Delhi High Court
Gulamuddin vs State (Gnct Of Delhi) [Along With ... on 9 July, 2007
Author: P.K. Bhasin
Bench: R.S. Sodhi, P.K. Bhasin
JUDGMENT P.K. Bhasin, J.
1. By this common judgment we are going to dispose of five appeals arising out of the judgment dated 19.5.2006 passed by the learned Additional Sessions Judge, Delhi in Sessions Case No. 58/2005 arising out of FIR No. 31/99 registered at Bara Hindu Rao Police Station whereby all the five appellants were convicted under Section 396 read with Section 34 IPC and also under Section 302 read with Section 34 IPC.
2. The appellants/accused were prosecuted for having committed dacoity in House No.T-20, Kishan Ganj, Double Phatak, DCM Road, Delhi on 2.2.99 at about 7.00 p.m. and also for having killed one Smt.Rekha Sharma while committing the dacoity in her house. The complainant of this case is PW-10 Ashwani Sharma @ Lovely. He is the son of deceased Rekha Sharma. His statement (Ex. PW-10/A) was recorded by PW-18 Sub Inspector Tara Chand and on that basis FIR of this case (Ex. PW-1/B) was registered. It was stated by Ashwani Sharma in his statement to the Police that on 2.2.99 at about 7.00 p.m. he was playing with his sister Madhuri (PW-12) in a room of their house. At that time their mother was sleeping in that room and their father was not at home. Suddenly three boys, out of whom two were fair complexioned and third one was wheatish complexioned, came in that room and enquired about their father. On hearing their voice their mother woke up and asked those boys as to who they were. Upon that, one of the fair complexioned boys started abusing his mother and told her to keep lying down silently. One of the boys had a knife and he made him and his sister sit on a trunk lying there. One boy who was having a small gun caught hold of his mother and other boy stabbed his mother with a knife due to which she started shouting. The complainant further alleged that on seeing his mother bleeding he and his sister also shouted and then all the three boys fled away. On hearing their shouts their neighbours Satnam and Kishan Lal along with others came and took their mother to hospital. In the Jiwan Hospital, where the injured was taken, she was medically examined and the doctor made efforts to save her but could not succeed and declared her dead at 8.15 p.m. As per the MLC Ex. PW-9/A prepared in the hospital the deceased had two stab injuries caused with a sharp edged weapon. On 4.2.99 accused Satbir Singh (appellant in Crl. Appeal No. 785/2006) was arrested by the Police on the basis of some information given by a secret informer of the Police. As per the prosecution case, one broken gold chain was recovered from his possession at the time of his apprehension and the same was sealed and seized vide memo Ex. PW-3/B and that chain was later on identified and claimed by the husband of the deceased to be belonging to her. Accused Satbir Singh also got recovered one blood stained knife (Ex. P-1) and one blood stained shirt (Ex. P-2) from his house in Kabir Basti, Malka Ganj, Delhi pursuant to the disclosure statement made by him wherein he had also named other co-accused also as his associates in the crime in question. As per the further prosecution case, accused Kirpa Shankar Maurya @ Maurya (appellant in Crl. Appeal No. 962/2006) and accused Gulamuddin (appellant in Crl. Appeal No. 768/2006) were arrested on 5-2-99 at the instance of accused Satbir Singh. At that time one knife was recovered from the possession of accused Kirpa Shankar and the same was sealed and seized vide memo Ex. PW-18/M. All the three accused were required to participate in a test identification parade (TIP) on 5-2-99 but all of them refused to participate in the TIP stating before the Magistrate(PW-19) that they had already been seen by the two children of the deceased at the spot at the time of the incident.
3. On 6.2.99 accused Shiv Ram @ Chotu (appellant in Crl. Appeal No. 1014/2006) and accused Juber Alam (appellant in Crl. Appeal No. 843/2006) were also arrested by the Police at the instance of accused Satbir Singh. After the arrest of these two accused persons they were also required to participate in the test identification parade but also they refused to participate in the same on the ground that they had been shown to the witnesses. As per the post-mortem report of PW-6 Dr. Komal Singh the following ante-mortem injuries were noticed on the dead body of the deceased:
External Injuries:
1. Penetrating incised wound on the dorsum of the left hand 2.1 cm x 0.9 cm and it was spindle shape and both angles were acute.
2. Another penetrating incised wound present on the mid abdomen 2.3 cm x 0.8 cm, both angles were acute and margins were clean cut. It was placed 7.8 cm above the umbilicus and 5 cm below Xiphistrnun.
Internal examination:
On internal examination on tracing the number two injury there was cut at the right lobe of the liver going through and through making a cut of 2.3 cm x 0.8 cm. Abdomen cavity contain 2 ltr. Of the blood. Stomach contain 200 ml. of undigested food.
The cause of death was opined to be haemorrhagic shock due to the injury to the liver which was found to be sufficient to cause death in the ordinary course of nature. At the time of post-mortem examination blood stained clothes of the deceased and her blood sample were preserved and later on the same were sent to Forensic Scientific Laboratory along with the blood stained knife and blood stained shirt got recovered by accused Satbir Singh. As per the FSL report blood group of the deceased was found to be B and the blood on the knife and shirt got recovered by accused Satbir Singh was also found to be human blood of B group.
4. On the completion of the usual investigation, the police submitted a charge sheet in court against the five appellants-accused and in due course the case came to be committed to the Sessions Court. The learned Trial Judge framed charges under Sections 396/302/34 IPC against all the five accused persons and all of them pleaded not guilty. The prosecution was then called upon to adduce its evidence which it did and examined 22 witnesses in all. Thereafter, statements of the accused persons were recorded under Section 313 Cr.P.C. All of them pleaded false implication. Accused Satbir Singh took a plea that he and his brother Jai Prakash had been falsely implicated in 5-6 auto theft cases at the instance of SI Tara Chand in the last week of January, 1999 and when his uncle Babu Singh who was also SI in Delhi Police met SI Tara Chand and asked him as to why he had falsely framed his nephew in false and theft cases. On this issue, there was exchange of hot words between SI Tara Chand and SI Babu Singh. He further claimed that in the auto theft cases he had since been acquitted by the Court. Accused Shiv Ram while pleading false implication, claimed that he had been lifted from his factory where he was working in the late night and was taken to the Police Station where he was detained for six days and then falsely implicated in this case. Accused Juber Alam claimed that he was lifted from Shantivan Pushta and detained at the Police Station for two days and then falsely implicated in this case. Accused Gulamuddin also claimed that he was lifted from his jhuggi and was falsely implicated in this case. Accused Kirpa Shankar took the plea that he was called from his house to the Police Station through three police officials on the pretext that some enquiry was to be made from him and then he was illegally detained for about five days at the Police Station and falsely implicated in this case. Accused Satbir Singh examined his brother Jai Prakash in support of his plea that there was an exchange of hot words between SI Tara Chand (initial Investigating Officer of this case) and his uncle SI Babu Singh. Other accused persons, however, did not adduce any evidence in defense.
5. Learned Trial Judge after examining the entire evidence found the prosecution case fully established against all the five accused persons and accordingly convicted them under Sections 396/302/34 IPC vide his judgment dated 19.5.2006 and vide order dated 22.5.2006 awarded life imprisonment to all of them and also imposed a fine of Rs. 5,000/- each with a defualt clause for their conviction under Section 302/34 IPC and rigorous imprisonment for ten years to all of them in addition to a fine of Rs. 5,000/- each for their conviction under Section 396/34 IPC. The appellants filed separate appeals challenging the correctness of the impugned judgment and order on sentence of the trial court. Since all the appeals arose out of the same judgment of conviction of the trial court they were heard together and are now being disposed of by this common judgment.
6. The appellants in these appeals were represented by two counsel whose services were made available to them at their request by the Delhi Legal Services Authority (DLSA). Learned Counsel for the appellants did not dispute the fact that the deceased Rekha Sharma died a homicidal death. That fact is even otherwise fully established from the MLC Ex. PW-9/A which shows two stab injuries on the body of the deceased and the evidence of Autopsy Surgeon (PW-6) who, as noticed already, after conducting post mortem examination had opined that cause of death of deceased Rekha Sharma was haemorrhagic shock subsequent to the injury to the liver which was sufficient to cause death in the ordinary course of nature.
7. Learned Counsel for the appellants, however, seriously disputed the correctness of the findings of the trial court holding them guilty of having committed dacoity and murder. The submission of both the counsel were similar. It was contended that there were many serious infirmities in the evidence of the eye-witnesses of the incident and also in the evidence of the witnesses of recovery of gold chain from accused Satbir Singh and blood stained knife and shirt at his instance as well as in the evidence of witnesses of recovery of knife from accused Kirpa Shankar. It was also contended that accused persons were fully justified in refusing to participate in the test identification parade since they were shown to the identifying witnesses before the test identification parade. On the other hand, learned Additional Public Prosecutor appearing for the State fully supported the impugned judgment and contended that the prosecution case was rightly found by the Trial Judge to be established beyond any shadow of doubt and there being no infirmity in any of the findings of the trial court these appeals deserve to be dismissed. During the course of arguments evidence of material witnesses was also referred to from both sides. We shall state the detailed submissions of the learned Counsel for the appellants and their worth after narrating the evidence of the eye witnesses.
8. The prosecution has relied upon the evidence of two eye-witnesses of the incident and both of them are the children of the deceased and corroboration to their evidence has been sought to be derived from some pieces of circumstantial evidence. PW-10 Ashwani Sharma @ Lovely is the son and PW-12 Madhuri is the daughter of the deceased. PW-10 was about 11 years old and PW-12 was eight years old on the day of the incident. They were examined in Court in the year 2002. Both of them have deposed that on the day of incident they were present in their house in the evening at about 6.45-7.00 p.m. and at that time their mother was sleeping while their father was not at home. PW-10 has deposed that at that time accused Gulamuddin, Kirpa Shankar and Satbir Singh(the witness had pointed out towards these accused persons) came to their house and their mother got up and asked as to who they were. Accused Satbir Singh started abusing his mother and asked her to keep lying. Accused Gulamuddin took out a gun from his pant and pointed it towards the temple of her sister. Accused Kirpa Shankar made him(PW-10) to sit on a trunk lying in the room and also placed a knife on his abdomen. He further deposed that accused Satbir Singh gave knife blows to his mother and thereafter all the three accused persons ran away when he raised an alarm. Their neighbours Satnam and Prithvi came along with 2-3 more persons whose names he did not remember removed his mother to Jeewan Hospital. The same night police came and recorded his statement Ex. PW-10/A. PW-10 also deposed that on 6.2.99 accused Gulamuddin, Kirpa Shankar and Satbir Singh, who had entered their house, along with two more persons came to their house with the investigating officer and the Investigating Officer had informed him that other two persons were standing in the staircase at the time of occurrence but he (PW-10) could not identify them. In the cross-examination on behalf of accused Satbir Singh PW-10 was again asked to tell as to how many persons had come to his house and then he claimed that four persons had entered their house and had committed the offence and one person had remained present in the staircase while other persons were killing his mother. He further clarified that accused Juber Alam had remained present in the staircase and the other four accused persons had come inside the house and Juber had asked them to hurry up as somebody may come. Then PW-10 was asked if he had stated before the police that four accused had come inside the house and one had kept standing in the staircase and he replied in the affirmative but when he was confronted with his police statement Ex. PW-10/A it was not found to be so recorded. The witness denied the suggestion that he had been tutored by the police to identify three accused persons in court. In the cross-examination on behalf of accused Shiv Ram, PW-10 denied the suggestion that at the instance of the police he had introduced fourth accused as the person who had also entered his house. He also denied the suggestion that on the day of occurrence Shiv Ram had not come to his house. In the cross-examination on behalf of accused Kirpa Shankar and Gulamuddin also it was suggested to PW-10 that Kirpa Shankar and Gulamuddin had not come to his house and that he was deposing falsely. The witness denied that suggestion. There was no cross-examination of this witness on behalf of Juber Alam, although opportunity of cross-examination was given to him by the trial court.
9. PW-12 Madhuri is the sister of PW-10 and the other eye-witness of the incident. She deposed that accused persons except Satbir Singh had come inside their room on the day of the incident and accused Gulamuddin had kept a pillow on the face of her mother and accused Kirpa Shankar had stabbed her mother with a knife. Accused Juber Alam had caught hold of her (PW-12) and accused Shiv Ram had caught hold of her brother Ashwani and placed a knife on his abdomen and that after killing her mother all the four accused had run away. In cross examination on behalf of accused Satbir Singh this witness admitted that she had not seen accused Satbir Singh on the day of occurrence or thereafter. In cross-examination on behalf of accused Shiv Ram it was asked from her if she had claimed before the police that four persons had entered their house and her answer was in the affirmative. She was then confronted with her police statement PW-12/DA wherein it was recorded that three persons had entered their house. On behalf of accused Kirpa Shankar it was simply put to this witness that this accused had not stabbed her brother. The witness denied that suggestion. In cross-examination on behalf of accused Gulamuddin and Juber Alam the only suggestion put to her was that these two accused had not come to her house. She denied those suggestion also.
10. Having narrated the evidence of the two eye witnesses we shall now consider the worth of the criticism of the counsel for the appellants regarding their evidence. Referring to the evidence of the two eye witnesses the learned Counsel for the appellants had submitted that their evidence is totally inconsistent on vital aspects of the prosecution case and in fact both of them have made totally contradictory statements which cannot be explained by any hypothesis and, therefore, their evidence could not be relied upon. It was argued that as far as PW-10 Ashwani Sharma is concerned, he has claimed that accused Gulamuddin, Kirpa Shankar and Satbir Singh had come inside their house and in his first information statement exhibit PW10/A also he had claimed that three boys had entered their room but during cross-examination on behalf of accused Satbir Singh he had changed his version by claiming that five persons had come to their house out of whom four persons had entered their room and committed the offence while the fifth person Juber Alam had remained present in the staircase. Learned Counsel also submitted that even this statement made by PW-10 in cross-examination is an improvement made by him in Court and, therefore, no reliance can be placed on his testimony. Learned Counsel also submitted that PW-12 Madhuri has given a totally contradictory version of the incident by claiming that only accused Gulamuddin, Shiv Ram, Kirpa Shankar and Juber Alam had come inside their house and she has totally exonerated accused Satbir Singh. She has also claimed that it was accused Kirpa Shankar who had stabbed her mother with a knife while according to PW-10 Ashwani it was accused Satbir Singh who had stabbed his mother. It was also contended that PW-12 has claimed that it was accused Shiv Ram who had caught hold of her brother Ashwani and kept a knife on his abdomen but PW-10 has claimed that it was accused Kirpa Shankar who had placed a knife on his abdomen. It was also submitted that even PW-12 had claimed before the police in her statement Ex. PW-12/DA that three persons had come to their room and so her statement in Court that four persons had come is also an improvement and that two more persons were introduced during the evidence as a result of tutoring of both PWs 10 and 12 and that is evident from the fact that PW-10 was examined-in-chief on 16-5-02 and that day he had claimed that three accused had come inside their room. His cross-examination was deferred for 1-8-02 and it was only on that day that PW-10 changed his version and claimed that all the five accused were involved in the incident and on the same day his sister also, contrary to her police version, claimed in Court that four accused had come inside their room. Learned Counsel contended that since the police had booked five persons to make it a case of dacoity and PW-10 had also claimed in his chief-examination that on 6-2-99 the police had brought to their house accused Satbir Singh, Kirpa Shankar and Gulamuddin along with two more boys and that the police had told him that those two boys were also involved in the incident although they had remained standing in the stairs the two children of the deceased were tutored to change their version between the date when examination-in-chief of PW-10 was recorded and the date of his cross-examination. According to the learned Counsel for the appellants both the eye witnesses have not been consistent in respect of the involvement and individual roles played by any one of the five accused persons. Learned Additional Public Prosecutor, however, submitted that the contradictions pointed out in the statements of these two witnesses are insignificant and were rightly ignored by the trial Court considering the fact that both these witnesses were young children at the time of occurrence and were examined in Court after more than three years of the incident and so there were bound to be some inconsistencies in their evidence. Learned Prosecutor also submitted that both these witnesses had no reason to falsely identify the accused persons as the culprits and the learned trial court had rightly accepted their evidence, ignoring the contradictions in their statements pointed out by the defense counsel. It was also contended that if the police had to make out a false case against the accused persons it could have very conveniently put up the husband of the deceased as the eye witness of the incident instead of making the two children as the eye witnesses but that was not done. It was further submitted that the prosecution had also adduced other evidence also which corroborated the evidence of the two eye witnesses of the incident.
11. From the evidence of the two eye witnesses Ashwani Sharma and Madhuri it clearly stands established that in the evening of 2nd February, 1999 some persons had barged into their house and had killed their mother. On behalf of none of the five accused persons this part of their testimony was challenged in cross-examination nor even during the course of arguments anything was contended by any of the counsel for the appellants that the incident, as claimed by PWs 10 and 12, had not taken place in their house. As noticed already, all the counsel had, however, strongly contended that none of the appellants was involved in that incident. In this case all the five accused were tried for the offences under Sections 396/302 read with Section 34 IPC. For securing conviction under Section 396 IPC all that the prosecution is required to establish is that five or more persons had committed robbery and while committing robbery one of them committed murder and if it is so established then all the culprits would be held guilty under Section 396 IPC whether or not all had shared common intention with each other to commit murder. It was held by the Honble Supreme Court in Umesh Kamat v. State of Bihar 2005 Crl.L.J. 908 that in a case under Section 396 IPC it need not be proved by the prosecution that a particular accused had caused the death and it would be sufficient to secure conviction of an accused under Section 396 IPC if it is established that he was one of the five or more persons conjointly committing dacoity out of whom one had committed murder in the course of the same transaction irrespective of the fact whether he is the actual assailant or not or whether he had shared the common intention to kill anyone. While for the offence of murder, to secure conviction of two or more accused persons with the aid of Section 34 IPC it is required to be proved that murder was committed in furtherance of the common intention of two or more persons. So, in the present case the charges against all the accused would stand established if it is found from prosecution evidence that all of them had come to the house of the deceased to commit dacoity and had in fact, committed dacoity and while committing dacoity someone out of them caused injuries to the deceased resulting in her death. Learned Counsel for the appellants did not dispute this legal position. However, on behalf of accused Gulamuddin, Shiv Ram and Juber Alam it was argued by the learned Counsel that even if this Court affirms the conviction of these accused under Section 396 IPC they would still be entitled to be acquitted of the charge under Section 302/34 IPC because both the eye witnesses have not attributed any role to these three accused persons as far as the injuries caused to the deceased are concerned and there is no circumstance from which it can be inferred that these accused persons had shared common intention with accused Satbir Singh and Kirpa Shankar, both of whom had allegedly stabbed the deceased, to commit her murder.
12. Now, as far as the involvement of the appellants accused in the incident is concerned the prosecution is strongly relying upon the evidence of the two children of the deceased both of whom have claimed to have witnessed the incident. Since the incident took place inside their house, which was on the first floor, in the evening time at about 7 p.m. the presence of the two small children of the deceased at that time in the house was quite natural. As noticed already, PW-10 Ashwini Sharma was 14 years old when he came to the Court to give evidence and his sister PW-12 Madhuri was 11 years old at the time of giving evidence. Considering the fact that they were quite young at the time of the incident which had occurred three years before they came to the Court to depose there were bound to be some inconsistencies and contradictions in their statements. However, in our view, and as has been rightly held by the learned trial Court also, the evidence of the two children of the deceased cannot be rejected because of the contradictions in their statements pointed out by the counsel for the appellants.
13. There is no doubt that in his examination-in-chief PW-10 Ashwini Sharma had claimed that only accused Gulamuddin, Kirpa Shankar and Satbir Singh had come inside the room in which he was playing with his sister and his mother was sleeping. However, in cross-examination it was asked again from him by the defense counsel as to how many persons had come inside their house and had committed the offence and then he had claimed that four persons had entered the house and they were accused Gulamuddin, Kirpa Shankar, Satbir Singh and Shiv Ram while the fifth accused Juber Alam had remained standing in the staircase. If this witness had to be tutored to say so then he himself would have volunteered to make statement to that effect before his cross-examination commenced but he did not do that and it was only when it was asked from him by the defense counsel that he came out with the version that all the five accused persons had come to their house for committing the crime. As far as accused Juber Alam is concerned there was no cross-examination of PW-10 on his behalf and, therefore, the statement of PW-10 that Juber Alam was also one of the culprits stood admitted by this accused and he cannot derive any advantage from the fact that in his chief-examination PW-10 had not claimed that Juber Alam was also one of the culprits. As far as accused Gulamuddin, Kirpa Shankar and Satbir Singh are concerned they themselves had made statements before Metropolitan Magistrate PW-19 Shri Shiv Charan on 05-02-1999, when they were produced before him for test identification parade, that they did not want to join test identification parade because they had been seen by the two children of the deceased at the time of the incident/commission of offence at the spot. Those statements of these three accused persons have been proved on record by the Metropolitan Magistrate himself and they can be used as admissions of these three accused of their involvement in the incident. Ex. PW-19/B is the statement of accused Satbir Singh, Ex. PW-19/C is the statement of accused Kirpa Shankar and Ex. PW-19/D is the statement of accused Gulamuddin. Although in cross-examination of PW-19 Shri Shiv Charan on behalf of accused Satbir Singh it was put to him that accused persons had not given any statement nor were they even produced before him and that the investigating officer had already got dictated the statements and had got it signed from him(PW-19) without producing the accused but in our view we have no reason to disbelieve the evidence of PW-19 as well as the proceedings recorded by him regarding the refusal of the three accused persons to participate in the test identification parade for the afore-said reason. The allegation levelled by accused Satbir Singh against PW-19 by putting this kind of a suggestion is absolutely baseless and that is also clear from the fact that when this accused was examined under Section 313 Cr.P.C. he did not claim so. This accused has, thus, taken a false stand and that is also a circumstance which goes against him.
14. As far as other two accused Kirpa Shankar and Gulamuddin are concerned they did not cross-examine PW-19 to dispute his statement that accused Kirpa Shankar had made statement Ex. PW-19/C and Gulamuddin had made statement Ex. PW-19/D. So, the presence of accused Satbir Singh, Gulamuddin and Kirpa Shankar in the house of PWs 10 and 12 at the time of the incident gets established beyond any doubt whatsoever from the evidence of PW-10 as also from their own admission before the Magistrate about their presence at the place of occurrence and their having been seen by the two children of the deceased. As far as accused Shiv Ram is concerned it had simply been put to PW-10 in cross-examination that he had introduced the 4th accused (Shiv Ram) also as one of the culprits who had also entered their room along with Kirpa Shankar, Satbir Singh and Gulamuddin at the instance of the police but the witness had denied that suggestion. There was no reason for PW-10 to have falsely implicated the accused persons nor any motive was attributed to him in his cross-examination on behalf of any of the accused persons. The statement of PW 10 regarding the involvement of accused Shiv Ram and Juber Alam gets strengthened from their refusal to participate in the test identification parade which was to be conducted by PW-20 Shri R.B.Singh, Metropolitan Magistrate. Although before the Magistrate these two accused had claimed that they were refusing to participate in the test identification parade because they had already been shown to the witnesses but when the two eye witnesses and the investigating officer were examined during the trial it was not even suggested to anyone of them that they had been shown to the witnesses before the date of test identification parade which was fixed for 07-02-1999. Even in their statements under Section 313 Cr.P.C. accused Shiv Ram and Juber Alam did not claim that they had been shown to the witnesses who were supposed to identify them before the test identification parade and that is why they had refused to participate in the test identification parade. In fact, when it was put to them that they had refused to participate in the test identification parade they replied that that was not correct. That means these two accused wanted to convey that they had never refused to participate in the test identification parade and were, in fact, willing to do that. However, when the Metropolitan Magistrate PW-20 Shri R.B. Singh deposed that these two accused had refused to participate in the test identification parade he was not cross-examined at all which shows that these two accused were not disputing that they had refused to participate in the test identification parade. They also, thus, took a false plea during their statements under Section 313 Cr.P.C. by denying that they had refused to participate in the test identification parade. So, against these two accused also the prosecution can utilize the circumstance of false plea having been taken by them in addition to the circumstance of their having refused to participate in the test identification parade as deposed to by the Metropolitan Magistrate. In these circumstances it has to be held that their refusal to participate in the test identification parade was not justified and, therefore, an adverse inference has to be drawn against them to the effect that they had refused to participate in the test identification parade because they were actually involved in the incident and they knew that they would be identified by the eye witnesses.
15. The prosecution case regarding the involvement of all the five accused persons, as claimed by PW-10, gets further corroborated from the evidence of PW-2 Satnam. He was also a resident of the same area where this incident took place. He has claimed that he had a shop near his house and on 2-2-99 at 7/7.30 p.m. when he was present at his shop he had heard some shrieks of weeping and shouting coming from house No. T-20, which is the house where incident took place, and he also saw the accused persons coming out from that house and running towards railway line and then he had gone to the house from where the accused persons had come out and there he saw Rekha Sharma (the deceased) lying on bed with blood on her body. He further deposed that one boy and one girl were with their mother and they were crying. In the meantime one Kishan Lal from the locality also came there after hearing noise and then they took the injured to Jiwan Mala Hospital where the doctor declared her dead. He further deposed that the husband of the deceased was not in his house at the time of incident. This witness was cross-examined on behalf of accused Satbir Singh, Kirpa Shankar and Shiv Ram while other two accused did not cross-examine him at all which shows that these two accused were not challenging the correctness of this witness. In the cross-examination on behalf of accused Satbir Singh, Kirpa Shankar and Shiv Ram it was suggested to him that he had not seen the accused persons running away as claimed by him. The witness denied that suggestion. This witness is an independent person having no reason whatsoever for falsely implicating the accused persons. Nothing could be elicited from him in cross-examination which could render his testimony doubtful. It was not even suggested to him that none of the accused had come out of house No. T-20, as claimed by him. We have, therefore, no reason to disbelieve the testimony of this witness also and, in fact, nothing was said regardng his evidence by any of the counsel for the appellants.
16. PW-13 Ghan Shyam Sharma is the husband of the deceased who was not present in his house at the time of incident. He has deposed that on 2-2-99 at about 6.45 p.m. when he was returning to his house from office he had seen the accused persons, except Satbir Singh, running towards the railway bridge, Kishan Ganj and when he reached his house he came to know that some persons had entered his house to commit dacoity and had injured his wife with a knife. In his cross-examination also nothing helpful to the accused persons could be elicited from him. Although it was suggested to him that he had deposed falsely but in the absence of any material having been brought on record by the accused persons to show that there was some motive for their false implication either by the police or PW-13 and his children we have no hesitation in accepting the testimony of PW-13 also which also corroborates the testimony of PW 10 regarding the presence of all the five accused persons in their house at the time of the incident.
17. Now, we come to the evidence of the other eye witness PW-12 Madhuri. Her evidence has also been narrated by us already. The criticism against her evidence levelled by the learned Counsel for the appellants was that she has totally exonerated accused Satbir Singh and her version regarding the incident and the part played by each one of the other four accused persons is contrary to what has been stated by her brother Ashwani Sharma and that fact makes her testimony wholly unreliable. We, however, are unable to persuade ourselves to accept this criticism of the evidence of PW-12. We have already noticed that accused Satbir Singh himself had claimed before the Metropolitan Magistrate that he had been seen by the children of the deceased at the place of the incident. Therefore, just because PW-12 does not claim that she had seen this accused also along with other accused persons in their house at the time of the occurrence the evidence of PW-12 cannot be doubted. We are also of the view that since accused Kirpa Shankar and Gulamuddin had also admitted before the Metropolitan Magistrate who was to conduct the test identification parade that they had also been seen by the two children of the deceased at the place of occurrence the inconsistencies highlighted by the counsel for these two accused in the statements of PWs 10 and 12 regarding the individual role played by them at the time of occurrence will not in any way affect the veracity of these two eye witnesses whose presence at the place of occurrence, as observed already, cannot be doubted at all. Having rejected the criticism in respect of the evidence of the two eye witnesses we have no hesitation in concluding that from the evidence of PWs 10 and 12 it stands established beyond any shadow of doubt that all the five accused persons had come to their house on 2-2-99 at about 7 p.m.
18. Now we proceed further to examine the remaining prosecution evidence to find out if it has also been established by the prosecution that all the five accused persons had gone to the house of the deceased to commit dacoity and whether dacoity was committed or not. On this aspect of the prosecution case the evidence is of PW-13 Ghan Shyam Sharma, the husband of the deceased, PW-3 Shankar Singh and the investigating officer PW-22 Inspector Ran Singh. PW-13 Ghan Shyam Sharma had also deposed that when he had left the house on the day of incident he had seen his wife wearing ring Ex.P-22, four gold bangles Ex. P-20, pair of ear tops Ex. P-21, ring Ex. P-22, anklet Ex.P-24, gold chain Ex. P-25 and nose pin Ex. P-23. These jewellery items, except the gold chain Ex. P-25, were handed over to the investigating officer by the doctor in the Jiwan Hospital where the deceased had been taken after the incident vide memo Ex. PW-13/B and the same were removed from the body of the deceased in the hospital. As far as the gold chain Ex. P-25 is concerned, the prosecution case is that it was recovered from the possession of accused Satbir Singh in broken condition at the time of his arrest on 4-2-99 and was seized by the investigating officer vide memo Ex. PW-3/B. PW-3 Shankar Singh is an independent witness who has deposed about the recovery of the said chain from the possession of accused Satbir Singh. The investigating officer PW-22 Inspector Ran Singh has also deposed about the recovery of the said gold chain from accused Satbir Singh at the time of his arrest on 4-2-99. As per both these recovery witnesses it was a broken chain. It appears that the said gold chain was removed from the person of the deceased forcibly and in that process it might have got broken. The investigating officer Inspector Ran Singh had also deposed that the husband of the deceased had also given the description of the chain which was missing from the body of the deceased. On going through the cross-examination of PWs 3 and 22 we find that nothing could be elicited from them which could throw any doubt regarding the genuineness of the recovery of the gold chain Ex. P-25 from the possession of accused Satbir Singh. PW-3 is a public witness who was associated by the police in the investigation of this case. This witness also had no reason to depose falsely regarding the recovery of gold chain from the possession of accused Satbir Singh. We find no reason to disbelieve the testimony of this witness as also that of the investigating officer Inspector Ran Singh. The husband of the deceased had identified this chain and claimed it to be belonging to his wife when it was produced in Court during his evidence from the police malkhana. It was not challenged in his cross-examination on behalf of the accused that the said chain did not belong to his wife nor was it claimed by accused Satbir Singh that the broken chain belonged to him. He has, in fact, totally denied the recovery of chain from his possession. However, in view of the trustworthy evidence of the two recovery witnesses we are not inclined to accept the bare denial of accused Satbir Singh regarding recovery of the chain from his possession. This recovery of the gold chain from the possession of accused Satbir Singh only two days after the incident clearly establishes that it was removed by him from the body of the deceased at the time of the incident and consequently it also stands established that all the five accused persons had gone to the house of the deceased to commit dacoity and they did commit dacoity.
19. As has been noticed already, the doctors had found two stab injuries on the body of the deceased. PW-12 Ashwani Sharma has deposed that accused Satbir Singh had stabbed his mother and PW-12 Madhuri has also deposed that accused Kirpa Shankar had stabbed his mother with a knife. We have already observed that for establishing the charge under Section 396 IPC the prosecution was simply required to establish that while committing dacoity one of the dacoits had caused the death of the deceased and that stands established beyond any doubt from a combined reading of the evidence of PWs 10 and 12. We do not think that prosecution case in this regard gets affected in any manner because of PW-10 having claimed that accused Satbir Singh had stabbed his mother and PW-12 having claimed that accused Kirpa Shankar had stabbed her mother. It having been found that the prosecution has successfully established that all the five accused persons had gone to the house of the deceased to commit dacoity and had, in fact, committed dacoity and further that while committing dacoity the deceased was killed we have no hesitation in affirming the finding of the learned trial Court holding all the five accused persons guilty under Section 396/34 IPC.
20. As far as the statement of PW-10 that accused Satbir Singh had stabbed his mother is concerned it gets corroborated from other circumstantial evidence also adduced by the prosecution. As per the prosecution case accused Satbir Singh after his arrest had got recovered one blood stained knife Ex. P-1 and a blood stained shirt Ex. P-2 from his house pursuant to the disclosure statement Ex. PW-18/C made by him on 4-2-99 after his arrest. About that recovery the prosecution witnesses are PW-3 Shankar Singh, PW-18 SI Tara Chand and PW-22 Inspector Ran Singh, the investigating officer. All of them have deposed that after his arrest on 4-2-99 accused Satbir Singh had got recovered a blood stained knife and a blood stained shirt. PWs 18 and 22 have deposed that these recoveries were made at the instance of accused Satbir Singh from his house in Kabir Basti. The evidence of these three recovery witnesses on this aspect of the matter could also not be demolished in cross-examination on behalf of the accused. The knife and the shirt got recovered by accused Satbir Singh were sent to Forensic Science Laboratory (FSL) during the investigation along with the blood stained clothes of the deceased which were preserved at the time of post-mortem examination as well as her blood sample and on examination there it was found that the blood group of the deceased was 'B' and the blood found on the knife Ex. P-1 and the shirt Ex. P-2 got recovered by accused Satbir Singh was also found to be human blood of 'B' group. Ex. C-1 and Ex. C-2 are the FSL reports placed on record by the prosecution. Find of human blood of B group on the knife and the shirt got recovered by accused Satbir Singh clearly corroborates the testimony of PW-10 that Satbir Singh had stabbed his mother. PW-12 Madhuri has deposed that accused Kirpa Shankar had stabbed her mother. In her cross-examination this statement was not challenged. Since it has been accepted by us that all the five accused had come to the house of the deceased for committing dacoity and while committing dacoity stab injuries were caused to the deceased by two of them and since all had come together and left the place of occurrence together it is clear that all of them had shared common intention to kill the deceased. So, all the appellants were rightly convicted under Section 302/34 IPC also.
21. We have, thus, no hesitation in coming to the conclusion that the prosecution had established its case against all the five accused persons beyond any shadow of doubt and the learned trial Court has rightly convicted all of them and consequently the appeals of all the five appellants being devoid of any merit are liable to be dismissed and their convictions and sentences awarded to them deserve to be affirmed.
22. In the result, we dismiss Criminal Appeal No. 768/06 filed by appellant Gulamuddin, Criminal Appeal No. 785/06 filed by appellant Satbir Singh, Criminal Appeal No. 843/06 filed by appellant Juber Alam, Criminal Appeal No. 962/06 filed by appellant Kirpa Shankar and Criminal Appeal No. 1014/06 filed by appellant Shiv Ram and affirm the judgment of conviction dated 19-05-2006 and the order on sentence dated 22-05-2006 passed by the trial Court in Sessions Case No. 58/05. The appellants be informed accordingly through the Jail Superintendent concerned.