Delhi District Court
State vs . on 28 March, 2009
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS
JUDGE: (FTC) CENTRAL : DELHI
State
Vs.
Jameel @ Kalwa @ Naseem
S/o Rahimullah @ Mohd. Khan
R/o House opposite Madhu Ice Cream
Chippi Tank
Kachahri Road
Meerut, U.P.
Case arising out Session case no. 11/08
FIR No. 108/96
U/S 302/307/394/397/120B/34 IPC
P. S. Darya Ganj
Date of FIR :10.03.96
Date of Institution in Sessions Court :18.02.05
Date of transfer to FTC :17.11.08
Date of Final Arguments :24.03.09
Judgment reserved on :24.03.09
Date of Judgment :28.03.09
J U D G M E N T:
1. The case of the prosecution unfolds with Inspector Satish Kain receiving a wireless message on 10.03.96 about persons in a maruti car bearing number DL 4CB 4489 having fled away after firing at two persons. On reaching the spot of incident it was found that injured had gone to JPN Hospital. When Insp. Satish Kain went to said hospital he Cont....
2met injured Ashok Kumar son of Shri Saudagar, resident Rohtak, Haryana, who gave a complaint wherein he stated that he and his brother Subhash were in the business of sale and purchase of Buffaloes in and around Delhi on credit basis and they recovered the amount in installments, which they collected on 9th, 10th & 11th of every month, from their customers.
2. On 10.03.96, at about 6:45 am, he and his brother Subhash came to Delhi from Rohtak in their blue colored Maruti car bearing no. DL-4C-B4489, which was being driven by their driver Ajmer Singh. After recovering the installments from Ghaziabad, Seelampur and Delite Cinema, they came to Mool Chand Basti, Pushta, Delhi to recover the installments from Nassruddin @ Nasso and Bhendu. At about 11:45 am, after recovering the amount, both the brothers came at Pushta where their car was parked. Subhash,brother of complainant, purchased Rasbharies from a rehri standing at the back side of their car. As he was coming to sit in the car, four assailants came from behind. One of them, who wearing a green pant, white check shirt, Cont....
3had height of about 5'10'', slim built, fair complexion with long hairs, took out a katta and fired at the head of Subhash whereas the two other assailants having desi kattas in their hands and the fourth, having a knife came near Ashok and threatened him to hand over cash, ring and watch etc.. As Ashok Kumar and their driver Ajmer tried to alight from the car, one assailant aged about 30-32 years, of 5'8'' height, wheatish complexion,with strongly built body and light, mustaches fired at the left arm pit of Ashok Kumar and the third assailant aged about 25-30 years of normal height had given a knife blow on the back of driver Ajmer Singh . These four assailant pushed Ashok Kumar at the back seat of the car and showing him a katta, took away his yellow colored cloth bag containing rupees 34,800/- and some documents from the back seat of the car. The strongly built assailant snatched the gold ring, citizen watch of golden color from Ashok Kumar. Thereafter they threw both Ashok Kumar and Ajmer Singh at the spot and sped away in their car. Injured Subhash was lying unconscious and Ashok Kumar and Ajmer Singh put injured Subhash in a TSR and took him to Cont....
4JPN Hospital, Delhi. When police came Ashok lodged his complaint with the police.
3. On the basis of above complaint FIR bearing no.
108/96 was registered and investigations were taken up. On completion of investigation, challan was filed against accused Pappu S/o Wahab, Jaipal @ Kabooter and accused Gayur before the Court of Ld. MM, Delhi. The other accused including accused Jameel @ Kalwa were proclaimed offenders and were placed in column number 2 of the charge sheet. After compliance with the provisions of section 207 Cr.P.C. the case was committed to sessions Court.
4. Accused Furkan was arrested in the meantime and his trial was taken up with the accused Pappu s/o Wahab, accused Jaipal @ Kabooter and accused Gayur. Accused Jaipal absented himself during the course of trial and was declared proclaimed offender.
5. Vide judgment dated 31.05.07 accused Pappu @ Wahab and Furkan @ Javed were convicted for offences u/s 302/34 IPC for committing murder of deceased Subhash and for offences u/s 307/37 IPC for committing attempt to Cont....
5murder of PW's Ashok and Ajmer. These two accused were also held guilty for having committed offence u/s 392/394/34 IPC and section 397 IPC.Vide same judgment accused Gayur was acquitted.
6. Accused Jameel @ Kalwa @ Naseem had also been declared absconder as he could not be apprehended intially. He was arrested on 16.11.04 in case FIR 497/04, u/s 25 A. Act registered at P.S. Kamla Market. Accused Jameel was arrested in present case when he made disclosure statement about his involvement in the case. After completing investigations chargesheet was filed against accused Jameel@ Kalwa @Naseem in this case.
7. On 29.03.05, a charge U/S 396/302/307/395/397 IPC read with section 120B IPC was framed against accused Jameel @ Kalwa @ Naseem. The accused did not plead guilty and claimed trial.
8. The Prosecution has examined as many as 43 witnesses in the case. Out of these 21 witnesses were examined during course of trial of accused Pappu, Furkan, Jaipal and Gayur. Some of these witnesses were recalled for Cont....
6trial of accused Jameel @ Kalwa and have been given same witness number for the sake of brevity. However, some of the witnesses have been given separate numbers and a few additional witnesses have also been examined being relevant qua accused Jameel .
9. Before proceeding further it would be relevant to refer to statement of prosecution witnesses in brief.
10. As already observed hereinabove accused Jameel was arrested in case FIR 497/04 U/s 25 Arms Act registered at police station Kamla Market on 04.11.04. PW-1A (inadvertently numbered as PW-1), ASI Veena was working as Duty officer at police station Kamla Market on 04.11.04 and had registered FIR No. 497/04 sent by ASI U.R. Khan. She proved carbon copy of FIR as Ex. PW- 1/A. She further stated that after registration of FIR further investigation of the case was handed over to ASI Mansab Ali.
11. PW-22 is ASI U R Khan (earlier examined as PW-19) was heading raiding party which had apprehended the accused on 04.11.04. He deposed how he along with Ct. Naresh Kumar, HC Raju Yadav, Id Mohd, Const Umar Mohd. and Cont....
7Const Sunder Gautam were on patrolling duty and had apprehended accused Jameel @ Kalwa on secret information and recovered a katta from his possession even as the accused tried to fire from it. He also deposed that he had prepared sketch of katta, two live cartridges and thereafter converted them to pulanda and sealed them with the seal of UR and seized them vide seizure memo Ex. PW- 22/B. He then prepared rukka Ex. PW- 22/A and got case FIR registered through Ct. Naresh. After registration of FIR further investigations of the case were handed over to ASI Mansab Ali who reached the spot whereupon PW-22 handed over all the documents to him. During his cross examination PW-22 denied having falsely implicated accused in the case.
12. The PW-29, HC Raju Yadav, and PW-33, Const. Naresh, were also the members of the raiding party headed by PW-22 and deposed on the lines of the investigating officer. The PW-29 also deposed about Ex PW29/A, the disclosure statement made by accused Jameel Ahmed, wherein he disclosed regarding his involvement in Cont....
8commission of offence in case FIR no. 497/04 ,while PW-33 proved disclosure statement Ex. PW- 30/A wherein accused Jameel had disclosed about commission of offence in case FIR no.108/96.
13. The PW-31, ASI Mansab Ali, had taken over the investigations of the case after registration of the case FIR 497/04 and had arrested the accused and had also recorded his disclosure statement wherein he disclosed about his involvement in case FIR 108/96 vide disclosure statement Ex. PW- 30/A and deposed regarding the same.
14. The PW-30, Sh. Sunil Kumar, is LDC from record room and produced judicial file of case FIR 497/04, u/s 27 Arms Act registered at police station Kamla Market which was decided by the concerned court on 04.07.05.
15. The PW-1, Ashok Kumar is the complainant who was accompanying his brother Subhash Chander on the fateful day. He deposed as per his complaint Ex. PW- 1/A and described the manner in which four persons had attacked his brother Subhash and fired upon him and then approached PW-1 and their driver Ajmer Singh who were Cont....
9sitting in car. He further described how accused Pappu had fired upon him causing him injury on back side of his left under arm and robbed him of his gold ring, gold chain , one citizen wrist watch and a bag containing Rs. 34,800/- cash and important documents. The PW-1 also narrated the manner in which their driver Ajmer Singh was hit by knife on back side of the neck by one of the four persons and stated that he had mentioned name of the person, who had injured Ajmer with knife, as Jameel and that accused Jameel could not be apprehended at that time. He further deposed on 23.11.04, he was informed by the police regarding arrest of Jameel and was requested to join judicial TIP. Accordingly PW-1 went to Tihar Jail and accused Jameel, who was also identified by PW-1 in the Court, was found to be the same person who had stabbed their driver Ajmer Singh. PW-1 was shown TIP proceedings mark 'X' and identified his signatures thereupon at points A & B.
16. During his cross examination by Ld. Defence counsel PW-1 stated that name of accused Jameel had been told to him by the Investigating Officer when he had apprehended Cont....
10the other accused persons and that other particulars regarding the parentage and address of accused had not been told to him by the Investigating Officer. He also stated that on 23.11.04 he had gone to Central Jail Tihar directly and not from the police station. He denied that Investigating Officer had shown him photographs of accused Jameel prior to the identification of accused before Ld. M.M.,at Central Jail. He also denied that accused Jameel was not present on the day of the incident. During his further cross examination by Ld. Defence counsel PW-1 clarified that Nasruddin and Bhendu, from whom they had gone to collect installments, did not accompany them to the car and that the owner of the rehri, from whom his brother Subhash was purchasing Rasbhari, had run away from the spot after seeing the incident of firing. He also stated that Ajmer Singh was stabbed and he himself was fired at immediately after firing on his brother Subhash and that they did not raise hue and cry due to fear.
17. The PW-2, Ajmer Singh is also one of the victims in the present case and deposed on the lines of PW-1. He Cont....
11described the manner in which accused Jameel, who was duly identified by PW-2 in the Court, had caused knife injuries on his back. He also deposed about having joined TIP proceedings on 23.11.04 and on being shown the said proceedings exhibited as mark 'X', he identified his signatures at point C & D thereupon. During his cross examination PW-2 admitted that he was still working with PW-1. He too reiterated that none from the jhuggis had accompanied Subhash and Ashok when they returned and that rehriwala fled from the spot on hearing fire shots. He also stated that Ashok and Subhash has sustained two fire shots each and he himself was stabbed with knife while he was trying to come out of car and that none came to the spot after hearing fire shots. PW-2 expressed his inability to describe the knife as assailants had come all of a sudden and that he had been stabbed only once by the accused Jameel. During his further examination he stated that he had gone to Central Jail Tihar on 23.11.04, on being asked by PW-1, and that he had been told the name of accused as Jameel. He, however, denied that Investigating Officer had Cont....
12told him about the height, colour, complexion and age of the accused before entering the jail for TIP or that he had visited police station 5-10 days before TIP. He denied that accused was not involved in the incident or that he had been shown photograph of accused Jameel at police station before TIP. Witness clarified that he had seen accused Jameel at the time of incident and in the Court and before that in TIP proceedings.
18. The PW-3, Satish Kumar Dhingra, and PW-23,Ashok Kumar , (earlier examined as PW-11) had identified dead body of Subhash and deposed regarding the same.
19. The PW-4, SI Roshan Singh; PW-5, SI Devender; PW- 8, Bhanwar Singh; PW-9, Ct. Vijender; PW-14, Satya Prakash; and PW-21, Sh. G.P. Singh then M.M. were not recalled for cross examination during course of trial of accused Jameel @ Kalwa as the statement of these witnesses pertained to investigations carried out in respect of the other accused whose trial had concluded with judgment dated 29.05.2004.
20. The PW-2A, ASI Veena, (inadvertently numbered as Cont....
13PW-2) was working as DO at police station Darya Ganj on 27.11.02 and had recorded DD No. 13A regarding departure of Insp. Raghubir Prasad, Addl, SHO, police station Darya Ganj to Tis Hazari Courts in connection with case FIR 108/96. She proved the true copy of DD entry as Ex.PW- 2/A and copy of DD No. 16, made by Insp. Raghubir Prasad at 12.30 pm on same day, as Ex.PW-2/B.
21. The PW-21A, SI Subhash Chander, (inadvertently numbered as PW-21) is the DO. He had recorded the case FIR in the present case and proved carbon copy of FIR as Ex.PW-21/A. He also stated that he had recorded DD No. 71A regarding registration of FIR and sent special report of the case through HC Bhoj Shri and HC Ashok.
22. The PW-37, Insp. Satish Kain, (earlier examined as PW-18) is the Investigating Officer of the case. He deposed that on 10.03.96 he was posted as Addl. SHO at police station Darya Ganj and was present in the area of police station Darya Ganj, on that day, in connection with arrangement of a political rally. At about 11.15 am, he received call from wireless that a Maruti Car bearing Cont....
14registration No. DL4CD4489 had fled away towards samadhi of Indra Gandhi after firing. The PW37 proceeded to the spot at Moolchand Basti alongwith Ct. Amarpal and found SHO present there. Injured were reported to have been removed to JPN hospital and PW-37 also went there. He found injured Ashok and Subhash, along with their driver Ajmer Singh, admitted in the hospital. Injured Subhash was unfit for statement while Ashok was declared to be fit. The PW-37 recorded statement of injured Ashok vide Ex.PW-1/A and made endorsement there upon vide Ex.PW-18/A and got case FIR registered through Ct. Amarpal. During the course of investigations he called crime team and got the spot photographed and also collect exhibits i.e. earth control, blood sample and two fired empty cartridges. These articles were sealed separately with the seal of SK and seized vide memos Ex.PW-15/A to 15/C and were later deposited in Malkhana. PW-37 also flashed wireless message regarding Maruti Car belonging to deceased and recorded statement of witnesses. On 11.03.96 dead body of deceased Subhash was handed over to his relatives after postmortem and Cont....
15identification by relatives. Parcels handed over by the doctor, who conducted postmortem, were also seized and deposited in Malkhana. Site plan Ex.PW-19/F was prepared and scaled site plan was also got prepared at the instance of complainant.
23. On 14.05.96 accused Jaipal @ Kabootar and Gayur (since acquitted) and Pappu (since convicted) were arrested on secret information. One Desi Katta belonging to accused Pappu was recovered from house of accused Gayur. Accused Furqan (since convicted) was also arrested later on. Accused Furqan made disclosure that accused Jameel @ Kalwa and others were also involved in the incident. During the course of investigations exhibits were sent to FSL. After completing investigations charge sheet was prepared and filed on 05.06.96. Accused Jameel @ Kalwa, Shahid and Meharban were placed in Column no.2 as they could not be arrested.
24. During his cross examination PW-37 stated that he had recorded statement of TSR driver who had taken the injured to hospital and that he had not found rehri at the spot. He denied that portion marked DX-1 to DX-2, on the Cont....
16site plan, was not in his hand. He denied that he had not placed the actual statement of injured on record or that Ex.PW-1/A was recorded by him of his own. He admitted that in the disclosure statement of Furqan, Ex.PW-23/A, parentage and address of accused Jameel was not mentioned and that the other convicted and acquitted accused had not disclosed about involvement of accused Jameel @ Kalwa. He denied that he had not conducted investigations property or had wrongly placed accused Jameel @ Kalwa in column no.2 or that accused Furqan had not named him.
25. PW-37 was recalled for further examination on 24.02.09, pursuant to applicationU/S 311 Cr.P.C. filed on behalf of Ld Addl. PP. He tendered the FSL result and the same was exhibited as Ex.PW-18/A.
26. PW-38 , ACP A.P.S. Cheema, was posted as SHO at police station Darya Ganj at the relevant time and had gone to the spot of incident on 10.03.96 on receipt of call. He stated that after Insp. Satish Kumar reached spot he gave necessary instructions to him to conduct proceedings and Cont....
17left.
27. PW-24, 25, 26, 27, 34 and 36 had joined investigations of the case with the Investigating Officer at some stage or the other and deposed regarding the role played by them during the course of investigations carried out by the Investigating Officer. The PW-25 had got case FIR registered while PW-26 was present with the investigating officer when duty constable handed over blood stained clothes of deceased, deformed bullet and jacket, sealed with the seal of hospital and specimen seal to the Investigating Officer and deposed regarding the same. The PW-27 (earlier examined as PW-10) was posted as HC at police station Geeta Colony and was working as DO on 11.03.96 and had seized Maruti Car bearing no. DL4CD4489 brought by Ct. Bijender vide DD No. 5B. He proved the seizure memo of said car as Ex.PW-10/A. The PW-34 (earlier examined as PW-13) was present with the Investigating Officer on 11.03.96 and had gone to JPN hospital mortuary for postmortem examination of deceased Subhash and deposed regarding the same.
Cont....
18
28. The PW-36 Insp. Rakesh Bhatnagar (earlier examined as PW-16) had also gone to the spot on 10.03.96 on receipt of DD no. 16A. After PW-37 and PW-38 reached the spot and proceeded to hospital, PW-36 was left behind to guard the spot. He also joined proceedings with the Investigating Officer after he returned to the spot and identified his signatures on memos Ex.PW-15/A to 15/C on which he had signed as witness. He further stated that he had also joined investigations with Investigating Officer on 11.03.96 and identified his signatures on Ex.PW-15/E, which was the seizure memo vide which Investigating Officer had seized parcels sealed with the seal of MAMC College and specimen seal of the hospital. During his cross examination, PW-36 stated that all the documents were prepared at the spot and that he was the first one to reach the spot.
29. The PW-24 had also joined investigations with the Investigating Officer on 11.04.96 and 12.04.96, when accused Mohd. Furqan was brought from Meerut Jail by team of police officials from police station Darya Ganj, and his disclosure statement was recorded. He proved his Cont....
19signatures on disclosure statement Ex.PW-24/A and stated that accused had disclosed the name of accused Jameel and Nafees.
30. The PW-39 (earlier examined as PW-12) was working as Incharge of the crime team on 10.03.96 and had gone to the place of occurrence at Moolchand Basti, Yamuna Pushta (backside of Shantiwan) on being called by Investigating Officer. He stated that he had inspected the spot and prepared the report which was handed over to the Investigating Officer.
31. PW-40 is HC Satya Prakash (earlier examined as PW-
14) who was posted as photographer and had taken four photographs of the spot which were proved by him as Ex.PW-14/A-1 to A-4. The negatives were proved as Ex.PW- 14/A-5 to A-8.
32. PW-43, Insp. Raghubir Prasad, had taken up investigations of this case pursuant to arrest of accused Jameel in case FIR 497/04 U/S 25 Arms Act registered at police station Kamla Market. He stated that on 05.11.04 on receipt of information vide DD No. 58B, Ex.PW-43/A, from Cont....
20ASI U.R. Khan regarding arrest of accused Jameel @ Kalwa and his disclosure about commission of offence in the case, he went to office of special staff at Kamla Market. He recorded statement of ASI U.R. Khan and ASI Mansab Ali and collected copies of relevant statements. On 16.11.04 accused Jameel @ Kalwa was formally arrested in the present case with the permission of the court. He proved the arrest memo of accused as Ex.PW-28/A. He also stated that on 23.11.04 he had got judicial TIP of accused conducted and accused was identified by witnesses Ashok Kumar and Ajmer Singh on that day. He further deposed that on 27.11.04 he had taken accused on PC remand for one day and accused had made disclosure statement Ex.PW-43/B during the course of investigations. The pointing out memo of place of occurrence, prepared at the instance of accused, was proved as Ex.PW-43/C and pointing out memo of the place where accused had thrown the weapon of offence was proved as Ex.Pw-43/D. The PW-43 also proved the documents regarding TIP proceedings as Ex.PW-43/E and 43/F. After completing investigations he filed the Cont....
21supplementary charge sheet in respect of accused Jameel @ Kalwa in the court.
33. PW-28, SI Sudhir Kumar, was present during the investigations whereby accused Jameel @ Kalwa was arrested by PW-22 and proved his signatures on arrest memo Ex.PW-28/A.
34. PW-32, Smt. Archana Sinha, Ld MM had conducted judicial TIP proceedings. She deposed that TIP of accused Jameel @ Kalwa and Naseem was conducted on 23.11.04 at Central jail during which he was correctly identified by the witnesses Ashok Kumar and Ajmer Singh. She proved the TIP proceedings as Ex.PW-32/A and identified her signatures there upon.
35. PW-35, Sh. B.S. Bhati, is the record clerk from LNJP hospital who identified signatures of Dr. Anita on MLC of injured Ashok Kumar and proved same as Ex.PW-17/A. He stated that Dr. Anita had left the hospital and her present whereabouts were not known.
36. PW-41 Dr. P.C. Dixit (earlier examined as PW-20) had conducted postmortem examination on the dead body of Cont....
22deceased Subhash Chander and prepared postmortem report Ex.PW-20/A. He detailed about three injuries found by him on the person of deceased and stated that in his opinion the death was due to cranio cerebral damage consequent upon bullet injury to the head via injury no. 1-3. All the injuries were ante mortem ad recent. Injury no. 1-3 was caused by a fire arm ammunition discharged from a close range. Injury no.2 could be caused by blunt force/surface. Injury no. 1-3 was sufficient to cause death in ordinary course of nature. He further deposed that after the postmortem, report in original, dead body and inquest papers, nine in number, were handed over to SI Rakesh Bhatnagar from police station Darya Ganj.
37. PW-42, Dr. Chaman Prakash, proved the MLC of deceased Subhash Chander as Ex.PW-17/C. This witness was recalled for further examination pursuant to application U/S 311 Cr.P.C. filed on behalf of Ld Addl. PP. During his further examination PW-42 proved the MLC of Ajmer Singh as Ex.PW-17/B and MLC of Ashok as Ex.PW-17/A.
38. After prosecution concluded its evidence statement of Cont....
23accused was recorded. The accused termed all the incriminating evidence against him to be incorrect and stated that he had been falsely implicated in the case after being lifted from his house. He also stated that his photographs had been shown to public witnesses before TIP and that he had nothing to do with the present case. He examined one Naseem Khan in his defence.
39. The DW-1,Naseem Khan, deposed that in the year 2004, in the month of November, he had gone to house of Jameel and on that day Jameel was taken by some police officials in the evening time . DW-1 asked as to where they were taking Jameel but they told him to step aside. The DW- 1 went along with brother of Jameel to police station Jahangirpuri but was turned away from there and was told that they have not arrested Jameel. Later, they came to know that accused has been falsely implicated in a case of katta. During his cross examination by Ld. Addl. P.P. DW-1 stated that none of the policemen were in uniform and that they themselves had told them that they were police walas. He could not tell details of family members of accused who Cont....
24were present in the house at that time. During his further cross examination he stated that about 15-20 persons from neighborhood had collected at that time. He admitted that prior to that day he had never visited the house of Jameel in connection with any work nor was he on visiting terms with him at any point of time. He also admitted that he had not filed any complaint against the false implication of the accused or against the misbehavior by the police officials.
40. No other witness was examined in his defence by the accused. An application u/s 311 Cr.P.C. was filed thereafter by Ld. Addl. P.P. for recalling PW-37 and PW-42 for further examination. The said application was allowed vide order dated 07.02.09 and PW-37, Inspector Satish Kain, and PW- 42, Dr. Chaman Prakash, were examined further.
41. Additional statement of accused was recorded pursuant to further examination of PW-37 & PW-42. Accused denied incriminating evidence against him as incorrect. He also declined to lead any further evidence in defence.
42. Arguments have been addressed by Ld. Addl. P.P. as Cont....
25well as Sh. S.P. Yadav, Ld. Counsel for the accused. Ld. Addl. P.P. has contended that prosecution has successfully proved it case against accused and that material public witnesses have fully supported the case of prosecution and their testimony by itself proves the guilt of accused beyond reasonable doubt. It is accordingly prayed that accused be convicted for offences for which he has been charged with.
43. Ld. Defence Counsel, on the other hand, has contended that case of prosecution is full of contradictions and cannot be relied upon. His first contention is that prosecution could not establish the identity of accused to be the same as Jameel as had been named by co-accused Furkan in his disclosure statement recorded on 12.04.96 since neither parentage nor any other particulars of accused Jameel were mentioned therein. Moreover, it is stated that none of the other co-accused have named accused Jameel as one of the participants in the alleged offence and in these circumstances he states that disclosure statement made by accused Furkan and the disclosure statement of accused Jameel cannot be relied upon at all. He has further Cont....
26contended that both the public witnesses had been shown the photographs of accused prior to TIP to enable the witnesses to identify him and hence the said proceedings cannot be relied upon. It has also been contended that the MLCs of injured do not stand proved in accordance with law and on these grounds he has prayed that accused be acquitted of offences he has been charged with in the present case.
44. I have heard Ld. Addl. P.P. as well as Ld. Defence counsel and also perused the record carefully. In the present case accused Jameel is facing trial for having entered into criminal conspiracy to loot businessman of Rohtak, Haryana by using arms and fire arms. The said conspiracy was entered into between accused Jameel alongwith his co-accused Pappu @ Wahab, Furkan @ Javed (since convicted), Naifz, Jaipal and Meharban (who are absconding) and Gayur since acquitted. Pursuant to said conspiracy accused Pappu @ Wahab, Furkan @ Javed, Nafiz @ Shahid and Jameel reached Yamuna pusta and way laid Subhash (deceased), his brother Ashok and driver Ajmer. In Cont....
27the sequence of events that follow Subhash was murdered and there was attempt to murder Ajmer and Ashok. Jewellery and cash belonging to victims was taken way by the accused persons who fled from the spot in Maruti Car no. DL4CB4489 belonging to the victim Subhash. All the accused were armed with deadly weapons at the time of commission of the offence.
45. The PW-1 Ashok Kumar and PW-2 Ajmer Singh, the two victims, have deposed with uniformity and clarity against the accused. They have also deposed about their having joined TIP proceedings on 23.11.04 and having identified accused Jameel @ Kalwa @ Nasim during the said proceedings. Both PW-1 & PW-2 have deposed that on 10.03.96 at about 6:45 am PW1 Ashok had started from Rohtak, with his deceased brother Subhash, in their Maruti car No. DL4CB4489, which was driven by their driver PW-2, Ajmer Singh, for collection of their dues and that while traveling through different places they reached Mool Chand Basti, near Rajghat to collect money from Nasruddin and Bhendu. As PW-1 and deceased returned to car, deceased Cont....
28went to buy some rasbharis. At that time four persons came near rehri of rasbhari and Subhash was fired upon by one of them. Out of said four persons three came towards PW-1. They were armed with country made kattas and knife. As PW-1 tried to come out of car he was fired upon by Pappu (already convicted) and sustained injury on the back side of left underarm. Assailants then threatened PW-1 and forcibly took away his gold ring, gold chain and citizen watch. They also snatched away his yellow colored bag, containing cash in sum of Rs. 34,800/- and important documents, and fled from the spot in the car belonging to PW-1 and his brother. The PW-2 was hit by knife on back side of neck by one of those persons and the person who had given knife blow to PW-2 was accused Jameel, who was duly identified by PW-1 and PW-2 in the Court.
46. It is further brought out from their testimonies that on 23.11.04 PW-1 as well as PW-2 went to Tihar Jail to participate in TIP proceedings and identified accused Jameel as same person who had given knife blow to PW-2.
47. Both these PWs have been consistent in their Cont....
29statement as regards the incident and identification of the accused Jameel and have corroborated each other on all material aspects. Despite their detailed cross examination by Ld. Counsel for Jameel no material discrepancy has been brought out in the testimonies of PW-1 and PW-2. Rather they have refuted all suggestions that prior to TIP proceeding they had been tutored in any manner by the IO or had been shown photographs of the accused at the police station, to enable them to identify the accused during the TIP proceedings.
48. Ld. Defence Counsel has contended that prosecution has failed to establish the identity of accused beyond reasonable doubt because the disclosure statement of co- accused Furkan is devoid of any material particulars regarding parentage, address etc of accused Jameel. This contention of Ld. Counsel for accused does not inspire much confidence since it is not only the Ex.PW-24/A, disclosure of Furkan, but testimony of PW-1 and PW-2 and the other evidence on record which establishes the identity of accused beyond reasonable doubt. Ex.PW-24/A only corroborates the Cont....
30other material on record.
49. Section 10 of the Indian Evidence Act, 1872 (hereinafter referred to as IEA) makes things said or done by a conspirator with reference to common design a relevant fact as against the other conspirators. The Section 30 of IEA provides further that where more persons than one are being tried jointly for the same offence and a confession is made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession. It is, however, also a settled proposition of law that such a confession U/S 30 of a co-accused is not evidence and it may be taken into consideration only as an element in consideration of the other evidence.
50. It has been held in case of Sidharth and Anr. Vs State of Bihar 2005 (12) SCC 545 that '' It is true that the confession made by a co-accused shall not be the sole basis for a conviction. This court in Kashmira Singh Vs. State of M.P. held that the confession of an accused person is not Cont....
31evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands, even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.''
51. In the present case the identity of accused Jameel stands established by conjoint reading of testimonies of PW- 1 and PW-2, both of whom are victims and were injured in the incident. Despite cross examination of PW-1 and PW-2 by Ld Defence Counsel the testimony of these witnesses as Cont....
32regards the incident and the identity of the accused Jameel could not be shaken. In these facts and circumstances, lack of particulars of parentage, address etc of accused in Ex. PW-24/A, disclosure statement of accused Furqan, and name of accused Jameel not having been mentioned in the disclosure statement of other co-accused cannot be made basis for discarding the otherwise reliable and trustworthy testimonies of PW-1 and PW-2. Though a defence has been taken that photograph of accused was shown to the public witnesses prior to TIP to enable them to identify accused before Ld MM who had conducted the TIP proceedings, it is apparent that this defence was taken as an after thought after the witnesses correctly identified the accused Jameel in the TIP proceedings.
52. Another contention raised by Ld Defence Counsel is that the MLCs of injured Ajmer and Ashok do not stand proved in accordance with law as the doctors who had examined the injured could not be produced for examination before Court and PW-42 who was deputed in place of the concerned doctors could not identify hand writing and Cont....
33signatures of Dr. Vipin Gupta and Dr. Anita, who had prepared MLC Ex.PW-17/D of Ajmer and Ex.PW-17/A MLC of injured Ashok, having joined hospital in the year 1999, after these two doctors had left the hospital. In this regard it is seen from testimony of PW-42 that though he has been unable to identify the hand writing and signatures of the examining doctors, who had examined injured Ajmer Singh and Ashok on 10.03.96, he has deposed as per record as to the injuries and has clarified that there was no other doctor presently available in his department who had either worked with Dr. Vipin Gupta or Dr. Anita to be able to identify their hand writing and signatures. Non examination of the concerned doctors, however, does not help the accused at all since the testimony of material witnesses namely PW-1 and PW-2 inspires sufficient confidence as to the manner in which these injuries are stated to have been sustained. It has been held in the case of State of MP Vs. Dayal Sahu, 2005 AIR (SC) 3570, that non examination of doctor and non production of doctor's report would not be fatal to the prosecution case, if the statements of prosecution witnesses Cont....
34inspires confidence. Although the said case was one where accused was facing trial for an offence U/S 376 IPC, the principle of law laid regarding appreciation of medical evidence would be applicable in the facts and circumstances of present case as well. The handwriting and signatures of doctor Anita ,even otherwise, stand proved by PW 35, concerned record clerk.
53. It is not part of defence taken by the accused that the injuries sustained by PW-1 and PW-2 were self inflicted or could have been inflicted in any other manner than put forth by the prosecution and thus testimony of both the witnesses can be relied upon even in absence of corroboration from medical evidence, as they are least likely to shield the real culprits.
54. A discrepancy has been pointed out in testimonies of PW-1 and PW-2 as regard the place where injury was inflicted in as much as PW-1 has stated that accused Jameel had given a blow with knife on the backside of the neck of PW-2 whereas PW-2 has stated that he had been given a knife blow on his back by the accused. This Cont....
35discrepancy is of very minor nature. Even otherwise the version of PW-2 is duly supported by noting of injury on MLC Ex.PW-17/D wherein injured Ajmer was found to be having a stab wound over lower back region caused by a sharp weapon. Bleeding was also present. Similarly PW-1 and PW-2 have stated that PW-1 received gun shot wound though his MLC shows injury by a sharp edged weapon. Though there has been slight exaggeration of injury by the witnesses this by itself is not sufficient to discard the entire testimony of these witnesses.
55. Another contention raised by Ld Counsel for accused is that the Investigating Officer failed to join public witnesses in investigations and did not record statements of rehriwala or Nasiruddin @ Nasso or Bhendu which shows that the story put forth by prosecution is not correct. This contention of Ld Counsel for accused is also not maintainable in light of evidence which has come on record. Both PW-1 and PW-2 have stated during their cross examination that their customers Nasiruddin and Bhendu had not accompanied PW-1 and Subhash to Pushta, where Cont....
36their car was parked, when they returned there after collecting money. They have also stated the rehriwala ran away from the spot on hearing firing of shots. It is well known that even in ordinary cases, witnesses are not inclined to join investigations and even if they do they are not inclined to depose against the accused. One of the reasons is that they do not have courage to depose because of threats to their lives. In the instant case, even assuming that any public witness was available, the possibility of such witness coming forth to join investigations and to lend support to the family of the victim appears to be remote, considering that the offenders, including the accused had committed their illegal acts, armed with deadly weapons, in 9broad day light.
56. Some other minor discrepancies have been pointed out in testimonies of PW-1 and PW-2 by Ld Defence Counsel in as much as PW-1 had stated that three out of four accused were armed with country made kattas and one was having knife while PW-2 had stated that out of four, two persons were having country made kattas and other two Cont....
37were having knives in their hands and that PW-1 has stated that he was fired upon once only while PW-2 has stated that both Ashok and Subhash sustained two fire shots each. All these contradictions taken together do not destroy the thread of uniformity present in the statement of PW-1 and PW-2. There has been a consistent judicial opinion that minor discrepancies are bound to be there in each and every case and such discrepancies should not weigh with the court so long as they do not materially effect the prosecution case. In case discrepancies pointed out are in realm of pebbles, court should tread upon it, but if the same are boulders, court should not make an attempt to jump over the same. It has been held in case of Ughar Ahir Vs. State of Haryana, AIR 1965 SC 277 that one hardly comes across a witness whose evidence does not contain a grain of untruth or exaggerations and also embellishments. It has further been held in case of State of Maharashtra Vs. Krishnamurti, AIR 1981 SC 617 that a minor discrepancy between the statement of a witness in examination in chief and cross examination should not effect his credibility.
Cont....
38
57. The truthfulness of a witness has to be tested in the whole. When more than one witness of a particular fact are examined then there are bound to be some discrepancies in the version given by the witness. It has been held in case of Leela Ram Vs. State of Haryana and Anr., JT 1999 SC 274 that there is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety, incidentally, corroboration of evidence with mathematical necessities cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reason therefore should not render the evidence of eye witness unbelievable. Trivial discrepancies ought not be obliterate an otherwise acceptable evidence. The court shall have to bear in mind that different people/witnesses react differently under different situations. Whereas some becomes speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong Cont....
39should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction to discard a piece of evidence on the ground of his reaction and not falling within a set pattern is unproductive and a pedantic exercise.
58. In the present case also PW-1 and PW-2 appear to have perceived the situation as per their own understanding and deposed accordingly. Rather, these minor discrepancies, are a pointer towards truthfulness of the testimonies of these witnesses.
59. Another contention raised by Ld Defence Counsel is that Ex.PW-43/B, disclosure statement of accused, cannot be read in evidence since no recovery was effected pursuant to the said disclosure. It is otherwise also contended that the said statement was not made by the accused Jameel and thumb impression there upon is of some other person. In this regard it is seen that the prosecution has relied upon Ex.PW-43/B, the disclosure statement of accused Jameel, and Ex.PW-24/A, the disclosure statement made by accused Furqan, to prove consensus to commit offence amongst the Cont....
40accused persons. In order to prove existence of common intention there should be some direct evidence, yet there are rarely cases where such an evidence would be available. However, same can be inferred even from the circumstances given rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. In the present case when the conduct of accused, as is brought out from the testimony of witnesses, is judged then even without relying upon Ex.PW-43/B and Ex.PW- 24/A, the existence of agreement to commit an offence between accused Jameel and his co-accused is brought out. Firstly the accused had participated in commission of offence with his co-accused and had played an active role by restraining victim Ajmer from coming out of the car and then inflicted injury with knife on him, even though only a single blow. After snatching away jewelery and cash from complainant Ashok, accused Jameel fled from the place of incident, alongwith his co-accused, in the car taken from their victims. Thus the entire conduct of the accused Jameel points towards common intention between him and his co-
Cont....
41accused to commit the offences in the present case in a preplanned manner. Ex PW 43/B and Ex 24/A become relevant only fortify this conclusion. In these circumstances the fact that accused had inflicted only one knife blow would not make gravity of offences any less.
60. As far as absence of recovery of incriminating material pursuant to the disclosure statement made by accused is concerned, it has to be kept in mind that accused was apprehended after about 8 ½ years of the incident and there can be no possibility of recovery of any incriminating material after such a long span of time.
61. Lastly it has been contended by Ld Counsel that accused has been acquitted in case FIR 497/04 registered at Police Station Kamla Market U/S 27 Arms and in these circumstances his disclosure statement Ex.PW-30/A, on the basis of which he was arrested in present case stands disbelieved by the court and subsequent investigations qua accused Jameel in the present case would be vitiated. This contention of Ld Counsel for accused also cannot be upheld since every case is to be governed by its own facts and Cont....
42circumstances. It may be so that accused was arrested in the present case on the basis of information given to the Investigating Officer by officials of police station Kamla Market pursuant to arrest of accused in case FIR 497/04 yet the investigating agency had confirmed that its investigations were proceeding in right direction by getting TIP of accused conducted, soon after his arrest in the present case. Thus, any doubt as to the identity of the accused Jameel were clarified at an early stage to proceed further with investigations against him.
62. The nutshell of the forgoing discussion is that in my considered opinion the prosecution has succeeded in proving that accused Jameel acted in furtherance of his common intention with his co-accused Pappu @ Wahab and Furqan @ Javed (since convicted) and Nafees (since absconding) for looting businessman of Rohtak, Haryana by using firearms and murdered Subhash and committed an offence U/S 302/34 IPC and also committed offence U/S 307/34 IPC by attempting to murder PW's Ashok and Ajmer. Prosecution has also proved that accused acted in furtherance of his Cont....
43common intention with other co accused and committed robbery and voluntarily caused hurt to Ajmer, Ashok and Subhash in commission of the robbery and is hence liable for offences U/s 392/394/34 IPC and U/s Section 397 IPC for using knife, a deadly weapon in commission of offence I accordingly hold accused Jameel guilty of offences U/S 302/307/392/394/397/34 IPC and convict him for the same.
63. Now to come up for hearing on the point of sentence on 30.03.09.
Announced in the Open Court (ILLA RAWAT)
On 28th March, 2009 ASJ (FTC) CENTRAL:DELHI
Cont....