I noticed two persons carrying pistol and knife who had entered our room. I immediately raised an alarm on which they caught hold of me and dragged me to the adjoining room where my parents and brother were sleeping. There I noticed that there were more persons there and my parents and brother had also been caught by them. One of them was grappling with my brother. My sister also woke up in the meanwhile and started raising an alarm. These persons snatched the earing and mangalsutra of my mother and the mobile which was lying in our room. However, due to the scuffle one of the earrings of my mother had dropped on the floor which we recovered later on. After robbing us the accused persons fled away from the spot."
(75) Similarly, PW13 Nisha has also corroborated the FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 58 of 92 testimony of her sister Disha (PW12) to the extent that she noticed that her sister was not in the room and lots of noises were coming from the adjoining room where her parents and brother were sleeping. She has not been able to identify any of the assailants not having seen them properly. The relevant portion of the testimony of Nisha is reproduced as under:
"I also noticed that my sister was not in the room and lots of noises were coming from the adjoining room where my parents and brother were sleeping. When I went to that room I noticed that my brother had received some injuries and my mother was also bleeding from the ears and there were 67 persons in the said room who were threatening to my family. On seeing this I also started screaming and raised an alarm. These persons snatched the earring and mangalsutra of my mother and the mobile which was lying in our room. However, due to the scuffle one of the earrings of my mother had dropped on the floor which we recovered later on. After robbing us the accused persons fled away from the spot.
Our neighbours gathered when he raised an alarm and somebody made a PCR call."
(76) Similarly, PW14 Gaurav Pratap Singh S/o Smt. Raj Kumari (complainant) who was sleeping in the same room as his parents, has also corroborated the testimonies of his mother, father and sisters on the aspect of the incident. According to him on 8.2.2011 at about 3:00 to 3:30 AM, while he along with his parents FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 59 of 92 was sleeping in one room and his sisters Nisha and Disha were sleeping in other room, he suddenly heard some noises and cries of his sisters on which he woke up. The relevant portion of the testimony of Gaurav Pratap Singh is reproduced as under:
"I alongwith my parents were sleeping in one room whereas my sisters Disha and Nisha were sleeping in another room. I suddenly heard some noises (shor hua tha) and heard the cries of my sister on which I woke up. Immediately somebody switched on the lights of our room and two to three persons surrounded me and my parents on which I caught hold the neck of one of them on which that person gave me a knife blow on my right hand. "
(77) This Court has specifically observed that there is slash injury still visible on the right hand around the wrist of the witness Gaurav and he has further explained that it was his mother who had saved him. He has also corroborated the testimony of his parents that there were six to seven boys who entered his house and robbed them. According to this witness, during the scuffling, the earring of his mother dropped on the floor which was recovered later on. He has stated that he and his mother both were taken to Bara Hindu Rao hospital where they were medically examined.
(78) All the victims have duly proved the seizure of the bed sheet and cover of quilt containing blood spots. Witness Gaurav and Devender Pal Singh have also proved the recovery of the cartridge which was found lying in the floor of the gallery of the house. Their FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 60 of 92 testimonies have been duly corroborated by SI Devender Singh (PW9) who has stated that he found live cartridge near the door on which KF 8 MM was written.
(79) Further, it is evident from the evidence on record that it was Nirmal Singh (PW16) who made a call at 100 number from his mobile bearing number 9810907377 and has deposed that he saw that four persons were running from the house of Devender Pal towards the nearby park and he also noticed that wife and one child of Devender Pal was found injured and were taken to the hospital by the PCR Van. Further, Anil Kumar Aggarwal (PW8) who is the neighbour of the complainant, has stated that on 08.02.2011 at about 3.30 to 4.00 AM he woke up when his neighbours rang the bell of his door and he came out when his neighbour told him that thieves had entered the house of his neighbour Devender Pal at E37, Ashok Vihar, PhaseI, and had also done marapiti with his wife and son. He also noticed that the grill of the window of his own house was also broken. The testimony of Anil Kumar clearly shows that the assailants were professional robbers / dacoits who had no previous animosity with the victims and were committing house breaking in the area.
(80) In view of the above, I hereby hold that firstly the testimonies of the complainant Raj Kumari finds due corroboration from the depositions made by other members of her family including FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 61 of 92 Devender Pal Singh (PW7), Disha (PW12), Nisha (PW13) and Gaurav Pratap (PW14), which establishes that there were more than five persons (six to seven persons) involved in the incident. All these witnesses have unanimously deposed that about six to seven persons entered their house duly armed with deadly weapons and according to Devender Pal Singh (PW7) one of the assailants was carrying a country made pistol whose barrel he put in his mouth so as to threaten him. Nirmal Singh (PW16) the neighbour of the complainant also observed four persons running away from the house of complainant, when he came out of his house after hearing the alarm raised by the victims. Secondly, it stands established that at the time the assailants entered the house, it was dark and the victims were sleeping. The complainant Raj Kumari, her husband Devender Pal Singh and son Gaurav were sleeping in one room whereas her daughters Nisha and Disha were sleeping in another room when suddenly Disha got up on hearing some movement in the house and noticed two persons carrying pistol and knife on which she raised an alarm and on hearing her cries, her mother Raj Kumari and brother Gaurav got up when they found six to seven persons standing in their bed room with arms who were threatening them out of which one person put the barrel of the pistol into the mouth of Devender Pal Singh, the second person who was having a knife caught hold of Raj Kumari and the third person who was also having a knife had caught FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 62 of 92 hold of Gaurav Pratap. Thirdly, it stands established from the testimonies of the eye witnesses/ victims particularly Devender Pal Singh that it was Jahangir @ Ikka who was carrying the country made pistol whose barrel he had put in the mouth of Devender Pal Singh and threatened. Mohd. Kareem was the person who was duly armed with a knife, though, it does not stands established that he was the person who had actually inflicted the injuries upon Raj Kumari and Gaurav Pratap since other assailants were also carrying knives. There is a discrepancy between the testimonies of Devender Pal and Raj Kumari on the role attributed to Jahangir @ Ikka. While Raj Kumari has identified him as one of the assailants who had entered into the house with a knife, Devender Pal has specifically identified him as the person who was carrying country made pistol whose barrel he had put into his mouth while threatening him. I may observe that it is the testimony of Devender Pal which is more reliable and authentic because being the person who was held by the accused, he had a better chance of looking at the face of the assailant and observing what he was carrying. In so far as Raj Kumari is concerned, she had seen so many persons (at least 6 to 7) who had come to her house all of whom were armed after which she herself was assaulted with a knife and had received three cut injuries, that she has been in a state of shock and trauma. No doubt, she would be in a position to identify the assailants but perhaps may not be able to FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 63 of 92 accurately tell about the assailants who were catching hold of other members of the family as much as those other members can tell. Fourthly, it stands established that the complainant Raj Kumari had been slashed near her ear during the commission of dacoity when the assailants had snatched her earrings which she was wearing and also her Mangalsutra. The MLC shows that she had received three cut injuries for which she was treated. Fifthly, it stands established that Gaurav S/o Raj Kumari started grappling the assailants and had received two knife injuries as the assailants slashed him over the right wrist and scalp for which he was treated. Sixthly, it is further evident that after the victims got up and resisted and the children raised an alarm; the assailants panicked and during the said process in a hurry to move out, one of the earrings belonging to the complainant Raj Kumari dropped on the floor. Seventhly, it also stands established that one live cartridge of 8mm was found/ recovered from the corridor immediately after the accused had rushed out which cartridge was recovered in the presence of the victims which aspect finds due mention in the First Information Report lending credence and authenticity to the version of the prosecution regarding recovery of the cartridge from the spot. Eighthly, on account of the injuries received by the victims, there was large amount of blood present on the bed sheet, quilt cover and also on the floor when the police reached the house of the FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 64 of 92 complainant, thereby lending credence to the version of the prosecution regarding the incident having taken place wherein the victims had received injuries. Ninethly, it has been established that no chance prints could be lifted from the spot on account of the alarm which had been raised by the victims, a large number of neighbours had entered the house (spot of the incident) in order to help them and had made calls to the police thereby resulting into disturbing of the scene of crime/ house of the victims. Lastly, the Ballistic Report proves that the country made pistol of 8mm/ .315 bore recovered from the possession of accused Jahangir @ Ikka was in a working condition. It also proves that the cartridge recovered from the house of the victims also of 8mm/ .351 bore thereby connecting the cartridge to the country made pistol so recovered from the accused Jahangir @ Ikka, which cannot be a mere coincidence. (81) It is writ large that the eye witnesses/ victims have by and large corroborated each other on material particulars and the minor contradictions if any cannot be fatal to the case of the prosecution. In the case of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) the Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses and pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses, as under: FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 65 of 92
(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 66 of 92
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
(82) It was further observed by the Hon'ble Apex Court that even when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally nondiscrepant. But Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. (83) In the present case the minor variations/ discrepancies if FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 67 of 92 any can be attributed to the victims/ eye witnesses being overtaken by the sudden events and occurrence which they had not previously anticipated and hence there being an element of surprise their mental faculties cannot be expected to be attuned to absorb the minor details. Further, there were five members of the family who had witnessed the incident of dacoity in their house. The daughters of the complainant namely Nisha and Disha being in another room and Devender Pal Singh, Raj Kumari (complainant) and Gaurav being in a different room when they woke up on hearing the noises, it is only natural that they would have visualized the incident as per their own power of observation which, of course, differs from one person to another. What one victim may notice, may not have been noticed by another and even the response of the victims would be different. (84) Further, there is nothing on record to show that the victim were previously known to the accused or were inimical to them. In so far as the accused Jagdish is concerned, he was the only one who submitted for Judicial Test Identification Parade and at the first instance was not identified by any of the victims in the said proceedings Ex.PX7. Later, it was only during the hearing of his bail application that Devender Pal was called to Court during the hearing of the bail application of Jagdish that he identified the accused Jagdish as one of the assailants. The possibility of the victim having done so under the influence of the Investigating Officer FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 68 of 92 cannot be ruled out. The prosecution has failed to bring on record any other circumstantial material to conclusively establish that even previously he had been involved in the various offences with the accused or was a part of the gang of dacoits who entered into the house of the victims to commit dacoity. In this background, benefit of doubt has been given to the accused Jagdish, but in so far as the accused Jahangir @ Ikka and Mohd. Kareem are concerned, they had deliberately refused to participate in the Judicial Test Identification Parade Proceedings on the pretext that their photographs had been taken by the police and shown to the victims and this was despite the warning given by the Ld. MM regarding the adverse inference likely to be drawn against them. The excuse so made by these accused is unbelievable since had that been so, Jagdish would have been definitely identified by the victims in the Judicial Test Identification Parade Proceedings which is not the case (in Judicial Test Identification Parade Proceedings Jagdish was not identified). Hence, under the given circumstances an adverse inference is being drawn against the accused Jahangir @ Ekka and Mohd. Karim for their refusal to participate in the Test Identification Parade Proceedings since they have have been duly identified in the court not only by the complainant Raj Kumari but also by her husband Devender Pal Singh. Here, I may note that Nisha, Disha and Gaurav who are the children of Devender Pal and Raj Kumari have not FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 69 of 92 identified the accused in the Court stating that it was dark at the time of the incident though they have thoroughly proved the incident and understandably so. I may observe that it is matter of common experience that parents are generally reluctant to expose their children particularly young girls to the hardened criminals and it is for this reason that the parents normally try to prevent their young children from being dragged into police cases or from identifying dreaded criminals. This, however, would not mean that merely because the children were unable to identify the assailants in the Court that the testimonies of Raj Kumari and Devender Pal Singh on the aspect of identity of the accused should be disbelieved. They had both been personally assaulted and Raj Kumari was even injured. It has also come on record (in the testimony of Devender Pal and Gaurav Pal) that when they woke up on hearing the cries, tubelights had been switched on. This proves that there was sufficient opportunity for the victims to have seen the faces of the assailants who had even assaulted and inflicted injuries on them whey they resisted. I hereby hold that there is no reason to disbelieve the testimonies of the victims/ eye witnesses on the aspect of identification of the accused which appears to be truthful, authentic and credible.
(85) In view of the above, I hold that the testimonies of the FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 70 of 92 victims/ eye witnesses is trustworthy and reliable and find due corroboration from the circumstantial evidence on record and therefore under these circumstances I hereby hold that the allegations of the accused Jahangir @ Ikka and Mohd. Kareem have committed an armed dacoity cojointly along with four to five other associates, stands established beyond reasonable doubt but in so far as the accused Jagdish @ Lachhu is concerned, benefit of doubt is liable to be given to him.
FINAL CONCLUSION:
(86) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 71 of 92 and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(87) Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. The identity of accused Jahangir @ Ikka and Mohd. Karim stands established beyond reasonable doubt. It stands established that on 8.2.2011 the complainant Raj Kumari, her husband Devender Pal Singh and son Gaurav were sleeping in one room whereas her daughters Nisha and Disha were sleeping in another room. It also stands established that at about 3:00 to 3:30 AM, six to seven persons entered their house duly armed with deadly weapons (knives and country made pistol). It further stands established that one of the assailants who has been identified as Jahangir @ Ekka was carrying a country made pistol and had put the barrel in the mouth of Devender FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 72 of 92 Pal Singh and threatened him. It also stands established that the second person who was having a knife caught hold of Raj Kumari and the third person who was also having a knife had caught hold of Gaurav Pratap. It further stands established that the complainant Raj Kumari had been slashed near her ear during the commission of dacoity when the assailants had snatched her earrings which she was wearing, her Mangalsutra and one mobile phone make NOKIA and had received three cut injuries for which she was treated. It also stands established that Gaurav S/o Raj Kumari started grappling the assailants and had received knife injuries as the assailants slashed him over the right wrist and scalp and he received two cut injuries. It further stands established that after the victims got up and resisted and the children raised an alarm; the assailants panicked and in a hurry to move out, one of the earrings belonging to the complainant Raj Kumari dropped on the floor. It also stands established that neighbours from the nearby houses had collected there and it was found that even in the house of Anil Kumar Aggarwal a resident of E38, PhaseI, Ashok Vihar, Delhi (house adjoining that of the victim) an attempt of house breaking had been made since Sh. Anil Kumar Aggarwal found that the grill/ wiremesh of the window of his house was broken. It further stands established that one of the neighbours Nirmal Singh immediately made a call to the police on which PCR came and rushed Smt. Raj Kumari and her son Gaurav to FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 73 of 92 hospital where they were medically examined. The prosecution has also established that one live cartridge of 8mm was found/ recovered from the corridor immediately after the accused had rushed out which cartridge was recovered in the presence of the victims. It has also been established that on account of the injuries received by the victims, there was large amount of blood present on the bed sheet, quilt cover and also on the floor when the police reached the house of the complainant. It also stands established that on the basis of the statement of Smt. Raj Kumari the present case was got registered and on 10.3.2011 all the three accused namely Jahangir @ Ekka, Mohd. Karim @ Rahul and Jagdish (amongst others) had been apprehended and arrested in case FIR No. 76/11, under Sections 399/402 IPC, 25 Arms Act & 14 Foreigners Act at Police Station Anand Vihar wherein these accused in their statement before the police disclosed about their involvement in the present case. It has gone uncontroverted that after the apprehension of the accused at Anand Vihar, information was sent to Police Station Ashok Vihar and accused were formally arrested in the present case. It also stands established that in the said case of Police Station Anand Vihar a country made pistol was also recovered from the possession of accused Jahangir @ Ekka and Ballistic Report establishes that the country made pistol of 8mm/ .315 bore recovered from the possession of accused Jahangir @ Ikka was in working condition and FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 74 of 92 the cartridge recovered from the house of the victims was also of 8mm/ .351 bore thereby connecting the cartridge so recovered from the house of the victims to the country made pistol so recovered from the accused Jahangir @ Ikka. It also stands established that it was the accused Jahangir @ Ikka who was carrying the country made pistol whose barrel he had put in the mouth of Devender Pal Singh and Mohd. Karim was the person who was duly armed with a knife, though, it does not stand established that he was the person who had actually inflicted the injuries upon Raj Kumari and Gaurav Pratap since other assailants were also carrying knives. (88) I may further note that as per the testimonies of all the victims about six to seven persons were involved in the incident. They had entered the house of the victims and were cojointly involved in the incident of committing robbery. All these persons were reportedly armed with deadly weapons (knives and country made pistol). Hence, the ingredients of Section 391 Indian Penal Code (Dacoity) stands satisfied.
(89) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 75 of 92 negative, since any lapse on the part of the investigation does not negate the offence. The prosecution has proved the identity of the accused Jahangir @ Ikka and Karim @ Rahul, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. (90) There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution qua the accused Jahangir @ Ikka and Karim @ Rahul. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up continuous link. (91) In this background, I hold that the prosecution has been able to prove and substantiate the allegations against the accused Jahangir @ Ikka @ Ibrahim and Mohd. Kareem @ Rahul who are hereby held guilty for the offence under Section 395/397/34 Indian Penal Code.
(92) In so far as the accused Jagdish @ Lachhu is concerned, his identity does not stand established. He is the only accused who had submitted for the Judicial Test Identification Parade Proceedings wherein he was not identified by any of the victims. Further, four FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 76 of 92 chance prints were allegedly lifted from the spot but none of them connects the accused Jagdish as one of the assailants. There is no recovery of any article so allegedly stolen from the house of the complainant from the possession of accused Jagdish. There is nothing on record to conclusively connect the accused Jagdish was the part of the gang of dacoits who had entered the house of the victims or was involved in the crime with them.
(93) In view of the above, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused Jagdish. The evidence on record does not conclusively establishes the presence of the accused Jagdish at the spot or his participation in the alleged crime. Crucially, the material and evidence on record do not bridge the gap between "may be true" and "must be true" so essential for a court to record finding of guilt of accused Jagdish @ Lachhu. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Jagdish @ Lachhu, beyond reasonable doubt and hence, benefit of doubt is being given to them who are acquitted of the charges under Section FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 77 of 92 395/397/34 Indian Penal Code.
(94) Be listed for arguments on sentence qua the accused Jahangir @ Ikka @ Ibrahim and Mohd. Kareem @ Rahul on 1.8.2012.
Announced in the open court (Dr. KAMINI LAU) Dated: 25.07.2012 ASJ (NW)II: ROHINI FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 78 of 92 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 31/2011 Unique Case ID: 02404R0163782011 State Vs. (1) Jahangir @ Ikka @ Ibrahim S/o Abdul Hakeem R/o Village : Moralganj PS : Bagarghut, Distt.: Khulva, Bangladesh. (Convicted) (2) Mohd. Kareem @ Rahul S/o Abdul Kadim R/o Village : Moralganj PS : Bagarghut, Distt.: Khulva, Bangladesh. (Convicted) (3) Jagdish @ Lachhu S/o Beenu Das R/o Village Shakra, PS Garpura, Distt.: Begusarai Bihar. : (Acquitted) FIR No. : 41/2011 Police Station : Ashok Vihar Under Section : 395/397/34 Indian Penal Code Date of Judgment: 25.07.2012 Arguments heard on: 4.8.2012/ 7.8.2012 Date of sentence: 9.8.2012 FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 79 of 92 APPEARANCE: Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
Both the convicts Jahangir @ Eikka and Mohd. Karim @ Rahul in judicial custody with Sh. Shivender Vishwash Advocate/ Amicus Curiae.
ORDER ON SENTENCE:
Vide a detailed judgment dated 25.7.2012, the accused Jahangir Ekka @ Ibrahim and Mohd. Karim @ Rahul have been held guilty of the offence under Section 395 and Section 397/34 Indian Penal Code and accordingly convicted. The accused Jagdish @ Lachchu has however been acquitted of the charges under Section 395/397/34 Indian Penal Code.
The present case pertains to a dacoity committed by a gang of dacoits most of whom are reported to be Bangladeshi origin, out of whom three had been apprehended by the police at Anand Vihar. The case of the prosecution that on 08.02.2011 Smt. Raj Kumari W/o Sh. Devender Pal R/o E39, Ashok vihar, PhaseI, Delhi along with her family members were sleeping in the house. While she, her husband and her son Gaurav were sleeping in one room, her daughters Nisha and Disha were sleeping in other room. At about 3:30 AM, she heard cries of her daughters on which she, her husband and her son Gaurav got up, when they found six to seven boys in their house. One of the boys had put the barrel of country made FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 80 of 92 pistol in the mouth of Devender Pal Singh and threatened him not to raise an alarm while another boy snatched the bali (earrings) from the ear of the complainant and when she objected, they all started beating them. These boys were having knives in their hands and were making threatening gesture towards them to keep quite by showing the knives. There was a scuffling between the complainant, her son Gaurav, husband Devender Pal Singh on one side and the assailants/ dacoits on the other side during which one of the boys, gave a cut on the right hand of her son Gaurav who sustained injuries on his hand and head while another boy gave a knife blow on her left hand and she received three cut injuries. Thereafter they all (victims) started crying and raised an alarm on which the said boys escaped from the spot. Thereafter when the victims checked their households, they found that the said boys had taken away the Mangulsutra of the complainant and one mobile phone make NOKIA. Neighbours from the nearby houses had collected there and it was found that even in the house of Anil Kumar Aggarwal a resident of E38, PhaseI, Ashok Vihar, Delhi (house adjoining that of the victim) an attempt of house breaking had been made since Sh. Anil Kumar Aggarwal found the grill/ wiremesh of the window of his house was broken. One of the neighbours Nirmal Singh immediately made a call to the police on which PCR came and rushed Smt. Raj Kumari and her son Gaurav to hospital where they were medically examined. On the FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 81 of 92 basis of the statement of Smt. Raj Kumari the present case was got registered.
On 10.3.2011 all the three accused namely Jahangir @ Ekka, Mohd. Karim @ Rahul and Jagdish (amongst others) had been apprehended and arrested in case FIR No. 76/11, under Sections 399/402 IPC, 25 Arms Act & 14 Foreigners Act at Police Station Anand Vihar wherein these accused in their statement before the police disclosed about their involvement in the present case and it was then that information was sent to Police Station Ashok Vihar and accused were formally arrested in the present case. In the said case of Police Station Anand Vihar a country made pistol was also recovered from the possession of accused Jahangir @ Ekka.
All the victims i.e. Smt. Raj Kumari, Devender Pal Singh, Gaurav, Ms. Nisha and Ms. Disha have appeared in the Court along with the neighbours Nirmal Singh and Anil Kumar Aggarwal and proved the incident and have corroborated each other on material particulars. The complainant Smt. Raj Kumari and Devender Pal have identified the accused Jahangir @ Ekka and Mohd. Karim @ Rahul. The accused Jahangir @ Ekka has been identified as the boy who was having a country made pistol which he had put inside the mouth of Devender Pal Singh and the accused Karim @ Rahul has been identified as the boy who was having a knife in his hand and inflicted injuries to Gaurav. On the basis of the testimonies of FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 82 of 92 the various public witnesses examined by the prosecution including the victims, their neighbour Anil Kumar Aggarwal; the medical and forensic evidence on record, this court has held both the accused Jahangir @ Ekka and Mohd. Karim @ Rahul guilty for the offence under Section 395 and Section 397/34 Indian Penal Code. However, in so far as the accused Jagdish @ Lachchu is concerned, he was the only accused who had submitted for the Judicial Test Identification Parade proceedings wherein he was not identified by any of the victims. Further, no recovery of any stolen article was recovered from the possession of accused Jagdish, hence observing that there is nothing on record to connect the accused Jagdish as a part of the gang of dacoits who had entered the house of the victims or had participated in the crime, he (Jagdish) has been acquitted of the charges under Section 395/397/34 Indian Penal Code.
I have heard arguments on the point of sentence. Ld. Amicus Curiae appearing on behalf of the convicts has vehemently argued that both the convicts are young boys and any harsh view against the convicts would be detrimental not only to the convicts but also to their family members. On the other hand, the Ld. Addl. Public Prosecutor for the State has prayed for a stern view against the convicts, keeping in view the nature of allegations involved. Ld. Addl. PP has also pointed out the convicts are involved in other serious offences the details of which are as under: FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 83 of 92
Previous involvements of convict Jahangir @ Ekka:
1. FIR No. 317/1998, Police Station Vivek Vihar, under Sections 399/402 IPC wherein he has already been convicted.
2. FIR No. 254/2003, Police Station Seemapuri, under Sections 302 IPC and 25 Arms Act wherein he has already been convicted and sentenced to Rigorous Imprisonment for Life.
3. FIR No. 76/2011, Police Station Anand Vihar, under Sections 399/402 IPC and 14 Foreigners Act which is still pending.
4. FIR No. 23/2011, Police Station Mansarovar Park, under Sections 395/397 IPC which is still pending.
Previous involvements of convict Mohd. Karim @ Rahul:
1. FIR No. 140/2007, Police Station Pandav Nagar, under Sections 25 of Arms Act wherein he has already been convicted.
2. FIR No. 76/2011, Police Station Anand Vihar, under Sections 399/402 IPC and 14 Foreigners Act which is still pending.
3. FIR No. 23/2011, Police Station Mansarovar Park, under Sections 395/397 IPC which is still pending.
The convict Jahangir @ Ekka aged about 36 years is totally illiterate. At the stage of sentence he was personally heard by the Court on the aspect of his origin, details of his family and FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 84 of 92 previous involvements. He has informed the Court that he has a family comprising of his parents who are presently residing in a village at Bangladesh but appeared to be reluctant in divulging the details of the village and area where they were staying. He also submitted that he has a wife namely Salma and three children residing at Nand Nagri Delhi and on further query from the Court, informed the Court that she was his second wife. He admitted that he has other criminal cases against him and that he has been convicted in FIR No. 254/2003, Police Station Seemapuri, under Sections 302 IPC and 25 Arms Act wherein he was on bail at the time of present FIR.
The convict Mohd. Karim @ Rahul aged about 24 years is totally illiterate. At the stage of sentence he was personally heard by the Court on the aspect of his origin, details of his family and previous involvements. He has informed the Court that he has a family comprising of his widow mother who is presently residing in a village at Bangladesh but was reluctant in providing the details of the village. He also informed the Court that he had come to Delhi about two months prior to the present FIR only to take his wife and daughter residing at Nand Nagri with him to Bangladesh at the time of the registration of the present FIR. He has admitted that he has other criminal cases against him and had been convicted in case FIR No.140/2007, Police Station Pandav Nagar, under Sections 25 of FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 85 of 92 Arms for the period already undergone.
I have duly considered the rival contentions and the background of the convicts. Lately a number of criminal cases have come to light where Bangladeshi Nationals have been found to be involved in heinous crimes such as robberies, dacoities, murder, rape etc. Bangladeshi influx is one of the major challenges being faced by our country in recent times and a matter of National concern. This serious issue requires urgent governmental intervention, political debate, honest deliberations and concerted action, before it becomes a little too late. As observed, these criminals of Bangladeshi origin regularly and periodically cross over to our Country in large numbers taking advantage of porous borders and terrain and escape back with the loot and booty which they plunder from the law abiding citizens of our country and it pains me to observe that most of the time the Administration is helpless. It is the citizens of this Country who have the first right to its resources. In a Nation fragmenting under Economic, Religious, Caste, Ethnic and other Divides, these criminals find it very easy to make a place for themselves by conveniently integrating with the local population without the citizens having to suspect their intent. They come, plunder and go and this has become regular affair having a definite crime pattern. Our Country has become a Haven for all these criminal elements who are most ruthless and brutal with anybody who come in their FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 86 of 92 way. While the genuine citizens of this Country continue to suffer in abject poverty, what is it that prevents a firm, resolute, intense government action against these three crores Bangladeshi Nationals (official figures as reported) illegally staying in India, enjoying all benefits which are otherwise the entitlements of citizens. It is this lack of concerted Governmental/ Administrative action which has compelled the Courts of Law to step in. The Division Bench of the Delhi High Court headed by the then Hon'ble Chief Justice had taken a notice of this glaring situation in the case of Chetan Dutt Vs. Union of India & Ors. in CM No. 10683/2003 in CW No. 3170/2001 dated 24.9.2003 and 8.9.2004 when it wondered how the Ration Cards were being issued to illegal migrants. The Hon'ble High Court had also observed that control price food grains were to be supplied to the needy citizens of this Country and not to the illegal migrants. The Court further brought to the notice of the Election Commission the fact that many of these illegal migrants had also been issued the election cards. Despite these observations and recommended action, nothing much appears to have changed on the ground.
In the present case the convicts before this Court are original residents of Bangladesh who have managed to sneak into our Country. The convict Jahangir @ Ekka has already been convicted and sentenced for Life in another case of murder (FIR No. 254/2003, FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 87 of 92 Police Station Seemapuri, under Sections 302 IPC and 25 Arms Act) and while he was on bail during the pendency of his appeal that he has committed the present crime. He admits the details of his criminal involvements as highlighted by the prosecution. When this Court questioned him regarding his origin, he admitted that his parents were alive and informed that they were residing in a village in Bangladesh but refused to divulge any further details. Similarly the convict Mohd. Karim is also a previous offender having undergone a sentence in case FIR No. 140/2007, Police Station Pandav Nagar, under Section 25 of Arms Act which he has admitted and further admits the details of his involvements as highlighted by the prosecution. When questioned by the Court on his origin, he submitted that his father had expired whereas his mother was residing in a village in Bangladesh (whose details he was unable to provide). He further informed the Court that it was only two months prior to the present FIR that he had come to India to pickup his wife and daughter in order to take them with him to Bangladesh.
It is evident from the aforesaid that both the convicts are hardened/ dreaded criminals having a history of previous criminal involvements and the present crime has been committed during the period when they were on bail in the other cases. The record also reveals that they unhesitatingly and indiscriminately used dangerous weapons like knives and pistols on the helpless victims as has FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 88 of 92 happened in the present case. The medical evidence on record show that Smt. Raj Kumari had received as many as three cut injuries and her son Gaurav had received two injuries which were caused by sharp object. It is only by sheer luck that the family of the victim survived. Instances of many innocent victims having perished in such deadly attacks is not rare and if not dealt firmly and appropriately, such acts tend to spread terror in the society affecting social order and the faith of people in the system. The injuries were inflicted on the hapless victims most ruthlessly with the sole intent of monetary gain. The Courts of Law in India are under constitutional obligation to protect its citizens against such onslaughts. Undue sympathy to these ruthless infiltrators who are the members of professional gang of dacoits having no emotional attachment to the citizens of our Country would be misplaced. Therefore, to impose inadequate sentence would do more harm to the justice system so as to undermine the public confidence in the efficacy of law and society cannot long endure under such serious threats and hence, the convicts do not deserve any leniency.
Coming first to the convict Jahangir @ Ekka @ Ibrahim, keeping in view his previous involvements and the fact that he has already been convicted for Rigorous Imprisonment for Life in respect of the offence under Section 302 Indian Penal Code in FIR No. 254/2003, Police Station Seemapuri and was on bail during the FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 89 of 92 period of appeal when he was involved in the present crime. Hence, in this background, I award the following punishment to him:
1. For the offence under Section 395 Indian Penal Code, the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.10,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Two Months.
2. For the offence under Section 397 Indian Penal Code, the convict is sentenced to Rigorous Imprisonment for a period of Ten (10) Years and fine to the tune of Rs.
10,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Two Months.
Both the sentences shall run concurrently.
However, in so far as the convict Mohd. Karim @ Rahul is concerned, his only previous conviction was in a case under Section 25 of the Arms Act bearing FIR No. 140/2007, Police Station Pandav Nagar wherein he was sentenced to the period undergone and has no other record of conviction (other cases being under trial). In this background, his case can be differentiated from that of convict Jahangir @ Ekka and I hereby award the following punishment to FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 90 of 92 him:
1. For the offence under Section 395 Indian Penal Code, the convict is sentenced to Rigorous Imprisonment for a period of Ten (10) Years and fine to the tune of Rs.10,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Two Months.
2. For the offence under Section 397 Indian Penal Code, the convict is sentenced to Rigorous Imprisonment for a period of Ten (10) Years and fine to the tune of Rs.10,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Two Months.
Both the sentences shall run concurrently.
Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period already undergone by them during the trial in the present case, as per rules.
It is clarified that the sentence in the present case shall run consecutively (and not concurrent) to the sentence already imposed upon the convicts in any other case. After the completion of the period of sentence the convicts be handed over to the Competent Authority/ Officer (FRRO) who shall initiate FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 91 of 92 appropriate proceedings for deportation of the convicts in accordance with law.
The convicts have been informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convicts free of costs and another be attached along with their jail warrants. One copy be sent to Competent Authority/ Officer under the Foreigners Act (FRRO) for necessary action.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 09.08.2012 ASJ (NW)II: ROHINI
FIR No. 41/2011, PS: Ashok Vihar, State Vs. Jahangir @ Ikka Etc. Page 92 of 92