IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA: ADDITIONAL SESSIONS JUDGE; FTC : E COURT: SHAHDARA: KARKARDOOMA COURT: DELHI. SESSIONS CASE No.67/2011 Unique Case ID No.272/2016 FIR No.65/11 U/S: 394/397/302/34 [ACT] P.S: Jagatpuri [ENTITY] Versus 1. [ENTITY] S/o Sh. Mishri Lal Yadav R/o H. No. 525, Gali No.9, West Kanti Nagar, Delhi. 2. [ENTITY] S/o Sh. Allauddin R/o H. No. 4235, Gali no.18, Shanti Mohalla, West Kanti Nagar, Delhi. 3. [ENTITY] S/o Sh. Suresh R/o Subzi Mandi Wali Gali, Som Bazar Jagatpuri, Delhi. Date of Institution : 24.08.2011 Date of Arguments : 02.12.2016 Date of Judgment : 07.01.2017 FIR No. 65/2011 [ENTITY] Vs. [ENTITY] & Others Page 1 of 23 JUDGMENT
Case of Prosecution
1. Briefly, the case of prosecution is that on 15.02.2011 on receiving DD No.48A, SI [ENTITY] reached at the spot i.e. H. No. 65, South Anarkali Extension near Mother Dairy, Baldev Park, where some people were found standing outside [ENTITY] on the road. On enquiry, SI [ENTITY] came to know from [ENTITY] s/o Sh. [ENTITY] that someone had fired at a person working at [ENTITY] and his son has taken him to Max Balaji Hospital. After leaving Ct. [ENTITY] to guard the spot, SI [ENTITY] visited Max Balaji Hospital where Sh. [ENTITY] was found admitted with the alleged history of gunshot injury on his head and patient was unconscious and in gasping condition. SI [ENTITY] recorded the statement of Mr. [ENTITY] that he along with his father Sh. [ENTITY] runs a medical shop in the name of [ENTITY]. On 15.02.2011 at about 9.00 pm, he along with his father was working in their medical shop, at that time his friend [ENTITY] S/o Sh. [ENTITY] also came to meet them who earlier worked as a part time employee at their medical store and therefore was having friendly relation with him. At about 11.00 pm, it was heavily raining and they three were talking in the shop, in the meantime, one boy of age about 20/25 years, wearing Grey colour sweatshirt, black jeans, having small beard, round face and big eyes came to their shop and said that he had met with an accident and asked for a painkiller. He gave him painkiller for Rs.10/-. However, the boy kept standing near his shop for 10 - 15 minutes and they engaged themselves in closing the shop. Firstly, he closed two out of three shutters of the shop and thereafter, started counting cash. At about 11.40 pm that boy again came inside his shop and took out a pistol like weapon and while pointing out it towards him asked him to handover cash, ring, golden chain and mobile, otherwise he would shoot him. He at once tried to overpower him and managed to throw his weapon, on which his father at once shouted to catch hold that boy else he would run away, while he would call the police by dialing 100 number. Thereafter, his father was about to take out his mobile phone from his pocket and they were apprehending that boy, in the meantime two boys of age between 25 - 30 years, dark complexion entered the shop, one of them snatched mobile phone of his father No. 9871214181 make Nokia, model 1600, grey and black colour and the other boy fired a bullet at his father which hit on his head. Thereafter, his father fell down on the packets of medicines and blood started oozing from his head due to which their whole attention diverted towards his father and those boys ran away in different directions while leaving black colour Pulsar motorcycle with keys, having Number Plate DL4S 6051. Thereafter, someone called the police at 100 number. On the basis of this complaint, present case FIR was got registered.
2. On 21.02.2011, Sh. [ENTITY] succumbed to his injuries during treatment in the hospital. Accused [ENTITY] was arrested in case FIR No.23/11 u/[SECTION] [ACT] and he made disclosure statement regarding the present incident. He was interrogated with the permission of the court in muffled face and was identified in TIP at Tihar Jail by witness [ENTITY]. At the instance of accused [ENTITY] accused [ENTITY] was arrested on 16.04.2011 and he got recovered mobile phone of deceased [ENTITY] make Nokia, Model 1600 from his house. Accused [ENTITY] was arrested on 09.12.2011 but he refused to join the TIP. During investigation, JCL 'K' (identity withheld) was arrested from Surat who made disclosure statement regarding commission of offence of present case FIR along with his associates [ENTITY], [ENTITY] and [ENTITY]. Further investigation was carried out. Challan was prepared and filed before the court. After compliance of [SECTION] [ACT] present case was committed to Session Court.
Charge framed against the accused persons
3. Charge u/[SECTION] [ACT] read with [SECTION][SECTION] [ACT] and u/[SECTION] [ACT] was framed against accused [ENTITY] and [ENTITY]. Additional charge u/[SECTION] [ACT] was framed against accused [ENTITY] and charge u/[SECTION] [ACT] was also framed against accused [ENTITY]. Charge u/[SECTION] [ACT] was also framed against accused [ENTITY].
Witnesses examined
4. In support of its case, prosecution has examined 27 witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under;
Material witnesses
5. PW-3 Sh. [ENTITY], son of the deceased is the eye witness of the incident as he was present at his shop along with his father Sh. [ENTITY] and friend [ENTITY]. As per PW-3, their shop is of 'L' shape having three shutters. On 15.02.2011, he along with his father and friend [ENTITY] were present at the shop. At about 9.00 pm, one boy came to his shop to buy pain killer. He gave him two tablets for Rs.10/-. After buying the pain killer that boy kept standing outside the shop along with his associate who was standing with the bike. After about half an hour both those boys left from there. PW-3 deposed that at about 11.10 pm, the boy who had bought the pain killer returned back at his shop and put a country made pistol on his head and came inside the shop. After two minutes, two more boys, one of them having country made pistol and other having long knife also came inside the shop. The two boys who were carrying country made pistol put the same on his head and the third boy having long knife took [ENTITY] inside near the inverter and asked him to handover the cash etc. PW-3 caught one hand of each of the two boys who had put country made pistol on him due to which pistol of one of the boys fell down from his hand. His father asked him to keep holding both the boys and that he would make phone call to the police from his mobile phone. While taking out the mobile, the mobile phone fell from the hand of his father and he raised noise and while fleeing, one of the boys fired from country made pistol and the bullet hit on the forehead of his father. The assailant took away mobile phone of his father and petty articles from the shop leaving behind their black colour bike. PW-3 deposed that he had also seen one more person, standing on the road outside the shop running with those three assailants. The neighbouring shopkeeper informed the police at 100 number. He took his father to Max Hospital, Patparganj. Police recorded his statement Ex.PW3/A and seized the bike, fired bullet, blood from the spot vide seizure memo Ex.PW3/B to Ex.PW3/E bearing his signature at point A. PW-3 identified the mobile phone make Nokia belonging to his father which was robbed as Ex.P-2 and identified all the three accused persons. PW-3 also identified the country made pistol Ex.P-3. PW-3 deposed that accused [ENTITY] is the same person who firstly came at his shop to buy medicine and then again came at his shop with katta and they had snatched katta from him. On 17.12.2011, he was taken to Tihar Jail for TIP of accused [ENTITY] but he refused to take part in TIP.
6. PW-5 is Dr. [ENTITY], Specialist, Forensic Medicine, Sabji Mandi Mortuary, who conducted the postmortem of the dead body of Sh. [ENTITY] and opined that the cause of death was Cranio cerebral damage consequent upon penetrating injuries to skull by projectile of fire arm. Injury No.1 was sufficient to cause death in ordinary course of nature and proved his report as Ex.PW5/A.
7. PW-15 is Ct. [ENTITY], who joined the investigation alongwith Inspector [ENTITY] and was witness of arrest of accused [ENTITY] and recovery of mobile phone of deceased from the house of accused [ENTITY]. PW-15 deposed that accused [ENTITY] got recovered a mobile phone from his H. No.525, Kanti Nagar, Krishna Nagar and identified the mobile phone as Ex.P-2.
8 PW-19 [ENTITY] is also witness of arrest of accused [ENTITY] and recovery of mobile phone from his house. PW-19 deposed that on 26.04.2011, he joined the investigation with Inspector [ENTITY] and that accused [ENTITY] got recovered a mobile phone make Nokia from an almirah of H. No. 525, Krishna Nagar, which was seized vide memo Ex.PW15/B and that seal after use was handed over to him.
9. PW-20 Sh. [ENTITY] is the another eye witness who was present at the time of incident at [ENTITY]. PW-20 deposed that at about 10.45 pm, he, [ENTITY] and his father were present at the shop and at about 10.45 pm a person came at the shop to buy some medicine and after taking pain killer that person left the shop. PW-20 further deposed that after 10 minutes, the same person alongwith another person came at the shop and they jumped over the counter of the shop and came inside. As per PW-20, both of them were having country made pistol. They asked [ENTITY] to handover whatever he had. [ENTITY] objected and caught their hands and in the process country made pistol of one of the assailants fell down and in the meantime the third assailant came there and after entering the shop, he pulled down the shutter and took him behind the rack and made him sit on the floor from where he could not see as to what was happening in front. PW-20 deposed that he heard the noise of [ENTITY] shouting for help and thereafter, he also heard the sound of firing of bullet. When assailants ran away from the shop, he came at the counter of the shop and found that Sh. [ENTITY], father of Sh. [ENTITY] had received bullet injury on the right side of his forehead. [ENTITY] rushed his father at Balaji Max Hospital, Patparganj and he came to know that the assailants took away the mobile phone of [ENTITY] from the shop. PW-20 deposed that he had identified accused [ENTITY] at Tihar Jail in TIP and in his cross examination by Ld. Addl. PP for [ENTITY] while pointing out towards accused [ENTITY] and [ENTITY] deposed that one of them came first. PW-20 also identified the country made pistol which was left by one of the assailants at spot as Ex.P-3.
10. PW-23 is Inspector [ENTITY], Investigation Officer, who narrated the steps taken during investigation and proved various memos prepared during investigation. PW-23 is also witness of recovery of mobile phone of the deceased from the house of accused [ENTITY].
11. PW-25 is SI [ENTITY], who after receiving DD No.48A regarding firing at [ENTITY] reached there. PW-25 deposed that he noticed that the counter of the shop was tilted and the articles were scattered in the shop and broken glass pieces were also lying there. PW-25 further deposed that one country made pistol and one fired cartridge and blood was lying there. One motorcycle No. DL 4S 6051 was also lying outside the shop. PW-25 after leaving Ct. [ENTITY] at the spot reached at Max Balaji Hospital and recorded the statement of [ENTITY] Ex.PW3/A. He is also a witness of the seizure of country made pistol, live cartridge, fired bullet shells and other pullanda prepared at the spot. He also identified the motorcycle which was left by assailants at the spot.
Formal Witnesses
12. PW-1 is Sh. [ENTITY], who identified dead body of Sh. [ENTITY] vide memo Ex.PW1/A being his son-in-law.
13. PW-2 is ASI [ENTITY] who was posted in Crime Team, East District and after receiving message from Control Room, he reached at the spot and got the spot photographed. As per PW-2, no chance prints were found at the spot and he lifted the exhibits and prepared his report Ex.PW2/A.
14. PW-4 is ASI [ENTITY], who was posted as Duty Officer at PS Jagatpuri on the intervening night of 15/16 February 2011. PW-4 recorded DD No.48 A Ex.PW4/A and also registered the present case FIR bearing No.65/11 and proved the copy of same as Ex.PW4/B.
15. PW-6 is SI [ENTITY], Draftsman who took measurements and rough notes at the instance of [ENTITY] and IO and prepared the scaled site plan which is proved as Ex.PW6/A.
16. PW-7 is Sh. [ENTITY], Ld. MM, who conducted the TIP proceedings of accused [ENTITY] on 21.04.2011 and proved the same as Ex.PW7/B. TIP proceedings of accused [ENTITY] was also conducted by PW-7 and he proved the TIP proceedings of accused [ENTITY], as Ex.PW7/B1. PW-7 deposed that accused [ENTITY], refused to join the TIP proceedings on which he was warned that during the course of trial an adverse inference may be drawn against him for such refusal.
17. PW-8 is Dr. [ENTITY], Emergency Physician, Max Balaji Hospital, Patpar Ganj, who examined [ENTITY] and proved his MLC as Ex.PW8/A.
18. PW-9 is Sh. [ENTITY], who is the registered owner of motorcycle bearing No. DL5ST-1409. PW-9 deposed that his motorcycle was stolen and he lodged the FIR No.60/11 at PS Jagatpuri regarding theft of the said motorcycle. As per PW-9, his bike was bearing forged number plate when it was recovered and released to him on superdari.
19. PW-10 is Sh. [ENTITY], Nodal Officer, who brought the CDR regarding the mobile phone No. 9871214181 of deceased for the period 10.02.2011 to 15.02.2011. He proved the copy of same as Ex.PW10/A. PW-10 also proved the Cell ID Chart as Ex.PW10/B and certificate u/[SECTION] of [ACT] as Ex.PW10/C.
20. PW-11 is SI [ENTITY], who joined the investigation along with Inspector [ENTITY] on 15.04.2011 and with the direction of the court arrested accused [ENTITY] vide memo Ex.PW11/A and in whose presence accused [ENTITY] gave disclosure statement Ex.PW11/B.
21. PW-12 is Ct. [ENTITY] who was left to guard the spot by SI [ENTITY] and he also got the case FIR registered.
22. PW-13 is Ct. [ENTITY], who filled up the PCR form and proved the same as Ex.PW13/A.
23. PW-14 is HC [ENTITY] who joined the investigation with IO and deposed that accused [ENTITY] deposed that he had hidden the weapon in the bushes at Railway line. He was taken there but the weapon was not recovered.
24. PW-16 is Ct. [ENTITY], who is already examined as PW-12 and inadvertently also referred as PW-16.
25. PW-17 is SI [ENTITY], PS Bardoli, District Surat. PW- 17 deposed that he was posted as Sub-Inspector at Police Station Rander, District Surat and on 28.05.2011 while they were on patrolling duty, they stopped a TSR for checking in which three persons were sitting and they were in possession of laptop, cutter, screwdriver, mobile phone and cash and during interrogation accused 'K' (JCL) gave disclosure statement Ex.PW17/A with regard to his involvement in the present case.
26. PW-18 is W/Ct. [ENTITY] who is already examined as PW- 13 and inadvertently also referred as PW-18 by Ld. Predecessor.
27. PW-21 Inspector [ENTITY], who conducted the inquest proceedings Ex.PW21/A and arrested accused [ENTITY] who made disclosure statement in respect of present case in case FIR No.73/2011, PS Krishna Nagar.
28. PW-22 is Ct. [ENTITY] who along with PW-21 Inspector [ENTITY] went to Subji Mandi Mortuary and got the body preserved. A sealed envelope and sample seal was also received by PW-22 after postmortem which was seized vide memo Ex.PW22/B.
29. PW-24 is Ct. [ENTITY] who was witness of arrest of accused [ENTITY]. PW-24 deposed that disclosure statement of accused [ENTITY] Ex.PW23/H was recorded in his presence and the accused had pointed out the place of occurrence and at his instance the pointing out memo Ex.PW23/I was prepared.
30. PW-26 is [ENTITY], DCP who after perusing the police file and after satisfying himself accorded sanction u/[SECTION] [ACT] against accused [ENTITY] and proved the same as Ex. PW26/A.
31. PW-27 is [ENTITY], who was posted as MHC(M) at PS Jagatpuri on 16.02.2011 with whom Inspector [ENTITY] deposited six sealed parcels under the present FIR sealed with the seal of ASB and one motorcycle make Bajaj Pulsar having number plate DL4S 6051 and he made entry in register No.19 and proved the copy of same as Ex.PW27/A. PW-27 also proved the deposit of other sealed envelopes during investigation as Ex.PW27/B and Ex.PW27/C and sending four sealed pullandas to FSL vide entries Ex.PW27/D and Ex.PW27/E and the copy of acknowledgment as Ex.PW27/F and Ex.PW27/G. [ENTITY]ment and Defence of Accused persons
32. [ENTITY]ment of accused persons u/[SECTION] [ACT] was recorded wherein they denied all the incriminating evidence, while claiming themselves innocent on the plea of false implication. However, they did not opt to lead any defence evidence.
Arguments and Conclusion
33. Arguments have been advanced by Sh. [ENTITY], Ld. Addl. PP for [ENTITY] as also by Sh. [ENTITY], Ld. Amicus Curiae on behalf of accused persons. Ld. Addl. PP for [ENTITY] argued that prosecution has proved its case beyond reasonable doubt. It has been argued that accused [ENTITY] was correctly identified by PW-20 [ENTITY] in TIP while accused [ENTITY] refused to join TIP. Mobile phone of deceased was recovered from the house of accused [ENTITY]. On the other hand Ld. Defence counsel argued that both the material witnesses were declared hostile by Prosecution and were cross examined by Ld. Addl. PP for [ENTITY] and they have given self contradicted statement. It has been argued that no date is mentioned on the seizure memos allegedly prepared at the spot. It has been further argued that accused [ENTITY] was identified by the complainant before the court and his judicial TIP was not got conducted. Ld. Defence Counsel further argued that all the accused cannot be convicted u/[SECTION] [ACT] with the aid of [SECTION] [ACT].
34. PW-3 Sh. [ENTITY] and PW-20 Sh. [ENTITY] are star witnesses of the prosecution. They both were present in the shop at the time of incident. PW-3 Sh. [ENTITY] deposed that his father Sh.[ENTITY] used to sit on the cash counter of the shop. On 15.02.2011 his friend Sh. [ENTITY] came to meet him. At about 11.00 pm, he alongwith his father and [ENTITY] were at the shop, a boy of age about 25 - 26 years came at his medical store and told that he had met with an accident with a bike on which he gave him two tablets worth Rs.10/-. PW-3 further deposed that after 10 - 15 minutes at about 11.30 pm that boy again came and put a gun type weapon on his forehead and asked for cash and mobile phone. He tried to snatch pistol from that boy and in the process the pistol fell from his hand. His father took out his mobile to inform the police. In the meantime, two more boys came into the shop. One was carrying a knife while other was carrying a pistol. One of them put knife on his friend and other boy put pistol on his head and one of them snatched mobile phone from his father. Those boys also took away cash from his shop. PW-3 deposed that while they were trying to run away, they raised noise and one of the boys fired from his pistol on the head of his father. While running away those boys left behind the motorcycle Pulsar. He rushed his father to hospital. He remained on ventilator for about one week and declared dead on 21.02.2011.
35. PW-3 identified accused [ENTITY] and [ENTITY] who subsequently came at the shop. PW-3 deposed that accused [ENTITY] fired at his father from the pistol. After arrest of co- accused [ENTITY], PW-3 was recalled for re-examination on 29.04.2013. On that day, PW-3 was cross examined by Ld. Addl. PP for [ENTITY] and he deposed that he cannot tell that accused [ENTITY] is the same person who had come to buy the pain killer or that accused [ENTITY] is the same boy who had snatched mobile from his father. PW-3 was again cross examined by Ld. Addl. PP for [ENTITY] on 17.02.2014 and he confirmed that accused [ENTITY] is the same person who first came at his shop to buy medicine and then returned at his shop with katta and they had snatched katta from him. To a specific question as put by Ld. Addl. PP for [ENTITY], PW-3 confirmed that accused [ENTITY] was also carrying revolver but cannot say that which of the two accused namely [ENTITY] or [ENTITY] had fired at his father. He identified clothes of his father which he had worn at the time of incident as Ex.P-4 and country made pistol left by one of the accused at his shop as Ex.P-3.
36. PW-20 Sh. [ENTITY] also deposed in the same line as of PW-3 Sh. [ENTITY]. PW-20 Sh. [ENTITY] deposed that on 15.02.2011 at about 9.00 pm, he went to the shop of [ENTITY] and at about 10.45 pm one person came to buy some medicine. After taking pain killer that person left the shop. PW-20 deposed that after 10 minutes the same person alongwith another person came at the shop. They jumped over the counter and came inside. Both of them were having country made pistols. PW-20 deposed that they asked [ENTITY] to handover whatever he had. [ENTITY] objected and caught their hands and in this process country made pistol of one of the assailants fell down. In the meanwhile the third assailant who was in possession of a knife, came there and after entering the shop he pulled down the shutter. The third assailant caught him and took him behind the rack and made him sit on the floor from where he could not see as to what was happening in front. PW-20 pointed out towards accused [ENTITY] who came at the shop and took pain killer and after some time came with accused [ENTITY]. PW-20 identified accused [ENTITY] in TIP Ex.PW7/B. PW-20 was also cross examined by Ld. Addl. PP for [ENTITY] and he deposed while pointing out towards accused [ENTITY] and [ENTITY] that out of these two, one of them came first.
37. Both the eye witnesses of the incident have identified accused [ENTITY] and [ENTITY] as one of them who came at first instance to buy pain killer and later on with third assailant came inside the shop. PW-20 also identified accused [ENTITY] in TIP at Tihar vide proceedings Ex.PW7/B. Accused [ENTITY] refused to join the TIP vide proceedings Ex.PW7/B1.
PW-3 [ENTITY] also identified accused [ENTITY] as who fired upon his father. The identification of accused [ENTITY], [ENTITY] and [ENTITY] regarding their presence at spot is clearly established by the testimonies of both these eye witnesses of the incident, although they have given different version as to whom of the assailants had fired upon Sh. [ENTITY]. At this stage, it is also pertinent to mention over here that after recording part examination-in-chief of PW-3 [ENTITY] on 27.01.12 which was deferred on the request of the [ENTITY] and before recording his further examination-in-chief, this witness filed an application before Ld. Predecessor that after the hearing on both the occasions of identification, accused threatened him to see later on. Ld. Predecessor vide order dated 31.08.2012 also directed SHO, PS Jagatpuri to provide security to the witness. Regarding identification of accused [ENTITY] by Mr. [ENTITY], before the court, I am guided by Judgment of Hon'ble Supreme Court in Visveswaran vs. [ENTITY] (2003) 6 SCC 73, wherein it was ruled as under:-
"11 The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence. In the present case, there are clinching circumstances unerringly pointing out the accusing finger towards the appellant beyond any reasonable doubt".
38. First contention of Ld. Defence Counsel was that both eye witnesses i.e. PW-3 [ENTITY] and PW-20 [ENTITY] were cross examined by Ld. Addl. PP and as such they are not reliable as they have contradicted to their earlier statements recorded during investigation. It is settled law that each case and the deposition of each witness has to be considered in the light of its peculiar circumstances, having regard to the rule of reason, prudence and credibility which has to be applied. Both eye witnesses have deposed the incident in a cogent manner and their testimonies coincided completely with what they stated during investigation. No doubt, PW-3 [ENTITY] had shown extra ordinary courage at the time of incident while holding the hand of assailants while they were carrying pistols but unfortunately could not save his father. PW-3 Sh.[ENTITY] specifically deposed that he had also seen one more person outside the shop running with those three assailants. Ld. Addl. PP for [ENTITY] cross examined these witnesses only with regard to the role of the particular accused as to who came firstly in the shop and who fired upon deceased [ENTITY]. There is no confusion regarding identity of the accused persons regarding their presence at the spot by material eye witnesses. Their testimonies are reliable and trust worthy and cannot be disbelieved only due to the reason that they were cross examined by Ld. Addl. PP for [ENTITY]. In this regard, I am guided by the judgments of Hon'ble Supreme Court. First is titled as Bhagwan Singh vs. [ENTITY] of Haryana AIR 1976 SC 202, wherein it was held that merely because the court gave permission to the Public Prosecutor to cross examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In another authority reported as Rabindra Kumar Dey v. [ENTITY] of Orissa, AIR 1977 SC 170 : (1977 Cri LJ 173), it was observed that by giving permission to cross-examine nothing adverse to Credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is cross examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the Court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy".
39. PW-3 Sh. [ENTITY] deposed that assailant took away the mobile phone of his father and some petty articles from the shop leaving behind their black colour bike. The said bike was stolen one. PW-9 Sh. [ENTITY] is its registered owner who got registered the case FIR No.60/11 at PS Jagatpuri regarding theft. Its original registration No. was DL5ST-1409 and at the time of incident it was having fake number Plate bearing No.DL4S 6051. The motorcycle was produced before the court and identified as Ex.P-1. Accused [ENTITY] is arrested in another case FIR No.73/11 PS Krishna Nagar on 12/13.04.2011 and he made disclosure statement with regard to present case. PW-21 Inspector [ENTITY] formally arrested him in the present case with permission of the court. After identification of accused [ENTITY] in judicial TIP at Tihar Jail, at his instance accused [ENTITY] was arrested and mobile phone of deceased was recovered from the house of accused [ENTITY]. PW-19 [ENTITY] and PW-23 Inspector [ENTITY] are witnesses of recovery. Their lengthy cross examination have not yielded any fruits. PW-3 Sh. [ENTITY] identified the mobile phone Nokia 1600 as Ex.P-2 to be of his father which was robbed.
40. The next contention of Ld. Defence Counsel was that seizure memos prepared at the spot on the day of incident does not bear date and thus creates a doubt in respect of the seizure of these seized articles from the spot. In this regard perusal of seizure memos of fired bullet, fire arm desi katta, blood, blood stained clothes of deceased and live cartridges shows that all these memos bear date 16.02.2011 on the top along with FIR Number but do not have date at the bottom under the signature of IO/Inspector [ENTITY]. PW-27 [ENTITY] deposed that on 16.02.2011, he was posted as MHC(M) PS Jagatpuri and on that day Inspector [ENTITY] had deposited six sealed parcels under the present FIR sealed with the seal of ASB and proved the copy of register No.19 as Ex.PW27/A. The entries made in register No.19 i.e. Ex.PW27/A on 16.02.2011 shows that all the seized articles were deposited on the day of incident itself, therefore if these memos do not bear the date under the signature of IO, it does not create any doubt regarding their seizure from the spot.
41. It was argued by Ld. Defence Counsel that PW-25 SI [ENTITY] deposed that he recorded the statement of [ENTITY] near reception of hospital and [ENTITY] also met him in the hospital. PW-20 [ENTITY] also deposed that he remained in the hospital whole night with [ENTITY]. However, the Ld. Defence Counsel then questioned that how did [ENTITY] sign on the seizure memos prepared at the spot. In this regard PW-25 SI [ENTITY] in his cross examination confirmed that at about 1.00 or 1.15 pm, he came back to spot from hospital and [ENTITY] was with him.
42. In the case of Appabhai and another Vs. [ENTITY] of Gujarat AIR 1988 Supreme Court 696, the Hon'ble Court held that court while appreciating the evidence, must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory maybe given due allowance. It was further held therein that when a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story.
43. PW-25 SI [ENTITY] who firstly visited to spot pursuant to DD No.48A deposed that he noticed that counter of the shop was tilted and articles were scattered in the shop. One country made pistol, one fired cartridge and blood was also lying there. One motorcycle No.DL4S 6051 was lying outside the shop. As per PW-25 when country made pistol was opened, one live cartridge was found inside the Barrel which was unloaded. Country made pistol, live cartridge, empty cover of shell were seized and sent to FSL for examination. As per report of FSL Ex.PW23/P country made pistol was in working order and test fire was conducted successfully. The country made pistol and cartridges are opined as fire arm and ammunition as defined in the [ACT].
PW-3 Sh. [ENTITY] who gave two tablets of pain killer to the assailant confirmed in his cross examination recorded on 17.02.2014 that accused [ENTITY] is same person who first came at his shop to buy medicine and then returned to his shop with katta and they had snatched katta from him. PW-3 [ENTITY], son of the deceased dealt with the assailant who firstly came to take pain killer and later on caught hold him when he put country made pistol over him. His evidence in this regard is reliable and trustworthy. PW-26 [ENTITY], DCP after perusal of police file accorded sanction u/[SECTION] [ACT] i.e. Ex.PW26/A against accused [ENTITY]. Therefore, I am of the opinion that accused [ENTITY] was having country made pistol in his possession without any permit or license which he used against PW-3 [ENTITY] at the time of incident and as it fell down from him, same was seized during the investigation.
44. Next limb of arguments of Ld. Defence Counsel was that all the three accused cannot be convicted for offence punishable u/[SECTION] [ACT] with the aid of [SECTION] [ACT] as bullet was fired by one 'K' (JCL). As per eye witness [ENTITY], accused [ENTITY] came firstly at his shop for buying pain killer and thereafter, two more boys i.e. accused [ENTITY] and [ENTITY] came inside the shop. As per PW-3 accused [ENTITY] or accused [ENTITY] fired at his father and he had also seen one more person who was standing on the road outside the shop running with those three assailants. He identified all the three accused i.e. [ENTITY], [ENTITY] and [ENTITY] who entered into the shop.
45. Under the provisions of [SECTION] the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in [SECTION], when an accused is convicted under [SECTION] read with [SECTION], in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them.
46. In an authority reported as Abrahim Sheikh & Others vs. [ENTITY] of West Bengal (AIR 1964 SC 1263) Hon'ble Apex Court observed that no doubt a person is only responsible ordinarily for what he does and [SECTION] [ACT] ensures that. But [SECTION] as well as [SECTION] provide that if the criminal act is result of the common intention, then every person who did the criminal act with such intention would be responsible for the total offence irrespective of the share which he had in its perpetration. The logic, highlighted illuminatingly by the Judicial Committee in the illustrious case of [PRECEDENT], is that in crimes as in other things "they also serve who only stand and wait".
47. Thus, it has been proved beyond reasonable doubt that all the three accused on 15.02.2011 along with JCL 'K' in furtherance of their common intention committed robbery of cash and mobile phone at [ENTITY], 65 South Anarkali Exten., Delhi while using deadly weapon and further committed murder of Sh. [ENTITY] by firing a bullet on his head therefore, all the three accused namely [ENTITY], [ENTITY] and [ENTITY] are held guilty for offence punishable u/[SECTION] [ACT] read with [SECTION] [ACT]. Accused [ENTITY] is also held guilty for offence punishable u/[SECTION] [ACT]. All the three accused are accordingly convicted thereunder.
Announced in the open court ([ENTITY]) On 07.01.2017 ASJ/FTC/E-COURT Shahdara/KKD/Delhi