Delhi District Court
State vs (1) Syed Kasif Ali ...A-1 on 15 January, 2007
1
IN THE COURT OF SHRI S.P. GARG : ADDITIONAL
SESSIONS JUDGE : NEW DELHI
Sessions Case No : 7/2006
State vs (1) Syed Kasif Ali ...A-1
s/o Syed Shahid Ali
r/o 343, Gali Gadiah, Jama
Masjid, Delhi.
(2) Mohd. Akil ...A-2
s/o Mohd. Iqbal
r/o 857, Chata Unchi Manzil,
Ballimaran, Delhi.
(3) Sandeep Gupta ...A-3
s/o Mahinder Gupta
r/o 1027, Gali Chabuk Sawar,
Lal Kuan, Delhi.
FIR No : 32/96
PS : Sriniwaspuri
U/s : 394/397/320/120B IPC
JUDGMENT
Accused Kasif Ali (A-1), Mohd. Akil (A-2) and Sandeep Gupta (A-3) were arrested by the police of PS Sriniwaspuri vide FIR No 32/96 and were challaned to the court for trial for the commission of the offence punishable U/s 394/397/302/120B IPC. In nut shell, the case of the prosecution is as under :
2. Present case was registered by the police on 9/1/96 on the statement of complainant Smt. Soni. In her statement, complainant Soni disclosed that she was working as maid at the residence of Mehmooda (since deceased) at 175, Zakir Bagh, Sukhdev Vihar. On that day, she had reached at the said house at about 10 AM.2
Landlady Mehmooda was present at the house. At about 11.50 AM, when she was cleaning utensils in the kitchen, two boys aged about 20-25 years entered inside the kitchen. They were armed with knives. They caught hold her and gagged her mouth. Thereafter both of them stabbed her with knives. She sustained injuries with knife on her head and stomach. When she raised alarm, her landlady came inside the kitchen. On that the said boys stabbed her (Mehmooda). The said boys also robbed her of her bangles, ear rings, necklace and ring. The said boys also inquired from her as to what else was there at the house. When she and her landlady raised alarm, both the said boys fled away with knives from the spot. The said boys closed the outer gate. When she cried after opening the gate from inside, some neighborers came there. She and Mehmooda were removed to AIIMS by the PCR.
3. The complainant gave description of the said two assailants in her statement made to the police.
4. On receipt of DD No. 5, SI A S Rawat reached at the spot from PS Sriniwaspuri. On reaching at the spot he came to know that the injured had already been shifted to AIIMS by PCR. SI A S Rawat left Ct. Ranbir Singh at the spot and he himself reached at AIIMS Hospital. There he found Smt. Mehmooda and Soni lying admitted. He moved application before the concerned doctor for recording the statement of the injured. Mehmooda was declared "unfit for statement". Soni was declared "fit for statement". Thereafter SI A S 3 Rawat recorded the above said statement of the complainant Soni.
5. SI A S Rawat thereafter reached at the spot and prepared ruqqa for registration of the present case. Investigation of this case was assigned to him. He prepared site plan at the spot. He seized TV wire, plastic rassi (rope), broken bangles with blood and prepared its seizure memos. He also lifted blood sample from the kitchen with the help of cotton and prepared its pulanda and seizure memo. He summoned the crime team at the spot. Crime team lifted one palm print from the kitchen tiles and prepared its report.
6. Injured Mehmooda remained admitted at the hospital. Case of the prosecution is that injured Mehmooda remained "unfit for statement" till 13/1/96. On 14/1/96 she was declared "fit for statement". On 21/1/96, SI A S Rawat recorded statement of Smt. Mehmooda.
7. On 25/196, injured Mehmooda was declared "dead" at the hospital. SI A S Rawat conducted inquest proceedings. He got conducted postmortem on the dead body of the deceased Mehmooda. After the postmortem the dead body was released to her son Khalid.
8. Further case of the prosecution is that on 30/1/96 when SI A S Rawat along with Insp. S P Gupta and other police officials were present near Delite cinema regarding investigation of this case, A-1 was apprehended at the pointing out of the secret informer. He was interrogated. A-1 went to his H.No. 857, Chatta Unchi Manzil, Gali Gadia, Jama Masjid and from there he got recovered one jeans pant 4 gray color, one long paired shoes, one jacket blue color and black muffler which he was wearing at the time of incident. All these articles were seized and seizure memos were prepared. Thereafter A-1 was brought at the PS. There he was interrogated. Disclosure statement of A-1 was recorded. A-1 disclosed the names of his associates ie A-2 and A-3. On the basis of the disclosure statement of A-1, IO along with police party reached at the house of A-3 for further investigation at 1027, Gali Chabuk Sawar. A-3 was arrested there at the pointing out of A-1. He was interrogated and his personal search was conducted.
9. Further case of the prosecution is that both A-1 and A-3 took the police party to the residence of A-2 at 857, Chatta Unchi Manzil, Ballimaran, Delhi. There at the pointing out of A-3, A-2 was apprehended and arrested. He was interrogated. During investigation A-2 produced one pair of black shoes which were seized and necessary seizure memo was prepared. Thereafter all the accused persons were brought at the PS. They were interrogated there and disclosure statements of A-2 and A-3 were recorded.
10.On 31/1/96 all the three accused persons were thoroughly interrogated. A-2 pointed out the place of incident and pointing out memo was prepared. All the three accused persons were produced before the court. Two days PC remand of A-3 was taken. A-1 and A- 2 were sent to JC till 7/2/96. Application was moved by the IO for conducting TIP proceedings of both A-1 and A-2 which was fixed for 5 6/2/96. However, A-1 and A-2 refused to participate in TIP proceedings. On 7/2/96 their four days PC remand was given.
11.On 1.2.96, A-3 got recovered Rs. 2500/- from his house which were seized and necessary seizure memo was prepared.
12.On 7/2/96 disclosure statements of A-1 and A-2 were again recorded. On 8/2/96 A-1 and A-2 took the police party to Dariba at shop No. 212, Roshan Di Hatti. From there A-1 got recovered jewelery consisting of six bangles, one neck chain, one pair of ear rings. Suresh Kumar, owner of the shop produced one "girvi chit"
which was seized by the police.
13.Thereafter A-1 and A-2 took the police party to shop No. 286, Dariba Kalan owned by one Kundan Singh. From there A-2 got recovered two finger rings. Kundan Singh also produced a "girvi chit" to police. All these articles were seized by the police.
14.A-2 further led the police party to his H.No. 857, Chatta Unchi Manzil, Ballimaran and from there got recovered knife used in the commission of the offence. IO prepared sketch of the knife. It was also seized and seizure memo was prepared.
15.On 9/2/96 efforts were made to recover the knife used by A-1. However, it could not be traced.
16.On 14/2/96, A-1 and A-2 were identified by complainant Soni and Zamir and their supplementary statements were recorded by the IO.
17.During investigation, IO got identified the case property from the court of Sh. V K Bansal, Ld. MM. IO also got prepared scaled site 6 plan. The case property was sent to CFSL and CFSL reports were collected. IO also sought opinion of the doctor who had conducted postmortem on the dead body of the deceased regarding the weapon of offence recovered in this case.
18.IO recorded the statements of concerned witnesses at different stages of investigation and after completion of the investigation filed challan against all these accused persons for the commission of the afore said offences in the court of Ld. MM.
19.Ld. MM after complying with the provisions of section 207/208 CrPC committed the case to the court of sessions.
20.After hearing the Ld. Addl. PP for the state and Ld. defence counsels for the accused persons, charge U/s 302/34 IPC, 394 IPC r/w section 397/34 IPC was ordered to be framed against A-1 and A-2 by my ld. predecessor vide order dated 6/1/97. Separate charge U/s 411 IPC was ordered to be framed against A-3 by my ld. predecessor vide order dated 6/1/97. Accused persons pleaded not guilty to the charge and claimed trial.
21.To prove its case prosecution examined PW 1 Soni, PW 2 Abdul Khalid, PW 3 Mohd. Jameer, PW 4 Saba Akram, PW 4A HC Davinder Kumar, PW 5 HC Ram Singh, PW 6 Ct. Ranbir Singh, PW 7 Ct. Kanwal Kishore, PW 8 Suresh Malhotra, PW 9 SI Rajinder Kumar, PW 10 Dr. O P Murti, PW 11 Sardar Kundan Singh, PW 12 SI Madan Pal, PW 13 SI Avdhesh Kumar, PW 14 SI Ram Kishore, PW 15 HC Parminder Kumar, PW 16 HC Davinder, PW 17 Sh. V K 7 Bansal, PW 18 Dr. Anjali, PW 19 Insp. S P Gupta and PW 20 SI A S Rawat.
22.Statements of the accused persons were recorded U/s 313 CrPC. Accused persons denied their involvement in the commission of the offence. Plea of A-1 is that he has been falsely implicated in this case on account of enmity, motive and past dispute between his parents/grandfather and the family of the deceased over a joint property at Jama Masjid. He was student of First year Engineering Honours at Dr. Zakir Hussain College on the day of incident. He was a regular college student. He was around 20 years of age. He is the only son of his parents. His father retired as Bank Manager. He never visited the house of the deceased as his parents were not on speaking terms with the members of family of the deceased. Deceased never made any allegations against him at any time till her death. Only after her death, PW Saba Akram and Khalid falsely implicated him in this case. Husband and other son of the deceased did not give any statement to the police against him.
23.Plea of A-2 is that he has been falsely implicated in this case and nothing was got recovered by him.
24.A-3 has claimed himself innocent and has stated that no stolen property was retained by him. The police forcibly snatched Rs. 2500/- from his father Mahender Kumar. Rs. 500 currency note seized by the police in this case was given to his father by one Ashok. His father had complained against police officials and had 8 sent a telegram in this regard.
25.A-1 examined his father Shahid Ali in his defence evidence as DW 2. A-3 examined his father Mahender Kumar as DW 1 in his defence.
26.I have heard the Ld. Addl. PP for the state and Ld. defence counsels for the accused persons. I have also gone through the authorities relied upon by the Ld. defence counsels for the accused persons reported in :
1. 1996 (II) Supreme View and Law Reporter (SVLR) 138
2. AIR 1993 SC 65
3. AIR 1997 Supreme Court 454
4. 1975 CRLJ 764 (SC)
5. 1975 SCC (Criminal) 129
6. 1998 JCC 212 SC
7. AIR 1957 SC 637
8. 1996 JCC 502 Delhi High Court
9. 1998 (I) JCC Delhi 94 10.1998 (I) JCC Delhi 173
11.AIR 1990 SC 79 12.2000 (VII) AD (Delhi) 294
13.AIR 1994 SC 1622 14.1952 SC 343
15.(1999) 7 Supreme Court Cases 695
27.Contention of the Ld. Addl. PP for the state is that the prosecution has proved its case against all the accused persons beyond the shadow of reasonable doubt. There is ample evidence on record establishing the guilt of A-1 and A-2 and there is nothing to disbelieve the positive testimony of the prosecution witnesses. PW 1 Soni has not supported the prosecution as she has been won over by the accused persons.
28.On the other hand, Ld. defence counsels for the accused persons have vehemently argued that the prosecution has failed to prove its 9 case against the accused persons beyond the shadow of reasonable doubt. There are material contradictions and inconsistencies which make it unsafe to convict the accused persons. Material prosecution witnesses including the complainant PW 1 Soni and PW 8 Suresh Malhotra have not at all supported the prosecution. They were got declared hostile by the Ld. Addl. PP for the state. No recovery was effected at the instance of A-1 and A-2. The police did not investigate as to from where the deceased had got the jewelery purchased. The police did not record the statement of husband of the deceased regarding purchase of the jewelery. No detail of the jewelery was given at any time by the other members of the family of the deceased. No dying declaration was made by the deceased to the IO or her son Khalid. The police has failed to explain the delay in recording the statement of the deceased on 21/1/96 though she was declared "fit for statement" on 14/1/96.
29.Further contention of the Ld. defence counsel for A-1 is that the police had recorded statement of Khalid, son of the deceased on 25/1/96. In his statement, PW Khalid did not mention the name of the assailants. Rather it was mentioned that the deceased was murdered by two unidentified persons. It shows that name of the assailants was not within the knowledge of the police upto 25/1/96. There are material contradictions regarding the time when the police party reached for recovery of the jewelery at Dariba Kalan. No weapon of offence was recovered from the possession of A-1. 10 Recovery of jewelery at the instance of A-1 is quite doubtful. PW Mohd. Zamir is an interested witness and has given false statement at the instance of PW Khalid, his employer for the last about 10 years. It is further argued that A-1 was related to the deceased. Had A-1 stabbed the deceased, she must have named him at the first instance.
30.Further argument of the Ld. defence counsel for A-1 is that A-1 has no intention to commit murder of the deceased. No offence U/s 302 IPC is made out as deceased remained alive for about 15 days after the incident. Only motive of the assailants was to rob the deceased and not to commit her murder. Medical negligence leading to death of the deceased can't be taken into consideration to prove offence U/s 302 IPC.
31.I have considered the arguments of the Ld. Addl. PP for the state and Ld. defence counsels for the accused persons. I have also gone through the evidence adduced on record by the prosecution and defence. I have also gone through the written arguments placed on record.
32.Case of the prosecution is being discussed as under :
A. HOMICIDAL DEATH Case of the prosecution is that the deceased Mehmooda met with homicidal death in this case. On perusal of the evidence adduced on record, I am also of the view that it is a case of culpable homicide. II. Material testimony on this aspect is that of PW 10 Dr. O P Muri who 11 conducted postmortem on the dead body of the deceased. While appearing as PW 10 Dr. O P Murti proved his postmortem report Ex.PW10/A. Death in this case was opined due to septicemia followed by multiple stab wounds to abdomen and one stab on chest. All these injuries No. 2, 3, 4, 5 and 6 mentioned in the postmortem report were opined sufficient to cause death individually as well as collectively. All the injuries No. 1 to 6 were opined to have been caused by sharp edged cutting and stabbing weapon/object. During investigation, the weapon of offence recovered in this case was also shown to the doctor who opined that the injuries were possible with the knife shown to him. III.I do not subscribe to the contention of the Ld. defence counsel for the accused that there was no intention of the assailants to commit murder of the deceased or that only intention of the assailants was to commit robbery of the inmates of the house. It has come on record that repeated injuries with sharp weapon were caused by the assailants on the person of the deceased on her vital organs when she resisted robbery. The assailants had entered inside the premises when they were armed with deadly weapons. The injuries caused by the assailants to the deceased Mehmooda were opined sufficient in the ordinary course of nature to cause death. Simply because the deceased Mehmooda remained alive for some days during her treatment at the hospital, it does not absolve the assailants for the injuries caused to the deceased which proved fatal. The assailants 12 had caused injuries not only to the deceased Mehmooda but to PW 1 Soni, her maid as well though no article was robbed from her possession. The injuries caused by the assailants to the deceased were having direct nexus with her death. The accused persons have failed to adduce on record that the cause of death of the deceased was negligence of the doctors treating her at the hospital. No such evidence has been adduced on record to show that the treatment given by the doctor to the deceased at the hospital was deficient or that septicemia developed to the deceased was due to the negligence of any doctor. In the cross examination, PW 10 Dr. O P Murti categorically stated that septicemia could develop due to various factors for which injury was one of them. Cross examination of PW 10 Dr. O P Murti has not brought any fact on record to show if the cause of death opined by the doctor was incorrect. So I am of this view that it is a case of culpable homicide.
B. STATEMENT OF PW 3 MOHD. JAMEER
(IDENTIFICATION OF A-1)
Testimony of PW 3 Mohd. Zamir to establish the guilt of A- 1 is material. PW 3 Jamir has appeared as a witness before the court. In his testimony before the court, PW 3 Md. Zamir deposed that on 9/1/96, he used to work as domestic servant at H.No. 175, Zakir Bagh as well as H.No. 162, Zakir Bagh. House No. 175, Zakir Bagh belonged to Abdul Khalid and his mother, deceased Mehmooda Begum was also residing in the said house. On that day at about 10 AM, after serving 13 breakfast to Mehmooda (since deceased), he came downstairs and went to H.No. 162 for their work. At about 11 or 11.30 AM, when he was again going upstairs at H.No. 175, Zakir Bagh for delivering clothes of Smt. Mehmooda Begum, he saw two boys rushing outside the H.No.
175. He saw them near the shutter of that house. Then he went upstairs. A-1 was one of the said two boys. The second boy was not known to him. When he went upstairs, he found that Soni, domestic servant of Mehmooda and Smt. Mehmooda were crying in pain and there was lot of blood. Thereafter he rushed downstairs and informed Saba Akram in H.No. 162, Zakir Bagh. Thereafter he returned to H.No. 175 and tied/wrapped clothes on the forehead and stomach of Soni as she was bleeding profusely. This witness further stated that during investigation, he had accompanied the police to Tihar jail for identification of the accused but the accused refused to participate in TIP proceedings. In the cross examination by the Ld. Addl. PP for the state, the witness admitted that he had gone to Central jail on 6/2/96 for identification of the accused.
II. This witness was cross examined by the Ld. defence counsel for A-1. In the cross examination the witness admitted that he was serving Abdul Khalid for the last about 30 years. His statement was recorded after 8 or 10 days of the incident. On 9/1/96 at about 11 Am, he was in H.No. 162. The witness denied the suggestion that he had not seen two boys rushing outside H.No. 175 or that he was present at H.No. 162, Zakir Bagh at that time. This witness further 14 stated in the cross examination that the police had detained another person living in their neighborhood Gali Qasim, Ballimaran due to misapprehension and he was called to identify him. He saw that boy and told the police that he was not among the said two persons whom he had seen rushing out. The witness further stated that on one occasion, he and Soni had gone to the PS Sriniwaspuri where they had identified A-1.
III. Overall testimony of this witness reveals that this witness has proved that soon after the incident, he had seen two boys running out of the house at about 11/11.30 AM. This witness further asserted that A-1 was among the two boys identified by him. There is nothing to disbelieve this assertion of the witness who had reached at the spot soon after the incident. No motive has been imputed to this witness for falsely identifying A-1 before the court to be among the two boys seen running by this witness soon after the incident. This witness was admittedly employed as domestic servant with the deceased and her son for the last about 30 years. Being faithful to the employer, this witness must be interested to bring the real culprit to book for the death of the deceased. This witness has no ulterior motive to falsely rope in A-1 for the crime which was not allegedly done by him. PW 3 Mohd. Jamir was not going to be benefited by letting the real culprit go scot free. This witness has no motive to falsely depose against A-1 alleging an innocent person on the asking of his employer Abdul Khalid son of the deceased. Again Abdul Khalid son of the deceased 15 must be interested that the real perpetrator of the crime are brought to book.
IV. No material contradictions and discrepancies have come in the cross examination of this witness to discard his testimony on this aspect. Presence of this witness at the spot being domestic servant with the family of the deceased is quite natural and probable. PW 1 Soni who has not supported the prosecution on material facts in her examination in chief, has nevertheless admitted the presence of this witness PW 3 Mohd. Jamir at the spot soon after the occurrence. In her deposition before the court, PW 1 Soni categorically stated that when she raised alarm through the window, two persons came from the lawns. Thereafter she opened the door and saw 2- 3 persons standing outside. One of them was Zamir. Police reached thereafter about five minutes. She was taken to hospital by the police separately. Zamir and driver also accompanied them. Presence of this witness at the spot soon after the incident, as deposed by PW 1 Soni, was not disputed by the Ld. defence counsel for A-1 in the cross examination of this witness. No suggestion was put to PW 1 Soni in the cross examination that PW 3 Mohd. Zamir had not reached at the spot soon after the incident and had not accompanied the injured to the hospital. V. It has further come on record that this witness had gone to Tihar jail to participate in TIP proceedings after the arrest of the accused persons. However, A-1 refused to participate in the TIP proceedings. A-1 was subsequently identified by this witness during 16 investigation. Had this witness not reached at the spot and had not seen A-1, this witness must not have gone to participate in the TIP proceedings. This witness fairly did not identify A-2 to be the person identified by him soon after the incident.
VI. Identification of A-1 by PW 3 Mohd. Zamir soon after the incident while rushing outside H.No. 175 where the incident took place, is an incriminating piece of circumstance pointing an accusing finger against him (A-1).
C. DYING DECLARATION MADE BY DECEASED TO PW
2 ABDUL KHALID
PW 2 Abdul Khalid is the son of the deceased. Prosecution has relied upon the oral dying declaration made by the deceased to him before her death.
II. Case of the prosecution is that the deceased was got admitted to AIIMS soon after the incident on 9/1/96. She remained admitted for treatment there till 25/1/96 when she succumbed to the injuries sustained by her. Deceased Mehmooda was unfit to make statement till 14/1/96. Thereafter on 14/1/96, she was declared fit for statement by the doctor.
III. PW 2 Abdul Khalid in his deposition before the court has stated that when the incident took place, he was present at his shop at Sadar Bazar. He rushed to his house on getting the message from his wife about the incident. From there he reached at the hospital and found both Soni and his mother Mehmooda having stab wounds. His 17 mother was operated in the hospital on the same day. She remained admitted in ICU for three days. After three days, she was shifted to ward. There she told him that the assailants were two and one of them was Kasif Ali (A-1). A-1 was the same person who was referred by his mother in the hospital. He knew A-1 as he was related to him. His mother could not recover from the injuries as the same were quite deep. She died on 25/1/96 in the hospital.
IV. This witness was tested in the cross examination. In the cross examination, the witness stated that his wife and children used to live in H.No. 172, Zakir Bagh. This witness volunteered to add that they used to have their meals with their mother. On the date of incident, no police official met him. He also did not notice any police official with his mother when he reached at the hospital. He was running here and there in connection with the injuries suffered by his mother, so he had no occasion to meet any police officials. He did not go to his shop in between 9/1/96 to 14/1/96. Police did not record his statement from 9/1/96 to 14/1/96. The police had met him when the police had come to record the statement of his mother in ICU. The said day was 2nd or 3rd day of the incident. This witness fairly admitted that on 25/1/96, he had identified the dead body of the deceased and his statement Ex.PW2/DA was recorded by SI Rawat. This witness expressed his ignorance if police had recorded his statement between 15/1/96 to 18/1/96 or not. He also did not recollect if in between 18/1/96 to 25/1/96 the police recorded his statement or not. This 18 witness volunteered to add that he could not give specific date when his statement was recorded. This witness, however, asserted that his mother told him twice or thrice the name of one of assailants (A-1) but he could not tell the time when his mother told him. It was day time and it could be evening. The witness denied the suggestion that his mother never disclosed him name of A-1 or that he made improvements in his deposition before the court due to enmity with the family members of A-1 over dispute regarding property situated at Jama Masjid.
V. The entire testimony of this witness reveals that he has categorically deposed that prior to her death, the deceased had disclosed him the name of A-1 to be among the two assailants who had caused injuries to her. Again there is nothing to disbelieve PW 2 Abdul Khalid on this circumstance. For the remissness of the IO not to get the statement of the deceased recorded from SDM/MM, the otherwise cogent testimony of this witness can't be disbelieved. Relation of the witness with the deceased is not a factor to doubt the veracity of the statement made by the deceased to this witness. Deceased was mother of this witness and being her son, he also must be interested to see that actual culprit is convicted. By wrongfully and falsely implicating A-1, this witness can't be imagined to let the real culprit go unpunished. VI. Presence of this witness at the hospital during treatment of his mother is quite natural. Again it is natural for the deceased to disclose the name/identity of the assailants on coming to senses to 19 make statement. She did not, during her treatment at the hospital, stated that she was injured by two "unidentified" boys. No material contradictions have been elicited in the cross examination of this witness that no such dying declaration was made by the deceased to him prior to her death. The police machinery came into motion against A-1 after coming to know about involvement of A-1 in the commission of the offence from the disclosure made by the deceased before her death.
VII. I do not subscribe to the contention of the Ld. defence counsel for A-1 that name of A-1 has been introduced falsely by PW 2 Abdul Khalid after the death of the deceased as there was property dispute. This plea of Ld. defence counsel for A-1 simply does not appeal to mind. It has come on record that A-1 was a student of First year Engineering Honours of Dr. Zakir Hussain college and was aged about 20 years. A-1 was having no concern whatsoever with the property belonging to his family members or the family members of the deceased. PW 2 Abdul Khalid was not going to be benefited in the alleged property dispute for falsely implicating A-1 in a heinous offence. Nothing has come on record to show if there were strained relations of PW 2 Abdul Khalid and his family members with A-1 or any quarrel had taken place over property dispute at any time between them prior to the incident.
VIII. No cogent evidence has been produced on record to show if there was any property dispute between the two families. No civil or 20 criminal proceedings ever took place between the two families prior to the incident. Title deeds of the property in question have not been placed on record. Nothing has come on record to show as to in whose possession, the property at Jama Masjid is. In the absence of any legal proceedings over property owned by the ancestors of both the families, it can't be said that A-1 who was student , was falsely involved in this case.
IX. Reliance has been placed by the Ld. defence counsel for A-1 that in his statement Ex.PW2/DA recorded by the IO on 25/1/96, this witness did not name A-1 to be among the assailants. It has come on record that this statement Ex.PW2/DA was recorded by the IO only regarding identification of the dead body. There is nothing to show if at the time of recording of statement of this witness regarding identification of dead body of the deceased, the IO specifically inquired from him about the names of the assailants. Since on the day of incident, the assailants had remained unidentified, the same seems to have been so mentioned in the statement Ex.PW2/DA. Since there is categorical assertion of PW 2 Abdul Khalid regarding dying declaration made to him by his mother prior to her death, his statement can't be brushed aside simply because this fact does not find mention in the statement Ex.PW2/DA recorded by the IO only for the purpose of identification of the dead body of the deceased. X. Had there been enmity of this witness qua A-1 and his family members, he must have named A-1 to the police at the first 21 instance. Hence there is nothing to disbelieve the statement made by PW 2 Abdul Khalid regarding the dying declaration made by the deceased to him before her death. To my mind, dying declaration made by the deceased to PW 2 Abdul Khalid is another incriminating circumstance against A-1.
D. DYING DECLARATION MADE BY DECEASED TO PW
20 SI A S RAWAT
PW 20 SI A S Rawat is the IO of this case. He had reached at the hospital and had found deceased Mehmooda and PW 1 Soni admitted there. He moved application before the concerned doctor for recording statement of injured Mehmooda but she was declared "unfit for statement". PW 1 Soni was declared "fit for statement" and PW 20 SI A S Rawat recorded her statement and got the present case registered.
II. In his deposition before the court, PW 20 SI A S Rawat stated that injured Mehmooda remained "unfit for statement" till 13/1/96. On 14/1/96 she was declared "fit for statement". The application made by him for getting her declared fit for statement is Ex.PW20/E. He recorded statement of Mehmooda on 21/1/96 as she was declared "fit for statement" on 14/1/96. The witness explained that on 14/1/96 she was not able to give statement as she was not able to recollect her memory. In her statement made to him, deceased Mehmooda told him that she was stabbed by son of her brother namely Kasif Ali (A-1) who was accompanied by another boy of his age. Both 22 persons stabbed her and robbed the jewelery from her person. Thereafter he made efforts to arrest the accused persons. III.This witness was cross examined on this aspect. In the cross examination, the witness denied the suggestion that he personally did not move the application Ex.PW20/E before the concerned Medical Officer. The said doctor was not cited as a witness in this case. In between 14/1/96 to 25/1/96, he did not seek any medical opinion in writing about the physical and mental condition of the deceased. The witness denied the suggestion that no such statement was given to him by the deceased or that the story was concocted by him in connivance with PW 2 Abdul Khalid.
IV. After the injured was declared fit to make statement, it was natural duty of the IO to make inquiries from her regarding the assailants. Nothing was unusual when on 21/1/96 the IO recorded the statement of the injured regarding the incident. There is delay in recording the statement of the injured after she was declared fit for statement on 14/1/96. However, the IO has explained the delay in recording the statement of the injured U/s 161 CrPC. He has explained that the injured was unable to recollect her memory due to deep injuries sustained by her. This explanation of the IO inspires confidence as on 25/1/96, the injured succumbed to the injuries and expired. No motive has been imputed by the Ld. defence counsel to the IO for falsely recording the statement of the injured whereby she disclosed to him that A-1 was one of the assailants for the 23 commission of the offence. For negligence of the IO to get the statement of the injured recorded from the SDM/MM, the prosecution case as a whole can't be thrown away. No material discrepancies have come in the cross examination of this witness infer that no such dying declaration was made by the deceased to the IO.
E. RECOVERY OF CASE PROPERTY AT THE INSTANCE
OF A-1.
Further case of the prosecution is that robbed case property was got recovered by A-1 after his arrest. Plea of the Ld. defence counsel is the prosecution has failed to prove the recovery of the robbed jewelery at the instance of A-1. His further plea is that there are discrepancies in the statements of the prosecution witnesses on this aspect and PW 8 Suresh Malhotra, jeweler has not supported the prosecution on this aspect.
II. On scanning the prosecution file, it reveals that soon after the incident in her statement Ex.PW1/A, PW 1 Soni who herself had sustained injuries in the incident categorically stated that deceased was robbed of her ornaments at the time of incident. She specifically revealed in her statement Ex.PW1/A that the deceased was deprived of her wearing golden bangles, ear rings, necklace and rings forcibly. In her deposition before the court as well, PW 1 Soni though turned hostile on some facts, proved the incident of robbery. She stated before the court that when she was injured, on hearing her cries, 24 deceased Mehmooda Begum came and she shouted as to why she (PW1) was being attacked. She also deposed that when she noticed that deceased Mehmooda Begum was lying on the sofa cum bed in injured condition, her jewelery had already been removed. This witness was not challenged by the Ld. defence counsel in the cross examination on this aspect. No suggestion was put to this witness in the cross examination that the deceased was not wearing any golden jewelery at that time or that the assailants had not robbed her of her jewelery which she was wearing at that time. PW 1 Soni has no ulterior motive to falsely allege the robbery of the golden ornaments from the possession of the deceased. The statement of the complainant PW 1 Soni was recorded soon after the incident. There was least possibility of the witness Soni to fabricate the story of robbery of jewelery belonging to the deceased.
III.PW 4 Saba Akram, daughter-in-law of the deceased in her cross examination stated that her mother-in-law ie deceased was very fond of wearing new jewelery. She was in the habit of changing the jewelery frequently. She saw her wearing rings identified by her in TIP on 6/7-1-96. She had seen her wearing the rings sometime before 6/1/96.
IV.A-1 was arrested on 30/1/96. After he refused to participate in the TIP proceedings, he was again interrogated during PC remand and his disclosure statement Ex.PW7/A was recorded on 7/2/96. On 8/2/96 in pursuance of the disclosure statement, A-1 got recovered 25 the robbed jewelery from the shop of PW 8 Suresh Malhotra. V. Material testimony on this aspect is that of PW 20 SI A S Rawat. In his statement before the court, PW 20 SI A S Rawat deposed that on 8/2/96, he along with A-1 and A-2 and Insp. S P Gupta and HC Parminder reached at Dariba at shop No. 212, Roshan Di Hatti. From there A-1 got recovered the jewelery consisting of six bangles, one neck chain and one pair ear rings. One Suresh Malhotra who was the owner of Roshan Di Hatti produced one "Girvi chit" Ex.PW8/A and handed over to him. The same was seized vide seizure memo Ex.PW15/B. The jewelery was kept in a cloth pulanda and the same was seized vide seizure memo Ex.PW15/H. He recorded the statement of PW 8 Suresh Malhotra U/s 161 CrPC. Necklace Ex.P1, ear rings Ex.P2(1-2) and bangles Ex.P3(1-6) are the same which were got recovered by A-1.
VI.PW 19 Insp. S P Gupta and PW 15 HC Parminder have fully supported the prosecution on this aspect and have corroborated the testimony of PW 20 SI A S Rawat. All these witnesses were cross examined by the Ld. defence counsel. However, there is no material inconsistency in their cross examination to doubt the recovery. Minor contradictions regarding the time when the police party reached at the shop of PW 8 Suresh Malhotra are not fatal to the case of the prosecution. The police witnesses had no motive to falsely plant the jewelery after about 8/9 days of the arrest of the accused persons. Name of the owner of the jeweler shop from whom A-1 had 26 got recovered the jewelery was not in the knowledge of the police witnesses. This fact was also not in the knowledge of PW 2 Abdul Khalid and other family members of the deceased. Only in the disclosure statement of A-1 recorded on 7/2/96, Ex.PW7A, the police came to know about the robbed jewelery lying at the shop of PW 8 Suresh Malhotra. Accordingly in pursuance of the disclosure statement of A-1 the police reached at the shop of PW 8 Suresh Malhotra on 8/2/96. This fact stands admitted by PW 8 Suresh Malhotra who otherwise has not supported the prosecution regarding the handing over of jewelery by him to the police. PW 8 Suresh Malhotra in his testimony before the court has proved the "Girvinama" Ex.PW8/A which is in his handwriting and bears his signatures at point A. He has stated before the court in his testimony that this "girvinama" Ex.PW8/A was written by him though he has stated that the same was written by him under pressure or that he was not present at his shop on 10/1/96. This witness was got declared hostile by the Ld. Addl. PP for the state. In the cross examination by the Ld. Addl. PP for the state, PW 8 Suresh Malhotra admitted that he had handed over the document Ex.PW8/A to the police. He further admitted that he had studied upto MA (History). He did not make any complaint regarding forcible taking of document Ex.PW8/A by the police from him. He did not lodge any complaint with the Traders Association or to the senior police officials in this regard.
27VII.Testimony of PW 8 Suresh Malhotra corroborates the version given by the police. PW 8 Suresh Malhotra has admitted that document Ex.PW8/A ie girvinama was executed by him and it bears his signatures. He has further admitted that the police had come to his shop and he had given the "girvinama" to the police. I find no substance in the plea of the witness that he was forced by the police to write "girvinama" Ex.PW8/A. This witness never complained about any pressure exerted by the police on him to execute document Ex.PW8/A. Being an educated person, PW 8 Suresh Malhotra is not imagined to execute the "girvinama" Ex.PW8/A under the alleged pressure of police. Since "girvinama" Ex.PW8/A was in the handwriting of this witness, he had no alternative to admit its execution. Otherwise the witness has not supported the prosecution regarding handing over the robbed jewelery to the police. The contents of Ex.PW8/A fully support the case of the prosecution that the gold jewelery mentioned therein was pledged by A-1 for a sum of Rs. 14,500/- and that the same was got recovered by him from the shop of PW 8 Suresh Malhotra. Simply because PW 8 Suresh Malhotra has not opted to support the prosecution regarding the handing over of the robbed jewelery, he can't be permitted to sabotage the case of the prosecution in view of the "girvinama" Ex.PW8/A in his handwriting produced by him before the court. This witness has reasons to deny the recovery of the robbed jewelery from his possession to avoid any action against him. 28 This witness has failed to explain how the police happened to visit his shop only in pursuance of the disclosure statement of A-1. He has not alleged any prior enmity with the police or A-1 to falsely implicate his name. Name of PW 8 Suresh Malhotra was discovered by the police only in the disclosure statement of A-1. VIII.In the cross examination, no suggestion was put to this witness if A-1 had not accompanied the police party to his shop. A-1 also did not lead any evidence in defence to show if recovery of these robbed articles was planted on him or that PW 8 Suresh Malhotra was pressurized by the police to execute "girvinama" Ex.PW8/A. IX.Another witness PW 11 Sardar Kundan Singh on the contrary admitted execution of "girvinama" Ex.PW11/A. He also admitted to hand over two rings to the police on the same day which was got recovered at the instance of A-2. It is not unusual for the jewelers to get execute "girvinama" to avoid legal consequences for receiving or retaining stolen/robbed jewelery.
X. This robbed jewelery got recovered at the instance of A-1 from the shop of PW 8 Suresh Malhotra was got identified by the police during TIP proceedings. PW 17, Sh. V K Bansal, the then Ld. MM conducted TIP proceedings regarding the case property. Application Ex.PW17/G was moved and TIP proceedings was fixed for 22/4/06. TIP proceedings Ex.PW17/H were conducted. PW 4 Saba Akram, daughter in law of the deceased participated in the TIP proceedings and identified the robbed jewelery which belonged to the deceased. 29 XI.PW 4 Saba Akram in her deposition before the court also stated that she participated in the TIP proceedings for identification of the jewelery items. On 22/4/96, she appeared before the Ld. MM. She picked up and identified six gold bangles belonging to her mother in law. She also picked up and identified one gold necklace (har) out of the 6/7 necklaces belonging to her mother-in-law. The bangles which were identified were identified out of many bangles which were about 10-12 in number. She also identified one pair of gold tops which her mother-in-law used to wear in her ears. The said pair was got identified and picked up out of the many ear rings. She also identified two rings belonging to her mother in law. XII.Testimony of this witness reveals that she identified the robbed jewelery got recovered by A-1 during TIP proceedings before the Ld. MM. It further stands established that "similar" property was brought by the IO to be mixed with the robbed articles and out of that PW 4 Saba Akram picked up the jewelery belonging to her mother in law. So no fault can be found with the TIP proceedings conducted by the Ld. MM. Simply because the prosecution did not collect any document regarding purchase of the jewelery from the family members of the deceased, it can't be said that the robbed jewelery did not belong to the deceased. PW 4 Saba Akram, the close relation of the deceased who had regularly seen the deceased wearing the jewelery is not expected to falsely identify the same for no motive. There is no substance in the contention of the Ld. defence 30 counsel that since PW 2 Abdul Khalid or his brother and father were not asked to identify the jewelery in TIP proceedings, the prosecution version regarding identification of the case property by PW 4 Saba Akram should not be believed. It is well known that ladies are most sensitive to identify the jewelery once seen by them. XIII.The recovery of the robbed articles from the person of the deceased Mehmooda at the instance of A-1 in pursuance of the disclosure statement is another strong circumstantial piece of evidence to connect him with the commission of the offence.
F. TIP PROCEEDINGS After arrest of both A-1 and A-2, IO moved application for conducting their TIP before the Ld. MM. PW 17 Sh. V K Bansal, the then Ld. MM has appeared and has stated in his testimony before the court that on 31/1/96, both A-1 and A-2 were produced before him in muffled face for TIP. Application Ex.PW17/A was assigned to him for conducting TIP of both A-1 and A-2 and he fixed dated 6/2/96 for conducting TIP proceedings. On 6/2/96, he visited Central jail No. 2 where A-1 was produced before him. However, he refused to participate in TIP proceedings. A-1 was warned that his refusal to participate in TIP proceedings would draw adverse inference against him during trial. Even then A-1 refused to participate in the TIP proceedings. His statement Ex.PW17/B was recorded by him. TIP proceedings conducted by him are Ex.PW17/C. II. PW 17 further deposed that on the same day, he visited Central jail 31 No. 3. There A-2 was produced before him. He also refused to participate in the TIP proceedings. His statement Ex.PW17/D was recorded. TIP proceedings conducted by him are Ex.PW17/E. III.Refusal of A-1 and A-2 to participate in the TIP proceedings compells the court to draw adverse inference against both of them. A-1 and A-2 did not lead any evidence to show that their refusal to participate in the TIP proceedings was justified. Nothing has come on record to show if both these accused persons were shown to the prosecution witnesses in the PS as alleged in their statements for refusing participation in TIP. PW 1 Soni and PW 3 Jamir had reached Tihar jail to participate in the TIP proceedings. PW 3 Jamir while appearing before the court identified A-1 to be one of the persons to whom he had seen rushing out of the house soon after the incident. He, however, failed to identify A-2 before the court to be the second person seen by him. PW 1 Soni did not support the prosecution regarding identity of A-1 and A-2 before the court. She was got declared hostile by the Ld. Addl. PP for the state. IV.Nevertheless refusal to participate in TIP proceedings by A_1 and A-
2 is a adverse circumstance against them.
G. RECOVERY OF RINGS AT THE INSTANCE OF A-2 The prosecution has further relied upon the recovery of rings robbed from the possession of the deceased at the instance of A-2 from PW 11 Sardar Kundan Singh at Dariba Kalan. PW 20 SI A S Rawat, the IO of this case has deposed that in pursuance of the 32 disclosure statement, A-2 pointed out shop No. 286, Dariba Kalan, owned by Kundan Singh and he got recovered two finger rings along with a girvi chit from the shop of Kundan Singh. Rings were kept in a cloth pulanda, sealed with seal of ASR and seized vide seizure memo Ex.PW16/G. Girvi chit Ex.PW20/O was also seized vide seizure memo Ex.PW11/B. He recorded statement of PW Kundan Singh. Rings Ex.P4/1-2 were the same which were seized after being got recovered by A-2.
II. PW 11 Kundan Singh, the jeweler has also supported the prosecution and has corroborated the testimony given by PW 20 SI A S Rawat and PW 19 Insp. S P Gupta. In his deposition before the court, Kundan Singh admitted that the two rings were pledged by a boy in January 1996. The said boy had pledged the rings stating that he would collect the same after some days. The said boy pledged two rings with him for a sum of Rs. 1200. Rs. 1150/- were paid by him in cash to the said boy and the receipt was executed which is Ex.PW11/A. The said boy also put his signatures on the receipt at point B. In the examination in chief, the witness pointed out towards A-2 and stated that he "might" be the person who had come on that day. In the cross examination by the Ld. Addl. PP for the state, this witness categorically stated that A-2 was the only person who had come to his shop to pledge the two rings. This witness further stated that after about one month, the said boy came to his shop with the police. He handed over the receipt Ex.PW11/A to the police which 33 was seized vide seizure memo Ex.PW11/B. He also handed over the two rings to the police on the same day.
III.Cross examination of this witness has failed to shatter his testimony.
This independent public witness has no ulterior motive to falsely allege the pledging of two gold rings by A-2 with whom he had no ill-will or enmity prior to the incident. These two rings were subsequently identified in TIP proceedings by PW 4 Saba Akram to be belonging to the deceased. The recovery of rings Ex.P4/1-2 at his instance from the possession of PW 11 Sardar Kundan Singh points an accusing finger against A-2. It is worthwhile to note that A-2 was arrested on the disclosure statement of A-1 earlier.
H. RECOVERY OF KNIFE Further case of the prosecution is that knife Ex.P10 was got recovered by A-2 on 8/2/96 from his house. The knife was seized vide seizure memo Ex.PW15/E. Sketch of the knife was prepared which is Ex.PW15/D. This knife was shown to the doctor who had conducted postmortem on the dead body of the deceased and his opinion was taken. The doctor opined that the injuries on the person of the deceased could be caused by knife Ex.P10.
II. A-2 has denied the recovery of the knife at his instance. III.This knife was not sent to FSL during investigation. No blood was detected on the knife Ex.P10. Mere recovery of knife without detection of any blood over it is no clinching proof showing involvement of A-2 in the commission of murder of the deceased. 34
I. CONCLUSION The above circumstances proved on record by the prosecution categorically form a complete chain proving the commission of offence by A-1 beyond the shadow of reasonable doubt. II. Minor contradictions, improvements and exaggerations in the case of the prosecution which do not go to the root of the case are not fatal. Non-recovery of the weapon of offence used by A-1 in the commission of the offence is also not fatal. Simply because PW 1 Soni, the injured and witness to the incident opted not to support the prosecution is not a factor to discard the other strong circumstantial evidence proved on record by the prosecution. PW 1 Soni had earlier joined the investigation with the police and had gone to Tihar jail to participate in TIP proceedings when A-1 and A-2 were apprehended. However, during her deposition before the court, she opted to resile from her statement previously made by her to the police. The possibility of the witness to have been won over by the accused persons can't be ruled out.
III.The law regarding circumstantial evidence has been detailed by the Hon'ble Supreme Court in a latest case titled Trimukh Maroti Kirkan Vs. State of Maharashtra reported in 2006 IX AD (S.C.), The Hon'ble Supreme Court has observed:
"The normal principle in a case based on circumstantial from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances 35 taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence."
The Hon'ble Supreme Court further observed in the said judgment that :
"If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland Vs. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it read:
(b) A is charged with travelling on a railway without ticket.
The burden of proving that he had a ticket on him,"
Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other 36 cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
IV.A-1 failed to give plausible explanation to the incriminating circumstances appearing against him in his statement recorded U/s 313 CrPC. A-1 examined his father Shashid Ali in his defence only to prove that there was enmity between the family members of the deceased and their family over some property situated at Jama Masjid. However the accused failed to prove on record if there was any property dispute between them prior to the incident. DW 2 Shashid Ali has stated that deceased was the real sister of his father (phoofi). The close relations of the deceased are not expected to falsely implicate their relatives and to let the actual culprit of the crime go scot free. No documentary evidence has come on record to show if there was some dispute between the two families over some property. Nothing has come on record to show if any civil or criminal litigation had taken place between the two families at any time prior to the incident. Again there is nothing on record to show if the children of the deceased were intending to grab the major part of the property. In the cross examination DW 2 Shashid Ali admitted that he did not file any partition suit in any court. In the absence of 37 any previous litigation, the close relations of the deceased can't be said to be nurturing grudge against A-1 or his family members. Moreover, it has come on record that A-1 himself was a student. He was having no concern over any property dispute between the two families prompting the family of the deceased to involve him in this case. A-1 did not examine any independent witness or other family member to infer if the relations between the two families were strained over any property dispute. This plea has been taken for the first time by A-1 after his arrest in this case.
V. A-1 did not assert that he was not present at the place of incident on the day of incident. He did not give specific plea in the cross examination of the PWs or in his statement recorded U/s 313 CrPC if he was present at any particular place/college/residence on the day of incident. He did not examine any witness from his family or college to establish his presence at the time of incident at some place other than the place of incident.
VI.Regarding A-2, in my view the prosecution has failed to prove beyond the shadow of reasonable doubt that he along with A-1 committed murder of the deceased by causing injuries on her person or that he robbed her of her gold ornaments. Discussion of circumstances referred above reveals that A-2 was not identified by PW 1 Soni to be the person who was present at the spot at the time of incident. Deceased Mehmooda Begum did not in her dying declaration name A-2 to be the person who was with A-1 at the time 38 of incident. PW 2 Abdul Khalid did not utter a word regarding presence of A-2 along with A-1 at the time of occurrence. PW 3 Zamir also failed to identify A-2 to be person who was seen by him rushing out of the house soon after the incident along with A-1. In her dying declaration before the IO also, identity of A-2 was not disclosed. Only evidence proved on record against A-2 is that he got recovered two robbed gold rings Ex.P4/1-2 in pursuance of his disclosure statement from the shop of PW 11 Sardar Kundan Singh. Recovery of knife Ex.P10 at his instance from his house also does not prove that the injuries on the person of PW 1 Soni and deceased Mehmooda were caused with that weapon. No blood was detected on the knife Ex.P10. Circumstance of recovery of robbed golden rings alone is not enough to form a complete chain proving the commission of murder and robbery by him in furtherance of common intention with A-1.
VII.Since stolen/robbed property ie golden rings Ex.P4/1-2 belonging to the deceased were recovered in pursuance of the disclosure statement of A-2, I am of the view that the prosecution has proved the commission of offence punishable U/s 411 IPC against him whereby he received or retained golden rings Ex.P4/1-2 knowing or having reasons to believe the same to be stolen property belonging to the deceased. A-2 did not claim the gold rings Ex.P4/1-2 to be belonging to him. He failed to explain how he came into possession of these golden rings. He did not lead any evidence in defence that 39 these gold rings were not got recovered by him.
VIII.Regarding A-3, I am of this view that the prosecution has failed to prove its case against him beyond the shadow of reasonable doubt. Only allegation against A-3 brought on record is that in pursuance of the disclosure statement of A-1, he was arrested and he got recovered Rs. 2500/- from his house. This recovery of cash of Rs. 2500/- from his house is not an incriminating piece of evidence against him connecting him with the commission of offence. No such cash was robbed from the possession of the deceased. Case of the prosecution is that A-1 pledged the robbed gold ornaments with PW 8 Suresh Malhotra for Rs. 14,500/- and out of the said amount, Rs. 6000/- were given to A-3. Rs. 2500/- were the amount out of Rs. 6000/- given by A-1 to A-3. In my view, no stolen property was recovered from the possession of A-3 at the instance of A-1 or A-2. Alleged payment of cash out of cash received on pledging of golden ornaments is not an incriminating piece of evidence to connect A-3 with the commission of the offence. Nothing has come on record to show as to for what purpose Rs. 6000/- were allegedly given by A-1 to A-3. Recovery of cash having no special mark of identification after number of days from the date of incident makes the recovery doubtful. The prosecution has failed to adduce on record any worthwhile evidence against A-3 to prove any offence against him.
J. RESULT In view of my above discussion, I am of this view that the 40 prosecution has proved beyond reasonable doubt the commission of offence punishable U/s 392 IPC r/w section 397 IPC and U/s 302 IPC by A-1 beyond the shadow of reasonable doubt. He is accordingly held guilty and convicted for the commission of the offences punishable U/s 392 IPC r/w section 397 IPC and U/s 302 IPC. The prosecution has further established commission of offence punishable U/s 411 IPC by A-2 beyond the shadow of reasonable doubt. He is accordingly held guilty and convicted for the commission of the offence punishable U/s 411 IPC. The prosecution has failed to prove any of its charges against A-3. Benefit of doubt is given to him and his is acquitted in this case. Announced in the open court on 15/01/2007 Additional Sessions Judge New Delhi 41 IN THE COURT OF SHRI S.P. GARG : ADDITIONAL SESSIONS JUDGE : NEW DELHI Sessions Case No : 7/2006 State vs (1) Syed Kasif Ali ...A-1 s/o Syed Shahid Ali r/o 343, Gali Gadiah, Jama Masjid, Delhi.
(2) Mohd. Akil ...A-2 s/o Mohd. Iqbal r/o 857, Chata Unchi Manzil, Ballimaran, Delhi.
FIR No : 32/99 PS : Sriniwaspuri U/s : 392/397/302/411 IPC ORDER ON SENTENCE I have heard the convict A-1 on the point of sentence. The convict A-1 has prayed to take lenient view as he is not involved in any other criminal activity. He has remained in JC in this case for sufficient period. He was student at the time of commission of offence. He is the only son of his father who has already retired. There is none else to look after his parents.
I have considered the prayer of the convict and have gone through the file.
On perusal of the file it reveals that the offence committed by the convict A-1 is serious and grave. The convict not only robbed his 42 relation but also caused her death by inflicting injuries with deadly weapon on her person.
At the same time, I am also of the view that it is not one of the rarest of the rare cases where extreme penalty of death is to be awarded to the convict. Convict is not involved in any other organized criminal activity. He is not a previous convict. He has remained in JC in this case for some period before being released on bail. Convict is the only son of his parents who are dependent upon him for their livelihood. Convict was student at the time of commission of offence.
Considering all the facts and circumstances of the case, age and antecedents of the convict, A-1 is sentenced to undergo RI for seven years with fine of Rs. 1000/- and failing to pay the fine to undergo SI for one month for the commission of the offence punishable U/s 392 IPC r/w section 397 IPC.
Convict A-1 is further sentenced to undergo imprisonment for life with fine of Rs. 1000/- and failing to pay the fine to undergo SI for one month for the commission of the offence punishable U/s 302 IPC.
Both the substantive sentences shall run concurrently. Ld. counsel for the convict A-1 has prayed to give benefit U/s 428 CrPC to the convict. He has relied upon the authority reported in AIR 1985 SC 1055. In my view this authority is not applicable at this stage as no order has been passed by the appropriate authority U/s 432 or 433 CrPC.
43
Copy of the judgment be given free of cost to the convict A-
1. File be consigned to record room.
Announced in the open court on 24/1/2007 Additional Sessions Judge New Delhi 44 IN THE COURT OF SHRI S.P. GARG : ADDITIONAL SESSIONS JUDGE : NEW DELHI Sessions Case No : 7/2006 State vs (1) Syed Kasif Ali ...A-1 s/o Syed Shahid Ali r/o 343, Gali Gadiah, Jama Masjid, Delhi.
(2) Mohd. Akil ...A-2 s/o Mohd. Iqbal r/o 857, Chata Unchi Manzil, Ballimaran, Delhi.
FIR No : 32/99 PS : Sriniwaspuri U/s : 392/397/302/411 IPC ORDER ON SENTENCE I have heard the convict A-2 on the point of sentence. The convict A-2 has prayed to take lenient view as he the only earning member of his family. He has remained in JC in this case for about more than 1 ½ years. He is not a previous convict.
I have considered the prayer of the convict and have gone through the file.
On perusal of the file it reveals that the present convict was accused of sharing common intention with A-1 in the murder of the deceased Mehmooda. However, the prosecution failed to establish his involvement in the commission of murder of the deceased. The 45 prosecution, however, proved that the stolen/robbed articles on the person of the deceased were recovered at the instance of this convict.
Considering all the facts and circumstances of the case, the nature of offence committed by the convict and gravity as well, A-2 is sentenced to undergo RI for three years with fine of Rs. 1000/- and failing to pay the fine to undergo SI for one month for the commission of the offence punishable U/s 411 IPC.
Copy of the judgment be given free of cost to the convict A-
2. The period already remained in JC by the convict (A-2) in this case shall be counted and set off against his substantive sentence U/s 428 CrPC.
File be consigned to record room.
Announced in the open court on 24/1/2007 Additional Sessions Judge New Delhi