Delhi District Court
Made To State Vs Punjab vs Hadayat Masih & Others, 1997 (1) Ccc 97 on 24 March, 2009
1
IN THE COURT OF SH. DHARMESH SHARMA, ASJ-II,NORTH, DELHI.
SESSIONS CASE NO: 01/2006
FIR No: 422/02
P.S. KASHMERE GATE.
U/S: 396/397/302 IPC & 53/116 D.P. ACT,
304 PART II/395 IPC.
DATE OF INSTITUTION: 04.12.2002.
DATE ON WHICH THE JUDGEMENT HAS
BEEN RESERVED: 16.03.2009.
DATE ON WHICH THE JUDGEMENT HAS
BEEN DELIVERED:23.03.2009.
STATE
VERSUS
1. KHURSHID ALAM @ SALEEM @ MINTU,
S/O ANWAR KHAN,
R/O E-5/33, NAND NAGRI, DELHI.
2. SATISH @ SRIKISHAN @ GITPITYA,
S/O MANGU RAM,
R/O A-51, WEST NATHU COLONY,
M.S. PARK, DELHI.
3. PAPPU SINGH @ BHAISWALA,
S/O MOHAR SINGH,
R/O JHUGGI NO. (1), BLOCK B-5,
INSIDE PARK, NAND NAGRI,
DELHI.
4. CHARANJEET SINGH @ DABBU,
S/O LATE JAGDISH CHOPRA,
R/O 30A/2, SHASTRI MARG,
GALI NO. (1), MOJPUR CHOWK,
SEELAMPUR, DELHI.
5. RAJ KUMAR @ RAJU,
2
S/O LATE MOTI LAL,
R/O 115, GALI NO.3, DURGA GALI,
KACHHI COLONY, MOJPUR,
SEELAMPUR, DELHI.
6. MOHD. YUNUS @ YUSUF @ PEHALWAN,
S/O MOHD. HASIM,
R/O C-1/151, NAND NAGRI,
DELHI.
7. MOHD. WAHID @ MUNNA,
S/O MOHD. HASIM,
R/O C-1/151, NAND NAGRI,
DELHI.
JUDGMENT:-
1. Accused persons have been sent for trial for allegedly committing robbery early morning in a running bus while passing through the outskirts of most densely populated area of Delhi i.e. Darya Ganj to Kashmere Gate, in the process of which two young boys, who were on the business trip from State of Maharastra, met their untimely death.
2. CHARGE Initially accused (1) Khurshid Alam @ Saleem @ Mintu S/o Anwar Khan, (2) Satish @ Srikishan @ Gitpitias S/O Mangu Ram, (3) Pappu Singh @ Bhaiswala S/O Mohar Singh, (4) Charanjit Singh @ Dabbu S/O Late Jagdish Chopra, (5) Raj Kumar @ Raju S/O Late Moti Lal, (6) Mohd. Yunus @ Yusuf @ Pehalwan S/O Mohd. Hasim and (7) Mohd. Wahid @ Munna S/O Late Mohd. Hasim were charged under section 395 IPC. Accused Khurshid Alam @ Saleem @ Mintu was also separately charged for offence punishable under section 397 IPC. Further, accused Kurshid Alam @ Saleem @ Mintu, (2) Satish @ Srikishan @ Gitpitia, (3) Pappu Singh @ Bhaiswala and (4) Mohd. Yunus @ Yusuf @ Pehalwan were also charged for the offence punishable under section 396 IPC and in the alternative for the offence punishable under section 302 read with section 34 IPC.
33. Accused Satish @ Srikishan @ Gitpitias was also given notice as per Section 251 Cr. P. C. for being found within the territorial limits of National Capital Territory of Delhi in violation of an externment order passed by Sh. Anil Kumar Ojha, Additional DCP, Delhi dated 26.06.2001 whereby he was directed to physically remove himself from the territorial limits of Delhi for a period of 2 years w.e. f. 01.07.2001, and accordingly charged under section 53/116 of Delhi Police Act, 1940.
4. Accused Pappu Singh @ Bhaiswala challenged the order dated 22.05.2004 framing the charge in criminal revision no. 445/2004 and Hon'ble Judge of the High Court allowed the same altering the charge to one under section 395/304 part II IPC vide order dated 06.09.2006.
5. Accused Mohd. Yunus @ Yusuf @ Pehalwan also challenged the charge in criminal revision no. 179/2007, which was similarly allowed altering the charge to section 395/304 part II IPC vide order dated 30.07.2007, and the Hon'ble Judge extended the benefit of altered charge suo moto to accused Khurshid Alam as well and accordingly all the accused persons were charged afresh under section 395/304 part II on 20.09.2006.
6. Needless to state, the accused persons pleaded not guilty and claimed trial.
7. PROSECUTION STORY The case of the prosecution is that on 01.09.2002, ASI Khajan Singh of PCR informed Duty Officer PW-19 Constable Narender Kumar of Police Station Kashmere Gate at about 9 AM in the morning that there had been an accident near Indraprastha University, Kashmere Gate, who recorded DD no. 14B Ex. PW-19/A, pursuant to which, PW-52 SI K. L. Meena (ASI at the relevant time) went to the spot alongwith PW-17 constable Ravinder for inquiry and found that at Subhash Park, Near Punjab National Bank, Indraprastha University, one unknown man was lying dead with head injuries and one black colour leather bag Ex. P-1 was entangled with the body of deceased person. Another person was found in injured and 4 unconscious condition.
8. PW-18 constable Ajit was already present at the spot. The injured person was immediately shifted by him to Trauma Centre. PW-10 Mirza Zakir Beg, met PW-52 SI K. L. Meena at the spot and informed him that he had heard from passer byes that both the victims had fallen from a running bus bearing no. DL1PA-5611 at about 8.35 AM. PW-52 SI K. L. Meena conducted the personal search of the deceased and found Rs.260/-, visiting Cards and two bus tickets of Rs.7/- each in the pocket of deceased. The black colour bag contained cash amounting to Rs. 96,000/- besides the personal clothes of the deceased seized vide memo Ex. PW-17/A. PW-52 SI K. L. Meena conducted necessary investigation and sent a rukka Ex. PW- 19/A to police station through PW-18 on the basis of which FIR Ex. PW- 24/A was recorded under section 279/337/304 A of IPC. PW-52 IO then proceeded to investigate the matter further and found bus no. DL1PA-5611 on route no. 205 near Ritz Cinema, Kashmere Gate and on interrogation of its driver PW-11 Mohd. Shafiq and conductor PW-15 Sahnawaz @ Sanu, it was revealed that two persons had infact fallen from another bus bearing registration no. DL1PB-3612 from its rear gate, near Indraprastha University, Punjab National Bank,Subhash Park; and they also told the IO that the driver of the offending bus did not stop it and sped away. Investigation then led to Rajinder Singh, PW-3 owner of bus no. DL1P/B-3612 and the bus was seized vide memo Ex. PW-15/A and bundle of tickets in the denomination of Rs.2,5,7 to 10 were seized vide memo Ex. PW-25/A.
9. On 02.09.2002, the investigation was transferred to PW-54 SI Rajender Prasad. Pursuant to notice under section 133 of Motor Vehicles Act Ex. PW-3/B, the owner of the bus produced driver Dev Dass @ Baboo (who could not be examined as he died during the trial on 19.03.2003) and helper PW-2 Shishpal before the police and their statements were recorded on 03.09.2002. In the meantime, one public witness Ayodhaya Prasad PW- 1 came forward infromed the IO that two persons had not met with an 5 accident but they fallen out of the bus from its rear gate with their black colour bag when three bad characters were trying to snatch their bag; that the bus conductor PW-6 Mehfooz raised alarm calling upon the driver to stop the bus but it didn't and the driver informed that one person was sitting by the side of his seat in the bus and had kept a knife on his arm pit and had threatened him against stopping the bus.
10. The deceased boy on the spot was identified as Sachin Shinde and the injured boy was Abhir Shinde who scummbed to his injuries and died on 06.02.2002.
11. Prosecution case is further that on 06.09.2002 accused khurshid Alam @ Saleem @ Mintu was arrested on the basis of secret information and on interrogation, his disclosure statement was recorded, wherein he admitted his involvement in the incident in question, inculpating himself as the one who kept the driver of the bus under threat with a knife and he also named his three accomplices as Pappu Singh @ Bhaiswala, Satish @ Srikishan @ Gitpitias and Mohd. Yunus @ Yusuf @ Pehalwan.
12. On 07.09.2002, the police arrested accused Pappu Singh @ Bhaiswala and Satish @ Kishan @ Gitpitia. During intense interrogation, accused Khurshid Alam made a second disclosure statement and revealed that the robbery was committed in a planned manner and other members of the gang, namely gang leader Charanjit Singh and Mohd. Wahid who were following the offending bus in a TSR No. DL-1RH-1275, which was being driven by accused Raj Kumar @ Raju and after getting down at Boulevard Road, they all slipped away in the said TSR.
13. During police remand of accused Charanjit Singh @ Dabbu on 05.10.2002, interalia residence of co-accused Yunus @ Yusuf and his brother Wahid @ Munna were identified who were arrested on 16.11.2002 and 21.11.2002 respectively. The accused persons were sent for Test Identification Parade on different dates from the date of their arrest and accused Charanjit Singh @ Dabboo was identified in TIP whereas remaining 6 accused persons refused to participate in TIP. After completion of investigation, the charge sheet was filed on 04.12.2002 by IO Inspector Satya Pal Singh.
14. EVIDENCE Prosecution examined as many as 61 witnesses in all to prove its case.
15. In the category of Public witnesses, who testified about the role of the accused persons were: PW-1 Ayodhya Prasad, PW-2 Sheeshpal, working as a helper at the time of incident in bus no. DL-1P B 3612; PW-3 Rajinder Singh, registered owner of DL-1P B3612; PW-4 Nelsom was working with Maharashtra Freight Carriers (P) Ltd., who testified about the booking of two cartons of hardware by the deceased boys. He also proved the receipt Ex. PW-4/A, which was recovered from accused Khurshid Alam. PW-5 was Sachin Sharma, who testified running a mobile repair shop and turned hostile to the prosecution case that he had sold one mobile set to accused Charanjit Singh @ Dabbu. PW-6 was Mehfooz, working as conductor on bus number DL-1P B 3612. PW-7 is Raj Kumar, who testified that accused Charanjit got financed a three wheeler scooter bearing registration no. DL-1RH-1275 for Rs. 90,000/- from him; PW-10 was Mirza Zakir Beg who accosted the IO and apprised him that the deceased had fallen from the bus; PW-11 was Mohd Shafiq, who testified that he was working as driver on bus number DL-1PA-5611 at the time of incident; PW- 15 was Shah Nawaz, conductor in bus bearing no. DL-1PA-5611; PW-20 Mukand Rao Bhaidas Shinde, father of the two deceased boys. PW-20 testified identifying the dead body of his son Sachine Shinde at Mortuary Subzi Mandi vide statement Ex. PW-20/A and that of his son Abhir Shinde vide statement Ex. PW-20/B. He also identified the articles of his son Sachin in the police Station. PW-21 was D. C. Patil, uncle of deceased Sachin and Abhir; and PW-22 was Suhas Bhaidas Shinde, the real brother of PW-20 and his evidence was also recorded in regard to identification of 7 dead bodies.
16. In the category of medical witnesses, prosecution examined PW-31 Dr. J. K. Basu, CMO, Sushrut Trauma Centre, who proved the MLC of injured Abhir as Ex. PW-31/A. He testified that the patient was unfit for the statement till 05.09.2002. PW-32 Dr. Sarvesh Tandaon, proved the postmortem report of deceased Sachin Mukand Rao as Ex. PW-32/A and also proved the postmortem report on the deady body of Abhir Mukand Rao as Ex. PW-32/B. PW-51 Dr. Sanjeev kumar Sharma, JR. Shushrat Trauma Centre, LNJP hospital, proved the death summary of Abhir Sinde as Ex. PW-51/A.
17. In the category of police witnesses the following witnesses were examined by the prosecution;
PW-8 was Tirath Raj Singh, Draughtsman. He proved the scaled site plan as Ex. PW-8/A of the place of occurrence i.e where the two deceased boys fell down from the bus.
PW-9 Anu Anand, who was working in the office of Hutch Essar and produced record in regard to sale of three mobile connections to accused Khurshid Alam and proved the applications form regarding the mobile connections Ex. PW-9/A to 9/F.
18. PW-12 was constable Sher Pal, who was associated in the investigation with SI J. P. Singh, PS Delhi Cantt., in PC remand of accused Raj Kumar @ Raju, who testified that on interrogation, accused Raj Kumar made a disclosure statement Ex. PW-12/A, whereby he admitted his involvement in the occurrence in question , which information was passed on to police Station, Kashmere Gate.
19. PW-13 was Constable Hem Parkash who alongwith PW-27 HC Rakesh Kumar and PW-29 ASI Mukand Lal apprehended accused Charanjit @ Dabbu on 25.09.2002 in Dehradun; PW-14 was HC Neeru, who testified receiving information on 06.09.2002 regarding the death of injured Abhir Shinde recorded vide DD no. 13 as Ex. PW-14/A; PW-16 constable Rajesh 8 Kumar was associated in the investigation, leading to apprehension of accused Satish and Pappu Singh @ Bhaiswala on 07.09.2002. He further testified that on 10.10.2002, he again joined the investigation in this case and was associated while PC remand of accused Charanjit @ Dabbu, who took them to Shahdara and stopped near a shop and stated that he had brought a mobile phone make 'Panasonic' from that shop. He also testified that on 16.11.2002, accused Yunus @ Yusuf led them to the place of occurrence and made a disclosure Statement Ex. PW-16/C and pointed out the place of occurrence memo Ex. PW-16/D.
20. PW-17 was constable Ravinder, who was associated with PW-52 IO K. L. Meena in the investigation of the case. PW-18 constable Ajit (also examined as PW-25) was the first one who reached at the place of occurrence and removed unconscious injured Abhir Shinde to Trauma Centre, LNJP; PW-19 was constable Narender, who was joined in the investigation during PC remand of accused Charanjit @ Dabbu.
21. PW-23 was constable Brij Pal who also associated in the investigation conducted by SHO, PS Kashmere Gate in regard to the recovery of three wheeler scooter DL 1R H 1275, which was seized vide memo Ex. PW-7/A. PW-24 ASI Raghunath Singh recorded the FIR Ex. PW-24/A at PS Kashmere Gate under section 279/337/304A IPC on the rukka sent by ASI K. L. Meena; PW-26 constable Pratap Singh testified about the apprehending accused Khurshid Alam alongwith SI Narender Khatri, SI Rajender Parshad. He further testified that on 07.09.2002, he was associated in the investigation alongwith SI Narender Khatri, Constable Rajesh and constable Joginder when accused Satish and Pappu were arrested.
22. PW-27 is HC Rakesh Kumar. On 25.09.2002, he was the member of raiding party that apprehended accused Charanjit @ Dabbu.
23. PW-28 constable Yogender Kumar, who at the directions of IO, took photographs of the place of occurrence and proved the photographs as 9 Ex. PW-28/B1 to 28/B4 and negatives of the same as Ex. PW-28/A1 to 28/A4 .
24. PW-29 ASI Mukut Lal, from Special Staff of North East, a member of raiding team on 25.09.2002 when accused Charanjit @ Dabbu was apprehended. Similarly, PW-30 HC Sri Bhagwan was the member of the raiding party on 11,.10.2002 and went to Dehradun for the recovery of a mobile phone; PW-33 HC Jag Pal Singh went to Kasba Hassan Pur for searching of eye witness conductor Mehfooz @ Babbu of bus no. DL-1P B 3612; PW-34 constable Suraj Pal was associated in the investigation on 06.10.2002 and interrogation of accused Raju @ Raj Kumar; PW-35 constable Joginder was the member of raiding party on 07.09.2002 and also involved in the investigation on 27.09.2002 when accused Charanjit @ Dabbu was arrested; PW-36 constable Shamsher joined the investigation with SI Narender Khatri and went to Dak Pathar, Dehradun alongwith accused Charajit for recovery of mobile phone on 11.10.2002. He was also associated in the arrest of accused Mohd. Yusuf from Jabalpur on 15.10.2002. PW-37 ASI D. P. Dabar was posted as ASI PCR as a Incharge on 01.09.2002, on whose instance site plan was prepared by the IO.
25. PW-38 SI Jai Pal Singh of PS Delhi Cantt, who informed about the disclosure statement of accused Raj Kumar to the IO in this case. PW-39 constable Ashwani Kumar, who proved the PCR information regarding the incident; PW-40 SI Baljit Singh, who on the directions of the IO collected the call details of mobile phones allegedly used by the accused during commission of crime. PW-41 was ASI Mohd. Yamin from the PCR collected copy of PCR Form.
26. PW-42 HC Satyendra joined the investigation for arrest of accused Mohd. Wahid @ Munna; PW-43 HC Sohan Vir was also associated in the arrest of accused Wahid @ Munna.
27. PW-44 Lady constable Suman, who produced the original records in regard to the externment orders dated 26.06.2001 passed against 10 accused Satish @ Srikishan @ Gitpitia.
28. PW-45 constable Pradeep Kumar joined the investigation alongwith SI Baljeet Singh for collecting the details of mobile phones; PW- 47 HC Satya Prakash was the duty officer on 06.10.2002, who received information regarding arrest of accused Raj Kumar @ Raju from PS Delhi Cantt. PW-48 constable Rajinder was duty constable at Trauma Centre at the time of incident. He testified that one Abhir Mukund Rao Shindey was admitted in Trauma Centre who had died on 06.09.2002 at about 7.45 PM; PW-49 Constable Raj Kumar was associated in the investigation and interrogation of accused Raju at PS Delhi Cantt. PW-50 HC Vajinder Singh was the MHC(M), Nand Nagri, who testified being in the custody of TSR involved in the dacoity. At the cost of repetition, PW-52 ASI K. L, Meena. PW-53 SI Khajan Singh testified receiving a call at 100 number regarding an accident in front of I. P. University, Kashmere Gate; PW-54 SI Rajender Prasad, was the second IO of this case; PW-55 HC Sube Singh Yadav was DD writer, who recorded DD no. 9 regarding briefing and departure of staff; PW-56 ASI Kaptan Singh, who recorded information regarding the arrest of accused Charanjit @ Dabbu and proved the same as Ex. PW-56/A.
29. PW-57 was HC Virender Singh MHC(M) at PS Kashmere Gate, who testified about receiving the case property through PW-52 IO ASI K. L. Meena; PW-58 constable Brijesh was associated in the investigation alongwith SI Rajinder Singh at different stages also with PW-59 constable Rakesh Kumar; PW-60 SI Narender Khatri was posted at PS Kashmere Gate; He testified that he received the secret information regarding the movements of accused persons involved in the present case on the basis of which accused Khurshid Alam and Pappu Bhaiswala were arrested; PW-61 Inspector Sat Pal Singh, Additional SHO at PS Kashmere Gate, who had a significant role in the investigation of this case.
30. Prosecution has also examined one judicial officer namely Sh. P. K. Jain, ADJ, who proved the TIP conducted by him in regard to the accused 11 persons, when he was posted as Metropolitan Magistrate.
31. On the conclusion of the prosecution evidence, the incriminating evidence and circumstance appearing against the accused persons were put to them in terms of Section 313 of Cr. P. C. Accused persons denied all the evidence against them and they submitted that they have been falsely implicated in this case and they are innocent. Accused persons chose not to lead any evidence in their defence.
32. I have heard Sh. Ashutosh Bhardwaj, learned counsel for the accused persons and Sh. Maqsood Ahmed, learned APP for the State. I have perused the oral and documentary evidence on the record of the case and I have also gone through the written submissions filed by the learned counsel on behalf of the accused persons.
33. ROBBERY AND HOMICIDE: First thing first, from the evidence led on record it is clear that Sachin Mukund Rao Shinde and Abhir Mukund Rao Shinde did not die of accidental death but it was a case of homicide. PW11 Mohd. Shafiq driver of Bus No. DL1PA-5611 and his conductor on the bus PW-15 Shah Nawaz were truthful in their evidence that the two deceased men did not fall down from their bus but from the other bus No. DL1PB 3612 which was running along side from Darya Ganj to Kashmere Gate. PW-11 Mohd. Shafiq and PW-15 Shah Nawaz testified that the driver of the offending bus was Devdas @ Babu, conductor was Mahfooz and helper Shispal. The two buses were being run in competition with each other, and the witnesses knew one another since they used to travelling on the same route daily basis and their evidence cannot be doubted.
34. It is also proved on record by the medial evidence postmortem Ex. PW32/A that deceased Sachin Mukund Rao Shinde aged 25 years died as a result of multiple external as well as internal injuries and the cause of death was haemorrhage and shock consequent to the injuries on the chest and the abdominal organs due to blunt force impact which could have been sustained due to falling from a moving vehicle. Similarly, postmortem report 12 of deceased Abhir Mukund Rao Shinde aged 30 years Ex. PW32/B was proved which indicate that death was due to cranio-cerebral damage consequent upon blunt force impact over the head which also could have been possible due to fall from a moving vehicle.
35. Further, the star witnesses for the prosecution were undoubtedly PW-2 Shispal helper and PW-6 Mehfooz conductor on the offending bus bearing No. DL1PB-3612. Both testified that incident occurred on 01.09.2002. They testified that their bus was running along side another bus on route no. 205 which was in fact bus no. DL1PA-5611 in competition with each other. PW-2 Shispal testified that two deceased boys had boarded the bus with a black colour bag from New Delhi Railway Station and they were seated on the rear seat of the bus near the gate; that four passengers whom he released to be pick pocketers boarded the bus from the front gate at Subzi Mandi, Darya Ganj; that one of the four pick pocketers sat on the bonnet of the bus and other three started watching the passengers having an eye on their valuables; that one sitting on the bonnet of the bus, pointed some sharp item / article on the driver of the bus and did not allow the driver to stop the bus at the red light crossing of Kodia Pul.
36. He further testified that the two boys who were sitting on the last seat wanted to get down at Kodia Pul as they were to go to the Railway Station but three of the offenders stood in their way to the rear gate and did not allow them to proceed and started snatching the black colour bag from the shoulder of one of the passenger boys; that something was hit with a sharp edge on to the black bag passenger due to which four bundles of currency notes in the denomination of Rs.10/- fell on the foot board of the bus and one of the pick pocketers tried to pick those bundles of currency notes inspite of objections raised by the passengers. He testified that the two passengers whose bag was being snatched shouted to stop the bus near Punjab National Bank, Kashmere Gate but the offender sitting on the bonnet did not allow the driver to stop it and the two passengers fell down 13 from the rear gate of the moving bus.
37. The evidence regarding four offenders boarding the bus from Subzi Mandi Darya Gang and that three of them attempting to snatch a black colour bag from two passengers who were sitting on the rear seat of the bus and that in the process the said two passengers fell out of the bus was supported by PW-6 Mehfooz. In fact, PW-6 Mehfooz testified that he had issued tickets to the two deceased passengers who had boarded the bus from New Delhi Railway Station and it is also in evidence that two bus tickets were later on seized from the pockets of the deceased boys by PW-52 IO SI K. L. Meena vide Seizure Memo Ex.PW 17/B.
38. It is pertinent to mention here that PW-52 SI K. L. Meena testified without any challenge that he had seized four bundles of currency notes from the offending bus bearing no. DL1PB -3612 vide Memo Ex.PW 25/A and the bus tickets from the pockets of the deceased men / passengers were compared and found identical. PW-1 identified the photograph of deceased Sachin Shinde with black colour bag Ex. P-1 and also photograph of the deceased Abhir Shinde Ex.P-2/X. PW-2 Shispal also identified black colour bag again Ex. P-1 which was seized from the place of occurrence vide Seizure memo Ex. PW 17/A. There is no challenge by the accused persons to the evidence so far discussed.
39. Both PW-2 and PW-6 testified without any challenge that passengers raised alarm and driver did not stop the bus since one of the offender did not allow him to stop it. Here, it would not be out of place to mention that even PW-1 Ayodhya Prasad, whose credibility has been challenged by Ld. Counsel for the accused persons, also testified that there were four offenders who boarded the bus, one of them taking position near the driver of the bus sitting on the bonnet and three others tried to snatch a black colour bag from one of the passenger who along with a co-passenger was sitting on the rear seat of the bus; and he testified in the same breadth that both passengers wanted to get down from the bus but they were not 14 allowed to leave and three of the offenders attempted to snatch their bag and in the melee said two passengers fell out of the moving bus. Therefore, the evidence makes it clear that there were four offenders / pick pocketers who boarded the bus and while one of them sat on the bonnet of the bus so as to cover the driver of the bus, the other three offenders were at the rear portion of the bus and tried to snatch a black colour bag from the two deceased persons and in the process of manhandling or jostling or resistance shown, two passengers fell out of the moving bus.
40. That brings us the evidence of the witnesses regarding the identity of the offenders.
41. EVIDENCE AGAINST ACCUSED KHURSHID ALAM @ SALEEM @ MINTU:-
At the outset ,PW-2 Shishpal identified accused Khurshid Alam @ Saleem @ Mintu as one who took position on the bonnet of the bus with some sharp object / item pointing it at the driver not allowing him to stop the bus on route from Darya Gang to Kashmere Gate. PW-2 testified without any challenge that accused Khurshid Alam @ Saleem @ Mintu was also having a mobile phone and talking on the same. The presence of this witness as helper at the time of occurrence has not been disputed or challenged. It is also significant to note that the incident occurred in the early morning in broad day light and the witnesses had sufficient time to have a good look at the accused and note his physical features. In fact PW-1 Ayodhya Prasad also identified him as one of the four offenders who boarded the bus and testified that accused Khurshid Alam @ Saleem @ Mintu was the person who sat on the bonnet of the bus.
42. Ld. Counsel for the accused in his written statements has urged that PW-1 was a planted witness and initially he did not even identify accused Khurshid Alam @ Saleem @ Mintu as one of the four offenders / pick pocketors who boarded the bus from Subzi Mandi Darya Ganj. He pointed out that witness initially identified accused Mohd. Yunus @ Yusuf @ 15 Pehalwan, Satish @ Kishan @ Gitpitia and Pappu Singh @ Bhaiswala as three persons who were at the rear side of the bus trying to snatch the black colour bag from the two passengers and rather he identified accused Khurshid Alam @ Saleem @ Mintu as one who was seated in TSR which was following the bus. He urged that the story of the witness that he was travelling in the bus at the time of occurrence and after two days he read the story in the newspaper and then approached the police, is not believable. I am afraid I am not impressed. This witness was able to render a vivid narration of the way the incident occurred in the bus. Indeed, initially he did not identify the accused Khurshid Alam @ Saleem @ Mintu and rather stated that the fourth person was accused Mohd. Wahid @ Munna but while recording his examination in chief, when he was testifying about his participation in Test Identification Parade (TIP) of accused Charanjit @ Dabbu, he changed his mind and pointed out that the fourth person was Khurshid Alam @ Saleem @ Mintu and not the one earlier pointed out i.e Mohd. Wahid @ Munna. PW-1 Ayodhya Prasad was examined almost after 2 years of the incident on 20.11.2004 and it could be very well imagined that probably he suffered from a little lapse of memory. I do not see how PW-1 can be said to be a planted witness. There is nothing in his cross examination that he was an informer for the Police and that he ever appeared in any other case as stock witness for the Police. He rather testified that he was under fear not to report the matter to the Police earlier but his conscious did not allow him to keep mum.
43. I would be failing in my duty if I do not mention that PW-6 Mehfooz conductor on the bus in his evidence failed to identify the present accused as one of the offenders who boarded the bus. Again, the said witness was examined in the court on 16.07.2005, 01.12.2005 and 10.05.2007. Even if he failed to identify the accused due to considerable interval of time since the date of incident, the evidence of PW-2 Shishpal corroborated by PW-1 Ayodhya Prasad is most reliable and trustworthy.
1644. That apart, there are certain connecting evidence as well against the accused Khurshid Alam @ Saleem @ Mintu. As per the Police witnesses, he was arrested on 07.09.2009. It is in evidence of PW-54 SI Ravinder Prasad that accused was produced in a muffled face in the court for putting him for TIP before the then Learned Metropolitan Magistrate on 13.09.2002 in Tihar Jail and he refused to participate in the proceedings proved Ex. PW-46/B. Here PW-2 and PW-1 testified that 3-4 days after incident they were shown the accused by the police in the Police Station and evidence of PW-54 IO Rajinder Prasad is uncontroverted that accused was shown at Police Station while on PC remand on 15.09.2009 to the witnesses. Therefore, the arguments by Ld. Counsel for the accused that accused was shown to the witnesses in the Police Station prior to they being sent for TIP cannot be accepted. Further, plea by learned counsel for the accused as to how PW-2 knew that the offenders were pick pocketers when he did not know them previously is not of much substance as these things are intuitive and PW-2 employed in the bus for quite some time could sense that the way passengers moved what might be there intentions particularly these types of incidents occur in Delhi almost everyday.
45. There is further evidence against the accused Khurshid Alam @ Saleem @ Mintu that he subscribed three Hutch mobile connections; (Sim Card No.008589641 bearing mobile No. 9811429046 Ex. PW9/A supported by his election Identity Card Ex. PW9/D); (Sim Card No.008589633 bearing mobile No. 9811429043 Ex. PW9/B supported by his election Identity Card Ex. PW9/D); (Sim Card No.008589625 bearing Mobile No. 9811429042 Ex. PW9/C supported by his election Identity Card Ex. PW9/D). Accused Khurshid Alam @ Saleem @ Mintu in his disclosure of statement dated 14.09.2002 Ex. PW54/F disclosed that at the time of incident he was carrying Mobile No. 9811429043. Indeed the mobile set could not be recovered but at the cost of repetition the pre paid mobile connections with the particular Sim Card (as above) were subscribed by him which has not 17 been challenged in the cross examination. PW-2 Shispal without any challenge testified accused Khurshid Alam @ Saleem @ Mintu was using a mobile at the time of occurrence. Interestingly, the location of this mobile connection number as per call record Ex. PW-40/B proved on record shows that on 01.09.2002 during the relevant time its location was from Darya Ganj to Kashmere Gate and then Mori Gate from 7:32.04 to 8:43.41(hrs). Though, I discard the recovery of alleged knife vide third discloser statements dated 15.09.2002 Ex.PW-54/J, I find that the evidence discussed above beyond reasonable doubt nail the accused Khurshid Alam @ Saleem @ Mintu.
46. EVIDENCE AGAINST ACCUSED PAPPU SINGH @ BHAISWALA AND SATISH @ KISHAN @ GITPITIA:-
PW-2 Shispal categorically identified both the accused Pappu Singh @ Bhaiswala and Satish @ Kishan @ GitpitiaS, as the two persons who boarded the bus from Subzi Mandi Darya Ganj and went to the rear of the bus having an eye on the valuables of the passengers zeroing on the two passengers, one of whom was carrying a black colour bag. He testified without any challenge that these two accused persons along with a third one attempted to snatch the black colour bag from one of the passengers who resisted their attempts; that in the process four bundles of currency notes in the denomination of Rs.10/- had fallen which were picked up by them. His testimony was corroborated by PW-1 Ayodhya Prasad whom I have found to be a credible witness and whose evidence cannot be brushed aside. In fact, PW-6 Mehfooz also identified both the accused persons namely Pappu Singh @ Bhaiswala and Satish @ Kishan @ Gitpitia, as two out of four persons who boarded the bus and attempted to snatch a black colour bag from one of the passenger.
47. Nothing has come out in the cross examination of PW-1 Ayodhya Prasad and PW-2 Shispal and even PW-6 Mehfooz that they had any reason to implicate the accused persons falsely in this case. It is in the 18 evidence of PW-54 and other supporting police witnesses that both the accused were arrested on 07.09.2002 and they were produced for TIP before the concerned Learned Metropolitan Magistrate in a muffled face and they refused to participate in the same on 09.09.2002. TIP proceedings were proved Ex.PW-46/B and an adverse inference can be drawn against them that had they participated in their TIP, which was fixed without any delay, they could have run the risk of being identified by the witnesses. Nonetheless, PW-1 as well as PW-2 both testified without any challenge that later on they identified two accused persons when they were being produced in the Court on 21.09.2002.
48. In the said view of the matter, I find that prosecution has been able to prove the guilt of the accused Pappu Singh @ Bhaiswala and Satish @ Kishan @ Gitpitia, beyond reasonable doubt.
49. EVIDENCE AGAINST ACCUSED MOHD. YOUNUS @ YUSUF @ PEHALWAN.
PW-1 Ayodhya Prasad identified him as one of the four offenders who boarded the bus without any challenge. In fact, PW-2 Shispal also identified him as one of the accused but Ld. Counsel for the accused in his written statements has urged that PW-2 Shispal called him Dabbu and the witness stated that he was one of the passenger who was sitting in the TSR that was following the bus. As could be seen, much time had elapsed since the date of commission of offence. PW-2 Shispal was examined in the court on 26.02.2005 and produced for cross examination on 16.07.2005; PW-2 testified without any challenge that accused Mohd. Yunus@ Yusuf@ Pehalwan was also identified by him later in the court which is not challenged. PW-1 had no reason to implicate him falsely and PW-2 Shispal probably suffered from a bout of confusion as to the exact role played by the accused. All that comes out is that the accused Mohd. Yunus @ Yusuf @ Pehalwan was present at one time or the other time during the incident. That apart, it is in evidence that accused was arrested on 16.11.2002 and 19 immediately produced in muffled face before the court which fixed his TIP in Tihar Jail wherein on 21.11.2002 he refused to participate and the TIP proceedings were proved Ex. PW-46/E.
50. In the said view of the matter, I find that prosecution has been able to prove the guilty of the accused Mohd. Yunus @ Yusuf @ Pehalwan beyond any reasonable doubt as well.
51. EVIDENCE AGAINST ACCUSED CHARANJIT @ DABBU.
At the cost of repetition, the prosecution story is that accused Khurshid Alam @ Salim @ Mintu alongwith Pappu Singh @ Bhaiswala, Satish @ Srikishan @ Gitpitia and Mohd. Yunus @ Yusuf @ Pehalwan boarded the bus from Subzi Mandi, Darya Ganj. The role of accused Charanjit Singh @ Dabbu is described as leader of the gang, who was following the offending bus in a TSR No. DL-1RH-1275 which was being driven by accused Raj Kumar and the other passengers in the TSR was accused Mohd. Wahid. PW-2 Shishpal testified wihout challenge that four pick pocketers got down from the bus at Boulevard Road, Kashmere Gate and a TSR halted near the bus and the four accused persons took the TSR and sped away. He identified accused Charanjit Singh @ Dabbu as the passenger in the TSR and accused Raj Kumar as the driver of TSR. PW-1 Ayodhaya Parshad also identified accused Charanjit Singh @ Dabbu as the one who was sitting in the TSR. PW-6 Mehfooz, conductor of the bus in this regard testified without any challenge that the helper of the bus PW-2 Shishpal and other passengers were saying that four offenders had escaped in a TSR after getting down from the bus. Evidence of PW-6 Mehfooz is in the realm of res-gestae i.e. utterances of the passengers contemporaneous with the main event and also admissible in evidence.
52. Learned counsel for the accused persons in his written submissions has urged that there was no way that the witnesses could have seen a TSR had been following the bus or it stopped near the bus and it would be improbable to conceive that witnesses i.e. PW-1 Ayodhaya Prasad and PW-
202 Shish Pal could see the faces of the driver and the two other passengers in the TSR. To my mind, it is difficult but not humanly improbable. After all, the incident happened early morning in the first day of month of September when there was not much traffic on the road and the situation in which the witnesses found themselves it was but natural that they could see the accused persons getting down from the bus and could see further as to what they did thereafter.
53. Learned counsel for the accused persons in his written submissions urged that PW-2 infact identified accused Charanjit Singh @ Dabbu as the fourth person who boarded the bus to commit the act of pick pocketing. What I find is that the identification of accused Charanjit Singh @ Dabbu was positive and due to the time interval from the date of incident, the witness naturally confused his role. When there is positive identification of accused Charanjit Singh @ Dabbu that he was present at the place of occurrence and also the evidence that he intermingled and acted in concert with the remaining accused persons in making their escape successful, it is a relevant fact as per section 8 of Indian Evidence Act.
54. The evidence does not stop here. On arrest of accused Charanjit Singh @ Dabbu on 26.09.2002, accused Charanjit Singh @ Dabbu made a disclosure statement Ex. PW-29/B, which led to the recovery of TSR no. DL1RH-1275 used in the crime. It is in the evidence of PW-7 Raj Kumar that the said TSR was financed to accused Charanjit Singh @ Dabbu for a sum of Rs.90,000/- and the documents in this reard were proved as Ex. PW-7/A. There is no challenge that the TSR did not belong to him. Pursuant to his disclosure statement, the mobile phone Ex. P-2 used during the incident, was recovered by the police with charger Ex. P-3 vide seizure memo Ex. PW-19/B at the instance of accused Charanjit Singh @ Dabbu containing SIM No. 00008589641, mobile connection number 9811429046. Now interestingly, the call record of the said mobile Ex. PW-40//B, during the time incident occurred i.e. on 01.09.2002 reveals that mobile phone 9811429046 21 was constantly in touch with mobile no. 9811429043 which was in use of accused Khurshid Alam @ Salim @ Mintu. Thus the said evidence clearly implies that accused Charanjit Singh @ Dabbu had an active role to play in the entire robbery, particularly when the call record with IMEI number of the mobile phone reveals that its location was also at the time in question in the very same area.
55. As regards his identification, his TIP was fixed soon after his arrest in Tihar Jail on 04.10.2003. As per TIP proceedings Ex. PW-46/B, accused Charanjit Singh @ Dabbu participated in the proceedings. On his asking, plastic tape was put on certain distinguishable features i.e. a long mole on the neck and a long cut mark on the left side of the face. PW-1 Ayodhaya Prasad and PW-2 Shishpal were not able to identify him and it its only when the plastic tapes were removed from the distinguishable features that they positively identified him in the line up.
56. PW-1 and PW-2 were not challenged in regard to the said distinguishable features. Evidence of PW-1 that sketches of four accused persons were prepared in the Police Station on 03.09.2002 was not challenged. How else the witnesses would remember the face or two in the crowd of fifty passengers in the bus. I do not see that any fault could be found in the identification of the accused Charanjit Singh @ Dabbu in TIP and therefore the prosecution is able to bring home the case against him as well.
57. THAT BRINGS US TO ACCUSED RAJ KUMAR:
PW-2 Shishpal testified wihout any challenge that TSR stopped near the rear gate of the bus and he saw the accused Raj Kumar and identified him as driver of the TSR. PW-1 Ayodhaya Prasad also identified him as driver of the TSR in which the offenders manage to escape. Learned counsel for the accused in his written submissions pointed out that PW-6 Mehfooz gave a blow to the prosecution case since he stated that accused Raj Kumar was one of the four persons who had boarded the bus. In view of 22 the positive identification of accused Raj Kumar as the driver of the TSR, I do not think that the prosecution case suffers the set back due to evidence of PW-6 Mehfooz. Again human memory undergoes a change with time factor and probably PW-6 was confused about the role played by accused Raj Kumar and who played a crucial role in making good their escape from the spot. Further he also refused to participate in TIP proceedings Ex. PW- 46/D soon after his arrest on 08.10.2002, and he, therefore, incurs the disadvantage by way of an adverse inference that had he participated, he would have been identified by the witnesses. It goes without saying that PW-1 and PW-2 testified without any challenge that they later identified accused Raj Kumar when he was in the stairs in Tis Hazari Courts . There is nothing in the cross examination of PW-1 and 2 that they had any reason to falsely implicate accused Raj Kumar. Similarly, the same can also be said regarding the police investigation.
58. In the said view of the matter, I found that prosecution has been able to prove guilt against accused Raj Kumar beyond reasonable doubts.
59. EVIDENCE AGAINST ACCUSED MOHD. WAHID.
It may bear repetition that PW-1 identified him as the three persons who were the passenger in the TSR. PW-2 pointed out towards him as the passenger in the TSR who stopped near the rear gate of the bus except that he called him Mohd. Yunus. Mere fact that his name was not correctly pronounced does not dent the prosecution case. Learned counsel for the accused persons has harped on the fact that PW-6 Mehfooz identifed accused Mohd. Wahid as the one of the four persons who boarded the bus and committed the main crime, which is not the case of the prosecution. Indeed, yet PW-1 and 2 positively identified him as one who was sitting in the TSR that followed the bus and his presence at the spot show prior meeting of mind and concert with the remaining offenders/accused persons.
60. Once the evidence of PW-1 and 2 have been found to be having a ring of truth, I do not see why their evidence can be discarded as regards the 23 present accused Mohd. Wahid. Lastly, an adverse inference is also to be drawn against him for his refusal to participate in TIP on 30.11.2006 proved Ex. PW-6/F. Again there is nothing in the cross examination of the witness that witnesses had any ill will or motive to implicate him in this case. As in the case of other accused persons, there is no evidence on alibi that the accused persons were elsewhere at the time of commission of crime.
61. In the light of said observations, unfortunately for accused Mohd. Wahid, prosecution has been able to prove his guilt beyond reasonable doubt as well.
62. CASE LAW I would be failing in my duty if I do not refer the case law relied upon by the learned counsel for the accused persons. Reference has been made to State Vs Punjab Vs Hadayat Masih & Others, 1997 (1) CCC 97 SC (Punjab & Haryana) that "where there two material improvements in the evidence of PWs, the benefit goes to the accused"; Harkirat Singh Vs State of Punjab, 1997 (3) CCC 8 (SC), placing reliance upon the observation that "in case of material contradictions, the evidence of the eye witness can not be relied upon and the appellant is entitled to the benefit of doubt"; State of Rajasthan Vs Rajendra Singh, 1998 (3) CCC (SC) 93, wherein it was observed that "where the witness made improvement on vital points in issue regarding snatching of a gun, it creates serious doubt about truthfulness of the version."
63. Suffice to State that reliance is also placed on decision:- Ram Singh Vs The State of Haryana, 1998 (2) CCC (SC) 40; Jag narain Prasad Vs The State of Bihar, 1998 (2) (SC) 45; Narayana Gopal Krishna Hegde & Others Vs State of Karnataka, 1996 (3) CCC 26 (SC) and in State of Haryana Vs Chandvir & Others, 1996 (2) CCC 85 (SC) which reflects that "where the evidence of the witness is contradictory, discrepant, fabricated or an improvements on earlier version, the benefit should go to the accused persons". The only thing that I would say here is that the 24 proposition of law can not be read divorced from the context or the facts and the circumstances which were before the court in the cited case laws.
64. In the present case before us, there is nothing to doubt the presence of PW-2 and 6 at the place of occurrence who were the helper and conductor respectively in the bus. They had long enough time to see the faces of the culprits. The positive identification of the accused persons in the court carries weight. The witness had no motive to implicate the accused persons falsely in the present case. They were the most natural and independent witness. I do not find any material improvement by PW-1,2 and 6 in their statement before the court in comparison with their earlier version to the police.
65. CONCLUSION:-
To conclude, accused Khurshid Alam @ Salim @ Mintu, Pappu Singh @ Bhaiswala, Satish @ Srikishan @ Gitpitia and Mohd. Yunus @ Yusuf @ Pehalwan are held not guilty for the offence punishable under section 395 IPC but also held guilty for the offence punishable under section 304 part II of IPC. The act of robbery was committed in such circumstance that the said accused persons must be attributed with the knowledge that if the victim fell out of a moving bus, it would likely to cause death of such passenger. The entire act of robbery was being committed near the open rear door/gate of the bus and accused Khurshid Alam @ Salim @ Mintu was instrumental in the preventing the driver from stopping the bus. Accused Khurshid Alam @ Salim @ Mintu was having a knife like object in his hand and therefore, he is also held guilty for the offence punishable under section 397 IPC.
66. In other words, the evidence brought on the record clearly suggest that though the accused persons had no intention to cause death, they must be held to have a knowledge as per section 299 of IPC that the act that they were doing, was likely to cause death. Here Section 10 of Indian Evidence Act also comes into the play and the evidence suggests that four accused 25 persons in the bus were acting in concert or in other words they had conspired together to commit the offence and they they were willing to voluntarily cause hurt or injury to any one who would come in their way to commit the robbery.
67. At the same time, it would be doubtful if three accused persons who were in the TSR could be imputed with the knowledge that something was happening in bus which could cause the death of any human being. The point here is that three accused persons were in the TSR and could not be attributed with the knowledge that something would happen which would result in death of a human being. Therefore, the three accused persons who were in the TSR could not be held guilty for the offence punishable under section 304 part II IPC.
68. As regards the remaining accused persons namely Charanjit Singh @ Dabbu, Raj Kumar and Mohd. Wahid, who followed the bus, place stopped near the rear gate of bus and escaped from the place of occurrence shows that they were acting in concert and they are also held guilty for the offence punishable under section 395 IPC.
69. Accordingly, I hold accused Khurshid Alam @ Salim @ Mintu guilty for the offence punishable under section 397 IPC, since brandishing a knife while committing robbery would amount to use of a weapon not with standing that driver was not injured. Reference in this connection can be had to decision Vinod Kumar Vs State (Delhi), 2007, Crl. L. J. 2861; and this court also hold the accused guilty separately under section 395 read with section 302 part II IPC.
70. I hold accused Pappu Singh @ Bhaiswala, Satish @ Srikishan @ Gitpitia and accused Mohd. Yunus @ Yusuf @ Pehalwan guilty for the offence punishable under section 395 IPC and section 304 part II IPC.
71. Accused Charanjit Singh @ Dabbu, Raj Kumar and Mohd. Wahid are held guilty for the offence punishable under section 395 IPC. Lastly, as much time has elapsed since the passing of the externment order against 26 the accused Satish @ Srikishan @ Gitpitia, no point would be served passing sentence u/s 53/116 of the Delhi Police Act.
72. In the said view of the discussion, let the accused persons now be heard on the point of sentence.
ANNOUNCED IN OPEN COURT (DHARMESH SHARMA)
TODAY:ON 23rd MARCH, 2009 ASJ-II, NORTH DISTRICT:DELHI.
27
23.03.2009.
Present :- Sh. Maqsood Ahmed, learned APP for the State.
Accused all produced from JC.
Sh. Ashutosh Bhardwaj, learned counsel for the accused persons. Vide judgment announced of even date on separate sheets, accused Khurshid Alam @ Salim @ Mintu guilty for the offence punishable under section 397 IPC, and separately under section 395 read with section 302 part II IPC.
Accused Pappu Singh @ Bhaiswala, Satish @ Srikishan @ Gitpitia and accused Mohd. Yunus @ Yusuf @ Pehalwan held guilty for the offence punishable under section 395 IPC and section 304 part II IPC.
Accused Charanjit Singh @ Dabbu, Raj Kumar and Mohd. Wahid are held guilty for the offence punishable under section 395 IPC. Lastly, as much time has elapsed since the passing of the externment order against the accused Satish @ Srikishan @ Gitpitia, no point would be served passing sentence u/s 53/116 of the Delhi Police Act.
Now to come up for arguments on the point of sentence on 24.03.2009.
(DHARMESH SHARMA) ASJ-II, NORTH DISTRICT:DELHI.
28IN THE COURT OF SH. DHARMESH SHARMA, ASJ- II, NORTH, DELHI.
SESSIONS CASE NO: 01/2006 FIR No: 422/02 P.S. KASHMERE GATE.
U/S: 396/397/302 IPC & 53/116 D.P. ACT, 304 PART II/395 IPC.
STATE VERSUS KHURSHID ALAM @ SALEEM @ MINTU, & Ors.
ORDER ON SENTENCE 24.03.2009.
Present: Mr. Maqsood Ahmed, Addl. Public Prosecutor for the State.
All the convicts are produced from JC.
Mr. Ashotosh Bhardwaj Adv. for the accused / convicts I have heard Mr. Ashotosh Bhardwaj, Ld. Counsel for the accused / convicts and Mr. Maqsood Ahmed, learned Addl. Public Prosecutor for the State on the point of sentence. I have again perused the entire oral and documentary evidence on record. Pappu Singh @ Bhaiswala S/O Mohar Singh, On behalf of accused Pappur Singh @ Bhaiswala, it is urged that he is about 41 years of age; that his father has expired and mother is about 88 years of age and almost on death bed with 29 various ailments; that accused has a sister who is married and residing separately and his elder brother also expired recently; that accused is married having four children and his eldest son is aged about 17 years who studied up to 5th standard. It is stated that accused was an Auto Rickshaw Driver.
It is informed by the accused/ convict that he faced trial in two cases u/s 25/54/59 Arms Act in which he has since been acquitted. However, he has been convicted in another case of Police Station Anand Vihar u/s 186/353/307 IPC and his sentence period has already expired. It is urged that in case he is sentenced his entire family would be ruined.
Satish @ Srikishan @ Gitpitias S/O Mangu Ram, On behalf of accused Satish @ Srikishan @ Gitpitias it is urged that he is about 56 years of age, his father has expired and mother is about 87 years of age and residing with his family consisting of his wife, three daughters who are of marriageable age besides his five more sons. It is stated that he was an Auto Rickshaw driver. It is informed by the accused /convict that he is presently facing trial in another case u/s 399/402 IPC and there were 5-6 more cases in the category of theft, possession of knife etc. in which he has already been acquitted.
Mohd. Yunus @ Yusuf @ Pehalwan
On behalf of accused Mohd. Yunus @ Yusuf @
Pehalwan it is urged that he is about 46 years of age having a large family consisting of his old parents, his wife and five children; that eldest of the children is a daughter who is of marriageable age. He 30 is presently facing trial in two cases u/s 399/402 IPC and u/s 25/54/59 Arms Act but it is also stated that he is not a previous convict.
Charanjit Singh @ Dabbu S/O Late Jagdish Chopra, On behalf of convict Charanjit Singh @ Dabbu S/O Late Jagdish Chopra, it is urged that he is about 39 years, of age his family consists of a widowed mother, three daughters aged about 17, 14 and 10 years respectively. It is informed that his wife has deserted him and there is no one else to take care of his family . It is stated that accused is facing trial in a case u/s 399/402 and there were five more cases in which he faced trial under the NDPS Act, theft etc. in which he has already been acquitted. It is stated that earlier to this case, he was engaged in the business of ready made garments.
Mohd. Wahid @ Munna S/O Late Mohd. Hasim On behalf of convict Mohd. Wahid @ Munna, it is urged that he is brother of the other convict Mohd. Yunus @ Yusuf. Mr. Bhardwaj, learned counsel for the accused/convict persons point outs that wife of the accused has deserted him and there are three children of the age 16, 14 and 10 years respectively. He is facing trial in another case u/s 399/402 and there is no other case pending against him. It is urged that lenient view be taken as he is not a previous convict.
Khurshid Alam @ Saleem @ Mintu S/o Anwar Khan, On behalf of accused Khurshid Alam @ Saleem @ Mintu S/o Anwar Khan, it is urged that he is about 29 years of age having 31 a large family consisting of his parents, wife and three children. It is informed that he is facing trial in three cases one u/s 399/402 IPC and two cases under Section 25/54/59 Arms Act where he already stands acquitted. It is however informed that there is one case u/s 395 IPC which is subjudice before the Ld. ASJ, Dwarka Courts, New Delhi. It is requested that a lenient view be taken as he was engaged in embroidery business and not a previous convict. Raj Kumar @ Raju S/O Late Moti Lal, On behalf of accused / convict Raj Kumar @ Raju S/O Late Moti Lal, it is urged that he has a daughter aged about 6 years and his wife has expired, (parents pre-deceased the death of his wife). It is urged that there is no one else to take care of his daughter. It is requested that a lenient view be taken as accused is not a previous convict. It is, however, informed that accused is facing trial in another case u/s 395 IPC before the Ld. ASJ, Dwarka Courts, New Delhi.
Their lordships of the Apex Court in a case titled Union of India v. Kuldeep Singh, 2004 Cr. L. J 836, 2004 (2) SCC 590, discussed the guidelines in awarding sentence and it was observed that "deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be" and in considering appropriate sentence, not only the rights of the criminal are important but also the rights of the victim of the crime and society at large. Regard must be had to nature and gravity of crime and undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the 32 efficacy of law.
In my detailed judgment dated 23.03.2009, I have elaborately discussed the facts and circumstances in which the accused / convict persons committed the crime. This court has to adopt a sentencing policy keeping in mind not only the corrective machinery but also the deterrence factor based on the factual matrix. Keeping in view the arguments advanced on the point of sentence while there is no doubt that accused / convict persons are family men having certain social obligations and certain natural urges, at the same time it must be seen that the two unfortunate passengers Sachin Shinde and Abhir Shinde died due to acts directly attributable to accused Khurshid Alam @ Saleem @ Mintu S/o Anwar Khan; Satish @ Srikishan @ Gitpitias S/O Mangu Ram; Pappu Singh @ Bhaiswala S/O Mohar Singh; and Mohd. Yunus @ Yusuf @ Pehalwan S/O Mohd. Hasim. The victims were also family men. We can very well imagine the pain, anguish and sufferings of the family of the deceased persons.
The facts and circumstance brought on the record by the prosecution establish that the four accused persons inside the bus indulged in a daring act of robbery, while accused Khurshid Alam @ Saleem @ Mintu was prepared to cause any harm to the driver in case the bus was stopped, the other three accused namely Pappu Singh @ Bhaiswala; Satish @ Srikishan @ Gitpitias and Mohd. Yunus @ Yusuf @ Pehalwan did not pay heed to the passengers in the bus who were in shock, fear and some also protesting. It is manifest that they were hell bent on snatching the bag from the two 33 deceased passengers at any cost fully knowing that it was highly dangerous to do so near the rear door of the bus. To sum up, the accused persons showed scant regard for human values, safety and security of others and had no fear of the law in their mind at the time of commission of the crime.
The only consolation for the accused / convict persons is that they are in judicial custody for about 6 years since their arrest. This court can take judicial cognizance of a public outcry against acts of pickpocketing, chain snatching happening almost on daily basis in different parts of National Capital Territory of Delhi. Many are not even reported to the police and when reported, the police looks the other way for variety of reasons such as lack of infrastructure, strenuous deployment in law and order besides lack of compassion and will. Be that as it may, the punishment must be such which causes deterrent effect and serves the interest of the society at large.
SENTENCE In the said view of the matter, I sentence the accused Khurshid Alam @ Saleem @ Mintu to undergo rigorous imprisonment for a period of ten years and also imposed fine of Rs.25,000/- u/s 397 of IPC in default of payment thereof to undergo imprisonment for further period of six months.
Accused Khurshid Alam @ Saleem @ Mintu is further sentenced to undergo rigorous imprisonment for a period of 10 years and also imposed with fine of Rs.25,000/- u/s 395 IPC in default of payment thereof to undergo imprisonment for further 34 period of six months.
Accused Khurshid Alam @ Saleem @ Mintu is further sentenced to undergo rigorous imprisonment for a period of 10 years and also imposed with fine of Rs.50,000/- under section 304 Part -II IPC in default of payment thereof to undergo imprisonment for further period of one year. All the sentences shall run concurrently and the convict shall be given the benefit u/s 428 Cr.P.C.
Accused Satish @ Srikishan @ Gitpitias is awarded sentence to undergo rigorous imprisonment for a period of ten years and also imposed with fine of Rs.25,000/- u/s 395 of IPC in default of payment thereof to undergo imprisonment for further period of six months.
Accused Satish @ Srikishan @ Gitpitias is also awarded sentence to undergo rigorous imprisonment for a period of 10 years and also imposed with fine of Rs.50,000/- under section 304 Part -II IPC in default of payment thereof to undergo imprisonment for further period of one year. Both the sentences shall run concurrently and the convict shall be entitled to benefit of 428 Cr.P.C.
Accused Pappu Singh @ Bhaiswala is awarded sentence to undergo rigorous imprisonment for a period of ten years and also imposed with fine of Rs.25,000/- u/s 395 of IPC in default of payment thereof to undergo imprisonment for further period of six months.
35Accused Pappu Singh @ Bhaiswala is also awarded sentence to undergo rigorous imprisonment for a period of 10 years and also imposed with fine of Rs.50,000/- under section 304 Part -II IPC in default of payment thereof to undergo imprisonment for further period of one year. Both the sentences shall run concurrently and the convict shall be entitled to benefit of 428 Cr.P.C.
Accused Mohd. Yunus @ Yusuf @ Pehalwan is awarded sentence to undergo rigorous imprisonment for a period of ten years and also imposed with fine of Rs.25,000/- u/s 395 of IPC in default of payment thereof to undergo imprisonment for further period of six months.
Accused Mohd. Yunus @ Yusuf @ Pehalwan is also awarded sentence to undergo rigorous imprisonment for a period of 10 years and also imposed with fine of Rs.50,000/- under section 304 Part -II IPC in default of payment thereof to undergo imprisonment for further period of one year. Both the sentences shall run concurrently and the convict shall be entitled to benefit of 428 Cr.P.C.
Accused Charanjit Singh @ Dabbu S/O Late Jagdish Chopra; is awarded sentence to undergo rigorous imprisonment for a period of ten years and also imposed with fine of Rs.25,000/- u/s 395 of IPC in default of payment thereof to undergo imprisonment for further period of six months. The convict shall be entitle to benefit of section 428 Cr.P.C.
Accused Raj Kumar @ Raju s/o Late Moti Lal is awarded 36 sentence to undergo rigorous imprisonment for a period of ten years and also imposed with fine of Rs.25,000/- u/s 395 of IPC in default of payment thereof to undergo imprisonment for further period of six months. The convict shall be entitled to benefit of section 428 Cr.P.C.
Accused Mohd. Wahid @ Munna s/o Late Mohd. Hasim is awarded sentence to undergo rigorous imprisonment for a period of ten years u/s 395 of IPC and also imposed with fine of Rs.25,000/- in default of payment thereof to undergo imprisonment for further period of six months. The convict shall be entitle to benefit of section 428 Cr.P.C.
All the convicts persons have been supplied copies of the judgment dated 23.03.2009 as well as the order on sentence passed today i.e 24.03.2009 free of costs. They have also been apprised that they shall be at liberty to file an Appeal against this judgment and sentence before the High Court of Delhi. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
ANNOUNCED IN OPEN COURT (DHARMESH SHARMA)
TODAY ON: 24.03.2009 ASJ-II, NORTH DISTRICT,
DELHI.