Delhi District Court
State vs 1 Dharmender @ Ajay, on 12 November, 2009
IN THE COURT OF MANOJ JAIN: ADDL. SESSIONS JUDGE:
ROHINI COURTS:
DELHI
SC No.05/2008
FIR No. 192/08
PS Shalimar Bagh
U/s 395/397/398/458/34 IPC
State Versus 1 Dharmender @ Ajay,
s/o Mintoo @ Mithoo,
r/o A9, Sukhbir Nagar,
Prem Bari, Delhi.
2 Rajnu s/o Shari,
r/o Kachi Colony,
Gali No. 8, Shahbad Dairy,
Delhi.
3 Abdul Qadir @ Aadil,
s/o Noor Mohd.
r/o Jhuggi Sarai Pipal
Thala, N.S. Mandi,
Adarsh Nagar, Delhi.
4 Kashi Ram s/o Ram Lal,
r/o Village Dimahu,
PS Ujhani, District Badaun,
UP.
Date of filing : 06.08.2008
Date of conclusion of arguments : 21.10.2009
Date of decision : 12.11.2009
JUDGMENT
1 All the four accused persons have been charge sheeted by PS Shalimar Bagh for commission of offences u/s 395/397/398/458/34 IPC.
FIR No. 192/08 Shalimar Bagh 1 2 As per prosecution story, Dr. Umesh Yadav used to reside with his family at AE1, Shalimar Bagh. Incident is of night intervening 02.04.2008 and 03.04.2008. It was 3.45 AM. Dr. Umesh Yadav had got up to ease himself and when he was returning to his bedroom, he saw shadow of a person falling on the curtain of window. He smelt some danger and immediately apprised his wife and children in this regard and told them to rush towards the inner room. Shortly thereafter, 56 persons broke into his house through that window. Accused Abdul Qadir was armed with one katta (country made pistol) and showed the same to him as well. Dr. Umesh Yadav told them to take whatever they wanted but spare their lives. Parents of Dr. Umesh Yadav also woke up on hearing melee and they came out. One more intruder i.e. accused Kashi Ram, who was armed with knife, hit Dr. Umesh Yadav with knife on his back and another person i.e. accused Dharmender gave knife blow on the left thigh area of father of Dr. Umesh Yadav. Wearing chain of mother of Dr. Umesh Yadav was also snatched and one intruder also attempted to remove wearing chain of Dr. Yadav. Dr. Yadav pushed accused Abdul Qadir and was able to isolate himself and his parents in the adjacent room. Dr. Yadav possessed one licensed pistol and he FIR No. 192/08 Shalimar Bagh 2 fired shots in order to scare away the housebreakers. They all fled out of panic but decamped with chain and one mobile phone. Police was informed. Further necessary investigations were carried out. Initially, there was no clue with the police but later on PS Adarsh Nagar informed about the arrest of four accused persons in their one case i.e. FIR No. 97/08 and accused had made disclosure statements therein admitting their involvement in the present case as well. On the basis of such information, all accused were arrested in the present case and they all refused to participate in judicial TIP as well. However, whilst on police remand, Dr. Yadav had identified all the four accused persons as the same dacoits. Looted chain was also recovered at the instance of accused Abdul Qadir and looted mobile was also recovered at the instance of accused Kashi Ram. It is in these circumstances that all the accused persons have been arrested and chargesheeted.
3 Chargesheet was filed before the concerned Magisterial Court on 11.07.2008 and case was committed to Court of Sessions and was received on allocation by this Court on 06.08.2008.
FIR No. 192/08 Shalimar Bagh 3 4 Al the accused persons were charged u/s 458/395/398/397/34 IPC. They all pleaded not guilty and claimed trial.
5 Prosecution was directed to adduce evidence and has examined eighteen witnesses viz PW1 Dr. Umesh Yadav (complainant/eye witness), PW2 Sh. Laxmi Narayan (father of complainant/eye witness), PW3 Smt. Shakuntala (mother of complainant/eye witness), PW4 ASI Sohan Singh (duty officer), PW5 Ct. Mahender (photographer), PW6 HC Vijay Pal ( recovery witness), PW7 ASI Satpal Singh (Incharge Crime Team), PW8 Ct. Charan Singh ( recovery witness),, PW9 Ct. Nanhe Lal Mishra, PW10 ASI Ram Daras, PW11 Insp. Sudesh Ranga (Police official of PS Adarsh Nagar), PW12 Dr. Sanjay Kumar, PW13 HC Sanjay Malik (Police official of PS Adarsh Nagar), PW14 HC Ramesh Chand (Police official of PS Adarsh Nagar), PW15 Sh. Prashant Kumar (learned MM), PW16 SI Sudhir Gulia (investigating officer), PW17 HC Ved Prakash (Police official of PS Adarsh Nagar) and PW18 Gajender Singh (Police official of PS Adarsh Nagar).
6 All the accused, in their respective statements FIR No. 192/08 Shalimar Bagh 4 recorded u/s 313 Cr.P.C., pleaded innocence and claimed that they had been falsely implicated. They also claimed that their photographs were taken and they were also shown to the witnesses. They, however, did not choose to lead evidence in their defence.
7 I have heard Ms. Purnima Gupta, learned Addl. P.P. for the State and Ms. Sadhna Bhatia, learned Amicus Curiae for accused persons and carefully gone through the entire material available on record.
8 Learned Addl. P.P. has contended that prosecution has been able to prove its case to the hilt. She has argued that PW1 Dr. Umesh Yadav happens to be the complainant and he has given very convincing and trustworthy version of the entire incident. His father PW2 Sh. Laxmi Narayan and his mother PW3 Smt. Shakuntala have also totally supported the case of prosecution and there is no contradiction appearing on record. She has also argued that all the other police officials have also entered into witness box and all the relevant documents have been duly proved and there is nothing on record which may show that accused persons had been falsely implicated. FIR No. 192/08 Shalimar Bagh 5 9 Ms. Sadhna Bhatia, learned Amicus Curiae has, on the other hand, refuted all the aforesaid contentions. She has argued that area in question was a residential area and there is no explanation on record as to why no independent witness or neighbour was joined in the investigation. She has also argued that all the accused persons were shown to the witnesses during investigation stage when they had been arrested by PS Adarsh Nagar and, therefore, judicial TIP, if at all had taken place, would have been meaningless. She has also argued that recovery of chain and mobile phone is highly doubtful. She has also argued that there is nothing on record which may show that the chain in question was owned by the complainant party as no proof thereof was either shown or proved. She has also claimed that investigation was carried out improperly and there are lot of contradictions and improvements.
10 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
11 Prosecution case revolves around the testimony of three FIR No. 192/08 Shalimar Bagh 6 material witnesses viz PW1 Dr. Umesh Yadav, PW2 Sh. Laxmi Narayan and PW3 Smt. Shakuntala. Outcome of the case of prosecution is also squarely dependent upon their testimony. They all have graced the witness box. I have carefully perused their testimony. PW1 Dr. Umesh Yadav has deposed that incident is of night intervening 02.04.2008 & 03.04.2008. He was present at his house along with his other family members i.e. his parents, his wife and two children. At about 3.45 AM, he had gone to ease himself and when he was returning back to his bedroom, he saw shadow of a person standing outside in the compound and such shadow was falling on the window. He moved the curtain for a split second and noticed three persons standing in the compound of his house and adjacent to window. He further deposed that he woke up his wife and asked her to go to the rear room along with their children where his parents used to sleep. He further deposed that within a minute or two, those persons were able to remove the grill of the window and also broke the jaali (mesh) door of the window. He deposed that his wife and children were able to move themselves in the rear bedroom but before that he himself could go there, one of those persons blocked his way and put katta on his forehead. He also identified accused Abdul Qadir as that person who had put FIR No. 192/08 Shalimar Bagh 7 katta on his forehead. He also deposed that accused Abdul Qadir hurled filthy abuses. He also deposed that one more person took a knife in order to stab him but he (complainant) grappled with him since he knew taekwondo. He further deposed that on his shouts, his parents came out from the rear bedroom. In the meanwhile, one another person had stabbed him on his back. He identified accused Kashi Ram as the person who had given stab injury on his back. He deposed that he told all those person to spare them and told them that they would be given whatever they wanted. He also deposed that accused Dharmender abused his mother and put knife on her. He also identified accused Dharmender. He also deposed that his own wearing chain was also snatched. He deposed that he and his parents then pushed themselves to the passage leading to rear room and they bolted themselves in the rear room and were able to separate themselves from those persons. PW1 Dr. Yadav further deposed that he shouted that he would see them all and fired two shots with his licensed pistol. Then, those persons then fled away. He deposed that when he checked his house, he found that his mobile phone make Nokia 2626 having number 9868503773 was also missing. He also found that accused persons had snapped the wire of landline. He called the police FIR No. 192/08 Shalimar Bagh 8 from his mobile and police came at the spot. He has proved his statement as Ex. PW1/A. He deposed that his father was given knife blow on the left lower side of abdomen and he raised finger towards accused Dharmender claiming him to be the person who had stabbed his father. He also deposed that accused Rajnu was also one of the intruders. Thus, he categorically identified all the four accused persons and gave their respective roles with complete precision. His deposition reveals that on 01.05.2008, police had brought accused Dharmender for the purposes of pointing out and he had identified accused Dharmender and similarly he had identified accused Kashi Ram, Rajnu and Abdul Qadir subsequently as and when they were brought there while on police remand. He also deposed that earlier he was called at Central Jail Tihar for TIP but was told that no accused was willing to participate in the TIP. He also deposed that his mobile phone and chain were recovered by the police and he had taken the same on superdari from the Court. During trial, those looted articles were also produced before the Court and the mobile was exhibited as Ex. P1 and chain was exhibited as Ex. P2.
12 PW2 Sh. Laxmi Narayan (father of complainant) and FIR No. 192/08 Shalimar Bagh 9 PW3 Smt. Shakuntala (mother of complainant) have also supported the prosecution case in toto and have categorically identified all the four accused persons as well. PW2 Laxmi Narayan has deposed that when he came out from his bedroom on hearing noise of his son to the effect that some dacoits had entered in the house, he saw six persons had caught hold of his son. He tried to help his son but he was hit by knife in his lower abdominal region by accused Dharmender. He also identified accused Abdul Qadir claiming that he had put katta on the forehead of his son and he also claimed that accused Abdul Qadir had snatched wearing chain of his wife. He also deposed that accused Kashi Ram had given stab on the back of his son Dr. Umesh Yadav. He further deposed that he pushed accused persons and his son also pushed them and then they bolted the passage door from inside and shouted for help. He also deposed that before police could come, his son had fired two shots with his licensed pistol in order to scare away the accused persons and to check whether they were still there or not. He also deposed that police came after some time and door bell was rung and then they learnt that those accused persons had bolted the door from outside while fleeing away. PW3 Smt. Shakuntala has also deposed that she heard noise of her son Umesh Yadav to FIR No. 192/08 Shalimar Bagh 10 the effect that some dacoits had entered into his house and were beating him and then she and her husband ran outside and saw that six persons had surrounded her son. She has also claimed that one of those persons had put revolver on the head of her son and one another intruder inflicted injuries by knife on the back of her son. She also identified all the accused persons and claimed that accused Kashi Ram had given knife injury to her son and accused Abdul Qadir put revolver on the forehead of her son. She has also identified accused Dharmender claiming that he had given knife blow to her husband. She has also identified accused Rajnu claiming that he was also present at that time. She has also claimed that in the scuffle, her son had lost one gold chain which could not be recovered. As per her deposition, her chain was snatched by the person who was carrying firearm i.e. accused Abdul Qadir. She further deposed that her son brought a revolver and fired two shots but by that time, all the accused persons were able to flee away. She further claimed that after some time, police came and recorded her statement. She also deposed that her gold chain, which had been taken by the accused persons, was subsequently recovered by the police and was released to her and she had also identified the same before the Court in TIP. She also identified such chain as Ex. P2. FIR No. 192/08 Shalimar Bagh 11 13 I have carefully gone through the testimony of aforesaid three witnesses including their crossexamination. I am of the considered opinion that they all have given a very truthful and credible version of the entire sequence and there is no single reason to disbelieve them. Defence has not been able to elicit anything from their crossexamination which may create any sort of doubt in the veracity and authenticity of the case of prosecution. Undoubtedly as per FIR and deposition of complainant, it was not Abdul Qadir who had snatched wearing chain of his mother. He rather assigns such role to accused Dharmender. His parents are, however, very categoric and have deposed that chain was snatched by accused Abdul Qadir. It is also the case of prosecution that chain was snatched by accused Abdul Qadir and his disclosure also depicts the same. Moreover, chain was also recovered from his jhuggi only. I feel that when at dead hour of the night, six dacoits enter inside any house, occupants of the house cannot be expected to give clearcut and definite role of each and every accused with mathematical precision. It's not difficult to imagine their mental state. They are bound to be under mental distress, shock and trauma. Indeed, they showed exemplary courage and did not give in meekly but FIR No. 192/08 Shalimar Bagh 12 fact remains that it would be still unjustifiably harsh to expect from all of them role of each accused with complete exactitude and in complete uniformity. Minor contradictions are bound to appear. I find that Parents of complainant have given correct role attributed to accused Abdul Qadir. He was the one who had also snatched wearing chain of Ms. Shakuntala. Slight goof up made in this regard by complainant cannot make the entire story distrustful. Moreover, on all other aspects and individual roles of other accused, all these three material witnesses are supporting one another. They all have also claimed that Abdul Qadir was the one who was armed with katta. In view of aforesaid, said minor deviation appearing on record can't be labelled as fatal. Reference may be made to the following observations of Supreme Court in the case of State of U.P. V. M. K. Anthony, AIR, 1985 SC 48 at page 54: "While appreciating the evidence of witnesses the approach must be whether the evidence of witnesses read as a whole appears to have a ring of truth. Once that impression is formed it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses, and whether the earlier evaluation of the evidence is shaken as to render it FIR No. 192/08 Shalimar Bagh 13 unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit the rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court, which had not this benefit will here to attach due weight to the appreciation of evidence by the trial court and unless there are necessary weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction is an unequal duel between a rustic and refined lawyer."
14 Ms. Bhatia has next argued that incident had taken place in a busy residential locality and it was very easy for the police to have joined independent witnesses but no neighbour was joined in the investigation and testimony of complainant party itself does not seem to be sufficient to bring home the guilt of accused persons. I, however, do not find any merit in such contention. I cannot be oblivious of the fact that incident had taken place at a very quiet hour of the night. It was 3.45 AM. All the intruders had gained entry in a very shrewd, clandestine and FIR No. 192/08 Shalimar Bagh 14 silent manner. They had broken the grill and made entry in the house through window. In such a situation, it is not expected that their entry would be noticed by the neighbours more so when it was 3.45 AM. Even Dr. Yadav could not have known the same. It is a matter of coincidence that he had to wake up to attend call of nature. Neighbours might have come to know about the incident after the incident when the shots were fired by Dr. Yadav but since incident was already over by that time, had any neighbour been associated in the subsequent investigation, it would not have served any real purpose? I, therefore, feel that nonjoining of any independent person is hardly of any consequence in the present context of the matter. 15 Defence has not been able to explain as to why all the three public witnesses would collectively depose falsely against all the accused persons. No animosity has been suggested and during arguments, defence was not able to cite any reason as to why the complainant party would dare to depose falsely against the accused persons. PW2 Laxmi Narayan is an aged man touching seventies and his wife is also of 65 years of age and there does not subsist any reason as to why they would try to rope in accused persons or would depose falsely. FIR No. 192/08 Shalimar Bagh 15 16 As it has already been noticed above, accused persons had been arrested in case FIR No. 97/08 PS Adarsh Nagar and then the information was flashed to the PS Shalimar Bagh as accused persons had made disclosure statements in that case of PS Adarsh Nagar. On the basis of such information, all the four accused persons were formally arrested in the present case. Their disclosure statements were recorded and pointing out memos were also prepared at their instance and they had also refused to participate in TIP. On the basis of material on record, a chart of dates has been prepared which is as under:
Sl. Name of Date of Date of Date of preparing Date when Date of No. accused arrest in the recording of of pointing out accused refused recovery of present case disclosure memos to participate in looted articles statements judicial TIP 1 Dharmender 24.04.2008 24.04.2008 01.05.2008 28.04.2008 2 Rajnu 24.04.2008 24.04.2008 02.05.2008 29.04.2008 3 Kashi Ram 02.05.2008 02.05.2008 02.05.2008 02/05/2008 (Mobile) 4 Abdul Qadir 02.05.2008 02.05.2008 07.05.2008 06.05.08 07.05.2008 (Chain)
17 Next stance of the defence is that request made for TIP was meaningless as accused persons had already been shown to the witnesses and their photographs were also shown to the witnesses when they were detained at PS Adarsh Nagar. FIR No. 192/08 Shalimar Bagh 16 However, defence has not been able to substantiate such assertion in any manner whatsoever. Dr. Yadav has categorically deposed in his crossexamination that he was never called by the officials of PS Adarsh Nagar and he had never gone to PS Adarsh Nagar. More so, no such suggestion was put to PW3 Smt. Shakuntala and no such suggestion was put to her husband Sh. Laxmi Narayan. Fact remains that even they have duly identified all the accused persons before the Court. PW18 ASI Gajender Singh was the investigating officer of said case of PS Adarsh Nagar and I have gone through his testimony and it has not been suggested to him that when the accused persons were arrested in case FIR No. 97/08 PS Adarsh Nagar and when accused persons were in police custody in that case, at any point of time, accused persons were shown to witnesses. PW16 SI Sudhir Gulia happens to be the investigating officer of the present case and he has also deposed that he had arrested accused persons in the present case with the permission of the Court and had recorded disclosure statements of accused. He has also categorically deposed that accused were produced before the Court in muffled faces and were sent to judicial custody for TIP. He has also deposed that he had moved application for TIP of accused Rajnu and Dharmender but they had refused to participate in TIP.
FIR No. 192/08 Shalimar Bagh 17 18 Undoubtedly, SI Sudhir Gulia also deposed that even accused Kashi Ram had refused to participate in TIP but fact remains that there is no material on record which may give even a slightest hint to the effect that investigating agency had ever made any request for holding judicial TIP of accused Kashi Ram. 19 All the other three accused persons had refused to participate in TIP and PW15 Sh. Prashant Kumar (the then learned MM) has entered into witness box and he has proved TIP proceedings. It has been deposed by him that accused Dharmender refused to participate in TIP when he had gone to Rohini Jail Complex on 28.04.2008. He has also deposed that accused Dharmender was warned that his refusal might be read against him during trial and adverse inference might be drawn but accused remained adamant in his refusal. TIP proceedings have been proved as Ex. PW15/A. Similarly, he has deposed that on 29.04.2008 accused Rajnu and on 02.05.2008 accused Abdul Qadir had refused to participate in TIP proceedings despite the fact that they both were also made aware that adverse inference might be drawn against them. TIP proceedings qua accused Rajnu have been proved as Ex. PW15/B and TIP proceedings qua FIR No. 192/08 Shalimar Bagh 18 accused Abdul Qadir have been proved as Ex. PW15/F. PW15 Sh. Prashant Kumar had also conducted TIP proceedings with respect to looted chain and such proceedings have also been duly proved by him as Ex. PW15/I. 20 It becomes apparent from the record that accused Abdul Qadir, Rajnu and Dharmender had no cogent reason with them for refusing to participate in judicial TIP. It does not borne out from the record that they were ever shown to the complainant party during investigation. Therefore, they were not justified in refusing to participate in judicial TIP. Moreover, I have not been able to find out any reason which may suggest that all the three public witnesses were having any motive to falsely implicate the accused persons. Their identification before the Court within a very short span i.e. six months of the occurrence is of immense importance. I am mindful of the fact that due to some slip up or inadvertence, investigating officer failed to move application praying for holding of TIP of Kashi Ram. Fact, however, remains that identification of Kashi Ram for the first time in the Court cannot be brushed aside. All the three witnesses have categorically identified him and have described the role of Kashi Ram as well. Kashi Ram is the person who had stabbed on the FIR No. 192/08 Shalimar Bagh 19 back of Dr. Yadav. In the case of DANA YADAV @ DAHU V. STATE OF BIHAR 2002 A.I.R. (SC) 3325, it has been observed as under: "It is also well settled that failure to hold test identification parade, which should be held with reasonable despatch, does not make the evidence of identification in Court inadmissible rather the same is very much admissible in law. Question is what is its probative value ? Ordinarily identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in Court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence."
21 In the same judgment, law with regard to test identification parade has been enunciated as under : FIR No. 192/08 Shalimar Bagh 20
(a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same.
(b) But in case either prayer is not granted or granted but no test identification parade held, the same ipso facto cannot be a ground for throwing out evidence of identification of an accused in court when evidence of the witness, on the question of identity of the accused from before, is found to be credible.
(c) Evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of accused by a witness in court.
(d) Identification parades are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable despatch for the purpose of enabling the witnesses to identify either the properties which are subject matter of alleged offence or that accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits.
(e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form basis of conviction, the same being from its very nature inherently FIR No. 192/08 Shalimar Bagh 21 of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.
(f) In exceptional circumstances only, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence can form the basis of conviction.
(g) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above.
22 Keeping in mind the aforesaid principles and the fact that accused persons including accused Kashi Ram were identified in the trial within six months of the incident, it cannot be said that such first time identification was improper. All the three witnesses are found to be very sure and confident and it seems to be exceptional situation where such first identification before court qua accused Kashi Ram has to be resolutely believed. 23 On the basis of information received from Control Room, DD No. 6A was recorded by PW4 ASI Sohan Singh and ASI FIR No. 192/08 Shalimar Bagh 22 Sohan Singh has deposed that call was handed over to ASI Ram Daras and SHO was also informed about the incident and SHO had also gone to the spot along with SI Sudhir and Ct. Nanhe Lal. PW4 ASI Sohan Singh had recorded FIR and he has also proved FIR as Ex. PW4/B. 24 PW5 Ct. Mahender was photographer attached with the Crime Team and he has also deposed that he had reached at the spot and had taken ten photographs of the spot from different angles. Photographs as well as negatives have been duly proved by him.
25 PW7 ASI Satpal Singh was Incharge of the Crime Team and he has deposed that despite best efforts, no chance prints could be recovered from the spot.
26 PW10 ASI Ram Daras and PW9 Ct. Nanhe Lal Mishra had reached at the spot along with Addl. SHO and SI Sudhir Gulia. I have seen their testimony and they have also supported the case of prosecution. PW10 ASI Ram Daras has deposed that on receipt of DD No. 6A, he along with Addl. SHO and other police staff reached at AE1, Shalimar Bagh in government FIR No. 192/08 Shalimar Bagh 23 vehicle and in the meanwhile SHO, PS Shalimar Bagh along with SI Sudhir Gulia and Ct. Nanhe Lal Mishra reached there. He also deposed that as per instructions of SHO, SI Sudhir Gulia took investigation and recorded statement of Dr. Umesh Yadav and prepared rukka. He has deposed that he was given rukka and he went to PS Shalimar Bagh for registration of case and handed over copy of FIR and original rukka to the IO. He has also deposed that IO had inspected the spot and recovered two empty cartridges from the spot and one button was also seized from the spot which was stated to be of one of the accused persons. He has also deposed that both the empty cartridges were kept in a match box and button was also kept in separate match box and both the match boxes were wrapped in a separate cloth pieces and pullandas were prepared and sealed with the seal of RD and were taken into possession vide memos Ex. PW9/A and PW9/B. Seal, after use, was handed over to Ct. Nanhe Lal. Case property was also produced before him and he identified the button as Ex. P3 and empty cartridges as Ex. P4 and P5.
27 To the similar effect is the testimony of Ct. Nanhe Lal Mishra.
FIR No. 192/08 Shalimar Bagh 24 28 IO SI Sudhir Gulia has also deposed on identical lines. He has deposed that he had recorded statement of Dr. Yadav and such statement has been proved as Ex. PW1/A. He has also deposed that complainant was having injury on his back and Laxmi Narayan (father of complainant) was also injured and they both were sent for medical examination with Ct. Nanhe. He has proved rukka and also deposed that such rukka was sent to PS for registration of case through ASI Ram Daras. He has also proved site plan as Ex. PW16/B. He also deposed that Crime Team had also reached at the spot and spot was inspected by the Crime Team and was photographed. He has also proved recovery of button as well as two empty cartridges. He has also deposed that on 13.04.2008 he received information regarding arrest of accused Abdul Qadir and Dharmender in case FIR No. 97/08 and he has also deposed about the subsequent information regarding arrest of other accused. He also deposed that he had collected disclosure statements of accused persons which they had made during investigation of case FIR No. 97/08 PS Adarsh Nagar. He has also deposed that with the permission of the Court, he had formally arrested all the accused persons. All the concerned police officials of PS Adarsh Nagar viz PW 11 Insp Sudesh Ranga, PW 13 HC Sanjay Malik, PW 14 HC Ramesh Chand, PW 17 HC FIR No. 192/08 Shalimar Bagh 25 Ved Prakash and PW 18 ASI Gajender have also entered into witness box.
29 This brings me to the recovery of looted items. As already noticed above, one chain and one mobile phone had been looted away by the intruders. Dr. Umesh Yadav has deposed that his one gold chain was also attempted to be taken away but it is not clear whether accused persons had been able to take away such broken chain with them or not. PW3 Smt. Shakuntala has also deposed that at the time of incident and in the scuffle, her son had lost one gold chain which could not be recovered. She has, however, deposed that her wearing gold chain had been snatched by accused Abdul Qadir. PW2 Sh. Laxmi Narayan has also deposed that Abdul Qadir had snatched wearing chain of his wife Smt. Shakuntala. As per case of prosecution, such chain was recovered at the instance of accused Abdul Qadir on 07.05.2008. PW16 SI Sudhir Gulia has deposed that on 07.05.2008, during police remand of accused Abdul Qadir, accused Abdul Qadir led the police party at his jhuggi situated at Sarai Peepal Thala, Azadpur Mandi and from his such jhuggi, he got recovered one blue rexin bag and such bag was containing one gold chain and accused had admitted that said gold chain was the same as had FIR No. 192/08 Shalimar Bagh 26 been looted from AE1 i.e. house of complainant. Such gold chain was kept in a match box and was seized vide memo Ex. PW6/B. Seal of VPS was put on the pullanda and seal, after use, was given to HC Vijay Pal. PW6 HC Vijay Pal has entered into witness box and he has also deposed on the same lines and claimed that on 07.05.2008 accused had led them to the place of incident and identified place of occurrence and from there he led the police party to his jhuggi and from there he got recovered one gold chain from a rexin bag. Ms. Bhatia has contended that such recovery is not believable as no neighbour or public person was joined at the time of such recovery. She has contended that as per HC Vijay Pal, such recovery had taken place at 1.00 PM and there were clusters of jhuggies and no public person was called from the other jhuggies at the time of recovery. She has also contended that no document exists on record which may show that such jhuggi was owned by accused Abdul Qadir. She has contended that though SI Sudhir Gulia has deposed that he tried to call public persons but fact remains that neither the names or address of such public persons were recorded nor any action was taken against them. She has contended that no site plan with respect to place of recovery was prepared and, therefore, recovery is unbelievable. Undoubtedly, jhuggi was situated in a JJ cluster FIR No. 192/08 Shalimar Bagh 27 and it would have been much better had any neighbour been associated in such recovery. At the same time, I cannot be oblivious of the fact that public persons do not always come forward in this regard and they rather show least interest in associating themselves with respect to such recovery or raids. Simply due to the aforesaid reason, recovery cannot be doubted. Even if the police had not gathered any document to show that such Jhuggi was owned by accused Abdul Qadir, recovery stands established as recovery was at his instance only. TIP of such gold chain was also conducted and proceedings have been duly proved. Defence cannot expect that ownership document of such chain has to be sine qua non for believing the robbing of chain. It is very rare that people would retain such type of documents with respect to their wearing ornaments etc. Moreover, no question in this regard was put to Parents of complainant or to complainant. 30 As far as mobile phone is concerned, it has come on record that such mobile phone was recovered at the instance of accused Kashi Ram on 02.05.2008. PW6 SI Sudhir Gulia has deposed that on 02.05.2008 accused Kashi Ram took the police party to platform of Kela Godam Railway Station and he pointed out towards the place where he had kept such mobile in a FIR No. 192/08 Shalimar Bagh 28 polythene beneath ground. At his instance, mobile phone of blackblue coloured make Nokia wrapped in a polythene was recovered and IMEI number was also checked and such mobile phone was seized and seizure memo Ex. PW6/A was prepared. I have seen the seizure memo and as per seizure memo, seal of VPS was put on such pullanda and was given to Ct. Charan Singh after use. Attesting witnesses HC Vijay Pal and Ct. Charan Singh have also entered into witness box. PW6 HC Vijay Pal has deposed that on 02.05.2008 at the instance of accused Kashi Ram from Kela Godam near platform, mobile phone was recovered from the bushes. PW8 Ct. Charan Singh has also deposed that accused had led them to bushes situated near Kela Godam and from a heap of mud inside bushes accused Kashi Ram got recovered one mobile phone make Nokia which was wrapped in a polythene. He has also deposed that seal after use was handed over to him. PW1 Dr. Umesh Yadav has also deposed that he was told during investigation that his mobile phone had been recovered and he had taken the same on superdari. He also produced the same before the Court and the Court had also seen the mobile phone and IMEI number was also crosschecked by the Court. Receipt of purchase of mobile is found to be there on record but somehow, it was not proved during the trial. It, FIR No. 192/08 Shalimar Bagh 29 however, does not have much adverse impact. Ms. Bhatia has raised similar contention that no public witness was associated at the time of such recovery and, therefore, recovery is doubtful. I do not find any merit in such contention and as already noticed above, general public is always reluctant and hesitant in associating themselves with such type of recoveries. Merely because public persons were not joined at the time of such recovery, recovery cannot be straightaway doubted or disbelieved. Recovered articles were looted away articles and were duly identified by the complainant side. In a case of dacoity, recovery of the stolen articles from the accused has considerable importance because in appropriate cases, if there is not much of time lag, the persons from whom such articles have been recovered can be convicted for commission of dacoity by drawing a presumption under S. 114(a) of the Evidence Act. The law on the subject has been well discussed in the case of SHIVAPPA V. STATE OF MYSORE, AIR 1971 SC 196 : (1971 CRI LJ 260). 31 Thus, all the relevant documents prepared during investigation stand duly proved. MLCs of Complainant and his father have also been proved. Fortunately, they escaped with superficial injuries only. Deposition of Dr. Sanjay is also FIR No. 192/08 Shalimar Bagh 30 unrebutted. From the testimony on record, it becomes apparent that accused persons with two more unknown persons had gained entry inside the house of complainant by removing the grill and through window. It also stands proved that accused Abdul Qadir was armed with katta (country made pistol) and had put the same on the forehead of complainant Dr. Umesh Yadav. It also stands proved that accused Kashi Ram and accused Dharmender were also armed with knives. However, there is nothing on record to suggest that accused Rajnu was armed with any weapon much less a deadly weapon.
32 From the testimony on record it also stands proved that all the accused persons had fled away from the spot as they felt scared when complainant Dr. Umesh Yadav fired two shots with his licensed firearm but while fleeing away, accused persons had taken away one chain and also one mobile phone of Dr. Umesh Yadav. Recovery of chain and recovery of mobile phone also stand duly established. It is not comprehensible whether chain of complainant which got broken during the scuffle was also looted away or not.
33 It has also come on record that there were six FIR No. 192/08 Shalimar Bagh 31 persons in all who had entered inside the house at the time of dacoity. Four persons i.e. all the accused were nabbed and arrested in the present case but two other unknown persons could not be arrested. Since it is manifest that intruders were more than five in number, it becomes a case of dacoity. 34 All the accused persons were charged for offence u/s 398 IPC as well. Offence u/s 398 IPC stands attracted when there is an attempt to commit robbery or dacoity. In the case in hand, the dacoity actually took place as all the accused persons along with two unknown intruders had gained entry inside house of complainant and had also taken away mobile and one gold chain. It was due to the terrific courage shown by the complainant and his parents that the magnitude of the dacoity was not that grave. Due to the shots fired by Dr. Yadav, all such intruders felt frightened and fled. Offence u/s 398 IPC, being related to attempt simpliciter, does not stand attracted in the present case.
35 397 IPC does not create a substantive offence but it only regulates measure of punishment. It has already been proved that except accused Rajnu, all the accused persons were FIR No. 192/08 Shalimar Bagh 32 armed with deadly weapons. Katta (country made pistol) as well as knives are deadly weapons. It also stands proved that such weapons were used and displayed in order to frighten the victims. These weapons were within the vision of victims and thus were capable of creating terror in their minds. Katta was put on the forehead of Dr. Yadav and though it was not used literally but for the purpose of Section 397 IPC, deemed user is found to be there as Dr. Yadav was threatened and overawed by such firearm. However, there is nothing on record which may suggest that accused Rajnu was armed with any weapon. As per judgment of our own High Court given in the case of SURENDER SINGH VS. STATE 2007 (VOL. I), RCR 447, only that person can be held guilty u/s 397 IPC who had actually used such deadly weapon. In the case of PHOOL KUMAR VS. DELHI ADMINISTRATION AIR 1975 SC 905, it has been observed that used of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of sentence on another offender who had not used any such deadly weapon. Thus, it becomes apparent that in such a situation, in order to attract Section 397 IPC, provision u/s 34 IPC cannot be borrowed. Therefore, accused Rajnu cannot be made liable u/s 397 IPC. FIR No. 192/08 Shalimar Bagh 33 36 Conduct of all the accused persons categorically reveals that they had committed house breaking by night and they had made preparation for causing hurt to the occupants of the house. Common intention of the accused person is writ large and needs no further elaboration or discussion. 37 In view of foregoing discussion, accused are held guilty and convicted as under:
(i) All the four accused
persons are convicted for offence
u/s 458/34 IPC.
(ii) All the four accused
persons are also held guilty for
offence u/s 395/34 IPC.
(iii) Accused Dharmender,
Abdul Qadir and Kashi Ram have
made themselves liable to be
sentenced for a period not less than
seven years in view of Section 397
IPC.
Announced in the open Court
On this 12th day of November, 2009.
(MANOJ JAIN)
ASJ/Special Judge (NDPS)
Outer District: Rohini Courts: Delhi
FIR No. 192/08 Shalimar Bagh 34
FIR No. 192/08
PS Shalimar Bagh
U/s 395/397/398/458/34 IPC
State Vs. Dharmender etc.
13.11.2009
Present: Ms. Purnima Gupta, learned Addl. P.P. for the State.
All convicts in JC with Ms. Sadhna Bhatia, learned Amicus Curiae.
1 Heard arguments on sentence.
2 Learned Addl. P.P. has contended that a very serious view should be taken as such type of incidents are on rise. She has also argued that such incidents leave a permanent scar on the minds of victims and maximum punishment should be awarded to convicts.
3 Ms. Bhatia has, on the other hand, contended that a very lenient view be taken. She has argued that convicts have no previous history. It has been argued by her that convicts Abdul Qadir and Dharmender are young offenders in their twenties and are unmarried and they are sole bread earners for their respective families. She has also contended that convict Rajnu is 56 years of age and has four children and similarly convict Kashi Ram is 54 years of age and he has six children including two unmarried FIR No. 192/08 Shalimar Bagh 35 daughters.
4 It is a serious case of dacoity. Any clemency in sentence would not only be undesirable but also would be horrendous. Any liberal attitude by imposing meager sentences or taking too sympathetic view would prove counterproductive in the long run and would go against societal interest which needs to be cared for and strengthened by falling upon deterrence inbuilt mechanism in the sentencing system. These are the cases where it becomes tremendously important for court to adopt unyielding approach. Hardheartedness is to be shown to such people who are menace to civilized world and who cause disruption in the social life of the community and create terror and panic in the minds of general public.
5 Accused were desperate in their evil design. They broke the window grill at dead hour of the night. They were armed with deadly weapons and used those as well. Luckily, complainant displayed great presence of mind and was able to isolate himself and his family and then scared them away by firing with his licensed pistol. Though it is said that time is the greatest healer yet mental scar of such incident would be hard to be swept away by complainant and his family.
FIR No. 192/08 Shalimar Bagh 36 6 If convicts are let off leniently, they are not going to mend their ways and would rather start thinking of indulging in same activities all over again. Simultaneously by sentencing them to the maximum term, such unending incarceration may retard their reformation and rehabilitation altogether. 7 After giving due consideration to the facts and circumstances of the case, keeping in mind the aggravating and mitigating factors, all the convicts are sentenced as under:
Convicts Dharmender, Abdul Qadir and Kashi Ram
(i) All the aforesaid three convicts are sentenced to rigorous imprisonment for 10 years for offence u/s 458/34 IPC and they all are fined Rs. 5000/ each in default thereof they would undergo SI for a further period of one month.
(ii) All the aforesaid three convicts are sentenced to rigorous imprisonment for a period of 10 years and fined Rs.
5000/ each in default thereof they would further undergo SI for a period of one month for offence u/s 395/34 r/w Section 397 IPC.
Convict Rajnu
(i) Aforesaid convict is sentenced to rigorous imprisonment for 10 years for offence u/s 458/34 IPC and he is fined Rs. 5000/ in default thereof he would undergo SI for a FIR No. 192/08 Shalimar Bagh 37 further period of one month.
(ii) Convict Rajnu is sentenced to rigorous imprisonment for a period of 7 years and fined Rs. 5000/ in default thereof he would further undergo SI for a period of one month for offence u/s 395/34 IPC.
8 All the sentences would run concurrently and all the convicts would be entitled to benefit of Section 428 Cr.P.C. 9 Superdarinama on record is cancelled and complainant may be informed about the cancellation of superdarinama.
10 They be sent to jail under appropriate warrants. 11 Fine has not been deposited.
12 A copy of judgment and order on sentence be given to each convicts free of cost.
13 File be consigned to record room.
Announced in the open Court on this 13th day of November, 2009.
(MANOJ JAIN) ASJ/Special Judge (NDPS) Outer Distt: Rohini Courts: Delhi FIR No. 192/08 Shalimar Bagh 38