Delhi District Court
State vs . on 28 January, 2012
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDL. SESSIONS JUDGE02 (NORTH):DELHI.
S.C. 84/10
Case I.D. No.02401R0489522010
State
Vs.
(i)Lakhinder @ Raju
Son of Ramanand
R/o Jhuggi No.722, Rakhi Market,
Jakhira
Delhi.
(ii)Shokat
Son of Ahmed Hussain
R/o Jhuggi No.425, Rakhi Market,
Jakhira
Delhi.
FIR No.: 186/10
PS: Sarai Rohilla
U/S 392/394/397/302/411/34 IPC
Date of Institution:13.10.10
Date of reserving Judgment:16.1.12
Date of pronouncement:28.1.12
JUDGMENT
In the present case, charge has been framed against accused Lakhinder @ Raju and Mohd. Shokat in respect of offence U/S 396 IPC. Alternatively, charge was also framed U/S 302 read with Section 34 IPC. Session Case No.84/10 1/28 2 It is alleged in the charge that on 12.6.10 at Tulsi Nagar, Nala Road, Delhi they alongwith coaccused Swalihin and Sudhir Ghosh @ Babu(both juvenile)and coaccused Shahid @ Sheru(not arrested)in furtherance of their common intention committed dacoity upon the person of Dina Nath and looted one mobile phone Nokia, IMEI No.359232037190071 and one purse containing some currency notes and committed murder of Dina Nath while committing dacoity. Alternatively, it is also alleged that both accused alongwith coaccused Swalihin and Sudhir Ghosh @ Babu (both Juvenile)and coaccused Shahdi @ Sheru(not arrested)in furtherance of their common intention committed the murder of Dina Nath. 2 Charge is also framed against accused Lakhinder @ Raju in respect of offence U/S 412 IPC. It is alleged that on 16.7.10, at public toilet, in front of Furkan Masjid, Old Rohtak Road, he was found in possession of one mobile phone make Nokia, belonging to deceased Dina Nath, knowing or having reason to believe the same, to be a stolen property.
3 Both accused pleaded not guilty to the said charge and claimed trial.
4 To prove its case prosecution has examined 31 witnesses. They are Ct. Dharamvir(PW1), ASI Veer Singh(PW2), W/Ct. Neetu(PW3), Sh. Satish Chand(PW4), Sh.Vinod Kumar Sharma(PW5), Sh. Deep Session Case No.84/10 2/28 3 Chand(PW6), HC Rattan Singh(PW7), ASI Karan Singh(PW8), Sh. Arun Singh(PW9), Sh. Bhagwan Dass(PW10), Sh.Rajesh(PW11), Sh.Pramod Sharma(PW12), Sh. Ratti Ram(PW13), Sh. Anunay Bhatia(PW14), Sh. Nand Kishore Walia(PW15), HC Raj Kumar(PW16), Smt. Madhuri Devi(PW17), HC Gajender Singh(PW18), Sh. Sunil Gupta(PW19), Sh. Vishal Gaurav(PW20), SI Mahesh Kumar(PW21), HC Narain Dass (PW22), Sh. Ramesh(PW23), Dr. M.K. Panigrahi(PW24), Sh. Raj Kumar(PW25), SI(Retd.)Ram Nath(PW26), Sh. Israr Babu(PW27), Mohd. Taufiq(PW28), Dr. Noor Ali (PW29), Inspector Jai Bhagwan(PW30) and Inspector Naresh Chander(PW31).
5 Statements of accused U/S 313 Cr.P.C have been recorded, wherein they have denied the allegations of prosecution. They have submitted that they are innocent. They have been falsely involved in this case by the police. Their arrest is motivated. The investigation in this case is tainted and biased 6 No witness was examined by the accused in their defence. 7 I have heard the arguments from ld. counsel for accused and Ld. Addl. P.P for State.
8 Ld. Counsel for accused has prayed for acquittal of accused by submitting that accused have been falsely implicated in this case. They were not present at the spot. Statement of PW Jamil Khan has not Session Case No.84/10 3/28 4 been recorded. The name of the taxi driver and number of the taxi were not recorded by the I.O. PW4 Satish Chander has not supported the case and has turned hostile. The call detail records cannot be relied upon, as the IMEI number shown in the call detail records and on the bill of mobile phone Ex.PW6/A are not tallying. In the DD No.5 Ex.PW3/A, there is mention of two persons, who were injured, but prosecution has not deposed anything about the other injured. PW Taufiq was lifted by the police. Police took the mobile phone from the repair shop and planted the same upon the accused. The mobile phone was shown to witnesses Shokat twice in the police station.
9 On the other hand, Ld. Addl. P.P has submitted that prosecution has prayed for conviction of both accused as all the material witnesses have supported the prosecution case.
10 In the present case, there is no eye witness to the case. The prosecution case rests upon the circumstantial evidence. 11 "In Arun Bhanudas Pawar V. State of Maharashtra 2008(2)C.C Cases(SC) 261 it was held by Hon'ble Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following test:
(i) the circumstances, from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;Session Case No.84/10 4/28 5
(iii)the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(iv)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
12 In the present case, first incriminating circumstance against the accused person is the dying declaration made by deceased Dina Nath to Ct. Dharamvir (PW1) and ASI Veer Singh (PW2).
13 The law behind the admissibility of dying declaration is based on the principle "Nemo moriturus praesumitur mentire, which mean by that no one at the point of death is presumed to lie."A man will not meet his Maker with a lie in his mouth" is the philosophy in law underlying admittance in evidence of dying declaration. "A dying declaration made by person on the verge of his death has a special sanctity, as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased.
14 In Laxmi V. Om Prakash and others, 2001 Cr.L.J 3302 it was held by Hon'ble Supreme Court that the dying declaration is Session Case No.84/10 5/28 6 admissible in evidence. The admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of conviction. A Court of facts is not excluded from acting upon uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to crossexamination. If in a given case a particular dying declaration suffers from infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the Court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the Court, the same may be refused to be accepted as forming safe basis for conviction.
15 It was further held that one of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence, which has relevance. If the Court finds that the capacity of the maker of the statement to narrate the facts was impaired or the Court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement, the Court may, in the absence of corroborative evidence lending assurance to the contents of the declaration, refuse to act on it. Session Case No.84/10 6/28 7 16 In the present case, PW2 ASI Veer Singh has deposed that on the intervening night of 11/12.6.10, he was posted in PCR S.36. Ct. Dharamvir was the driver of the said PCR van. At about 4.45 AM they were present at Inderlok Chowk. One boy namely, Jamil Khan rushed towards them and told that his mobile has been robbed at Jakhira Pul side. He (PW2)took him towards that place but no person was available there. When they were returning, one person met them at Inderlok, Tulsi Nagar road corner. He was in a taxi. The taxi came from Tri Nagar side via Tulsi Nagar. He(the man driving Taxi) told them that one person had been stabbed at Tulsi Nagar Nala Road and injured was in his taxi. He was taking the injured to hospital. He requested them that injured be taken to hospital by PCR van. The injured was shifted from taxi to PCR van. In the meantime, taxi driver left the spot. They took the injured to Hindu Rao Hospital. The name of the injured was known as Dina Nath, son of Ram Naresh Yadav, R/o Omkar Nagar, Tri Nagar, Delhi. Injured Dina Nath told them that he was returning from his duty and going to his house at Tri Nagar. When he(deceased)reached at Tulsi Nagar Nala, four boys met him. They stopped him and asked to handover whatever he was having in his possession. He (injured Dina Nath) objected and out of the four boys one stabbed him on his stomach and other parts of the body. Thereafter, they robbed his Session Case No.84/10 7/28 8 purse containing Rs.2025/ and mobile phone. The injured was admitted in Hindu Rao Hospital. He came back to his base point. Thereafter, they went to P.P, where IO recorded his statement. 17 In crossexamination by ld. Counsel for accused, he has deposed that he did not record the address and mobile number of Jamil Khan. He did not record the name and address of the taxi driver and the registration number of taxi. He did not even record the make of the said taxi. He did not record the statement of said taxi driver. He has denied that no taxi driver met him or that no injured was handed over to him by the taxi driver. He did not provide any first aid for stopping the oozing out of the blood. The address of the employment of said injured was not recorded by him. The physique of the assailant was not described by the injured. He reached the hospital at about 5.10 AM and remained there for about 15 minutes. He has denied that he is deposing falsely. 18 PW1 Ct. Dharamvir, who was driving the PCR Van, in which the injured Dina Nath got shifted has also deposed on the same lines as those of PW2, and the same is not reproduced to avoid repetition. 19 Thus, from the testimonies of PW1 and PW2, the prosecution has proved on record that deceased injured Dina Nath made a dying declaration to them that on the relevant day when he returning to his home from duty he was robbed of his mobile phone and purse and Session Case No.84/10 8/28 9 was assaulted, when he resisted the act of accused to handover the articles, which he was possessing. I do not find any ground to disbelieve the testimonies of PW1 & PW2 because no suggestion has been put by Ld. Counsel for accused to them that the deceased did not make the dying declaration to them or that deceased was not fit for making the statement.
20 It is significant to note that the testimony of PW2 is corroborated with the testimony of PW3 W/Ct. Neetu. She (PW3)has deposed on the intervening night of 12/13.6.10, she was posted in PCR, Central Police Control Room, PHQ, ITO Delhi and was on duty from 8 PM to 8 AM. On that day, at about 4.30 AM, she received a call from Phone No. 9717035665. The caller told her that "Tulsi Nagar Nala Road, Inder Lok mein ek aadmi ko chaaku maar diya hai, do aadmi injured hain". The name of the caller was ASI Veer Singh. The said information was further transmitted to Net for further action. The record of the call is Ex.PW3/A. In crossexamination, PW3 has deposed that the form No. 0059 pertains to the information regarding two injured. 21 It is further significant to note that as per testimony of PW1, the information received by him from ASI Veer Singh(PW2) was regarding two injured. But, I am of the considered view that true and trustworthy testimony of PW1 & PW2 that one injured was taken by them to hospital Session Case No.84/10 9/28 10 cannot be disbelieved. It is worth noting that no suggestion has been put by ld. Counsel for accused to PW2 that there were two injured persons, who were taken by them to hospital. In my considered opinion the best witnesses to remove the ambiguity were PW1&PW2. But no question or suggestion has been put to them by Ld. Counsel for accused in that regard. During arguments, Addl. P.P has submitted that only one injured was taken to hospital and there was some communication gap between PW3 & PW2 and the information was that ek aadmi ko chaaku maar diya hai, "vo"(instead of 'do') aadmi injured hain". Moreover, from the MLC of deceased Ex.PW29/A it is proved on record that injured/deceased Dina Nath was got admitted in Hindu Rao Hospital by ASI Veer Singh(PW2), S36 PCR at about 5.10 AM with alleged history of assault with knife. 22 Further, the true and trustworthy testimony of PW2 and PW1 cannot be disbelieved only because that prosecution did not examine Jamil Khan or ASI Veer Singh did not note down the name of the taxi driver or the registration number of the taxi.
23 It is significant to note that PW1 & PW2 have categorically deposed that one injured was handedover to them by the taxi driver and he was taken to Hindu Rao Hospital for treatment.
24 Further, the dying declaration that deceased received stab injuries on his person at the hands of accused, when he resisted to Session Case No.84/10 10/28 11 handover the articles possessed by him is corroborated with medical evidence.
25 PW24 Dr. M.K. Panigrahi has conducted postmortem on the body of deceased Dina Nath on 14.6.10 at 2 PM vide postmortem report Ex.PW24/A. On external examination, he found stitched stab wound on the right side of anterior abdominal wall on the body of the deceased. He further found surgically stitched stabbed wound on the right anterior abdominal wall and one surgically stitched laparotomy wound on the anterior abdominal wall and there was surgical illiostomy wound oval in shape on the right anterior abdominal wall. It is worth noting that as per the opinion of PW24, the death was caused by shock and hemorrhage, consequent to injuries. All the injuries were ante mortem in nature. The external injuries No.1 & 2 could be caused with sharp weapon/object and were individually and combinedly sufficient to cause death in ordinary course of nature. The time since death at the time of postmortem examination was 28 hours. An opportunity to crossexamine this witness has been given to ld. Counsel for accused, but he did not avail of that opportunity. Thus, from the unrebutted testimony of PW24, it is proved on record that deceased received the stab injuries on his person.
26 Now, the next question that arises for consideration is as to Session Case No.84/10 11/28 12 deceased Dina Nath possessing any mobile phone or not. 27 PW6 Deep Chand has deposed that he was knowing deceased Dina Nath as he used to reside in H.No.457/33, Onkar Nagar, Tri Nagar, where he (PW6)also used to reside. In the said house Dina Nath was residing as a tenant. He (PW6)handed over mobile phone bill Ex.PW6/A of Dina Nath after his death. The said bill was in his possession and was handedover to him to the police. 28 In crossexamination by ld. Counsel for accused PW6 has deposed that the said bill was handed over to him by the wife of Dina Nath. The box of the mobile phone was also handed over to him. The said bill alongwith box was handed over to him by the wife of deceased in the presence of I.O. Only bill was handed over to the IO in the hospital. 29 Further, the mobile phone Bill Ex.PW6/A has been proved by PW19 Sunil Gupta. He has deposed that he is running a shop in the name of CREDO Cell at 313/32A Inder Lok. The Bill Ex.PW6/A was issued by him. As per the bill one mobile phone make Nokia5130(blue)bearing IMEI No.355232037190071 was sold to one customer namely, Dina Nath for Rs.5250/ on 11.9.09. The bill is correct and was issued from his shop.
30 An opportunity to crossexamine this witness has been given to ld. Counsel for accused, but he did not avail of that opportunity. Session Case No.84/10 12/28 13 31 Thus, from the unrebutted testimony of PW19 Sunil Gupta, it is proved on record that deceased Dina Nath was possessing a mobile phone make Nokia5130(blue)bearing IMEI No. 355232037190071.
32 Further, a perusal of bill Ex.PW6/A shows that the deceased was also in possession of a SIM card No.9717246012. 33 PW15 Nand Kishore has deposed that he is running the business of aluminum grill at Shop No.348/27, Omkar Nagar, BBlock, Tri Nagar, Delhi. Dina Nath was his employee. He worked at his shop for 78 months. Thereafter, said shop was shifted to Ablock, Plot No.17, Hastal Road, Uttam Nagar. Dina Natha also worked there for about one/two months. In April, 2010 Dina Nath left the job. When Dina Nath worked with him, Dina Nath told him that his son had met with an accident. He(Dina Nath)requested him for providing SIM card as he was not having any document of identity proof. He(PW15)purchased a SIM No. 9717246012 for mobile and same was handed over to Dina Nath. At the time of purchasing SIM for Dina Nath, he submitted photocopy of his driving licence to Airtel company and filled up the customer application form, PW15 has identified the customer application form as Ex.PW15/A and copy of driving licence as Ex.PW15/B. He used to talk with Dina Nath on this number and ask about the health of his son. Later on, he came to Session Case No.84/10 13/28 14 know that Dina Nath had been stabbed. Police met him. He told the same facts to the police, which he deposed in the court. 34 An opportunity to crossexamine this witness has been given to ld. Counsel for accused, but he did not avail of that opportunity. 35 Thus, from the unrebutted testimony of PW15, it is proved on record that deceased was also using the SIM card No. 9717246012 in the mobile phone, purchased by him from PW19, bearing IMEI No. 35523203719007145.
36 The another incriminating evidence against accused persons is the recovery of mobile phone from accused Lakhinder, possessed by the deceased at the time of death.
37 PW22 HC Narain Dass has deposed that on 16.7.10, he alongwith inspector Naresh Chander(PW31) and Ct. Ram Chander were present in Inder Lok area. At about 3.30/4.00 PM a secret informer informed Inspector Naresh Chander that accused Lakhinder wanted in the case, was available in a public bathroom near Furqan Masjid, Inder Lok and was taking bath. On receiving that information, he alongwith Inspector Naresh Chand, Ct. Ram Chander and secret informer reached there. Secret informer pointed out towards a boy, who was taking bath inside the bathroom and stated that he was the same person, who was wanted in the case. Thereafter, secret informer left away. Inspector Session Case No.84/10 14/28 15 Naresh Chander directed the boy to put on his clothes. The boy came out from the bathroom. He was interrogated. On interrogation, the name of the person revealed as Lakhinder @ Raju @ Lakhinder. Accused Lakhinder made disclosure statement. Thereafter, accused Lakhinder produced one mobile phone make Nokia of black colour, having blue colour boarder. He further told that he inserted the SIM card No. 9910922750. The mobile phone was checked and one SIM was found. The said mobile phone was kept in a cloth and pullanda was prepared and was sealed with the seal of NC. The mobile was seized vide memo Ex.PW22/A. The seal after use was handedover to him(PW22). Accused Lakhinder was arrested vide memo Ex.PW22/B. His personal search was conducted vide memo Ex.PW22/C. The disclosure statement of accused Lakhinder is Ex.PW22/D. Thereafter, accused Lakhinder led the police party to the place of incident and pointing out memo Ex.PW22/E was prepared. Accused was sent to the hospital for medical examination. The case property was deposited in mal khana. He has identified the mobile phone Ex.P1.
38 In crossexamination by ld. Counsel for accused, PW22 has deposed that the public toilet was big in size and was open. Accused Lakhinder was available in that bathroom. At the direction of I.O, accused Lakhinder wore his clothes. Accused Lakhinder handedover his mobile Session Case No.84/10 15/28 16 phone to IO. The same was taken out from the right pocket of his jeans. IO Naresh Chander opened the mobile phone at the time of inquiry from accused Lakhinder. I.O was already carrying call details of mobile phone of deceased Dina Nath and same were tallying with the IMEI number of mobile phone, recovered from accused Lakhinder.
39 The testimony of PW22 is corroborated with the testimony of PW31, who is the I.O of the case. The testimony of PW22 and PW31 cannot be disbelieved only because that public person has not been joined by the I.O at the time of recovery of the mobile phone from the possession of accused Lakhinder. There is nothing in crossexamination of PW22 and PW31 to disbelieve the recovery.
40 Thus, this incriminating evidence i.e recovery of mobile phone from the possession of accused Lakhinder is proved against the accused by the prosecution.
41 The next incriminating evidnece against accused persons is the forensic and scientific evidence pertaining to the mobile phone of deceased Dina Nath.
42 PW20 Vishal Gaurav, Nodal Officer Bharti Airtel Ltd. has deposed that on 4.10.10 on the request of I.O, he issued the certificate U/S 65B of the Indian Evidence Act Ex. PW20/A in relation to the call details of mobile phone Nos. 9717146012, 9910922750 and IMEI Nos. Session Case No.84/10 16/28 17 359059031582060, 356960011324690 and 355232037190071. He handed over the certified copies of Customer Application Forms of Mobile No.971714601 vide Ex.PW15/A. The call details record of the said number from 1.6.10 to 30.9.10 is Ex.PW20/B. He has further deposed that as per the record, the mobile phone No.9717146012 was issued in the name of Nand Kishore(PW15). He has further deposed that as per the office record, the mobile phone No.9910922750 was issued in the name of Rama Nand(father of accused Lakhinder). The call details of the mobile phone 9910922750 running into 24 pages is Ex.PW20/E. 43 An opportunity to crossexamine this witness has been given to ld. Counsel for accused, but he did not avail of that opportunity. Thus, testimony of PW20 goes unrebutted.
44 It is worth noting that Page 9 of the call details Ex.PW20/B shows that on 10.6.10 a 6.20 PM and 8.14 PM deceased talked to his brother on his mobile phone 9919602843. The fact that deceased talked to his brother on mobile phone prior to his death is proved from the testimony of PW10 Bhagwan Dass. He (PW10)has deposed that Dina Nath was his younger brother. The mobile number 9717146012 belonged to his deceased brother Dina Nath. His (PW10's) mobile Number is 9919602843. He talked to his brother Dina Nath lastly on 10.6.10. Session Case No.84/10 17/28 18 45 In crossexamination by Ld. Counsel for accused PW10 has deposed that his brother Dina Nath was having mobile No. 9717146012 for one/one and half years prior to incident.
46 PW10 has also deposed that after the incident mobile phone (SIM card) of his brother was used by accused Shokat. He has deposed that on 16.6.10 he made a call from his mobile number on the mobile number of his brother Dina Nath at about 9 PM. The call was received by the caller, who told his name as Shokat. The caller told him that the said phone was robbed by him by stabbing the possessor of mobile. He threatened him that if he made further call to him, he would also face the same consequence as possessor of mobile had faced and thereafter, he disconnected the mobile. He stated the same facts to the police when police recorded his statement. He has identified the mobile phone of deceased Dina Nath Ex.P1.
47 In crossexamination, PW10 has deposed that his brother Dina Nath was residing in Delhi since last about 1012 years. He used to contact his brother on phone. He (PW10)was told about the incident by Deep Chand. Since the day, Deep Chand had informed about the incident, he was continuously trying to contact his brother Dina Nath on his mobile phone. But the phone was not responding on the day of incident. However, on 16.6.10 mobile phone was received by the person, Session Case No.84/10 18/28 19 who told his name as Shokat. He has denied that he is deposing falsely. 48 The testimony of PW10 is corroborated with the testimony of PW22 HC Narain Dass. He (PW22) has deposed that on 10.8.10 Incharge of P.P Inder Lok informed that one Shokat is arrested in the police station. Thereafter, he (PW22)alongwith Ct. Ram Chander and Inspector Naresh Chand went to P.P Inder Lok. SI Satya Parkash handed over accused Shokat to Inspector Naresh Chand. Accused Shokat was arrested by the IO vide arrest memo Ex.PW22/F. His personal search was conducted vide memo Ex.PW22/G. The disclosure statement Ex.PW22/H of accused Shokat was also recorded. Accused Shokat led the police party to the place of incident i.e ganda nala road, Tulsi Nagar, in front of Shiv Mandir, Inder Lok and pointing out memo Ex.PW22/J was prepared. Accused Shokat was sent to hospital for medical examination. PW22 has further deposed that on 11.8.10 accused Mohd. Shokat led the police party to Jakhira flyover, Rakhi Market and told that he had sold his mobile phone to his cousin Toufiq for Rs.900/. He further told that after commission of offence he kept the SIM card of mobile of deceased bearing No.9717146012 and used that SIM in his mobile phone. Thereafter, he destroyed that SIM card and sold the mobile phone to his cousin Toufiq. Toufiq was present in his jhuggi. On the demand of accused Mohd. Shokat Mohd. Toufiq produced one mobile phone. The Session Case No.84/10 19/28 20 said mobile phone alongwith SIM card was seized vide memo Ex.PW22/K. IO prepared the pointing out memo of the mobile phone Ex.PW22/L. PW22 has identified both accused and also identified the mobile phone recovered from the possession of Toufiq Ex.P2.
49 In crossexamination by ld. Counsel for accused, PW22 has deposed that they reached P.P Inder Lok after receiving the information about accused Shokat. There was no public person in the police post. No public person was called by the I.O to join the investigation. He has denied that accused Shokat surrendered himself to the police. He has volunteered that accused was arrested by SI Satya Parkash in a robbery case.
50 The testimony of PW22 cannot be disbelieved only because that no public person was joined at the time of recovery of the mobile phone.
51 Further, the testimony of PW22 cannot be disbelieved if Toufiq(PW28)has deposed in crossexamination that he was lifted by police on 11.8.10 and mobile phone was taken by the police from the repairing shop. It is significant to note that PW28 is the relative of accused Shokat, being the son of his Mousi . It is further significant to note that in his examinationinchief he has categorically deposed that he handed over the mobile phone to police and the same was seized by Session Case No.84/10 20/28 21 police vide memo Ex.PW22/K. Moreover, the seizure memo Ex.PW22/K is bearing the signature of Toufiq(PW28) and it is not the case of Toufiq that his signature was obtained by police forcibly on some blank papers. Thus, in view of above facts, the testimony of Toufiq (PW28) that mobile phone was taken by police from the repairing shop and was not handed over to police by him cannot be believed.
52 It is further significant to note that pages 11,12 & 14 of the call detail record Ex.PW20/B show that accused Shokat used the SIM card of deceased bearing No. 9717146012 in his mobile handset, which was bearing IMEI No.359059031582060.
53 It is further worth noting that PW25 Raj Kumar Nodal Officer, Reliance Communications Ltd. has proved that the mobile No. 9311577669 was issued in the name of Ajmeri, Wife of Mohd. Manzoor, R/o W85/209, Amar Park, Zakhira, Delhi. The call detail record pertaing to said mobile running into 6 pages is Ex.PW25/D. In crossexamination by ld. Counsel for accused, PW25 has deposed that he cannot say whether present accused or any other person was talking from this number or not on the given call details. It is worth noting that as per recovery memo of mobile phone Ex.PW22/K, the said mobile phone was possessed by his girl friend Naseema and he and Saukat used the SIM card of deceased for 3/4 days for talking to his friend Naseema. It is Session Case No.84/10 21/28 22 further worth noting that as per Pages 4,5&6 of call details Ex.PW25/D accused Shokat used the SIM card of deceased, while talking to his girl friend Naseema.
54 Further, PW9 Arun Singh has also proved on record that accused Shokat was possession the SIM card of deceased. He has deposed that deceased Dina Nath was residing in Inder Lok. He knows Bhagwan Dass, who is the brother of deceased Dina Nath. Dina Nath used to keep mobile phone No.9717146012. On 16.6.10 Bhagwan Dass made a call in the evening and informed him that mobile number of Dina Nath is in service and requested him to make a call on his mobile phone number. He made a call from his mobile phone No.9818713972. The caller told his name as Shokat. He asked Saukat that the said phone number belonged to Dina Nath and enquired as to how that phone came in his possession. The caller Shokat disclosed that he had robbed that mobile after stabbing the possessor of mobile phone. The caller Shokat threatened him that he should not make further calls on that mobile otherwise, he would also face the same consequences, which deceased Dina Nath had faced. Later on, police met him and he stated the same facts which he has deposed in the court. An opportunity to crossexamine this witness has been given to ld. Counsel for accused, but he did not avail of that opportunity. Session Case No.84/10 22/28 23 Thus, from the above discussion, it is proved on record that accused Shokat used the SIM card of the mobile phone of deceased by using the same in his mobile handset.
55 It is worth noting that prosecution has also been able to prove on record that accused Lakhinder used the mobile handset of deceased after commission of offence. In this case, from the testimony of PW22 (which is corroborated with the testimony of PW31), which has been discussed in earlier part of this judgment, it is proved on record that the mobile handset belonging to deceased has been recovered from possession of accused Lakhinder. Further, PW20 Vishal Guarav has also proved on record that SIM card 9910922750 was in the name of father of accused Lakhinder. Now, perusal of pages No.8 to 24 of call detail record Ex.PW20/E show that accused Lakhinder used the SIM card pertaining to his father in the mobile handset of deceased Dina Nath bearing IMEI No. 355232037190070.
56 In Gajraj Singh V. State, Crl. Appeal No.461/2008 decided on 18.3.09 by Hon'bleDelhi High Court, the last digits of the IEMI numbers were not tallying. In that case the first fourteen digits of IEMI number as shown in seizure memo were tallying with the first fourteen digits recorded in the call records. The controversy pertained only to the last digit, which was not tallying . That discrepancy was Session Case No.84/10 23/28 24 explained by the computer Engineer working as Manager, Siemens(PW78). He (PW78)deposed that while giving various details of the 15 digits, the last one digit is a spare digit. According to the GSM specification the last digit should be transmitted by the mobile phone as '0'. Thus, while relying upon the decision of Hon'ble Supreme Court in State Vs. Navjot Sandhu, 2005 Crl. LJ 3950, the Hon'ble Delhi High Court held that the factum of the fifteenth digit of the IMEI number recorded in seizure memo and call detail record not tallying was of no consequence. 57 In the present case, as per the bill of mobile phone of deceased Dina Nath Ex.PW6/A the IMEI No.3552323719001. But as per call detail record Ex.PW20/B the IMEI is 355232037190070. In other words, as per Ex.PW6/A the last digit of IMEI is 'I'but as per Ex.PW20/B the last digit is '0". In view of judgement of Navjot Singh, I am of considered view that there is no reason to disbelieve the call detail report Ex.PW20/B merely because the last digit of IMEI as shown in Ex.PW6/A and Ex.PW20/B are not tallying.
58 Thus, this forensic and scientific evidence pertaining to the mobile phone of deceased is proved beyond reasonable doubt by prosecution.
59 Further, prosecution has also been able to prove that five persons were involved in the commission of crime.
Session Case No.84/10 24/28 25 60 PW23 Ramesh has produced the original record of case FIR No.186/10, P.S Sarai Rohilla in respect of Juvenile Swalihin and Sudhir Gosh @ Babu, which was containing the arrest memo, personal search memo, disclosure statement memo, pointing out memo, seizure memo of SIM Cards and another documents relating of aforesaid juveniles.
61 An opportunity to crossexamine this witness has also been given to ld. Counsel for accused but he did not avail of that opportunity.
62 PW31 Inspector Naresh Chand has deposed that co accused Shahid Ali @ Sheur has been absconding and proceedings U/S 82/83 Cr.P.C are pending against him. This fact is not disputed by accused persons.
63 Thus, in view of the testimonies of PW23 and PW31 it is proved on record that three more accused besides accused Lakhinder @ Raju and accused Shokat are involved in the offence of dacoitycummurder.
64 It may be mentioned that PW2 ASI Veer Singh has deposed that deceased told him that four persons stopped Session Case No.84/10 25/28 26 him(deceased)and asked him to handover whatever he had in his possession. Thus, as per version of deceased Dina Nath, through the deposition of PW2, four persons were involved in the crime. However, since investigation has revealed indulgence of five persons in crime, I am of the considered view that Section 396 IPC is attracted in this case. It is very much likely that deceased might not have noted the fifth accused at the stage, when he was being subjected to talking away his belonging and his murder. 65 In view of above discussion, it is concluded that incriminating evidence against accused Lakhinder @ Raju and Shokat have been cogently and firmly established by the prosecution. All the incriminating circumstances are of definite tendency and are pointing out towards the guilt of the accused person. All the circumstances cumulatively form a chain so complete with the conclusion that with all human probability the crime was committed by the accused persons and none else. The circumstantial evidence against accused persons is complete and incapable of any explanation of any other hypothesis than that of their guilt. The evidence is not only consistent with the guilt of the accused but also is inconsistent with their innocence. I am of the considered view that all the ingredients as laid down by Hon'ble Supreme Court in "Arun Session Case No.84/10 26/28 27 Bhanudas Pawar V. State of Maharashtra's case are fulfilled in the present case. Accordingly, I am of the considered view that prosecution has successfully proved beyond reasonable doubt that on 12.6.10 at Tulsi Nagar, Nala Road, Delhi both accused alongwith coaccused Swalihin and Sudhir Gosh(facing trial before Juvenile Justice Board)and coaccused Shahid @ Sheru(not arrested) committed dacotiy upon the person of Dina Nath and looted one mobile phone make Nokia IEMI No. 359232937190071 and one purse containing some currency notes and committed murder of Dina Nath while committing dacotiy. Accordingly, accused Lakhinder @ Raju and Shokat are convicted of offence U/S 396 IPC.
66 It is further proved that on 16.7.10 at public toilet in front of Furkan masjid, Old Rohtak Road, accused Lakhinder @ Raju was found in possession of one mobile phone make Nokia belonging to deceased Dina Nath and involved in dacoity. Accordingly, accused Lakhinder @ Raju is convicted of the offence U/S 412 IPC.
67 Now, I may consider alternative charge in respect of offence U/S 302 read with Section 34 IPC. In view of discussions already made, it is proved on record both accused, in present case, are involved in the murder of deceased Dina Nath. In view of the fact that deceased Dina Nath had told, PW2, ASI Veer Singh about involvement of more than one Session Case No.84/10 27/28 28 person in the crime and also in view of the fact that mobile phone of deceased has been recovered from accused Lakhinder and SIM card used by deceased in his mobile, has been recovered from coaccused Shokat, I am of the considered view that accused were sharing common intention. Accordingly, it is held that both accused were sharing common intention. Thus, offence U/S 302 read with Section 34 IPC is proved against both accused. Hence, they are convicted in respect of offence U/S 302 read with Section 34 IPC in the alternatively. Announced in open court today on (Smt. Bimla Kumari) on 28.1.12. Addl. Sessions Judge02(North) Tis Hazari Court, Delhi.
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