Delhi District Court
Ps - Punjabi Bagh vs ) Jamal Mirza on 25 April, 2009
-:1:-
IN THE COURT OF SH. DEEPAK GARG
ADDL. SESSIONS JUDGE, FAST TRACK COURT,
ROHINI COURTS : DELHI
SC No. 58/1
Date of institution of the case: 05/12/2008
Date of order of conviction: 15/04/2009
State
Versus
1) Jamal Mirza
S/ o Noor Islam
R/o Village Rajaur gram
PS Randha
District- Khulna (Bangladesh)
2) Mohd. Faruq @ Mohd. Raju
S/o Abdul Qadar
R/o Village- Balipura
PS Inder Khaini,
Distt. Khulna (Bangladesh)
3) Alam @ Mamoon
S/o Abdul Salam
R/o Vill & PS Bagrahar,
District Khulna (Bangladesh)
4) Nizam @ Tittoo
S/o Ganny
R/o Vill & PS Bagrahar,
District Khulna (Bangladesh)
FIR No. 346/2000
PS - Punjabi Bagh
U/s. 395/396/397/302/307 IPC
& 25/54/59 Arms Act.
-:2:-
Judgment
The present case demonstrates the plight and
suffering suffered by Nijhara family on the night of
07/05/2000. The Nijhara family lived at 64/41, West Punjabi Bagh, Delhi, which was a double storeyed house. Three brothers,namely, Jitender, Kaushlender and Ravinder @ Ravi were living on the first floor of the said house with their respective families. Their sister,namely, Renu, mother and younger brother Rajiv with his family were living on the ground floor of the said house. As per the case of prosecution, on 07/05/2000 at about 4.30 a.m., six persons entered the room of Ms. Megha Nijhara, daughter of Jitender Nijhara, who was sleeping in the room with her younger sister Radhika and younger brother Raghav. The said persons had allegedly entered from a window. All the said boys were armed with either pistol or dagger in their hands. When they entered the room of Megha Nijhara, she woke up due to the sound and she saw that six boys were standing near her bed, out of which four were having pistols in their hands and remaining two were having daggers in their hands. They threatened her not to shout and that if she will raise alarm, -:3:- they will kill her. Megha Nijhara asked them to take whatever they wanted and in the meantime, her younger sister Radhika and younger brother Raghav woke up and she took them in her lap. The said boys tore the bed-sheet with the help of their dagger and they tied their hands and feet with it and they asked Megha about the whereabouts of jewellery and cash amount in their house and they also asked her as to in which room her parents were sleeping. Then those boys made Megha and her younger brother and sister got up and she was directed to take them to the room where her parents were sleeping and they asked her to call her parents for opening the door. Megha knocked the door of her father and called him and when her father opened the door, he saw the accused persons who had pointed arms towards them and on seeing this, her father caught her hand and tried to drag her inside the room and at that time, one of the accused threatened her father that he will shoot dead his daughter Radhika in case he tried to move or do something. Thereafter, all the said boys managed to enter the room of her father and they also tied the hands of her father on his back with the torn stripe of the cloth of her bed-sheet. The said boys also tried to -:4:- tie the hands of her mother but her mother requested that she was a heart patient and hence they did not tie her mother. The accused persons asked her father as to where the cash and jewellery articles were lying in the house and her father replied that the cash and the jewellery articles were lying in the room of his mother which was on the ground floor. Thereafter, two boys took her father i.e. Jitender on the ground floor. The remaining assailants ransacked the almirahs of the room of Jitender and Manju Nijhara (wife of Jitender Nijhara) and they removed the cash amount which was lying in the almirah and they also removed two gold bangles, two diamond bangles, a diamond necklace and Titan watch and they put the same in their pockets. They wrapped the cash amount in the shirt of Jitender Nijhara which was lying there. After sometime of the taking of Jitender to ground floor, Smt. Manju Nijhara asked the assailants about whereabouts of her husband and it was stated to her that her husband was no more. On hearing this, Smt. Manju Nijhara ran towards the room of her brothers-in law,namely, Ravinder @ Ravi and Kaushlender who were also living on the same floor and she raised alarm to save her. Ravinder @ Ravi and -:5:- Kaushlender also came out of their respective rooms and they grappled with the accused persons who were present in the room and one of the accused fired pistol on the chest of Ravinder @ Ravi and he fell down then and there. Kaushlender also received bullet injury on his left side belly and he was also attacked with the knife by the accused persons. He was also hit with the butt of the revolver on his head.
Thunders of bullet firing was coming from the ground floor. When Jitender was forcibly taken on the ground floor, the door of the ground floor was opened by his sister Renu who saw from the peephole that two persons were standing on both side of her brother Jitender and they were pointing revolvers towards him. Renu opened the door and her brother Jitender asked him to keep quiet. Thereafter, both the accused persons took them in the room of their mother and they demanded that the entire cash should be handed over to them. One of those persons tore the bed-sheet and tied both the hands of Renu and their mother on their backside and they removed the gold bangles from the hands of Renu and her mother. Accused persons opened the -:6:- almirah of the room and articles from the almirah were drown out. The accused persons were abusing and misbehaving with them and they heard sound of firing from the first floor. In the meantime, third person who was outside the room, also came in the room and inquired from his companions as to whether they have got cash and he stated that if they did not hand over cash, the occupants of the house should be shot dead. One of them fired in the air and then Jitender was made to sit on a chair and one of the accused shot him on his shoulder. In the meantime, their younger brother,namely, Rajiv also got up on hearing the noise and sound of firing of police and he came in front of a window and raised alarm. In the meantime, two accused persons came in front of him, out of which one was having revolver and he fired a bullet from his revolver aiming towards Rajiv Nijhara and it hit him on his abdomen. Both the said accused ran towards backside stairs of the house and then all the accused persons managed to flee away from the spot. Rajiv Nijhara opened the door of his room after the sound of fire had stopped and he saw that his brother Jitender had sustained bullet injuries and he was lying unconscious. In the meantime, one neighbour, namely, -:7:- Narender Singh Arora alongwith his brother came to the house of Nijhara family. They together with Rajiv Nijhara and Smt. Manju Nijhara took Jitender, Kaushlender and Ravinder @ Ravi to Maharaja Agrasen Hospital, Punjabi Bagh. Ravinder @ Ravi Nijhara was declared dead by the doctor.
From Maharaja Agrasen Hospital, injured Kaushlender was shifted to AIIMS for treatment and Ravinder @ Ravi was shifted to Sir Ganga Ram Hospital where he was declared as dead. Dr. Chander Mohan Bansal initially examined Jitender, Kaushlender, Ravinder @ Ravi and Rajiv at Maharaja Agrasen Hospital on 07/05/2000 at about 6.00 a.m. Information of the incident was received at police station Punjabi Bagh at about 5.20 a.m., 5.55 a.m., 07.05 a.m., 07.10 a.m. and 8.15 a.m. vide entries DD No. 53B, DD NO. 54B, DD No. 2B, DD No.3B, DD No. 26A and DD No. 25A. Inspector Ram Singh Chauhan, SHO, PS Punjabi Bagh was present with his staff at H.No. 28/45, Punjabi Bagh, at about 5.20 a.m. on 07/05/2000 and he received wireless message about the incident of this case and thereafter, he alongwith SI Rohit Kumar, Constable Satbir, Constable -:8:- Pradeep and Head Constable Abid reached H.No. 63/41, West Punjabi Bagh, and the police saw that blood was lying at several places such as lobby, stairs at the first floor and the almirahs on the ground and first floor were lying open and the articles were found scattered. Inspector Ram Singh Chauhan met Megha at the house who narrated the entire incident to him and she disclosed that her father Jitender and his three injured brothers have been shifted to Maharaja Agrasen Hospital, Punjabi Bagh. Megha made a statement to the police on the basis of which Inspector Ram Singh Chauhan prepared an endorsement and got the FIR registered through Constable Satbir. The copy of the FIR was also sent to Area Magistrate and senior police officials. Inspector Ram Singh Chauhan left Constable Abid at the spot and he went to Agrasen Hospital where he collected MLCs of Rajiv Nijhara, Kaushlender, Ravinder @ Ravi and Jitender respectively. Kaushlender and Jitender were declared to be unfit for statement by the doctors. The doctors in Agrasen Hospital handed over to Inspector Ram Singh Chauhan two sealed parcels sealed with the seal of the hospital and the same were containing clothes of injured Kaushlender and Jitender -:9:- which were seized by him vide a recovery memo and thereafter, Inspector Ram Singh Chauhan came at the spot where crime team was also called and SI Ganga Ram, finger print expert, was able to lift six chance prints and a private photographer was called who took the photographs of the spot. Inspector Ram Singh Chauhan prepared two site plans of the place of crime i.e. of the ground floor and of the first floor at the pointing out of Megha and he also found two bullet head pieces lying on the first floor room of Jitender Nijhara which were lifted by him and he prepared rough sketches of those bullet heads and the same were kept in a pullanda and sealed with the seal of "RSC". The police also found two sports shoes in the adjoining room of the first floor which were also kept in a parcel and sealed with the seal of "RSC". Inspector Ram Singh Chauhan went to Sir Ganga Ram Hospital and he collected the dead body of deceased Ravinder @ Ravi and the body was shifted to Sanjay Gandhi hospital where Dr. Komal Singh conducted postmortem on the body of deceased Ravinder @ Ravi. Investigating Officer also collected MLC of Kaushlender Nijhara from AIIMS.
One of the accused,namely, Jamal Mirza was -:10:- arrested on 11/05/2000 in case FIR No. 297/2000, PS Saraswati Vihar by Anti Robbery Section, Crime Branch, New Delhi, and one loaded country made pistol was recovered from his pocket. He disclosed about his involvement in the present case and hence the police was able to connect him with the present case. Thereafter, Inspector Ram Singh Chauhan arrested Jamal Mirza in this case and he moved an application for conducting test identification parade (hereinafter referred to as TIP) but accused Jamal Mirza refused to participate in TIP. On 22/05/2000, accused Jamal Mirza made a disclosure statement to the police and in pursuance of the same, on 23/05/2000, he got recovered a dagger which was used in commission of this offence from a vacant floor which was situated at 4th place from the place of incident. Investigating Officer prepared the sketch of the recovered dagger and the same was seized by him.
On 23/08/2000, Mohd Faruq @ Raju was arrested by Anti Robbery Cell, Crime Branch, Delhi Police, in case FIR No. 161/2000, PS Janakpuri, and in the said case, he made a disclosure statement regarding his involvement in the crime of the case in hand and on 28/08/2000, SI Rohit Kumar, -:11:- arrested Mohd. Faruq @ Raju in this case. He was also produced before the Metropolitan Magistrate and an application was moved for his TIP but he also refused to participate in the TIP proceedings.
On 12/12/2000, other two accused persons,namely, Nizam and Alam were arrested in case FIR No. 767/2000, U/s. 395/397 IPC, PS City Faridabad and both the said persons disclosed about their involvement in the commission of the present case and information was passed on to Police Station Punjabi Bagh and in pursuance of the same, both the said persons were also arrested in the present case by SI Rohit Kumar on 19/01/2001. Application for holding of TIP of both the said accused persons was moved before the concerned court and in the TIP proceedings, Mr. Kaushlender correctly identified Alam as one of the person who had committed the offence. The other accused,namely, Nizam declined to participate in the TIP proceedings on the ground that he had been shown to the witnesses in the police station. On 11/07/2000, all the sealed parcels were sent to FSL, Malviya Nagar, and the result from FSL was received on 31/10/2000. The police was not able to arrest the remaining -:12:- accused persons. After completion of investigation, police filed challan against all the four accused persons U/s. 396/397/302/307 IPC & 25/54/59 Arms Act.
After compliance with provisions of Section 207 Cr.PC, case was committed to Court of Session vide order dated 11/09/2000.
Prima facie case having been made out, charge for offences U/s. 396, 395/397 IPC was framed against accused Alam @ Mamoon and Nizam @ Tittoo on 06/07/2001 whereas charge for offences U/s. 396 and 397 IPC was framed against accused Jamal Mirza and Mohd. Faruq @ Mohd. Raju on 27/03/2001. Since the accused pleaded not guilty and claimed trial, prosecution was called upon to lead its evidence.
It may be mentioned here that during trial, amended charge U/s. 396 & 395/397 IPC was framed against accused Alam @ Mamoon and Nizam @ Tittoo on 15/05/2008 as in the charge earlier framed, date of incident was mentioned as 05/505/2000 whereas the date of incident was 07/05/2000.
In support of its case, prosecution has examined, -:13:- in total, 47 witnesses i.e. PW1 Dr. Chander Mohan Bansal:
PW2 Dr. Jeevan Jyoti Bahia; PW3 Head Constable Balbir Singh; PW4 Sardar Narender Singh; PW5 Vijay Sobti; PW6 Dr. Komal Singh; PW7 Ms. Renu; PW8 Rajiv Nijhara; PW9 Constable Pardeep Kumar; PW10 Constable Omkar; PW11 Sh. Ajay Mahajan; PW12 Kaushlender; PW13 Jitender Nijhara; PW14 Head Constable Suresh Chander; PW15 Megha Nijhara; PW16 Manju Nijhara; PW17 Gurvinder Singh; PW18 Constable Swaran Singh: PW19 ASI Madan Lal: PW20 ASI Abid Khan; PW21 ASI Urmil Sharma; PW22 SI Ganga Ram; PW23 Head Constable Jaswant Singh; PW24 Constable Janak; PW25 Head Constable sunder Singh (wrongly mentioned as PW24); PW26 SI Satish Kumar (wrongly mentioned as PW25); PW27 SI Rohit Kumar (wrongly mentioned as PW25); PW28 ASI Seema; PW29 Sh. L.K. Gaur; PW30 Sh. Ashok Kumar Nijhara; PW31 Head Constable Umed Singh; PW32 ASI Ram Kishan;PW33 Inspector R.K. Ojha; PW34 Constable Puran; PW35 W/SI Umesh Bala; PW36 Constable Narender; PW37 Head Constable Satbir; PW38 Constable Sajjad Ali; PW39 Dr. Shahabuddin ; PW 40 Dr. Amit Gupta; PW41 Satish Kumar -:14:- Ahuja; PW42 Head Constable Jagmer Singh; PW43 Inspector Krishan Kumar; PW44 Indersen; PW45 Inspector Suresh Kaushik; PW46 retired ACP Ram Singh Chauhan and PW 47 Khem Chand.
The evidence led by the prosecution can mainly be classified into following categories:
I) Statements of victims and other public
witnesses:
The incident in question took place in the house of Nijhara's. Renu Nijhara, Rajiv Nijhara, Kaushlender Nijhara, Jitender Nijhara, Megha Nijhara and Smt. Manju Nijhara have been examined as PW7, PW8, PW12, PW13, PW15 and PW16 respectively. I shall discuss about their statements in the later part of the judgment.
Sardar Narender Singh (PW4) was the neighbour of the Nijhara family and he has stated that on 07/05/2000, he was sleeping in his house and at about 4.45/5.00 a.m., he heard sound of firing in the house of the Nijhara family and he also heard some people crying. He went to the house of the Nijhara family and there some of the family members were shouting "bachao-bachao" and "Daku aa gaye" and he also -:15:- saw that three brothers of the Nijhara family were injured and he removed two injured to Maharaja Agrasen Hospital.
Sh. Vijay Sobti (PW5) was the friend of Rajiv Nijhara and he had identified the dead body of Ravinder @ Ravi Nijhara and he had made a statement in this regard which is Ex. PW5/A. Sh. Ajay Mahajan (PW11) was also one of the neighbour of the Nijhara family and he has stated that on 23/05/2000, police had brought accused Jamal Mirza to the house of Nijhara family where the family members of the Nijhara family had identified him as one of the person who was amongst the persons who committed the offence in question. He is also a witness of the recovery of knife vide memo Ex. PW8/B which was got recovered by accused Jamal Mirza from nearby plot No. 69/41, Punjabi Bagh, Delhi. He further stated that police prepared sketch of the said knife which is Ex. PW8/A. Sh. Gurvinder Singh (PW17) is the brother of Sardar Narender Singh (PW4) and he accompanied by his brother PW4 had removed the injured to Agrasen Hospital.
Sh. Ashok Kumar Nijhara (PW30) is a witness of -:16:- the identification of the dead body of his cousin Ravinder @ Ravi Nijhara and he has proved his statement Ex. PW30/A. II) Medical evidence on record :
Dr. Chander Mohan Bansal (PW1), Maharaja Agrasen Hospital, Punjabi Bagh, Delhi, had examined Rajiv, Kaushal, Ravinder @ Ravi and Jitender vide MLCs Ex. PW1/A, Ex. PW1/B, Ex. PW1/C and Ex. PW1/D respectively. Ravinder @ Ravi was brought dead in the hospital as according to doctor, there was no respiration; no heart sound was audible and pupils were dilated and fixed.
Dr. Jeevan Jyoti (PW2) had examined Ravinder @ Ravi Nijhara who was shifted to Sir Ganga Ram Hospital from Maharaja Agrasen Hospital, Punjabi Bagh. The patient was declared brought dead and according to doctor, there were two gun shot wounds on his body and he prepared the MLC which is Ex. PW2/A. He also prepared death summary which is Ex. PW2/B and death certificate was also issued which is Ex. PW2/C. Dr. Amit Gupta (PW40), Assistant Professor, AIIMS, New Delhi, had examined Kaushal Nijhara who was brought to the casualty of AIIMS hospital from Maharaja -:17:- Agrasen Hospital. The doctor found several external injuries on his body and he prepared the MLC, copy of which is Ex. PW40/A. Dr. Komal Singh (PW6), CMO, Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi, conducted postmortem examination on the body of deceased Ravinder @ Ravi and he found several injuries on his person and he has proved his detailed report which is Ex. PW6/A. As per the doctor, the cause of death was hemorrhagic shock due to firearm injury to the lung.
III) Investigation conducted by the police :
Head Constable Balbir Singh (PW3) was working as duty officer at Police Station Punjabi Bagh and on 10/05/2000 at about 5.30 p.m., he received information on telephone from duty Constable AIIMS hospital regarding admission of Kaushal Nijhara in AIIMS and the fact that the doctor had taken out the bullet from his body and the same was recorded in DD No.17A, copy of which has been proved as Ex. PW3/A. He has also proved DD No.44B dated 10/05/2000, copy of which is Ex. PW3/B. He has also proved DD No.11A dated 12/05/2000, copy of which is Ex. PW3/C. -:18:- Constable Pradeep Kumar (PW9) had brought the dead body of Ravinder @ Ravi Nijhara from Sir Ganga Ram Hospital to Sanjay Gandhi Memorial hospital mortuary where proceedings U/s. 174 CrPC was conducted by Investigating Officer Inspector R.S. Chauhan and he further stated that after postmortem, the dead body was kept in the mortuary till it was given to the claimants.
Constable Omkar (PW10) had accompanied Constable Pradeep Kumar (PW9) when the dead body of Ravinder @ Ravi was brought to SGM hospital for postmortem. After postmortem, the doctor handed over to him three sealed parcels duly sealed with the seal of "KS" which allegedly contained bullet pieces, blood sample and blood stained clothes of Ravinder @ Ravi alongwith two sample seals which were handed over by him to the duty officer which were taken into possession vide memo Ex. PW10/A. Head Constable Suresh Chander (PW14) was posted as MHC(M) at Police Station Punjabi Bagh who stated that on 07/05/2000, Inspector Ram Singh Chauhan had deposited with him seven sealed parcels, out of which, five -:19:- were sealed with the seal of "RSC" and two parcels were sealed with the seal of Maharaja Agrasen Hospital alongwith sample seal and the copies of seizure memos of the parcel in respect of which he made entry in the malkhana register at serial No. 2830 which is Ex. PW14/A. He has further stated that on 09/05/2000, duty officer Head Constable Madan Lal had deposited three sealed parcels duly sealed with the seal of "KS" and sample seal and a copy of seizure memo in respect of which he made entry in the malkhana register at serial No. 2835 which is Ex. PW14/B. He further stated that on 10/05/2000, W/ASI Urmil Sharma had deposited a sealed parcel duly sealed with the seal of "CMO AIIMS hospital, New Delhi" and sample seal alongwith seizure memo in respect of which he made entry in the malkhana register at serial No. 2838 which is Ex. PW14/C. He further stated that on 23/05/2000, Inspector Ram Singh Chauhan had deposited a sealed parcel duly sealed with the seal of "SS" and sample seal alongwith seizure memo in respect of which he made entry in the malkhana register at serial No. 2862 which is Ex. PW14/D. He further stated that on 11/07/2000, all the above said sealed parcels were sent o FSL, Malviya Nagar, vide RC -:20:- No. 8321 which is Ex. PW14/E through SI Rohit Kumar for expert opinion and the result of the parcels were received on 31/10/2000 through Constable Shahvir.
Constable Swaran Singh (PW18) delivered copy of FIR on 07/05/2000 to the concerned Metropolitan Magistrate, Additional DCP( South Range), DCP (West) and ACP, Punjabi Bagh.
ASI Madan Lal (PW19) was the duty officer at PS Punjabi Bagh on 09/05/2000 and at about 04.55 p.m., Constable Omkar Singh (PW10) came from Sanjay Gandhi Memorial Hospital mortuary and handed over to him four pullandas duly sealed with the seal of "KS". One pullanda was containing blood of deceased; second pullanda was containing one bullet piece; third pullanda was containing blood stained clothes of the deceased and the fourth pullanda was containing two sample seals of "KS". He seized the said pullandas vide memo Ex. PW10/A and deposited the same in the malkhana.
ASI Abid Khan (PW20) had accompanied the SHO and other staff when the police party reached the house of Nijhara's on 07/05/2000 after receiving DD No. 53B. He is -:21:- a witness of the recovery of two bullet head pieces lying on the first floor of the room of Jitender Nijhara which were lifted by the police and kept in an empty matchbox and were put in a pullanda and sealed with the seal of "RSC". The police also found two pieces of bed sheet of green colour which were used in tying the victims and the same were put in a pullanda and were sealed with the seal of "RSC". The police officials also found two sports shoes and a pair of socks lying at the adjoining room of the first floor and the same were kept in a parcel and sealed with the seal of "RSC". All the three parcels were taken into possession by the police vide seizure memos Ex. PW20/A, Ex. PW20/B and Ex. PW20/C respectively. The rough sketch of the cartridges is Ex. PW20/D. ASI Urmil Sharma (PW21) had gone to AIIMS after receiving DD No.17 and she met Duty Constable Narender who handed over to her one pullanda duly sealed with the seal of "CMO AIIMS" and one sample seal and the same were deposited by her in the malkhana. Copy of DD No. 17 has already been proved as Ex. PW3/A. SI Ganga Ram (PW22), Finger Print Expert, was -:22:- posted in Southern Range, Crime, Delhi, who had come on the spot and he had lifted six chance prints from the spot and he has proved his report which is Ex. PW22/A. Head Constable Jaswant Singh (PW23) was posted as MHC(M) at Police Station Punjabi Bagh on 10/07/2000 and Investigating Officer of this case had taken four pullandas alongwith pistol and cartridge sealed with the seal of "FSL" which were already deposited in the malkhana in case FIR No. 297, 298, 289 and 300 of 2000. He handed over the said pullandas to the Investigating Officer with RC No. 271/21 to 274/274/21/2000.
Head Constable Narender Singh (inadvertently mentioned as PW24 whereas it should be PW25) had joined the investigation of this case on 23/05/2000 and he is a witness of the recovery of a dagger at the instance of accused Jamal Mirza vide recovery memo Ex. PW8/B. He is also a witness of the preparation of sketch of the dagger which is Ex. PW8/A and he has stated that Investigating Officer prepared a pullanda of the said dagger which was duly sealed with the seal of "SS".
Constable Janak (PW24) was posted as duty -:23:- officer in Police Station Punjabi Bagh on 07/05/2000 and at about 7.10 a.m., he received a tehrir through Constable Satbir sent by Inspector Ram Singh Chauhan and on the basis of the same, he recorded FIR of the present case, copy of which is Ex. PW24/A. He also made an endorsement on the ruqqa vide Ex. PW24/B. He further stated that he received information at about 5.20 a.m., 5.55 a.m., 07.05 a.m., 7.50 a.m., 07.10 a.m. and 08.15 a.m. and he made entries vide DD No. 53B which is Ex. PW24/C, DD No. 54B, copy of which is Ex. PW24/D, DD No. 2B, copy of which is Ex. PW24/E, DD No. 3B, copy of which is Ex. PW24/F, DD No. 26A, copy of which is Ex. PW24/G and DD No. 25A, copy of which is Ex. PW24/H. SI Satish Kumar (PW25) is the witness of arrest of accused Jamal Mirza in case FIR No. 297/2000, PS Saraswati Vihar. He stated that one loaded country made pistol was recovered from the pocket of accused Jamal Mirza. The witness has correctly identified the accused in court.
SI Rohit Kumar (inadvertently mentioned as PW25 whereas it should be PW26) had deposited all the exhibits of this case in FSL, Malviya Nagar, for expert opinion. -:24:- He received information about the arrest of accused Mohd. Faruq by the police of crime branch, R.K. Puram, and in pursuance of the same, he took his production warrants from the court and formally arrested accused Mohd. Faruq. He is also a witness of the arrest of accused Alam and Nizam @ Tittoo after intimation was received that they had been arrested by the Haryana police in a case of Faridabad. He further stated that accused Mohd. Faruq and Nizam refused to participate in TIP but accused Alam wanted himself to undergo TIP proceedings and he was correctly identified by witness Kaushlender Nijhara.
ASI Seema (PW28) was posted as duty officer at Police Station Punjabi Bagh and on 28/08/2000, she received a telephonic call of Head Constable Ram Kishan from Anti Robbery Section, Crime Branch, that accused Mohd. Faruq who was arrested in a case had disclosed about his involvement in the present case and she prepared DD No. 11A dated 28/08/2000, copy of which is Ex. PW28/A and she brought the same to the attention of SI Rohit for further investigation.
Sh. L.K. Gaur (PW29), the then Metropolitan -:25:- Magistrate, Tis Hazari Courts, was assigned an application for conducting TIP of accused Jamal Mirza and on 20/05/2000, accused Jamal Mirza refused to participate in TIP proceedings and the TIP proceedings have been proved as Ex. PW29/C. The accused was duly warned that in case of his refusal to join TIP, an adverse inference could be drawn against him during trial and the said certificate is Ex. PW29/E. Head Constable Umed Singh (PW31) is the witness of arrest of accused Alam @ Mamoon and Nizam @ Tittoo in case FIR No. 768/2000, U/s. 395/397 IPC, PS Central Faridabad, Haryana, who disclosed about their involvement in the present case and he identified both the accused persons in this court.
Inspector R.K. Ojha (PW33) was the SHO, PS Punjabi Bagh on 14/06/2000 and after completion of investigation, he filed main challan against accused Jamal Mirza U/s. 173 CrPC which is Ex. PW33/A and he filed supplementary report U/s. 173 CrPC against accused Mohd. Faruq which is Ex. PW33/B and he also filed supplementary report against accused Alam and Nizam which is Ex. PW33/C. He also tendered the FSL results of this case in the -:26:- court and the same are Ex. PW33/D to Ex. PW33/F. He identified all the four accused persons in court.
W/SI Umesh Bala (PW35) was the duty officer who had registered FIR No. 767/2000, U/s. 458/380 IPC, PS Central District Faridabad and copy of the same has been proved as Ex. PW35/A. Constable Narender Kumar (PW36) was posted as Duty Constable at AIIMS on 07/05/2000 and he sent a message to PS Punjabi Bagh regarding the admission of Kaushal Nijhara in the hospital who was brought by his wife Neeta. As per him, injured Kaushal had received gun fire shot at his house.
Head Constable Satbir (PW37) had taken ruqqa to PS Punjabi Bagh and got the present case registered.
Dr. Sahabuddin (PW39), the then Metropolitan Magistrate, Karkardooma Courts, Delhi, conducted TIP proceedings of accused Alam in which he was correctly identified by Sh. Kaushal whereas Ms. Renu could not identify the accused. His detailed report in this regard is Ex. PW39/A and he also gave a certificate about the correctness of the proceedings which is Ex. PW39/B. The application for -:27:- conducting of TIP proceedings of accused Nizam was also marked to him and the said accused refused to participate in the TIP and the said proceedings are proved as Ex. PW39/E and he also gave a certificate about the correctness of the proceedings which bears his signatures at point B on the said proceedings.
Head Constable Jagmer Singh (PW42) was the witness of the arrest of accused Alam and Nizam @ Tittoo in case FIR No. 767/2000, U/s. 395/397 IPC, PS City Faridabad who according to this witness had disclosed about the commission of offence of the present case and he identified both the accused present in court.
Inspector Krishan Kumar (PW43) had arrested accused Nizam and Alam in case FIR No. 767/2000, U/s. 395/397 IPC, PS City Faridabad, and according to him, both the accused had disclosed about commission of offence of the present case and hence he had passed on this information to duty officer , PS Punjabi Bagh.
Sh. Indersen (PW44), Ahlmad in the Court of Sh. B. Diwaka, ACJM, Faridabad, Haryana, brought the summoned record of case FIR No. 767/2000, PS Central -:28:- Faridabad and the photocopy of the same has been proved as Ex. PW44/A. Inspector Suresh Kaushik (PW45) was the witness of the arrest of accused Mohd. Faruq @ Raju in case FIR No. 161/2000, PS Janak Puri, and according to this witness, accused Mohd. Faruq had disclosed about his involvement in the crime of the present case and his disclosure statement has been proved as Ex. PW41/A and he passed on this information to PS Punjabi Bagh on 28/08/2000 vide DD No.11A dated 28/08/2000.
Retired ACP Ram Singh Chauhan (PW46) was the SHO of PS Punjabi Bagh on 07/05/2000 and he has stated that on that date, he alongwith his staff was present at H.No. 28/45, Punjabi Bagh, and he received wireless message about the incident of the present case at premises No. 63/41, West Punjabi Bagh, and then he alongwith SI Rohit Kumar, Constable Satbir, Constable Pradeep and Head Constable Abid reached the spot where he noticed that blood was lying at several places such as lobby, stairs at the first floor and he noticed that almirahs on the ground floor and the first floor were lying open and the articles were found -:29:- scattered. He met one female,namely, Kumari Megha , aged about 16-17 years, and she told him about the entire incident and he recorded her statement which is Ex. PW15/A and he made an endorsement Ex. PW46/A and he got the FIR registered through Constable Satbir Singh. He has detailed about the investigation conducted by him in the hospital and at other places. He had collected MLCs of Rajiv, Kaushlender, Ravi and Jitender which are Ex. PW1/A, Ex. PW1/B, Ex. PW1/C and Ex. PW1/D respectively. He also seized two pullandas duly sealed with the seal of "Agrasen Hospital" which were containing clothes of injured Kaushlender and Jitender vide memos Ex. PW46/B and Ex. PW46/C respectively. He also called crime team and the photographer at the spot and the photographs are marked X1 to X10. He also prepared two separate site plans, out of which one was of the ground floor and the other was of the first floor which are Ex. PW46/D and Ex. PW46/E respectively. He also found two bullet head pieces on the first floor room of Jitender Nijhara and he lifted the same and prepared a pullanda of the same and sealed with the seal of "RSC". He also found two pieces of green colour bed sheet -:30:- on the first floor room of Jitender and the same were also put in a pullanda and sealed with the seal of "RSC". He also found two sports shoes lying in the adjoining room on the first floor which were also taken into possession and the same were sealed with the seal of "RSC". All the said pullandas were taken into possession vide seizure memo Ex. PW20/B. He also prepared sketch of the seized bullet pieces which is Ex. PW20/D. He also identified all the seized property when the same were produced in court. He also collected dead body of deceased Ravinder and he got the postmortem conducted on his body at SGM hospital, and thereafter, the dead body was handed over to its claimants. He arrested accused Jamal Mirza on 13/05/2000. He got conducted TIP proceedings of accused Jamal Mirza and thereafter he took the police remand of this accused for five days and during the same, accused Jamal Mirza made a disclosure statement which is Ex. PW24/A and this witness is also a witness of the recovery of dagger from accused Jamal Mirza who had led the police party to an open plot in Punjabi Bagh and the said dagger was kept in a cloth parcel and sealed with the seal of "SS" and the parcel was seized vide memo Ex. PW8/B which -:31:- bears signatures of this witness. He also prepared the site plan of the place of recovery of the dagger which is Ex. PW46/H and the said dagger has been identified by the said witness in court which is Ex. P1.
Sh. Khem Chand (PW47) was the photographer at the relevant time who was called by the police at the spot at the time of the commission of the offence and he had taken ten photographs which are marked X1 to X10 but this witness stated that studio has been closed long back and hence the negatives of the same could not be brought by him.
After the completion of prosecution evidence, statements of all the four accused persons were recorded U/s. 313 CrPC. All the incriminatory facts and circumstances appearing in the prosecution evidence were put to the accused persons which have been denied by them in toto. Accused Jamal Mirza has denied recovery of any dagger from his side and it is stated by the accused persons that they have been falsely implicated in the present case. The accused have not led any evidence in their defence. -:32:-
Discussion on the statement of the complainant and other public witnesses:
Complainant Megha Nijhara, daughter of Jitender Nijhara has been examined as PW15. She has deposed that on the night of 07/05/2000 at about 4.30 a.m., she was sleeping in the room of her house alongwith her younger sister Radhika and brother Raghav and she heard a little sound and she woke up and saw that six boys were standing by the side of her bed and four of them were having pistols in their hands and two were having daggers and all of them threatened her that if she would raise alarm or would move, then they would shoot her. She has further stated that she told them to take whatever they wanted and that she would not raise alarm and that she woke up her brother and sister. She has further stated that those boys torn her bed-sheet with the help of dagger and they tied her hands and feet and also that of her brother and sister and they inquired about the whereabouts of jewellery and cash amount in the house and as to where her parents were sleeping. She replied that her parents were sleeping in the adjoining room and then the intruders took her and her brother and sister near the door of the room where her parents were sleeping and they asked -:33:- her to call her parents and she accordingly knocked at the door and her father opened the door. She has further stated that on seeing them, her father caught her hand and tried to drag her inside the room and at that time, one of the boy threatened her father that he will shoot dead her sister Radhika, if they do something and in this manner, those boys managed to enter the room of her father and they asked her father about the cash amount and jewellery lying in the house and the said boys also tied hands of her father on his back. She further stated that her father replied to them that the cash and the jewellery of the case were lying in the room of his mother (Megha's grandmother) and those two boys took his father to the room of her grandmother on the ground floor. She has further stated that the third boy started taking search of that room and the fourth boy remained standing and guarding them with his pistol and the fifth boy was guarding the passage towards way near car parking and the sixth boy had gone on the roof of the house. She has further stated that in the meantime, her mother managed to go out of the room and she woke up her two brothers in law (uncles of Megha) ,namely, Ravinder and Kaushlender who immediately -:34:- came to their room and they started manhandling with the boys who were present in the room and in that process, Megha, her sister Radhika and brother Raghav came down on the ground floor and she saw her father lying in the room of her grandmother in injured condition. She immediately informed the police on 100 number. She has correctly identified all the four accused persons,namely, Alam, Jamal, Nizam and Faruq. According to this witness, accused Alam and Jamal Mirza were having one pistol each and accused Nizam and Faruq were having one dagger each which they used in the commission of the offence.
Statement of Megha Nijhara is corroborated by the statement of her mother Smt. Manju Nijhara who has been examined as PW16. She has given correct date and time of the incident and she has stated that on the night of the incident, her daughter Megha had knocked the door of the room and her husband had opened the door and 6/7 persons who were having pistols and daggers in their hands had brought her daughter Megha and Radhika and her son Raghav to their room and those assailants entered their room with her children and the hands of her children were in tied -:35:- condition and they also tied the hands of her husband on his back. She has corroborated that the assailants demanded cash from her husband and her husband replied that cash was lying on the ground floor in the room of his mother and thereafter, some of the assailants took her husband at the ground floor at the point of pistols and remaining four assailants remained in her room and the assailants ransacked the almirahs of her room and they removed the cash amount, two gold bangles, two diamond bangles, a diamond necklace and Titan watch of her husband and put the same in their pockets and they wrapped the cash amount in the shirt of her husband. She has further stated that after half an hour of taking her husband, she asked the assailants about the whereabouts of her husband and she was told that he was no more and on hearing this, she ran towards the room of her brothers in law,namely, Ravinder and Kaushlender and she raised alarm and in pursuance of the same, both of her brothers in law immediately rushed to their room and they grappled with the assailants and those assailants hit the bullet from their pistols on the chest of her brother in law Ravinder who fell down then and there. She has further stated that she -:36:- took shelter in the room of her brother in law Ravinder and her both daughters and son had also come in the room of Ravinder. She has further stated that thunders of bullet firing was coming from the ground floor but she did not know as to what was happening there. She has further stated that after sometime when the assailants had fled away, the neighbour also came there and thereafter she removed her husband to Agrasen Hospital with the help of her neighbour who was a Sikh gentleman. She further stated that her brother in law Ravinder was also removed to the hospital but the doctors declared him brought dead. She further stated that she remained in the hospital for about a month in the I.C.U. where her husband remained admitted. She has correctly identified all the four accused persons who were among the assailants who had robbed and looted their house on the day of the incident. The witness pointed out towards accused Alam and Nizam and stated that they had taken her husband on the ground floor. This witness also pointed out towards accused Faruq and stated that he had ransacked her almirah and removed the jewellery articles and cash amount. This witness also pointed out towards accused Jamal Mirza as the person -:37:- who had threatened her with a dagger and a pistol.
The statement of Smt. Manju Nijhara (PW16) is corroborated by the statement of Sh. Kaushlender who has been examined as PW12. He has stated that on the day of the incident, he was sleeping with his family in the room of the house and at about 4/5.00 a.m., his bhabhi Manju knocked the door of his room and she was shouting "chor-chor". He further stated that he immediately got up and went inside the room of his bhabhi Manju and brother Jitender which was adjacent to his room and in the meantime, his other brother Ravi had also reached there. He saw that two persons were standing there who had opened the guns towards children i.e. Megha, Raghav and Radhika and this witness has pointed out towards accused Nizam as the person who was pointing gun towards the children. He further stated that his brother Ravi apprehended both the assailants and the assailants shot fire from desi katta which they were carrying and in the meantime, three more persons also came there, out of which two were having firearm and the third was having Chura and they fired indiscriminately as a result of which this witness received injuries on his left side belly and he was also attacked with -:38:- knife and his brother Ravi also received bullet injuries. He further stated that accused persons collected jewellery etc. and kept the same in black colour polythene and ran away from the spot through back window of the house. He further stated that his brother Ravi had died at the spot and they were removed to hospital by one Sardarji who was their neighbour. He has identified accused Faruq, Mohd. Alam and Jamal and he has stated that Faruq was having a revolver and Mohd. Alam was having a desi katta and accused Jamal was having a Chura. He has further stated that he had identified accused Alam and Mohd. Faruq during TIP proceedings.
Sh. Jitender Nijhara has been examined as PW13. He has corroborated the statement of his daughter Megha and his wife Manju Nijhara. He has stated that on the day of the incident at about 4.30 a.m., his daughter Megha knocked at his door and asked him to open the door and consequently when he opened the door, he saw that one man was standing behind her with a dagger and two more persons were also present who were having one revolver and one dagger each in their hands and the said persons threatened -:39:- him not to raise alarm or otherwise they will kill the children and in this way, they managed to enter his room. They tied his hands and they had already tied the hands of his children. It is further stated by him that they inquired from him as to where the cash was lying and he told that the cash was lying in the room of his mother which was situated on the ground floor and thereafter, one of them opened his almirah of the room and they started collecting valuables lying in the almirah i.e. cash, jewellery, diamond sets and wrist watch and remaining two accused persons asked him on gun point to lead them to the room of his mother failing which they will kill his children. He further stated that while he was being taken on the ground floor, he noticed that one person was present on the porch who was having revolver and one person was upstairs who was having dagger in his hand. He further stated that he rang the bell of the ground floor and his sister Renu responded and she switched on the lights and opened the main entrance gate and he asked her sister to keep quiet as guns were on his head and in the meantime, his mother woke up and accused persons threatened his mother to hand over the goods of almirah failing which they will kill him ( i.e. -:40:- Ravinder). It is further stated that thereafter the accused persons snatched goods from his mother and they removed gold bangles from the hands of mother and sister and they opened the store and collected articles and they also started searching almirah, and in the meantime, one more person came from upstairs and inquired about more cash. He further stated that accused persons made him to sit on a chair and when they were unable to search more things, one of them fired shot with point blank range on his chest and he fell down. He further stated that he remained semiconscious when he was being removed to hospital by his neighbour Sardarji. He has also identified all the four accused persons in court. He has identified accused Jamal as the person who was having firearm as well as the dagger with the help of which he was threatening him and was standing behind his daughter Megha when she was brought to his room. He has also identified accused Nizam @ Tittoo as the person who had put gun on his daughter. He has also identified accused Faruq as the person who had put gun on his daughter and he brought him down at the gun point alongwith his associate. He has also identified accused Alam as the person who had -:41:- fired on him with point blank range on his chest.
Statement of Jitender Nijhara is corroborated by his sister Ms. Renu who has been examined as PW7. She has stated that on the day of the incident, she was sleeping in her room with her mother and at about 4.50 a.m., door bell of her floor rang and hence she woke up and switched on the lights and she reached near the main door and she was from the peephole that two persons were standing on both the sides of his brother Jitender and they were pointing revolvers towards him, and she opened the door and her brother asked her to keep quiet and thereafter, they took them to the room where her mother was sleeping and one of those persons, tore the bed sheet and tied her both hands on her back and they removed her gold bangles which she was wearing at that time. She further stated that her mother handed over goods to them and they also tied both hands of her mother on her back and they removed eight gold bangles which she was wearing. She further stated that one of those eight bangles fell there which was found later on. She further stated that they opened the store room and almirahs and articles of the almirahs were thrown out. In the meantime, the third person -:42:- who was outside, came in the room and inquired from his companions as to whether they have got cash and they stated that in case cash is not recovered, the victims should be shot dead, and in the meantime, third person fired in the air. She further stated that her brother Jitender was made to sit on a chair and that person shot him on his shoulder. She further stated that she heard sound of "chor-chor" from the room of her brother Rajiv and the persons who went out of their room, also fired at Rajiv which hit him on his abdomen. She has further stated that when she went upstairs, she saw that her brother Kaushlender and Ravinder were seriously injured but the condition of Ravinder was more serious. She further stated that her neighbours came and removed them to hospital. She has correctly identified accused Jamal and Alam and has stated that Jamal was having a knife and accused Alam had fired at his brother Jitender in her room.
Sh. Rajiv Nijhara (PW8) has deposed that on the day of the incident at about 5.00 a.m., he woke up on hearing noise and sound of bullet firing and he came in front of the window and raised alarm and in the meantime, two persons came in front of the window, out of which one was having -:43:- revolver and he fired a shot from his revolver aiming towards him and it hit him on his abdomen. He further stated that both these persons ran towards the backside stair of their house and when the sound of firing was stopped, he opened the door and saw that his brother Jitender had sustained bullet injuries and he was lying unconscious. He further stated that in the meantime, his neighbour,namely, Narender Singh Arora alongwith his brother came to their house and he together with his neighbour as well as his bhabhi Manju Nijhara took Jitender, Kaushlender and Ravi Nijhara to Maharaja Agrasen Hospital and his brother Ravi Nijhara was declared dead by the doctors. He further stated that on 23/05/2000, police had brought one of the accused,namely, Jamal Mirza to their house and the said accused had got recovered the knife from a nearby vacant plot and the said knife was taken into possession by the police vide memo Ex. PW8/B. This witness correctly identified the said knife in court. He also correctly identified accused Jamal Mirza as the person who was standing with a knife with the person who fired at him.
Sardar Narender Singh (PW4) and Sh. Gurvinder Singh (PW17) are the brothers and they were neighbour of -:44:- Nijhara family who have deposed that on the relevant day, they heard cries and sound of firing from the house of Nijhara family and they both went to the house of Nijhara family and the family members of Nijhara family were shouting for help and they saw that three brothers of Nijhara family were injured who were removed by them to Maharaja Agrasen Hospital.
The statements of all the public witnesses are natural, reliable and trustworthy.
Arguments Advanced by the Defence:
Sh. Rambir Singh, Advocate, has advanced arguments on behalf of accused Jamal Mirza and Mohd. Faruq and Ms. Dhaneshwari, Advocate, has advanced arguments for accused Alam and Nizam @ Tittoo. There are certain points which have been commonly raised by both the counsels. It is argued by the defence counsels that statements of public witnesses are not reliable as their statements differ regarding the number of assailants who had committed offence and it is stated that as per Smt. Manju (PW16), there were eight assailants, but on the other hand, as per other witnesses, there were six assailants. It is further -:45:- argued that no documentary evidence has been filed by the Nijhara family regarding the jewellery which was allegedly robbed by the culprits. It is further argued that Ms. Renu (PW7) could not identify the three culprits and as per the prosecution, police had recorded statement of neighbour on the day of incident but this witness has shown her ignorance about the same. Hence, it is stated that story of prosecution is not trustworthy. It is further argued that all the accused persons were arrested initially in other cases and on the basis of their disclosure statements, they were subsequently arrested in the present case and hence it is stated that their arrest was not just in the present case. It is further stated that no TIP proceedings of accused Faruq was conducted by the police and it is further stated that remaining accused persons were shown to the witnesses prior to the conducting of the TIP proceedings. The defence counsels have also pointed out some contradictions in the statements of the public witnesses to bring home the point that their testimony is not reliable.
Regarding the contention that Smt. Manju (PW16) has given wrong number of the culprits, I am of the view that as per the public witnesses, all the accused persons hardly -:46:- assembled at one place and they performed their acts at different places and hence it may be possible that Smt. Manju (PW16) has given the number of culprits as a guess. In my view, it does not affect the case of prosecution at all because all the four accused persons who are facing trial have been identified by one or the other public witnesses and there is nothing on record to suggest that they could have been falsely implicated in the present case. Coming on the contention regarding non-filing of documentary evidence by the Nijhara family regarding the jewellery allegedly robbed in the incident, I am of the view that this contention has no merit as generally people have old jewellery and they may not be in possession of the documents regarding the purchase of the same. As stated above, the evidence of public witnesses is corroborated by each other regarding the fact that the accused persons searched the almirahs of the house and took away all the valuables including the jewellery etc. Regarding the TIP of the accused persons, I am of the considered view that there is nothing on record to show that the accused were shown to the public witnesses before conducting of TIP proceedings. It is relevant here to state -:47:- that one of the accused Alam was correctly identified by Sh. Kaushlender in the TIP proceedings. Accused Jamal and Nizam @ Tittoo refused to participate in TIP and hence an adverse inference has to be drawn against them, but these two accused have been identified by the members of the Nijhara family. Even if for the sake of arguments it is presumed that the accused persons were shown to the members of the Nijhara family before TIP proceedings, it is relevant here to state that the members of the Nijhara family had identified all the accused persons in court and there is nothing on record to show as to why they will falsely implicate the accused persons. Coming on the argument regarding the arrest of the accused on the basis of their disclosure statements, it is relevant here to state that both the accused persons were initially arrested in other cases and they were subsequently arrested in the present case on the basis of their disclosure statements, but this court has to see as to whether there is incriminatory evidence appearing against them in the present case or not. As stated above, all the accused persons have been identified by the public witnesses as the persons who committed the offence in question and -:48:- hence it becomes immaterial as to on what basis the accused persons were initially arrested. Coming on the next contention regarding non-identification of third culprit by Ms. Renu, in my view, out of the total six accused, only four accused are facing trial and remaining two accused could not be arrested by the police and hence the third culprit could be among those who have not been arrested. Hence, the same does not affect her testimony at all. Regarding the contention that she was not aware of the recording of the statement of the neighbour by the police on the same day, I am of the view that on the relevant day, the Nijhara family had suffered a big tragedy and in this circumstance, it is not material, if she did not see the police recording statement of the neighbours on the same day. It could be that when the statement of the neighbour was recorded by the police, she may not be present there. Hence this contention has got no merit. The counsels for the defence have also pointed out some contradictions in the statements of the public witnesses but in my view, the same are no material at all and the minor contradictions in the statements of the witnesses does not affect their credibility at all.
-:49:-
It is argued by counsel for accused Jamal Mirza that the accused allegedly got recovered the dagger from a vacant plot near the house where the offence was allegedly committed and it is stated that the said recovery is not reliable because no public witness was joined by the police and further the said place was accessible to public at large. In my view, there is no merit in this contention as well because besides members of the Nijhara family, Sh. Ajay Mahajan (PW11) has been made a witness by the police. Sh. Ajay Mahajan was the neighbour of Nijhara family and in view of the same, there was no need for the police to join any other public witness. The members of Nijhara family as well as Sh. Ajay Mahajan (PW11) have correctly identified the said dagger in court which was allegedly got recovered by accused Jamal Mirza. The members of Nijhara family have identified the said dagger as the dagger which was used by the accused in the commission of the offence.
It is further argued by counsels for the defence that the police had detected some blood on the window from where the culprits allegedly entered but no blood sample was taken by the police. It is further stated that there is nothing on -:50:- record as to how the culprits left the premises and whether it was through the pipeline or through some rope etc. In my view, non-seizure of the blood from the window only at the most shows lacuna in the investigation but this in itself does not affect the case of prosecution. Further, non-investigation on the point as to how the culprits fled away from the spot also does not materially affect the case of prosecution. This is a small issue and no adverse inference can be taken against the investigating agency.
As discussed above, the statements of the members of the Nijhara family and their neighbours are corroborating each other and they are reliable and trustworthy.
As stated above, one of the accused,namely, Jamal Mirza got recovered the dagger which was allegedly used in the commission of the offence and the same has also been identified by the members of the Nijhara family as the weapon of offence which was used in the commission of crime. Accused Alam was identified by Kaushlender in the TIP proceedings and accused Jamal and Nizam @ Tittoo refused to participate in the TIP proceedings. All the accused -:51:- persons took their separate positions in the house of the Nijhara family where the offence was committed and the members of Nijhara family in their deposition have correctly identified the accused persons who came in their contact when the offence was committed.
The ocular evidence of the public witnesses is fully supported by the medical evidence on record. As per the members of the Nijhara family, the accused persons had fired towards Kaushlender, Ravinder, Jitender and Rajiv which has been fully corroborated by their MLCs which are Ex. PW1/B, Ex. PW1/C, Ex. PW1/D and Ex. PW1/A respectively. The doctor has opined all of them to be having gun shot injuries besides other injuries received by them.
In view of the above, I am of the view that the statements of eye witnesses and other public witnesses and the statements of police officials who conducted the investigation of the case make a chain which is complete in itself. It is proved that on 07/05/2000 at about 4.30 a.m. at H.No. 63/41, West Punjabi Bagh, Delhi, all the four accused persons, who are facing trial, alongwith their other two accomplices, who could not be arrested, committed dacoity in -:52:- the house of the Nijhara family. It is further proved that each accused was in possession of deadly weapon and had used the same in the commission of the offence. It is further proved that while committing dacoity, accused caused injuries on the person of Kaulshlender, Jitender and Rajiv Nijhara and they committed murder of Ravinder Nijhara. Hence the prosecution has been able to prove its case against all the accused persons U/s. 396 IPC read with Section 397 IPC. It is relevant here to state that Section 396 IPC is an aggravated form of Section 395 IPC. When Prosecution has proved its case U/s. 396 IPC, no purpose shall be served by separately convicting the accused persons U/s. 395 IPC.
Hence all the accused persons are convicted for the offences U/s. 396 IPC read with Section 397 IPC.
Let they be heard on the point of sentence separately.
Announced in Open Court on dated 15th of April, 2009 ( Deepak Garg ) Additional Sessions Judge Fast Track Court Rohini : Delhi 15/04/2009 -:53:- IN THE COURT OF SH. DEEPAK GARG ADDL. SESSIONS JUDGE, FAST TRACK COURT, ROHINI COURTS : DELHI SC No. 58/1 Date of institution of the case: 05/12/2008 Date of Sentence: 25/04/2009 State Versus
1) Jamal Mirza S/ o Noor Islam R/o Village Rajaur gram PS Randha District- Khulna (Bangladesh)
2) Mohd. Faruq @ Mohd. Raju S/o Abdul Qadar R/o Village- Balipura PS Inder Khaini, Distt. Khulna (Bangladesh)
3) Alam @ Mamoon S/o Abdul Salam R/o Vill & PS Bagrahar, District Khulna (Bangladesh)
4) Nizam @ Tittoo S/o Ganny R/o Vill & PS Bagrahar, District Khulna (Bangladesh) FIR No. 346/2000 PS - Punjabi Bagh U/s. 396 IPC read with Section 397 IPC -:54:- ORDER ON SENTENCE 25/04/2009 Vide judgment dated 15/04/2009, all the accused persons have already been convicted by the Court for the offence U/s. 396 IPC read with Section 397 IPC.
I have heard Sh. Rambir Singh, advocate, for convict Mohd. Faruq @ Mohd. Raju and Jamal Mirza and Ms. Dhaneshwari, Advocate, for accused Alam @ Mamoon and Nizam @ Tittoo as well as ld. Addl. PP for the State on the point of sentence.
It is stated by Sh. Rambir Singh, advocate, that convict Jamal Mirza was 19 years of age on the date of commission of the offence and his family consists of old aged mother, one sister and one elder brother, who is mentally retarded, who have no source of income.
It is further stated that convict Mohd. Faruq @ Mohd. Raju was around 18 years of age on the date of offence and his family consists of old aged parents and one younger sister who are completely dependent upon him. It is further stated that convicts are in custody since last nine years and hence benefit of probation may be granted to -:55:- convict Mohd. Faruq @ Mohd. Raju and Jamal Mirza.
Ms. Dhaneshwari, Advocate, has stated that mother of convict Alam @ Mamoon is on death bed and convict Nizam @ Tittoo was a young boy when he was arrested in the present case and he has no previous criminal antecedents of any nature. She has also prayed for grant of benefit of probation to the convicts.
On the other hand, ld. Addl. PP has stated that all the convicts have been convicted by the court for the offence U/s. 396 IPC which is serious in nature and the convicts do not deserve any leniency and they should be punished with death.
Regarding the prayer for grant of benefit of probation to the convicts, it is stated that U/s. 4 of the Probation of Offenders Act 1958 , benefit of probation of good conduct under the said Act can only be granted where a person is found guilty of having committed an offence not punishable with death or imprisonment for life. In the present case, the convicts have been convicted for the offence U/s. 396 IPC read with Section 397 IPC. Section 396 IPC provides punishment for death or life imprisonment or rigorous -:56:- imprisonment (R.I.) for a term which may extend to ten years. Hence, Probation of Offenders Act 1958 is not applicable in the present case and hence no benefit of probation of good conduct under the said Act can be granted to convicts due to abovesaid reason.
As stated above, all the convicts have been convicted for the offence U/s. 396 IPC read with Section 397 IPC which are very serious in nature. It has been amply proved by the prosecution that all the convicts committed dacoity and gave gun shot injuries to four male members of the Nijhara family, out of which one got expired due to the gun shot injuries given by the accused. Looking into the seriousness of the offence, the convicts do not deserve any leniency.
In totality of the circumstances, all the convicts are sentenced with imprisonment for life for the offence U/s. 396 IPC read with Section 397 IPC. They are also sentenced to pay a fine of Rs. 2000/- (rupees two thousand only) each. In default of payment of fine, they shall further undergo simple imprisonment for two months. Benefit of Section 428 CrPC is granted to the convicts and imprisonment already undergone -:57:- by them shall be set off against the substantive sentence awarded to them. Copy of the judgment and sentence be given to the convicts free of cost. Order be sent to the Superintendent Jail for compliance.
Case property, if any, be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof.
File be consigned to Record Room.
Announced in Open Court on dated 25th of April, 2009 ( Deepak Garg ) Additional Sessions Judge Fast Track Court Rohini : Delhi 25/04/2009 -:58:-