Delhi District Court
State vs Ranu Kumar & Others Fir No. 136/06 on 29 July, 2013
State vs Ranu Kumar & others FIR no. 136/06
In the court of Additional Sessions Judge03, North East District, Room no. 53,
Second floor Karkardooma, Delhi.
In the matter of
S. C. No. 25 dt 22.2.2010
FIR No. 136/06 P.S. Welcome
U/ss 449 /302 /307 / 120B / 34 IPC
& 25/27 Arms Act.
State (Govt. of NCT of Delhi) ...State
Versus
1. Ranu Kumar @ Prashant Kumar
S/o Late Vinod Kumar
R/o H. no. 5, Kewalpuri, PS Civil Line,
District Muzaffar Nagar, UP.
2. Dilshad S/o Late Kamaluddin
R/o D272, Indra Gali no. 11,
Janta Colony, Welcome, Delhi.
3. Smt. Shamim w/o Late Kamaluddin
R/o D272, Indra Gali no. 11,
Janta Colony, Welcome, Delhi.
4. Israr S/o Late Kamaluddin
R/o D272, Indra Gali no. 11,
Janta Colony, Welcome, Delhi.
S. C. no. 25/2010 Page 1 of 43
State vs Ranu Kumar & others FIR no. 136/06
5. Naushad S/o Late Kamaluddin
R/o D272, Indra Gali no. 11,
Janta Colony, Welcome, Delhi.
6. Naushad S/o Mohd Rafiq,
R/o D222, Janta Colony, Welcome,
Delhi.
7. Hasin Hussan S/o Sh. Sardar Hussan,
R/o D272, Indra Gali no. 11,
Janta Colony, Welcome, Delhi. ....Accused
Date of institution : 22.2.2010
(original institution no.705/22.05.2006)
Decision reserved on : 19.07.2013
Date of decision : 26.07.2013
JUDGMENT
1. (Case of the Prosecution) . - On 27.03.06 at about 11.00 PM Inspector Ved Bhushan (PW22) receives two informations one was regarding trespass and quarrel vide DD no. 24A (now Ex. PW22/X) and another was regarding two murders vide DD no. 25A at 11:12 pm (now Ex. PW22/X1). He along with staff reached at House no. C389, Gali no.11, Janta Colony, Welcome, where he found three injured namely Pappu, Heena and Anisha, one injured was taken by him in the official vehicle to the hospital and other two were taken in PCR S. C. no. 25/2010 Page 2 of 43 State vs Ranu Kumar & others FIR no. 136/06 vehicle to GTB hospital, where he recorded the statement of Mohd Imran (PW 3, brother of Pappu and Heena and son of Anisha), its substance is as follows: "Accused Naushad, Dilshad, Israr, Irshad and Shamim are living in front of their house. Accused Naushad, Dilshad, Israr and Irshad are brothers, while accused Shamim is their mother. About 8 months back Shamim's daughter Shabnam (PW4) married PW3 Mohd Imran's brother PW1 Ishrat in the court, for which Shamim and her sons Dilshad, Naushad were very annoyed and they used to threat to kill them. Due to their fear, PW1 & PW4 left house and started living at some other place. On 27.03.06 at about 10.30 PM, when Mohd Imran came home and found that the house was locked, he thought that his family members might have gone to the house of his bhaibhabhi (PW1 & PW4) at Idgah Road and when he went to their house and inquired about his mother and other family members, they told him that they had not come there. He came back at around 10.45 PM and saw that outside his house Shamim along with Naushad, Dilshad, Israr, Irshad, Haseen Haider and neighbour Naushad was standing and their clothes were smeared with blood. He got suspicious for something wrong. He went upstairs and found that his mother Anisa had been tied to a 'takhat' ( bed) and she had been shot at her temporal region. There was a cloth tied around her neck also. His sister Heena (PW2)'s neck was also slit and she was wreathing in pain. His brother Pappu had also a gun shot injury on his temporal region and he was also lying on the 'takhat' (bed). He gave information to PCR from his mobile. He took his brother and sister in PCR vehicle to GTB hospital, S. C. no. 25/2010 Page 3 of 43 State vs Ranu Kumar & others FIR no. 136/06 his clothes also got smeared with blood. When he was in the PCR vehicle along with his brother and bhabhi, then Heena told them that Naushad s/o Kamaluddin (hereinafter referred 'NaushadI', so as to distinguish him from other similar name), Dilshad, Israr, Irshad, Haseen Haider and neighbour Naushad s/o Mohd Rafiq (hereinafter referred NaushadII) had injured them with pistols and knives and Shamim helped them in assaulting. He further states that he knew all the accused well i.e. NaushadI, Dilshad, Israr, Irshad, Haseen Haider and neighbour NaushadII and Shamim, who conspired to kill his mother, brother and sister with the help of pistols and knives, therefore, legal action be initiated against them".
Pappu and Anisa were declared brought dead and Heena was declared unfit for statement by doctor, theirs MLCs (now E. PW11/C, Ex. PW11/B, Ex. PW11/A) were collected by IO. IO Inspector Ved Bhushan along with staff came back to the spot, where crime team was called, who took photographs (now Ex.PW6/1 to Ex PW6/6). IO also seized one bloodstained pallet, one empty cartridge, one pair of plastic chappal and one bloodstained mattress and bed sheet as per seizure memo (now Ex. PW19/C). Rough site plan (Ex. PW22/B) was prepared and scaled site plan (Ex. Pw13/A) was also got prepared through draftsman (PW13). Postmortem of dead bodies of deceased Pappu and Anisa were conducted. The dead bodies of the deceased persons were handed over to the relatives. House of accused Shamim and Naushad were also photographed (Ex P1 to Ex P18). Artciles collected and discovered during investigation were S. C. no. 25/2010 Page 4 of 43 State vs Ranu Kumar & others FIR no. 136/06 examined from CFSL, Hyderabad. Lastly, chargesheet was filed against all the accused persons namely Ranu Kumar, Dilshad, Smt. Shamim, Israr, NaushadI, NaushadII and Hasin Hussan s/o Sardar Hussan u/s 302/307/120B/34 IPC & 25/27/54/59 Arms Act. Irshad is Juvenile conflict in law, he is separately facing proceeding before Juvenile Justice Board, Delhi.
2. (Charge) : After compliance of requisite requirement of documents and committal proceedings, the case was opened by the State in the Court of Session. The accused persons namely Ranu Kumar, Dilshad, Shamim, Israr, NaushadI and NaushadII s/o Mohd. Rafiq, Hasin Hussan have been charged for the offences punishable u/s 120 B IPC that on or about 25.03.2006 at Janta Colony, Delhi they along with Irshad conspired to commit murder of Shabnam, her husband Ishrat @ Guddu, Pappu and Anisha and other family members. Further, they have also been charged u/s 449 IPC that pursuant to such conspiracy, they along with Irshad committed house trespass on 27.03.2006 at about 10.30 pm in H.No. C389, Gali No. 11, Indra Gali, Janta Colony, Delhi. Moreover, they have also been charged u/s 302/307 IPC that on 27.03.2006 at about 10.30 pm at H.No. C389, Gali No. 11, Indra Gali, Janta Colony, Delhi, pursuant to conspiracy, they intentionally caused injures by use of ustara and country made pistols, in order to commit murder, on the persons of Pappu, Anisha and Heena, consequently the said Pappu and Anisha died due to injuries and committed offences punishable u/s 302/307 IPC.
S. C. no. 25/2010 Page 5 of 43
State vs Ranu Kumar & others FIR no. 136/06 Accused Dilshad was further charged for the offence u/s 27 of the Arms Act, that on 27.03.2006 he used country made pistol in the commission of murder of Anisha and also u/s 25 of the Arms Act that he was found in possession of a country made pistol and four live cartridges recovered from his house on 04.04.2006 in contravention of section 3 of the Arms Act.
Accused Haseen Hussan was further charged for the offence punishable u/s 27 of the Arms Act, that on 27.03.2006 he used country made pistol in the commission of murder of Pappu and also u/s 25 of the Arms Act that he was found in possession of a country made pistol and four live cartridges recovered from near wall of public toilet at Janta Colony, Welcome on 26.04.2006 in contravention of section 3 of the Arms Act.
However, all the accused pleaded not guilty, to the respective charges and they claimed trial.
3. (Prosecution evidence) - In order to establish the charges, the prosecution got examined 24 witnesses, besides tendering CFSL result, their names, purpose of examination and precise examination, vis a vis purpose/objective of cross examination on behalf of accused persons, are enumerated and classified as follows
1. PW3 Mohd Imran s/o Sh. Ashraf Ali r/o C389, Gali no. 11, Janta Colony, Delhi - to establish that he is author of FIR, which was registered on the basis of his statement (Ex. PW3/A), he is the first person who has seen the place of S. C. no. 25/2010 Page 6 of 43 State vs Ranu Kumar & others FIR no. 136/06 occurrence, its surroundings, persons making exist from the venue of spot, their disbursal from the front of the said house vis a vis he called his brother and police on his mobile phone, he accompanied Heena, Anisha and Pappu in the police vehicle to hospital. Further, to prove he was told the names of assailants by surviving injured / PW2 Heena. He also identified dead body of his brother Pappu and his mother Anisha in the mortuary, per statement (Ex. PW3/B). {Whereas, the witness has been cross examined on behalf of accused persons for establishing that there are improvements, inherent inconsistencies and contradictions in his statement with the other witnesses, he is not a spot witness nor he is aware of the factual things of spot or of scene inside the room but he is a planted witness; there is no natural sequence in his narration. He is not coming with the facts mentioned in his own complaint to the police, he is not a reliable witness but an interesting witness}
2. PW2 Heena to prove that she is eye witness and victim of incident, which happened at the spot, in room located at first floor of H.No. C389, Janta Colony, Gali No. 11, Delhi, which happened on the night of 27.03.2006. Further, to establish that she has seen the assailants and to prove role of each assailant, she described their names to other witnesses in the way and because of injuries received not only she had under gone treatment but also remained as indoor patient. Further, she names and identifies the assailants. { Whereas the witness has been cross examined on behalf of accused persons for establishing that there are material improvements, inherent inconsistencies and contradiction with the S. C. no. 25/2010 Page 7 of 43 State vs Ranu Kumar & others FIR no. 136/06 other witnesses, she narrated in the court those facts which were not part of her statement u/s 161 Cr PC, nor she is aware of the factual things of spot or of scene inside the room. How could she give the statement to police, as she was not able to speak for couple of months because of neck injuries, she is also a planted witness; there is no natural sequence in her narration. She has not identified accused in court, as she was not knowing them. She is not a reliable witness but an interesting witness}
3. PW1 Ishrat Ali @ Guddu s/o Ashraf Ali r/o D224, Janta Colony, Welcome - to establish that after receipt of telephone call of his brother PW3, when he was in the way from Idgah House to the H. No. C389, Indra Gali, Gali No. 11, Janta colony, Delhi, in the way he had seen the accused persons near toilet and heard their dialogue, inclusive of that they have to kill Ishrat @ Guddu (i.e. PW1), Shabnam PW4, who have been escaped from the said assault. Further, he accompanied PW2 Heena, PW3 Mohd Imran and PW4 Shabnam in PCR vehicle of PW15 from the spot to the hospital. PW1 had also gone into room and seen the spot after his arrival there. {whereas, the witness has been cross examined on behalf of accused persons for establishing that there are improvements, inherent inconsistencies and paradoxical version with the other witnesses, he is not a witness to place near toilet nor he is aware of the factual things of spot or of scene inside the room but he has been introduced; there is no natural flow in his narration. Further, he is not coming with the facts of his own statement given to the police, he is not a reliable witness but a interesting S. C. no. 25/2010 Page 8 of 43 State vs Ranu Kumar & others FIR no. 136/06 witness being brother and son of deceased persons}
4. PW4 Smt. Shabnam w/o Ishrat Ali r/o C389, Indra Gali no. 11, Janta Colony, Welcome - to establish that she is daugher of accused Shamim; there was a threat to PW4 and her husband PW1, after their love marriage, by her mother and others, since they were not happy with love marriage of PW4 with PW1 vis a vis they were residing separately at Idgah Road, Janta Colony, Delhi. Further, to prove on 25.03.2006, two days before incident, when PW4 came to house of her mother in law Anisha at Indra Gali, Janta Colony, her mother (who lives in front of her inlaws house) threatened her to leave her husband Ishrat Ali, otherwise, she would get killed the family members of her in laws through PW4's brother and neighbourer. Further, to establish that after receipt of telephone call on 27.03.2006, when she reached the spot, she saw the scene of inside room after switching on the light, Smt. Anisha, Pappu and Heena were lying in injured condition, their hands and legs were tied, their mouth were gagged with clothes and when she went to balcony immediately, her mother Smt Shamim was standing in balcony of her house and reiterated what happened vis a vis how the PW4 would be able to live with Ishrat. {However, the witness has been cross examined on behalf of accused persons for establishing that there are improvements, inherent inconsistencies and contradictions with the other witnesses, she is not a spot witness nor she went to spot or of scene inside the room. but she is a planted witness. Further to establish that no police report was lodged by her with regard to extend of threat nor there is natural sequence in her S. C. no. 25/2010 Page 9 of 43 State vs Ranu Kumar & others FIR no. 136/06 deposition to infer that she actually came at the spot}.
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5. PW15 ASI Vijay Pal Singh, no. 4611 D/East, PS New Ashok Nagar - to establish that immediately on receipt of call, he went to the spot and found three injured namely Anisha, Heena and Pappu lying in the room, he took two injured namely Pappu and Heena in PCR van; injured's relative also accompanied in the PCR van to hospital, where injured were got admitted. {Whereas, he has been cross examined on behalf of accused persons to establish that he did not see the injured were tied of their hands and legs nor their mouth were gagged nor PW2 Heena was able to speak nor PW2 tell or able to tell the names of assailants).
6. PW22 Inspector Ved Bhushan Sharma, SHO PS Shakarpur, Delhi- to establish that he is the first investigating officer of the case, who arrives at the spot immediately on receipt of DD no. 24 A dated 27.03.06 at 11.00 pm (Ex.PW 22/X) and he also received another DD no. 25 A dated 27.03.06 at 11.12 pm (Ex.PW22/X1). He took injured Anisha in police vehicle to the hospital immediately, other two injured were taken in PCR van. He recorded the statement of Mohd Imran, author of FIR in the hospital. He carried further investigation at spot, where empty cartridge, pallets and one pair chappal were seized vide seizure memo (Ex.PW19/C), the hospital authorities also seized property / autopsy (Ex. PW19/C1) on 28.03.2006, which were also taken into possession by the IO. Further he carried investigation on 28.03.2006, when S. C. no. 25/2010 Page 10 of 43 State vs Ranu Kumar & others FIR no. 136/06 accused Shamim and NaushadI were arrested, he carried investigation with regard to them; on 29.03.2006 Israr was arrested, on 04.04.2006 Dilshad was arrested, on 07.04.2006 Ranu was arrested and on 26.04.2006 NaushadII, Hasin Hussan and juvenile Irshad were apprehended, he carried investigation with regard to them inclusive of recovery of articles which were deposited in the malkhana. Also to prove the articles, arms and ammuations were seized, on which CFSL results (Ex PW22/Y, Ex PW22/Y1,Ex PW22/Y2 ,) were rendered. Special reports were sent at midnight vide entries in roznamacha (Ex PW22/Y4 and Ex PW22/Y5). {Whereas, PW22 has been cross examined, from the underlying point, that the investigation was not carried fairly, the FIR was got recorded antedate and antetime, there exists material contradiction and improvements in his statement, and he did not get recovered any articles or arms or ammunitions from the accused persons vis a vis many facts have been concealed on the point of investigation or arrest of accused, which could be brought during cross examination by confronting him with photographs Ex PW 20/A, X,X1)}
7. PW19 HC Narender no. 75, Traffic Seelampur Circle, Delhi to prove that he accompanied first IO /PW22 in investigation carried by him on 28.03.2006, 29.03.2006, 30.03.2006, 04.04.2006 and 26.04.2006. { But, he has been cross examined on behalf of accused persons to decipher and highlight that PW19 could not give concrete and authoritative response to the questions, to infer that he was not accompaning the IO.} S. C. no. 25/2010 Page 11 of 43 State vs Ranu Kumar & others FIR no. 136/06
8. PW8 W/ASI SI Sheela, PS Welcome - to prove that she also accompanied first IO/PW22 during investigation carried on 28.03.2006 when lady accused Shamim was arrested and to prove that she is witness to personal search memo Ex. PW8/A, disclosure statement Ex. PW8/B.
9. PW9 ASI Joginder Singh, CAW Cell, Nand Nagri, Delhi to prove that he also accompanied first IO/PW22 during investigation carried on 04.04.2006 when accused Dilshad was arrested and also on 07.04.2006 when another accused Ranu Kumar was arrested. Further to prove that he is a witness to the memos (Ex.PW9/A, Ex. PW9/C and Ex. PW9/B) pertaining to accused Dilshad and also witness to memos (Ex. PW9/D and Ex. PW9/E) pertaining to accused Ranu Kumar.
10. PW20 Inspector Ran Singh, no. D1/89, SHO PS Raja Garden - to establish that he is second investigating officer w..e.f 11.05.2006 till the charge sheet was filed on 20.06.06 and during his phase of investigation, he also recorded statement u/s 161 Cr P C of PW2 Heena on 17.04.2006. { but he has been cross examined on behalf of accused, for highlighting that PW2 Heena was not able to speak for about three months, she could not give statement u/s 164 Cr PC as she was unable to speak because of neck injuries vis a vis PW 20 concealed facts like he went outstation Delhi, where certain photographs were snapped showing accused Israr was apprehending there but his arrest was shown otherwise; he was confronted with photographs Ex. PW20/DA, Mark X, Mark X1.} S. C. no. 25/2010 Page 12 of 43 State vs Ranu Kumar & others FIR no. 136/06
11. PW23 ASI Babu Ram, SO Branch, DCP Office, North East District, Seelampur, Delhi to prove sanction Ex.PW23/A u/s 39 of the Arms Act with regard to pistol and cartridges, recovered from accused Hasin Hussan and accused Dilshad {he has been cross examined on behalf of accused to establish that the sanction was accorded in a mechanical way, without production of the articles.} ****________________________________________________________***
12. PW6 Ct. Sushil Kumar, no. 1328/NE, Mobile Crime Team, PS Shahdara - to prove that he, being member of crime team, went to spot at C389, Indira Gali, Janta Colony, Delhi on 27.03.2006 where he had snapped photographs (Ex. PW6/1 to PW6/6, having its negative from Ex. PW6/1A to PW6/6A) of bloodstained clothes, lead and shell lying there from different angles. {whereas, he has been cross examined from the point that neither his statement was recorded by the IO nor the photographs were snapped by him nor he was not aware of spot or he deposed at the instance of the police officials,.}
13. PW14 HC Chanderveer Singh, no. 122/NE, PG Cell, North East - to establish that on 29.03.2006 he was called by SHO PS Welcome, he went to the area and took 18 photographs (Ex. P1 to Ex. P18 having its negative Ex. PW 14/1 to Ex. PW14/18) in respect of proximity of houses of complainant and accused Shamim and her family. {but he has been cross examined on behalf of accused to deny his visit in area to photograph or he had not gone there}. S. C. no. 25/2010 Page 13 of 43
State vs Ranu Kumar & others FIR no. 136/06
14. PW13 SI Mukesh Jain, Draftsman, North East District, Seelampur, Delhi to prove that he being draftsman went to spot at first floor, H. No. 389, Janta Colony, Welcome on 29.03.2006, where he prepared rough notes after measurement on pointing out of PW22 Inspector Ved Bhushan, later he prepared scaled site plan Ex. PW13/A on the basis of such rough notes and measurement, which were destroyed after scaled site plan. {He has been cross examined from the point of view that scaled site plan does not reflect complete picture as place of presence of eye witness was not shown therein.} ****_________________________________________________________***
15. PW24 Devendra Kumar Yadav, Record Clerk, GTB Hospital, Delhi - PW 24 appeared in place of Doctor, who also treated patient Heena, in order to prove that she was examined in GTB hospital, her entire medical record consisting of 37 pages (Ex. PW24/A, colly.) inclusive of her discharge summary. Heena was discharged on 10.4.2006
16. PW11 Dr. Banarasi - to prove he conducted the medical examination of injured Heena on 27.3.2006 and prepared MLC (Ex. PW11/A) of injured Heena according to which Heena had sustained multiple incised wound in front of neck which was horizontally with tracheal cut. Heena was referred to Sr. Resident and surgery.
17. PW12 Dr. K. K. Banerjee - To prove he gave opinion on cause of death and that on 28.3.06 he conducted the postmortem on the dead body of Pappu s/o Sh. Ashraf, 18 years male brought with alleged history of receiving gun shot injury and sharp edged weapon injury along with his mother Smt. Anisa on 27.3.06 at about 10.45 PM. The postmortem report (Ex. PW12/A) opinion tendered in respect of cause of death. The victim was declared brought dead at GTB hospital. He found following antemortem injuries:
(i) Fire arm entry wound 2.5 x 2 cm with irregular margin which was S. C. no. 25/2010 Page 14 of 43 State vs Ranu Kumar & others FIR no. 136/06 showing blackening was present just in front of anterior margin of upper one third of right pinna which made a deep hole into the cranial cavity showing the underlying brain matter through the hole. On croving the track of the wound it could be traced up to the left temporal region of the skull through the brain matter. The track in its entire length showed blackening.
(ii) Firearm exist wound 1 cm x 0.8 cm with aversion of tissue was present on the left temporal region, 4.5 cm away from a horizontal line drawn from the outer end of left eyebrow and 3.5 cm above the left temporal mandibular joint. On croving the wound communicated with wound no. 1.
(iii) Incised wound 4 cm x 0.2 cm obliquely present over front of neck across the mid line subcutaneous tissue deep with tailing of 2.5 cm on left side of neck. The upper margin was 5.5 cm below the tip of chin in the midline.
(iv) Incised wound 5 cm x 0.3 cm present in front of neck 1.5 cm below injury no. 3 subcutaneous tissue deep across the midline with tailing on 0.5 cm on right side of neck.
(v) Incised wound 1.5 cm x 0.4 cm present on upper part of right side of chest 6 cm below outer one third of right clavicle, 6 cm above the right nipple with tailing of 1.5 cm medially placed horizontally.
(vi) Abrasion 1.5 x .5 cm dark red present at the back of right shoulder 2cm below its margin.
(vii) Abrasion .5 x .5 cm reddish dark present at the back of right elbow just above the tip.
Internal examination:
1. Scalp - injuries as described under No.1 and 2. On reflection bruise was found over left temporal and right frontal temporal region.
2. Skull - vertex showed fracture of frontal, temporal on both sides and parietal bone on right side. Anterior cranial fossa of the base of skull showed fracture.
3. Brain - weight 1000 gm. Right temporal and parietal and left temporal lobe showed laceration. Subarachnoid hemorrhage was present on right cerebral lobes and left temporal and parietal lobes. Bone chips were found in the brain matter. Inter cerebral hemorrhage was found in the frontal lobes. S. C. no. 25/2010 Page 15 of 43
State vs Ranu Kumar & others FIR no. 136/06 Opinion: Cause of death - shock as a result of antemortem injury to brain and skull caused by the missile of a fire arm from a contract range. Injury No.1 is sufficient to cause death in ordinary course of nature. Time since death about 12 hours.
18. PW16 is Dr. Arvind Kumar - To prove, he gave opinion on cause of death and that he conducted the postmortem on the dead body of Anisha, 46 years old, female, on 28.3.2006, and prepared postmortem report (Ex.PW16/A) with opinion of cause of death. The dead body of middle aged female wrapped in white sheet wearing pinkish printed suit and salwar, soaked in blood. Clothes are intact. Rigormortis was well developed. Other natural orifice NAD. On general examination it was found that one cream colour chunni soaked in blood was present around the neck. The knot present in the chunni was non slippery and present over back of the neck. The scalp hair was entangled in this ligature at the back. Ligature material having two free ends both are intact. Ligature material was removed after cutting it away from the knot and preserved. The following external antemortem injuries were found: (1) Star shaped fire arm entry wound of size 11 cm x 8 cm, having signing of hair at the at the margins of the wound. Blackening underlying soft tissue and muscles present. the wound is present over the left temporal - frontal region with fracture of underlying bones (facial). Left eye is damaged totally. The back of the wound is medially upward and backward. The track entries the cranial cavity after fracturing the base of skull. The laceration of base of left frontal and temporal lobe and right parietal lobe is present. There are pieces of bone present in the track. The track comes out the cranial cavity after making fracture of right parietal bone of size 2.5 cm x 2 cm and the making the exit wound of size 1.5cm x 0.8 cm over the right frontal region, 8 cm above the lateral end of right eyebrow and 7 cm above the tip of right ear. Hemorrhage present in Sub arachnoid and subdural space with contusions adjacent to the skull. (2) Semi circular reddish abrasion with concavity medially present over the right upper chest, 7 cm midline and 4 cm below the mid of coastal of size 2 cm x 0.4 cm.
S. C. no. 25/2010 Page 16 of 43
State vs Ranu Kumar & others FIR no. 136/06 (3) Reddish brown bruise of size 9 cm x 3 cm present back of left shoulder, placed horizontally, 9 cm below the tip of left shoulder. (4) Superficial incised would of size 3 cm x 0.1 cm x 0.1 cm present front of neck, below thyroid cartilage, 7.5 cm above the external notch. Cause of death: shock due to antemortem injury to head produced by projectile of fire arm. All the injuries are antemortem in nature. Injury No.1 is sufficient to cause death in the ordinary course of nature. The firearm injury is by contract range.
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19. PW5 HC Bijender Singh, no. 117/NE, PS Welcome, Delhi - to prove that on 27.03.2006 he was working as duty officer and on the basis of rukka received, he registered FIR no.136/2006 (Ex.PW5/A). In addition he dispatched special reports to Magistrate and the senior officers through Special Messenger.
20. PW7 Ct. Ram Kumar, no. 1148/ NE, PS Karawal Nagar, Delhi - to prove that on 27.03.2006 he was on duty in police station Welcome, he was assigned special reports which he took to the house of Metropolitan Magistrate and Senior police officers. {whereas he has been cross examined on behalf of accused for proving that he had not taken any special report either to senior police officers or to the Illaqa Magistrate.}
21. PW18 HC Trilok Chand, no. 2085 DAP, 3rd Bn, Vikas puri, Delhi - to prove that he has been maintaining register no. 19 in the police mess, he dealt with the case property on 28.03.2006, 29.03.2006, 04.04.2006 and 26.04.2006 when number 12, 3, 2 and 4 articles were respectively dealt while working in the S. C. no. 25/2010 Page 17 of 43 State vs Ranu Kumar & others FIR no. 136/06 malkhana, he endorsed the entry from time to time in his register Ex. PW18/A. Further to establish that articles were sent to CFSL, Hydrabad by road certificate for examination of case property. {whereas, he has been cross examined for establishing that he has not carried the things properly or record has not been maintained by him as he is not in knowledge of all aspects of the case property.}
22. PW10 ASI Devender Singh, PS Welcome - to prove that he was deputed and he went to CFSL, Hydrabad on 26.04.2006 and deposited there 19 sealed pullanda by road certificate, and after deposit of articles, he handed over the receipt to the Malkhana moharrir on 30.04.2006.
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23. PW21 Azam Khan @ Shobi s/o Babu Khan r/o K447, Janta Colony, Welcome (native place Mohali Kila Bakar Ganj, PS Baker Ganj District Bareilli, UP - to prove that he is friend of PW3 Imran, whose brother PW1 Ishrat married PW4 Shabnam on 29.08.2005, he is witness to marriage ikrarnama (Ex. PW21/X), which was also signed by PW1 and PW4 in his presence. {whereas, he has been cross examined for proving that neither marriage was performed in his presence nor marriage was performed but just ikrarnama was prepared.}
24. PW17 HC Raj Kumar, no. 1302/DAP, MHCR, PS Welcome, Delhi - to prove that an FIR no. 438/05 PS Welcome was registered, by parent of PW4 Shabnam, later a cancellation report (Ex. PW17/A) was filed before the court of Metropolitan Magistrate, Delhi. .
S. C. no. 25/2010 Page 18 of 43
State vs Ranu Kumar & others FIR no. 136/06 ****_________________________________________________________***
4. (Statement of accused and defence evidence) - Thereafter the occasion came for recording statement of accused persons ,thus statements of each accused person, without oath, u/s 313 Cr.P.C was recorded thrice separately. They had denied all the allegations with plea of innocence vis a vis they have been implicated falsely and they have no role at all in the alleged incident nor any arms or ammunation was recovered from Dilashad or Hasin Hussan nor Ustra from NaushadI. The accused persons opted for defence evidence. Accused Dilshad produced PW1 Shakeela (for establishing that on 01.4.2006 about 1516 police officials came at their residence in Muzaffar Nagar, UP and arrested him). DW2 Izhar Ahmed appeared for accused Israr to prove that on 28.03.2006 at about 5.00 5.30 pm five police officials included PW20 Inspector Ran Singh came at Bhopa near his residence and apprehended him from the factory of Hazi Shamshad at Bhopa where he was working and to prove photograph Ex. PW20/DA about the presence of police officials there. He also produced DW3 Iqbal Ahmed to prove his arrest on 28.03.2006 by tendering photographs mark X and X1. Accused NaushadII produced DW4 Shabina of Janta Colony, Welcome that Naushad - II is her brother in law. He was living in Loni, UP prior to incident, her assistance was taken by the police by leading to Loni to get him arrested andhe was arrested there in the night of 27.03.06. All the defence S. C. no. 25/2010 Page 19 of 43 State vs Ranu Kumar & others FIR no. 136/06 witnesses were cross examined by the State through Ld. Addl. Public Prosecutor. Then defence evidence was closed.
5.1 (Arguments) At the stage of final arguments Shri R K Pandey, Addl Public Prosecutor for State; Ms Dinesh, Advocate for the accused Ranu Kumar and Shri Abdul Sattar, Advocate for other six accused persons ( he is amicus curiae for two accused ) advanced their respective contentions. Accused Ranu had filed written manuscript arguments with further requests that oral arguments being advanced by his counsel is to be considered by treating his written arguments merged with submission of counsel. Similarly, written arguments have also been filed on behalf of accused NaushadII and Israr with similar submissions to be considered with oral submissions being advanced by Shri Abdul Sattar, Advocate for all remaining accused persons.
5.2. (Argument on behalf of accused persons) There are many common contentions in the arguments of ld defence counsels, like there is legal presumption of innocence of accused persons till they are proved guilty, it is duty of the prosecution to prove its case beyond shadow of doubt and prosecution has to stand on its own legs, prosecution can not derive any benefits from the deficiency or weakness in the defence of accused persons, as duty lies on prosecution to prove its case. However, the prosecution could not establish the charges against the accused persons, it is a classic case that unfair investigation. PW2 Ms Heena is stated to be eye witness of incident, but her S. C. no. 25/2010 Page 20 of 43 State vs Ranu Kumar & others FIR no. 136/06 statement in the court clearly establishes that neither she is eye witness nor she is reliable witness. Other witnesses namely PW3 Mohd Imran (author of FIR), PW1 Ishrat Ali @ Guddu and PW4 Shabnam are introduced circumstantial witnesses but the way they have deposed, it infers that they are interested and planted witnesses because of relation with the deceased and injured. All witnesses are family members, there is no independent witness. There are improvements, inherent inconsistency and contradictions in their statements, which do not inspire confidence. The case has become a case of circumstantial evidence but there exists no corroborations to make the chain of circumstances complete. The witnesses' statements are not supporting each other. PW2, a star witness, gives different version about recording of her statement u/s 161 Cr P C by police (stated to be recorded on 17.4.2006) but she was not able to speak for couple of months, even on the date when her application for statement U/s 164 Cr P C was moved before Ld Magistrate, Delhi and it was requested that she is unable to give statement as she was not able to speak; how could her statement to police was possible? It is claimed that names or things were explained by her/PW2 by gestures but the statement of PW15 does not support this stand, as PW2 did not make any gestures or disclosure in the vehicle. The prosecution case is based on motive of revenge that accused Shamim and her family were not happy with the love marriage of PW4 Shabnam (daughter of Shamim) with neighbourer PW1 Ishrat Ali, however, neither it is established there was marriage, as just writing of ikrarnama is not a marriage nor motive has been S. C. no. 25/2010 Page 21 of 43 State vs Ranu Kumar & others FIR no. 136/06 established. The manner in which accused persons have been shown arrested or things have been shown recovered are not of natural sequence but flimsy. There are also material contradictions in the statement of investigating police witnesses. It is settled law that when two views are possible, the court should believe and accept the view in favour of accused persons. 5.3. It is further elaborated on behalf of accused Ranu, that he is no where in the picture and he has been falsely implicated. PW3 is author of Rukka Ex PW3/A, but neither it names accused Ranu nor it is stated whether any more or one stranger was with other accused. Thus, he has been roped falsely.Witness PW1 says, that near toilet he saw and overheard other accused talking with Ranu and Hasin Haider about killing of Heena, Pappu and Anisha vis a vis, PW1 was not able to identify Ranu and Haider (but his sister could identify them). PW1 has not known them by their names prior to 27.3.2006. In case Ranu was perpetrator, was there any need to talk him about incident? Why PW3 had not mentioned in statement to police about presence one more person with others? It also establishes concocted story of police. Further, PW2 in her statement says that it was Ranu, who had gagged the mouth of Pappu, but medical opinion does not say that he died of close of mouth or want of breathlessness but because of other injuries. The version of PW2 and medical opinion are not corroborating each other. It is case of prosecution that PW2 told the names of assailant by gestures, however, there may be number meaning from gestures, as keeping a hand on head does not mean it points out towards Ranu, it could be headache or many S. C. no. 25/2010 Page 22 of 43 State vs Ranu Kumar & others FIR no. 136/06 other possible meanings. Accused Shamim is Muslim and Ranu Kumar is Hindu, but PW2 says that Ranu is relative of Shamim, how this witness is reliable?. Otherwise, PW2 has not given any statement that she identifies Ranu in court. The FIR is an important document prepared at first instance but it does not name accused Ranu and there is no evidence against accused Ranu. First IO/PW22 says that Rukka/statement of PW3 was recorded in Hospital, but as per PW1, the said PW4 and PW3 had gone to police station in night and came back in the early morning. Ld counsel further fortifies her contentions while relying upon Lalloo and another vs State of UP (2001 (43) ACC 1160) wherein it was held that assertion which does not find in FIR but improved later on to rope the appellants, the conduct of eye witnesses appears to be unnatural, they were held not wholly reliable and accused were acquitted of charge of murder. Further in Kalyan and others vs State of UP 2001 CRI. L. J. 4677 (SC) it was held that because of variation between the contents of FIR and deposition of witnesses made in the court vis a vis conflict between the statement of eye witnesses and medical evidence, besides major improvements in the statement of eye witnesses, the findings of trial court of acquittal, of giving benefit of doubt to the accused, were confirmed.
Lastly, as per prosecution case, PW1 Israt overheard the accused person, while talking to Ranu and Haider, to kill PW1 and PW4, how it could be considered conspiracy for things already happened. Charge of conspiracy has also not been proved. The accused Ranu Kumar deserves acquittal, while extending benefit of S. C. no. 25/2010 Page 23 of 43 State vs Ranu Kumar & others FIR no. 136/06 doubt to him.
5.4 Ld counsel Shri Abdul Sattar, Advocate for other accused persons, in continuation of previous contentions, referred in para 5.2 above vis a vis in addition to contentions of other counsel, requests, firstly requirement of criminal conspiracy viz (a) the circumstances from which the conclusion is drawn is fully established, (b) all the facts should be consistent without hypothesis of guilt, (c) the circumstances should be of a conclusive nature and tendency, and (d) circumstances should be a moral certainty, actually exclude every hypothesis but one report to be proved, have not been established by the prosecution. PW2 Heena has not only improved her statement but also gave contradictory statement like, she never gave statement to police but later said, statement was given to police; in her statement U/s 161 Cr P C (Ex PW2/DA), she said her hands were tied by Israr but improved in the court that it was neighbour NaushadII, who tied her hands and legs. Further, she named another person who was not charge sheeted, (i.e. Raju, who was present in the court by chance, against whom separate trial has been commenced) had tied her legs and hands, her improvements in her statements made her unreliable, also a interested witness. Her major examination in chief is the portion, which was not part of her statement to police. PW2, during her cross examination was shown an accused ( i.e. Israr) and PW2 says that she was not knowing name of accused Israr before or at the time of incident. No TIP of Israr has been conducted by IO. Similarly, PW1 had not named presence of neighbour NaushadII, near toilet, in his S. C. no. 25/2010 Page 24 of 43 State vs Ranu Kumar & others FIR no. 136/06 statement U/s 161 Cr P C (Ex PW1/DA) but improved in the court. The statement of PW1 with regard of presence of persons near toilet and statement of PW3, that he saw persons coming out of house are in contrast of each other. PW4's statement is not natural. She does not give name of Naushad in her statement in respect of threat . She admits that there is property dispute between Shamim and Israr. The manner in which recovery of blood stained shirts of NaushadII or of Ishrar is shown is also flimsy vis a vis provision of seizure or search U/s 100(4) Cr P C has not been followed. The recovery is also doubtful. 5.5. Further, statement of material witnesses are clashing each other, PW15, the first police officer arrived at spot, had not seen the three injured of their hands and legs tied, however, PW2 states other wise. There is different versions in the statement of witness, about lying of injured in room , one says on bed but other says one of them was on floor. PW2 was unconscious and she was not able to speak, how could see tell the names to PW3 in the van. The alleged recovery either of clothes or shirts or arms or ustra are all sham and concocted. It has not been established whom the clothes were belonging. One of Tshirt produced was of such a big size that it does not suit the number of accused. Places of recovery of toilet or otherwise, are open public places and it settled law that things uncovered cannot be treated discovered. One of accused Israr was arrested outside the Delhi, photographs were snapped, which have been proved during cross examination of police officers as well as by producing defence evidence, establish, how the accused have been implicated falsely. An incident of theft or S. C. no. 25/2010 Page 25 of 43 State vs Ranu Kumar & others FIR no. 136/06 robbery by others, has been planted on accused, since there was grudge against the accused persons. There is no eye witness, who had seen accused Shamim in locking or unlocking the house of incident, as alleged in theory of prosecution, nor PW1 names Shamim or NaushadII of their presence near toilet in his statement Ex PW1/DA. It is a case of circumstances evidence, it requires to prove by corroboration but the same is lacking, the prosecution could not establish presence or role of accused persons. Since interested witnesses PW1, PW2, PW3 and PW4 are knowing the family of accused persons or their known person, that is why, they have deposed against them to implicate all accused, but it is apparent they have deposed falsely. Ld defence counsel further contends, while fortifying his contentions and relying upon following case laws: (1) Kali Ram vs State, 2010 (2) JCC 1578, Delhi the four fundamental principle of conspiracy in circumstantial evidence have not been proved nor there was any evidence that the place / house of recovery was in exclusive possession of the accused, it was held that it has no evidentiary value.
(2) Alijan vs State, 2010 (2) JCC 1493, Delhi held recovery of bloodstained clothes or alleged weapon of offence when there are irreconcilable inconsistencies, the same were always treated weak recoveries. Sattatiya @ Satish Reganna Kartolla Vs. State of Maharashtra, 2008 (I) JCC 597, Supreme Court held the recovery of handkerchief was not reliable as it was bearing no special or distinguish mark or a branded one and having been sold to accused a month before incident. Similarly passing reference of Naveen Chauhan @ Chussi Vs. State, 2010 (3) JCC 2361, Delhi is also given.
(3) When there are material improvements in the statement of witnesses and their testimony are doubtful, such improvements and doubtful version make a witness false, reasons have been derived by giving reference of Anmol Singh vs S. C. no. 25/2010 Page 26 of 43 State vs Ranu Kumar & others FIR no. 136/06 Asharfi Ram, JCC 1998, Page12, SC, Suresh N. Bhusare & Ors vs State of Maharashtra, 1998 DLS Page 256 SC, Hasan Murtaza Vs State of Haryana, JCC 2008, PartI Page 425, Supreme Court. When the presence of a witness at spot was doubtful, the accused was given benefit, reliance has been placed on State Vs Ashok Kumar, JCC 2006 Part I, Page 137 Delhi. The testimony of a witness becomes doubtful for want of assigning specific role against a particular accused, reliance has been placed on Eknath Ganpat Aher and Other Vs. State of Maharashtra, JCC 2010, Part3, Page 1941.
(4) The genuineness and correctness of FIR becomes doubtful because of want of concrete and conclusive statement by Special messenger PW7, reliance is placed on L / NK. Meharaj Singh vs State of UP, II (1994) CCR 516 (SC), Gopal Singh & Ors vs State of MP CCC 2010 Part3 Page 108 SC and Sajid Ali Khan @ Sanjay @ Sajan vs. State of Delhi, JCC 2000 Part1, Page 109, Delhi. It is concluded that accused are innocent, they are poor persons, they belong to lower strata of society of labour class and to acquit all the accused persons for want of proof of charges beyond reasonable doubt.
5.6 (Arguments on behalf of State ) Shri R K Pandey, Ld Additional Public Prosecutor for State opened the arguments after defence counsels submissions. It is always the quality of evidence which matters, instead of quantity or number of witnesses. The place of incident is a room, the event happened inside closed room, where PW2 Heena survived amongst three injured. She was teenager at the time of incident, she was injured with ustra and she had received neck injuries. She was crying with pain, she was able to communicate, during crying coupled with gestures, which usually any person may do, with her family members, whom she was informal. Thus, she had stated the episode and it was S. C. no. 25/2010 Page 27 of 43 State vs Ranu Kumar & others FIR no. 136/06 incorporated in the statement of PW3, who also visited the spot immediately and saw the accused persons leaving the house. Similarly, the PW1, who was in the way to the spot, had also seen the accused persons talking and of their next plan. PW4 is daughter of accused Shamim and also sister of some of the other accused person, she also narrated the facts seen by her and thread extended to her, irrespective of fact that she belongs to them. It is also clear, that accused persons were not happy with love marriage of PW1 and PW4, that is why an FIR No. 438/05 U/s 363/365 IPC was registered with Police Station Welcome on the statement of Shamim. The accused persons had motive, it is also emerging from the record and statement.
The spot is located in densely populated area, however, incident happened in night hour, however, it was inside the room. The room was locked by accused Shamim to facilitate commission of and give end to their design, she also unlocked it after having clue from other accused and came inside room asking for further assault on PW2 Heena, already assaulted by them. This is fact, it cannot be comprehended as a design by complainant and witnesses all of sudden to concoct it, the lock and keys have also been recovered. The events are in natural flow, they have been deposed accordingly. The recovery of clothes, arms and ammunition are duly proved by the witnesses. The medical evidence and statement of witnesses are supporting each other. There are a few contradictions but they are minor, they do not go to the roots of the case to dismantle the case of prosecution. Moreover, the accused persons were examined U/s 313 Cr P C, S. C. no. 25/2010 Page 28 of 43 State vs Ranu Kumar & others FIR no. 136/06 however, they have simply denied the questions or criminating evidence put to them, they have not come forward to explain, where they were if not at the spot at that time or date. The prosecution has proved their presence, incident and charges against all the accused persons. They are liable to be held guilty for charges framed.
6.1 (Findings) The rival contention are assessed in the light of material on record available in the form of evidence - oral statement, materials and scientific conclusions; the provisions of law and precedent/case law presented.. There is no dispute with regard to legal presumption of innocence in favour of the accused persons till proved guilty vis a vis, the prosecution is required to prove the charges against each accused person.
6.2 While going through the record, it has been discovered that there are many undisputed facts emerging, they are compiled and enumerated below, so as to narrow down disputed facts : (I) MLCs Ex PW11/A, Ex PW11/B and Ex PW11/C respectively of injured Ms Heena, deceased Ms Anisha and Mr Pappu, as the same were not challenged in cross examination of PW Dr Banarsi. As per MLC Ex PW11/A, Heena was conscious, when brought to Hospital.
(ii) PW2 Ms Heena was admitted in Hospital on 27.3.2006 and she was discharged on 10.4.2006 as per record (Ex PW24/A, colly and Ex PW11/P1) inclusive of discharge summary.
(iii) Death of Ms Anisha and Mr Pappu and identification of their bodies by S. C. no. 25/2010 Page 29 of 43 State vs Ranu Kumar & others FIR no. 136/06 relatives
(iv) Post mortem Report (Ex PW12/A) of deceased Pappu vis vis cause of death due to injury no.1 as it has not been challenged nor PW12 was cross examined on such count. Similarly, Post Mortem Report (Ex PW16/A) of deceased Anisha vis vis cause of her death due to injury no.1, as it has not been challenged nor PW16 was cross examined.
(vi) The place of spot and said Heena, Anisha and Pappu were found tied in room/spot at first floor of said house no. C 389, Gali no.11, Indira Gali, Janta Colony, Delhi. PW1 in his cross examination (recorded on 28.5.2008), carried on behalf of accused, responded ... ' it is correct that police had untied victims in my presence......I did not untie any of the victims'.
(vii) Heena had neck injury, as PW3 in his cross examination (recorded on 1.8.2007), carried on behalf of accused, responded ... ' it is correct that my sister Heena had neck injury and blood was oozing from her neck,
(viii) Accused Shamim and her family are resident of D272, Janta Colony, Delhi on the one side and on the other side PW2, PW3, besides their mother Ms Anisha, brother Pappu (since deceased) are living in opposite of each other, in the same gali.
(ix) PW 2 in her cross examination (recorded on 18.8.2007) responded ...'it is correct that in the house of Bashir my neighbour accused Naushad was residing alongwith his Naim brother in law (sala) and Aatik brother in law (jija). ... it is correct that accused Naushad neighbour was not residing in our immediate/adjacent neighbour for the last one year prior to incident but before that he was residing there. Vol. during last one year prior to incident he used to visit the house of Shamim.'
(x) PW4 in her cross examination (recorded on 17.8.2007), on behalf of accused, said.... 'it is correct that accused Israr is resident of village Bhopa, District S. C. no. 25/2010 Page 30 of 43 State vs Ranu Kumar & others FIR no. 136/06 Muzaffar Nagar UP, and he used to visit at house of my mother to meet her...it is correct that Israr is step son of my mother/step brother of my brother Dilshad.
(xi) Registration of FIR no. 438/05 PS Welcome, U/s 363/365 IPC by accused Shamim and its cancellation by final report (Ex PW17/A), because of marriage between PW1 and PW4 .
(xii) CFSL, Hyderabad results (Ex PW22/Y, Ex PW22/Y1, Ex PW22/Y2).
(xiii) Accused Hasin Hussan has also been referred as Hussan/Hasin Haider or Haider; he is one and the same person.
6.3 In the case of prosecution, there are three important places viz. the spot i.e. C389 First floor, Janta Colony, Delhi, where occurrence took place; the place outside the said house No.C 389, Janta Colony, Delhi and place of toilet, Pili Maati, which fall in the way from C 389 Janta Colony, Delhi to PW1's erstwhile residence in Idgah Colony, Delhi and vice versa. There are three kinds of evidence viz. oral statement, documentary record inclusive of MLCs, photographs, memos etc and material things vis a vis scientific results and opinion thereon. It is also a fact that witnesses came out with a few facts, which were not part of their statement before the police and for those facts, they have also been cross examined or confronted with their statements. Thus, it is required to restructure the scenes or things narrated by the witnesses and other material things, in order bring out as to what picture emerges.
It was about 10.30pm of 27.3.2006, PW 2 Heema saw, from her S. C. no. 25/2010 Page 31 of 43 State vs Ranu Kumar & others FIR no. 136/06 balcony, accused Shamim and NaushadII standing outside her house in gali. She came inside room. Then all of sudden accused persons arrived inside the room, accused Dilshad enquired them about Ishrat Ali alias Guddo (PW1) and Shabnam (PW4), when Anisha (since deceased) felt ignorance, accused Dilshad asked to tie their hands and legs, Anisha and Pappu's hands and legs were tied by Irshad (Juvenile) and NaushadII respectively; accused Dilshad fired a gun shot on the head of Anisha; another accused Hasin Hussan/Haider fired gun shot on tempol region of Pappu (since deceased) and Naushad gave ustra assault on neck of Heena (injured), when accused Shamim came and exhorted, he gave more ustra blow on her neck. When Pappu was crying, his mouth was gagged by accused Rano Kumar. In the meantime, PW3 Mohd Imran came there, he saw accused Shamim standing outside his house but other accused, their clothes smeared with blood, were coming out of his house, thus realizing some foul play, he went upstairs at first floor at spot, saw the situation and then informed his brother PW1 and the police. PW4 Shabnam reached the spot, by short cut way, prior to reaching PW1; she went inside the room and switched on the light, she came to balcony and saw her mother Smt. Anisha was standing in balcony of her house and informed PW4, of happening to them and asked now, how she would be able to live with PW1. Witness PW1 was coming from house in Idgah Road, from another gali, in the way near toilet, he saw the accused persons talking and PW1 over heard them. Then, he came at the spot. Police also came. S. C. no. 25/2010 Page 32 of 43
State vs Ranu Kumar & others FIR no. 136/06 6.4 Moreover, there is rival contentions with regard to contradictory statements of witnesses, particularly PW2 vis a vis other witnesses or PW15. According to ld defence counsel the witness PW2 was unconscious and then she was not able to speak for couple of months, she was not able to speak when application U/s 164 Cr P C was moved before Ld Magistrate in the Month of May 2006, how she could narrate names and facts to other witnesses or to police, but State has reservations otherwise on all such courts.
The facts bundled in MLCs and other record is to be seen. PW15 says that he did not notice crying of PW2 Heena, but she was not able to speak and she become unconscious in hospital. Whereas as per MLC Ex PW11/A, PW2 was conscious when brought there. PW3 in his statement (PW3/A) says that his sister told him facts and names, while groaning in the van making gestures. Similarly, in application dated 21.5.2006 U/s 164 Cr P C (copy on record) carries an endorsement that because of pain in throat, she was not able to speak properly. Thus, what it concludes that MLC (PW11/A) remained unchallenged and by reading all aspects together, it can be inferred that PW2 was not speechless but she could communicate by moaning coupled with gestures. Secondly, accordingly to PW4, she saw the injured gagged with clothes in their mouths, whereas PW2 says, Ranu Kumar gagged Pappu's mouth with hand. However, no material of clothes for gagging them has been shown recovered. 6.5. By reading the aforementioned facts of three places with other evidence S. C. no. 25/2010 Page 33 of 43 State vs Ranu Kumar & others FIR no. 136/06 and things, the prosecution could not prove the case/charges against accused Shamim, Ranu Kumar and Israr, beyond reasonable doubt for the following reasons:
(a) Statement (Ex PW3/A) of PW3 Mohd Imran to Police is the first statement, on the basis of which FIR registered, it states that accused Shamim was standing outside house and others (namely Naushad I, Dilshad, Israr, Irahasd (juvenile), Hasin Haider, NaushadII, their clothes smeared with blood) were coming out of house. Thus, there is nothing about Shamim that her clothes or chunni was smeared with blood or she was having lock or keys in her hands.
Further, statement (Ex PW3/A) does not mention either name or description or presence of accused Ranu Kumar with others, while coming out of house and persons coming were seen by PW3 Mohd Imran. To say, Ranu was not seen by the PW3.
(b) PW1 in his statement (Ex PW1/DA) names presence of Ranu Kumar, with others, near toilet; however, in his statement in the court, he said, neither he can identify Ranu, nor he was aware of name of Ranu Kumar prior to incident, there is no TIP of accused Ranu Kumar. PW1 further says, he could be identified by his sister/PW2 Heena.
Further, Shamim is mother in law of PW1 Ishrat Ali, he knows her name S. C. no. 25/2010 Page 34 of 43 State vs Ranu Kumar & others FIR no. 136/06 and face but he did not mention presence of or name of Shamim in his statement (Ex PW1/DA) about her presence at place near toilet but named her about her presence there in his statement in the court. But, how the presence of Shamim is possible at place near toilet , Pili Mati, when Shamim was seen in her house and balcony by PW4 from the balcony of the spot and there was dialogue between PW4 and her mother accused Shamim. One person cannot remain present at two places at one point of time.
© PW2 Heena says that Shamim had fallen on her and her clothes/chunni was smeared with blood, however, neither PW3 seen her clothes/chunni smeared with blood, when she was standing outside house nor PW4 seen it from her balcony nor PW1 says so. Otherwise, it has also not been proved that chunni seized was belonging to the accused Shamim.
(d) PW2, in her statement to police U/s 161 Cr P C names Israr, whom she saw on 25.3.2006, a day before incident and all accused, except Shamim, came in her room. However, PW2 during her statement as examination in chief, pointed out towards one accused (i.e. Irsad) that she does not know his name but he is brother of accused NaushadI. During her cross examination, she was shown an accused ( i.e. Israr) and PW2 replied that she was not knowing name of accused Israr before or at the time of incident. One can be named, if narrator knows the person. Then, how name of Israr figured in her statement (Ex PW2/DA) to police. No TIP of Israr has been got conducted by IO. S. C. no. 25/2010 Page 35 of 43
State vs Ranu Kumar & others FIR no. 136/06
(e) No where in the entire narration of PW2, she assigned or talked any role
of Israr.
(f) PW22 Inspector Ved Bhushan Sharma arrested accused Israr on
29.3.2006 and during investigation, he also got discovered his blood stained shirt, which was seized vide memo Ex PW 19/G and parcel was sent to forensic examination vide dispatch list (Ex PW18/B), whereas as per examination and opinion (Ex PW22/Y2, qua exhibit no.8), the blood test remained inconclusive.
(g) PW 22 Inspector Ved Bhushan and PW 20 Inspector Ran Singh admit photographs (Ex PW20/DA, X and X1) about presence police officers Ct Yaseen and Ct Saleem. Witnesses DW2 and DW3 have also explained, what was cross examined to PW20 and PW22, that photographs are of Israr on 28.3.2006 at Village Bhopa, Muzzaffar Nagar, UP. A photograph shows the Israr hand cuffed. When a person is handcuffed, it means he is in detention or arrest by police. The theory of date of arrest and allied facts narrated by the police witnesses are contrary to facts appearing from photographs.
(h) There is no direct or indirect evidence surfaced, that the said accused persons conclave and formed planning or conspiracy together or with others, therefore, no evidence of conspiracy has been proved.
Thus, charge U/s 120B r/w section 302, section 307 and 449 IPC could not have S. C. no. 25/2010 Page 36 of 43 State vs Ranu Kumar & others FIR no. 136/06 been proved against accused Shamim, Ranu Kumar and Israr, they are acquitted of such charges. Let they be set free forthwith, if not required in any other case.
7. So far, remaining four accused namely, Dilshad, NaushadI (son of Kamaluddin), NaushadII (son of Mohd Rafiq) and Hasin Hassain, are concerned, there is no direct or indirect evidence surfaced U/s 120B IPC, that they conclave or conspired together or with others, therefore, they are acquitted of charge U/s 120B IPC.
8.1 Whereas, the prosecution has succeeded to establish other charges U/s 449/302/307/34 IPC against four accused namely Dilshad, NaushadI (son of Kamaluddin), NaushadII (son of Mohd Rafiq) and Hasin Hussain, AND charges U/ss 25 & 27 of the Arms Act, 1959 against accused Dilshad and Hasin Hussain/Haider, for the following evidence and reasons:
(i) There are many undisputed facts, enumerated in paragraph 6.2 above, which are not repeated here.
(ii) MLC of Anisha and her Post mortem report vis a vis cause of death has been also proved, that deceased Anisha had gun shot injury and she died of such injuries, the injury no.1 has been opined 'sufficient to cause death in the ordinary course' by PW16/ Dr Arvind Kumar,
(iii) MLC of Pappu and his Post mortem report vis a vis cause of death has been S. C. no. 25/2010 Page 37 of 43 State vs Ranu Kumar & others FIR no. 136/06 also proved, that deceased Pappu had gun shot injury and he died of such injuries, the injury no.1 has been opined 'sufficient to cause death in the ordinary course' by PW12/ Dr KK Banerjee.
(iv) MLC of injured PW2 Heena has not been disputed and her medical record of treatment, surgery and progress reports have also been proved besides discharge summary; she had multiple injuries on her throat/neck of size 4x2x1cm, 8x3x2cm,12x4x4cm.
(v) the natures of gun shots at temporal regions of Anisha, Pappu and ustra assaults on the neck of Heena, are corroborating from oral statement of PW2, PW1, PW3, PW4, PW15 and medical records/evidence. However, Anisha and Pappu died of gun shots but Heena survived of multiple ustra/razor injuries.
(vi) As per statement of PW2 , juvenile Irshad had tied her legs and hands of Anisha and accused Dilshad had pistol, he fired on Anisha and it is already admitted facts, during cross examination of PW2, that victims' hands and legs were tied. As appears, victim was helpless in such position, that is why symptoms of protest are missing.
Accused Dilshad was arrested , a pistol and four live cartridges were recovered from him, which were seized by memo dated 4.4.06 (ExPW9/C, its sketch is Ex PW9/B). They were sent to forensic examination, they have been S. C. no. 25/2010 Page 38 of 43 State vs Ranu Kumar & others FIR no. 136/06 opined arms and ammunition as per CFSL result (EX PW22/Y). In addition, pellet, empty cartridge were recovered and seized from the spot vide memo dated 28.3.2006 (Ex PW 19/C), they were also sent for forensic examination; on microscopic examination (Ex PW22/Y1), it is revealed that the empty cartridge was used from country made pistol recovered from accused Dilshad. The pellet and cartridge have also been opined ammunition. Thus, oral testimony of witnesses vis a vis material evidence of spot and recovery of weapon from accused Dilshad and corroboration of facts by each other, establish guilt of the accused under the provisions of India Penal Code as well as use and possession of arms and ammunition under the Arms Act. The accused cannot derive any benefit that there was delay in recovery of weapon or by saying it is sham, since the incident is of 27.3.2006 and arms and ammunition were recovered on 4.4.06 but the cartridge found at spot has association with the weapon recovered at the instance of accused Dilshad.
(viia) As per statement of PW2 accused Hasin Hussain/Haider had pistol, he fired on Pappu., accused NaushadII had tied his legs and hands. It is already admitted facts, during cross examination of PW2, that victims' hands and legs were tied. As appears, victim in the condition of tied hands and legs was helpless, that is why symptoms of protest are missing.
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State vs Ranu Kumar & others FIR no. 136/06 Accused Hasin Hussain was arrested, a pistol, an empty cartridge and four live cartridges were recovered from him, which were seized by memo dated 26.4.06 (ExPW19/T , its sketch is Ex PW19/S). They were sent to forensic examination, they have been opined arms and ammunition as per CFSL result (EX PW22/Y). In addition, pellet, empty cartridge were recovered and seized from the spot vide memo dated 28.3.2006 (Ex PW 19/C), they were also sent for forensic examination; they have also been opined ammunition but on microscopic examination, the deformed bullet could not be ascertained to have been used from the pistol. However, oral testimony of witnesses as to how and that at temporal region of Pappu gun shot was made by accused Hassin Hussain, which is being corroborated by medical evidence , establish guilty of the accused Hasin Hussain under the provisions of India Penal Code as well as use and possession of arms and ammunition under the Arms Act. (viib) Other accused namely NaushadII was arrested on 28.3.2006 immediately after incident, a blood stained shirt was seized (Ex PW19/B) from House no. D222, Indira Gali no.11, Janta Colony, Delhi; it was sent for examination to CFSL, who examined blood stained shirt (Exhibit9, full sleeve shirt) with gauge blood (of Pappu and Anisha), and opined in report (Ex PW 22/Y2) that it has same group of blood. Thus, presence of accused NaushadII in place of incident is established by oral statement of witnesses and scientific evidence against him. Therefore, accused NaushadII (son of Rafiq) is equally S. C. no. 25/2010 Page 40 of 43 State vs Ranu Kumar & others FIR no. 136/06 liable for his association and aid in the acts and deeds of other, he is equally held liable under the provisions of the Indian Penal Code. Accused NaushadII cannot derive any benefit that he was not seen by PW1 near toilet or his name is not mentioned in his statement (Ex PW1/DA), since accused NaushadII has been named in injured PW2 Heena in her statement, he was also seen in blood smeared clothes by PW3 when he was coming out said house and his blood stained shirt has been opined positive report against him. He also cannot derive any benefit, out of contradiction, to say that PW2 in her statement (EX PW2/DA) does not name NaushadII had tied hands and legs of Pappu as stated in the court, because of undisputed fact of tied of hands and legs of victims and secondly there are other evidence, which are corroborating each other.
(viii) As per statement of PW2 accused NaushadI had ustra/razor, he gave multiple injuries to her. As per medical record, she had multiple injuries on her throat/neck of size 4x2x1cm, 8x3x2cm,12x4x4cm) with the razor. Thus, oral statement and injuries on the person of PW2 Heena are corroborating each other, she remained indoor patient and also under treatment after her operation. Moreover, a blood stained razor was also recovered at the instance of accused Hasin Hussain, as per seizure memo (Ex PW1/Q, having its sketch Ex PW19/P). The razor was also sent for forensic examination but due to blood disintegration, biological opinion could not be tendered. But it would not dilute the fact, as oral narration of PW2 is being tallied with injuries on her person duly corroborated S. C. no. 25/2010 Page 41 of 43 State vs Ranu Kumar & others FIR no. 136/06 by medical examination and opinion. The injuries are on her vital part/place of thyroid cartilage cut transversely, strap muscle cut transversely, portion of cricoids cartilage cut transversely at throat/neck portion. PW2 in her statement (EX PW2/DA) named Israr, who tied her hands, but in statement to court she named another person (i.e.Raju), who tied her hands and legs. This will not give any benefit to the accused, firstly it is undisputed fact that victims' were tied of hands and legs, secondly it does not dilute the other evidences corroborating each other.
(viii) Thus, the accused persons namely Dilshad, NaushadI, Hasin Hussain and NaushadII performed their acts in further of their common intensions, they went inside the house after necessary preparations and they committed the offences, which result into murder of Anisha and Pappu, it was death assault on Heena, but she survived of injuries, it amounts to attempt to murder her. They carried their task of commission of offence in aid and assistance of each other, by use of arms, ammunition and razor.
(ix) There are some contradictions in the statement of witnesses, however, it would not demerit the conclusion drawn and reasons given in paragraphs (i) to
(viii) above, since they are based on substantive and material evidence, undisputed facts, corroborative by medical and scientific reasons.
8.2 The contraband pistols, ammunitions and weapon razor are forfeited to
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State vs Ranu Kumar & others FIR no. 136/06
State.
8.3. However, the findings given in the present judgment pertains to aforesaid seven persons, it will have no bearing with regard to Irshad, juvenile conflict in law, facing proceedings before juvenile justice board or in respect of Raju, whose trial is pending separately.
Announced in open court today (Inder Jeet Singh)
Sharavan 4,Saka 1935 Addl.Sessions Judge03
North East District,
Karkardooma, Delhi
26.07.2013
S. C. no. 25/2010 Page 43 of 43
State vs Ranu Kumar & others FIR no. 136/06
State vs Ranu Kumar etc
FIR no. 136/06
PS Welcome
29.07.2013
Pr: Mr. R.K. Pandey, Ld. Addl. PP for the State.
Convicts Dilshad, Naushad s/o Lt. Kamaluddin, Naushad s/o Mohd. Rafiq and Hasin Hussan are produced from J.C. Their Counsel Mr. Abdul Sattar, Advocate is present who is also Amicus Curiae.
Heard on the point of sentence.
1. Firstly, there are typographical / spelling error in judgment of single letter on page 19 (paragraph 2, second line for letters DW1, it was typed PW1) ; page 25 (6th line paragraph 5.5 word 'see' was typed for word 'she'); page 28 (5th line for word 'threat' it was typed 'thread') vis a vis omission to write word 'of' on page 20, 2nd last line in place of word 'that' and 6th line of page 41 word 'of' was omitted to type. Since these are typographical error, the parties present have no objection; let it be corrected, the same are corrected.
2. Ld. Addl. PP for State requests that the convicts deserve maximum punishment prescribed either for murder, which goes to the extent of death sentence, and also maximum punishment prescribed for attempt to murder vis a vis punishment for criminal trespass into the house after necessary preparation to commit the murders. As per material on record, deceased Pappu was 18 years S. C. no. 25/2010 Page 44 of 43 State vs Ranu Kumar & others FIR no. 136/06 of age, deceased Anisha was 46 years of age and injured Heena was around 14 years, not only they were undefended in their room but also it was a night time, when all of a sudden the innocents were assaulted with weapons like pistols and razor. The two innocents lives have been snatched by the accused just to satisfy their revenge because PW4 Shabnam, sister of convicts Dilshad and Naushad s/o Lt. Kamaluddin, married with PW1 Ishrat Ali @ Guddu, for which the convicts were not ready to accept it and out of revenge, two have been killed and one has been injured for ever. It is a cold murder, it does not require any leniency and in the manner the motive has been achieved, no leniency is deserved to be extended in favour of convicts. There was no fault of any of deceased or of injured, there is no reason to award lesser punishment than the maximum punishment prescribed for murder, as all the convicts carried their deeds in furtherance of their common intention. The totality of circumstances suggest that case falls in the category of rarest of rare cases. In addition the convicts are also liable to pay compensation to the victim and heirs of the deceased.
Since prosecution has proved case of sections 25 and 27 of Arms Act against convicts Dilshad and Hasin Hussan, they are also liable to award the punishment prescribed.
3. Whereas Ld. Counsel Sh. Abdul Sattar, Advocate, for convicts requests, firstly a lenient view may be taken and punishment may be awarded at the minimum, the convicts have been in custody, except convict Dilshad who was admitted on bail recently on medical ground, from the inception of investigation, S. C. no. 25/2010 Page 45 of 43 State vs Ranu Kumar & others FIR no. 136/06 they have been behind the bar throughout the trial. Convict Dilshad is aged about 31 years, Hasin Hussan @ Haider is about 34 years, Naushad s/o Mohd. Rafiq is about 35 years and Naushad s/o Lt. Kamaluddin is about 28 years, they are at the young peak age of their life, they are not previous convicts nor they have been involved in any other case. Neither they are harmful or dangerous to the society and they deserve minimum punishment. There is a request for the maximum punishment or it is a case of rarest category as claimed by the State whereas the circumstances alleged by the prosecution or a case being alike circumstantial evidence, do not attract either capital punishment nor it is a case of rarest category to award capital punishment. Ld. Defence Counsel fortifies his contentions while relying upon Machhi Singh vs State of Punjab, 1983 (3) SCC 470. The death punishment is exception and other punishment is a rule.
The convicts belong to poor strata of society, of labour class and they would not in a position to pay the fine or compensation, therefore, lenient view may also be taken in this regard.
4. The contentions of both the sides are assessed, inclusive trial court record as on the one side it is claimed, on the basis of record and evidence, that there exist aggravating circumstances of killing two persons and also an attempt to kill the third one, who is still undergoing treatment because of injuries and on the other side there are mitigating circumstances suggested for exercising lenient view. First of all it is to be decided, whether there exist case of rare of rarest cases. There is an occasion to go through the sentencing policy, also discussed S. C. no. 25/2010 Page 46 of 43 State vs Ranu Kumar & others FIR no. 136/06 in detail in Santosh Kumar Satishbhushan Pariyar Vs State of Maharashtra, Crl. A. No.1478/2005 with State of Maharashtra Vs Sanjeevkumar Mahendraprasad Roy and another, Crl. A. No.452/2006, while referring earlier precedent of Machhi Singh vs State of Punjab, 1983 (3) SCC 470 and also Bachan Singh Vs State of Punjab, 1980 (2) SCC 684; in addition there is also an occasion to go through Devender Pal Singh vs State of NCT of Delhi, 2002 (5) SCC 234, also on the point of sentencing policy. It has been held that extreme penalty of death need not to be inflicted except any gravest cases of culpability. In Bachan Singh's case (supra), one of the test to be seen is the probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society and the probability that the accused can be reformed and rehabilitated; and it was the duty of State to prove by evidence that accused does not satisfy his conditions. In the present case, the convicts and complainant are neighbourer, the bitterness amongst them is because of PW4 Shabnam married with PW1 Ishrat Ali @ Guddu, it is like a family feud.
Thus, considering the totality of circumstances, in the light of law on point of sentencing policy vis a vis there is nothing in the form of evidence that the convicts, who were under the passion / revenge towards the witness / PW1 and others, falls in the category having no probability of their rehabilitation or reform, therefore, under such circumstances the case does not fall in the category of rarest of rare case. Thus, under this situation extreme penalty of death is an exception, it cannot be awarded, but imprisonment.
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State vs Ranu Kumar & others FIR no. 136/06 6.1 Section 302 IPC prescribes two sentences viz death sentence and fine or
life imprisonment and fine, as already held, the death penalty is not attracted, therefore, all the four convicts are awarded life imprisonment and considering all aspects fine of Rs.50,000/ each.
6.2 Section 307 IPC prescribes two sentences viz life imprisonment or sentence upto 10 years and fine, as already held, therefore, all the four convicts are awarded life imprisonment.
6.3 Section 449 IPC prescribes two sentences viz imprisonment not exceeding 10 years and fine, therefore, all the four convicts are awarded rigorous imprisonment of seven years and fine of Rs.30,000/ each. 6.4 All the sentences will run together and benefit of Section 428 Cr.P.C. is given to the convicts. However, imprisonment for life means till the life of convicts exists, it stands clarified. Moreover, out of the realized fine, 70% fine shall go as compensation to injured Heena, legal heirs of deceased Anisha and heirs of deceased Pappu. 15% of fine will go to State in defraying the expenses as per Section 357 (1) (a) Cr.P.C.
7.1 The convict Dilshad has also been held guilty u/s 25 of Arms Act and 27 of Arms Act and considering all aspects, he is awarded rigorous imprisonment of 1 ½ year and fine of Rs.5000/, in default 9 months R.I. u/s 25 Arms Act and he is also awarded rigorous imprisonment of 3½ years and fine of Rs.6000/, in default one year R.I. u/s 27 of Arms Act. Both the sentence will go together.
7.2 The convict Hasin Hussan @ Haider has also been held guilty u/s 25 of
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State vs Ranu Kumar & others FIR no. 136/06
Arms Act and 27 of Arms Act and considering all aspects, he is awarded rigorous imprisonment of 1 ½ year and fine of Rs.5000/, in default 9 months R.I. u/s 25 Arms Act and he is also awarded rigorous imprisonment of 3½ years and fine of Rs.6000/, in default one year R.I. u/s 27 of Arms Act. Both the sentences will go together.
7.3 The substantial imprisonment awarded under IPC and substantial imprisonment under the Arms Act to convict Hasin Hussan @ Haider and convict Dilshad will go together.
8. Accordingly, contentions stand disposed of.
9. Sh. Abdul Sattar, Advocate has been representing some of the convicts and accused as Amicus Curiae, Reader / Ahlmad is directed to prepare from record a certificate of attendance / hearing for determining the fees, to be furnished in three days. The convicts be provided copies of complete record, copy of judgment and order on point of sentence. File be consigned to record room.
Announced in open court (Inder Jeet Singh)
Sharavan 7, SAKA 1935 Additional Sessions Judge03
(NE): Karkardooma Courts,
Delhi
29.7.2013
S. C. no. 25/2010 Page 49 of 43