Delhi District Court
The Case Of The Prosecution In Brief Is ... vs . on 26 July, 2012
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.126/10
FIR NO. 218/08
U/S 394/302/34 IPC
PS Aman Vihar
Unique Case ID No. : 02404R0149982008
State
Vs.
1. Harihar @ Chitu s/o Sukhbir Singh
r/o Village Padalia, District Etah, UP.
2. Jai Kishan s/o Shiv Charan
r/o Village Anwar Pura, District Ghaziabad, UP.
Also at : F56, Jain Nagar, Begum Pur, Delhi.
3. Shakeel Mohd. s/o Rahman Mohd.
r/o Village Bhawani Pur, District Katihar, Bihar.
4. Ramu @ Ramji (juvenile)
5. Pawan Yadav @ Chhotu s/o Sukhbir Singh Yadav
r/o Village Gulab Pura, District Etawa, UP.
Also at : D56, Rama Vihar, Delhi.
Date when committed to the court of Sessions : 04.02.2009
Date when case reserved for judgment : 25.07.2012
Judgment pronounced on : 26.07.2012
SC No.126/10 Page 1/36
JUDGMENT:
1. The case of the prosecution in brief is that on 06.07.2008, at about 1.25 a.m, one Ct. Gayakwad informed the PS on telephone that one person had suffered a bullet injury at D Block, Rama Vihar and the said information was recorded in DD No.6B and in the meantime, at about 1.40 a.m, the same information came from PCR also which was recorded in DD No.6A and both the said DDs were given to ASI Karan Singh for inquiry and SHO and senior officers were also informed regarding the same and the SHO along with the staff also reached the spot situated at H.No.A183/2 (B1), Rama Vihar, where it transpired that injured had been shifted by his wife Smt. Renu in a private vehicle to SGM hospital and lot of blood was found lying outside the main gate and at the gate also and accordingly the ASI left Ct. Ram Lal at the spot and he along with Ct. Sunil reached the said hospital and obtained the MLC of one Suresh Kumar who had been declared as dead by the doctor and said wife of the said deceased was searched in the hospital but could not be found and accordingly Ct. Sunil Kumar was left for the safety of the dead body and he came back at the spot where he found said Smt. Renu, the wife of the deceased, who got recorded her statement.
2. As per statement of the wife of the deceased namely Smt. SC No.126/10 Page 2/36 Renu, she was a Teacher at private school and her husband was imparting tuitions to the students and that on 06.07.2008, at about 1 a.m, she was sleeping along with her husband and children when she woke up and saw in front of his house, at the main gate, two persons and she informed her husband after awakening him and her husband tried to catch hold of those boys in front of the house and she herself went through the staircase over the roof and raised alarm to call the neighbours and after calling the neighbours, she immediately came down and saw that her husband was shot by bullet by those boys, who was lying blood smeared outside the house at the platform (Chabutra) and when the said two boys along with one associate saw her coming, they ran away and those three boys were between 25 to 30 years of age and she could identify them, if produced before her and the said three boys with the intention of committing theft had entered her house and when her husband resisted, the said boys fired at her husband with country made pistol and injured him. On further checking, near the said house, towards the Western side, in a vacant plot, two plastic bags containing grain, half filled, were found lying and towards Eastern side of the said house, in a vacant plot, one cycle was found lying and on further inquiry, one LPG gas cylinder belonging to M/s Bharat Gas, which was kept inside the main gate, was also found missing. On the basis of the said statement, the FIR was got registered u/s 394/302/34 IPC.
SC No.126/10 Page 3/36
3. During investigation by Inspr. Dinesh Kumar, at the instance of the said complainant, the site plan was prepared, crime team inspected the spot and blood, earth control, cycle and the said plastic bags were seized and no clue could be found regarding the accused despite search and thereafter autopsy on the dead body of the deceased was got conducted and the autopsy surgeon gave sealed parcels containing bullet pallets, underwear of the deceased, blood sample and one sample seal which were also seized.
4. During further investigation on 16.07.2008, upon a secret information, accused Harihar and accused Shakeel Mohd. were arrested and from the possession of accused Harihar, one loaded country made pistol, one fired cartridge were recovered, the sketch of which was prepared and same were seized after sealing the same with the seal of DK and section 25 of the Arms Act was added in the case. Both the accused made their disclosure statements who admitted regarding their involvement along with their associates namely Ramu, Jai Kishan and Pawan and at the instance of the said two accused, the co accused Jai Kishan and Ramu were arrested whose disclosure statements were also recorded and thereafter accused Shakeel got recovered the looted gas cylinder and accused Jai Kishan got recovered the broken lock and one iron rod with which the lock was broken and thereafter the said four accused pointed out the place of occurrence and during the said proceedings, SC No.126/10 Page 4/36 the said complainant Smt. Renu identified accused Harihar, Shakeel and Ramu as the same persons who entered on the night of 05.06.2008 in her house and identified the accused Harihar as the person who had shot fire at her husband and she further identified the recovered gas cylinder and also informed that the key of the recovered lock and regarding ownership of lock only her deceased husband was knowing and she also informed that she had purchased wheat and rice from the ration shop of one Rajender @ Raju at Rama Vihar and regarding cycle, she informed that it was an old one which was purchased by the deceased himself and she was not having any ownership documents of the same.
5. The search for the fifth accused Pawan was made but no clue could be found regarding him. The scaled site plan of the place of incident was got prepared and said exhibits and the country made pistol were sent to FSL, the TIP of recovered broken lock at the instance of accused Jai Kishan was got conducted and subsequent investigation was entrusted to Inspr. Gajender Singh and subsequent opinion with regard to cause of death was obtained from the autopsy surgeon, who opined that cause of death is the combined effect of injury and hemorrhagic shock consequent to firearm injuries and firearm injury is sufficient to cause death in ordinary course of nature and is antemortem in nature and time since death was approximately 11 hours. The FSL result with regard to firearm was SC No.126/10 Page 5/36 received only but regarding the bullet pallets and its blood grouping, it could not be received by that time and sanction u/s 39 of the Arms Act was obtained and thereafter the statements of the public witnesses, who were neighbour, were obtained and the charge sheet was filed against three accused namely Harihar, Jai Kishan and Shakeel Mohd. and the charge sheet against accused Ramu being juvenile was sent to Juvenile Justice Board and subsequently a supplementary charge sheet against accused Pawan was filed who had surrendered before the court.
6. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 23.09.2009, framed charge against the accused u/s 395/396/302/458/412/397/34 IPC & 27/25 Arms Act, to which they pleaded not guilty and claimed trial.
7. The prosecution, in order to prove its case, has produced as many as 27 witnesses, relevant of which have been discussed below.
8. The statements of the accused u/s 313 Cr.PC were recorded wherein they pleaded their innocence and denied the incriminating evidence against them as false and all the accused except accused Shakeel Mohd. preferred to lead defence evidence and examined 4 witnesses in their defence.
9. I have heard Ld. APP for the State, respective counsels for all SC No.126/10 Page 6/36 the accused and perused the record and I have also gone through the written arguments/submissions filed on behalf of accused Jai Kishan.
10. The star witness is the complainant Smt. Renu, who appeared as PW11 and deposed that she was a worker at Anganwari, Sher Singh Enclave, Karala and her husband used to give tuitions at his house number 183/2/B1, Rama Vihar and the incident was of th th intervening night between 5 and 6 July, 2008 at about 12.45 a.m and that she was sleeping with her family in her said house and her husband and children were sleeping on the bed while she was sleeping on cot and that during sleep, when she took a turn (Karwat), she saw 45 boys standing in front of iron gate of her house and lights were on outside the house and that she woke up her husband and asked him to see and that when her husband woke up, two boys came inside the room and when her husband tried to catch hold of them, one of the boy caught hold of her husband from front side and the other boy attempted to catch hold of her but she managed to start running upstairs and that thereafter she heard gunshot and immediately she started stepping down the stairs and saw that one of the boy was having some firearm like katta in his hand and that boy and his associates started running outside and that her daughter Nikita, aged about 11 years, ran towards her as she was frightened SC No.126/10 Page 7/36 and they both became speechless and she had seen faces of those 45 boys including the boys who entered inside their room. She further deposed that thereafter her neighbours asked her to see her husband as lot of blood from the person of her husband had already come out and they brought him downstairs and that she saw her husband was lying on chair and blood was lying there on floor and thereafter she asked her neighbours to call the police at phone number 100 and her husband was conscious and thereafter he was taken to SGM hospital in a van of his neighbour and that her husband on the way to the hospital told her in the van that the boy who was having firearm had made shot upon him and that on the way PCR van met them which accompanied them to the hospital and that when they were shifting her husband to a stretcher, they realized that he was dead at that particular time and that police from PS Aman Vihar recorded her statement which is Ex.PW11/A and that she had pointed out the place of incident to the police and in the said incident, 25 kilogram wheat, 10 kilogram rice, one bicycle and one gas cylinder of M/s Bharat Gas Company were found stolen and the police got recovered the said wheat and rice bags and the cycle from a nearby empty plot but the cylinder was not found there and that one lock, which was affixed at the main gate by them, was also found missing and she did not remember exactly the date but perhaps it was 16.09.2008, when she was called at Rohini Courts to identify the lock which she SC No.126/10 Page 8/36 identified in the court vide TIP Mark A. She did not remember the date but in the year 2008, she was informed by the police regarding recovery of her gas cylinder which was a new one and it was of red colour and the same was not shown to her during investigation by the police at any place.
11. She further deposed that she could identify those boys who entered her house and committed robbery and murder of her husband and she identified the four accused present in court as the same persons who entered her house, committed robbery and murdered her husband and thereafter she pointed out towards accused Shakeel as the person who tried to catch hold of her and she further pointed out accused Harihar who was having a firearm like katta in his hand and fired at her husband. She further pointed out towards accused Jai Kishan stating that he was standing at the main gate and that accused Pawan was probably outside the house at that time and she saw him also at the time of incident and the fifth accused, who was not present in the court, is facing trial in Children's court and thereafter she identified the gas cylinder as Ex.P1, the lock as Ex.P2.
12. PW11 was thereafter cross examined on behalf of the State by the Ld. Addl. PP wherein she answered that she had stated to the police in her statement Ex.PW11/A from portion A to A that she saw SC No.126/10 Page 9/36 accused firing at her husband and that as soon as she came down from the staircase, she saw the firearm like katta in the hand of accused Harihar, who had fired at her husband and she stated that both the acts i.e. hearing of firing noise by her and firing by the accused, took simultaneously. She could not say if on 16.07.2008, she had told the police that the cylinder Ex.P1 was also having stains of red paint and that was why she had identified the cylinder. She admitted it as correct that on that day, police came to her house with case property and accused Shakeel, Harihar and Ramu @ Ramji and after looking at them, she identified all the three accused and told the IO that they were the persons who entered in her house on the said night and she did not remember about the red paint stains on the cylinder.
13. In her cross examination on behalf of the accused, PW11 replied that there were two entrances of the said house i.e. main gate and door of the room and they were using only main gate and the door of the room was locked by them. She answered that main gate was always locked by her in the night time and key of the lock used to be kept inside the house and they used to sleep sometimes at about mid night or later on. She further answered that door of the room was lying open on that night as the room through which they used to enter in the house was adjacent to their room and door of that room was locked and that the window of the room was lying SC No.126/10 Page 10/36 closed at that time. She replied that there was source of light installed outside the room and switch of that light was inside the room. She further answered that there was a night bulb inside the room where they were sleeping. She answered that she woke up suddenly and did not wake up after hearing any sound. She replied that she told her husband at the time of awakening him that she could see 45 boys outside the room. She replied that when the two boys entered inside the room, she rushed upstairs to call her neighbours and that the roof of neighbours were adjoining to their roof and that she had raised alarm of "thief, thief". She admitted that she never saw any of the accused prior to the day of incident in the locality and it took 2/3 seconds in calling the neighbours. She denied the suggestion as wrong that when she went upstairs to call the neighbours, only thereafter she heard gunshot and that neighbours namely Satish Kumar, his wife, one of her neighbour perhaps Harnam but she knew him by the name of Bhati and his wife and some other persons gathered at the spot. She replied that her statement was recorded only once by the police in this case at her house and same was read over to her. She admitted it as correct that she had told in her statement to the police that 45 boys were standing outside and she was confronted with her previous statement Ex.PW11/A where it was not found so recorded. She replied that she had not told the IO in her statement about standing of her SC No.126/10 Page 11/36 daughter near to her. She replied that she did not go to the police nor IO ever called her on telephone to the PS. She replied that except the day of incident, police came on second occasion along with the accused persons at her house and police also visited her house during investigation but she could not tell dates and time of their visit. She replied that police recorded statement of her neighbour Satish near her house in her presence but she could not tell the date and time of the same. She denied the suggestion that accused were brought to her house and were pointed out by the police as the same persons involved in the incident and she volunteered, that she had identified the accused of her own and told the police. She admitted that she was not asked to join the TIP proceedings at Tihar Jail. She replied that the police had brought the accused persons to her house in police gypsy, but she could not tell its registration number. She further answered that police told her that the broken lock Ex.P2 was recovered from accused Jai Kishan. She did not give any key of the lock Ex.P2 to the police during investigation. She replied that she had told the IO in her statement that one of the accused caught hold of her husband and the other attempted to catch her and the said fact was confronted to her with her previous statement Ex.PW11/A where it was not found so recorded. She had not told in her statement to the IO that when the other accused tried to catch hold of her, she started running upstairs SC No.126/10 Page 12/36 but simultaneously she heard gunshot sound and she stepped back. She replied that there was no electric light pole in front of her house at that time and her husband was lying injured at the platform (Chabutra). She further replied that the accused persons were not in muffled face when they had entered in her house on the day of incident. She admitted that generally gas cylinders of Indane and Bharat companies are painted in red colour and look alike.
14. From the bare reading of said deposition of PW11, the complainant Smt. Renu, certain facts came on the surface that in her initial examination in chief she uttered that she saw 45 boys standing in front of iron gate of her house and the lights were on outside the house, which is nothing but an improvement because the said fact is not found recorded in her previous statement Ex.PW11/A on the basis of which FIR was registered and it is otherwise mentioned in the said statement that she saw only two persons in front of the gate of her house. The second thing which emerged is that when her husband woke up, two boys came inside the room and when her husband tried to catch them, one of the boy caught hold of her husband from front and the other boy attempted to catch hold of her but she managed to start running upstairs and it was after this that she heard gunshot and immediately she started stepping down the stairs and she saw that one of the boy was having some firearm like katta in his hand and the said boy and his associate started SC No.126/10 Page 13/36 running out. Till this point of time in her examination in chief, she cannot be called an eye witness of the incident of firing at her husband. Although the said facts of the said two persons catching hold of her husband and of herself are not found recorded in her said previous statement Ex.PW11/A where it is otherwise recorded that her husband had tried to catch hold of the said two boys and she immediately rushed towards stairs and reached at the roof and started calling her neighbours and thereafter she came down and saw that those boys had fired a bullet shot at her husband who was lying at the platform blood smeared. She did not speak of hearing any gunshot noise at this juncture in her statement Ex.PW11/A, which has been deposed by her in the said manner in her examination in chief. However, at the time of identification of the accused before the court during her examination in chief, she pointed out towards accused Shakeel as the person who tried to catch hold of her and accused Harihar having a firearm like katta in his hand and fired at her husband and accused Jai Kishan as the person standing at the main gate and probably accused Pawan was standing outside and by way of this identification before this court, she had tried to become an eye witness of the incident. The further fact which came on the surface was that the incident took place at about 12.45 a.m and she deposed that there was source of light installed outside the room and switch of that light was inside the room and this answer was in the SC No.126/10 Page 14/36 cross examination, but she nowhere deposed in her examination in chief regarding the said source of light. It is an admitted position by her in the cross examination that there was a night bulb inside the room where they were sleeping. From this, this court can safely draw an inference that a night bulb may be facilitating the movement of a person during the night time, but its light may not be sufficient to identify a person especially a stranger. Another fact which has come on the record is that she never saw any of the accused prior to the date of incident in the locality. She further admitted that police came to her house on the second occasion along with the accused persons and she volunteered that she had identified the accused of her own and told the same to the police, but she was not asked to join the TIP proceedings at Tihar Jail and the police had brought the accused in a police gypsy at her house and she has also admitted that accused were not in muffled face when they had entered in her house on the day of incident.
15. From the bare reading of the deposition of PW11, prima facie it seems to be attractive, but on a close scrutiny it is devoid of merits. From her answers given in her cross examination that it took only 2/3 seconds in calling the neighbours and noise of the firing as well as act of firing by accused Harihar took simultaneously, it can safely be inferred that incident occurred for a very little moment and even the neighbours gathered there soon after the incident. Her SC No.126/10 Page 15/36 landlady, PW1, Ms. Ritu Bala, admitted in her cross examination that there was no electricity connection in her house in those days, the portion of which was let out to the deceased. Another neighbour, PW3 Satish Kumar, answered that the light was available at that time.
16. After observing the said glaring features of her deposition and in view of her specific admission that accused were brought to her house when she identified them, it becomes necessary to know as to how and in what manner and at what time and place, the accused were arrested or as to whether the accused were at all taken to the house of the complainant, giving her an occasion to identify them at her house.
17. In this regard, PW15, Ct. Rajiv Kumar, deposed that on 16.07.2008, he was posted at PS Aman Vihar and he participated in the investigation along with IO Inspr. Dinesh Kumar, SI Mahender Pratap, HC Ravinder, Ct. Harphool, Ct. Sunil, Ct. Jogender and others and they reached behind Sector 22 towards the acquired land of DDA, Rama Vihar, when one secret informer informed the IO that two of the persons, out of culprits who committed crime in the present case, along with gas cylinder would pass through and could be apprehended and IO made request to some of the passersby to join the proceedings but none agreed and thereafter IO formed a raid SC No.126/10 Page 16/36 party along with the said police officials and informer and at the pointing out of the secret informer, two boys who were sitting by the side of bushes of the said acquired land were apprehended whose names transpired as Harihar and Shakeel, the accused present in the court and from the search of accused Harihar one loaded country made pistol and one empty cartridge case from the right side pocket of his wearing pant was recovered and the pistol was unloaded and sketch of the said pistol and cartridges Ex.PW15/A was prepared and said pistol and cartridges were sealed with the seal of DK and seized vide memo Ex.PW15/B and from the possession of accused Shakeel, one gas cylinder of M/s Bharat Gas Company was recovered which was seized vide memo Ex.PW15/C and the accused were arrested vide memos Ex.PW15/D to Ex.PW15/G and accused made their disclosure statements Ex.PW15/H and Ex.PW15/J and pursuant to the said disclosure statements, both the accused led them to DBlock, Rama Vihar, where they got arrested their two associates namely Jai Kishan and Ramu and he identified accused Jai Kishan present in the court and Ramu was not present in the court (being juvenile facing trial before the Juvenile Justice Board), the arrest memo of accused Jai Kishan and that of Ramu are Ex.PW15/K to Ex.PW15/N and both the accused Jai Kishan and Ramu made their disclosure statements which are Ex.PW15/O and Ex.PW15/P and accused Jai Kishan got recovered a broken lock and SC No.126/10 Page 17/36 iron rod from inside his house which were sealed with the said seal and seized vide memo Ex.PW15/Q and thereafter accused persons pointed out the place of incident i.e. A183/2B1, Rama Vihar and memos to that effect are Ex.PW15/R to Ex.PW15/U and thereafter accused were taken for their medical examination and he identified the gas cylinder recovered from the possession of accused Shakeel and iron rod and lock recovered at the instance of accused Jai Kishan.
18. In his cross examination on behalf of the accused, he replied that they left the PS at about 6 p.m in government and private vehicles and he could not tell which police official sat in which of the private vehicle. He answered that 2/3 police officials were in civil clothes and others were in police uniform and that he, SI Mahender Pratap and Ct. Harphool were in civil clothes and that he was sitting with IO in government vehicle and accused Shakeel and Harihar were apprehended at 8.30 p.m. He could not tell the distance between the place where they assembled when secret information was received and the place where accused persons were apprehended. He did not recollect as to which of the accused was first apprehended by which of the police official. He admitted that the said spot was a public thoroughfare. He could not tell as to which of the document was prepared first of all by the IO. He answered that first of all search of accused Harihar was conducted SC No.126/10 Page 18/36 but he did not remember by whom. He answered that there were street lights at that time but the same were at a distance. He replied that writing work was done near official government vehicle while standing on road and putting the papers on the bonnet of the vehicle. He replied that scale, with which the country made pistol and cartridges were measured, was made of steel. He admitted that gas cylinder Ex.P1 like case property is easily available in the houses. He replied that no number and weight of gas cylinder was mentioned by the IO in the seizure memo and they left the place of arrest of the said two accused at about 9 p.m. and from there they reached the house of accused Ramu and Jai Kishan within 23 minutes and the said house was the same where no member was present. He replied that they reached the place of incident at about 10 p.m and at the spot, wife of deceased, 2/3 other persons and some neighbours met them there and they remained at the spot for about 30 or 45 minutes. He could not name the documents prepared by the IO at the spot at that time. He replied that IO did not record the statement of any public person in his presence. He further replied that in his presence, besides him, Ct. Harphool and SI Mahender Pratap signed the seizure memo of lock and rod. He did not know if the said house was owned by accused or he was a tenant therein. He did not recollect if site plan of recovery was prepared by the IO. He denied the suggestion that place of recovery at Rama Vihar market was a SC No.126/10 Page 19/36 densely populated area and public persons had gathered there at the time of recovery proceedings. He was reexamined by the Ld. Addl. PP wherein he identified the country made pistol and the cartridge and case of the cartridge as Ex.P4, Ex.P5 and Ex.P6.
19. PW20 HC Harphool Singh deposed in his examination in chief almost on the same lines on which PW15 has deposed, who also deposed that accused Jai Kishan and accused Ramu (juvenile) pointed out the place of incident vide memos Ex.PW15/R and Ex.PW15/S and he identified the said gas cylinder, broken lock, iron rod, country made pistol, cartridge and the cartridge case. However, in his cross examination, he replied that they left the PS at about 7.30 p.m and the place of apprehension of accused Shakeel and Harihar was about 500 meters from the place of receiving the secret information. He replied that SI Mahender Pratap, Ct. Rajiv and he himself were in plain clothes. He replied that no public person was passing through the place where the accused were sitting behind the bushes. He replied that accused Shakeel was standing while holding the gas cylinder and IO did not prepare any site plan of the place of recovery. He further replied that all the writing work was done by the IO under the street light of Sector 22 near the DDA acquired land, near official vehicle while sitting on the road and they left the spot i.e. said vacant land of DDA at about 10.30 p.m. He further replied that place of occurrence was pointed out by the accused and SC No.126/10 Page 20/36 they reached first there at about 9 p.m. He answered that he did not accompany the accused at the time of pointing out the place of occurrence and the said two accused, who were first apprehended, pointed out and led the police to the place of occurrence separately. He did not recollect as to which of the police official accompanied the IO and it might have taken 15 minutes for the IO in taking and coming back with accused Shakeel. He answered that it took 15 minutes at the house of accused Jai Kishan and that there were public persons in the adjoining house and at the house of accused Jai Kishan, some ladies were present. He replied that with all the four accused they reached the place of incident at about 10 p.m and remained there for about 5 or 7 minutes and he did not recollect as to who met them there and none from the public came near the said place of occurrence at that time. He answered that only pointing out memos were prepared by the IO at that time at the place of incident and that he had signed the memos after going through the same. He further replied that the country made pistol was recovered from the right side pocket of the pant of accused Harihar. He replied that the premises where accused Jai Kishan was residing was a tenanted premises, as informed by accused himself. He could not specify the brand of the lock recovered from the house of accused Jai Kishan and he admitted that such kind of locks and iron rod are commonly available in the market.
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20. PW24 SI Mahender Pratap, in his examination in chief, deposed the facts almost on the same lines on which PW15 and PW20 deposed with regard to the arrest of the said four accused and recovery effected therefrom from the said respective two places and he further deposed that thereafter all the four accused persons took them (the police party) to the spot and pointed out the place of incident vide their pointing out memos Ex.PW15/R to Ex.PW15/U respectively and in the meanwhile, complainant Ms. Renu also came out of her house and identified three accused i.e. Harihar, Shakeel and Ramu and her statement was recorded by the IO and thereafter, they all came back at the PS and the case property was deposited with the MHC(M). He further deposed that on 11.11.2008, accused Pawan had surrendered before the court who was arrested by the IO Inspr. Gajender Singh vide memos Ex.PW24/A and Ex.PW24/B and his disclosure statement Ex.PW24/C was recorded and police custody remand was obtained who also pointed out the place of incident in the presence of one public witness namely Ashok Kumar, vide memo Ex.PW24/D and thereafter he identified the case property.
21. In his cross examination on behalf of accused, PW24 replied that they left the PS at about 3 or 4 p.m and they went in one government vehicle and one private car and he along with Inspector was in government vehicle and that some of the members of the raid SC No.126/10 Page 22/36 party were in civil dress but he himself and the Inspector were in uniform besides some other police officials. He further replied that they reached the DDA acquired land at about 5.30 p.m. He further answered that proceedings were conducted by the IO while sitting at the spot which is connected by a road. He did not recollect if any site plan was prepared by the IO or not. He did not know to whom the seal after use was handed over by the IO. He replied that from Rama Vihar, they reached the place of incident at about 10 p.m. and no public person met them at that time except the complainant who came out of her house and identified the three accused persons and that IO prepared the pointing out memo and statement of complainant was recorded at that time. He admitted that cylinder Ex.P1 is commonly available in the market.
22. PW27 Inspr. Dinesh Kumar is the IO of the case who deposed the facts substantially on the same lines on which PW15, PW20 and PW24 have deposed with a difference that after the recovery effected from accused Jai Kishan and Ramu at Rama Vihar, he deposed that the accused persons made pointing out of the place of incident i.e. A183/2B1, Rama Vihar vide memo Ex.PW15/R and that of Ramu vide memo Ex.PW15/S and thereafter he identified the case property and he was not cross examined on behalf of the accused.
SC No.126/10 Page 23/36
23. The remarkable feature which has come on the surface from the deposition of PW15, PW20 and PW27 is that admittedly on 16.07.2008, they were the members of the raid party along with other police officials including PW24, but none of the said three witnesses, in their examination in chief, deposed about the said complainant Smt. Renu coming out of her house and identifying the three accused namely Harihar, Shakeel and juvenile accused Ramu. It was such an important event during the investigation which linked the accused with the offence as allegedly the complainant, the eye witness of the incident, identified the said three accused when all the four accused allegedly pointed out the place of occurrence. PW24 SI Mahender Pratap, claimed that statement of the complainant was recorded by the IO at that time and IO was admittedly PW27 Inspr. Dinesh Kumar at that time, who nowhere deposed in his examination in chief even the presence of the complainant at the time of accused pointing out the place of incident and identifying them what to talk of recording of her statement. The claim of PW24 is that there was only the complainant present at that time who came out of her house and identified the said three accused. But, PW15, although not deposed any such incident in his examination in chief, in his cross examination answered that at the spot of the incident wife of the deceased and 2/3 other persons and some neighbours met the police party there and they remained at the spot for about 30 or SC No.126/10 Page 24/36 45 minutes. He could not name the documents prepared by the IO at the spot at that time. He even answered that IO did not record the statement of any public person in his presence. Thus, even PW15, although claimed the presence of complainant Smt. Renu at that time, but altogether denied and showed his ignorance regarding any statement of the complainant recorded regarding the alleged identification of the accused by her and his claim that 2/3 persons and neighbours were also present at that time was altogether denied by PW24, who claimed that only the complainant was present. The story of the pointing out of the place of incident by the accused on 16.07.2008, further becomes interesting by the deposition of PW20 who went to the extent of answering in his cross examination that place of occurrence was pointed out by the accused and they reached first there at 9 p.m before the arrest of accused Jai Kishan and Ramu and he did not accompany the accused at the time of pointing out of place of occurrence and the said two accused, who were first apprehended (accused Harihar and Shakeel), pointed out and led the police to the place of occurrence separately. He further answered that accused Shakeel was taken first by the IO followed by accused Harihar who was also taken by the IO after leaving accused Shakeel and they were taken in the said official vehicle. He did not recollect as to which of the police official accompanied the IO. He answered that it might have taken 15 minutes for the IO in taking and coming SC No.126/10 Page 25/36 back with accused Shakeel. Again he answered that with all the four accused they reached the place of incident at about 10 p.m and remained there for 5 or 7 minutes and he did not recollect as to who met the police party there. He specifically answered that none from the public came near the said place of occurrence at that time and only pointing out memos were prepared by the IO at that time at the place of incident and he had signed the memos after going through the same. Admittedly all the four pointing out memos Ex.PW15/R to Ex.PW15/U were signed by PW20 HC Harphool, but he denied to have accompanied the accused to the place of incident and it was only the IO who took them one by one and subsequently he deposed that all the four accused were taken together.
24. In the said circumstances, it is very difficult to swallow the fact that all the four accused allegedly pointed out the place of incident on 16.07.2008, out of which three were identified by the said complainant Ms. Renu, the wife of the deceased. If we believe the deposition of PW24, it is wiped out by the deposition of PW15, PW20 and PW27, the IO of the case. Thus, the only inference from the said contradictions among the said members of the raid party which can be drawn is that accused never pointed out the place of occurrence on 16.07.2008 so as to give an occasion for Ms. Renu, the PW11, to identify any of the accused.
SC No.126/10 Page 26/36
25. Let me go now in reverse direction and assuming for the sake of argument that the alleged four accused pointed out the place of occurrence on 16.07.2008, out of which three accused were allegedly identified by the complainant Ms. Renu, the safe and only inference is that accused were not kept in muffled faces at that time by the police party after their respective arrest in the alleged manner and from the alleged places.
26. So far as accused Pawan is concerned, the deposition of the complainant Ms. Renu is that probably he was outside the house, which in itself create a doubt with regard to his presence at the place of occurrence coupled with the admitted fact that there was no recovery effected at the instance of accused Pawan, who had surrendered before the court and the said circumstances are sufficient for his clean acquittal.
27. The manner in which the incident was described by PW11, the complainant, the dead end of the night when the incident had taken place, doubt about the sufficiency of the light for establishing the identity of the intruders in the house, the time within which the incident had happened and the failure of the prosecution to establish the identity of the accused by the said alleged eye witness PW11 on 16.07.2008 at the time of pointing out the place of incident by the accused, as held by me above, all the said circumstances are forcing SC No.126/10 Page 27/36 me to agree with the contention raised by the Ld. Defence Counsels with regard to not organizing a judicial TIP of the accused from the complainant, which the Ld. Defence Counsels have vehemently argued before me.
28. The evidentiary value of the TIP and necessity of the same has been discussed in great detail by the Hon'ble Supreme Court in the case titled Malkhansingh and others Vs. State of Madhya Pradesh reported as 2003 CRI. L.J. 3535 while dealing with the aspect of identity of the accused and evidentiary value of the TIP in a rape case as follows:
"The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused persons at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test SC No.126/10 Page 28/36 identification parade. They do not constitute substantive evidence and these parades are essentially governed by S. 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.
The substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification of the witness in Court, if required. However, what weight must be attached to the evidence of identification in Court, which is not preceded by a test identification parade, is a matter for the Courts of fact to examine. In the instant case the Courts below have concurrently found the evidence of the prosecutrix, a victim of gang rape to be reliable and, therefore, there was no need for the corroboration of her evidence in Court as she was found to be implicitly reliable. There is no error in the reasoning of the Courts below. The facts of the case shows that the prosecutrix did not even know the appellants accused and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity. The SC No.126/10 Page 29/36 occurrence took place on March 4, 1992 and she deposed in Court on August 27, 1992. The prosecutrix is a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances concurrent finding by Courts that the identification of the appellants by the prosecutrix in Court does not require further corroboration cannot be interfered with."
29. Judging in the light of the said law laid down by the Hon'ble Supreme Court, the present case is that of a complainant who had a very little time to observe the incident at a dark night and her deposition go to suggest that she had only a fleeting glimpse of the accused which is also fortified by her further deposition wherein she created a doubt over the presence of accused Pawan, as held by me above, her changing versions and improvements from her initial statement Ex.PW11/A and enhancing the number of the accused in her deposition before the court, as detailed above, all go to suggest that her memory should have been tested by way of judicial TIP so as to corroborate her identity of the accused before the court. In the said circumstances, I am of the considered opinion that her first time identification of the accused before the court is useless and of no worth to be believed and not holding a judicial TIP and not keeping the accused persons in muffled faces after their arrest is fatal to the prosecution case.
30. Coming to the charges of the offences u/s 395/396/397 IPC, SC No.126/10 Page 30/36 the basic ingredient of a dacoity or dacoity with murder is that there should be five persons who have committed the said acts. I am conscious of the fact that those who wait and watch outside till the robbery is complete or those who help in retreating with the booty are equally responsible for the offence of dacoity even though they might not have actually joined in the commission of the dacoity, but in the present case the said number and role of the accused is also missing even if I go by the story of the prosecution and particularly the deposition of the complainant PW11. She failed to establish beyond reasonable doubt that accused Pawan was the person who was actually present at the time of incident by her own words of the deposition to the effect that "accused Pawan was probably outside the house at that time and she saw him also at the time of incident". She further claimed that the fifth accused is facing trial in children's court. The case put by PW24 is that all the four accused namely Harihar, Shakeel, Jai Kishan and Ramu @ Ramji (Juvenile) pointed out the place of occurrence, out of which only accused Harihar, Shakeel and Ramu were identified by the complainant PW11. The question here is that accused Jai Kishan was never identified by the complainant at the time of pointing out of place of occurrence on 16.07.2008, but in her deposition before the court she assigned the role to accused Jai Kishan as the person who was standing at the main gate and if it was so, why she failed to identify him allegedly SC No.126/10 Page 31/36 on 16.07.2008. The said facts are difficult to be reconciled and her further deposition that accused Shakeel was the person who tried to catch hold of her, was not found recorded in her previous statement Ex.PW11/A. In these circumstances, the only inference is that the prosecution has miserably failed to link at least five persons to the alleged incident so as to attract the definition of dacoity and its enhanced version given in Section 396 IPC.
31. Having held so, the case has been appreciated by me from the point of view of offence u/s 302/34 IPC, as mentioned above.
32. For the said reasons of not holding the TIP of the accused, the said contradictory version of allegedly identifying the accused on 16.07.2008 also wipes out the offence u/s 458/34 IPC and from her zigzag version given in her examination in chief regarding actually looking accused Harihar firing a gunshot from a country made pistol, as discussed above, I have no hesitation in coming to the conclusion that she is not the eye witness of the fact of accused Harihar firing at the deceased with a country made pistol and there is a doubt also about the actually committing of any robbery or dacoity, as discussed by me above and below also, the liability u/s 397 IPC against accused Harihar cannot be held to be proved beyond reasonable doubt.
33. Coming to the alleged arrest of the accused Harihar and SC No.126/10 Page 32/36 Shakeel on 16.07.2008 upon a secret information from DDA acquired land of Sector 22, Rohini, Delhi and at their pointing out, arrest of accused Jai Kishan and Ramu @ Ramji from Rama Vihar, and the recovery of a country made pistol and cartridges from accused Harihar, one gas cylinder from the possession of accused Shakeel, a bent iron rod and one broken lock at the instance of accused Jai Kishan, as deposed by PW15, PW20, PW24 and PW27, there are material contradictions in their respective depositions not only in their examination in chief but in their cross examination also. Some of the examples are that they deposed differently regarding the time when they left the PS for the apprehension of the said four accused upon a secret information. PW15 answered that the police party left the PS at about 6 p.m and for PW20, the time was 7.30 p.m and yet for PW24, they left the PS at 3 or 4 p.m. PW15 and PW20 claimed that they and PW24 were in police uniform whereas other police officials were in civil clothes whereas PW24 answered that he and Inspr. Dinesh Kumar, PW27, were in uniform besides some other police officials. PW15 claimed that spot of apprehension of accused Harihar and Shakeel was a thoroughfare and public persons were present whereas PW20 altogether denied the presence of any public person. With regard to writing work done by the IO at the spot of apprehension of the said two accused, PW15 deposed that it was done near the spot while placing the paper at the bonnet of the SC No.126/10 Page 33/36 government vehicle but for PW20, the writing work was done under street light of Sector 22, while sitting on the road and yet for PW24, it was done at the spot itself while sitting on the road. I have already discussed the contradictions with regard to alleged pointing out of the place of occurrence by the accused on 16.07.2008, their alleged identification by PW11 at the spot and presence of other public witnesses and neighbours at the said time. Further, when the police, at the instance of accused Harihar and Shakeel, went to the house of accused Jai Kishan and Ramu at Rama Vihar, Delhi, PW15 answered that no one was present except the accused in the said house of accused Jai Kishan and Ramu, whereas for PW20, there were some ladies present in the said house at the said place.
34. Even otherwise, no public person was joined at the time of apprehension of the said four accused despite their admitted availability and it is difficult to swallow the fact that after so many days of the incident, why accused Harihar would keep the country made pistol with him which he allegedly used in the commission of the said offence as per his disclosure statement, and accused Shakeel would keep the gas cylinder, accused Jai Kishan would keep the bent iron rod and the broken lock with him so as to be readily available to the police, which is against the ordinary human nature. If the broken lock and the gas cylinder were the pieces of evidence which could connect the said accused with the said offence, any person of SC No.126/10 Page 34/36 ordinary human prudence would not keep the same and would try to dispose them of so as to be out of the reach of the police during investigation even if the said persons are caught as accused of the case. Further more, it is not the case of the complainant PW11 in her deposition or the prosecution that anyone saw the accused removing the bags of the grain, the cycle, the gas cylinder, the broken lock, which were allegedly found missing from the place of occurrence after the incident. Almost all the witnesses, may be PW11 or the said four witnesses of recovery, admitted that said articles are easily available in the market and even PW11 failed to provide the key of the said broken lock so as to connect the same as the lock which was affixed at the door of the said house. She even failed to identify the cylinder and admitted that such like cylinders look alike, which are provided by different gas supply companies. Thus, I am of the considered opinion that prosecution has miserably failed to establish the alleged arrest of the accused on 16.07.2008 and the said recoveries allegedly effected from them beyond reasonable doubt.
35. In view of my said discussion, the accused are entitled to the benefit of doubt and are acquitted of the charges u/s 395/396/302/458/412/397/34 IPC & 27/25 Arms Act. Accused Harihar be set at liberty forthwith, if not wanted in any other case. PBs and SBs of remaining accused are hereby discharged. The file SC No.126/10 Page 35/36 be consigned to the Record Room.
(Announced in the open court on th 26 July 2012) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.126/10 Page 36/36