Delhi District Court
State vs 1. Sunil S/O Late Sh Naresh Rathi on 15 July, 2008
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IN THE COURT OF SH. V.K.BANSAL;
ADDL. SESSIONS JUDGE;
NEW DELHI
SC NO: 69/07
Date of institution: 4.12.2000
Date for which judgment was
reserved: 29/5/08
Date of decision: 15/7/08
State Versus 1. Sunil S/o Late Sh Naresh Rathi
R/o Village Tikri PS Doghat,
District Bagpat UP
2. Narender Singh S/o Randhir R/o
Village Tikri PS Doghat,
District Bagpat UP
3. Krishanveer Singh Rathi @ Billo
S/o Kali Ram R/o Village Tikri
Patti Dawar Thana Dodhar
District Baghpat U.P.
4. Harender Singh S/o Yashveer
Singh R/o ---do ---
5. Jogender @ Pahalwan S/o
Jaswant R/o Village Tigri PS
Doghat Distt Bagpat UP
6. Kali Ram S/o Lal Singh R/o
Village Tikri Patti Dawar Thana
Dodhar District Baghpat U.P.
FIR NO: 401/2000
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PS: O.I. Area
U/s : 394/397/307/302/411/34 IPC
and 25/27/54/59 Arms Act
JUDGMENT
On 18.7.2000 police received information at about 10.25 pm that at 235, Okhla Phase III in the workshop a person is shot dead at 10.05 pm. On this DD No. 30 Ex PW 8/A was recorded, which was assigned to SI Sunil Kumar, Incharge Police Post: Okhla Industrial Area. He along with staff reached the spot. There Radhey Shyam was found in injured condition. He was removed to AIIMS hospital. From there SI Sunil went to 29 Okhla Industrial Area showroom of Ford I-con. Three persons were found dead in the showroom. Owner of the showroom was also informed who told that cash box and the Ford I-con No. DL 3CQ 4257 are missing. SI Sunil Kumar got the FIR registered. Investigation was carried out. Accused persons were arrested. Recovery was also effected. After completion of investigation charge sheet against accused persons for the offence punishable U/s 3 394/397/307/302/411 r/w 34 IPC and 25/27 Arms Act was filed. Ld M.M after complying with the provisions of Section 207 Cr.P.C committed the case to the Sessions court as the offence punishable U/s 302/307/397 IPC are exclusively triable by the Sessions Court. Accused Krishanveer Singh Rathi, Harender and Narender were charged for the offence punishable U/s 120B IPC, 397 r/w 120 B IPC, 302 r/w 120 B IPC, 307 r/w 120 B IPC. Accused Krishanveer, Joginder, Harender and Kali Ram were also charged for the offence punishable U/s 411 IPC. Accused Joginder and Krishanveer were also charged for the offence punishable U/s 27 of Arms Act. Accused Sunil was arrested later on. His supplementary challan was filed. He was charged for the offence punishable U/s 120B, 397 r/w 120 B IPC, 302 r/w 120 B IPC, 307 r/w 120 B IPC. All the accused pleaded not guilty. The witnesses who were examined before the arrest of Sunil were recalled for examination.
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Prosecution in order to establish its case examined 30 witnesses. There were four important witnesses namely Radhey Shyam, Anoop Singh, Naveen Kohli and Dalip Kumar. Out of these Dalip Kumar had not been examined. Witness Udarbulla died and therefore could not be examined. Witness HC Balwan Singh was dropped by the prosecution.
EYE WITNESS/INJURED:
In this case Radhey Shyam the injured was examined as PW 12. He is the star witness of the prosecution. He deposed that on 18.7.2000 he was working as security guard in A +Security Services. He was deputed by the Security Services at the Ford I-con showroom. On 18.7.2000 at about 9.30 pm he was present at the said showroom. His duty was in the workshop of Ford I-con however he went to the other security guard Rishi Pal who was performing his duty 5 at the showroom of the Ford I-con. When he entered the showroom he called for Rishi Pal but there was no response. He sustained bullet shot from the back side and thereafter he became unconscious. He cannot tell what happened thereafter. He was cross-examined by Ld APP at length but he stated that he cannot identify the person who gave him bullet shot injury. He also stated that he had not seen anybody.
Public Witnesses:
Anoop Singh is the other public witness but he was not at the spot. He was examined as PW 10. He was in fact running the security services agency under the name of A+. He stated that on the night of 18th and 19th July 2000 he was present at his house. Naveen Kohli owner of the workshop of Ford I-con situated at Okhla Industrial Area, Phase III informed him on telephone to come at his showroom immediately. He reached there. Police was also there. He found the dead 6 body of the security guard Rishi Pal lying outside the generator room. Two dead bodies were lying in the generator room, one was of Muneshwar who was also the security guard deputed by him and the third body was of the driver of the owner of workshop. There was uniform on the dead body of Muneshwar but on the dead body of the other security guard uniform was not there. He was also told that other security guard Radhey Shyam had sustained bullet injury. In his presence articles were also seized. He was cross- examined by ld APP and during cross-examination he stated that Krishanveer one of the accused was also deputed as security guard in the factory of Ford I-con who was removed from the services as there were reports that his conduct was not upto the mark. This witness has also correctly identified Krishanveer. Naveen Kohli, owner was examined as PW 7. He was also not present on the spot at the time of incident. He stated that on 19.7.2000 he received a telephone from 7 one police official Sunil Mittal informing him about the decoity committed at his showroom situated at 29 Okhla Industrial Estate Phase 3. On this information he reached there but he did not enter the showroom and kept standing outside. He sent his G.M inside the showroom. He was informed that three persons are lying dead. It was revealed that cash of Rs 72080 which was in the cash box and the car bearing registration No. 4257 had been looted. Police was already there. He was declared hostile but nothing material came on record during cross-examination by ld APP.
Rajender Singh the other public witness was examined as PW 11. He is a formal witness. He was brother of Rishi Pal one of the deceased. He identified the dead body of Rishi Pal and received the same after postmortem.
The other public witness is PW 15 Dinesh 8 Singh. He was brother of Muneshwar Singh, one of the deceased. He identified the dead body of Muneshwar in the mortuary of AIIMS hospital and received the same after postmortem.
Sompal is another public witness. He also identified the dead body of his cousin Rishi Pal and was examined as PW 19.
Firoz Ahmad Khan was examined as PW 3.
He identified the dead body of Aslam Khan one of the deceased in the mortuary of AIIMS hospital.
Kamlesh Singh was examined as PW 26. He identified the dead body of Muneshwar one of the deceased in the mortuary of AIIMS hospital. MEDICAL EVIDENCE:
Dr T.Millo was examined as PW 6. He 9 conducted the postmortem on the dead body of Aslam Khan. He proved his postmortem report as Ex PW 6/A. He opined that cause of death in this case was head injury due to fire arm injury which was sufficient to cause death in the ordinary course of nature and all the injuries were antemortem in nature. The testimony of this witness has gone unchallenged and uncontroverted.
Dr Subodh Kumar from AIIMS hospital was examined as PW 16. He examined Radhey Shyam the injured PW 12. He stated that Radhey Shyam was brought by HC Kirpal Singh of PCR with the alleged history of gun shot in the back on 18.7.2000 at about 10.45 pm. On examination he found the entry wound para spinal region on right side and exit wound epigastric region on right side through which omentum was coming out. Abdomen was distended, tensed, tender and guarding rigidity were present. The nature of injuries was dangerous by gun shot. He prepared the 10 MLC and proved the same as Ex PW 16/A. Testimony of this witness also went unchallenged and uncontroverted.
Dr Chitranjan Behra was examined as PW
25. He was deputed by Incharge MLC Department of Forensic Medicine AIIMS to depose on behalf of Dr Arun Kumar Agnihotri. The present whereabouts of Dr Agnihotri were not known to the authorities and that is why Dr Chitranjan Behra was examined. This witness had seen Dr Arun Kumar Agnihotri writing and signing in the usual course of duty and identified his signature and handwriting. He proved postmortem report of deceased Rishi Pal as Ex PW 25/A. Cause of death opined by doctor was head injury caused by fire arm which was sufficient to cause death in ordinary course of nature. The injuries were antemortem in nature. The testimony of this witness has also gone unchallenged and uncontroverted on the material aspects. 11
Dr Sudhir Gupta was examined as PW 27. He conducted the postmortem on the dead body of Muneshwar and he opined that cause of death was hemorrhage shock as a result of the fire arm missile injury and was sufficient to cause death in ordinary course of nature. He proved postmortem report as Ex PW 27/A. During cross-examination he stated that no bullet was recovered from the body of deceased since it exited from the body. There was one exit wound and one entry wound. The witness stated that he cannot give any definite opinion regarding the fire arm however the missile was a bullet. He denied the suggestion that he did not examine the body properly at the time of postmortem or that the injury report was prepared at the instance of IO.
SCIENTIFIC EVIDENCE:
Chet Ram, Finger Print Expert was 12 examined as PW 5. He stated that on 19.7.2000 he lifted chance prints from Ford I-con car without registration number at the showroom of Ford I-con 29 Okhla Industrial Area. Total 7 chance prints were found. Specimen of accused Krishanveer and Harender were sent but they did not tally with the chance print found on the spot and the report is proved as Ex PW 5/B. Testimony of this witness had gone unchallenged and uncontroverted.
The weapons of offence recovered in this case were sent to FSL for opinion. The result has been received. The report of the Ballestic expert is Ex PW 33/F and he opined that the country made pistol .315 bore Ex P3 recovered from accused Krishanveer is a fire arm. The test fire was conducted. On the basis of comparison on microscope, he opined that firing pin mark Ex EC 2 to EC 4 found on the spot were not identical and there was not sufficient evidence with 13 regard to the bullet mark EB2 and EB3. The ballestic expert also opined that fire arm i.e pistol 7.65 mm Ex P1 is a fire arm which was recovered from accused Joginder. Test fire was conducted and after comparison it was found that firing pin mark present on the test cartridge and the cartridges recovered from the spot were identical and fired through pistol Ex P1. Blood sample taken from accused Harender vide MLC Ex PW 20/A was also sent to FSL for information and it was opined that Harender was having blood group AB and the blood of the same group was found in the handkerchief in the glass pieces found on the spot.
PW 3 Ct Ram Avtar reached the spot along with crime team and took the photographs of the scene of crime on the direction of the investigating officer. He ;proved the negatives as Ex PW 3/1 to 25 and the photographs developed as Ex PW 4/1 to 23. 14
HC Surender Prasad was examined as PW
18. On the intervening night of 23rd and 24th of July 2000 he along with SI Kuwar Saheb Singh Incharge Crime Team went to Haridwar to lift chance prints from car No DL 3CQ 4257 . Four chance prints were lifted from there and the report was prepared which is Ex PW 18/A. SI Kuwar Saheb Singh was examined as PW
30. He also proved his report Ex PW 18/A about the lifting of four chance prints from car No DL 3CQ 4257 which was found in the parking at Ganesh Ghat Haridwar.
RECOVERY/INVESTIGATION WITNESSES:
HC Krishan Pal was examined as PW 4. On receiving DD No. 30 Ex PW 8/A he along with Incharge Police Post SI Sunil Kumar and the other staff reached 235 Okhla Phase III where Radhey Shyam was found in injured condition. He was sent to AIIMS hospital. Then 15 they reached factory No. 29 Showroom of Ford I-con.
The gate was found opened. Telephone wire were found snatched and the door of one new car was also found opened. Inside the car on the rear seat blood stains were found. Door opening to the rear side was also lying opened. In the rear portion in the open land one dead body was lying. In the power room two dead bodies were lying. In the meantime owner of showroom Sh Naveen Kohli was also called to the spot. Other police officials also reached there.
The other witnesses who reached the spot along with IO were examined as PW 9 Ct Samar Pal. He along with other police official took the dead bodies to the AIIMS mortuary. SI Satish was examined as PW
22. Inspector Sunil who was at that time SI Sunil was examined as PW 29. They all stated that on the first floor of the showroom the glass door was found broken and near that one handkerchief socked in blood was found. On the broken pieces of glass also blood was 16 found. On the first floor two empty cartridges were found. One empty shell was found on the shelf and the other on the floor. One empty cartridge and one bullet lead was found in the generator room. Injured Radhey Shyam who was removed to the hospital was declared unfit on the application Ex PW 29/A and therefore he got the case registered on the DD No 30 by making his endorsement Ex PW 29/B. The articles which were found on the spot were seized. On 22/7/2000 they went in search of accused Krishanveer and the other accused but none could be arrested. On 23.7.2000 they reached village Tikri. A secret information was received at that time along with SI Sunil, ASI Vijender PW 21 was also with them along with the other witnesses i.e HC Krishan Pal PW 4, ASI Vijender PW 21. Accused Krishanveer was arrested. He was interrogated and he made disclosure statement Ex PW 21/C. He got recovered one katta .315 bore used in the commission of offence which was seized vide memo Ex PW 21/B. Then 17 he led police party outside the village to the bricklen of Sunil Rathi where the broken pieces of glasses of car No. DL 3CQ 4257 were found. Thereafter accused got recovered the car Ex P5 from the parking at Ganesh Ghat Haridwar. He also got recovered the chest box Ex P4 from Krishna river. A trap was laid around the car and at about 2 am Harender came there at Ganesh Ghat Parking. He was also apprehended. At the instance of Krishanveer one Kali Ram was arrested who got recovered Rs 22,000 from his house which he kept concealed under the earth. Thereafter they left police party to the house of Joginder Singh and he got recovered one pistol, three rounds and Rs 10,000/-. On 11/1/2001 Narender was apprehended and he got recovered one stereo and two speakers of Ford I-con which were seized vide memo Ex PW 29/K. The stereo is Ex P11 and the speakers are Ex P12 and Ex P13. IO of the case ACP V.K. Malhotra was examined as PW 33.
FORMAL WITNESSES:
Prosecution had also examined Ct 18 Dharmender as PW 1, HC Megh Raj as PW 2 , Ct Ram Avtar as PW 3, Chet Ram as PW 5, Ct Ramjilal as PW 8, Anoop Singh as PW 10, ASI Rajbala as PW 13, Dinesh Singh as PW 15, Dr Subodh Kumar as PW 16, HC Jai Ram as PW 17, HC Surinder Prasad as PW 18, Sompal as PW 19, Rajbir Singh as PW 20, Feroz Ahmad Khan as PW 23, Kamlesh Singh as PW 26, SI Mahesh Kumar as PW 28, N.S. Bundela Addl DCP South as PW 31, Inspector Neeraj Kr as PW 32 and ACP V.K. Malhotra as PW 33.
Ld APP submitted that in the present case there was one eye witness namely Radhey Shyam. He was also the injured. He was examined as PW 12. He has sustained bullet injury in the incident but he could not identify any of the assailant. Ld APP submitted that the story of prosecution in brief is that on 18.7.2000 accused persons came armed at workshop. Accused Krishanveer had earlier worked there as security guard. 19 While he was working in A+ security, they wanted to loot the showroom. At the workshop they killed security guards and the driver namely Rishi Pal, Muneshwar and Aslam Khan. Ld APP submitted that in the absence of the testimony of Radhey Shyam the story of prosecution now depends upon the circumstantial evidence. The prosecution has proved beyond doubt all the circumstances. The circumstances proved form a complete chain. The circumstances so proved are inconsistent with any hypothesis of innocence of accused. Ld APP submitted that circumstances which appear against all the accused persons and individually also are that accused Krishanveer was earlier working as security guard at the workshop as has come in the testimony of Anoop Singh examined as PW 10. Two of the dead bodies found on the spot are that of security guard namely Rishi Pal and Muneshwar. The third person Aslam Khan was the driver. This witness has specifically stated that Krishanveer was also deputed as 20 security guard in the factory of Ford I-con where this incident has taken place but he was removed from the services as there was report that his conduct was not up to the mark coupled with this circumstance, the other circumstance which are on record and have been established and proved by the prosecution are that on the spot dead bodies were found and the bullets as well as empty cartridges were also found which were seized. The seizure memo of the empty cartridge found in the showroom of Ford I-con found on the coffee counter were seized vide memo Ex PW 10/E and were proved as Ex PW 22/X1 and Ex PW 22/X2. Skethes are Ex PW 10/F, one of the empty cartridge was .8mm on the base of which K.F .86 was found written and the other cartridge was of .32 bore. In the open area on the back side of the showroom one empty cartridge and the bullet lead was found which were seized vide memo Ex PW 10/G. The empty cartridge was proved as Ex PW 22/XG and the bullet lead was proved as Ex PW 22/X3. The 21 empty cartridge was of .8mm and on its base KF.86 was found written and the lead bullet was 1.6 cm. Sketch is proved as Ex PW 10/X. Another empty cartridge was found inside the power room on the floor. It was also of 8mm and on its base 97 KF was found written. Sketch of the same is Ex PW 10/K and was seized vide memo Ex PW 10/J. One lead was also found inside the power room near the dead body of Aslam and Muneshwar which was seized vide memo Ex PW 22/X3. On the spot on first floor near the room of accountant glass door was found broken. Pieces of glass were having blood stains. Those were seized vide memo Ex PW 10/P and the pieces are proved as Ex PW 22/X9. One handkerchief stained with blood was also found in the reception table. It was also seized vide memo Ex PW 10/C and the same is Ex PW 22/X10. Ld APP submitted that accused persons after killing security man and the driver took away one Ford I-con from the spot bearing No DL 3CQ 4257 and also one chest box having the 22 amount. During investigation Radhey Shyam the injured gave the name of accused Krishanveer that he is the person who had caused injury to him and was with the other accused. Krishanveer was arrested on 23.7.2000 and he pointed out the place of occurrence vide memo Ex PW 21/H5. Ld APP submitted that the other important circumstance against accused Krishanveer is that he got recovered the chest box which was removed from the spot along with the cash which was broken on the bricklin of Sunil and was thrown in Krishna river. Accused Krishanveer led them to the bridge from where that chest box was thrown in the river and got the same recovered. That chest box was seized vide memo Ex PW 29./E. Ld APP submitted that this recovery had been effected at the instance of accused Krishanveer and is the most important circumstance against him. The recovery is effected from such a place i.e from river concealed under the water where only he and the other accused could have the 23 knowledge. The place was not generally frequented by the general public and was also exclusively in the knowledge of the accused. This circumstance clearly points that accused Krishanveer is the person who committed robbery in the showroom and removed the chest box from there and in that process also killed two security guards and the driver. Ld APP submitted that there is no explanation as to how Krishanveer came to know about that chest box that it has been concealed there, coupled with this fact Krishanveer has also pointed out the place of occurrence.
Ld APP submitted that the other important circumstance against Krishanveer is that he got recovered one country made pistol which according to him was used in the commission of offence. This country made pistol was seized vide memo Ex PW 21/D and the sketch of the country made pistol is Ex PW 21/E. That country made pistol was also got recovered 24 from the western side of the chappar of his house (Gher). That place was also in the exclusive knowledge of the accused, particularly when it was within his house and the place of concealment was such that it could not have been in the knowledge of any other person except the one who has himself concealed it. Ld APP submitted that this country made pistol which was .315 bore was sent to FSL for examination. The country made pistol has been proved as Ex P3. Cartridges which were round on the spot of .315 bore were sent to FSL along with this pistol. Report is Ex PW 13/F. Test fire were also conducted and the pistol successfully fired the cartridge and the expert opined that EC-2 to EC-4 has not been fired through country made pistol recovered by the accused. However striation mark could not be compared and no opinion could be given about that. The circumstance that accused Krishanveer was earlier working as security guard thereafter he was removed from the services as his conduct was not found 25 up to the mark, the fact that he got recovered the chest box removed from the showroom which was thrown in the river clearly shows that he is the person who had committed the robbery and there is no escape from this conclusion.
Ld APP submitted that so far as accused Harinder is concerned, Krishanveer disclosed that he along with Harinder, Narender and Sunil had committed this offence. Accused Harinder was arrested when at about 2.00 am he had come to collect vehicle No. DL 3CQ 4257on 24.7.2000. This car was got recovered at the instance of accused Krishanveer but the police party laid trap there and when accused Harinder come there he was apprehended. Ld APP submitted that this fact that accused Krishanveer got recovered the car which was removed from the factory and accused Harinder had come there to collect the car clearly shows that accused Harinder was also with them 26 in the commission of offence and was knowing where car which was robbed had been kept. This car was seized.
Ld APP submitted that the other important evidence is that Harinder was got medically examined and his blood sample was taken. Document in this regard is Ex PW 20/A. Blood sample was seized by the IO vide memo Ex PW 13/A. Blood sample so taken along with glass pieces found on the spot having blood stain and the handkerchief having blood stains which were found on the spot were sent to FSL and the FSL result show that the blood group of Harinder is AB. The group of blood found on the broken pieces of glass as well as handkerchief was also found to be of group AB. Ld APP submitted that this recovery of the blood group of accused on the handkerchief and also on the broken pieces of glass clearly show his involvement coupled with the fact that he got recovered the car which was stolen from the spot. Ld APP submitted that so far as 27 accused Narender is concerned he was also arrested on 11.1.2001. He disclosed about the commission of offence and he from his house got recovered one stereo and speaker of Ford I-con. It is pertinent to mention here that car bearing No DL 3CQ 4257 was recovered. It was found that stereo and the speaker are missing. These stereos and speakers were got recovered by accused Narender and were identified by the witness PW 21 that stereo and speakers are of Ford I-con. In fact on the speaker as well as stereo Ford I-con was found mentioned. Ld APP submitted that this recovery of looted property at the instance of Narender clearly shows and prove that he looted the Ford I-con from show room and in the process three persons were murdered. Ld APP submitted that from this evidence that accused Krishanveer was earlier working as security guard; he along with his co-accused planned to commit robbery at the showroom , thereafter he along with his co - accused Harinder, 28 Narender and Sunil Rathi went to that showroom and from there they removed the chest box and the car. Krishanveer got recovered the chest box from Krishna river. The place from where he got recovered the chest box could have been only in the knowledge of accused who had thrown it. This recovery had been effected immediately after the commission of offence which clearly shows that Krishanveer is the person who had committed that robbery and while committing the robbery also caused death of three persons. Krishanveer also pointed out the car which was concealed at Ganesh Ghat, Haridwar in a parking lot. This could also have been in the knowledge of the person exclusively who had parked it there. Accused Harinder had come there to take that car which show that accused Harinder was also knowing that the car which was stolen from showroom had been concealed there. Blood group of Harinder was also found on the broken pieces of glass found in the showroom and also on the handkerchief 29 which was found in the showroom which clearly show that Harinder was present in the showroom at the time of commission of offence. He robbed the showroom and caused death of three persons.
Ld APP submitted that so far as accused Narender is concerned, he got recovered the car stereo and the speaker belonging to the car DL3CQ 4257 which was robbed from the showroom. The witness identified that stereo and the speaker are the same which were installed in the car which was robbed. Narender was arrested on 12.1.2001. He got recovered the stereo proved as Ex P11 and the speaker Ex P12 and Ex P13 which were seized vide memo Ex PW 29/K. He has got recovered these stereo and speaker which he had kept concealed in a room full of bhoosa.
Ld APP submitted that so far as accused Sunil Rathi is concerned, he was along with all the 30 accused persons in the commission of offence. He also confessed about the commission of offence and pointed out the place of commission of offence.
Ld APP submitted that accused Kali Ram is the person who got recovered money which was taken out of the chest box. He has kept that concealed under the earth and got recovered after digging the earth. Ld APP submitted that this fact that he had kept the money concealed under the earth in a bag itself shows that he was having knowledge that it is a stolen property.
Ld APP further submitted that so far as accused Joginder is concerned, he got recovered from his residential house a country made pistol, three cartridges and Rs 10,000/- which he had kept concealed. This amount was the stolen property. The weapon which he had kept concealed was sent to FSL for 31 examination. According to the disclosure statement, this weapon was used in the commission of offence and the FSL result also point out that the bullet and the cartridges found on the spot were fired from that pistol. FSL report show that firing pin mark present on Ex EC1 i.e cartridge case recovered from the spot and the test cartridge case Ex EC1 were found identical and hence Ex EC1 has been fired through the pistol i.e Ex P1. Ld APP submitted that keeping in view this testimony and the evidence, it is clear that accused Joginder and Kali Ram had kept stolen money with them with the knowledge that it is a stolen property. Joginder was also found in possession of country made pistol along with live cartridge which was used in the commission of offence. It is prayed that keeping in view all these facts accused Joginder and Kali Ram be held guilty for the offence punishable U/s 411 IPC. Joginder be also held guilty for the offence punishable U/s 27 of Arms Act and other accused be held guilty for the 32 offence punishable U/s 302 IPC and accused Krishanveer and Sunil Rathi be held guilty for having found in possession of a country made pistol.
Ld defence counsel for accused persons submitted that there is no direct evidence against them. There is only circumstantial evidence against the accused persons. Ld counsel has placed reliance on Sharad Vs State of Maharashtra , AIR 1984 SC page 1622 to 1684 as follows:
"That if the case is based on circumstantial evidence, then onus is on the prosecution to prove that the chain is complete. Infirmity or lacuna in prosecution can't be cured by false defence or plea."
Ld defence counsel further submitted that it has also been laid down in the same case that in case of 33 circumstantial evidence, conviction can take place only if 5 principles (conditions) which are also known as Panchsheel has to be followed or fulfilled, which are:
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; the facts so established should be consistent only with the hypothesis of the guilt of the accused i.e to say they should not be explainable on any other hypothesis except that the accused is guilty; the circumstances should be of a conclusive nature and tendency; they should exclude every possible hypothesis except the one to be proved and there must be a chain of evidence so complete as not to leave any reasonable ground or the conclusion consistent with the nuisance of accused and must show that in all human probability , the act must have been done by the accused.
Ld defence counsel further submitted that it 34 has also been laid down in the same case that when there are two possibilities in that case, the accused are entitled for benefit of doubt and in such case conviction cannot take place. Ld counsel has further relied upon the judgments cited as Mohd Sabir Vs State (NCT of Delhi), State of UP Vs Shanker AIR 1981, SC 897, Gulsi Gangota Vs Emperor, AIR 1933, Patna 180.
Ld counsel also relied upon the judgment cited as Basanti Vs State of H.P where it has been held by Hon'ble Supreme Court as under:-
"That if there is no reliable,
admissible, direct evidence to
connect the accused with the
commission of alleged offence,
strong suspicion against the
accused cannot take place of proof."
Ld defence counsel further submitted that prosecution had not examined accountant Dalip Kumar and hence miserably failed to prove that there was any 35 amount of Rs 75080 in the showroom which was taken away by the accused persons. There are contradictions in the disclosure statement of accused which clearly show that all the disclosure statements are false and fabricated and in fact no such disclosure statement was made by the accused persons. No public witness was joined while disclosure statements were recorded, which creates doubt about the correctness of those disclosure statement. Ld counsel submitted that in the absence of any independent witness supporting the factum of making disclosure statement, the same cannot be relied upon. Ld counsel has relied upon the judgment cited as Jagat Vs State of Haryana AIR 1974 SC 1545 wherein it was laid down by the Hon'ble Supreme Court as under:-
"That the evidence about an extra judicial confession in the nature of a weak piece of evidence if the same is lacking probability, there would be no difficulty in rejecting it."36
Ld counsel submitted that so far as the recoveries are concerned, there are no public witness though the public persons were available. The recoveries were also not effected from secluded place. Even at the time of alleged arrest of accused no public witnesses were joined which clearly show that it is a made up story of prosecution. The recoveries were not effected. One such instance is that seizure memo of car Ex PW 1/20G show that rear number plate of the car was found broken but no witness had deposed so. IO says that the case property was sealed but there is no mention in the seizure memo or in any other document that seal after use was handed over to any one, which clearly show that actually no seal was handed over to anyone after use. Seal was also not deposited hence recovery becomes doubtful. FSL result also does not support prosecution version. There is no conclusive proof that handkerchief on which blood was found and 37 the glass pieces on which blood of AB group was found was of Harinder only. There is no evidence against accused Sunil Rathi and Harinder to link them with the commission of offence. Even there is no circumstantial evidence to link them with the commission of offence and non joining of independent witness at the time of recovery makes the recovery doubtful as laid down by the Hon'ble Supreme Court in the case titled as State of Punjab Vs Ajaib Singh IAR 2004 Vol I 250 SC wherein it was held as under"
"If the recovery of weapon is not supported by independent witness, then it is doubtful in nature."
Ld defence counsel submitted that the entire evidence produced by the prosecution is full of intra contradiction as witnesses are stating different dates of proceedings, arrest of accused, they are stating differently about the way in which proceedings were 38 conducted. Witnesses are also stating in different way in which investigation was carried out in this case. There is no sufficient evidence to convict the accused. Ld counsel has relied upon judgment cited as Rama Ashrey Pandey Vs State of Bihar AR 1976 SC 2147 wherein Hon'ble Supreme Court has stated as under:
"If the prosecution evidence is unbelievable and contradictory, on the basis of such evidence, no body can be convicted."
Ld counsel for accused persons submitted that as there is no clear, cogent and reliable evidence against accused persons and in fact the entire evidence produced by the prosecution is full of intra- contradictions, doubts and lapses and chain of evidence is also breaking on several occasions i.e there is lack of complete chain and hence prosecution has miserably failed to prove its case beyond all the reasonable doubts 39 and hence it is prayed that accused persons be acquitted by giving benefit of doubt.
After hearing arguments and going through the record, I found that though there was one eye witness in the case but he has not supported the prosecution case. He has failed to identify the assailants and the person who had fired upon him. There was no other eye witness in this case. Thereafter case depends upon the circumstantial evidence. It is well settled principle of law that in the case based upon circumstantial evidence, the circumstance is to be established and proved beyond doubt. Every such circumstance proved must be proved conclusively and shall be inconsistent with any hypothesis of innocence of accused. The chain of the circumstances so proved must be complete and shall point only towards the guilt of the accused. In the present case not adverting to the story of the prosecution again, the circumstance which 40 the prosecution want to establish are recovery of stolen articles at the instance of accused persons after the commission of offence. It is well settled principle of law that if a person is found in possession of stolen property after the theft then it has to be presumed that he had committed the theft unless there is an explanation. It is also settled principle of law that the presumption arises that if during the robbery death had been caused then the person who had been robbed had also caused the death. In the present case as pointed out by the prosecution there are circumstances pointing towards the guilt of accused persons. The first circumstance is recovery of chest box from Krishna river. The offence has been committed on intervening night of 18/19.7.2000. During investigation it came on record that it was Krishanveer who was involved in the commission of offence. Krishanveer was arrested on 23.7.2000. He confessed about the commission of crime and also got recovered the chest box Ex P4 which was 41 seized vide memo Ex PW 29/E. Chest Box had been recovered from flowing river and was found underneath water. It was such a place which was not generally frequented by the public and the place could also not have come known about this from any other person except the person who had thrown it there. The defence counsel has submitted that no public person was joined but in my opinion keeping in view the fact that recovery was from such a place which could not have been in the knowledge of any other person i.e from a flowing river and all other recovery witnesses consistently stood through the test of cross-examination and there is no other reason to disbelieve their testimony. I do not find any reason to discard their testimony simply on the ground that no public person was joined. This recovery has been established by the prosecution. The chest box has been identified by the witness that it is the same which was stolen from the showroom. Recovery had been effected no doubt after some period but keeping in 42 view the circumstances and place of recovery which clearly show that it was concealed there by the accused himself and none else, I am of the opinion that this circumstance has been proved and also point towards the fact that it was the accused who had committed the robbery and in the process also caused death of three persons. This is also inconsistent with any hypothesis of innocence of accused.
The other important fact is recovery of the vehicle No. DL 3CQ 4257. The recovery has been effected no doubt from a parking lot but the time of recovery is about 2.30 am i.e in the odd hour. This recovery was effected at the instance of Krishanveer. Undoubtedly no public person was joined but keeping in view the time of recovery, I am of the opinion that non joining of public witness is not material. Even otherwise when the police witnesses have fully supported and corroborated each other I do not find any reason to 43 discard their testimony simply on the ground that no public person was joined. Accused Harinder reached there to take the car which also show that he was knowing where that car has been concealed. This fact in my opinion also stands conclusively proved that car was recovered at the instance of accused Krishanveer and Harinder had come to collect that car. This fact clearly show that both these accused were knowing the location of car which is the same car which was stolen from showroom on the intervening night of 18/19.7.2000. The fact that accused persons were knowing about this car and about the location also show that they have committed the robbery and removed the car from the showroom. This circumstance is inconsistent with any hypothesis of innocence of accused persons.
So far as accused Narender is concerned, he got recovered the stereo and speaker of the car which accused Krishanveer and Harinder got recovered. 44 Stereo and speaker were kept concealed in room filled with bhoosa (room which was farming part of house of accused Narender). The fact that the stereo and speakers were kept concealed in the room full of bhusa clearly shows that it was the stolen property which was kept there by the accused. These stereo as well as speaker have been identified by the witness as belonging to that car. There were marks of Ford I-con also on the speaker and stereo Ex P11, Ex P12 and Ex P13. This recovery had also been proved by the prosecution beyond doubt and establish the involvement of accused in the commission of robbery and also murder. This circumstance so established is also inconsistent with any hypothesis of innocence of accused.
The broken pieces of glass were found on the first floor having blood stains and one handkerchief was also found lying on the counter which was also having 45 blood stains. During investigation when accused Harinder was apprehended he was sent for medical examination and his blood sample was taken. His blood group was found to be AB and the blood group on the broken pieces of glass and handkerchief were also found to be of AB group, which clearly prove the presence of accused Harinder on the spot at the time of commission of offence. There is no explanation as to how blood of accused Harinder reached the spot and was found on the broken pieces of glass and also on handkerchief. All these facts form a complete chain and points towards the fact that they are the person who had committed robbery.
So far as accused Sunil is concerned, the only evidence against him is his own disclosure statement and the disclosure statement of his co-accused. There is no recovery from him or at his instance. The other circumstance is that he has pointed out the place of 46 occurrence which was already in the knowledge of the police and which has already been pointed by the other accused persons therefore I am of the opinion that circumstance is of no evidentiary value. So far as accused Sunil Rathi is concerned onus was on the prosecution to establish about the involvement of accused Sunil in the commission of offence but the prosecution has miserably failed to link accused Sunil Rathi with commission of offence of robbery and murder.
So far as accused Kali Ram is concerned, defence counsel has submitted that the money which was got recovered at the instance of accused Kali Ram was was his own money which he had received from the person to whom he had sold sugarcane. That witness has also been examined as DW 1 who is running a crane crusher. This witness has specifically stated that he had paid Rs 50,000/- to him in the year 2000. Ld counsel 47 submitted that keeping in view this clear testimony of Angrez Singh any recovery alleged to have been effected at the instance of Kali Ram is of no consequence. It is submitted that there is no evidence that this is the same money which was stolen from the showroom but keeping in view the fact that this money has been recovered which he had kept in a bag concealed under the earth by digging a pit itself show that it was not his hard earned money, otherwise there was no reason for him to keep it concealed under the earth. The evidence show that the accused had kept the money in a bag inside his house in a room under the earth, there is no explanation as to why he has kept it concealed under the earth. No doubt no public witness was joined but as all the witnesses examined have stood through the test of lengthy cross-examination, fully corroborated each other and there are no contradictions in their testimony except the minor one which are bound to occur by the lapse of time, I do not find any reason to discard their 48 testimony simply because that they are from the police force. The recovery that also from such a place at the instance of accused clearly show that he had received this amount with the knowledge that it is a stolen property and that is why he had kept it concealed under the earth.
So far as accused Joginder is concerned, he also got recovered Rs 10,000/- which had had kept concealed in an Ala in his room. He also got recovered one country made pistol with three live cartridges which according to the FSL result were armed and ammunition as per the definition of Arms and Ammunition Act. Pistol Ex P1 was also used in the commission of offence. There is no explanation as to how he got Rs 10,000/- and also the pistol. Again the same defence has been taken that he has been falsely implicated and there is no public witness but I do not find any merit in this contention.
49
So far as question of conspiracy is concerned, it is well settled principle of law that there cannot be any direct evidence to establish the same. The conspiracy is hatched secretly and it has to be gathered from the circumstances proved on record. In the present case the circumstances which have been proved on record are that accused Krishanveer was earlier working as security guard at that showroom. There was complaint against him regarding his conduct, that is why he was removed. He wanted to rob that showroom and that is why he conspired with other accused persons. The fact of conspiracy can be inferred from the circumstances that car as well as chest box were removed from the showroom. Car was recovered from Ganesh Ghat at the instance of Krishanveer. Harender also reached there immediately thereafter to collect that car. From the car stereo and the speakers were found missing which were recovered from accused Narender. This fact clearly show that these three were in 50 agreement with each other and conspired to commit robbery and that is why they along with co-accused reached there, robbed the showroom and in the process killed three persons and attempted to kill the fourth one. From these circumstances, I am of the opinion that so far as the factum of conspiracy is concerned that stands established.
Keeping in view the above discussion that prosecution has successfully established its case, so far as accused Krishanver, Harinder and Narender are concerned they have hatched conspiracy. In view of that conspiracy they committed robbery at the showroom of Ford I-con situated at 20 Okhla Industrial Estate Phase III and from there robbed a car bearing No DL 3CQ 4257 make Ford I-con and chest box containing Rs 75080 and while committing such robbery they caused death of Rishi Pal, Muneshwar both security guards and Aslam Kham driver. They had also caused injuries 51 to Radhey Shyam in the process who had come there only to find out and meet Rishi Pal , I therefore hold them guilty for the offence punishable U/s 120B IPC, 392 r/w 120 B IPC , 302 r/w 120 B IPC and 307 r/w 120 B IPC.
So far as accused Joginder is concerned he is held guilty for the offence punishable U/s 411 IPC and 25 Arms Act. Accused Kali Ram is held guilty for the offence punishable U/s 411 IPC. Accused Krishanveer is also held guilty for the offence punishable U/s 25 of Arms Act. So far as accused Sunil Rathi is concerned, there is no evidence against him brought on record by the prosecution therefore he is acquitted of all the charges.
Announced in open court (V.K.BANSAL) On 15/7/08 Addl. Sessions Judge New Delhi 52 IN THE COURT OF SH. V.K.BANSAL;
ADDL. SESSIONS JUDGE;
NEW DELHI SC NO: 69/07 State Versus 1.Narender Singh S/o Randhir R/o Village Tikri PS Doghat, District Bagpat UP
2.Krishanveer Singh Rathi @ Billo S/o Kali Ram R/o Village Tikri Patti Dawar Thana Dodhar District Baghpat U.P.
3. Harender Singh S/o Yashveer Singh R/o ---do ---
4. Jogender @ Pahalwan S/o Jaswant R/o Village Tigri PS Doghat Distt Bagpat UP
5. Kali Ram S/o Lal Singh R/o Village Tikri Patti Dawar Thana Dodhar District Baghpat U.P. FIR NO: 401/2000 PS: O.I. Area U/s : 394/397/307/302/411/34 IPC and 25/27/54/59 Arms Act ORDER ON SENTENCE:
Present: APP for the State Convict Kali Ram and Jogender on court bail. Other convicts produced from JC Sh S.K. Saxena and Sh Ashutosh Advocates 53 for the convicts.
Heard on the point of quantum of sentence and perused the record. Ld APP submits that convicts Krishanveer, Narender and Harender committed robbery at the showroom of Ford I-con, removed one car and the chest box containing around Rs 72,000/-. They had murdered two security guards, one driver and also attempted to murder Radhey Shyam in the process. It is prayed that keeping in view the fact that they had taken three innocent lives and also attempted to kill one without any provocation just to enable them to rob the showroom shows with how much precession they had committed the offence and also their intention not to leave behind any eye witness. It is prayed that keeping in view the gravity of the offence convicts Krishanveer, Narender and Harender be awarded death penalty. Ld APP submitted that Kali Ram and Jogender were found in possession of the looted property. Jogender also got recovered one country made pistol with three cartridges 54 which was used in the commission of crime. It is prayed that keeping in view their involvement in such serious offence they be also awarded severest punishment.
Ld counsel for the convicts submitted that none of them is a previous convict. They have no previous involvement. Krishanveer is 31 yrs old, his mother is facing psychiatric problem. His younger brother is a college student. He has no previous criminal record. Convict Narender is 30 yrs old having old parents. He has no previous criminal record and is not a previous convict.
Convict Harender is only 28 yrs old having two younger brothers, one younger sister and old parents. He has no previous criminal history. It is prayed that keeping in view the young age of all the convicts; the fact that there is no previous criminal record and also the manner in which the offence is committed it does not fall within the category of rarest 55 of rare of case. Keeping in view all these facts a lenient view may kindly be taken.
Ld counsel submitted that so far as convict Kali Ram is concerned, he is 64 yrs old having three sons, one is married, the other is convict in this case and the third one is college going. His wife is suffering with psychiatric problem. He has no previous criminal record. It is prayed that a lenient view may kindly be taken.
Convict Joginder is the only son of his parents. He is only 28/29 yrs of age having no -previous criminal record. He is not a previous convict. It is prayed that a lenient view be taken.
Keeping in view the submissions and the facts that the convicts Krishanveer, Narender and Harender committed robbery at the showroom of Ford I- con, they robbed one car and chest box containing about 56 Rs 72,000; in the process of robbery in order to eliminate the eye witnesses murdered two security guards one driver and attempted to kill another security guard; they have committed the severest offence. Keeping in view the guidelines laid down by the Hon'ble Supreme Court for awarding the death sentence, I found that this case does not fall within the category of rarest of rare case.
Keeping in view the submissions and the facts of the case convicts Krishanveer, Narender and Harender are sentenced to life imprisonment for the offence punishable U/s 302 IPC r/w 120 B IPC with fine of Rs 5000/- ID One Year RI. They are further sentenced to 10 yrs R.I for the offence punishable U/s 307 IPC r/w 120 B IPC with fine of Rs 5000/- ID One year RI. They are further sentenced to undergo 10 yrs RI and fine of Rs 5000 ID One Year RI for the offence punishable U/s 392 r/w 120 B IPC . They are further sentenced to undergo 10 yrs RI with fine of Rs 5000 ID One year RI 57 for the offence punishable U/s 120 B IPC. Convict Krishanveer is also sentenced to undergo one year RI for the offence punishable U/s 25 Arms Act with fine of Rs 1000 ID 3 months RI. All the sentences shall run concurrently.
Convict Kali Ram is sentenced to One year R.I for the offence punishable U/s 411 IPC . Benefit U/s 428 Cr.P.C be given to him.
Convict Jogender is sentenced to undergo one year RI for the offence punishable U/s 411 IPC. He is further sentenced to undergo One Year RI for the offence punishable U/s 25 /Arms Act with fine of Rs 1000 ID 3 months RI. Both the sentences shall run concurrently. Benefit U/s 428 Cr.P.C be given to him. Bail bond of Jogender and Kali Ram are canceled . Their sureties are discharged.
File be consigned to record room.
Announced in open court (V.K.BANSAL)
On 4/8/08 Addl. Sessions Judge
New Delhi