Delhi District Court
State vs . Furkan Etc. on 3 April, 2008
IN THE COURT OF SHRI SANJAY SHARMA : ADDL. SESSIONS JUDGE
KARKARDOOMA COURTS : DELHI.
Sessions Case No. 38/07
State Vs. Furkan Etc.
FIR No. 327/04
Under Section :120B/302/396/412/109/120B/34
IPC r/w Section 25/27 Arms Act.
PS Vivek Vihar
1. Furkan S/o Momin Ahmed
R/o: Village Radhna, P.S. Kithore,
District: Meerut, U.P.
2. Abdul Majid S/o: Furkan @ Kalwa
R/o: Village Radhna, P.S. Kithore,
District: Meerut, U.P.
3. Anwar S/o: Abdul Sattar
R/o: Village Radhna, P.S. Kithore,
District: Meerut, U.P.
4. Atta-Ur-Rehman @ Ata S/o: Juber Alam
R/o:Haat Gaon, PO Tarbi, PS Palasi, Distt:Araria,
Bihar.
5.Shokeen S/o: Insaf Ali
R/o: Village Radhna, P.S. Kithore,
District: Meerut, U.P.
6. Noor Mohd. @ Hafiz S/o: Habib Hassan @ Habibur Hassan
R/o: Village: Aseelpur, PS Kithore, Distt. Meerut, U.P.
7. Sanjay Paul @ Sanjay S/o: Rohtash Singh R/o:
Village:Jharoda, P.S. Kithore,
District: Meerut, U.P.
Date of Institution of Case : 03.12.2004
Date on which judgment Reserved : 18.3.2008
Date on which judgment delivered : 1.04.2008
JUDGMENT :
The case of the prosecution as presented in the charge sheet is to the effect that deceased Praveen R/o: Flat no. 96A, DDA flats, Jhilmil Colony, Delhi was dealing in Hawala racket alongwith his maternal uncle 1 Paras Chand Jain, a resident of Village and PO Jokihat District: Arariya, Bihar. Their modus operandi was that the deceased used to collect money through his collection boys from the labourers who were the natives of Bihar and around the area of the residence of Paras Chand Jain at Bihar. In exchange, Paras Chand Jain used to fulfill the needs of the family members of those labourers at their native places by supplying them goods as well as money.
2. It is alleged that the accused persons namely Furkan, Abdul Majid, Anwar, Atta Ur Rehman , Shokeen, Noor Mohd. @ Hafiz and Sanjay Paul entered into a criminal conspiracy to rob the Hawala money used to be received by the deceased. Accused Noor Mohd. @ Hafiz initiated the conspiracy and other accused joined it one after the other. In pursuance to their criminal conspiracy, accused Shokeen and Noor Mohd. @ Hafiz visited the house of the deceased on 14.8.04 on the pretext of handing over to him some cash for Hawala transaction but could not meet the deceased on that day. However, they met the father and younger brother of the deceased who offered them to hand over the money to them but the accused refused. The said accused again came to the house of the deceased on 16.8.04 at about 11 am. The deceased was again not present at his house and only his father Santokh Chand Jain was present who asked them to wait for the deceased. After sometime deceased Praveen came there and in the presence of Santokh Chand they met him and who also told the deceased that they had come to give money to him for sending the same to Bihar. At that time, one Guddu also a resident of Bihar came there with the cash collection and he alongwith the deceased went in the inner room for counting the cash. In the meanwhile, accused 2 Anwar entered the house, introducing himself as a rickshaw puller and demanded Rs. 15/- as fare for bringing the accused Shokeen and Noor Mohd. to their house. He was paid the fare and he went away. At about 12.15 pm, Santokh Chand went away from the house for Shahdara. He returned back at 1.30 pm and found the door of his house opened and on entering the inner room he found the deceased lying upside down in the double bed with his mouth gagged and hands tied with the jeans trouser. His legs were also tied with the bed sheet and mouth was tied with the saree of his mother. He also found a lot of blood lying on the floor. He informed the police who reached the spot and also found a country made pistol with a misfired cartridge inside, lying on the table of the room. Two pairs of clothes stained with blood were also found in the room which were left by the accused. On untying the dead body, the police found a belt wrapped around the neck of the deceased with which he was strangulated. One suitcase belonging to the brother in law of Santokh Chand was also found missing. One comb stained with blood and two bundles of biries were also found lying at the spot of crime. Two pairs of clothes, one pertaining to Santokh Chand and another to his brother in law were also found missing. After the registration of the case, the investigation commenced.
3. During the course of investigation it was revealed to the IO by Pawan, younger brother of the deceased that on 14.8.04, when the two accused namely Noor Mohd. and Shokeen first visited their house, they had provided their phone no. stating it to be of one Hazi Kamal of Meerut which he had noted down in his diary. It was supplied to the IO. On enquiry, the said phone was found to be a stolen one and the call records 3 collected by the IO disclosed that maximum calls on that phone were made between 14th and 16th August, 2004 from the area of PS Kithore and Parikshit Garh, District: Meerut. Consequently, the IO joined SI Atul Tyagi in the investigation as he belonged to the area of PS Kithore . While checking the call records, SI Atul Tyagi came across a phone no. of one of his informer. The said informer was summoned on 22.8.04 and he disclosed that the phone no. given by Pawan to the IO was being used by accused Furkan and Majid. With the help of the said informer, accused Furkan and Majid were arrested on 23.8.04 from outside his village Radhna and two mobile phones and one Maruti car were recovered from his possession. One of the mob. phone and the said maurti car were allegedly purchased by him from the robbed money. Accused Majid and Anwar were also arrested alongwith him at the same time . Upon the disclosure statements made by the said accused, the other accused of this case were also arrested one by one at different dates and various recoveries of cash and other articles were effected from them.
4. On completion of investigation chargesheet was filed against all the seven accused persons named herein above for the offences punishable under Sections 302/396/412/109/120B/34 IPC read with Section 25/27 Arms Act.
5. After the case was committed to the court of Sessions and on considering the material placed on record, charge was framed against all the seven accused for the offences punishable under sections : 120B IPC/396 IPC read with Section 120 B IPC. Accused Shokeen was also charged for the offence punishable under section 27 Arms Act . Separate 4 charge for the offence punishable under Section 412 IPC was also framed against accused Sanjay, Furkan, Abdul Majid , Anwar and Noor Mohd. in respect of the recoveries effected from them. All the above charges were dated 6.9.05 to which the accused persons pleaded not guilty and claimed trial.
6. In order to bring home the guilt of the accused, the prosecution has examined 38 witnesses in all. PW1 Santokh Chand was the father of the deceased who deposed the facts stated first herein above about the arrival of the accused Shokeen and Noor Mohd. on 14th and 16th and thereafter the recovery of the dead body and subsequently, his lodging of the report. He further proved the seizure memo of the country made pistol recovered from the spot as Ex.PW1/A, his statement to the police on which FIR was registered as Ex.PW1/B, seizure memo of the bundles of biries as Ex.PW1/C, the blood stained clothes of the accused as Ex.PW1/D, the seizure memo of the comb as Ex.PW1/E, seizure memo of the belt used for strangulating the deceased as Ex.PW1/F, the seizure memo of the clothes with which the deceased was tied Ex.PW1/G and the blood sample collected from the spot as Ex.PW1/H. However, he failed to identify the accused Shokeen and Noor Mohd. in court but only identified accused Anwar as the rickshaw puller who had approached to demand the fare. He was declared hostile by the prosecution and was cross examined at length by the Ld. APP. He denied in the cross examination conducted by the Ld. APP that in his presence, Guddu had given Rs. 2,45,000/- to deceased Praveen on that day. He also denied that apart from the said amount, Rs. 30,000/-or 40,000/- were also found missing from his house.
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7. PW2 Pawan was the younger brother of the deceased and he too deposed the same facts as discussed herein above. He proved the seizure memo of the diary wherein he had recorded the telephone no. given by the accused as Ex.PW2/A and identified accused Noor Mohd. and Shokeen as the persons who had visited his house on 14.8.04. However, later in his cross examination by the accused, he too turned hostile and deposed that accused Noor Mohd. and Shokeen did not visited his house on 14.8.04 and he had identified them only at the behest of the police officials, in jail as well as in court.
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8. PW3 Vinod Jain had identified the dead body of the deceased at the mortuary vide Ex.PW3/A. PW4 Rajesh Kumar was the owner of mobile phone, the no. of which was given by the accused to PW2 on 14.8.04 bearing No. 20070874. He further deposed that he had given the said phone to his employee Naresh and the said phone had been lost on 9.7.04 for which a missing report was lodged at P.S. Kashmere Gate vide NCR Ex.PW4/A. He also proved his application for the phone connection, Ex.PW4/B
9. PW5 Mohd. Farman deposed that in January 2004, he had purchased a maruti car bearing No. UMQ 1484. He was the cousin of accused Furkan and further deposed that he had not sold the said car to Furkan. He was declared hostile by the prosecution but to no effect. PW6 Naresh Kumar was the employee of PW4 and deposed the same facts as deposed by PW4.
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10. PW7 Minnat Rehman was the uncle of accused Atta-Ur Rehman and he deposed that the said accused used to assist him in running the STD booth and further that the said accused used to run the STD Booth when he went to his village in the year 2004. He was also declared hostile by the prosecution.
11. PW8 Mukesh Kumar Bhagat @ Guddu deposed that he used to collect money on behalf of the deceased for sending the same to Paras Chand Jain at Bihar. He further deposed that on 16.8.04 at about 11.00 am he had gone to the house of the Praveen Jain, deceased, where two boys were sitting with him and had given Rs. 2/2.25 Lacs to the deceased as collected money. He also turned hostile regarding the identification of the accused Shokeen and Noor Mohd. to be the persons who were sitting with the deceased at that time. PW9 Paras Chand Jain, Maternal Uncle of the deceased deposed about the Hawala transaction being conducted by him with the aid of the deceased. He only identified accused Atta Ur Rehman as a person who was running STD shop at Laxmi Nagar but did not supported the prosecution case except that. He too was declared hostile by the prosecution.
12. PW10 Abhishek a property dealer deposed that he had arranged a flat on rent bearing no. 973A, Krishna Apartment, Shalimar Gardenat at a monthly rent of Rs. 2,000/- to some persons but denied any knowledge about the identity of the said persons. The said flat is alleged by the prosecution to have been taken on rent by the accused Furkan where the conspiracy was hatched. He too was declared hostile by the prosecution. 7
13. PW11 Hamid deposed that he was plying a Maruti 1000 car as taxi from his Village Mussorrie. He deposed that about 3 years ago on the next date of 26th January, two boys had approached him for hiring the car for visiting Delhi and they started in the morning and came to UP Border. The car was stopped at a dhaba near Aradhana Hall. Before that three boys had also joined the said two boys and total 5 boys came to UP Border. There one boy kept sitting in the car while others were roaming around and a bag was brought by one of them . They came to Delhi at the crossing where all of them came out of car and asked him to keep the doors open and they would return in a short while. He deposed that he felt suspicious and fled away. He also failed to identify any of the accused to be the persons who travelled in his car. He too was declared hostile by the prosecution.
14. PW12 Dr. K. Goel had conducted the postmortem upon the deceased and proved his report as Ex.PW12/A. PW13 Shri Narender Dev Kaushik , Manager, Punjab National Bank, Branch Kithore, District:
Meerut proved the record of saving bank account No. 4626 in his branch in the name of Shahjahan wife of accused Anwar as Ex.PW13/A to Ex.PW13/D and also proved the statement of account from 31.10.03 to 2.3.07. He further proved the pay-in-slip dated 17.8.04 Ex.PW13/F vide which a sum of Rs. 35,000/- in cash was deposited in the said account.
PW14 SI Inder Pal was the duty officer who recorded the present FIR Ex.PW14/A and made endorsement on the rukka as Ex.PW14/B. He further proved DD No.23A and 24A about the registration of FIR as Ex.PW14/C and Ex.PW14/D . PW15 T.R.Shivan was the owner of the flat No. S- 32/202 B, Basera V, Shalimar Garden No. 2, Sahibabad, District: 8
Ghaziabad which he had let out to one person at a monthly rent of Rs. 1800/-.vide written agreement Ex.PW15/B, seized by the police vide memo Ex.PW15/A. He denied any knowledge about the said person and deposed that the entire transaction was through a property dealer Beenu. Said Beenu, though cited as a prosecution witness could neither be traced nor examined by the prosecution.
15. PW16 Prakash Chand Jain was the brother in law of PW1 who had visited him to Delhi on 13.8.04 and his suit case and clothes had been taken away by the accused which he identified in the court. PW17 Shri Raj Kapoor, Ld. MM conducted the TIP of accused Anwar wherein he refused to participate and proved the proceedings as Ex.PW17/A to Ex.PW17/D. PW18 Lady ASI Anita was the duty officer on 1.9.04 and she had handed over to the IO blood sample and hair sample sealed with the seal of SDN Hospital of accused Anwar vide memo Ex.PW18/A. PW19 Ct. Arvind Kumar had taken the directions of the ACMM, KKD Courts for freezing the bank account of Shahjahan wife of Anwar and proved the relevant records as Ex.PW19/A. PW20 HC Dayanand was duty officer on 27.8.04 and 29.8.04 and he had collected the sealed pullandas after medical examination of accused Abdul Majid and Shokeen respectively and handed over them to the IO who seized them vide memo Ex.PW20/A and Ex.PW20/B, respectively. He joined the investigation with the IO on 31.8.04 and in his presence cash Rs. 20,000/- were recovered at the behest of accused Sanjay from his house at Garh Mukteshwar which were seized vide memo Ex.PW20/C and a motorcycle was also seized vide memo Ex.PW20/D at the pointing of the said accused. He was also a witness to the disclosure statement of the said accused Ex.PW20/E. PW21 HC 9 Satyavir had got accused Abdul Majid and Furkan medically examined on 27.8.04 and handed over the pullandas to the IO. Similarly, he also took accused Shokeen for medical examination on 29.8.04 and accused Anwar, Sanjay and Noor Mohd. on 1.9.04. PW22 Ct. Ajayveer had taken the exhibits to CFSL, Kalkatta on 9.9.04. PW23 Ct. Satya Prakash was the member of the crime team who visited the spot on 16.8.04 and had taken the photographs Ex.PW23/A1 to Ex.PW23/ A14 and proved their negatives as Ex.PW23/B1 to B 14. PW24 Ct. Sonu Kaushik had prepared the scaled site plan Ex.PW24/A. PW25 Ct. Omvir Singh had reached the spot on 16.8.04 alongwith SI Rajender Singh and later took the dead body to the mortuary. He proved the seizure memo of the clothes , blood and nails of the deceased, handed over to him by the Autopsy Surgeon, vide memo Ex.PW25/A. PW26 Naseem Nabi had taken accused Noor Mohd. for medical examination on 20.8.04 . PW27 SI Randhir Singh was the first official who reached the spot on receiving the information about the crime vide DD No. 16 A alongwith PW28 Ct. Vinod. PW29 H.C. Surender Singh proved the various DD entries recorded during the course of investigation as Ex.PW29/A to Ex.PW29/G.
16. PW30 SI Atul Tyagi remained associated with the investigation of the case alongwith the main IO. He led the break through in this case and had summoned the informer whose telephone no. was available in the call records of the telephone which was seized from accused Furkan. He deposed about the various raids conducted in apprehending the accused persons from time to time, the recoveries made at their behest and proved the documents of their arrest, pointing out memos and disclosure statements as Ex.PW30/A to Ex.PW30/T 9.
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17. PW31 Shri S.P. Singh, Accounts Officer, MTNL proved the fact that telephone no. 22161802 was installed in the house of the deceased in the name of Santokh Chand and proved the relevant documents as Ex.PW31/A and Ex.PW31/B. PW32 HC Devender proved the NCR No. 707 dtd. 13.7.04 regarding loss of mobile phone of Naresh Chawla bearing No. 20070874 as also the DD entry recorded in that respect as Ex.PW13/A. PW33 Shri S.S. Rathi, the then Ld. MM proved the TIP proceedings of accused Noor Mohd. who refused to join the proceedings. The said proceedings were proved as Ex.PW33/A to Ex.PW33/E.
18. PW34 Inspector Krishan Lal was the main IO of this case and he deposed about the entire investigation conducted by him from the day of receiving the information about the crime till the filing of the chargesheet including arrest of the accused and recoveries made at their behest. He also collected the postmortem report of the deceased and the FSL result Ex.PW34/H. He further proved the endorsement on the rukka as Ex.PW34/A, inquest papers as Ex.PW34/B, application for postmortem Ex.PW34/C, brief facts of the case as Ex.PW34/D, the nazri site plan Ex.PW34/E. He collected the call records from the MTNL office, Nehru Place in floppies which he proved as Ex.PW34/F1 to F3 and proved their hard copies as Ex.PW34/G. PW35 Samer Singh, Commercial Officer, MTNL Office brought the records pertaining to telephone No. 22482540 installed at the PCO as Ex.PW35/A and Ex.PW35/B. PW36 Balbir Khanna , SD Legal, Garur Mobile Phone Services, MTNL, Delhi was summoned to prove the call records and details of mobile phone no. 20070874 but he deposed that the same was not available as the exchange had been dis- 11 mantled and proved the certificate to this effect as Ex.PW36/A. PW37 HC Brijpal was the MHC(M) who proved the relevant entries in register no. 19 from time to time as Ex.PW37/A to Ex.PW37/L. PW38 Shri Rakesh Dabas, Addl. Nodal Officer, Reliance Communications, Connaught Place proved the record pertaining to Reliance Mobile Phone connection No. 11- 33332630, allegedly recovered from accused Furkan. He deposed that the said phone connection was issued in the name of one Ms. Sapna resident of Laxmi Nagar and proved the relevant documents as Ex.PW3/A to C.
19. Statement of all the accused persons were recorded under Section 313 Cr.P.C and the entire incriminating evidence was put to them which they denied and pleaded innocence. They almost took a common plea that they have been falsely implicated in this case due to village rivalry. They denied that anything was recovered from their possession. Accused Anwar further took the plea that he is physically handicapped and thus was unable to participate in the crime.
20. Accused Anwar also examined one witness in his defence namely Shah Jawan, his brother in law, who deposed that on 16.8.04, as demanded by his sister, he had taken Rs. 35,000/- in cash to the house of accused Anwar who wanted to purchase the buffallow and handed over the said money to accused Anwar.
21. I have heard the Ld. APP for the State and Shri S. K. Ahaluwalia Advocate for accused Furkan and Atta Ur Rehman and Shri M.F. Zama Ld. counsel for accused Noor Mohd., Shokeen and Sanjay, Shri Z. Babbar Chauhan, Advocate for accused Anwar and Shri Ayub Ahmed Qureshi 12 Advocate for accused Majid .
22. It was argued on behalf of the State that the entire act was committed by the accused persons in furtherance of the criminal conspiracy hatched amongst them. It was part of the said larger conspiracy that not only a sum of Rs. 2,80,000/- was robbed from the house of the deceased but he was also murdered. In this respect, heavy reliance was placed by the State on the testimony of PW1 and PW2 i.e. the father and brother of the deceased who had seen the accused Noor Mohd. and Shokeen in their house on 14.8.04 and former had also seen them on 16.8.04 just before the deceased was found dead. The State further relied upon phone call records of the phone which was a stolen one and was recovered from the accused Majid, from which several calls were made on 14th and 16th August, 2004 at the time of commission of offence including from PCO of Minnat Rehman(PW7) being attended by accused Atta Ur Rehman. The prosecution has further relied upon the testimony of PW11 Hamid in whose car the accused came to the house of the deceased. It was further argued that it was proved by PW8 Guddu that on the day of the incident he had handed over about Rs. 2.25 Lacs to the victim as Hawala money collected by him. The Ld. APP further submitted that the recoveries of heavy amount of cash effected from each of the accused also clearly point out that they all were involved in the crime and distributed booty amongst themselves. Apart from cash, other articles belonging to the deceased such as telephone bills, diary, calculator, bag and a suit case were also allegedly recovered from the accused which further point out towards their guilt.
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23. On the other hand, it was argued on behalf of the accused persons that all the material witnesses have turned hostile and no one was able to identify the accused as the culprits. It was further argued that there was no evidence to show that any agreement was entered into between the accused and therefore, the charge of conspiracy cannot be sustained against them. It was further argued that the call records were not proved at all as no witness from the concerned company was ever examined to prove the said records and even the copies of the floppies collected by the IO were never supplied to the accused. It was also argued that the currency notes allegedly recovered from the accused had no identity, nor the source from which they came has been proved on record. Ld. Counsel for the accused argued that the accused were arrested at different time from their native places but neither any public person from the said village from where they were arrested was made a witness to their arrest or recovery nor the local police was ever involved during the arrest and seizure . It clearly shows that recoveries had been planted and the arrest has been manipulated. Thus, according to the defence, there is no legal evidence against any of the accused. Apart from that, it was also argued that initially, offence of robbery was not mentioned in the FIR but later on it was added as PW1, the complainant did not initially alleged that anything was missing from his house.
24. Undoubtedly, all the accused have been charged with the offence of conspiracy and with the aid of Section 120B IPC, the State has tried to prove that in pursuance of the conspiracy entered into between the accused, they committed dacoity with murder of the deceased. It can well be understood and has been repeatedly held by Supreme Court that 14 conspiracies are not made in open and there cannot be a direct evidence of conspiracy always. Hence, the offence of conspiracy has to be proved through circumstantial evidence.
25. The Hon'ble Apex Court explained the principle of conspiracy in the case State Vs. Nalini (Rajiv Gandhi murder Case) 1999 SCC (Cri.) 691 as "under Section 120B IPC offence of Criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by illegal means, overt act is necessary. Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish , howsoever horrendous it may be, that offence be committed.
26. In the instant case, the prosecution has relied on two pieces of evidence in order to prove the charge of conspiracy against accused persons. Firstly, the call records and secondly, the recoveries pursuant to the disclosure statements of accused. Apart from that, there is no evidence on record to show that the accused persons entered into any agreement to carry out the crime intended by them i.e of committing dacoity and murder.
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27. It is a settled principle of law that the disclosure statement of an accused cannot be used against him except that part which leads to any discovery of fact or recovery of any incriminating article. A close scrutiny of the disclosure statements of the accused persons, though not admissible, show that their only intention was to rob the victim of Hawala money which he would have received. They had never intended to commit his murder but it was committed at the spurt of the moment when the victim put up a strong resistance.
28. Heavy reliance has been placed by the prosecution on the call records in respect of phone no. 20070874 which was allegedly recovered from accused Abdul Majid . It was on the strength of the call records of this phone that a break through in the case was made. It was very strongly argued on behalf of accused that the call records of the said phone Ex.PW34/F1 to F3 and Ex.PW34/G cannot be relied upon and were inadmissible in evidence as firstly, the copies of the same were never supplied to the accused and secondly, they had not been proved in accordance to the provisions contained in Section 65 B of the Evidence Act.
29. It is a matter of record that the said floppies and the call records were filed alongwith the chargesheet and they find mention in the list of documents relied upon by the prosecution. However, the copies of the said floppies were never supplied to the accused. This goes against the basic principle of criminal law as the accused never had an opportunity to rebut the said documents after going through its contents. Secondly, the most important aspect, in my opinion is that the said call records and the 16 floppies were never proved in accordance with the law laid down in this respect i.e. Section 65(B) of the Evidence Act.
30. The Ld. APP for the State placed reliance on the judgment delivered by the Hon'ble Apex court in State (NCT of Delhi) Vs. Navjot Sandhu 2005 Cr.LJ 3950 (Parliament Attack Case). In that case as well, the same legal proposition came for adjudication before their Lordships. In that case two witnesses were examined to prove the printouts of the computerized record furnished by the Cellular Service Provider. The covering letters were signed by the Nodal officer. The Hon'ble Apex court while admitting that the certificates require to be appended in accordance with Section 65(B) of the Evidence Act was not there, held that the printouts taken from the computers/server by mechanical process and certified by a responsible official of the service providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge, irrespective of the compliance of the requirements of Section 65 B which is a provision dealing with admissibility of electronic records. It was held that there is no bar to adducing secondary evidence under the other provision of the Evidence act, namely Sections 63 and 65. It was further observed by their Lordships that " it may be that the certificate containing the details in sub section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions namely Section 63 and 65".
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31. The facts of the present case are totally different from the case referred to by the State. In the said case, atleast two witnesses were examined who had signed the covering letters by the nodal officers of the concerned Mob. Service Provider Companies. In the instant case, there is nothing as such. According to the IO, PW34, he simply collected the call records in floppies Ex.PW34/F1 to F3 from the officials of the MTNL namely Shri Ashok Kumar, SDO. However, he did not even recorded his statement under Section 161 Cr.P.C. In the cross examination he deposed that the said official refused to give his statement but despite that he did not took any action against him. It cannot be believed that in such a heinous offence a government official can refuse to assist the investigating authority and can refuse to become a witness. Even if he did so, the IO had ample powers to take appropriate action against him. Even if that was not enough, the prosecution could have summoned him by name as a witness during the trial. As already discussed herein above, the copies of the said floppies were never supplied to the accused. There is nothing in the said floppies to show that they were so handed over by the said official of the MTNL. They did not even bear his signatures.
32. The IO , PW34 himself deposed that he took out the hard copies of the call records from those floppies himself. Again they were never certified to be the true copies by any official of the MTNL nor even the IO appended his signatures under those hard copies that he had extracted those records from the said floppies.
33. PW34 in his cross examination further admitted that the name of the official who issued Ex.PW34/G is not mentioned upon it nor it has 18 been mentioned as to which department the said record pertains to and further that it was not signed by any officer who produced them. It is further admitted that no seizure memo of the said record was prepared. He further admitted that the copies of the floppies were never supplied to the accused and further admitted that he himself had also not certified on Ex.PW34/G and that it is the true copy of the contents of the floppies which were got prepared at the instance of Ashok Kumar. He further admitted that the location chart of the telephone is not mentioned in Ex.PW34/J. Thus from any angle, these call records are totally inadmissible either under Section 65 B of the Evidence or even under Section 63 or 65 of the said act. Even the secondary evidence in respect of these documents cannot be led and used against the accused, as even the provision for admitting secondary evidence contained in sub section © of Section 65 has not been fulfilled. The only witness examined in this respect was PW36 who deposed that the call record was not available in respect of the said phone no. as the exchange had been dismantled. The secondary evidence could have been led on the basis of his testimony after showing that the original records have been destroyed if and only if, at some stage the IO would have collected signatures either on the floppies or on the printouts from some responsible officer of the company to show that it was so taken by him from there. Thus, in my opinion, the call record of the phone no. i.e. 20070874 cannot be used and relied upon to prove the factum of conspiracy between the accused persons. The other details containing in the call records are therefore, not required to be discussed.
34. The other factor regarding the recoveries from different accused 19 cannot be a sole criteria to reach to a conclusion that there was a criminal conspiracy amongst all the accused accused persons. In State of Tamilnadu Vs. Sivarasan 1997 SCC (Cri.) 362 it was observed by the Hon'ble Apex court that only because certain articles like incomplete bombs or grenades or thin parts and the vehicles used for transporting them were seized from the accused persons, it is not sufficient to prove that they intended to use them in terrorist activities in India when no evidence was led by the prosecution to that effect. More so, evidence disclosed that they were involved in manufacturing bombs and grenades for the use by LTTE in Sri Lanka. So they cannot be held guilty under Section 3 (3) of TADA read with Section 120-B IPC.
35. Thus, mere recovery and some cash or certain articles belonging to the deceased from the accused who, as per the testimony of PW1, PW2 and PW8, were never seen near the scene of crime cannot be made a sole criteria to prove the conspiracy amongst the accused persons. The recoveries will be dealt later on in the judgment.
36. Now coming to the main act i.e dacoity and murder. It was argued at the outset, that initially PW1 did not reported that anything was missing from his house after the crime was detected but but later on the offence of dacoity was added. It was also argued that the source of the amount robbed has also not been proved by the prosecution. I do not agree with the contention of the Ld. Counsel on this ground. The complaint was lodged by PW1. He was the father of the deceased. The state of mind of PW1 can be well understood when he saw his young son lying in a pool of blood in his house with his hands and legs tied. In such 20 a condition of shock, he could not have immediately discovered each and everything. However, later on, after thoroughly searching the house and after PW8 was interrogated, the fact that the deceased received money from PW8 came to the knowledge of one and all. Thus the delay in adding the offence of robbery later on is well explained. Similarly, the source is also well explained by PW8. The fact that the deceased was running a hawala racket has not been challenged during the entire trial. The fact that PW8 used to collect money for and on behalf of the deceased from labourers who were the natives of Bihar is also unrebutted. PW8 was never cross examined by any of the accused. Hence his testimony that he had handed over the cash amount of Rs. 2.25 Lacs to the deceased remains unchallenged. He had already deposed that he had collected the money alongwith other boys for the deceased for transmission to Bihar.
37. As regard the identity of the accused, PW1 initially, in his examination in chief had identified only accused Anwar as rickshaw puller who came inside the house to demand a fare of Rs.15/- from the other two accused Shokeen and Noor Mohd. He further deposed that one of the accused paid him the fare and went away. No other act has been attributed against accused Anwar except recovery of cash that too from the account of his wife amounting to Rs. 35,000/-.
38. It was PW2 who had deposed that he had identified two persons on 14.8.04 and they were the same persons who came on 16.8.04 as told to him by PW1. It may be rather put in another way. Initially, PW1 deposed that two persons who came to his house on 14.8.04 had also come on 16.8.04 at about 11.00 am. PW2 corroborated his testimony in his 21 examination in chief . He deposed that on 14.8.04 at about 12.30 pm he found two persons sitting with his father and on enquiry, he was told that they wanted to meet the deceased. One of them also provided him the no. of the mobile phone i.e. 20070874 . He further deposed that his father PW1 had told him that the same two persons had again visited his house on 16.8.04. On the latter date, PW2 was not present in the house. He identified the said two persons in the court as accused Noor Mohd. @ Hafiz and Shokeen as the persons who came to his house on 14.8.04. It is also a matter of record that accused Shokeen was also identified by PW2 during the judicial TIP on 6.9.04. Thus, it is clear that it was accused Noor Mohd. @ Hafiz and Shokeen who visited the house of deceased on 14.8.04 and 16.8.04.
39. Though there is no direct evidence on record to prove that these two accused had committed the murder of the deceased. However, the circumstances are so interlinked that there is no other inference which can be drawn except that accused Noor Mohd. @ Hafiz and Shokeen committed the said act.
40. The law regarding circumstantial evidence is very clear . It has been held by the Hon'ble Apex Court that for conviction on circumstantial evidence, the following conditions must be fulfilled:-
1) The circumstances from which the conclusion of the guilt is to be drawn should be fully established.
2) The facts so established should be consistent not 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 conclusive nature and tendency.
4) They should exclude every possible hypothesis except the one to be proved 22
5) There must be a chain of evidence so complete as not to leave any reasonable ground for 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.
(Ref.Ashish Batham Vs State 2003 SCC (Cri.) 1718.
41. In this case, the theory of "last seen" also assumes great importance in view of the testimony of PW1 and PW2. The two accused namely Shokeen and Noor Mohd. @ Hafiz came to the house of the deceased on 16.8.04 at about 11.00 am. According to PW1, after sometime the deceased also came to the house and at the same time, PW8 also came to the house for delivering money. PW1 left the house at about 12.15 pm for going to Shahdara and returned back at about 1.30 pm and found his son lying dead. Thus there was only a time gap of about 1 hour 15 minutes when PW1 left the house and during that period the accused were last seen in the company of the deceased.
42. In Bodhraj Vs. State of J & K 2003 SCC (Cri.) 201 it was held that the last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the case becomes impossible.
43. It is also pertinent to mention that PW8 in his examination in chief deposed that on 16.8.04 at about 11.00 am he went to the house of the deceased and delivered the cash to him and at that time, two boys were sitting with the deceased. He left the house after making payment . He did not deposed that the said two boys had left before him. He was not cross examined by the accused persons. His testimony also assumes 23 great significance in view of the aforesaid.
44. Now the chain becomes complete from the unrebutted evidence that accused Noor Mohd. @ Hafiz and Shokeen came to the house of Praveen on 14.8.04 and as deposed by PW1 and PW2, they showed their willingness to give some money to the deceased as Hawala money for onward transmission to Bihar. When deceased was not found they made some phone call as also deposed by PW1 and PW2. Thereafter they gave a phone no. (20070874) to PW2 and asked him that he may further ask the deceased to call on that no. which they disclosed to be of one Hazi Kamal of Meerut. It is not known as to with whom the said phone was at that time. If their intentions were good, they could have handed over any amount to PW1 or PW2 being member of the same family but they again came on 16.8.04 . In their presence, PW8 handed over the money collected by him to the deceased. They were left alone in the company of the deceased by PW1 and PW8. Thereafter within a span of 1 hour 15 minutes the deceased was found dead. The manner in which the deceased was killed clearly shows that he put up a strong resistance. The fact that two pairs of blood stained clothes were found at the spot suggests that it was the work of atleast two persons who changed their clothes as they got stained with blood. The said clothes i.e the pant and kurta pajama stained with blood were found to be having the same blood group that of deceased, as per the Serological/FSL examination Ex.PW34/H. It conclusively proves that they were the same two persons who committed the murder of the deceased and robbed the cash amount i.e accused Noor Mohd. @ Hafiz and Shokeen.
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45. It was argued by the Ld. counsel for the accused that none of the accused was identified during the trial either by PW1, PW2 and PW8. It is a matter of record that PW1 had identified only accused Anwar, that too as a rickshaw puller who came to him to demand his fare. PW2 clearly identified accused Noor Mohd. and Shokeen as the persons who visited his house on 14.8.04 and also on 16.8.04 as told to him by his father. He had identified accused Shokeen in the TIP. However, he turned hostile in the cross examination which was conducted after a time gap of about 1 year and two months. Similarly, PW8 also turned hostile and did not identified any of the accused. The identification by PW2 of the said two accused in my opinion, is sufficient. His turning hostile in cross examination regarding the identity of the said two accused is of no consequence as observed by the Hon'ble Delhi High court in Inder Singh Vs. State 1996 JCC 262 Delhi wherein it was held that :
"where the witness fully supported the prosecution case in examination in chief but in his cross examination after a year he did not admitted that murder took place in his presence, it was held that it was only due to lapse of time and the witness might have been won over".
46. Similar view was expressed by the Hon'ble Apex Court in Nissar Khan Vs. State of Uttranchal (2006) 9 SCC 386. In that case, after one year of the examination and cross examination and discharge of the witnesses, they were recalled and they all turned hostile. It was held that by that time the witnesses were recalled, they were won over either by money, by muscle power, by threats or by intimidation which is suggestive of the fact. It was further held that testimonies of these witnesses cannot be rejected on the ground that they have turned hostile. 25
47. It is painful to note that in the instant case, the real father and brother of the deceased turned hostile and failed to identify the culprits who committed the murder of their son/brother, however, the reason for the same cannot be ascertained. It can be either money, muscle power, or threat. Nevertheless in view of the above cited law and the unrebutted testimony of PW2, I have no hesitation to accept his examination in chief wherein he categorically identified accused Shokeen and Noor Mohd. and therefore, the arguments of the defence that witnesses turned hostile cannot be accepted.
48. The other accused have been tried to be linked with the crime with the aid of the phone no. 20070874, however, as already observed the records could not be proved legally and therefore, that piece of evidence is totally inadmissible and even otherwise incomplete. Thus only accused Noor Mohd. and Shokeen can be convicted for the murder of deceased Praveen and for robbery of cash amounting to Rs. 2,45,000/-.
49. The last part i.e recoveries from various accused has also been assailed by the defence which is to be evaluated now. The recoveries from the various accused are as under:
1. Accused Sanjay:
He got recovered Rs. 20,000/- cash on 31.8.04 while on police custody remand from house No. 31, Gaushala, Rajiv Nagar, Garh Mukteshwar in the denomination of 20 notes of Rs. 500/- and 100/- notes of Rs. 100 denomination.
2. Accused Furkan :
One maruti car bearing registration No. UMQ 1484 and one mobile 26 phone make LG were seized from his possession on 23.8.04 at the time of his arrest which were purchased by him out of the looted amount. One another stolen mobile phone was also recovered from his possession. On 24.8.04, he also got recovered from his rented house bearing No. 973 A, Krishna Apartment, Shalimar Garden, Ghaziabad, one suitcase containing Rs. 16,000/- in cash in the denomination of Rs. 100/-and also containing telephone bills of the house of the complainant, some clothes and a diary also belonging to the deceased. The said suitcase was also allegedly taken away from the house of the deceased at the time of the incident.
3. Accused Abdul Majid.
On 23.8.04, he got recovered one black colour Rexin bag from his house at Village Radhna , District: Meerut which was containing cash of Rs. 12,000/- in the denomination of Rs. 500 currency notes which were part of the looted amount. He also got recovered one mobile phone of LG of Reliance Company having connection no. 20070874 which was allegedly used in the crime. From the same bag, 4 telephone bills of the telephone installed at the house of the deceased and one electricity bill also of the same house were also recovered alongwith one calculator.
4. Accused Anwar.
On 17.8.04, he had deposited a sum of Rs. 35,000/- in the saving bank account of his wife Shahjahan with PNB, Kithore Branch, Meerut which account was freezed and the said amount was also alleged to be the part of the looted amount.
5. Noor Mohd. @ Hafiz On 29.8.04, he got recovered Rs. 32,000/- in cash in the denomination of 70 notes of Rs. 100/-, 10 notes of RS. 500/- and two 27 packets of RS. 100/- each kept in a polythene bag and which were dug out by him from the earth near the tube well in the fields of his village Aseelpur, PS: Kithore, District: Meerut which were alleged also to be the part of the looted amount.
6. Shokeen :
Rs. 20,000/- cash were recovered from his house at village Radhna consisting of two packets of Rs. 50/- denomination , 76/- notes of Rs. 100/- denomination and 48 notes of Rs. 50/- denomination alongwith pant and T shirt which he was wearing at the time of the alleged incident.
7. No recovery was effected from accused Atta-Ur-Rehman.
50. It was argued on behalf of the accused and infact common argument was advanced by the Ld. counsel for all the accused that the said recoveries are planted. It was further argued that no public person from the village/s from where the said recoveries are alleged to have been made was made a witness to the recovery and seizure of the said cash and other articles, nor even the Sarpanch of the said village was made a witness. Even the family members of the respective accused who were present at the time of the said recoveries were not joined in the investigation. It was also argued that at no point of time, the local police was joined in the investigation and therefore, these recoveries cannot be relied upon. In respect of the currency notes it was also argued that there was no identification mark on the said currency notes nor any identification mark was put by the IO on these notes at the time of effecting the recoveries. Similar was the argument in respect of the telephone bills, suitcase etc. 28
51. The mere fact that no public person was joined in the investigation does not undermine the recovery. As rightly pointed out by the Ld. APP, recoveries of cash from different accused in all amounted to Rs. 1,15,000/- and it is not possible to plant such a heavy amount of cash upon different accused. I also further agree with the argument of the Ld. APP that it is highly impossible and difficult to join the witnesses of the native village of the accused in the given circumstances. Though certain discrepancies and contradictions were pointed out in the testimonies of PW30 and PW34 regarding joining of public witnesses, however, in the above background they are not to be considered. Similarly, non joining of local police does not have any effect. Once the finger is raised on police officials, it is the same if they are personnels of Delhi Police or UP Police.
52. In this respect Ld. APP for the State referred to the judgment delivered in Karamjeet Vs. State 2003 Cr.LJ 2021 wherein it was observed by the Hon'ble Apex court that: "the testimony of police personnel should be treated in the same manner as the testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personal as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds".
53. There cannot be any dispute about the law laid down by the Hon'ble Apex Court in the above judgment. In that reference, the defence has been unable to show if there was any enmity between the police officials conducting the raid and making recoveries from the accused. No 29 reason even by way of suggestion has been put up to the witnesses of recovery as to why they falsely implicated the accused or planted the recovery. In such circumstances, disbelieveing the recovery officials and treating the recoveries to be planted would be highly unjust. Thus in my opinion, the prosecution has been able to prove the recoveries against the aforesaid mentioned accused persons beyond reasonable doubt.
54. Accused Anwar took the defence that the amount deposited in the bank account of his wife was given to him by his brother in law for the purchase of buffalo. He examined DW1 i.e his brother in law namely Shahjawan . He deposed that on 15.8.04 he came to the house of his sister Shahjahan and left her there. On 16.8.04 he took her sister back to her matrimonial house alongwith Rs. 35,000/- in cash which was demanded by his sister as the financial condition of accused Anwar was not well and his left hand was weak and also because they wanted to purchase a buffalo for which they needed some money and he handed over the said cash to his brother in law. In the cross examination he further deposed that he had taken the said amount of Rs. 35,000/- from one Taju , a milk seller who used to purchase milk from him. He further deposed that he was not aware as to what was done by the accused with the said amount. He further admitted that he never informed the police at any point of time about the said payment. Thus his testimony is shaky and unreliable. The person who had given the said money to him i.e. Taju was not examined. In case the money was given for the purchase of buffalo, there was no reason for the same to be deposited in the bank. Hence, this witness is of no help to the accused.
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55. It was argued that there was no identity of the currency notes allegedly recovered from the accused and therefore they cannot be used against the accused. In the instant case, it is admitted on record by PW8 that he had handed over a cash amounting to Rs. 2/2.5 lacs to the deceased on the fateful day. The said amount was the hawala collection made by him. Hence, there could not have been any occasion for PW8 nor any reason for noting down the Sl. no. of those currency notes. Similarly, PW1 or the deceased did not had any time to note down their numbers as the incident took place within a close time gap. Therefore, there could not have been any identification of the said currency notes robbed from the house of the deceased that too when they were used notes. Similarly, the other contention that the IO did not took any signature or identification mark on the notes at the time of seizure is also without any merits as the notes were sealed by him immediately after the seizure and the said seals were open in court. Therefore, there was no occasion for any tampering. The facts of the case referred to by Ld. counsel for the accused i.e. Lala Ram Vs. State 2008 (1) LRC 105 Delhi are not applicable to the present case in view of the discussion held herein above and hence that authority is of no help to the accused.
55. In view of the above discussion, and considering the recoveries effected from the respective accused, some suspicion is raised that all the accused participated in the crime i.e the dacoity and murder, however, this suspicion cannot take place of proof as held by Hon'ble Supreme court in several decisions. However, it has been proved beyond reasonable doubt that accused Noor Mohd. @ Hafiz and Shokeen who had been identified by PW1 and PW2 are clearly the author of the crime. 31 They committed the murder of Praveen while removing the cash from his house. The participation of the other accused could not be proved on record.
56. It is needless to say that the death of the deceased was homicidal . Lot of blood of the deceased was found lying on the floor and the walls. The postmortem report reveals seven injuries on his person including that on his head and face and a belt was found tied around his neck with which he was throttled . The cause of death given in the MLC Ex. PW12/A is "asphyxia consequent upon pressure over nose and mouth closing the ear way resulting into manual smothering by other party". It not only reflects that the deceased was smothered but also is suggestive of the fact that it was not a job of a single person and atleast more than one person was involved in the act.
57. In State of M.P. Vs. Samay Lal and Ors. 1994 Cr.LJ 3407, dacoity and murder was committed and six persons were charge sheeted and all of them were convicted under section 396 IPC by the Ld. Sessions Court . In appeal the Hon'ble High Court of MP held that the offence of robbery and murder could be proved only against two persons who were identified by the eye witnesses. It was held that the other four accused from whom certain recoveries were effected which were part of the looted amount, cannot be convicted under section 396 IPC with the aid of Section 114 of Evidence Act. They can at the most be held guilty under Section 411 IPC. It was further held that since thee is no specific section like 396 IPC for punishment of robbery with murder, the conviction against the two accused was converted under section 392 and 302 IPC 32 while the others from whom only recoveries were effected were held guilty under section 411 IPC only.
58. In the instant case as well, the evidence of robbery and murder which has been proved on record is against accused Noor Mohd. @ Hafiz and Shokeen. Thus in view of the judgment delivered in Samay Lal's case (Supra) they are held guilty for the offence of robbery and murder and are accordingly convicted for the said offences punishable under Section 302/392 read with section 34 IPC. They are further convicted for the offence punishable under Section 411 IPC for the recoveries effected at their behest from their respective houses of the cash amount which was robbed at the time of the alleged incident from the house of the deceased and as discussed above. The said accused can be convicted for the said offence as both sections 302 and 396 carry a similar maximum punishment of death. However, there is no sufficient evidence to hold that the other accused also participated in the said crime, or as already observed herein above, they were co-conspirators . Hence, accused Sanjay, Furkan, Abdul Majid and Anwar are hereby convicted only for the offence punishable under Section 411 IPC. Since no recovery was effected from accused Atta-Ur-Rehman and his participation in the offence has not been proved either as a conspirator or otherwise, he is accordingly acquitted of the charges framed against him.
59. Charge for the offence punishable under Section 27 Arms Act was also framed against accused Shokeen for allegedly using the country made pistol belonging to Anwar in the alleged incident, however, there is absolutely no evidence to show that the said pistol either belonged to 33 Anwar or that it was used by Shokeen in the incident, except the disclosure statements of the two accused which are inadmissible as the said pistol was not recovered pursuant to their disclosure. According to the prosecution case, the deceased did not died with any gun shot injury. The country made pistol recovered from the spot was having a misfired cartridge inside it. No finger prints or chance prints could be lifted from the spot or from the said pistol . Therefore, the prosecution has failed to connect the said pistol with accused Shokeen and hence, he is acquitted of the charge punishable under Section 27 Arms Act.
60. Since the offence punishable under Section 411 IPC carries maximum punishment of three years and accused Sanjay, Furkan, Abdul Majid and Anwar are in custody for more than the said period, they are directed to be released forthwith as having undergone the entire sentence.
61. The case property i.e the country made pistol be confiscated to the State and be sent to District Nazarat. The cash recovered from various accused is also directed to be confiscated and deposited in the Govt. Treasury and an amount of Rs. 35,000/- be withdrawn from the bank account of Shahjahan wife of Anwar and deposited it in the Govt. Treasury and thereafter her bank account be de-freezed. ANNOUNCED IN OPEN COURT ON 1st day of April, 2008 (SANJAY SHARMA) ADDL. SESSIONS JUDGE KARKARDOOMA COURTS : DELHI.
34 IN THE COURT OF SHRI SANJAY SHARMA : ADDL. SESSIONS JUDGE KARKARDOOMA COURTS : DELHI.
Sessions Case No. 38/07 State Vs. Furkan Etc. FIR No. 327/04 Under Section :302/392/r/w Section 34 IPC & 411 IPC.
PS Vivek Vihar
8. Shokeen S/o: Insaf Ali R/o: Village Radhna, P.S. Kithore, District: Meerut, U.P.
2. Noor Mohd. @ Hafiz S/o: Habib Hassan @ Habibur Hassan R/o: Village: Aseelpur, PS Kithore, Distt. Meerut, U.P. ORDER ON SENTENCE:
1. Convicts Shokeen and Noor Mohd. @ Hafiz have been held guilty and convicted for the offences punishable under Sections 302/392/34 IPC and 411 IPC vide judgment dated 1.4.2008 .
2. I have heard the Ld. APP for the State and Shri M. F. Zama Advocate/Ld. counsel for the said convicts.
3. It was argued by the Ld. APP on behalf of the State that the convicts are guilty of taking away the life of a very young person only for the sake of some money. It was further argued that the act was committed by the convicts in a most ghastly and brutal manner that too inside the house of the deceased and therefore, they deserve no leniency and prayed that maximum sentence be imposed upon the convicts.
4. On the other hand, Ld. counsel for the convicts pleaded that the convicts are innocent and poor villagers. He submitted that convict 35 Shokeen is the only bread earner of his family and has five minor children and a wife and other members in the family whom he has to support. In respect of convict Noor Mohd. @ Hafiz it was argued that he is a bachelor but has his brothers, sisters and parents whom he had to support. In this manner, a lenient approach was prayed for by the Ld. defence counsel.
5. I have meticulously weighed the aggravating and mitigating circumstances presented on part of the State as well as the convicts.
6. The present case is an example of the on going trend amongst youth of this country who were going on after the lust for easy money and to satisfy the said lust, their approach towards crime. Undoubtedly, the convicts are villagers but are not innocent. The family background cannot be a restrain for imposing sentence upon them. This case further shows cases that the trend of the youth taking to crime for earning easy and quick money is spreading even to rural areas and is not limited to Metropolitan cities.
7. Brutality is writ large in every case of murder. However, the circumstances in which it took place has to be considered. It has been held in the judgment that the convicts initially did not had any intention to commit the murder of the deceased but when he put up strong resistance, he was killed by the convicts in order to accomplish their aim of robbing him of the cash. Thus, the act of murder was committed in a spurt of moment.
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8. It was argued that in the present time, theory of reformation has taken place of the theory of retribution. I agree that now a days legal experts and even the courts are favouring the theory of reformation. It is based on the principle that no person is a born criminal but the society and the circumstances makes him criminal. However, this theory can be applied to petty offences or to persons who had taken to crime for the first time. However, this theory cannot be applied to serious offences .
Nevertheless the present case also does not call for a retributive approach. At the most, the approach of the court would be deterrent. It should be put to the mind of the youth that no person who commits a crime can escape punishment. In such cases of heinous offences, a person gets a chance of reformation even in jail. In the present time, as held by the Hon'ble Apex Court, life imprisonment means imprisonment for the entire life and it is not limited to a period of 14 years or so. This means that once a person is convicted for life imprisonment, only his body comes out without the soul. Thus, he has ample opportunity to reform himself for his remaining life.
9. Hence, in the given circumstances and inview of the above discussion, I am of the opinion that the present case does not fall in the category of "rarest of rare cases". Accordingly, both convicts Shokeen and Noor Mohd. @ Hafiz are hereby sentenced to rigorous imprisonment for life for the offence punishable under Section 302/34 IPC. They are further sentenced to pay a fine of Rs. 10,000/- each for the said offence and in default of payment of fine, they are further sentenced to simple imprisonment for a period of three months.
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10. Both the convicts are further sentenced to rigorous imprisonment for a period of 7 years for the offence punishable under Section 392/34 IPC and are further imposed a fine of Rs. 5,000/-each for the said offence. In default of payment of fine, they shall further undergo SI for three months.
11. Both the convicts are further sentenced to rigorous imprisonment for a period of three years for the offence punishable under Section 411 IPC.
12. All the sentences shall run concurrently and benefit of Section 428 Cr.P.C, if available, be extended to the convicts.
13. Copy of the judgment and order on sentence be given to the convicts free of cost. File be consigned to record room. (ANNOUCNED IN THE OPEN COURT ON 3rd April, 2008) (SANJAY SHARMA) ADDL. SESSIONS JUDGE KARKARDOOMA COURTS : DELHI.
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