Delhi District Court
State vs Akram Etc. on 19 January, 2007
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IN THE COURT OF SH. RAJENDER KUMAR SHASTRI
ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS:
DELHI.
S. C. no.85/06
FIR No.153/00
U/s 302/34 IPC
PS Preet Vihar
State Vs Akram etc.
Pr:-Sh. Zenul Abedeen, APP for State.
All accused persons in J/C.
Sh. B.K. Sharma advocate for accused Mohd. Izhar.
Sh. Sanjeev Goel amicus currie for accused Gurdeep.
Sh. A.K. Choudhary advocate for accused Moin
Ahmed.
Sh. S.K. Ahluwalia advocate for accused Rishi.
Sh. R.K. Jain advocate for accused Akram.
JUDGMENT
1. On 19.4.00 an information was received in police station Preet Vihar about a dacoity in House no. 24, Gujarat Vihar, Delhi. It was recorded as DD 21A (Ex.Pw16/A). Investigation was marked to SI Ashwani Kumar, who reached at spot along with constable Mehtab. Complainant Smt. Manju (Pw 17) gave statement mark 'A' mentioning that AC's installed in her house had developed some glitch. She called Mohd Izhar @ Abbas @ Raj a resident of Ramesh Park and a friend of children of her sister in law namely Deepa. Accused Mohd Izhar attended the complaint on 14.4.00 accompanied by four of his associates. On next day, all of them came again to repair another AC. They painted IInd AC, and changed its condenser. As the paint was wet, they left the house 2 to come again. On 19.4.00, at about 4.00 pm all of said persons came at her house and started repairing A.C. Her daughter Sonia went out of house at about 7.30 pm. Complainant remained at home along with her son Amik, hereinafter referred as deceased. After about 10-15 minutes, one Sapan (Pw5) came there who used to teach her son. She left for kitchen to prepare tea for the tutor after asking the deceased to check whether AC was functioning well than. Amik went to bed room with those mechanicians to check the functioning of AC repaired by them. Those persons shut the doors of room. Her daughter Sonia returned to house. All the strangers fled away one by one. In between, her husband came there, who saw those strangers entered in their house. On being inquired by her husband, she disclosed that the strangers were mechanicians having come to repair their AC. On being asked accused Mohd Izhar @ Abbas replied that AC had been repaired. When her husband entered inside the bed room, he found Amik imbrued in blood having suffered injury by some sharp edged weapon on his neck. The mattresses as well as bed sheet and pillows of the bed were also blood stained.
2. On being endorsed by IO, FIR no. 153/00 was registered in this case, on the basis of aforementioned statement of complainant. During investigation, all the accused persons were arrested on the identification of husband of complainant (Pw8). Blood stained cloths were seized. IO also got postmortem on the dead body of deceased conducted from SDN Hospital. No weapon of offence was recovered. After investigation, all the 3 accused persons were indicted for offence punishable U/s 302/34 IPC. All of them were charged by this court on 28.11.00 for the same offence for which they pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined 29 witnesses in all. The accused persons in their statements recorded U/s 313 Cr PC when incriminating material was put to them claimed the same as incorrect. Accused examined one Nisar Ahmed as Dw1, Vakil Ahmed as Dw2, Julfikar as Dw3, Narender Singh as Dw4 and one Munir Ahmed as Dw5 in their defence.
4. I heard Ld APP as well as Ld defence counsels at length.
5. The complainant who was examined as Pw17 reiterated version of her statement mark A and described the incident again in following words:-
On 14.4.00 I used to reside at 29, 3rd Floor Gujarat Vihar with my family. I had phone (phoned) my sister in law Deepa r/o Laxmi Nagar for an electrician, who know her, for repairs of / service of AC. On 14.4.00 at about 3-4 pm Raj came to my house with four associates.................. At that time I along with my son Amik was present in the house. On that day after servicing the AC they had left. The persons who had come to repair the AC had told me that they would come to next day for servicing another AC..............Those five persons had come to my house on 18.4.00 for servicing the AC between 3-4 Pm. On that day.......................Those persons after opening the AC told me that its condenser had gone out of order. They took Rs.500/- from me and had gone to the market to purchase a new condenser. They came back along with condenser and paint and started to paint the AC. At 7-8 pm they told that paint is wet and they would come on next day to do the work....................On 19.4.00 at about 3-4 pm those very persons 4 had come to my house to service the AC.
At that time my son Amik and my daughter Sonia were present in the house.................At about 7.00 pm my daughter Sonia left the house to go to her friend's place. Sapanji tutor of my son, had come to our house at about 7.30-7.45 pm for meeting him. I, my son Amik and his tutor Sapanji sat in one room and had started talking with each other. Those persons who were repairing the AC called us to see the cooling of the AC. I asked my son Amik to see if the cooling of repaired AC is alright and I went to at about 8-8.15 pm to make tea for Sapanji. My son Amik had gone to check the cooling of repaired AC. I saw that the door of the room were locked in which my son Amik had gone to check the cooling of AC. At about 8.30 pm my daughter Sonia came back to our house and she asked for Amik and I told her that he had gone in the room to check the cooling of the repaired AC. At 8.40 pm my husband came and on his asking I told him that Amik is in the room...................I saw those five persons (who had come to repair the AC) came out of the room (which was locked) one by one and they had left our house. I had asked Raj, who was getting down from the stairs, if the AC had been repaired and he answered in the affirmative............. I called for my son Amik but there was no response and thereafter, my husband pushed open the doors of the room in which Amik had gone and I followed him........... I saw that all the articles in the said room were lying scattered and blood was also there on the mattresses as well as on the floor............ I saw dead body of Amik was lying in the store and there were injuries of sharp edged weapon of his person.
6. Daughter of complainant (Pw9) and tutor of deceased Sapan Babu (Pw5) tautologized the story as told by Pw17. Jharna (Pw2) deposed about sending accused Izhar in the house of complainant in April 2000 for repair of AC. This witness is stated 5 to be daughter of Deepa who is sister in law of complainant. Pw2 identified accused Izhar present in court as the person who was sent by her to the house of complainant.
7. Pradeep Kumar (Pw8) verified that on 19.4.00 at about 8.40 pm he came to his house. He inquired from his wife about their son Amit (Amik) who told that he was inside the house. When he entered inside room via drawing room, suddenly one person later on known as Moin Ahmed opened the door, on seeing said accused he inquired from his wife as who that person was. She disclosed that those persons had come to repair AC. Five persons came out of that room and bolted it from outside. They went down stairs with a speed. Before the accused went away his wife asked them as to whether AC has been repaired or not. When he opened the door and went inside along with his wife he saw that every article there was scattered and bed was also in disorderly manner. He called his son Amik but same was not visible. When he peeped inside other room he found dead body of his son Amit (Amik) inside the store room whose legs were placed on a suitcase. He also noticed that there was an injury on his neck caused by some sharp edged weapon. They came down stairs and knocked at the door of their neighbor Mr. Gupta. He told about the incident to Mr. Gupta and asked the latter to inform the police. Sh. Shyam Gupta (Pw24) also deposed on oath that he informed Police Control Room at no. 100 from his phone bearing no.2417957 about the incident when someone was heard by him calling 'Pakdo-Pakdo', there is a dacoity.
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8. HC Rekha (Pw26) who was posted in PCR on 19.4.00 disclosing about receipt of a telephone call from phone no. 2417957 at 21.05. She filled up a PCR form in this regard (Ex.Pw26/A). Ct. Mehtab Singh (Pw6) stated about an information received from PCR in the police station about a dacoity in Gujarat Vihar on 19.4.00 at about 09.15 pm.
9. Retired ACP Sushil Kumar (Pw29) who was posted as SHO at the time of incident in police station Preet Vihar deposed that on 19.4.00 at about 9.15 pm when he was patrolling in the area, he received a wireless message about dacoity at H. no. 29, Gujarat Vihar, Delhi. He reached at spot. SI Ashwani Kumar along with Ct. Mehtab had also reached there who recorded statement of complainant Smt Manju, on the basis of which FIR in this case was registered. This witness further verified preparation of site plan Ex.Pw29/A, lifting of exhibits from bed i.e three bed sheets, two pillows and two gaddas which were seized in a parcel after sealing it with the seal of 'SK'. Pw29 further stated about a screw driver found lying at spot which was also seized along with one emergency light make 'Sharp' and one box which was containing some liquid paint in it. This witness also disclosed about sending of two teams of police personnels one headed by SI S.K. Gaur and another by SI Ashwani Kumar to Meerut and Gesupura (UP) in search of accused.
10. SI Shashi Kant Gaur (Pw27) deposed on oath that on being asked by SHO he along with HC Mahavir (Pw15), Ct. Mahender and Ct. Manoj went to Meerut Chamrapath as well as 7 Hapur Road, Meerut in search of accused Mohd Izhar. But said accused could not be found and hence they returned to Delhi. It is again disclosed by this witness that when they were near Community Centre, Ramesh park, SI Ashwani Kumar along with Ct. Dushyant met them there. In between, a secret information was received that accused persons were coming to Delhi in a Maruti Car. He shared the information with SI Ashwani Kumar. A raiding party was formed. He requested 4-5 passer-by persons to join, but none of them agreed. They went at pointed place and took positions near post of toll tax. At about 8.05 pm, a maruti 800 car of light blue colour bearing registration no. DDB 2560 came from Ghaziabad side. They got it stopped. There were five passengers in that car i.e all of accused. Accused Munna was driving said car, accused Izhar was sitting beside him and other three accused were sitting in rear seat. All accused were arrested on being identified by Pradeep Kumar (Pw8). This witness also reminded about an altercation having taken place between accused persons and Pradeep Kumar etc and that he pacified erring parties. This witness again deposed about arrest memos, seizure of clothes of accused persons and also the disclosure statements given by accused persons and search of weapon of offence on the basis of such disclosure statements.
11. Ashok Kumar (Pw11) verified arrest of accused persons from ISBT Anand Vihar where he had gone on being called by his brother in law Pradeep Kumar (Pw8).
12. Ct. Bhopal Singh (Pw20) also deposed to have gone to 8 Hapur Pilkhawa along with IO and accused Izhar to get the knife i.e weapon of offence recovered. Similarly, Ct. Mukesh (Pw9) deposed about having gone to Indirapuram in search of weapon of offence i.e knife, as per disclosure of accused Mohd. Ahmad but no such knife could be recovered.
13. HC Chander Kumar (Pw22) who was posted as duty officer in police station Preet Vihar on 20.4.00 deposed about two pulandhas sealed by seal of 'KLS' and a sample seal having deposited in mall khana on that day by Ct. Vijender brought from Subzi Mandi mortuary.
14. Ct. Rajesh (Pw4) stated about lifting of chance prints Q-1 to Q-9 by him on 19.4.00. His report in this regard was Ex.Pw4/A. SI H.R Meena (Pw3) who was part of crime team visited at spot, deposed about taking of 11 photographs by him about scene of crime which were Ex. Pw3/1 to Pw3/11. It is explained by this witness that one of negatives was washed out and thus there remained 10 positive photographs Ex.Pw3/12 to Ex.Pw3/21.
15. SI Avdhesh Kumar, Finger Print Expert, (Pw18) deposed that on 30.6.00 he received specimen fingerprints of five accused for comparison with developed chance prints lifted from scene of crime. He compared said chance prints with specimen finger prints of accused persons. It is disclosed by this witness that he found that chance print mark Q-5 was identical with left middle finger, mark S1 on the finger impression slip of Mohd Izhar @ Abbas S/o Mohd. Nishad and chance print mark Q-8 and Q-9 were 9 identical with right index and right middle finger, mark S2 and S3 respectively on the finger impression slip of accused Gurdeep Singh @ Rinku. He prepared a draft report Ex.Pw18/A and forwarded the same to Director Fingerprint Bureau who prepared final report mark 'X' on the basis of draft report Ex.Pw18/A.
16. ASI Munshi Singh (Pw12) deposed about taking of sample from MHC(m) PS Preet Vihar on 07.6.00 and deposited the same in FSL Malviya Nagar intact. HC Rajinder Singh (Pw13) also verified about deposition of eight pullandas in mallkhana by SHO Inspector S.K. Bedi on 20.4.00 in this case, depositions of eight parcels by SI S.K. Gaur on the same day and two parcels by SI S.K. Gaur on 21.4.00. It is further stated by this witness that exhibits were sent to FSL Malviya Nagar on 7.6.00 with endorsement Ex.Pw13/C vide RC no. 24/21 through ASI Munshi Singh and also about receipt of result from FSL, Malviya Nagar on 30.10.00.
17. SI Mahesh Kumar (drafts man) (Pw14) stated about preparation of scaled site plan Ex.Pw14/A on 03.5.00.
18. Dr. K. Goyal (Pw1) conducted postmortem on the dead body of deceased Amik on 20.4.00. It is deposed by this witness that after general examination he found following injuries on the dead body:-
External Injuries
(i) Cut throat injury about 10 cm long running transversely at the level of apple of adam about 4 cm on the left side and 6 cm on the right side of the neck, tailing of the 10 wound was seen on the right side.
(ii) Incised wound over left front of neck about 1 cm below the cut throat injury and just left to the mid line of size 2.5cm x 1 cm and more or less spindle shape.
(iii) There was flap cut incised wound with shelved margins about 2.5 x 1 cm just above the right medical malleolus and muscle deep only.
Internal Examination Cut throat injury cut the subcutaneous tissues and muscles of the neck underline, apple of adam, nerves and vessels of right side, left external carotid artery and deep upto vertebral column with about 1 cm deep hacking of fourth cervical inter- vertebral disc with bruising. Blood and clots were present all over. Blood clots present intrachea.
19. In the opinion of Pw1 deceased Amik had died due to hemorrhage shock suffered due to injuries on neck vessels and asphyxia as a result of blood clots obstructing the airway consequent upon cut throat injuries.
20. Ranvir Gulati (Pw7) deposed to have identified dead body of deceased Amit @ Amik. Mohan Lal (Pw21) also stated to have witnessed Pradeep Kumar receiving dead body of Amit on 20.4.00. Inspector Ashok Kumar (Pw10) stated to have collected autopsy report and photographs which were deposited by him with MHC(m).
21. Apart from advancing oral arguments Sh. A.K. Choudhary advocate representing accused Moin Ahmad and Sh. Sanjeev Goel amicus currie representing accused Gurdeep Singh filed written arguments. I have gone through the same. It is 11 common plea of all of ld defence counsels that in a case based upon circumstantial evidence like case in hand it is necessary for the prosecution to prove motive on the part of accused persons to commit crime in question and same has not been established in this case.
22. Motive is "that which moves or induces a person to act in a certain way". True, it was held by the apex court in case Rajendra Kumar Vs State of Punjab AIR 1966 Criminal Law Journal 960 that phenomenon of motive is of utmost importance and relevant in a criminal trial to prove the guilt or otherwise of the accused as well as reliability or otherwise of a witness. There is no denial that prosecution has failed to prove as what was intention (criminal) of accused persons to commit crime in question. The apex court had clarified in a case titled as Bhagwan Swarup Vs State of Maharashtra 1965 (1) Criminal Law Journal 608 (615) that motive is not an ingredient of an offence. The proof of motive helps a court in coming to a correct conclusion when there is no direct evidence. Where there is a direct evidence for implicating accused in an offence, absence of proof of motive is not material. The Supreme Court again made it clear in a case titled as Nachhittar Singh Vs State of Punjab 1975 Criminal Law Journal 66 that the failure of the prosecution to establish the motive for the crime committed by the accused does not mean that the entire prosecution case be thrown over-board. It only casts a duty on the court to scrutinize the other evidence, particularly of the eye witnesses, with greater care. 12
23. Sh. B.K. Sharma advocate further assailed the case of prosecution mainly on following counts:-
(i) The information about offence was received in police station through DD 21A. A perusal of which shows that the information was given by a particular person which disclosed a cognizable offence and hence this information should have been treated as first information report (FIR) and if said information is treated as FIR, statement given by complainant Smt. Manju becomes inadmissible having been hit by section 162 Cr PC being a signed statement and due to that very reason, deposition of this witness in court also cannot be relied upon.
(ii) No TIP was conducted in this case. The accused persons are stated to have been identified by the complainant and other witnesses at the time of their arrest and also in police station which was not a proper identification in the eyes of law.
(iii) Special report i.e copy of FIR not delivered to MM concerned.
(iv) The police has manipulated the story and witnesses particularly Sapan (Pw5) and Jharna (Pw2) were not reliable witnesses.
24. (i) FIR is that information which is given first in point of time. It is not in dispute that information about offence in question was received in police station Preet Vihar from PCR where a telephonic information was received from telephone no.2417557. It was held by Gujarat High Court in case titled as Mehtabai Vs State of Maharashtra 1983 (1) Crimes 116 that any information given on 13 phone too in respect of a cognizable offence to a police officer-in- charge of a police station will be treated as FIR, provided the said information received through the phone is reduced into writing by the police-in-charge of the police station and signed by him. But the contentious question here is as to whether the information received in police station in this case can be regarded as FIR or not. Pw16 deposed to have recorded DD 21A (Ex.Pw16/A) which is reproduced here as under:-
Time is recorded as 9.15 pm. Lady Ct. Rekha no. 3697/PCR, has informed E-58 about a dacoity in H.no. 24,Gujarat Vihar. Telephone no. 2417557. Some officer be sent. Report is registered on the basis of information. Copy of report handed over to SI Ashwani Kumar who has just come to police station along with Ct.Mehtab no.2190/E. Same have proceeded to spot. SHO is being informed through wireless. It is clear that this report merely discloses about an information of some dacoity. There is scant disclosure about the offence, offenders or the victims. In such a way the information was very cryptic and vague and hence in my opinion same cannot be termed as an FIR. I find support in my view from a case titled as Tapinder Singh Vs State of Punjab, AIR 1970 SC 1566 where it was held by the apex court that a mere anonymous telephonic message at police station which is prima facie cryptic that firing had taken place at a Taxi stand does not constitute an FIR which did not in terms clearly a cognizable offence. Similarly, in one another case titled as Sakha Ram Vs State of Maharashtra, 1968 U.J.(S.C) 423 it was opined by same court that when there was a 14 telephonic message that some person was lying injured then it could not be treated as FIR.
Even otherwise, the statement of complainant Smt. Manju who was examined as Pw17 in court cannot be thrown away merely because same had signed her statement recorded by the police. It was mandated by Supreme Court of India in case State of UP Vs M K Anthony AIR 1985 SC 48 that though the witness making statement before police during investigation is not to sign such statement but it does not mean that if the witness, at the instance of investigating officer signs the statement, evidence given by him in court will be inadmissible. Needless to say that Pw17 had fully supported the case of prosecution.
(ii) True, it is not case of prosecution that any TIP was conducted in this case. The accused persons are stated to have been identified by father of deceased namely Pradeep Kumar (Pw8) at the time of their arrest near ISBT Anand Vihar. The other witnesses are also alleged to have identified the same in police station. Though it is deposed by Smt. Manju (Pw17) that she knew accused Mohd Izhar. No other accused is stated to be previously known to Pws, who were present in the house of complainant at the time of incident and are stated to have seen accused persons there. In the opinion of Ld defence counsel, in such a circumstance it was necessary for the prosecution to get accused persons identified by the witnesses in a proper TIP.
On the other hand, it is contended by Ld APP that the accused persons were well seen by PWs i.e complainant Smt. Manju, 15 Sonia and Pradeep Kumar in their house and hence there was no need for TIP.
As per Smt. Manju (Pw17), accused Raj @ Mohd. Izhar accompanied by four of his associates i.e all of other accused, came to their house on 14.4.00 for service of their ACs. Then all said five persons came again on 18.4.00. They checked one of their AC's, found its condenser out of order. They took Rs.500/- and went to the market and purchased a new condenser which was fitted by them in their AC. The AC was painted and accused persons went away to come again and they actually came on 19.4.00 and repaired 2nd AC. Apparently this fact is also verified from the statement of Sonia (Pw9), Pradeep Kumar (Pw8) and also from the statement of Sapan (Pw5), if this fact is presumed to be true, those persons would have taken hours to get such work of repair/ service of two AC's done. Needless to say that both of these ACs were installed in the bed rooms of aforesaid witnesses and at least Smt. Manju (Pw17) and Sonia (Pw9) were present at the time when accused persons are alleged to have repaired said ACs. In this way, said witnesses had enough time to recognize such persons by face and hence in my opinion not applying for TIP for identification of accused was not fatal for the case of prosecution.
(iii) Section 157 Cr PC requires an officer-in-charge of police station to send a copy of report (FIR) to the Magistrate empowered to take cognizance of offence before proceeding to investigate the case. It is submitted by Ld counsel that the copy of FIR which would have been delivered to the MM concerned has not been put on file 16 and hence prosecution has failed to prove that any such copy was ever delivered and in this way there were chances for the police to manipulate the case.
True, it was held by the apex court in case State of Rajasthan Vs Sh. Teja Singh and ors 2001 (1) JCC (SC) 147 referred by Sh. A.K. Choudhary advocate that copy of FIR should reach the magistrate concerned without any undue delay. Ct. Krishan Kumar (Pw28) deposed on oath that in the intervening night of 19th and 20th April 2000 at about 12.30-12.45 AM duty officer gave him envelopes containing FIRs of this case to be submitted to Additional C.P, DCP, Additional DCP, ACP and MM concerned and he delivered the envelopes containing FIRs to said officers at their residences. He returned to police station after delivery of copies of FIRs at about 5.00-5.15 AM. Retired HC Ramesh Chand (Pw16) deposed on oath that on 19.4.00 he was posted as duty officer in police station Preet Vihar. At about 11.55 PM he received a ruqqa sent by SI Ashwani Kumar on the basis of which he registered FIR 153/00 (Ex.Pw16/B) in this case. When FIR in this case was registered after 11.45 PM and as per Pw28 he left police station at about 12.30-12.45 AM to deliver the copy of FIR to officers concerned including the Magistrate. I find no delay in the delivery of copy of FIR. So far as the contention of Ld counsel that the prosecution has not put on file the copy of FIR which would have been received by Ld MM, Delhi and that even residence of Ld MM has not been disclosed by Ct. Krishan Kumar (Pw 28) in his cross examination where same would have dropped the copy is concerned, as stated by Pw 28, he had delivered the copy 17 of FIR at the residence of Ld MM. No doubt, such copy should have been put on file by the prosecution, even if such copy is not produced on record having been delivered at the residence of the Magistrate and not in the court. I see no reason to disbelieve Pw 28 who deposed on oath that he had already delivered such a copy. During his cross examination Pw 28 had not disclosed as how he had delivered the copy at the residence of Ld MM, is also not ground to disbelieve this witness. No need to mention here that in cross examination, a witness is supposed to reply the questions asked by the Ld defence counsel. If Ld defence counsel had not asked any question from said witness as where Ld MM was residing, it could not be expected from said witness to disclose the residence of Ld MM as same had disclosed about the residence of other officers i.e Additional C.P, DCP etc.
(iv) It is contended by Ld counsel that story of the prosecution is not digestable. In the opinion of Ld counsel, even as per case of prosecution, the complainant had called a mechanician who had no training or experience of electric instruments like AC and for the repair of which a person should have been properly trained. Ld counsel referred Jharna (Pw2) who admitted in her cross examination that she used to inform each of her complaints to accused Mohd Izhar whenever he used to pass through her beauty parlour situated in the market. She did not specifically call him from his shop or any other place for repair of her steamer etc. As per Ld counsel, none of accused was an electrician by profession. Pw2 had admitted in her cross 18 examination that there was no AC in her parlour or at her house. Neither accused nor his wife used to come her at her parlour and she had no friendship with accused Izhar. If all this was true, ld counsel claimed that it was not believable that a person with whom Pw2 had not relation, was sent for the repair of AC by the same in the house of her relative i.e complainant.
Pradeep Kumar (Pw8) as well as Smt. Manju (Pw17) deposed to have contacted their neighbor Mr. Gupta to inform the police about incident. In the same way, Sonia (Pw9) disclosed that after incident she informed her friend Danish about the same who was residing in a near-by house and she tried to contact police on phone from there. It is submitted by Ld counsel that there was no reason for these witnesses to contact their neighbor or friend to inform the police. They could report the matter from their own house through phone.
I do not find much substance in these submissions of ld counsel. Hardly any customer in India inquires about the qualifications of a mechanician before handing over such a task to the same. It is not unusual that a laity in our country asks from his near and dear about mechanician at the time of his need and hence there was no surprise that complainant or her husband had also asked their relative Deepa or her daughter Jharna to send such a mechanician. There is nothing on record to show that the complainant had a telephone in their house. Even otherwise, when the parents i.e Pw Pradeep Kumar (Pw8), Smt. Manju (Pw17) or sister Sonia (Pw9) found their son / brother having been 19 murdered, it is not unreasonable that such persons would have been horrified or perplexed and had gone out of house to seek help from their neighbour or friend.
It is also the submission of ld counsel that disclosure statements recorded in the name of accused were manipulated and actually no such disclosure was made by any of accused. Even as per case of prosecution nothing was recovered on the basis of such disclosure statements and hence same have no value in the eyes of law.
25. Sh. B.K. Sharma advocate tried to propound that it was a love affair between Sapan Babu (Pw5) and Sonia (Pw9). The former was teaching the latter and this fact is disclosed by Jharna (Pw2) who was a relative of complainant. As per Ld counsel, said Sapan Babu and Sonia were in a compromising position and deceased would have entered in that bed room. Having caught red handed, Sapan would have murdered deceased Amik, fearing for exposure.
26. There is not an iota of evidence to establish this fact and hence I find no weight in this submission of Ld counsel. Even if said Sapan was teaching Pw Sonia, it is not enough to presume that they had any love affair between them.
27. Ld counsel pointed out some contradictions / discrepancies cropped up in the statements of witnesses which are not material and I think such minor discrepancies are natural particularly when the witnesses are examined years after the incident.
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28. From the statements of witnesses as discussed above, in my opinion there remains no doubt in coming to conclusion that it were accused persons who came at the house of complainant in the name of repairing AC on 14th, 18th and 19th April, 2000, Amik went inside the room where the same were repairing AC . All the accused persons fled away from that room one by one hurriedly and immediately thereafter, when the complainant and her husband went inside that room. They found their son Amik having been killed. As per Dr. K. Goyal (Pw1) the cause of death of Amik was hemorrhage shock due to injuries to neck vessels and asphyxia as a result of blood clots obstructing airway consequent upon cut throat injuries. It is apparent that it was not a natural but homicidal death and as stated above, SI Avdhesh Kumar, Finger Print Expert, (Pw18) found chance print mark Q5 identical with left middle finger mark S1 on the finger impression slip of Mohd Izhar and chance print mark Q8 and Q9 identical with right index and right middle finger mark S2 and S3 on the finger impression slip of accused Gurdeep Singh. In such a circumstance, it can well be presumed that it were accused persons who had murdered Amik. All of accused persons are hence convicted for offence punishable U/s 302/34 IPC.
Announced in the open court today i.e 19.01.07. (Rajender Kumar Shastri) Additional Sessions Judge, Karkardooma courts, Delhi 21 IN THE COURT OF SH. RAJENDER KUMAR SHASTRI ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS:
DELHI.
S. C. no.85/06 FIR No.153/00 U/s 302/34 IPC PS Preet Vihar State Vs Akram etc. Pr:-All convicts in J/C. Sh. Zenul Abedeen, APP for State.
Sh. B.K. Sharma advocate for convict Izhar. Sh. Sanjeev Goel amicus currie for convict Gurdeep. Sh. A.K. Choudhary advocate for convict Moin Ahmed.
Sh. R.K. Jain advocate for convict Akram. ORDER
1. All of the convicts mentioned above have been found guilty of committing murder of one Amik with their common intention and have been convicted for offence punishable U/s 302/34 IPC vide judgment of this court dated 19.1.07.
2. Heard on point of sentence.
3. It is submitted by Sh. R.K. Jain advocate that accused Mohd Akram is a young boy who was 18 years of age at the time of incident. He is still unmarried and not a previous convict. Sh.
A.K. Choudhary advocate urged a leniency for his client Moin Ahmed stating that same is only bread earner of his family 22 consisting of two minor children and a wife. He has also responsibility to look after his old and ailing parents. Wife of same is suffering with mental disorder. Accused Izhar also submitted that he is unmarried and is not a previous convict. At the same time, Sh. Sanjeev Goel representing accused Gurdeep Singh requested that his client was never convicted in any case, except case in hands, same is a young and unmarried boy. Citing all these reasons, ld counsels requested for a leniency.
4. Section 302 IPC prescribes that who ever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine.
5. It has been well propounded by a catena of authorities of the apex court that life imprisonment for an offence of murder is a general rule while death sentence an exception. Though there is no bar in awarding death sentence also but same can be imposed in a 'rarest of rare case'. This position is also reminded by My-lord justice ManMohan Sarin and justice Rekha Sharma of our own High Court in case titled as State Vs Atbir & Ors. 2006 1 AD (Delhi) 665 as:-
for the offence of murder, life sentence is the normal rule with death sentence an exception, to be imposed in rarest of rare cases. There is no strait-jacket formula to identify rarest of rare case. Same is to be determined keeping in view facts and circumstances of each case.
6. The Supreme Court of India has already given guidelines 23 in case Bachan Singh Vs State of Punjab AIR 1980 SC 898 as well as in case Machi Singh Vs State of Punjab (1983) 4 SCC 470 as how it is to be ascertained that a case falls in the category of rarest of rare'. Their Lordships have also described in detail the aggravating as well as mitigating circumstances to categorize the case.
7. I have gone through aforesaid authorities, shorn of unnecessary details, I find that there are mitigating circumstances more than aggravating and hence in my opinion, this is not a rarest of rare case.
8. Keeping in view facts of the case and circumstances of the convicts well told by Ld counsels representing them, I sentence all of convicts with imprisonment for life and fine Rs.10,000/- each. In default of payment of fine all of them are directed to undergo one year's rigorous imprisonment more. They will be entitled to get the period of detention already undergone by them during investigation, inquiry or trial of this case set of in view of section 428 Cr PC.
9. A copy of this order as well as of judgment be given to each of convicts free of costs.
Announced in the open court today (Rajender Kumar Shasri) i.e on 20th day of January, 2007. Additional Sessions Judge, Karkardooma Courts, Delhi