Delhi District Court
State vs . 1. Shambhau @ Shyam Sharma on 30 October, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JDUGE-II (NORTH-WEST): ROHINI COURTS: DELHI
Session Case No. 978/08
Unique Case ID No. 02404R0701842008
State Vs. 1. Shambhau @ Shyam Sharma
S/o Om Prakash
R/o RZ-B-38, Bindapur Extn.,
Bindapur, Delhi.
(Convicted)
2. Dharmender Kumar
S/o Late Sh. Shiv Ratan
R/o RZ-B-38, Bindapur Extn.,
Bindapur, Delhi.
(Convicted)
3. Aditya Gupta @ Babloo
S/o Late Sh. Shri Kishan
R/o RZ-B-59, Bindapur Extn.,
Bindapur, Delhi
(Convicted)
4. Babu Hasan
S/o Israr Ahmed
R/o VPO Usait,
Distt. Badayun, Uttar Pradesh
(Convicted)
FIR No.: 102/08
Police Station: Bindapur
Under Section: 302/394/307/411/34/449/120-B IPC
Date of committal to sessions court: 16.9.2008
Date of Reserving the orders: 8.10.2010
Date on which judgment announced: 13.10.2010
St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 1
JUDGMENT:
As per the allegations on 16.4.2008 all the four accused persons namely Shambhu @ Shyam, Dharmender, Aditya Gupta and Babu Hasan voluntarily caused hurt to Smt. Garima in committing robbery of cash and gold jewellery articles. It is also alleged that the accused Babu Hasan and Aditya Gupta thereafter strangulated Smt. Garima with the help of an iron chain and caused her death by strangulation. The prosecution has further alleged that all the accused persons also strangulated Baby Aastha aged three years and threw her inside the bed (Diwan) thereafter with such intention and knowledge that if by that act they caused the death of Baby Aastha they would have been guilty of murder. Further, it is alleged that the accused Shambhu @ Shyam was found in possession of one gold kara, one necklace of gold, one pair of ear tops, two silver coin and seven notes of Rs.500/-; accused Dharmender was found in possession of one necklace, one pair of pajeb of silver, one idol of Maa Durga of silver and Rs.2,000/- (in the denomination of Rs.100/-); accused Aditya Gupta @ Babloo was found in possession of one pair of tops of ear of gold, three silver coins and Rs.9,000/- (in the denomination of Rs.500/-, Rs.100/- and Rs.10/-) and the accused Babu Hassan was found in possession of one gold chain, one nose pin, one silver plate and one idol of Lord Srhi Krishna of silver metal. The accused Shambhu @ Shyam is also alleged to have been found in possession of one country made pistol along with 5 live cartridges and one used cartridge without any permit or license for the same, in contravention of Notification issued by Delhi Administration in respect of which a St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 2 separate FIR bearing No.111/08, Police Station Binda Pur, under Section 25/54/59 of Arms Act has been registered.
BRIEF FACTS:
Case of the prosecution:
The case of the prosecution is that on 16.4.2008 on receipt of DD No. 40 and 41A Inspector Ranjit Kumar Station House Officer of police station Bindapur along with Assistant Sub Inspector Mahender Singh along with other staff reached at A-39, Jeevan Park, Uttam Nagar where they found the goods scattered. They found the dead body of one lady namely Smt. Garima lying on the ground near double bed and the almirah was found opened and on inspection strangulation marks were found on the neck of the dead body. The son of the deceased namely Sarthak aged about 11 years, daughter Aastha, husband of the deceased namely Naveen Kumar and one neighbour Smt. Savitri Devi met them. The child Aastha was found scared and there were scratches on the neck of Aastha who had informed that one Shyam uncle along with another uncle had come to their house. The husband of the deceased informed that his wife Garima was wearing gold bangles, gold chain, gold tops, nose pin which were found missing. The neighbour Smt. Savitri informed the police that at about 3-3:20 PM Sarthak (son of the deceased) came on the roof of her house and called her through the jaal that his mummy is not opening the door and asked her to ring-up the mobile of his mother on which she dialed the number of the deceased but nobody responded after which she along with Sarthak went on the backside of the house of St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 3 Garima and on opening the door of the room it was found ransacked. She also informed the police that the almirah and bed were found opened and Garima was lying dead and the daughter of Garima was crying in the other room who was taken out by Sarthak.
On the basis of the said statement of Smt. Savitri Devi the present case was registered and investigations have been conducted. On 25.4.2008 a secret information was received regarding the presence of accused Shyam in the area of C-1, Janak Puri, 40 Feet Road near Pull from where he was arrested. In his disclosure the accused Shyam @ Shambhu disclosed the names of his other associates i.e. Aditya @ Babloo, Dharmender and Babu Hassan. The accused also got recovered the robbed articles, cash, one desi katta of .315 bore along with 5 live cartridges and one iron chain about 3 feet long. Thereafter on the pointing out of accused Shambhu @ Shyam, the accused Aditya and Dharmender were arrested in this case who also got recovered the robbed articles and cash. On 30.4.2008 the accused Babu Hasan surrendered before the court from where he was arrested pursuant to which he also got recovered the robbed articles. After completion of the investigations, all the four accused persons were charge sheeted.
CHARGE:
The Ld. Predecessor of this court has settled the charges under Section 302, 307, 394, 397, 411 read with Section 34 Indian Penal Code against all the accused persons to which they have pleaded not guilty and claimed trial. Charges under Sections 25 (1-B)/ 54/59 St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 4 Arms Act have also been framed against the accused Shambhu @ Shyam in FIR No.111/08, Police Station Binda Pur, to which he has pleaded not guilty and claimed trial.
EVIDENCE:
In order to prove its case the prosecution has examined as many as 22 witnesses:
Public witnesses/ complainant:
PW1 Naveen Kumar is the husband of the deceased who has deposed that he is employed as J.E. in CPWD and on 16.4.2008 he left for his office at 8:30 am at INA Market, New Delhi. According to him, his daughter Astha who was a student of class LKG had not gone to the school on that day and his son Sarthak who was studying in class 5th had left for school and his wife Garima and daughter Aastha were present at home when he left for his office. He has testified that at about 4:00 pm he received a telephonic call from his neighbour who runs a dry cleaning shop under the name of Aggarwal Dry Cleaner, that a mishap had taken place with his wife on which he left from his office with his Boss namely Sh. S.K. Manchanda. The witness has further deposed that when he reached his house, he saw that his wife Garima was lying dead in the rear bed-room on the floor in front of the cupboard which was ransacked adjoining the bed and there were marks on her neck which had turned blue. He has further deposed that both of his children were with his neighbour Smt. Savitri Devi who was taking care of them and on asking by the police Aastha told the St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 5 SHO that Shyam uncle had come to the house. According to PW1, since there were abrasions on the neck of his daughter she was sent to the hospital for medical examination and after her return from the hospital, he also asked her about the occurrence on which she told him that Shyam uncle had come with 2-3 other other persons but she did not reveal much information and started weeping. The witness has further deposed that her daughter was in a state of shock and therefore, he did not insist upon her to answer more details. PW1 has also deposed that his son Sarthak told him that when he returned from the school the main gate was open but the main door of the house was locked from inside and he rang the bell but nobody responded on which he thought that his mother was annoyed with him and therefore, he went to the terrace and started playing. The witness has also deposed that his son informed him that after sometime he heard the muffled voice of his sister on which he again knocked the door and findings no response he went to their neighbour Smt. Savitri and with her help he entered from the rear door which was bolted from outside and they saw that his daughter Baby Aastha was entangled in the bed and was crying. According to him, Aastha was half inside the box bed and half outside and was struggling to come out of the bed and she was taken out of the bed and attended upon by Smt. Savitri. PW1 has further deposed that for the said reasons Aastha was not in a position to describe the entire occurrence and whenever he asked her about the occurrence she started crying. The witness has testified that one Shyam @ Shambhu had worked as Carpenter at his house on 2-3 occasions and on one or two occasion had worked for long period due St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 6 to which his daughter had referred him as Shyam Uncle. According to him, his wife usually wore one gold chain, two gold kara, a pair of tops and nose pin which were missing from her body when he saw after the occurrence and cash about Rs.26,000/- to Rs.27,000/-, silver coins, 3-4 silver statues of God/ Godess, rings, 3-4 pairs of tops, three gold chains three silver anklets, a heart shaped plate and other jewellery were missing from the cupboard.
The witness has correctly identified the accused Shyam @ Shambhu in the court and the articles which had been recovered in the Test Identification Parade which proceedings are Ex.PW1/A. He has identified the pair of tops which is Ex.P-1, three silver coins which are Ex.P-2; necklace which is Ex.P-4, pair of gold ops which is Ex.P-5; kara which is Ex.P-6; two silver coins which are Ex.P-7 (collectively); necklace (chain type) which is Ex.P-8; silver statue of God Krishna which is Ex.P-9; silver plate which is Ex.P-10; nose pin which is Ex.P-11; statue of Godess Durga which is Ex.P-12; artificial necklace which is Ex.P-13 and pair of silver anklets which is Ex.P-14; twenty currency notes in the denomination of Rs.100/- (recovered from the accused Dharmender) which are collectively Ex.P-15; 7 currency notes of the denomination of Rs.500/-, forty five currency notes of the denomination of Rs.100/-, one packed of 100 currency notes of the denomination of Rs.10/- (recovered from the accused Aditya Gaupta @ Babloo) which are collectively Ex.P-16 and seven currency notes of the denomination of Rs.500/- which are collectively Ex.P-17.St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 7
In his cross-examination the witness has deposed that he was sitting in the office when he received the telephonic message from his neighbour and he reached home between 4:30 to 4:45 pm. According to him, there is only ground floor built on the plot where there are three rooms. He has deposed that accused Shyam was introduced to him as a Carpenter by his cousin namely Sh. Anand Prakash Mittal and Shyam had also worked in his (Anand Prakash Mittal) house. The witness has further deposed that he does not have any documentary proof to indicate that Shyam had worked at his house as a Carpenter. PW1 has also testified that he could identify the kara worn by his wife as the same belonged to his mother which he had seen his mother wearing since he was a child. According to PW1, the money which was robbed partly belonged to him and the remaining had been gifted on various occasions to his wife and there were no currency notes of Rs.1000/-.
PW2 Master Sarthak is the son of the deceased who has deposed that on 16th of a month, last year (from the date of his deposition) he returned from his school at about 2 - 2:30 pm and the main gate of the house was opened but the main door was locked from inside. According to him, he tried to push open the door, knocked at the door and also called for his mother but she did not open the door after which he climbed to the terrace and started playing. He has testified that he kept playing for about 1½ years and from the terrace he also called out for his mother from the Jaal in the terrace and then he heard the voice of his sister Aastha crying. The witness has further deposed that he thereafter went to the terrace of the adjoining house St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 8 where Savitri Aunty resides from where through the Jall of her house he told her that his mother was not opening the door on which she made a phone call on the land line of our house but there was no response and therefore, Savitri Aunty came to her terrace. PW2 has also testified that thereafter both of them came down and tried to open the front door after which they went to the rear portion and the door on the rear side was bolted from outside. According to the witness, they opened the same and went in and saw that the entire house was ransacked and his sister Aastha was crying and his mother was lying dead on the floor on which Savitri Aunty raised alarm and called the neighbours. The witness has further deposed that his sister Aastha was in the middle room and was entangled in the Diwan under the mattress and the upper portion of her torso was outside the Diwan and the rear portion was still inside the box of Diwan. He has also deposed that on the alarm raised by Savitri some neighbours came to their house.
In his cross-examination the witness has deposed that the Jaal or grill on the terrace of Savtri Anuty is about one feet into one feet (1' x 1') in the slab and she crossed her terrace by jumping over the parapet wall which is about two and a half (2½) feet height and then climbed down for their staircase and reached the front Verandah. He has deposed that he had helped Aastha to come out of Diwan and not Savitri Aunty and that Aastha was crying and was in a state of shock. He is not aware if his father made inquiries from Aastha as he was in the house of a neighbour and states that he had seen the carpentry work being done in his house as he used to return from the St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 9 school in the afternoon and the work used to be carried out till the evening. The witness has also deposed that he did not inquire from any neighbour and he did not go to the house of his friend Shri Kant to enquire about his mother. PW2 has deposed that none inquired him as to why he was playing alone on the terrace since there was no person on the adjoining terrace.
PW7 Smt. Savitri Devi is the complainant in the present case who has deposed that she knew Naveen Kumar Aggarwal who was residing in A-39, Jeevan Park along with his wife Smt. Garima, their son Sarthak aged about 11 years and daughter Aastha aged about 4 hours. She has deposed that Naveen Kumar is J.E. in CPWD and his wife Garima is a housewife and on 16.4.2008 when she came back from dispensary she saw Garima throwing dirty water in the Nalli but she did not talk to her. She has deposed that at about 3-3:20 pm Sarthak son of Garima came on roof of her house and called her through the Jaal that "Dadi-Dadi my mummy is not opening the door" and asked her to ring up his mother and had given the number on which she dialed the said number but nobody responded.
According to PW7, she thereafter went to the house of Garima through his roof and came down in the house of Garima and again she along with Sarthak went upstairs and went on the backside of the house of Garima and the door was closed from outside on which she opened the door of the room and the room was found ransacked. She has deposed that the almirah and bed were found opened and Garima was lying dead and the daughter of Garima was crying in other room and was taken out by Sarthak. The witness has also deposed that St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 10 thereafter she came out and raised an alarm pursuant to which neighbours gathered there and one Om Prakash Gupta informed Aggarwal Dry Cleaner a relative of Naveen Kumar about the incident. According to the witness, she also informed her daughter on her mobile and her son namely Ravi Sethi was also in the same office as Naveen who thereafter informed Naveen Kumar after which Naveen Kumar came back at about 4:30 pm. The witness has further deposed that Sh. Chaman Lal informed the police on 100 number and police came at the spot and recorded her statement which is Ex.PW7/A. In her cross-examination the witness has deposed that statement of Chaman Lal was not recovered in his presence and that the crime team also came to the spot in her presence. She has deposed that the roof of the house of Naveen Kumar is adjoining to their roof and of the same height and that she had not entered into the room where Aastha was present. According to her, the dividing wall between their roof and of the roof of Naveen Kumar is about 2½ feet which was crossed by her to reach the house of Naveen.
PW14 Raj Kumar has deposed that about 6-7 months back from 20.7.2008 he had given the second floor of his house i.e. B- 23, Bindapur Extension on rent to the family of Shyam Sharma where Shyam Sharma was residing with his father, mother and brother. He is not aware is any other person was residing with the family of Shyam Sharma.
The said witness has been cross-examined by the Ld. Addl. PP for the State on the point that another person was also residing with the family of Shyam Sharma during which he has St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 11 deposed that he is not aware if any other person stated to be of the village of Shyam Sharma was also residing with them in the said floor. The witness has been confronted with the his statement made to the police which is Mark X1 on which he has denied that another person namely Dharmender was also residing with the family of Shyam Sharma. However, after seeing the accused Dharmender the witness has deposed that he had seen the accused Dharmender some time with the family of Shyam Sharma who has been visiting their family but according to him, he was not residing with the family of Shyam Sharma. He has correctly identified the accused Dharmender in the court.
PW17 Om Prakash is the neighbour of the deceased who has proved having identified the dead body of deceased Garima.
PW18 Bharat Singh Bhardwaj has deposed that in July 2008 he had rented out the house bearing no. RZ-B-60, Khasra No. 59, Bindapur Extension to Smt. Urmila mother of the accused Aditya Gupta @ Babloo who had come to him to taking the premises on record. According to the witness he had rented out one room in the said accommodation to the family of Aditya comprising of his mother, brother and sister and it was hardly 15 days after which the police came and apprehended the accused Aditya. The witness has correctly identified the accused Aditya Gupta @ Babloo in the court.
In his cross-examination the witness has deposed that it was hardly 15 days after he rented out the accommodation and had given an application to local police for tenant verification but before St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 12 that to be done the police had come. He has admitted that he was not informed by the police about the purpose for which they had come. According to him, in his presence nothing was recovered from the room under occupation of accused Aditya.
Medical witnesses:
PW9 Dr. Komal Singh has deposed that on 17.4.2008 he conducted the postmortem examination on the dead body of Garima aged 35 years, female w/o Naveen Kumar. He has deposed that the dead body was brought to the hospital with the alleged history of 'found murdered' in her house on 16.4.2008 at about 3:55 pm and on external examination there was contusion on the inner surface of the upper lip 5 mm x 3 mm, nail marks over the right tip of the nose, left cheeks, at the centre of forehead. According to her, a ligature mark of 27 cm x 8 mm was present over the entire circumference of the neck except of the right upper side of the neck which was present above the thyroid cartilage anteriorly going backward towards the posterior hairline in the straight fashion and was 10 cm below the right masteroid, 8.5 cm below the chin, 10 cm above the upper border of sternum which was dry and its border were contused. The witness has deposed that in her opinion the cause of death was asphyxia subsequent to the ligature strangulation over the neck and smothering in combination which were sufficient to cause death in ordinary course of nature together as well as individually. She has further proved that all injuries were antimortem and of the same duration and time since was approximately 24 hours. The witness has St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 13 also deposed that she preserved the viscera, blood in a gauze piece, clothes, vaginal swab and all distal phalanxes. She has proved her detailed report in this regard which is Ex.PW9/A. In her cross-examination the witness has deposed that if the ligature mark is produced by the wire or by a rope then it will make different impressions over the neck and it is always not necessary that there would be cut marks if the strangulation was made by means of metallic wire.
Police/ Official witnesses:
PW3 SI Mahesh Kumar has deposed that on 17.4.2008 on the asking of the investigating officer Inspector Dig Vijay Singh he had gone to the spot where he took rough notes and measurements of the place of incident at the instance of the investigating officer. According to him, thereafter on 30.4.2008 on the basis of the said rough notes he prepared the scaled site plan which is Ex.PW3/A and he thereafter destroyed the rough notes.
PW 4 HC Naresh Kumar is a formal witness being the Duty Officer who has deposed that on 16.4.08 at about 3.55pm the wireless operator of the police station gave information that a theft has taken place at H. No. A-39, Jiwan Park, Uttam Nagar and that one lady is lying unconscious and the information in this regard was received from PCR through Ct. Iqbal by the wireless operator and the information to the PCR was given on mobile phone No. 9810936934. He has deposed that he accordingly recorded DD No. 40A in the rojnamcha and gave a copy thereof to Ct. Suresh for delivery to ASI St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 14 Mahender Singh. He has further deposed that Station House Officer Inspector Ranjeet Singh also left for the spot alongwith the staff along with lady Ct. Raj Kumari. He has proved the copy of the DD which is Ex.PW4/A. The witness has also deposed that thereafter at around 3.56 pm, wireless operator again informed him that an information is received on wireless that opposite H. No. A-38, Jiwan Park, DESU Office one lady is lying dead pursuant to which he recorded the said information in the rojnamcha vide DE No. 41A and conveyed the information in this regard to ASI Mahender Singh on his mobile phone No. 9810494082 who had already gone to the spot besides Station House Officer and other staff, true copy of which DD No. 41A is Ex.PW4/B. PW5 SI Shanti Prakash is also a formal witness who has deposed that on 16.4.2008 at about 8:15 PM he received a rukka from Ct. Suresh which was sent by Inspector Ranjeet on the basis of which he registered the FIR No. 102/08 under Section 302/394/34 IPC copy of which is Ex.PW5/A. The witness has further deposed that after registration of FIR he handed over the copy of the FIR and original rukka to Ct. Suresh for handing over the same to Inspector Dig Vijay Singh. He has proved his endorsement on the rukka which is Ex.PW5/B and recorded DD No. 43A regarding the registration of FIR and DD No. 44A regarding the closure of FIR and sending of the Special Messenger, copies of which DDs are Ex.PW5/C & PW5/D. PW6 ASI Azad Singh has deposed that on 16.4.2008 he was posted as Incharge Mobile Crime Team and on that day after St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 15 receiving an information he along with his staff reached at the spot i.e. A-39, Jeevan Park, Uttam Nagar where they met Inspector Dig Vijay Singh along with his staff and he inspected the spot. The witness has proved that Ct. Udham Singh lifted the chance prints and Ct. Suresh took the photographs. He has proved his report which is Ex.PW6/A. PW8 Sh. Puran Chand, Ld. MM has deposed that on
2.7.2008 he was posted as MM in Rohini Courts and on that day one application for conducting the Test Identification Parade of the case property was marked to him by the Ld. Link MM Sh. Vinod Yadav which he adjourned for disposal on 5.7.2008 and thereafter the same was adjourned for 8.7.2008. He has proved htat on 8.7.2008 he conducted the Test Identification Parade proceedings of the case property and the witness Naveen Kumar correctly identified the case property vide proceedings Ex.PW1/A and the investigating officer was allowed to take the copy vide order Ex.PW8/A after which the proceedings were ordered to be sent to the concerned court in the sealed envelope.
PW10 HC Ram Phal is the MHC(M) who has deposed that on 17.4.2008 investigating officer Inspector Dig Vijay Singh had deposited 5 sealed pullandas along with sample seal of DFMT pursuant to which entry at serial no. 406 was made. He has also deposed that on 25.4.2008 Inspector Dig Vijay Singh had deposited the personal search of accused Shambhu and one sealed pullanda alleged to be containing jewellery, cash and coins and another sealed pullanda containing iron chain, one more sealed pullanda containing St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 16 jewellery and idol and one more sealed pullanda containing tops and cash and entry in this regard at serial no. 437 was made. The witness has further deposed that on 1.5.2008 Inspector Dig Vijay Singh had also deposited sealed pullanda alleged to be containing some jewellery and entry in this regard was made at serial no. 447. According to him, on 30.6.2008 the exhibits of this case were sent to FSL through Ct. Anil for depositing in the FSL vide RC No. 22/21/08 who deposited the receipt with him. He has placed on record the copy of the relevant entry in register no. 19 & 21 which are Ex.PW10/A & PW10/B and has proved that the sealed pullanda remained intact during his custody.
PW11 Ct. Suresh Kumar is the member of the Crime Team who has proved having taken the photographs of the spot the negatives of which are Ex.PW11/A-1 to Ex.PW11/A-10 and the photographs are Ex.PW11/B-1 to Ex.PW11/B-10.
PW12 Ct. Anil Kumar is a formal witness who has deposed that on 30.6.2008 he took five parcels from the MHC(M) and deposited the same in FSL Rohini vide RC No. 22/21/08. According to him, he handed over the copy of the receipt to MHC(M) after getting the exhibits deposited in FSL Rohini. He has proved that no tampering was done while the aforesaid exhibits remained in his possession.
PW13 Insp. Ranjit Kumar has deposed that on 16.4.2008 he was posted as Station House Officer at Police Station Bindapur and on that day on receipt of DD No. 40 & 41-A which are Ex.PW4/A and Ex.PW4/B respectively he along with ASI Mahender St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 17 Singh and other staff reached at A-39, Jeevan Park, Uttam Nagar where they found the goods scattered. According to him, they found a dead body lying on the ground near double bed and the almirah was found opened and the name of the deceased was revealed as Garima. He has deposed that he inspected the dead body and found the strangulation mark on the neck of the dead body and the son of deceased namely Sarthak aged about 11 years and daughter of the deceased namely Astha, husband of deceased namely Naveen Kumar and Savitri Devi, complainant met them and Astha was found scared. According to the witness they found scratches on the neck of Astha who informed that one Shyam uncle along with another uncle had come to their house, but she could not tell anything else and thereafter the girl Astha was sent to DDU Hospital for the medical aid. The witness has further deposed that Naveen Kumar informed that his wife Garima was wearing gold bangles, gold chain, gold tops, noise pin which were found missing. He has testified that they called crime team at the spot who inspected the spot and the photographer took the photographs at the spot and Dog Squad was also called and in the meanwhile ACP Tilak Nagar had also come to the spot. The witness has proved having recorded the statement of Smt. Savitri Devi which is Ex.PW7/A and Inspector Investigation prepared the inquest documents and the dead body was sent to mortuary. He has further proved having prepared the rukka which is Ex.PW13/A and he sent the rukka to the police station Bindapur through Ct. Suresh. According to the witness, further investigations of this case was handed over to Inspector Dig Vijay Singh.
St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 18In his cross-examination the witness has deposed that the information regarding incident had come in the police station from PCR at about 3:55 PM on 16.4.2008 and the Crime team reached the the spot after about 30 minutes after his arrival at the spot. According to the witness, Astha had informed him only one name Shyam uncle who had come with another uncle but she had not given the name of other uncle. He has also deposed that he made inquires from the persons of nearby houses but no body was aware about the incident except Savitri Devi who had given her statement.
PW15 ASI Mahender Singh has deposed that on 16.04.2008 he was on emergency duty from 8 AM to 8 PM and at about 3:55 PM wireless operator had given the information that a lady is lying unconscious and regarding theft in house No. A-39, Jeevan Park, Uttam Nagar which information was recorded vide Ex.PW4/A as DD No. 40A. He has further deposed that just after about one minute another information had come that a lady is lying dead at A- 38, Jeevan Park in front of DESU Office, Uttam Nagar, Delhi which information was recorded vide DD No.41-A and therefore, he along with Station House Officer Inspector Ranjit Singh, Ct. Suresh, Lady Ct. Raj Kumari and other staff reached at the spot i.e. at A-39, Jeevan Park where they found the households scattered. According to the witness, the almirah was found opened and a dead body of a lady was found lying on the ground near the bed. He has testified that Inspector Ranjit Kumar inspected the spot and found ligature mark on the neck of the deceased and crime team came to the spot and photographer took the photographs of the dead body. He has further deposed that St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 19 one girl namely Aastha, aged about 5 years met them who was found scared and informed them that one Shyam uncle along with another uncle had come in their house and thereafter she started weeping. According to PW15 the girl was sent to DDU hospital for her medical examination and one neighbour Smt. Savitri Devi who was present at the spot had given her statement on which Station House Officer Inspector Ranjeet Kumar prepared the rukka which is Ex.PW13/A and got the case registered through Ct. Suresh Kumar. The witness has also deposed that ACP Tilak Nagar had come to the spot and the dead body was sent to mortuary of DDU hospital.
PW16 SI Naveen Kumar Yadav has deposed that on 25.04.2008 he along with ASI Zile Singh and other staff were present in the investigation of this case and at about 12 noon Inspector Dig Vijay Singh along with staff who were in search of accused persons wanted in this case met them at Bindapur pond where Inspector Dig Vijay Singh received a secret information that one Shyam carpenter who is wanted in this case was seen at C-1, Janakpuri, Pankha Road, near ganda nala who is likely to take her mother and the households from that room. According to him, on the receipt of the said information they reached at 40 feet road, ganda nala road, pankha road at about 12:15 PM and started waiting for accused Shyam carpenter and at about 1:30 PM one person came from Pankha Road side and the secret informer had identified him. He has proved having apprehended the accused at once who was interrogated who disclosed his name as Shambhu @ Shyam and on further interrogation the St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 20 accused disclosed that he was in need of money therefore he along with his associate Aditya, Dharmender and Babu Hassan committed dacoity and committed the murder of Garima at house No.A-39, Jeewan Park and had left her daughter aged 3-4 years in the bed. The witness has proved the arrest memo of the accused which is Ex.PW16/A; personal search memo of the accused which is Ex.PW16/B; disclosure statement of the accused which is Ex.PW16/C. The witness has further deposed that in pursuance of the disclosure statement the accused Shyam led the police party at his house No. RZ-B-38, Bindapur Extn., and got recovered one desi katta of .315 bore along with five live cartridges and one used cartridge from Almirah kept in the room which desi katta and cartridges were handed over to ASI Mohd. Mustaq and the proceeding under Section 25 of Arms Act was conducted separately by ASI Mohd. Mustaq. According to the witness, the accused Shambhu @ Shyam Sharma had also got recovered one white colored polythene containing Rs.3,500/-, one necklace, one pair of ear tops, two silver coins and one kara as belonging to deceased Garima which had come in his share, which articles were converted into parcel by Inspector Dig Vijay Singh and sealed with the seal of DVS. He has also deposed that the aforesaid items and Rs.3,500/- were taken into possession vide seizure memo Ex.PW16/D and that the accused Shambhu has also got recovered one iron chain of about 3 feet long from beneath of almirah kept in the room and disclosed that it was the chain by which he had strangulated neck of the deceased. PW16 has further deposed that the pullanda of chain was prepared and sealed with the same seal and taken into St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 21 possession vide seizure memo Ex.PW16/E and thereafter the accused took them to the house of Aditya and Dharmender Kumar at RZ-B-59, Bindapur Extn. where the accused persons namely Aditya Gupta @ Babloo and Dharmender Kumar met them. According to him, they were also arrested in this case vide memos Ex.PW16/F and Ex.PW16/G and personally searched vide memos Ex.PW16/H and Ex.PW16/I and thereafter their disclosure statements were recorded separately which are Ex.PW16/J and Ex.PW16/K. The witness has proved that the accused Aditya Gupta @ Babloo got recovered Rs.9,000/-, one pair of ear tops, three silver coins from the box kept in the room which were converted into parcel and sealed with the same seal and taken into possession vide seizure memo Ex.PW16/L. He has also testified that thereafter the accused Dharmender took them to his residential house at RZ-B-38 Bindapur Extn., where Dharmender Kumar got recovered one rexene bag containing one necklace, one pair of silver pajeeb, one silver statue of Durga Maa and cash Rs.2,000/-, which were also converted into a parcel and sealed with the same seal and were taken into possession vide seizure memo Ex.PW16/M. He has also deposed that all the accused persons led them to the spot and pointed out the place of occurrence and a common memo was prepared which is Ex.PW16/N. The witness has further deposed that on 30.4.2008 he again joined the investigations of this case with Inspector Dig Vijay Singh when the accused Babu Hassan surrendered before the court of Sh. Vinod Yadav, Ld. MM. He has proved that the accused Babu St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 22 Hassan was formally arrested in this case vide memo Ex.PW16/O and the police custody remand of the accused for 2 days was taken and the accused was brought to the police station Bindapur. The witness has correctly identified all the three accused persons in the court as well as the case property including the iron chain got recovered by accused Shambhu which is Ex.P-18.
In his cross-examination the witness has deposed that the secret informer met them near the Bindapur Pond and at that time they were on foot as they were positioned there but they had started from the police station in a Private Vehicle Qualis which was arranged by Ct. Puran Chand. According to the witness, he had apprehended accused Shambhu on the pointing out of the secret informer and the accused Shambhu was at a distance of about 15 steps away from him and the secret informer was also with him. He has deposed that he had apprehended the accused from behind and the accused got no opportunity to run away as he was caught unaware. He has also deposed that when they reached the room of accused Shambhu, there were 7-8 public persons were present in the gali on the ground floor but he is unable to tell the names and addresses of the public persons who were asked by the investigating officer to join the investigations. The witness has further deposed that when they entered into the house of Shambhu one aged lady was present there whom they later on came to know was the mother of accused and the almirah was unlocked when accused made recovery of the country made pistol and jewelry articles. He has admitted that accused Shambhu was residing on rent and has deposed that no statement of the owner of the house was St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 23 recorded in his presence. The witness has also deposed that the iron box from where the accused Aditya got the recovery effected was locked and the accused got the key of the same from the hanger on the wall from under the clothes which were hanging on the hanger. PW16 has testified that he returned the seal to the investigating officer on the next day and he did not mention this fact regarding the handing over of the seal to him by the investigating officer in his statement. According to PW16, the room of Aditya, from where the recovery was effected, was situated on the ground floor and there was no public persons inside the room though they were present outside.
PW19 Ct. Suresh Kumar has deposed that on 16.04.2008 he was posted as a Constable at police station Bindapur and was on patrolling duty in the area. According to him, on information he went to the spot i.e. A-39, Jeewan Park, Uttam Nagar, Delhi where he found the Station House Officer police station Bindapur and ASI Mahinder Singh alongwith the staff. He has deposed that at about 8 p.m. the Station House Officer handed over to him a tehrir which he took to the police station for registration of the FIR. The witness has testified that he reached the police station at about 8.15 p.m. and he handed over the tehrir to the duty officer for registration of the case and after the case was registered he was handed over the original tehrir and the copy of the FIR which he took to the spot and handed over the same to the Station House Officer.
PW21 SI Jile Singh had also joined investigations with Inspector Dig Vijay Singh and SI Navin Kumar, ASI Mohd. Mushtaq, HC Sahib Singh, Ct. Puran Mal and 4/5 other staff. He has St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 24 corroborated the testimony of PW16 Navin Kumar in toto. In addition the witness PW21 has deposed that on 01.05.2008 the accused Babu Hassan who was on police remand at that time took them to his house bearing no. C-1132. J.J. Colony, Binda Pur , IInd Floor and from an iron box kept the accused got recovered a white polythene containing one gold chain consisting of four laries, one nose pin, one silver plate and one silver statue of Lord Krishna which were converted into a pullanda and sealed with the seal of DVS and the seizure memo of the same Ex.PW21/A was prepared by the investigating officer. He has also deposed that the accused Babu Hasan thereafter took them to the spot i.e. A-39, Jeewan Park, Uttam Nagar and pointed out the place of incident vide pointing out memo which is Ex.PW21/B. He has admitted that on 01.05.2008 the accused Babu Hasan had made a disclosure which was recorded by him in his own hand which is Ex.PW21/C. He has correctly identified the accused persons as well as the case property and there is no material contradiction in his cross-examination.
PW20 HC Rich Pal Singh has deposed that on 16.04.2008 he was posted at police station Binda Pur as Constable and was on duty from 8 a.m. to 8 p.m. According to him, on that day at about 3.30 p.m. ASI Mahinder Singh received a PCR call vide DD No.40A & 41 and on receipt of the same he along with ASI Mahinder Singh went to the spot i.e. A-39, Jeewan Park, Uttam Nagar, Delhi where the Station House Officer was already present along with the staff. He has further deposed that he was handed over the dead body St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 25 of Smt. Garima W/o Navin Kumar which he took to the Mortuary in DDU Hospital for getting the postmortem conducted and the dead body was remained in his custody till 17.4.2008 and after the postmortem the dead body was handed over to Sh. Navin Kumar. According to PW20, after the postmortem doctor handed over to him 5 pullandas sealed with the seal of the hospital and one sample seal in respect of which the seizure memo was prepared by the investigating officer which is Ex.PW20/A. He has also deposed that he took the pullandas to the police station where he deposited the same.
PW22 Inspector Dig Vijay Singh is the investigating officer who has deposed that on 16.04.2008 he was posted at police station Bindapur as Inspector Investigations and on that day after registration of the present case further investigation of this case was handed over to him pursuant to which he reached the spot. According to him, he inspected the spot and prepared the site plan at the instance of Inspector Ranjit Kumar, ASI Mahinder Singh and Smt. Savitiri Devi which is Ex.PW22/A. He has also deposed that he prepared the Naksha Nazree and recorded the statement of witnesses and that one Aastha aged about 4 years who is the daughter of Navin Kumar (husband of the deceased) met him who was found scared. The witness has deposed that the girl was interrogated by her father in his presence wherein she had stated that Shyam uncle and another uncle had come to their house, on which he interrogated Navin Kumar about Shyam and Navin Kumar informed that Shyam is running the business of Carpenter and had worked at his house. He has proved that he St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 26 made enquiries about Shyam but the accused was found absconding from his house at RZ-B-38, Binda Pur Extension and despite efforts he could not trace the accused Shyam. The witness has also deposed that on 17.04.2008 the postmortem on the dead body was got conducted after which he collected the exhibits from the mortuary and were deposited in Malkhana. According to the investigating officer on 25.04.2008 he received a secret information that Shyam who is involved in this case is moving in the area of C-1 Janak Puri, 40 Feet Road, near pull pursuant to which he along with staff reached there in civil clothes. According to him, at about 2.00 p.m. the accused Shyam Sharma @ Shambhu, came there and was apprehended and interrogated and was arrested in this case vide memo Ex.PW16/A and the personal search of the accused was conducted vide memo Ex.PW16/B after which the disclosure statement of the accused was recorded vide Ex.PW16/C wherein the accused disclosed that he alongwith his associates Aditya @ Babloo, Dharmender and Babu Hasan committed the murder of Garima Madam and committed the robbery of jewelry and other household from her house. The witness has further deposed that on the same day the accused Shambhu took them at his house from where the accused got recovered one gold kara, one necklace, one pair of tops, two silver coins, one is having statue of Lakshmi Ganesh and another is having the statue of Lakshmi Ganesh and Saraswati, seven currency notes of the denomination of Rs.500/- from iron almirah kept in the second floor of the residential house which were converted into parcel and sealed with the seal of DVS which parcel was taken into possession vide seizure memo St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 27 Ex.PW16/D. The witness has testified that thereafter the accused Shamboo led the police party at RZ-B-38, Bindapur Extn., and got recovered one desi katta of .315 bore along with five live cartridges and one used cartridge from Almirah kept in the room which desi katta and cartridges were handed over to ASI Mohd. Mustaq and the proceedings under Section 25 of Arms Act was conducted separately by him. He has also proved that the accused Shambhu @ Shyam Sharma got recovered one white colored polythene containing Rs.3,500/-, one necklace, one gold pair of ear tops, two silver coins and one gold kara as the looted property belonging to deceased Garima which had come in his (accused) share after which he converted the same into parcel and sealed with the seal of DVS. PW22 has further deposed that the aforesaid items and Rs.3,500/- were taken into possession vide seizure memo Ex.PW16/D and thereafter the accused Shambhu also got recovered one iron chain of about 3 feet long from beneath of almirah kept in his room and disclosed that this is the chain by which he has strangulated neck of the deceased Garima, which chain was converted into pullanda and and sealed with the same seal and taken into possession vide seizure memo Ex.PW16/E. According to PW22, the accused Shyam @ Shambhu thereafter took them to the house of Aditya and Dharmender Kumar at RZ-B-59, Bindapur Extn. where they found the accused persons namely Aditya Gupta @ Babloo and Dharmender Kumar who were identified by the accused Shyam @ Shambhu and were also arrested in this case vide memo Ex.PW16/F & Ex.PW16/G and their St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 28 personal search memos were prepared vide Ex.PW16/H & Ex.PW16/I and their disclosure statements were recorded separately which are Ex.PW16/J & Ex.PW16/K respectively. PW22 has testified that the accused Aditya Gupta @ Babloo thereafter got recovered Rs.9,000/-, one pair of ear tops, three silver coins from iron box kept in his room which were converted into parcel and sealed with the seal of DVS and taken into possession vide seizure memo Ex.PW16/L and thereafter the accused Dharmender took them to his residential house at RZ-B-38 Bindapur Extn. i.e. the same room where he was staying with the co-accused Shyam @ Shambhu, the accused Dharmender Kumar got recovered one rexene bag containing one gold necklace, one pair of silver pajeeb, one statue of silver of Durga Maa and cash Rs.2,000/- which were also converted into a pullanda and sealed with the seal of DVS and taken into possession vide seizure memo Ex.PW16/M. The witness has also deposed that all the three accused persons namely Shyam, Dharmender and Aditya thereafter led them to the spot of incident i.e house no. A-39, Jeewan Park, Uttam Nagar and pointed out the place of occurrence i.e. the room on the front side and also the room on the backside where they had committed the murder of Garima and a common memo was prepared vide Ex.PW16/N after which all the three accused persons were brought to the police station along with the case property which was deposited in the malkhana. According to the investigating officer, on 30.04.2008 the accused Babu Hasan surrendered before the court of Sh. Vinod Yadav, Ld. MM and was formally arrested in this case St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 29 vide memo Ex.PW16/O and the accused was taken on police remand for two days and was brought to the police station and during interrogation the accused Babu Hasan made a disclosure statement which is Ex.PW22/A. He has further testified that on 01.05.2008 during further interrogation the accused Babu Hasan made a disclosure which was recorded by ASI Zile Singh in his hand writing which is Ex.PW21/C who was on police remand at that time took them to his room i.e. house no. C-112. Pocket 4, J.J. Colony, Binda Pur, Second Floor and from an iron box kept in his room he got recovered a white polythene containing one gold chain consisting of four laries, one nose pin, one silver plate and one silver statue of Lord Krishna, which articles were converted into a pullanda and sealed with the seal of DVS and the seizure memo of the same which is Ex.PW21/A was prepared. The investigating officer has also deposed that the accused Babu Hasan thereafter took them to the spot i.e. A 39, Jeewan Park, Uttam Nagar and pointed out the place of incident vide pointing out memo which is Ex.PW21/B. The witness has correctly identified all the four accused persons in the court as well as the case property.
In his cross-examination the witness has deposed that on 25.04.2008 the secret informer met him at about 12/12.15 p.m. at Binda Pur Pond but he did not convey any information regarding the receipt of secret information to police station. He is unable to tell who was the beat constable who arranged the Qualis for the police party nor he applied for any reimbursement for hiring the Qualis.
St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 30According to him, no public person was gathered there when they reached the house of accused Shambhu and he did not ask any public person to join investigation. He does not remember whether he had recorded the statement of the owner of the room rented by accused Shambhu. He is unable to tell the names and address of the public persons residing in the neighbour of accused Aditya and has deposed that he did not ask any public person to join the investigation at the time of recovery and seizing the case property. The witness has further deposed that the seal after use was given to SI Navin but no handing over memo was prepared. He is unable to tell the colour or make of the rexene bag from which the accused Dharmender got recovered the jewelry articles but states that it might be either of black or brown in colour. He has admitted that he did not show the chain recovered from accused Shambhu to the doctor seeking opinion.
Statement of accused/ defence evidence:
After completion of prosecution evidence the statement of the accused persons have been recorded under Section 313 Code of Criminal Procedure, wherein all the incriminating evidence has been put to them which they have denied. The accused Shambhu @ Shyam has stated that he is innocent and he has nothing to do with this case and on the day of incident he was not present in Delhi. The accused Dharmender Kumar has also stated that he is innocent and has been falsely implicated. The accused Aditya Gupta has deposed that he was having some dispute with accused Shambu regarding committee/ chit fund and some money was due on Shambhu and he did not give him St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 31 the payment of committee due to which reason Shambhu was having enmity with him. He has stated that Shambhu had made disclosure statement against him to get him involved in this case. The accused Babu Hasan has stated that he has nothing to do with the present case and he was working with M/s. MGF Hyundai, Mayapuri where the accused Shambhu used to come with some Madrasi at Mayapuri. According to him, on the day of Holi of the year 2008 he had some quarrel with accused Shambhu regarding liquor since Shambhu was pressurizing him to take liquor but he had refused due to which reason Shambhu was having enmity with him and got him involved in this case.
Eye witness/ child witness/ court witness:
After the trial of the case was virtually completed, on the pointing out of the Ld. Addl. PP it was observed by this court that the only eye witness namely Baby Aastha who at the time of incident was hardly aged 4 years and was the most material witness,had not even been cited as witness by the investigating officer. It was pointed out by the Ld. Addl. PP for the State that an application filed by the investigating officer for recording the statement of eye witness Baby Aastha under Section 164 Code of Criminal Procedure on 22.7.2008 was present on the police file but the copy of the proceedings under Section 164 Code of Criminal Procedure were not found available on record. This being so, this court has vide its order dated 7.10.2010 opined that Baby Aastha being a necessary, relevant and necessary witness was required to be examined by the court in order to arrive at St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 32 just decision of the case and therefore, directed that she be called as a Court Witness. Further, directions were issued to the Ahlmad to make necessary inquires from the court of Ld. Ilaka Magistrate and to secure the statement of the child so recorded under Section 164 Code of Criminal Procedure if any. After great efforts the Ahlmad attached to this court has been successful in tracing the statement of the child witness under Section 164 Code of Criminal Procedure and the same has been placed on record copy of which was also supplied to the accused persons.
Pursuant to the directions of this court, Baby Aastha aged 4-5 years has been examined as a Court Witness as CW1 on 8.10.2010. In order to ascertain the competency of the witness and her maturity to understand the question, various queries were put to the child and after being satisfied the statement of the court witness Baby Aastha has been recorded in question-answer form wherein she has deposed that she and her mother were at home when her mother called Shyam uncle to get the almirah repaired which almirah was placed in the last room adjacent to the store. She has also testified that Shyam uncle had come along with 3 other persons and her mother, Shyam uncle and these three persons went inside while she was in another room. According to the witness, after sometime Shyam uncle came to her and strangulated her and another uncle caught hold of her legs and threw her inside the bed. She has correctly identified the accused Shyam @ Shambhu as the same person whom she addresses as Shyam uncle and the accused Dharmender as the other person who had caught hold her legs. She has also correctly identified the accused St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 33 Babu Hassan and Aditya Gupta who had came to her house along with accused Shyam @ Shambhu. CW1 has testified that she had pushed open the cover of Diwan and called out her brother Sarthak.
According to the witness, her brother Sarthak is studying in another school and on the date of the incident when he reached the house it was locked and later he along with her Bua residing in the neighbour (Saath Wali Bua) came inside the house from the back door and she was taken out from the Diwan. The witness has testified that when she came out, her mother was lying on the floor in another room. She has further deposed that she was thereafter taken to the hospital. She has also proved her statement recorded by the Ld. Metropolitan Magistrate under Section 164 Code of Criminal Procedure which is Ex.CW1/A. In her cross-examination the witness has deposed that she did not state before the Ld. MM that two persons had come along with accused Shyam and has affirmed that 4 persons had come. According to her, she of her own did not inform her father about the number of persons who came along with the accused Shyam but she had informed him later on his asking. She does not remember how many days after the incident, her father asked her about the same. She has deposed that she did not disclose the complete facts before the Ld. MM but has now disclosed the same before this court. The witness does not remember the numbers of persons which she told to the Ld. MM. She has denied that she had been tutored or that police and her father had shown her the photographs of the accused persons and asked her to identify them in the court. On a specific court question St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 34 the witness has deposed that the accused Adiyta Gupta, Babu Hassan and Dharmender had also came to her house prior to the date of incident for constructing the house.
FINDINGS:
I have heard the arguments advanced before me and carefully perused the record along with the written synopsis of arguments filed by both the parties. I propose to first deal with all the allegations/ averments individually in a tabulated form and later on comprehensively.
Sr. Name of the Details of Deposition
No. witness
EYE WITNESS/ CHILD WITNESS/ COURT WITNESS
1. Baby Aastha She is the only eye witness to the incident and has
(CW1) been examined as a Court Witness. She has deposed
on the following aspects:
1. That she and her mother were at home and her
mother called Shyam to get the almirah repaired which was placed in the last room adjoining the store.
2. That Shyam uncle (accused Shambhu @ Shyam) had come along with three other persons. Her mother along with Shyam and three other persons went inside the room while she was in another room.
3. That after some time Shyam had come to her and strangulated her with his hands and another person caught hold of her legs and threw her inside the bed (box of the Bed/Diwan) St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 35
4. That she pushed the cover of Diwan and called her brother Sarthak who reached inside the room along with saath wali 'Bua' (i.e. Savitri Devi) and took her outside the bed.
5. That thereafter she was taken to hospital where she was medically examined.
6. She has also proved having given her statement before the Ld. Metropolitan Magistrate under Section 164 Code of Criminal Procedure which is Ex.CW1/A (not disputed by the accused persons) on which she had also put her signatures.
She has correctly identified the accused Shambhu @ Shyam whom she referred as Shyam Uncle and the accused Dharmender as the person who had caught hold her legs. She has also identified the other accused persons namely Aditya Gupta and Babu Hasan as the persons who had come with accused Shyam and gone to the other room along with her mother (deceased).
PUBLIC WITNESSES
2. Naveen Kumar This witness is the husband of the deceased who has (PW1) deposed on the following aspects:
1. That on 16.4.2008 he left for his office at 8:30 am leaving his wife Smt. Garima and his daughter Aastha who was a student of class LKG (who had not gone to the school on that day).
2. That his son Sarthak aged 9 years who was studying in class 5th had left for his school.
3. That he received a telephonic call from his neighbour at about 4:00 pm who run a dry cleaner shop under the name of Aggarwal Dry Cleaner regarding a mishap taken place in his house.
4. That he reached his house and saw that his wife Garima was lying dead in the rear bed room on the floor in front of the cupboard and adjoining the bed and there were marks on her neck which had turned blue.St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 36
5. That both of his children were with his neighbour Smt. Savitri Devi who was taking care of them.
6. That her daughter Aastha told the police officials in his presence that one Shyam uncle had come to the house.
7. That there were abrasions on the neck of his daughter Aastha and her face also had blue marks due to which reason she had been sent to DDU hospital for medical examination.
8. That his son Sarthak told him that when he returned from the school, her mother did not open the door after which he went to the terrace and started playing and after some time he heard the muffled voice of his sister on which he went to the neighbourer Smt. Savitri Devi with whom help he entered from the rear door which was bolted from outside.
9. That his son Sarthak also told him that when they went inside they saw that Aastha was entangled in the bed and was crying.
10.That one Shyam @ Shambhu had worked as a Carpenter at his house on 2-3 occasions and had also on two of the occasions had worked for a longer period of one month.
11.That his wife usually wore one gold chain, two gold kara, a pair of tops and nose pin which were missing from her body and a cash of Rs.26,000/-
to Rs.27,000/-, silver coins, 3-4 silver statues of God/Godess, rings, 3-4 pairs of tops, 3 gold chains, three silver anklets, a heart shaped plate and other jewellery were found missing from the cupboard.
This witness has correctly identified the accused Shyam @ Shambhu in the court and has also identified the jewellery articles recovered from the possession of the accused before this court in the court as well as during the Test Identification Parade which proceedings are Ex.PW1/A. St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 37
3. Master Sarthak He is the son of the deceased Garima and is aged 11 (PW2) years. He has deposed on the following aspects:
1. That on 16th of a month last years (from the date of his deposition) he returned from his school at about 2-2:30 pm when he found the main gate of the house was open but the main door of the house was locked from inside.
2. That he tried to push open the door, knocked and also called for his mother but she did not open the door after which he climbed to the terrace and started playing.
3. That after about 1½ hour he also called out for his mother from the Jaal in the terrace when he heard the cries of his sister Aastha.
4. That thereafter from the terrace he went to the terrace of his neighbourer Smt. Savitri who made a phone call on the land line of their house but when there was no response, she came to his house from the terrace itself and went to the rear portion and found that the door on the rear side was bolted from outside.
5. That they open the door and saw that the entire house was ransacked and his mother was lying dead on the floor and his sister Aastha was entangled in the Diwan under the mattress in the middle room.
6. That the upper portion of the torso of his sister was outside the Diwan and the rear portion was still inside the box of Diwan.
7. That Savitri Aunt raised alarm and some neighbours gathered at the spot.St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 38
4. Smt. Savitri Devi She is the neighbour of the deceased Garima and (PW7) had first seen the deceased along with Sarthak and has corroborated the testimony of Sarthak. She has deposed on the following aspects:
1. That on 16.4.2008 at about 3-3:20 pm Sarthak son of Garima came on the roof of her house and called her through the Jall that his mother is not opening the door and asked her to rang up his mother.
2. That he had given the number of his mother and she called on the said number but nobody responded and thereafter he went to the house of Garima through her roof and came down in the house of Garima.
3. That she along with Sarthak went on the backside of the house of Garima and found the door closed from outside and on opening the door of the room she saw that the almirah and bed were open and Garima was lying dead.
4. That the daughter of Garima was crying in other room and Sarthak took his sister out fromm the box of the bed after which she raised alarm pursuant to which neighbourer gathered there.
5. That Om Prakash Gupta had sent information to the Aggarwal Dry Cleaner who is relative of Naveen Kumar. She also informed his son namely Ravi Sethi (who was working in the same office) who thereafter informed Naveen Kumar.
6. That police was informed by Sh. Chaman Lal on 100 number who is the President of the locality.
She has proved her statement given to the police which is Ex.PW7/A. This witness has corroborated the version given by PW2 Master Sarthak and CW1 Baby Aastha. Her presence at the spot is also evident from the testimony of PW1 Naveen Kumar, stands established.
St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 395. Raj Kumar He is the landlord of accused Shambu @ Shyam and (PW14) has deposed on the following aspects:
1. That on 20.7.2008 he had given the second floor of house bearing no. B-38, Bindapur Extension to the family of Shyam Sharma who was living with his father, mother and brother.
This witness has, however, turned hostile on the aspect that Dharmender was residing with the accused Shyam Sharma and has denied the said fact, though he has identified the accused Shyam in the court and also the accused Dharmender.
According to him, Dharmender was not residing with Shyam Sharma but he had seen Dharmender some time with the family of Shyam Sharma.
6. Om Prakash He is a formal witness who has proved having Gupta (PW17) identified the dead body of Smt. Garima in the mortuary.
7. Bharat Singh He is the landlord of accused Aditya Gupta and has Bhardwaj deposed on the following aspects:
(PW18) 1. That in July 2008 he had rented out the accommodation bearing no. RZ-B-60 to the mother of the accused Aditya Gupta @ Babloo namely Smt. Urmila.
2. That the accused was residing in the said house along with his mother, brother and sister and it was hardly 15 days after which the police came and apprehended the accused.
He has correctly identified the accused Aditya Gupta @ Babloo.
MEDICAL WITNESSES:
8. Dr. Komal Singh This witness has proved having conducted the (PW9) postmortem upon the dead body on 17.4.2008. She has proved that the cause of death was asphyxia subsequent to the ligature strangulation over the neck and smothering in combination and both were sufficient to cause death in ordinary course of nature together as well as individually. The witness has also proved that the time since death was approximately 24 hours and the postmortem report which is Ex.PW9/A. St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 40 POLICE WITNESSES/ OFFICIAL WITNESSES:
9. SI Mahesh He is a formal witness who has proved having Kumar (PW3) prepared the scaled site plan which is Ex.PW3/A.
10. HC Naresh He is a formal witness who has proved having Kumar (PW4) recorded the DD Nos. 40A & 41A which are Ex.PW4/A & Ex.PW4/B.
11. SI Shanti Prashad He is the Duty Officer who has proved having (PW5) recorded the FIR copy of which is Ex.PW5/A. He has also proved his endorsement on the rukka which is Ex.PW5/B and the DD No. 43A and DD No. 44A which are Ex.PW5/C & PW5/D.
12. ASI Azad Singh He is the Crime Team incharge who has proved (PW6) having inspected the spot and having prepared his report which is Ex.PW6/A.
13. Sh. Puran Chand This witness has proved having conducted the Test (PW8) Identification Parade of the case property which proceedings are Ex.PW1/A and copy of the same was allowed to the investigating officer vide his order Ex.PW8/A.
14. HC Ram Phal He is the formal witness being the MHC(M) and has (PW10) proved the relevant entries in register no. 19 & 21 copies of which are Ex.PW10/A & PW10/B.
15. Ct. Suresh Kumar This witness has proved having taken the (PW11) photographs of the spot which are Ex.PW11/B-1 to PW11/B-10 and the negatives of which are Ex.PW11/A-1 to A-10.
16. Ct. Anil Kumar He is a formal witness who had taken the exhibits of (PW12) this case to the FSL.
17. Inspt. Ranjit This witness was the Station House Officer of police Kumar (PW13) station Bindapur who has reached the spot on receipt of information. He has deposed on the following aspects:
1. That he along with ASI Mahender Singh and other staff members reached A-39, Jeevan ark, Uttam Nagar where they found the goods scattered and a dead body was lying on the ground near the double bed and the almirah was found open.St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 41
2. That he inspected the dead body and found strangulation mark on the neck and the son of the deceased namely Sarthak, daughter of deceased namely Aastha, husband Naveen Kumar and Smt. Savitri met them.
3. That Aastha informed him that one Shyam uncle along with another uncle had come to their house, but she could not tell anything else and there were scratches on the neck of Aastha due to which reason she was sent to DDU Hospital.
4. That crime team was called at the spot, photographer took the photographs, Dog Squad was also called and the ACP Tilak Nagar also visited the spot.
5. That statement of Smt. Savitri Devi was recorded by him on which he prepared the rukka which is Ex.PW13/A.
18. ASI Mahender This witness had gone to the spot along with the Singh (PW15) SHO and has corroborated the testimony of PW13 in toto.
19. SI Naveen Kumar He has joined the investigations with Inspector Dig (PW16) Vijay Singh. He has proved the following documents:
Ex.PW16/A Arrest memo of accused Shyam Ex.PW16/B Personal search memo of accused Shyam Ex.PW16/C Disclosure statement of accused Shyam Ex.PW16/D Seizure memo of Rs.3,500/-, one necklace, one pair of ear tops, two silver coins and one kara (got recovered by the accused Shyam @ Shambhu) Ex.PW16/E Seizure of iron chain Ex.PW16/F Arrest of accused Aditya Gupta Ex.PW16/G Arrest of accused Dharmender Ex.PW16/H Personal search memo of Aditya Gupta St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 42 Ex.PW16/I Personal search memo of Dharmender Ex.PW16/J Disclosure statement of Aditya Gupta Ex.PW16/K Disclosure statement of Dharmender Ex.PW16/L Seizure of Rs.9,000/-, one pair of ear tops, three silver coins (got recovered by accused Aditya Gupta) Ex.PW16/M Seizure of one necklace, one pair of silver Pajeeb, one silver statue of Durga Maa and cash of Rs.2,000/- (got recovered by accused Dharmender) Ex.PW16/N Common pointing out memo Ex.PW16/O Arrest memo of accused Babu Hassan
20. SI Jile Singh This witness has also joined the investigations along (PW21) with investigating officer and PW16 SI Naveen Kumar. Apart from the documents already proved by SI Navven Kumar, this witness has proved the following documents:
Ex.PW21/A Seizure of one gold chain consisting of 4 laries, one nose pin, one silver plate and one silver statue of Lord Krishna (got recovered by accused Babu Hassan) Ex.PW21/B Pointing out memo of accused Babu Hassan Ex.PW21/C Disclosure statement of accused Babu Hassan.
21. Ct. Suresh Kumar He is a formal witness who has proved having taken (PW19) the Tehrir to the police station and got the case registered.
22. HC Rich Pal He is also a formal witness who has proved that the Singh (PW20) dead body of deceased Garima was remained in his custody till 17.4.2008 and after postmortem it was handed over to Naveen Kumar. He has also proved that the doctor had handed over to him 5 sealed pullandas which were seized by the investigating officer vide Ex.PW20/A. St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 43
23. Insp. Dig Vijay He is the investigating officer of the present case Singh (PW22) and has proved the various investigation proceedings conducted by him.
Coming now to the microscopic examination of the evidence against the accused persons. At the very outset it has become very necessary to highlight that this is one case where the Investigating Officer has committed some glaring irregularities not only during investigations but also during the trial. He has for the reasons best known to him, not cited the most material witness who is the eye witness to the incident as prosecution witness. The child Baby Aastha who was also an injured in the incident and a victim. She is the only living person who had witnessed the incident but has not been cited as a witness by the investigating officer. Her statement under Section 164 Code of Criminal Procedure was recorded by the Ld. Metropolitan Magistrate which was after the filing of charge sheet. Despite the same the investigating officer Inspector Dig Vijay Singh neither filed any supplementary charge sheet nor brought on record the copy of the said statement. He did not even bother to inform the court about the subsequent developments in the case. Despite the fact that Inspector Dig Vijay Singh was examined at length before the court he did not make a whisper of this fact of the statement of the child Baby Aastha having been recorded by the Ld. Metropolitan Magistrate under Section 164 Code of Criminal Procedure while deposing before the court. This conduct of the investigating officer raises serious questions on the credibility of the St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 44 investigating officer and the manner in which the investigations in the present case have been conducted.
I may bring on record that after having observed the aforesaid, this court proceeded to call the child Baby Aastha to the court as court witness and in order to arrive at the truth and for a just decision of the case she was examined as CW1.
Now coming to the merits of the case. Firstly there is no delay in registration of the FIR and the record reveals that in so far as the accused Shambhu @ Shyam is concerned he has been specifically named in the FIR and has been identified by the eye witness Baby Aastha in the court as the person who had come to their house to repair the almirah and had strangulated her and threw her inside the Diwan along with the accused Dharmender. The Apex Court has in the case of Bhag Singh Vs. State of Punjab reported in 1971 Cr. L.J. 903 has pertinently observed as under:
".... The promptness in lodging report justifies the inference in the circumstance of the case that the report was not a concocted story. Where soon after occurrence FIR is lodged, it is difficult to believe that false story was coked up...."
Therefore, I hereby hold that the contents of the FIR are authentic and credible and the FIR was registered soon after the incident.
St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 45Secondly the accused persons before this court i.e. Shambhu @ Shyam, Dharmender Kumar, Aditya Gupta and Babu Hassan have all been identified by the child witness Baby Aastha an eye witness and also a victim who has been examined in the court as CW1. The child Baby Aastha who was aged about four years at the time of incident had been strangulated by the accused. She has identified the accused Shyam @ Shambu as Shyam Uncle who used to come to their house to do the work of Carpenter previously and had proved that he came to their house on the date of incident. She has further proved in her oral testimony that on the date of incident the accused Shyam @ Shambhu had come to their house along with three other persons as her mother wanted to get her almirah situated in the last room repaired, due to which she (the deceased) had taken all these accused to that room while she (child witness) was present in other room. Baby Aastha has further testified that the accused Shambhu @ Shyam came to her and strangulated her while one another person whom she has identified as the accused Dharmender caught hold of her legs and both of them threw her inside the Diwan/ bed. The child CW1 has also identified the other two accused Aditya Gupta @ Babloo and Babu Hasan as two persons who had came to their house with accused Shambhu @ Shyam who all had been taken to the room at the back by her deceased mother.
Thirdly CW1 Baby Aastha is herself a victim of the crime as the accused persons had strangulated her and thrown her inside the box of the bed taking her to be dead. She is not only an eye witness who had seen the accused entering into her house but is the St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 46 only witness who had last seen her mother alive when she had opened the door and lead the accused Shyam @ Shambhu inside along with his other associates whom the child has identified in the court. She thereafter saw the accused Shyam @ Shambhu and three other persons going to the room at the back where her mother had taken them for getting the almirah repaired.
The 'Last Scene' theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It is a settled law that even in such cases the courts should look for such corroboration. (Sanjay Vs. State of U.T. Chandigarh Criminal Appeal No. 1699/2005 decided by the Hon'ble Supreme Court on India on 5.5.2006).
It is settled law that when there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be in compatible with the innocence of the accused or the guilt of other person. (Ref:
Ved Prakash @ Bhagwan Dia Vs. State of Haryana reported in 2006 (3) RCR (Criminal) 992).
In the present case there is no direct eye witness of the murder of Garima but the child Baby Aastha had seen her mother alive when she look all the accused to the room at the back where the Almirah was situated and thereafter she herself was strangulated by St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 47 the accused Shyam @ Shambhu and Dharmender. The modus operandi adopted by the accused in silencing this victim is the same i.e. strangulation. The time gap between the time when Baby Aastha last seen her mother Garima alive and when she was found dead was so small that the possibility of any person other than the accused being the authors of crime become impossible.
Fourthly the various public witnesses have corroborated each other on material particulars and have been successful in forming the complete sequence of events. The testimony of CW1 Baby Aastha who has identified all the accused in the court is specific and consistent. It finds a due corroboration from the testimony of her father namely Naveen Kumar who has been examined as PW1 and her brother Sarthak who has been examined as PW2 and also Savitri Devi who has been examined as PW7. Master Sarthak (PW2) who at the time of incident was aged about eleven years, has specifically deposed that on the date of incident when he returned home from the school he found that the main gate was opened while the main door of the house was locked from inside. He tried to push open the door and knocked at the door and also called for his mother but she did not respond and thereafter he went to the terrace and started playing. After about one and a half hour he again called his mother through the jaal on the terrace when he heard the cries of her sister Aastha on which he went to the terrace of the adjoining house where Savitri Aunt (PW7) resides and called her to his house. They tried to make a telephone call to the deceased but when she did not respond both the them went to the rear side and found that the door was bolted from outside. After opening St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 48 the door they discovered that the entire house was ransacked and his mother was lying dead on the floor. On this PW7 raised an alarm while his sister Aastha was in the middle room and was entangled in the Diwan under the mattress. According to PW2, upper portion of her (Aastha's) torso was outside the Diwan and the rear portion was still inside the box on which he took her out of the Diwan. Both these children Baby Aastha and Master Sarthak have been cross-examined at length but they have stood their ground and there are no material contradictions in their testimonies. PW7 Smt. Savitri Devi who is the neighbour of the deceased and was residing in the adjoining house, has also corroborated the version given by these two children. She has proved that on the date of incident at about 3:30 pm Sarthak (PW2) came to the roof of her house and called her through the jaal informing her that his mother was not opening the door and asked her to call up her mother on her mobile and gave her the mobile number of her mother. She has further proved that she called on the given number but nobody was picking up the phone. She thereafter went to the house of deceased through the roof and came to the house of deceased Garima after which they came to the backside of the house and found the door locked from outside and on opening the door the entire house was found ransacked. The witness PW7 has proved that the almirah was found opened and Garima (mother of Aastha and Sarthak) was lying dead while Aastha was crying in another room on which Sarthak took his sister out while she raised alarm in the neighbourhood and ensured that the husband of the deceased namely Naveen Kumar was got informed. PW1 Naveen Kumar has also St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 49 similarly testified and corroborated the version given by the other witnesses. He has proved that on the date of incident he received a call from the Aggarwal Dry Cleaner that a mishap had taken place with his wife pursuant to which he reached his house and found his wife lying dead and the entire house was ransacked. He has proved that when he reached the spot both his children were with his neighbour Smt. Savitri who is taking care of them. He has further proved that he found abrasions on the neck of his daughter and her face had blue marks on which she was taken to the hospital and when he asked her about the occurrence on which she told that Shyam uncle had come along with 2-3 other persons but did not reveal any other information as she was in the state of shock and was weeping.
Fifthly it is evident from the record that initially the child (Baby Aastha) had told her father that Shyam uncle had come with one other person inside the house. Ld. counsel appearing on behalf of the accused has argued that the names of the other accused persons have been deliberately incorporated at a later stage and that there has been substantial improvement in the version given by the child witness. I have considered the submissions made before me. It may be mentioned that at the time of incident the child Baby Aastha who was aged about 4 years, herself was in a state of shock. She had been strangulated and dumped inside the bed and therefore, it is only natural that she was not in a proper physical and mental state to give the complete details to anybody. A valid explanation forthcoming on behalf of the prosecution and evidently that the first version given by the child to her father on the basis of which the FIR was registered, St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 50 was not a complete version as the child herself was in a state of shock being injured and strangulated and also for the reason that she had virtually witnessed the death of her mother. I do not find merit in the submissions made by the accused. FIR has been registered on the first version given by the father of the child Aastha (namely Naveen Kumar) and no statement of the child Baby Aastha has been recorded by the investigating officer till date nor any inquiries have been made from her to get her version or to ascertain the truth. It is also necessary to highlight that even the statement of child Baby Aastha under Section 164 Code of Criminal Procedure was recorded after the filing of the charge sheet which statement never saw the light of day till such time this court of its own summoned the same after having come to know of it. The child Baby Aastha had been very confident in the court while deposing as a court witness (CW1) and is consistent in her deposition. She has proved her statement made to the Ld. MM under Section 164 Code of Criminal Procedure which is Ex.CW1/A (not disputed by the accused persons) wherein she has specifically named the accused Shyam @ Shambu and also stated that in her statement under Section 164 Code of Criminal Procedure that the accused Shyam along with two other persons had come to their house.
She had also told the Ld. MM that two persons had strangulated her of which one was accused Shyam and during that time her mother was packing the clothes and was keeping the same in almirah. A valid explanation has also been given by the child to the Ld. Metropolitan Magistrate who had specifically told the Ld. Metropolitan Magistrate that she only remembered that Shyam uncle had come to her house but St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 51 how many persons had come along with him, she is unable to tell. This being so, the mere fact that the husband of the deceased had mentioned in the FIR that one person had come with Shyam, would not make any difference since he was not even present at the spot and was not in a position to tell about the number of persons who had come.
Sixthly the child Baby Aastha has specifically identified the accused Dharmender as the person who had caught hold of her legs while Shambhu @ Shyam had strangulated her and thereafter both of them threw her inside the bed. There is no cross-examination or rebuttal on this aspect.
Seventhly it has been proved from the recored that on 24.4.2008 i.e. almost nine days after the incident the accused Shambhu @ Shyam was apprehended on a secret information at the instance of the secret informer and on his sustained interrogation, he disclosed about his involvement in the present case and pursuant to the aforesaid got recovered one gold Kara (bangle); one necklace; one pair of tops; two silver coins one is having statute of Lord Laxmi- Ganesh and other is having the statue of Lords Laxmi, Ganesh & Saraswati; 7 currency notes of the denomination of Rs.500/- which articles he got recovered from the iron almirah kept in the second floor of his house. The said articles were seized by the investigating officer by memo Ex.PW16/D. Further, he has also got recovered one desi katta of .315 bore along with 5 live cartridges and used cartridge. The aforesaid articles seized vide Ex.PW16/D have been duly St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 52 identified by Naveen Kumar (PW1) as the articles stolen from his house on the day of the incident which Test Identification Parade proceedings have been duly proved by Sh. Puran Chand, Ld. MM vide Ex.PW1/A. Eightly the prosecution has duly proved that on the disclosure of the accused Shambhu @ Shyam, the accused Dharmender Kumar was apprehended from house No. RZ-B-59, Bindapur Extension along with the accused Aditya Gupta who both were interrogated and on interrogation they both disclosed their involvement in the present case. It has also been proved that pursuant to his disclosure the accused Aditya Gupta @ Babloo got recovered Rs.9,000/-, one pair of ear tops, three silver coins from the iron box kept in his room which were seized vide memo Ex.PW16/L which articles have been duly identified by PW1 Naveen Kumar in the court as well in Test Identification Parade proceedings Ex.PW1/A duly proved by Sh. Puran Chand, Ld. MM (PW8) to which there is no rebuttal.
Ninethly the prosecution has also successfully proved that during the investigations the accused led the police party to the same room where he was staying with the co-accused Shyam @ Shambhu i.e. RZ-B-38, Bindapur Extension and got recovered one rexene bag containing one gold necklace, one pair of silver pajeeb, one silver statue of Durga Maa and cash of Rs.2,000/- which were seized vide memo Ex.PW16/N which articles has been duly identified by PW1 Naveen Kumar in the court as well as in Test Identification St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 53 Parade proceedings Ex.PW1/A duly proved by Sh. Puran Chand, Ld. MM (PW8) to which there is no rebuttal.
Tenthly it has also been proved by the prosecution that on 30.4.2008 the accused Babu Hasan surrendered in the court after which he was arrested and duly interrogated and in his disclosure he has admitted his involvement in the present case and got recovered a white polythene containing one gold chain consisting of four laries, one nose pin, one silver plate and one silver statue of Lord Krishna from his house bearing no. C-112, Pocket-4, JJ Colony, Binda Pur, Second Floor. The said articles were seized by the investigating officer vide memo Ex.PW21/A and duly identified by PW1 Naveen Kumar in the court as well as in Test Identification Parade proceedings Ex.PW1/A duly proved by Sh. Puran Chand, Ld. MM (PW8) to which there is no rebuttal.
Eleventhly admittedly no public witness was joined in any of the proceedings but that in itself will not be sufficient to discard the proceedings as such since the details of the missing articles which were subsequently recovered from the accused persons find a mention in the testimony of Naveen Kumar (PW1) which recovered articles have been duly identified by him in the Test Identification Parade made also in the court. Non joining of public persons is mere an irregularity and will not be fatal to the case of the prosecution.
Twelvethly it has also been proved by the prosecution that during the investigations the accused Shambhu @ Shyam got St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 54 recovered a three meter long iron chain from under the almirah kept in his room as the same chain with which he had strangulated the deceased. The cause of death in the present case is Asphyxia subsequent to ligature strangulation over the neck and smothering in combination, both of which were sufficient to cause death in ordinary course of nature together as well as individually and all injuries were all the same duration. This has been proved by PW9 Dr. Komal Singh. I have gone through the photographs Ex.PW11/B-1 to Ex.PW11/B-10 duly proved by PW11 Ct. Suresh Kumar and it is evident that the said photographs were taken after a few hours of the incident. It is evident from the photographs that the ligature marks are present on the neck of the deceased but it is difficult to decipher from the said photographs whether the strangulation was made by chain or by some other object. The accused Shambhu @ Shyam had got recovered a three meter iron chain from the almirah kept in his room disclosing that it was the same chain with which he had strangulated the deceased. The investigating officer Inspector Dig Vijay Singh, however, failed to obtain any opinion from the doctor in this regard. Yet the benefit of the same cannot be given to the accused persons in view of the unequivocal testimony of the eye witness establishing their presence at the spot at the time of the incident. Failure of the investigating officer to properly investigate or to secure an opinion from the expert is a serious lapse in the investigations and can even prove fatal to the case of the prosecution. However, in the present case for the reasons already stated herein above, no benefit of the same can St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 55 be given to the accused.
Lastly it has become necessary for this court to observe specifically the manner in which the investigations in the present case have been conducted by the Investigating Officer and Supervised by his senior officers. At the very first instance the investigating officer did not bother to record the statement of the eye witness Baby Aastha who is the star witness of the prosecution and had herself been strangulated and taken as dead by the accused persons and thereafter dumped inside the box of the bed. No doubt, the child was initially in a state of shock but she was repeatedly giving the name of one of the accused persons and there is no justification for not recording her statement at a stage when she was in a position to do so. Further, after the charge sheet was prepared, the perusal of the police file shows that an objection was raised at the time of scrutiny and checking of the same with regard to the non recording of the statement of Baby Aastha and not citing her as a material witness of the prosecution. It is apparent that only to remove the said objection the investigating officer got the statement of the child Baby Aastha recorded under Section 164 Code of Criminal Procedure by the Ld. MM copy of which statement was duly supplied to the investigating officer by the Ld. Metropolitan Magistrate but has never seen the light of the day till such time this court of its own got it searched and ensured its production on the judicial record. The investigating officer did not even bother to prepare a supplementary charge sheet with regard to this subsequent material (i.e. statement of child under Section 164 Code of Criminal Procedure). It is further evident that only the St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 56 accused Shyam @ Shambu was named by Baby Aastha but in so far as the other accused persons are concerned, she was in a position to identify all of them (whom she also identified in the court). It was necessary for the investigating officer to have got conducted the Test Identification Parade which he did not do. Further, despite the fact that the iron chain which was got recovered by the accused Shyam @ Shambhu as the same chain with which he had strangulated the deceased Garima, the investigating officer did not even bother to take any opinion from the doctor to establish whether it was the same weapon/ object with which he had killed Garima. I am surprised that the superior officers of the district of the rank of ACP and above could have even forwarded the charge sheet to the court with such kind of investigations. I may also bring on record the fact that on 7.10.2010 the Additional Public Prosecutor attached to this court informed this court that he had made efforts and had not only sent information to the investigating officer but also to the senior officers of the rank of DCP (West) and ACP concerned to highlight the discrepancies in the investigations but none of the officers appear to have taken him seriously and no assistance have been provided to him in this regard. This being the background, this court was compelled to secure the present of the child witness Baby Aastha as a court witness and examined her to do justice and to arrive at a just decision of the case. This aspect certainly requires to be highlighted before the senior officers.
St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 57FINAL FINDINGS:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 58Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. They have proved having gone to the spot of incident. The identity of the accused persons has been established. They have been correctly identified by the child witness Baby Aastha. The accused Shyam @ Shambhu has been named in the FIR whereas the other accused have been identified by the child witness in the court by pointing out towards them. The role attributed to all the accused have also been established by the prosecution.
Ld. Amicus Curiae for the accused persons has highlighted the various lacunas in the prosecution case. He has argued that the investigating officer had not made any inquiries from the child witness and also did not record her statement at the earliest opportunity. It is argued that the investigating officer has also not cited the child witness Baby Aastha as a prosecution witness nor has he placed on record the copy of the statement of Baby Aastha recorded under Section 164 Code of Criminal Procedure. Ld. counsel has also argued that the investigating officer has failed to got conducted the Test Identification Parade of the accused persons nor he obtained any expert opinion in respect of the iron chain allegedly got recovered by the accused Shambhu @ Shyam Sharma. He submits that benefit of the same should be given to the accused persons.
I have considered the submissions made before me. It is a settled law that it is the actual crime which is important than the St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 59 investigation. Where the actual crime is being elaborated and proved in the evidence of child witness CW1 then the investigation becomes less important as CW1 Baby Aastha has not only deposed regarding the manner of commission of the crime but has also elaborated all the details thereof.
There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. I do not find any substance in the grounds raised by the Amicus Curiae for this accused. The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 60It also stands conclusively proved that all the accused persons Shambhu @ Shyam Sharma, Dharmender Kumar, Aditya Gupta @ Babloo and Babu Hassan, in furtherance on their common intention entered the house of Naveen Kumar and gained a friendly entry into the same with the intention of committing robbery, being known to the deceased Garima previously as accused Shyam @ Shambu had worked in her house as Carpenter on three to four occasions. Thereafter while committing this act of robbery the death of deceased Garima was caused by strangulation. The prosecution has further successfully proved that after committing the robbery of cash and jewellery articles, the said articles were divided amongst all the four accused and therefore, pursuant to their arrest there was recovery of all stolen articles i.e. cash and jewellery from the possession of accused Shambhu @ Shyam Sharma, Dharmender Kumar, Aditya Gupta @ Babloo and Babu Hassan which stolen articles including jewellery and cash have been duly identified by Naveen Kumar (PW1) in the Judicial Test Identification Parade conducted by Sh. Puran Chand, the then Ld. MM (PW8) and also in the court.
It also stands proved from the testimony of CW1 that in so far as the accused Shyam @ Shambu and Dharmender are concerned, the act of strangulating the child and dumping her inside the bed has been done with the knowledge that if they by that act cause the death of Baby Aastha they would be guilty of murder. Therefore, the accused Shyam @ Shambu and Dharmender are held guilty of the charges under Section 307 Indian Penal Code.
St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 61In view of my aforesaid discussion, I hereby hold the accused persons i.e. Shambhu @ Shyam, Dharmender, Aditya Gupta @ Babloo and Babu Hassan guilty of the offences under Section 394, 302 read with Section 34 Indian Penal Code and accordingly convicted. Further, the convict Shambhu @ Shyam and Dharmender are held guilty of the offence under Section 307 read with Section 34 Indian Penal Code and accordingly convicted.
A copy of this order is directed to be placed before the Commissioner of Police, Delhi for intimation and necessary action, under intimation to this court.
Case be listed for arguments on sentence on 21.10.2010.
Announced in the open court (Dr. KAMINI LAU) Dated: 13.10.2010 ASJ-II (NW)/ ROHINI St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 62 State Vs. Shambhu @ Shyam FIR No. 102/08 PS Binda Pur 13.10.2010 Present: Addl. PP for the State.
All the four accused in JC with Sh. Rajneesh Antil Advocate.
Vide my separate detailed order dictated and announced in the open court, the accused persons i.e. Shambhu @ Shyam, Dharmender, Aditya Gupta @ Babloo and Babu Hassan have been held guilty of the offence under Section 394, 397, 302 read with Section 34 Indian Penal Code.
Further, the accused Shambu @ Shyam and Dharmender are held guilty of the offence under Section 307 read with Section 34 Indian Penal Code. All the accused persons are accordingly convicted.
Case be listed for arguments on sentence on 21.10.2010.
(Dr. Kamini Lau) ASJ-II(NW)/ 13.10.2010 St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 63 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JDUGE-II (NORTH-WEST): ROHINI COURTS: DELHI Session Case No. 978/08 Unique Case ID No. 02404R0701842008 State Vs. 1. Shambhu @ Shyam Sharma S/o Om Prakash R/o RZ-B-38, Bindapur Extn., Bindapur, Delhi.
2. Dharmender Kumar S/o Late Sh. Shiv Ratan R/o RZ-B-38, Bindapur Extn., Bindapur, Delhi.
3. Aditya Gupta @ Babloo S/o Late Sh. Shri Kishan R/o RZ-B-59, Bindapur Extn., Bindapur, Delhi
4. Babu Hasan S/o Israr Ahmed R/o VPO Usait, Distt. Badayun, Uttar Pradesh FIR No.: 102/08 Police Station: Bindapur Under Section: 302/394/307/411/34/449/120-B IPC Date of conviction: 13.10.2010 Arguments heard on: 21.10.2010 Date of Sentence: 30.10.2010 St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 64 APPEARANCE:
Present: Sh. Toufiq Ahmed, Addl. PP for the State.
All the 4 convicts in judicial custody with Amicus Curiae Sh. Rajneesh Antil Advocate.
ORDER ON SENTENCE:
Vide my separate detailed judgment dated 13.10.2010, the accused persons i.e. Shambhu @ Shyam, Dharmender, Aditya Gupta @ Babloo and Babu Hassan have been held guilty of the offence under Section 394, 302 read with Section 34 Indian Penal Code. Further, the convict Shambhu @ Shyam and Dharmender have been held guilty of the offence under Section 307 read with Section 34 Indian Penal Code.
The convict Shambhu @ Shyam is a Carpenter by profession and was known to the family of Naveen Kumar, a Junior Engineer in CPWD, since he had worked in their house for about one month. During this period of one month Shambhu @ Shyam took into confidence the family of Naveen Kumar and made friendly relations with them and even the daughter of Naveen Kumar started calling him as 'Shyam Uncle'. However, the convict Shyam @ Shambhu had an evil eye on the cash and jewellery articles which were lying in the house of Naveen Kumar and planned to commit robbery in the house of Naveen Kumar. On 16.4.2008 Smt. Garima the wife of Naveen Kumar called the accused Shambhu @ Shyam for getting the almirah repaired. At that time she was alone at home along with her 4 years St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 65 old daughter Baby Aastha and her husband was away on his duty while her son Saarthak was in his school. Taking an advantage of the situation the convict Shambhu @ Shyam took his friends Dharmender Kumar, Aditya Gupta @ Babloo and Babu Hassan (other co-accused) with him. They all went inside the house of the deceased and commit robbery of the jewellery articles and cash. When the deceased Garima tried to stop them, they strangulated her and caused her death. Baby Aastha, the daughter of the deceased, was in another room at that time. The convicts Shyam @ Shambu and Dharmender Kumar went to her room and in order to remove all traces of the offence, Shyam strangulated her by his hands while Dharmender hold on to her feet and considering her to be dead, dumped the body of the child in the Diwan (inside the box of the bed).
However, as luck would have it, the child Baby Aastha survived, perhaps only to ensure that justice is done to her deceased mother and to bring the culprits to book. She was rescued by her brother Saarthak aged 10 years who had returned home from school and found his house locked. Later, on hearing the muffled cries of his sister, he called out his neighbour Smt. Savitri Devi with whose help he entered the house from the backside and rescued her. The child Baby Aastha knew the convict Shyam @ Shambhu who she used to refer as 'Shyam Uncle' since he had done the work as a carpenter in their house on three-four occasions. The child (Baby Aastha) who was in a state of shock after the incident. She, however, told her father that it was Shyam Uncle who had come to their house along with another person but could tell no more (being in shock for which she St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 66 was also treated medically). It was on this information given by the child that the investigations were immediately initiated and the culprits Shambhu @ Shyam, Dharmender, Aditya Gupta and Babhu Hassan were nailed. After their arrest, the convicts got recovered the jewellery articles which they had robbed from the house of Naveen Kumar which recovered articles have been duly identified by the husband of the deceased. The child witness Baby Aastha who has been examined as Court Witness as CW1, has correctly identified the accused Shambhu @ Shyam to whom she referred as 'Shyam Uncle' both by naming him and pointing out towards him. She has also identified the accused Dharmender by pointing out towards him as the person who caught hold of her legs after which both of them had thrown her in the Diwan. She has further identified the accused Aditya Gupta @ Babloo and Babu Hassan as the persons who had come to her house along with accused Shyam. On the basis of this testimony of the child witness Baby Aastha coupled with the recovery of the stolen jewellery and cash from the possession of all the accused namely Shambhu @ Shyam, Dharmender, Aditya Gupta @ Babloo and Babu Hassan, they have been convicted for the offence under Section 394, 302 read with Section 34 Indian Penal Code. Further, the accused Shambu @ Shyam and Dharmender have been held guilty of the offence under Section 307 read with Section 34 Indian Penal Code.
I have heard arguments on the point of sentence. The convict Shambhu @ Shyam is a young boy of 26 years having a St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 67 family comprising of father, mother, three brothers and one married sister. He is fourth class pass and is a Carpenter by profession.
The convict Aditya Gupta is a young boy of 25 years having a family comprising of aged widow mother and 5 younger brothers. He is fifth class pass and is a labour by profession.
The convict Dharmender is a young boy of 20 years having a family comprising of aged widow mother and one unmarried brother. He is ninth class pass and was working as helper in a private bus.
The convict Babu Hassan is aged about 31 years having a family comprising of mother, father, four brothers, three sisters, wife, three sons & two daughters. He is totally illiterate and was doing the work of denting and painting.
Sh. Taufiq Ahmed, Ld. Addl. Public Prosecutor has vehemently advocated for grant of death penalty for the convicts Shambhu @ Shyam and Dharmender. He has argued that the gruesome act of the convicts in killing a young housewife and in attempting to kill her minor daughter while committing robbery in broad day light, only reflects a depravity of exceptional nature. He has further argued that the act of all the convicts reflect that they have no fear of law and have become a menace to the society. He has submitted that the manner in which they had murdered Smt. Garima and almost murdered the small child Baby Aastha, calls for awarding Capital Punishment to the convicts Shambhu @ Shyam and Dharmender Kumar. The Ld. Prosecutor has also placed his reliance on the judgments in the case of Bachan Singh Vs. State of Punjab St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 68 reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convicts. He has also submitted that the convicts have not been able to show any mitigating circumstances in their favour which could make out a case for imposition of sentence of imprisonment for life.
On the other hand Ld. Counsel appearing on behalf of the convicts has argued that all the convicts are first time offenders and are not involved in any other case except the convict Shambhu @ Shyam who is involved in another case bearing FIR No.111/08, under Section 25 of Arms Act. He has prayed that the convicts may be awarded minimum punishment as prescribed by law under the facts and circumstances of the case since the case of the convicts does not fall within the category of "Rarest of the Rare Cases" warranting imposition of extreme punishment of death. It is also argued that the basic principal of criminal jurisprudence is that the death sentence should be awarded in exceptional cases but the minimum sentence i.e. life imprisonment is a general rule and nothing exception is involved in this case and there is no aggravating circumstances in this case but the mitigating circumstances are involved i.e. convicts are young persons. He has pointed out that there is no direct evidence in the case to connect the accused persons with the offence and the entire evidence is circumstantial.St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 69
I have considered the rival contentions and also considered the various authorities. At the outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be kept in mind before awarding a death sentence in any given case.
The necessity of there being a proportion between the offences and punishment has been long felt and it is also required to be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
The Hon'ble Delhi High Court in its judgment dated 31.8.2009 in criminal appeal no.528/2009 and death reference number 1/2009 has observed that the Court has to see as to whether the case falls in the category of the Rarest of Rare i.e an extreme form of being extremely rare within the larger category of rare or not. Thus, it has to be established that the case falls in the category of the rarest of the rare. Making a reference to their earlier decision as rendered in death reference number 1/2008, titled State Vs. Raj Kumar Khandelwal Hon'ble Mr. Justice Pradeep Nandrajog and Hon'ble St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 70 Ms. Justice Indermeet Kaur of the Delhi High Court also referred to the summary of various judicial pronouncements as made by them while considering the mitigating factors and the aggravating factors which judicial pronouncements are briefly summarized as under:-
A bird's eye view of various judicial decisions reveal that Courts have considered the under noted circumstances, as mitigating: lack of any prior criminal record as held in the decision reported as 2006 EWHC 1555 (OQ) In Re.
Butters'; the age of the offender being too young or too old as held in the decision reported as AIR 1974 SC 799 Ediga Anamma Vs. State of Andhra Pradesh; the character of the offender i.e how the offender is perceived in the society by men of social standing; the probability of the offenders' rehabilitation, reformation and re-adaptation in the society; whether the offence was committed under a belief by the assailant that he was morally justified in doing so; or that the accused acted under the duress or domination of another person as held in the decision reported as 1982 (3) SCC 24 Bachan Singh Vs. State of Punjab; commission of the offence at the spur of the moment without any premeditation; or St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 71 the offender being provoked (for instance by prolonged stress) in a way not amounting to the defence of provocation, as held in the decisions reported as 2008 EWHC 36 (QB) Re. Rahman and AIR 1998 SC 2821 A. Devendran Vs. State of Tamil Nadu; a belief by the offender that the murder was an act of mercy as held in the decision reported as 1994 (Supply) 3 SCC 143 Janki Dass Vs. State (Delhi Administration); a guilty plea by the offender or his voluntarily surrendering before the authorities and his being genuinely remorseful as held in the decisions reported as (2008) EWHC 92 (QB) In Re. Rock and (2006) EWHC 1555 (QB) In Re. Butters'; that the offender acted to any extent in self defence;
that his intention was merely to cause serious bodily harm rather than to kill; that the victim provoked or in any way contributed to the crime, as held in the decision reported as AIR 1999 SC 1699 Kumudi Lal Vs. State of U.P. Lastly, in the decisions reported as AIR 2007 SC 2531 Swami Shradhanand @ Murali Manohar Mishra Vs. State of Karnataka and 2007 Cri. L.J. 1806 Shivu & Anr. Vs. High St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 72 Court of Karnataka & Anr., it was held that in cases of conviction being based on circumstantial evidence a lenient view should be taken on the issue of sentence.
Aggravating factors/circumstances have been opined to be; the accused having undergone previous convictions and his proving to be a future danger/threat or menace to the society considering aspects like criminal tendencies, vagabond lifestyle, drug abuse etc. as per the decision reported as (2008) EWHC 719 (QB) In Re. Miller; offender being in a dominating position to the victim or in a position of trust and has abused the trust; anti social or socially abhorrent nature of the crime i.e where the offence arouses social wrath and shakes the confidence of the people in any social institution; a crime committed for a motive which evinces total depravity and meanness for instance, a financial gain; where the magnitude of the crime is large i.e there are more than one victim; where the crime is committed in an extremely brutal, grotesque, diabolical revolting or dastardly manner so as to arouse extreme indignation of the community as held in the decision reported as 1983 (3) SCC 470 St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 73 Machhi Singh Vs. State of Punjab; significant degree of planning or premeditation and lack of remorse as held in the decision reported as AIR 2005 SC 2059 Holiram Bordoli Vs. State of Assam; the victim being vulnerable due to age or physical infirmity as held in the decision reported as 2008 (110) Bom. LR. 373 State of Maharashtra Vs. Haresh Mohandass Rajput;
mental or physical suffering inflicted on the victim before the death; victim being a public service provider or performing a public duty at the time when the crime was committed, as held in the decision reported as (1977) 431 US 633 Roberts Vs. Louisiana. Lastly, the offender attacking sovereign democratic institutions as held in the decision reported as 2003 (6) SCC 641 Navjyot Sandhu @ Afsan Guru Vs. State".
Further, hon'ble Mr. Justice Nandrajog in his decision as rendered in Shree Gopal @ Mani Gopal Vs. State (Crl. Appeal No. 528/09 decided on 31.8.2009) examined another important facet pertaining to the sentencing procedure i.e of consideration of alternative options while referring to the decision of Hon'ble Supreme Court of India as rendered in the case Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, JT 2009 (7) SC St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 74 249 wherein the Hon'ble Supreme Court of India had observed that a real and abiding concern for the dignity of human life postulates resistance to taking a life through the instrumentality of law. That ought not to be done, save in the rarest of rare cases, when the alternative option is unquestionably foreclosed.
Hon'ble Mr. Justice Nandrajog also considered the various alternatives available to him in the light of Section 433 Cr.P.C. and Section 433A Cr.P.C. regarding the meaning of the sentence for imprisonment for life and the power of the executive to grant remission but, not before a period of 14 years of imprisonment. He also referred to various other decisions of Hon'ble Supreme Court of India while classifying the sentence of imprisonment in two categories i.e the Ordinary Category whereby the court leaves the exercise of executive power at the discretion of the executive, to be so exercised after 14 years of imprisonment and grant remission; and a Higher Category, where the Court, in a Rare Case, but not the Rarest of the Rare, would clip said benefit being extended by directing that the accused shall undergo an actual sentence for a higher period or even for the remainder of his life. Such kind of cases can be put in the category of Rare Cases with appropriate direction of not being entitled to the benefit of remission till a fixed term of imprisonment is undergone. Some of the decisions, noted in this regard by the Hon'ble Judge were Swami Shraddhanand Vs. State of Karnataka reported in AIR 2007 (SC) 2531 in paras 60 to 63 of the said decision i.e the decisions reported as Shri Bhagwan Vs. State of St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 75 Rajasthan reported in 2001 (6) SCC 296, Parkash Dhawal Khairnar (Patil) Vs. State of Maharashtra reported in 2002 (2) SCC 35, Ram Anoop Singh Vs. State of Bihar reported in 2002 (6) SCC 686 and Mohd. Munna Vs. Union of India reported in 2005 (7) SCC 417. The convict in the case of Shree Gopal Vs. State (Supra) was thus sentenced to imprisonment for life with a direction that he will not be considered for being grant of remission till he undergoes an actual sentence of 20 years. It is, therefore, evident that the courts should draw a virtual balance sheet listing the mitigating and the aggravating circumstances against each other and then form an opinion as to where does the fulcrum rest. The various aggravating circumstances are to be considered in the light of the aforesaid mitigating circumstances which also includes in itself the aspect of age of the convict and his conduct during the course of trial.
I may further add that the object of sentence is not only required to be reformative but it should also be punitive, preventive and deterrent. In the words of Mr. Justice A. Pasayat as held in the case of Siddarama and Ors. Vs. State of Karnataka it is necessary for the court to keep in mind that the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be.
St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 76The aggravating circumstance in the present case is that the crime has been directed against a helpless housewife who trusting them had permitted their entry into her house to do the work of repairing her almirah. The convicts taking advantage of this faith made a friendly entry inside her house and after committing robbery in broad day light of huge amount of cash and jewellery, killed the deceased Garima in cold blood without any fear of law. They did not stop at this and in order to further remove all traces of their crime they attempted to kill the four years daughter of the deceased by strangulating her by hand and thereafter by taking her to be dead, dumped her body inside the box of the bed. The mitigating circumstances is the age of the accused persons (all the convicts are young boys) and the fact that they are not previous offenders. This being the background, I hold that this case certainly cannot be put on the same pedestal as any other murder case. The sentiments of the community cannot be ignored and the message must travel to the community at large and in order to deter similar other such like offenders, punishment in the present case has to be exemplary. The manner in which the crime has been committed by convict Shambhu @ Shyam and Dharmender Kumar reflects extreme depravity bringing their case into the category of Rare Case, if not 'Rarest of Rare' which calls for the exercising of alternative options by the court. I therefore, award the following punishments to the convicts:
1. The convict Shambhu @ Shyam is sentenced to Rigorous Imprisonment for life with the direction that he shall not be St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 77 considered for grant of remission till he undergoes an actual sentence of 20 years (Twenty Years) and fine for a sum of Rs.25,000/- (Rs. Twenty Five Thousand) for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 6 months. The total fine of Rs.25,000/- if recovered, shall be paid to the family of the deceased Garima as compensation under Section 357 Cr.P.C.
2. Further, the convict Shambhu @ Shyam is sentenced to Rigorous Imprisonment for a period of 10 years (Ten Years) and fine to the tune of Rs.10,000/- for the offence under Section 307 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of two months.
3. He is also sentenced to Rigorous Imprisonment for a period of 7 years (Seven Years) and fine to the tune of Rs.5,000/- for the offence under Section 394 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of one month.
The sentences imposed upon the convict for the offences Section 302 and 394 Indian Penal Code shall run concurrently. However, the sentence imposed for the offence under Section 307 Indian Penal Code shall run consecutively.
St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 78In so far as the convict Dharmender Kumar is concerned, I award the following punishments to him:
1. The convict Dharmender Kumar is sentenced to Rigorous Imprisonment for life with the directions that he shall not be considered for grant of remission till he undergoes an actual sentence of 20 years (Twenty Years) and fine for a sum of Rs.25,000/- (Rs. Twenty Five Thousand) for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 6 months. The total fine of Rs.25,000/- if recovered, shall be paid to the family of the deceased Garima as compensation under Section 357 Cr.P.C.
2. Further, the convict Dharmender Kumar is sentenced to Rigorous Imprisonment for a period of 10 years (Ten Years) and fine to the tune of Rs.10,000/- for the offence under Section 307 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of two months.
3. He is also sentenced to Rigorous Imprisonment for a period of 7 years (Seven Years) and fine to the tune of Rs.5,000/- for the offence under Section 394 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of one month.St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 79
The sentences imposed upon the convict for the offences Section 302 and 394 Indian Penal Code shall run concurrently. However, the sentence imposed for the offence under Section 307 Indian Penal Code shall run consecutively.
In so far as the convicts Aditya Gupta @ Babloo and Babu Hassan are concerned, their case falls within the Ordinary Category whereby this court leaves the exercise of executive power at the discretion of the executive, to be so exercised after 14 years of imprisonment for grant of remission and not within the Rare Category as of convicts Shambhu @ Shyam and Dharmender. This being so, I hereby award the following punishments to the convict Aditya Gupta @ Babloo:
1. The convict Aditya Gupta @ Babloo is sentenced to Rigorous Imprisonment for life and fine for a sum of Rs.25,000/- (Rs.
Twenty Five Thousand) for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 6 months. The total fine of Rs.25,000/- if recovered, shall be paid to the family of the deceased Garima as compensation under Section 357 Cr.P.C.
2. He is also sentenced to Rigorous Imprisonment for a period of 7 years (Seven Years) and fine to the tune of Rs.5,000/- for the offence under Section 394 Indian Penal Code. In default of St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 80 payment of fine the convict shall undergo Simple Imprisonment for a further period of one month.
Both the sentences shall run concurrently.
In respect of the convict Babu Hassan, he is awarded the following punishments:
1. The convict Babu Hassan is sentenced to Rigorous Imprisonment for life and fine for a sum of Rs.25,000/- (Rs.
Twenty Five Thousand) for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 6 months. The total fine of Rs.25,000/- if recovered, shall be paid to the family of the deceased Garima as compensation under Section 357 Cr.P.C.
2. He is also sentenced to Rigorous Imprisonment for a period of 7 years (Seven Years) and fine to the tune of Rs.5,000/- for the offence under Section 394 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of one month.
Both the sentences shall run concurrently.
Benefit of Section 428 Cr.P.C. shall be given to all convicts for the period already undergone by them during the trial as per St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 81 rules.
The convicts are already in judicial custody. They are sent to custody for serving the remaining sentence.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to all the convicts free of costs and another be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 30.10.2010 ASJ (NW)-II: ROHINI St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 82 State Vs. Shambhu @ Shyam Etc. FIR No. 102/08 PS Binda Pur 30.10.2010 Present: Addl. PP for the State.
All the convicts in JC with Amicus Curiae Sh. Rajneesh Antil, Advocate.
Vide my separate detailed order dictated and announced in the open court, I award the following punishments to the convict Shyam @ Shambhu:
1. The convict Shambhu @ Shyam is sentenced to Rigorous Imprisonment for life with the direction that he shall not be considered for grant of remission till he undergoes an actual sentence of 20 years (Twenty Years) and fine for a sum of Rs.25,000/- (Rs. Twenty Five Thousand) for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 6 months. The total fine of Rs.25,000/- if recovered, shall be paid to the family of the deceased Garima as compensation under Section 357 Cr.P.C.
2. Further, the convict Shambhu @ Shyam is sentenced to Rigorous Imprisonment for a period of 10 years (Ten Years) and fine to the tune of Rs.10,000/- for the offence under Section 307 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of two months.St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 83
3. He is also sentenced to Rigorous Imprisonment for a period of 7 years (Seven Years) and fine to the tune of Rs.5,000/- for the offence under Section 394 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of one month.
The sentences imposed upon the convict for the offences Section 302 and 394 Indian Penal Code shall run concurrently. However, the sentence imposed for the offence under Section 307 Indian Penal Code shall run consecutively.
In so far as the convict Dharmender Kumar is concerned, I award the following punishments to him:
1. The convict Dharmender Kumar is sentenced to Rigorous Imprisonment for life with the directions that he shall not be considered for grant of remission till he undergoes an actual sentence of 20 years (Twenty Years) and fine for a sum of Rs.25,000/- (Rs. Twenty Five Thousand) for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 6 months. The total fine of Rs.25,000/- if recovered, shall be paid to the family of the deceased Garima as compensation under Section 357 Cr.P.C.
2. Further, the convict Dharmender Kumar is sentenced to Rigorous Imprisonment for a period of 10 years (Ten Years) and fine to the tune of Rs.10,000/- for the offence under Section 307 Indian Penal St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 84 Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of two months.
3. He is also sentenced to Rigorous Imprisonment for a period of 7 years (Seven Years) and fine to the tune of Rs.5,000/- for the offence under Section 394 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of one month.
The sentences imposed upon the convict for the offences Section 302 and 394 Indian Penal Code shall run concurrently. However, the sentence imposed for the offence under Section 307 Indian Penal Code shall run consecutively.
I awarded the following punishments to the convict Aditya Gupta @ Babloo:
1. The convict Aditya Gupta @ Babloo is sentenced to Rigorous Imprisonment for life and fine for a sum of Rs.25,000/- (Rs. Twenty Five Thousand) for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 6 months. The total fine of Rs.25,000/- if recovered, shall be paid to the family of the deceased Garima as compensation under Section 357 Cr.P.C.
2. He is also sentenced to Rigorous Imprisonment for a period of 7 years (Seven Years) and fine to the tune of Rs.5,000/- for the offence under Section 394 Indian Penal Code. In default of St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 85 payment of fine the convict shall undergo Simple Imprisonment for a further period of one month.
Both the sentences shall run concurrently.
In respect of the convict Babu Hassan, he is awarded the following punishments:
1. The convict Babu Hassan is sentenced to Rigorous Imprisonment for life and fine for a sum of Rs.25,000/- (Rs. Twenty Five Thousand) for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 6 months. The total fine of Rs.25,000/- if recovered, shall be paid to the family of the deceased Garima as compensation under Section 357 Cr.P.C.
2. He is also sentenced to Rigorous Imprisonment for a period of 7 years (Seven Years) and fine to the tune of Rs.5,000/- for the offence under Section 394 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of one month.
Both the sentences shall run concurrently.
Benefit of Section 428 Cr.P.C. shall be given to all convicts for the period already undergone by them during the trial as per rules.
The convicts are already in judicial custody. They are sent to custody for serving the remaining sentence.
St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 86The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to all the convicts free of costs and another be attached with their jail warrants.
As per the directions dated 13.10.2010, a copy of the judgment be placed before the Commissioner of Police, Delhi for information and necessary action, under intimation to this court.
File be consigned to Record Room.
(Dr. Kamini Lau) ASJ-II(NW)/ 30.10.2010 St. Vs. Shambhu @ Shyam Etc. FIR No.102/08, PS Binda Pur Page No. 87