Ms. Aishwarya Rao, Advocate v. STATE

Judgment

1. The present appeals under Section 374 of the Code of Criminal Procedure, 1973, (for short, ‘CrPC’) have been filed by the Appellants assailing the impugned judgment of conviction dated 24.04.2018 and order on sentence dated 03.05.2018 passed by learned Additional Sessions Judge-02, North Rohini Courts, Delhi, whereby Appellants have been convicted in Sessions Case No. 58155/16, arising out of FIR No. 152/12, under Sections 302/406//396/457/34 of the Indian Penal Code, 1860, (for short, ‘IPC’), registered at Police Station South Rohini. CRL.A. 826/2018 and connected matters

2. Vide the aforesaid impugned judgment of conviction and order on sentence the Appellants namely, Rusy @ Surender, Rajesh @ Tinku and Ravinder @ Tunda, (hereinafter referred to as, ‘Rusy’, ‘Tinku’ and ‘Tunda’ respectively), have been convicted for the offences punishable under Sections 302/34 and Section 460 of the IPC. Whereas another co-accused person named, Mahesh @ Chikna, was acquitted the offences punishable under Sections 302/457/460/395/396/34 of the IPC. The Appellants were sentenced to undergo rigorous imprisonment for life along with a fine of Rs. 10,000/- each and in default of payment of fine, to undergo further simple imprisonment for a period of 1 year each for the offence punishable under Sections 302/34 of the IPC. The Appellants were also sentenced to rigorous imprisonment for a period of 10 years along with a fine of Rs. 5,000/- each and in default of payment of fine, to undergo further simple imprisonment for a period of 6 months each for the offence punishable under Section 460 of the IPC. Learned ASJ, while passing the impugned order on sentence, had also directed the learned Secretary, North, DSLSA, Rohini Court, Delhi for awarding appropriate compensation to the family of the victim/deceased in accordance with the provisions of Section 357A of the CrPC and Victim Compensation Scheme. FACTUAL BACKGROUND

3. Brief facts necessary for the disposal of the present appeals are as under: - CRL.A. 826/2018 and connected matters i) On 24.07.2012 at around 02:15 AM, vide DD No. 6A, Inspector VN Jha (PW-25) along with SI Mohd. Imtiyaz Alam (PW-23) and Constable Ajay Singh went to G-30/340, 341, Sector 3, Rohini in pursuance of PCR call received. On reaching at the said address, they found that the SHO along with staff and HC Rajesh were already there and at the front gate and street of the said house there was a lot of blood. It was also found that there was an iron rod (house breaking tool) lying on the sofa of the inner room of the house. ii) After enquiring regarding the victim, it was revealed that she was taken to Jaipur Golden Hospital. Then, PW-25 left PW-23 at the spot and went, along with HC Rajesh, to the said hospital and obtained MLC (No. 11308) of the deceased/victim whereby, the latter was declared brought dead by the concerned doctor. iii) In the hospital itself, Bhim (PW-1), eye-witness, son of the deceased, met PW-23 and his statement was recorded on the basis which FIR in the present case was registered. In his statement, PW-1 stated that he was running a cyber cafe in Karol Bagh and residing at the aforesaid address along with his family. He stated that like all other days, he, after closing his shop, returned home at 09:30 PM and at around 10:30 PM, he and his family members went to sleep in their respective rooms. He further stated that his mother, the deceased, was sleeping in the drawing room which is adjacent to the main room on the ground floor, whereas his father was sleeping in the room which is CRL.A. 826/2018 and connected matters to the right side of the drawing room and he was inside another room on the ground floor while his brothers were sleeping on the upper

floors in their respective rooms. He further stated that before going to sleep, he had bolted the latch of the main door from inside. iv) At around 1:30 AM, he heard some noise and because of the same, he woke up and saw that one unknown person was going to the drawing room from his room. He then got suspicious of the fact that someone had intruded into their house and immediately turned on the light of the drawing room and caught hold of the said person. He raised alarm, and hue and cry and on hearing his voice, his mother, who was sleeping in the drawing room, also woke up and caught hold of another person who was present in the drawing room. Thereafter, both of them raised hue and cries. v) Thereafter, they found that the door of the main gate of their house was opened and one more person (third person) was standing outside the gate and holding a knife in his hand. This third person, then, came inside the house and told PW-1 and his mother that they should leave his companions otherwise they will be killed and the other two persons also warned them in this regard. Then, this third person came inside the room and gave a severe blow, thereby, stabbing mother of PW-1 because of which she started screaming. After listening to the hue and cry of his mother, his father, who was sleeping in the adjacent room, also woke up and all of them started taking care of his mother. CRL.A. 826/2018 and connected matters vi) Taking advantage of the situation, all three of the said persons ran away. Thereafter, he called his brothers from the upper floors as also made a PCR call. His mother was taken to Jaipur Golden Hospital where she was declared brought dead. PW-1 further stated that he can identify all three of the said persons, if brought before him. He also provided the descriptions of the said persons. PW-1 further stated that one brown colour purse along with RC of a motorcycle, voter card, an ATM card, few visiting cards and Rs. 160/- went missing in this incident. He also stated that in this incident, he had also received injuries on his left wrist, and while running away, the said persons left the iron rod on the sofa of their room. vii) On the basis of the facts narrated by PW-1 in his statement (Ex. PW-1/A), PW-23 prepared a rukka and sent HC Rajesh to the police station for registration of FIR and subsequently, FIR under Sections 460/302/34 of the IPC was registered at PS South Rohini. viii) Thereafter, the crime team and FSL team inspected the spot and collected evidence from there and corpse of the deceased was directed to be preserved. Autopsy of the deceased was conducted in BSA hospital. Statements of various witnesses were recorded and case property seized from the spot was deposited in maalkhana. The aforesaid missing brown purse was found at the spot of another incident, i.e., D-17/252, Sector-3, Rohini. CRL.A. 826/2018 and connected matters ix) On 25.07.2012 at around 08:30 PM, on the basis of information of Constable Rajkumar (PW-11), a park situated in H-32, Sector 3, was surrounded and three suspects, i.e., the present Appellants, were apprehended. On the personal search of Rusy, an iron rod (house breaking tool) was recovered from the inner pocket (dub) of his pant and two ATM cards were also recovered. From his right pocket, one silver coin was also recovered which as per Rusy, he had stolen from Sector 3, Rohini, two days ago. Whereas on the personal search of Tinku, one buttondar knife was recovered from his left pocket and one silver coin, which he had looted from one old lady after wounding her. And from the personal search of Tunda, one buttondar knife and one silver coin was recovered. From the disclosure statements of all the Appellants it was revealed that they had looted the said silver coins few days ago. x) Based on the disclosure statements of the Appellants, two more accused persons, i.e., Mahesh @ Chikna and Amit @ Gora, were also apprehended. Amit @ Gora was stated to be a juvenile and was subsequently sent to an observation home. As per the disclosure statements of the Appellants, the blood-stained clothes, which they had hidden near the BSA hospital in bushes, were recovered and seized. xi) Pursuant to the aforesaid recoveries, Sections 25/27 of the Arms Act were added and a motion to conduct Test Identification Parade (TIP) of the present Appellants was moved, however, all of them CRL.A. 826/2018 and connected matters refused to undergo TIP. The aforesaid brown purse was recovered in FIR No. 153/12 and a copy thereof was obtained and placed on record in the present case. FIR No. 153/12 relates to another incident which had occurred in the same vicinity on the same night as the incident in the present case is stated to have been reported. Statement of Insp. Anil (PW-17), who was IO in the said FIR, was also recorded in this regard. TIP of the said purse was also conducted through Dilip Kumar (PW-2), who had correctly identified the purse. xii) After completion of investigation, chargesheet for the offences punishable under Sections 302/460/396/380/457/34 of the IPC and Sections 25/27 of the Arms Act was filed in the Court of competent jurisdiction. Learned Trial Court, vide order dated 23.07.2013, framed charges offences punishable Sections 302/457/460/395/396/34 of the IPC against the present Appellants. xiii) Prosecution in order to substantiate the charges levelled against the present Appellants had examined 25 witnesses during the course of trial. Learned Trial Court after analysing the prosecution evidence, statement of the Appellants recorded under Section 313 of the CrPC had convicted and sentenced them as noted hereinabove. Hence, the present appeals have been filed assailing the impugned judgment of conviction and order on sentence. CRL.A. 826/2018 and connected matters SUBMISSIONS ON BEHALF OF APPELLANTS

4. Learned Counsels for the Appellants have made the following submissions in support of their respective appeals.

4.1 Arguments advanced on behalf of Appellant, Rusy, are as follows: - i) Learned Counsel for Rusy has submitted that the Trial Court has passed the impugned judgment of conviction and order on sentence without due appreciation of facts and evidence placed on record by the prosecution and has erred in convicting the Appellants. It is further the case of the Appellant that the prosecution has built up an entirely fabricated case against the present Appellant as well as the other co-convicts in the present case. ii) It is the case of the Appellant that the concerned Investigating Officers, i.e., PW-25 and PW-17, in both the aforesaid FIRs were under constant pressure from their senior police officials to resolve the said cases. Attention of this Court has been drawn towards the testimonies of PW-20, PW-17, PW-23, and it is submitted that in the testimonies all these witnesses, to certain extent, have admitted the fact that they were under immense pressure from their seniors to resolve both the cases whereby deaths of persons had been reported to have taken place on the night of 24.07.2012 within the same vicinity. It has been pointed out that PW-17, IO in the other FIR No. 153/12, CRL.A. 826/2018 and connected matters has also admitted the fact that he had shared information with the IO in the present case and both of them were in constant communication with each other. iii) It is further submitted that the prosecution has foisted a false case against the present Appellants as they were allegedly holding bad reputation in the vicinity. It is also the case of the Appellant that allegations made in FIR No. 153/2012 were not put to him as well as to the other co-convicts in the present case while their statement under Section 313 of the CrPC was recorded. Hence, reliance has wrongly been placed in the impugned judgment on the said incriminating circumstances to convict the present Appellant. iv) It is submitted that the arrest of the present Appellant has been made in a haste and hurried manner and that too, on the very next day of the happening of the incident. It is further submitted that PW-11, Rajkumar, has in his testimony stated that he was briefed by IO/PW- 25 in respect of the descriptions of the present Appellant as well as his other co-convicts/appellants. It is further pointed out that PW-11 was not the beat constable of the area from where the present Appellants were arrested and no explanation has been rendered by PW-11 as to why he was patrolling in that area prior to the arrest of the present Appellants. v) It is pointed out that perusal of the arrest memos of the Appellants would show that no public witnesses were associated by CRL.A. 826/2018 and connected matters the team of police officials who were arresting the present Appellants. As per the case of prosecution, PW-25 had asked many public persons to join the investigation. However, no one had volunteered. It is the case of the Appellants that given the timing and the place from where the Appellants were arrested, it is quite unusual that the investigating team was not able to associate any public witness while arresting the Appellants. It is further submitted that a mere statement to the effect that efforts were made to join public witness during arrest would not be sufficient to place reliance on the case of the prosecution as the- names of the persons whom the investigating team had approached, were not noted and it has also not been explained as to why provisions of Section 174 of the IPC were not invoked against such persons who had refused to join the investigation at the request of the concerned investigating officer. An adverse inference has to be drawn against the case of prosecution for not joining the public witnesses while arresting the Appellants. vi) It is submitted that PW-1 in his statement (Ex. PW-1/A), on the basis of which FIR in the present case was registered, had not given any facial descriptions of the present Appellants. It is further pointed out that the police witnesses, i.e., PW-8, PW-23, PW-25, in their testimonies were explicit to the extent that the physical as well as the facial descriptions of the present Appellants were not mentioned by the PW-1/complainant in the ruqqa. Therefore, no facial as well as physical descriptions of the Appellants was available with the investigating team prior to their arrest and the same casts suspicion CRL.A. 826/2018 and connected matters over the case of prosecution. It is further the case of the Appellants that it is highly unlikely that after committing murders, the Appellants would be sitting in a public park. It is further submitted that the learned Trial Court has, therefore, erred in placing reliance on the testimony of the PW-1/complainant in convicting the Appellants. vii) Insofar as the refusal of the Appellants to undergo TIP is concerned, it is submitted that though no answer, in particular, has been given by them, however, the same has been answered by them in their statement under Section 313 of the CrPC. It is the case of the Appellants that despite their refusal to undergo TIP, the Appellants were shown to the eye witnesses of the present case while they were in police custody in respect of other FIR No. 153/2012. It is pointed out that PWs 1, 2 and 9, in their statements recorded under Section 161 of the CrPC had stated that they had identified the present Appellants in the police station, South Rohini, when they were in police custody in the aforesaid FIR. It is further pointed out that PW-1, in his statement under Section 161 of the CrPC, had stated that he had identified the present Appellants in Court as he had already identified them in the police station, when he had accompanied his brother for the TIP of the aforesaid missing brown purse. It is also the case of the Appellants that they had refused to undergo TIP as the concerned witnesses were already shown the pictures of the Appellants in the police station in order to facilitate their identification. In view of the aforesaid, it is submitted that the subsequent dock identification of the Appellants by PW-1 and PW-9 stands vitiated. CRL.A. 826/2018 and connected matters viii) It is further the case of the Appellants that their TIP was not conducted in accordance with the procedure envisaged in CrPC. It is contended that possibility of the present appellants being shown to the eye witnesses prior to their identification in the Court cannot be ruled out and, in such a case, reliance cannot be placed on the dock identification. Reliance has been placed on Mukesh Singh v. State,1 and Kamal v. State (NCT of Delhi),2 in support of this contention. ix) It is further submitted that PW-1 and PW-9 had identified the present Appellant as well as other co-convicts in the Court along with their respective names, and thus, have failed to render any explanation as to how they knew names of the Appellants as the latter had refused to undergo TIP at the first instance. This, as per the learned Counsel for the Appellant, raises suspicion that the latter has falsely been implicated in the present FIR. x) Regarding the alleged recoveries affected from the Appellant, it is submitted that the same do not, in any manner whatsoever, connect the Appellant with the commission of the acts alleged against him in the present case. It is further submitted that it is not the case of the prosecution that the alleged iron rod which has been recovered from present Appellant has been used to cause death of the mother of the PW-1. With respect to the recovery of 2 ATM cards from the present Appellant is concerned, it is submitted that no attempt has been made 1 2023 SCC OnLine SC 1061 2 2023 SCC OnLine SC 933 CRL.A. 826/2018 and connected matters by the Appellant to withdraw any sum of money using the said cards and the same had been planted on the Appellant in order to falsely implicate him. In respect of the silver coin from the back pocket of the present Appellant, it is submitted that the same has not been identified by the witnesses either in FIR No. 152/2012 or FIR No. 153/2012 and the same are easily available in the market. It is further submitted that the alleged missing brown purse which has been recovered from the crime spot of the other FIR No. 153/12 is also readily available in the market, and thus, the same does not prove the presence of the present Appellant at the crime spots of either of the FIRs. Moreover, the said purse is stated to be of PW-2, however, it contained a duplicate of driving license (DL) of Prem Chand (brother of PW-1 and PW-2) and no explanation has been put forth by either of these witnesses in their testimonies before the learned Trial Court as to why DL of Prem Chand was found in PW-2’s purse. It is pointed out that the said purse was recovered from the place of incident of FIR No. 153/2012 and there was one independent witness, Jyoti, to the recovery/seizure memo of the said pursue and the said witness has not been examined by the prosecution during the course of trial in the present case. xi) Attention of this Court has been drawn towards the personal search memos of the Appellants (Ex. PW-11/A to Ex. PW-11/C) and it is submitted that the same have been prepared by different persons as the handwriting engraved in all of them are different. It is the case of the Appellant that it is unlikely that the same had been prepared at the spot and rather have been prepared in the police station. CRL.A. 826/2018 and connected matters xii) Insofar as the recovery of the blood-stained clothes allegedly worn by the Appellant is concerned, it is submitted that the prosecution had failed to establish that the same were connected to the Appellant or other co-convicts. It is pointed out that no specific description as such in respect of the clothes worn by the Appellant as well as other co-convicts/Appellants was given by the PW- 1/complainant in his statement (Ex. PW-1/A) recorded by IO/PW-25 and the latter in his testimony recorded before the learned Trial Court had admitted the fact that he did not have any specific description of the Appellants prior to their arrest. It is further pointed out that the said clothes of the Appellant as well as the other co-convicts were never sent to FSL for examination. xiii) It is further submitted that the prosecution has not examined the brothers of the PW-1/complainant and sister-in-law (bhabhi), who were also present at the spot where the incident in the present case had taken place. Therefore, an adverse inference has to be drawn against the prosecution for not examining them. xiv) It is further submitted that there is no forensic evidence which could link or connect the Appellant herein, or for that matter the other co-convicts, to the recoveries made in the present case thereby proving their complicity in the commission of the offences alleged in either of the FIRs. It is further pointed out that it is not the case of the CRL.A. 826/2018 and connected matters prosecution that the iron rod recovered from Rusy was used to forcibly enter the house of PW-1 on the date of incident. xv) Without prejudice to the aforesaid contentions, it is submitted that the learned Trial Court has erred in awarding consecutive sentences to the Appellants in the present case as they have already been sentenced for life imprisonment and in view of the embargo provided under Section 31(2) of the CrPC, the Appellants could not have been awarded consecutive sentences. Reliance has been placed on O.M. Cherian v. State of Kerala3 and Duryodhan Rout v. State of Orissa4 to support this contention. xvi) It is further submitted that, even if, the presence of the Appellant is presumed at the crime spot, the same does not reflect intention on the part of the Appellant to cause the death of the mother of the PW-1. It is the case of the Appellant that the present is not the case where the deceased was repeatedly stabbed with a knife and a single blow injury is not sufficient, in view of the facts of the present case, to show that the Appellant had intended to cause the death of the mother of PW1. Thus, the present case would not come within the purview of Section 302 of the IPC. Reliance has been placed on Matadin v. State of Maharashtra5 to support this contention.