Delhi District Court
State vs Harender @ Kake And Anr. Page No. 1 Of 55 on 18 October, 2018
IN THE COURT OF SH. RAJESH KUMAR SINGH ,
SPECIAL JUDGE/ASJ;NDPS SOUTH DISTRICT, SAKET
SC No. 218/2017
FIR No. 27/2017
PS Ambedkar Nagar
u/s 397,302,411,34 IPC
CNR No. DLST010032332017
State
versus
Harender Kumar @ Kake ..........accused no. 1
s/o Sh. Vinod Kumar
r/o H. No. J192,
Dakshinpuri, New Delhi
Lalit @ Ishu ..........accused no. 2
s/o Sh. Shyam Lal
H. No. B433, Sanjay Camp,
Dakshinpuri, New Delhi
Date of Institution : 04th May 2017
Date of arguments : 13th September 2018
Date of Judgment : 18th October 2018
J U D G M E N T
Brief facts
1.On 17.01.2017, at 12:40am information was received at PS Ambedkar Nagar regarding quarrel near block No. 18, Barat Ghar. The information was recorded vide DD no. 3A and assigned to SI Satish Kumar. On the same day, at 01:40am information was received from AIIMS Trauma Center State vs Harender @ Kake and anr. Page no. 1 of 55 SC No. 218/2017 that the injured had been brought to the hospital and he was declared dead. The information was recorded vide DD no. 4 A and assigned to Inspector Ajab Singh, who is IO of this case. Postmortem of the deceased was got conducted. As per the postmortem report, the cause of death is "shock due to hemorrhage consequent upon above mentioned injuries. All injuries are antemortem in nature. Injury no. 4 individually and combined is fatal in ordinary course of nature/sufficient to cause death in ordinary course of nature. " The doctor handed over the clothes of the deceased and other exhibits to the IO with sample seal. The exhibits were sealed and deposited in malkhana. 1.2 The incident happened in front of J125, Dakshin Puri which is close to the Barat ghar. Blood was also found near a park which is close to J
125. IO got the scene of crime inspected by the crime team. Exhibits were collected, sealed and deposited in malkhana. The PCR call regarding quarrel which led to recording of DD no. 3A had been made by Mr. Mukesh from his mobile phone number 9599859210. He was examined and his statement was recorded u/s 161 Cr. PC. IO examined the CCTV footage from the camera installed at the shop of Sh. Nitin Bansal at J157, Dakshin Puri. On 16.01.2017 at about 11:30pm, three boys appeared in the recording and their activities looked suspicious. IO took the backup the CCTV footage in a pen drive and it was shown to Ms. Shobhawife of the deceased, Mr. Vishalbrotherinlaw of deceased and to a tea stall owner called Islamuddin. They identified two boys as Harender @ Kake (A1) and Lalit @ Ishu (A2). The third boy could not be State vs Harender @ Kake and anr. Page no. 2 of 55 SC No. 218/2017 identified by them as he had covered his face.
1.3 On 20.01.2017, at the instance of secret informer, the IO apprehended A1 and A2 at Virat Ground with the help of SI Satish, Ct. Anil and Ct. Deepak. One black colour purse was recovered from A1 which contained Rs. 1600/; ATM card of Bank of India in the name of deceased Suresh s/o Sh. Debu and three photographs of passport size. The photographs were of the deceased, his wife and their child. Nothing was recovered from A2. Both accused were arrested. They made disclosure statements. They told that the third boy involved in the crime was a CCL (Child in Conflict with Law), whose name is not being mentioned in the judgment to protect his identity. At the instance of A1, one black colour jacket was recovered from his house. He disclosed that he had thrown the other cloth and shoes worn by him at the time of incident in a garbage dump near his house. The jacket had blood stains. The jacket was sealed and seized. A2 disclosed that he had spent Rs. 2000/ which came to his share out of total amount of Rs. 5200/ in the purse of deceased. At the instance of A2, the clothes, shoes and one knife having blood stains were recovered from his house. Sketch of knife was prepared. A1 and A2 disclosed that after committing the crime, the CCL had given the knife to A2. The articles recovered from the house of A2 were also seized and sealed. Both accused pointed out the place of incident. The clothes thrown by A1 in the garbage dump could not be recovered as the garbage dump is cleared on daily basis. On 21.01.2017, the CCL was also apprehended in the presence of his brother Mr. State vs Harender @ Kake and anr. Page no. 3 of 55 SC No. 218/2017 Sandeep. At the instance of CCL, one jeans pant was recovered. The CCL disclosed that he was wearing the said pant at the time of commission of the crime. The pant had blood stains. It was seized and sealed. CCL disclosed that he had thrown mobile phone in a drain at Chirag Delhi. The mobile phone could not be recovered. All exhibits seized at the instance of the accused persons and CCL were deposited in the malkhana. Seal handing over memos were prepared after seizing and sealing all exhibits. The CCL was produced before the Juvenile Justice Board. The exhibits were sent to FSL and the FSL report was received. The report contains the result of Biological as well as DNA examination. Report was also received regarding viscera examination of the deceased and the report shows presence of ethyl alcohol 68.2 mg/100ml of blood. Age verification of A1 and A2 was done. As per the record of their schools attended by them the date of birth of A1 was found to be 13.03.1995 and the date of birth of A2 was found to be 21.12.1996. Both of them were found to be major on the day of the incident. After completion of investigation, chargesheet was filed u/s 397,302,411,34 IPC against the accused Harender @ Kake (A1) and accused Lalit @ Ishu (A2).
Charge 2.1 Charge was framed against both accused on 04.05.2017. Both accused were charged u/s 397/34 and Section 302/34 IPC. The charge firstly states that on 17.01.2017 at about 12:30am in front of house number J125, Dakshin Puri, New Delhi both of them alongwith the CCL in furtherance of their State vs Harender @ Kake and anr. Page no. 4 of 55 SC No. 218/2017 common intention robbed the victim Suresh of his black colour purse. A deadly weapon (knife) was shown and used in commission of the robbery. Thereby, they committed offence punishable u/s 397/34 IPC. Secondly, in furtherance of their common intention, they committed the murder of the victim Suresh and thereby committed an offence punishable u/s 302/34 IPC. 2.2 A1 was separately charged u/s 411 IPC also and the charge states that on 20.10.2017 at about 05:45pm at Virat Chowk, Dakshin Puri within the jurisdiction of PS Ambedkar Nagar, he was found in possession of the black colour purse containing currency notes, ATM card and photographs of the deceased and his family. By receiving or retaining the stolen property knowing the same to be stolen property or reason to believe the same to be stolen property, he committed offence punishable u/s 411 IPC. 2.3 Both accused pleaded not guilty to the charge framed against them and claimed trial.
3. Prosecution evidence 3.1 In order to prove its case prosecution has examined following 22 witnesses. They are PW1 Dr. Antriksh Kumar Senior Resident, Medicine, JPN APEX Trauma Center, AIIMS. PW2 SI Harish Chander Pathak. PW3 Sh. Mukesh s/o Sh. Babu Lal. PW4 Ct. Ravinder. PW5 ASI Deshpal Singh. PW6 Dr. Piyush Sharma, Senior Resident Doctor, Department of Forensic Medicine and Toxicology, AIIMS, New Delhi. PW7 Inspector Mukesh Kumar Jain. PW8 Ct. Ajeet. PW9 Sh. Ramesh Chandra, School Incharge, Good Samaritan State vs Harender @ Kake and anr. Page no. 5 of 55 SC No. 218/2017 School, Sanjay Camp, Dakshin Puri, New Delhi. PW10 Sh. Dharam Pal Singh s/o Sh. Ram Chander. PW11 SI Lakhmi Chand. PW12 Sh. Nitin Bansal s/o Sh. Bajrang Bansal. PW13 Sh. Islamuddin s/o Sh. Musab Ali. PW14 Smt. Shobha w/o late Sh. Suresh. PW15 Sh. Vishal s/o Sh. Kishan Lal. PW16 Ct. Anil Kumar. PW17 SI Roshan Lal. PW18 HC Lekh Raj. PW19 SI Satish Kumar. PW20 Ct. Deepak . PW21 Inspector Ajab Singh and PW22 Sh. Sandeep Kumar s/o Sh. Ashok Kumar.
4. Statement of the accused u/s 313 Cr. PC 4.1 Ld. Addl. PP for the State closed prosecution evidence on 13.04.2018 and the matter was adjourned to 21.04.2018 for recording of statement of accused u/s 313 Cr. PC. On 13.04.2018, Ld. Addl. PP moved an application u/s 311 Cr. PC to recall PW21/IO Inspector Ajab Singh to examine him in respect of the photographs. The application was allowed on the same day as it was not opposed by Learned counsel for the accused. PW21 was further examined on 23.04.2018. Statement of both accused was recorded u/s 313 Cr. PC on 07.05.2018. In their statements u/s 313 Cr. PC, the accused did not take any plea of alibi. They also did not opt for defence evidence. 4.2 During the course of final arguments, Ld. Addl. PP for State again moved an application u/s 311 Cr. PC to summon Mr. Sandeep Kumar as a witness. Mr. Sandeep Kumar is brother of CCL and his examination was required to prove the documents pertaining to the CCL including the seizure memo of the jeans pant of the CCL. Ld. Addl. PP also prayed to summon the State vs Harender @ Kake and anr. Page no. 6 of 55 SC No. 218/2017 original record of the proceedings before JJBII, Delhi Gate as the original memos pertaining to the CCL were filed before the JJB and photocopies thereof had been placed on record of this case. The application was allowed vide order dated 05.06.2018. Mr. Sandeep Kumar was examined as PW22 on 03.07.2018. During his examination, the original record was produced by the concerned clerk of JJBII. After examination of PW22, statement of both accused was again recorded on 03.07.2018. They again did not opt for defence evidence.
5. Arguments of Ld. Addl. PP for the State 5.1 This is a case of circumstantial evidence. Ld. Addl. PP submitted that prosecution has successfully established the chain of circumstances without any break. The chain of circumstances are consistent with the guilt of the accused and wholly inconsistent with the hypothesis of their innocence. 5.2 Learned counsel for accused have raised issue of certificate u/s 65B of Indian Evidence Act in respect of the CD containing the CCTV footage which shows the presence of the accused persons and the CCL near the place of crime shortly before the crime was committed and call was received by the PCR. Original DVR was produced before the Court and therefore, the issue of certificate u/s 65B of Indian Evidence Act has no relevance. Both accused can be clearly seen in the CCTV footage and there is no reason to apprehend that the CCTV recording may be tampered. Both accused have no explanation as to where they were, if they were not present in front of J157 when the recording was done by the CCTV.
State vs Harender @ Kake and anr. Page no. 7 of 55
SC No. 218/2017
5.3 PW3 Mr. Mukesh admitted that he made the PCR call though he
made a new story inconsistent with his statement u/s 161 Cr. PC. His deposition before the Court regarding the manner in which he made the PCR call is not believable. The PCR form no. 1 Ex. PW2/A clearly shows that the call was regarding quarrel in front of 18 number, Barat Ghar and the priority assigned to the call by the PCR was medium. Had PW2 called the PCR under the circumstances stated by him in his deposition before the Court, the call would not have been of "quarrel" and the priority would not have been "medium" . If the PCR had picked up the injured on way to Hospital as deposed by PW2, this fact would have been mentioned in Ex.PW2/A. PW13 Islamuddin had identified both accused from the CCTV footage during investigation but he turned hostile at the time of his examination before the Court. PW13 admitted that he runs a tea shop near Mother Dairy, Block17, Dakshin Puri. PW21/IO Inspector Ajab Singh deposed that the CCTV footage was shown to many persons. 23 persons beside PW13 identified the accused from the CCTV footage but they did not agree to become witness. There is no reason for the police to pick up PW13 as a witness. PW14 and PW15 identified both accused during investigation as well as before the Court in the CCTV footage. PW12 Nitin Bansal who is owner of shop at J157 where the CCTV was installed, deviated a little from his statement u/s 161 Cr. PC, however, when his statement before the Court is considered in the totality, there is no major discrepancy and his statement also State vs Harender @ Kake and anr. Page no. 8 of 55 SC No. 218/2017 supports the prosecution.
5.4 CCTV footage is not the only basis for identification of A1 and A
2. It is to be noted that the secret informer did not tell that he could get A1 and A2 apprehended. He told the IO that he could get the two boys involved in the incident apprehended. After A1 and A2 were apprehended, their names and addresses were disclosed. PW16, PW19, PW20 and PW21, who apprehended A1 and A2 on 20.01.2017 at the instance of the secret informer, have deposed that the secret informer told that he could get the two boys involved in the incident apprehended. The discrepancies in the statements of PW16, PW19, PW20 and PW21 regarding the manner in which A1 and A2 were apprehended at Virat ground on 20.01.2017 are minor and they do not go to the root of the matter. The arrest memos of A1 and A2 Ex. PW16/F and Ex. PW16/I mention the place of arrest as Virat ground, Dakshin Puri. The arrest memos are signed by father of A1 and father of A2. PW21 stated in his cross examination that father of A1 and father of A2 had come to Virat ground. A1 and A2 have not examined their father to dispute the correctness of Ex. PW16/F and Ex. PW16/I. PW19 SI Satish stated in his crossexamination that family members of A1 and A2 did not come to Virat ground. This is contradictory to the statement of PW21, however, PW19 also stated that all memos were prepared at Virat ground. The memos include the arrest memos. Therefore, there is no doubt about the arrest of A1 and A2 at Virat ground on 20.01.2017. The purse of deceased was recovered from A1. If the police State vs Harender @ Kake and anr. Page no. 9 of 55 SC No. 218/2017 wanted to plant recovery, something could have been planted on A2 also but no recovery was shown from him. After A1 and A2 were apprehended, they made their disclosure statements. Clothes and knife were recovered. PW16, PW19, PW20 and PW21 are consistent in respect of the recoveries. Nonjoining of public witnesses is not material as there is no contradiction in the statement of police witnesses.
5.5 The FSL report shows that blood stains were found on the jacket and jeans pant of A2. Blood stains were also found on the knife recovered from the house of A2. Accused have given no explanation regarding the blood on the clothes of A2 and the blood on the knife recovered from A2. The DNA match could not be done on some of the exhibits for technical reasons. The face of the CCL was covered in the CCTV footage and he could not have been identified but for the disclosure of A1 and A2. On the basis of the disclosure of A1 and A2, the CCL was apprehended. The DNA profile of the blood stains on the jeans pant of the CCL matched with the DNA profile of the deceased. The match on the DNA profile on the jeans of the CCL, who was identified on the disclosure statement of A1 and A2 completes the chain of circumstances. 5.6 Regarding absence of TIP of the purse of the deceased, Ld. Addl.PP submitted that PW21/IO has clarified that he did not get the identification conducted as the purse had the photographs of the deceased and his family. According to Ld. Addl. PP, the contradictions pointed out by Learned counsel for accused are minor and there is no break in the chain of State vs Harender @ Kake and anr. Page no. 10 of 55 SC No. 218/2017 circumstances. Ld. Addl. PP further submitted that the circumstances are not only consistent with the theory of the guilt of the accused but also wholly inconsistent with the theory of their innocence.
6. Arguments of Learned counsel for A1 and A2 6.1 Learned counsel for A1 and A2 submitted that accused cannot be identified from the CCTV footage as their face cannot be clearly seen in the CCTV footage. PW12 Nitin Bansal deposed that the police officers did not examine the CCTV footage in his presence. Contrary to the case of the prosecution that the IO took the backup of the CCTV footage in a pen drive on 17.01.2018 and Sh. Nitin Bansal surrendered the DVR on 18.01.2017, Sh. Nitin Bansal deposed that the police officers took away the DVR on 17.01.2017 itself. He was not competent to issue the certificate u/s 65B of Indian Evidence Act in respect of the CD which was prepared by the police officers. PW21 stated that he had sent the DVR for forensic examination but the FSL returned the DVR on the ground that they do not examine DVRs. There is no document on record to show that the DVR was sent to the FSL and it was returned on the ground mentioned by PW21. There is possibility of morphing of the images in the CCTV footage. PW14 Smt. Shobha is a house wife and she could not tell her own address correctly. How she could have identified the accused from the CCTV footage and also tell their addresses. While deposing before the Court, she stated that she could not make out whether the CCTV footage being played was black and white or colour. She also did not remember the device on which State vs Harender @ Kake and anr. Page no. 11 of 55 SC No. 218/2017 the CCTV footage was shown to her by the police officers during investigation. Her brother PW15 Sh. Vishal is residing in TransJamuna area for about six years. It cannot be believed that he could identify A1 and A2 on the basis of the CCTV footage. PW13 Islamuddin did not support the prosecution at all. 6.2 Even if it is accepted that accused are visible in the CCTV footage, nothing turns on it. The CCTV footage does not show the accused assaulting the deceased. The PCR caller PW3 Sh. Mukesh has not supported the case of the prosecution that he had seen three boys assaulting a person. According to the prosecution, he had also given the description of the clothes worn by the assailants. In his statement of Sh. Mukesh u/s 161 Cr. PC, it is stated that one of the assailant was wearing white colour pant and black jacket, the second assailant was wearing black jacket and black pant or payjama and the third assailant was wearing white jacket and white pant. According to the prosecution, the assailant wearing black colour jacket and black payjama was Lalit @ Ishu (A2). The clothes of A2 were seized vide Ex. PW20/B. The clothes are one multicoloured sweat shirt, one light green shirt and one dark blue jeans. The clothes shown to have been recovered at the instance of A2 vide seizure memo Ex. PW20/B do not match with the description given on the basis of the CCTV footage.
6.3 There are material contradictions regarding the claim of prosecution that A1 and A2 were apprehended at Virat ground on 20.01.2017 on pointing out of secret informer. According to PW16 and PW20, the secret State vs Harender @ Kake and anr. Page no. 12 of 55 SC No. 218/2017 informer met the IO at Peepal chowk whereas the IO/PW21 himself deposed that the secret informer accompanied him from the police station itself. PW19 stated that all of them went to Virat chowk in a swift car whereas PW20 stated that the secret informer came on his own motorcycle. PW19 stated that from Virat ground the accused were taken in the same swift car whereas the IO/PW 21 stated that the police party had gone to Virat chowk by foot and he did not remember whether he had called any vehicle to take the accused after arrest or they were taken by foot. PW19 stated that family members of A1 and A2 did not come to Virat ground whereas PW21 stated that their fathers had come to Virat ground. There is no independent witness. Absence of independent public witness creates doubt regarding the correctness of the testimony of PW16, PW 19, PW20 and PW21. The place from where the accused were allegedly apprehended is a busy market place and it is unbelievable that the police officers could not find any independent public witness. If the public witnesses were not ready to join the proceedings, notices could have been served on them and their names and addresses could have been recorded. There are contradictions regarding time of deposit of the exhibits in the malkhana. 6.4 Fingerprint opinion was not obtained on the knife which is alleged to have been used in commission of crime. The knife was also not sent to the doctor for opinion whether the injuries could have been caused with the said knife. Generally, the documents of identity are kept in wallet/purse but in this case the documents were shown to have been kept in a bag which was handed State vs Harender @ Kake and anr. Page no. 13 of 55 SC No. 218/2017 over to the duty constable at the hospital by the PCR staff. Identification of the purse was not got done from the relatives of the deceased and it has also not been identified by them during the trial. Had the accused been involved in the crime, why would they leave golden wrist watch and the bag of the deceased. 6.5 PW15 Vishal deposed in his crossexamination by Learned counsel for A2 that on 18.01.2017 he identified the accused after seeing the CCTV footage at his sister's house and thereafter immediately took the police officers to Sanjay Camp though, the accused persons had already been apprehended. Learned counsel argued that deposition of PW22 Sandeep Kumar also shows that the accused had been lifted by the police before 20.01.2017.
6.6 It was noticed by this Court that in the FSL result Ex. PW21/G, the contents of parcel12 are described as : one sealed cloth parcel sealed with the seal of "ASB" containing exhibits described as 'cloths of deceased' whereas the exhibit 12 which is mentioned below the above mentioned entry describes the exhibit as one jeans pants described as "clothes of CCL Alok" . Learned counsel for the accused submitted that description of parcel 12 in the FSL result creates doubt about the cloth on which the DNA profile of the blood matched with the DNA profile of the deceased. Benefit of doubt must be given to the accused. 6.7 In support of his arguments, Learned counsel for A1 relied upon the following judgments:
State vs Harender @ Kake and anr. Page no. 14 of 55
SC No. 218/2017
(a) Judgment dated 04.09.2015 by Hon'ble Supreme Court in Nizam and
anr. Vs State of Rajasthan Crl. A. No. 413/2017. This judgment is cited at Bar by Learned counsel is on the point of appreciation of evidence in a case of circumstantial evidence and last scene theory .
(b) The judgment dated 04.04.2011 by Hon'ble Supreme Court in Rukia Begum vs State of Karnataka Crl. A. No. 1519/2008. Other criminal appeals i.e. Crl. A. No. 698/2008 and 1808/2009 were also disposed of by the same judgment. Emphasis has been laid by Learned counsel on paragraph 10 of the judgment which is regarding the standard of proof in a case based on circumstantial evidence.
(c) Judgment dated 09.11.2016 by Hon'ble Supreme Court in Mahavir Singh vs State of Madhya Pradesh Crl. A. No. 1141/2007. In this judgment, Learned counsel has drawn my attention to paragraph 26 wherein Hon'ble Supreme Court has observed that it is the duty of the IO to diligently investigate the matter in a fair manner and in accordance with the police manual. Default or breach of the duty may prove fatal to the prosecution's case.
(d) Judgment dated 19.09.2013 by Hon'ble Supreme Court in Vijay Thakur vs State of Himachal Pradesh Crl. A. No. 633/2011. This judgment is relied upon by Learned counsel in support of his submission that the recoveries allegedly effected from the accused cannot be relied upon to treat the case of the prosecution as proved.
State vs Harender @ Kake and anr. Page no. 15 of 55
SC No. 218/2017
(e) Judgment dated 16.05.2018 by Hon'ble Supreme Court in Venkateshan
vs State of Tamil Nadu Crl. A. No. 308/2001. This judgment has been cited again on the point of standard of proof in a case based on circumstantial evidence. Special emphasis is laid by Learned counsel on paragraphs 3 to 10 of the judgment. Paragraph 10 of the judgment is reproduced for reference:
"A reference may be made to a later decision in Sharad Birdhichand Sarda vs State of Mahashtra (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
State vs Harender @ Kake and anr. Page no. 16 of 55
SC No. 218/2017
(4) they should exclude every possible hypothesis except the
one to be proved ; and
(5) there must be a chain of evidence so complete as not to
lead any reasonable ground or the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
6.8 Learned counsel for A2 has relied upon following judgments:
(a) Judgment by Hon'ble Supreme Court in the matter of Padala Veera Reddy vs State of Andhra Pradesh and others AIR 1990 Supreme Court 79.
This judgment is on the point of appreciation of cases based on circumstantial evidence.
(b) Judgment by Hon'ble Supreme Court dated 16.04.2018 in Crl. A. No. 1137 of 2018 titled Navaneethakrishnan vs The State by Inspector of Police. This judgment is on the point of identification, scope of Section 27 of The Indian Evidence Act, 1872 and appreciation of cases based on circumstantial evidence.
(c) Judgment by Hon'ble Supreme Court dated 06.05.2015 in Crl. A. No. 1663 of 2012 titled Iqbal and another vs State of Uttar Pradesh. This judgment is on the point of identification of accused. In paragraph 15 of the judgment, Hon'ble Supreme Court observed that:
State vs Harender @ Kake and anr. Page no. 17 of 55 SC No. 218/2017 "15. Evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject matter of dacoity and the alleged weapons used in the commission of the offence."
(d) Judgment dated 10.10.2018 by Hon'ble Division Bench, Hon'ble Delhi High Court in Criminal Appeal no. 1150/2016 titled Ravi Kapoor vs State and Criminal Appeal no. 633/2017 titled Ajay Kumar @ Bhenga vs State. In this case, both appellants had been convicted for the offences punishable u/s 302, 364 and 394 IPC. The allegation against them was that they killed the driver of the Tavera car with a country made pistol, looted his personal articles such as gold chain and purse. The window glasses of the vehicle with the registration number etched on them, the gold chain and the purse were recovered. The alleged weapon of offence was also recovered for which separate FIR had been registered. Hon'ble High Court acquitted the appellants holding that the prosecution had failed to prove the last seen theory, the recoveries were doubtful and prosecution had failed to conclusively establish that the murder had been committed by the same firearm. Learned counsel for the accused has specially drawn my attention to paragraph 62 of the judgment State vs Harender @ Kake and anr. Page no. 18 of 55 SC No. 218/2017 wherein it has been observed that solitary circumstance, even if, held to be proved, is insufficient to conclusively prove the guilt.
7. Age determination of both accused 7.1 In the arrest memo of A1 Ex. PW16/F, his age is mentioned as 18 years. In the arrest memo of A2 Ex. PW16/I, his age is mentioned as 20 years. Police verified the age of both accused. Ex. PW9/B is the certificate issued by Good Samaritan School, Sanjay Camp, Dakshin Puri for A2. It is mentioned in the certificate that A2 took admission in the school on 19 th April 2002 against admission no. 671. His date of birth is mentioned as 21.12.1996 in the school register, copy of which has been placed on record as Ex. PW9/A. Prosecution has examined PW9 Sh. Ramesh Chandra , School Incharge of the school. He has proved Ex. PW9/A and Ex. PW9/B. He has not been crossexamined by the accused. In the statement u/s 313 Cr. PC the documents were put to A2 vide question no. 32 and he stated that the documents are matter of record. A2 has not disputed that he studied in the school. He has not disputed the documents and he has not contested the claim of the prosecution that his date of birth is 21.12.1996 as mentioned in the record of the school. The incident happened in the night of 16th and 17th January 2017. A2 was more than 20 years of age at the time of incident and hence, he was major.
7.2 For A1, prosecution has examined PW10 Mr. Dharampal . He deposed that he had been deputed by the Manager of Swablambi Shiksha Niketan Jansath, District Mujjafarnagar, UP for providing the details of date of State vs Harender @ Kake and anr. Page no. 19 of 55 SC No. 218/2017 birth of Harender Kumar. He produced the documents Ex. PW10/A and Ex. PW10/B. Original of these documents were seen and returned. Attested copies have been exhibited on record of the case. Ex. PW10/A is copy of the school register. As per this document, A1 was admitted in the school against admission no. 1305 and his date of birth is mentioned as 13.03.1995. Ex. PW10/B which is certificate issued by Smt. Kaushlya Devi (Head Mistress of the school) states that the accused was admitted in the school in ClassI on 11.07.2001. PW10 was crossexamined by Learned counsel for A1. PW10 stated that at present school was closed and he had not worked for Swablambi Shiksha Niketan at any point of time. In voluntary statement, he stated that he was younger brother of Sh. Ram Pal Singh, Manager of the school. He stated that he had not brought any authority letter from Sh. Ram Pal Singh or from Smt. Kaushlya Devi, however, he voluntarily added that he had brought the record. Correctness of the contents of Ex. PW10/A and B were not disputed in the crossexamination of PW10. These documents were put to the accused in his statement u/s 313 Cr. PC vide question no. 34 and his answer was he does not know. His answer in the statement u/s 313 Cr. PC is evasive. He has not claimed that he never studied in the school in question. He has not produced any document to dispute the correctness of Ex. PW10/A and B. Therefore, it has to be accepted that date of birth of A1 is 13.03.1995. At the time of incident, he was more than 21 years of age, and hence, a major.
State vs Harender @ Kake and anr. Page no. 20 of 55
SC No. 218/2017
7.3 Prosecution has successfully established that both A1 and A2
were major at the time of the incident.
Analysis of Evidence
8.1 Before I proceed to examine the evidence with reference to the
facts of the case and law, it would be appropriate to summarize the arguments of Ld. Addl. PP for State regarding the chain of circumstances on the basis of which the prosecution intends to prove its case:
(a) A1 and A2 appear in the CCTV footage at 11:46:22 pm on 17.01.2017 and they can be seen in the CCTV footage upto 11:57:30pm. The CCTV was installed at shop number J157, Dakshin Puri which is close to the place of incident. Their activity which is recorded in the CCTV creates suspicion that they were planning something and looking for a target.
(b) A1 and A2 were identified by PW13, PW14 and PW15 during investigation. PW13 did not support the prosecution during trial, however, PW 14 and PW15 identified both accused during trial from the CCTV footage as well as physically before the Court.
(c) PCR call was made by PW3 Sh. Mukesh from his mobile number 9599859210 at 00:22:21 hours on 17.01.2017 regarding quarrel in front of 18 number, Barat Ghar, Dakshin Puri. The place of incident was correctly mentioned by the PCR caller and the time of PCR call is close to the time when the accused are last seen in the CCTV footage. The nature of incident reported State vs Harender @ Kake and anr. Page no. 21 of 55 SC No. 218/2017 to the PCR is inconsonance with the story of the prosecution.
(d) With the help of secret informer, A1 and A2 were arrested on 20.01.2017. They made disclosure statements and got the recovery of their clothes and the knife effected. From A1, the purse of the deceased was also recovered. On the basis of the disclosure statement of A1 and A2, identity of the CCL was established. The witnesses could not identify the CCL from the CCTV footage as his face was covered. But for the disclosure statements of the accused, the CCL could not have been identified.
(e) The DNA profile of the blood on the jeans pant recovered from CCL matches with the DNA profile of the deceased. DNA profile could not be generated from the jacket and jeans pant of A2 but blood was detected on these clothes. DNA profile could not be generated for the knife which was recovered from A2 but the knife also had blood stains.
(f) The postmortem report shows that the intention of the accused and the CCL was to kill the victim. Recovery of the purse from the possession of A1 and the missing mobile phone of the victim shows that he was robbed .
The CCTV Footage: Can it be relied upon?
8.2 In the chargesheet it is stated that the IO searched for CCTV cameras near the place of incident and he came to know that a CCTV camera was installed outside shop no. J157, Dakshin Puri, New Delhi. Sh. Nitin Bansal met the IO at J157. IO checked the CCTV footage and found that at about 11:30pm on 16.01.2017 three boys were standing outside the shop in suspicious State vs Harender @ Kake and anr. Page no. 22 of 55 SC No. 218/2017 circumstances. He took the back up of the CCTV recording in a pen drive and served a notice on Sh. Nitin Bansal to provide the DVR. Sh. Nitin Bansal stated that he would submit the DVR after making arrangement for another DVR. PW 19 SI Satish Kumar and PW21/IO Inspector Ajab Singh have deposed the same facts before this Court. Sh. Nitin Bansal was examined as PW12. He deviated from his statement u/s 161 Cr. PC and deposed that on 17.01.2017 the police officers came to his shop and told him that they wanted to see the CCTV footage. He did not himself see the CCTV footage but he could identify the same if played before him. He further stated that the police officers took away the DVR but no document was prepared at that time. On the next day, when he visited the police station, he was told that his DVR had been seized. He signed the seizure memo of the DVR and CD which is Ex. PW12/A. The DVR was produced during his examination in the sealed condition and the DVR was exhibited as Ex. P1. He did not remember the details and the contents of the documents signed by him. The certificate u/s 65B of Indian Evidence Act was exhibited by him as Ex. PW12/B. 8.3 The testimony of PW12 is slightly at variance with the case of prosecution and his statement u/s 161 Cr. PC. According to the prosecution, back up of CCTV footage was taken on 17.01.2017 and the DVR was seized on 18.01.2017 whereas according to PW12 the DVR itself was taken by the police on 17.01.2017. The seizure memo Ex. PW12/A is dated 18.01.2017 and it is signed by PW12. There is no reason why the IO would not have prepared the State vs Harender @ Kake and anr. Page no. 23 of 55 SC No. 218/2017 seizure memo on 17.01.2017 itself, had he taken the DVR in possession on that day. The seizure memo shows that the DVR was seized on 18.01.2017. It is also to be noted that IO had no reason to take the DVR of PW12 or backup of the CCTV footage if it did not contain any recording which was relevant for the investigation of this case.
8.4 In his crossexamination PW12 stated that he could say whether the CCTV footage shown to him in the Court by playing the CD was tampered or not. However, in his voluntary statement, he stated that the footage shown to him shows the front of the shop and the position of the cars as well as the surrounding areas. He admitted that DVRs of same make are available in the market and the sticker on the back of the DVR containing the model and sl. no. was slightly torn. Nothing has emerged from the statement of PW12 to suggest that there was any tampering with the DVR. The CD was not prepared by PW 12 and therefore, he could not have issued the certificate Ex. PW12/B u/s 65 B of Indian Evidence Act 1872. However, it is to be noted that the original DVR itself was produced in the Court as Ex. P1 in sealed condition. If the accused wanted, the original DVR could also have been played. As the original DVR itself was produced, the certificate u/s 65B of Indian Evidence Act looses its significance as explained by Hon'ble Division Bench of Delhi High Court in Kundan Singh vs the State 2015 SCC OnLine Del. 13647.
8.5 The DVR was seized vide seizure memo Ex. PW12/A. It is stated in the seizure memo that the DVR was covered with cloth and sealed with the State vs Harender @ Kake and anr. Page no. 24 of 55 SC No. 218/2017 seal of ASB. PW18 HC Lekh Raj was the MHC (M) of PS Ambedkar Nagar during the relevant time. He has deposed that on 18.01.2017 the IO Inspector Ajab Singh deposited one sealed pullanda and the entry was made at sl no. 2253 in register no. 19. The copy of register no. 19 containing the relevant entry is Ex. PW18/B. In the crossexamination of PW18, he was asked about the writing from point X to X which reads as "jo DVR ko safed kapade main rakh ASB ki mohar se sarvmohar karke pullanda taiyar kiya gaya." In English, it would read as "The DVR was wrapped in white cloth and pullanda was prepared by sealing the same with the seal of ASB." PW18 replied that after drawing the line below entry no. 2253, he could not have made any alteration in the entry. After drawing the line, he checked the contents of the entry and realized that the complete facts had not been mentioned. Thereafter, he mentioned the contents at point X to X . The DVR was produced in sealed condition during the examination of PW12 Sh. Nitin Bansal. It was found to be sealed with the seal of ASB. After breaking the seal, the DVR was taken out and it was exhibited as Ex.P1. There is no reason to have the apprehension that the DVR was not sealed or that it might have been tampered with. 8.6 PW21 stated that the DVR had been sent to the FSL for examination but they did not accept it by saying that they do not examine DVRs. No document has been placed on record in this regard and this fact was also not mentioned in the chargesheet. It has already been observed that there is no reason to have the apprehension of tampering of the DVR. PW12 State vs Harender @ Kake and anr. Page no. 25 of 55 SC No. 218/2017 Sh. Nitin Bansal, who is owner of the DVR, moved an application for release of the DVR. The IO also moved an application for examination of expert in respect of the DVR. No objection was raised by the accused to the release of DVR. This Court disposed of the application vide order dated 17.03.2018. It was observed that the DVR was lying in the malkhana in unsealed condition and no useful purpose would be served by retaining the same. It was also observed that particulars/technical details of the DVR be noted before release. Application of the IO was kept pending and it was not subsequently pressed by the State.
8.7 As there is no apprehension of tampering of the DVR and there was no relevance of the certificate u/s 65B of Indian Evidence Act as the original DVR itself had been produced in the Court, it is held that the CCTV footage can be relied upon. The next question would be the identification of the accused.
Identification of the accused:
8.8 According to the prosecution, PW13 Islamuddin, PW14 Shobha and PW15 Vishal had identified A1 and A2 after seeing the CCTV footage during investigation. They could not identify the third accused (CCL) as he had covered his face. Before the Court, PW13 did not support the prosecution and he stated that he could not identify anyone from the CCTV footage. The CCTV footage was played during evidence. PW14 and PW15 identified A1 and A2 from the CCTV footage and they also identified them before the Court.
State vs Harender @ Kake and anr. Page no. 26 of 55
SC No. 218/2017
8.9 The arguments of Learned counsel for the accused regarding
doubts on the identification of the accused A1 and A2 on the basis of CCTV footage have already been mentioned above. In his crossexamination by Learned counsel for A1, PW21/IO deposed that the CCTV footage was shown to more than 20 persons including PW13 Islamuddin. Beside Islamuddin, 23 other persons had also identified A1 and A2 from the CCTV footage but they did not agree to become witness. PW13 is having a tea stall in the same area and he could have seen A1 and A2 but he turned hostile.
PW14 Ms. Shobha is residing in the same area and there is no reason to hold that she might not have seen A1 and A2 in the locality so as to enable her to identify them. She did not give their addresses of A1 and A2 as argued by Learned counsel for A1. PW15 Vishal was also earlier residing in the same area and he has been visiting the locality. Therefore, he also could have seen A1 and A2 earlier so as to enable him to identify them from the CCTV footage. It was suggested on behalf of the accused that A1 and A2 cannot be identified from the CCTV footage. This is totally incorrect. Even this Court could point out A1 and A2 from the CCTV footage having seen them physically before the Court. It is important to note that even if there is doubt about the claim of PW14 and PW15 that they had seen A1 and A2 earlier so as to enable them to identify the accused from the CCTV footage, fact remains that both of them can be seen in the CCTV footage and both of them can be identified. A1 and A2 have not taken any plea of alibi regarding the CCTV State vs Harender @ Kake and anr. Page no. 27 of 55 SC No. 218/2017 footage. They have not disclosed where they were if they were not present before J157 during the particular time for which they appear in the CCTV footage. In Pudhu Raja vs State (2012) 11 SCC 196, Hon'ble Supreme Court held that the accused should give explanation if he claims that he was not present at the spot. In the present case, there is no explanation from A1 and A2. In view of above discussion, it is held that A1 and A2 are identified in the CCTV footage and they were present in front of J157 from 11:46:22 pm to 11:57:30pm with the third person who had covered his face.
Relevance of the CCTV footage:
8.10 Learned counsel for accused raised the issue of relevance of CCTV footage. According to them, even if it is held that A1 and A2 appear in the CCTV footage, it does not connect them with the crime in any manner. 8.11 Had the CCTV captured the crime being committed, it would not have been a case of circumstantial evidence. The PCR call was made by PW 3 Sh. Mukesh. Form 1 of PCR is Ex. PW2/A. The call was made on 17.01.2017 at 0:22:21 hours and the call lasted upto 0:23:53 hours. The complaint was regarding "quarrel". The place of incident was described as "18 number Barat ghar ke samne, Dakshin Puri". The priority assigned to the call was "medium" . In his statement u/s 161 Cr. PC, the PCR caller Sh. Mukesh (PW3) stated that on 1617.01.2017 at about 1212:30 night , he had gone for walk after taking dinner. In front of block no. 18, Barat ghar, he saw that three boys were assaulting one person. He could not see the face of any one of State vs Harender @ Kake and anr. Page no. 28 of 55 SC No. 218/2017 them. He called the PCR from his mobile number 9599859210 and returned to his house. He further stated that the age of three boys who were assaulting the victim would be 2022 years. One boy was wearing white colour pant and black jacket, the second boy was wearing black colour jacket and black pant or payjama and the third boy was wearing white jacket and white pant. 8.12 While deposing before this Court, PW3 Sh. Mukesh Kumar deviated from his statement u/s 161 Cr. PC. He stated that on 17.01.2017 at about 12:00 night he was returning from his duty. At about 12.05am/12.10am, he reached block no. 18 in front of Barat ghar. He found a person lying there in injured condition. The injured told him his name which he did not remember at the time of deposition before the Court. The injured also gave number to him on which he called but the call was not answered. One Ct. Sandeep reached the spot and asked him to make call to the PCR on number 100. He made the call. Thereafter, on the direction of Ct. Sandeep, he alongwith his friend Sumit proceeded towards Batra Hospital with the injured in a three wheeler. As they reached near Khanpur, PCR van came and it took the injured to AIIMS Trauma Center.
8.13 Ld. Addl. PP has rightly argued that had the PCR call been made by PW3 while taking the victim to hospital in a TSR as deposed by him before this Court, the information would not have been of "quarrel", location would be of the place where PW3 was present with the victim in TSR and the priority assigned to the call by control room would not have been "medium". Had the State vs Harender @ Kake and anr. Page no. 29 of 55 SC No. 218/2017 call been made in the circumstances as described by PW3 before this Court, the information to the PCR would have been regarding "person being injured"
and considering the number of injuries, the priority would have been "high".
Even if we believe the statement of PW3 before the Court, his statement establishes that the injured was found in front of block no. 18, Barat ghar. The incident took place before 12.0512.10am. This is very close to 11:57:30pm when the accused and their associate are last seen in the CCTV footage in front of J157 which is close to the place of incident. After 11:57:30pm, they moved from J157 and shortly after the injured was found near block number 18, Barat ghar, in front of J125, Dakshin Puri. It has already been held that the CCTV footage can be relied upon in which A1 and A2 can be seen. There is no explanation at all by them as to where they went after leaving J157. This is an incriminating circumstance against them. The CCTV footage is therefore relevant and it is part of the chain of circumstances through which the prosecution proposes to establish the charges against the accused.
Arrest of A1 and A2 and the recoveries.
Arrest:
8.14 According to the prosecution, A1 and A2 were apprehended at Virat Chowk on 20.01.2017 at about 05:45pm on the pointing out of the secret informer. The purse containing currency notes, debit card of the deceased and the photographs were recovered from A1. Both of them made their disclosure statements which led to identification of the CCL and the other recoveries.
State vs Harender @ Kake and anr. Page no. 30 of 55
SC No. 218/2017
8.15 With the aid of a statement made by PW15 Sh. Vishal and the
testimony of PW22 Sandeep Kumar, Learned counsel for A1 and A2 have asserted that the claim of the prosecution that A1 and A2 were arrested on 20.01.2017 is not correct. PW15 stated in his crossexamination by Learned counsel for A2 dated 29.08.2017 at page 5 "after watching the CCTV footage in the afternoon on 18.01.2017 at my sister's house, I recognized both the accused persons therein, and soon thereafter I took the police officials at Sanjay Camp, though the accused persons had already been apprehended".
PW22 Sandeep Kumar is brother of CCL. He stated that on 17 th or 18th January 2017, his brother was standing outside his house. At about 05:00pm, some police officers came there and picked up his brother. They came to know that police had picked up many other boys also.
8.16 The discussion in the paragraphs to follow would show that PW 22 Sh. Sandeep Kumar is not truthful in his deposition. It is also to be noted that he did not say that he had seen A1 and A2 in the police station on 17 18.01.2017. Had A1 and A2 been already apprehended on 18.01.2017 as recorded in the crossexamination of PW15, there was no need for him to take police officers to the Sangam Vihar area. It is apparent that there is typographical error. It appears that the word "identified" got typed as "apprehended". It is not even the case of accused that they were apprehended on 18.01.2017. In their statements u/s 313 Cr. PC, they do not give the date and time on which they were allegedly called to the police station and falsely State vs Harender @ Kake and anr. Page no. 31 of 55 SC No. 218/2017 implicated in this case. In the crossexamination of PW19 SI Satish Kumar, it has been specifically put by Learned counsel for A1 that the accused was called to the police station on 20.01.2017 and arrested. Accused have never claimed that there is any error in recording of the date in the crossexamination of PW19. It is also to be noted that in the crossexamination of PW19, the date of arrest was not a mere suggestion but it was a positive assertion. These facts show that the accused were arrested on 20.01.2017. The next question is about the place of arrest and the recoveries.
8.17 There are some contradictions in the statements of the police officials regarding the arrest of the accused on the pointing out of secret informer at Virat ground and there is no independent public witness to the arrest. PW16 Ct. Anil Kumar stated in his crossexamination that he could not tell the side from which the two boys were coming. PW19 also stated that he did not remember the side from which the accused were coming. PW19 stated that they had gone in a maruti swift car. He also stated that he did not know whether the secret informer was present at Peepal chowk before they went to Virat chowk or the IO called the secret informer. He further stated that after arresting the accused, they went in the same swift car. PW21/IO Inspector Ajab Singh stated that the secret informer left the police station with the police party and they had gone on foot. He further stated that they returned also on foot. PW19 stated that IO had given information to the family of the accused persons but he did not remember whether he had given the information by State vs Harender @ Kake and anr. Page no. 32 of 55 SC No. 218/2017 phone or he sent someone. He further stated that no family member of the accused came at the spot where they were arrested. PW21/IO stated that information of arrest was given to the family of A1 and A2 by him and by PW 19 SI Satish.
8.18 While considering whether the police officials PW16, PW19, PW20 and PW21 are consistent, their statements are to be considered as a whole. Some portions of their statements would not make their deposition doubtful if it is found that they are truthful and their statements when considered as a whole are reliable. Contradictions are bound to appear specially when the witnesses are crossexamined at length. It would be appropriate to take note of observations made by Hon'ble Supreme Court in this regard in the matter of Iqbal Moosa Patel vs. State of Gujarat (2011) 2 SCC 198, Hon'ble Supreme Court referred to its earlier decision in Sucha Singh vs State of Punjab wherein it was observed that, "Case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are thrown to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish."
State vs Harender @ Kake and anr. Page no. 33 of 55
SC No. 218/2017
8.19 Though there are some discrepancies in the statements of the
police officers regarding the manner in which the arrest happened on 20.01.2017 at Virat chowk, they are consistent on the point that both accused were apprehended at Virat ground, on 20.01.2017. They are consistent regarding the manner in which both of them were overpowered. PW21/IO stated in his crossexamination dated 03.04.2018 that father of A2 came to Virat ground within 1015 minutes of telephonic information and he signed the arrest memo as a witness. He remained there for 1015 minutes and thereafter, left. PW21 further stated that father of A1 had also come there, after sometime of arrival of father of A2. The arrest memo of A1 is Ex. PW16/F and it is signed by his father Sh. Vinod Kumar. The place of arrest is shown as Virat ground, Dakshin Puri, the date of arrest is 20.01.2017 and the time of arrest is 06:30pm. The arrest memo of A2 is Ex. PW16/I and it is signed by his father Sh. Shyam Lal. The place of arrest is mentioned as Virat ground, Dakshin Puri, the date of arrest is 20.01.2017 and the time of arrest is 07:20pm. No complaint was made by the father of A1 and by the father of A2 that they had been made to sign the arrest memos after the accused were called to the police station and arrested.
8.20 There are no public witnesses to the arrest of A1 and A2, though they were arrested from a busy place. The testimony of the police officers cannot be doubted only because of absence of the public witnesses. People are reluctant to join investigations. What happens by joining of State vs Harender @ Kake and anr. Page no. 34 of 55 SC No. 218/2017 independent public witness, can be seen in this case by the testimony of PW 13 Islamuddin or PW22 Sandeep Kumar. Father of A1 and father of A2 signed the arrest memos which show the place of arrest as Virat ground. PW 16, PW19, PW20 and PW21 are consistent regarding what happened at the time of apprehension of the accused at Virat ground. They are also consistent about the proceedings conducted after their arrest. It is also to be noted that if the police wanted to concoct the story regarding place of arrest, they could have shown the arrest from a deserted place rather than showing it from a busy place like Virat chowk where Virat ground is situated. PWs were questioned about weekly market at Virat chowk and they answered that they did not remember about the weekly market. They also added that due to Republic Day approaching, weekly market might not have been held at Virat chowk on 20.01.2017. A1 and A2 had not brought any material on record to show that there was a weekly market at Virat chowk on 20.01.2017. Taking into consideration totality of facts and circumstances, absence of public witnesses also is not fatal to the case of prosecution.
Recovery of purse Ex. P1 from A1:
8.21 After A1 and A2 were apprehended at Virat ground, their body search was conducted and the purse Ex. P1 was recovered from A1. The seizure memo shows that the purse was seized by the IO/PW21. It is not material whether PW21 had himself searched the person of A1 or he was searched by one of the constables on his direction. The purse contained State vs Harender @ Kake and anr. Page no. 35 of 55 SC No. 218/2017 currency notes of Rs. 1600/ (three currency notes of Rs. 500/ and one of Rs.
100), a debit card in the name of deceased and three photographs. The three currency notes of Rs. 500/ each were the new currency notes in circulation after demonetization. In the examinationinchief of PW20 dated 05.12.2017 at page 4, the currency notes were mentioned as the old ones which were in circulation before the demonetization. However, in the same statement at page 8, he stated that due to lapse of time he had forgotten whether the currency notes were old or new. He identified the currency notes found in the purse as the same which were recovered from the accused. Other PWs were consistent on this point. Ideally, the IO should have got the TIP of the purse conducted but he did not. Deposing as PW21,he stated that he did not get the TIP done as the purse had the photographs of the deceased and his family. The purse contained photographs of the deceased, his wife and child. The purse also had a debit card in the name of the deceased. Therefore, failure of the IO to get the TIP of the purse conducted does not go to the root of the matter. 8.22 Learned counsel for A2 argued that the documents of identification are generally kept in wallet and not in a bag. No documents of identification were found in the purse/wallet Ex. P1 and this creates suspicion of planting of purse. Normally, a person would be carrying his wallet while returning from duty. Form1 of PCR Ex. PW2/A mentions the articles which were found with the deceased. These articles did not include wallet/purse and mobile phone. Though, Ex. PW2/A does not prove that the deceased was State vs Harender @ Kake and anr. Page no. 36 of 55 SC No. 218/2017 carrying a purse and a mobile when he was attacked, it definitely shows that these articles were not found with him when he was taken to the hospital. If police had to plant the purse on A1, they would also have planted something on A2 at Virat ground itself.
Disclosure statement of the accused, facts recovered on the basis of the disclosure statement, the subsequent recoveries and their relevance:
8.23 After the arrest the disclosure statements of A1 and A2 were recorded. The disclosure statement of A1 is Ex. PW16/H and disclosure statement of A2 is Ex. PW16/K. PW19 stated that the disclosure statements were recorded at Virat ground. PW21/IO stated that he did not remember whether the disclosure statements were recorded in the police station or at the place of arrest. This is not a major contradiction. The identity of the third person, who was the CCL, was disclosed by the disclosure statements of A1 and A2.
Face of the CCL was covered in the video footage and the persons to whom the CCTV footage was shown during the investigation, had not been able to identify the CCL. But for the disclosure statements of A1 and A2, identity of CCL would not have been established. The disclosure statements of A1 and A2 led to discovery of the fact that the third person was the CCL and to this extent their statements are admissible u/s 27 of Indian Evidence Act. Their statements are also admissible u/s 27 of Indian Evidence Act in respect of the recoveries effected from their houses at their instance.
State vs Harender @ Kake and anr. Page no. 37 of 55
SC No. 218/2017
8.24 A1 and A2 pointed out the place of incident. The pointing out
memo of A1 is Ex. PW16/C and the pointing out memo of A2 is Ex. PW16/M. The place of incident was already known to the police officers, however, pointing out of the place of incident by A1 and A2 is a relevant fact u/s 8 of Indian Evidence Act. Reliance in this regard is placed on the judgment by Hon'ble Supreme Court in State (NCT of Delhi) vs Navjot Sandhu (2005) 11 SCC 600. The place of incident was correctly identified by A1 and A2. 8.25 A1 disclosed that the lower/payjama and shoes worn by him at the time of incident had lot of blood stains and therefore, he had thrown them in a garbage dump near Jblock dispensary, Dakshin Puri. The lower and the shoes of A1 could not be recovered. The nonrecovery memo is Ex. PW21/E. 8.26 Recoveries were effected from the house of A1 and A2 on their pointing out. The recovery memo for A1 is Ex. PW16/N and the recovery memo for A2 is Ex. PW20/B. These memos are not signed by the family members of A1 and A2, who might have been present at the house and they also not signed by any independent public witness. This fact has been highlighted by Learned counsel for A1 and A2 to cast a doubt on the recoveries from the house of A1 and A2.
8.27 In the matter of Himachal Pradesh Administration vs Sh. Om Prakash (1972) 1 SCC 249 in paragraph 10 of the judgment, Hon'ble Supreme Court observed:
State vs Harender @ Kake and anr. Page no. 38 of 55 SC No. 218/2017 "in an investigation u/s 157 Cr. PC, the recoveries can be proved even by the solitary evidence of the investigating officer if the evidence could otherwise be believed."
8.28 In Gian Chand and others vs State of Haryana (2013) 14 SCC 420, Hon'ble Supreme Court held that mere nonjoining of any independent witness where evidence of prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on prosecution version if there seems to be no reason on record to falsely implicate the accused. 8.29 A1 and A2 have not given any reason for the police officers to falsely implicate them. PW22/Sh. Sandeepbrother of CCL could also not give any reason for the police to falsely implicate his brother. Even if the family members of A1 and A2 were joined as witnesses to the recovery memos, they were not expected to support the prosecution as has happened in the case of PW22 Sh. Sandeep Kumar, who has not supported the prosecution despite being witness to all proceedings and recoveries in respect of the CCL. It is also to be noted that the requirement of public witnesses as provided u/s 100 Cr. PC is not applicable where the accused himself leads police to the recovery. Reliance in this regard is placed on the judgements by Hon'ble Supreme Court in State vs Sunil (2001) 1 SCC 652, Dr. Sunil Clifford Daniel vs State of Punjab (2012) 11 SCC 205 and Ashok Kumar Chaudhary vs State of Bihar (2008) 12 SCC 173.
State vs Harender @ Kake and anr. Page no. 39 of 55
SC No. 218/2017
8.30 From the house of A1 one leather jacket with blood stains was
recovered vide seizure memo PW16/N. The jacket was converted into a parcel (pullanda) and sealed with the seal of the IO (ASB). The sealed parcel was deposited in the malkhana vide entry no. 2258. Copy of register no. 19 is Ex. PW18/C. The sealed parcel containing the jacket was sent to the FSL vide RC Ex. PW18/F. The FSL report Ex. PW21/G mentions that parcel 9 was received with the seal of ASB containing Ex. 9 (blood stained cloth of Harender Kumar). These facts show that the seal of the parcel was intact when it was delivered to the FSL. The jacket has been exhibited as Ex. P2. During the examination of PW16 Ct. Anil Kumar , the envelope (parcel 9) was produced. The parcel was duly sealed with the seal of FSL (IM FSL DELHI). The envelope also had the FSL number. On opening the envelope, it was found to contain the leather jacket Ex. P2. The jacket had been cut at different places by the FSL for examination of the blood stains.
8.31 The FSL report Ex. PW21/G states that blood could not be detected on the jacket of A1.
8.32 From the house of A2 one light green shirt, one dark blue jeans with blood stains, one multicoloured sweat shirt with blood stains and pair of shoes with blood stains were recovered. The specific identification marks of these articles are mentioned in the seizure memo Ex. PW20/B. The knife allegedly used in committing the offence was also recovered at the instance of A2. The knife had been kept under the bed (palang). Learned counsel for the State vs Harender @ Kake and anr. Page no. 40 of 55 SC No. 218/2017 accused argued that there are discrepancies in the statement of witnesses regarding recovery of the knife at the instance of A2. PW16 stated that the knife was kept under some clothes. PW19 stated that the knife was lying on one side and the clothes were lying on the other side. PW20 stated that the knife was wrapped in cloth. These are not major contradictions. All PWs are consistent on the point that the knife was kept under the bed (palang). Seizure memo of knife is Ex. PW20/C. The recoveries made at the instance of A2 were sealed . They were deposited in the malkhana vide entry no. 2258 Ex. PW18/C. They were sent to the FSL vide RC Ex. PW18/F. The FSL report Ex. PW21/G shows that parcel 10a to 10d containing the clothes and shoes of A2 and parcel 11 containing the knife were received in sealed condition with the seal of ASB. Parcel no. 10 and 11 were produced during the examination of PW16. They were duly sealed with the seal of FSL (IMFSL DELHI). Parcel 10 contained the clothes of A2 which were collectively exhibited as Ex. P2 and parcel 11 contained the knife which has been exhibited as Ex. P4. The FSL result Ex. PW 21/G mentions that blood was detected on Ex. 10b (jacket of A
2) and on Ex. 10c (jeans pant of A2). Blood was also detected on Ex. 11 (the knife). The 12 parcels which included parcels 9, 10 and 11 had been received by the FSL against acknowledgement Ex. PW8/A. 8.33 It was argued by Learned counsel for A1 and A2 that prosecution has not proved that the injuries could have been caused to the victim by use of knife Ex. P4. The FSL result also does not say that blood on State vs Harender @ Kake and anr. Page no. 41 of 55 SC No. 218/2017 the clothes of A2 and on the knife were of human origin. It only says that blood was detected. The DNA profile could also not be generated on the clothes of A2 and on the knife. Effect of these facts also needs to be considered. I shall firstly take up the issue regarding failure of the police to take opinion of the doctor regarding possibility of the injuries being caused by the knife Ex. P4.
8.34 The MLC of the deceased of Ex. PW1/A mentions stab wounds. The postmortem report also corroborates that the injuries were stab wounds. Ex. P4 is a big size knife and injuries could have been caused by use of this knife. In Gurbachan Singh vs State of Punjab (1963) 3 SCR 585, the issue regarding failure of police to take opinion regarding the weapon of offence came up for consideration. Hon'ble Supreme Court held that failure was not fatal as the weapon recovered was a gun and the injury was a gun shot injury. The failure would have been material had the weapon recovered been a rifle in place of a gun. Coming to the present case, the injuries were stab wounds. Ex. P4 is a knife which is an instrument of stabbing and cutting. Therefore, failure of the investigating officer to take opinion of the doctor regarding use of Ex. P 4 is not material.
8.35 Now, I shall consider the effect of the observations in the FSL report which have been noted above in respect of Ex. 10b, 10c (collectively Ex. P3 before the Court) and the knife Ex. P4. In State of Rajasthan vs Teja Ram and others (1999) 3 SCC 507 similar issue came up for consideration.
State vs Harender @ Kake and anr. Page no. 42 of 55 SC No. 218/2017 Blood was detected on two axes but the report confirmed presence of blood of human origin on one axe only. Regarding the other axe, the report stated that it contained blood stain but there was no specific report that the blood was of human origin. Hon'ble Supreme Court observed that:
"failure of the Serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such a guess work that blood on the other axe would have been animal blood is unrealistic and far fetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused."
8.36 There were blood stains on the jacket of A1. The blood might not have been detected by the FSL due to insufficiency or haematological changes. Blood was detected on clothes (10b and 10c) of A2. Blood was also detected on the knife Ex. P4 recovered from the house of A2. Nonmentioning of the State vs Harender @ Kake and anr. Page no. 43 of 55 SC No. 218/2017 origin of the blood and nongeneration of the DNA profile of the blood on these exhibits can be for the reasons as explained by Hon'ble Supreme Court in Teja Ram's case (supra). Accused did not request for calling of the FSL expert to clear the doubts if any on the FSL report Ex. PW21/G and it was exhibited by the prosecution in view of the provision u/s 293 Cr. PC. If the accused wanted to dispute Ex. PW21/G, they had to move application to call the FSL expert for examination. A1 and A2 have no explanation regarding the blood stains on the exhibits mentioned above. This goes against them and forms part of chain of circumstances against them.
8.37 Lengthy crossexamination of the four police officials was done by Learned counsel for A1 and A2 on the point of inquiry from public persons near the place of incident and joining of public persons into the proceedings conducted at the place of incident. The incident happened in night on a winter day. There was no relevance of joining any public person in the proceedings at the spot if they had not seen the incident. Learned counsel for A1 and A2 also raised the issue as to why the accused and CCL would keep the blood stained cloth and knife and why they would leave the other articles of the deceased specially the golden wrist watch if they had committed the offence. They had sufficient time to dispose of the blood stained clothes and knife. According to Learned counsel, the exhibits were planted to falsely implicate the accused. Court is not to speculate as to why the accused did not dispose of the exhibits and why they did not take away the other belongings of the deceased. The State vs Harender @ Kake and anr. Page no. 44 of 55 SC No. 218/2017 Court has to examine the evidence and to see whether prosecution has proved the recoveries beyond reasonable doubt and whether incriminating circumstances had been established beyond reasonable doubt. Taking into consideration the evidence discussed above, prosecution has proved the recoveries and the incriminating circumstances beyond reasonable doubt.
Apprehension of CCL, the recovery from him and its relevance:
8.38 The CCL was apprehended on 21.01.2017 at 06:15am from his residence i.e. J243, Dakshin Puri in the presence of his brother PW22 Sandeep Kumar vide apprehension memo mark X. His personal search was conducted vide memo mark Y. His social background report is also mark Y. His version was recorded vide mark Z to Z5 which is signed by PW19 SI Satish Kumar, who is also CWPO for PS Ambedkar Nagar, by IO/PW21 and by Sandeep Kumar/PW22. Sandeep Kumar signed the document as guardian of the CCL. The CCL pointed out the place of incident vide memo mark Z3.
Pointing out of the place of incident by the CCL is a relevant fact u/s 8 of Indian Evidence Act.
8.39 Blood stained jeans of the CCL was seized vide memo mark Z which was prepared by PW21, signed by PW19 and PW20 as witnesses and signed by PW22 as the guardian of the CCL. Mark Z1 is the site plan in respect of recovery of the jeans pant of the CCL. PW22 signed mark Z. The CCL disclosed that he had thrown the mobile phone of the deceased in a drain at Chirag Delhi. The mobile phone could not be recovered and the non State vs Harender @ Kake and anr. Page no. 45 of 55 SC No. 218/2017 recovery memo is mark Z4 which is also signed by PW22.
8.40 The jeans pant of the CCL was sealed with the seal of the IO (ASB) and deposited in malkhana against sl. no. 2258. Copy of register no. 19 is Ex. PW18/D. It was sent to the FSL vide RC Ex. PW18/F. Acknowledgement/receipt of FSL is Ex.PW8/A. The FSL report Ex. PW21/G shows that parcel 12 containing Ex. 12 (jeans pant of the CCL) was received in sealed condition with the seal of ASB. The seal of the IO was intact. The FSL report Ex. PW21/G shows that DNA examination of the source exhibits 1a to 1i (clothes of the deceased Suresh) , Ex. 2 (blood gauze of deceased Suresh), Ex. 3 (cotton wool swab), Ex. 4 (cotton wool swab), Ex. 6 (cotton wool swab), Ex. 7 (cotton wool swab), Ex. 8 (earth material), Ex. 10b and 10c (blood stained clothes of accused Lalit) , Ex. 11 (knife) and Ex. 12 (clothes of CCL) was done. The DNA examination of these exhibits was done as blood had been detected on them as mentioned in the earlier part of the report. 8.41 Ex. 1 to 7 which were subjected to DNA examination had been handed over to the police by the Department of Forensic Medicine, JPNATC, AIIMS, New Delhi. These exhibits had been deposited by the IO in the malkhana vide no. 2249. Copy of register no. 19 is Ex. PW18/A. The exhibits were received by the FSL vide acknowledgement Ex. PW8/A. The FSL report shows that the evidence were received by them with the seals intact. In the FSL report , parcel 12 has been wrongly mentioned as "one sealed cloth parcel sealed with the seal of ASB containing exhibits described as clothes of State vs Harender @ Kake and anr. Page no. 46 of 55 SC No. 218/2017 deceased". However, the corresponding exhibit i.e. Ex. 12 is correctly mentioned in the report as one jeans pant described as "clothes of CCL Alok". Description of the contents of the parcel was mentioned on the RC. It is apparent that there is typographical error while mentioning the description of parcel 12 in the report Ex. PW21/G. The FSL examined the jeans pant of CCL for DNA profile. The jeans pant has been exhibited before the Court as Ex. P
5. When the parcel no. 12 containing the jeans pant was produced before the Court, it was sealed with the seal of FSL (IMFSL DELHI) and the seal was intact.
8.42 The report Ex. PW21/G discloses that the DNA profile of blood on the jeans pant of the CCL (Ex. P5) matched with the DNA profile generated from the source i.e. Ex. 2 (blood gauze of the deceased). The DNA profile from the source Ex. 2 also matched with the DNA profile on Ex. 1 to 6 which were subjected to DNA examination as mentioned above.
8.43 While deposing before this Court, PW22 Sandeep Kumar did not support the prosecution. He signed all documents mentioned above. However, he denied that those documents were prepared in his presence. He was cross examined by Ld. Addl. PP for the State. Court Questions were also put to him. He is a graduate from Open School of Learning, South Campus, Delhi University. He is not an uneducated person. He could read and understand the contents of the documents signed by him. His father and one of the brother work in American Embassy. One of his brother is working in MCD. His State vs Harender @ Kake and anr. Page no. 47 of 55 SC No. 218/2017 background is not such that his family did not know what to do if the CCL had been illegally detained by the police as alleged by him. He stated that his father visited a lawyer. However, no complaint was made against the alleged illegal detention of the CCL. It is clear that PW22 has intentionally not supported the prosecution and has made false statement on oath. 8.44 To create doubt on the story of the prosecution, Learned counsel for accused submitted that there is no explanation as to why the police did not conduct raid at the house of the CCL on 20.01.2017 itself when they had allegedly come to know about the CCL from the disclosure of A1 and A2. House of the CCL was close to the police station and while going for the MLC of A1 and A2, the police party took the route which was close to the house of CCL. In view of the law laid down by Hon'ble Supreme Court in Gian Chand's case (supra) , this question should have been asked from the witnesses. They would have given the explanation if this question was asked. It is also to be noted that the police party returned to the police station late in the night on 20.01.2017 after getting the MLC of A1 and A2 conducted. Raid was conducted at the house of the CCL in the early morning of 21.01.2017. 8.45 To raise doubt about the case of prosecution, Learned counsel for A2 raised the question about the presence of brother of deceased at AIIMS Trauma Center, when the IO went there. The information was received by PS Ambedkar Nagar from AIIMS Trauma Center at 01:40am and the information was recorded vide DD no. 4A. In the DD entry name of the victim was State vs Harender @ Kake and anr. Page no. 48 of 55 SC No. 218/2017 mentioned. Name and address of the victim are also mentioned in the PCR form Ex. PW2/A. His name and address could have been ascertained from the documents in his bag. PW14 (wife of the deceased) stated that in the night some police officers came to her residence and informed her that her husband had met with an accident. Brother of the deceased could have reached the hospital on the information given to the family of deceased by the police officers. This creates no doubt about the case of the prosecution. It is also to be noted that if there was any doubt created by the brother of the deceased at the hospital when the IO reached there, question should have been put to the IO to seek explanation.
Conclusion:
9.1 There are some discrepancies in the testimony of the witnesses, however, the same do not go to the root of the matter. Some observations by Hon'ble Supreme Court on the point of doubt have already been mentioned above. It would be pertinent to take note of some more observations by Hon'ble Supreme Court. In paragraph 15 of Suresh Chand Jana vs State of W. B. (2017) 16 SCC 466, Hon'ble Supreme Court observed that, "it is almost impossible to come across a single case where the investigation was completely flawless or absolutely foolproof. The function of the criminal Court is to find out the truth and it is not the correct approach to simply pick up the minor lapses of the investigation and acquit the accused, particularly when the State vs Harender @ Kake and anr. Page no. 49 of 55 SC No. 218/2017 ring of truth is undisturbed.
In paragraph 16, Hon'ble Supreme Court held that "it is not every doubt but only a reasonable doubt of which benefit can be given to the accused. A doubt of a timid mind which is afraid of logical consequences, cannot be said to be a reasonable doubt. The experienced, able and astute defence lawyers do raise doubts and uncertainties in respect of evidence adduced against the accused by marshaling the evidence, but what is to be borne in mind is whether testimony of the witnesses before the Court is natural, truthful in substance or not. The accused is entitled to get benefit of only reasonable doubt i.e. the doubt which a rational thinking man would reasonably, honestly, and conscientiously entertained and not the doubt of a vacillating mind that has no moral courage and prefers to take shelters itself in a vain and idle scepticism. The administration of justice has to protect the society and it cannot ignore the victim altogether who has died and cannot cry before it. If the benefits of all kinds of doubts raised on behalf of the accused are accepted, it will result in deflecting the course of justice. The cherished principles of golden thread of proof of reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.
State vs Harender @ Kake and anr. Page no. 50 of 55
SC No. 218/2017
9.2 In State of Haryana vs Bhagirath and others (1999) 5 SCC 96,
Hon'ble Supreme Court held in paragraph 8 of the judgment that "it is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal Court would be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is in capable of definition . The modern thinking is in the favour of the view that proof beyond a reasonable doubt is the same as the proof which affords moral certainty to the judge." In paragraph 9 of the judgement Hon'ble Supreme Court quoted passage from Francis Wharton's book Wharton's Criminal Evidence (page 31, Vol.I of the 12 th Edition) and the passage reads as "it is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in Webster case. He says : 'it is not mere possible doubt, because everything related to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel and abiding conviction to a moral certainty of the truth of the charge."
9.3 PW16, PW19, PW20 and PW21 are the police officers who were part of investigation. All of them were examined before me. I had the opportunity to see their demeanor. They appeared truthful in their deposition.
State vs Harender @ Kake and anr. Page no. 51 of 55 SC No. 218/2017 Accused have not offered any explanation to the material piece of evidence put to them in their examination u/s 313 Cr. PC and adverse inference is liable to be drawn against them as held by Hon'ble Supreme Court in Phula Singh vs State of Himachal Pradesh AIR 2014 SC 1256.
9.4 Prosecution has successfully established the complete chain of circumstances as below:
(a) A1, A2 and the CCL were present in front of J157 which is near the scene of crime. Just after they moved from J157 and went out of the focus of CCTV camera, information was received by the PCR regarding the deceased lying in front of 18 number Barat ghar, Dakshin Puri. A1 and A2 have given no explanation as to where they went after moving from J157.
Their movement captured by the CCTV creates suspicion and it shows that they were looking for a target.
(b) The victim sustained stab injuries which were sufficient in the ordinary course of nature to cause death. His purse was missing which was subsequently recovered from A1. This shows that deadly weapon was used in commission of the robbery in course of which the victim was murdered.
(c) Blood stained jacket was recovered from A1. Blood stained clothes and knife were recovered from A2. They have not given any explanation as to how blood stains were there on their clothes and knife. Knife had been used to cause injuries to the victim. The natural inference which is further cemented by match of DNA profile on the jeans pant of CCL with the State vs Harender @ Kake and anr. Page no. 52 of 55 SC No. 218/2017 DNA profile of the deceased is that A1 and A2 committed the offence of robbery and murder in furtherance of the common intention shared by them with the CCL and in course of the offence the blood stains were there on the clothes and the knife.
(d) Identity of the CCL was disclosed by A1 and A2 in their disclosure statements. But for their disclosure statements, identity of the CCL could not have been established. On their disclosure, CCL was identified and jeans pant was recovered from him. The DNA profile of the blood stain on the jeans pant of the CCL matched with the DNA profile of the deceased. This shows that A1, A2 and the CCL committed the offence in course of which blood stains were caused on their clothes and knife.
9.5 Prosecution has established the complete chain of circumstances beyond reasonable doubt. The chain of circumstances are not only consistent with the hypothesis of guilt of the accused but also wholly inconsistent with the hypothesis of their innocence. A1 and A2 were charged u/s 302/34 IPC and 397/34 IPC. A1 was separately charged u/s 411 IPC also. Murder is defined u/s 300 IPC. The postmortem report Ex. PW6/A shows that the injuries inflicted upon the deceased were sufficient in the ordinary course of nature to cause death. The report specifically says that injury no. 4 individually and combined is fatal in ordinary course of nature/sufficient to cause death in ordinary course of nature. It is established beyond reasonable doubt that particular injuries as recorded in the MLC Ex. PW1/A and the postmortem State vs Harender @ Kake and anr. Page no. 53 of 55 SC No. 218/2017 report Ex. PW6/A were intentionally caused to the victim in furtherance of the common intention. The ingredients of Section 300 IPC are fully established beyond reasonable doubt. The murder was committed in course of committing robbery by use of a deadly weapon and therefore, it is also established beyond reasonable doubt that robbery punishable u/s 397 IPC was committed by the accused persons in furtherance of their common intention. A1 was part of the robbery when the stolen purse was recovered from him. Therefore, Section 411 IPC is not attracted. Section 411 IPC would have been applicable against a receiver of the stolen goods. It does not apply against an accused who himself committed the offence and retained the stolen article. 9.6 Prosecution has proved the charge against A1 and A2 u/s 397/34 IPC and Section 302/34 IPC. The charge u/s 411 IPC against A1 is to be dropped. It has been held that PW22 Sandeep Kumar intentionally did not support the prosecution and made false statement before this Court on oath. Such practice needs to be curbed to maintain the purity of fountain of justice. It is necessary and expedient in the interest of justice that PW22 Sh. Sandeep Kumar be tried by this Court u/s 344 Cr. PC. Cognizance of offence u/s 193 IPC is taken against PW22 Sh. Sandeep Kumar.
Order :
10.1 Notice be issued to PW22 Sh. Sandeep Kumar u/s 344 Cr. PC to show cause as to why he be not punished for giving false evidence before this Court on oath which amounts to an offence u/s 193 IPC.
State vs Harender @ Kake and anr. Page no. 54 of 55
SC No. 218/2017
10.2 The accused A1 (Harender Kumar @ Kake s/o Vinod Kumar)
and A2 (Lalit @ Ishu s/o Shyam Lal) are convicted for the offences punishable u/s 397/34 IPC and for the offence punishable u/s 302/34 IPC. The charge against A1 (Harender Kumar @ Kake) u/s 411 IPC is dropped.
(announced in the (Rajesh Kumar Singh ) Digitally signed by open Court on RAJESH Special Judge (NDPS)/ASJ RAJESH KUMAR 18th October 2018) KUMAR SINGH South District: Saket SINGH Date: 2018.10.18 15:33:52 +0530 State vs Harender @ Kake and anr. Page no. 55 of 55 SC No. 218/2017