Delhi District Court
State vs 1. Salma W/O. Md. Dulal, R/O. V-375, Gali on 22 March, 2010
1
IN THE COURT OF SH. SANJAY GARG: ADDITIONAL SESSIONS
JUDGE; (EAST) FTC : KARKADOOMA COURT: DELHI.
SESSIONS CASE No. 107/09
FIR No.480/02
U/S: 395/397/412/120B/458 IPC and 14 Foreigners Act
P.S: Preet Vihar
State Versus 1. Salma W/o. Md. Dulal, R/o. V-375, Gali
No.24,Vijay Park, Delhi.
Vill. Tafalbarip.S. Ramanda, Distt.
Bagerhat Bangladesh.
2. Dulal S/o. Salam, R/o. V-375, Gali
No.24,Vijay Park, Delhi.
Vill. Tafalbarip.S. Ramanda, Distt. Bager
Hat, Bangladesh.
3. Rokan Talukdar S/o. Yusuf Ali, R/o. Vill.
Dhansa Garth,P.S Moral Ganj, Distt.
Bagerhat, Bangladesh. (File separated)
4. Aabuk @ Kabir S/o. Yusuf Ali R/o. Vill.
Dhansa Garth, P.S Moral Ganj, Distt.
Bagerhat, Bangladesh.
5. Aslam @ Mohd. Shakur S/o. Mohd. Sarwar
r/o. Vill. Chalita Baniya, P.S. Moral Ganj,
Distt. Bagerhat, Bangladesh.
6. Saidul @ Sekh @ Afjal S/o. Abdul Latif
R/o. Vill. Baropari, P.S. Moral Ganj, Distt.
Bagerhat, Bangladesh.
7. Mohd. Dulal @ Mohd. Rafiq S/o. Abdul Latif
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R/o. Vill. Baropari, P.S. Moral Ganj, Distt.
Bagerhat, Bangladesh.
8. Mohd. Ismail Sekh S/o. Mohd. Afsaf Ali Sekh
R/o. Vill. Baroikhali, P.S. Moral Ganj, Distt.
Bagerhat, Bangladesh.
9. Abul Akun @ Mota Babul S/o. Yusuf Ali,
R/o. Vill. Baropari, P.S. Moral Ganj, Distt.
Bagerhat, Bangladesh. (File separated)
10. Abujafar S/o. Taib Ali R/o. Vill. Chipa
Baraokhali, P.S. Moral Ganj, Distt. Bagerhat
Bangladesh. (File separated)
11. Abdul Ali Khan S/o. Abdul Bahid Khan
r/o. Vill. Chalita Baniya, P.S. Moral Ganj,
Distt. Bagerhat, Bangladesh. (File separated)
12. Mohd. Rashid S/o. Mlohd. Gani R/o.
Sanyasi P.S. Moral Ganj,Distt.
Distt. Bagerhat, Bangladesh.
(Discharged)
DATE OF INSTITUTION : 16.4.03
JUDGEMENT RESERVED ON : 15.3.10
JUDGEMENT DELIVERED ON : 20.3.10
JUDGMENT
1. The brief facts of the case are that in the intervening night of 28/29.11.02 DD No. 8A at about 4.54 a.m was recorded in P.S. Preet Vihar. On this, PW18 ASI Narender Singh along with Ct. Amit reached at 3 the spot i.e. D-152, Preet Vihar. Out side the house, he noticed that a grill and glass from the window near the A/C was removed. Inside the house, he found that blood was scattered and other articles were also found scattered there. He came to know that the injured has been rushed to the hospital. Leaving constable at the spot he reached at the hospital and collected MLC of the injured persons and recorded the statement of PW1 Sh. Piyush Aggarwal. He prepared rukka Ex.PW18/A and sent it through Ct. Amit for registration of an FIR.
2. PW-12 SI. B.P. Singh reached at the spot and further investigation was handed over to him by PW-18. Crime Team with dog squad reached at the spot and lifted chance prints. PW-12 seized various articles from the spot having bloodstains. He seized a churra recovered from the spot and at the instance of Shyam Sunder Aggarwal, father of the complainant, prepared site plan Ex. PW12/A. On 06/12/02, PW-17 Inspector Dinesh Tiwari who was posted in the STF ( Bangladeshi Cell, North East District), to solve this case, a joint team headed by him was constituted. He received a secret information and on that basis, arrested accused Dulal from Gokal puri Bus Stand and recovered some looted properties from his possession and at the instance of accused Dulal, his wife Salma was also apprehended from his house at Vijay Park and her instance, three rexin bags containing looted property were recovered.
3. On 18/12/02, PW-24 SI Mukesh Kumar of PS Mangol Puri 4 conducted a raid at Jhil Wala Park, Saraswati Vihar and apprehended 10 persons who had assembled there and were planning to commit a docoity. They were arrested under section 399/402/186/353/307 IPC and u/s. 25/27 Arms Act and 14 Foreigners Act.
4. On 18.12.02, the investigation of this case was handed over to PW12 Sh B.P.Sharma and on the basis of the production warrant, he arrested accused Saidul @ Sheikh, Mohd. Dulal @ Rafiq, Mohd. Ismile Sheikh, Jaffar, Abdul Ali Khan, Abul @ Akun, Abul @ Kabir and Aslma @ Mohd. Sakur. During their interrogation, all the accused made disclosure statements about their involvement in the present case. PW-20 Inspector Devender Singh on 10/02/03 arrested accused Md. Rashid in the court. During interrogation, he made disclosure statement about his involvement in the present case. After investigation, police filed charge sheet against 12 accused persons under section 395/397/412/458/120B IPC and u/s.14 Foreigners Act .
5. After the receiving case file on committal, after hearing the accused persons, ld. Predecessor of this court framed charges against all the accused except accused Mohd. Rashid, under Section 395/397/458/34 IPC, to which they pleaded not guilty and claimed trial. Charge under section 412 IPC was given to accused Salma, Rokan Talukdar, Md. Dulal, Abdul Jaffar and Abdul Ali Khan to which they pleaded not guilty and claim trial.
6. Charges under Section 14 Foreigners Act were given to accused 5 Salma, Abujafar and Abdul Ali Khan to which they pleaded not guilty and claimed trial. Vide order dated 02/01/04, accused Rashid was discharged from the all charges. Vide order dated 08/09/09, charges under section 14 Foreigners Act, were given to accused Dulal S/o. Salam, Saidul @ Sheikh S/o. Sh. Abdul Latif, Md. Ismile Sheikh S/o. Sh. Mohd Asfar Ali Sheikh, Aslam @ Mohd. Sakoor S/o. Sh. Mohd. Sarwar and Abul @ Kabir S/o. Sh. Mohd. Yusuf to which they pleaded not guilty and claimed trial. Charge under Section 14 of Foreigners Act was given to accused Md. Dulal @ Rafiq S/o. Abdul Latif on 11/09/09 to which he pleaded not guilty and claimed trial. Charge under Section 14 of the Foreigners Act was given to accused Abul Akun @ Mota S/o. Sh. Yusuf Ali Khan on 24/09/09 to which he pleaded not guilty and claimed trial.
7. In support of its case the prosecution examined 24 witnesses. PW-1 Piyush Aggarwal is the complainant. He proved his complaint Ex.PW1/A and photographs of the spot Ex.PW22/1 to PW22/15. PW-2 HC Rajesh Kumar proved photographs Ex.P-1 to P-13 and negatives as Ex.PW14/1 to PW14/26. PW-3 Ct. Radhey Kishan is the formal witness who on 29.11.02 delivered the copy of the FIR at the house of the concerned M.M. PW-4 Shishir Bhushan is one of the victim and eye witness. PW-5 HC Virender was working as duty officer on 29.11.02, he proved DD No. 8A as Ex.PW5/A. PW6 Sh. Ali Sher is a public witness, he admitted his signatures on seizure memo Ex.PW6/A. PW-7 ASI Chetram, Finger Print Expert proved his report Ex.PW7/A. PW-8 WHC Rekha Sharma was accompanying PW-17 Inspector Dinesh Tiwari on 6.12.02 6 when accused Salma was arrested. PW-9 Ct. Ajeet Singh alongwith PW-18 on 29.11.02 reached at the spot. He had taken the rukka to P.S. Preet Vihar for registration of the FIR. PW-10A Ct. Sanjay was given up on the request of Ld. APP. PW-10 SI Bhushan Kumar Azad proved the articles recovered from accused Dulal as Ex.PW10/A, arrest memo of accused Salma and Dulal as Ex.PW10/B and PW10/C, personal search memo of accused Dulal Ex.PW10/D. PW-11 ASI Anita proved the FIR Ex.PW11/A. PW-12 Inspector B.P. Sharma reached at the spot on 29.11.02, he proved seizure memo of various articles seized from spot as Ex.PW12/A and and PW12/B, sketch of the chhura recovered from spot Ex.PW12/C, site plan Ex.PW12/D. He also proved arrest of eight accused persons namely Saidul @ Sheikh, Mohd. Dulal @ Rafiq, Mohd. Ismile Sheikh, Jaffar, Abdul Ali Khan, Abul @ Akun, Abul @ Kabir, Aslam @ Mohd. Sakur as Ex.PW12/E-1 to PW12/E-8 and their disclosure statements Ex.PW12/F-1 to PW12/F-8. PW-13 Sh. Rajnish Kumar Gupta, Ld. ADJ proved the proceedings of TIP dated 7.12.02 conducted by him against accused Dulal and Rokan Talukdar as a Metropolitan Magistrate as Ex.PW13/B. PW14 Inspector Ram Avtar proved disclosure statement of accused Dulal and Salma as Ex.PW14/A and PW14/B. PW-15 HC Ram Pal was given up on the request of Ld. APP. PW-16 SI Sukhvinder had arrested accused Aslam @ Sabir, Abul Akun, Abul Kabir, Mohd. Dulal, Saidul and Mohd. Ismile in FIR No. 872/02 P.S. Saraswati Vihar on 8.12.02. PW-17 Inspector Dinesh Tiwari was posted in STF (Bangladeshi Cell) and to solve this case a team headed by him was constituted. He 7 has apprehended accused Dulal and Salma on 6.12.02. PW-18 ASI Narender Singh reached at the spot on 29.11.02, he proved rukka Ex.PW18/A. PW-19 Dr. Jatinder Kumar, Senior Neuro Surgeon, Anand Hospital proved the MLCs of patient Shishir and Piyush as Ex.PW19/A and PW19/B. PW-20 Inspector Devender Singh was working as SHO Preet Vihar on 29.11.02 and he did some investigation in this case.
8. PW-21 Ct. Raj Kumar accompanied PW-12 SI B.P. Sharma on 21.12.02, he proved nishandeshi memo Ex.PW21/A made at the instance of accused Aslam. PW-22 SI R. Sriniwasan was accompanying PW-16 on 8.12.02, he proved seizure memos Ex.PW22/A and PW22/B of the case property recovered from possession of accused Abdul Ali Khan and Abul Zaffar. PW-23 HC Chander Veer accompanied PW-17 on 6.12.02. PW-24 SI Mukesh Kumar proved rukka Ex.PW24/A for FIR No. 872/02 P.S. Saraswati Vihar regarding apprehension of 10 accused persons involved in this case.
9. On the basis of the incriminating evidence against the accused persons their statement u/s. 313 Cr. PC were recorded. Both the accused persons denied the evidence against them and took the defence of false implication in this case. All the accused persons opted not to lead any evidence except accused Salma.
10. In defence accused Salma examined herself as DW-1. She filed copy of her ration card as Ex.DW1/A and her pan card Ex.DW1/B. 8 11 Heard arguments of Sh. Rakesh Mehta, Ld. APP for state and Sh. Mohd. Hasan, Ld. Amicus Curiae for the accused. Perused the record.
12. Ld. Amicus Curiae Sh. Mohd. Hasan for the accused raised the following contentions :-
1. No list of articles was ever given by complainant to the police.
Even no receipt of purchase or description of the looted articles was given.
2. There are major contradictions in the statement of PW-1 vis-a-
vis his statement recorded u/s. 161 Cr. PC and with statement of PW-4 Shishir Bhushan.
3. PW-1 and PW-4 has not identified the accused persons properly as they had not occasion to see the faces of the assailants. Identification has been done by them at the instance of the police.
13. PW-1 Piyush Aggarwal is the complainant, he deposed that in November'02 he alongwith his family was residing at D-152, Preet Vihar , Preet vihar in a rented house. Shishir Bhushan his maternal nephew was also living there. On 29.11.02 at about 4 a.m he was sleeping in his drawing room alongwith his maternal nephew on the floor. His mother and father namely Sh. Shyam Sunder and Smt. Saroj Aggarwal were sleeping in their room. Suddenly on opening his eyes he found that 6-7 boys carrying daggers, iron rod and desi kattas had attacked them. They were between the age of 20-25 years. He and Shishir Bhushan sustained 9 injuries and started bleeding from different parts of their body. They shouted for help, his father came in the drawing room and on seeing them he requested the accused persons not to attack them (PW1 and PW4) and showed his willingness to give anything they wanted. One person carrying a desi katta fired a shot on the ground to further intimidate them. Accused Rokan had inflicted injury upon him with the dagger. Accused Dulal S/o. Salam was carrying desi katta in his hand and he had fired with the desi katta. Accused Abul, Abu Jafar, Abdul Ali Khan, Mohd. Rashid, Abdul Ali Khan, Mohd. Dulal s/o. Abdul Latif, Saidul Seikh, Aslam, Mohd. Abuk S/o. Yusuf are the persons who had attacked them in the house and had caused them injuries. Rokan and Abul Akun were guarding them in the drawing room and the other accused had gone with his father to rob the house. Accused had robbed them of Rs.20,000/- in cash, eight gold bangles of his mother, two diamond pendants of his mother, five watches, a walkman, mobile phone belonging to his maternal nephew and him, foreign currency worth 125 dollars and some Mauritious coins. Accused Rokan also took away his shoes. Accused remained in their house for about 30 minutes and had warned them not to make noise when they will decamp with the stolen articles. When the accused were running away, chowkidar of the colony, has raised alarm, but accused persons could not be apprehended. He made a call to police at 100 number, one of his neighbourer arrived there and they were taken to Anand Hospital in the vicinity. He made statement to the police on 7.12.02. Some of the accused persons were brought to his house for identification and he had 10 identified two of the accused. On 21.12.02 he had further identified 6-7 assailants. The mobile phones taken away by the accused persons were having No. 9811028477 and 9811142750.
14. PW-4 Shishir Bhushan is another eye witness to this incident as he was sleeping with complainant PW-1. He has deposed similar facts as deposed by PW-1. In addition he has stated that one of the assailant fired upon him which touched his left arm near the shoulder and the same person hit him with the butt of the katta on his forehead. Another boy hit him with the iron rod and he felt drowsy due to heavy bleeding and thereafter he slept on the floor. PW-4 has stated that the assailants had taken one gold chain which he was wearing, his wallet containing Rs.7,000/-, mobile make Nokia with charger, one gold pendent which was kept in the drawer, Rs.10,000/- which was kept in the drawer by him alongwith foreign currency of US Dollar 124 and some Mauritious coins, his two wrist watches make HMT and Timex. His maternal uncle suffered fracture in the incident and received injury on his head and arm. He (PW4) received 50 stitches on his forehead, hand and knee. He gave verbal details of the articles of robbery to the DCP. After one or two days he alongwith his two maternal uncles and his nani went to P.S. Mangol Puri and there they were shown 10-12 persons and he had identified 4-5 persons out of them. One was Ismail and other was Dulal. PW4 has further stated that all the five accused persons present in the Court are the same persons who were involved in the incident. Accused Saidul S/o. Abdul Latif was the person who had fired on him and hit him with butt of 11 katta. The number of mobile phone taken away by the accused persons was 9811142750 and it was Nokia 3310. After about one week of the incident police brought some persons to their house and they had pointed out the place of incident. At that time he had identified those persons as the assailants who had committed robbery in his house.
15. PW-10, PW-17 and PW-23 are the three police officials who had arrested accused Dulal S/o. Salam and his wife Salma on 6.12.02. PW-17 Inspector Dinesh Tiwari who was Incharge of STF (Bangladeshi Cell), North East Cell has stated that at about 5 a.m he received secret information that accused who is involved in this case will come at Gokul Puri bus stand. He alongwith other staff reached at Gokul Puri bus stand. Accused Dulal was apprehended on the pointing of the secret informer, he was carrying a plastic bag and on checking it, he found a pair of Reebok shoes in it. On personal search of the accused a Nokia 8210 mobile instrument was recovered from him. During interrogation Dulal disclosed that these articles are the articles looted by him alongwith his associates from Preet Vihar. Those articles were taken into possession. Accused Dual led the police party to his house at Vijay Park. There his wife Salma was present in the house. At the instance of accused three raxine bags were recovered. One bag was containing three silver glasses, second bag was containing some silver glasses, one round shaped silver bowl, big silver coins and some clothes. The third bag was containing some clothes and golden colour metal pieces. All these articles were kept in a pulanda and after sealing were taken into possession. Statement of PW-10 SI 12 Gulshan Kumar and PW23 HC Chandra Veer are consistent to the statement of this witness regarding apprehension of the accused persons and recovery of the looted property from him and at his instance from his house.
16. The other case property was recovered by PW-22 SI R. Sriniwasan and PW16 SI Sukhvinder, from possession of accused Abdul Ali Khan and Abujafar. PW22 has stated that on 8.12.02 he alongwith PW-16 and other staff was doing investigation in the FIR No. 872/02 P.S. Saraswati Vihar and was present at Sign Bagh, Okhla. SI Sukhvinder received information that two accused who are in possession of property in the present case had gone to Rithala, Rohini. He alongwith police staff reached at Rithala and on the basis of the description of both the accused persons they kept on searching about those persons. At about 4 p.m both the accused were spotted at a bus stand F Block, Pathar Market, Mangolpuri. They questioned those persons and both the accused got confused. Accused disclosed their names as Abdul Ali Khan and Abujafar residents of Bangladesh. Both of them disclosed that they have come from Okhla to dispose some property pertaining to the present case. Their personal search was conducted. From possession of accused Abdul Ali Khan 124 US Dollars, cash of Rs.500/- and one watch was recovered. From possession of accused Abujafar three gold bangles, two gold rings and one wrist watch was recovered. Both these accused disclosed that these articles were given to them by Rashid which were looted from a house at Preet Vihar. The aforesaid articles were seized. 13 He prepared rukka and got FIR No. 822/02 u/s. 412 IPC and u/s. 14 Foreigners Act registered at P.S. Mangol Puri. It is relevant to mention here that both these accused persons namely Abdul Ali Khan and Abujafar are absconding and after separating their files proceedings u/s. 82 Cr.PC are lying initiating against them.
17. Out of the seven accused facing trial and against whom this judgment is delivered, except Salma and Dulal S/o. Salam, the remaining accused were apprehended by PW-24 SI Mukesh Kumar, P.S. Mangol Puri on 8.12.02. He has deposed that on 8.12.02 a joint raid was conducted at Jhil Wala Park, Saraswati Vihar. Ten accused persons were apprehended in the said raid as they had assembled there for planing to commit dacoity. The accused had also fired on the police team and all of them were natives of Bangladesh. A case u/s. 399/402/186/353/307 IPC, u/s. 25/27 Arms Act and u/s. 14 Foreigners Act was registered against them. The names of the accused persons arrested by PW24 are Aslam @ Shakur, Saidul, Mota Abul, Gaffar @ Faruq, Ismiel Sekh, Chhota Saiyad, Alamgir, Dulal, Mohd. Rashid and Abul @ Kabir.
18. PW-20 Inspector Devender Singh who was working as SHO Preet Vihar had formally arrested accused Mohd. Rashid on 10.2.03 who made disclosure statement during interrogation that he had handed over case property for sale to co-accused Abujafar and Ali Khan. Accused Mohd. Rashid was discharged by this Court.
19. The Ld. Amicus Curiae has contended that no list of articles, 14 receipt of purchase or description of the looted articles were ever given by complainant or his family members to the police. It is contended that majority of the articles were recovered from accused Abujafar and Abdul Ali Khan who are absconding and only some glasses has been shown to be recovered from possession of accused Salma and her husband Dulal S/o. Salam. As per record neither list of looted articles was given by complainant PW-1, PW4 nor any receipts of purchase of these articles was given to the police. In complaint Ex.PW1/A, PW1 has mentioned the looted property as cash of Rs.20,000/- to Rs.25,000/-, eight gold bangles, one chain, two rings, two mobile phones of Nokia having numbers 9811028477 and 9811142750. Out of the case property stated to be recovered from possession of accused Dulal S/o. Salam complainant PW1 has identified the four silver glasses Ex.P-5 and two silver glasses, one of medium size and one of small size as Ex.P-6. As already discussed complainant PW-1 has no where mentioned these articles which are Ex.P-5 and P-6, either in his complaint or any of his subsequent statement. No list of articles looted from their house was ever filed by complainant PW1 and PW4. Whether these articles were put for identification to complainant PW-1 or PW-4 in judicial TIP, prosecution is silent regarding that.
20. PW-6 Ali Sher is a witness examined by the prosecution to prove apprehension of accused Salma and Dulal S/o. Salam. He has stated that at about 7 years back at about 4 to 5 p.m he was present outside his house. Four or five policemen came in their gali and they 15 apprehended one lady named Salma who was residing on rent for about 10-15 days. She was apprehended by the police while she was present outside her house. She was having bag with her at that time. Three-four glasses of silver, small pieces of silver and gold like material were recovered from her possession. PW-6 failed to identify accused Salma as the same person who was arrested in his presence. However, he identified four glasses, two small and two of medium size which were recovered in his presence from a lady named Salma. PW-6 was declared hostile and cross-examined by Ld. APP. During cross-examination PW-6 stated that he cannot admit or deny if accused Salma present in the Court is the same lady who was arrested in his presence. Despite his elaborate cross-examination, prosecution has failed to bring out any more facts favouring its case. This witness is thereby of no help to the prosecution.
21. In view of the aforesaid reasons, prosecution has failed to prove the recovery of any looted articles from possession of all the seven accused against whom this judgment is directed. Complainant PW-1 and PW-4 has identified the accused persons. Let us see whether both PW-1 and PW-4 has been able to properly identify the accused persons as perpetrators of this crime or not. Complainant PW-1 has stated that accused Dulal S/o. Salam present in Court was carrying a desi katta in his hand and was among the assailants who had attacked them and he had fired from his desi katta. Complainant PW-1 has also identified accused Saidul, Dulal S/o. Latif, Abuk Kabir and Aslam as assailants who alongwith their associates had attacked them. The Ld. Amicus Curiae has 16 contended that PW-1 and PW-4 had identified the accused persons solely on the basis of their presence in the Court and identification of the accused persons by them is not beyond doubt and benefit of that is required to be given to the accused persons. During his cross- examination PW-1 has stated that accused persons switched on the light after attacking them and they were having a torch. A shot was fired by accused persons after 2-3 minutes of switching on the light. Out of the eight persons face of one was fully covered and two were covering their faces with woolen scarf and remaining five were open faced. One person was guarding them in the drawing room and seven other were looting the house. During his examination-in-chief he had identified the accused after seeing their faces and their names and father's name were mentioned by the prosecution on the basis of record as he was not aware with their names. Similarly, PW4 has stated that all five accused persons present in the Court are the same who were involved in the incident of robbery and beating them. Accused Saidul S/o. Abdul Latif was the person who had fired upon him and hit him with butt of katta.
22. Accused Dulal S/o. Salam and Rokan Talukdar (whose filed is separated) refused to participate in the TIP and their joint TIP proceedings is Ex.PW13/B. As per Ex.Pw13/B both the accused has taken the plea that they were shown to the witnesses, due to this reason they are not participating in the TIP. Both PW-1 and PW-4 has admitted that they were shown some of the accused persons in the P.S. Thereby, on the basis of refusal by accused Dulal S/o. Salam no adverse inference can be 17 drawn against him. In Hari Nath & Anr. Vs. State of UP, 1988 SC 345, in para 11 regarding the Test Identification Proceedings the Apex Court has observed as follows :-
"It is, no doubt, true that absence of corroboration by test identification may not assume any materiality if either the witness had known the accused earlier or where the reasons for gaining an enduring impress of the identity on the mind and memory of the witness are, otherwise, brought out. "
23. The material point needs to be seen is that whether complainant PW-1 and PW-4 had sufficient time and opportunity to see the faces of the assailants. As per PW-1 assailants remained in their house for 10-15 minutes whereas as per PW-4 they remained in their house for about 30-45 minutes. The manner in which both PW-1 and PW-4 were attacked and subsequent looting spree launched by the accused persons, to my mind at least it all must have been taken 15-20 minutes. As per PW1 faces of only one assailant was covered and five assailants were having naked faces. It has also come in the statements of PW-1 and PW-4 that assailants had switched on the light. It all shows that both PW-1 and PW-4 had sufficient time to see the faces of the assailants. Though both PW-1 and PW-4 had identified the accused persons after about 4 years of 18 the incident but keeping in view the ghastly manner in which they both were attacked and looting was committed, in normal circumstances it leaves an indelible impression on the mind of a person which keeps on haunting him for many years. The identification of the accused persons as the perpetrators of this crime by PW1 and PW4 after four years of this incident cannot be called as unrealistic rendering it unbelievable.
24. Ex.PW19/A is the Medico Legal Report of PW4 Shishir, as per which he suffered head injury comprising a cut wound on forehead approximately 3 cms, a cut wound on left parietal and a cut wound with 5 cms depth on left knee. Ex.PW19/B is the Medico Legal Report of complainant PW1, as per which he suffered multiple injuries comprising a cut on his parietal, cut with 8 cms depth on left forehead, cut of 5 cms on right elbow and multiple abrasions on arms and legs. The injuries sustained by PW-1 and PW-4 further corroborate their statements to prove the ghastly manner in which the accused persons had attacked both of them at the time of committing dacoity.
25. The Ld. Amicus Curiae assailing the statements of PW1 and PW4 has pointed out various contradictions, like whether accused had torch with them, who took them to hospital, whether car was driven by PW1 or PW4, why Mr. and Mrs. Kapoor who residing on the first floor did not hear the sound of fire and did not come to the spot immediately etc. All these contradictions pointed out by Ld. Amicus Curiae are minor in nature which do not go to the root of the matter. The reliance is placed upon 2002 (1) SCR 1011, the case titled Allah Rakha K. Mansoori Vs. State of Gujrat, wherein the Apex Court has observed that the minor contradictions appearing in the testimonies of the witnesses, instead of 19 discarding their testimonies strengthen the case of prosecution showing the witnesses being truthful as they were not shown to have made parrot like statements. Regarding improvements exaggeration in the statements of the witnesses the Apex Court in 1997 SCC (Cri) 118, the case titled Meharban and others Vs. State of M.P, has observed that Court has to adjudge the substratum of the case and in doing so grain has to be separated from chaff. It is settled law that some improvements here and some exaggerations there or some minor discrepancies in the evidence do not hit the prosecution case.
26. Neither PW1 nor P/W4 has anywhere stated if there was any female accompanying the accused persons. Accused Salma has been charged alongwith other six accused against whom this judgment is directed, u/s. 458/395/397/34 IPC. In view of the reasons discussed above, prosecution has failed to bring home guilt of accused Salma in any of these offences as well as u/s. 412 IPC for which she is also charged.
27. There is a recovery of chhura from the spot. As per PW-1 accused persons were also armed with kattas but no katta allegedly used by accused persons at the time of committing this dacoity was recovered. Both PW-1 and PW-4 has categorically stated that accused persons had fired a shot to intimidate them and to neutralise their resistance. The law is settled that mere non-recovery of the weapon of offence from possession of the accused persons do not exonerate them from the commission of the crime and falsify the statements of the witnesses to this effect.
28. In their statements u/s. 313 Cr.PC all the accused persons except Salma has admitted that they are Bangladeshi nationals. After seeking permission of the court u/s. 315 Cr.PC accused Salma has 20 examined herself as DW1. To establish that she is not a Bangladeshi national and is an Indian national she has relied upon her Ration Card Ex.DW1/A and her Pan Card Ex.DW1/B. The Ld. APP has contended that both these documents are manipulated by the accused during the pendency of this trial. In her cross-examination accused Salma as DW1 has admitted that in the year 2008 when Ex.DW1/B was issued name of her husband was Jaffar whereas on Ex.DW1/B name of her husband is mentioned as Shamim Khan. DW1 has stated that name of her father is Feroz Khan. She has subsequently stated that Shamim Khan is the name of her father and Feroz Khan is the name of her brother. This contradictory statement of DW1 arouses some suspicion on the authenticity of Ex.DW1/A and DW1/B but both these documents are issued by appropriate Govt. Authorities. Merely on the ground that name of her husband is wrongly mentioned and these are issued during the pendency of trial, these documents cannot be disbelieved.
29. In view of the aforesaid reasons, I hold that prosecution has successfully proved its case beyond reasonable doubt against accused Dulal S/o. Salam, Saidul, Dulal S/o, Latif, Aabuk Kabir, Aslam and Ismail for committing an offence punishable u/s. 458/397/34 IPC. It also stands established that except accused Salma all other six accused persons are Bangladeshi nationals, hence they are also held guilty for the offences punishable u/s. 14 Foreigners Act.
30. Since prosecution has failed to prove its case against accused Salma for all the offences she is charged, she is acquitted for the offences punishable u/s. 458/395/397/34 IPC, u/s. 412 IPC and u/s. 14 Foreigners Act.
31. All the remaining six accused persons are held guilty for the 21 offences punishable u/s. 458/397/34 IPC and u/s. 14 Foreigners Act. They are convicted accordingly.
Announced in the open Court ( SANJAY GARG )
on 20th day of March, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
DELHI.
IN THE COURT OF SH. SANJAY GARG: ADDITIONAL SESSIONS JUDGE; (EAST) FTC : KARKADOOMA COURT: DELHI.
SESSIONS CASE No. 107/09 FIR No.480/02O U/S: . 458/397/34 IPC and u/s. 14 Foreigners Act.
P.S: Preet Vihar State Versus Dulal S/o. Salam, R/o. V-375, Gali No.24,Vijay Park, Delhi.
Vill. Tafalbarip.S. Ramanda, Distt. Bager Hat, Bangladesh.
ORDER ON SENTENCE
1. I have heard Sh. R. K. Mehta, Ld. Addl. PP for the state and Sh. Mohd. Hasan, Ld. Amicus Curiae for the convict Dulal S/o. Salam.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view be taken against the convict. Ld. Amicus Curiae for the convict submits that the convict is 25 years of age. He has a family constituting his wife and two minor children. It is stated that he has remained in custody for about five and half years. It is stated that he is facing trial in a case u/s. 22 399/402 IPC in P.S. Mehrauli and in a case u/s. 380 IPC at Sonipat, Haryana. It is requested by Ld. Amicus Curiae that by taking lenient view he be sentenced to period of imprisonment already undergone by him as an undertrial in this case.
3. As per record convict has remained in custody for around 5 years and 8 months as an undertrial in this case. He is Bangladeshi national. He is first offender. As admitted by convict he is facing trial in two other cases, one pertaining to P.S. Mehrauli and other u/s. 380 IPC at Sonipat, Haryana but there is no proof on record that he is convict in any other case. The punishment provided u/s. 397 IPC cannot be less than 7 years. In view of the facts of this case the convict being first offender deserves lenient view. Convict is accordingly awarded following sentence under the various offences for which he is convicted :-
For the offence punishable u/s. 458 IPC he is sentenced to RI for 7 years . He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. For the offence punishable u/s. 397 IPC he is sentenced to RI for 7 years. He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. For the offence punishable u/s. 14 Foreigner Act he is sentenced to RI for 5 years. He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. All the sentences will run concurrently.
4. The benefit of section 428 Cr. PC be given to the convict. The Jail Supdt. will get the convict deported to Bangladesh after completion of his sentence. Copy of judgment and this order be given to the convict 23 free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
on 22th day of March, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
DELHI.
IN THE COURT OF SH. SANJAY GARG: ADDITIONAL SESSIONS JUDGE; (EAST) FTC : KARKADOOMA COURT: DELHI.SESSIONS CASE No. 107/09 FIR No.480/02
U/S: 458/397/34 IPC and u/s. 14 Foreigners Act P.S: Preet Vihar State Versus Aabuk @ Kabir S/o. Yusuf Ali R/o. Vill.
Dhansa Garth, P.S Moral Ganj, Distt.
Bagerhat, Bangladesh.
ORDER ON SENTENCE
1. I have heard Sh. R. K. Mehta, Ld. Addl. PP for the state and Sh. Mohd. Hasan, Ld. Amicus Curiae for the convict Aabuk @ Kabir.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view be taken against the convict. Ld. Amicus Curiae for the convict submits that the convict is 30 years of age and he has a family constituting his mother, his wife and a child in village in Bangladesh who are dependent upon him for their livelihood. It is stated that he is in custody since 9.12.02. It is stated that he is first offender and not involved in any other criminal 24 case. It is requested by Ld. Amicus Curiae that by taking lenient view he be sentenced to period of imprisonment already undergone by him as an undertrial in this case.
3. As per record convict has remained in custody for around 7 years and 3 months as an undertrial in this case. He is Bangladeshi national. The maximum imprisonment u/s. 14 Foreigners Act is 5 years. As per law he is required to be deported to Bangladesh. The punishment provided u/s. 397 IPC cannot be less than 7 years. In view of the facts of this case the convict is awarded following sentence under the various offences for which he is convicted :-
For the offence punishable u/s. 458 IPC he is sentenced to the period of imprisonment already undergone by him as an undertrial in this case by giving benefit of section 428 Cr. PC. He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. For the offence punishable u/s. 397 IPC he is sentenced to the period of imprisonment already undergone by him as an undertrial in this case by giving benefit of section 428 Cr. PC. He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. For the offence punishable u/s. 14 Foreigner Act he is sentenced to RI for 5 years. He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. All the sentences will run concurrently.
4. The benefit of section 428 Cr. PC be given to the convict. The Jail Supdt. will get the convict deported to Bangladesh at the earliest.25
Copy of this order be also sent to DCP FRRO to make suitable arrangements for deportation of this convict to Bangladesh at the earliest. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
on 22th day of March, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
DELHI.
IN THE COURT OF SH. SANJAY GARG: ADDITIONAL
SESSIONS JUDGE; (EAST) FTC : KARKADOOMA COURT:
DELHI.SESSIONS CASE No. 107/09 FIR No.480/02
U/S: . 458/397/34 IPC and u/s. 14 Foreigners Act P.S: Preet Vihar State Versus Aslam @ Mohd. Shakur S/o. Mohd. Sarwar r/o. Vill. Chalita Baniya, P.S. Moral Ganj, Distt. Bagerhat, Bangladesh.
ORDER ON SENTENCE
1. I have heard Sh. R. K. Mehta, Ld. Addl. PP for the state and Sh. Mohd. Hasan, Ld. Amicus Curiae for the convict Aslam @ Mohd. Shakur.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view be taken against the convict. Ld. Amicus Curiae for the convict submits that the convict is 29 years of age. He has a family constituting his wife, old father and one minor child. It is stated that he is in custody since 9.12.02. It is 26 stated that he is first offender and not involved in any other criminal case. It is requested by Ld. Amicus Curiae that taking lenient view he be sentenced to already undergone by him as an undertial in thi case.
3. As per record convict has remained in custody for around 7 years and 3 months as an undertrial in this case. He is Bangladeshi national. The maximum imprisonment u/s. 14 Foreigners Act is 5 years. As per law he is required to be deported to Bangladesh. The punishment provided u/s. 397 IPC cannot be less than 7 years. In view of the facts of this case the convict is awarded following sentence under the various offences for which he is convicted :-
For the offence punishable u/s. 458 IPC he is sentenced to the period of imprisonment already undergone by him as an undertrial in this case by giving benefit of section 428 Cr. PC. He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. For the offence punishable u/s. 397 IPC he is sentenced to the period of imprisonment already undergone by him as an undertrial in this case by giving benefit of section 428 Cr. PC. He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. For the offence punishable u/s. 14 Foreigner Act he is sentenced to RI for 5 years. He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. All the sentences will run concurrently.
4. The benefit of section 428 Cr. PC be given to the convict. The 27 Jail Supdt. will get the convict deported to Bangladesh at the earliest.
Copy of this order be also sent to DCP FRRO to make suitable arrangements for deportation of this convict to Bangladesh at the earliest. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
on 22th day of March, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
DELHI.
IN THE COURT OF SH. SANJAY GARG: ADDITIONAL SESSIONS JUDGE; (EAST) FTC : KARKADOOMA COURT: DELHI.
SESSIONS CASE No. 107/09 FIR No.480/02 U/S: . 458/397/34 IPC and u/s. 14 Foreigners Act P.S: Preet Vihar State Versus Saidul @ Sekh @ Afjal S/o. Abdul Latif R/o. Vill. Baropari, P.S. Moral Ganj, Distt.
Bagerhat, Bangladesh.
ORDER ON SENTENCE
1. I have heard Sh. R. K. Mehta, Ld. Addl. PP for the state and Sh. Mohd. Hasan, Ld. Amicus Curiae for the convict Saidul @ Sekh @ Afjal.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view be taken against the convict. Ld. Amicus Curiae for the convict submits that the convict is 38 years of age. He has a family constituting his wife, old parents and one 28 minor child. It is stated that he is in custody since 9.12.02. It is stated that he is undergoing life imprisonment in a case u/s. 302 IPC P.S. Saraswati Vihar. It is requested by Ld. Amicus Curiae that taking lenient view he be sentenced to already undergone by him as an undertrial in this case.
3. As per record convict has remained in custody for around 7 years and 3 months as an undertrial in this case. He is Bangladeshi national. The maximum imprisonment u/s. 14 Foreigners Act is 5 years. As per law he is required to be deported to Bangladesh. The punishment provided u/s. 397 IPC cannot be less than 7 years. In view of the facts of this case the convict is awarded following sentence under the various offences for which he is convicted :-
For the offence punishable u/s. 458 IPC he is sentenced to the period of imprisonment already undergone by him as an undertrial in this case by giving benefit of section 428 Cr. PC. He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. For the offence punishable u/s. 397 IPC he is sentenced to the period of imprisonment already undergone by him as an undertrial in this case by giving benefit of section 428 Cr. PC. He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. For the offence punishable u/s. 14 Foreigner Act he is sentenced to RI for 5 years. He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. All the sentences will run concurrently.29
4. The benefit of section 428 Cr. PC be given to the convict. The Jail Supdt. will get the convict deported to Bangladesh at the earliest.
Copy of this order be also sent to DCP FRRO to make suitable arrangements for deportation of this convict to Bangladesh at the earliest. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
on 22th day of March, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
DELHI.
IN THE COURT OF SH. SANJAY GARG: ADDITIONAL
SESSIONS JUDGE; (EAST) FTC : KARKADOOMA COURT:
DELHI.SESSIONS CASE No. 107/09 FIR No.480/02
U/S: 458/397/34 IPC and u/s. 14 Foreigners Act. P.S: Preet Vihar State Versus Mohd. Dulal @ Mohd. Rafiq S/o. Abdul Latif R/o. Vill. Baropari, P.S. Moral Ganj, Distt. Bagerhat, Bangladesh.
ORDER ON SENTENCE
1. I have heard Sh. R. K. Mehta, Ld. Addl. PP for the state and Sh. Mohd. Hasan, Ld. Amicus Curiae for the convict Mohd. Dulal @ Mohd. Rafiq S/o. Abdul Latif.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view be taken against the convict. Ld. 30 defence counsel for the convict submits that the convict is 34 years of age. He has a family constituting his wife, old parents and two minor children who are dependent upon him for their livelihood. It is stated that he is in custody since 9.12.02. It is stated that he is first offender and not involved in any other criminal case. It is requested by Ld. Amicus Curiae that by taking lenient view he be sentenced to period of imprisonment already undergone by him as an undertrial in this case.
3. As per record convict has remained in custody for around 7 years and 3 months as an undertrial in this case. He is Bangladeshi national. The maximum imprisonment u/s. 14 Foreigners Act is 5 years. As per law he is required to be deported to Bangladesh. The punishment provided u/s. 397 IPC cannot be less than 7 years. In view of the facts of this case the convict is awarded following sentence under the various offences for which he is convicted :-
For the offence punishable u/s. 458 IPC he is sentenced to the period of imprisonment already undergone by him as an undertrial in this case by giving benefit of section 428 Cr. PC. He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. For the offence punishable u/s. 397 IPC he is sentenced to the period of imprisonment already undergone by him as an undertrial in this case by giving benefit of section 428 Cr. PC. He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. For the offence punishable u/s. 14 Foreigner 31 Act he is sentenced to RI for 5 years. He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. All the sentences will run concurrently.
4. The benefit of section 428 Cr. PC be given to the convict. The Jail Supdt. will get the convict deported to Bangladesh at the earliest.
Copy of this order be also sent to DCP FRRO to make suitable arrangements for deportation of this convict to Bangladesh at the earliest. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
on 22th day of March, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
DELHI.
IN THE COURT OF SH. SANJAY GARG: ADDITIONAL
SESSIONS JUDGE; (EAST) FTC : KARKADOOMA COURT:
DELHI.SESSIONS CASE No. 107/09 FIR No.480/02
U/S: 458/397/34 IPC and u/s. 14 Foreigners Act. P.S: Preet Vihar State Versus Mohd. Ismail Sekh S/o. Mohd. Afsaf Ali Sekh R/o. Vill. Baroikhali, P.S. Moral Ganj, Distt. Bagerhat, Bangladesh.
ORDER ON SENTENCE 32
1. I have heard Sh. R. K. Mehta, Ld. Addl. PP for the state and Sh. Mohd. Hasan, Ld. Amicus Curiae for the convict Mohd. Ismail Sekh.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view be taken against the convict. Ld. Amicus Curiae for the convict submits that the convict is 24 years of age. It is stated that he is unmarried and has family constituting his old mother, three brothers and two sisters. It is stated that he is in custody since December'02. It is stated that he is first offender and not involved in any other criminal case. It is requested by Ld. Amicus Curiae that by taking lenient view he be sentenced to period of imprisonment already undergone by him as an undertrial in this case.
3. As per record convict has remained in custody for around 7 years and 3 months as an undertrial in this case. He is Bangladeshi national. The maximum imprisonment u/s. 14 Foreigners Act is 5 years. As per law he is required to be deported to Bangladesh. The punishment provided u/s. 397 IPC cannot be less than 7 years. In view of the facts of this case the convict is awarded following sentence under the various offences for which he is convicted :-
For the offence punishable u/s. 458 IPC he is sentenced to the period of imprisonment already undergone by him as an undertrial in this case by giving benefit of section 428 Cr. PC. He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. For the offence punishable u/s. 397 IPC he is sentenced to the period of imprisonment already undergone by him as an undertrial in this case by giving benefit of 33 section 428 Cr. PC. He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. For the offence punishable u/s. 14 Foreigner Act he is sentenced to RI for 5 years. He is also held liable to pay fine of Rs.500/- in default to undergo SI for 15 days. All the sentences will run concurrently.
4. The benefit of section 428 Cr. PC be given to the convict. The Jail Supdt. will get the convict deported to Bangladesh at the earliest.
Copy of this order be also sent to DCP FRRO to make suitable arrangements for deportation of this convict to Bangladesh at the earliest. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
on 22th day of March, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
DELHI.