Delhi District Court
(Delhi) 622 Titled As Kishan Pandit & ... vs . Govt. Of Nct Of Delhi on 10 February, 2011
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE01, NORTH, DELHI.
FIR No.: 580/2004
PS: Sarai Rohilla
U/s: 392/397/120B/34 IPC
& U/s 27 of Arms Act
S.C. No.: 19/2010
Case ID No.02401R0779272005
In the matter of:
State
Versus
1. Shaqueel @ Mulla S/o Waheed
R/o Photo Chowk, Pipal Wali Gali,
Welcome, Delhi.
2. Shamshad S/o Rashid
R/o Chimadass Sarai,
near Bus Stand, Sambhal UP.
3. Imran S/o Yusuf
R/o Mohalla Kot Garbi, Sambhal UP.
4. Bhuran S/o Jamil Ahmed
R/o Miya Sarai, Mata Ka Than,
Sambhal, UP. (P.O.)
S.C. No.: 19/2010 1/24
5. Rashid S/o Not known.
R/o Kasba Husanpur,
Distt. Jyoti Phule Ka Nagar,
UP. (PO)
Date of receiving in Sessions Court : 07.10.2005
Arguments Heard : 31.1.2011, 10.2.2011
Date of Judgement : 10.2.2011
JUDGEMENT
Case Of Prosecution:
1. On 22.10.2004 vide DD No. 20A an information was received in the Police Station Sarai Rohilla that a dacoity has been committed at house No. A175, Shashtri Nagar, Delhi. DD was marked to SI Rajender Singh Khatri who alongwith Ct. Devender Kumar reached at the spot i.e. A175, Shastri Nagar, Delhi where in two rooms at first floor of the said house, the articles were lying scattered. Complainant Smt. Kamlesh met them who stated that at about 6.30 p.m. she was alone in her house at first floor and from the staircase four persons came inside the house. They tied her hands with her saree, two were having desi kattas, one was having knife and another was having some round thing.
They demanded keys from her on which she told them that everything is open. Thereafter they checked the wooden almirah and bed and took out Rs.2.5 lacs from the wooden almirah. They also snatched her gold bangles, rings and Tulsi Mala and put the same in a bag on which Panna S.C. No.: 19/2010 2/24 Lal Jeweller was written and having some documents of house and ran away. She untied herself and called the neighbours from balcony as well as police. Thereafter police reached there. On the basis of statement of the complainant, IO prepared a rukka and got registered the case u/s 392/397/34 IPC through Ct. Devender. During investigation IO prepared the site plan and recorded the statement of the witnesses. Thereafter on 7.11.2004 the investigation of the case was transferred to SI Arvind Pratap Singh. He also tried to trace out the accused persons but no clue was found. On 23.11.2004 SI Om Prakash alongwith his staff members was present at Vaishnu Mata Mandir and on the secret information accused Shamshad and Imran were arrested by them. From the search of accused Imran, one desi katta alongwith two cartridges were recovered and from the search of accused Shamshad, one desi katta alongwith two cartridges were recovered. Separate cases were got registered against both the accused persons vide FIR No. 632/04 and FIR No. 633/04. Both the accused persons made their disclosure statement regarding their involvement in the present case alongwith their associates Shaqueel @ Mullah, Rashid and Bhuran. On the pointing out of accused Shamshad Rs. 7000/ were got recovered from the house No. A23 Shashtri Nagar in a cotton shop and on the pointing out of accused Imran, Rs. 10,000/ were also recovered from the shop of Shamshad in a cotton bag from A23. As per the disclosure statement of accused Shamshad and Imran, Rs. 58,000/ were recovered from the house of accused Shaqueel from the safe of a S.C. No.: 19/2010 3/24 almirah. A bag was also recovered from the house of accused Shaqueel and the same was identified by the son of the complainant as belonging to them. SI Om Prakash prepared the pointing out memo and seizure memo. Accused Shamshad and Imran were got identified by the complainant. Accused Shaqueel refused for his TIP. Police custody remand of accused Shamshad, Imran and Shqueel was taken to search accused Bhuran and Rashid but no clue was found. After transfer of SI Om Prakash, investigation of the case was marked to SI Dinesh Prasad. During investigation he obtained NBWs of Bhuran and Rashid. Process u/s 82/83 Cr. PC. was issued against accused Bhuran. Challan was filed against accused Shaqueel, Imran and Shamshad. On 9.7.2005 an information was received regarding arrest of accused Bhuran in case FIR No. 167/2005 u/s 384/307/34 IPC PS Welcome and his disclosure regarding the present case also. Investigation was handed over to SI D.P. Yadav who arrested accused in the present case also. Accused Bhuran refused for his TIP. Police custody remand of the accused was taken he pointed out the place of occurrence also. After completion of investigation, supplementary challan against accused Bhuran u/s 392/397/120B /34 IPC was filed in the court.
2. Since the offences u/s 395/397 IPC are exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
S.C. No.: 19/2010 4/24 Charge Against The Accused:
3. Prima facie case u/s 395 of IPC r/w section 397 IPC was made out against all the accused persons. Charge was framed against them to which they pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 12 witnesses in all.
5. The brief summary of the deposition of the prosecution witnesses is as under:
Formal witnesses:
6. PW1 SI Om Prakash is the duty officer who recorded the FIR of the present case and proved the same as Ex. PW1/A.
7. PW4 SI Rajinder Singh is the first IO of the case who stated that on 22.10.2004 he was posted at police station Sarai Rohilla. On that day in the evening he received copy of DD No.20A Ex.PW4/A, regarding a dacoity at house No. A175, Shashtri Nagar. He alongwith Ct. Devender proceeded to the spot. After reaching the first floor of that house, he found the locks broken and goods scattered. One Smt. Kamlesh met him there who made her statement Ex.PW2/A. He made endorsement Ex. PW4/B on that statement and sent the rukka through constable for registration of the case and also summoned the crime team, dog squad and photographer at the spot. He prepared site plan Ex. PW4/C. Thereafter he S.C. No.: 19/2010 5/24 continued searching the offenders but could not succeed.
8. PW6 is ASI Manish Kumar Bhardwaj, finger print expert who lifted the chance prints and developed the same as Q1 to Q8 and same were photographed at the spot. He prepared his report and proved the same as Ex. PW6/A.
9. PW7 is SI Dinesh Kumar, second IO of the case who arrested accused Bhuran in the present case on 12.7.2009 when he was produced in the court in a case FIR No.167/05 u/s 384/307/34 IPC. He filed the supplementary chargesheet against accused Bhuran in the court.
10. PW11 is Ms. Archana Sinha, ADJ (Central) who conducted the TIP of accused Shaqueel at Tihar Jail who refused to participate in the TIP. She proved the TIP proceedings as Ex. PW11/A to PW11/D.
11. PW12 Ct. Satyawan is the MHC (M) who made the entry in register no.19 regarding deposit of the sealed pulanda of this case and proved the same as Ex. PW12/A and PW12/B. Material witnesses:
12. PW2 Smt. Kamlesh is the complainant who stated that she is a house wife and is residing with her husband and children at A175, Shashtri Nagar, Delhi. She stated that on 22.10.2004 she was present at first floor and it was about 6.15 p.m. and she left her daughter in law at ground floor. When she reached at her room on the first floor, then five boys came in her room out of five, two were armed with desi katta, one was armed with knife and one was armed with bomb. The knife was of S.C. No.: 19/2010 6/24 big size. Out of five boys, one boy namely Imran demanded money to which she refused and thereafter one boy out of the five boys who was tall was having katta broke open the almirah and took out the cash amount of Rs. 2.5 lacs from the almirah. Accused Imran present in the court "Mere Muh Ke Andar Meri Saree Ko Ikktha Kar Kee Thush Diya Aur Mere Hath Per Bandh Diye." and then he removed her four gold bangles from her hand, four gold rings and one gold Tulsi Mala and accused threatened that if she will raise alarm they will kill her and claimed themselves as terrorist. The other accused namely Shamshad knew them as he has worked with them while the other two accused Shaqueel and Bhuran and another accused who is not present in the court, opened box of the bed and searched the same for cash and jewellery. She was terrified by the accused persons and therefore, she kept mum. Thereafter, all the boys ran away from there. They informed the police. Her statement Ex. PW2/A was recorded by the police. Case was registered. She had pointed out the place to the police and they prepared site plan at her instance. After about 15 days, she also identified accused Imran and Shamshad when she was going to Mandir and the accused were fighting with each other near petrol pump and she informed the police and both the accused were apprehended at her instance. She further stated that after about one and half month, she was called at Tihar to identify another accused namely Shaqueel but accused Shaqueel refused to participate in the TIP proceedings. Her statement was also recorded regarding identification of above three S.C. No.: 19/2010 7/24 accused.
13. PW3 is Sh. Sanjay Goyal son of the complainant who stated that on 22.11.2004 at about 6 p.m. dacoity took place in their house when his mother Smt. Kamlesh was present at home alone and on receiving information from neighbours he also reached at his house and he found that all the articles were lying scattered. The boxes of the bed were also lying open and his mother was weeping at that time. He pacified his mother and his mother told him about robbery. He informed the police at 100 number. Statement of his mother was recorded and the case was registered by the police. He checked the almirahs etc and came to know that 11 gold bangles of his mother, ear tops, rings, cash Rs. 2.5 lacs on which they had put slips for identification and had written Om Namey Shivay on the same. On 23.11.2004 at about 8.30 p.m. he alongwith his mother Smt. Kamlesh was returning from Mandir and reached at his house in the meanwhile police brought accused Shamshad and Imran and they both pointed out at their house and told that they have committed robbery in their house. He knew accused Shamshad as he was working with their tenant. The pointing out memo Ex. PW3/A was prepared. Both the accused were joined in the investigation. Accused Imran took them to one shop at Shashtri Nagar and got recovered cash Rs.10,000/ (one packet of hundred currency notes of Rs.100 denomination on which their slip was attached) which he identified and the same was taken into police possession vide memo Ex. PW3/B. One another accused namely Shqueel S.C. No.: 19/2010 8/24 was also arrested on that day and he was also interrogated who also pointed out the spot and got recovered Rs. 58,000/ (six notes of Rs. 500/ denomination and 280 currency notes of Rs.100 denomination) which he also identified and the same were also taken into police possession vide memo Ex. PW3/C. Accused Shamshad also got recovered Rs.7000/ (70 currency notes of Rs. 100 denomination) attached with the slip on which his name and address was written which was also taken by police into police possession vide memo Ex.PW3/D. Accused Shaqueel Ahmed got recovered one blue colour bag printed with Om Parkash Jeweler which he also identified and same was also taken into police possession vide memo Ex. PW3/E. Accused persons were arrested and his mother also identified them when they met them while they were returning from Mandir. Witness further proved all the memos prepared by the police in his presence. He further identified the case property as Ex. P1 to P4.
14. PW5 HC Jasbir Singh and PW8 Ct. Joginder, PW9 Ct.
Arvind Kumar are the members of the raiding party who joined the investigation with SI Om Prakash.
15. PW10 is SI Om Prakash, third IO of the case who conducted the investigation of this case and arrested accused Imran, Shamshad and Shaqueel and proved all the memos etc.
16. Statements of accused u/s 313 Cr.P.C. were recorded wherein they denied the case of prosecution and stated that they are innocent and have been falsely implicated in this case.
S.C. No.: 19/2010 9/24
17. Accused Shamshad and Shaqueel @ Mulla further chose to lead evidence in defence and examined four witnesses in their defence.
18. DW1 is Sh. Shamshad Ahmad who stated that he used to work as Supervisor in the Factory of Shaqueel Ahmad and the work of collecting and making payment and supplying goods was under his supervision. On 23.11.2004 at about 11/11.30 a.m. he had brought a payment of Rs. 35000/ from Sh.Hazi Sharif. The 60 currency notes were in denomination of Rs. 500/ each and 50 notes were of Rs. 100/. He had also brought the payment of Rs. 40000/ from Ikraf Fashion. The notes were in denomination of Rs. 100/ and there were four bundles of the same. All the bundles were tied with a rubber band. At about 1.00 p.m. he gave this amount of Rs. 75,000/ to Shaqueel Ahmad wrapped in a milky white polythene and Shqueel Ahmad took the amount to his residence at third floor. At about 5/5.30 p.m. on the same day, three police man came and asked about Shaqueel and he told them that Shaqueel had gone to market to purchase vegetable. After about 15 minutes two police persons went out and thereafter after 5/7 minutes the third police man also went out. Thereafter two police persons came alongwith accused Shaqueel Ahmad after 15/20 minutes and they suddenly entered into the factory. They started searching the factory. He asked them about the reason but they did not disclose any reason. Thereafter two police man went upstairs and after about half an hour they came downstairs. They were having the same milky white polythene which he had given to Shaqueel Ahmad S.C. No.: 19/2010 10/24 having the currency notes of Rs. 75,000/ and it contained the same payment which he had collected from the market.
19. DW2 is Hazi Sharif Ahmad who stated that on 23.11.2004 he had given sum of Rs. 35000/ to Shamshad and 60 currency notes were in denomination of Rs. 500/ and 50 notes were in denomination of Rs. 100/.
20. DW3 is Nisar Ahmad who stated that accused Shamshad is living in Mohalla Rai Shakti, Sambhal, Amroha. He stated that accused Shamshad came to Delhi in year 1994 for doing work. In 1994 accused Shamshad was working at the cotton shop in Samaypur Badli and in 2004, Shamshad was working at the cotton shop of Ashkar in Shastri Nagar. He further stated that Shamshad was arrested by the police officials from Bus Stop of Mohalla Rai Shakti, Sambhal, Amroha at about 5.00 a.m. on 23.11.2004
21. DW4 is Shakina Begum, mother of accused Shaqueel Ahmad who stated that on 23.11.2004 at about 5 to 5.30 p.m. three police officials of P.S. Sarai Rohilla forcibly entered into her house and forcibly took Rs. 75,000/ alongwith his son Shaqueel Ahmad from her house without assigning any reasons and when she objected, one of the police official pushed her and abused her and they falsely implicated her son in a loot case. She further proved the various complaints made by her regarding illegal arrest of her son Shqueel before higher authorities.
22. I have heard Ld. defence counsels for accused persons as well S.C. No.: 19/2010 11/24 as Ld. APP for the State and have carefully perused the record. Conclusion:
23. Section 395 IPC deals with the punishment for dacoity. Dacoity is defined in section 391 IPC as: " Dacoity is a robbery committed by 4 or more persons and is an aggravated form of robbery when persons taking part therein are five or more.
24. The essentials of the offence of Dacoity are that the theft should be perpetrated by means either of actual violence or of threatened violence. The threatened violence may be implied in the conduct and character of the mob".
25. Under section 395 IPC the prosecution must prove that the dacoity was committed or attempted.
26. Section 397 IPC is intended to cover the case of a person who displays a deadly weapon to frighten his victims or their neighbours or who makes used of any deadly weapon for other similar purposes and its operation is not confined to cases where the weapon is used actually for causing injury or for attempting to cause an injury to another. In addition to the commission of dacoity U/s 397 IPC, prosecution is required to prove that the accused used a deadly weapon or caused grievous hurt or attempted to cause the death or grievous hurt and the said act was done during the commission of dacoity.
27. In the case in hand, PW2 is Smt. Kamlesh. She is the S.C. No.: 19/2010 12/24 complainant of this case on whose complaint present case against the accused persons had been registered. She deposed that she is a house wife and is residing with her husband and children at A175, Shashtri Nagar, Delhi. On 22.10.2004 at about 6.15 p.m. when she was present at the first floor of her house, five boys came in her room. Out of those five persons, two were armed with desi katta, one was armed with knife and one was armed with bomb. The knife was of big size. Out of the five boys, one boy namely Imran demanded money to which she refused and thereafter one boy who was tall and was having katta broke open the almirah and took out the cash amount of Rs. 2.5 lacs from the almirah. She stated that accused Imran present in the court tied her hands and legs and also put her saree in her mouth and thereafter he removed her four gold bangles from her hand, four gold rings and one gold Tulsi Mala and also threatened her that if she will raise alarm then they would kill her. She has duly identified accused Imran and Shamshad and has stated that they alongwith other coaccused persons namely Shaqueel and Bhuran and one another accused who is not present in the court, opened box of the bed and searched the same for cash and jewellery. She was terrified and therefore, she kept mum and after taking the jewellery and cash, all the accused persons ran away from the spot. She informed the police, police reached at the spot and her statement Ex. PW2/A was recorded.
28. The rule of prudence requires that the chief of witness can be relied upon only if it passes through the litmus test of cross examination. S.C. No.: 19/2010 13/24 In her chief examination this witness has duly identified all the accused persons and has further stated that after 15 days accused Imran and Shamshad were arrested in her presence when she was going to Mandir and she had informed the police after seeing the accused persons. Thereafter she was called by the police at Tihar to identify one of the accused namely Shaqueel who refused to participate in TIP proceedings. Perusal of the record shows that this incident took place in 2004. One of the accused thereafter was declared PO and in all the proceedings it took so much time that the testimony of this witness was recorded for the first time in 2006 and thereafter her cross was deferred again and again and subsequently the cross of this witness had been completed in 2008 . During this period it seems that the witness also came to the court various times when she was not examined for one or the other reasons. In her cross she has stated that she has studied upto 8th class and she has two sons (one son is married ) and three married daughters. Thus, the witness is an old lady as her one son and three daughters are already married. She has denied the suggestion that her eye sight is weak and therefore she could not identify the accused persons. She has further stated that in the month of November the sun sets early and due to darkness a person cannot be identified from distance. But it is not necessary that in each and every case, the person cannot be identified. No doubt it was dark in the month of November but the witness has stated that accused were arrested near the petrol pump and there must be the light of petrol pump S.C. No.: 19/2010 14/24 also. No suggestion has been given to the witness that at the time when the accused were arrested there was no light. The witness has not only identified the accused persons in the court but she has also attributed the acts i.e. which of the accused broke open the almirah, which of the accused tied her hands and legs and removed jewellery from her person and which of the accused opened the box of the bed. Therefore, no presumption can be raised that the witness is deposing falsely or was not able to identify the accused persons at the time of incident. In her cross she has further stated that accused remained at her house for about one hour and her Almirah was not locked and her husband and son used to keep the money there. She has further stated that she does not know how much money was lying there at that time and also does not remember if she told the police this fact or not. She has stated that she does not remember if she told this fact to the police. In her statement no doubt the witness has given the amount of cash looted by the accused persons as 2.5 Lacs . But when this witness gave her statement to the police then her son alongwith her husband who were working in the same area nearby had already come there on hearing the news of dacoity in their house and therefore they must be aware of the amount looted by the accused and therefore while giving statement to the IO if she told the exact amount of money to the IO then no adverse inference for the same can be drawn. She has further stated that when the accused persons entered lights were on and the accused persons entered with unmuffled face. No suggestion S.C. No.: 19/2010 15/24 has been given to this witness that the accused persons were in muffled face or that the witness was not able to identify the accused persons.
29. PW2 has further stated that she did not identify the accused persons by name or by face at that time. Much has been argued by the Ld. Defence counsels on this sentence. Whereas this sentence carries a simple meaning that neither the witness knew the name of accused persons at that time nor she was familiar with their faces. She herself has stated that accused Shamshad was known to her for many years as he was working in a shop at a distance of two gali and used to visit their house. He used to talk to her family members and she was familiar with his voice. There is one sentence of this witness that accused Shamsahd was not among the five persons who entered into her house. But not a single sentence but the testimony of the witness as a whole is to be read into evidence . The witness has stated that Shamshad used to work in a shop at distance of two gali. The witness is a resident of Shastri Nagar and this fact that accused Shamshad was working in Shastri Nagar has also been admitted by DW3 Nisar Ahmad who has been examined by accused Shamshad in his defence evidence. DW3 has stated that in the year 2004 accused Shamshad was working at the cotton shop of Ashkar in Shastri Nagar. The incident is stated to have taken place in 2004 and PW2 has also stated that accused Shamshad was working in a shop near their gali. In the cross examination this witness has stated that she is not keeping good health and therefore she does not remember many things S.C. No.: 19/2010 16/24 now. The witness is an old lady as is clear from her statement that she has three married daughters and one married son. Moreover chief of the witness was completed in 2006 and thereafter her cross was deferred and again she was called in the witness box in year 2008 i.e. after a gap of two years. Human beings do forget after a lapse of time and PW2 is also no exception to this fact. She has clearly stated that she is not keeping good health and therefore she does not remember many things. Further it seems that the witness came to the court many times between 2006 to 2008 and her frustration in coming to the court again and again is reflected in her cross examination conducted in 2008. She has clearly stated that she is not keeping good health now a days and does not remember many things now. She has stated that she does not remember the dates when her statements were recorded by the police or the contents of her statement given before the police. She has stated that she can tell the articles which were taken by the accused persons but not their weight. She has stated that three rings, four bangles and one chain were taken away by the person who was wearing the cap after tying her hands and legs but she does not remember his name. She has stated that she does not remember the contents of the papers on which her signatures were obtained by the police. PW2 is an old lady. She is a house wife and is only 8th class passed. Therefore, it cannot be expected from her that she will remember each and every documents and its contents after four years of the incidents.
S.C. No.: 19/2010 17/24
30. So far as the identification of the accused persons is concerned then at the spot it is true that none of the accused persons were identified by the witness as she had not given name of any of the accused persons in her statement or at any other place. PW2 had duly identified both accused Shamshad and Imran while she was going to Mandir and accused persons were fighting with each other near petrol pump. The witness in her cross has stated that she did not identify any of the accused persons either at the spot or at any other place and she also singed the documents at the instance of the police. This fact is also true that the witness did not identify any of the accused persons at the spot. If she would have identified them at the spot then in her statement also she would have given their names or any other identify of the accused persons to the IO but except for the descriptions of the accused persons she has not given any name to the police officials in her statement which shows that the witness is not telling lie. The witness has also stated that her son Sanjay Goel used to remain with her whenever she visited the police station and she does not remember how many times she visited the police station but at least twice she had gone to police station. The witness has stated that at least she went twice to the police station. After the incident as well as when accused Shamshad and Imran were arrested she must have gone to the police station and this fact stated by PW2 also proves that she is a truthful witness and is not telling any lie. No suggestion has been given to PW2 that she is deposing falsely at the S.C. No.: 19/2010 18/24 instance of police officials or she has falsely implicated the accused persons due to some prior enmity. Even this is not the defence of accused persons that they had some prior enmity with the complainant or her family members, due to which complainant falsely implicated them in the presence case.
31. PW3 is Sh. Sanjay Goel, son of the complainant . This witness reached at the spot after the incident had already took place. He has stated that he checked the almirahs etc and came to know that 11 gold bangles of his mother, ear tops, rings, and cash of Rs. 2,50,000/ on which they had put slips of Om Namey Shivay for identification were missing. Though there are discrepancies in the statement of PW2 and PW3 regarding the quantity of gold bangles but the fact remains that this witness has also deposed that gold bangles, ear tops, rings and cash was looted from their house. The witness has stated that cash was kept in a blue colour bag printed with Panna Lal Jewellers. This witness has further stated that accused Shamshad and Imran were arrested on their pointing out when he alongwith his mother were returning from the Mandir. He has also deposed that accused Shamshad was working with the tenant and is living in Shastri Nagar. DW3 who is the witness produced by the accused in his defence has also stated that accused Shamshad was working in a cotton shop in Shastri Nagar. This witness has further stated that accused took them to a shop at Shastri Nagar and got recovered some cash. In the present case though the gold jewellery has not been recovered by the S.C. No.: 19/2010 19/24 police officials but that does not disprove the case of prosecution as the currency notes which have been recovered by the police officials at the instance of accused persons have been duly identified by the complainant as well as her son. The slight discrepancies here and there in the statement of PW2 and PW3 does not go to the root of the case and also does not shake the case of the prosecution.
32. So far as the identity of the bag is concerned, no TIP of the same has been conducted and this bag was produced in the court also in unsealed condition but it does not mean that the bag is tampered one. Ld. Defence counsels argued that PW3 in his statement that stated that the bag was printed with Panna Lal Jewellers but the bag which has been recovered from the house of accused Shaqueel and is produced in the court is of Om Prakash Jewelers but same has been duly identified by the witnesses in the court. Ld. APP for the stated argued that the bag belongs to a jeweller whether it was Panna Lal Jeweler or Om Prakash Jeweler and it is possible that the witness got confused whether it was of Panna Lal Jeweler or of Om Prakash Jeweler and therefore for the same no adverse inference can be drawn. The submission of Ld. APP for the state bears force and cannot be ignored. PW3 has further stated that they have no relations with accused Shamshad but he used to see him while coming and going and his mother did not mention name of any of the accused persons and she tried to describe the accused persons by mentioning their height etc. and that they were having knives. He has further stated that he S.C. No.: 19/2010 20/24 does not remember the date when his second statement was recorded by the police but it was recorded on the day when these accused persons were arrested. Whether the statement of witness was recorded twice or once, does not shake the case of prosecution when the witness has duly identified the accused persons in the court also.
33. Accused Shaqueel had also refused to participate in the TIP proceedings and for the refusal, an adverse inference has to be drawn against him. So far as accused Shamshad and Imran are concerned then, they both were apprehended at the instance of complainant and her son and it was only accused Shaqueel who was not apprehended in the presence of complainant who is the only eye witness and victim of the case. For the refusal of accused Shaqueel to participate in TIP proceedings, an adverse inference is to be drawn against him. No suggestion has been given to PW2 that accused Shaqueel was shown to her in the police station or his photographs were shown to her by the police.
34. Ld. Defence counsels argued that PW 4 has stated that the lights were not on at that time and the visibility was clear whereas PW2 has stated that the lights were on and this is a major discrepancy in the testimony of these witnesses. PW2 is the eye witness of the spot, she is the victim and has stated that the lights were on. Moreover the incident is of October evening and the lights must be on at that time. If the police officials who reached at the spot has stated that they did not find lights on S.C. No.: 19/2010 21/24 and the visibility was clear it cannot be given much importance in view of the fact that they reached at the spot after the incident. They might not have noticed whether the lights were on or off at that time. Moreover the testimony of PW4 has been recorded after about 4 years of the incident. Witnesses do forget after a lapse of time and the small contradictions here and there in the testimony of witnesses does not shake the case of prosecution . PW2 has clearly stated that accused were having pistol, knives and bomb in their hands which also duly proves that fact that accused were armed with weapons with which they put PW2 under the fear of instant death or injury. As a general rule, a court can and may act on the uncorroborated testimony of a single witness. However, in order to sustain an order of conviction on the basis of the testimony of a solitary witness, the evidence must be clear, cogent, convincing and should be of an unimpeachable character. In the case in hand, the testimony of PW2 also seems to be trustworthy and it does not seem that she is a tutored witness or is telling lie.
35. The other witnesses examined by the prosecution are the police officials who accompanied the IO during the investigation of the case and have duly proved all the links in the chain of evidence.
36. DW1, DW2 and DW4 are the witnesses examined by accused Shaqueel Ahmad. DW4 is the mother of accused Shaqueel Ahmed . This witness has stated that she had lodged the complaints regarding illegal arrest of accused Shaqueel after about 3 months of the arrest of accused S.C. No.: 19/2010 22/24 Shaqueel. It seems that no steps were taken by any of the family members of accused Shaqueel to inform the police or the PCR officials at the time when accused Shaqueel was being arrested illegally. The complaint has been made after 3 months of the arrest which seems to be an after thought and also even to the police officials no such suggestion has been given by the accused.
37. Ld. Counsel for accused has placed reliance upon 2009 V AD (Delhi) 622 titled as Kishan Pandit & Ors. Vs. Govt. of NCT of Delhi wherein it has been held that: " To this court, it is apparent therefore that the most crucial piece of evidence regarding the presence of the accused at the place of occurrence has not been proved by the three persons who were definitely present at that time in the house. The incident stated to have taken place at around 9 p.m. it is not the case of prosecution that the house was not properly lit as a result of which the complainant and the residents of the house could not identify the three persons who had committed the robbery. As long as the appellants were unable to be identified in court by PWs 1,2, and 3, the most crucial evidence to link them with the crime in question is missing".
38. In the present case all the accused persons have been duly identified by the complainant and this authoritative pronouncement cited by the defence counsel does not help the accused in any manner.
39. In view of the abovesaid discussion, prosecution has been fully able to prove its case against the accused persons beyond shadow of doubt. As such, all the accused persons are held guilty and convicted for the offence U/s 395 r/w sec. 397 IPC.
S.C. No.: 19/2010 23/24
40. Accused Rashid and Bhuran are Proclaimed Offenders and prosecution is at liberty to reopen the case against them as and when they are arrested.
(MADHU JAIN) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi.
Announced in the open court today i.e. on 10.2.2011. S.C. No.: 19/2010 24/24