Delhi District Court
State vs . Navi Hassan Etc. on 5 November, 2007
1
IN THE COURT OF MS. REENA SINGH NAG: ADDL. DISTRICT &
SESSIONS JUDGE: KKD: DELHI
SC No. 18/03
FIR No. 154/03
PS Seema Puri
U/s 394/397/411/34 IPC
State vs. Navi Hassan etc.
JUDGMENT
1 Prosecution version is that on 19-05-03 on receipt of DD No. 14 A police reached at the site i.e house no. 392 C J & K Pocket Dilshad Garden where it was learnt that injured persons had gone to GTB hospital . Accordingly SI Kiran Pal reached at the hospital and obtained the MLC of Smt. Savitri Jain aged 50 years who was declared fit for statement . Accordingly her statement was recorded which is inter -alia to the effect that she is a house wife and her husband Vinod Jain is having business of potato chips at Khari Bawali . Earlier they were living at Dariba Kala Delhi. About 7/8 years ago they got their house painted at Dariba Kala from one Israr who afterwards also sometimes used to come to their house . About 1 month prior to the incident he came alongwith two boys to their house at Dilshad Garden whereupon complainant asked him to come on some holiday as her sister had asked her about the 2 painting work. Once or twice Israr also made telephone calls to the the complainant for painting and plaster of paris at their house. On 19-05-03 her husband and son had gone to job. She alongwith her daughter Jyoti who had come from her matrimonial home to meet complainant was also present at home. AT about 11:00 am somebody knocked the main door of their flat whereupon complainant saw that Israr had come with two other boys . Pet dog of complainant started barking whereupon at the asking of Israr complainant bolted the dog in the inner room . Israr alongwith two boys came inside the drawing room . Israr enquired from the complainant that he had come in connection with the work of POP to be done at the house of relation of complainant . Complainant asked him to come on some holiday as her relations were service persons. Complainant offered tea or cold and Israr asked her for tea. He also requested to tune the TV on . AT that time Jyoti was sitting on Diwan in the drawing room. Israr with two boys took tea and snacks . In the meanwhile complainant enquired from Israr as to the POP work to be got done in their flat , Israr asked complainant to show him the POP sample for which he took one pen and paper piece from Jyoti . Israr took complainant to inside the room where almirah was kept , on the pretext of seeing that room. Israr all of a 3 sudden gave a rod blow on the head of complainant as a result she screamed and fell near almirah, bleeding profusely and she was asked by Israr to give whatever she possessed. In the meanwhile on the point of knife her daughter was brought there by the other boy. Hands and feets of both were tied by those boys . Both the almirah were searched . One boy said that her daughter would be killed and that she should give whatever articles was there . Jewellery of her daughter were taken comprising of three gold Karahs which was got prepared from Bhim Jewellers , Janpath Connaught Place , four gold Karas got prepared from Sweety Jewellers Shahdara, one Kanthy har , two gold chains got prepared from Dwarka Prasad Jewellers, Chandni Chowk, one pair of Tops , one Mangalsutra , two rings , one Sai Baba Locket which were kept in a rexine bag were taken . Besides, the gold chain from the neck of her daughter was also taken . Israr threatened if any alarm is raised then they would be killed. Extending such threat they fled with the robbed articles . Complainant also gave the description of the features of the Trio . On checking the house she found all the articles of the house scattered , telephone wires were also cut . Somehow her daughter untied her and went to the neighbour and made a telephone call to the police .
42 On this statement ball of criminal action was set in motion and after completion of investigation, chargesheet against accused Navi Hassan @ Israr S/o Mohd. Hanif R/o Mohalla Abdul Haq , Devband Distt. Muzafarnagar U. P. , (2) Khalil S/o Jamil R/o Mohalla Kawaja Baksh, Devband Distt. Muzafarnagar U. P. , (3) Dhanish S/o Mohd. Rashid R/o Mohalla Kestawara , Devband Distt. Muzafarnagar U. P. , were filed u/s 394/397/411/34 IPC. 3 After committal to the sessions court charge u/s 394/397/34 IPC were framed against all the three accused persons whereas charge u/s 411 IPC was framed against Khalil and Navi Hassan individually by the then Ld. ASJ Sh. B R Kedia on 20-10-03 to which all the accused persons pleaded not guilty and claimed trial. 4 In support of its case prosecution has examined the following witnesses .
5 PW 1 is Smt. Savitri Jain complainant who has endeavored to support the prosecution case. She proved her statement as Ex.PW 1/A .The seizure of rope piece , one blouse , one saree etc which were used by the accused for tying the victims was proved as Ex.PW1/B . She also identified the clothing i.e her saree as Ex..P1 with which accused persons had tied the hands and legs of her daughter Jyoti. She proved the gown which she was 5 wearing as Ex..P2 and blouse of Jyoti as Ex..P3. As per her, her two blouses of green colour and dark blue colour which were used by the accused for pushing the same in her mouth and tying her face are Ex.P4 and P5. The piece of green colour cloth Ex.P6 was used for tying them and rope was proved as Ex.P7 which was used for tying her legs. However, she could not identify the iron rod with which she was struck on her head. She also proved the jewellery items as referred in her statement which were recovered later on as Ex.P8 ( 1-4)4 gold karas, Ex.P9 ( 1-3) three gold bangles, Ex.P10 Mangal Sutra, Ex.P11 and P12 two gold chains, Ex.P13 one Pandat set, Ex.P14 one gents ring, Ex.P15 one ladies ring, Ex.P16 ( 1-2) one pair of gold tops and Ex.P17 one pandal of Jai Baba locket. She also identified all the accused persons in the court. 6 PW2 is Jyoti the other victim and daughter of the complainant who had endeavored to support the prosecution case and corroborated her mother. She has also identified the accused persons in the court and described the role of accused persons in the incident.
7 PW3 is Vinod Jain who is husband of complainant and has endeavored to support the prosecution case. He is a witness to recovery of the robbed articles from accused Navi Hassan @ Israr 6 which were seized vide memo Ex.PW.3/A. He also stood witness to the disclosure statement of Navi Hassan vide Ex.PW.3/B and his arrest vide memo Ex.PW3/C and his personal search vide memo Ex.PW.3/d. He also identified some of the case property. 8 PW4 is constable Mohan Lal ( wrongly written his name as Manohar Lal) who was on emergency duty on 19.5.03 at PS Seema Puri and on receipt of information regarding the robbery at the house of complainant he alongwith SI Om Parkash reached there and learnt that injured had already been removed to GTB hospital and after sometime SI Kiran Pal also reached there with whom this constable accompanied to GTB Hospital. He has also been given ruqqa by SI Kiran Pal at GTB Hospital on the basis of which FIR was got registered by this witness.
9 PW5 is SI Om Parkash who has supported the prosecution case mutatis mutandis. He was left at the spot by SI Kiran Pal. On the fateful day, after return from GTB Hospital SI Kiran Pal seized the clothes on the spot and handed over the same to PW5 and he proved the memo as Ex.PW.1/B wherein his signatures appeared at point A. He also identified the clothes viz Ex.P1 to P7. 10 PW6 is HC Naresh Pal who joined the proceedings conducted by SI Kiran Pal with regard to arrest of accused Dhanish 7 on 28.5.03.
11 PW7 is constable Sukhbeer who remained associated with investigation of this case with SI Kiran Pal alongwith constable Rajiv and public witness Vinod Jain and on 20.5.03 at the instance of informer and on identification of Vinod Jain accused Navi Hassan was arrested. He referred to the arrest memo, personal search memo, disclosure statement of Navi Hassan. Ornaments were recovered in a yellow panni from the inner pocket of pyjama of Navi Hassan which were the part of looted property. Accused in pursuance of his disclosure statement also got recovered from park in the bushes in the jurisdiction of PS Farash Khana one rod lying in front of house no 312-C, J & K Pocket i.e the place of occurrence which rod was used by accused Navi Hassan at the time of incident. The same was seized vide Ex.PW.7/A. He also identified the rod as Ex.P17. He was also shown the case property produced by superdar which he identified before the court which were recovered from accused Navi Hassan (Gold Chain Ex.P11, Four Godl Karads Ex.P8, (1-4) and three gold bangles Ex.P9 (1-3 ) ) 12 PW 8 is ASI Karan Singh DO who has proved the FIR as Ex.PW 8.A and endorsement on Rukka as Ex.PW 8/B 13 PW 9 is SI Som Nath who had gone to Tihar Jail with 8 Savitri Jain and her daughter for identification of accused Khalil . He had identified accused Khalil before the concerned MM and TIP proceedings which were proved vide Ex.PW 2/A . As per him accused Khalil was correctly identified by Jyoti. He moved an application before Magistrate for obtaining the copy of the proceedings and he proved the application as Ex.PW9/A . 14 PW 10 is Hemant Tekwani who has proved the MLC of Savitri Jain prepared by Dr. Sunil Patodiya , as Dr. Patodiya left the hospital and his whereabouts were not known .
15 PW 11 is Ct. Rajeev who remained associated with investigation of this case with Investigating Officer Kiran Pal . He has also endeavored to support the prosecution case as testified by other PWs. Accused Khalil was arrested on the identification of accused Navi Hassan vide Memo Ex.PW 11/A wherein his signatures appeared at point A , when Khalil was coming out from court premises at Saharanpur at about 5:20 pm on 23-05-03 . He proved the personal search of accused Khalil as Ex.PW 11/B and his disclosure statement as Ex.PW 11/C . Accused Khalil also got recovered the case property viz one designdar bangle of gold , one Kanthi Har , one Mangalsutra, one Chain , one pair of Tops all of gold, Two gold Rings, and One Sai Baba Locket. Articles were kept 9 in a Panny and red colour Dibbi of Tribhuwan Dass Jewellers was also found. Same were got recovered from the house of accused Khalil at Mohalla Kawaja Baksh, Devband from the first floor of the house under the Kabar. He also identified all those gold articles recovered which have been referred by PW1. These articles were seized vide memo Ex.PW.11/D after sealing the pullanda with the seal of KP. Seal after use was given to PW11. After the recovery police party alongwith accused came back to Delhi. This witness has been cross examined at length by accused Navi Hassan and Khalil.
16 PW12 is ASI Shahid khan who remained associated with the investigation of this case with Investigating Officer SI Kiran Pal and on 22.5.03 went to Saharanpur with the police party alongwith accused Navi Hassan for search of co accused Khalil and from out side the Saharanpur court accused Khalil on the pointing out of accused Navi Hassan was arrested on 23.5.03. He has also referred to the documents already exhibited and identified the accused persons and the case property recovered at the instance of Khalil as testified by PW11. He has also been cross examined. 17 PW13 is Anuj Kumar Bhatia Finger Print Expert from Finger Print Bureau Malviya Nagar who had inter alia testified that 10 on 19.5.03 on being summoned by SHO of PS Seema Puri for lifting chance prints for examination He reached at the spot i.e. 312 C Pocket J and K Dilshad Garden and lifted seven chance prints marked as Q1 to Q7 and also prepared a report Ex.PW.13/A regarding scene of crime. He has been cross examined at length by accused Navi Hassan only. Other accused persons have not cross examined him despite opportunity.
18 PW14 is Narinder Singh who is also Finger Print Expert, Finger Print Bureau, Malviya Nagar. He testified that on 20.6.03 he received one file alongwith document No.1 i.e carbon copy of scene of crime and expert report, original of which saw in the court as Ex.PW.14/A. On examination it was found that chance print Q2 and Q3 were identical with left ring and left index finger impression mark S1 and S2. In this case he has also received the specimen finger impression slips of accused Persons viz. Mohd. Danish, Khalil Ahmed, Navi Hassan. He also received the finger impression slips of Jyoti sharma and Savitri Jain. He futher stated that on the finger impression slip of Navi Hassan s/o Mohd. Hanif chance print mark Q6 is palm print, hence, it could not be searched on the record of the Bureau. He further stated that chance print mark Q1,Q4,Q5 and Q7 were either hazy super imposed or smuged 11 and did not disclose sufficient number of his details in their relative position for comparison,hence, they were unfit and no opinion could be given regarding those prints. At the same time he added that since one finger was sufficient to establish the identity of a person, therefore, only one set of identically Q2 and S1 have been marked in support of his opinion. He proved his report as Ex.PW.14/A with his signatures at point A and signature of Director at point A1. As per him his report also included the enlarge marked photographs of identical prints which was Q2 ( Chance Print) and S1 ( Specimen print). He proved those photographs as Ex.PW.14/B and c and the negatives thereof as Ex.PW.14/B1 and Ex.PW14/C1 and the remaining negatives No.31 collectively proved as Ex.PW.14/C2. All these exhibits Ex.PW.14/B and C and negatives thereof were checked by this witness and counter signed by Director at point A and A1. He also proved the description of the enlarge mark prints as Ex.PW.14/D. He identified the signature of Director at the relevant points on the exhibits. He has been cross examined by Navi Hassan in detail but other accused persons did not cross examine him despite opportunity.
19 PW15 is Ms. Barkha Gupta ld MM who conducted the TIP of accused Khalil in Tihar Jail. She inter alia testified that 12 whereas PW Savitri Jain could not identify accused Khalil correctly in the TIP proceedings held but another witness Jyoti Sharma correctly identified the accused but at the same time witness Jyoti Sharma used the word probably in identifying accused Khalil and she gave the explanation that at the relevant time ( at the time of incident) accused did not have beared. Ld MM proved relevant proceedings as Ex.PW.15/A to C. 20 PW`16 is Ms. Shalinder Kaur l;d MM who had conducted the TIP of jewellery articles recovered in this case and proved the application as Ex.PW.16/A and the TIP proceedings were proved as Ex.PW.16/A. Witness Jyoti Sharma had identified the jewellery articles. PW16 has not been cross examined despite opportunity.
21 PW17 is Investigating Officer SI Kiran Pal who has investigated the case and supported the prosecution version mutatis mutandis and identified all the accused persons and referred to the documents/articles already exhibited in this case. He also proved the endorsement on the statement of complainant Ex.PW.1/A vide Ex.PW.17/A on the basis of which FIR was got registered. He prepared two site plans one showing that plot surrounding the area of the place of occurrence vide Ex.PW.17/B and the other site plan 13 was pertaining to inner portion of the flat which he proved vide Ex.PW.17/C. He also proved the arrest memo and personal search memo of accused Danish who was arrested from Saharanpur Railway Station at the pointing out of secret informer and proved the same as Ex.PW.17/D and E respectively. Accused Danish was interrogated and his disclosure statement was proved as Ex.PW.17/F. Accused Danish was kept in muffled face after his arrest till the commencement of TIP proceedings of accused Danish who refused to join TIP. He also proved the iron rod i.e weapon of offence which was used in the incident. The same was got recovered by accused Navi Hassan. He has been cross examined by accused persons at length.
22 After closure of prosecution evidence accused persons were individually examined under section 313 Cr.P.C wherein they were confronted with incriminating evidence adduced on record by the prosecution. Accused Navi Hassan pleaded innocence and has opted to lead evidence in his defence. He also furnished his written statement in which he inter alia projected that he was acquainted with Sh.Vinod Jain since long and used to deposit his savings with him and entries were made in personal diary of Navi Hassan by Sh. Vinod Jain himself and the amount accumulated to Rs.27,000/- but 14 on demand from Sh.Vinod Jain at his shop at Khari Bawoli he accused Navi Hassan of inflating the amount and a quarrel ensued in which Navi Hassan gave fist blow to Sh.Vinod Jain and in retaliation he was falsely implicated in this case. Sh.Vinod Jain also tore that diary.
23 Accused Danish in his statement under section 313 Cr.P.C pleaded innocence. He claimed that he got himself surrendered in the PS as his family members were harassed by the police who visited his house twice or thrice with Navi Hassan who falsely took his name. He also claimed that his photographs were taken at the PS and the same might have been shown to the witnesses so he refused to join the TIP. He also claimed that Navi Hassan and khalil co accused in this case were from Devband and Navii Hassan was inimical towards him as he had lodged the FIR against him earlier prior to this case. He also opted to lead evidence in his defence.
24 Accused Khalil also pleaded innocence and claimed that articles recovered were not connected with him and he did not know anything about the same. He also claimed that his photographs were taken at the PS before conducting the TIP. As per him he had nothing to do with the alleged offence and was lifted by the police of 15 PS Seema Puri on 18.5.03 and thereafter some false documents were prepared and he was implicated in this case. He did not opt to lead any evidence in his defence.
25 Defence witnesses in this case are Meer Alam son of Mohd. Arif , Umed Hasan son of Shabbir Hassan and Shahid Hasan s/o Shri Sayyed Hussain and Navi Hassan ( accused himself). Meer Alam testified that on 20.5.03 he was present in his house in the neighbourhood of accused Navi Hassan at Mohalla Abdul Haq Devband District Saharanpur UP when police officials from Delhi came at about 5/6 a.m and took Navi Hassan away which was objected to by his family members as well as Meer Alam himself and others but in vain and mohalla people alongwith family members of accused Navi Hassan had also gone to Kotwali Devband to lodge report but they did not lodge any report. Umed Hasan stated that he was acquainted with accused Navi Hasam and Danish they being resident of his locality at Devband District Saharanpur UP. As per him on 6.1.03 Danish asked Navi Hasan to pay his money back thereupon Navi Hasan picked up a quarrel and assaulted Danish. The cause of fight was the loan of Rs.10,000/- which Navi Hassan had taken from Danish for agricultural purpose and the fight had broken out in the presence of this witness. At that 16 time Navi Hassan had extended threat to Danish to teach him a lesson. Thereafter Danish had filed a police complaint in PS Devband vide mark A in presence of this witness and seal of PS was identified at point B on mark A. The police had called both the parties in the PS,there Navi Hassan had requested for compromise in his presence. On 8.1.03 compromise was reached between Navi Hassan and Danish in presence of some persons from the society in which Navi Hassan had promised to return the money within five/six months. Compromise deed was referred as mark DW1/A with the signature of Umed Hasan at point A, Danish and Navi Hassan at point B and C. However, it is the case of Umed Hasan that accused Navi Hassan did not pay back the amount and Danish was falsely implicated in this case by Navi Hassan.
26 Defence witness Shahid Hasan also testified on the line of defence witness Umed Hassan and referred to his signature at point E on the compromise deed which as per him was written in his presence, but despite the compromise the payment of Rs.10,000/- was not made to Danish by Navi Hassan rather Danish was implicated in the present case. Accused Navi Hassan while examining himself as defence witness stated on oath that he had received Rs.10,000/- from Danish and there were also scuffle 17 between him and Danish in 2003 but afterwards an agreement was reached between them for not indulging in the aforesaid matter of money in future. He claimed that he was got lifted from his house by Vinod Kumar Jain @ Lala and was illgally detained in PS for 3 days and under the coercion of police due to torture he named Danish and Khalil, although there was no involvement of both in any manner, in the incident. At the same time, Navi Hassan also claimed that he too was not involved in the incident and was falsely implicated in this case just to teach him a lesson as it was a case of purely money dispute with Vinod Jain. All the defence witnesses have been cross examined by ld APP/ 27 I have heard the arguments of both the sides in the light of available material on record and relevant provisions of law. Besides, I have also adverted to the written brief placed on record by accused Khalil and Navi Hassan through their respective counsel Shri Parveen chaudhary and Shri A.K.Goel which would be referred to at appropriate places in the discussion hereafter. 28 In order to prove the guilt of accused:
(1)Commission of the crime must be clearly proved beyond all shadow of reasonable doubt (2) Where crime is proved by prosecution, it must further 18 prove that crime was committed by the person accused of crime.
(3) Accused can claim the benefit of his defence just by showing a balance of probabilities and he has not to prove his defence beyond a reasonable doubt.
Let us see whether in the case under hand the above principle have been satisfied or not:
Occurrence of Crime:- State was notified contemporaneously about the occurrence vide DD No.14A
dated 19.5.03 which reflects that at 12.12 p.m wireless operator came to DO room and reported that at H No. C 312 pocket J and K Dilshad Garden three men came and tied her and gave knife injury on head of her mother, looted and ran away. This DD entry was handed over for inquiry to SI Om Parkash who proceeded to spot with constable Mohan Lal. Vide DD No,.15A SI Kiran Pal also proceeded to spot at 12.15 p.m These facts have been testified by PW4 Constable Mohan Lal, PW5 SI Om Parkash and PW17 SI Kiran Pal. PW5 has specifically testified that on his reaching at the spot he found the house hold articles scattered here and there. There is no cross examination on this aspect and as such this piece of evidence has gone unrebutted which lends credence to 19 prosecution version regarding robbery having been committed at spot. PW17 SI Kiran Pal has also corroborated PW5 in this regard who reached at the spot a bit later.
29 As per PW4 Constable Mohan Lal, PW5 SI Om Parkash and PW17 SI Kishan Lal, injured was already removed to GTB Hospital before their arrival at the spot. The MLC Ex.PW10/A of injured Savitri Jain (PW1) shows that she had gone to hospital with her sister Anju Jain w/o Rakesh Jain at 12.35 p.m on 19.5.03 with alleged history of assault. As per prosecution version, statement of Savitri Jain was recorded at the hospital on the basis of which FIR was registered at 2.15 p.m In rebuttal it has been contended by counsel Sh A K Goel for accused Israr @ Navi Hasan that whereas PW2 Jyoti Devi stated that her mother's statement was taken at home at about 4.30 p.m which is in deviation with prosecution version and that complainant also in deviation from prosecution version testified that she was only inquired about the incident at the hospital and nothing else was done. Non examination of Aarti Jain who took injured Savita Jain has also been adverted to by Sh. A.K.Goel as deficiency in prosecution case entitling acquittal of accused. Moreover, as per Sh.Goel, private doctor who had initially examined the injured has 20 also not been cited or examined thereby diluting the occurrence. sh. Parveen Chaudhary counsel for Khalil has concurred with Sh. Goel in this regard. Ld APP Sh.Davinder Kumar has on the other hand argued that such omission/deviations are of no consequences being insignificant.
30 I agree with the submissions of ld APP on this count as section 114 of Indian Evidence Act is invocable in this regard. There would not have been any need for recording DD entry regarding occurrence or making of departure entry of SI Kiran Pal to spot or recording of MLC of Savitri Jain showing her arrival within spacing of occurrence, had there been no such incident having taken place as per record and testimony of victims and procedural witnesses. The discrepancy with respect to place and time of recording of statement of savitri Jain can be attributed to the fact that incident took place on 19.5.03 wherea injured Savitri Jain aged 50 years was examined as late as 4.12.03, 15.1.04, 19.2.04,18.3.04,17.7.04 and PW2 Jyoti aged 27 years was examined on 15.1.04, 19,.2.04,18.3.04 and 17.4.04. Moreover, mental faculty of all persons similarly situated are not alike. They remember the same incident in different fashion and for different duration and when truth is projected through human mind and not 21 through computer, variation is bound to occur every time when some fact is narrated at different points of time. Court is only required to appreciate whether the total base of the case is demolishable through probable defence, in case prosecution succeeds in establishing the occurrence beyond all shadow of reasonable doubt. PW1 Savitri Jain and PW2 Jyoti have given the vivid description of individual act of culprits, one of whom was already known to them by name of Israr which fact is not disputed by accused Navi Hassan who was known as Israr also. 31 Accused Israr @ Navi Hassan has claimed in his statement under section 313 Cr.P.C that he had money dispute with Vinod Jain husband of Savitri Jain and had a quarrel with him at his shop at Khari Bawoli but no where such suggestion was given to vinod Jain PW3 and the above plea of quarrel seems to be an after thought and cannot be believed. Moreover, no where accused Navi Hassan claimed that such quarrel took place at spot i,.e. house of Savitri Jain. PW14 has proved the relevant documents as referred above which reflects that chance prints mark Q2 and Q3 are identical with left ring and left index finger impression mark S1 and S2 respectively in the finger impression slip of Navi Hassan son of Mohd. Hanif ( Ex.PW14/A). Mark Q1 to Q6 22 were lifted from almirha kept in the house of victim. How came the finger print of accused Navi Hassan happened to be there in the house of victim has not been explained by defence. Accused Navi Hassan has admitted his prior acquaintance with family of victim on account of his profession of Rangai putai i.e ( painting POP etc). The contention of defence is that Ex.PW14/A cannot be read in evidence, as report prepared by PW14 Narinder Singh Finger Print Expert is not signed by him but was counter signed by the Director. This objection is met by answer of PW14 Narinder Singh who clarified that in Ex.PW14/D there was no column for signature of finger print expert and that is why his signatures were not there. He remained firm that report was prepared by him. He could not be impeached on this count as such there is no reason to discard this opinion. The entire facts and circumstances as discussed above leave no doubt that incident did take place in consonance with prosecution version.
(Ii) Whether the crime has been committed by accused persons herein?
32 As regards identity of accused persons as perpetrators of crime, as discussed above, the identity of accused Navi Hassan as Israr was known to victims from very inception and his presence 23 at the spot has been established through technical evidence of his finger prints found at the spot corroborated by oral testimony of victims and recovery of part of looted property of victims in presence of PW3 Vinod Jain and official witnesses, from Navi Hassan @ Israr. Defence counsel has contended that prosecution has not collected documentary proof regarding the ownership of the jewellery which was allegedly robbed. This is not the preposition of law that in the absence of such proof of ownership under no circumstances such guilt cannot be established. Why on earth victims just within proper spacing of time and place would give the details of such ornaments robbed, had there been no such incident. Part of the looted property recovered from accused Navi Hassan tallied with such description as given in the FIR and the same were also duly identified by victim in judicial TIP. The superdginama for release of case property is worth Rs.1,00,000/- . Had it been a fabricated case, victims could have simply stated that due to alarm raised by them the offenders fled from the spot without carrying anything of the house hold articles or jewellery, in that eventuality also accused Navi Hassan @ Israr who has been named could have been prosecuted. The conduct of PW1 Savitri Jain and PW2 Jyoti who are victims is quite natural. If no such incident had taken place, they would not 24 have opted to undergo all inconveniences/ harassment by going to Tihar Jail and before ld MM for judicial TIP of accused and case property, at the expense of their time, energy and convenience. 33 As per Sh. Goel counsel for accused Navi Hassan, recovery from accused is fabricated because of discrepancies in the testimony of witnsses such as, whereas PW3 Vinod Jain stated that he went to Farash Khana in official vehicle but PW7 Sukhbir stated that they went in private vehicle; that whereas PW3 Vinod Jain stated that case property was sealed by sitting on Takhat lying out side the shop but PW7 Sukhbir stated that it was conducted by standing near two wheeler scooter. PW17 SI Kiran Pal stated that it was done on a stool and that they went to Farash Khana in a private vehicle; that no public witness was joined in the recovery proceedings nor local police was involved in those proceedings; that no recovery of rod was effected at the instance of Navi Hassan and he was brought from his house at Devband to Delhi by Delhi police on 20.5.03 and detained at Seema Puri PS and falsely implicated. 34 As regards identity of accused Khalil as perpetrator of crime, the contention of ld defence counsel Sh.Parveen Chaudhary is that prosecution has failed to establish his identity beyond all shadow of reasonable doubts as complainant Savitri Jain did not 25 identify accused Khalil in judicial TIP and PW2 Jyoti was also not absolutely sure regarding identity of Khalil in judicial TIP held at Tihar Jail; that at the time of arrest of Khalil on 22.5.03 his face was not muffled by the IO till before commencement of TIP proceedings as can be seen from the personal search/arrest memo of accused; that three witnesses of arrest of khalil namely PW11 Constable Rajiv, PW12 ASI Shahid khan and PW17 Kiran Pal are discrepant; that PW11 constable Rajiv categorically stated that "it is correct that after returning from Devband, on the same day, the complainant and witnesses were shown accused Khalil; that PW12 ASI Shahid khan did not state that face of Khalil was muffled; that PW17 SI Kiran Pal did not state that accused was muffled at the spot of arrest; that there was no documentary proof adduced on record by PW17 in this regard; that PW1 and PW2 did not give description of accused Khalil regarding his height,complexion and health to IO and they have made improvements in this regard in the testimony before the court; that PW2 admitted in her cross examination that she learnt the name of accused Khalil from police after his arrest; that alleged recovery from Khalil is not believable as PW11 constable Rajiv, PW12 ASI Shahid Khan and PW17 SI Kiran Pal have failed to give the number of Tata Sumo in which they 26 went to Saharanpur or details of its driver; that they also failed to bring on record their departure entry for Saharan Pur and Dev band; that as per PW17 place of recovery was open one and therefore has no meaning in the eyes of law; that whereas PW12 ASI Shahid Khan stated that they visited PS Devband but PW11 and PW17 refused having visited there; that no public witness was joined in recovery effected at the instance of accused Khalil. 35 As regards accused Danish contention of ld. Defence counsel Sh.R S Goswami is that his album/photographs were taken and shown to witnesses as has been admitted by witnesses and that there is no recovery from accused Danish and in his defence co accused Navi Hassan has admitted that due to enmity he had falsely named Danish in his disclosure statement and that is how accused Danish has been implicated in this case. It has further been contended that on the identification of police out side the court, at their instance Danish has been identified for the first time in court by PW1 and PW2 and that identification of accused for the first time in the court is of no significance and accused is entitled to acquittal. Ld. Defence counsel has relied on the authority reported in Crimes XII 1987 (3) page 867 titled Dachchu & others vs. State of MP by Hon'ble Madhya Pradesh High Court in which conviction was set 27 aside on the grounds inter alia of delayed TIP and hostility of witnesses of identification memo.
36 I have given a thoughtful consideration to the submissions by respective counsel and ld APP. Since from the very inception of the case, role of three culprits was referred, out of whom only Israr @ Navi Hassan was known to victims. Obviously it was therefore within the knowledge of Navi Hassan only the identity of his accomplice who were at the time of incident not know to the victims. It is noted that in the statement Ex.PW1/A on the basis of which FIR has been registered, complainant has given the description of the accomplice as in the age group of 32 to 35 years having shallow colour and moustaches and with regard to third culprit they gave the colour of the shirt and he being younger in age from remaining two culprits. PW2 has identified accused Khalil in judicial TIP correctly but with rider that he was probably the accused but she clarified that at the relevant time accused did not have beared. In these circumstances the identification by PW2 with regard to accused Khalil but with rider cannot be appreciated in isolation or in conjunction with failure in identification of accused Khalil by complainant Savitri Jain who is aged about 50 years for the reasons that investigating agency succeeded in effecting recovery 28 from accused Khalil and such recovered looted property was identified by material witnesses. The recovery effected from Khalil is not from open place but from under the kabar kept in a room from where the robbed articles i.e. Kanthi har, mangal sutre, one bangle, one pair of tops, one chain, two rings and one pandle of Sai Bana kept in a dibbi contained in green polythene were recovered The various objections raised by counsel Sh.Parveen Chaudhary with regard to irregularity in effecting recovery from accused Khalil, is of no consequence as it is common knowledge that public witness do not come forward to assist the investigating agency in investigation for various reasons such as victimization, loss of their time, money and inconvenience. Moreover the discrepancies in the procedural matters is also of no help to the accused since police officials conduct investigation in number of cases and it is not expected from them that they would remember each and every minute details of the procedure conducted by them, unless the same is documented on record contemporaneously. As such the omission in testimony of PW11, PW12 and PW17 as referred above or discrepancies in the testimony of PW3 and PW7 as referred by Sh. Goel defence counsel, does not help the accused persons. The contention that PW11 constable Rajiv has admitted that accused khalil was shown 29 to complainant and witnesses after return from Ddevband appears to be a typographical error as it appears that instead of incorrect ' correct' has been typed when evidence was being recorded by ld. Predecessor. Moreover PW1 has stated that she did not join investigation after the incident except joining TIP. PW2 denied that after the arrest of accused persons, she or her parents were shown the accused persons at the police station. Recovery of rod has been established at the instance of accused Navi Hassan which was used at the time of commission of offence. I am, therefore, not inclined to attach un-due importance to suchminor/fringe discrepancies when core of the prosecution version stands established. The contention of ld.defence counsel that Navi Hassan has admitted that he falsely implicated accused Danish in his disclosure statement due to money dispute is also of no advantage to the accused for the reasons that accused Navi Hassan while being examined as defence witness stated that in the year 2003 he received Rs. 10,000/- from Danish and there was an agreement between him and Danish regarding not to be indulged in aforesaid matter of money in future, whereas the aforesaid agreement Ex.DW2/A which was produced by accused Danish in original mentions that on 8.1.03 an agreement was reached with intervention of well wishers that Navi 30 Hassan would pay back the amount of Rs.10,000/- to Danish by 10.5.03. Accused Navi Hassan admitted in his cross examination that he did not pay Rs.10,000/- to Danish as per agreement, so the probability cannot be ruled out that in order to honour the compromise so that Rs.10,000/- can be paid to accused Danish,the accused persons indulged in committing the crime in this case. In my considered view the prosecution has been able to bring home the guilt of accused persons beyond all shadow of reasonable doubts. Accused persons have not been able to establish their probable defence. The contention of accused Danish that his album/photographs were shown to witnesses is also not going to help him for the reasons that accused persons remained at the spot for a considerable period and witnesses had sufficient time to record his features in their memory and accused having declined to join TIP, his identification by the witnesses for the first time in court has to be construed adversely against accused Danish. PW2 has even given the description of clothing of accused Danish i.e light colour cream pant/shirt and his individual role i.e. It was Danish who had taken PW2 at the point of knife to in side the room and accused Khalil had tied her. In her cross examination by accused Khalil, PW2 stated that she was shown number of photographs from 31 record for identification but she was not shown any photograph after arrest of accused persons and in her cross examination by accused Danish, she stated that she had not identified the culprits from the photographs/album shown to her just after the incident. She appears to be a natural and believable witness and there is no reason to discard her testimony. In Sukhdev Singh 1992(3) SCC 700 Hon'bleApex Court inter alia held that if a witness had any particular reason to remember about the identify of accused, in that event, the case can be brought under the exception and upon solitary evidence of identification of accused in court for the first time conviction can be based. In Ronny 1998(3) SCC 625 it was inter alia held that where the witness had a chance to interact with the accused or in a case where witness had an opportunity to notice distinctive features of the accused which lends assurance to his testimony in the court, the evidence of identification for the first time by such a witness cannot be thrown away. The similar preposition of law has been reiterated in Lekh Raj 2000 (1) SCC 247. I have also adverted to the authorities as referred herein after while appreciating the evidence adduced on record by both the sides.AIR 2000 SC 185 titled State of Karnataka Vs,. K Yarappa Reddy in which it was inter alia held by Hon'bleApex Court that it is well nigh 32 settled that even if the investigation is illegal or even suspicious, the rest of the evidence must be scrutinized independently of the impect of it otherwise criminal trial will plummet to the level of investigating officer ruling the roost. The court must have predominance and pre- eminence in criminal trials over the action taken by the investigating officer.Criminal justice should not be made the casualty for the wrongs committed by the investigating officers in the case. In other words if court is convinced that the testimony of a witness to the occurrence is true, the court is free to act on it albeit investigating officer's suspicious role in the case. In Gurbachan Singh vs. Sat Pal Singh reported in 1990 SC 2091 our Hon'ble Apex Court interalia held that justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not dong justice according to law. In another case titled Inder singh Vs. State AIR 1978 SC 1091 it was observed that a reasonable doubt is not an imaginary trivial or merely possible doubt but a fair doubt based upon reasons and common sense. It must grow out of evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the 33 meticulous hyper sensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Defence witnesses produced by accused persons have failed to make any dent in the prosecution version as throughout the trial till the stage of statement of accused, no such plea was raised by accused Navi Hassan@ Iarar, so his plea that he falsely named accused Danish duo to earlier money dispute is of no help to accused Danish in view of given facts and circumstances of the case where victims have identified \Danish in court in unerring terms. Moreover, it is also not the preposition of law that one time enemy always enemy/ Defence has not been able to demolish the prosecution case in any manner. 37 In view of my foregoing discussion I convict the accused persons as under:
All the three accused persons are convicted under section 394/34 IPC.
Accused Navi Hassan and Danish are individually convicted under section 397 IPC. Accused Navi Hassan and Khalil are individually convicted under section 411 IPC.
Announced in open Court ( REENA SINGH NAG)
Dt: 1.11.07 Addl. Sessions Judge,
KKD, Delhi
34
IN THE COURT OF MS. REENA SINGH NAG: ADDL. DISTRICT & SESSIONS JUDGE: KKD: DELHI SC No. 18/03 FIR No. 154/03 PS Seema Puri U/s 394/397/411/34 IPC State vs. Navi Hassan etc. ORDER ON SENTENCE:
I have heard ld APP, convicts individually and their counsel on the quantum of sentence. Convict Navi Hassan is aged 50 years and is married. He has in his family six children, eldest daughter is 17 years and younger son isn 6/7 years. His wife is homely. Earlier he used to get Rs.100/- or Rs.150/- per day from his profession of white washing and painting etc. He has studied upto 4th class. There is no previous conviction against him. His parents are aged and he is in custody since May 2003. 2 Convict Khalil is aged 47 years and is studied upto 4th class. He used to run a tea shop and was earning about Rs.100/-
per day. He is married and has roots in society as his two sons are aged 15 years and 9 years and daughter is aged 14 years but his wife has left them and has gone to her parental home. Father of convict has expired and mother is ill. Only his brother is there who is looking after his family. He is also in custody since May 2003. In 35 one case of NDPS Act from PS Saharanpur he has since been acquitted and there is no other case pending against him. 3 Convict Danish is aged 28 years and has just been married for last about more than one year. His wife is expecting. He has studied till 9th and he is farming presently. There is no other case. His father has expired and his mother is dependent upon him. Sh. Praveen Chaudhary for convict Khalil and Sh. A.K.Goel for convict Navi Hassan have pleaded for mercy and release of convicts on their undergone sentence, in view of the poor economical condition of their family and in view of their good conduct in jail as there is no bad conduct reported by the jail authorities. Counsel Sh. R.S.Goswami for convict Danish has pleaded for release of convict Danish on probation on the ground that he belongs to a respectable family and is not a previous convict and he is a tax payer and is presently running his business in the name of M/s Moon Star Tractors, G.T.Road Devband, District Saharanpur UP i.e Tractor Agency in Muzaffar Nagar and is younger in age. In support of his claim he has produced a certificate from L & T John Beere Pvt. Ltd. Gomti Nagar, Lucknow wherein it has been certified that M/s. Moon Star Tractors is their authorised dealer for Trade and spare parts for Tehsil Devband and Nakur for District Saharanpur UP. He has also 36 enclosed the income tax documents for the assessment year 2007- 08 to show that convict is a tax payee and a copy of partnership wherein convict Danish is having 75% share alongwith partner Akhlad Hasan who is having 25% share in the business of trading of the tractors and spare parts etc for M/s. Moon Star Tractors. Sh. Goswami has also brought my attention to the authorities reported in 1983 CC Cases 24 ( SC) titled Masarullah vs, State of Tamil Naidu under section 397 IPC in which case accused being under 20 years of age, benefit under section of Probation of Offenders Act was extended instead of under section 3 / 4 of Probation Act as Probation Officer'sreport was favourable and parents were keen to improve the accused. In that conviction was under section 452/397 IPC. In another case under section 392 read with section 397 IPC relied on by ld. Counsel reported in 1989 Cr.L.J 1283 titled State of Maharastra Vs. Nababai Abdul Hasan and another one of the accused being under age of 21 years was extended benefit of probation. Ld. APP on the other hand has vehemently argued for stringent punishment in view of the nature of offence. Before announcing the sentences It would be appropriate to refer to the relevant provisions of IPC.
Section 394 IPC reads as under:
37
Voluntarily causing hurt in committing robbery . - If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with [imprisonment for life] , or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 397 IPC reads as under:
Robbery, or dacoity, with attempt to cause death or grievous hurt - If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
In this case with due deference, the authorities relied on by 38 Sh.Goswami are not available to convict Danish as his present age is 28 years and he was not under the age of 21 years at the time of commission of offence but was 23 years old. As per testimony of PW2 he threatened PW2 with the knife by placing it against her neck whereas as per testimony of PW1, Navi Hassan had given rod blow.
In these circumstances any leniency cannot be shown in terms of minimum requirement of sentence under section 397 IPC qua accused Danish and Navi Hassan.
4 In my considered view sentence of 7 years will meet the ends of justice and I sentence the convicts as under:
U/Section 394/34 IPC all the three convicts are sentenced to undergo RI for 7 years each and sentenced to pay a fine of Rs.100/- each. In default of payment of fine they shall further undergo SI for 10 days each.
U/Section 397 IPC convicts Danish and Navi Hassan are sentenced to undergo RI for 7 years each.
U/Section 411 IPC convicts Navi Hassan and Khalil are sentenced to undergo RI for 3 years each.
All the sentences shall run concurrently. Benefit of section 428 39 Cr.P.C shall be given to the convicts. Copy of this order be given to the convicts free of costs. The file be consigned to record room.
Announced in open Court ( REENA SINGH NAG)
Dt: 5.11.07 Addl. Sessions Judge,
KKD, Delhi