Pradeep Kumar v. The State through Govt. of NCT of Delhi

15. The raiding patiy proceeded to the Badarpur market in a Government vehicle where they met the informer. On the pointing out ofthe secret informer, they apprehended appellants Pradeep and Mohd. Shamim who reached the spot on a motorcycle bearing no.DL 3S AJ 1815 of the Hero Honda Passion make. Personal searches of these two persons were effected vide memos (Exhs.PW. 13/A & B respectively). The police witnesses have proved that the appellant Mohd. Shamim handed over one Seiko make wrist watch and one mobile of Panasonic make vide the memo Exh.PW-13/C to the police. The moter cycle was also seized vide memo Exh.PW 13/D.

16. The appellant Pradeep is stated to have led the police to his house in Balmiki 1\/loha11a, Tuglakabad Extension and got recovered other jewellery items from his house which were part of the robbed atiicles. The investigating officer seized the atiicles vide Exh.PW 13/G. or;

17. Mohd. Shamim also took the police team to his house at Jhuggi No.228, - Gola Kuan, Tehkhand, Okh1a and got recovered a pulanda from below the wooden door on the roof of the house which pulanda contained nine jewellery nngs. Mahd. Shamim also got recovered one desi 'katta' (weapon) of.315 bore and one live cartridge. The jewellery articles, the'katta' and the caIiridge were separately seized and sealed by the investigating officer. The investigating officer prepared the sketch of the desi 'katta' and live cartridge vide the memo Exh.PW 13/H.

18. PVV 22 - S[1] Prasun has deposed that on interrogation, the two accused persons gave disclosure statements Exh.PW 13/E and 13/F which led to the discovery of the factum of the other appellants being inyolved in the offence in question. Their voluntary disclosures also led to the recovery of stolen properiies Uewellery items) which were recovered vide memo Exh.PW BIG and 13IW. The case propeliy recovered from the accused Pradeep was proved on record as Exh.P 29 to P 34 while ear tops were produced as Exh.PW 34/A-1. PW 22 SJ[ Prasun also identified the case propeliy which was recovered from the accused Mohd. Shamim.

19. It is in the evidence that one gold chain with art Om pendant was earlier recovered from the accused. It is also in the testimony of PW 13 SI Suresh Sharma that one recovered wrist watch of the make Designer was handed over by him to the investigating officer. It is fmiher in the evidence led by the pr~secution that the appellants Pradeep and Shamim thereafter took the police team to the TSR stand in Tehld1and, Ollila. On the pointing out of the accused Pursuant to this disclosure statement, Kanhaiya Lal son of Nek Ram led the police team to his jhuggi and from an almirah, he produced one cloth pulanda before the investigating officer. In this pulanda, it is alleged that one chain, gold bracelet, one gold ring gents, one silver pajeb, one pair of silver ear rings, two silver coins, two silver brooches and one key ring, all part of the robbed items were found. The accused also handed over one knife to the 10 who prepared a sketch thereof vide memo Exh.PW 131M.

201. Pursuant to their disclosure statement, these accused persons further led the police team to a jhugi in main market JJ Colony, Tehkhand, Okhla to the Khokha of accused Sonu and on their pointing out of accused persons, accused Sonu-appellant was apprehended and his disclosure statement was recorded as Exh.PW 13/Q. The accused Sonu handed over a blue coloured bag Classic with the words 'Top a/the world; East; West; North & South', written on it. This bag contained five ornaments one being a white pearl/diamond necklace, one diamond ring, one diamond pendent, one gold bracelet and two brooches. These articles were kept in a pulanda and sealed and one knife was also recovered from the bag. The 10 prepared the sketch of the knife Ex.PW 13/R, kept the same in the same pulanda and sealed it with the seal of 'PM and seized both the pulandas vide memos Ex.PW 13IS & T.

21. Thereafter, the accused persons are stated to have taken the police team to "/ <> is claimed that he was interrogated and a disclosure statement was recorded vide memo Exh.PW 13/U and four ornaments were recovered from the first floor room ofhis house, which were also seized by the police.,

22. These accused persons were identified by PW 13 SI Suresh Shanna as well as PV1/ 22 S[1] Prasun in the witness box. These two police witnesses also identified the case property recovered from these persons respectively. j

23. The prosecution has also claimed that the faces of the accused persons were "kept muffled and they were produced before the concerned Magistrate along with an application for a Test Identification Parade (TIP). The appellants Pradeep Kumar, and Sonu refused to participate in the test identification parade (TIP). The appellant Mohd. Shamim finally agreed for getting his TIP done. The police contends that though the face of Mohd. Shamim was kept muffled during the period of two days police remand, however, on 23rd December, 2003, the accused l\1ohd. Shamim also refused to join the TIP before the concerned Magistrate in the Tihar jail.

24. The accused person also pointed out the jewellery shop of Dharam Pal and Manish Soni to whom some stolen property was sold. These jewellers were also arrested by the police. Based on the disclosures, Santosh Kumar, driver of the three wheeler scooter no.DL IRe 8210 was arrested and from his possession, a bank note of Rs.500 was recovered along with his three wheeler

25. One Amjad Khan (since deceased) sun-endered before the court who is alleged to have sold country made revolver to the appellant Shamim.

26. The Test Identification Parade of the recovered ariicles was conducted in the presence ofPW 22-1\11s. Ila Rawat, Metropolitan Magistrate by PW 1 Anuja, daughter of the deceased and of some the articles by PW 15 Sandeep Sunna. It is stated that TIP of some of the jewellery items, which were foreign made, could not be carried out for the reason that similar jewellery was not available for mixing with the recovered articles. On completion of the investigation, the police filed a challan.

27. On completion of the investigation, the police filed a charge sheet in cOUli. By an order dated 6th October, 2004, the court found a prima facie case for commission of offences punishable under Sections 120B/302/394/395/396 of the IPC against all the accused persons except Dharampal and Manish Soni. A prima facie case for commission of an offence under Section 390 of the Indian Penal Code was round made out additionally against the accused Mohd. Shamim, Sonu & Kanhaiya. A prima facie case for commission of offence underSection 412 of the IPC was found made out against the accused Dharam Pal and Manish Soni. FUlihermore, a case under Section 27/54/59 ofthe Anns Act was found made against the accused Kanhaiya, son of Nek Ram. Charges were accordingly drawn up against accused persons by the order dated 6 th

28. The prosecution examined 23 witnesses in support of its case. We find that thereafter the incriminating circumstances in the prosecution evidence were put to the accused persons who had 0ppOliunity to explain the same in' their statements recorded under Section 313 ofthe Cr.P.C.

29. The appellants opted to lead defence evidence. Mohd. Shamim; Sonu; Kanhaiya (son of Lmani Narain); Kanhaiya (son ofNek Ram) and Pradeep lead defence evidence tD establish that they had been anested from their respective residences and not in the manner alleged by the prosecution.

30. After a detailed consideration of the evidence, by the judgment dated 15th December, 2009, the trial comi concluded that the offence of dacoity was not established inasmuch as it was the case of the prosecution witnesses that only four intruders were guilty of actually committing the crime. It was, therefore, held that the prosecution had made out a case of rQbbery and not dacoity. It was also held that the accused lVlanish Soni & Dharam Pal, though charged for commissiDn of offence under Section 412 of the IPC, were guilty of offences under Section 411 of the IPe. We may note that Manish Soni and Dahram Pal have not assailed their conviction and/or the sentence imposed upon them.

31. The appellants Mohd. Shamim; Pradeep; Kanhaiya (son of Nek Ram) Kanhaiya (son of Laxmi Narain) and Sonu were found guilty and' convicted under Section 120B IPC £or conspiracy to commit offences under Section /

32. It was held that the appellants IV1ohd. Shamim; Kanhaiya (son of Nek Ram); Kanhaiya (son of Laxmi Narain) Pradeep & Sonu were guilty of commission of offences under Section 394 IPe read with Section 397 of the IPe. Fmihermore, Kanhaiya (Son of Nek Ram) Mohd. Shamim; Pradeep and Sonu were found guilty of commission of offence under Section 302/34 IPe. The prosecution of the appellants under the Indian Arms Act failed for the reason that no sanction had been obtained against them.

33. The present appeals are based on similar grounds. The same evidence is relied upon to base the conviction of the present appellants and as such these appeals have been taken up together for the purposes of. the present consideration.

34. Learned counsel for all the appellants have primarily assailed the judgment on the ground that the case of the prosecution with regard to the alleged secret information; disclosure statements; anests and the recoveries is implausible and CalIDot be believed. The appellants also challenge as improper their identification of the four appellants by PW 4 Shri S.P. Narula; PVv 5 Shri Shatrugan Rai and PW 15 Sandeep Surma.

35. Even if the evidence against the appellants was to be believed, it is urged that it is the case of the prosecution that no injuries were noticed by PW 7 Dr. Anjana Kharbanda, CMO, Holy Family Hospital in the MLC on the body of the

36. It is fmiher contended that PW 7 opined the cause of death as strangulation. None of the eye-witnesses have given evidence of the deceased being strangulated by any ofthe accused person.

37. PW 24 Dr.Raghuvendra who has proved the post-mortem report had on the other hand opined that the cause of death was' asphyxia' due to smothering. It is contended that the doctor who conducted the post-mortem examination was not examined by the prosecution and the appellants were thereby deprived an opportunity to cross-examine him.

38. It is further urged that the gagging of the mouth of the deceased was not done with the intention of causing her death but was intended only to silence her protest. is urged that the appellants had no intention to cause such injury as would result in the death of any ofthe persons in the house.

39. We have heard learned counsels for the appellants and Ms. Ritu Gauba, learned APP at great length. We may advert to the testimony of P\V 4 S.P. Narula, one of the injured persons who has stated that when he returned from his spiritual class to his residence D-826, New Friends Colony, New Delhi on l[3] th December, 2003, at about 8.00 p.m., he saw that the door to his house was open and some noise was. coming from the kitchen. He noted something cooking on the stove in the kitchen and felt that something unusual was afoot. At this stage, he heard the sound of shouting from the drawing/dining room. one of the intruders. He saw that another intruder was holding and trying to overpower his wife which she was resisting. PW 4 told that person to let his wife alone.

40. At that stage, a third person came into the room and stabbed PW-4 on the left side and as a result, there was a lot of bleeding. However, PW 4 did not let go of the intruder whom he was holding. At this, the person who was holding the wife of PW 4, came and stabbed PW 4 thxee or four times. Then both of them tied the hands of PW 4 and gagged his mouth with a cloth and dragged him to the balcony in front of the drawing room where their servant Shatrughan and a property dealer Sandeep Surma had been tied. One ofthe persons tied the left leg ofPW 4 with his wife's right leg.

41. PVV 4 8hri S.P. Narula identified the accused Santosh, Pradeep, Kanhaiya (son ofNek Ram) & Sonu as the intruders who had come to the house and were involved the incident. They had overpowered his wife and stabbed him with a "churrd~.

42. P\\! 4-Shri Satya Paul Nanlla has also deposed that his wife wanted to protest when she was told by the property dealer PW-15-Sandeep Surma to keep quiet. PW 4 states that he also tried to quieten his wife. At that time, one ofthe accused came and strangulated his wife with a rope. One accused grabbed the· wrist watch from his hand as well as the money lying in his pocket. After some

43. We may also refer to the testimony of PW 5 Shatrughan Rai, another injured eye-witness who was working as a servant in the house of Col. Narula at D-826, New Friends Colony, New Delhi. On the fateful day at about 8.00 p.m., PW-15-Sandeep Sunna was having a discussion with the landlady of the house (Smt. Soharsh Narula) and he was working in the kitchen at that time when two persons entered the house. Within five to seven minutes of their entry, there was a shout from the lady and on her shout, PW 5 Shatrughan Rai went to her. He saw that the two men were standing near her, one was armed with a Imife.while the other was holding a pistol. When PW 5- Satrughan Rai entered the drawing room, he saw a third intruder also present who held PW 5 - Shatrughan Rai by the neck and was holding a pistol. The. third person held PW 5- Shatrughan Rai by his muffler and had put the Imife to his neck. At that stage, a fourth intruder also entered the house and these four persons took all three of the captives to a bigger r00111.

44. According to PW 5, at this stage, Mr. S.P. Narula also reached the spot and was badly beaten by these persons. They stabbed PW-4-l\1r. S.P. Naru1a as well as PVV 5 Shatrughan Rai with a knife and stuffed a cloth inside the mouth of deceased Ms. Narula and killed her. They took PW-15-Sandeep Sunna to another room while they kept rvir. & Mrs. Narula and PW 5 in one room. These intruders looted the house. P1JV-5-Shatrughan Rai identified Kanhaiya (son of has stated that Kanhaiya (son of Nek Ram) could be the fourth person. However, he was not sure. The identification of Kanhaiya (son of Laxmi Narayan) as one ofthe intruders as by this witness is therefore unreliable.

45. The testimony of P'IV 15 Sandeep Surma with regard to the incident, is also material. He has stated that he reached D-826, New Friends Colony at about 7.30 p.m. on 13 th December, 2003 to meet Mrs. Narula with whom some negotiations was going on regarding a property transaction. Only Mrs. Narula with her servants was present in the house and she was watching television. At about 8.0.0. p.m., the call bell rang and a person came with a courier packet which did not bear any name. Mrs. Narula told the person that the packet may be belonging to the tenant and he should give it to him. At this stage, this person took out a knife. The other person who had accompanied the knifecarrying person, was in possession of a 'katta'. On seeing the knife, Mrs. Narula started crying loudly. Hearing the cries, Mrs. Narula's servant came out. The intruders took all three into the drawinKroom after giving them a beating. The witness identified the appellant-Pardeep as the person who was canying the knife and the appellant - lViohd. Shamim present in court as the person who was carrying the katta in his hand. After five or seven minutes, PW-4-Col. Narula also arrived there. Two associates of these two intruders who were also armed with knives followed him (IV[r. Narula) into the house. The intruders were mouth by putting piece of cloth into it. PW-4 - Col. S.P. Narula cried out on reaching the spot, whereupon lV1ohd. Shamim hit Mr.Narula on his head with the butt ofthe pistol. One of the intruders stabbed Mr.Narula in his abdomen. The intruder also gave a stab blow to the PW 5 whose hands were also tied. The intruders removed PVJ 15's mobile; a watch of Designer make; a gold chain; an Om locket and some cash from his purse. PW-15-Sandeep Surma's hands were also tied by the intruders. The intruders also robbed articles from the house.

46. PVV 15 managed to escapte from the room where he was confined only at about 9.00 pm and got his hands untied from labourers present at the neighboring house where construction was going on. He requested three or four boys to accompany him to the spot. When PW-15 returned to the house with the boys, the intruders fled from the spot. PW-15 identified Sonu pre.sent in court as the person who had removed his watch, golden chain, locket and mobile.

47. The challenge to the disclosure statements and recoveries is misconceived and unsustainable. The quantities of the jewellery items recovered at the instance of and from the appellants coupled with its identification as stolen articles as well as the oral testimony ofthe witnesses establishes the prosecution case beyond any doubt qua the appellants. The defence led by the appellants qs\

48. The appellants were armed with pistol, dagger (chura). It is no doubt clear from the sequence of events and the testimony adduced by the prosecution that pursuant to their criminal conspiracy all the accused persons had barged into the house of the complaint primarily with the intention of committing the robbery. This is evident from the testimony of witnesses that they had disconnected the telephone Hnes and immobilized the occupants including the domestic servant PW[5] Shatrugan Rai. Similarly, the mouth of.PW15 Shri Sandeep Surma, was also gagged. The purpose of tying the hands and the gagging the mouth of the victims was to ensure that they do not raise an alarm. The keys of the almirah were also demanded and the rooms ransacked and the jewellery stolen. The hands of Mrs.Soharsh Narula were also tied down and cloth was pushed into her mouth by the accused persons so that she is not able to raise an alarm. The site plan was prepared at the instance of PW15 Sh.Sandeep Surma.. From the spot sutrassi, blood stained cushion cover, blood stained rope, blood stained pillow, blood stained gauze and blood stained muffler were seized by the police which were duly exhibited before the COUli. PWl[5] Sh.Sandeep SUl111a has testified that it was at this point of time that the victim/deceased Mrs.Soharsh Narula was pushed into the bed room and her mouth was gagged by putting cloth in her mouth and made to lie on the ground. As a result of this, the victim/deceased Mrs.Soharsh Narula was unable to t? brought dead. All these facts dearly show that the injuries were inflicted upon the deceased Mrs.Soharsh Narula were likely to cause death. Mrs.Soharsh Narula died because ~f asphyxia. The accused persons are deemed to have the knowledge that the injuries were of such a nature that the same will cause her death. Since these acts 'Ivere done in furtherance of their criminal conspiracy, therefore, all the accused became liable.

49. The deceased Mrs.Soharsh Narula was not killed by use of any anns. Unfortunately the appellal1ts attempted to silence her protests by stuffing a cloth in her mouth which led to her suffocation ('asphyxiation') and consequential death. There is no evidence of intention on the appellants to cause her death. Although, the acts do not fall in the first two categories of Section 299 IPC where the intention to kill or intention to cause such bodily injury is necessary,,-w>but it celiainly does fall in the third category that the nature of injuries were such which were within the lalOwledge of the accused persons to be of such a nature as would cause the death oJ the victim. The lmowledge of injuries being imminently dangerous and consequently in all probability causing death as enunciated in Clause 4 Section 300 IPC requires higher degree of knowledge which perhaps cannot be imputed to the accused persons in the instant· case. This is on account of the fact that the larger purpose of immobilizing or neutralizing the victims including Mrs.Soharsh Narula (since deceased) was to offence of death of lV1rs.Soharsh Narula cannot be categorized as an offence of murder but it certainly tantamounts to culpable homicide not amounting to murder within the' third sub clause of Section 299 IPC and punishable under Section 304 Pmi II.

50. In this background, we hold the appellants guilty of culpable homicide not amounting to murder punishable under Section 304 Part II ofthe IPC.

51. Let us now examine the orders on sentences imposed by the learned trial judge. The trial court has found the appellants Kanhaiya son of Nek Ram, Mohd. Shami~11, Soni & Pradeep, guilty for commission of offences under Sections 302/304 as wen as 394/397 IPC. For their conviction, under Section 394/397 IPC, the trial court has sentenced them to life imprisomnent and fined them in the sum of Rs.2,OOO/- each. In default of payment of fine, the defaulting appellant is required to undergo simple imprisonment of three months.

52. For commISSIOn of the offence under Section 302/34 of the IPC, the appellants have been sentenced to Iife imprisonment.

53. The trial court also convicted the appellants under Section 120B of the IPC. However, since they are sentenced as afore-noticed for the substantive offences committed in furtherance of conspiracy, no separate sentence under Section 120B 'Of the IPC has been awm'ded to them.

54. It is noteworthy that the prosecution had also arrayed one Kanhaiya Lal son of LaxmiNarain, as a co-conspirator in the case who was also convicted by the impugned judgment dated 18th December, 2009. Kanhaiya son of Laxmi Narain had filed Criminal Appeal No.285/20 10 which was accepted by this cOUli by its judgment dated 1ih September, 2013 whereby his conviction was set aside.

55. In the impugned judgment dated 18th December, 2009, it was held that though he was part ofthe conspiracy, he had not joined the present appellants in commission of the offences. We have rejected the finding of his complicity in the conspiracy in the judgment dated 1i h September, 2013. The evidence on record also reflects that only the four appellants entered the house to commit the offence oftheft and cause injury to the occupants ofthe house. Kanhaiya son of Laxmi Narain stands acquitted ofthe charges.

56. We have found that pursuant to a criminal conspiracy, the appellants entered the house of the deceased to commit robbety. In order to commit the robbery, they not only put fear of instant hurt bu~ actually caused hurt and wrongfhlly restrained the deceased Smt. Soharsh N~rula, her husband Shri S.P. i Narula, their servant Shatrugan Rai as well as a vi~itor Sandeep Surma in the house. They forcibly and dishonestly took away v41uables from these persons as well as from the house which have been recovered at their instance. ttl 2013:DHC:8651-DB.~ ---. (Shri Shatrughan' Rai) and their visitor (PW 115 Sandeep' Surma) while i, committing the robbery. YNe have held that the apbellants had the knowledge that the. injuries inflicted on Soharsh Narula coul~ result in her death. The !, InJunes actually resulted in her death. The aPRellants also succe~ding In i, into conspiracy under Section 120B IPC for codmission of offences under Sections 394/397 oftile IPC. We also find the appejlants gnilty for commission I of the offences under Section 394/397 and Section 2~9 ofthe IPC. !I The judgment of the trial court finding I the appellants guilty of commlSSlOn of offence under Section 302 IPC sJall stand modified to til;s extent. I

58. Before us, it has been fervently prayed that the appellants are extremely young and first time offenders. By now they have ~ndergone imprisonment of i over mne years. Other than the Sonu whose sentenc~ was suspended for a short period between 22ild April, 2008 to 29th April, ~008, tile appellants bave I remained continuously in jail since they were arrest~d on 24th December, 2003. I VVe have held that they entered the house of th[9] deceased pur~uant to the I conspiracy to commit robbery. Grievous injurie~ resulted in their acts to overcome the resistance by the occupants of hous~ and silence protests. We f:: ~~-~ I~--- - ~- ~-~-- _L_~ 299 of the Indian Penal Code and have modified their conviction under Section 302 ofthe IPC.

59. So far as the sentence which must be impo$ed on the appellants for commission of the offence under Sections 394/397 ot the IPC is concerned, we I hereby sentence each of the appellants to undergo ri*orous imprisonment for a term of ten years and also sentenced to pay fine in t~e sum of Rs.2,OOO/-. The. I appellants shall not be entitled to any remissions in Ithe sentences. In case of default of payment of fine, the appellants shall under~o simple imprisonment of three months.

60. For the commISSIOn of the offence under ISection 299 of the IPe I punishable under Section 304 pmi II, we herebyl impose on each of the appellants the sentence of rigorous imprisonment of t~n years without remission ~ i and fine Rs.S,OOO/- each. In Case of default of p~yment of fine, each of the appellants shall further undergo simple imprisonmentlfor three months.

61. The four appellants have been dghtly held ~UillY by the learned trial Judge for an offence of conspiracy to commit the off~nce of murder and dacoity I which has been converted into robbery and culpable t10micide not amounting to murder by this court. Therefore, the appellants I deserve to be sentenced separately for offence of criminal conspiracy as enViSaged under Section 120B ! of the IPe. The statutory provision lays down that ~he sentence which can be prOVISIOn is made, in that case it shall carry the !same punishment as if the ! offence has been abetted. I

62. Having regard to the fact that all the accuse[4] persons have been already. ! found guilty for the death of Soharsh Narula hnd sentenced to rigorous I, imprisonment often years, we are ofthe view that t~e interests ofjustice would be met in case they are sentenced for the offence of] criminal conspiracy also to

I. a sentence of rigorous imprisonment of ten years uhder Section l20B IPe and i the said sentence shall run concurrently with the oth¢r sentences. I

63. The substantive sentences awarded to the a~pellant have already been directed to run concurrently. This direction is maiJtained. The appellant shall ! also be entitled to set off the detention already ~ndergone by thell[1] during investigation and trial of the case as well as the pen1ency of the present appeals in accordance with Section 128 ofthe Criminal Proc~dure Code. I

64. The impugned judgment dated 15th Decdnber, 2009 and order' of ili l sentence dated 18 December, 2009 shall stand mod}fied to the above extent. I These appeals are disposed of in these tenns. I A copy ofthis judgment be supplied to each 0rthe appellants forthwith. l ---(} Ltr~~~~~ 1<6r~A MITTAL) 11 JUDGJE V/\(v--.~~