Delhi District Court
State vs . 1. Mohd. Imran S/O. Mohd. Imtiyaz R/O. ... on 13 September, 2011
IN THE COURT OF SANJAY GARG: ADDITIONAL
SESSIONS JUDGE; (EAST) FTC : E-COURT :
KARKARDOOMA COURT: DELHI.
SC No. 144/10
FIR No. 131/10
PS Pandav Nagar
U/s. 394/397/302/34 IPC
Instituted on 11/10/10
Argued on 27/08/11
Decided on 07/09/11
State Vs. 1. Mohd. Imran S/o. Mohd. Imtiyaz R/o. E-20/
B-74, Jawahar Mohalla, Shashi Garden, Delhi.
2. Mukesh @ Karka S/o. Sh. Rajender
Thakur,R/o. EB-321, Jawahar Mohalla, Shashi
Garden, Delhi.
3. Akram S/o.Sh. Abdul Qayyum R/o. EB-274,
Jawahar Mohalla, Shashi Garden, Delhi.
JUDGMENT
1. In brief, the case of the prosecution is that on 18.04.10 at 11.15 AM DD No. 13A was lodged in PS Pandav Nagar regarding murder of a boy at Sanjay Jheel Mayur Vihar. PW15 SI Krishan Pal along with Ct. Murad Khan reached at the spot, there he found dead body of a boy aged about 16-17 years and his name was revealed as Dhiraj S/o. Sh Ram Nandan. A girl named Sapna (PW6) claiming to be an eyewitness to the incident was present at the spot.
FIR No. 131/10 1 page of 26Additional SHO Inspector B.R. Meena (PW23) also reached there and he started investigation of this case.
2. IO PW23 called crime team at the spot, which inspected the spot and took photographs. IO recorded statements of PW6, prepared rukka and through Ct. Bahadur Singh (PW18) got FIR registered in the PS. IO picked two samples of blood soaked earth and two earth controls from the spot. A P-cap was also seized from the spot. Dead body was sent to LBS Mortuary through PW15. IO prepared site plan and searched for an eyewitness in the park but could not find any one. IO with lady Ct. Krishna took PW6 to her house. There clothes worn by PW6 were taken into possession.
3. Complainant PW6 mentioned in her complaint that she is studying in ninth class at Sarvodya Kanya Vidalaya. On 18.04.2010 at 10 AM while she was going to her friend's house, on the way Dhiraj who is her brother in relation, studying in 10th class and lives in her neighbourhood met her. She demanded guide of 9th class from him, Dhiraj asked her to come at Sanjay Jheel Park for stroll. In Sanjay Park they sat on a bench. Three boys came there and asked Dhiraj about time. Dhiraj told them time i.e.11 AM. Those boys asked Dhiraj to hand over mobile phone and money which he has. Dhiraj told them that he has no money. One boy out of them took out a knife and stabbed Dhiraj on his chest and other boy caught hold Dhiraj. Boys took away mobile phone, Rs.60/-70/- and school ATM card from the pocket of Dhiraj and ran away. She called boys playing cricket nearby.
4. IO obtained mobile number of deceased from his FIR No. 131/10 2 page of 26 father and put it on surveillance. On 19.04.10 IO conducted inquest proceedings and got dead body post-mortemed. On analysing the call detail record of mobile phone of deceased, No. 9958103551 was found being used on the mobile phone of deceased and it was found activated on the name of one Gulshan Bano R/o. Jhuggi Jawahar Mohalla, Shashi Garden. IO reached Shashi Garden and from secret informer he came to know that this murder has been committed by son of Gulshan Bano. On inquiry Gulshan Bano pointed out towards his son Imran stating that he was using this SIM. Accused Imran was apprehended and during interrogation he made disclosure statement admitting his involvement in this case. Accused Imran got recovered a mobile phone of Nokia kept at Fridge in his jhuggi and same was taken into possession. At the instance of accused Imran, one bloodstained T-shirt which he was wearing at the time of incident was recovered from jhuggi. Accused led the police party to EB-321, Jawahar Mohalla, Shashi Garden and pointed out towards accused Mukesh. Accused Mukesh was apprehended and during interrogation he made disclosure statement admitting his involvement in this case. Accused Mukesh got recovered a knife i.e. weapon of offence from his jhuggi and same was seized. He also got recovered a white coloured blood stained T-shirt which he was wearing at the time of this incident and same was seized by the police.
5. At the instance of accused Imran and Mukesh, accused Akram was arrested from his street. He also made disclosure statement admitting his involvement in this case. He got recovered a shirt having bloodstains which he was FIR No. 131/10 3 page of 26 wearing at the time of incident and the same was seized. On 21.04.2010 all the accused refused to participate in judicial TIP. During investigation, statement of PW6 was recorded under Section 161 Cr.P.C. Exhibits were sent to FSL and thereafter reports were collected from FSL. After investigation police filed chargesheet against all the three accused for the commission of offences punishable under Sections 394/397/302/34 IPC.
6. Charge under Section 394 IPC read with section 397/34 IPC and 302/34 IPC was given to all the accused persons on 08.09.2010, to which they pleaded not guilty and claimed trial. A separate charge under section 411 IPC was given to accused Mohd. Imran on 08.09.2010 to which he pleaded not guilty and claimed trial.
7. To prove its case prosecution examined 23 witnesses. PW1 Ram Nandan Prasad is father of the deceased. He identified dead body of his son vide memo Ex. PW1/A. The dead body was handed over to him vide memo Ex.PW1/B. He proved his complaint Ex. PW1/C and Ex.PW1/ D. PW2 Neeraj Kumar is brother of the deceased. He proved identification memo Ex. PW2/A. PW3 Satish was playing cricket in Sanjay Jheel Park Mayur Vihar on the day of the incident. He made a call at 100 number from his mobile No. 9958405102. PW4 Arvind Kumar Principal of Sarvodya Vidayalaya proved certificate Ex. PW4/A issued by school to the deceased. PW5 Dr. Vinay Kumar Singh, Specialist Forensic Medicines proved post-mortem report Ex. PW5/A and his subsequent opinion on P/M report is Ex.PW5/B. PW6 Sapna is sole eyewitness to the incident. She proved FIR No. 131/10 4 page of 26 her complaint Ex.PW6/A, seizure memos Ex. PW6/B to Ex. PW6/E vide which bloodstains mud and earth control were taken into possession by the police. She also proved seizure memo Ex. PW6/F vide which cap worn by the deceased was taken into possession. She further proved seizure memo Ex. PW6/G vide which bloodstained clothes were seized. She admitted her signatures on her statement Ex. PW6/H recorded by Ld.M.M under Section 164 Cr.P.C. PW7 Vishal Gaurav, Nodal Officer, Bharti Airtel proved customer application form Ex. PW7/A and CDR of mobile No. 995810 3551 as Ex. PW7/ B. PW8 Sh. V.K. Gulia, Ld. MM proved statement of PW6 as Ex.PW6/H recorded by him under Section 164 Cr.P.C. PW9 Sh. Lalit Kumar, Ld. MM proved TIP proceedings of the accused as Ex. PW9/B to Ex. PW9/D. PW10 Pawan Kumar Singh,Nodal Officer proved customer application form Ex.PW10/A, CDRs Ex. PW10/B and Ex. PW10/C of mobile No. 9540646742.
8. PW11 SI Navin Kumar, Mobile Crime Team proved SOC report Ex.PW11/A. PW12 HC Sonu Kaushik, draughtsman proved scaled site plan Ex.PW12/A. PW13 Lady Ct. Deepu Yadav proved computerized form No. 1 of Delhi PCR dated 18.04.10 as Ex.PW13/A. PW14 Ravi, Store Manager proved invoice Ex. PW14/A of Nokia 2700C Black Colour phone. PW15 SI Krishan Pal is the first police official who reached at the spot. PW16 Ct. Mohd. M.M. Khan was dropped on the request of Ld. APP. PW17 Ct. Sunil accompanied IO on 29.04.10 when accused Imran was arrested. He proved disclosure statement Ex.PW17/A, seizure memo of mobile phone Ex.PW17/B, seizure memo of T-shirt FIR No. 131/10 5 page of 26 Ex.PW17/C, arrest memo Ex. PW17/D, personal search memo Ex.PW17/E and pointing memo of spot Ex. PW17/F. PW18 Ct. Bahadur Singh was called at the spot on 18.04.10 by IO. He proved arrest memo of accused Akram Ex.PW18/A, personal search memo Ex.PW18/PX1, disclosure statement Ex. PW18/PX2, pointing out memo Ex. PW18/PX3 and seizure memo of T-shirt Ex. PW18/PX4. PW19 HC Subhash Chand was duty officer on 18.04.10,he proved FIR Ex.PW19/ A and endorsement on rukka Ex.PW19/B. PW20 Ct Jagbir Singh, member of crime team proved photographs Ex. PW20/ A1 to A9 and negatives as Ex.PW20/B. PW21 Ct. Shiv Kumar joined investigation on 19.04.10. He proved arrest memo of accused Mukesh Ex.PW21/A, personal search Ex. PW21/B, disclosure statement Ex.PW21/C, sketch of knife Ex.PW21/D, seizure memo of pulanda containing knife Ex. PW21/E and seizure memo of T-shirt Ex. PW21/F. PW22 Ct. Arun took 11 exhibits from Malkhana to FSL Rohini on 26.05.10. PW23 is IO of this case. He proved rukka Ex. PW23/A, site plan Ex.PW23/B, form No. 25.35 Ex.PW23/C, application for post- mortem of dead body Ex. PW23/D, seizure memo Ex.PW23/ E vide which exhibits given to him by the doctor were taken into possession, seizure memo Ex.PW23/F vide which details of mobile phone given to him by Special Staff were seized and criminal record of Akram Ex.PW23/G and FSL report Ex. PX1 and PX2.
9. On the basis of incriminating evidence against the accused, their statements under Section 313 Cr.P.C were recorded wherein they denied all the prosecution evidence and took the defence of false implication in this case.
FIR No. 131/10 6 page of 2610. I have heard arguments of Ld. APP Sh. Mohd. Iqrar and Sh.V.S. Panwar,Ld. Defence counsel for accused Mukesh and Amicus Curiae for accused Mohd. Akram and Sh. Raksh Pal Singh Ld. Defence counsel for accused Mohd. Imran.
11. Ld. APP submitted that statement of sole eyewitness PW6 is consistent and trustworthy. It is stated that she has specifically stated that deceased Dhiraj was apprehended by accused Akram and Mohd. Imran and accused Mukesh stabbed him. It is stated that weapon of offence i.e knife was recovered at the instance of accused Mukesh and PW5 who conducted P/M report has specifically opined that injury No.1 & 2 could have been caused by this weapon. It is stated that two defence witnesses examined by accused Mukesh and Akram to support their plea of 'alibi' does not inspire confidence and they are planted witnesses.
12. Sh. V.S. Panwar, Ld. Defence counsel for accused Akram and Mukesh and Sh. Raksh Pal Singh,Ld. Defence counsel for accused Imran raised following contentions:-
i). The only eyewitness PW6 is a planted witness as she was not present at the spot. As per PW6 only one stab wound was caused but as per P/M report Ex.PW5/A, deceased suffered two stab wounds.
ii). Recoveries of bloodstained cloth at the instance of accused cannot be relied upon, as there are contradictions in the statement of recovery witnesses and even as per Serologist Report, there is no matching of blood group with the blood found on the clothes of accused and blood of the deceased.FIR No. 131/10 7 page of 26
iii). The father of the deceased has shown his suspicion on his neighborers Shankar Ram and his son Yogesh Sharma, even he had made complaint to the police in this context but police did no investigation against those suspects.
iv). The spot i.e Sanjay Lake remains busy at this part of the day but despite availability prosecution has failed to examine any public witness who may have witnessed of the incident.
v). Accused Imran had gone to the park to play cricket, he has found the phone of the deceased lying in the bush and from there he brought it to his house and started using it. If he would have been involved in this murder, he may not have used this phone.
vi). All the accused persons were illegally detained by the police after the murder, thereafter they were shown to PW6 and thereafter false story was concocted and accused were falsely implicated in this case.
vii). It was a blind murder, to solve it police falsely implicated the accused.
viii). Accused refused to participate in TIP as they were shown to the PW6 in the PS and their photographs were taken.
13. Sole eyewitness examined by prosecution is PW6 Sapna. She deposed that she is studying in ninth class at Sarvodya Kanya Vidalaya. On 18.04.010 it was Sunday at 10 AM, she was going to her friend's house (Dhiraj) who used to live in her street and she used to call him Bhaiya met her on the way. At that time, Dhiraj had gone to tenth class and she FIR No. 131/10 8 page of 26 had gone to ninth class. She had demanded books of ninth class from Dhiraj. Dhiraj asked her if she wants his book for ninth class, she told him that at present she wants books of Science only. They kept on walking while talking. Sanjay Jheel Park was there on the way. Dhiraj asked her to sit there for some time. They sat down on a stone in the park and thereafter they sat on the bench. She asked Dhiraj to go to house. Three boys came there from their behind and accused Imran asked Dhiraj about the time. Accused Mukesh and Akram came in front of them. All the three accused asked Dhiraj to stand up. Dhiraj and she both stood up. All the three accused asked Dhiraj to hand over whatever he has. Dhiraj told them that he does not have any thing. She also said that they do not have any thing. Accused Mukesh took out a knife and asked Dhiraj to hand over whatever he has, other wise he will kill him. She told accused to leave them as they are not having any thing. Accused Akram threatened her to go away from there otherwise she will be killed. She started leaving the spot, after taking few steps she again requested accused persons to leave them. Dhiraj also requested accused persons to leave him. Accused Imran and Akram caught hold Dhiraj and accused Mukesh stabbed Dhiraj on his chest. Dhiraj cried and after taking few steps fell down on the ground. All the accused took away money from the pocket of Dhiraj and also took away his mobile phone and ran away from the spot. She went near Dhiraj and asked him to get up and come to the house. Dhiraj was bleeding from his chest. Her clothes got bloodstained. Dhiraj was unable to speak and was breathing fast. She went around the spot to FIR No. 131/10 9 page of 26 search some one for help but could not find anyone. She returned to Dhiraj and even at that time Dhiraj was breathing fast and was unable to speak. At some distance, she found some boys playing cricket. She told all the facts to those boys and sought their help. One boy made a call to the police. After some time, police reached at the spot and took Dhiraj to hospital. Police recorded her statement.
14. PW6 further deposed that police lifted bloodstains mud from the spot near the dead body, put it in a plastic container, sealed it and same was taken into possession. Bloodstains mud near the bench and earth control near the dead body near the bench were also lifted and seized by putting in a plastic container. A cap worn by Dhiraj lying near the dead body was also seized by the police. She also handed over her bloodstained clothes to IO and the same was seized. After few days, she identified all the three accused in this court complex while in the custody. She admitted to have made statement under Section 164 Cr.PC to Ld. MM. This witness correctly identified a black colour jeans pant and a cream colour shirt as the same which were worn by the deceased. She also identified a black colour jeans pant having bloodstains and a white and purple colour top having bloodstains as the same which were worn by her. She also identified a dark brown colour cap soiled with earth as the same which was worn by Dhiraj at the time of incident.
15. PW6 has identified all three accused persons as culprits and as also assigned specific role played by them in this incident. PW6 has stated that accused also took away mobile phone of Dhiraj.
FIR No. 131/10 10 page of 2616. As per IO PW23, he obtained mobile number of the deceased from his father and put it on surveillance. On analyzing call details of said mobile phone, No. 9958103551 was found working on the mobile phone of the deceased. He collected the ownership proof and call details of said number and it was found activated on the name of one Gulshan Bano R/o. Jhuggi Jawahar Mohalla, Shashi Garden. He reached Shashi Garden and from the secret informers he collected information and came to know that this murder was committed by son of Gulshan Bano. At the instance of Gulshan Bano, accused Imran was apprehended, he made disclosure statement admitting his guilt. Accused Imran got recovered a phone make Nokia from the fridge in his jhuggi having SIM number 9958103551. Accused Imran also got recovered one bloodstained T-shirt stated to be worn by him at the time of incident from his jhuggi.
17. PW18 Ct. Bahadur and PW21 Ct Shiv Kumar who were accompanying IO PW23 at that time have also supported this statement of IO regarding recovery of mobile phone make Nokia and recovery of bloodstained T-shirt in pursuance of his disclosure statement. PW1 is father of the deceased. He stated that his son was carrying a mobile make Nokia of black colour and the same was purchased by him for sum of Rs.4,000/- from Laxmi Nagar on his name. Even SIM card used in this mobile phone was purchased by him after giving his identification proof. PW1 correctly identified black colour phone make Nokia having IMEI No. 354192039957722 as the same which was purchased by him. PW14 Ravi, Store Manager of Spice Mobile Company stated FIR No. 131/10 11 page of 26 that vide invoice Ex. PW14/A, he had sold this mobile phone make Nokia 2700C of black colour having IMEI No. 35419203997722 to PW1 Ram Nandan Prasad. PW10 Pawan Singh, Nodal Officer, Idea Cellular stated that mobile phone No. 9540646742 was issued on the name of PW1 Ram Nandan Prasad S/o. Sh. Saryug Prasad R/o. E-538, Gali No. 10, West Vinod Nagar, Delhi on the basis of customer application form Ex. PW10/A. He stated that IMEI number is of 15 digits and last digit is always zero. PW7 Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd filed customer application form Ex. PW7/A for mobile No. 9958103551 issued on the name of Gushan Bano W/o. Sh. Mohd. Intiyaz. He also filed CDR for this mobile number dated 18.04.10 Ex.PW7/B.
18. The call details Ex.PW7/B of SIM number 9958103551 issued on the name of Gulshan Bano , mother of accused Imran proves that mobile phone on the name of PW1 i.e father of the deceased, was used on this SIM number. Moreover it stands admitted by accused in his statement recorded under Section 313 Cr.P.C that on that day he was playing football in the park, he found mobile phone in the bushes and took it to his house and used it on the sim of his mother.
19. As per PW23, at the instance of accused Mohd. Imran, accused Mukesh was apprehended from EB-321, Jawahar Mohalla, Shashi Garden. Accused Mukesh made disclosure statement and got recovered a knife stated to be weapon of offence from the corner of his jhuggi wehre TV table and sofa were lying . Accused also got recovered a white colour bloodstained T-shirt stated to be worn by him at FIR No. 131/10 12 page of 26 the time of incident. PW1 Ct.Shiv Kumar who was accompanying IO PW23 at that time, has also supported this statement of IO.
20. As per IO PW23, same day i.e. 19.04.10, at the instance of accused Mohd. Imran and Mukesh, accused Akram was arrested from the street. Accused also made disclosure statement and got recovered his shirt kept in other clothes stated to be worn by him at the time of incident and it was having bloodstains. PW2 Ct. Bahadur Singh was accompanying IO at that time and he has supported this statement of IO.
21. Ex.PW5/A is P/M report prepared by PW5 Dr. Vinay Kumar Singh, Specialist Forensic Medicine, LBS Hospital, as per which deceased Dhiraj Kumar sustained following injuries:-
i). Incised stab wound 3.3 x.1.9 cms obliquely present over left side at chest 112 cms above heel and 8 cms from midline, chest cavity deep, margins sharp and regular , lower end acute, directed downwards, inwards and medially.
ii). Incised wound .5 x .1 cms oblique, present over dorsum of left hand, skin deep, margin sharp and regular.
iii). Abrasion 0.5 x.03 cms present 1 cm above medial end of right eyebrow on forehead.
As per opinion regarding cause of death, it is stated that cause of death was haemorragic shock consequent upon stab injury to the chest, all injuries were ante mortem in nature. Injury No. 1 was sufficient to cause death in ordinary course of nature. Injury No. 1 and 2 were caused by single edged sharp weapon/knife.
FIR No. 131/10 13 page of 2622. PW5 also proved his opinion Ex.PW5/C given on 10.02.11, after examination of weapon of offence i.e knife produced by IO PW23. PW5 opined after examination of knife and going through the postmortem report that injury No.1 & 2 on the body of the deceased could have been caused by the said weapon. PW5 identified the knife Ex.P9 which was recovered at the instance of accused Mukesh from the corner of his jhuggi on 19.04.10.
23. Ex. PW9B, C and D are the TIP proceedings of accused Akram, Mukesh and Mohd. Imran wherein they refused to participate in TIP taking plea that they have been shown to the witness by the police in the PS. PW6 is a sole eyewitness in this case. During her cross she had stated that once she had seen all the accused in the custody of the police outside court. All the accused were arrested on 19.04.10 and at the earliest subjected to TIP on 21.04.10. It has nowhere come in the statement of PW6 that if she had seen accused before 21.04.10 in the court complex. The refusal on the part of all three accused to participate in TIP is without any basis, hence adverse inference needs to be drawn against them.
24. Ex. PX1 and Ex. PX2 are FSL reports which are admissible in evidence per se, being given by Senior Scientific Officer. Ex. PX1 is the report of Biology Division. As per PW23, a bloodstained T-shirt was recovered at the instance of Mukesh, one bloodstained T-shirt was recovered at the instance of accused Mohd. Imran and one bloodstained shirt was recovered at the instance of accused Akram. As per Ex.PX2, on these clothes recovered at the instance of accused persons, human blood was found but regarding FIR No. 131/10 14 page of 26 group of blood, report is inconclusive. As per report, on clothes of deceased, blood group was of "0" group.This report is therefore of no help to the prosecution.
25. One of the main contradictions raised by Ld. Defence counsel is that statement of PW6( sole eyewitness)is inconsistent and does not inspire confidence. It is stated that as per PW6, only one stab wound was caused but as per P/M report Ex.PW5/A, deceased suffered two stab wounds. PW6 has talked about only one stab injury inflicted by accused Mukesh on the chest of deceased. As per P/M report Ex. PW5/A, there is another stab injury present over dorsum of left hand and doctor opined that both injury No. 1 and 2 are caused by single edged sharp weapon/knife. PW6 has stated that he pleaded with accused persons to leave them as they are not having any thing. On this, accused Akram threatened her to go away from there otherwise she will be killed. She started leaving the spot, after taking few steps she again requested accused persons to leave them. As per PW6, she saw accused Imran and Mukesh caught hold deceased Dhiraj and accused Mukesh stabbed Dhiraj on his chest. Injury on the dorsum of left hand of the deceased shows that while being assaulted with knife, as natural reaction to defend, deceased must have brought his hand in-between, as result of which he sustained this injury. Since PW6 was leaving the spot and from some distance she saw accused stabbing deceased, it looks probable that she did not see accused inflicting injury No. 2 i.e. on left hand of the deceased. Statement of PW6 is consistent. She was cross examined by both the Ld. Defence counsels but nothing has come on FIR No. 131/10 15 page of 26 record either to discredit her testimony or to establish that she is not an ocular witness to the incident and was planted as an eyewitness. Ex.PW6/H is the statement of PW6 recorded by Ld. M.M PW 8 Vivek Kumar Gulia under Section 164 Cr.P.C, which is exactly the same as deposed by PW6 before this court. I therefore do not agree with this contention raised by Ld.Defence counsels. Statement of PW6 is consistent, credible and appeared to be truthful.
26. To establish their defence, accused Mukesh and Akram led evidence in defence. DW1 Nasir Ahmed is examined by accused Mukesh. As per DW1, he is contractor of Tandoor for marriage and accused was working with him for the last many years. On 17.04.2010, he had gone to Rewari to work in a marriage party and accused was with him. They returned to Delhi on 18.04.10 at 9-10 PM and thereafter Mukesh was arrested by the police. During cross by Ld. APP, he stated that he cannot tell the name and address of the person where he had installed Tandoor in Rewari. He did not ask the family members of accused Mukesh for making any complaint to senior police officials or in court regarding the fact that Mukesh was with him on the day of incident. DW1 has failed to give the name and address of the person where he installed Tandoor in Rewari. DW1 has also failed to produce any documentary proof to establish that either he went to Rewari on 17.04.2010 and returned back to Delhi on 18.04.10 at 9-10 PM and accused was with him at that time. In view of these reasons, statement of DW1 does not inspire confidence.
27. Accused Akram exmined DW2 Mohd. Yasin. He FIR No. 131/10 16 page of 26 deposed that he is running a welding shop at E-94, Pandav Nagar. Akaram had worked with him for one year. Akram had worked with him till 18.04.2010, on that day he had come to work at 9 AM and worked till 6 PM. Next day, he did not come to work. On 20.04.10 he went to the house of Akram and came to know that he has been arrested. DW2 has failed to file any documentary proof to establish that if accused Akram ever worked with him. In criminal trials, it is observed that mostly accused take plea of 'alibi' and examine witness to support his plea but in the absence of any documentary proof, regarding the presence of accused at the time of the incident somewhere else, testimony of ocular witness who has seen accused committing crime, cannot be disbelieved. Statement of DW2 does not inspire confidence.
28. Other contradiction raised by Ld. Defence counsel is that PW1 father of the deceased has shown his suspicion on his neighborers Shankar Lal Sharma and his son Yogesh Sharma, even PW1 had made a complaint to the police in this context but police did no investigation against those suspects. It is stated that police colluded with Shankar Lal Sharma and Yogesh Sharma and falsely implicated accused persons in this case. PW1 has expressed his strong doubt that Shankar Lal Sharma and his son Yogesh Sharma who live in front of his house and want to grab his house has got his son murdered. PW1 further stated that accused Mukesh used to visit the house of Shankar Lal Sharma. In this regard, complaints Ex. PW1/C and Ex.PW1/D were filed by PW1 with ACP of the area. The suspicion however strong it may be can not out place evidence that too ocular, as in this case. Merely FIR No. 131/10 17 page of 26 because father of deceased PW1 has shown some suspicion on his neighborers, on this sole basis, statement of PW6 cannot be disbelieved.
29. Ld. Defence counsel Sh. Raksh Pal submitted that mobile phone of deceased alleged to be recovered from the possession of accused Imran was actually found by him on the day of incident while playing cricket in the park, phone was lying in the bushes, from there he brought it to the house and started using it. It is urged that if accused would have been involved in this murder, he would not have used this phone. No witness is examined by accused Imran to establish his plea that on 18.04.10, he had gone to Sanjay Park to play cricket and from bushes there he recovered this mobile phone. Regarding the using of this mobile, same day, on his sim card, it depends upon wisdom and knowledge of the accused i.e probably he might not be aware while using his sim number that IMEI of mobile phone robbed from the deceased will get displayed in the Call Detail Record. I therefore find no substance in the contention raised by Ld. Defence counsel.
30. Other contradiction raised by both Ld. Defence counsels is that Sanjay Park remains busy at this part of the day and despite availability prosecution has failed to examine any public witness which further cause dents to the prosecution story. Time of incident is 10.00AM on 18.04.10 and it was Sunday.PW6 has admitted in her statement that at some distance some boys were playing cricket. I agree with the contention raised by Ld. Defence Counsel that public movement remains there in the park at this time of day, FIR No. 131/10 18 page of 26 especially when it is Sunday. Incident must have happened within few minutes. If the boys were playing cricket at some distance, they must be busy in their game and what is happening at some distance, they were not in a position to see. Even PW6 has nowhere stated that if any other public witness has also seen this incident. PW6 is the only eyewitness in this case. As already discussed, her testimony is found to be credible and trustworthy. The foundation of criminal case is quality and genuineness of the statement of eyewitness. It is not the mandate of law that quantity should be given preference over quality. I again find no merit in this submission of Ld. Defence counsels.
31. PW6 is a star prosecution witness being sole eyewitness to the incident. She has categorically stated that accused Mohd. Imran and Akram caught hold deceased Dhiraj and accused Mukesh stabbed Dhiraj on his chest. Statement of PW6 is consistent, credible and trustworthy. I find no reason to disbelieve her testimony. In view of aforesaid discussions, it stands established beyond doubt that all the three accused sharing common intention voluntarily caused hurt to deceased Dhiraj while committing robbery and in the process accused Mukesh sharing common intention with his co accused Akram and Md Imran gave fatal stab wound on the chest of deceased Dhiraj. It was accused Mukesh who gave fatal knife blow on the chest of deceased Dhiraj. Accordingly accused Mohd Imran and Akram are held guilty for the commission of offence punishable under Section 392/302/34IPC. Since accused Mukesh used deadly weapon i.e. knife in this case while committing robbery on deceased , FIR No. 131/10 19 page of 26 he is also held guilty for the commission of offence punishable under Section 302/34 IPC and 397IPC. All the three accused are convicted accordingly.
Announced in the open Court ( SANJAY GARG ) th on 07 day of September, 2011 Addl. Sessions Judge (East) (FTC), E-Court : Karkardooma Courts: Delhi FIR No. 131/10 20 page of 26 IN THE COURT OF . SANJAY GARG, ADDL. SESSIONS JUDGE (EAST): E- COURT, FTC: KARKARDOOMA COURT: DELHI SC No. 144/10 FIR No. 131/10 PS Pandav Nagar U/s. 392/302/34IPC State Vs. Mohd. Imran S/o. Mohd. Imtiyaz R/o. E-20/B-
74, Jawahar Mohalla, Shashi Garden, Delhi.
ORDER ON QUANTUM
1. I have heard Sh. Md. Iqrar, Ld. Addl. PP for the State and Sh. Raksh Pal, Ld. Defence counsel for convict Mohd. Imran on quantum.
2. Ld. APP submits that keeping in view gravity of the offences maximum punishment be awarded to the convict. Ld. Defence counsel submits that the convict is first offender, not involved in other criminal case. It is stated that he is of young age of 20 years. It is stated that he has a family constituting old parents, four younger brothers and three younger sisters dependent upon him for their day to day requirements. It is stated that convict is in J/C since beginning.
FIR No. 131/10 21 page of 263. In view of the facts and circumstances of this case, this case does not fall in the category of "rarest of the rare cases". The only other punishment provided under Section 302 IPC is imprisonment for life. In view of the facts and circumstance of this case, the convict is sentenced as under:-
For the offence punishable u/s. 392/34 IPC he is sentenced to undergo RI for 7 years and shall also be liable to pay fine of Rs.1,000/- in default to undergo SI for one month. For the offence punishable u/s.302/34 IPC he is sentenced to undergo life imprisonment and shall also be liable to pay fine of Rs. 2,000/- in default to undergo SI for two months. All the sentences to run concurrently.
4. Benefit of section 428 Cr. PC be given to accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG ) th on 13 day of September, 2011 Addl. Sessions Judge (East) E- Court, FTC, Karkardooma Courts, Delhi FIR No. 131/10 22 page of 26 IN THE COURT OF . SANJAY GARG, ADDL. SESSIONS JUDGE (EAST): E- COURT, FTC: KARKARDOOMA COURT: DELHI SC No. 144/10 FIR No. 131/10 PS Pandav Nagar U/s. 392/302/34IPC State Vs. Akram S/o.Sh. Abdul Qayyum R/o. EB-274, Jawahar Mohalla, Shashi Garden, Delhi.
ORDER ON QUANTUM
1. I have heard Sh. Md. Iqrar, Ld. Addl. PP for the State and Sh. V.S.Panwar, Ld. Amicus Curiae for convict Akram on quantum.
2. Ld. APP submits that keeping in view gravity of the offences maximum punishment be awarded to the convict. Ld. Amicus Curiae for convict submits that the convict is first offender, not involved in other criminal case. It is stated that he is of young age of 20 years. It is stated that he has a family constituting old parents dependent upon him for their day to day requirements. It is stated that convict is in J/C since beginning.
3. In view of the facts and circumstances of this case, this case does not fall in the category of "rarest of the FIR No. 131/10 23 page of 26 rare cases". The only other punishment provided under Section 302 IPC is imprisonment for life. In view of the facts and circumstance of this case, the convict is sentenced as under:-
For the offence punishable u/s. 392/34IPC he is sentenced to undergo RI for 7 years and shall also be liable to pay fine of Rs.1,000/- in default to undergo SI for one month. For the offence punishable u/s.302/34 IPC he is sentenced to undergo life imprisonment and shall also be liable to pay fine of Rs. 2,000/- in default to undergo SI for two months. All the sentences to run concurrently.
4. Benefit of section 428 Cr. PC be given to accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG ) on 13th day of September, 2011 Addl. Sessions Judge (East) E- Court, FTC, Karkardooma Courts, Delhi FIR No. 131/10 24 page of 26 IN THE COURT OF . SANJAY GARG, ADDL. SESSIONS JUDGE (EAST): E- COURT, FTC: KARKARDOOMA COURT: DELHI SC No. 144/10 FIR No. 131/10 PS Pandav Nagar U/s. 302/34IPC & 307IPC State Vs. Mukesh @ Karka S/o. Sh. Rajender Thakur, R/o. EB-321, Jawahar Mohalla, Shashi Garden, Delhi.
ORDER ON QUANTUM
1. I have heard Sh. Md. Iqrar, Ld. Addl. PP for the State and Sh. V.S. Panwar, Ld. Defence counsel for convict Mukesh on quantum.
2. Ld. APP submits that keeping in view gravity of the offences maximum punishment be awarded to the convict. Ld. Defence counsel for convict submits that the convict is first offender, not involved in other criminal case. It is stated that he is of young age of 21 years. It is stated that he has a family constituting his mother and four younger brothers and sisters dependent upon him for their day to day requirements. It is stated that convict is in J/C since beginning.
3. In view of the facts and circumstances of this FIR No. 131/10 25 page of 26 case, this case does not fall in the category of "rarest of the rare cases". The only other punishment provided under Section 302 IPC is imprisonment for life. In view of the facts and circumstance of this case, the convict is sentenced as under:-
For the offence punishable u/s. 397IPC he is sentenced to undergo RI for 10 years and shall also be liable to pay fine of Rs.1,000/- in default to undergo SI for one month. For the offence punishable u/s.302/34 IPC he is sentenced to undergo life imprisonment and shall also be liable to pay fine of Rs. 2,000/- in default to undergo SI for two months. All the sentences to run concurrently.
4. Benefit of section 428 Cr. PC be given to accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG ) th on 13 day of September, 2011 Addl. Sessions Judge (East) E- Court, FTC, Karkardooma Courts, Delhi FIR No. 131/10 26 page of 26